HOW COPYRIGHT LAW CONTRIBUTES TO THE DISCUSSION ABOUT THE

EFFECTIVENESS AND AUTHORITY OF E-COMMERCE REGULATION?

INTRODUCTION

If we fail to protect and preserve our intellectual property system, the culture will atrophy.
And corporations won’t be the only ones hurt. Artists will have no incentive to create.
Worst-case scenario: The country will end up in a sort of cultural Dark Ages.

—Richard Parsons, President, Time-Warner1

The term "electronic commerce" is understood to mean the production, distribution, marketing, sale
or delivery of goods and services by electronic means 2 . With the amount of technological
development happening right now, cyberspace is remodelled into a digital multiplex and shopping
mall for copyright-protected material. But a lot of copyright-infringed products are also available
on e-commerce platforms. The potential liability of online service providers for third-party content
has raised one of the most spirited and fascinating debates in the legal arena, putting right holders,
service providers and Internet users at loggerheads 3. Hence copyright law is necessary to regulate
commerce in order to prevent the sale of copyright-infringed products and to protect the rights of
the copyright holder.

1. WHAT IS COPYRIGHT LAW

Copyright refers to the legal right of the owner of an intellectual property. Copyright is a legal right,
which protects the copyright owner and/or the creator of a work.4 Copyright gives the owner control
over their work and now it is used5.

PROTECTION OF COPYRIGHT
Idea Recording

Copyright laws do not protect the ideas no matter how original, brilliant, or unique they may be 6 .
Only ideas that are recorded in tangible form are given protection under copyright law. Given that
the idea must be a result of some skill, labour or judgement in the creation, as well as being
original7.

1
Quoted in Chuck Philips, Piracy: Music Giants Miss a Beat on the Web, Los Angeles Times, July 17, 2000, at A1.
2
(Work Programme on Electronic Commerce, 1998) WorldTradeOrganisation(WTO) definition
3
Béatrice Martinet Farano, Internet Intermediaries Liability for Copyright and Trademark Infringement: Reconciling
the EU and U.S. Approaches (Transatlantic Tech. Law Forum, Working Paper No 14, 2012)
<https://www.law.stanford.edu/sites/default/files/publication/300252/doc/slspublic/farano_wp14-4.pdf> accessed on 21
May 2023.
4
Infopaq International v Danske Dagblades Forening, Case C-5-08, July 16, 2009 (ECJ)
5
The economic Times (24 May 2023) <https://economictimes.indiatimes.com/definition/Copyright> accessed on 25
May 2023.
6
Baker v. Selden, 101 U.S. 99 (1879).
7
British Library, Business & IP Centre, ‘What is Copyright?’ (Articles) <https://www.bl.uk/business-and-ip-
centre/articles/what-is-copyright> accessed on 21 May 2023.
1.1 PROTECTED WORKS

Literary works, Musical works, Dramatic works, Pantomimes and choreographic works, Pictorial,
graphic, and sculptural works, Motion pictures and other audiovisual works, and Sound recordings,
which work that result from fixing a series of musical, spoken, or other sounds, Architectural
works8.

1.2 RIGHTS CONFERRED

Subject to certain allowed reservations, limitations or exceptions, the following are among the
rights that must be recognized as exclusive rights of authorization9:

• the right to translate,

• the right to make adaptations and arrangements
• the right to perform in public
• the right to recite literary works in public,
• the right to communicate to the public the right to broadcast
• the right to make reproductions
• the right to use the work as a basis for an audiovisual work.

1.3 EXEMPTIONS

There are some exceptions to UK copyright law, allowing copies to lawfully be made for certain
purposes, these include10:
• Limited copying of books, journals, sound recordings, films and artistic works made by an
individual for their own private study or non-commercial research purposes, may fall
under the fair dealing exception
• Fair dealing for criticism, review and reporting current events
• Making a copy for a disabled person if no accessible version is commercially available
• Time-shifting of radio or TV broadcasts for personal use
• Text and data mining for non-commercial research
• Teaching
• Parody, caricature and pastiche.
All these exceptions have the fair use doctrine as the basis which is any copying of copyrighted
material done for a limited and “transformative” purpose, such as to comment upon, criticize, or
parody a copyrighted work. Such uses can be done without permission from the copyright owner.11

8
Berne Convention for the Protection of Literary and Artistic Works (9September 1886), 1161 United Nations Treaty
Series3,<http://www.wipoirt/treaties/en/ip/berre/trtdocs wo001.html>,aslastrevisedat Parisor 24 July1971 and
lastamended 28 September 1979 [Berne Convention].
9
Berne Convention for the Protection of Literary and Artistic Works (9September 1886), 1161 United Nations Treaty
Series3,<http://www.wipoirt/treaties/en/ip/berre/trtdocs wo001.html>,aslastrevisedat Parisor 24 July1971 and
lastamended 28 September 1979 [Berne Convention].
10
Supra note 1
11
Richard Stim, Getting Permission,2003,43
2. RESTRICTED ACTS 12
It is an offence to perform any of the following acts without the consent of the owner: Copy the
work. Rent, lend or issue copies of the work to the public, perform, broadcast or show the work in
public 13, adapt the work, and the right to be identified as the author. Right to object to derogatory
treatment.
3. REMEDIES
So if a protected work under copyright law is infringed because of a performance of one of the
above-mentioned restricted acts and when such performance does not fall under the ambit of
exemptions, the copyright holder is eligible for remedy from the infringer. Where it can ask for a
temporary or permanent injunction to stop the sale of goods in the commerce platform and ask for
compensation based on the damages they had undergone or based on the profit incurred by the
infringer.

4. THEORIES

The fundamental theory of copyright law of in theory is based on the personality theory of
copyright and emphasizes the connection between creative works and the personality of the creator.
It argues that copyright protection is necessary to safeguard the integrity and reputation of the
creator. When the author creates a work that represents his/her personality and publishes the same
the author can control the dissemination of copies and other related queries.

But the practical version of the theory is completely different and is based on utilitarian theory
promoting the overall social and economic benefit derived from the creation and dissemination of
creative works. The author after creating the work assigns the work to an intermediary through
license who takes care of the dissemination of information14.

5. PHYSICAL WORLD AND DIGITAL SPACE

The work When you buy a book today, you pay a flat fee to some bookseller rather than agreeing to
be billed by the glance. You may read and reread the book, or any part of it. You may learn the stuff
that’s in it. You may talk about the book with your friends. You may loan your copy of the book to
any friend who wants it. When you’ve finished with the book, you may resell it to a used bookstore
or donate it to the local library, which may loan it out to anyone with a library card. You don’t need
the copyright owner’s permission to do any of these things15.

Even back then there was scope for copying, but it was very limited. Now with everything made
quicker simpler and easier in cyberspace, it has extended the scope for copying also online. Earlier
copying a book was not the feasible option because it was costlier than buying the book in most

12
Copyright, Designs and Patents Act 1988 c. 48 s. 16
13
NilsSvensson &Ors. V Retriever SverigeAB [2014]CJEU(at.16-20)
14
Tom R Tyler, ‘Compliance with Intellectual Property Laws: A Psychological Perspective’ (1997)111
15
Jessica Litman, War Stories, 20 CARDOZO Arts & ENT. L.J. 337 (2002).
cases, but now copying and sharing is at our fingertips. With less surveillance and the cloak of
anonymity being the gifts of cyberspace copyright infringements are inevitable.

6. WHAT ARE THE RELEVANT LAWS?

6.1 SOURCES OF LAWS

There are three sources of law that deal with copyright infringement in e-commerce platforms in
any country which are national laws, international treaties and agreements and terms and conditions
set by service providers. For example, let us analyse the framework of the United Kingdom under
three aspects :

6.1.1 National Laws:

Each country has a separate national legislation that deals with copyright infringement .they define
copyright infringement, protections, exemptions, duration of protection and adjudicating authorities
and grievance redressal mechanisms. National laws differ from country to country. America has
The Digital Millennium Copyright Act (DMCA) 16 , in India copyright act 1857 17 deal with
copyright infringement and in the UK the country we are critically analysing has Directive (EU)
2019/79018, Directive 2001/29/EC19 that act as national legislation for copyright.

6.1.2 International Treaties and Agreements:

Copyright protection is also governed by international treaties and agreements. The most significant
one is the Berne Convention for the Protection of Literary and Artistic Works, administered by the
World Intellectual Property Organization (WIPO). The WIPO Copyright Treaty (WCT) and the
WIPO Performances and Phonograms Treaty (WPPT) respond to the challenges of protecting works
in cyberspace and bring international copyright and neighbouring rights standards up to the digital
age.20Both treaties also include provisions on technological measures of protection and electronic
management information, which are indispensable for an efficient exercise of rights in the digital
environment.

6.1.3 Online Platform Terms and Conditions:

Online platforms and service providers often have their own terms and conditions that users must
agree to. These terms and conditions generally deal with IP infringement such as copyright
infringement. Both the online service provider and users agree upon what constitutes protected
work, ownership and liability.

16
United States. Congress. Senate. Committee on the Judiciary. The Digital Millennium Copyright Act of 1998 : Report
Together with Additional Views [to Accompany S. 2037). [Washington, D.C.?] :[U.S. G.P.O.,], 1998
17
The Indian Copyright Act, 1957
18
on copyright and related rights in the Digital Single Market
19
Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain
aspects of copyright and related rights in the information society, OJEC L 167/10.
20
World Intellectual Property Organization, REGIONAL WORKSHOP FOR COUNTRIES OF ASIA AND THE
PACIFIC ON THE WIPO INTERNET TREATIES AND ELECTRONIC COMMERCE,WIPO/CR/EC/MNL/01/,pg 5-
6
7. EFFECTIVENESS OF THE LAWS

The copyright laws are ineffective in achieving the goals that it was created for various reasons such
as:

7.1 Vast jurisdiction

The internet is a global system for the transmission and reproduction of information that opens up
previously unimagined opportunities for copyright infringement and poses numerous difficulties to
copyright law21. The development of numerous modes of communication and content sharing via
the internet, such as torrents, peer-to-peer file sharing systems, and so on, has made it easy for
infringers to disseminate pirated content and has effectively eliminated copyright holders' rights on
the internet. This has also facilitated sharing of copyright infringement material across the globe.

Since the national legislations and the International instruments that apply differ from nation to
nation. it is very difficult to assess the jurisdiction and the applicable law. The e-commerce
platforms decide what laws want to adhere to.

7.2 Open questions

There are a lot of open questions in copyright law that aren’t decided yet. Since copyright law is
adjudicated on case to case basis it doesn’t give definitive answers to certain questions like whether
downloading the content into the computer's permanent memory for future use would be covered as
fair dealing or under implied license, When can a work be deemed to be published in India? Implied
license.

7.3 Technological Advancements

The internet and technological advancements have made it easier to circumvent copyright
protection measures. Techniques such as encryption, peer-to-peer sharing, and anonymizing
networks can be used to infringe upon copyright without detection

7.4 Attitude of law

The main reason that the copyright longstanding social attitudes with regard to the copyright
infringed works people are used to free usage as per the offline norms. They couldn’t accept the fact
there are certain restrictions to their usage as to is opposed to the previous attitudes of law.

Why do most people online act as if there is no copyright law?

The end users do not fear or adhere to these copyright laws due to three reasons 22:

21
Jeremy Waldron, From Authors to Copiers: Individual Rights and Social Values in Intellectual Property KENT L.
REV.,841-887 (1993)
22
S Information Infrastructure Task Force, Intellectual Property and the National Information Infrastructure, The Report
of the Working Group on Intellectual Property Rights 203–10 (1995)
 • individual end users believed that the copyright rules in the statute don’t apply to them

• The belief that the rules were difficult to enforce against them
• No understanding of copyright law
All three reasons root in the basic fact that individuals do not have a clear understanding of the law
which creates an illusion in the mind of the users that these statutes don’t concern them. Even at
times if they think these statutes concern them they are motivated by a belief that the copyright
rules are very difficult to enforce. Generally, people don’t follow the law they dot believe in.
To tarnish these beliefs I would suggest educating the masses on copyright law and how it concerns
them, increasing the penalties levied, and creating awareness. A clear education of what all acts are
exempted from and what actions constitute restricted acts must be taught to the users. Clear
disclaimers must be put up. People have started believing that something that is done in cyberspace
amounts to something done in the dark. They must be educated on the topic stating the new
development of digital forensics, how users can be traced using ISPs etc.

8. RECOMMENDATIONS

8.1 Technological Security Measures

legal provisions alone are not sufficient to provide meaningful protection in the marketplace.23 it
must be paired with technological security measures in ensuring the security of electronic
commerce such as:

8.2 Restricting access to data servers:

Access to these servers can vary from completely uncontrolled access in which the full contents of
the server are available without restriction, to partially controlled access in which unrestricted
access is granted to only certain data on the server, to completely controlled access in which no
uncontrolled access in any form is permitted. Access control is affected through user identification
and authentication. The most common elements of such systems involve authentication of the user
desiring access to the server. Typically, the server will require entry of a username and a password.
More elaborate mechanisms, however, have been developed. For example, some servers do not
grant access once a user is verified, but rather, they terminate the connection and reestablish it from
the server to the registered user’s site. Such call-back systems tend to govern fully controlled server
environments24

8.3 Encryption:
File encryption thus simply converts a file from a manipulable file format such as a word processor
document or a picture file that can be opened or viewed with appropriate software to a scrambled

23
New York University Journal of International Law and Politics 219, 226. Christopher Jensen, ‘The More Things
Change, the More They Stay the Same: Copyright, Digital Technology, and Social Norms’ (2003) 56 Stanford Law
Review 531.
24
SUPRA NOTE 20
format25. Authorization in the form of possession of an appropriate “key” is required to “decrypt”
the file and restore it to its manipulable format. An example of this type of protection is the
encryption used to protect DVD copies of motion pictures. Anyone with the key can decrypt the
work by plugging it into a program that applies the mathematical algorithm in reverse to yield the
original sequence of binary digits that comprise the file. Although most commonly thought of as a
tool for protecting works transmitted via computer networks, encryption can be and is used with
virtually all information delivery technologies, including telephone, satellite and cable
communications26. Of course, once the work is decrypted by someone with the key, there may be
no technological protection for the work if it is stored and subsequently redistributed in its
“decrypted” or original format.

Many other technological measures such as digital signature, stenography, can be employed to
prevent copyright infringement

8.4 High-end education system:

“Ignorantia Juris Non-Excusat,” meaning that ignorance of the law is no excuse. It is necessary to
provide a high-end educational system with modernized technology and ideologies and also, to
make the masses aware of the pros and cons of using cyberspace to protect their own data from any
infringement.27

9. AUTHORITY OF COPYRIGHT LAW

The question authority of copyright law and where it comes from in the online world can be
answered in two parts. In the past and present the authority evolved through legal battles, in future
the new norms of evolution will increase the authority.

To prove that the authority of copyright law in the online world was derived from legal battles let's
look at an example of the music industry. The initial battles such as Sony Corp. of America v.
Universal City Studios, Inc. (1984), didn’t protect the rights of copyright holders. The court
established the "substantial non-infringing use" doctrine, stating that a technology manufacturer
could not be held liable for copyright infringement if the technology had substantial legitimate uses
beyond infringement.

The A&M Records v. Napster 28 case had far-reaching implications for the music industry and
digital copyright. It established legal precedent by holding online platforms liable for copyright
infringement committed by their users. An alternative stand was taken in MGM v Grokster29

The music industry kept on losing .they did not find success through the battles they fought. New
norms of evolution may help them cope with what they lose. for example in the YouTube copyright

25DIGITAL COPYRIGHT AND THE ISSUES IN TACKLING UNAUTHORIZED DIGITAL COPYING,(know Law,
1 May 2009) < https://knowlaw.in/index.php/2021/04/12/digital-copyright-issues-tackling-unauthorized-digital-
copying/ > accessed 19 April 2023
process. YouTube's pay-per-view license expired and offered an annual flat fee to copyright
holders. Since it resulted in blocking all music videos through which copyright holders have
accepted the annual flat fee norm. Liability of exemptions is provided under Art. 14(1) ECD 30
states that ISPs and hosting providers are generally not held directly liable for the content
transmitted or stored by their users, as long as they do not have knowledge or control over the
infringing activities and they act expeditiously to remove or disable access to illegal content upon
becoming aware of it.

According to me Ilaiyaraja vs B.Narsimhasn 31 is a milestone copyrights law regulating the music

industry because the courts recognise that the producer is the person who controls the dissemination
of the work is a win for the corporates. That too from a developing nation.

CONCLUSION

Currently, Copyright law has low authority in cyberspace. But this is set to change with the changes
happening around us. General public awareness of copyright law is much higher. Local newspapers
publish copyright stories. Open-source software is making modest headway against its proprietary
competitors. Creative Commons licenses allow authors to permit their works to be distributed with
“some rights reserved,” rather than “all rights reserved” 32 . Google and Yahoo have facilitated
searches for online material released under Creative Commons licenses. College students have
established campus “free culture” groups. The recording industry and motion picture industry suits
against individual peer-to-peer file sharers have inspired conversations about what copyright law
ought to look like.

With these changes, I'm pretty sure copyright laws’ authority and effectiveness are increasing every
day in cyberspace. A combination of changes in attitudes and technological advancements that
prevent copyright infringements will increase commerce regulation of copyright laws. It has many
battles to fight in future like whether AI-generated works can be copyrighted.