• Lex Valorem


As we all know, our society is developing and evolving digitally. People are shifting their business from manual prospectus to the digital market irrespective of the scale it is, some are providing services and some, products. People who are spending their valuable time, money , intellect to create some work require their efforts to be prevented and secured by their own name also the freedom to distribute their work and the target people with whom they want to share their work shall be of their own decision. With emerging digital aspects ,piracy and copying the original work has become a new trend ,people in spite of working hard , work smart and from there the word Copyright came into action.

Copyright Copyright refers to the legal right of the owner of intellectual property. In simpler terms, copyright is the right to copy. This means that the original creators of products and anyone they give authorization to are the only ones with the exclusive right to reproduce the work. By way of this the producer of any work by intellect of a person is safeguarded ,in this without any authorization other person cannot copy any work moreover the work belongs to the actual owner or producer of the work. Different applications are there that leads to infringement in copyright of others and hence the original work is not safe. Now Copyright is fortified by law, step by step, in order to ensure that people who create, author, artists or producer of original content or work , have exclusive rights for its use and distribution. Indian Copyright Act 1957 ,came with a vision to protect the intellectual work produced and even after so many amendments the fidelity of original work cannot be established and hence Digital Rights Management came into existence it secure illegal propagation of work . The objective of DRM is to enable and facilitate legal licensing of digital information by reducing the transactional cost for people who want to access such information.

DRM in Indian Copyright Act The Copyright Amendment Act,2012 incorporated certain DRM provisions in conformity with WPPT And WCT. India is a constant party to TRIPS treaty. Section 65A and 65B . Clause 2(a) of section 65A also specifies that nothing in the provision shall prevent the doing of anything referred to therein for the purpose that is not expressly prohibited by the Copyright Act, 2012. Apart from this, the provision also exempts the technological measures for the purpose of certain activities like lawful investigation, encryption research, security testing of a computer system or networks with the authorization of the owner, protection of privacy and measures necessary in the interest of national security. Section 65A provides for a criminal penalty of imprisonment for 2 years and a fine, for violation of this provision, which is a rather worrisome development.

Functioning of DRM

· Functional restriction :- It restricts access to a database to those individuals or devices having the appropriate password or passkey.

· Contractual restrictions:- click wrap restrictions might be used to implement a pay-rep-use scheme that allows metered access, and possibly some copying, for a fractional fee.

1. State attorney general involved a click-wrap contract restriction prohibiting the publication of a critical review of software package. · It disables access to the database or to some proportion of the database when the system detects an attempt to engage in some sort of impermissible action, unauthorised files residing on the user's computer. In the Sony Beta max case, the Supreme Court held that the VCR was capable of many substantial non-infringing uses; therefore, Sony could not be held liable simply because people could also use VCRs to engage in unlawful copying. In contrast, the courts have read the DMCA’s anti-device provisions to say that there is no “substantial non-infringing use” defense to a charge of manufacturing or distributing circumvention tools. Recall that the anti-device provisions cover technologies that are primarily designed for circumvention, that have only limited commercially significant use other than to circumvent, or that are knowingly marketed for circumvention. Those are very different standards than whether the technology has “substantial non-infringing” uses. Therefore, the court in the DeCSS case or known as Universal City Studios v. Reimerdes concluded that the contributory infringement doctrine has been overruled by Congress in the circumvention context to the extent of any inconsistency with the new statute. The right of the creator must be protected else the work couldn’t be original and hence piracy would continue to exist and it will cause the infringement. The proper mechanism helps to secure the rights of the creator legally and secure the work so that the invention, creation, innovation can flow and surplus without a fear of infringement of right of the creator.

Fair Use Doctrine in case of DRM Copyright holders have something shy of an absolute right to exclude others from reproducing their content. Some reproductions of a copyrighted work are in the public domain under the judicially-created (and later Congressionally codified) doctrine of fair use, which dictates that: “some opportunity for fair use of copyrighted materials is necessary to fulfill copyright’s very purpose ,‘to promote the Progress of Science and useful Arts’…”. But what uses are legally fair is often the subject of conjecture, so copyright holders may find accommodating for fair use in DRM technology challenging.

The Supreme Court has acknowledged that the fair use doctrine has “no generally applicable definition”. Rather, the following four factors are relevant to the analysis:

· the purpose and character of the use, including whether such use is of a commercial nature or is for non-profit educational purposes;

· the nature of the copyrighted work;

· the amount and substantially of the portion used in relation to the copyrighted work as a whole; and

· the effect of the use upon the potential market for or value of the copyrighted work.

The four-factor balancing test is extremely difficult to apply to emerging technologies such as digital media, yet new technology is precisely where the law needs to determine fair use. And not only is fair use difficult to discern given the novelty of digital technology; fair use applications are a moving target because they evolve as technology changes. For example, during the advent of video recording, television broadcasters sued to prevent home recording of television programmes , which until then had never been possible. The Supreme Court held that recording televised programming for later viewing, which it called time-shifting, was fair use.7 More recently, the Ninth Circuit found “space-shifting” to be a fair use in the context of copying music files onto a portable player.8 Two years later, the same court found “space-shifting” not to be a fair use where copies of copyrighted content are stored in a central system where they can be easily copied by a large number of file-sharing users. As is shown by these examples, what constitutes fair use in a new technological environment is not always


By Nandini Agarwal

BBA.LLB (Hons.), 5th Year

Uttaranchal University (Law college dehradun)

1.People v. Network Associates, Inc., No. 400590 (N.Y. Sup. Ct. Jan. 14, 2003). 2 .Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417 (1984)

3.UniversalCityStudios,Inc.v.Reimerdes,111F.Supp.2d294(S.D.N.Y.2000),aff’dsubnom. Universal City Studios, Inc. v. Corley, 273 F.3d 429 (2d Cir. 2001). 4. SonyCorp.ofAm.v.UniversalCityStudios, 464 U.S. 417, 433 (1984)

5. Chad Woodford, Trusted Computing or Big Brother? 75 U. Colo. L. Rev. 253, 266-67 (2004) (citing Campbell v. Acuff-Rose Media, Inc., 510 U.S. 569, 575 (1994)).

6. Sony, 464 U.S. at 455-56.

7. 421

8. RecordingIndus.Assoc.ofAm.v.DiamondMultimediaSys.,180 F.3d 1072, 1079 (9th Cir. 1999).

9. A&MRecordsv.Napster, 239 F. 3d 1004 (9th Cir. 2001).

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