Journal of Intellectual Property Rights

Vol 20, November 2015, pp 388-397

Effective Applicability of Sections 65A and 65B of Copyright (Amendment)

Act, 2012 using Case Study of Digital Watermarks
Prateek Chakraverty†
†
Jindal Global Law School, OP Jindal Global University

Received 26 February 2015; accepted 12 August 2015

With increasing utilization of Technological Protection Measures (TPMs) to protect digital copyrighted works,
legislative changes to counter their misuse become necessary. With this objective, Sections 65A and 65B of the Indian
Copyright (Amendment) Act 2012 were introduced. Section 65A delineates the Anti-Circumvention Law for effective
TPMs while Section 65B protects the associated Rights Management Information. Several digital watermarking techniques
are widely used for different kinds of protection to digital images, video, audio, databases, websites and e-books.
The “effectiveness” of digital watermarks is prone to subjective assessment, not only because of their sheer variety in types,
techniques and applications but also due to rapid technological advancements that continuously reshape the standard of
“effectiveness”. Given this malleability, a case-case analysis of “effectiveness” may involve expert technical knowledge
that is beyond legalese, thereby inviting miscalculation in justice due to subjectivity. In this paper, the scope and remedies
for effective legal applicability of the aforementioned provisions in the light of certain grey areas are discussed.
These include lack of a specific standard of “effectiveness” and invitation of corresponding technical excesses, skewed
quantum of punishment, and the need to bring into ambit certain transformations that can lead to infringement without
violating existing laws.

Keywords: Section 65A, Copyright (Amendment) Act 2012, technological protection measure, digital watermark, Digital
Rights Management
With the advent of the digital age, copyrightable years imprisonment and fine. Section 65B makes it
works are increasingly being produced in digital an offense to remove or alter digital rights
formats. The proliferation of digital media has led to information without authorization and to distribute
increasing violations of copyright and Digital Rights any copyrightable works from which the digital rights
Management (DRM) through rampant online attacks, information has been removed.
thus putting such works to risk of counterfeiting, Of all the TPMs that are in vogue, digital
fraud and theft.1 However, the demand for such media watermarking is the one most widely adopted for
is overwhelming due to their ease of production, according a variety of protection to digital documents.
distribution, display and storage.1 In the backdrop of The end result of watermarking is a transformed
such paradox, owners of digitally encoded document produced when the watermark, which is a
copyrighted works resort to Technological Protection digital pattern, is inserted into an original document in
Measures (TPM) to ensure their security against a manner such that its usability remains practically
malicious or benign online attacks. unaffected. Digital watermarks are intrinsically linked
TPM includes a range of techniques such as digital to their host documents, thereby providing them a
locks, encryption, passwords and digital watermarks. durable, persistent identity and permanent protection
These techniques enforce a variety of access controls, as opposed to other TPMs such as Cryptography.
copy controls and DRM on the digital objects. Digitally watermarked images, audio and video
The Indian Copyright (Amendment) Act, 2012 have been used since long and are quite common. 2
incorporates certain provisions to provide legal Of recent, digital databases, e-books and websites are
backing to TPMs. Section 65A makes circumvention also being watermarked for adding a layer of security
of an effective technological measure that protects when they are launched in the web-sphere.
any of the copyrights a punishable offense with two It is expected that the use of watermarks as a
—————— cost-effective TPM will increase manifold in future as
†
Email: prateekchakraverty9@gmail.com we veer towards a knowledge society where besides
 CHAKRAVERTY: EFFECTIVE APPLICABILITY OF SECTIONS 65A AND 65B OF COPYRIGHT ACT, 2012 389

images and video, well-researched and carefully be tapped by adversaries to counter these TPMs and
crafted databases serving as information repositories render them ineffective. This poses a challenge to the
are produced copiously. legal mind: how to define and interpret contextually the
The predominant use of digital watermarks is in the term “effective technological measure” as enunciated
context of Intellectual Property Rights (IPR) and in Section 65A in a scenario where technological
copyright protection. Digital watermarking is also used innovations as well as watermarking techniques and
for sending across secret messages in steganographic applications are constantly in a state of flux?
applications.3 For the purpose of this paper however,
we restrict our discussion to its IPR applications. Contributions
Watermarks aids in establishing ownership proof in In this paper, a re-look at the Articles 65A and 65B
legal disputes, owner identification, detection of illegal is taken in the context of watermarking as a TPM.
tampering, enforcing copy control and access control, Arguments are illustrated like how on one hand, it
carrying digital rights information, tracking the cannot be said for certain that a given watermark falls
transaction path of a document, and authentication of within the scope of Section 65A, as different kinds of
content.3 Thus, watermarks cover the entire spectrum such watermarks have different levels and standards
of copyright and DRM. The use of watermarks of effectiveness. On the other hand, there is no
permeates to electronic governance, electronic clear, legally codified criterion for determining
commerce and creative works of individuals.4 In the “effectiveness” of digital watermark. In fact, not even
light of such widespread applications and popularity, the minimum acceptable level of effectiveness is
watermarking would definitely fall within the scope articulated. Thus, there remains a void in determining
of Sections 65A and 65B of the Copyright the standard of “effectiveness”. In light of such
Amendment Act. ambiguity, we propose to delineate the legal scope of
“effectiveness” of Technological Protection Measure
and propose remedies for the highly popular digital
Motivation
watermarks to fall within the purview of the
Section 65A qualifies technological measures with provisions.
the term “effective”. In other words, those watermarks Some other aspects of Sections 65A and 65B are
which are “ineffective” will not fall within the scope looked upon that can lead to ambiguity in dispensing
of Section 65A. However, the legal endeavor is a justice. Firstly, difficulty in establishing the intention
precise one and it is observed that “effective digital behind the very act of circumvention is examined and
watermark”, in its technical sense, does not convey all then deciding the quantum of punishment this entails.
kinds of watermark, thereby leaving it to the Courts to Secondly, highlighting the analog hole problem and
decide whether a particular kind of watermark fits the some other transformations that can circumvent
bill to be accepted as an “effective” TPM. watermarks without leaving a trace, but these commonly
It is contended that the choice of a watermarking occurring scenarios have not been considered. Suitable
technique for any given application involves a careful changes in these sections are presented so as to bring
consideration of the possible trade-offs between these situations into the ambit of law.
various conflicting factors. For example, it is possible
to use a highly secure watermark, but this may result Overview of Digital Watermarking
in a compromise on efficiency.5 Some other factors In order to understand the benchmarks for
include minimizing the degradation of image quality, assessing the effectiveness of different watermarking
eliminating false positive rates that deceive users into schemes, the variety of watermarks that exist must be
thinking certain works are watermarked when in-fact appreciated, along with their security applications and
they aren’t, and robustness to withstand alterations. their vulnerabilities. A brief tour of the domain of
With so many factors coming into play, no digital watermarking is present here.
watermarking scheme can be perfectly full proof.
Indeed, it is difficult to assess the overall The Watermarking Process
“effectiveness” of watermarks considering all The process of watermarking begins with the
qualitative factors. selection of a watermark that is to be inserted within a
Furthermore, as new watermarking techniques are document sought to be protected. The watermark
developed, the very same technological advances can itself is simply a digital pattern of zeros and ones
390 J INTELLEC PROP RIGHTS, NOVEMBER 2015

which can be derived from any digitally encoded text, to malicious attacks with common signal
image, audio or video clip chosen or prepared by the processing techniques.3 Hence, their design
document's owner. Though it can be any arbitrary entails specialized algorithms that can resist
pattern, a watermark usually carries meaningful alterations in the watermark due to signal
information about the identity, origin and copyrights processing.
associated with the owner and the document. This
pattern is superimposed on the original document by Classification According to Degree of Robustness
an embedding device called encoder, in a manner  Robust watermarks can withstand repeated
such that the quality of the document is hardly attacks with malicious intent to destroy the
degraded and it remains useful. Now, the embedded watermark. However, hard an attacker
watermarked document is ready to be launched into may try to destroy it, the watermark still remains
the web-sphere for its intended application. The intact. Robust watermarking is used for
embedded watermark may need to be extracted later establishing ownership of the watermarked
by another device called decoder. document.
The process of watermark insertion as well as Robust watermarks are susceptible to a variety of
extraction involves a set of secret parameters known attacks. Image based watermarks can be exposed to
only to the owner. The parameters depend upon the modification attacks, geometric attacks, cryptographic
watermarking algorithms employed and can include attacks and protocol attacks.3 Increased robustness
one or more encryption keys. Though not mandatory, ensures the watermark survives many image edits and
it is best to register the watermark and the secret file format conversions. Watermarks in digital
parameters with a trusted legal entity so that legal databases can be attacked by tuple addition, deletion
succor can be obtained without any hitch, if a dispute and alteration, attribute deletion, addition and re-
arises later due to infringement. ordering, randomization attacks, rounding off attacks,
bit based attacks and linear transformation.12
Types of Digital Watermarks Robustness is achieved by inserting the watermark in
Unlike paper watermarks, digital watermarks are of profusion all over the database.
various kinds with different characteristics and
applications. Watermarking techniques designed for The Self-Help Property of Robust Watermarks
images and video are broadly classified as perceptible If at all the attacker succeeds in destroying the
(or visible) and imperceptible (or invisible) watermark after massive attacks, he/she lands up with
watermarking. 6 Invisible watermarks are further a highly degraded, unusable version of the original
sub-divided into robust, fragile and semi-fragile types. document. For example, an invisible watermark can
For digital databases and books, watermarking be robustly embedded in the most significant
schemes can be grouped into two major categories: region(s) of the host image such that tampering that
robust and fragile. Various classifications of digital portion with an intention to remove or destroy the
watermarks are: watermark will degrade the aesthetic quality and
value of the image.8 Likewise, in a digital database,
Classification According to Degree of Perception the attacker is forced to delete, modify or add several
 A perceptible (or visible) watermark is records just to spoil the embedded watermark that
unobtrusively noticeable in the watermarked invariably spoils its utility. Herein lies the
image or video. 7 Visible watermarks can be technologically enabled “self-help” features of robust
destroyed or removed by active human watermarks; they need not rely upon law to prevent
intervention with image editors. An effective circumvention as the very act of circumvention
watermarking scheme must be robust against such defeats the purpose of infringing copyrights.
attacks. Nevertheless, legal backing puts in place necessary
 Imperceptible (or invisible) watermarks are deterrents.
completely indistinguishable from the original  A fragile watermark achieves just the opposite of
cover images into which they are embedded. robust watermarks - even the slightest change
Unlike visible watermarking where removal made to a document alters the watermark
involves human intervention, invisible immediately.10 The watermark is essentially a
watermarks in images are particularly susceptible “signature” of the original document which is
 CHAKRAVERTY: EFFECTIVE APPLICABILITY OF SECTIONS 65A AND 65B OF COPYRIGHT ACT, 2012 391

embedded in it discreetly. Fragile watermarks are fingerprint or prerecorded voice. 9 This helps in
used to detect tampering attempts to change the authenticating the contents of the watermark
contents of the watermarked document. document.
A problem with fragile watermarks is that it is not  Robust-Invisible for access/copy controls:
possible to distinguish between malicious attacks Robust-invisible watermarks are specially used in
and unintentional benign attacks.14 professional video to enforce copy control by
 A semi-Fragile watermark is “midway” between a writing a “no-copy allowed” diktat. Likewise,
robust and fragile watermark as it involves access control can be enforced by recording the
trade-offs from both of them. Such watermarks allowed usages of the video and enlisting players
are more robust than semi-fragile watermarks and that are allowed to access the video. The
they carry the content's signature.14,15 They also watermark can be read by a detector so that it
show enhanced resistance to image processing knows whether the player is authorized to access,
based attacks.10 Since robustness requires an read or copy the content and where the source of
attacker to make several attempts to be able to the content originated.17 Thus, robust-invisible
infringe the watermark, semi-fragile watermarks watermarks are useful in implementing DRM.
can distinguish between malicious and benign  Invisible-fragile for tamper-proof: Invisible and
attacks. fragile watermarking schemes are used to
Both fragile and semi-fragile watermarks are establish whether a watermarked digital media
subject to certain identified frequent attacks such as was illegally tampered with in any way.13 This has
information leakage wherein the attacker tries to immense value for collecting evidence of illegal
obtain information about the authentication key by a copyright infringement and therefore must be
random walk through the image and protocol brought under the ambit of anti-circumvention
attacks.14 Thus, semi-fragile and fragile watermarks provisions.
have a very high risk of circumvention.  Invisible-Semi-fragile for tamper-proof with
Classification According to Type of Copyright Protection
intent: Just like fragile watermarks, the main use
Each combination of the visibility feature and the of such watermarks is integrity verification/
robustness feature gives certain unique properties to tamper detection.16 However, a certain degree of
the watermarks which can be used for protecting the robustness is added so that a few attacks will not
copyrights in different ways. alter the watermark but more intensive attacks
 Visible-Robust for displaying copyright: They are will destroy it. This helps to show the intent of the
used for publicly released images and video to attacker, whether it was malicious or unintentional.
show the copyright-holder's logo and copyright
information. The primary aim is to provide Generic Features of Watermarks
copyright protection by deterring unauthorized As discussed in the previous sub-section, different
use of publicly released images and safeguarding kinds of watermarks have specific characteristics that
the commercial interests and brand image of the can be used to enhance their individual efficiency.3
organization associated with the digital image However, there are certain common features that can
content.7 be applied to evaluate their general effectiveness,
 Invisible-Robust for ownership proof: An such as:
invisible watermark is content-rich, holding  Embedding efficiency: This is the probability
specific information about copyright, owner ID, that a watermark is correctly detected in a
address and details of the image document. watermarked document immediately after
Therefore, invisible robust watermarks can be embedding, i.e. before being exposed to attacks.
used for establishing the identity of the owner of Ideally, this probability should be 100%, but
the work in case a legal dispute arises.10 Thus, practical considerations of efficiency and fidelity
such watermarks are valuable to gather requirements may necessitate a compromise.
unambiguous evidence of ownership and deserve  Detection probability: Probability that a
legal backing against their circumvention. watermark that is embedded within a document is
Furthermore, the watermark can also include correctly detected and extracted without knowing
biometric identification such as the owner's any of the secret parameters.10 For a watermark to
392 J INTELLEC PROP RIGHTS, NOVEMBER 2015

be effective, such probability should be extremely tampered with or not. Semi-fragile watermarks further
low. allow discrimination between malicious and benign
 Fidelity: It refers to the perpetual similarity tampering efforts. These are all evidence-oriented and
between the watermarked and the original help establish copyright violations, rather than
versions of the cover work.18 A good directly enforcing copy or access controls. Thus, they
watermarking method retains high fidelity. undoubtedly serve the purpose of protecting
 Robustness: It is the ability to withstand copyrights and are admissible from that point of view.
alterations caused by transmissions over a lossy Invisible robust watermarks carry DRM information
channel or by malicious attacks that try to remove and enforce copy and access controls. Visible
the watermark or try to make it undetectable.10 watermarks deter copy attacks by direct human
 Payload: In order for more information to be intervention. Hence, it is found that all kinds of
included in a watermark, a bigger payload needs watermarks pass the test of protecting copyright either
to be embedded.10 by direct enforcement or by providing strong evidence
 False positive rate: False positive rate is the or by carrying DRM information.
frequency with which a watermark is expected to A distinct advantage of digital watermarks is that,
be detected in a non-watermarked document. 18 It being embedded within their host documents, they
must be kept low. provide permanent protection as long as the document
 Cost: A watermarking scheme can be considered is live. This contrasts other TPMs such as passwords
effective if the cost of extracting the watermark and digital locks which are separate from the
through unauthorized means far exceeds the cost document.
of purchasing the watermark legally from the Difficulty in Assessing Effectiveness
copyright holder by paying royalties. Note that Section 65A positions the word “effective” before
the economic model of watermarking is highly technological measures. It is this clause that turns out
complex and application-specific. to be a grey area in the proclamation of the Act.
The above features can be used to measure the Section 1201 of the Digital Millenium Copyright Act
robustness, efficiency and quality of watermarks by that clearly spells out circumvention of “effective
observing results of experimentation using standard access controls” as an offense.19 Thus, whereas the
benchmarks. For example in the case of robustly circumvention of access control TPMs is culpable
watermarked images, the degradation in the quality of (barring specified exceptions), one is legally allowed
the image and the extracted watermark before and to circumvent copy-control TPMs. This is in sharp
after being subjected to different kinds of attacks, can contrast to the Indian legislation, which is silent on
be measured in terms of the Peak Signal to Noise any specific type of TPM that cannot be
Ratio (PSNR) of the watermarked image/extracted circumvented.
watermark when compared with the original cover This may imply “presumably, TPMs could not be
image/watermark.8 used to restrict access, only to restrict copying,
Applicability of the Relevant Law communication to the public, and that gamut of
The overview in the previous section brings home rights.” as pointed out in the reputed cyber expert
certain points about the applicability of Sections 65A Pranesh Prakash’s post.23 The writer implies that a
and 65B in the context of watermarking as TPM. TPM applied for the purpose of preventing access to a
A discussion ensues: copyrightable work is not admissible under Section
65A. However, we note that the access control TPMs
Watermarks Satisfy the Copyright Protection Criterion prevent illegal access to a copyrighted work. If its
Section 65A requires that technological measure circumvention is allowed, then an attacker can access
used should be meant for protecting any of the rights the work without paying royalty and subsequently sell
conferred by the Copyright Act. Emphasis is made on or distribute it. Therefore, it is concluded that the
a point that all watermarks satisfy the copyright absence of any particular TPM in Section 65A
protection criterion. As discussed in the above sub- actually broadens the applicability of the clause to all
section, robust watermarks mainly provide evidence effective technological measures that protect rights
on the ownership of a document and fragile accorded by the Copyright Act. It includes
watermarks help prove whether its contents were watermarks providing access-control, copy-control
 CHAKRAVERTY: EFFECTIVE APPLICABILITY OF SECTIONS 65A AND 65B OF COPYRIGHT ACT, 2012 393

and DRM protection either directly or by dint of their indicates image quality, the correlation factor
ability to gather evidence on ownership, tampering or indicates correspondence between original and
authenticity as the case may be. extracted watermark, and the factors precision,
This generic qualification would inevitably create recall and accuracy assess biometric identification
problems as it is near impossible to find a universal in authentication based applications.
standard for measuring “effectiveness” as observed in  The technology-driven race: A prevalent paradox
the case of digital watermarks. The next point further is that the very same technologies that are used to
dwells upon this aspect. Discussion in the previous develop innovative watermarking schemes are
section brings home the point that the overall available to attackers who can tap them to
effectiveness of a watermark can involve trade-offs create circumvention tools. This triggers a race
along different qualitative parameters. There are between developers and attackers and a result,
different levers such as robustness, fragility and the benchmark standards for “acceptable
payload size that can be tweaked to adjust the overall effectiveness” need to change with time to remain
effectiveness of watermarks. Some illustrative relevant.
examples are as follows- In all the above cases, application-specific trade-off
 Robustness versus fragility: These two goals are considerations would force a compromise along
recognized to be mutually contradictory. different qualitative dimensions. The moot point is,
Therefore, if one desires both proof of owner does this render them ineffective?
using robust watermarks as well as proof of The interpretation of effectiveness is contextual,
tampering using fragile watermarks, a dilemma depending upon the intended application and the
arises. One may have to reduce the degree of relative priorities of different quality features that it
robustness in order to incorporate fragility and demands. It is found that there is no fixed standard of
vice versa. effectiveness as the permutations and combinations of
 Encrypted versus plain watermarks: The security various parameters for specific kind of watermarks do
of a watermark can be enhanced by encrypting it not conform to a single reference point. Hence,
with a secret key before embedding, thus making it would be the task of the court to determine
it extremely difficult to “crack” the watermark effectiveness of a digital watermark. Unfortunately, in
contents randomly. However, the price of the situation when a digital watermark is found to be
enhanced security reduces the speed of watermark “ineffective” due to lack of technical foresight,
extraction because an extra decryption step is Sections 65A and B would not be attracted and the
required. For real time applications such as rights of the claimant would not be secured. Thus, the
streaming video-on-demand, this may be harmful. concerned legislation in its current form is not without
 Payload versus fidelity/robustness: A robust lacunae.
watermark may include owner-specific and Transformations Ignored in Section 65B
document-specific details in it. Now if the Section 65B prohibits deletion and alterations to
watermark length increases significantly, it may the digital rights information carried by a TPM. It
have an adverse effect on either the degree of may be noted that digital watermarks are intrinsically
robustness or fidelity. For example, the owner embedded within the cover document and can suffer
likes to add his/her biometric information such as mutilation whenever the watermarked object itself is
fingerprint, voice, face image or iris image into a changed in any way. Now the document can be
watermark to authenticate the contents. But this attacked by the same methods such as deletions,
would invariably bloat its size and if the content- additions and modifications. More significantly, its
to-watermark ratio exceeds a limit, the contents can be “transformed”, i.e. changed from one
document's fidelity to original will suffer for a form to another. Classic transformational attacks on
desired degree of robustness. If however fidelity multimedia objects are JPEG compression for images
is maintained, then the level of robustness may and MPEG compression for video. An image can also
reduce. be rotated, skewed etc. In digital databases, a
 Effectiveness–a composite measure: Effectiveness particular field (attribute) can be linearly transformed
is a composite measure of several factors with from one unit to another, say centigrade to fahrenheit
different metrics for each. Thus, the factor PSNR for temperature field. The watermark can be
394 J INTELLEC PROP RIGHTS, NOVEMBER 2015

destroyed in the process of such simple or complex Therefore, following alternative routes have been
transformations. However, Section 65B in its current suggested-
form, is amiss in not including such a possibility.  Enumerate the different kinds of TPM explicitly
in Section 65A so that the qualifier “effective”
Questionable Quantum of Punishment
can be applied to each watermark according to its
There are several situations wherein an unwary
specific combination of features.
user may infringe the watermark such as when
unauthorized parties insert watermarks in case of  Define the word “effectiveness” such that it is
fragile watermarks and an innocent party fall his universally applicable for all cases involving
hands on the damaged protected content. In such TPMs.
cases, “intention” may be hard to prove. Therefore,  Remove the word “effectiveness” altogether from
imposing criminal sanctions would be an excess the impugned sections.
quantum of punishment as circumvention with Now, taking into consideration all the
intention may not be possible “beyond a reasonable aforementioned proposals, the solutions can be
doubt”. contretized as follows:
(a) Explicitly enumerate different kinds of TPMs:
No Provisions for the Analog-Hole Problem
It is contended that the traditional distinction made
The Analog-hole problem refers to a frequent
between access-control and copy-control TPM/digital
occurrence in mainstream commercial media
watermark is redundant. Firstly, a person who
protected by a digital watermark. A pirate can simply
bypasses a TPM to gain access to a work, would in all
sneak in a camcorder into a poorly monitored room
likelihood copy as well as distribute the work, after
where a movie is being screened, record the analog
circumvention of the TPM. Secondly, current
output in this analog device and then re-converted it
technology allows a common watermarking scheme
to digital form. This process can completely obliterate
to be used for access as well as for copy control. We
the watermark and at the same time, the attacker
also believe that both direct controls as well as TPMs
escapes the liability of direct circumvention of a
that serve to provide evidence are “effective”
TPM. Pirates can also use analog signals audio from
protectors of copyright. Each of the evidence-oriented
loud speakers and video on a display to dishonestly
watermarks effectively serve the course of law by
market them by digitizing them and then distributing
serving as useful evidence in case of dispute and
the files.20 Sections 65A and 65B do not include any
indirectly deters infringers from distributing the
explanation or even a reference to the analog-hole
concerned work. The recognition that circumvention
problem to highlight it as a special case of
of both kinds of TPM whether access-control or copy-
circumvention.
control by circumvention tools is found in Canadian
Bill C-32 – the counterpart Canadian statute that aims
Recommendations
to prevent circumvention of works protected by
The Indian Copyright Act 1957 vests in the person
TPMs.22 In the light of these arguments and in order
holding a copyright a bundle of rights including,
to remove any confusion about the admissibility of a
inter alia, rights of reproduction, communication to
watermark before its effectiveness is evaluated, Section
the public, adaption and translation of the work.21
65A can explicitly state “effective access control, copy
The discussion so far clearly indicates that the
control and evidence based technological measures”.
legislation related to TPMs needs ironing out in order
This will enable each type of protection measure to be
to seamlessly accommodate within its ambit, the highly
evaluated according to its own set of features.
popular digital watermarks, in order to bring to justice
(b) Universally applicable effectiveness criteria:
unauthorized circumventors and to prevent imposition
Theoretically speaking, an effective watermark would
of disproportionate liability on innocent infringers. In
be one which is unobtrusive, discreet, easily extracted
this context, the following solutions have been
and robust or fragile as the case may be.25 However, it
proposed-
has been seen, practically the investigation for
Define the Scope of the Word “Effectiveness” in Sections 65A measuring “effectiveness” would involve a
and 65B consideration of wide-ranging factors, differing in
It is observed that problems may arise if the case of different kinds of watermarks. Instead of
word “effective” is left undefined in the Act. venturing to forge a universal standard of
 CHAKRAVERTY: EFFECTIVE APPLICABILITY OF SECTIONS 65A AND 65B OF COPYRIGHT ACT, 2012 395

“effectiveness”, certain simple criteria can be laid out. may leave their mark on a fragile watermark. Further,
One of them can be the requirement of a secret key to the 'deadlock problem' is a frequent occurrence
extract the TPM. The existence of key ensures that an wherein a pirate inserts a watermark in publicly
attacker would find it difficult to guess it randomly available content and claims he or she is the
and hence a minimum acceptable level of security is legitimate owner of the copyright-protected content.26
ensured. Encryption, passwords and locks require a Current watermark-based copyright schemes are
key in any case. With such a stipulation, owners of unable to establish who watermarked the data first.24
watermarks will also encrypt it with a key before The basic essence of such problem is that multiple
embedding. Another condition can be that the quality ownership claims cannot be factored to the real
of the watermarked document should not fall below identity. Thus, notwithstanding the methodology of
an acceptable level when compared with the original. insertion and its effectiveness, the factual problem of
These two simple criteria can effectively resolve the ownership remains. Other ownership based problems
judicial process in analyzing the word “effectiveness” include situations when attackers remove embedded
of a digital watermark. watermarks, cause embedded watermarks to be
(c) Remove the qualifier “effective” altogether: undetectable, replacement of existing watermark with
It is alternatively proposed that the word a false one and insertion of an additional watermark
“effectiveness” in the Section 65A of the Act be into copyright-protected content.24
removed as the same is redundant. It may be noted
that the distinction between access control and copy (b) Questionable Intent Behind Infringement
control TPMs is now blurred.24 This has been It is quite probable that an innocent attacker may
recognized to be a problematic distinction in critics of incur liability. This may be due to duplicity of
the DMCA Act.24 Such a distinction does not exist in ownership claims as observed above, when a person
the Indian Copyright Act, 2012. It is suggested that unknowingly tampers with a digital watermark, or in
the main purpose of the inducted provision is other such innumerable situations where it is
protection of rights vested by the Act. The liability of improbable to calculate the intention behind an
the infringer is with respect to the damage done to the “accidental” infringement of digital watermark. Given
protected work including damage done to the the popularity of the technique in media, documents
TPM/watermark itself. The circumvention of a TPM, and works, it is quite probable that hundreds of claims
howsoever be ineffective, should not be a ground for may arise with respect to circumvention of digital
the infringer to escape liability in case he has watermark, with questionable intent behind
intentionally infringed upon the rights of the infringement. In light of the vast scale of use of digital
copyright owner. The point holds further substance in watermark, as observed above, there would be an
light of the fact that it is practically impossible to undesired deterrence on consumers of information
arrive at a legal standard of “effectiveness”, as protected by digital watermarks due to apprehension
observed above. of accidental tampering and thereby incurring
punishment of two years and fine. In other words, the
Modify Quantum of Punishment criminal provision's standard of proof is 'beyond a
The quantum of punishment as specified in the reasonable doubt'. In effect, this situation brings out
impugned sections is very high considering the fact several contradictions, namely: one, low scope of
that the infringement of digital watermark may be convictions due to the ambiguous nature of the word
miscalculated on grounds of questionable ownership “effective” and questionable intent behind
claims, questionable intent behind infringement and circumvention, thereby defeating the purpose of
vastly frequent occurrence of infringement thereby Section 65A which is protect the rights vested in the
inviting undesired deterrence on consumers from Act. Two, the high quantum of punishment acting as
accessing works. In order to appreciate the probability deterrence to consumers of information protected by
of miscalculation, each of the aforementioned grounds digital watermarks, as observed above.
is discussed below- In view of the above miscalculations in
adjudication of claims of infringement of digital
(a) Questionable Ownership Claims watermarks, it is proposed that the quantum of
Digital watermarks may have variable ownership punishment for circumvention of TPM be reduced to
claims. This may occur when unauthorized parties the standard of 'preponderance of probabilities' as
396 J INTELLEC PROP RIGHTS, NOVEMBER 2015

opposed to 'beyond a reasonable doubt'. In other words “removes” and “alters” in Section 65B(i). The
words, in case intent is questionable, as would be the word “transform” is different from the word “alters”
case due to the high rate of usage of digital as the former refers to conversion of signal from one
watermarks in mainstream media, and the medium (digital/analog) to another (digital/analog)
preponderance of probabilities tilts towards the whereas the latter refers to change in content of the
defendant, punishment may only be restricted to fines. protected work after circumvention of the TPM
Further, in case of proven malicious intent behind (digital watermark).
circumvention, penal fines may be awarded. Lastly, the legal framework is built on incentives
and deterrents. In this case, the analog-hole problem
Include Provisions for Tackling the 'Analog-Hole' Problem usually occurs in the entertainment sector. The sector
The investment put in by the owner of a work in enjoys a huge public outreach. Therefore, a
putting of TPM such as digital watermark must not be substantial deterrent may be in place in the form of
let down by an instance of analog-hole based substantial fines exceeding the cost of the concerned
bypassing of the TPM. To curb the malpractice of digitally-watermarked work, taking cues from the US
tapping the analog-hole, the US Congress introduced legislation. Such penal provision may be appended to
the “analog-hole” legislation, also known as the Section 65A circumvention of TPMs in digital works
Digital Transition Content Security Act 2005, which that have artistic value by the convenient analog hole
is not yet enacted but promises to act as an effective would incur liability to the tune of multiple of the cost
deterrent on such malpractice of circumvention of of the original work
TPM.
IT has been argued above that the word Conclusion
"effectiveness" is redundant in the context of Section Digital watermark is an important TPM that
65A. Thus, it would be prudent to consider including protects all aspects of copyrights and DRM through
provisions that specifically deals with the analog-hole evidence collection, access controls, copy controls
problem. This is further substantiated by the fact that and carrying DRM information. It is highly popular in
such problem is persistent for all TPM, regardless of the movie industry as well as the State for protecting
their effectiveness. the copyrights of their digital content. However, since
In order to include provisions regarding the analog- it is transmitted and spread over a network, it has a
hole problem, we may take cues from US' Digital high vulnerability towards attacks/circumvention
Transition Content Security Act 2005.”27 A detailed thereby attracting the scope of Sections 65A and 65B
scrutiny of the proposed legislation may find of the Copyright (Amendment) Act, 2012. Taking a
relevance in the Indian Copyright (Amendment) Act closer look at the Section 65A, it is observed that it
2012 as an Explanation to the Section 65A, including lacks clarity on the words "effectiveness" and
the analog-hole problem within the scope of the word "circumvention". The standard for measuring
'circumvention' as follows: Circumvention of a TPM effectiveness of a TPM such as digital watermark is
includes usage of an analog video input device or highly subjective to context and kind of watermark.
related technology for the purpose of converting into Further, the technical benchmarks of measuring such
digital form an analog video signal that is read from a effectiveness may be beyond the effective scrutiny of
prerecorded medium containing digital copyrightable a court of law. In the same vein, the word
work protected by a TPM. In other words, if a person "circumvention" needs explanatory footnotes which
knowingly converts a copyright-protected work with clarifies to the reasonable person not ordinarily
TPM such as digital watermark into an analog signal schooled in technical knowledge to include specific
and then reconverts it to digital format using an instances of tamper-detection and analog-hole
analog video input device, he would be liable for problem, as such do not directly involve infringement
circumvention of the TPM, notwithstanding the fact of the concerned TPM but in effect is able to bypass
the conversion from an analog signal did not include a the protection afforded by the concerned TPM.
TPM as the prerecorded version was obtained from Particularly, the analog-hole problem is an important
the original work protected by TPM. situation which occurs on a large scale due to
In order to allow for protection of Rights proliferation of digital media, and needs redressal in
Management Information, due to the analog hole the legislation by inclusion of the word "transforms"
problem, the word “transform” may be added to the in addition to the phrase "removes or alters" in
 CHAKRAVERTY: EFFECTIVE APPLICABILITY OF SECTIONS 65A AND 65B OF COPYRIGHT ACT, 2012 397

Section 65B(i) of the Act. Lastly, in light of the 13 http://www.ijecse.org/wp-content/uploads/2012/08/Volume-

frequent usage of works protected with TPM causing 1Number-3PP-1232-1237.pdf (accessed on 6 July 2015).
14 http://www.ijcaonline.org/volume3/number4/pxc3871013.pdf
high probability of accidental circumvention coupled (accessed on 6 July 2015).
with the fact that it would be difficult to ascertain 15 http://crpit.com/confpapers/CRPITV44Wu.pdf (accessed on
"intent" behind the technical circumvention, the 7 July 2015).
quantum of punishment may be different from the one 16 Different kinds of watermarks are “effective” for different
reasons and circumvention may not be the criteria for
for ordinary copyright infringement which involves measuring efficiency (ref. Invisible watermarks), as opposed to
both imprisonment and fine. It is proposed that the the central theme of the legislation i.e. Sections 65A and B.
subject to a case-case basis by delineating civil 17 http://www.mondaq.com/india/x/370058/Copyright/Protectin
damages for general circumvention and criminal g+Copyright+In+The+Digital+Environment (accessed on
penalties for circumvention with proven malicious 7 July 2015).
18 http://www.m-hikari.com/ams/ams-2012/ams-73-76-2012/
intent. venkatesanAMS73-76-2012.pdf (accessed on 8 July 2015).
19 Access control technologies are technological protection
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