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439328 1 En Bookfrontmatter 1..10 Copyright Law in the Digital World Manoj Kumar Sinha • Vandana Mahalwar Editors Copyright Law in the Digital World Challenges and Opportunities 123 Editors Manoj Kumar Sinha Vandana Mahalwar The Indian Law Institute The Indian Law Institute New Delhi New Delhi India India ISBN 978-981-10-3983-6 ISBN 978-981-10-3984-3 (eBook) DOI 10.1007/978-981-10-3984-3 Library of Congress Control Number: 2017931569 © Springer Nature Singapore Pte Ltd. 2017 This work is subject to copyright. All rights are reserved by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, express or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Printed on acid-free paper This Springer imprint is published by Springer Nature The registered company is Springer Nature Singapore Pte Ltd. The registered company address is: 152 Beach Road, #21-01/04 Gateway East, Singapore 189721, Singapore Preface The intriguing relationship between freedom of expression and copyright law has deepened in the 21st century. Freedom of expression and copyright are seen as two harmonizing concepts, but there exists two opposing views also against this backdrop. Some characterise copyright as “engine of free expression”. Copyright incentivises the creations and promotes the freedom of expression. The obverse of this reasons the copyright law to operate as a fetter on what others do express and hence, results in a tension between copyright law and freedom of expression. The potential coexistence and conflict between the freedom of expression and copyright law has brought into being much of academic reviews and interpretations. Copyright law, more because of advent of the internet; open-source software ini- tiatives; peer-to-peer exchanges and changes to copyright rules, is under the scholarly debates. The debates about copyright law unfold the questions relating to substantive law, right to education, freedom of expression and the concept of ownership. These debates question our existing legal system on how do they work and how should they work in the internet age. There are scholars who argue that over emphasis on commercialising the literary and artistic creations is epistemically unfavourable to the overall advancement as it inhibits the stream of information. The philosophical or theoretical justification behind the copyright law is utilitarian i.e. best situations are those in which people are in total as happy or fulfilled as possible. The internet has landed as one of the most revolutionary social devel- opment which has exploded more prospects to access the information. The emer- gence of digital media and network connections has enabled the dissemination of information which was previously unimaginable. The intellectuals set up dichoto- mous justifications for copyright protection, as a few view copyright owners having control over their creations and extracting some commercial value, while others perceive it as a mechanism which promotes the mass interests. Technological advancements upsetting the link between copyright and freedom of expression, have radically impacted the scope of protection under the copyright law. v vi Preface This volume is set of papers reflecting the diverse perspectives on copyright law. A good number of papers canvass almost the entire breadth of copyright law which will appeal the professionals in the copyright world. The editors would like to express sincere thanks to all the contributors for their significant contributions and insights without which this book may not have been possible. New Delhi, India Manoj Kumar Sinha Vandana Mahalwar Contents Idea-Expression Dichotomy and Originality Requirements for Copyright Protection: An Analysis of the Jurisprudential Underpinnings of the Judicial Pronouncements in India ............. 1 T.G. Agitha The Economics of Intellectual Property and Economic Entrepreneurship of Copyrights ................................ 45 Rodney D. Ryder and N.S. Sreenivasulu Jurisprudential Analysis of the Rights of the Users in Copyrighted Works ........................................ 61 Yashomati Ghosh Marrakesh Treaty to Facilitate Access to Published Works for Visually Disabled: Putting an End to Global Book Famine ........ 97 V.K. Ahuja Reproduction Right in Digital Medium and Free Use for Educational Purpose—An Analysis of National and International Obligations of India to Provide Education to All Viz. a Viz. Protecting Copyright ........................... 109 Poonam Dass ‘Minor Exemptions’ Doctrine in National Copyright Law: Guidance from the WTO Jurisprudence .......................... 133 R. Rajesh Babu Copyright and Human Rights: The Quest for a Fair Balance......... 151 Vandana Mahalwar Copyright, Access and Information Society ....................... 175 Anirban Mazumder vii viii Contents Software Protection Under Copyright Law........................ 185 V.K. Unni Database Protection in India: Need for Reforms ................... 205 K.D. Raju Copyright and the Digital Media: Perspective and Challenges in the New Legal Regime in India ............................... 221 C.P. Dayananda Murthy First Sale Doctrine in the Digital Era ............................ 255 Amit Jyoti S. Gomber Hosting Service Providers’ Liability for Third Party Content: A Malaysian Perspective....................................... 277 Cheng Peng Sik and Pek San Tay Criminalization of Copyrights Infringements in the Digital Era with Special Reference to India ............................. 299 C.P. Nandini Editors and Contributors About the Editors Manoj Kumar Sinha is the director at the Indian Law Institute, New Delhi. He obtained his Ph.D. in international law from Jawaharlal Nehru University, New Delhi, after attaining his LL.B. from the University of Delhi, India, and his LL.M. from the University of Nottingham, UK. His areas of specializations include human rights, international humanitarian and refugee law, international criminal law, international law, international institutions, and constitutional law. He has pub- lished extensively in these areas in prominent Indian and international law journals. He currently serves on the editorial boards of various reputed national and inter- national journals, as well as research bodies of many universities in India and abroad. Vandana Mahalwar is an assistant professor at the Indian Law Institute, New Delhi, India. Prior to this, she was an assistant professor at the Faculty of Law, University of Delhi, India. She holds a B.A.L., LL.B. (Gold Medal), and LL.M. (Gold Medal) from Maharshi Dayanand University, Rohtak, India, and obtained her Ph.D. in law from the National Law University, Delhi, India. With various publi- cations in reputed journals to her credit, her current focus is on issues pertaining to the right of publicity, character merchandising, and intellectual property laws. Contributors T.G. Agitha Inter University Centre for Intellectual Property Rights Studies, Cochin University of Science & Technology, Cochin, India V.K. Ahuja Faculty of Law, University of Delhi, Delhi, India R. Rajesh Babu IIM Calcutta, Kolkata, India Poonam Dass Faculty of Law, University of Delhi, Delhi, India ix x Editors and Contributors Yashomati Ghosh National Law School of India University, Bangalore, India Amit Jyoti S. Gomber Centre for Intellectual Property and Technology Law, Jindal Global Law School, O.P. Jindal Global University, Sonipat, India Vandana Mahalwar Assistant Professor, The Indian Law Institute, New Delhi, India Anirban Mazumder National University of Juridical Sciences, Kolkata, India C.P. Dayananda Murthy Damodaram Sanjivayya National Law University, Visakhapatnam, India C.P. Nandini Damodaram Sanjivayya National Law University, Visakhapatnam, India K.D. Raju Rajiv Gandhi Institute of Intellectual Property Law, IIT Kharagpur, India Rodney D. Ryder Advocate Supreme Court of India, New Delhi, India Cheng Peng Sik Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia N.S. Sreenivasulu National University of Juridical Sciences, Kolkata, India Pek San Tay Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia V.K. Unni IIM Calcutta, Kolkata, India.
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