digital rights management: did india take the right path?

Digital Rights Management: DidIndia take the right path?

Dr Arul George ScariaAssistant Professor of Law | Co-Director, Centre for Innovation, IP and Competition

National Law University, Delhi

National Conference on Copyright and Technology, NLU JodhpurApril 9, 2017

Copyright (Amendment) Act 2012

– Sec. 65A - Protection against circumvention of technologicalmeasures

– Sec. 65B - Protection of rights management information

Sec. 65A

• “Any person who circumvents an effective technologicalmeasure applied for the purpose of protecting any of the rightsconferred by this Act, with the intention of infringing such rights,shall be punished with imprisonment which may extend up totwo years and shall also be fined”

Important exceptions

Doest not prevent any person from doing anything for a purposenot expressly prohibited by the Copyright ActAllows third parties to facilitate circumvention, provided s/hemaintains a complete record of the details of the person and thepurpose for which circumvention was facilitatedSpecifically exempts circumvention of technological measures forthe purpose of certain activities like encryption research, lawfulinvestigation, security testing of a computer system or acomputer network with the authorisation of its owner oroperator, protection of privacy, and measures necessary in theinterest of national security

Some important aspects of the Indian provisions

• Application of the anti-circumvention provision limited to casesof intentional infringement - the legislator has used a fairly highbar for invoking actions based on this provision

• If the circumvention was for a purpose not expressly prohibitedby the Copyright Act (for example, exceptions allowed under theCopyright law), the anti-circumvention provision will not apply

• The legislature has allowed circumvention with the help of thirdparties, provided certain procedural conditions are met

• “Effective technological protection measures”

Sec. 65B

“Any person, who knowingly,(i) removes or alters any rights management information withoutauthority, or(ii) distributes, imports for distribution, broadcasts or communicatesto the public. without authority, copies of any work, or performanceknowing that electronic rights management information has beenremoved or altered without authority, shall be punishable with im-prisonment which may extend to two years and shall also be li-able to fine:...”

Sec. 65B(ii)

• Clarifies that the criminal remedies provided are in addition tothe civil remedies already provided under the Copyright Act forthe copyright owners in such works

Evolving an Indian version of DRM Provisions

• Context of these provisions?

Are the DRM provisions good for India?

• Did we do a proper economic analysis of the need/ potentialimpacts of DRM provisions in India before adding thoseprovisions?

• Positive implications?

• Negative implications?

Are the DRM provisions good for India?

• Potential positive implications

– Incentivising the industry to produce more creative works byreducing the possibilities of unauthorised reproductions ofthose works - Economic argument similar to the incentivetheory of copyright

– May facilitate price discrimination strategies from the side ofright holders

Are the DRM provisions good for India?

• Potential negative implications

– Possible tinkering of the balance within the copyright system

• Express legitimisation may incentivise more people to useaccess/ use control measures

• Most users doesn’t have the expertise to circumvent theTPMs - procedural hurdles involved?

– Potential impact on innovation and competition within thecountry - examples from other jurisdictions?

Can the possibility of misuse be an argument fornegating any legislation?

• Experiences in other areas - ex: John Doe orders

• Whether the risks for innovation and competition are worthtaking, if we take into consideration the minimal additionalbenefits that may be brought in by the new provisions?

• Economic efficiency of the punishments prescribed?

Should we really create a para-copyright regime?

• Merely because two international treaties or some jurisdictionshave advocated for these provisions, should we have gone forDRM provisions?

• How will these provisions affect India’s general position againstTRIPS+ standards?

• How it may affect the position of other countries with regard toWCT/ WPPT?

• Can many of these objectives be achieved through better use ofthe contributory infringement principles?

• If the aim is addressing piracy, should the focus be on DRMprovisions or better digital business strategies?

Thank You!

arul.scaria@nludelhi.ac.in

@arulscaria