R.V. College of Engineering, Bengaluru - 560059.

(An Autonomous Institution Affiliated to VTU, Belgaum)

An Assignment Report on

“EMERGING TRENDS IN DIGITAL COPYRIGHT LAW”

Submitted by:

Student name USN

Muhammed Akram A 1RV19EC101

Submitted to,

Ms.Rohini Hillakar
Assistant Professor
Dept of ECE,RVCE

Maximum marks Marks obtained

20

Signature of Course Incharge

I. Introduction:
The Law of Copyright is considered to be the legacy of technology in ancient chronicles.
It has undergone methodical improvements in order to protect the public interest in
creativity, ingenuity, and resourcefulness, bearing in mind the essence, complexity, and
sphere of technology involved. Its primary aim is, on the one hand, to offer appropriate
benefits for writers and producers of miscellaneous copyright works and on the other hand,
to make those works accessible to the public.

The progression in copyright has been closely related to the advancement of technology.
Although other innovations have made it more difficult to protect copyright, modern
computers have continued to reform the basic principles underlying copyright. These
copyright industry contests have occurred at a time when the share of proprietary interests
in domestic financial prudence has hit unparalleled heights. Adjusting the legal system to
adapt to emerging technological advances in an accurate and reasonable manner, taking
into account the speed and pace of these developments, is important.
The Copyright Act of 1957 governs all the matters related to Copyright issues in India.
This was the first legislation for the subject of Copyrights after the independence of the
country which has been amended six times since enacted, with the latest amendment made
in 2012. Before 1957, the British had two enactments pertaining to Copyrights.

I. Digital Copyright Law

First was the British Copyright Act, 1911 which was very short and concise as compared
to the present law. Second was the one enacted by the Indian Legislature under the rule of
the British in 1914 and was named as the Indian Copyright, 1914. This Act unlike the
previous one provided for the imposition of criminal liability in case of infringement of the
Copyright. The Act of 1957 was made in conformity to the provisions of the Berne
Convention for the protection of Literary and Artistic Works of 1886 and also safeguarded
the work created & protected under the Act of 1914.

At present matters pertaining to Copyrights in India are governed by the Copyright Act,
1957 [hereinafter “the Act”]. The Amendment given to the act in the year 1994 recognized
the technological changes and involved the prospects of broadcasting & telecasting.
Further, the 1999 Amendment made the Act conform to the Trade-Related Aspects of
Intellectual Property (TRIPS) Agreement particularly on the doctrine of Fair Use. And last,
 the Amendment of 2012 was the most significant amendment as it not only strengthens the
laws against challenges of the Internet but also provided for its further scope. It followed
the principles of the WIPO Copyright Treaty (WCT) and WIPO Performances and
Phonograms Treaty (WPPT). The Indian Copyright Act, 1957 after all these amendments
was termed to be a “forward-looking piece of legislation” and that the Act is capable
enough to counter the challenges posed by the Internet in the digital dominion.

Situations of Copyrights in the Digital Dominion

In the 21st Century and moving forward, a man‟s greatest asset and worst liability is his access to
the Internet or Information Technology (IT) or the Digital Dominion. Advancements in IT sect
have in no doubt created a pool of opportunities to showcase one‟s talent and reach out to the
public at large but as regards the protection of the originality of the work, it has also imposed many
challenges which threatens the rights of the copyright owners. Some of the reasons are as follows:
• Fast, easy & cost-efficient access to a Global Network.
• No restrictions upon reaching or distributing such a widespread audience.
• It is nearly impossible to make a distinction between a copied material and the original one.
Piracy Levels around the World

• Over 200 billion views per year are received on the pirated videos all around the world.

• Around 24% of the global bandwidth is taken up in the illegal downloading of the content.

• Around 38% of the software‟s used in computers/laptops are pirated.

• Around 70% of the young population is engaged in online piracy and illegal uploading and
downloading of the materials.

• Around $70 billion loss is incurred by the movie industry globally.

The above data makes it clear that it is not only the rights of the owner but also the
worldwide economy which is adversely affected due to the infringements of Copyrights.
.

II. Present Laws:

There are numerous legislations, conventions, and treaties which have been enacted for the
betterment of the Copyright law. At International Level, World Intellectual Property
Organization (WIPO) has played a crucial role in enacting some of the most effective laws,
listed as follows:
• The Berne Convention, 12th May 1858.
• WIPO Copyright Treaty (WCT), 6th March 2002. • WIPO Performances &
Phonogram Treaty (WPPT), 12th May 2002.

Both WCT & WPPT were termed as “Internet Treaties” as their main purpose was to
counter the challenges posed by the digital domain in order to protect the interests of
the owners as well as the public. These treaties aimed to revise the already existing
conventions so as to conform to the new developments of technology and give solutions
to the problems of distribution of protected work on the internet. Two main provisions
to deal with the same were instituted namely, Technological Protection Measures
(TPM) and Rights Management Information (RMI).
Under Technological Protection Measures, the WCT through Article 11 provided that,
“Contracting Parties shall provide adequate legal protection and effective legal
remedies against the circumvention of effective technological measures that are used
by authors in connection with the exercise of their rights under this Treaty or the Berne
Convention and that restrict acts, in respect of their works, which are not authorized by
the authors concerned or permitted by law.” The same replica of this provision is also
instituted in Article 18 of the WPPT.
According to the Article 12 of the WCT Rights Management Information (RMI) means
“information which identifies the work, the author of the work, the owner of any right
in the work, or information about the terms and conditions of use of the work, and any
numbers or codes that represent such information, when any of these items of
information is attached to a copy of a work or appears in connection with the
communication of a work to the public.” A similarly worded provision is secured in
Article 19 of WPPT.
These systems have created a bar making access difficult to the copyrighted material.
The user has to pay fees and conform to the obligation proposed thereby in order to use
the material. Though these systems are very well worded and have proved to be helpful
in controlling the use of Copyrighted work upon the Internet but still lack to stop the
violation in totality. And as far as India is concerned, no such legal remedies are yet
available as India has not ratified to these treaties and there is no such provision in the
present Copyright Law of 1957.
III. Case Studies

1. UTV Software Communication Ltd. v. 1337x & Ors:

FACTS

The Court considered a batch of 8 suits filed by companies engaged in the business of creating
content, producing and distributing cinematographic films around the world including India
(“Plaintiffs”). The Plaintiffs sought injunction restraining the Defendants from infringing the
Plaintiff‟s copyrighted works in cinematograph films by communicating it to the public without
any authorization. The defendants to the suits included certain identified websites, John Doe
defendants (“Defendant Websites”) along with MeITY, DoT and multiple internet service
providers (“ISP”) which were arrayed as non-contesting parties, against whom no relief was
claimed.
The Plaintiffs produced samples of infringing content to support their one-point case that the
infringing websites were primarily engaged in hosting pirated content and allowed streaming and
downloading of Plaintiffs‟ copyrighted works without any authorisation. The Court disposed of
the matter ex-parte, with only the Plaintiffs present, as the contesting defendants failed to appear
on being summoned. As the matter involved questions of law of general public importance, the
Court appointed Mr.Hemant Singh, a regular practitioner in IPRs cases, as an Amicus Curiae to
assist the court with its determination on the questions of .
The Plaintiffs argued that the Defendant Websites‟ business models sustained on the revenue
earned by allowing the unauthorized streaming and downloading of the copyright infringing
content as well as from the advertisements which were displayed on their websites. These websites
functioned under a garb of privacy and their indexes of hyperlinks redirected the end- user to host
area in order to facilitate streaming or downloading of copyrighted content. The primary contention
before the Court was that the Defendant Websites mirrored and multiplied on being blocked at one
particular URL. It was the Plaintiff‟s case that the Defendants‟ substantial purpose was to infringe
or facilitate infringement of copyright. The Plaintiff relied upon laws across multiple jurisdictions
where courts in such circumstances have passed injunction orders blocking the primary website.
In view of the international jurisprudence and the increasing need in a technology-driven era, the
Plaintiff sought an effective remedy in the form an injunction by way of the present Suit.
The Amicus Curiae appointed by the Court submitted that the foremost issue requiring the
Court‟s consideration was whether the Defendant Websites could be categorized as „flagrantly
infringing online locations.‟ In a case where site wide ban is sought to be imposed, the burden of
proof is on the Plaintiff to adduce evidence in support of the fact that the website complained of
was sharing infringing or pirated content. Caution is required more specifically in cases where
websites hosted both infringing and legitimate content of third parties. To buttress the submissions,
the Amicus relied on the three-step verification test evolved by the Bombay High Court in Eros
International Media v. BSNL Suit No. 751 of 2016, which has been enumerated in the later part of
this analysis. Further, courts while granting blocking orders should be guided by principles of
proportionality so that interference with rights to access the internet is justified. Lastly, the Amicus
submitted that blocking by domain names would make the injunctions pointless as there was a high
likelihood of the infringers operating from different domain names. It was the Amicus‟
submissions that the Court could exercise powers of inherent jurisdiction under Section 151 of the
Code of civil Procedure to issue dynamic injunctions against re-directed or mirror websites.
The Defendant Websites failed to appear and rebut any of the factual assertions made by the
Plaintiff. No arguments were advanced by the ISPs, DoT nor MeITY who in fact unanimously
stated that they would be bound by the order of the Court.

ARGUMENTS BY THE PLAINTIFF

• Mr. Saikrishna Rajgopal, learned counsel for the plaintiffs stated that the infringing
websites named in the present batch of matters allow streaming‟ and downloading‟ of
copyrighted content of the plaintiffs, enabling the users to watch, download as well as share
copies of such works. According to him, the defendants‟ business model is supported by
revenue generated through advertisements, which are displayed on their websites.
• Mr. Saikrishna Rajagopal, learned counsel for plaintiffs contended that the substantial
purpose of the defendant-websites is to infringe or facilitate the infringement of copyright
of the plaintiffs.

ARGUMENTS BY AMICUS CURIUE

• He contended that the Court should not pass any orders against a website containing
legitimate content and thus, the onus was on the plaintiff who was seeking site-wide
blocking injunction to produce such evidence before the Court, which confirmed that the
 website complained of was only operating for sharing / downloading infringing/ pirated
content and was not limited to the plaintiffs‟ contents but also third parties‟ content.
• He stated that caution had to be undertaken as there could be a website which could have
both infringing content of plaintiff and legitimate content of third parties.
• He pointed out that there were at least 122 other movies of the plaintiffs on defendant‟s
website.
• He submitted that the three-step verification test evolved by the Bombay High Court in
Eros.International Media Vs. BSNL, Suit No. 751 of 2016, which consisted of verification
by an independent entity, extensive documents being placed on record and an affidavit on
oath, was not satisfied in the present case.
• However, Mr. Hemant Singh, learned Amicus Curiae admitted that online piracy was a
menace.
• He stated that the problem was compounded due to high end technology that was used by
FIOL.
• He pointed out that certain FIOLs like Torrents do not have a centralized server whereupon
files are stored.
According to him, Courts all over the world have considered the effect of over-blocking and have
held that in order to ensure proper balance between the implementation of blocking injunctions
and rights of the third- parties, it is essential to make sure that these blocking injunctions are
proportionate.
He admitted that the aforesaid measures of DNS, IPB and DPI blocking face challenges such as
legitimate contents being blocked, invasion of privacy, high cost of deployment etc. He submitted
that there was a serious concern associated with blocking orders that would prevent access to
legitimate content in the cases of copyright.
The learned Amicus Curiae relied upon the following case law:-
• UPC Telekabel v. Constantin Film, [Case C-314/12]
• Germany (2015): GEMA v Deutsche Telekom, BGH, Urteile v. 26 (GEMA),November
2015
• Germany (2018): Constantin Film Verleih GmbH v. Vodafone Kabel Deutschland GmbH
(2018)
Mr. Hemant Singh lastly contended that if the obligation of an ISP is limited to particular domain
names, it would make the whole issue of granting blocking injunctions pointless, since there exists
high likelihood of the infringers operating under a different domain name as soon as or even during
the time the injunction is granted.
Mr. Hemant Singh lastly contended that if the obligation of an ISP is limited to particular domain
names, it would make the whole issue of granting blocking injunctions pointless, since there exists
high likelihood of the infringers operating under a different domain name as soon as or even during
the time the injunction is granted.

Decision Overview

Manmohan, J of the Delhi High Court delivered the judgment. The central issue for the Court‟s
determination was to establish an effective solution to combat rogue or hydra headed websites
which multiply and resurface as redirect or mirror websites on being blocked.
The Court first delved into the issue of copyright infringement by the Defendant Websites.
Under Section 51(a)(i) of the Copyright Act, copyright infringement occurs when any person without
the authorization of the copyright owner exercises any right which is in the owner‟s exclusive
domain. It was an established case that the Defendant Websites were hosting copyright infringing
content. No exemptions of any kind were applicable in this case as the Defendant Websites were not
intermediaries in view of the fact that they directly uploaded content.
Although the present matter required no further adjudication of facts, however, in consideration of
the facts and the laws prevailing in different jurisdictions, the Court outlined several issues which
required determination.
In doing so, the Court rejected the views of „internet exceptionalism‟ i.e. ideology which believes
that the internet space should be left completely unrestricted was unacceptable. Even though the
infringement benefitted the consumers, the benefit from such infringing acts directly accrued to
the pirated websites which thrived and capitalized on advertisements that surfaced on such their
websites, without having any motive of providing free content for social good.
Next, the Court considered whether blocking of a website dedicated to piracy was in opposition to
a free and open internet. The Court held that just as constitutional freedoms are regulated under
reasonable restrictions; appropriate lines may be drawn to restrict access to infringing websites by
creating a fine balance between freedoms and rights of all stakeholders.
Next, the Court elaborated the concept of rogue website .Rogue websites are those which primarily
or predominantly share infringing content. The Court noted that music and film piracy are
primarily facilitated on the internet by rogue websites. For ascertaining a rogue website, the Court
enlisted certain factors which include inter alia, whether the website primarily aims at copyright
infringement, takes appropriate action after receiving takedown notice with regard to copyright
infringing content, there is significant volume of traffic received by the website, and posts
guidelines on the website to circumvent measures that disable access to the website on the grounds
of related copyright infringement, etc.

The Court then delineated the test for determining a rogue website. Two contrasting tests that are
globally recognized in the determination of a „rogue website‟ are juxtaposed. The Court, in
adopting a test befitting to the Indian context, has analyzed two opposing views which have been
adopted by the Indian courts on earlier occasions. The Bombay High Court in Eros International
Media Ltd. & Anr. v. Bharat Sanchar Nigam Ltd. & Ors. Suit No. 751 of 2016, had held that
blocking injunctions against entire websites could be passed only on the furnishing of proof by the
Plaintiff demonstrating that the entire website contained only illicit content. The Bombay High
Court formulated a three-pronged verification test which was to be followed by a court in matters
where blocking orders were sought. Contrary to this, the decision of the division bench of the Delhi
High Court in Department of Electronics and Information Technology v. Star India Pvt. Ltd. 2016
SCC OnLine Del 4160, which has been ultimately relied upon in the present decision, adopted a
more practicable, qualitative approach in determining a rogue website as one which is
overwhelmingly infringing. The Court held that the quantitative test in adopting a three- step
verification standard is overtly onerous and burdensome on the copyright owners, primarily in
cases where websites change the URLs on being blocked. In such a situation it would be a
herculean and almost impossible task for the copyright owner in identifying each offending and
infringing URL.
Accordingly, the Court concluded that the Defendant Websites were rogue websites. The Court
held that a blocking injunction order against the entire website is permissible however, in doing
so, courts must be guided by proportionality. The onus is on the right holders to prove to the
Court‟s satisfaction that each website which is sought to be blocked is a „rogue website‟, primarily
engaged in facilitating the widespread copyright infringement.
In the last segment, the Court, in exercise of its inherent power under Section 151 of the Code of
Civil Procedure, 1908 has espoused the concept of dynamic injunction. Drawing its inspiration
from the Singapore High Court‟s decision in Disney Enterprise v. MI Ltd. (2018) SGHC 206 and
international developments on the subject matter, the Court adopted the relief of dynamic
injunction which essentially aims to block new means of accessing the same infringing website. A
plaintiff can avail the blocking injunction against a new website by filing an additional affidavit,
giving the court an explanation as to how a new website is within the purview of an existing
blocking order.
 The Court granted a permanent injunction in favour of the Plaintiff, along with awarding the cost
of the litigation. The Court, therefore, recommended that DoT and MeITY should frame a policy to
issue warnings to the consumers watching infringing content. In the event that viewers continue to
watch the infringing content, then fines may be levied against such viewers.
Questions Answered:
 Whether the infringer of the Copyright on the Internet and in the physical world is to be given
the same treatment?
The Court opined that there is no logic in treating the two categories as different as their
motives are the same and in crime, motive is essential rather the place of crime. Further, it
was observed that no such distinction is made by the Copyright Act.
 Whether blocking a website which is dedicated to piracy amounts to opposing the free and
open realms of the Internet?
The Court observed that “the question is not whether the internet should be completely free
or whether government should have censorship authority.” But it is a matter where an
appropriate line for the balance of interests should be drawn and implemented. And the
motive of pirated websites is not to provide free content but to gain monetary benefits from
excessive advertisements. Thereby, answered in the negative.

 Whether the Court would be justified in their directions of blocking the Rogue Website?
The Court opined that it is totally justified as the injunction order promotes the interest of the
public at large but it shall be “fair, proportionate and effective as per the circumstances. It
shall not create a barrier for legitimate trade.”

 What shall be the approach of the Court in dealing with these websites, which upon being
blocked, may resurface and multiply as mirror websites?
• For analysis of this issue, the Court took into consideration the judgment of the Singapore
High Court in Disney Enterprises Inc. v. M1 Limited. The court held that this injunction
order shall be extended to every mirror website as it would provide the same access with
the same motive as the original one. Then only the purpose of the injunction would be truly
achieved.
2. Tips Industries vs Wynk Music:

Issue:
Whether there exists a statutory licensing scheme under the Copyright Act to online streaming
services?

Background:

The dispute centers around section 31D of the Copyright Act, 1957 which provides for statutory
licensing scheme, as whereby any „broadcasting organization‟ desirous of
„communicating to the public‟ any sound recording, can obtain a statutory license to do so,
provided they pay royalty rates to the copyright owners at rates fixed by the Intellectual
Property Law Board.

Facts:

Tips Industries Ltd (Plaintiff) is an Indian music label that exercises copyright over a significant
music repository that, in 2016, granted Wynk Music Ltd (Defendant) license to access this
music repository. At the expiry of the said license both the parties attempted to renegotiate the
licensing conditions but failed to do so and hence Wynk took refuge by invoking Section 31D
of the Copyright Act. Tips challenged Wynk‟s invocation of Section 31D, and prosecuted
Wynk pursuant to Section 14(1)(e) for breach of their exclusive rights of sound recording.

Judgement:

After hearing the contentions of both the parties the Bombay High Court came to a conclusion
finding Wynk to be guilty of direct infringement on two counts –

1. To offer the copyrighted work under section 14(1) (e) (ii) which allowed the users to
download and listen to the plaintiff‟s work offline and

2. Under section 14(1) (e) (iii) for communicating the plaintiff‟s works to the users via their
streaming service.

In addition to that the Bombay High Court sought this opportunity to clear out the air regarding
the ambiguity that existed with respect to online streaming services falling within the scope of
Section 31D:

1. Under Section 31D of the Copyright Act, „Download / Purchase‟ of copyrighted works is
not covered. Wynk Music permitted the users to download and store copyrighted music for
unlimited future use which instituted to be a „sale‟ and not „communication made to public‟
which constitutes as a „broadcast‟ for the purposes of Section 31D and hence there exists
no claim for statutory license for the use of such copyrighted work by Wynk Music.
 2. The application of Section 31D of the Copyright Act does not include Internet broadcasting.

The case of the defendant was based primarily on the presumption that Section 31D covered
Internet streaming services under‟ radio broadcasting‟ as described in a 2016 DPIIT office
circular, given that‟ radio broadcasting‟ included‟ internet broadcasting‟ under Section 31D.

The Court had an opposing view which resulted in the rejection of the interpretation put forth
by the defendant.

The Court found Section 31D to be an exception to copyright which ought to only be strictly
interpreted. Upon careful examination of the statutory scheme of 31D and the rules
accompanying it, it becomes apparent that statutory licensing was intended to only cover radio
and television broadcasting and not internet broadcasting. After examining the history
associated with Section 31D, the court derived that, despite the global existence of internet
streaming services when the Section was inserted through an Amendment Act of 2012, the
legislation even though being aware of it omitted to include internet streaming services from
the ambit of Section 31D. In addition to that, the memorandum presented by the defendant does
not contain any additional weightage of their claim as a memorandum only acts as
„guidelines‟ and lacks statutory authority and therefore has no influence to the extent of their
claim.

The judgement was passed in the favour of the plaintiff and the court held that the plaintiff was
entitled to interim injunction, having regard to the reality that they had made a prima facie case,
would suffer irreparable harm in the way of lost revenue.

IV. Conclusion:
 • It would be wrong not to mention that indeed several efforts have been made on both
International & National levels in ensuring a better law to safeguard the interest of a creator.
But still, it has to match the pace of the digital dominion.
• The digital world grows much faster than the law enforcement agencies. It is no solution
for an individual nation to make laws on personal levels.
• There still remains an abundance of doubts & queries regarding the formation and
implementation of laws in the digital domain and that can be achieved if every national law
in this respect is harmonized with international standards.

The time for efficient trending laws is a long way ahead. At present, the time is of “Emerging
Problems of Digital Copyright Law.”
References

1. https://www.lawinsider.in/utv-software-communication-ltd-ors-vs-1337x-to-ors/
2. https://www.researchgate.net/publication/323969302_Emerging_Trends_in_%27Digital_Enviro
nment%27_Under_The_Indian_Copyright_Regime%27

3. https://www.sonisvision.in/blogs/post/emerging-trends-in-digital-copyright-law

4. https://bnwjournal.com/2020/09/15/emerging-trends-of-digital-copyright-law-in-india/

5. http://lawtimesjournal.in/emerging-trends-digital-copyright-law-
india/#:~:text=The%20copyright%20law%20in%20historical,be%20the%20legacy%20o
f%20technology.&text=The%20copyright%20law%20had%20to,of%20making%20suc
h%20works%20public.

6. http://docs.manupatra.in/newsline/articles/Upload/50DDCF24-66B8-4403-B815-
08A1CDEB5EDA.pdf