Anti-DRM-Campaign/Proposed-Amendments

DRM proposed in Indian copyright law

Section 65A & 65B in proposed amendments to Indian Copyright Act proposes DRM in Indian Copyright law.

Current Law

65. Possession of plates for purpose of making infringing copies. – Any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to [two years and shall also be liable to fine].

Proposed amendment:

Insert Sections 65A & 65B

“Section 65A. Protection of Technological Measures. –

(1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

(2) Nothing in sub-section (1) shall prevent any person from:

(a) doing anything referred to therein for a purpose not expressly prohibited by this Act: Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or

(b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or

(c) conducting any lawful investigation; or

(d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorization of its owner or operator; or

(e) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or

(f) taking measures necessary in the interest of national security.

Section 65 B. Protection of Rights Management Information. –

Any person, who knowingly

(i) removes or alters any rights management information without authority, or

(ii) distributes, imports for distribution, broadcasts or communicates to the public , without authority , copies of any work, or performance knowing that electronic rights management information has been removed or altered without authority, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine; Provided that if the rights management information has been tampered with in any work, the owner of copyright in such work may also avail of civil remedies provided under Chapter XII of this Act against the persons indulging in such acts described above.”

The Problem

Firstly, it should be noted that India is under no obligation to enact anti-circumvention laws, as it is not mandated under the TRIPs agreement to which India is bound. India is not a signatory to the WIPO Copyright Treaty (“WCT”). It is the WCT that enjoins state parties to enact anti-circumvention provisions into their national law. As India is not a party to the WCT, it is consequently free from any obligation to enact such provisions into national law. Thus, the reasons for the inclusion of such provisions are unclear. This amendment seeks to impose 'TRIPs-plus' standards on India for which there is neither a necessity nor an obligation. ( as we seen earlier in the trials to implement patents on software in 2005)

DRM is a term used for technologies that define and enforce parameters of access to digital media or software. The reason for the deployment such measures is – ostensibly – to 'enforce' the copyright of the manufacturer or the copyright-holder as the case maybe.

However, DRM is extra-statutory. Consequently, rights that are conferred by the law are enforced by the copyright holder himself through technological measures so as to prevent access to such digital media or software which would infringe the copyright of the copyright holder. But, more importantly, this would also mean that DRM allows for copyright holders to restrict access to digital media or software under terms which would be currently permissible under copyright law.

For example, if a person wished to make a copy of a legally purchased media file for personal use or for back-up, utilizing the flexibility sanctioned under Section 51(1)(b)(ii) of the Indian Copyright Act, he/she would not be able to do so if the proposed amendments suggested here are enacted. It could also prevent private screening of digital media, which would (otherwise) be perfectly legal to do under the current Act. The inclusion of this provision means that copyright holders will be allowed to enforce their own copyright terms on digital media or software that they produce; terms that are not concurrent with the current Indian Copyright Act.

Furthermore, DRM will have a significant impact on innovation. This has particular significance for India where the fruits of innovation need to be accessible to both the innovator and the consumer. An example is the invention of the Simputer , which was built on reverse-engineering. With the introduction of DRM and the criminalization of its circumvention, low-cost, locally relevant and contextually appropriate computer hardware and software may never become available to the public at large.

With the inclusion of such provisions, DRM becomes a tool not for protection of copyright but for changing consumer expectations of the product that they receive. We do not believe that this is a valid duty of the current Indian Copyright Act or the amendments proposed in this instance. We further believe that the experience of the USA with regards to DRM and anti-circumvention legislation is useful and instructive to the Indian case

Suggestions:

We recommend, in line with the findings of the UK Commission on Intellectual Property <ref> UK Commission on Intellectual Property (“CIPR”) </ref> (“CIPR”) that it is premature at the present time for developing countries to be required to go beyond TRIPs standards in this area. We strongly believe that developing countries would probably be unwise to endorse the WIPO Copyright Treaty and that they should retain their freedom to legislate on how technological measures are regulated – in the interests of safeguarding access to knowledge and information, for broad socio-economic development. We strongly suggest that the proposed Sections 65A and 65B not be included into the Act (noting that there is no obligation that binds the Indian Government to do so anyway).

However, in the event that Government still decides to introduce DRM into the Act, then we strongly recommend that it introduces safeguards which will protect users from an abuse of the anti-circumvention provision; that is, safeguards that allow users to exercise all the fair dealing clauses ensured and enumerated in the current Act. This is particularly important given the manner in which DRM can affect legitimate research. (Indian researchers and students need access to copyrighted technical journals, educational materials and software: allowing for DRM in the form of the proposed amendments will seriously undermine India’s development goals.)

The proposed amendment introduces the idea of intention into the act of circumvention, stating “'with the intention of infringing such rights”. This is a significant safeguard. A liberal interpretation thereof would imply that circumvention for fair dealing and other non-infringing activity is allowed. It would mean that the exceptions listed in Section 52 of the Act and elsewhere, would automatically be outside the purview of Section 65A. It would however be better to clarify this explicitly in the proposed amendment and introduce language which states that circumvention for the purposes of exercising any fair dealing rights, or other exceptions as listed in the Act (such as provisions for people with a disability, for instance), are exempt from being considered as infringement.

We also suggest that government provide for an administrative procedure for regular review of copyrighted works that on substantial reason and cause should not be protected by the provisions of Sections 65A and 65B - for example, in cases of people with a visual disability, where copyrighted works will need to be converted into appropriate formats. For evidence and experience with respect to the suggestions above, please refer to the recommendations of select governmental and non-governmental reports on the implementation of DRM <ref> Standing Committee on Legal and Constitutional Affairs (Australia)</ref> <ref> Electronic Frontier Foundation (United States of America) </ref>

Recommendation

Delete in entirety, as per problems explained under Sections 65A & 65B in the main text

Notes

”Developing countries will suffer serious costs if they undertake to impose intellectual property regimes beyond what the state of the developing country requires including the imposition of DRM friendly regimes.” - UK Commission on Intellectual Property <references/>

For More Critiques/suggestions on Proposed Amendments read Response to Copyright amenment prepared by Alternative Law Forum