by January 1, 2007 0 comments

You buy an e-book or a sound track online and there is an attached condition
that you can read the book for a whole year (a year being defined in the
software as 365 solar days from the time you activated your purchase) or
transfer your music to any other device a total of 5 times. In the
beginning, you might think that everything is hunky-dory, till you find that
there were 500 pages in the e-book and you’re on the very last page when your
book reader software harshly prohibits you from reading it because you just ran
out of licensed time. Or, you cannot transfer and play your favorite melody in
your car stereo because the limit for the number of transfers has been reached.

While the experiences detailed above may resemble what’s been your own
personal experience, they have caused the anti-IPR activists to demand a saner
world for ‘rights protected’ content. Digitized content like the traditional
(non-digital) content is subject to similar if not worse issues of copyright,
DRM, licensing issues and so on. But are the woes of RPC (rights protected
content) so much that the purpose of rights protection seems cruel and unjust?

Protected content
There are various ways to protect your content. When it comes to the digital
world, the issues are slightly more complicated.

Consider this: if I buy a hard bound book and give it to you, I have
physically transferred the book to you. And with it goes my ability (or ‘right’)
to read that book. Now I may photocopy the pages or the whole book and so on,
but that’s a different issue (called piracy). When I buy a digital version of
the same book, say as a PDF file, I can easily give you a copy of the book,
retaining a copy for myself. Such copying is the bane of digital content rights
management. The number of issues that we pointed out at the beginning of this
discussion stems from methods being adopted to prevent such ‘unauthorized’

Similarly encrypted DVDs prevent their being copied for legitimate uses-like
someone creating a backup of his favorite movies on another medium. Activists
like the EFF (Electronic Frontier Foundation) term this as unilaterally
eliminating the public’s fair use rights.

To eliminate infringements, one must also consider why that occurs. For
instance, if one were to take the case of computer software, then price is the
main culprit. After all, who wants to pay tens of thousands of rupees for
software that will be outdated in less than a year? For instance, even before
Microsoft released the latest edition of their Visual Studio .NET 2005 (a
developer environment), they started work on its successor codenamed ‘Orcas,’
which is already into its first beta! Similarly, in the entertainment industry,
the reason maybe more of getting your hands on a new release early enough. The
cost of printing copies on a global scale is prohibitive to let the content
publishers (like movie houses and record labels) release something worldwide.
So, they do it in a staggered fashion. And, by the time it reaches some
countries, it maybe a few months later. At that time, the novelty of having seen
or heard it has long worn off. How many times have you seen the ‘latest’
Hollywood flick only to be told hours later by a friend or colleague that he has
already seen it in the US the previous October?

"The IT ACT 2000 does not mention about intellectual property rights, copyright, trademark or patents."
Pavan Duggal, Advocate, Supreme Court of India at the FICCI (July 2004)

Fashion players in the EU are so worried over counterfeiting that all
passengers at EU airports are being randomly sampled for counterfeit goods they
may have purchased. So, if you bought an imitation Gucci bag at Palika Bazaar
(or any other imitation goods market), do not carry it with you if you’re
planning a trip to one of the EU countries. Penalties are severe and even
include imprisonment. Illegal tourist street traders (ones that sell you fake
watches and cameras at popular tourist spots) in Italy are fined up to ten
thousand Euros on the spot.

The key question is what recourses are available to the creators of an IP
when an infringement occurs. The Indian industry and foreign analysts believe
that the IT Act of 2000 was a step in the right direction. It gives the law
enforcement some teeth and adds penalties against violators. One necessary
element of such protection is the ability to inspect premises and seize evidence
at will (on suspicion). This privilege has been granted to the Indian law
enforcement agencies via the IT Act. However, this act does little to let law
enforcement agencies raid a location suspected of being the venue for the
Bhai-ka-adda, where scores of software copies are created sitting over gunny
bags. Known Supreme Court advocate Pavan Duggal made exactly the same argument
at a presentation to the FICCI in April 2004.

Did you know?
You are not
protected globally if you hold a registered trademark, copyright or
patent in one country. You need to file and be granted the rights in
every country where you think you might encounter
violations/infringements. One way around is for your country to sign
up as a WIPO member and file registrations through this body.

What is needed?
Something more concrete and something that’s enforceable. Countries like
Malaysia and Hong Kong have adopted something called an OML (Optical Media Law).
The OML has provisions similar to what the IT Act gives us for cyber crimes-the
right to inspect at will and seize and destroy IPR violating goods. The model
OML also seeks to license and control (via de-licensing or stopping) entities
involved in optical media piracy activity. They legislated on optical media than
something else because it is the most popular method of information distribution
today. You get software and entertainment material on CDs and DVDs (and soon on
HD-DVDs and dual layer discs).

That said, the industry agrees that optical media will be imminently
displaced by networked downloads. While they are not sure if the bandwagon would
be specially crafted delivery sites, P2P downloads or content sharing mechanisms
(like YouTube), they do agree that this is the way you will see content
distributed (and pirated) in the future. Traditional forms of trying to prevent
piracy include various forms of disc encryption and adding signals that are
transparent to the human eye but destroy quality of input to a recording device.

Policing Digital Content

Hugh L Stephens
Sr VP, International Relations & Public Policy, APAC, Time

One of the reasons why content gets pirated is
its late release in some parts of the world. For instance, Hollywood
movies are released a few months late in India…

The staggered release format is there for a reason-cost of prints.
Using modern digital film does reduce the costs, but one must
consider the right timing for a release. For instance if a product
makes sense for the summer holidays, one must keep in mind that the
American and Australian summers do not happen at the same time of
the year! So, yes theoretically piracy can be brought down with
right timing… but this is difficult to do in practice.

How do you protect IP interests given the likes
of YouTube?

The problem is one of scale. No one can actually manually sift
through the pile of video or audio to identify violating content.
Yes, the future of digital distribution is the Internet (or via a
download). With this, one would also take advantage of differential
pricing-i.e., content could be priced based on how long it needs
to be stored or how many times it can be used or if one should allow
it to be replicated a limited number of times or shown to friends.
Technology exists today to allow such kind of control and pricing.

You mentioned that vast amounts of digital
content cannot be manually sifted through. So, what’s the way out?

There should also be efforts made to make legitimate download sites
more accessible. Poor accessibility of these sites is the reason why
illegal download sites have become popular. At the end of the day,
there are only so many ideas that are unique.

You are personally the proponent of an Optical
Media Law. What are the key elements of such a law?

There should be a competent authority for oversight, inspection and
record keeping, that should be able to issue production licenses for
media creation plants, with the authority to revoke or suspend their
operations if found in violation. Licenses would be issued to
manufacture and export material as well as equipment. An SID
(security identifying) code would be applied to all media to trace
it back to its manufacturing plant. Rights holders will be able to
issue authorization to plants for production of a specific quantity
of material. The enforcement authority would have the right to
inspect at will as well as seize, dispose or destroy material in
violation. There should be a deterrent penalty against violations.

WIPO (World Intellectual Property Organization) is a self-financing UN
organization with a special interest in IPR and IPRE. To draw benefits from WIPO
resources and commitments, a country needs to be a signatory to the WIPO
treaties. WIPO administers an international bureau that accepts and processes IP
registrations and applications. The organization is tasked with developing
international IP laws and standards, providing IP protection services, promoting
the use of IP for economic development, educating users and bringing members
together for discussions on intellectual property rights and their protection.

Other Side of DRM

Cory Doctorow Activist and novelist 

DRM systems are usually broken in minutes,
sometimes days. Rarely, months. It’s not because the people who
think them up are stupid. It’s not because the people who break them
are smart. It’s not because there’s a flaw in the algorithms. At the
end of the day, all DRM systems share a common vulnerability: they
provide their attackers with cipher text, the cipher and the key. At
this point, the secret isn’t a secret anymore.

New media don’t succeed because they’re like the
old media, only better: they succeed because they’re worse than the
old media at the stuff the old media is good at, and better at the
stuff the old media are bad at. Books are good at being paper white,
high-resolution, low-infrastructure, cheap and disposable. ebooks
are good at being everywhere in the world at the same time for free
in a form that is so malleable that you can just paste bomb it into
your IM session or turn it into a page-a-day mailing list.

The hardware-dependent ebooks, the DRM
use-and-copy-restricted ebooks, they’re cartering. Sales measured in
tens, sometimes hundreds. Science fiction is a niche business, but
when you’re selling copies by the ten, that’s not even a business,
it’s a hobby.

Technology that disrupts copyright does so because
it simplifies and cheapens creation, reproduction and distribution.
The existing copyright businesses exploit inefficiencies in the old
production, reproduction and distribution system, and they’ll be
weakened by the new technology. But new technology always gives us
more art with a wider reach: that’s what tech is for. Tech gives us
bigger pies that more artists can get a bite out of. That’s been
tacitly acknowledged at every stage of the copyright since the piano
roll. When copyright and technology collide, it’s copyright that

Which means that today’s copyright-the thing
that DRM nominally props up-didn’t come down off the mountain on
two stone tablets. It was created in living memory to accommodate
the technical reality, created by inventors of the previous
generation. To abandon invention now robs tomorrow’s artists of new
businesses and new reach and new audiences that the Internet and the
PC can give them.

There’s one thing that every new art
business-model had in common: it embraced the medium it lived in.
This is the overweening characteristic of every single successful
new medium: it is true to itself. The Luther Bible didn’t succeed on
the axes that made a hand-copied monk Bible valuable: they were
ugly, they weren’t in Church Latin, they weren’t read aloud by
someone who could interpret it for his lay audience, they didn’t
represent years of devoted-with-a-capital-D labor by someone who had
given his life over to God.

The thing that made the Luther Bible a success was
its scalability: it was more popular because it was more
proliferate: all success factors for a new medium pale beside its

Licensed under Creative Commons License from

Internet Treaties
Finding information and hiding it is equally easy on the Net, but tracking usage
of that information (which can happen in the offline world) is a very difficult
task. WIPO offers a combination of two different treaties: WCT (copyright) and
WPPT (performances and phonograms). There are new methods of recording, copying,
distribution and control. The Internet is the most common method for
distribution today. For this reason, the duo of WCT and WPPT is referred to as
the Internet Treaties.

IP can include traditional cultural expressions, knowledge and genetic
resources of a geographical region. To protect all this, currently, WIPO
administers 24 international treaties that include 16 on industrial property and
7 on copyright issues. The US DMCA (Digital Millennium Copyright Act) and the EU
Copyright Directive are two well known implementations of the WCT and WPPT.

At the time of writing this piece, India is not a signatory to the WIPO
treaties although we have participated in many forums involving WIPO proposals,
drafts and discussions.

  • 9,00,000 trademarks registered. Will
    reach 1 million by 2009. China is the 8th largest trademark user
    in the world
  • There were 1.4 million patents filed in 2004
    (total of 5.4 million patents active worldwide) and the
    trend is growing at 4.75% for the past 10 years
  • 7.4% patents are filed cross-nation for better international
    rights protection

What infuriate the user community against protection mechanisms and checks and
measures are the sometimes strange uses of copyright or licensing laws. In one
instance, Microsoft had invoked the DMCA against Slashdot posters, who had
published the specifications of Microsoft implementation of the Kerberos
Protocol. Criticizing the move, Georgetown law professor Julie Cohen contended,
“A publisher can prohibit fair-use commentary simply by implementing access
and disclosure restrictions that bind the entire public.

Anyone who discloses the information, or even tells others how to get it, is
a felon.” See the box elsewhere in this story for extracts from a speech from
noted activist Cory Doctorow, delivered at a Microsoft briefing on digital
rights management.

Similarly, HP resorted to region-coding their ink cartridges, and software
that’s embedded on the cartridge reported the unit to be empty even if it
still had ink, after a preset time interval. The region coding prevents use of
those cartridges in printers belonging to different regions, similar to DVDs
with the same technology.

India and IPR
  • Institute of Intellectual Property Research
    and Practic
    e based at Noida and Gurgaon educates and assists
    corporates on IP related issues (
  • The Rajiv Gandhi School of Intellectual
    Property Law
    of IIT Kharagpur teaches and researches IPR law

Final word
Copy protection and DRM are good things to prevent unauthorized usage and
duplication of creative art. But, there must be the limits defined and
protection techniques should stay within those limits. When protection
technologies start preventing fair use, then users will complain and find ways
to break the chains and locks. Let the person coming to the cash clerk withdraw
his money in peace. The moment tedious or complicated red tape is introduced, he
will find ways to rob the bank to get his money.

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