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Digital rights management tools and privacy

With growing popularity of peer to peer sharing (P2P) softwares, torrents, etc., it has become possible to circulate copies of softwares, e-books, and other copyrighted material electronically. Hence, digital rights management (DRM) technologies are constantly developed to be used by software manufacturers, publishers and other copyright holders to secure copyrighted materials from being copied. For example, songs stored on a particular user’s iPod cannot be copied to another iPod. Similarly, Google Books and Kindle use DRM measures to prevent piracy of e-books.

DRM controls the use of copyrighted material by implementation of technological measures. For example, a DRM technology may be used to make a software work only if the user possesses a USB token. Alternately, a DRM measure could involve pure software implementation – for example, a video may be played on a user’s computer only when he is connected to a specific website.

What is the relationship of DRM technologies with copyright law? Read on.

i. DRM and Fair Use:
DRM technologies may interfere with fair use. A DRM method is often ‘blind’ to the kind of use that copyrighted material has been put to. For example, assume that a particular software allows only users who have a key to use it, and one user can only install the program on one machine only. If the software has been purchased by a teacher, he may require, for certain purposes, his teaching assistant to use it as well. While such use may be permitted under certain circumstances under fair use provisions, DRM protection may prevent such use or make it practically unviable.

Therefore, in its attempt to prevent copyright infringement, DRM may in certain cases interfere with legitimate uses of copyrighted material (which is permitted under fair use).
Note that there is no legal remedy available to someone who is prevented by DRM measures to utilize copyright for fair use purposes. In such cases, the only available option for a user is to circumvent the DRM measure technologically. Circumvention of a DRM protection technologically for the purpose of ‘fair use’ will not attract any liability (see discussion below), although the entity who has altered the DRM measure will have to prove that it was done for a fair use purpose, in case of a legal proceeding.

What happens if you break or compromise the DRM measure? In June 2012, the Copyright Act was amended (by introducing Section 65A), to prohibit measures aimed at circumventing technologies that protect rights under the Copyright Act.

However, circumvention measures against DRM technologies are permitted under the following circumstances:
  •  for taking actions for obtaining information related to inter-operability and
  • making copies of legally obtained software for personal use.
  • testing the security of a computer system/ computer network with the authorisation of its owner or operator;
  • actions that circumvent technology measures intended for identification or surveillance of a user
  • conducting encryption research
  • a lawful investigation
  • measures taken in the interest of national security.
Unfortunately, the punishment for circumvention of technological measures is less severe compared to the punishment for infringement of copyright – it is punishable with imprisonment of up to 2 years only, as compared to 3 years’ imprisonment for infringement of copyright. Further, any person who alleges circumvention of technological measures will have to approach a magistrate to file a complaint – the police cannot initiate investigation pursuant to an FIR. The accused can obtain bail immediately upon arrest, as the offence is bailable.

ii) DRM and data protection

DRM technologies also raise data protection concerns. If, pursuant to the implementation of the technology, a software manufacturer or service provider is able to collect personal information and transmit it back to a host without the user’s knowledge or consent, there may be a possibility of violation of data protection law.

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