Imprisoning the consumer behind a digital firewall

The Lok Sabha passed the Copyright (Amendment) Bill, 2012 on Tuesday and the media have highlighted some of its positive aspects, especially the provision for artists to earn lifelong royalty from the commercial use of their works.

Sadly, a major amendment relating to the introduction of Digital Rights Management (DRM) has gone unnoticed. It is unfortunate that such a huge amendment which can impact the everyday lives of middle class Indians has been introduced without adequate debate and mostly only with industry inputs.

The power of DRM

DRM is like a software code used to manage the rights of copyright owners when any copyrighted material like books or songs are transmitted digitally. Unlike natural limitations built into the dissemination of hard copies, digital dissemination of copyrighted materials is quicker and easier. Hence, copyright holders use DRM technology as a self-help measure to prevent unauthorised and bulk digital dissemination of copyrighted materials.

These days, for instance, software comes equipped with inbuilt DRM programmes that tie it to a limited number of users or devices. A user who buys legal software cannot give a copy to a friend — the DRM ties the software to a single device or user. Similarly, DRM technology in modern DVD players — termed as Content Scramble System (CSS) — prevents users from copying the content. Even if a user copies a DVD, the disc will not play in a regular DVD player.

The Kindle example

The problem is such DRM measures can prevent fair-uses authorised under copyright laws like copying software from one's own laptop to desktop, or copying a DVD for private use. Therein lies the immense power that DRM can create over technology corporations. For example, Amazon's Kindle is a wireless electronic reading device where users can download books or other materials to save one the trouble of carrying bulky books. But, on July 17, 2009, users who bought George Orwell's Animal Farm and Nineteen Eighty-Four found that Amazon had automatically deleted copies of books from their Kindles overnight. DRM technology allowed Amazon to enter and delete files in each individual's Kindle. Reportedly, the copyright owners decided not to sell the content on Kindle. Well, if you had purchased a paper copy of the book, can the company send its employees to take it back from your house without explanation and prior authorisation while leaving the refund of the purchase price on your kitchen table?

Intellectual property misuse

Similarly, unlike in the case of a paper book that can be lent to a friend, an e-book will become accessible only to a user whose user name and password match — thus affecting the resale rights of the user. Further, in the United States, the use of DRM to protect materials that are in the public domain has led to a new line of cases cited for intellectual property (IP) misuse that has competition law impact. For instance, Lexmark Inc. equipped its printer refill cartridges with a DRM code that instructed the printer to only recognise Lexmark cartridges. It prevented customers from purchasing cheaper generic refill cartridges. Importantly, Lexmark held no IP rights over the printer cartridge and hence should be amenable to market competition. Competitors who broke the DRM code were sued for circumvention of technology — which is a violation in India under section 65B of the present Copyright (Amendment) Bill, 2012. Notably, in the U.S., it took years for the court to rule on Lexmark's misuse of IPR because its DRM did not protect any intellectual property. In India, technology companies will get the same level of powers — and unfortunately, unlike the U.S., there are no NGOs like the Electronic Frontier Foundation to fight such misuse.

In the U.S., DRM measures have also been criticised as having a propensity to slow the pace of development — a move that the Joint Parliamentary Committee did not take full cognisance of.

For example, ReplayTV and TiVo were recording devices that allowed users to record TV programmes while automatically deleting advertisements. (Imagine the pleasure of recording a cricket match without the advertisements.) Turner Broadcasting (with other studios) sued the manufacturers, asserting copyright violation. The courts forced both device manufacturers to remove the record-by-removing-advertisements feature on the grounds that it altered the original programme. Consumers, of course, were the ultimate losers but so was the new technology.

The treaties

For countries like India, it is important to create research opportunities to promote competition and innovation in new technology. India is technologically still advancing and DRM measures are simply overenthusiastic efforts that can dangerously choke innovation. Indian economic conditions would further impose a huge burden when and if misuse occurs. Indeed, the World Trade Organisation (WTO)'s agreements do not mandate establishment of anti-circumvention (DRM) measures. Digital copyrights and DRM measures are addressed by the World Intellectual Property Organisation (WIPO)'s Treaties, namely, the WIPO Copyright Treaty (WCT), 1996 and the WIPO Performances and Phonograms Treaty (WPPT), 1996. But, India is not a signatory to either and hence the urgency to comply is perplexing and disappointing.

India's amendments on DRM are clearly driven by industry. In fact, at a recent conference, an official of the copyright office acknowledged that they closely worked with the industry and seemed unaware of piling criticisms about DRM technology abroad.

The Parliamentary Standing Committee that made the recommendations for the amendment has not exhaustively examined the nexus between DRM and IPR misuse and its effect on the public domain. Nor is there any research in India — by the committee or otherwise — on the effect of such measures on the economy and innovation, especially given the Indian software industry's current attempt to metamorphose into innovators. Last century's technological revolution that spewed out savvy products for consumers depended on fair-use of lawfully obtained copyrighted materials. DRM thrives when the fair-use exception to copyright law is narrow. In India, unfortunately, these measures leave a gigantic burden on the judiciary to prevent any attempt to narrow fair-use of copyright laws.

(The author is Professor of Law at the University of Oklahoma College of Law, and Fulbright Scholar attached to NLSIU, Bangalore.)

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Printable version | Sep 28, 2020 9:17:02 AM |

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