DIGITAL AGE LAW IN ASIA: DMCA-TYPE PROVISIONS IN CHINA AND INDIA

BY: ROSS A. DANNENBERG (L) AND DAVID 3 For example, Article 11 of R. GERK (R) the WIPO Copyright Treaty provides the following broad guidance regarding obligations concerning technological Computer, internet and related digital Economic World Player measures: Contracting Parties shall technology are the functional platform upon provide adequate legal protection and effective which many of the largest and most robust legal remedies against the circumvention of effective economies across the globe now operate. technological measures that are used by authors Further, these services are vital for the continued DigitalD l MillenniumM ll CopyrightC h ActA thanh non- in connection with the 1 exercise of their rights under 13 operation and integration of the global economy. signatory countries. However, non-signatory this Treaty or the and that restrict Accordingly, legal liability relating to actions (or countries may also have laws providing limited acts, in respect of their works, BANNER & WITCOFF | which are not authorized by failures to act) in cyberspace and other media, similar protections, and a review of the law in the authors concerned or now greatly affects decisions by governments, the individual jurisdictions would be necessary permitted by law. (The WIPO Performances and companies, and individuals across the globe. to confirm the extent of such protection. Phonograms Treaty contains a similar provision in Article 18.) Similarly, Article 12 provides the following broad guidance Computer, internet and related digital technology are the functional regarding obligations concerning rights management platform upon which many of the largest and most robust economies information: UPDATEINTELLECTUAL PROPERTY across the globe now operate. Further, these services are vital for the Contracting Parties shall provide adequate and continued operation and integration of the global economy. effective legal remedies against any person knowingly performing any of the following acts knowing, or In the ten-plus years since the Digital Millennium In order to determine the extent to which with respect to civil remedies having reasonable grounds Copyright Act (DMCA) took effect in the these provisions have been implemented and to know, that it will induce, enable, facilitate or conceal United States, many of the jurisdictions topping the specific embodiment these provisions an infringement of any right covered by this Treaty or the rankings of annual GDP lists have enacted take in a given country, one must analyze Berne Convention: similar laws or provisions. The WIPO Copyright the specific laws in each given jurisdiction. (i) to remove or alter any electronic rights Treaty (WCT) and the WIPO Performances and Analysis of individual laws is necessary because, management information

without authority; | SPRING/SUMMER 2009 Phonograms Treaty (WPPT) generally require that while many of the countries analyzed herein ii) to distribute, import for distribution, broadcast or treaty signatories provide copyright protection are signatories to common copyright treaties communicate to the public, without authority, works or concerning technological measures used to such as the Berne Convention and the WIPO copies of works knowing 2 that electronic rights protect copyrighted works, as well as regarding Copyright Treaty, each possesses significant management information has been removed or rights management information. Thus, the freedom regarding how to implement specific altered without authority. signatories to these treaties are more likely to provisions of these treaties within the (The WIPO Performances and Phonograms Treaty contains a have enacted laws similar to the United States’ framework of their existing laws.3 MORE similar provision in Article 18.) 14 BANNER & WITCOFF | UPDATE | SPRING/SUMMER 2009 4 gov/legislation/dmca.pdf) pg. 1(http://www.copyright. Summary, December1998, 1998–U.S. CopyrightOffice Copyright OfficeActof The DigitalMillennium Copyright Act,createsa“safe harbor”by TITLE II management information. prohibiting tamperingwith copyright owners toprotecttheirworksandasecond technological measuresusedbycopyright Code: oneprohibitingcircumvention of prohibitions inTitle 17oftheUnitedStates TITLE I Protection Act agreements; and(5)Title V– “webcasting,” andcollectivebargaining Copyright Office,“ephemeralrecordings,” provisions relatingtothefunctionsof Assurance Act (3) Title III– Copyright infringementLiabilityLimitation Treaties ImplementationAct andPhonograms Copyright andPerformances divided intofivetitles:(1)Title I– and PhonogramsTreaty. Copyright Treaty andtheWIPOPerformances Property Organizationtreaties:theWIPO implements two1996World Intellectual Enacted inOctoberof1998,theDMCA ACT(DMCA) MILLENNIUM COPYRIGHT DIGITAL THE ON BACKGROUND are brieflydiscussed. implemented someDMCA-typelaws,which member ofeithertreaty, Indiahasnonetheless Phonograms Treaty. WhileIndiaisnota Treaty and/ortheWIPOPerformancesand on itsimplementationoftheWIPOCopyright type provisions”implementedinChinabased States andareviewofsomethekey“DMCA- Millennium CopyrightLawintheUnited following isabriefsynopsisoftheDigital property lawsareChinaandIndia.The developments intheirrespectiveintellectual significant interestwithregardtochangesand Two countriesthatcontinuetobeof [ DIGITAL AGECOPYRIGHTLAW , amongotherthings,createstwo , inaddingnewsection512 tothe Computer MaintenanceCompetition . ; (4)Title IV–miscellaneous 4 , FROMPAGE 13] TheDMCAis ; (2)Title II, Vessel HullDesign WIPO Online ; “heart” oftheDMCA. taken together, aretypicallyconsideredthe information locationtools.Titles IandII, information atthedirectionofusers,and(4) caching, (3)storageortransmissionof communications,(2)system (1) transitory providers”: categories ofconductby“service These limitationsarebasedonfourprimary providers. infringement byonlineservice on liabilityforcopyright placing limitations nlaiiyfrcopyrig for liability on pl maintaining orrepairingthatcomputer. copy ofacomputerprograminthecourse a computertomake(orpermitmakingof) For example,thistitlepermitsanownerof program inconjunctionwithacomputer. tousethe or adaptionswhennecessary a copyofprogramtomakereproductions computer programsallowinganownerof TITLE IV TITLE III the DigitalPerformanceRights Act(DRPA) facilitate atransmission).Title IValsoexpands “ephemeral recordings”(e.g., recordingsto under theCopyrightActfor making international functionsand anexemption Office’s authorityregardingpolicyand provisions isconfirmationoftheCopyrights provisions. Amongthemiscellaneous l acin g expandsexemptionsrelatingto l l includesanumberofmiscellaneous

imitations DMCA-Type Provisions DMCA-Type ht [DIGITAL AGE COPYRIGHT LAW, FROM PAGE 14] to include webcasting as a new category of regulations were later introduced in the “eligible nonsubscription transmissions,” Copyright Law of 2001, which prohibits revises the criteria for an entity to be eligible “intentionally avoiding or destroying the for a license, and creates a new statutory technical measures” taken by copyright license for making ephemeral recordings. owners or obliges without permission or Lastly, Title IV also addresses the assumption unless otherwise authorized under the law.8 of contractual obligations upon transfer of These same anti-circumvention rules were rights in motion pictures. also promulgated by the State Council in 2002 in the Regulations on the Protection TITLE V adds a new chapter 13 to Title 17 of of Computer Software.9 the United States Code and, along with it, creates a new system for protecting original More recently, on June 1, 2006, the State designs of certain useful articles (i.e., hulls Council set forth further anti-circumvention of vessels no longer than 200 feet).5 rules explicitly authorizing an owner to adopt “technical measures” to “protect the right This article principally discusses Titles I and II to network dissemination of information.”10 —circumvention of technological protections These rules prohibit organizations or and the “safe harbor” provisions for service individuals from purposely avoiding or 15 providers—and whether various foreign breaking the technical measures (often in an 5

Vessel Hull Design Protection BANNER & WITCOFF | relates to a sui generis jurisdictions provide similar types of protection. attempt at reverse engineering) or purposely provision outside the topical scope of this article and is merely mentioned to provide an accurate and complete These recent developments in Chinese law are generally believed description of the Act (DMCA). to have expanded the scope of protection available to copyright 6 Copyright Law of the People’s Republic of China, Article 3 holders (and adjacent right holders) utilizing encryption software (2001). (“For the purposes of this Law, the term “works” and various other technical measures to protect copyrighted includes works of literature, UPDATEINTELLECTUAL PROPERTY art, natural science, social subject matter and content. science, engineering technology and the like which are expressed in the following: DMCA-TYPE PROVISIONS IN …(8) computer software…”) manufacturing, importing or providing to the 7 Interim Regulation on CHINA AND INDIA Administration of Software general public devices or components that are Products, Article 18 (1998). CHINA: China’s laws in accordance with mainly used to avoid or break the technical 8 Copyright Law of 2001, Article 47. 9 Order of the State Council the WCT and WPPT went into force on measures unless otherwise provided for in of the People’s Republic of 11 China, No.339, Regulations on June 9, 2007. In China, “computer software” law or regulation. Thus, China has adopted the Protection of Computer Software, Article 24 (effective is specifically identified as one of the “forms several provisions in the spirit of the DMCA January 1, 2002) at (http:// 6 english.gov.cn/laws/2005- of expression” protectable by copyright. related to the “anti-circumvention” provisions 08/24/content_25701.htm). | SPRING/SUMMER 2009 Chinese law also provides anti-circumvention of Title I of DMCA. 10 CoOrder of the State Council of the People’s protection of computer technology. China’s Republic of China, No.468, Ordinance on the Protection first anti-circumvention provisions were These recent developments in Chinese law of the Right to Network Dissemination of Information, set forth in 1998 in the form of ministry are generally believed to have expanded the Article 4 (effective July 1, 2006) at (http://fdi.gov. regulations (“Interim Regulations”). Article scope of protection available to copyright cn/pub/FDI_EN/Laws/ GeneralLawsandRegulations/ 18 of the Interim Regulations prohibits holders (and adjacent right holders) utilizing AdministrativeRegulations/ P0200607133082993 “production of pirated software, software for encryption software and various other 73030.pdf)W deciphering secrets and software with the main technical measures to protect copyrighted 11 See id. 12 Song Haiyan and Xu Yuezhu, function of removing technology-protection subject matter and content.12 However, it Computer Software Protection in China, (March 2007), at measures.”7 Further anti-circumvention has been suggested by some that the MORE  www.kingandwood.com 16 BANNER & WITCOFF | INTELLECTUAL PROPERTY UPDATE | SPRING/SUMMER 2009 19 18 17 16 15 14 13 Ayan RoyChowdhury, Id 2009, p.134. Organization, January26, Rights, World Trade Intellectual Property and Enforcementof Affecting theProtection DS362: China–Measures See Law andPractice, See, Int’lCopyright number 2(2008). & Practice,volume3, Intellectual PropertyLaw in India The FutureofCopyright Id Id §8[1][b][ii], atpg.IND-42. . . . id . , Journalof Literary Works Protection India , by theBerneConvention. they dotoChinesecitizens,asisrequired same efficacytonon-Chinesenationalsas China’s copyrightlawsdonotprovidethe Specifically, thepaneldeterminedthat benefits accruingtotheUnited States,and China’s copyrightlawsnullifyorimpair on thesefindings,thepanelconcludedthat Berne ConventionandTRIPSAgreement. laws werenotincompliancewiththe Berne ConventionandTRIPSAgreement. of China’s intellectual propertylawswerenotincompliancewiththe Trade OrganizationdeterminedinJanuary 2009thatcertainprovisions After adisputeinitiatedbytheUnitedStates,panelofWorld provisions ofChina’s intellectualproperty 2009thatcertain determined inJanuary a paneloftheWorld Trade Organization After adisputeinitiatedbytheUnitedStates,Af [ as requiredbytheTRIPSAgreement. infringement ofintellectualpropertyrights, to permiteffectiveactionagainstanyactof not provideenforcement proceduressoas determined thatChina’s copyrightlawsdo DIGITAL AGECOPYRIGHTLAW ter adi sp ute ini current anti-circumventionc laws nee need tobeimprovedbecausethe cur current provisions:(1)are“too urr simple andvague”including si a l a lackoflimitsonthescope o of protection;(2)makeno distinction betweenthevaried d m t technical measuresutilized; f and, (3)failtoaccountforor a e i e t d explicitly exempt legitimate explicitly exemptlegitimate e r a

or potentially o circumvention activities (e.g., research and academic arenas) as is done academic arenas)asisdone in manyothercountries. , FROMPAGE 15] 15 Thepanelalso desirable 16 Based 14 13 works.” computer programsareconsidered“literary programs andrelatedsubjectmatter, provide copyrightprotectionofcomputer In India,likemostotherjurisdictionsthat INDIA: management information. provisions aswellprotectionsforrights with theintroductionofanti-circumvention believe India’s lawswillsoonbeamended that resembletheDMCA.Forexample,some copyright lawstoincludefurtherprovisions As aresult,Indiamaycontinuetoreviseits implementation ofDMCA-typeprovisions. However, Indiacontinuestocontemplate not signedeithertheWCTorWPPA. of DMCA-typelaws.Indeed,Indiahas less comprehensiveinitsimplementation property lawsinthefuture. additional changestoChina’s intellectual work to the public” provided the copy is “not work tothepublic”provided thecopyis“not which providesaright“toissue copiesofthe works”underIndian law,other typesof“literary specific tocomputerprogramscontrastswith such copyissoldorrentedpreviously. Thisright of acomputerprogram,regardlesswhether offer forsaleorcommercial rentalanycopy” right “tosellorgiveoncommercial rentalor consideration underIndianLawbasedona works,” computerprogramsreceivespecial the TRIPSAgreement. be inconformitywithitsobligationsunder recommended thatChinaamenditslawsto Indiahasbeenalittleslowerand 19 Despite being considered “literary Despite beingconsidered“literary 17 Asaresult,expect 18 [DIGITAL AGE COPYRIGHT LAW, FROM PAGE 16] already in circulation.”20 Accordingly, computer CONCLUSION programs are exempt from what resembles the Since 1998 digital technology has continued United States’ “first sale doctrine” limitation on exponential growth in importance, the distribution rights of the copyright owner complexity, and breadth. Very few locales even though the “first sale doctrine” applies to on the planet have not been influenced by other forms of literary works in India. digital media and technology. Accordingly, in the time since the U.S. passed the Digital Currently, Section 52(1) of the Indian Millennium Copyright Act (DMCA) as the Copyright Act sets forth several provisions manner in which the United States governs specifically limiting the rights of copyright copyright and related issues relating to the owners in relation to utilization of computer facets enumerated in that Act, many other programs, making of back-up copies, countries have also amended or added interoperability between computer programs, to their body of law relating to digital and reverse engineering.21 First, the “making media, technology and related issues. After of copies, or the adaptation, of a computer reviewing DMCA-type provisions currently program” by the lawful possessor of the implemented by two of the larger players on program is allowed “(i) in order to utilize the the world economic stage, China and India, computer program for the purpose for which it is evident that many factors influence 17 it was intended or (ii) to make back-up copies each nation’s approach to addressing the BANNER & WITCOFF | purely as a temporary protection against loss, expanding challenges introduced by new and destruction, or damage.”22 Second, “any act evolving technologies. While many issues necessary to obtain information essential for must be worked out in order to have a sense assuring the interoperability . . . with other of harmony or universal approach to the use programs,” provided that the information of copyright laws in this age, similarities in

20 is not otherwise readily available, is also the approaches are apparent. This is an arena Id. UPDATEINTELLECTUAL PROPERTY 21 allowed under the Indian Copyright Act.23 that will continue to develop and, although See id. at pg. IND-48. 22 Section 52(1), Clause (aa). Lastly, “observation, study, or test[ing] of the perhaps never reaching full harmonization, 23 Section 52(1), Clause (ab). functioning of a computer program,” in order the significance of such laws is clear. ■ 24 Section 52(1), Clause (ac). to determine “the ideas and principle that underlie any elements of the program” while performing such acts as necessary for which the program was supplied is also permitted.24 | SPRING/SUMMER 2009