DRM and Anti-Circumvention in India- Good, Bad or Ugly?

June 11th, 20106:09 pm @    


Back in 2003, when iPods were still at a nascent stage, people who purchased songs from iTunes Music Store (iTMS) faced a peculiar problem. The songs could not be played on more than five computers, and could not be copied into compact discs more than seven times. Furthermore, such songs could not be played on any music player other than an iPod, and songs bought from somewhere else could not be played on iPods. A similar problem has always been faced by owners of DVDs purchased abroad, when they are unable to play it on a local DVD player. Honest users are perhaps unaware about the mechanism called “Digital Rights Management”, but the cunning minds behind these technologies are not.

Digital rights management is a generic term for technological protections used by software and hardware manufacturers to impose limitations on the use of products by the consumers. In other words, the manufacturers can decide what a user can do with the product, whether it can be copied, printed, altered, saved etc., thereby giving them a virtual remote control over the usage of the product.

copyright

Copyright Symbol

DRMs are enforced in countries with the help of ‘Anti-circumvention laws’, which prohibit the sale, manufacture and dissemination of any technology which can be used to defeat the technological protection mechanisms adopted by the companies. Too technical? let’s understand the same in simple words. Take an example of iTMS above. A legitimately purchased song cannot be played on more than five computers. If i make a software which can play the song on any computer on which it is installed, i can be prosecuted under the anti-circumvention laws. Worse, under the anti-circumvention law of United States, known as Digital Millennium Copyright Act (DMCA), i can even be prosecuted for publishing the paper containing the details of such a software. The ugly face of such technologies, amongst others, is that they restrict the limited usage permitted by the local laws of the users. For e.g. Indian copyright law recognized certain exceptions for the disabled over the use of copyrighted works, like exporting them via Braille terminal, but a software made it U.S. might restrict such a person from doing it.

In the recent proposed amendments to the Copyright Act, 1957 the Parliament has also sought to bring in Section 65A to introduce anti-circumvention provisions in India. It is reproduced 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

(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”

The proposed amendment might seem scary at the first sight, but on a closer scrutiny, it appears to be a commendable piece of draftmanship. A person can be prosecuted for circumvention of a technological measure only when he had an “intention” to do so. While some opine that this might create loopholes for hackers, i personally think that this will rightly prevent companies from prosecuting ‘innovators’ with bona-fide intentions, and might also help the same companies from fixing the vulnerabilities exposed by such innovators. Clause (2), which is the exception clause, is also broadly worded, so as to tilt the balance in favour of users of copyrighted material. The Indian Government seems to have learnt lessons from the experience of other countries and tailored the provisions so as to suit the needs of an Indian consumer.

Comparing the situation with the United States, the Courts had to come to the rescue when DMCA was very stringently worded and tilted the balance highly in favour of the manufacturers. If the draft bill is passed without making any substantial changes, it will be the duty of the Courts to interpret the section in light of the intention of the Parliament, which seems to be to favour the consumers. On an ending note, let’s hope that the intense lobbying by various stakeholders like software and hardware manufacturers does not affect the draft bill.

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He is pursuing UG Degree in Law from National Law Institute University, Bhopal.

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