SpicyIP is happy to bring our readers yet another great guest post by Nikhil Krishnamurthy, this time on Section 65A of the Copyright Amendment Bill. (For some of his other great guest posts on Spicy IP, check here)
Tales from Decrypt Dept. (“But Officer, I was told it was “fine” to circumvent !”)
I have written extensively about some of the author-centric amendments sought to be introduced by The Copyright (Amendment) Bill, 2010 here. I would like to now share some thoughts on the proposed Section 65A which seeks to impose criminal penalties for the act of circumventing effective technological measures.
The said Section 65A reads as follows: –
“65A. Protection of Technological Measures
(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 authorisation of its owner; or
(e) operator; or [This appears to be a continuation of (d) above and could have been combined with (d).]
(f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or
(g) taking measures necessary in the interest of national security.
As our readers will know, a famous example of a technological measure is the Content Scramble System, or CSS, through which films sold on DVD are encrypted to prevent copying. It is a matter of irony that CSS did not meet the standard of an “effective technological measure” and was compromised quite easily. As Sherlock Holmes remarked to Dr. Watson in The Adventure of the Dancing Men while deciphering a code, “What one man can invent, another man can discover.”. [Another well-known, albeit controversial, technological measure was the SONY rootkit, which caused a scandal and for which SONY was sued.]
According to the Statements of Objects and Reasons of the new Bill, the amendments seek to make the provisions of the Act in conformity with WIPO’s WCT and WPPT while acknowledging that “India has not yet signed the abovementioned two treaties”.
Readers will be familiar with Article 11 of the WCT which states “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.”
What many readers may not be familiar with however, are the findings of a recent study by an the Consumers International organization which reviewed the copyright laws of 16 countries and rated India at the Number 1 position. In comparison, the USA was ranked Number 4 and the UK at Number 16 (last) in the study.
Interestingly, the Conclusion of the India-related section of the study, which can be found here, states
“India’s Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. Neither has India rushed to accede to WIPO Copyright Treaty, which would expose India’s consumers to the same problems experienced in other jurisdictions which have prohibited the use of circumvention devices to gain access to legally-acquired copyright material.”.
I could be wrong, but being rated at the Number 1 spot for its copyright legislation does not seem to be a bad thing for India and its image. The absence of anti-circumvention provisions appears to have been a factor which determined India’s ranking. So why the rush to jump on the anti-circumvention bandwagon, particularly when India has no corresponding treaty obligation?
What is actually more worrisome is that the amendment seeks to impose criminal penalties of imprisonment up to two years and fine. The quantum of fine is not specified, but whatever it is, it is presumably payable to the State. If we have to incorporate such provisions, there is no reason why some other reasonable form of civil penalty is imposed. This could take the form of, for example, statutory damages that are payable to the copyright owner. Even the WCT only requires “adequate legal protection” and “effective legal remedies”. It does not mandate criminal sanctions.
In my view, a copyright owner is fully within its rights to implement whatever technological measures it may deem fit to protect its works from unlawful copying, provided that such measures are within legal bounds (unlike the SONY rootkit referred to earlier). What is being questioned here is the necessity in India for having anti-circumvention provisions when there is no corresponding treaty obligation, and imposing criminal sanctions for acts of circumvention where the possibility of misuse of criminal provisions is ever-present.
We have already seen use of criminal remedies against cases of alleged copyright infringement in the past. Even copyright societies have reportedly initiated criminal proceedings for alleged violations. Whether, as a matter of principle, criminal remedies should be available to collecting societies (and when their authority over certain copyright works, vague, as previous posts here have highlighted), when provisions for compulsory licensing exist, is a thorny issue. Experience suggests that many establishments comply out of fear of the threat of criminal proceedings which hangs like the proverbial Sword of Damocles, without fully understanding their rights in the matter.
Having said this, Section 65A is not all bad. It envisages exceptions to protect privacy, and allow research and testing in certain circumstances. Such provisions may encourage the organization of events like the fascinating PWN2OWN, in India.
Happily, it also recognizes that the provision does not prevent a person from circumventing for a purpose not expressly prohibited by the Act. This would, for example, include acts of fair dealing, and research, provisions of which are now sought to be clarified so as to cover all works. To elaborate, as Section 52 (1) (a) (i) stands today, only literary, dramatic, musical and artistic works may be dealt with fairly for private use, research etc., and since sound recordings and cinematograph films are not covered (this appears to be a drafting error since under the 1911 Act, fair dealing covered any work), it is currently arguable that the act of space-shifting/ format-shifting of sound recordings and films (for example importing music or films to a portable music player or home media center) amount to infringement under the existing law. For more on private use aspects, please see my country update prepared for the International Association of Entertainment Lawyers (IAEL) here.
It does appear from a reading of Section 65A (2) (a) read with Section 52 (1) (a) (i) that if one does circumvent an effective technological measure such person would not be prohibited from publishing the method by which the circumvention took place for the purposes of research.
In conclusion, if Section 65A must be retained, it is recommended that the criminal penalties be removed and civil remedies in the form of statutory damages be substituted instead – perhaps something akin to Section 22 (2) of the Designs Act 2000. The same recommendation is made with respect to Section 65B pertaining to the act of tampering with Rights Management Information. And while we are on the subject, suitable amendments must be introduced to prohibit the exercise of criminal remedies by collecting societies, as adequate and effective civil remedies already exist by way of injunction, damages and accounts, and such remedies have been exercised to good effect over the years.
I leave you with one thought – What if an effective technological protection measure is circumvented? Wouldn’t that mean it was not “effective” in the first place, and therefore out of the scope of the protection of Section 65A? Therein lies the paradox.
@ Nikhil (& others)- Do u think such (anti-circumvention) provisions might be dangerous particularly for developing countries? I did a bit of research but cudnt come up with satisfactory answers.
@harsh I also did some comparative research on the anti-circumvention provisions in India, Us and E.U…in my opinion they are not very happy with the results of the DMCA and the way it has been misused by many MNCs best example being SONY. also check out this case RIAA vs Diamond Multimedia Systems.