Digital rights management and the public interest

By Saipriya Kumeria, Lall Lahiri & Salhotra
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Technology has made it easy to store, share and transfer data, whether for business or recreational purposes, almost instantaneously and without any loss of data quality. This has dramatically impacted the consumption of entertainment. One can easily download music or movies from the internet, store it for multiple use – and, often, make little or no payment for it.

Saipriya Kumeria Associate Lall Lahiri & Salhotra
Saipriya Kumeria
Associate
Lall Lahiri & Salhotra

Unsurprisingly, this has let to angst and controversy in the entertainment industry, with new formats such as mp3 and devices such as iPods embodying both new opportunities and new challenges as consumers utilize the technology to share and transfer digital content without any payment to the content creators.

These technologies have also made it vastly easier for pirated copies of entertainment products to be distributed. The losses sustained by the global economy as a result of software piracy run into billions of dollars every year.

These problems led to the birth of digital rights management (DRM) technologies, whereby producers of entertainment content began including safeguards in their digital content to restrict the manner in which the end user could use and convert a digital file.

The basic aim of DRM technologies is to inhibit the use of digital content by including safeguards in the software files that make them inaccessible to certain devices and cannot be replicated without authorization and payment.

Such technologies are included in music files that can be legally purchased from providers such as iTunes and MSN, video and movie downloads and, to an extent, on various software titles for personal, scientific and commercial use. DRM technology also restricts the type and specification of hardware that can be used to access digital content.

DRM primarily serves the needs of copyright holders, software manufacturers and service providers in the entertainment and IT industries. The technology has turned a challenging situation around: revenues from the sale of both DRM-protected digital content and the devices used to play that content have soared, due to the accessibility and portability that the overall system provides to consumers. For example, most iTunes files can only be played on certain Apple devices, and the rights to such content and hardware are fiercely protected by Apple. Such exclusivity generates exceptionally high revenues. Other content providers make similar use of the technology, with the objectives of containing piracy and ensuring that revenue is duly received for digital content.

Since DRM-protected files cannot be converted easily – at least, not without loss of content quality and payment of required fees – it is unviable for software pirates to create duplicate copies. However, DRM technologies need to be continuously updated to thwart the pirate technologies that are constantly being developed to bypass DRM protection.

DRM creators must also ensure that the new technologies can continuously support older file versions, so that legitimately purchased content does not become unusable due to the advancement of protection technology.

Despite its strengths as an anti-piracy measure, DRM has generally been controversial due to its restrictive nature. The aim of the copyright regime is to ensure that creators of works receive their dues in economic and moral terms. However, the rights of copyright holders must be balanced with the public interest.

DRM technologies often closely restrict the use of files, eliminating even some legal, fair uses by the purchasing public. Sometimes legally procured content cannot be played on legitimately purchased devices because the two are incompatible. As a result, public domain and free use content is greatly reduced.

To an extent, DRM has received legal backing in the US and in a few European jurisdictions, such as France. Article 11 of the Wipo Copyright Treaty (WCT) of 1996 mandates member countries to enact laws against the circumvention of digital protection of content. This was implemented in the US through the enactment of the Digital Millennium Copyright Act, and in Europe through the European Union Directives.

However, since (on the one hand) public interest is often jeopardized through such regimes, and (on the other) allowing inter-operability of content despite DRM negates the purpose of the law, these laws are often considered controversial and are not yet universally accepted.

Indian copyright laws reflect the mandates of the Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement, but since India is not a signatory to WCT, Indian laws do not provide any additional protection to copyright holders. However, a proposed amendment to the Copyright Act aims to include a provision for DRM in India by altering section 65 to state that “any person who knowingly makes, or has in his possession, any plate for the purpose of making infringing copies of any work in which copyright subsists shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.”

While the introduction of DRM laws is aimed at ensuring due returns for copyright holders, it threatens legitimate public interests. Until a mechanism for protecting these interests is devised it would be pointless to implement such laws. Since India has no obligation to enact such laws, any introduction of such provisions at this stage would be premature.

Saipriya Kumeria is an associate at Lall Lahiri & Salhotra.

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