Legal Essays and Articles

  • Article Posted By: Anitha Posted on : 7/2/2017 12:00:00 AM

    Copyright infringement in Cyberspace

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    Copyright violations have become rampant since the advent of cyberspace and the development of related information technologies. Numerous factors like ease of sharing digital content, low cost of distribution and download, lack of supranational authority to regulate, difficulties in tracing violators, uncertainties in determining jurisdiction over infringing acts, etc., have contributed to increasing copyright infringements.

     The advent and growth of Internet has resulted in the creation of an unruly and anarchic space called the cyberspace, which poses extremely serious threats to copyrights. Threats to copyrights existed even before internet, however, they have manifested at alarming levels since the advent of World Wide Web (WWW). The increased levels of copyright threats in cyberspace could be attributed to some of the unique characteristics of the Internet, the new possibilities it creates and its unprecedented growth worldwide. For example, the ubiquitous nature of Internet often makes it difficult to trace or attribute copyright violations to a particular jurisdiction.

     Internet is a two edged sword for business fraternity. On the one hand, business firms look for greater development of network technologies in order to increase the viability and quality of digital content delivery. On the other hand, the growth of the very technology has resulted in increased levels of violation of their Intellectual Property Rights (IPR). For example, increase in broadband speed, while enabling faster and efficient delivery of digital content increases the risk of widespread copyright violations. Development of related technologies like bit torrent in a broad band environment enables unauthorized high-speed and simultaneous multi-source transfers of large amounts of data. Such technologies, while offering new opportunities for businesses, have the potential to act as a tool for flagrant copying and illegal distribution of copyrighted materials.

     As network and internet technologies continue to evolve, the magnitude and multiplicity of IPR violations continue to grow. In spite of copyright threats and other challenges that remain, Internet is hailed as one of the best innovations since the industrial revolution and an indispensable business channel for the future. Research as well as experience shows that internet is inevitable for various walks of life including business operations. Under such circumstances there are increasing calls to seek solutions to the growing copyright threats rather than to quit cyber space.

    Copyright infringement and Cyberspace ethics:

    There is a very strong relationship between Copyright Infringement and Cyber ethics. When we talk about elements of copyright, and their aspects and other issues in copyright and the factor that could be elements of crime and according to the Copyright Act 1987 , we find that everything related to this issue is coming from irresponsibility and disrespect others. The “Others” means people who have ownership and Intellectual Property. If users do not respect right of others, copyright Infringement happened. This is directly related to the Cyber Ethics.

    How users think without any effort and only with two actions (Copy-Paste) they can use result of others. Maybe these results and researches are making during the many years and author tried hard to make them, but someone comes, theft his or her long and valuable effort. In this story Law has a very strong role to shape and support authors and their authorship.

    Cyber Ethics can help users to attention the point. First respect endeavor of others and second knows about Laws and rules. Ethics can prevent infringement before people want to go to the criminal way even this crime is only copy of one word!!

    The Existence of Copyright Infringement on the Internet

    Electronic Copying Can Infringe a Copyright:

     As we saw, things that are written down electronically are just as protected by copyright as things that come out on paper. Likewise, copying something in cyberspace can be just as much an infringement - assuming the copyright owner doesn't allow you to do it - as copying something on paper:

    • If you download an article from a newspaper website and forward it to a news group, you've made copies, which might be infringements.
    • If someone saves your e-mail in an archive, he's made copies, which might be infringements.
    • If you quote someone's newsgroup post in your response to the post, you've made copies, which might be infringements.

     In some of these situations, the copies might be legal, either because they are EXPLICITLY ALLOWED by the copyright owner (you might have seem some online documents which specifically allow readers to copy them), because they are FAIR USES or, because they are allowed by IMPLIED LICENSES.

    But they are definitely copies, and therefore potential infringements:

    • If a work is COPYRIGHTED (which, as we saw, is an easy hurdle to jump),
    • and you've made a COPY of it (which we'll talk about more below),
    • and you weren't authorized to do so -- authorized by the copyright owner's express permission, by an implied license, or by the fair use doctrine -
    • then you've violated the copyright law.

     Extent of Copyright Infringement:

    Copyright is becoming of great importance to the economies of the largest countries in the world. For example, in 2001 the U.S. earned almost $89 billion from exports from its major copyright industries (primarily the Movie and Music industries). Copyright Industries are responsible for 5 per cent of the America*s GDP. Therefore protecting this lucrative commodity is of vital importance. In relation to file-sharing, copyright infringement occurs primarily to the detriment of the Music Industry and Movie Industry.

    1. Music:

     The copying of music over the Internet, in relation to MP3 and file sharing programs is perhaps the most contemporary example of the problem that this article investigates:

     'Indeed, no single Internet-related dispute exemplifies the nature and extent of the current regulation debate more completely than the MP3 controversy'.

     The scale of the copying of music is staggering. In January 2001 alone, 2.7 billion songs were downloaded through a file-sharing program called Napster. In the same year, the value of the global music market fell by 5 per cent. The International Federation of the Phonographic Industry (IFPI) attribute this fall to Internet infringement. However, the operators of file-sharing programs blame a dip in the global economy. It is uncertain at this point which side is correct. However it is clear that copyright infringement in music is a serious problem that the music industry has been fighting for some time. Although the music industry is succeeding in many lawsuits brought against file-sharing operators, it has yet to win the war.

    2 Movies:

    The copying of movies has not been regarded as a problem until very recently. Until the introduction of high-speed Internet connections and the Divx compression standard, movies were considered too large to copy across the Internet and would take many days should anyone attempt it. This breathing room for the Movie Industry has now ended: 'The sharing of files containing pirated movies may still be in its infancy, but 300,000-500,000 feature films are already being downloaded daily, according to Viant, a consultancy. Copies of new movies are available on the Internet prior to their release in cinemas. For example, it has been reported that the movie 'Star Wars Episode II: Attack of the Clones' was available for download six days before its worldwide release.

    It should be noted that although infringement is rife in most major industries that rely on copyright protection, the situation is reversible. Authors are still creating new content and there is no evidence that they are yet being deterred by online infringement.

    Copying as a Social Norm:

     The mind of the average infringer will be considered to understand why current law is proving, for the most part, ineffective in deterring people from copying on the Internet. 'Once copyright works are widely distributed over the Internet, the conspiratorial interests of the pirate and the consumer blend seamlessly together’. Average Internet users do not regard copying as a crime. It is certainly a crime without any direct victims. It is also incredibly unlikely that an individual user will be caught for her actions. With the millions of users requesting data over the Internet every day it is difficult to police the actions of those that are infringing copyright. 'To prevent illegal copying' one would have to exercise wide surveillance powers and regularly burst into people's homes and other private spaces. The Internet user is, for the most part, anonymous. However to think that the problem lies in opportunistic criminals is naive:

     The under-thirty generation has grown up being able to freely expropriate intellectual property easily and at little cost. As college students, how many of them bought most (or even some) of the software on their computer, rather than "borrowing" it from their folks or from a friend down the hall? How many of them put together a compilation tape of their favourite songs? How many of them made a cassette tape of someone else's music album?

    A generation of society are used to recording programmes from television broadcasts, keeping home video libraries, copying audio cassette tapes from friends, borrowing software, even photocopies entire books (perhaps when they are unavailable elsewhere, in the case of out-of-print editions). The law has had little choice but to allow this private copying: 'A prohibition of electronic private copying in the narrow sense is impossible to police, will be breached on a massive scale, and may even render the legislator himself ridiculous'.

    This generation enters the Internet and is completely at home with the ethos of copying. The Napster generation did not suddenly become infringers when they obtained Internet access. For them it was a natural progression from home video taping and the private copying of audiocassette tapes. Copyright-reliant Industries have made some attempts at re-educating people in the value of copyright and why it must not be infringed. 19 However these efforts are contradictory to other Industry practices such as the alleged monopolies in Audio CD sales where Albums are being sold at an unnecessarily high price. 20 If the general public believe that they are not paying a fair price for the goods they are buying it is not surprising that they turned to other, cheaper, means of obtaining what they wanted. On this reasoning it would be appropriate for other industries to reduce their prices so as to draw back consumers. However, one reason given for the high prices of CDs and computer software is that pirated copies, which reduce revenue, force producers to maintain high prices or even increase them. It is clear, therefore, that an alternative solution is necessary to break this deadlock.

    The Internet vs. copyright law

    The following features of the Internet pose particular difficulties for copyright law:

    Information may be easily and cheaply reproduced and distributed:

    Once information is in a digital form on a computer connected to the Internet, unless access is somehow restricted, the information can be easily downloaded, manipulated and distributed. For example, an individual user can download a complete article from the World Wide Web, cut and paste large parts of the article into a longer article, and attach the resulting material to an e-mail sent to a mailing list.

    Information may be reproduced and transmitted without degradation:

    The analogue world is characterized by a certain amount of “friction”. In other words, there is degradation in the quality of copies made by photocopiers, tape recorders and other machines that make analogue copies. Similarly, analogue broadcasts are subject to interference during transmission, resulting in imperfect reception. Information encoded in digital form may, however, be reproduced and transmitted without any degradation in quality. Thus, a computer that reproduces the “bits” in which information is digitally encoded produces something that is indistinguishable from the original. Moreover, digital information may be transmitted without degradation because “bits” may be added to the information to correct errors arising during transmission. This means that:

    The first generation and the 1000th generation copy of digital material are indistinguishable. Since each copy is a perfect copy, no quality- related limits inhibit pirates from making as many copies as they please, and recipients of these copies have no incentive to return to authorized sources to get another copy equal in quality to the original version.

    The Internet is global:

    The Internet allows for the seamless transmission of information across legal boundaries. Although international agreements, such as the Berne Convention, impose a degree of international uniformity, there remain significant differences between different national copyright laws. This creates difficulties in determining which law to apply to a particular activity. Moreover, it may be difficult or costly to locate, and bring enforcement actions against, an infringer in another part of the world.

    Internet users may act anonymously:

    It is impossible to be completely certain of the identity of an individual Internet user. Furthermore, there are techniques, such as anonymous remailers, that are designed to maintain the privacy, and anonymity, of Internet users. Users may therefore infringe copyright with little real risk of detection, especially if the infringements are relatively small-scale and non persistent.

    The Internet allows information to be hidden from users:

    The digitalisation of information creates many possibilities for hiding information. On the one hand, techniques such as encryption, may make some infringements difficult to detect. On the other hand, techniques such as steganography, enable copyright owners to encode hidden information into material which is designed to enable infringements to be detected. Increasingly, the balance between incentives and access may be established through the use of hidden information.

    Internet users expect free access to copyright material:

    Much copyright material published by means of the Internet has been made available free of charge. This has created resistance among users to paying for Internet material. In short, technologies that have enabled users to make “private” copies of copyright-protected material have entrenched norms against paying for individual infringements.

    The development of Internet business models that do not depend upon charging for intellectual property rights has reinforced expectations that information available on the Internet will be free. These business models are, in the main part, based on cross-subsidising the creation of copyright material by the sale of other products, including advertising, sponsorships and market information.

    Taken together, these features of the Internet mean that there are substantial obstacles to copyright owners seeking to enforce their rights in relation to material distributed by means of the Internet.

    Measures to avoid infringement on the internet

    Step 1

     “Understand the scope of copyright law”. It does protect literary works, paintings, photographs, drawings, films, music (and its lyrics), choreography, sculptures and many other things. It generally doesn't protect the underlying ideas, and it does not protect facts. For example, copyright doesn't prevent you from expressing in your own words ideas and facts found in a book or journal you read (but you should always give appropriate credit to the sources in which you found them; it is common courtesy to do so, and not doing so could constitute a violation of the Copyright Act as what you have created may constitue a derivitive work pursuant to the Copyright Act, unless you have obtained license or permission from the copyright holder to create the same. It may also constitute plagiarism under state common law.

    Step 2

    “Don't take anything from the Internet, or anywhere else, because it is almost always copyrighted, by default”. I found it on the Internet" is not a defense against copyright infringement; works on the Internet are as copyrightable as any other kind of work. Nor is "it didn't say it was copyrighted.  In nearly all jurisdictions, including the United States, and all other Berne Convention signatories, it is not necessary for a work to have an explicit copyright notice for it to be copyrighted. It is also not necessary for copyright in a work to be registered; this simply makes it easier to be compensated in court. Without an explicit dedication to the public domain, assume that it is still under copyright.

    There is a quirk in the United States' implementation of the Berne Convention: works first published before 1978 without a copyright notice may be public domain in the United States. Works published under copyright notice are no longer covered by copyright after 75 years. They become public domain material. Works published by the US Government are public domain no matter when they were published.

    Step 3

    “Don't confuse copyrights, trademarks, and other forms of "intellectual property”. The term "intellectual property" itself, and the kind of thinking it encourages, has led to these very different things being confused with each other. Trademarks, for example, forbid using certain words, marks, symbols, and so on within certain contexts, to protect consumers from misrepresentation. Copyright would not prevent you from, for example, writing some new text editor software and calling it "Microsoft Text Editor", but trademark law would.

    Step 4

    “Be creative”. If ever you wonder whether a certain action would infringe on the copyright of someone else, the question to ask is: is this a creative work on my count, or am I simply drawing from the creativity of someone else? Lunches, as any economist would tell you, are not free. Some examples:

    1. Scanning something yourself does not, by itself, give you a new copyright over anything. You cannot scan a photograph from, say, a magazine and then put it on the Internet; the copyright would still reside with the author of the work. The flip-side of this is that scanning a work which is in the public domain would not, in many jurisdictions, give you the copyright over the resulting scan.
    2. Taking a screenshot of a video or a computer program does not generate a new copyright. The copyright in the resulting screenshot would still be held by the copyright holder of the original video or computer program.
    3. Some non-creative things are not copyrightable, for example, a plain text logo in a generic font. Neither are simple geometric shapes. But don't rely on this unless you are certain.

    Step 5

    “Learn about the public domain laws for your jurisdiction”. "Public domain" is short-hand for "uncopyrighted", not "publicly distributed". A work can be out of copyright due to age, by the nature of authorship, or other reasons. In the United States, all works authored by a federal government (not state government!) employee during the course of their official duties are public domain, as are all works published before 1923. Works first created in the European Union will usually be copyrighted until 70 years after the death of the author.

    Step 6

    “Don't rely on "fair use" Called "fair dealing" in many jurisdictions, fair use is simply a guarantee that copyright laws do not infringe freedom of speech and make critical commentary impossible”. Some uses of text under "fair use" are teaching, critiques, comments, reporting, and research. It permits, for example, limited quoting of copyrighted material. In some jurisdictions, it would allow creating a copy for personal use (such as a backup). It is not a blank cheque granting you a right to do anything at all and call it "fair use". Fair use is an extremely complex body of case law; it is often very difficult for non-lawyers to tell in advance whether or not a certain use will be considered fair use in court.

    Step 7

    “Be wary about writing fiction based on other works”. It was said above that "ideas cannot be copyrighted". However, fictional characters, story-lines, and settings can be copyrighted (insofar as they are original). This means that fan-fiction, drawings of characters from copyrighted works, and so on are all technically copyright infringements.

    The future of copyright in India

    The copyright laws in India are set to be amended with the introduction of the provisions for anti-circumvention and Rights Management Information in the Indian copyright regime although India is under no obligation to introduce these changes as it is not a signatory to WCT or WPPT.

    "Copying a book is similar to stealing somebody's jewellery. Large scale organized copying is like robbing a jeweller's shop or a bank. But then, there is a major difference. In the case of a bank robbery the newspapers are full of sensational news and the whole might of the State, especially the police, jumps in to catch the culprit, there is pressure of public opinion even on the judge trying the case. The effect is electric.

    "The copyright does not protect the idea but it does protect the skill and the labour put in by the authors in producing the work. A person cannot be held liable for infringement of copyright if he has taken only the idea involved in the work and given expression to the idea in his own way. Two authors can produce two different works from a common source of information each of them arranging that information in his own way and using his own language. The arrangement of the information and the language used should not be copied from a work in which copyright subsists."

    Before I conclude, I must make it clear that there is not much piracy of books in India. By and large, to save their business interests, publishers and distributors try to enforce copyright to the best of their abilities. Yet, piracy hurts them hard because the books which get pirated invariably are the few with good margin and high demand. Deprived of the profits from such bestsellers the book industry starved of the much needed capital for growth and investment in literary works of significance but low sales potential, especially by up-coming authors. Harsher measures are therefore needed to curb piracy.

     Another area of copyright infringement which needs to be tightened up relates to protection of author's rights vis-a-vis the assignee or the licensee. There is need to develop a model contract, too, which should also provide protection for the author's rights in the fast changing scenario of electronic publishing, Internet, etc.


    The growth of Internet, especially the World Wide Web (WWW) has created a new cyberspace for copyrights exploitation. The analysis of copyrights in cyberspace reveals a mixed result of new opportunities and threats. Cyber technology had offered new ways of commercialization or exploitation of copyrights by business firms and individuals. These new ways have enabled greater scope for global expansion and market reach around the world, promising huge potential for generation of revenue or other means of returns. However, these new opportunities pose parallel threats many of which even undermine the very rights of the copyright holders. The magnitude of threats is unprecedented with the technological feasibility making it possible not only for easier piracy but also for easier distribution of such pirated works to masses by a click of a button. Such threats often outweigh the opportunities offered by the cyberspace, and this calls for increasing regulation of cyberspace to protect copyrights.

    The present cyber anarchy has created a range of legal challenges to regulators. The ubiquitous nature of Internet has made many of these challenges international in nature, calling in international copyright regimes for greater regulation of cyberspace. The cyberspace, as such is unregulated and various transactions carried out in the Internet surpass the national regulatory controls. The technological feasibility to surpass national governments or regulation causes doubts as to the effectiveness of any single domestic regime or a select group of domestic regimes to regulate the cyberspace. Moreover, many of the domestic copyright regimes are relatively new ones and as such may be ill-equipped to address copyright in cyberspace. This calls for increased international co-operation for the regulation of cyberspace including the protection of copyrights.

    Many of the new forms of transactions in cyberspace are highly technology oriented and any legal efforts to regulate the same have to go hand in hand with the technological growth. Law and technology, needs to combined for effective solutions for many of the cyber space challenges including those related to copyrights. In the context of copyrights many legal principles need to be developed or settled to determine the legality of the transaction in question. Many such pertinent questions related to copyrights in cyberspace have to be clearly settled at an international level. Lack of internationally agreed principles relating to copyrights in Cyberspace gives room for divergent domestic standards.

    The continued evolution of cyberspace and the rapid growth of cyber technology create a state of flux, prompting a delay in legal response. There are also debates as to the potential of existing international regimes versus the need to create new regimes to address copyrights in cyberspace. Also mindful are the need to Balance the conservation of online technological advantages versus the urge to regulate copyrights in cyberspace. The urge to develop regulatory regimes of copyrights in cyberspace is also hindered by the cyber Divide existing between the developed and the developing world. The entire complex set of cyber copyright Issues indicates a range of potential challenges in developing international principles to protect copyrights in cyberspace. An introspection of major forms of IPR in cyberspace reveals that copyright will continue to be the most relevant and controversial IPR in cyberspace.



    Anitha Pyla (Advocate)

    (L.L.M, PGDCL)


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