By J. Sujin Kumar., LL.M (NALSAR), UGC-NET.., Principal Junior Civil Judge, Yellamanchili
In today’s world there is no one who is not touched by the Information technology revolution at least remotely. The two technological marvels i.e. computers and the networks have changed the way we live. There is hardly any facet of our lives that is not touched by the Information technology revolution. The advent of Internet coupled with information technology has virtually reduced the world in to a global village with no boundaries. These new developments not only helped the mankind but also gave rise to new sort of crimes viz., cyber or Internet crimes, due to acts of unscrupulous elements by using this new technology. In other words, these inventions, discoveries and technologies not only widened scientific horizons but also posed new challenges for the legal world, such as internet piracy, cyber defamation, stalking etc. The seemingly endless growth of cyberspace and its trademark characteristic of user anonymity is playing a significant role in making Internet piracy and other cybercrimes as an elusive enterprise. As the world increases its efforts to eliminate Internet piracy, pirates become more elusive in circumventing and their enforcement. Hitherto, many laws have been framed by the nations in order to counter the problem of internet crimes. However, in order to combat the evil consequences of these technological developments, the law must and ought to be in pace with the existing changes of the society. In this regard it is apposite to reproduce the statement made by Salmon LJ in an English Case i.e.,
“Law should not sit limply, while those who defy it go free and those who seek its protection lose hope”
——– (Jennison v. Baker (1972) 1 All ER 997).
Accordingly, if the enacted laws fail to keep up with the novel technological developments, the rights of the public will get affected. Enumerating numerous rights in statutes without enforcement is of no avail. In the present times, the latest technological progression that debilitates the equipoise between the incentive to create and public dispersal is peer to peer (P2P) networking. To put it plainly, this technology allows users over the world to share or transfer any kind of file, regardless of its size, without incurring any expenses. NAPSTER initially heralded a new process of acquiring music from numerous users gratis. Today, programs such as BITTORRENT allow users to share or transfer everything. As a result, copyright infringement, or piracy, is a pestilence running rampant across the Internet networks of the world. It is also apposite to mention that there is quite controversy pertaining to jurisdictional issues, in order to protect the interest of the copyright holders there is a need for appropriate legislation in conformity with the established principles of international law. Through this article the researcher wants to accentuate the novel method of peer to peer networks with a special emphasis on convoluted BIT TORRENT program and to enumerate the legal framework subsisting in different countries and various suggestions in order to reduce the problems pertaining to this aspect.
1.BIT TORRENT TECHNOLOGY
1.1. Brief History
Peer to Peer (herein after referred as P2P for brevity) systems are not that innovative things of a technology, as corporations and universities have been using these architectures for more than 50 years in what might today be named as P2P. Indeed, the Internet was actually developed in 1960s to be a peer-to-peer network system. However, when one ponders about sharing of files over a P2P network, NAPSTER is the Primary thing that strikes in the mind. The NAPSTER Programming software brought P2P and file sharing into zenith place. when the file-sharing technique began in June, 1999 by a student, Shawn Fanning. It received an overwhelming response from eighty million registered users in short span of eighteen months after inception. The only thing which a person had to do is to download the NAPSTER programmer, search for the thing he wanted, and then watch or listen to his favourite song, then download it in to his own system. In this network, one peer can directly communicate with other peer, the peculiar thing is that there is no central server as it was in “Client/Server” model. It was a new area, which is totally lawless. The user of the network could get any tune or music that he wanted without breaking in to the music store. In the first significant case to deal the application of the copyright laws to file sharing over P2P networks, the Court ruled that NAPSTER could be held liable for contributory infringement of the copyrights held by the recording industry. On remand, the court by its dictum ordered Napster to supervise the activities of its network and to block the access to infringing works when notified of the location of the works. It was unable to completely follow the ruling and remained silent until its pay service was good. However, that was not the end of these P2P networks as several other popular networks popped up, such as scour, limewire, amister, grokster, grokster, kazaa, and it resulted in gradual rising of this technology.
1.2 Bit torrent technology
BITTORRENT alludes to a number of different concepts. BITTORRENT protocol directs the technological operation. BITTORRENT clients actualize that protocol. As the technology was made as open source initiative from the initial years of its existence, there are enormous rise in the clients list. Several have been given by the BITTORRENT Inc., but major part of such clients have been made available by independent and autonomous outsiders or third parties. This technology has created a new era in the technological regime of the internet world, instead of having centralized network, this new aspect of p2p technology have invented a novel concept of direct sharing from peer to peer. The Bit Torrent distribution process is a lot like a jigsaw riddle. Users of this Bit torrent seek to get parts of the riddle from any numbers of others and after that they sort it out in to a coherent whole, once the pieces are gathered and assembled. The procedure starts when the holder of part of the content utilizes a Bit torrent user to segregate it in to a number of little pieces and to make an associate “Torrent File”. Torrent file contains metadata about the piece of the content, but not about the overall content itself. These files are then regularly made accessible through internet. Any web server is adequate, however hosts usually upload their torrent files only in torrent facilitating sites, in order to make these files more accessible and easily locatable.
Unlike Napster, Morpheus, Kazaa., BITTORRENT users typically have no integrated search functionality. Rather, individuals must independently discover a torrent associated with desired content, which they may do via dedicated torrent search engines.
1.3. Superiority of Bit torrent over other p2p Technologies
It is vital to comprehend that unlike other p2p technologies like Napster, Fast Track, Bit torrent does not facilitate the production of a single vast network, to which each and every Bit-torrent user connects. Instead, every swarm viably contains a discrete peer system which is devoted solely to disseminate a resource associated with a particular torrent. Communications within the swarm are traditionally facilitated by a tracker or trackers, which are BITTORRENT‟S equivalent to NAPSTER‟S central servers and FASTTRACK‟S super nodes. Their role is to keep up data about the users circulating a particular resource, including Internet Protocol Address (I.P. address) and a record of the pieces as they are of now and those they are yet to get. Using that data, trackers viably act as a “Rendezvous Point” for those included in dispersing the resource connected with a particular torrent.
Dissimilar to most distribution systems, Bit torrent’s performance really enhances as more clients attempt to simultaneously download specific piece of content, that is on the ground that once a leecher has acquired a bit of the resource from one source, it starts uploading or transferring it to different users, while it simultaneously downloads new records. By spreading the appropriation over all users, rather than focusing it on the few that have the whole copy, well known content can be disseminated broadly, very quickly. When popular files are uploaded and released through Bit-torrent, thousand or even huge number of peers will join swarms within minutes.
The network is also very efficient. Bram Cohen, author of p2p bit torrent protocol designed it with a “TIT FOR TAT” calculation to urge peers to put their transfer allocation to best use, additionally to accomplish efficiency. In an event that a specific peer does not respond by sending data upstream in return for downloaded pieces, they can see themselves at the end of the priority list for the subsequent piece of file. Another clever and important element of the BITTORRENT distribution process is the protocols policy of “rarest first.”
If the pieces of the resource were dispersed randomly, it is more probable that a circumstance will emerge where no one in the swarm has 1 or more important pieces. In any case, the protocol empowers peers to automatically ask the rarest pieces on priority basis, thereby augmenting the span of swarm. Still swarms definitely cease to exist as peers quit sharing a specific resource or simply disconnect the programmer.
2. INTERNATIONAL LEGAL FRAMEWORK
When we talk about the issues emerging out of p2p networks & file sharing utilizing them, we definitely have to consider the transnational issues, as examined in erstwhile chapter, there are different players involved in these sort of transactions, who might belong to different jurisdictions and subjected to different laws. This issue might be a problematic one. In this chapter, the international legal framework pertaining to these networks have been examined elaborately.
2.1. p2p and Liability
International Law of Copyright has explicitly addressed the problem of direct copyright infringement. However, it failed to address the secondary copyright infringement problem. In order to make the international law more effective, there is a need to implement the secondary liability in international level in the form of treaties. This is the main concern of many nations from the last decade, it is apposite to mention that hitherto, the treaties relating to this thing, has not seen the light of the day.
If the secondary copyright encroachment or infringement is not completely addressed, it results in dangerous consequences such as non-effective implementation of copyright law. Bit-torrent and other akin technologies enable the infringement of copyright in a large scale. Despite the Enumeration of copyright laws tending to direct copyright infringement, it is extremely difficult to enforce the laws against each and every infringer. The only solution left with us is to address the issue of secondary laws and to make effective multi-lateral treaties in order the curb the mass copyright infringement. If the nations failed to do so it will definitely weaken the existing laws.
2.2. Conventions and Treaties
International law relating to copyright is basically governed by the following treaties and convention.
1. The Berne Convention,
2. The TRIPS Agreement,
3. The WIPO Copyright Treaty.
Berne Convention is not the first treaty, but it is treated as the landmark treaty in the history of copyright protection law. It has contributed to the copyright law by creating a national treatment for copyright. According to Article-2:
“the works which are mentioned in Article-2 of the convention shall enjoy protection in all countries”
Which have signed and ratified it. However, few nations did not accept to and ratify the convention. Most, notably Russia and China. Due to their refusal to accede the convention and ratify it. The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was created in the year 1994 with an objective of bringing a larger number of nations into copyright law harmony. “The substantive standards of Berne are incorporated directly into
the TRIPs Agreement.” Since TRIPs is coupled with World Trade Organization, for the purpose of effective implementation of the treaty, WTO created new enforcement mechanisms exclusively for this purpose. WTO already has dispute settlement systems in place & it approves trade retaliation over uncooperative members.
Berne Convention and TRIPS agreement contributed to the upliftment of copyright law. But these two failed to address the secondary liability, there are no provisions in both these agreements which corresponds to the secondary liability. As a result, torrent distribution sites became unaffected by the international agreements. To put it plainly, Berne and TRIPS failed to keep up with the technological developments such as internet devices.
While the supra enunciated agreements were successful in establishing rights in the traditional copyright realms of production, distribution and communication to public sources, the Copyright Treaty of world Intellectual Property Organization developed enforcement beyond customary traditional borders. Articles 11 and 12 of the Copy right treaty added a technological dimension to the then existing international copyright law. These provisions were related to DRM (Digital Rights Management), trafficking copyrighted works, and expanded on the premise laid down by Berne and TRIPS but this new treaty also had done little to provide cause of action over torrent websites. This is because copyrighted works were not infringed directly by the torrent distribution websites.
International law utterly lacks within the space of secondary liability, and thus, fails to deal with the matter of mass infringement via torrent distribution websites. There are several individual nations with laws in situ that do address the problem. However, the existing laws are inconsistent with each other and there are in gross need of harmonization. If these laws aren’t harmonized infringement might constantly persist on the global scale through torrent websites.
2.3. Theories of Liability
Although, International law doesn’t explicitly render anyone responsible for other’s infringement, Secondary liability emerged as a doctrine of common law system and also established as law. The concept of secondary liability can be classified in to 1) Contributory Infringement 2) Vicarious Infringement and 3) Inducement. Brief information pertaining to these secondary liability concepts is mentioned hereunder:
2.3.1. Contributory Infringement
A party “who, with knowledge of the infringing activity, induces, causes, or
materially contributes to the infringing conduct of another, may be held liable as a contributory infringer. In Religious Technology Center v. Netcom On-line Communication Services, Inc. the court held that for contributory infringement, the plaintiff must show that the defendant possess adequate knowledge pertaining to infringing activity on his site. In addition to this, the plaintiff must also demonstrate substantial involvement by the defendant to enhance the infringement process. If the defendant himself knows or has reason to believe the presence of the infringing material on the system, even though he failed to remove it then the defendant is contributorily liable for the infringement. This is the basic test. The court formulated a different test in the case “Perfect 10, Inc. v. Amazon.com” – computer network operator can be held contributorily liable if he has actual knowledge about the specific infringing material that is available using his system, and if he failed to take simple measures to stop further damage to such copyrighted works, yet he continues to provide access to infringing works”. Under this test, an indexing website operator shall have actual knowledge about the specific links to infringing material, yet doesn’t delete the links from his domain. This seems like the situation of majority indexing sites which provide access to the works which have copyright.
2.3.2. Vicarious Infringement
Vicarious Infringement happens when there is a direct infringement and the defendant is in a position to regulate the direct infringer but inspite of regulating him, the defendant benefitted monetarily from the infringement. In Fonovisa Inc. Vs Cherry Auction, a flea market operator was held liable as a vicarious infringer because pirated recordings were sold in his market. The Court opined that the operator could have controlled the vendors but did not do that. He also benefitted directly from renting the shops and charging money from the vendors.
Now a days, many indexing websites started benefitting financially by posting the banned ads on their websites, usually these links are placed alongside the video or important readings, this may amount to vicarious infringement. Indeed, many indexing domains make profits in these ways. However, the indexing websites have a chance to argue that they don’t have control over direct infringement, because it occurs only when the user click on ad or he uploads a photo or video to the banned site.
Many websites encourage and induce their users to upload the videos to the 3rd party websites and sometimes post the location of these uploads in the index of the main sites. These sites sometimes even honor the users who have uploaded major content to the hosting sites. If we go through the process, these indexing sites request the users to upload the links of the new videos which are copyrighted righted works. This is the trend which is going on the websites in these days. One person will upload a new movie or television programs; within minutes it will be downloaded by numerous users. This will seriously affect the rights of the copyright owner, in order to provide remedy to him the hosting sites are made liable for inducing and encouraging the users.
3.BIT TORRENT BY-PASSES THE EXISTING LAWS
3.1. Bit torrent and existing laws
If the Bit torrent service provider was sued for the infringement activity of their users, they would not be liable under the existing laws of contributory and vicarious infringements. Albeit, the distribution process of Bit torrent is of two fold (torrent hosting websites and trackers), the software is designed in such a way that even the service providers need not have control over the activites of websites and trackers. Hosting websites and trackers can be fully independent of the activities of the software providers. In addition to this, the system has no internal search functionality, and it does not create single networks as of Grokmster, napster and other akin technologies. These design features ensure that no Bit torrent service provider would be liable for the infringement done by its users under the prevailing laws of vicarious and contributory infringements.
To put it clearly, any contributory liability would be partly made by the question, whether the technology was acceded as being useful for substantial non infringing works. This may likely to be disputed, because its legitimate uses are profoundly outweighed by the infringing & making them fall in to group of products, for which the judiciary was not able to agree on the proper treatment. It is however relevant to the examination that technology’s present lawful uses are widespread and growing and this include the dissemination of the most popular films, operating systems, games and the data of NASA, ISRO. Majorly, it is also used to encourage data distribution within organization. After adopting this technology for rolling out software to hundreds of servers, social network sites became capable of send updates of 200 megabytes’ size to ten thousand systems in a minute. Its effective ness is such that even high standard content owners like Twentieth Century Fox, brothers and FTV have at various occasions used the BITTORRENT Technology.
If the rule in Sony Corp. of America vs. Universal City Studi, apply, the result is that contributory liability can be made only when BitTorrent has actual knowledge about the third party infringement. The Court in case of Grokster held that in order to fulfill this essential element, sufficient intent must be there at a time when the defendant was attributing to third party infringement or can do some act to stop the infringement. This is the one no software provider can satisfy, as the design of their programming software tells that 3rd party infringement is always beyond their own control. whether the rule enunciated supra applies crucial importance. This is so, even if the intent i.e. knowledge essential could be satisfied, BITTORRENT service providers does not visible to have contributed to the infringement. In view of court observation in Grokster case, the creation of software programmer that provides connection to independent networks without any need for help or assistance from the defendant is not an enough ‘material’ contribution to resultant infringement. Liability of vicarious nature is sometimes out ruled by its technological design. Even though, the defendants were discovered to have the monetary interest in the infringement, they have no right to supervise that infringement within the ambit and realm of existing law and it cannot be held liable.
One of the most fascinating thing about design of bit torrent is the way in which it disproves the opinion that liability resistance & efficiency are mutually exclusive. It was assumed that p2p network provider could not make an optimally effective distribution programmer without a liability attracting level of control over it. Important aspect if that if it has control, it is liable under the established common doctrines of contributory and vicarious infringement. Due to Bit torrent software, Bram Cohen successfully proved that it was possible to make a peer to peer technology that achieves a high value of efficiency even when the service provider is not able to exercise control over networks formed, when users try to distribute a piece of content. BITTORRENT software certainly has some centralized points like torrent hosting sites, indexing sites and trackers which help them in achieving their objectives, but due to the design they can exist independently of BITTORRENT providers. As a consequence, the technology contrary to all agreed wisdom, facilitates the efficient, fast& effortless transfer of content and does so in a way that is protective of the service provider’s liability.
3.2 Current scenario
Current interpretations of Sony and Grokster appear to divert the attention of copyright holders away from the developers of BITTORRENT software and torrent hosting website owners. Even experienced and veteran practitioners of intellectual property cases have expressly admitted they are not in a position to stop the technology. Executive organ of the government is not looking to curb it. It seems that rather, the site proprietors would be targeted and be held liable under doctrine of inducement for maintaining sites consisting links and messages to illegal files. They also suffer liability under the rule of Sony case.
Indeed, with the aid of avenue heralded by the Court, endeavors to wipe out infringement through Internet file sharing would presumably demonstrate unpractical. With the developers of Bit torrent it is likely out of control for copyright owners, their only practical redressal would be to close down Web sites, since these provide the location for the torrent files and the “keys” to infringed copies.
The chance of extremely localized unauthorized exchanging, nonetheless could permit the proprietors to fly under the radar of litigation wing. Besides, many users host Web sites with 3 or more torrents. Meanwhile, the n.o of users hosting these small websites are growing every day, it makes very difficult to locate the central site. Recently One research group conducted survey about P2P file sharing and it has found that about ten percent of the torrent sites they found had more than 90 percent of the torrent files they found were indicating centralised trading system. This Research group says that the torrent sites will grow in a more decentralized manner as the word gets out and millions of users learn the details of file sharing. It is also apt to mention that hundreds of these torrent sites are not even not visible to the copyright holders because these sites will be in various nooks and crannies of the internet. Even, a well-developed web browser cannot locate and uncover the activity done by them.
4. INDIAN SCENARIO
India is one among the top 20 countries in the usage of the Internet. In spite of the fact that it has low Internet penetration rate, India has turned in to a software development center of the world and has turned in to a lovable destination in this field. Due to Increased usage of the Internet, problems of copyright protection related to distribution and digital transmission have become more awful. It is a confusing circumstance. If India gives more grounded legal protection for technological protection and some measures with limited and fair exceptions, it will result in depleting public domain and seriously effecting the public interest Doctrine of copyright. If it failed to provide legal protection for technological measures, Internet might make devastation in enforcement of copyright law i.e. giving protection to holders.
Copyright Act, 1957 has been enacted on par with the international conventions, the present copyright law lags far behind the law prevailing in western countries. As India is not a party to World Intellectual Property Organisation Treaties, it did not enact equivalent legislation for the country. Copyright Act of 1957 does not contain legal provisions pertaining to the measures of technological protection and protection of digital rights information. Indian Penal Code, 1860 enumerated various sections to provide legal protection for technological measures. S. 23 of Indian Penal code defines wrongful gain and wrongful loss concepts. This Section could be applied in cases of unauthorized interference or access to the copyrighted work. Even S.28 of IPC, defines the term counterfeit, this can also be utilized to stop the copying of copyrighted works. In the year 2000, parliament passed Information Act to combat the problems’ relating to cyber space and regulate the electronic commerce. Information Technology Act, 2000 does not lay complete legal framework in order to deal with specific violation of copyright in the Internet domain. There are provisions such as S.42 which deals with penalty for damage to computer, computer system etc.,
4.1 Legal Framework
According to S. 51 of the Copyright Act, 1957, in case if anyone without obtaining license from copyright holder does anything, effecting exclusive right conferred by this Act to the owner of the copyright, this acts amounts copyright infringement. Section- 14 of the Act governs the arena of exclusive rights which were granted to the copyright owners. preparing copies of any work by utilising whatever medium, transferring the work to the people or make copies of the work to public domain fall within the arena of exclusive rights granted to a copyright owner. suppose if any individual is running an internet network like NAPSTER in India, he would be liable for infringing and encroaching upon the exclusive rights or privileges of the copyright owner because he is facilitating the communication of the copyrighted work to the public at large. In addition to this, according to S. 51(1)(ii), if a person takes or allows profits for any place to be utilized for the communication of the infringed work to the public where such sort of communication constitutes infringement, he shall be liable for infringement of copyright. The expression any place in the section could be construed to mean a virtual place, like internet domain.
If he takes an argument like NAPSTER INC that “I am not doing any wrong, I am just listing the works”, eventhough he would be held liable under Section-63 of the Act. In this situation, the person who runs Napster alike system could be made liable of abetment, because without their network it is apparently impossible for the user to communicate and share the copyrighted works. As for the individuals who really make available and upload copyrighted works, the law is very apparent. Section. 14 declares that giving copies of work or communicating the work amounts to infringement. If a person downloads software like NAPSTER and installs the same on his computer is making the copyrighted work accessible to the public, who has the similar software installed on his computer. The user who actually downloads the zip file or normal file consisting copyrighted work is reproducing the same without the express or implied consent of the copyright owner and so he is guilty of copyright violation. Section. 51(b)(ii) of the Act says that copyright is infringed if any person distributes it either for the purpose of trading or to affect the owner of the copyright prejudicially. Any person making copyrighted works accessible in P2P network is not trading the work, but he is distributing the work which is combined, may affect prejudicially to the interest of the owner. Networks such as Gnutella or Kazaa, has no central server mediating the requests of users, it is rather difficult to stop the system within one blow. The affairs are not managed by any one individual or entity. The whole thing is managed by the programmed software and that is already out, eventually millions of people have made copies from that work. You can’t really ban the installation and use if that programmed software is legally used for sharing and transferring files, which don’t have copyright. But persons who use such sort of software for transferring copyrighted works remain liable under the provisions of Indian Copyright Act. Identifying them is rather difficult, albeit potential liability is made uncomplicated to document by the issue that P2P softwares create lengthy user sessions that give adequate opportunity to identify the users back to the point of origin. It is very seminal to enunciate here that the law is only able to accommodate the claims over the 1st generation of Peer to Peer networks (Napster etc). Further, for the 2nd generation Peer to Peer networks, it is recommended that the enforcement is very difficult due to non-availability of resources. Coming to 3rd generation networks, like Bit torrent the Indian legal system is far behind the developed nations.
4.2 Latest Developments
The legal and enforcement structure in the country is just starting to arrive into a place to face these challenged, but the industry fears that the response may not be as expeditious and effective as wanted. There are several positive developments in 2014. First, cinema industry has used orders of John Doe orders, rapidly used in India to point out individual vendors and cable operators, to possess ISP’S disable access to the infringing works.
In Super Cassettes Industries Ltd. v. Myspace Inc. & Another, the plaintiff was awarded an interim injunction against the defendant because the defendant social network was found to be sharing infringing material by committing offence of secondary infringement. Indian record industry has been involved in this case, many complaints are filed against 25 other hosting websites.
It is very difficult for copyright holders to trace and identity the infringer and Internet providers or pirated websites. The Indian music industry has notified authorities of 200,000 songs and probed hundreds of enquiries for pirated and infringed materials online in 2014, however very little was achieved with regard to deleting of infringing content which was hosted on servers, especially those situated overseas. The International Federation of Phonographic Industries, the has been making requests to remove foreign websites which are indulged in content infringement. But the problem is not addressed effectively by the authorities. Where investigations expose that sites have a nexus to particulars in India, the music industry is lodging complaints. In other words, the domestic recording industry is working with the police department on Internet piracy related issues. The cinema industry also commenced criminal action against the pirate websites, seeking action to disable these sites in India under the Copyright Act, 1957. These developments are not with reference to P2P networks, however they are still relevant because they illustrate a starting point to the complications in enforcing laws. The endeavors and efforts required for directing P2P networks are more modern than the ones which were examined previously.
4.3 P2p and India
Hitherto no suit was filed against any Indian peer to peer site, because the sites like Desi torrent, Desi torrents are operated and hosted outside India, giving some rights for protection from the disorganized implementation efforts of copyright holders.
There is uncertainty regarding the intermediary’s liability for copyright infringement. Information Technology Act, 2000 provides immunity to Internet Service Providers and to some online services if they were able to argue and prove that their followed the regulations and standards to prevent infringement. relatively common, if also notoriously underspecified, standards of due diligence to prevent infringement. But this is extremely complicated to prove, however due to the priority given to the Copyright Act, it allows for intermediary liability in cases when the party has “reasonable ground for believing” that infringement is occurring or “knowingly infringes or abets the infringement”. At present, there is considerable debate over the interpretation of these sections.
Not at all like in United States, liability of intermediaries has not been developed in the lines of the contributory infringement doctrine, abandoning the data sharing sites in akin category as other website and network service providers who may link or host the content. In the recent times, T-Series challenged these exceptions on liability in courts, by getting an injunction against the famous site youtube.com for infringing its copyrights over music and it also filed injunction against the domain of My space. There is a need to amend the I.T.Act and to provide adequate remedies to the holder if his rights are violated by the p2p network sites. There is a need to adopt the system prevailing in the united states to combat the menace of piracy and infringement.
5. RECOMMENDATIONS AND SUGGESTIONS
Since the inception of peer to peer networking, many commentators have realized the challenges they would pose and have proposed a catena of solutions. An endeavor has been made to classify these solutions and explain the advantages and dis-advantages of each and every solution, the proposed solutions are enumerated infra.
- Administrative Dispute Resolution Proceeding
- Alternative Compensation
- Copyright Law Revision
- Technological Protection
- Voluntary Collective Licensing
- Voluntary Contribution
The dis-advantage of each of the supra proposed solution is that each solution focusses only on part of the infringing problem. Best method for law makers is to adopt a model by combining the best principles in the above stated solutions. In the recent times, some nations combined the Compulsory licensing model and the alternative compensation by fixing a certain percentage of the funds for specified educational and cultural purpose and for encouraging new authors.
Firstly, there is no complete solution for the unauthorized infringing problem. To decrease the disadvantages posed by P2P technologies, all holders in the copyright industry, policy makers and consumers must appreciate the various models and think about how best solution to enforce in light of their present interests and objectives. They must take in to consideration the de-centralised nature of peer to peer networks, advanced technology and changing market conditions. Instead of giving one solution, law and policy makers must consider a number of solutions. An elaborate solution to infringing problem would include a bundle of solutions with a diversity of characteristics. There should be measures to solve both long and short term problems. Some of the above solutions are well to address immediate concerns but they may change the current position of social norms in the present electronic world. However, these proposals are noteworthy, because they will make the way for remedies that want more time, effort, and resources to enforce, such as education and development of market.
Secondly, as these measures are interim in nature, they may become obsolete, as the technology develops, so the industry must be in a position to change from one regime to another and even sometimes it must be ready to accept both regimes at the same time.
As a result, policy makers should not adopt policy on the basis of prevailing technology, rather they should make policy on the ensuing technology by anticipating and doing some research on it. The question must not be, how the law should be sharing in the world? The question must be that; what law require when the network become advanced and novel? That network is one in which each device with electricity is compulsorily on the Internet; how everywhere you are, you can immediately be connected to the Internet. Imagine the Internet as the most powerful one, you are connected.
Instead of thinking about the solution to stop the access of internet service providers there is a dire need to search for a new solution which protects the rights of copy-right holder on one hand and needs of public on other hand. It is major mistake of policy makers to frame a solution based on the technology that will disappear tomorrow. The question should be how to ensure that the artists and writers get paid, during this sharing between 21st century models for doing trade and technological advancement. As the technologies advances, the threat to copyright holders from Peer to peer technology is likely to lessen. Mobile-to-mobile technologies requiring only telephones are already in practice that will make record and file sharing more widely accessible to the users, majorly in the third world countries, where the expense of fixed telephone service is restrictive. More so, technologies that permit the users to share copyrighted works from one system to another are on the horizon. If policy and law makers target only present technologies, without any hesitation they will be behind and they will not win the game in any circumstance.
Thirdly, in framing a solution, the policy makers must take into consideration about the web structural resistance to mutable characteristics. The structure of the Internet can restrain illicit activities, but it also makes some legal thing difficult, expensive and even impossible. Cross subsidization problem associated with collective licenses will not be reduced by the proposal that band width imposes based on volume of usage. Inspite, it will create bad effects that support the consumption of low bandwidth, such as document files, over high-bandwidth files, such as movie or song files. Such a proposal would also restrict the persons who share domestic videos and movies with their neighbors.
Policymakers should also take notice of the changing social trends in the present digital copyright world and make solutions that meet the needs of users to perform activities in internet space that they used to conduct only in original space. NAPSTER succeeded as it had given a market solution to an emerging trend. If we recall, Fanning was also inspired to create Napster only because of his colleague’s frustration in searching for music files on web. Napster responded to the market demand. Further, durable solutions may invite entrepreneurs to develop products and services that efficiently catch the value of content uses. In monetary terms, such changes may aid to cross the hurdle Indirect Appropriability. Until the industry satisfy the person’s need unlawful online file trading, whether through present P2P networks or within the underground Dark net is likely to continue.
It is the time to acknowledge the truth that infringement cannot be stopped, but it can be reduced but blocking these piracy sites is not the solution. Then will use proxies to access the blocked sites and they can still download the content. Therefore, it is correct time to take steps to fit peer to peer networks within the legal frame work of copy right law.
In order to regulate the file sharing via Bit torrent sites the following are some of the measures to listed out. These measures are best suitable for India.
- Constitute a national anti-piracy task force with an objective to reduce piracy,
- Rejuvenate the IP cells and provide them with adequate resources and there is a need to appoint IP specialized prosecutors in order to be more efficient in dealing with the piracy related problems
- Establish Intellectual Property tribunals and panels with adequate number of judges and this will help in accelerating the judicial adjudication system in civil and criminal cases by imposing fines and sentencing imprisonment to the accused.
- Need for a national-level database to trace Intellectual property criminal cases.
- Promote the usage of original books and scholarly journals at the universities and educational institutions.
- Empower custom authorities to effectuate ex officio confiscations, and to destruct infringed and pirated things
These steps should be considered as beginning points and once the infrastructure is in place, a joint brainstorm of the policy makers should be called to further strengthen and advance the regulatory regime of the country.