IP law is primarily a regime whose purpose is to regulate the flow of original information – so much so that some commentators have recently seen fit to propose a change in nomenclature, from ‘intellectual property’ to ‘regulation of distinctive information.’¹ While questions of narrative framing undoubtedly occupy an important position in a field replete with rent-seeking intermediaries, the real upshot of the new moniker is an emphasis on the regulatory, rather than proprietary, dimension of IP law.

If copyright law, for instance, was primarily proprietary in nature, then it would have remained fairly static over the centuries, much like the law governing real property. However, nothing could be further from the truth – copyright law has mutated rapidly in ways that few would have predicted. With every technical advance in the manner in which information is sent or received, copyright law finds that it has to ‘keep up’ – from the photocopier to the VCR to the DVD player and the Internet, the examples are plenty from the last half century.

To reiterate, copyright exists not to allocate property in intangibles, but to regulate the expression of ideas. To continue being able to perform this function, copyright law must keep itself abreast of the technological developments that aid or oppose the sharing of information, and make internal inquiries as to the nature of these technologies, and the extent to which they allow or deny its regulatory objectives. Thus, the use of VCRs for time-shifting by TV viewers was found not to be in conflict² with the objective ‘to promote the progress of science and useful arts’,³ meaning that this technology did not need to be proscribed or otherwise ‘fenced in’ by copyright law. Given that copyright law exists to regulate the flow of information in accordance with certain overarching ideals, it must continually interrogate new technologies and classify them on a spectrum whose ends stretch from ‘illegal’ (e.g. streaming cable TV over the internet)⁴ to ‘endorsed by law’ (eg. anti-circumvention measures).

Two key developments towards the end of the 20th century posed crucial questions to copyright law. The first was the large-scale proliferation of personalized computing machines, meaning that the ability to perform complex mathematical calculations was now widely available at the retail level for the first time. The second, of course, was the rise of the internet. The advent of the internet marked a sea change in the manner information was exchanged around the world and, therefore, brought with it a challenge of correspondingly mammoth proportions to the copyright regime. What sort of conduct on the internet furthered the principles that informed copyright law, and what sort undermined them?

 

This article, examines several such challenges and the response of copyright law to them. I will outline the principles evolved to resolve digital dilemmas, and briefly summarize criticisms to the prevailing legal position. Digital media has altered copyright law in innumerable ways but here, I shall restrict myself to a few well defined areas, such as licensing online use, intermediary liability, and digital rights management.

Licensing copyrighted work invariably involves intermediaries known as Collective Management Organizations, which exist to reduce the transaction costs involved in searching for, locating and bargaining with rights holders. These organizations typically acquire the rights to use a large repertoire of works from their owners, and license them to users for a fee that they then distribute among their members. Chapter VII of the Copyright Act, 1957, deals with CMOs, which the Indian law refers to as ‘copyright societies’. The approach of the Indian legislator to collective rights management seems to be strongly informed by a desire to remedy the country’s troubling history of artistic exploitation, especially in the context of Bollywood composers and lyricists.⁵

 

Indian law prohibits entities from carrying on the business of licensing copyrighted work unless they are registered with the central government.⁶ The law also provides that there shall ordinarily be only one copyright society for any given class of works.⁷ Additionally, the act requires copyright societies to publish their tariff schemes, and allows users aggrieved by such schemes to approach the Copyright Board to fix a royalty rate.⁸

CMOs in India must exist under the collective control of the authors and other rights owners that comprise their membership. The statute provides that all members of a CMO shall have equal rights to control it, and that there be no discrimination between authors (typically small players such as individual artists) and owners (usually larger players such as labels).⁹ Further, monopoly abuse by CMOs was intended to be prevented by governmental oversight through the registration requirement on one hand, and by a mechanism to prevent unreasonable pricing through the Copyright Board on the other.

 

The Indian licensing ecosystem, however, is currently entirely non-functional. In 2011, an investigation revealed that the Indian Performing Rights Society (the CMO for underlying works such as lyrics and musical work) and Phonographic Performance Ltd (the CMO for sound recordings) had agreed that PPL, rather than IPRS, would collect royalties on ringtones.¹⁰ Since PPL predominantly consisted of large music producers while IPRS’s membership also included smaller players such as lyricists and composers, the agreement effectively denied small players crores of rupees in royalties arising from the use of their work as ringtones.¹¹ IPRS has since made several attempts to resist investigations into its activities ordered by the central government.¹² The 2012 amendment did not translate to greater authorial control in the administration of IPRS.¹³

Post-2012, IPRS continued carrying on the business of licensing copyrighted works despite the fact that its registration had lapsed in 2013, making no attempt to re-register.¹⁴ Perhaps the most egregious development in this sordid saga is the overnight transformation in the legal nature of IPRS and PPL. In at least one court proceeding,¹⁵ IPRS has asserted that it no longer functions as a ‘copyright society’ under Section 33, but that it owns all the rights in its repertoire, which it secured through Deeds of Assignment from rights-holders and authors, and licenses them under Section 30. PPL has taken an identical approach.¹⁶ In essence, the actions of IPRS and PPL obliterate the Indian legal regime governing CMOs by undermining the statutory monopoly provided for in the act.

 

The Copyright Board, tasked by the act to adjudicate disputes over tariffs set by CMOs, has been mired in controversy for almost six years. Music producers have assailed the constitutional validity of the board on the ground that it violates the separation of powers doctrine,¹⁷ with the court prescribing measures to remedy the infirmities with the board’s structure.¹⁸ Staffing woes have left the board non-functional for years now,¹⁹ and even those positions in the board that were staffed have seen members refusing to attend proceedings, leading frustrated attorneys to request an intervention from the Delhi High Court.²⁰ Where members of the board have found it convenient to attend proceedings and pass orders, these have been held by High Courts to be egregiously wrong in law.²¹ In the absence of a functional and reliable adjudicatory framework, users find themselves unable to contest the rates set by mono-polistic CMOs even if they find such terms objectionable.

Internet-based content delivery systems have drastically altered the nature of the transaction between creators and consumers. Because online consumption is driven by the cross-platform on-demand availability of the content to the consumer with no time or space constraints, licensing has displaced sale as the primary mechanism by which content is procured.

 

Content delivery over the Internet has another crucial aspect that poses fresh challenges: movies and songs must be licensed freely across national borders, meaning that the licensee must perform rights clearance in virtually every major jurisdiction in the world (or employ geo-blocking tools that jeopardize its user base and are easily circumvented).²² Given that CMOs primarily administered rights territorially, online licensing was bound to pose a challenge. In the Indian licensing ecosystem today, with CMOs and adjudicatory organizations actively functioning against the interests of market players, it is clear that the way forward is long and arduous.

 

Content delivery over the internet necessarily requires a number of intervening players between the right-holder and the consumer. The legal regulation of such intermediaries is of vital importance, since the scope and nature of such regulation can have crucial ramifications for content access, freedom of expression, and the enforcement of legal rights (including copyright) on the Internet. The Information Technology Act 2000 defines ‘intermediary’ extremely widely, incorporating within its ambit the cyber café in which our hypothetical user sits, the ISP which provides the café its network infrastructure, the search engine which directs her to a website, and the host which stores and ultimately sends the content to her. Due to the vast amount of content available on the Internet, and the anonymity which its users typically enjoy when transacting in this content, law enforcement agencies see value in taking an intermediary-centric approach.

 

Simply put, states would rather police a few hundred thousand large intermediaries than deploy their efforts against millions of end users. It is both easier and more cost-effective for the state to require YouTube to undertake the responsibility of ensuring that there is no infringing material on its website than it is for the state to enforce a rule against each YouTuber uploading infringing material. However, crucial civil rights interests dictate that states eschew this approach. Online intermediaries are usually commercial players who have an incentive to act in the most risk-averse manner, meaning that their enforcement standards are likely to be far more exacting than the laws themselves.

This sort of overreach, in which legitimate content is stifled by intermediaries under the guise of applying legal standards (especially against copyright infringement), is known as the chilling effect. All analysis confirms that intermediaries act rationally, resorting to proactive measures to comply with takedown requests even in cases where these requests are patently absurd.²³

To counter the chilling effect and restore the balance between the freedom of expression online and the enforcement of laws against defamation, obscenity and, more particularly, copyright infringement, legislators across the world have developed ‘safe harbours’, converting the legal standard for copyright infringement for online intermediaries from a strict liability regime to one of wilful negligence. The Indian ‘safe harbour’ provisions were evolved after judgements from High Courts found intermediaries liable for secondary infringement in cases where their users had uploaded the offending material, despite the implementation of automated filters and permanent takedown measures by these intermediaries.²⁴

After the 2012 amendment to the Copyright Act, the current regime premises itself on a notice-and-takedown system, similar in many ways to the American Digital Millennium Copyright Act. On the ground, however, it appears that intermediaries in India are still acutely aware of the looming spectre of liability, and are quick to take heavy-handed action on receiving complaints from right-holders.

 

In one bizarre instance, YouTube took down a slew of concert videos depicting live performances of Carnatic music (which have long been out of copyright) because its Content ID system detected substantial similarities between these videos and other copyright protected performances of the same songs which were owned by large record labels.²⁵ Another unique court battle pits intermediaries against each other, symptomatic of the complications that can arise from the heady cocktail of vague legislation, aggressive enforcement and judicial hand-wringing that characterizes online copyright enforcement in India. Right-owners, especially in Bollywood, have resorted to seeking orders from courts against persons unknown (‘John Doe orders’) mandating that websites which host unauthorized copies of their content be blocked by ISPs.

 

This strategy has arisen out of desperation, given that right-owners are typically helpless in the face of pirate hubs that are anonymous and out of the reach of Indian courts, meaning that takedown orders are virtually useless. In these cases, ISPs are ordered to block websites, a list of which is usually replicated on the order from the right-owner’s plaint to the court. Eager to avoid liability, ISPs have demonstrated a tendency to over-comply, giving rise to exactly the kind of chilling effect the legislation intended to avoid. In essence, this is more a battle between access providers and content providers, rather than the traditional skirmish between a right-holder and an intermediary.

In recent litigation, a legitimate online movie distributor found itself hit by a John Doe order and blocked by ISPs, seriously jeopardizing its business. However, given that it was not impleaded in the infringement suit (which arrayed access providers as defendants), the distributor was given no notice. Basically, cautious over-compliance on the part of the access providers effectively put at least one legitimate content provider out of business for a considerable length of time, causing significant loss of revenue to the distributor.²⁶

Intermediary-versus-intermediary conflicts are a new dimension in liability jurisprudence, with an especially troubling feature: they represent the problems of an artificially generated information asymmetry at the behest of right-holders. At the first level, information is withheld from courts through the unverified roster of webpages alleged to be infringing. At a secondary level, information is withheld from legitimate content providers by access providers who resist a duty to display detailed block messages that describe the exact order that mandated the block. Content providers and consumers are at the receiving end of this information asymmetry, and it is imperative that a mechanism be evolved to independently verify and narrowly tailor website blocking orders, and to ensure that where websites are blocked, it is done in the most transparent manner possible.

 

Digital Rights Management (DRM) broadly refers to the use of technological measures to make it physically impossible to make use of copyrighted material in a manner that violates the access or reproduction rights of the holder. India legislated protections for DRM through the 2012 amendment to the Copyright Act, which inserted Sections 65A and 65B. Two broad concepts characterize the DRM debate – anti-circumvention or technological prevention measures, and rights management information. It must be noted that India was under no international obligation to protect DRM through legislation, but inserted these changes to the statute in preparation for the country’s entry into the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty system.

The legislative protection of digital locks has been subject to much criticism. Some of the early critiques of Total Productive Maintenance (TPM) jurisprudence surrounded the strict liability regime that governed the dissemination of circumvention techniques under American law. The Indian statute, however, mandates that the circumvention of digital locks is only actionable when it is done with the intent to infringe. There are several issues that still remain, however. First and foremost, there exists little clarity on the practical meaning of ‘intent to infringe’ – there may be several cases in which the question of infringement is a legal grey area, to be adjudicated by a competent court after hearing both sides.

 

Consider, for example, a case in which the defendant freely admits to disabling a DRM system but states that she only did so to make a single copy of the content for use in a manner consistent with a fair dealing exception. Here, if her guilt for tampering with the TPM is allowed to turn on the validity of her fair dealing claim, then this would plainly render the intent requirement otiose and redundant, since intent can only be averred against individual acts, not against the legal consequences arising from those acts. Thus, if the intent requirement is conditional upon a complex adjudication (of the fair dealing claim) of rights, then it appears rather unnecessary. Across the globe, the American position on ‘permitted’ tampering with TPMs requires approval by the Librarian of Congress, a process whose constitutional validity is currently under challenge.²⁷ In contrast, the Indian position appears to be reasonable at first glance, but reveals deep flaws upon a closer examination. It remains to be seen how Section 65A of the Copyright Act (which provides for TPMs) will be reconciled with the rest of the act, and specifically its provisions on fair dealing.

 

Before I close, one final idea merits consideration. The notion that the advent of the digital age marks the death of copyright has led to considerable deforestation.²⁸ One line of reasoning relies on the fact that mass distribution does not occur on the Internet. Because online content consumption overwhelmingly consists of ‘single use’ transactions rather than the licensing of entire repertoires, some commentators argue that the era of blanket licenses has ended.²⁹ Yet another premises itself upon the substitution of copyright law by anti-circumvention measures, and the boom in online self-publication, leading to the demise of large intermediaries in the content industry such as music labels and publishing houses.³⁰

Time has taught us that the validity of these claims is dubious, at best. Much as the cyber-libertarians of the late 20th century³¹ realized that the Internet’s regulation was an inevitable reality,³² the rise of massive online intermediaries such as YouTube and Spotify (Gaana and Saavn, closer to home) has shown us that there still exists a huge market for the mass licensing of copyrighted work even within these ‘alternative’ distribution mechanisms. While self-publication has doubtless seen a tremendous rise, with some artists reaching out directly to their consumers through their own websites or through P2P file-sharing services,³³ the majority of legitimate content consumption over the internet takes place through streaming services³⁴ that act as intermediaries in much the same way as radio stations mediated the public’s musical experience in the last century.³⁵ It would appear that media may come and media may go, but copyright is poised to go on forever in its ever-changing forms.

 

Footnotes:

1. Shamnad Basheer, ‘Delhi High Court Virtually Busts "Property" Rhetoric in the IPR Narrative’, DNA, 22 September 2016, http://www.dnaindia.com/analysis/column-delhi-high-court-virtually-busts-property-rhetoric-in-the-ipr-narrative-2257650

2. Sony Corp. of America v. Universal City Studios, 464 US 417 (1984).

3. Article 1, Section 8, Clause 8 of the US Constitution.

4. American Broadcast Cos. v. Aereo, 573 US_ (2014).

5. There have been other legislative efforts to correct the imbalance between authors and publishers. See Prashant Reddy, ‘The Background Score to the Copyright (Amendment) Act, 2012’, NUJS Law Review 5, 2012, p. 469.

6. Section 33(1) of the Copyright Act, 1957.

7. Proviso to Section 33(3) of the Copyright Act, 1957.

8. Section 33A of the Copyright Act, 1957.

9. Zakir Thomas, ‘Overview of Changes to the Indian Copyright Law’, Journal of Intellectual Property Rights 17, 2012, pp. 324, 329.

10. Prashant Reddy, ‘Did the Big Music Companies on IPRS and PPL Collude to Deny Lyricists and Composers Crores of Rupees in "Ringtone Royalties" – an Investigation’, SpicyIP, http://spicyip.com/2011/02/did-big-music-companies-on-iprs-ppl.html

11. Prashant Reddy, ‘The "Numbers" Continue to Talk – PPL’s Revenues From Mobile Ring-tones has Zoomed up by 1857% in 6 Years: From Rs 7 Crores to Rs 137 Crores’, SpicyIP, http://spicyip.com/2011/02/numbers-continue-to-talk-ppls-revenues.html

12. Prashant Reddy, ‘Official Inquiry Into Mismanagement of IPRS Given a Quiet Burial’, SpicyIP, http://spicyip.com/2012/02/official-inquiry-into-mismanagement-of.html; Shamnad Basheer, ‘The Day the Music Died: In the "Company" of Collusive Collecting Societies’, SpicyIP, http://spicyip.com/2014/10/the-day-the-music-died-in-the-company-of-collusive-collecting-societies.html

13. Prashant Reddy, ‘Almost Two Years Later, India’s New Copyright Law Makes no Difference to Music Industry’, SpicyIP, http://spicyip.com/2014/01/almost-two-years-later-indias-new-copyright-law-makes-no-difference-to-music-industry.html

14. Letter from IPRS to the Registrar of Copyrights dated 2 June 2014, available at https://artistiklicense.files.wordpress.com/2016/08/iprs-letter-to-central-government.pdf. See also Chitra Jagjit Singh v. Indian Performing Rights Society, CS (Comm.) 193/2016 at the Delhi High Court on 14 March 2016, available at http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=62530&yr=2016

15. See, e.g., Balaji Subramanian, ‘No Rockin’ Round This Christmas Tree: IPRS v. Harsh Vardhan Samor’, SpicyIP, http://spicyip.com/2016/01/no-rockin-around-this-christmas-tree-iprs-v-harshvardhan-samor.html

16. Devika Agarwal, ‘After IPRS, PPL Next to Claim That it is not a "Copyright Society",’ SpicyIP, http://spicyip.com/2015/03/after-iprs-ppl-next-to-claim-that-it-is-not-a-copyright-society.html

17. Prashant Reddy, ‘Breaking News: Madras High Court Admits Petitions Challenging the Constitutionality of the IPAB and the Copyright Board’, SpicyIP, http://spicyip.com/2011/01/breaking-news-madras-high-court-admits.html

18. Asit Ranjan Mishra, ‘Copyright Issue: Immediate Relief for Audio Streaming Websites Unlikely’, LiveMint, 6 September 2016, http://www.livemint.com/Politics/Ol62GhloajQmhAPJQI9L9L/Copyright-issue-Immediate-relief-for-audio-streaming-websit.html. See also Thomas Vallianeth, ‘An Update on the Challenge Against the Copyright Board’, SpicyIP, http://spicyip.com/2015/09/an-update-on-the-challenge-against-the-copyright-board.html

19. Shamnad Basheer, ‘Specialised IP Courts: The Indian Experience’, in Jacques de Werra, et. al., Specialised Intellectual Property Courts – Issues and Challenges, available at http://www.ictsd.org/sites/default/files/research/Specialised%20Intellectual%20Property% 20Courts%20-%20Issues%20and%20 Challenges_0.pdf

20. Asian Patent Attorney’s Association v. Union of India, WP(C) 2251/2011 at the Delhi High Court, on 22 November 2011, available at http://delhihighcourt.nic.in/dhcqrydisp _o.asp?pn=244907&yr=2011. See also Prashant Reddy, ‘Copyright Board Crippled Due to Lack of Quorum – APAA Moves Delhi High Court’, SpicyIP, http://spicyip. com/2011/11/copyright-board-crippled-due-to-lack-of.html

21. Prashant Reddy, ‘Madras High Court "Stays" the "Compulsory Licensing Order" of the Copyright Board Against SIMCA and Super Audio’, SpicyIP, http://spicyip.com/2010/12/madras-high-court-stays-compulsory.html. See also Amlan Mohanty, ‘Copyright Compulsory Licensing Disputes: Copyright Board Lacks Jurisdiction’, SpicyIP, http://spicyip.com/2011/04/copyright-compulsory-licensing-disputes.html

22. Nic Healey, ‘New Zealand ISP’s "Global Mode" Gives Users Access to Netflix and More’, CNET, https://www.cnet.com/news/new-zealand-isps-global-mode-gives-users-access-to-netflix-and-more/

23. Rishabh Dara, ‘Intermediary Liability in India: Chilling Effects on Free Expression on the Internet’, Centre for Internet and Society, 2011.

24. Super Cassettes v. MySpace, 2011 (2) MIPR 303.

25. Sruthisagar Yamunan, ‘Copyright Shocker on Tyagaraja Kritis’, The Hindu, 25 June 2014, http://www.thehindu.com/features/friday-review/music/copyright-shocker-on-tyagaraja-kritis/article6146270.ece

26. Shamnad Basheer, ‘In Bollywood’s Battle Against Piracy, a Neutral Ombudsman Might be the Answer’, The Wire, http://thewire.in/61034/of-bollywood-blocks-and-john-does-towards-a-neutral-ombudsman/

27. Cory Doctorow, ‘America’s Broken Digital Copyright Law is About to be Challenged in Court’, The Guardian, 21 July 2016, https://www.theguardian.com/technology/2016/jul/21/digital-millennium-copyright-act-eff-supreme-court

28. See, e.g., Glynn Lunney, Jr., ‘The Death of Copyright: Digital Technology, Private Copying and the Digital Millennium Copyright Act’, Virginia Law Review 87, 2001, p. 813; Robert Denicola, ‘Mostly Dead? Copyright Law in the New Millennium’, Journal of the Copyright Society of the USA 47, 2000, p, 93.

29. Mihaly Ficsor, ‘Collective Rights Management From the Viewpoint of International Treaties, With Special Attention to the EU "Acquis",’ in Daniel Gervais (ed.), Collective Management of Copyright and Related Rights. Kluwer, 2016.

30. Yee Wah Chin, ‘Copyright Collective Management and Competition Law’, in Susy Frankel and Daniel Gervais (eds.), The Evolution and Equilibrium of Copyright in the Digital Age. Cambridge, 2014.

31. See, e.g., John Perry Barlow, ‘A Declaration of the Independence of Cyberspace’, available at https://www.eff.org/cyberspace-independence

32. Jacob Silverman, ‘Meet the Man Whose Utopian Vision for the Internet Conquered, and Then Warped, Silicon Valley’, The Washington Post, 20 March 2015, https://www. washingtonpost.com/opinions/how-one-mans-utopian-vision-for-the-internet-conquered-and-then-badly-warped-silicon-valley/2015/03/20/7dbe39f8-cdab-11e4-a2a7-9517a3a70506_story.html?utm_term=. 967d664afe3f

33. ‘Thom Yorke Sells New Album via Paywall Protected Torrent’, TorrentFreak, https://torrentfreak.com/thom-yorke-releases-album-via-bittorrent-140926/

34. ‘Music Consumer Insight Report 2016’, IFPI, available at http://www.ifpi.org/downloads/Music-Consumer-Insight-Report-2016.pdf. Note that the Indian market was not surveyed for the purpose of this study.

35. This analogy, however, has been questioned. The German CMO GEMA and YouTube have disagreed on whether YouTube must pay a blanket license fee (like a radio station), or whether it must pay a fixed amount for every music video streamed (like a distributor of recorded media, who pays per CD sold). This conflict has led to the prolonged unavailability of a large amount of content to German YouTube users. See Alexander Wragge, ‘Worüber GEMA und Youtube Streiten’, iRights, https://irights.info/artikel/worber-gema-und-youtube-streiten/7182