|
The paper looks at the different kinds
of content available for mobile and internet
and copyrights herein. A few of them are:
WalIpapers: A wallpaper is an image
used as a background on a computer screen.
Wallpapers for the mobile phones are an
extension of this term and could qualify
as an artistic work for copyright protection
notes the Paper. The right to a copyrighted
pictorial, graphic, or sculptural work in
copies includes the right to reproduce the
work in or on any kind of article. Therefore,
the right to create a "wallpaper"
of a painting, for example, would lie with
the artist that created the original painting
or the subsequent owner of such a right.
The Paper offers the case of the Daily
Calendar Supplying Bureau vs. United Concern.
The Court, when examining the copyright
in a picture of a Hindu deity in a human
form, found that ideas cannot be copyrighted
but the skill and originality of thought
and form of expression can be. Therefore,
a "wallpaper," where the artistic
work shows "skill and originality of
thought and form of expression" could
qualify for copyright protection and can
be exploited by the original author or the
owner/licensee of the copyright. Further,
under existing law a "wallpaper"
may be protected as a derivative work if
it consists of a contribution of original
material to a pre existing work so as to
recast, transform or adapt the preexisting
work.
It should be noted that in order to qualify
for a separate copyright as a derivative
work, the additional matter injected in
a prior work or the manner of rearranging
or otherwise transforming a prior work,
must constitute more than a minimal contribution
.
Some websites that provide downloaclable
wallpapers bring to the notice of customers
that the sites contain wallpapers that are
copyrighted, and cannot be distorted or
distributed without prior permission. When
sections of a film or other artistic work
are used as wallpapers they would need to
be authorised by the original copyrights
owner. Any use in contravention of these
provisions would amount to infringement.
iTunes: As readers probably know
downloads from Apples' iTunes online music
store is a popular source of purchasing
legitimate content which will now be available
on certain mobile phones. The problem is
that control of copyright on content downloaded
from this site or similar sites is difficult.
Initial downloads are monitored by digital
rights management systems.
However, there is very little control
on subsequent copies. iTunes does place
contractual obligations on its users, and
its terms of usage restriction on access
and download from the site, which include
that their "Products" may be used
only "for personal, noncommercial use",
on "five Apple authorized devices at
any time." The user is further entitled
to "export, burn (if applicable) or
copy Products solely for personal, noncommercial
use" and is explicitly "not entitled
to burn Video Products." In addition
the user is "authorised to burn an
audio playlist up to seven times" and
can "store Products from up to five
different Accounts on certain devices,
Similar contractual restrictions are found
on some other sites, but the challenge lies
in the enforcement and monitoring of such
restrictions. An Indian court might uphold
such restrictions and grant relief provided
the owner could prove infringement. Other
service providers, including mobile operators
could introduce such contractual obligations
but are likely to find it difficult to enforce
and monitor.
Ring Tones : Many portals and cellular
operators offer ring tones and caller tunes,
but whether all of them offer licensed products
is questionable. Since many of these ringtones
are music notes of the original songs, the
service provider needs to take the permission
from the concerned company or the person
under the Copyright Act. Anyone providing
them without the consent of the "rights
owner" does so illegally.
Sound recordings of the original track
to be used as ringtones would require licensing.
The offer of "samples" of sound
recordings by cellular operators to customers
may require different treatment. Since this
allows a customer to 'sample' or 'try out'
the product before purchasing it. An analogy
in the physical world would be that of a
shop that offers several products and allows
its customers to pick up, touch or feel
objects before he/she makes a purchase.
Whether such "samples" should
be subject to licensing or not is the matter
of great concern to mobile phone operators
and other service providers.
In addition, "samples" created
so that they can be only heard on a computer
with a sound card and the full version of
the ring tone can be downloaded only after
paying for it might be a viable solution.
This would, of course, limit the market
penetration due to the disproportion between
the number of mobile users and the lack
of access to computers for many of them.
Mobile Phone Games: These are usually
downloaded via the mobile operator's network,
but sometimes via other technology. Games
are developed using various computer related
technologies and software programming, in
conjunction with different hardware and
vivid graphics. The artistic graphics, which
add to a Game's appearance, is an important
part of its success. Copyright does not
protect the idea or concept behind a Game,
nor does it protect the information as to
how the Game is to be played (although it
may protect a particular written expression
of such rules). Ideas, information and styles
are not protected by copyright. However,
the underlying software and the graphics
of the game would be entitled to copyright,
as literary and artistic work respectively.
Under the Copyright Act as amended in 1994,
"Literary work" now includes computer
programmes, table and compilations including
computer data bases. According to section
14 of this Act, it is illegal to make or
distribute copies of copyrighted software
without proper or specific authorization.
These rights are only available to the owner
of the copyright. The only exceptions provided
by section 52 of the Act, which allows a
backup copy purely as a temporary protection
against loss, distribution or damage to
the original copy and certain "non
commercial personal use." In view of
this any unauthorised uses or downloads
of Games would amount to infringement of
the owner's copyrights as a literary and/or
artistic work.
Of course, there are several issues linked
to the very 'mobility' and transferability'
of the medium mobile phones. When Games
can be permanently saved on mobile phones,
and the phone is sold to another individual
the Game would also be transferred, thereby
adding value to the mobile phone. Will this
amount to 'non commercial personal use'?
Under US law this might be covered by the
'first sale doctrine,' which allows the
purchaser to transfer (i.e. sell or give
away) a particular, legally acquired copy
of protected work without permission once
it has been obtained.
The first sale doctrine on whether this
privilege should be extended from physical
to digital goods has been actively debated
in the US. This was further analyzed by
the US Copyright Office, in a study required
as part of the 1998 Digital Millennium Copyright
Act (DMCA). The DMCA did not extend the
first sale doctrine to digital content per
se but even the US law regarding sale of
devices with copyrighted content remain
ambiguous.
Fife Sharing: The Paper notes that
file sharing on the Internet is rampant
in India. With the enhanced availability
of broadband this is likely to grow. The
liability of Internet Service Providers
(ISPs) for copyright infringement is not
expressly covered by the Indian Copyright
Act. The Indian Information Technology Act,
2000 exempts ISPs from liability if they
can prove that they had no knowledge of
the occurrence of the alleged act, and that
they had taken sufficient steps to prevent
a violation.
However, if the ISP fails to take steps
within a reasonable time to remove the infringing
material from the network or fails to prevent
infringement of copyright in the above circumstances
he may not be entitled to the plea of ignorance
of infringement.
Last year while ruling in the famous Grokster
Case, the US Supreme Court had exposed the
file sharing companies to potential liability.
It ruled that they were found to intentionally
induce or encourage the theft of copyrighted
works and could be held liable .24 Following
this decision, the US entertainment industry
sent notices last fall to seven file sharing
software companies warning them to shut
down or prepare to face lawsuits. Some services
shut down while others settled with the
entertainment industry with a view to launching
similar licensed services.
Ripping: Generally, an individual
that makes a legal purchase of copyrighted
material, like a CD can legitimately use
the contents of that CD on any CD player.
The very nature of the medium permits its
use on devices like PCs that make many copies
of the digital information carrying the
material as an individual listens to music
or uses other content.
Is this automatic copying infringement?
Whether any copies of the material on the
CD made on a laptop, PC, or iPod for his/her
personal rule is unlicensed use or not remains
unchallenged at present. It seems that as
long as the material is used for the individual's
benefit it would be licensed. However, when
the same individual uses that material for
commercial gain, to a larger audience, it
would seem to be unlicensed use.
The Paper adds that it is not correct for
users to presume that, when one buys a CD,
one has bought a license for the music on
the CD. Instead, the buyer has only acquired
the ownership of a tangible copy and everything
else he/she does with that recording may
fall under some form of fair dealing, if
confined to the individual user.
Then there is the question of reusing old
recordings with technologies that were not
contemplated at the time when the original
was recorded on another medium like vinyl.
One may wish to copy analogue content, already
paid for, onto an iPod or to a mobile phone.
Does one need to purchase it again from
iTunes even though one might have paid for
it several times on different media?
Converting it from analogue to digital
can be quite tedious and to have it done
professionally may be expensive. The convenience
of downloading digital content from iTunes,
or similar portals, might encourage the
purchase of the content once again even
though one owns an analogue copy.
Suggested Changes: The Paper states
that copyright is a balancing act where
public interest safeguards, the idea expression
dichotomy and the fair use privilege need
to be balanced with the right itself. In
view of this certain changes to help protect
these rights and to allow the public to
have access to copyrighted work in an equitable
manner are needed.
To help protect rights, India could pass
preemptive laws in keeping with the European
Union Copyright Directive (The EU Directive)
which provides for the protection of "rights
management information", which is metadata
such as identifying "watermarks"
which is combined with a work whereby the
EU Directive prohibits the removal or modification
of rights management information.
However the controversial fallout of this
is that as the tracking information monitors
illegal users there are issues of infringing
user privacy, as it would be illegal to
write or use software to strip out the information
in an attempt to preserve the user's privacy
rights. India will have to balance these
issues when considering similar legislation.
In addition, India could emulate the Technical
Protective Measures under the EU Directive,
which requires member states to provide
adequate legal protection against the circumvention
of any effective technological measures
that are introduced with the objective of
protecting copyrights.30 A measure is deemed
to be "effective" if the use of
a protected work or other subject matter
is controlled by the rightholders through
application of an access control or protection
process, such as encryption, scrambling
or other transformation of the work or other
subject matter or a copy control mechanism,
which achieves the protection objective.
Another recommednation is to increase the
penalty levied in the case of copyright
infringement. In the US penalties levied
are far higher. Along with a notice of copyright
ownership, required by the Copyright Act
'32 it might be a deterrent to include information
about penalties and criminal punishments
applicable to copyright infringement, similar
to those that are required by federal law
in the US. On US DVDs for instance there
is an FBI warning at the beginning.
To protect public interest, Indian law
could introduce flexible provisions to govern
fair use. The US courts have used principles
of 'fair use' in the interest of promoting
copyright's overall policy goals and is
not rigidly applied; instead the four factors
are applied in a balanced fashion on a case
by case basis to arrive at an equitable
result. A flexible application of 'fair
use' instead of the present list of rigid
provisions pertaining to 'fair dealing'
under the Indian Copyright Act, 1957, might
lead to a more equitable balance of copyrights,
their use and ownership. For example a 'fair
use' of "samples" of sound recordings
could be exempted from licensing requirements
to enable the public to check whether they
really want access to the product.
Free "samples" may be subject
to size restrictions; for example a free
"sample" of a sound recording
could be restricted to 30 seconds of play
time (as is the case with amazon.com and
some other sites), and mobile operators
or other content providers could be precluded
from charging their customers for "samples"
because they would not have to pay royalties
for use of such "samples."
| 
