For those interested in a little background, you can read our earlier few posts on the issue (here, here and here). Essentially, TPM’s, as the name suggests, are technological devices that restrict the use of digital files in several ways – they can prevent copying, altering, sharing, saving, printing etc. – digital activities that the copyright holder might want to prevent. TPM’s are like sheaths or protective coverings around your digital files, to provide a more pictorial description. To make TPM’s effective, governments enact anti-circumvention laws, that prevent consumers from bypassing such digital locks. The objective: to curtail illegal sharing and unauthorised use of files. The biggest concern: restriction of consumer and fair use rights.
Section 65A seeks to make circumvention of such technological protection measures a criminal offence, with imprisonment for a maximum period of two years. Section 65A(2) however, provides various exceptions, enumerating permissible acts of circumvention.Increasing term of imprisonment:
Interestingly, the Indian Broadcasting Federation (IBF) recommended enhancement of the prison term from 2 years 3 years for first offence, 5 years for second offence and that all offences should be made cognizable and non-bailable. Just to provide a comparison, under the DMCA, if the circumvention violations are determined to be wilful and for commercial or private financial gain, first time offenders may be fined up to $500,000, imprisoned for five years, or both; for repeat offenders, the maximum penalty increases to a fine of $1,000,000, imprisonment for up to ten years, or both. Thus, on the face of it, the suggestion seems fair, although the biggest problem with this in my opinion is that there is no gradation of offences based on the scale and nature of circumvention.
Absence of Civil Remedies:
Flowing from the previous point, the bigger issue however is the absence of civil remedies in such cases. Under the DMCA for example, there is a provision for both civil and criminal penalties, based on the commercial nature of the activity and whether it was wilful. Luckily, this was pointed out by several parties in the proceedings. Google for example, wanted the act of unlawful circumvention to be made a civil wrong punishable by damages and not a criminal offence. The IBF and the Business Software Alliance also supports this. Of note is the fact that with a provision for criminal and civil liabilities, it would be in conformity with the WIPO treaties.
Google was not in favour of this requirement contained in the proviso to S.65-A(2)(a), wherein a person facilitating circumvention is required to maintain records. While this may appear harmless, the sheer amount of time and energy wasted in cases that are clearly permissible under the Act is clear. Also, there is nothing in the amendment stating the effects of failure to maintain such a record. Thus, Google’s position to do away with this requirement entirely, appears reasonable
Manufacture and Distribution of anti-circumvention devices:
The other issue was in respect of distribution and manufacture of devices and software used for circumvention, and whether it should be made a criminal offence. Many feel that this would obstruct the development of such technologies, that may be useful in the future. For example, we all heard the loud protests after the arrest of the Indian engineer, Hari Prasad, for exposing technological flaws in the Electronic Voting Machines, allowing them to be compromised. If the EVM’s contained TPM’s and Hari Prasad distributed such software, he might have been held criminally liable under S.65-A. Thus, there is scope for misuse of such a provision, and this must be kept in mind as well.
Restriction of consumers’ fair use rights:
Thankfully, there were some participants who found the unnecessary restriction of fair use rights to be unfair and even raised the point during the proceedings. Yahoo! India reiterated most of the common arguments against inclusion of TPM’s and anti-circumvention measures. However, based on the minutes, it appears that it was in the minority with industry representatives pushing for stricter provisions. One of the major problems with TPM’s, as I had mentioned in an earlier post, is the possibility of extra-legal measures being introduced in the guise of TPM’s. However, the phrase, “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” appears to have addressed this concern. Even so, Yahoo’s point appears valid in circumstances where fair use rights are indecisive and TPM’s cause unnecessary hurdles for the user (for example conversion of works to all formats for persons with disabilities).
Proving Intention and Burden of Proof:
The Indian Broadcasting Federation (IBF) also suggested that in any case of circumvention, the presumption such be that there was intention to infringe. This would shift the burden of proof on the infringer to establish that there was (a) no intention to infringe (b) that it falls within the scope of clause (2) of the section providing exceptions. It is interesting to see to the necessary ingredients required to establish intention in such cases. I for one, am curious to know the extent to which courts will equate knowledge with intention in cases of circumvention, based on knowledge of probably consequences, since this might involve considerable technical understanding. RPG Enterprises-Saregama considers the provision to be ‘vague’ and hence it would be difficult to establish intention.
Interestingly, there were several calls for the provision to be redrafted so as to make the very act of interfering with technological measures itself an offence (from the Indian Music Industry & Indian Performing Right). This appears to be a suggestion to eliminate the need to prove intention and to create a strict liability offence. The Indian Performing Right Society made an interesting claim by saying that Section 65-A did not actually create a new criminal act, since an attempt to infringe copyright was criminally punishable anyway. However, such a view appears disjointed to me since the point of Section 65-A is to provide legal recognition to the idea of technological protection measures and its insertion by copyright owners, and thereby, the offence of anti-circumvention, which wouldn’t be permitted before such an amendment.
Standing Committee’s Recommendation:
The Standing Committee, took note of experience of developed countries and conceded that inclusion of TPM’s had caused a significant blow to innovation, access to public works, fair use rights and in general, had proven to be a hindrance. Thus, the Standing Committee suggested that the Indian judiciary should evolve the law based on practical situations, keeping in mind the larger public interest of facilitating access to work by the public. It also acknowledged that many terms had been left undefined, but stated that this was deliberate, given the complexities faced in defining them. Thus, it appears that the Committee recommends minimal legislative interference in the proposed amendment to Section 65-A and rather that there should be judicial scrutiny as and when required to create rules and guidelines based on current trends and requirements.
Though the Committee’s view appears balanced and well though-out, it is disappointing to note that that there were only a few calls for the deletion of Section 65-A in its entirety, given the terrible experience of such provisions in developed countries across the world. As always, readers’ comments are welcome.