ISSUE 6 || December 2020 ||

www.whiteblacklegal.co.in ISSN: 2581-8503

VOLUME 2 : ISSUE 6 || December 2020 ||

Website: www.whiteblacklegal.co.in

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WHITE BLACK LEGAL: THE LAW JOURNAL

4 www.whiteblacklegal.co.in ISSN: 2581-8503 CRITICAL ANALYSIS OF DIGITAL RIGHTS MANAGEMENT PROVISIONS IN INDIA: (By Madhumitha C.R) ABSTRACT: This article examines the nee provisions of Digital Rights Management from a legal perspective. It also aims to highlight some of the important welfare implications.

BRIEF ON INTELLECTUAL PROPERTY RIGHTS: Intellectual property is a legal concept which refers to creation of human mind for which exclusive rights are recognised for example tangible property which creation has value and it is necessary to protect them. Intellectual property rights give this protection. The person holding exclusive rights to prevent others from using, manufacturing, distributing the inventions, artistic and literary works etc is known as the rights holder.

Types of intellectual property rights:

1. Industrial design: it deals with features, shapes, patterns, etc applied to an article by an industrial process whether through manual or mechanical. Designs can be registered based on its originality and use.

2. Copyright: it refers to the legal right of the owner of intellectual property. In other words, copyright is the right to copy, which means if the original creator of the product gives authorisation to someone then only, he will have the exclusive right to reproduce the work. Copyright law gives creator the right to dwell with the original material for a further period as specified until the copyrighted work becomes public domain. It is the legal means of protecting the authors’ work.

3. Patents: it is a form of intellectual property which gives its owner the right to exclude others from making, using, selling, and importing an invention for a limited period of time. (20 years). A patent for an invention is granted by the government to the inventor giving the inventor the right to stop others for a limited period from making, using, or selling the invention without their permission. Inventor has to file for patent and then make his / her invention to public. Patent has to filed in each country by the inventor to claim patent in that country.

5 www.whiteblacklegal.co.in ISSN: 2581-8503 4. Trademark: it can be brand, name, symbol etc used by a company to create a unique identity for their product. They are assets that can become highly valuable. The overall purpose of trademark law is to prevent unfair competition by protecting the use of a symbol, word, logo, slogan, design, domain name etc that distinguishes the goods or services of a firm.

DIGITAL RIGHTS MANAGEMENT (DRM): Copyright law can best be defined by constant strained tussle between exclusive private rights on the one hand and the freedom to read and express oneself as one wishes on the other hand. This dichotomy of interests often results in the balance leaning towards the copyright holders. Digital Rights Management (DRM) is one such technological measure that has now received legislative acceptance and incorporation in India. Essentially, DRM is meant to protect the ‘exclusive rights’ of copyright holders, which right encompasses within itself the right to exclude others from use, in any form, of the copyrighted material. However, by its very nature and functioning, this measure disrupts the balance between public rights and private interests that copyright law seeks to achieve, or rather, had sought to achieve at the time of its introduction in independent India.

It is a system for protecting the copyrights of the data circulated via internet or other digital media by enabling secured distribution or by disabling the illegal distribution of the data. DRM is basically an aggregation of security technologies to protect the interest of content owner so that they can protect their content. It is a term for access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals to limit the use of digital content and devices. DRM refers to protecting ownership/copyright of electronic content by restricting what actions an authorized recipient may take in regard to that content. It can refer to all technologies that protect them from piracy. DRM gives digital- content publishers, hardware manufacturers, copyright holders, and individuals the ability to securely distribute high-value content. The term is used to describe any technology that inhibits uses of digital content that is not desired or intended by the content provider. The term does not generally refer to other forms of copy protection, which can be circumvented without modifying the file or device, such as serial numbers or key files It can also refer to restrictions associated with specific instances of digital works or devices. Digital rights management is used by companies such as Sony, Amazon, Apple Inc, Microsoft, AOL and the BBC. The use of digital rights management is controversial. Proponents argue it is needed by copyright holders to prevent unauthorized duplication of their work, either to maintain

6 www.whiteblacklegal.co.in ISSN: 2581-8503 artistic integrity or to ensure continued revenue streams. DRM technologies attempt to control use of digital media by preventing access, copying or conversion to other formats by end users.

DRM technologies have enabled publishers to enforce access policies that not only disallow copyright infringements, but also prevent lawful fair use of copyrighted works, or even implement use constraints on non-copyrighted works that they distribute. DRM is most commonly used by the entertainment industry (e.g., film and recording). Many online music stores, such as Apple Inc. 's iTunes Store, as well as many e-book publishers have implemented DRM. In recent years, a number of television producers have implemented DRM on consumer electronic devices to control access to the freely-broadcast content of their shows, in response to the rising popularity of time-shifting digital video recorder systems.

DRM INCLUDES: Persistent Protection: Technology for protecting files via encryption and allowing access to them only after the entity desiring access has had its identity authenticated and its rights to that specific type of access verified

Business rights: Capability of associating business rights with a content by contract, e.g. author’s rights to an article or musician’s rights to a song

Access tracking: Capability of tracking access to and operations on content

Rights licensing: Capability of defining specific rights to content and making them available by contract

HISTORY OF DRM: In the pre-digital era, people's ability to do various things to or with content were limited. The networked digital age makes it possible to do just about anything to digital content, instantaneously and at virtually no cost. While this is a great opportunity for new content business models, it threatens the livelihood of content creators by making rampant piracy possible Also, more and more public and private entities are going digital and doing business online. Information is increasing retrieved through computer networks by customers, employees and partners etc.

Thus, we see the need for a technology that enables the secure creation, management, distribution and promotion of digital content on the Internet. A very early implementation of

7 www.whiteblacklegal.co.in ISSN: 2581-8503 DRM was the Software Service System (SSS) devised by the Japanese engineer Ryoichi Mori in 1983.

MISSION OF DRM: Protect rights of digital media producers while enabling access for fair use, rant exclusive rights in exchange for disclosure.

Reality: DRM is just protection technology, and is fast eroding our rights of fair use

1. may never be able to reuse parts of any digital content

2. hinders progress of science and the useful arts

LAWS REGARDING DRM: Digital rights management systems have received some international legal backing by implementation of the 1996 WIPO Copyright Treaty (WCT).

The WIPO Copyright Treaty (WCT) is a special agreement under the Berne Convention which deals with the protection of works and the rights of their authors in the digital environment.

The Berne Convention for the protection of Literary and Artistic Works is an international agreement governing copyright, which was first accepted in Berne, Switzerland, in 1886. Article 11 of the Treaty requires nations party to the treaties to enact laws against DRM circumvention. The WCT has been implemented in most member states of the World Intellectual Property Organization.

DMCA:

The Digital Millennium Copyright Act (DMCA), was signed on October 28, 1998. The legislation implements two 1996 WIPO treaties:

1. The WIPO Copyright Treaty

2. The WIPO Performances and Phonograms treaty

The American implementation is the Digital Millennium Copyright Act (DMCA), while in Europe the treaty has been implemented by the 2001 European directive on copyright, which requires member states of the European Union to implement legal protections for technological prevention measures. In 2006, the lower house of the French parliament adopted such legislation as part of the controversial DADVSI law, but added that protected

8 www.whiteblacklegal.co.in ISSN: 2581-8503 DRM techniques should be made interoperable, a move which caused widespread controversy in the United States.

ANALYSIS OF INDIAN COPYRIGHT ACT, DIGITAL RIGHTS MANAGEMENT PROVISIONS: The new provisions, Sections 65A and 65B added to the Copyright Legislation in India may facilitate the entry of India to the WIPO treaties. While the first provision Section 65A deals with the protection against circumvention of technological measures, the second provision Section 65B deals with protection of rights management information.

According to Section 65A (1) relating to protection of technological measures, if any person circumvents an effective technological measure used for the purpose of protecting any of the rights conferred under the Copyright Act, with the intention of infringing such rights, then shall be punished with imprisonment which may extend up to two years and shall also be fined.

Section 65B (2(a)) of the Copyright Act, explicitly mentions that the provision shall not prevent any person from doing anything referred to therein for a purpose not expressly prohibited by the Copyright Act. when one reads the anti-circumvention provision along with the exceptions enumerated, three major implications of the legislative approach become obvious.

Firstly, by limiting the application of the anti-circumvention provision to cases of intentional infringement, the legislator has used a fairly high bar for invoking actions based on this provision.

Secondly, as the exception provision clearly mentions, if the circumvention was for a purpose not expressly prohibited by the Copyright Act, the anti-circumvention provision will not apply.

Thirdly, the legislation also allows circumvention with the help of third parties, provided certain procedural conditions are met.

The significance of these three aspects will be very essential to analyse the anti- circumvention provisions.

According, to Section 65B (i) of the Act if any person knowingly removes or alters any rights management information without authority then shall be imprisoned for up to two years and shall also be fined. There are two factors which need to be highlighted.

9 www.whiteblacklegal.co.in ISSN: 2581-8503 Firstly, when compared to the provisions relating to protection of technological measures the provisions relating to protection of rights management information takes a far more rigid approach. This is visible from the absence of any explicit exceptions under the provision.

Secondly, by explicitly mentioning of civil remedies the provision on protection of rights management information shows a very stricter approach compared to the provision against circumvention of technological protection measures.

Both the provisions relating to protection of technological measures and rights management information illustrate a carefully drafted legislation meant to satisfy the minimum requirements of the WCT and WPPT. They are also remarkable for not providing broad protection to subjects generally outside the purview of Copyright protection.

From a legislative background it can be seen that the provisions have not been subject to proper economic analysis regarding both the need as well as the impact of those provisions on Copyright. Bill which was passed by the parliament focuses mainly on the desire to comply with the WIPO Internet treaties. Also expresses a belief that it is necessary to follow these treaties to protect the copyrighted material in India over digital networks like internet.

GOALS OF DRM:

DRM attempts to protect the copyright holder’s intellectual property rights.

Allows for secure content delivery for the consumer.

Allows for content providers to monitor sales of their products more efficiently.

Cuts down on the amount of piracy.

Providing protection of digital content.

Enabling secure distribution.

Ensuring content authenticity.

Providing transaction non-repudiation.

Supporting participant identification.

10 www.whiteblacklegal.co.in ISSN: 2581-8503 CONTROVERSY OF DRM: Many organizations, prominent individuals, and computer scientists are opposed to DRM. Two notable DRM critics are

John Walker, as expressed for instance, in his article. The Digital Imprimatur: How big brother and big media can put the Internet genie back in the bottle

Richard Stallman in his article The Right to Read and in other public statements: DRM is an example of a malicious feature - a feature designed to hurt the user of the software, and therefore, it's something for which there can never be toleration.

THE FUTURE OF DRM: DRM is emerging as a formidable new challenge, and it is essential for DRM systems to provide interoperable services.

Solutions to DRM challenges will enable untold amounts of new content to be made available in safe, open, and trusted environments.

The technology can be expected to be heavily used in the future to support digital library collections, code and software development, distance education, and networked collaboration, among other applications.

DRM standardization is occurring in a number of open organizations. Open eBook Forum [OEBF] and the MPEG group [MPEG] are leading the charge for the eBook and multimedia sectors.

The Internet Engineering Task Force [IETF] and the World Wide Web Consortium [W3C] have also commenced work on DRM issues.

Their work will be important for the entire DRM sector, and it is also important that all communities be heard during these standardization processes in industry and sector-neutral standards organizations.

11 www.whiteblacklegal.co.in ISSN: 2581-8503 CONCLUSION: This article shows the need for a careful reconsideration of the new Digital Rights Management provisions in the Indian Copyright Law. The new provisions do not even provide for a mandatory periodical review of the working of those provisions. Better enforcement of rights already guaranteed to the copyright holders can bring more clarity in this regard. Also, better use of existing Copyright remedies like doctrine of contributory infringement, India can provide sufficient protection for the right holders in the digital world.

The essential part of information is that it is something to be shared, and not merely a commodity of some sort whose value should be determined by forces in the marketplace. The rights and motivation given to the creators of any copyrighted work cannot be ignored. There is a need to frame more equitable copyright policies.

Content owners will want to use a mixture of digital copyright, technical measures and licenses to protect their content. There is a need to develop uniform version of DRM technology because if there are multiple versions of DRM technology, the end result will be consumer confusion and chaos.

Many online music stores employ DRM to restrict usage of music purchased and downloaded online. Electronic books read on a personal comp0uter or an e-book reader typically use DRM restrictions to limit copying, printing, and sharing of e-books. E-books are usually limited to a certain number of reading devices and some e-publishers prevent any copying or printing.

Despite of the judicial pronouncement being made by the court of law, still DRM has been facing opposition to a great extent. It is criticised to an extent that 3rd October has been declared as Day against DRM. There are two main reasons for the opposition to DRM, firstly the consumers opposition being faced by the DRM security systems and, secondly the number of ways by which the security systems can be avoided even in the presence of laws against the circumvention of DRM.

However, the protection of digital rights management to digital content can exist in different ways. First and foremost is in the form of technological protection. Secondly, there come the legal remedies available under the law and thirdly, the existence of binding contracts. The technical level of protection could progress more and might hinder the freedom presently enjoyed by the end-user. The consumers of digital content bound by the commercial contracts find themselves stuck with devices or software that uses a digital rights management

12 www.whiteblacklegal.co.in ISSN: 2581-8503 technology which lack interoperability hindering accessibility. In this context the focus should shift towards accessibility and balance of interests to be attained in such instances.

The policy makers and technology experts should work together to bridge the gap in the existing law and also for the improvement of the technology, so as to reduce the number of copyright infringement disputes. While the normative frameworks may be intermediate, they can still guide policy makers in making prudent choices that will reward creative labour and stimulate creativity while avoiding further erosion of the intellectual commons.