DRMs in the draft Copyright Amendments

Recently, we’ve had a well written guest post by Amlan Mohanty, wherein he discusses several conceptual and practical problems with laws for the anti-circumvention of technological measures. As pointed out in the post, India is not a member of the WIPO Treaties such as WCT (WIPO Copyright Treaty) or WPPT (WIPO Performances and Phonogram Treaty), and therefore is not obligated to be importing/implementing DRM provisions into the Copyright law, not to mention that it is a TRIPS plus provision; yet, for obfuscated reasons we see their presence in the draft Amendment provisions. Indeed, even the western countries which have implemented DRM measures like RMI (Rights Management Information) and TPM (Technological protection methods), there is still significant confusion over its effectiveness as well as much criticism over its validity.

For the sake of clarity, let me make clear the distinction between RMIs and TPMs:
RMIs are commonly understood as information which is provided by copyright holders, (or holders of a right under copyright) meant to identify the right holder(s) and other information like terms and conditions regarding the copyrighted material. These are therefore generally understood as beneficial to both rights-holders as well as to users/consumers since it leads to both backward tracing to the rights holder, as well as points towards authenticity of the material, amongst other functions. (This is understood to be mutually beneficial in the hypothetical where RMI is not coupled with more than just providing information).

The commonly more troubling aspect of DRMs are the TPMs. TPMs are measures used to enforce restrictions and limitations on the use of the copyrighted material which it is embedded in, and it is validity of these restrictions and limitations which bring up all the problems associated with DRMs. (My favorite web-comic XKCD displaying some not very uncommon angst towards DRM limitations on number of copies one can make)

India has been under a lot of pressure from the US, due to the Special 301 report which US puts out annually, to amend and enforce its copyright laws to a standard closer to what the US would want; usually standards which the US has succeeded in pushing through in WIPO treaties. Therefore, essentially, it is the same lobby which pushes for stricter laws in US as it is in India. (Incidentally, I recently wrote a post on Hollywood tying up with Bollywood to check piracy in India). To further add to this, even as their effect in US has come under severe criticism; for them to be the lobbying party in India without due regard for the local context, economy and culture seems absurd. For a developing country like India, which even other developing countries look up to, it is important to get their copyright law correct, since the alternative is that instead of incentivizing and aiding creation and creative works, it is creating unnecessary barriers to access to creative works (especially considering that there is a big emphasis in Indian culture to adapt and improvise on works already in the public domain).

Looking at the draft provisions:
Section 2(xa) provides the definition of Rights Management Information. RMI is defined narrowly enough to include only information (or number or coded representation of information) which identifies the work/performance and/or the name of the author/performer, provides information about the owner of rights, and terms and conditions regarding the use of rights. Presumably in the interest of privacy rights, it explicitly excludes any devices or procedures intended to identify the user. This seems to be a balanced provision which allows only for the communicating of information and doesn’t include any TPMs through it.

Section 65B which provides for the enforcement of RMIs allows attachment of civil or criminal liability towards violating persons:

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;

This provision has more or less been lifted from the equivalent WCT provision – Article 12. Arguably, this leaves room for impleading 3rd parties such as ISPs as a distributor, or broadcaster for example. The argument would go roughly like -> The ISP knows that some piracy is being communicated through it, and therefore is under an obligation to find out exactly what and by whom. If this argument is sustainable, then a whole host of privacy issues on behalf of the consumers, and obligatory functions on behalf of ISPs immediately arise.

Article 65A, which provides for TPMs, is also more or less a lift from Article 11 of the WCT, however, importantly, it adds certain limitations.

(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.

With the exceptions in place, as far as TPMs go, this seems like a relatively consumer friendly provision. (for those questioning the balance on the other side of the scale, the mere existence of the TRIPs plus provision represents rights holders interest here)

The main provision firstly, essentially ‘allows’ trivial circumvention by stating that the offense consists of circumvention of “effective” measures. This is a vague word which is bound to create definitional problems if implemented. In fact, if one were to take a strict definition of ‘effective’ one might even argue, that if one is able to circumvent the technology, it is not effective! Presumably, eventually there will be a (confusing) test which will apply a ‘reasonable man’ or Person having ordinary skill in the art” (phosita) type of analysis (to determine against whom this measure is effective) which, in all probability, in the backdrop of a world full of child computer geniuses, won’t make things much easier anyway.

The exception under 2(a) is an important one as it doesn’t legitimise ‘extra’ rights or control measures, but restricts TPMs to only those rights granted in the Copyright Act. Thus all acts of Fair Dealing under S.52 will not be run afoul by this provision. [This, however, would not solve the practical problem of lay users requiring to bypass strict TPMs if they wish to use any material for fair dealing purposes, it merely clarifies that such action is not illegal]

It is also interesting to note that goods, services or methods which could be used for circumvention are not discussed in the draft provision. These have been rendered illegal in some jurisdictions and several problems regarding free speech, free trade and freedom of expression had arisen due to it.

Thus overall, the draft DRM provisions seem to be much less draconian than feared. And indeed, in the hypothetical where India was necessitated into protecting DRMs in our Copyright law, they would probably be considered fair and balanced.

However, India is not necessitated into importing or protecting DRMs and these therefore remain nothing but a “next-best” solution. They still would result in unnecessary transaction costs, in cases of fair dealing of a TPM-ed work, or even in some cases of normal use; they could interfere with the resale market, which is generally very large; it would lead to a lot of capital being diverted to the corporate houses providing much of the DRM protection (currently all foreign players); they would lead to the introduction of automatically enforced license terms; and most importantly, international experience has already shown us that the enforcers of DRMs attempt to exploit it to the maximum by creating artificial monopolies, and thus stifling innovation and competition – certainly an outcome we could do without, both culturally and economically.

P.S.: DRMs, TPMs, RMI, ISPs, WCT, WPPT, WIPO, not to mention IP, and PHOSITA. Apparently, this field is one which loves acronyms!