Need to modernize copyright laws for the new digital era

Author: Kartikay Sharma, Amity Law school noida ,Amity University Uttar Pradesh 

INTRODUCTION

Copyright (or author’s right) is a legal term used to describe the rights that creators have over their literary and artistic works. Works covered by copyright range from books, music, paintings, sculpture, and films, to computer programs, databases, advertisements, maps, and technical drawings [1] (Definition of copyright: World Intellectual property organization, available at:: https://www.wipo.int/copyright/en/) .Copyright laws are the laws which govern the copyright mechanism in a particular country. Copyright laws provide legal right on the intellectual property to its rightful owner. Under copyright laws Reproducing an intellectual property without the permission of its rightful owner is unlawful and can lead to penalties or imprisonment under the act. With the ever-evolving technologies the new digital trends such as social media, online gaming, Augmented reality, Virtual reality etc keeps on launching into the global markets and thus rises the need for the content made for these digital trends to be copyrighted and to make sure that content posted is not infringing the copyrights of any author. To regulate and safeguard the copyrights of authors the copyright laws of India need to be modernized. This article highlights the new emerging trends, the problem with the copyright laws and suggests some ways to modernize the laws according to the new and upcoming digital era.

NEW EMERGING TRENDS

With the fast- and ever-growing technology globally, various new trends emerge from it and eventually are followed by a large portion of the population some the trends which have emerged or are going to emerge are-

Social Media: social media are interactive digital channels that facilitate the creation and sharing of information, ideas, interests, and other forms of expression through virtual communities and networks[2]. ( Obar, Jonathan A. and Wildman, Steven S., Social Media Definition and the Governance Challenge: An Introduction to the Special Issue (July 22, 2015). Obar, J.A. and Wildman, S. (2015). Social media definition and the governance challenge: An introduction to the special issue. Telecommunications Policy, 39(9), 745-750., Quello Center Working Paper No. 2647377, Available at SSRN: https://ssrn.com/abstract=2647377 or http://dx.doi.org/10.2139/ssrn.2647377) Some examples of social media sites are Facebook, Twitter, Instagram, Snapchat etc. Social media enable its users to connect with each other through their platforms and allows them to post, react and comment on the content posted on their platforms. Social Media has been around for a decade now but still with the ever-growing technology it keeps on growing and new functions are added to it almost every other week. Social media sites have their own terms and conditions to be followed by their users on the platform and have their own rules and regulations for the content being posted on their sites. Even though some social media sites keep active checks and removes content which infringes the original authors copyright, still there are many instances of copyright infringement on which no action was taken.

CURRENT STATUS OF COPYRIGHT LAWS

he original act which is the Copyright Act, 1957 was passed in the year 1958 and after that date the act has been amended several times in the year in 1983, 1984, 1992, 1994, 1999 and 2012 to meet the needs of the ever-changing era. As of today, the Copyright Act, 1957 was amended in the year 2021 with the Copyright (Amendment) Rules, 2021. But even after the amendment of 2021 there are several limitations of the act and are not capable enough to meet the needs of the new digital era. The limitations faced by the act are

·         Expiration

The Copyright expires after 60 years and, in the case of original literary, dramatic, musical, and artistic works the 60 years are counted after the death of the owner. Due to this short time the owner’s works are often not protected after the date of expiration and falls into public domain where it can be used for commercial or non-commercial gains.

·         Orphan work

An orphan work is a work which is copyright protected but the owner of which is unidentified meaning the whereabouts of the owner of the work is unknown and that person is untraceable or possibly dead. The orphan works is recognized under Section 31A of the (Indian) Copyright Act 1957.The Section 31A (1) states that (1) Where, in the case of an Indian work referred to in sub-clause (iii) of clause (1) of section 2, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a license to publish such work or a translation thereof in any language.4[31A. Compulsory license in unpublished Indian works.—(1) Where, in the case of an Indian work referred to in sub-clause (iii) of clause (1) of section 2, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a license to publish such work or a translation thereof in any language."[3] ([3] Section 31A (1) in the Copyright Act, 1957: available at: https://indiankanoon.org/doc/1288659/) According to this section a person could apply for a compulsory license to use an orphan work. The condition being that the owner of the work is unidentified, untraceable, unknown, and dead. The licensee also has to show that reasonable care was taken in finding out about the owner of the work. The limitation with using orphan work in the digital era is that, nowadays with the help of social media various works gets viral and gets detached from its owners for ex. viral videos on WhatsApp, Facebook, Instagram, posted by various accounts not being the owner of the work. This makes it difficult to identify the true owner of the work and for the owner to keep his original work protected under the (Indian) Copyright Act, 1957.

·         Fair Dealing

The Doctrine of fair dealing is an exception to the law which protects copyrighted material to be reproduced illegally without the consent of the rightful owner. Fair dealing allows a person to use any work which is protected by the (Indian) Copyright law, 1957 up to a limited use, if the originality and the sanctity of the work and its owner is maintained. The Doctrine of Fair Dealing lacks clarity and depth, as whether the use of copyrighted material is fair dealing or not is interpreted by the judges on case-to-case basis and lacks clarity as to what is considered fair dealing and what is not considered fair dealing under the (Indian) Copyright Act, 1957.

[1] Definition of copyright: World Intellectual property organization, available at:: https://www.wipo.int/copyright/en/

[2] Obar, Jonathan A. and Wildman, Steven S., Social Media Definition and the Governance Challenge: An Introduction to the Special Issue (July 22, 2015). Obar, J.A. and Wildman, S. (2015). Social media definition and the governance challenge: An introduction to the special issue. Telecommunications Policy, 39(9), 745-750., Quello Center Working Paper No. 2647377, Available at SSRN: https://ssrn.com/abstract=2647377 or http://dx.doi.org/10.2139/ssrn.2647377

[3] Section 31A (1) in the Copyright Act, 1957: available at: https://indiankanoon.org/doc/1288659/