A STUDY OF DIGITAL RIGHTS MANAGEMENT IN

COPYRIGHT AND OTHER INTELLECTUAL

PROPERTY RIGHTS

ABSTRACT

SUBMITTED TO FACULTY OF LAW, UNIVERSITY OF DELHI IN

FULFILMENT OF THE REQUIRMENT FOR SUBMITTING THE THESIS
FOR THE DEGREE OF DOCTOR OF PHILOSOPHY IN LAW

SUPERVISOR
Dr. VK AHUJA
Associate Professor
Faculty of Law
University of Delhi

SUBMITTED BY
CHOLARAJA, M.

FACULTY OF LAW
UNIVERSITY OF DELHI, DELHI
2016
 ABSTRACT OF THESIS

The concept of IPRs has assumed significance in the context of contemporary

scientific, economic, social, political and legal environment not just in India but in
the entire world. The technological innovations such as computers, audio recording,
video recording, and compact cassette systems facilitating home taping, cable
television, satellite broadcasting, and the increase of the importance of computer,
software, electronic databases and internet (hereinafter digital technology) in today‘s
life have posed challenges to the intellectual property laws. The increasing
importance of software, computer-generated works, digital databases and the
development of digital technology have changed the way the mother earth functions.
All these technological developments offers new opportunities to create, share and
enjoy works. In particular, the technology has compelled each and every sector to
upgrade and adopt digitization into their own for reaping out more benefits. The
process of digitization of ―works‖1 hugely impacted not only on the creation,
reproduction and use of works but also on their wide-scale distribution and
dissemination of works that are protected by copyright.

In terms of Intellectual Property, the availability of high speed internet, wider choice,
easy access, bigger repertoire, navigation tools, online tractions, links and bridges
have abundantly opened the avenues of commerce, trade, communication and
recreation than ever before. The copyright and other intellectual creations in digital
format are now completely vulnerable to infringement. The internet is at one side, a
worldwide broadcasting tool that provides easy distribution ofcopyright and
intellectual property rights across boundaries and helps dissemination of knowledge.
On the other side, author/IPR holders suffers incalculable damage to their intellectual
property and business on account of various forms of copyright piracy such as online
piracy, software piracy, broadcast piracy, signal piracy, streaming media piracy,

1
Here ―works‖ means literary works, such as novels, poems, plays, reference works, newspapers and
computer programs; databases; films, musical compositions, phonograms, performances, broadcasts
and choreography; artistic works such as paintings, drawings, photographs and sculpture; architecture;
and advertisements, maps and technical drawings; and domain names. See Sec.2(y) and of the
Copyright Act, 1957. Broadcast work sec. 2 (dd) & sec. 37; unpublished works (31A) & anonymous
and pseudonymous sec.23. Thus, UK CDPA, 1956, Part I and Part II Sections 1 to 16 defined
―works‖. Here remember that, Indian Copyright Act does not consider broadcast as a work. But UK
CDPA, 1988, Section 1 says that, broadcast is also a work just like literary, dramatic and musical
works.Even UK copyright Act 1956 had recognized the broadcast as work. Therefore the wording
―work‖ should be read as in same context further.

2
download media piracyand the physical piracy or off-line piracy, counterfeiting,
optical disc piracy, hard goods piracy and circumvention devices piracy, often times
by the wrongdoer/infringer/pirate.2

Even for the pirates,there is no need to have a costly physical storage in place to
reproduce or modify the original ―works‖ to share and transact. They can simply post
or upload thematerials on the website in different forms like linking, framing,
caching, archiving and file sharing. Thus, peer-to-peer (P2P) technologies assist
pirates illegally distribute the copyrighted contents, even without a main storage
server. It is evident that digital technology is being widely used as a big copy
―machine‖, that in turn ―encourages‖ stealing of works.3

The threat of digital piracy in terms of copyrighted works has caused irreparable
economic loss and developed more chaos. To effectively curb such piracy in the
digital medium, protection in the form of Digital Rights Management (hereinafter
DRM) has steadily and successfully came into the limelight. It was developed by
multiple private associates of technological industries such as associations
responsible for Ethernet, Video Cassette-Recorders (VCRs), Moving Picture Experts
Group (MPEG) and Decrypt Content Scramble System (DeCss) and was updated
with the assistance of international bodies like WIPO. This protection was achieved
through implementation of different techniques like encryption & decryption,
marking, fingerprint, digital signature and watermark. The DRM technologies have
become very important in an increasingly networked world because it promises the
owner of the file persistent control over the file even when the file leaves the
owner‘s machine.

In this thesis, focus is made on identifying a practicable design of legal protection of

the technological protection system that can be used as a channel to enhance access

2
Counterfeiting, piracy and bootlegging are not exact terms but all involve deliberate, and generally
fraudulent, infringement of various intellectual property rights—notably trademarks, copyright,
design right and performing rights. See, R v Johnstone [2003] UKHL 28 [UK]; the exclusive rights of
an owner of copyright are infringed when one of the acts requiring authorization of the owner is done
by someone else without his consent. The unauthorized copying of copyright materials for
commercial purposes and the unauthorized commercial dealing in copied materials is known as
―piracy‖. See, WIPO Intellectual Property Handbook Piracy and Infringement para2.232,
http://www.wipo.int/edocs/pubdocs/en/intproperty/489/wipo_pub_489.pdf (last visited on 10th
February 2016).
3
See, Jeffrey P. Cunard, Keith Hill and Chris Barlas, ―Current Developments in the Field of Digital
Rights Management‖, WIPOs Standing Committee on Copyright and Related Rights, 10th Session,
Geneva, November 3 to 5, 2003.

3
to create content by beneficiaries with lawful limitations and exceptions.
Specifically, two groups of beneficiaries are considered: user (user rights), on the
one hand, the owner (creator, author, copyright holder) on the other. To illustrate the
state-of-the-art in the relevant fields, the law and practice in three regions, namely,
India, United States of America and European Union (EU) have been considered.
The thesis also aims at examining cases where the relevancy ofDRM measures as an
effective means to implement limitations and exceptions in the digital environment
were reviewed.

I. Meaning of the Digital Rights Management

The digital copyright environment consists of three main aspects: rights (what can be
protected by copyright) and exceptions (e.g. copies for private use or for public
libraries); enforcement of rights (sanctions for making illegal copies and for trading
in circumvention devices); and management of rights (exploiting the rights).In the
online world, management of rights may be facilitated by the use of technical
systems called Digital Rights Management (DRM system).

The word digital refers to the medium of the worksover which the rights exist,rights
applies to the intellectual property rights, primarily copyright, linked to the work
involved and the term management defines a policy and enforcement mechanism in
such a way that rights are respected; The rights management means tracking and
controlling the use of content, licenses and associated information. Thus, it is
actually the digital management of rightsand not themanagement of digital
rights.4DRM is a system which involves various software technologies that basically
identifies, traces, regulates, protects, monitors and tracks all forms of usages and
access; including management of rights holder‘s relationships over both tangible and
intangible nature of IPRs works through digital watermarking, encryption codes,
digital certificates, secure communication protocols, digital fingerprinting, and trust
infrastructure, among others. Corporations like Apple Inc., Amazon, AT&T, BBC,
Microsoft, Electronic Arts and Sony uses digital rights management in different
fields of digital environment. For example, Apple employs digital rights
management in its iTunes to prevent illegal downloading of musical files and
encourage legal use of the purchased music across different platform. Microsoft uses
4
JISC Study on, ―Digital Rights Management‖, Final Report, 22nd November 2004. Available at:
http://www.jisc.ac.uk (Visited on 29th July 2014).

4
digital rights management in its MS Office business applications to restrict the use of
its product only in limited devices permitted as per the purchase agreement.

The expression ―digital rights management‖ (DRM) has been widely used in
professional (legal & technical) jargon, in the press and the media. However, it does
not appear in the texts of the provisions of relevant international treaties and in the
respective national laws implementing them. Dr.MihalyFicsor, ex-director of the
World Intellectual Property Organization (WIPO), stated that, ―…DRM usually
means the combination of technological protection measures (hereinafter TPM)
(such as encryption of the protected material) and electronic rights management
information (hereinafter RMI) (such as digital identifiers)‖, although in the
professional and journalistic discourse it is frequently used as a reference just to
TPM, and sometimes just to RMI.5

II. Digital Rights Management System and its Legal Protection

For several reasons, the technological protection measures alone cannot be the
answer to the online infringement issues in the long run. The primary reason is that
the TPM, ―no matter how strong‖, will always be vulnerable to attack by dedicated
hackers,who are also engaged in developing advanced cracking technologies using
processing capabilities of computers. Many creators and policy makers believed that
TPM could not be effectively implemented without legal sanction against those
circumventing them or circulating circumvention tools. The TPM system required
appropriate legislative support to ensure that these measures are respected and to
deter the defeat of such measures by parties who might violate the rights of the
content owners.6In response, law makers at both the international and national level
have enacted legal provisions aimed at banning the act of circumvention of TPM on
the one hand and the production and dissemination of circumvention tools on the
other hand.This demand was internationally recognised, when the World Intellectual
Property Organisation (WIPO) in its 1996, Copyright Treaty included a requirement

5
MihályFicsor is president of the Hungarian Copyright Council. From 1977 to 1985, he was director
general of the Hungarian Copyright Bureau. Between 1985 and 1999, Ficsor worked, first, as director
and, then, from 1992 as assistant director general of the World Intellectual Property Organization
(WIPO) in charge of copyright and related rights. He is recognized as having played a decisive role in
the preparation, negotiation and adoption of the ―Internet Treaties‖.
6
Dean S Marks and Bruce H Turnbull, ―Technical Protection Measures: The Intersection of
Technology, Law and Commercial licenses‖, page.7. Available at www.wipo.intWCTWPPT/IMP/3
(Last visited on 23rd April 2014).

5
for countries that join the treaty to provide ―adequate legal protection and effective
legal remedies against the circumvention of effective technological measures‖ that
are used by authors in connection with the exercise of their rights under the treaty or
under the Berne Convention.7Prominent examples of such recognition of protection
against anti-circumvention of TPM, among others, are the WIPO Internet Treaties
(Art. 11 of the WIPO Copyright Treaty and Art. 18 of the WIPO Performances and
Phonograms Treaty), the European Union Copyright Directive (Art. 6 and Art. 8),
the respective implementations of the EUCD into the laws of EU Member States, the
Digital Millennium Copyright Act of USA (Sec. 1201) and the recent amendments
introduced to the Indian Copyright Act (Sec.2(xa), 65A and 65B).

III. DRM system in UK

In the UK, technological protection measures (TPMs) are defined as ―any

technology, device or component‖ used to (i) control access to, and (ii) use of, digital
content. UK law provides legal protection against the circumvention of technological
measures. (S. 296ZF of the UK Copyright, Designs and Patent Act, 1988)8 It also
provides for legal protection against the manufacture of products enabling
circumvention and makes it illegal to produce or distribute tools which enable the
circumvention of protection measures (CDPA S. 296ZB).9The act also introduced
various exceptions like preservation copying by libraries and archives is. The
narrowness of the exception and the TPM provisions would mean that it would be
difficult to preserve digital material in practice. A user may appeal to the Secretary
of State if technological measures prevent them carrying out restricted acts if there is
an exception to copyright that permits them to do so (S. 296ZE). 10 This is a
cumbersome process and has been rarely used. It would be difficult to prove that any
circumvention tools were only intended for use in creating copies under exemptions,
and not infringing copies.
UK law also provides legal protection against the removal or alteration of any
electronic rights management information with the intention of infringement or
concealing infringement. It prevents the distribution, importation for distribution,

7
Herein after WCT. See, Full text of the WIPO Copyright Treaty (WCT) Available
http://www.wipo.int/treaties/en/text.jsp?file_id=295157 (last visited on 10th February 2016).
Herein after WPPT. Both the WCT and WPPT are called Internet Treaties.
http://www.wipo.int/treaties/en/ip/wppt/summary_wppt.html (last visited on 10th February 2016).
8
See, Copinger and Skone James on ―Copyright‖ 2010. Para 15-19 to 15-47 at Pages.986-1001.
9
Ibid at 987.
10
Ibid, 990.

6
broadcasting, communication or making available to the public of works or other
subject matter from which electronic rights management information has been
removed or altered without authority.11

IV. DRM system in USA

USA was one of the first developed countries to ratify the internet treaties of the
WIPO. The United States, where copyright is seen as a kind of ownership right of
literary and artistic works to provide authors with an incentive to create more works,
addressed the problem of copyright piracy with the enactment ofDigital Millennium
Copyright Act, 1998. The fundamental provisions of DMCA are ―to prohibit
circumvention of anti-piracy technologies and it also creates exemptions for Internet
service providers. Section 1201 of Title 17, enacted as part of the 1998 the Digital
Millennium Copyright Act, prohibits anyone from circumventing a ―technological
measure that effectively controls access to a work...‖12 but no ban on circumventing a
technological measure that protects a right of a copyright owner. Section 1201 also
prohibits manufacturing, providing, or trafficking in devices or services primarily
intended to circumvent access controls or rights controls.13
There are a number of exceptions to these anti-circumvention provisions set out under
section 1201,including reverse engineering under sec.1201 (f). But none of them apply
to library and archives copying for preservation.14DMCA it will not affect the scope of
application of the fair use principle.15However, the DMCA anti-circumvention
provision may have negative effect on fair use as indicated in the United States of
Americav.Elcom Ltd and Dmitry Sklyarov Case.16

11
Ibid 999.
12
260 17 U.S.C. § 1201(a)(1)(A) (2006).
13
17 U.S.C. 1201(a)(2) and (b) (2006).
14
17 U.S.C. 1201(d) (2006) provides an exemption for nonprofit libraries, archives and educational
institutions for purposes of determining whether to purchase a work, but it is not applicable to
preservation copying. There are also exemptions for law enforcement and other government activities,
reverse engineering, encryption research, preventing access by minors to material on the Internet,
protection of personally identifying information, and security testing. 17 U.S.C. 1201(e)-(j) (2006).
Catherine Saez, ―WIPO Panel: Rights Management Information At Core Of IP Protection‖,
1st October 2007. Available at: http://www.ip-watch.org/2007/10/01/wipo-panel-rights-management-
information-at-core-of-ip-protection/
15
An exception for private copying for can also be found in Audio Home Recording Act. (17 USC
§§.1001-1010). The applicability of the fair use doctrine to private copying was confirmed in
Betamax decision, which famously showed that time-shifting for personal use falls under the fair use
exception. See, Sony Corp. of America v. Universal City Studios Inc. 464 US 417 (1984).
15
Sony Corp. of America v. Universal City Studios Inc. 464 US 417 (1984).
16
2002 U.S. Dist. LEXIS 9161 on VasilikiSamartzi, ―Optimal vs sub-optimal use of DRM-Protected
work‖, European Intellectual Property Review 2011.

7
V. DRM system in India

The new section 65A introduced by the Copyright Amendment Act, 2012,17mainly
focused on the protection of TPM used by a copyright owner to protect his rights on
the work, makes circumvention of it a criminal offence punishable with
imprisonment. As a result, any person who circumvents an effective technological
measure applied for the protection of any of the rights, with the intention of
infringing such rights, shall be punishable with imprisonment, which may extend to
two years and shall also be liable to fine. The rationale is to prevent the possibility of
high rate infringement in the digital media. This amendment also clarifies the
problem of circumvention impacting the public interest on access to work facilitated
by the copyright laws. Sub-section (2) permits circumvention for specified uses.18

Section 65B has been introduced to provide protection for RMI, which has been
defined under clause (xa) of section 2. This amendment is intended to prevent the
removal of the rights management information without authority and distributing any
work, fixed performance or phonogram, after removal of RMI. As a result, any
unauthorized and intentional removal or alteration of any RMI is a Civil and
Criminal offence punishable with imprisonment, which may extend to two years and
fine. The proviso to the clause states that if the RMI has been tampered with in any
work, the owner of copyright in such work may also avail of civil remedies against
the persons indulging in such acts. So, our Indian approach enshrined in Section 65A
and 65B, is to give limited legislative guidelines and allow the judiciary to evolve
the law based on practical situations, keeping in mind the larger public interest of
facilitating access to work by the public.19

17
Act 27 of 2012, sec. 2(i) (w.e.f.21-06-2012, vide S.O.1393(E),dated 20th June 2012). See, The
Copyright (Amendment) Act, 2012 available at: http://copyright.gov.in/Documents/227-
Copyrightamendment.pdf (Last visited on 28th June 2014).
18
The fair use allows for the use of a copyrighted work ―for purposes such as criticism, comment,
news reporting, teaching, scholarship, or research.‖ In India‘s section 52 (a) and section 52(aa) of
Indian Copyright Act, 1957 says about ―fair dealing of copyright protected work‖. Where section
52(a) is include the work other than computer programme while 52(aa) is only about computer
programme.
19
The fair use allows for the use of a copyrighted work ―for purposes such as criticism, comment,
news reporting, teaching, scholarship, or research.‖ In India‘s section 52 (a) and section 52(aa) of
Indian Copyright Act, 1957 says about ―fair dealing of copyright protected work‖. Where section
52(a) is include the work other than computer programme while 52(aa) is only about computer
programme.

8
VI. Statement of the problem

DRM technologies may seem to be a good news for content owners, be it a record
company, movie studio, news organization or online publisher. However, the
inevitable consequence of the implementation of DRM technologies is full of
inconvenience and needless restrictions onend users of digital media and the
internet.The tension between the necessity to protect ones intellectual property (as
laid down in most countries‘ copyright laws) and concerns over the erosion of ―fair
use‖ issues (as championed by the academic and library communities as well as,
increasingly, by pressure groups for the handicapped) have dominated the discussion
about DRM Systems. While many DRM systems can technically handle both
aspects, their use has so far been geared towards the protection, leading to even more
resistance to the concept and usage of DRM. Thus the aforementioned discussions
can be expected to continue for the foreseeable future.

The DRM system allows more perfect control over access and use of copyright in
digital works. It involves the description, layering, analysis, valuation, trading and
monitoring of the rights over an individual or organizations ‗works‘ through the
standard form license, conditions, terms of service provisions and technology. The
real threat of DRM system is that such an extensive protection, instead of aligning
itself on the contours of copyright, would enlarge the control of copyright holders on
access to and use of copyright digital ‗works‘, and create what some have called
para-copyright.20

The DRM systems are curtailing the traditional usage rights of end-users,
endangering the privacy of customers, security of their systems, enlarging the
complexity and non-transparency of contract terms. There are several clusters of
issues that are hindering the development of DRMs solutions with many unresolved
areas including legal, standards-related, technology and privacy etc. The principal
legal issues that needs to be addressed includes ownership of rights, rights to be
conveyed, what the conveyance allows, and whose laws apply in case of a conflict
involving more than one country. While the author usually owns the rights to a work

20
Jane C. Ginsburg, ―Copyright Legislation for the ‗Digital Millennium,‘‖ 23 Colum.VLA J. L. & the
Arts 137, 140–43, 147–48 (1999); Michael Landau, ―Has the Digital Millennium Copyright Act
Really Created a New Exclusive Right of Access?: Attempting to Reach a Balance between Users‘
and Content Providers‘ Rights,‖ 49 J. Copyr. Soc‘y U.SEC.A. 277 (2001).

9
at the time of creation, legal relationships like employment or work for hire may vest
those rights in someone else. The issue is more complicated in the case of a motion
picture or play, where other right holders may be involved. In addition, rights are
routinely transferred, for example, from an author to a publisher or from one
publisher to another. The DRM system needs to know who owns the right to
authorize the use of a work in whole or part at a particular point in time and then
possibly also who may be entitled to a share of the royalties.

In Eldred v. Ashcroft 537 US 186 (2003) and Golan v.Gonzales501 F. 3d 1179 (10
Cir. 2007) many other issues, like the length of copyright term, the scope and
rationale for moral rights, the criminalization of copyright infringement, the
intersection of copyright and contract/licensing, digital rights management and
technological protection measures and proposals for registration and simplification,
were also raised.21The proliferation of devices and formats can lead to exponential
complexity and increased cost. If not done rightly, the operator can find himself in a
need to build, maintain and operate isolated systems, and integrating these systems
can be a nightmare in itself.

The DRM system enforcement should be in the context of broader societal interests
and especially dealing with development-oriented concerns. In particular, the
protection and enforcement of intellectual property rights should contribute to the
promotion of technological innovation and to the transfer and dissemination of
technology, to the mutual advantage of producers and users of technological
knowledge and in a manner conducive to social and economic welfare, and to a
balance of rights and obligations, as stated under Article 7 of the TRIPS Agreement.

VII. Objectives of the Study

Keeping in view the objects and reasons behind establishment of the DRM system,
the study would analyse the implications of the DRM provisions under the Act to
understand the viability of these provisions. It would identify the areas of concern for
various stakeholders in the copyright system and examine if the DRM provisions
succeed in addressing the concerns of various stakeholders. The study would also
identify the detrimental effects, if any, that are being caused as a result of these

21
Footnote 44, Quoted on Brian Fitzgerald, FupingGao and Damien O‘brien (edits.), ―Copyright Law,
Digital Content and the Internet in The Asia-Pacific‖, Sydney University Press, (2008).

10
provisions. Further, the researcher would identify be the best possible ways of
ensuring better enforceability of the DRM provisions. The main objectives of the
present study are:

To understand the Digital Rights Management (Technological Protection

Measures and Rights Management Information) that will promote
creators/holders‘ opportunities for economy, service and investment etc.;

To identify a policy that can strengthen the relationship between the creator/
copyright holder and the end user, through the contributions of DRMs, which
addresses the monetary interest of the creator and improve efficiency to use the
copyright and intellectual property rights by the customer;

To establish a framework of transparency rules to govern, to reduce unnecessary

condition and regulation of the DRM system;

To give copyright owners and other value chain participants, the means to manage
and protect their rights in published works;

To give effect to elements of law, such as copyright exceptions, for ensuring that
rights are managed in accordance with the public interest; and to provide users
with the means to manage their legitimate personal rights and interests.

To promote India‘s efforts to create a predictable, and free and open global
copyright and intellectual property rights environment.

To draw conclusions on the basis of the above studies and to suggest measures to
address core concerns those are identified in the research study.

VIII. Research Questions

DRM systems are increasingly being developed and used in order to protect the
commercial interests of copyright holders. These systems have developed over time
from singular copy prevention mechanisms towards all-encompassing trusted
systems, enabling the control of digital content throughout its life cycle in a multi-
media context. This thesis attempts to examine the critical issues of implication of
DRM system based copyright protection and their various aspects, particularly in the
context of European Union‘s United Kingdom, United States of America and in
India. So, the main research questions involved in this thesis are as follows:

11
1) What is the necessity and importance of DRM with respect to copyright and
other intellectual property rights in India?

2) What are the issues related to employment of technological measures for

protection of digital contents and what possible methods could be adopted to
strike a balance between the interests of copyright and intellectual property rights
owners/holder and user/public?

3) What are the legal frameworks related to DRM under copyright and other laws in
India?

4) How far the Indian Judicial system is helpful in protecting DRM in Copyright
and other Intellectual Property Rights?

5) How can copyright balance be restored, considering copyright owners‘ increased

control over the use of the work, possibly backed up by the legal system?

6) Can the existing Technological Protection Measures available in countries like

the United Kingdom and United States of America suggest a better mechanism
that can be adopted in India?

All the above mentioned research questions will be critically analysed chapter-wise
and an attempt will be made as practicably as possible to reach a viable solution
which would take in its fold the existing nuances and simultaneously cement any
operational vacuum in the rapidly evolving field.

IX. Methodology

The methodology to be adopted would be doctrinal research involving multi-

disciplinary approach. A library based research was adopted and the data for
research were collected from both primary and secondary sources to find out what
the present scenario is. However, the thesis will not stop at merely identifying the
present scenario, but also use problem, policy and law reform based approach to
make policy and legislative recommendations in terms of improving and
strengthening the DRM in terms of copyright and intellectual property rights. To
enrich the research work, the researcher would also undertake a doctrinal study of
DRM provisions in the United Kingdom and United States of America that have had
over a decade of experience in understanding the effects of DRM provisions. An
integral part of the research methodology will be to develop an appropriate

12
regulatory model to test the compromise of regulatory ability while interpreting
India‘s Copyright anti-circumvention provisions. The citation styles prescribed by
the Indian Law Institute and guidelines pertaining to the rules of footnoting have
been followed throughout the thesis.

X. Scope of the Study

The research seeks to analyse the implications of the DRM provisions under the
existing legislations to understand the viability of these provisions. It would identify
the areas of concern for various stakeholders in the copyright system and examine if
the provisions related to DRM succeed in addressing the concerns of various
stakeholders.

The study would also identify the detrimental effects, if any, that are being caused as
a result of these provisions. To enrich the study, the researcher would undertake a
comparative analysis of DRM provisions in the USA and some E.U. countries that
have had over a decade of experience in understanding the effects of DRM
provisions. This would provide a better perspective in assessing the suitability of the
DRM provisions in India. Further, the researcher would identify the best possible
ways of ensuring better enforceability of the DRM provisions.

XI. Chapterisation Plan

The discussion in each of these chapters will be aimed at testing the hypothesis and
finding the answer to the research questions mentioned above.

Chapter One gives some basic idea about Digital Rights Management system and
its relevance between copyright and intellectual property rights and also deals with
the development of DRM systems issues, scope, and objective of the study and
review of literature.

Chapter Two explains the reasons of DRM system developments, definition and
protection of DRMs through various Acts, Treaties, Judgements, and various other
sources.

Chapter Threedeals with the reasons behind the DRM and its phenomenon of
digitization and its impact on the creation, reproduction, and dissemination of works
protected by copyright and intellectual property. Because of the specific nature of
works in digital format, they are especially vulnerable to misuse such as

13
infringement, piracy, and counterfeiting. In this chapter the relations between piracy
effects and the DRM systems are discussed.

Chapter Four deals with the existing international treaties such as WIPO Copyright
Treaty, WIPO Performance and Phonogram Treaty, and the Beijing Treaty on
Audiovisual Performances (AVBT‘s) that is provided for national implementation of
anti-circumvention provisions. This chapter explains the provisions of these
international documents that are formulated in a broad and technologically neutral
way, and leaves it to Contracting Parties, on implementation, to refine its provisions
and to provide for exceptions to the prohibition and its effects.

Chapter Five deals with the protection mechanism in place in the USA and the
second part with the provisions that exist in the UK and other EU countries. This
chapter would discuss at length the exceptions given to anti circumvention
provisions in different jurisdiction and implementation of the WCT and WPPT in
those countries.

Chapter Sixdeals the Indian scenario extensively. The Copyright Act of 1957 was
drafted with analogue works in mind, it does not directly deal with Technological
Protection Measures and Rights Management Information but the Copyright
(Amendment) Act 2012 introduced Sections 65A and 65B which directly relate to
the protective measures via DRM and with the help of the Information Technology
Act, 2000. So, this chapter will discuss all the merits and demerits of the present
legal protection in India.

Chapter Seven deals with the emergence of current issues on access right, privacy,
and the right to freedom of use, insider piracy, user rights and others in the context of
copyright law. And then, it looks into the constitution of India since it protects the
right to property, the right to education, and the right of access to information. The
chapter also looks to determine whether an express new provision of circumvention
under the Indian copyright law is actually necessary.

Chapter Eight is the concluding part wherein the interpretations emerging out of the
study will be dealt with and this chapter will also have the suggestions from the
researcher for improvement of the proper functioning of the DRM systems. In
relation to the hypothesis proposed, after a wholesome analysis of the issues at hand,
the first hypothesis stands proved, and the second hypothesis proposed stands

14
disproved, as a lot more could be done for the protection of DRM system in
copyright and intellectual property rights via legislation than what currently is an
existence.

XII. Conclusion

The use of DRM designs and anti-circumvention measures conferred new rights
favouring content owners in relation to providing access and control over use of
works, after the sale of their works. The creation of these new rights by application
of technological measures and anti-circumvention measures has in fact shifted the
balance of copyright legislations in favour of the authors. The use of DRM system
has created certain unintended consequences like unnecessary restriction of use of
the work, problems of interoperability, lock out in use of certain works and device,
issues of privacy etc. After such long discussion, India has made changes to its
copyright legislation with the latest Copyright Amendment Act 2012 which
introduced sections 2(ff), 65-A, and 65-B to deal with anti-circumvention measures
for protection of technological measures employed by the content owners for
protection of their digitalized copyright and intellectual property rights. Indian
approach for protection of DRM designs is flexible and commendable when
compared to its counterparts in others countries.
This research after analysing impacts of digitization upon authors comes to a
conclusion that the DRM systems are an inevitable aspect of digital transmission of
protected contents. Application of DRM system alone cannot offer the requisite full
protection for the creator/owners. But, it is very helpful for the holder, even more
than previous IPR legislations, because, DRM systems are additionally helping to
keeping, controlling and monitoring of their IPR works. It is monopolistic control
over a lucrative consumer electronics market; DRM occupies a somewhat different
position in the market. Legal backing is therefore required to provide an effective
and adequate protection to the content holders in digital environment. However
while implementing these provisions it might happen that the balance created by
copyright legislations would be shifted in favour of content holders. When two
conflicting interests come face to face it is not possible to draw an exact line of
balance and in such situations, public interests of entrepreneurs are not
compromised.
The thesis draws suggestions for a balanced anti-circumvention provision on the
basis of analysis of provisions of WIPO internet Treaties and relevant treaties,
United States of America‘s Digital Millennium Copyright Act (DMCA), European
Union Copyright Directive (EUCD) and Copyright Amendment Act, 2012. A
balanced and effective anti-circumvention rules shall contain the following requisite
elements:-

15
Definition for the terms ―effective technological measures‖ and ―the acts of
circumvention‖ in clear and unambiguous manner. It must also specify whether
access control technological or rights controls technologies are to be included
within the ambit of effective technological measures. The said definitions shall
be exhaustive and shall give room for future technologies and measures.

Prohibit acts of circumvention and not exactly the circumvention technology.

Indeed there would be an enforcement issue relating to anti-circumvention
measures as most of circumvention happens at home and it would be easier to
restrict manufacture of circumvention technology rather than individual cases.
But prohibition of preparatory acts would hamper research in this area as well as
availability of circumvention technology for legitimate purposes. An alternate
option would be to prohibit preparatory acts in circumvention technology which
are intended for infringement purposes.

Legislature shall provide broader specific exceptions to anti-circumvention

provisions to ensure that the users and general public by large are not deprived
of legitimate uses provided under copyright legislation by spreading access to
information. Additionally making circumvention provisions specifically subject
to fair use provision already established under the copyright laws would be
another means to maintain copyright balance.

The legislation must provide for a mechanism that would periodically review the
possible impacts of these provisions of several industries as well as on fair use
provisions and legitimate rights of the users. Additionally the legislationmust
provide for any government agency or copyright boards or copyrights societies
working within the jurisdiction of Copyright Office to deal and analyse the
issues relating to legal protection to technological protection measures.

Under this proposed system the copyright holder who employs technological
measures should have to register their technological measures with the
concerned agency and provide them with the requisite circumvention technique
and when an application is provided by an interested user eligible under fair use
provisions, these agencies can provide access to the work after taking some
negotiated royalty amount.

16
Most of the domestic legislation while enacting anti-circumvention provisions has
ignored to make a link between circumvention and copyright infringement.
Circumvention of technological measures should be prohibited only when it led to
infringement of copyright granted to the copyright holder. Copyright Amendment
Act, 2012 has specifically included this provision by providing the term intention of
infringement rights22within the anti-circumvention provisions.

The issue created by DRM designs are not limited to copyright law and hence
copyright law alone cannot provide solutions to all the created by employment of
digital rights management designs, it requires a multi-dimensional approach where
assistance can also be taken from Information Technology, Customs, Competition
and Consumer Protection legislations. Copyright legislation can play a pivotal role
for developing a balanced anti-circumvention rules by being a platform for sharing
balanced benefits can reach both content holders and users.

According to my analysis, the following key principles should govern

implementation of DRM system:

DRM systems should complement the free movement for research, education,
survey, in particularly for all persons with disabilities (PWD);It should be
proportionate to any perceived infringement/piracy threat;

The DRM systems standards should not be mandated by Government unless

interoperability cannot be guaranteed otherwise – DRM should be based on open
standards;

The DRM system should allow all broadcasting signal and services without any
interference to the researcher, news purpose, education and public policy matters;

The DRM systems should allow all users to take advantage of copyright law
exceptions without any free-conditions.

The DRM systems should help facilitate clearance of rights, and should not
hinder the collective administration of rights; and there should be no liability for
third party infringement after DRM implementation.

The DRM systems should not prejudice legitimate privacy interests at any cost.

22
Section 65A of the Copyright (Amendment) Act, 2012.

17
The amended Act, 2012 has given boost to copyright law, but various issues are not
specifically covered by the act, such as technological protection measures (TPM),
rights management information (RMI), payment issues, media convergence, domain
name, cybersquatting and jurisdiction which have wide-ranging ramifications for the
growth of e-commerce in India. The DRM system provisions may provide a
guarantee that the copyright works has not been altered subsequent to its
transmission, but not itself provide conclusive protection for creators.

In many countries it is believed that, there have been real efforts by collective social
responsibilities to become transparent, in an effective manner to solve any kind of
problem. The state cannot do anything without co-operation of their subjects. At
same time, state should look primarily at people‘s welfare and not for private
industries. The maximsaluspopulisupremalex, which means ―the welfare of the
people is the supreme law‖ should be followed at any cost. This can be achieved
only when the justice is administered lawfully, judicially, without fear or favour and
without being hampered and thwarted, and this cannot be effective unless respect for
it is fostered and maintained.23 So, the Judiciary should give an appropriate rule
applicable to rights within the penumbra of copyright, as well as the intellectual
property rights.

If I had to choose between having a DRM system with copyrighted works on the one
hand and DRM system without copyright works on the other hand, I would have no
hesitation in preferring the latter. I would rather have a completely free DRM
conditional access system with all the dangers involved in the wrong use (piracy) of
that free use of copyright works than a suppressed or regulated DRM conditional
access system. The real, radical cure for the DRM conditional access system would
be its abolition.

The Indian user today is witnessing a baffling array of issues in DRM conditional
access system and fair use. The sources of the problems around us are many,
including societal attitudes, conflicts rooted in history, the weakness of institutions,
financial complexity, and economic inequality. However, what is undeniable is that
law, and in particular the importance of the rule of law, are constant themes in all
public discussion.

23
Pritam Pal v. HIGH Court of Madhya Pradesh, (1993) Supp (1) SCC 529: AIR 1992 SC 904.

18
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The Constitution of India26thNovember 26, 1949

Copyright Act, 1957
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The Telecom Regulatory Authority of India Act, 1997
The Cable Television Networks (Regulation) Act, 1995
The Code of Criminal Procedure, 1973
The Customs Act, 1962
The Cinematograph Act, 1952
The Design Act, 2000
The Patent Act, 1970
The Code of Civil Procedure, 1908
The Indian Penal Code 1860
Digital Millennium Copyright Act of 1998
The Copyright, Designs and Patents Act 1988
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The Berne Convention for the Protection of Literary and Artistic Works
(1886-1971)
The Paris Convention for the Protection of Industrial Property (1883)
International Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations (1961)
Convention for the Protection of Producers of Phonograms Against
Unauthorized Duplication of Their Phonograms (1971)
Convention Relating to the Distribution of Programme–Carrying Signals
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The Agreement on Trade-Related Aspects of Intellectual Property Rights
(1994)
The World Intellectual Property Organization Copyright Treaty, (1996)
The World Intellectual Property Organization Performers and Phonograms
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WIPO Performances and Phonogram Treaty (1996)
Beijing Treaty on Audiovisual Performances (2012)
The Marrakesh Treaty to Facilitate Access to Published Works for Persons
who are Blind, Visually Impaired, or Otherwise Print Disabled (2013)

19
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