ABANDONWARE : THE GREY AREA IN PUBLIC DOMAIN WORKS

Harjas Singh Gulati is a 5th year law student at NMIMS School of law Bengaluru.

Introduction

The world of the public domain is a gargantuan field of works, encompassing expressions from all strands of life. It comprises creative works whose copyright has expired or never existed, and which therefore belong to the public for unrestricted use. While Section 13 of the Copyright Act, 1957 (“the Act”) allows us to decipher all works in which copyright exists, and Section 14 of the Act helps us come to the conclusion that copyright exists in electronic mediums of artistic expressions too, the situation is to be evaluated differently when public domain works are considered. Syndicate of the Press of the University of Cambridge on Behalf of the Chancellor, Masters and School v. B.D. Bhandari & Anr introduces the idea of public domain works i.e., those works which do not fall within the ambit of protection offered by intellectual property laws like copyright, patent or trademark. This is primarily due to expiration of copyright subsisting in them, inherent non-eligibility of the work for protection or through relinquishment of the right by owner. Today, physical theft coexists with contemporary theft of other forms of property, such as intellectual property, with modern thieves being titled “Media Pirates”. In view of the above, copyright piracy, akin to infringement as per Section 51 of the act, refers to illegal duplication and distribution of copyrighted material and encompasses digital piracy, i.e. such duplication and distribution via the internet.

Technology-enabled restrictions emanating in the form of digital rights management (“DRM”), technological protection measures (“TPMs”), and restrictive licensing conditions are the corporatised solutions that challenge the existence of modern pirates. This is done by creating mechanisms through which private parties can re-appropriate or lock up material under the guise of copyright protection. However, this framework becomes complicated when applied to abandonware works in the public domain, especially when such practices can effectively erode fair-use rights and undermine public-domain access. On a bare perusal of the act, fair use exceptions under the Act do exist under the guise of Section 52 for computer programmes, like functional use, backup protection, interoperability and incidental storage for personal study of the program. The Act also includes ,defined copyright expiry terms under Chapter V for, inter alia recognized literary work, anonymous work and sound recordings. Therefore, to the naked eye, it may seem that piracy of the public domain is a misnomer, since publications existing in the public domain would not entail any copyright with them and would not attract any sort of infringement or technology-enabled restrictions. However, this is not the case. This essay argues that DRM can function as a de facto re-privatization of works that should legally be in the public domain or publicly accessible, with abandonware being the sharpest illustration.

Re-privatizing Abandonware By Leveraging DRM Tools

The advent of the age of the internet has struck the chords of copyright law by transforming infringement from reproduction of physical copies of a work to distribution of digital copies of the same work on the World Wide Web. Such an approach has threatened the economic interests of various industries and artists around the world who are not being compensated for such distribution. An example of such growth is the increase in dynamic IP plus injunctions against IPTV, 123 movies and many more, ;which engage in illegal reproduction of copyrighted content.

DRM is a private deployable measure that seeks to restrict the actual content to a “code of conduct“ or digital restrictions. In other words, it is a method of control to facilitate the exercise of copyright through digital means by restricting the right of usage of the actual content. Such restrictions may include access protection by passwords and encryption, limiting the number of devices, or preventing duplication of content by disabling copying through proprietary operating software. Once wrapped in DRM, the content ceases to be “freely usable” in any meaningful sense. The user may no longer print, copy, excerpt, or share, even though the legal copyright may have expired or never existed. Amazon’s Kindle sharing restrictions is one such example, that posits the situation where software is implemented to control sharing.

However, the interplay between abandonware and DRM is an important aspect that often gets left out in the discussion of enforcing private rights through technological means and the abandonment of rights on a copyrighted work due to economic obsolescence of profits. Abandonware refers to the software that is no longer maintained, distributed or actively managed by the original holder. A distinction may be drawn from orphan works since the term emphasizes a lost or unknown owner rather than an owner who actively decides not to manage their work further. Imagine a game Tron: Evolution, one of the classic tie in action adventure games based on the worldwide famous series “Tron”. After a decade of sales, it was pulled from the market due to business considerations. The core issue was that the game was rendered useless owing to dauntingly hard launch sequences on Microsoft Windows due to a DRM blocking update that prevented it from launching. Therefore, the only possible way to access the software was to incorporate hacking measures that bypassed DRM measures.

Such an exemption, while allowed in the US, is still far from discussion in Indian Copyright law, even after layers of abandonware being cumulated in worldwide libraries. US law, through precedents like Micro Star v. Formgen Inc and Taylor Holland LLC v. MVMT Watches Inc, allows for abandonment of copyright if there is an intent to surrender all rights in the work and an overt act evidencing that intent. Such acts can be clearly observed through abandonware copies that are not marketed, sold, advertised or even updated for the public at large. It is to be noted that copyright exists in abandonware, too, but is never exercised actively. Nevertheless, the DRM software within them continues to subsist and any attempts to bypass them under the Indian regime bring it under the scrutiny of Section 65B of the Act as well as the relevant provisions for copyright infringement under the Act. Abandonware, which operates analogous to a public domain work, becomes a tool for corporates, where neglected copyright can be used to profit later without active assertion of the right for years. Such an instance, which could have been easily circumvented through fair use under Section 52 of the Act, becomes a ticking litigation to enforce rights whenever it pleases the copyright holder and dilutes active management of copyright.

Critical Evaluation of DRMs

The primary issue of DRM being applied to abandonware, is the inability of the software to exercise reasonable judgement with “standards” like fairness and reasonableness. DRM software cannot distinguish between a pirate distributing a thousand copies and a researcher accessing a dying software for historical preservation. DRM systems lack the contextual intelligence to distinguish infringing from non-infringing uses (criticism, commentary, quotation, time-shifting, archival, etc.) and active or passive assertion of rights. Further, the legislation lacunae on dealing with obsolete, DRM software and abandonware leads to a situation, where application of DRM to abandonware functions not as a shield against piracy, but as a deliberate instrument of planned obsolescence and non-access. The corollary issue arising from the nexus of DRM and abandonware is the non-recognition of abandonware works in the copyright law. Legally, these works retain the copyright in them, but can be subjected to the defence of acquiescence for circumventing infringement provisions. The law in Power Control Appliances v. Sumeet Machines clearly establishes that positive acts of ignorance constitute ‘acquiescence’ in law for copyrighted works. However, the legislation does not address clear affirmative actions, such as removing copies of abandoned works from official sales platforms or non-updation of DRM to make the works unusable. As a result, copyright law fails to recognise these actions as positive evidence of acquiescence, revealing a notable gap in the existing framework of dealing with abandoned works.

The application of DRM to abandonware fundamentally distorts the “first sale” doctrine too. The traditional doctrine gives a free hand for the circulation of knowledge by restricting the copyright to only the first sale. However, DRMs lead to an overarching situation where ownership and circulation are controlled through restricted access by the original copyright holder. Once a copy is sold, the new owner holds the right to resell, lend, or preserve it. DRM subverts this balance by securing the object’s functionality to the continued usage of the original holder to a defunct DRM software or outdated server uptime. This creates a pervasive regime where ownership is replaced by mercy will of corporates. In the context of abandonware, such as physical copies of ‘Tron Evolution’ that requires defunct DRM authentication to function, the purchaser retains the physical medium but is technically barred from accessing the content they purchased. This recasting of sales as revocable consent, allows corporations to override statutory property rights.

Way Forward

The central problem with abandonware lies in the copyright law’s refusal to acknowledge that functional abandonment is legally relevant to remove copyright from a work. Copyright protection continues in full force, even when a work is no longer sold, supported, or technically accessible. This disconnect allows rights holders to exercise control without bearing any corresponding market responsibility for availability of the work in usable form. The result in an unfavourable situation of legal stagnation; where material remains locked away because the law lacks a mechanism to respond to passive commercial withdrawals of copyright works.

A targeted statutory response is therefore required. The Copyright Act, 1957 should incorporate a clear definition of abandonware based on objective conditions rather than asserted ownership alone. Software that qualifies as ‘abandonware’, should as a pre-requisite be unavailable in a usable format, unsupported for a sustained period, or dependent on inactive DRM infrastructure. The copyright office can serve as the institutional gatekeeper by certifying abandonment upon public application and verification. Such certification should trigger defined legal consequences, including suspension of exclusive control over access and use. This approach preserves copyright’s incentive structure while preventing indefinite control  of corporates over works that no longer participate in the market.

Reform must also extend to the anti-circumvention laws. Section 65B of the Act currently penalises acts that are often necessary to restore access to lawfully acquired software. Limited statutory exemptions should permit circumvention where it is the only means to enable use, study, or preservation of certified abandonware. These exemptions should remain narrow in scope and confined to non-commercial purposes, including but not limited to library preservation, academic research, or continued private use by lawful owners. This ensures that technological protection measures retain legal force to support active markets, while also preventing their use as permanent access barriers.

The global circulation for software cannot be solved alone with domestic reform. International coordination on preservation of ‘Abandonware’ through a WIPO-led policy instruments could establish shared criteria for abandonware and reduce jurisdictional inconsistency. Such coordination would also limit erratic and strategic IP enforcement by corporates in countries where law for abandonware does not exist. Treating abandonware preservation as ‘unlawful’, serves no defensible economic aim and undermines copyright’s cultural rationale of preserving the balance between authorship and dissemination. Recognising functional abandonment as a legal condition would restore balance between ownership and access, while allowing law to respond to how digital works are actually used, maintained, and remembered.

To conclude, infringement claims regarding abandonware present a legal paradox. When a corporation ceases to monetize, support, or distribute a work, yet refuses to release it into the public domain, they create a loophole in copyright law. By asserting copyright claims over works that are functionally abandoned and labelling preservation efforts as piracy, it marks a form of cultural impoverishment. If a scholar cannot quote a passage or project an excerpt, that the law allows, but the code prevents because of outdated DRM protection, it creates a digital dead zone; a zone where cultural reusage, remixing, and archiving are stifled.