Privacy and the Indian Copyright Act, 1857 as Amended in 2010

India's Copyright Act was established in 1857 and was most recently amended in 2010. Although India at present is not a member of WIPO, the provisions in the proposed Bill will work to make the Act WIPO compliant. When looking at privacy in the context of copyright, four key questions arise:

How do DRM technologies undermine privacy and what safeguards are present in the Indian Law to protect citizens’ right to privacy?

Technologies such as digital rights management technologies were developed to be used by hardware manufacturers, publishers, copyright holders and individuals to impose limitations on the usage of digital content and devices. DRM technologies pose as a privacy threat, because in their ability to monitor what is happening to a copyrighted work, they are also able to collect personal information and send it back to a host without knowledge of the user. The host is then able to use that data for marketing or commercial purposes. In the Copyright Act, 1957 there are no current provisions against DRM circumvention. In the proposed Copyright Bill 2010 there are two proposed provisions to prevent anti circumvention of DMR technologies, and one provision that clarifies what is a DMR technology. 

Proposed Legislation

Section 2 (xa): Defines Rights Management information.
Section 65A : Protection of Technological Measures - Any person who knowingly makes or has in his possession any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years. The section includes that any person facilitating circumvention by another person of a technological measure, shall maintain a complete record of such other persons including his name, address and all relevant particulars necessary to identify him.
Section 65B: Protection of Rights Management Information – Any person who removes or distributes, copies or broadcasts any rights management information without authority shall be by punishable with imprisonment. 

Recommendation

We find that in this provision the privacy of an individual is brought into question, because there are no safeguards against the commercialization of information, and no formal process of redress if an individual discovers that his information is being used without his consent/prior knowledge. We would recommend that it be clearly articulated in the provision that the collection and commercialization of information and personal data is prohibited by DRM technologies and host companies, and a method of redress be put in place. 

Under the present copyright does a person have the ability to expose privacy infringement?

Because DRM technologies often employ the use of spy-ware, it is important that an individual has the ability to know if spy-ware is being used on their computer systems. Currently reverse engineering is permitted under provision 52 (ac). The amended version of provision 52 is less clear on if reverse engineering would be allowed.  

Current Legislation

Provision 52 (ac): Certain acts not to be in infringement of copyright include the observation, study or test of functioning of the computer programs in order to determine the ideas and principles which underlie any elements of the program while performing such acts necessary for the functions for which the computer program was supplied.  The following acts shall not constitute in infringement of copyright, namely:

Proposed

The proposed amendment reads:

 52 (1) The following acts shall not constitute an infringement of copyrights, namely:  

(i)    (a) a fair dealing with a literary, dramatic, musical or artistic work not being a computer program for the purposes of:

(ii)    private use, including research

(iii)    Criticism or review, whether of that work or of any other work.

The exclusion of computer program in the proposed bill makes it unclear under what circumstances reverse engineering would be allowed.

Recommendation

We would recommend that for clarity purposes a specific clause be added to the act that details under what circumstances a person is allowed to reverse engineer a product for protection of their own privacy. 

How does the proposed exception for the disabled undermine privacy?

In India under the current Copyright Act, 1957 there are no provisions for the benefit of disabled persons, thus currently permission from copyright holders needs to be exclusively sought every time the visually challenged person requires access. Under the Constitution of India and the Berne Convention, India has committed to enshrining the rights of the disabled. 

Proposed Legislation

The proposed amendment of the Act will  grant compulsory license in respect of publication of any copyrighted works not covered by the exception under section  52 (1) (zb).

The Bill also proposes a board that would establish the credentials of the applicant and satisfy itself that the application has been made in good faith. This compromises the anonymity that most individuals enjoy when a disabled person tries to access a digital library.

Recommendation

We recommend that the proposed Bill limits the authentication process a disabled person must go through when accessing digital libraries, etc, and the extent to which records are to be kept of transaction  This will serve to protect the anonymity and privacy of disabled persons.

What is On the horizon?

As copyright and IP is a constantly evolving issue, countries are consistently amending and changing their laws. With the flow of peoples across borders increasing, Indians will be affected by different international policies that could pose to infringe upon their privacy, for example, cross border checks or three strike regimes.  

Examples of Proposed Legislation: The Anti- Counterfeiting Trade Agreement

ACTA is a proposed legislation with the objective to combat counterfeiting and piracy. Partners in the negotiations include the United States, Australia, Canada, the European Union, Japan, Mexico, Morocco, New Zealand, Singapore, South Korea and Switzerland. The treaty will oblige each Contracting Party to adopt, in accordance with its legal system, the measures necessary to ensure the application of the treaty. Though ACTA has not been enacted, many worry that ACTA would facilitate privacy violations by trademark and copyright holders against private citizens suspected of infringement activities without any sort of legal due process. The Act would allow for random searches of laptops, MP3 players, and cellular phones for illegally downloaded or ripped music and movies. 

Recommendation

We find that copyright infringement does not appear to justify a three strike regime or cross border searches.  ACTA and other international treaties raise the question that if India became compliant with certain international standards, the standards would be too stringent without safeguards, and pose as a risk to a person’s privacy.