The Legal and Ethical Dimensions of Copyright Infringement

18th October, 2024 - 11:17 am Categories: Copyright Infringement 0 Comments

INTRODUCTION

Copyright infringement is one of the most persistent problems in intellectual property law today. Because it has become easier than ever to access digital content, unauthorized use of copyrighted materials has skyrocketed exponentially in a very short period of time. Copyright infringement happens when persons use or reproduce a work without acquiring consent from the owner, from music to software, from books to online articles. This paper will discuss the legal issues surrounding copyright infringement and several types of it; it will also discuss its effects on the offenders’ side, defences that can help reduce liability, and ethical issues on copyright infringement and how technological development has changed the intellectual property law landscape.

I will try to review the situation of the law as it stands in India today, about the liability for the offense of copyright infringement on the internet, mainly focusing the scope of liability that could lie with an ISP. This proposition has to be addressed within the boundaries of traditional Indian copyright law, the Information Technology Act, 2000 and the Indian Penal Code, 1860, since the categories of ISPs have not been defined neither have the rights and obligations of ISPs been enumerated under Indian Law.

What Is Copyright Infringement?

The Internet has been described as the ‘World’s Biggest Copy Machine[1]. While the internet has provided a new medium for various artists, writers, musicians, researchers and other copyright holders to exhibit their work on a global level, on the flipside, it has also opened a pandora’s box by making it possible for any user to duplicate information and replicate it as his own, thereby facilitating ‘copyright’ infringement. At its core, copyright infringement is the unauthorized use or reproduction of a copyrighted work[2]. Copyright owners, in most jurisdictions, have privileges such as reproducing, distributing, and publicly displaying owned work. Such rights also extend to derivative works in that the owner will control any form of adaptation or transformation of the original work. Copyright infringement refers to the use of work protected by a copyright law without the owner’s permission. This includes copying, distribution, public display, or performing the work. A copyright vests the owner with exclusive rights, for a definite period, to prohibit other people from exploiting its subject matter-an invention, a design, or a literary or other artistic work.[3]

An ISP (Internet Service Provider)” is a business or organisation that offers users access to the Internet and related services.[4] Therefore, an ISP is a species of the’ intermediary’ genus’ whose role goes beyond mere internet connectivity. ISPs are capable of performing myriad functions such as e-mail, internet hosting[5], web hosting[6], running mailing lists, a transmission medium, as temporary storage of material and as a search engine. Google, Rediff, VSNL, Bulletin Boards, etc, all fall within the ambit of an ISP.

Caching is a process whereby the web browser stores a set of web page images temporarily either on the hard disk of the user or on the server of the ISP so they may be redisplayed quickly when the user returns to them thus, speeding up the time it takes to access information on the internet.[7]

Some of the ‘exclusive rights’ of a copyright owner in the case of a literary,

dramatic or musical work, which are affected in an unauthorised internet

transaction, are as follows:

(i) to reproduce the work in any material form, including the storing

of it in any medium by electronic means;

(ii) to issue copies of the work to the public,

(iii) to communicate the work to the public (emphasis supplied)[8].

Trademarks: Copyright Types of Copyright Infringement

Copyright infringement may be of two types:

Direct Infringement: Such is the type of violation whereby someone copes or further distributes a work or displays it to the public without having sought permission to do so from the copyright holder. The most common example would be downloading pirate music or software.

Indirect (Contributory) Infringement: In the example above, there would never be direct infringement on the part of the individual or entities involved, but they indirectly permit and contribute to the infringement. For instance, an internet service provider which knowingly allows illegal file sharing of its network can be liable under the law of indirect infringement.

Copyright in the Digital Age

The internet has dramatically transformed how copyright infringement occurs. Peer-to-peer (P2P)[9] file-sharing platforms like Napster made it easier for individuals to share copyrighted music without compensating artists or record labels. In the case of Metro-Goldwyn-Mayer Studios Inc. et al. v. Grokster, Ltd[10]., et al,- the US Supreme Court had the chance to clear the mist on this subject, but the Hon’ble Court succeeded in confusing the scenario even further by introducing a new theory of infringement known as the Inducement theory. In the above case, a group of movie studios [11]and Other copyright holders also brought action against the respondents with regard to their user’s copyright infringement through peer-to-peer networks, which is caused by an allegation that respondents knowingly and intentionally distributed their software in order to enable users to infringe copyrighted works. Applying the Betamax defence, the Ninth Circuit Court of Appeals found that respondent’s software had substantial non-infringing uses, and with decentralized architecture, the respondents did not materially contribute to infringing on their users’ works, as the users themselves were searching for, retrieving, and storing the infringing files.[12]. Finally, the court held that respondents could not vicariously be held liable because they did not monitor or control the software’s use, neither did they have an agreed-upon right or ability to supervise its use, nor did they have an independent duty to police infringement

This platform was ultimately found liable for contributory infringement, which set a precedent for future cases involving internet-based copyright violations. The rise of digital content has amplified concerns over unauthorized use, particularly in industries such as entertainment, software, and publishing.

Legal Implications of Copyright Infringement

In Helliwell v. Piggott-Sims,’[13] WhitfordJ. observed in connection with the private recording of broadcast live music:

“I think the tapes that he made to keep in his collection could properly have been said to have been made for his private and domestic use only if he had never dohie, or had never contemplated doing anything else but enjoy listening to them…. He could have taken as many records from the live performances, however indirectly as he pleased, provided that he kept them strictly for his own private domestic use.'(emphasis supplied)”.

In the case of Corbis Corporation v. Amazon.com, Inc., [14]et al., the Court held that the DMCA immunizes Amazon.com, Inc. (Amazon) from copyright infringement damage claims arising out of the storage and sale by non-affiliated vendors on Amazon.com of photographs in which the plaintiff claimed copyright.

The legal consequences for copyright infringement can vary depending on the jurisdiction, but most cases result in either civil or criminal penalties. In the United States[15], copyright holders may sue for actual or statutory damages. Statutory damages allow copyright holders to seek compensation without needing to prove the actual harm caused by the infringement, with amounts ranging from $750 to $30,000 per infringement (17 U.S.C. § 504). However, if the infringement is deemed wilful, damages can escalate to $150,000

Fair Use and Its Limitations

The fair use doctrine offers a defence against copyright infringement. Fair use permits limited use of copyrighted material without permission for purposes such as criticism[16], commentary, news reporting, education, and research. However, the determination of fair use is based on several factors:

Purpose and character of the use – whether it’s for commercial or educational purposes.

Nature of the copyrighted work.

Amount and substantiality of the portion used.

Effect on the potential market of the copyrighted work.

An educational institution quoting a small part of a book in a lecture might fall under fair use, whereas reproducing entire chapters could infringe upon the copyright owner’s rights.

THEORIES OF LIABILITY FOR COPYRIGHT INFRINGEMENT

In the absence of clear standards for the liability of an ISP for copyright infringement under Indian law, it is imperative to discuss this issue about traditional copyright infringement theories and international case law. The liability for copyright infringement rests on three theories- direct, vicarious and contributory infringement. However, the US Supreme Court has recently introduced a new theory known as ‘the inducement theory’ vide its judgement in Metro-GoldwynMayer Studios Inc. et al. v. Grokster, Ltd., et al.,41 Under this theory, the[17] 135 E Supp. 2d 409 (SDNY 2001).[18] 125 S.Ct. 2764 (2005). 160 The Law Review, Government Law College [ Vol. 5 Court stated that a company is liable for contributory infringement if they intend to bring about infringement by distributing a device suitable for infringing use and actual infringement occurs[19]. The question arises as to which of the abovementioned standards should be applied to fix the responsibility of ISPs for copyright infringement.

Copyright Infringement in Different Jurisdictions

The copyright laws of India are stipulated in the Indian Copyright Act 1957. The Act also includes several types of infringement, one of which is infringements on the digital content which has become relevant with the increase of online content. Copyright Law is also quite intricate for example, in India, internet service providers (ISPs) shall only be liable for any infringement if they are found to have knowledge of the infringement and do nothing about it.

In contrast, the Digital Millennium Copyright Act (DMCA) in the United States provides a framework for holding ISPs accountable for copyright violations. The DMCA [20]includes “safe harbour” provisions that protect ISPs from liability as long as they promptly remove infringing content once notified.

Ethical Issues Involved with Copyright Infringement

While copyright law protects creators’ legal rights, it also poses some ethical issues. Without checked copying, creators are denied fair remuneration, while in the long run, this stifle[s] innovation and creativity. Use of digital platforms to distribute content is very useful, but still worth noting, because with them, copying and distribution of copyrighted works, without much regard to consequences, becomes easy. This poses important ethical questions about the responsibility of consumers as well as that of platforms in protecting intellectual property rights.

Recent Developments in Copyright Law

The legal landscape surrounding copyright infringement is constantly evolving. New cases have introduced the inducement theory, which holds companies liable if they encourage users to engage in copyright infringement. This theory was developed in the Metro-Goldwyn-Mayer Studios Inc. v. Grokster case[21], where Grokster was found guilty of encouraging users to share copyrighted material.

Defences Against Copyright Infringement

While the accused copyright infringers may establish several kinds of defenses against liability:

Fair use: Permitted use of copyrighted materials for some purposes and limited use without permission.

First Sale Doctrine: This doctrine gives the copyright holder of an originally lawfully acquired copyrighted work the right to sell or lend out the work but must do that without agreement by the copyright owner.

Innocent Infringement: An innocent infringement can reduce the penalties; but if the defendant was not aware of the work being copyrighted.

CONCLUSION

Copyright infringement is a complex legal issue and one that is more relevant these days than ever before with growing digital technologies. This has led to a popular situation for many with easy sharing of digital content, hence unauthorized use, or to put it in other words ‘piracy’. It has been known that the DMCA and the Indian Copyright Act would provide protection to the copyright holders, but it is through ethical issues that the behavior of content creation/audience would be shaped. The digital world continues to grow, and therefore the law which protects intellectual property must keep up with this change.

Author: Prasun Kumar, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

[1] Lauren Gibbons Paul, ‘It’s the World’s Biggest Copy Machine’, PC Week, 27 January 1997, available athttp://www.zdnet.com/pcweek/business/0127/27copy.html (last visited 5 August 2006).

[2] The Information Technology Act, 2000.

[3] Rodney D Ryder, Intellectual Property and the Internet (Lexis Nexis- Butterworths 2002) 64.

[4] Wikipedia definition: Internet Service Providers, available at http://en.wikipedia.org/ wiki/Internet-service-provider (last visited 5 August 2006).

[5] An Internet hosting service is a service that runs Internet servers, allowing organisations and individuals to serve content on the Internet, available at http://en.wikipedia.org/ wiki/Internethosting. service (last visited 5 August 2006).

[6] A web hosting service is a type of Internet hosting service that provides individuals, organisations and users with online systems for storing information, images, video, or any content accessible via the Web. Web hosts are companies that provide space on a server they own for use by their clients aswell as providing Internet connectivity, typically in a data center, available at http://en.wikipedia.org/wiki/Web-hosting-service/ (last visited 5 August 2006).

[7] Osborne Clark, A Practical Guide to E-commerce and Internet Law (ICSA Publishing London 2002) 101.

[8] Indian Copyright Act, 1957, section 14.

[9] Philip Larson, ‘P2P Filesharing – The Supreme Court Speaks in MGMv. Grokstee available at http://www.philiplarson.com/blog/?p=5 (last visited 2 October 2006).

[10] United States Court of Appeal for the Ninth Circuit, No. 04-480. Decided onJune 27,2005.

[11] Subhrarag Mukherjee, 1iability of Internet Service Providers for Copyright Violation on the Internet’, available at http:// www.legalservicesindia.com/articles/isp-in-us.html (last visited 2 October 2006).

[12] Philip Larson, ‘P2P Filesharing – The Supreme Court Speaks in MGMv. Grokstee available at http://www.philiplarson.com/blog/?p=5 (last visited 2 October 2006

[13] [1980] FSR 582.

[14] 17 U.S.C. section 512(c).

[15] United States Court of Appeal for the Ninth Circuit, No. 04-480. Decided onJune 27,2005.

[16] 5 Title II of DMCA: Online Copyright Infringement Liability Limitation Act, 17 U.S.C section 512 Limitations on liability relating to material online.

[17] 135 E Supp. 2d 409 (SDNY 2001)

[18] 125 S.Ct. 2764 (2005).

[19] Philip Larson, ‘P2P Filesharing – The Supreme Court Speaks in MGMv. Grokster’, available at http://www.philiplarson.com/blog/?p=5 (last visited 2 October, 2006).

[20] Title II of DMCA: Online Copyright Infringement Liability Limitation Act, 17 U.S.C section 512 Limitations on liability relating to material online

[21] United States Court of Appeal for the Ninth Circuit, No. 04-480. Decided onJune 27,2005.