Apar Gupta
Thanks to PRS Legislative as the Copyright Act Amendment Bill, 2010 is finally online. While glancing through the bill I noticed four provisions which can have direct impact on electronic commerce. The first two are exceptions from Copyright Liability where provisions have been inserted to further shield intermediaries. Here, Sec. 52(1)(b) contains a standard exception from liability in cases of transient and incidental storage of a work. Sec. 52(1)© which will apply to online service providers is more interesting and contemplates a notice through a takedown provision. The section has the requirment of a court order within 14 days of the original complaint from the rights owner to maintain the continued prevention of the delivery of the alleged infringing content.
In the continuing tradition of balance in the copyright universe the next two provisions create liability. However, I get a sense they go a bit further. These two provisions relate to protection of “technological measures” and “rights management information”. For the violation of both these provisions, the sanctions are criminal. With the insertion of Sec.65(b), the circumvention of any technological measure to protect rights under the copyright act will be an offence carrying a penalty of imprisonment for 2 years. There are important limitations to this section as firstly the circumvention should be with an intention of infringement of the statutory rights and secondly the section will only apply for infringment of statutory rights and not contractual rights. Hence with the second limitation will be inapplicable with respect to the extended rights which are usually contained in software licenses.
The second section which is inserted is more problematic in my opinion as Sec. 65(b) which reads as protection of rights management information. Alongwith the section, definition in clause 2(xa) is also being inserted, which defines “rights management information”, as “(I) title of the work; (2) name of the author; (3) the name and the address of the owner of the rights; (4) terms and conditions regarding the use of the rights”. Here any person removing or altering the rights management information will be liable for the 2 year imprisonment. Hence, the section seeks to extend the rights of idenitification and ownership while providing for penalties in itself. There are no exceptions under this section and it applies absolutely. In my view this section will generate considerable litigation.
For those who are intrested in reading the bill, click here.