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--------------- Print Magazine --------------
  May 2016
  April 2016


Changing Face of Legal Publishing

By Manish Arora

Internet has changed the whole dynamics of publishing. It is now no longer a world of paper and ink, but a world of 'bytes'.

Thanks to the Internet, a publisher is now able to don many hats - that of not only a publisher but also a distributor of electronic content. So, the publishers must recognize the rapid strides that the technology has made and 'book' profits from such advances.

For this an e-publisher must have knowledge of Intellectual Property Rights, like Copyright Act, 1957, Trade Marks Act, 1999, Designs Act, 2000 and the Information Technology Act, 2000. It is imperative that he also knows the limitations of these enactments.

Limiting Legal Rights for E-Publishers

Technology is a double-edged sword. On the one hand, it is creating new means to fix the original expression in a tangible form and on the other it is being exploited in infringing the copyrights with impunity. Even some of the Internet activities, like caching, browsing, mirroring, scanning, downloading, uploading, or file swapping are an anathema to a purist.

  • Caching - It is used to improve response time for end users. It means copying of a web page/site and storing that copy for the purpose of speeding up subsequent accesses.
  • Browsing - A software driven process for searching the world wide web using a browser.
  • Mirroring - It improves service for the users by replicating a web site across various servers all over the world and make available the critical information to all the users at all times.
  • Downloading - It means to receive information, typically a file, from another computer via modem.
  • Uploading - It means to send information, typically a file, from another computer via modem.
  • File-swapping - A "peer-to-peer" transmission of digital files from one computer to another via the Internet.

The question is whether such activities really infringe the five exclusive statutory rights of a copyright owner, such as:

(a) to fix (store) the information in a tangible form;

(b) to reproduce the copyrighted work;

(c) to sell, rent, lease, or otherwise distribute copies of the copyrighted work to the public;

(d) to perform and display publicly the copyrighted work; and

(e) to prepare derivative works based on the copyrighted work.

The answer is yes . Internet activities like caching, browsing, mirroring, scanning, uploading, downloading or file swapping may result in:

(a) transmission of information from one computer system or network to another, involving temporary storage (RAM) of that information;

(b) an unauthorized storage of such information which is a violation of the copyright owner's exclusive right to make copies, i.e. to reproduce the copyrighted work;

(c) a violation of the copyright owner's exclusive distribution right;

(d) an appearance of a copyright image in a web browser infringing the copyright owner's public display right;

(e) an infringement of the copyright owner's exclusive right to prepare derivative works.

That is, prima facie , the nature and characteristic of Internet activities is such that there will certainly be infringement to the exclusive statutory rights of a copyright owner.

Surprisingly, the Copyright Act, 1957, in the present form, has no provisions against those who violate the copyright owner's statutory 'exclusive' rights to fix (store), reproduce, distribute, public display (perform) and/or re-arrange (adapt) [section 14], when they cache, browse, upload, download, scan or transmit any information (copyright material) on the Internet without seeking authorization from the copyright owner.

Even section 52 of the Act, which contains provisions on fair dealing is silent on Internet related activities like caching, browsing, uploading, downloading etc.

An 'e-publisher' must also realize that he can no longer enjoy the 'trade mark' protection, which he used to enjoy in the physical space to the digital world. For example, take the case of 'Universal Law Publishing', we have a website, www.unilawbooks.com , that provides details of our company. For the domain name, unilawbooks.com , we are the registrant. But we cannot stop anyone from registering domain names, like www.unilawbooks4u.com or www.iloveunilawbooks.com . There can be innumerable domain names using all kinds of permutations and combinations. The bottomline is that it is not possible for an 'e-publisher' to enjoy the full trade mark protection he enjoyed as a 'publisher'.

It brings us to the question, are the days of physical books over? No publisher will ever admit this, but this is what the future holds for most of us. With increase in the Internet connectivity, people would rather 'browse' than 'read'; they would rather prefer to 'click' than 'turnover' a page. One may argue that e-books would never be able to replace 'physical books' as 'e-books' do not provide that physical touch, that heavenly feeling which a reader experiences while holding a book in his hand. But all said and done, the writing is clear - if today 'bytes' are complementing the 'ink', one day, they may supplement it.

A publisher stands at a crossroad; it is desirable that he starts planning the crossover from the 'tangible medium' to the 'intangible medium'. It is a virtual reality for publishers - adopt now or face deletion later!

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