This article titled ‘Copyright Protection in the Cyberspace within the IT Act, 2000’ aims to understand the scope of protection of copyrights in the virtual world within the provisions of the IT Act, 2000.
I. Copyright Protection Under IT Act, 2000
India’s Information Technology Act (hereinafter referred to as ‘IT Act’) was enacted in 2000 so as to address the various issues created by the cyberspace with regard to the conduct of electronic commerce.
The IT Act doesn’t specifically provide for measures that can deal with copyright violations on the internet, however, despite concrete framework, there are various provisions that may be construed to address certain aspects of copyrights.
With specific regard to tampering of source code, the ITA provides punishment for tampering of source codes of computer programs of Government agencies and not necessarily private users since the provision is limited to source codes required to be maintained by law.
Additionally, certain other sections may be addressed when reading into copyright protection within the cyberspace such as §43 of the ITA[1] relates to penalty for damage to computer systems and §79[2] favours for limited liability of different network service providers for violations that are committed by their clients if there was an absence of knowledge and due diligence on part of the concerned service provider.
The section essentially provides that ISPs cannot be forced to enter into agreements that are contrary to this particular provision. Any agreement that fails to meet the provision will be void ab initio and thus, the normal principle now is that the ISPs can be liable for any third-party information and data that is made available to them.
The IT Act, by way of the Amendment of 2008, makes significant advances in codifying the legal position of intermediaries and their liability in India. This provides immunity to intermediaries from liability for any data, or communication link made available or hosted by him.[3] Prior to the amendment, §79[4] provided immunity to service providers only with respect to liability under the IT Act, 2000 and the rules and regulations thereunder.
Therefore, these service providers weren’t entitled to immunity with respect to liability arising under other statutes. However, post amendment[5], contains a non-obstante clause and therefore, affords protection to service providers with respect to liability arising under all statutes, and thus, significantly heightening the level of immunity available to these ISPs.
However, the position of intermediaries must be read in accordance with §81[6] when questioning their liability. On a prima facie reading of this section, it seems like immunities under §79 aren’t available for copyright infringement. However, the object of amending §79 was to embrace the horizontal approach to intermediary liability in India.
The purpose of introducing this amendment would be defeated if §81 is read as having an overriding effect over §79 to the extent that immunity shall not be available in cases of liability for copyright infringement. The scope of the section is likely to become narrow if intermediaries are disentitled to avail immunity for copyright infringing third party content.
Therefore, §81 may be interpreted as having an overriding effect over all other sections of the IT Act, except §79, thereby ensuring that the rights of the copyright holders are not restricted by the Act in cases other than those covered by §79.
The exact scope of the provisions is determinable however, only through judicial pronouncement and precedents in this regard because the liability of ISPs for copyright infringement is not expressly covered by the Indian Copyright Act.
II. Lacunae in Copyright Protection
While the issue of copyright violation generally comes within the purview of our Copyright Act, it can be said that efforts have been made to deal with copyright infringement on the virtual space when reading into the provisions of the IT Act.
The main issue with having adequate legislation for the cyberspace is the continuing and accelerated pace of development that takes place in the field of information technology. As a consequence, the Act does fail to address certain issues that are truly important in the regulation of the cyberspace and thus, creates grey areas within the field of copyright protection in the virtual world.
Software Piracy
When copyrighted material and software is made available to the public users to download without any express permission from the copyright owner, the material of software is said to be pirated.
Through multiple websites and advertisements, illegal software is offered and piracy of this software hampers the creativity of original copyright holders and also affects the real development of new software and as a result, the process of e-commerce is severely compromised. Consumers also are at a risk more often than not, due to the constant scare of running a virus due to a corrupted programme.
The National Association of Software and Service Companies (hereinafter referred to as ‘NASSCOM’) actively works with the Government of India in formulating provisions and policies regarding IT law in India.
According to NASSCOM, there are four different types of piracy including end-user piracy, hard disk loading, software counterfeiting and internet piracy.
43(b) of the ITA[7] imposes liability when a viewer of a website downloads any copyrighted material from the site and proceeds to use the material without any authorization from the owner. Additionally, liability may also arise when a website user merely views the website but doesn’t download any material from the website due to the copy of the page being stored as a cache-memory on the webpage.
This creates a huge grey area wherein, it is unclear whether the latter form of usage will also amount to a violation of §43(b). Although it does seem impractical, the law is rather unclear on the same as it remains silent on the issue. Further, there is also no clarity on whether downloading or copying information that is in the public domain, but only compiled, such as lists of names or numbers, would also attract liability within this section.
With advancements in the cyberspace and in the field of IT law, there need to be new amendments so as to accommodate these issues and find solutions to resolve these issues. Although the IT Act was amended in recent years, it doesn’t account for issues regarding software piracy.
Protection of Data
The term ‘data’ within the scope of the ITA extends to a lot of different material as it has a very wide ambit and scope, and applies to both individuals and commercial companies. This, in turn, results in both proprietary and personal or privacy rights that need to be protected.
These rights are then protected by the Constitution along with other legislation such as the Copyright Act and the IT Act. India happens to be the largest host of outsourced data processing in the world, and thus, could become the epicentre of cybercrimes in the near future.
The TRIPS Agreement does recognize the protection of data[8], however, the same level of concern is not exactly reflected in our legislation. For example, when section 1(2) is read with section 75[9], it provides that if a person contravenes data and privacy rights of an individual within India, he would be liable.
Further, if he makes unauthorized use of his system or network, he also violates the privacy of the owner.[10] Additionally, the data and privacy are also intruded if computer source documents are tampered with, and this is met with a punishment of imprisonment up to 3 years of a fine that can extend up to INR 2L.[11]
The Amendment Act of 2008 began to address the grey areas within data protection laws in the nation. However, it still remains rather inadequate as seen through the years in terms of implementation and enforcement.
The amendment §43A doesn’t specify the meaning of ‘sensitive personal data or information’ and the amendment §72A provides punishment for disclosure of information in breach of a lawful contract, however, doesn’t speak about its territorial applicability.[12]
Thus, the ITA essentially provides restrictions for how data may be collected and used but doesn’t provide for data protection or privacy principles per se.
III. Conclusion
While the Indian Government has taken proactive measures to regulate cyber crimes in India, the regime is still at its early phases. There are multiple grey areas within the field that needs to be addressed.
The field of information technology is one that is constantly evolving and growing, and thus, the law needs to be adequately amended so as to cope with all the advancements.
References
- The Copyright Act, No. 14 of 1957, Acts of Parliament, 1957, India.
- Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
- Parag Diwan and Shammi Kapoor, Cyberlaw and E-Commerce Law, 2nd 2000
- Salman Waris, Copyrights and Legal Protection of Software, IEID Paper, 2012
- Shlisha Devadiga and Shweta Choudhary, Copyright Act, 1957, Presentation, CMR School of Legal Studies, 2018
- Vijay Pal Dalmia, India: Copyright Law in India – Everything you Must Know, Mondaq papers, 2017
- Atul Satwa Jaybhaye, Cyber Law and IPR issues: The Indian Perspective, Bharati Law Review, 2016
- Deep Ray, Protection of Copyright under I.T. Act, 2000, SSRN Paper, NALSAR University, 2014
- Nehaluddin Ahmad, Copyright Protection in Cyberspace: A critical study with reference to electronic copyright management systems, Communications of the IBIMA, Volume 7, 2009
- Tabrez Ahmad, Copyright Infringement in Cyberspace and Network Security – A Threat to E-Commerce, KIIT Law School
- Ravindra Sharma, Copyright under Indian Cyber Law, Symbiosis Center for Information Technology, 2009
- Karnika Seth, Protecting copyright in the cyberspace, 2013
[1] §43, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[2] §79, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[3] §79(1), Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[4] §79, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[5] Supra 2
[6] §81, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[7] §43(b), Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[8] Article 10(2), TRIPS Agreement.
[9] §1(2) with §75, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[10] §43, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[11] §65, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
[12] §43A with §72A, Information Technology Act, No. 21 of 2000, Acts of Parliament, 2000, India.
