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Guest Post: Note on the Proposed Amendments to the Indian Copyright Act: Technological Protection in Measures/ Digital Rights Management


We are glad to bring to our readers a fresh perspective by Amlan Mohanty, a second year student of the National Law School of India University, Bangalore. He has previously published on the blog of the Centre of Internet and Society and variously on current intellectual property and technology law issues.

Just when we thought we had heard the last of DRM (Digital Rights Management) the government of India, with its recent press release on the proposed amendments to the Copyright Act, seems to have awakened the sleeping giant and acknowledged this grossly restrictive technological mechanism as a legitimate tool to prevent infringement, and incorporated it into the copyright system of India. What makes the entire situation worse is the concept of ‘anti-circumvention’, which going by the press release, is something the government strongly endorses and will be discussed in the next post.

While the press release hesitates to go into specifics, it does indicate the government’s desire to introduce ‘measures against the circumvention of technological measures’ (note: ‘technological measures’ will be referred to as DRM’s (Digital Rights Management) henceforth), an implicit acceptance of the use of such measures in the protection of copyrighted works. While debates on the pros and cons of DRM’s have been doing the rounds for sometime already, a simple explanation of the practical implications of introducing such a provision in the Copyright Act is essential to understand the full impact it may have on the average Indian consumer.

WHAT DO YOU MEAN BY DRM or TECHNOLOGICAL MEASURES?
First things first. What are DRM’s? DRM in its simplest form means technologies that restrict the use of digital files in order to protect the interests of copyright holders. And how exactly does it go about doing this? It can prevent or restrict a computer from altering, sharing, copying, printing or saving protected digital files. In essence, it provides owners of copyrighted works remote control over the way in which their works are viewed, duplicated, listened to or installed. Seems about fair. But how does this translate into practise? This is where things get murky.

DRM’s LIMIT MY CHOICES AS A CONSUMER: • LIMITS THE NUMBER OF COMPUTERS I CAN COPY MY FILES TO
Let’s take the example of Apple’s DRM technology. Apple embeds its FairPlay DRM technology into the music files available on its iTunes store and imposes conditions on its consumers (legitimate consumers, mind you). I download a song from the store and I’m immediately informed that I’m allowed to store this particular file on a maximum of 3 computers (now, 5). Apple, through its DRM technology, takes it upon itself to decide how many computers I am legitimately allowed to copy this song onto. So when I download the family’s favourite Bollywood song, ‘Wake Up Sid’ starring Ranbir Kapoor, from the online music store, I find that I can’t store it on my desktop at home, my laptop that I carry to college, my dad’s laptop and my mother’s netbook. Apparently that’s one too many copies for a song that I legitimately bought and paid for in full. To make things worse, every time I format my hard drive, I have to de-authorise and re-authorise my computer and if I merely switch operating systems from Windows to Linux, it is deemed to be an additional authorised computer use.

• LIMITS USE BASED ON MY LOCATION
If that seems harsh, then think about how ridiculous it is that the DVD of ‘Kuch Kuch Hota Hain’, which I bought in New Delhi will not play in my cousin’s house in New Jersey, simply because the DRM software in the DVD won’t let me. When DVD’s are linked to DVD players on a geographical basis because of regional coding, where one needs to use an American manufactured DVD player to play a U.S manufactured film and a Singaporean DVD player for a Singaporean film, we have a real problem on our hands.

• LIMITS USE BASED ON THE SOFTWARE I USE
Examples of such restrictions are aplenty. The movie that I just downloaded online should logically play on any software that plays videos. But with DRM systems in place, that’s not the case. Remember those RealAudio and video files that wouldn’t play on anything but RealPlayer? What if there was a rare video clip available on an online news portal like the NDTV 24×7 website and it employed DRM? Shouldn’t I be allowed to watch a clip about the German Bakery bomb blast without having to download a particular video player? Why should my grandfather have to worry about technical issues like proprietary file formats and compatible software, when all he wants to do is stream a piece of Carnatic music online? DRM’s will essentially allow a popular website to restrict my digital rights by dictating what software I have to use to view its content and having my rights and choices trampled upon, is definitely not something I want.

• DO I EVEN ‘OWN’ THE CONTENT I BUY?
DRM technology, it seems, creates a situation where consumers do not buy, but are merely leased or rented content on terms and conditions imposed by the provider, despite having to pay exorbitant prices. What happens if the online store I am buying from decides to shut shop? Do I lose my content forever? The answer you will get – ‘Of course not’. The real answer – ‘Practically, yes’. All I have to do, they tell me, is buy several hundred blank CD’s and make back up copies of each and every song or video I downloaded from them. After all, what do they care about the investment I made, so long as they’ve made their money.
When I’m not allowed to play a song that I legally downloaded on multiple systems manufactured by different companies, restricted by time and space constraints, or prevented from converting the music file I downloaded into a format of my choice (essentially ‘locked-in’ to a particular system or portable player’), I have to ask the question – ‘Is DRM good for me as a consumer?’. The answer is an emphatic ‘NO’.

DRM’s ARE NOT RELATED TO COPYRIGHT LAW
Of course, one may ask, ‘why the hullabaloo when DRM technology only serves to protect rights that the Indian Copyright Act already protects, and in an ingenious and inexpensive manner at that?’ The fact remains that DRM’s allow copyright holders to prevent consumers from accessing and using works in ways that are actually permissible under Indian copyright law today. Just as I’m allowed to carry the latest paperback edition of ‘The Da Vinci Code’ with me around the world, there is nothing in copyright law that prevents me from doing the same with my legally purchased DVD. Except, apparently, DRM.

It is the legitimacy accorded to DRM’s that allows the inclusion of commercials and trailers on the ‘unskippable’ portion on DVD’s, which is actually reserved for the display of copyright notices. What pray, does displaying a commercial about baby shampoo have to do with protecting the interests of the copyright owner? I see no reason why people should complain about rampant piracy when consumer rights are slighted to such an extent. This image does a wonderful job of explaining what I’m talking about.

DRM’S DO NOT AND CANNOT UNDERSTAND THE DIFFERENCE BETWEEN ILLEGAL AND FAIR USE
DRM technologies care little for the distinction between fair use and illegal use. Take for example the DRM technology in Kindle’s e-book reading device which removed the the text-to-speech capabilities that are highly beneficial to persons with visual impairments. If the Indian Copyright Act otherwise allows me to convert an e-book into a format that allows easier access to information, why should DRM’s interfere in the exercise of such rights?

More importantly, how does one expect a pre-programmed technological device or software to understand the nuances of fair dealing and fair use rights? The complex variables involved in determining what is permissible under copyright law is difficult for the human mind itself to grapple with, and when the statute itself makes no attempt to lay down any strict guidelines or parameters in this regard, it is unfair for DRM to make such a decision by itself. For example, rights granted under Section 52, such as the use of copyrighted materials by teachers for instructional use and students for research, reproduction of such works in a library, making of cover versions or remixes of copyrighted songs etc., might be curtailed by DRM’s if they are brought into the copyright regime, and the dangers of restricting rights of consumers that are already protected under the Act cannot be overstated.

WHY ALLOW DRM’s AT ALL?
The argument often extended by lawmakers when they bring about changes in domestic legislations that adversely affect the rights of consumers is that they are obligated by international treaties to make such changes. While the 1996 WIPO Copyright Treaty requires nations that are party to the treaty to enact laws against the circumvention of DRM’s (hence, allowing the use of DRM technologies by rights owners), it is important to note that India is NOT party to the WCT and is under no obligation whatsoever to recognise DRM’s or enact laws prohibiting its circumvention. Why then is the government adamant in its desire to introduce such a provision? As I had remarked in the introductory note, developing countries are often accused of accommodating Western-imposed notions and standards of copyright protection into their domestic copyright legislations, without there being any necessity or obligation. When the developing nations across the world are looking to India to lead the way, should we be going back in time and adopting a provision that curtails fundamental consumer rights?

IS THERE A SOLUTION?
While the ideal solution would be for the Indian Copyright Act to remain DRM-free, if demands for the adoption of anti-circumvention laws persist, then the following safeguards must be introduced as well.

Firstly, circumvention for the purposes that are permissible under present copyright law must not be allowed. The corollary of this is that DRM’s should not be used to protect interest that copyright law doesn’t permit one to protect. Secondly, I envisage situations where intelligently placed, robust DRM’s make it much harder to circumvent these restrictions. In such a case, it is the duty of the the person who has placed the technological measure to provide the circumvention tool when the purpose for use of the works is stated and it comes within the sphere of permissible uses under the Copyright Act.

Image from here.

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