Blogs from 666 - Legally India Sat, 19 Apr 2014 15:32:01 +0530 Joomla! - Open Source Content Management en-gb IP Protection: The 3 Step Test Calls For a Change As we know the first conception of any piece of work is holding the idea within the marvellous human mind, it can be making a painting, designing an algorithm for software or outlining a new sky scraper design. It all starts from the intellect an individual intends to exploit. This so called cerebral input demands recognition as well as protection in today’s society.

The rapid development in the past twenty years in the field of science has been bewildering and baffling and at present digital internet societies have emerged which hold the key to a very bizarre future. This so called digital world has also enlarged the existing copyright societies with a very exclusive merger of gaining international recognition which was impossible if we look few a years back.

The protection of the copyrighted work has undergone many evaluations depending upon multiple factors like country, type of law, convention or language; hence the concept of copyright is still maturing and to be precise the concept of copyright is very broad and one size fits all commandment is meaningless to be applied.

While discussing privacy ‘Warren and Brandeis’ (1890) state that political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society’.

Till this point a major portion of social order has evolved and arrived at the deciding factors for allowing of copyrighted work in multiple fields without being compensated and this rule is fixed in the widely accepted norms of the Three Step Test.

In this essay I will be touching on the outlines of the Three Step Test taking today’s digital sphere and copyright societies and determining the conditions in which it may be concluded that the Three Step Test is in need of reform.

The Berne Convention held for protection of Literary and Artistic work in the year of 1886 was an international agreement associated to administrate the copyright aspects around the world. The 1967 Stockholm Conference was held for the revision of the Berne Convention in which the Three Step Test was introduced. The prime aim of the introduction of the test was to concrete the rights of reproduction.

Interpretation of international treaties, such as the Berne Convention, the TRIPS agreement and the WIPO copyright treaty, is governed by the rules of customary international law as per the Vienna Convention of 1969’.

Considering the steady increase in the measures on which general agreement had reached on this framework the Berne Convention can be considered as a limited kind of international copyright codification’.

The principal aim was to establish reproduction rights, therefore Article – 9 was inserted mentioning that authors of Literary, Artistic works are protected by this convention and shall obligate exclusive right of authorizing the reproduction of time works in any manner or form’.

Article 9 (2) of The Berne Convention states-

‘It shall be a matter for legislation in the countries of the Union to permit the reproduction of such works in certain special cases, provided that such reproduction does not conflict with  normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author’.

The prime objective of the Three Step Test was in its third step after the special case of non-conflicting nature was decided and was to be kept in balance with the affected group of the right holders with those of the third party as well as the public’.

The Three Step Test will be in the centre for the coming years associated to copyright cases but many countries did have their own national laws to tackle the copyright issue therefore they refused to change. Countries like Germany, UK, Netherlands and Belgium refused to introduce the test into their national legislation on the contrary Italy, Greece, Luxembourg, Portugal and Spain have implemented it’.

In the environments where implemented a wide responsibility is bestowed upon the judges as they have to interpret the exceptions with regard to the test and decide on a case to case basis and check if the application respects the criteria, even the lack of clarity makes the acceptance of the rule more difficult’.


The Three Step Test with its repeated incorporation in the international copyright treaties has encountered some slight alterations as to the wording of relevant provisions’.Though the significant part of the wording of the three criteria has remained unaffected.

It is enunciated that the copyright limitation should be in certain and special cases and further categorised that the limitation should not conflict with the normal exploitation of work and also ensuring that the arising limitations do not unreasonably prejudice the legitimate interest of the author or right holder.

This language situation mainly arises from the interpretation provisions of the treaties governing the Three Step Test, as per Article – 24(1) of the WIPO copyright treaty; the six United Nation languages are Arabic, Chinese, English, French, Russian and Spanish which are considered as absolutely authentic in construing the Three Step Test.

It may be said that the authenticity decreases while gradually arriving at the TRIPS agreement mainly due to language. For authenticity mainly French or English languages are favoured though the Berne Convention was solely conscripted in French.

Under the 1948 Brussels Act the situation changed due to the continuing growth of corporeal societies therefore the authentic text was further advanced in English. This development has even been highlighted in the Article – 37(1) (a) Paris Act of the Berne Convention declaring that the authentic text being French and English.

In today’s world English being the most widely spoken language is also usually the first language preferred as the starting point on exploring the construction of the Three Step Test. Even the language covering the rule of the Three Step Test was officially proposed by the delegation from UK and is also accounted as the origin of it from the British custom.

The fear did prevail of the text of the Three Step Test being too typically British to be understood by the judges from the continental countries during the Stockholm Conference of 1967. The discussion in the main committee during the Stockholm Conference affirms to the difficulties which were confronted while translating the term ‘unreasonable prejudice’ in French language. While construing the English text and the French text to see if any inconsistencies emerge and to check if no interpretation can be found that fits with both texts, then the French version must be favoured over the English one.


The relation between the national legislation and copyright control is quite polygonal. At the period of Stockholm Conference the UK Copyright Act -1956 had prudently and judiciously determined which particular uses of copyright works are exempted from author’s control. UK also did not accede to the Paris Act - 1971 of the Berne Convention till 2nd January 1990 and the obligation to comply with the Article 9(2) of Berne Convention was not placed on domestic limitations prior to this date.

It was UK which had actually articulated for adoption of a mere abstract procedure for regulating exemptions from the right of reproduction during the Stockholm Conference. The wording of the Three Step Test was based on the text submitted by UK delegation and it also proposed to allow reproduction in certain particular cases where reproduction does not unreasonably prejudice the legitimate interest of author.

The UK philosophy was understandable with the background of the common law system and UK also stated that ‘private use’ and ‘administrative purposes’ goes beyond the point and also carries many dangers for authors and publishers since it is extensive use of copyright material without payment by organisation which may be either government bodies or educational institutions.

This particular viewpoint existed during the non-digital age but in today’s world where copyright widening and digital civilizations have emerged the concept of private use seems to hamper the flow of information when it is most needed due to its limitation on information being used though without compensating remuneration to the copyright owner.

In today’s digital age the concept of world has been broadened to the term international community and where the emergence of technology associated to internet has grown till the point where it is now being called as a way of life, there the concept of unreasonable prejudice appears as a boulder in recognition for the author or right holder itself.

The use for private purpose has limited the use of copyrighted work in UK itself as it is unable to gain international recognition without being widely known and documented. This international recognition is only possible when the movement of information is absolutely unrestricted regarding the copyrighted work in today’s digital era.

The UK concept of ‘Fair Dealing’ for the purpose of research, private study, criticism, reporting current events does not amount to infringement but it does pose strict and rigid controls over excessive attainment of information. The Fair Dealing provisions are coded under section 29 and 30 of the copyright, design and patents act of 1988 hereafter referred as the ‘CDPA’ act.

The provisions of UK Fair dealing are restrictive in applicability and scope since they apply only for specific purposes furthermore the section 29(1) CDPA does not allow dealing with sound recording, broadcast or film hence it would not be possible for a researcher to copy a part of a recording without infringing it leading to limiting the recognition of the copyright owner.

Scholars have even criticised the narrowness and rigidity concept of Fair Dealing as it leaves no elasticity for the doctrine to adapt to future oriented technological changes’. Format shifting is an everyday task being performed in today’s digital world where storage and transfer of data is performed just via few clicks by an individual or by changing the format of the copyrighted work be it for personal use like changing format of an audio CD to MP3 for personal use which is prohibited under UK law and amounts to infringement.

The recent growth in availability of scanned version of books online via Google books has also led to rise in concerns and the concept of Fair Dealing is improbable to be applied. The world’s most prominent internet search engine- Google scans the books and journals from the library database it holds an affiliation with. These books are available on the internet just via simple internet search though a few pages or texts of the book are omitted as it is copyrighted work but still a major part of the book is accessible and stored in the innovative notion of digital libraries of today’s ecosphere.

The issue of concern raised is that the Google books are available online and are accessible to all as a major portion of work and also provides its readers with the fragment of internet searches made. Though both the actions fall under the US doctrine of Fair Use but many law suits are prevailing before the US courts against the Google policy of making the book available online. Under the UK copyright law the Google book system is unlikely to satisfy any of the needed provisions of Fair Dealing.

Having a look at the rise in technologies where format shifting and Google books are the emerging concepts, it appears impossible to foresee what new technologies may give rise in the future, and Fair Dealing allows only for a limited number of purposes therefore it appears discriminating against the digital society and dynamism of information society.

A much wider doctrine does transpire in today’s era known as the US doctrine of ‘Fair Use’. The US doctrine of fair use is always perceived when looking into copyright provisions and is somewhat similar to the concept of Fair Dealing.

The UK concept of Fair Dealing is slightly traditional as compared to the US doctrine of Fair Use which provides a general defence instead of rigid and specific categories of acceptable behaviour. It seems to appear that the UK concept of Fair Dealing appeals for a broader approach in order to enhance the recognition of its copyrighted works as required in today’s sphere.

Section - 107 of the United States Copyright Act also deemed the ‘Fair Use’ doctrine is holding the regulation for the unauthorized use of copyrighted work for purposes like teaching, scholarship, research, criticism and comment.

The deciding four factors of a work as Fair Use are:

  1. The purpose and character of use, whether for a commercial practice or non-profit practice like education or research,
  2. The nature of copyrighted work,
  3. The amount and substantiality of the potion of copyrighted work used,
  4. The effect of the use upon the potential market for the value of the copyrighted work.

Very similar to the UK concept of Fair Dealing both the doctrines have the nature of abstracting those precise occasions on which the use of copyrighted work may be permitted. The US doctrine is an open norm comparable with the UK concept and here the fourth factor also happens to deal with the use of copyrighted work upon the commercial market value.

However the Doctrine of Fair Use happens to be holding a longer tradition and history then the concept of the Three Step Test and also operates against the backdrop of wealth experience which was held in the landmark case of Harper and Row versus the Nation Enterprise.

This methodology can enhance the allowing of a copyrighted work to rise within the public domain in a free flowing modern trend which will inevitably help the right holder in gaining recognition and all the right vested to him will also be composed.

The doctrine of Fair Use also allows the science of reverse engineering of a computer program in which deconstruction of a program takes place from the very literal code to produce a more compatible program from a previous program and moreover the US doctrine is flexible to adapt to any new changes emerging with the growth of societies and the US courts can even rely upon the non-statutory issues of fairness for considering a case.

Another advantage of the Fair Use test is the simplicity associated to it. Fair Use combines all the exceptions into one single provision and also simplifying its wording and structure making it easier to understand and simpler to read for the users.

Rapid development in technological enlargement has encouraged an essential change in the gathering and efficiency of copyright law. The development of new business models has led to a dramatic shift in priorities. Unprecedented and unfamiliar pressures have grown increasing threats for both the copyright holder and the copyright user. As far as possible, potentially conflicting interests must be reconciled.

New technologies have extremely affected copyright law and have exposed the urgent need to adapt a law designed in a time when today’s communication technologies only existed in science-fiction novels. Changing the law becomes even more pressing when one considers the fact that the technological evolution was accompanied by a penetration of these new instruments in the social body.


The struggling flow of principles in the Three Step Test can be of multiple factors and determining a single root cause will be meaningless. The general observation is that yes the Three Step Test necessitates a reform calling a broader spectrum which goes hand in hand with today’s rapid developing copyright and digital societies.

In today’s ecosphere where Internet associated technologies have amplified the magnitude of revenue generation and international acknowledgment in every field including copyright there the UK concept of Fair Dealing appears as an impediment in the authors recognition though it is allowed for educational and research purposes without being compensated.

As ‘Warren and Brandeis’ said that political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the new demands of society.

Therefore it does appear that it is time that common law associated to the test should be supplemental with consideration of widening the magnitudes allowing the unavoidable obligatory development in field of science within its sphere, which will certainly aid to international recognition of authors, right holders or possessors of copyrighted works.

Read more]]> (666) Blawg-osphere Tue, 28 Feb 2012 12:33:00 +0530
Online Behavior Advertisments and Privacy Introduction

Advertisement is a strategy employed by the business entity to create psyche within the target user groups, a kind of conformity to their product and services.

At present online advertising is an efficient and effective means for marketing due to its international prominence, low-cost and multi-dimensional prospects. With the quick growth of internet users and the fast advances of internet technology and e-commerce, more businesses and manufactures began to pay their devotion to online advertising. This method is now increasing as more media is consumed on the online world and is considered as a vital source of capital generation. Thus the use of online behavioral advertising is seen as a ‘commercial pot of gold’ in the advertising and marketing industry’.

In this essay I will be discussing the environments in which behavioural advertising has been encroaching on the outlines of the freedom which now even poses a threat to an individual’s privacy in multiple ways.

Life With Digital Parasites

Many website operators and establishment place ‘cookies’ in our computers during an internet browsing session, According to the ‘Recital-25’ of the directive on privacy and electronic communications 2002/58/EC hereafter referred as “ePrivacy Directive”, cookies are recognised as an important tool for internet browsing and should be allowed under the condition that users are provided with clear information about the purpose of cookies which are being installed’.

We also know that websites place ‘web bugs’ on their respective network to keep a track of the visitors and their internet browsing habits, the prime reason for performance of such an act is mainly associated to gain the understanding of the behaviour pattern of the internet user. These tiny 1x1 pixels can be used in a much more invasive way by netting the users Internet Protocol address hereafter referred as ‘IP address’ and also installing pernicious files into their system and is even capable of revealing the whole browsing history without even letting the individual know and without his or her prior consent’.

Introducing another digital contagion called ‘spyware’ which is again dangerously proficient in assaulting your privacy, it is a program that runs in your computer after raiding the terminal equipment and records your habits and makes patterns for advertisements. Spyware is more of a program rather than a bit of text in a cookie’.

These parasites are very similar to the ones in the offline world though unfair to the metamorphosis; they are not biological in nature.

The Online Advertising Industry

Advertisements are a part of commerce practice ever since the first commercial establishment has taken place in history. The business of advertisements grew rapidly during the twentieth century with the expansion in modes of mass communication. Online advertisements are mainly focussed on increasing the generation of revenue of the consortium by selling its goods and services to the individuals requiring it. Online advertisements grew rapidly since the flourishing of the internet and started from the United States since the technology associated to internet and leading search engines like Google and Yahoo were developed and incorporated there.

In today’s digital age where digital societies have developed the expanse of advertising has started to drift on the availability of spaces over the internet the empty spaces on the websites also known as the ‘dead space’ of website. The first ever online advertisement was in 1994 when a web magazine named HotWired sold an advertisement to ‘AT&T’ to display on their website’.

Online advertisements were sold on cost per mile basis depending upon how many people saw the advertisement which gradually seasoned to cost per click basis. The online advertisement has transformed from 2000 to 2008 and advertisements associated to internet search made have grown from 1 per cent to 44 per cent and display advertisements have dropped from 48 per cent to 21 per cent.

As we know that gathering data online is an easy job if kept a track of the user’s internet browsing behaviour which allows advertisers to deduce a lot of things about a person and his whereabouts. It could infer from a user’s browsing manner that the user is a man or a woman and their residential locality accessible from the users IP address, and even the age of the user can be judged from the browsing behaviour. The intermediary can identify potential sale targets by just using simple selection methods associated to the internet searches made and web sites visited.

The following figure shows the content used by web site to appeal viewers’.

Figure - 2

Advertising space is sold based on the basis of length and width of the space in pixels; typical types of advertisements include banner ads at the top, skyscraper ads on the sides, and rectangle ads in various locations. The value is associated to the viewer’s visiting the websites and some viewers are more valuable than others depending upon the age group they belong too. This is because targeted advertisements are mainly focussed on the younger group and that also varies from the content of every web site because the viewer’s visiting the particular web site might be inclined to purchase’.


If surplus advertisers join the behavioural advertising format, it may obtain enough viewers to make online behavioural advertising movement speedup and then tracing of individuals on the web network would increase swiftly which will eventually lead to invasion of privacy because the so performed retention of online activities is being done without an expressed consent from the end user and by placing cookies on their terminal equipment.

This has raised much concern over the diction of privacy and has gained considerable attention since its emergence.

The Gradual Maturing of Privacy

The term ‘privacy’ is broad and one size fits all commandment is meaningless to be applied. Privacy has undergone various renovations with the gradual progress in the field of science and with the enlargement of corporeal societies as well as culture. It has been found essential to frequently outline afresh nature since social, political and economic rights necessitate the recognition of new rights and common law grows to meet the new demands of the society’.

In this procedure of growth and expansion at the moment digital societies have emerged and the current establishing world members of the digital societies have interpreted the term privacy from a sheer revenue generating perspective.

As we know that the mounting concerns about online privacy have doubled within the past few years with the growth of internet and therefore the question about privacy is now under scanner. The top searches for the term ‘Online Privacy’ on from March 2004 to 2008 have increased rapidly from 45,751 items to a bewildering 184,398 items which calculates to be more than fourfold increase’. The world’s leading search – engine Google’s privacy page mentions in a decidedly ambiguous language that it uses the individual search for conducting research on spellings mistakes and to asses usefulness of the ad ranking.

How bankable are the wordings of the privacy page is truly beyond the reach of the end user’s as he or she is the subjected target for revenue generation. The term subjected target goes with privacy because privacy of an individual is crossed via means of digital parasites which was supposed to be personal. The information recorded by search engines is mainly associated to the end users browsing habits and an abundant volume of information is collected and stored from the ‘IP address’, way of online search made to the method opted to enter or exit a website, which internet browser was used and till the point it was last scrolled.

This browsing data is a virtual treasure to online advertising industry presumably because it provides better quality forecasts to the advertisers and in return providers may charge more for the advertising secrets they supply which are actually the well recorded, detailed and targeted end users with the help of complicated mathematical algorithms. Surprisingly the procedure of opting out from this circle is more of a boulder in the way to accessing the internet as it may hamper your quality of internet browsing leading to a less productive internet session as most of the reputed websites have the dogma of installing cookies in your terminal equipment in order to enhance your internet surfing experience as well as keeping a track on your browsing habits.

Privacy is interpreted differently depending upon the section of the society. Today’s youth has a different interpretation and is equally active in the online world as offline world and is rather keen in disclosing information on social networking sites like ‘Facebook’, it was also concluded that two third of the world users log in everyday for about an estimated twenty minutes’.

The availability of such large lucrative gullible audience was surely to be targeted in order to generate revenue and to protect the stagnation hit global economies therefore invasive strategies were used in order to gain better understandings of individual’s internet surfing behaviour.

Facebook in 2007 launched an advertising utility called ‘beacon’ which could provide the user’s activity on its partnering websites such as ebay, amazon and blockbusters’. A year earlier Facebook was blamed for installing a tool that could enable user’s information available to a user from a different network and thousands of Facebook users voiced that this function performed was exceedingly invasive’.

Facebook founder Mark Zuckerberg responded to the concerns explaining that none of the data collected is being broadcasted but instead is being shared with other people who can be called as friends’.

The bankability of the so called friends is not yet established as a concrete substance of confidence but is still ignored and assumed to be a safe harbour because of the unavailability of options for an everyday internet user.

The so called saved and contained information by Google and Facebook has raised various issues. In 2008 many Facebook users discovered that if they ever delete their Facebook account the user information is still maintained, though it is legal in US but not in the European Union’. Even Google had to limit its information storage from two years to nine months due to rise in privacy concerns’.

Data being used today for some intended purpose can tomorrow be used for unintended purposes. If the data is leaked or stolen and reaches a group of untrusted or corrupt hands therefore possibility of data leak has to be avoided because it may even lead to huge financial loss and a gross violation of privacy since the basis of privacy relies upon the individual’s precincts.

The recent breach of security system and theft of data from the famous ‘Sony’ PlayStation network resulted in loss of seventy seven million accounts and the data associated to them’, but this was not the end the very following week another data breach took within the Sony PlayStation networks resulting in loss of an additional twenty five million users and their personal information from age, gender, sex to credit card details’.

Any personal data of delicate nature should not be obtained without prior consent or appropriate fortification measures because information about gender, age, sex or even IP address are accounted as personal data’ and can lead to formation of opinion which is incorrect.

Regulations to control data practices do transpire; the ‘Data Protection Directive - 1995’ hereafter known as DPD is a very significant ordinance on informational privacy in the world, UK Data Protection Act implementing the DPD was extended to deal with technology privacy and aims to protect the fundamental right to privacy. Article – 6, lays down eight principals in schedule – 1 of the Act are;

As follows;

1. Personal Data to be processed fairly and lawfully.

2. Personal information to be taken and processed for the purpose and nothing beyond that      purpose.

3.  Information should be adequate, relevant, and not excessive in relation to that purpose.

4. Personal data should be accurate and up to date.

5. Date collected should not be kept for longer than the needed purpose.

6. Personal data to be processed as per DPD.

7. Proper technical and organisational measure to be taken against illegitimate processing.

8. Personal data shall not be transferred cross border unless the country ensures’.

The US code of ‘Fair Information Practices’ hereafter referred as FIP’s is also another example of significant principals which are:

As follows;

  1. There must be no personal data record-keeping systems which is secret.
  2. There must be a way available to the person to know what data of his is kept.
  3. There must be a way for a person to prevent information that was obtained for one purpose from being used or made available for other purposes without his consent.
  4. There must be a way to amend a record of identifiable information about that person.
  5. Any organization creating, maintaining or disseminating records of identifiable personal data must assure the reliability of the data for their intended use and take precautions to prevent misuses of the data’.


The implementation of FIP’s depends upon multiple factors like the country, the data controller, the type of data and other ends though culpability can be met through different mechanisms varying from civil to criminal liabilities. Though FIP’s have been criticised for being too weak and having many exceptions and has not kept pace with the growth of information technology’.

Mr Justice Michael Kirby of the High Court of Australia distinguished that many changes fetched about by new computer and communication technologies and proposed that it may be time for a review of the guidelines. Among new rights that he mentioned as ripe for review are:

As follows;

  1. A right not to be indexed.

2.   A right to encrypt personal information effectively.

3.   A right to fair treatment in public infrastructures so that no person is unfairly excluded         that would prejudice that person's ability to protect their privacy.

4.   A right to human scrutiny of adverse automated decisions and understanding them.

5. A right beyond the aspiration of the 'openness principle', of disclosure of the collections to which others will have access and might affect the projection of the profile of the individual concerned’.

Bennet and Raab suggest that one of the crucial hallmarks of bureaucratic societies is that the information will be collected just because it serves as a valuable potential commodity for unknown causes and risk management’.

As survey conducted by Joseph Rowntree Trust, UK of all the EU states is known for strict function of data collection since the drive of joined governments initiated by then Prime Minister Tony Blair, which has created a culture of forming large and multiple access database to solve every issue, these database have been expensive, insecure and of questionable efficacy’.

Therefore it is our purpose to consider whether the existing law affords a principle which can properly be invoked to protect the privacy of the individual; and, if it does, what is the nature and extent of such protection’.


Accepting the fact that in today’s time laws are stressed to cope up with the growth of technology, therefore gridlocking the locus of law with growth of science is a very important aspect to be explored or we can see the concerns and the struggling flow of privacy laws in their immobile condition with the rapid growth of today’s digital societies and flow of information in the online world.

Data once collected and stored is not coming back, and even perhaps not going to be erased, or if erased then no intimation will be made, or if intimated then not assuring enough of data being erased, though it may or may not be erased. Assuring with a concrete proof will be hard possibly due to the convenience in today’s digital world to store and transfer data within fragments of seconds.

A feeling of breach of trust might prevail between end users and the web based organisation both commercial and administrative leading to unfamiliar consequences. To avoid this situation the collection of personal information should be dropped not only for behavioural advertising but also from administrative purpose at the earliest because the remains of the already disturbed privacy is at stake which needs to be redefined, controlled, strengthened and to be made secure for the coming generations though not regretfully possible for the present one as they have groomed in the developing environment of digital age unaware of the loop around their neck.

The feeling of enjoying a pleasant evening at home is treasurable, but terrifying when aware that there is someone observing you from your window. Why is it not the same in the digital world and why we are okay with it, is still a matter of misperception?


Read more]]> (666) General blogging Tue, 24 Jan 2012 01:48:56 +0530