Open Access Research Article
COPYRIGHT INFRINGEMENT IN ECOMMERCE AND LICENSING ISSUES
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COPYRIGHT INFRINGEMENT IN ECOMMERCE
AND LICENSING ISSUES
AUTHORED BY - AKANKSHA YADAV
Licensing is an important part of
regulation of the copyright and striking a balance between the rights of
copyright holders as well as ensuring that the wider public is able to utilize
an invention or new technology. It is also very vital for protection of a
copyright. That is why it becomes important to study the licensing concerns
that are present in protection of copyrights in digital space. There is also a
need to study how the infringement of such licenses is dealt with by the
judiciary. Moreover, there are different types of licenses and different
protection is given to each. With an increase in the number of ecommerce
platforms and the increase in the technology, there is a need to look into the
liability of ecommerce websites in case there is a copyright infringement on
their platform. This liability is treated differently by different
jurisdictions and often protected by the safe harbour provisions. This paper
will look at the international scenario of dealing with such infringements.
Keywords: Licenses, Copyright Infringement,
Ecommerce, Intermediary Liability
Introduction
Ecommerce platforms are widely used
today owing to the development of technology and thereby, there are quite some
issues attached to their functioning. The rise of ecommerce has reshaped the
retail landscape, offering unparalleled convenience and accessibility to
consumers worldwide. Accelerated by technological advancements, shifting
consumer preferences, and the proliferation of mobile devices, ecommerce has
surged dramatically. It provides businesses with a global reach, allowing them
to transcend geographical boundaries and tap into diverse markets. The
convenience of online shopping, coupled with secure payment systems and
personalized shopping experiences, has fueled its exponential growth. Moreover,
the COVID-19 pandemic further accelerated the adoption of ecommerce as
consumers turned to online shopping for safety and convenience, solidifying its
position as a dominant force in retail.
Licensing serves as a crucial
mechanism for regulating the authorized use and distribution of intellectual
property, software, and other proprietary assets. It provides legal frameworks
that define the terms and conditions under which such assets can be accessed,
used, or redistributed. Licensing ensures creators and owners maintain control
over their work while enabling broader dissemination and commercial
exploitation. Additionally, it facilitates fair compensation for creators,
fosters innovation through collaboration, and mitigates risks associated with
unauthorized use or infringement. Ultimately, licensing underpins the integrity
of intellectual property rights and promotes a sustainable ecosystem for
creativity, innovation, and commerce.
With an increase in the activity in
the ecommerce sector, there are a wide number of issues present in the field of
copyright and software licensing. This paper will explore the different types
of licenses in software, the concerns related to the same and the different
cases that have been propounded on these issues to understand the current
position of law.
A. Case laws relating to violation of
copyrights in ecommerce
There are various
international judicial pronouncements which have answered the numerous issues
that come up whenever there is an infringement of copyright on an ecommerce
platform. In A&M Records, Inc. v. Napster, Inc.[1],
the users could share music files through the peer-to-peer file sharing service
Napster. A&M Records was one of the music labels who sued Napster for
copyright violations. The court determined that Napster was responsible for
contributing to the infringement of copyright since it knew about its users'
unauthorised sharing of music and actively encouraged it.
While in Perfect 10,
Inc. v. Amazon.com, Inc.[2], asserting
that the online retailer let third-party merchants to distribute Perfect 10's
copyrighted photographs without authorization, Perfect 10 filed a lawsuit
against Amazon for copyright infringement. The court determined that although
Amazon was not directly at fault for copyright infringement, it might still be
held accountable if it knew about the illegal activities or should have known
about it[3].
In 2010, in Tiffany
(NJ) Inc. v. eBay Inc.[4], Tiffany
filed a trademark infringement lawsuit against eBay in this case, claiming that
the online retailer made it easier for fake Tiffany products to be sold. The
court determined that eBay was not responsible for trademark infringement, but
it was ordered to take action to stop the selling of fake items on its
marketplace.
The 2013 decision in Capitol
Records, LLC v. ReDigi Inc.[5]
was that ReDigi was a website where people could sell their used digital music
files. ReDigi was sued by Capitol Records for copyright infringement on the
grounds that the company had sold digital music files in violation of the law.
The first sale doctrine was held by the court to not apply to ReDigi's service
since digital files cannot be transferred without creating unauthorised
duplicates.
In addition, the Indian
government has developed a draft National E-commerce Policy to govern the
country's e-commerce platforms. The measures outlined include the option for
IP owners to register with the e-commerce platform in order to receive
notifications from the platform when a product with their IPR is uploaded
for sale, and the platform will not list the goods without their prior consent.
If the seller is unable to provide proof that the product is authentic, the
platform will also remove counterfeit products in response to a complaint from
a customer.
Therefore, copyright
infringement on ecommerce platforms has been regulated to ensure that the rights
of copyright holders are protected.
B. Licensing
1. Introduction to licensing
There is a need for
strict copyright protection in today’s era when the technology has advanced and
there is a wide amount of activity in the digital space. Because of the growing
digitization, the owners of the copyrights seek copyright protection to stop
any unauthorized distribution or copying of their works that are displayed
online. Although licensing imposes restrictions on use, it enables an author to
sell non-exclusive rights to use their work to anyone without first obtaining
their express consent.
The Berne Convention's
Articles 11bis and 13 provide for Compulsory Licensing. Additionally, there
are particular guidelines for developing nations that cover licenses under Articles
2 and 3.
2. US Provisions on Licenses
The provisions for
licensing are provided under the Copyright Act of 1976 under S. 111 for Cable
Systems, S. 112 to 115 for Music and S. 119 to 122 for Satellites. The S. 1003
provides for audio licensing.
3. Indian Provisions on Licenses
The copyright owner of a
work has the right to assign his copyright to any other person, according to Section
18 of The Copyright Act, 1957, which governs copyright assignments. By this
method, assignee gains access to all rights pertaining to the assigned work's
copyright.
Section 30 states that the owner of a work's
copyright can grant interest of a work to any person by way of a written
license that must be signed by both the owner and any legally authorized
representative.
Compulsory License: India has adopted the mandatory
license clause in its legislation which allows for the mandatory issuance of
licenses for Indian work that serves the public good.
Statutory Licensing for
Broadcasting of Literary and Musical Work is provided under Section 31-D
while license to Produce and Publish Translation of Literary or Dramatic Work is
under (Section 32)
4. Types of licenses
·
Exclusive licence: In
accordance with the terms of the exclusive licence, only the licensee and the
copyright owner may use the protected work.
·
Limited use licence: When a
copyright holder grants a restricted use licence, a work may only be used in the
way that is stated in the license.
·
Creative Commons licence: By
granting a Creative Commons licence, some authors permit people to access and
utilise their works for free.
·
Collecting societies: Since it
can be tough and expensive for some copyright owners to licence individual
users, there are collecting societies and licencing bodies which are groups of
such individuals.
·
All Rights Reserved: The owner of the copyright has total control over how their work is used
under this licence.
·
Open Source: This
software licence permits anyone to inspect the source code and make changes as
long as they follow specific terms and conditions.
·
Copyleft: They
allow for the distribution, modification and use of a work by others as long as
their changes adhere to specific terms.
4.1.The Creative Commons License Options: Creative Commons licenses
revolutionize how creators share their work, offering a spectrum of permissions
while retaining essential rights. These licenses provide a clear framework for
users to understand what they can and can't do with the content. By leveraging
these licenses, creators can encourage collaboration, reuse, and adaptation
within the boundaries they set. This fosters a culture of sharing and
creativity while ensuring proper attribution and respect for intellectual
property rights. The different types of these licenses are:
·
CC
BY-SA: As long as credit is given to the
original author, this licence permits users to build upon the content.
Commercial use is allowed under the licence.
·
CC
BY: This licence permits users to build
upon the work as long as credit is provided to the original author.
·
CC
BY-ND: This licence permits users to
reproduce and distribute as long as the original author is acknowledged for
commercial use as well.
·
CC
BY-NC-SA: This
licence permits users to build upon the material for non-commercial uses only,
as long as credit is given to the original author.
·
CC
BY-NC-ND: This licence permits re users to
reproduce the content solely for non-commercial purposes along with credits.
·
CC
BY-NC: This licence permits users to build
upon the material for non-commercial uses only, as long as credit is given to
the original author.
The CC Zero is a method which enables creators to renounce their
copyright protection and place their works in the public.
5. Concerns related to licensing
There are certain
concerns with licensing as well due to the dynamic nature of licenses and they
are:
·
Uncertainty around fair use: A
limited amount of copyrighted works may be used without permission for purposes
like criticism, commentary, news reporting, teaching, scholarship, or research
under the fair use doctrine[6].
However, the definition of fair use in the context of e-commerce can be
ambiguous, and its application can be arbitrary.
·
Unauthorized use of copyrighted works: E-commerce platforms could unintentionally or
knowingly permit users to distribute or sell copyrighted materials without the
necessary authorizations or licences which can lead to legal disputes and
claims.
·
Complexity of copyright licensing: Copyright licencing agreements can be complicated and challenging to
comprehend, especially for smaller companies and individuals and this can lead
to accidentally violating copyright of others.
·
Ambiguity: Some
copyright licensing agreements are drafted in a way that allows for multiple
interpretations by various parties. Conflicts over the license's parameters,
each party's rights and responsibilities, and other difficulties may result
from this.
·
Difficulties in enforcing copyright law: It can be challenging to enforce copyright laws across
multiple jurisdictions given the international nature of e-commerce. This can
make it difficult for copyright holders to safeguard their creations and stop
unauthorised use.
·
Costs: It may
be expensive to access and utilize copyrighted content for individuals or small
enterprises due to licensing fees and other charges.
6. Case laws on Software Copyright
Licensing
These concerns were
raised in some cases and the courts have addressed them in different manners. In
this case of Atari Games Corp. v. Nintendo of America Inc.[7],
Atari filed a lawsuit against Nintendo in this case alleging copyright
infringement in connection with the lockout chip technology that was used by
Nintendo to restrict the playing of unauthorised games on the Nintendo
Entertainment technology. The lockout chip mechanism did not violate Atari's
copyrights, the court found in favour of Nintendo.
In Autodesk, Inc. v.
Vernor[8],
the legality of selling pre-owned Autodesk software on eBay was under question.
The court determined that since consumers only had a limited licence to use the
programme, Autodesk's software licences were not sales, and Vernor's resale of
the software violated this.
While in Microsoft
Corporation v. Yogesh Papat & Anr[9], Microsoft
accused the defendants in this case of selling its software products without
authorization. The plaintiff was given damages after the court found that the
defendants had violated Microsoft's copyright by offering for sale illegal
copies of the company's software.
Also, in Ultra Home
Construction Pvt. Ltd. v. Purushottam Kumar Chaubey & Anr[10],
the plaintiff had paid the defendant for software to be used by its business.
By supplying a pirated copy of the software, the defendant violated the licence
agreement, according to the court, which granted the plaintiff damages.
In the latest case in
2021, Oracle America, Inc. v. Google, Inc.[11],
regarding the use of Java APIs in the Android operating system, Oracle filed a
lawsuit against Google for copyright infringement. The Supreme Court
disregarded the issue of the Java APIs' copyrightability and found that
Google's usage of them satisfied the four criteria for fair use. The decision
overturned the Federal Circuit's decision and remanded the matter for additional
consideration.
Conclusion
In conclusion, effective regulation
of copyright infringement on ecommerce platforms is essential for fostering a
fair and sustainable digital economy. By enforcing copyright laws, platforms
can protect the rights of creators and incentivize innovation while maintaining
a level playing field for businesses. Proactive measures such as implementing
robust content moderation systems, responding promptly to takedown notices, and
promoting awareness of intellectual property rights are crucial. Collaboration
between platforms, rights holders, and regulatory authorities is vital to
address emerging challenges and ensure compliance with evolving legal
frameworks. Ultimately, a balanced approach that respects both rights holders
and users is key to fostering trust and growth in ecommerce.
There have been numerous changes to
the licensing practices as a result of increase in technology and it has also
led to new types of licenses being introduced. This new environment also allows
the users as well as copyright holders to enforce their rights in a freer
manner. While licensing is well-suited to the analogue environment, the digital
setting has changed how copyright content is distributed and consumed by the
users. Therefore, it becomes even more important that licensing practices are
granted adequate legal protection for protection of copyrights in the digital
space. Moreover, the platforms should also be made liable in case of
infringement on their platform.
REFERENCES
Primary Sources
A. Statutes
a. The Copyright Act, 1957 (India)
b. The Copyright Act of 1976 (USA)
B. Conventions
a. The Berne Convention for the
Protection of Literary and Artistic Works, 1886
b. Trade-Related Aspects of Intellectual
Property Rights Agreement (TRIPS)
c. World Intellectual Property
Organization Copyright Treaty, 1996 (WCT)
d. World Intellectual Property
Organization Performances and Phonograms Treaty, 1996 (WPPT)
Secondary Sources-
A. Papers-
a. T.
Prashant Reddy, Back to the Drawing Board: What Should Be the New Direction
of the Intermediary Liability Law, 1 NLUD J. LEGAL Stud. 38 (2019).
b. Paul
Goldstein, Infringement of Copyright in Computer Programs, 47 U. PITT.
L. REV. 1119 (1986)
c. Lawrence
Rosen, Open-Source Licensing: Software Freedom and Intellectual Property Law
NJ LAW REVIEW (2005)
d. Tabrez
Ahmad & Partha Misra, E-Commerce & Its Copyright Issues, SSRN ELECTRONIC
JOURNAL (2011)
CASES
a. A&M
Records, Inc. v. Napster, Inc. 239 F.3d 1004 (9th. Cir., 2001)
b. Atari
Games Corp. v. Nintendo of America Inc. 975 F.2d 832 (Fed. Cir. 1992)
c. Autodesk,
Inc. v. Vernor 621 F.3d 1102 (9th Cir. 2010)
d. Capitol
Records, LLC v. ReDigi Inc. 934 F. Supp. 2d 640 (S.D.N.Y. 2013)
e. Microsoft
Corporation v. Yogesh Papat & Anr 2005 SCC OnLine Del 216
f.
Oracle America, Inc. v. Google, Inc. 593
U.S. (2021)
g. Perfect
10, Inc. v. Amazon.com, Inc. 508 F.3d 1146 (9th Cir., 2007)
h. Tiffany
(NJ) Inc. v. eBay Inc. 600 F.3d 93 (2nd Cir. 2010)
i.
Ultra Home Construction Pvt. Ltd. v.
Purushottam Kumar Chaubey & Anr 2016 SCC OnLine Del 376
[1] 239
F.3d 1004 (9th. Cir., 2001)
[2] 508
F.3d 1146 (9th Cir., 2007)
[3] T. Prashant Reddy, Back to the
Drawing Board: What Should Be the New Direction of the Intermediary Liability
Law, 1 NLUD J. LEGAL Stud. 38 (2019).
[4] 600
F.3d 93 (2nd Cir. 2010)
[5] 934 F. Supp. 2d 640 (S.D.N.Y.
2013)
[6] Tabrez Ahmad & Partha Misra, E-Commerce
& Its Copyright Issues, SSRN ELECTRONIC JOURNAL (2011)
[7] 975
F.2d 832 (Fed. Cir. 1992)
[8] 621 F.3d 1102
(9th Cir. 2010)
[9] 2005
SCC OnLine Del 216
[10] 2016 SCC OnLine Del 376
[11] 593
U.S. (2021)
Article Information
COPYRIGHT INFRINGEMENT IN ECOMMERCE AND LICENSING ISSUES
Authors: AKANKSHA YADAV
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
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