Update: You may download the paper (pdf, 10.9mb) here.
(Originally posted on 20th September, 2006)
The whitepaper on Copyright and Emerging Technologies, released last week by the CII and Lawquest, seeks to shed light on issues of DRM and ownership of content on the Internet and Mobile. The whitepaper is authored by Poorvi Chothani, Partner, LawQuest.
Copyright is the sum of exclusive rights granted to the author of an original work, for a limited period. It covers right to transfer, reproduce, translate the work, as well as derive other work from it. A summary of observations made on content:
Wallpapers: The artist or the owner of the work of art has the right to create wallpapers, whether on the computer or mobile phone
iTunes: Initial DRM systems in iTunes monitor downloads, but subsequent usage is not tracked. The contractual obligations allow only for personal, noncommercial use on five apple-authorized devices at any time. The user is entitled to export/burn audio products for personal, noncommercial use, but not allowed to burn video products.
User created content: Unless specified otherwise, copyright for user generated content lies with the original owner. The onus is also on the individual to specify copyright ownership of the work, and provide copyright information.
Copyright in Events and News: As clarified by the Bombay High Court in a case in 1985, there is there copyright for the way news has been expressed, but no copyright for the event itself.
Version recordings: Songs may be re-recorded with new artistes without the consent of the original performer, but are subject to royalty payments. Remixes might also qualify for copyright protection; unauthorized usage of remixes on mobile phones could constitute infringement.
Ring Tones: Service providers need to take permission from music publishers/owners. Sound recordings used as ring tones or caller tones require licensing. In case of samples, which are given free on a trial basis, one solution is to allow users to download the samples on the PC and buy the full version on payment online
Music Videos: ‘Version recordings’ refers to sound only, and hence in case of music videos the copyright rests with the producers of the video/film.
Mobile Phone Games: Copyright protects games and softwares as a literary work and a work of art respectively. According to Copyright Act, Section 14 (1994 amendment), certain non-commercial personal use like backing up of software is allowed. Laws regarding are ambiguous in the US when it concerns sale of a mobile phone which has purchased content installed; the ‘first sale doctrine’ might cover it, but the Digital Millenium Copyright Act (1998) did not extend the ‘first sale doctrine’ to digital content.
Game Sampling: Making unauthorized copies of demo games, lending them or reselling them for profit could amount to copyright infringement in India.
File Sharing will grow with greater availability of broadband. ISP’s are liable unless they prove that they had no knowledge of the violation, or did enough to prevent it. An ISP who does not remove the infringing material from the network may not be entitled to a plea of ignorance.
Ripping: Broadcast of purchased copyrighted material for commercial gain to a larger audience could be an unlicensed use. However, individual usage may fall under some form of fair dealing.
Digital Radio Broadcasts: Section 39 of the Copyright Act states that sound recordings of digital broadcasts for personal use would not infringe on the performers right, but public dissemination will.
Recommendations: Laws formulated should be similar to the EU Copyright Directive which provides for the protection of rights management information and prevents its removal. It also provides legal protection against circumvention of protective measures like encryption, scrambling, copy-control mechanism etc. An increase in penalties would serve as a deterrent, but flexible provisions must allow fair use. Chothani concludes that protection of IPR is in order to encourage innovation, creativity and technical development, but hurdles exist in its implementation. To counter this, she recommends that all stakeholders be made aware of the problem.
Related:
– CII To Release Whitepaper On Digital Rights Management Next Week
– Owning The Future – Govt Criticised At Open Source Convention
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