As technology advances at a dizzying pace, so does the need for protection of copyrights in cyberspace. Internet users can utilize unauthorized copies of copyrighted works; and digital technology enabled piracy of novels, photographs and movies has caused substantial economic loss.
TPM promotes the authorized use of digital content; the most widely used methods are password and cryptography. TPM can be broadly classified into two categories on the basis of the functions performed:
- those measures which control or restrict access to a work are referred to as Access Control Technology
- those which restrict the uses of the work are called Copy Control Technology.
In most instances, these measures are capable of providing extensive security to the copyright works in which they are installed.
1) WIPO Copyright Treaty,
2) WIPO Performances and Phonograms Treaty
which mandate its member countries to extend adequate legal protection for effective TPM, in its national copyright legislations. Several countries, such as the US, Japan, Australia and Germany have adhered to this mandate.
THE COPYRIGHT AMANDEMENT ACT, 2012
The Copyright Amendment Act, 2012 was passed by the LokSabha in May 2012. The amendments introduced Section 65A in the Copyright Act, 1957. It states that 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. It also enlists certain exceptional situations when circumvention of TPM would not amount to an offence. USA protects TPM under Section 1201, Title 17 of the United States Code (US Code). The US law prohibits both the circumvention of effective TPM and the trafficking in circumvention devices. Trafficking in circumvention technology implies manufacture, sale, import or rental of such technology.
Primary Design Theory
The primary design theory was discussed in Sony Corp. Of America v Universal City Studios Inc. Universal City Studios, Inc., sued Sony for contributory copyright infringement based on the manufacture and distribution of VCRs which enabled the users to tape copyrighted material and, thus, make copies of those works. The Supreme Court, basing its decision on the substantial non-infringing uses of VCRs, held that home time-shifting by users was fair use and, thus, not copyright infringement. In Sony Computer Entertainment America Inc. v. Game masters , the Defendant sold various “game enhancers” which allowed users to modify the rules of Sony’s PlayStation games, such as by making the game harder or easier, or by giving a game character infinite lives or unlimited ammunition.
The devices also allowed users to play games designed exclusively for use in Japanese and European PlayStation versions. In granting Sony’s application for a preliminary injunction, the Northern District of California held that the “game enhancers” appeared to be devices whose primary function was to circumvent “a technological measure (or a protection afforded by a technological measure) that effectively controls access to a system protected by a registered copyright…. ” .
It also provides protection against trafficking in circumvention technologies. The Copyright Act, 1968 of Australia extends protection against circumvention only for Access Control Technology.
It is evident that there should be two components for every legal statute protecting TPM from circumventions. The statute should explicitly prohibit any kind of circumvention activities and the statute should also prevent trafficking in circumvention technologies that has been primarily designed for such circumvention and has got negligible commercial purposes apart from circumventing TPM. In the Indian statute the second component is not present. Section 65A does not prohibit trafficking in circumvention technologies. This stands out as a serious lacuna. The addition of a clause prohibiting trafficking in circumvention devices would discourage perpetrators who deal in manufacture and transfer of such technology. As the rate of manufacture and transfer of such technology slides, the frequency of circumvention activities will also decline.