P.E.

SOCITEY’S
MODERN LAW COLLEGE
GANESHKHIND, UNIVERSITY CIRCLE, PUNE

DEPARTMENT OF LAW
2022-2023

TOPIC
Digitalisation and Copyright Laws in India

LONGISH TERM PAPER SUBMITTED BY

Samruddhi Ghumare

UNDER THE GUIDANCE OF

Ass. Prof. Manisha Sagavekar

I
 DECLARATION
I hereby declare that the Longish term paper titled, “Digitalisation and Copyright Laws in
India” submitted by me is the record of work carried out by me during semester 1 of the First
year of LLM course for the academic year 2022-2023 under the guidance of Professor
Manisha Sagavekar and has not formed the basis for the award of any degree, diploma,
associate ship, fellowship titles in this or any other University or other institution of higher
learning. I further declare that the material of this L.T.P is my original work and I have not
copied anything from any report of this nature. The material obtained from other sources has
been acknowledgement in research work.

Place: Pune

Date:

(Samruddhi Ghumare)

II
 CERTIFICATE

This is to certify that the Longish Term Paper titled “Digitalisation and Copyright Law”
submitted by Samruddhi Ghumare is the record of work carried out during semester 1 of First
year of LLM course for the academic year 2022-2023 under my supervision and guidance in
conformity with the syllabus by University of Pune.

Place: Pune

Date:

Prof. Manisha Sagavekar

III
 TABLE OF CONTENTS

Title Page I

Declaration II

Certificate III

INDEX

CHAPTER NO. CONTENT PAGE NO.

1 INTRODUCTION V
1.1 Introduction
1.2 Rationale and Significance
1.3 Literature Review
1.4 Gap Analysis
1.5 Statement of Problem
1.6 Aims and Objectives
1.7 Hypothesis
1.8 Research methodology
2 ORIGIN AND DEVELOPMENT XI
OF COPYRIGHT
2.1 Origin and development of
Copyright
2.2 History of Copyright

3 COPYRIGHT IN DIGITAL ERA XIIII

3.1 Subject matter of protection

4 INTERNATIONAL ASPECTS OF XVI

COPYRIGHT
4.1 International aspects of copyright
law
4.2 International Copyright
4.3 Term of International Copyright
4.4 Infringement of Copyright
4.5 Remedies for Infringement

IV
5 DIGITALISATION & XXIII
CHALLENGES TO COPYRIGHT
5.1 Digitalisation
5.2 Challenges of Digitalisation
5.3 Important cases related to
Digitalisation
5.4 Challenges to copyright on a digital
environment
5.5 Copyright violations with respect
to the digital world

6 CONCLUSION XXX
6.1 Conclusion
6.2 Suggestions

V
Digitalisation and Copyright Laws in India

Chapter 1: INTRODUCTION

1.1 INTRODUCTION
Until the advent of the printing press, nobody was much afraid about stealing their work as
making copies was so tedious and heavily prone to manual error that only a few copies were
made of the books and manuscripts. It was in the fifteenth century when the invention of the
printing machine and consequential publication of literary works in multiple copies gave birth
to the concept of copyright protection. Copyrights are the exclusive rights given to the
creators and producers of original literary, musical, dramatic or artistic works. Initially, most
of the copyright protection laws were based on print media but over the years the horizon of
intellectual property has expanded progressively. The evolution of technology has given rise
to new concepts like computer programs, computer databases, various other works on the
web, etc. which are covered under the concept of digital copyright law.

When we talk about Intellectual Property Law (IP) it means we are talking about rights of
intangible property. This law gives protection to Copyright, Patent, Trade Marks, Industrial
Designs, Geographical Indication, Trade Secrets etc. When we talk about Copyright
protection then it’s mean we are talking about Artistic work, Cinematograph work, Original
literary work etc. for giving protection to such works in India there is Copyright Act, 1957.
Copyright Law is based on principle of ubi jus ibis remedies which means where there is
right, there is remedy. In case of infringement of copyright Appellate Board (in accordance
with 1Chapter II of Copyright Act) provide civil remedies (in accordance with 2Chapter XII of
Copyright Act), punishment (in accordance with Chapter XIII of Copyright Act) to the party
infringed. Copyright deals with protection of expressed idea not mere thought of ideas or we
can say published work (also include work not communicated in public) because it may be
common or we can say it may match with others thought also. When we talk about Academic
Research then it means we are simply talking about Original Literary work under Copyright
Act. This Act give protection to only “Original Literary” work not to copied work, it is
1
https://copyright.gov.in/Copyright_Act_1957/chapter_ii.html
2
https://copyright.gov.in/Copyright_Act_1957/chapter_xii.html#:~:text=%E2%80%94%20(1)%20In%20every
%20civil,claim%20of%20the%20exclusive%20licensee

VI
protected by infringement provisions under Copyright Act. It protects right not only inside
the India but also protect from outside the territory of India.

3
The concept of copyright came into existence right after the invention of the printing press
by Gutenberg. In the very beginning of the copyright era, copyright protection was brought
into existence to safeguard literary and artistic works but with time the fusion of creativity
and technology gave birth to various new works such as photography, photographs were
included in copyright as artistic work; cinematography films were another category of new
work which was also included in copyright as artistic work.

Copyright is a right given by the law to creators of literary, dramatic, musical and artistic
works and producers of cinematograph films and sound recordings. It can be termed as “The
exclusive right given by law for a certain term of years to an author, composer etc. (or his
assignee) to print, publish and sell copies of his original work”. Indian copyright law is at
parity with the international standards as contained in TRIPS. The (Indian) Copyright Act,
1957, pursuant to the amendments in the year 1999, fully reflects the 4Berne Convention for
Protection of Literary and Artistic Works, 1886 and the Universal Copyrights Convention, to
which India is a party. India is also a party to the Geneva Convention for the Protection of
Rights of Producers of Phonograms and is an active member of the 5World Intellectual
Property Organization (WIPO) and 6United Nations Educational, Scientific and Cultural
Organization ("UNESCO").

Law is an ever-evolving topic since it is a response to social problems and, social issues keep
on changing with time. One such area where law needs to be constantly changing is the area
of technology. One of the most brilliant gifts provided by the human mind to the human
community is technology, and digital technology is the most recent advancement that is in
progress on a global scale.

Digitalization has no doubt brought with itself a positive change across the world, however
the wrong use of it is also giving birth to chaos and crime. The most affected intellectual
property right is the copyright. Protection of copyright has become a key issue in the digital
3
https://www.legalserviceindia.com/legal/article-8037-digital-copyright-law.html#:~:text=Order
%2039%20rule%201%20and,copyright%20protected%20work%20through%20Internet.
4
https://www.wipo.int/treaties/en/ip/berne/
5
https://www.wipo.int/portal/en/index.html
6
https://www.unesco.org/en

VII
era. As one may be aware the copyright is known to be granted to literary, artistic, musical or
dramatic works, however with the development of technology new ideas and concepts have
emerged such as computer programs, database and other works on Internet etc.

The vastness of the digital world has made it much easier for a protected work to be copied,
reproduced and collected or distributed. In modern times, cyberspace which is a non-physical
platform accessible through various networking systems has come within the ambit of almost
every individual. Such exposure is resulting to various forms of copyright infringement.

It can be seen that the copyright law constantly keeps changing according to the evolving
needs of the society. With global progression in the field of digital technology new
endeavours developed in recent times such as computer programs, multimedia, computer
databases and social media platforms.

1.2 RATIONALE AND SIGNIFICANCE

Copyright ensures certain minimum safeguards of the rights of authors over their creations,
thereby protecting and rewarding creativity. Creativity being the keystone of progress, no
civilized society can afford to ignore the basic requirement of encouraging the same.
Digitalisation is the incorporation of digital technologies into business/social processes, with
the goal of improving them. Digitalisation is transformative. It changes how companies
interact with their customers and often their revenue streams.

1.3 LITRETURE REVIEW OF COPYRIGHT LAWS

In Cole.J.H (2001), Patents and Copyrights7, this article covers intellectual property rights,
specifically on patents and copyrights. In terms of copyrights, the article aims at finding the
benefits and costs of using copyrights. It uses several references to support its arguments,
inferences and conclusions.

In the article of 8Samuelson, P. (2010), The Copyright Principles Project, it explains

various aspects of copyright law including its guiding principles, its consistency with guiding
principles and copyright reform proposals. Under the guiding principles of copyright law, this
article provides seven key guiding principles. One of the principles is that the copyright law

7
https://www.academia.edu/295914/Patents_and_Copyrights_Do_the_Benefits_Exceed_the_Costs
8
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1851857

VIII
should support creation, distribution and enjoyment of authorship work in order to enhance
growth and exchange of culture and knowledge.

1.4 GAP ANALYSIS

Here, the copyright and digitalisation focus mainly in its uses, impacts and relation with each
other. Therefore, copyright and digitisation are closely related with each other and work
together.

1.5 STATEMENT OF PROBLEM

This study aims at critically evaluating the various facets of copyright law in India including
the historical background of the Copyright law in India as well as keeping in view the
international perspective. The study also aims at understanding the concept of copyright
infringement and various remedies provided therein.

1.6 AIMS & OBJECTIVES OF THE STUDY

The dissertation aims:

 To study the concept of copyright.

 To study the application of copyright law in India.

 To study the impact of registration of copyright.

 To study the infringement of copyright and the penal provisions provided therewith.

 To study the remedies available at the instance of infringement of copyright.

 To study the emerging trends in copyright Law in India.

1.7 HYPOTHESIS

Here the hypothesis of this theory states that copyright and digitalisation work hand-in-hand
with each other and are closely inter-related with each other. The connection between both
these factors is inter-related with each other.

1.9 RESEARCH METHODOLOGY

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For this Longish term method, researcher followed the doctrinal research methodology. In
that researcher used various text books, law journals, articles, and cases and also used online
study material.

Chapter 2: ORIGIN AND DEVELOPMENT OF COPYRIGHT

2.1 ORIGIN AND DEVELOPMENT OF COPYRIGHT

The idea of copyright protection emerged with the invention of printing, which made the
literary works to be duplicated by mechanical process. Prior, to that hand copying was the
sole mean of reproduction. After, the invention of Guttenberg’s printing press in Germany in
1436, a need to protect the printers and booksellers was recognised and thus certain privileges

X
to printers, publishers and also authors were granted. The art of printing spread quickly in
Europe. After 1483, England emerged as a major centre of printing trade in Europe. The
spread of this technological innovation led to creation of a class of intermediaries, who made
initial investment in bringing out the book, i.e., the printers, who doubled as booksellers as
well. They were called the “stationers” in England. In 1557, Queen Mary I, granted the
privilege of regulating the book trade to the Stationer’s company of London. In 1662, the
Licensing Act was passed in England, which prohibited the printing of any book which was
not licensed and registered with the Stationers’ Company. This was the first clear law which
was aimed at protecting literary copyright and checking piracy. The licence era was short
lived. It was only with the passing of the Queen Anne’s Statute of 1709, that, the rights of the
authors over their work came to be legally recognised, and the concept of ‘public domain’
was established, though not explicitly.

2.2 HISTORY OF COPYRIGHT LAW IN INDIA

Modern copyright law developed in India gradually, in a span of 150 years. The first brush
of India with copyright law happened in 1847 through an enactment during the East India
Company’s regime. The Act passed by Governor-General of India affirmed the applicability
of English copyright law to India. According to the 1847 enactment, the term of copyright
was for the lifetime of the author plus seven years post-mortem and could not exceed forty-
two years on the whole. Though the author refused publication after his death, the
Government had the authority to give licence for its publication. The act of infringement was
inclusive of unauthorized printing of a copyright work for “sale, hire or export”, or “for
selling, publishing or exposing to sale or hire”. The suit for infringement under this act could
be instituted in the “highest local court exercising original civil jurisdiction”. The Act also
specifically provided that under a contract of service copyright in “any encyclopaedia,
review, magazine, periodical work or work published in a series of books or parts” shall vest
in the “proprietor, projector, publisher or conductor”. It was deemed that the copies of the
infringed work were the property of the proprietor of the copyrighted work for all purposes.
Most importantly, the copyright in a work was not automatic unlike today. Registration of the
work with Home Office was mandatory for the protection of rights under this enactment.
However, the Act specifically reserved the subsistence of copyright in the author, and his
right to sue for its infringement to the extent available in any other law except 1847 Act. At
the time of its introduction in India, copyright law had already been in the developing stage in
Britain for over a century and the provisions of the 1847 enactment were reflected in the later

XI
enactments. The Copyright Act 1911, while repealing earlier statues on the subject, was also
made applicable to all the British colonies including India. In 1914, the Indian Copyright Act
was enacted which modified some of the provisions of Copyright Act 1911 and added some
new provisions to it to make it applicable in India. The Indian Copyright Act 1914 remained
applicable in India until it was replaced by the Copyright Act 1957. COPYRIGHT LAW IN
INDIA In India, the Copyright Act, 1957 (as amended in 1999), the Rules made there.

Chapter 3: Copyright in Digital Era with special reference to India

Copyright in India is protected under Copyright Act,1957 since then several amendments
have been made from time to time to suit the changing needs of the society and to ensure
protection to the creators of the work. The main aim of the act is to protect the works of the
creators and owners of the copyright against unauthorised use. Recently the Copyright
(Amendment) Act, 2012 was enacted which is considered to be more substantial. The main

XII
reason behind this enactment was to bring the act in conformity with World Copyright Treaty
1996 and WIPO Performance and Phonogram Treaty 1996. The Copyright Amendment Act
of 2012 extended its provisions for the protection of copyright in work in the field of
digitalisation. It also laid down provisions for penalties to be awarded against the infringer,
rights of management information, the liability of internet service providers and introduction
of statutory licenses for cover version and broadcasting organiser. It also aimed at ensuring
proper distribution of royalties amongst the creators and owners of the work. The law also
aimed at creating certain acts as exceptions, which means that certain acts shall not amount to
infringement. Section 52 of the act lays down certain acts which shall fall under the heading
of Doctrine of Fair Use. This section is enacted in conformity with the Berne Convention
1885, TRIPS Agreement 1995. The Indian Judiciary has also has played a pivotal role in
protecting the rights of Copyright owners in the era of digitalisation. Latest judicial
pronouncements in a matter pertaining to the protection of copyright in the digital world are
listed below-In 9UTV Software Communication Ltd v/s 1337x and Ors on 10th April
2019-Delhi HC the facts of the case -In this case, the plaintiff including UTV software
communication Ltd are the companies engaged in creating content, producing and
distributing cinematographic films all over the world including India. The defendants were 30
websites including some John Doe websites, the Ministry of Electronic and Information
Technology, Department of Telecom and various ISP`s. It was contented by the plaintiff that
defendants’ websites hosted and provided access to their copyrighted work which resulted in
infringement of Copyright of the plaintiff. T Court, in this case, appointed Mr Hemant Singh
as ‘amicus curiae’ to assist the court in determining the questions of law in the instant case.

Judgement: The Judgement in the instant case can be understood with reference to the issues
involved in this case.

Whether an infringer of Copyright on the Internet is to be treated differently from Infringer in

the physical world? The court answering it negatively held that there is no reason why crime
in the physical world is not a crime in the digital world especially when the Copyright Act
does not make any such distinction.

Whether seeking blocking of a website dedicated to piracy makes one an opponent of free
and open internet? The court opined that key issue about Internet freedom, therefore is not

9
https://lawlex.org/lex-bulletin/case-summary-utv-software-communication-ltd-ors-vs-1337x-to-ors/20355

XIII
whether the internet is and should be completely free or whether the government should have
unlimited censorship authority, but rather where the appropriate lines should be drawn, how
they are drawn and how they are implemented.

3.1 Subject Matter of Protection

Now a day the subject matter of protection of Copyright is same throughout the globe
because copyright is become of international nature and due to advancement of technology
any one can violate the rights of others from any part of the world. As per different sub-
sections of section 2 of Copyright Act,1957 and judicial interpretations from time to time
many matters are eligible to get the protection. Analysing all the classifications and
categorizations of the works as provided under different sub-Sections of Section 2 of the
Copyright Act, 1957 and taking reference from the judicial views of different High Courts
and the Supreme Court of India, the following heads of copyrighted and related works will
enjoy the copyright protection under the current up-to-date amended legislation:

Literacy works;

Dramatic works;

 Musical works;

 Artistic work including sculpture, painting, engraving, architect and all works where
artistic craftsmanship is involved;

 Cinematograph film;

 Sound recording;

 Literary, dramatic works or musical works in the form of computer programming or

computer-generated programme including computer software;

 Adaptation, Translation and Reproduction of work;

 Creating unpublished works;

 Foreign works including the works of lntemational Organisation;

 Literary works such as poems, articles, works of fiction, factual works such as
encyclopaedias as dictionaries etc.;

XIV
  Thus, question papers set for the examination;

 Research theses and dissertations prepared by students;

 Compilation of a book on household and accounts and domestic arithmetic;

 School textbooks;

 Guide books.

 Dictionary;

 A book of scientific questions and answers;

 Questionnaire for collecting statistical information;

 Head notes of a judgment; and

 Lecture notes have all come under the class of literary works entitles for copyright
protection.

 Musical work such as songs operas, instrumental music etc.;

 Works of art and architecture;

 Photographs, technical drawings, motion picture (Cinematograph film), computer

program etc.;

 Live performance of a drama fixed in a storage devise such as a compact disk etc.

In 10Blackwood v. Parasuraman, Madras High Court held that: "translation of literary work
is itself a literary work and is entitled to copyright protection; reproduction of publication of
translation without consent or license of the owner of copyright in the original would amount
to infringement" Registration of Copyright Under Indian law, registration is not a prerequisite
for acquiring a copyright in a work. A copyright in a work is created when the work is
created and given a material form, provided it is original. The Copyright Act provides for a
copyright registration procedure. However, unlike the U.S. law, the Indian law registration
does not confer any special rights or privileges with respect to the registered copyrighted
work. The Register of Copyright acts as prima facie evidence of the particulars entered
therein. The documents purporting to be copies of the entries and extracts from the Register
10
https://www.lawyerservices.in/BLACKWOOD-AND-SONS-LTD-VERSUS-AN-PARASURAMAN-1958-
02-28

XV
certified by the Registrar of Copyright are admissible in evidence in all courts without further
proof of original. Thus, registration only raises a presumption that the person in the Register
is the actual author, owner or right holder. The presumption is not conclusive. But where
contrary evidence is not forthcoming, it is not necessary to render further proof to show that
the copyright vests in the person mentioned in the Register. In infringement suits and
criminal proceedings, when time is of essence to obtain urgent orders, registration is of
tremendous help. Copyright notice is not necessary under the Indian law to claim protection.
However, registration of works is not a condition precedent to avail copyright protection.
Registration serves as a prima facie evidence of copyright ownership in the Court of Law. In
the case of 11Asian Paints (I) Ltd. Vs Jaikishan Paints & Allied Products, the High Court
of Bombay has observed: "Registration under the Copyright Act is optional and not
compulsory. Registration is not necessary to claim a copyright. Registration under the
Copyright Act merely raises a prima facie presumption in respect of the particulars entered in
the Register of Copyright. The presumption is however not conclusive. The Copyright
subsists as soon as the work is created and given a material form even if it is not registered"

Examples of Copyrighted Works:

 Literary works – Books, novels, Stories, computer program codes.

 Musical works – Music, choruses.
 Artistic works – Paintings, photographs, cartoons, drawings.
 Dramatic works – Dance steps, screenplays, operas.
 Cinematograph films – Movies, video films.
 Sound recordings – Any recording of sounds, recording of songs by sound recorders,
etc.

Chapter 4: International Aspects of Copyright

4.1 INTERNATIONAL ASPECTS OF COPYRIGHT LAW

When a creator, writer or any other person who produces a copyrightable intellectual property
have an anticipation that their work can be or is being copied and used illegally by an
unknown person or entity, can file for the John Doe order. For passing of the order the
identity of the accused need to be known and yet he or she becomes a party to the case.

11
https://www.lawyerservices.in/Asian-Paints-I-Ltd-Versus-Jaikishan-Paints-and-Allied-Products-2002-09-12

XVI
12
Order 39 rule 1 and 2 of the code of Civil Procedure 1908, empowers Indian courts to pass
such order international developments in the Copyright Law.

Countries throughout the world have encouraged the protection of copyright by giving an
amicable response to the international treaties from time to time. These treaties lay down
minimum standards of protection and in consonance, to them each signatory country
inculcates such standards in their domestic laws.

Berne convention

13
It was in Berne (Switzerland) in the year 1886 that the first step for the protection of
copyright was taken when the countries signed the Berne Convention. The Convention aims
at protecting the literary and artistic works and the rights of the authors. It determined the
minimum standards of protection and worked on three principles, which are the principle of
national treatment, the principle of automatic protection and the principle of independence of
protection. In order to resolve disputes among the member nations, the International Court of
Justice at Hague was established but the Treaty left nations free to declare their immunity
from the jurisdiction.

Universal copyright convention

14
This convention was signed in 1952 and it resolved to provide for the adequate and effective
protection of the rights of authors and other copyright proprietors in literary, scientific and
artistic works, including writings, musical, dramatic and cinematographic works, and
paintings, engravings and sculpture. The term of copyright protection was set up till the
lifetime of the author and 25 years after his death. The Convention also expressed that it does
not affect the provisions of the Berne Convention in any manner.

Rome convention

15
The Rome Convention took place in 1961and it expands the ambit of the Berne Convention
by securing the rights of performers, producers of sound recording, broadcasters and several
others along with protection of literary, artistic and cinematographic works. Presently, the
World Intellectual Property Organization is responsible for the administration of the

12
https://legislative.gov.in/sites/default/files/A1908-05.pdf
13
https://www.wipo.int/treaties/en/ip/berne/
14
https://en.unesco.org/courier/news-views-online/universal-copyright-convention
15
https://www.wipo.int/treaties/en/ip/rome/

XVII
convention jointly with the International Labor Organization (ILO) and the United Nations
Educational, Scientific and Cultural Organization (UNESCO).

TRIPs

An Agreement on Trade-Related aspects of Intellectual Property Rights (TRIPs) is arguably

the most important and comprehensive international agreement on intellectual property
rights. The 1994 Uruguay Round of General Agreement on Tariffs and Trade (“GATT”)
produced TRIPs and was administered by the World Trade Organization. The most
significant features of TRIPs are: linking of intellectual property rights to trade for the first
time in a multilateral intellectual property agreement and requiring member countries to
implement and enforce minimum standards of protecting intellectual property rights.

The TRIPS Agreement adopts portions of the Berne, Rome and Paris Conventions in
enunciating norms for intellectual property laws. It holds that copyright protection shall
extend to expressions and not to ideas, procedures, and method of operation or mathematical
concepts as such. Article 9 asks the member countries to follow Articles1-21 of the Berne
Convention except for Article in respect of which “members shall not have rights or
obligations under TRIPs Agreement”. Article 10 talks about computer programs and data
compilation protecting them under copyright as literary works.

WIPO treaties

16
World Intellectual Property Organization is a self-funding UN agency established in 1967
with 193 member states. It is a global forum for intellectual property services, policy,
information and cooperation. WIPO’s activities are of four kinds: registration, promotion of
inter-governmental cooperation in the administration of intellectual property rights,
specialized program activities and latterly, dispute resolution facilities. In 1996, member
countries found it necessary to form a treaty to deal with the protection of copyright evolution
of new technology.

WIPO Copyright Treaty, 1996

17
WIPO Copyright Treaty was adopted by the Diplomatic Conference at Geneva in December
1996 and entered into force in 2002. It is a special agreement under the Berne Convention

16
https://www.wipo.int/treaties/en/
17
https://www.wipo.int/treaties/en/ip/wct/summary_wct.html

XVIII
that works upon the protection of copyright and the rights of authors in a digital
environment.

Furthermore, the WCT mentions two subject matters to be protected by copyright:

(i) computer programs, whatever the mode or form of their expression; and

(ii) compilations of data or other material (“databases”), in any form, which, by reason of the
selection or arrangement of their contents, constitute intellectual creations.

Unlike TRIPs agreement WCT covers both object code and source code as computer
programs. The treaty also recognizes the authors’ right to distribution and rental rights as well
as grants broader right to communication to the public (by wire or wireless means). However,
it does not authorize the commercial rental when the computer program is not an essential
part of the work. This treatment was brought into force in order to secure the copyrighted
works in such a rapidly advancing digital age.

WIPO Performances and Phonogram Treaty, 1996

18
This treaty deals with two kinds of beneficiaries in the digital world, firstly the performers
namely actors, singers, musicians etc., secondly producers of phonograms. It also lays down
the economic rights of distribution, renting and communication by the performers with the
public and for the producers of phonograms the economic rights of reproduction, right of
distribution, right of rental and right of making available. The treaty assures protection to the
performers and producer of phonograms for a period of at least 50 years.

The treaties also require the member countries to provide two types of technological adjuncts
to the rights so that the owners of copyright can protect their rights and get the works licensed
by effective use of technology.

The first, known as the “anti-circumvention” provision which tackles the problem of
“hacking” and requires countries to provide adequate legal protection and effective remedies
against the circumvention of technological measures (such as encryption) used by right
holders to protect their rights and the second type of technological adjuncts safeguard the
reliability and integrity of the online marketplace by requiring countries to prohibit the
deliberate alteration or deletion of electronic “rights management information” means
information which accompanies any protected material, and which identifies the work, its
creators, performer, or owner, and the terms and conditions for its use.
18
https://www.wipo.int/treaties/en/ip/wppt/

XIX
The WIPO treaties are the most recent international agreements for the protection of
copyrights, particularly in the digital environment. Various countries have incorporated the
provisions of these treaties into their laws in order to deal with the new technological issues
in the digital space and for safeguarding the rights of copyright holders.

4.2 International Copyright:

According to Section 4019 , work published outside India shall be treated as it is first
published in India or we can there is no difference between work published inside or outside
the India because India is the signatories of Berne Convention and Universal copyright
Convention. So, even foreigner can publish their work inside India but the only condition is
that country must be the member States otherwise it shall depend upon order pass by Central
Government and the order should not infringe the Copyright Act provisions of India and law
of that country. In simple word we can say India grant Copyright protection to those country
who is member of treaties or we can say to those country only who also provide copyright
protection to Indian authors.

4.3 Term of International Copyright:

Section 40 makes it clear that the term of copyright to a foreign work in India shall not
exceed the term provided in the law of that country, which means if the term of Copyright is
50 years in that country and for similar work the term in India is 60 years, the foreign work
shall enjoy copyright for 50 years only.20

4.4 Infringement of Copyright:

According to Section 52 sub section (1) clause (h) 21 a person cannot copy others copyrighted
work in any form. But in this clause, it is also stated that if any one is copying others work
then it should not exceed two passages along with two passage there must be bona fide
intention. In Academic research work person can copy others work but reference must be
given and the same condition shall apply in this also i.e., not more than two passage and bona
fide intention. If person not follows then it shall be considered as infringement of copyright.

Fair dealing doctrine In India, fair dealing with any work other than computer programme is
allowed for private or personal use including research. In this research does not include

19
https://copyright.gov.in/Copyright_Act_1957/chapter_ix.html
20
available at page 110 of Law Relating to INTELLECTUAL PROPERTY RIGHTS (CENTRAL LAW
PUBLICATION, FIFTH EDITION, 2019) Prof. (Dr.) M.K. Bhandari.
21
https://copyright.gov.in/Exceptions.aspx

XX
commercial research it only includes private research. In case if it is found that author is
using research work for commercial purpose then it shall be considered as infringement of
copyright. In case of Rupendra Kashyap v. Jiwan Publishing House 22it was stated that if a
publisher publishes a book for commercial exploitation and in doing so infringes a copyright,
the defence under Section 52 sub-section (1) clause (a) sub clause (i) would not be available
to such a publisher though the boo published by him may be used or be meant for use in
research or private study. By the above we can understand that fair dealing give protection for
work used for fair purpose otherwise it shall be treated as infringement.

4.5 REMEDIES FOR INFRINGEMENT:

(A) Civil Remedy23

Under Section 55 of the Copyright Act of 1957 24, Civil Remedy is provided. They are as
follows.

 Interlocutory Injunctions

The most important remedy is the grant of an interlocutory injunction. In most case the
application filled is for interlocutory relief and the matter rarely goes beyond the
interlocutory stage. There are three requirements for there to be a grant of interlocutory
injunction –

(i) a prima facie case.

(ii) (ii) there needs to be a balance of convenience. (iii) there needs to be an
irreparable injury.
(B) Pecuniary Remedies Under Section 55 and 58 of the Copyright Act of 1957, pecuniary
remedies are provided which are as follows –
(i) an account of profits which lets the owner seek the sum of money made equal to
the profit made through unlawful manner.
(ii) compensatory amount which let the copyright owner seek the damages he
suffered due to the infringement.
(iii) conversion damages which are assessed according to the value of the article.

 Anton Pillar Orders

22
(1996) PTC 439 (Del)
23
Available at https://blog.ipleaders.in/remedies-available-copyright-infringement-india/ last visited on
12/07/2021 at 03:42 PM
24
https://copyright.gov.in/Copyright_Act_1957/chapter_xii.html

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The Anton pillar order gets its name from the holding in Anton Pillar AG V. Manufacturing
Processes. The following elements are present in an Anton Pillar Order – (i) an injunction
restraining the defendant from destroying or infringing goods.

(iii) an order permitting the plaintiff’s lawyer to search the defendant’s premises and
take goods in their safe custody.

(iii) an order that the defendant be directed to disclose the names and addresses of
suppliers and customers.

 Mareva Injunction

The Mareva injunction is used when the court believes that the defendant is trying to delay or
obstruct the execution of any decree being passed against him. The court has the power to
direct him to place whole or any part of his property under the court’s disposal as may be
sufficient to satisfy the decree. This is provided in Order XXXVIII, Rule 5 of The Civil
Procedure Code, 1908.

 Criminal Remedy

Section 63 of Copyright Act,1957 provides Criminal remedies for infringement of copyright.

They are as follows –

(i) imprisonment of 6 month to 3 years

(ii) imprisonment + fine Rs. 50,000/- up to Rs. 2,00,000/-

Chapter 5: DIGITALISATION AND CHALLENGES TO COPYRIGHT IN A

DIGITAL ENVIRONMENT

5.1 DIGITALISATION:

Digital copyright as an emerging trend Digital Copyright Law: An Emerging Trend

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The most recent Copyright (Amendment) Act, 2012 has acquainted the vital changes with the
ground plan for copyright insurance in the emerging advanced climate, quickly expressed as
under:

1. A portion of the exemptions, (for example, reasonable managing, use for education
purpose) which were prior appropriate just corresponding to certain types of work (for
example artistic, emotional and melodic works), have been made applicable to a wide
range of work.

2. A fair dealing case as an exception has been stretched out to the detailing of current
occasions, including the announcing of an address conveyed in public. Earlier, fair
dealing was restricted for private or personal use, including examination, and analysis
or review, whether of that work or of some other work. Further, It has been clarified
that the putting away of any work in any electronic medium for the purposes
referenced in this provision, including the incidental storage of any PC program
which isn’t an infringing copy, doesn’t constitute encroachment.

3. The transient and accidental storing of a work or performance purely in the

specialized cycle of electronic transmission or communication to the public;

4. The putting away of a work in any medium by electronic methods by a non‐

commercial public library, for safeguarding if the library as of now has a non ‐digital
duplicate of the work;

5. The creation of a three‐dimensional object from a two‐dimensional imaginative work,

for example, a specialized drawing, for the reasons of industrial utilization of any
simply practical piece of a useful device.

6. The variation, multiplication, issue of duplicates or communication to general society

of any work in a format, including sign language, specially planned uniquely for the
utilization of people experiencing a visual, aural or another handicap that forestalls
their pleasure of such works in their typical format.

7. The importation of duplicates of any abstract or masterful work, such as

labels, organization logos or limited time or logical material, that is absolutely
accidental to other lawfully done.

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 8. Providing detailed border measures to strengthen enforcement of rights by making
provision to control the import of infringing copies by the Customs Department,
disposal of infringing copies and presumption of authorship under civil remedies.

9. Technological Protection Measures are provided so that the authors of the work can
be protected and anyone who circumvents such measures is liable for penalty under a
criminal offence.

10. As rights are managed through online contracts in a digital world, unauthorized
alteration or deleting of right management information has been made a criminal
offence. Section 65B of the Act holds this provision.

5.2 CHALLENGES OF DIGITALISATION

Copyright protection in the digital age should remain as extensive as it was in the analogue
era. However, it should respond to the challenges of digital copyright with increased
criminalization. The scope of copyright protection depends on the availability and
effectiveness of enforcement mechanisms. Copyright crime is as much about criminal law as
copyright law. This does not mean that increased criminalization is always a bad idea or that
the criminal law should remain immutable in the digital era. It does mean, however, that
proposals to protect digital copyright through criminal sanctions should be scrutinized
through the lens of criminal law as well as copyright law (Law Commission of Canada,
2004).
In many respects, the criminalization of copyright infringement is necessary. The
effectiveness of traditional civil-enforcement mechanisms is truly threatened by digitization.
Peer-to-peer file-sharing networks, broadband connections, file compression formats,
circumvention applications, and other technologies have dramatically expanded the scope of
copyright infringement. Whether this represents a net benefit or loss to the public interest is
not clear. However, it tends to be sceptical whether criminal sanctions have the capacity to
solve complex social problems, especially those lying outside the traditional core of the
criminal category. This leaves policy makers with two alternatives. They can attempt to live
with the effects of digitization, or they can attempt to bring into action noncriminal
mechanisms to prevent infringement (Law Commission of Canada, 2004).
Copyright ensures the quality of information while preventing from piracy, as well to
bring order to the electronic publishing market. Copyright provides people with a financial

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incentive to create copyrightable materials. During last 200 years no one has thought any
better way to compensate or provide incentives for creative persons. Copyright is much more
needed than ever by the society in the new digital environment. Just as Laura Gasaway
believes, “Neither users of copyrighted works nor copyright holders would benefit from the
death of copyright” (Gasaway, Laura, 2001) The copyright will not disappear in the new
digital environment. At the same time, copyright law should often be revised, and continue to
adjust to the new digital era.

5.3 IMPORTANT CASES RELATED TO DIGITALISATION:

In another case25 Disney Enterprise inc. and Ors. V. Kim cartoon and Ors. the Delhi High
Court barred defendants from copying, distributing, streaming, hosting any cinematographic
work or show through the use of Internet thus protecting the plaintiff and copyright owner
from being victims of copyright infringement. The Indian courts have also adopted a rather
new concept for reducing electronic piracy that is the John doe order.
Copyright is a set of intellectual property’s rights or we can say rights of intangible property.
It protects the people’s ideas of thoughts which are expressed in work or execution of idea is
done not merely idea of thought (so that no one could copy it) because it may match with
others thought also. Copyright Act, 1957 gives protection to the original author or relatives of
the original author or joint authors so that no one can copy others work without permission. If
anyone found infringing others right then they shall be punished in accordance to the
provision provided under the Act by providing civil remedy to the person whose right get
effected and criminal proceeding may also be charged against the person who infringed
26
others right. Section 14 of Copyright Act, 1957 deals with definition of Copyright,
according to Section 14 it is an exclusive right which deals with literary works, computer
programme work, artistic works, cinematograph film works, sound recording.

In India, the Copyright Act, 1957 (as amended in 1999), the Rules made there under and the
International Copyright Order, 1999 govern Copyright and neighbouring rights. This Act has
been amended five times i.e. 1983,1984,1992,1999 and most recently in 2012.The Act is
divided into 15 chapters with 79 sections. Moreover, the Central Government, by virtue of
section 78 is empowered to make rules by notification in the Official Gazette, for carrying out
the purposes of this Act. Under the Act, a copyright office was established under the control
25
indiankanoon.org
26
https://www.indiacode.nic.in/show-data?actid=AC_CEN_9_30_00006_195714_1517807321712&orderno=14

XXV
of a registrar of copyright who was to 10 act under the superintendence and direction of
central government. The principal function of this office was to maintain a register of
copyright containing the names or titles of work, the names and addresses of authors, etc. The
registrar had certain powers like entertaining and disposing of applications for compulsory
licenses and to inquire into complaints of importation of infringing copies. A Copyright
Board had been set up under the Act and the proceedings before it are deemed to be judicial
proceedings. The definition of copyright included the exclusive right to communicate works
by radio diffusion; the cinematograph was given a separate copyright; the term of copyright
protection was extended from 23 to 50 years which was again extended to 60 years in 1992;
term of copyright for different categories of work was also specified. The right to produce a
translation of a work was made coextensive with other rights arising out of copyright.
Provisions relating to assignment of ownership and licensing of copyright including
compulsory licensing in certain circumstances, rights of broadcasting organisations ,
international copyright, definition of infringement of copyright; exceptions to the exclusive
rights conferred upon the author or acts which do not constitute infringement , special rights
of authors, civil and criminal remedies against infringement and remedies against groundless
threats or legal proceedings were also introduced.

5.4 Challenges to Copyright in a digital environment

Digital technologies have brought revolutionary changes in the areas of media, entertainment,
communication, advertisements and education. The advanced technologies have made the
communication, distribution and reproduction of the works much easier at the hands of a
common man. Digitalisation has made it considerably easy to make identical copies and
transmit it to a population of millions dispersed over distances in a fraction of time. All of
this can be done without making the owners aware of it and eventually exploiting their
interests. 27The internet has become a threat as much it has become a need. There are various
issues that have posed threat to the rights of copyright holders.

 Holder:

The core concept of copyright is to prevent the copying of work without the permission of
copyright holder. The digital platform allows mass distribution of the copyrighted work
by making it extremely difficult for the copyright owners to identify and bring those

27

XXVI
 actions against the number of the individuals, who are involved in the infringement of
their copyrighted works.

 Plasticity of digital media:

In the digital medium, the users comfortably alter, adapt, modify or manipulate those
works. Such flexibility and plasticity, which are offered by those digital media altering
and modifying those digital content as a gentle task, which raises such concerns for the
authors or owners as to how their original content work shall be dealt with. Any as such
unwanted and the unauthorized addition or deletion in the original content has potential
change to the entire meaning which may not be the intent or desire of the creator.

 Caching and Mirroring:

The caching means storing the copies of material from an original content source site for
the later use when the same such material is requested again and again, thereby obviating
need to go back to the original content source for such material. The purpose of caching is
to speed up repeated access to data and to reduce network congestion resulting from
repeated downloads of data. This storage of data is temporary in nature, though the time
may vary from few seconds, minutes to hours and days. The caching possesses a potential
threat to the copyrighted material as the same material is copied and stored for the future
reference thereby negatively affecting those interests of the copyright holders.

 Linking and Framing:

The linking and framing in general, is a technique of connecting those documents in

online medium or the platform. In linking, a link is used which has embedded electronic
address of another website pointing towards the same. When the person clicks on
particular link it takes the user to destination site and also enables her to view those
contents which that site offers. Framing is a type of linking, where those linked content it
displayed on host site within “frames”. The two linking and framing pose those
challenges to copyright holders of the digital contents where the linked content is
copyrighted material and the permission of copyright holder has not been obtained.

The other challenges posed by the digital technologies posed by the copyright regime are
Jurisdiction issues, maintenance of digital literary and archiving, peer-to-peer networks,
establishing liability and the works created by the machines.

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5.5 COPYRIGHT VIOLATIONS WITH RESPECT TO THE DIGITAL WORLD

Cyberspace has made everything so accessible that copyright violations can be made by the
user by just making few clicks in the process of copying the data. Following are some actions
which cause copyright infringement in cyberspace:

 Downloading and uploading:

Software and files can be downloaded on the hard disk of a computer through the medium
of the internet which is another way, is duplication of the data or work being accessed on
the internet. Copying an audio or video file through companies that are involved in peer-
to-peer file sharing (P2P) of any digital music shall also amount to a violation.

 Derivative works:

When two or more programs or databases are combined or used to create a different
work, it is known as derivative work. The use of original works in the derivative works
without the permission of the author amounts to copyright violation.

 Hot-linking:

Displaying an image online by linking it to the website which originally hosts that image
can also lead to copyright violation.

 Multimedia works:

The idea of multimedia is very wide as it has incorporated various elements of text,
images, videos, graphics, sounds, illustrations, etc. The multimedia work authors require
prior permission for each of the elements and therein. There is lack of specific law which
covers the ambit of multimedia works.

 Social media:

Social media is a platform for the widespread sharing of pictures, videos and many other
materials. Many people have a false notion that everything on social media is free. In
order to curb these new technological problems, many technical solutions were applied.
The access control and copy control were one such measure, which enables the creator to
keep

XXVIII
 a check on illegal use of his work. Watermarking the works available on digital platforms
to detect its unauthorized use and prevent illegal exploitation. The digital domain required
some effective legal actions to protect the copyrighted works from hacking.

Chapter 6: Conclusion

6.1 CONCLUSION

According to WIPO, copyright is a legal term used to describe the rights that creators have
over their literary and artistic works. Works covered by copyright range from books, music,

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paintings, sculpture and films to computer programs, databases, advertisements, maps and
technical drawings.

With time and technology, the digital world is expanding and keeps changing and with the
change it also brings uncertainty, new problems and different ways to infringe laws. The new
era of digitalization has definitely aided creativity and its effective spread among public
however, have also given birth to different worries and distress regarding infringement of the
same.
Though the legal system; both national and international are gearing up and adapting to
changes and new amendments, still it is subject to an area of development. And if great minds
are put together a lot more can be done to protect the rights of the copyright owners. This
chase to keep the evolving digital era crimeless will be a never-ending race. But again
challenges are the essence of life. It can be undoubtedly confirmed that technological
advancement has encouraged the creators to develop and project their creations more
effectively but has also posed a threat to a protected communication and publication of the
works. The boundlessness of the internet out-performed the laws.

However, several efforts have been made at both the national and international level to
overcome the difficulties planted by the internet and other technological tools against the
protection of copyrights in cyberspace. It is certain that the copyright laws do work for
protecting copyrighted material and the recent amendments have brought them more on line
but there is still a need to overcome some drawbacks.

Copyright is a branch of intellectual Property rights and an exclusive legal right given by the
judiciary to the creator on his creation. As a creator one has rights to enjoy financial and other
benefits associated as per the law over creation. Violation of copyright law would lead to
several judiciary consequences. On the other hand, law permits libraries to use copyrighted
material for research and academic purpose without any permission from the copyright
holder. Further, any violation or infringement of fair use of library resources is punishable
under copyright act.

6.2 SUGGESTIONS:

The present situation calls for close cooperation with international organizations, a society
aware of copyright and its laws and an encouraging relation with the judiciary. Here are a few
suggestions which can be brought into force to ensure a stronger ambit of copyright
protection:

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  As the internet has made transmission of works across the borders without the consent
of the owner quite effortless, a procedural mechanism for international litigation will
be of help to execute already existing substantive provisions. An online licensing
system could also work in bringing down data infringement and piracy.

 More clarity can be provided about the jurisdiction in cases of online copyright
infringement. The laws are not specific about what will decide the jurisdiction in such
cases.

 Ordinary users should be made aware of the know-how of copyright protection and
infringement in order to reduce accidental infringements.

 The differences in procedures and laws for copyright infringement in states should be
harmonized to develop uniform laws for the issues of cyberspace.

There are differences in copyright laws in different countries and how those laws are used
and enforced. In comparison with US copyright laws, there is a limitation on how long an
idea can be held as copyright by one single person. This limitation is for 70 years after the
author’s death and varies from country to country after which it falls in the public domain.
When something is in public domain anyone can use it and reproduce it. There are also
instances when some parts of copyrighted work can be used without violating the copyright
laws. This is usually referred to fair use. Copyright is complicated and dense and it doesn’t
even apply to all those countries who have not signed any international treaty. But in rest of
the world the ability to control and profit out of your ideas is an important aspect of economy
and intellectual property rights. Though there are many copyright restrictions and issues, the
understanding of copyright law and fair use dealings would direct us to use copyrighted
content for academic and research purpose in a secure manner. Sufficient level of
understanding of copyright problems needs to be conceived during/before
procurement/subscription of any resources.at this points an agreement / contract / terms and
conditions between concerned parties on procurement of resources would play a major role in
protecting copyright holders. As per the Indian Copyright Act, 1957 it is very clear that
neither the publisher nor the facilitator is responsible for any infringement of copyrighted
material, but a person who is involved in the activity of infringement is solely held
responsible for his act of misconduct.

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6.3 BIBLIOGRAPHY:

(A)Bare Act

Intellectual Property Laws (The Copyright Act,1957), Legal Manual 2020, Universal Lexis
Nexis.

(B) Book

1. Law Relating to Intellectual Property Rights, Third Edition, Reprint 2021, LexisNexis, by
Dr. V K Ahuja

2. Law Relating to Intellectual Property Rights, Fifth Edition, Reprint 2019, Central Law
Publication, by Prof (Dr) M K Bhandari

(C) Website

1. https://www.lawyersclubindia.com/judiciary/rights-are-protected-in-worksnot-in-ideas-
themes-or-plots-4364.asp (Court’s Observation Para 1)

2. https://www.indialaw.in/blog/blog/law/analysis-of-doctrines-sweat-of-browmodicum-of-
creativity-originality-in-copyright/

3. https://blog.ipleaders.in/remedies-available-copyright-infringement-india

4. http://www.lawyersclubindia.com/articles/The-dynamics-of-copyright-protection-with-the-
emergence-of-blockchain-technology-9347.asp

5.
http://www.mondaq.com/india/x/370058/Copyright/Protecting+Copyright+In+The+Digital+
Environment

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