This article is written by Niharika Agrawal, pursuing B.B.A.L.L.B from IFIM Law School. This article comprises major media piracy and recent development in the anti-piracy reforms with respect to media law.
Table of Contents
Introduction
Piracy has been a global issue since 1980. According to the Oxford dictionary, piracy is the unauthorized use of someone’s original work. It rapidly increased after the advancement in media technology such as the enormous spread in video culture, the emergence of software giants, etc. The collaboration of Indian media globally with movies, music, televisions gave rise to the urgent need for copyright protection. Large-scale piracy has not just been found in audio cassettes and books as earlier but is also a threat to larger economic models and national ambitions. From the 1980s piracy has been seen in India through production, circulation, and regulation of media and culture.
In today’s world, digital technology and the internet enable easy accessibility of pirated content. Online markets such as Amazon Prime, iTunes, and other OTT platforms and offer media libraries that provide a wide range of music, movies, news, gaming, etc. This media library makes it more feasible for internet pirates to use the web as a platform for illegal downloads and uploads. These possibilities have increased illegal production and distribution at a huge scale which has resulted in huge financial losses for artists, companies, and publishers.
This has created more pressure on owners and broadcasters. This financial loss and other harmful impacts of piracy need to be controlled by specific laws and reforms especially in India which is the second largest online media hub in the world. This article deals with the comprehensive details regarding media piracy in India and the latest development and efforts made by various people in combating media piracy.
Media piracy in India
There are several ways through which media piracy can take place. It is either through software by just copying it to another unauthorized machine or in cinematography by live recording and further telecasting for free without permission from film producers or in music or games using indefinite ways. These are the following major ways through which media Piracy is practiced.
Sound piracy
Three types of piracy are found in the music industry.
- Firstly, by copying songs from different legal cassettes and CDs and then uploading them in one Cassette or CD. After which it is packed in some other name and sold in the market.
- The second type of piracy is committed through counterfeiting. In this, the song is illegally copied and packed in such a manner using the same logo and symbols that a prudent man thinking it to be original, purchases the duplicate product. This misleads the consumers and the original owners have to suffer.
- Lastly, music piracy is committed by the way of bootlegging. In this, during the performance of an artist, various unauthorized recordings are made and are sold in the market. These acts are done without the permission or knowledge of the artist and composers or any other recording company. One of the biggest piracy in the music industry was found in the 1970s during the era of T-series.
Case study of T-series
In 1979, Gulshan Kumar and Gopal Arora who have had a keen interest in music opened a small studio where they used to record certain regional music such as Ghrwali, Punjabi, Bhojpuri, etc. To learn more about the recording industry they visited various countries such as Japan, Hong Kong, and Korea. Later they established a factory to produce magnetic tape and audio cassettes and eventually built a large manufacturing plant that consisted of duplicate series for small regional cassette producers. Due to this, T-series by the 1980s became the market leader of cassette production in India and started manufacturing videotapes, television, washing machines, and detergents. After getting success in all this they also started producing VCD and MP3 players.
This successful pirated content was spread all over the Indian market. Gulshan Kumar further studied the loopholes in the Copyright Act, 1957, and with the help of it, he recorded near-perfect versions of movie songs. On the basis of this, the T-series has released thousands of cover versions of classic film songs, and hence it resulted in copyright infringement in the form of pirated content and often illegally obtained film scores before the release of the film in the market. He was also charged for discrediting the brands of competitors through the whole business of inferior magnetic tape. Further, T-series started distribution of cassettes in nearby shops, grocery stores, paan centers, etc. and they realized the importance of the product in their commercial life. He also started recording in other ignored languages by dominant Indian record labels and distributors. By providing such duplicate services to smaller labels, it helped in the revival of other small market music traditions.
According to recent observations, due to the availability of smartphones and affordable internet charges, India has been accompanied by an increase in the consumption of pirated content online. Accordingly, 76% of the people are accessing music through pirated means such as illegal P2P (peer-to-peer) apps, streaming apps, stream-ripping websites, or even infringing websites due to which the Indian recorded music industry is suffering a loss of $250 million annually.
Computer software piracy
Computer software consists of the creation and distribution of computer programs and such piracy is committed by copying and distributing computer programs without the permission of copyright holders. It takes a lot of effort to build up software programming. Piracy in software companies is observed more than any other as it is relatively easy to copy software on computers. These pirated versions perform the same as the original and look alike too. Five very common ways of piracy in software are counterfeiters, resellers, mail order house bulletin boards, and end-users piracy.
Microsoft Corporation vs. Yogesh Papat & Anr. 2005
The plaintiff, in this case, had registered for the proprietorship of the trademark of ‘Microsoft’ and along with this he also had the copyright and license agreement of other computer software such as MS Windows 98, MS office 2000, and MS Visual Studio 6.0. Here the plaintiff had filed a plaint against the defendant for infringement of the software in the computer. According to his allegations, the defendant used to sell the copies of this software without any license by loading it in a hard disk of the computers. This plaintiff’s company suffered a huge financial loss. The plaintiff, in this case, sought from the court a permanent injunction to restrain the defendants and his staff from such illegal acts of infringing the plaintiff’s copyright. Further, the plaintiff also asked for compensation for all the losses including all the counterfeit copies of the plaintiff’s software, and the software which has the plaintiffs’ trademarks, or any other mark which may be identified without his permission, and the duplicating equipment used in copying the same.
The Delhi High Court in this case gave the decision in favor of the plaintiff and awarded him the compensation of Rs.19.75 lacs along with interest @ 9% from the date of judgment till the payment. The Court stated that this case constitutes a general threat in infringement of the copyright in the class related to software.
Movie piracy
Cinematographic piracy is a bit complex as it requires varieties of copyright in single work. Initially, it’s a theatrical right in which the distributors buy this right from the producers for the actual viewing of the public. However, these rights are limited to time and territory. Therefore, it is more feasible to view the films on video cassettes that do not need cable or satellite connections. Two forms of piracy found in movies are video piracy and cable piracy.
Video piracy
Video piracy is the one in which films are produced in the form of cassettes without the permission of the right holder. Usually, producers sell the video rights after 6 weeks of the release of the film. This sale of video rights is legal and authorized for home viewing only. Any commercial use of these cassettes such as in video parlors may cause a violation of copyright. Two types of video piracies are mainly found in India.
- First, where video rights for films have not been sold by the producer but video cassettes are available in the market for buying or borrowing.
- The second is when video rights are legally given to the parties, but cassettes are made and sold by pirates as well.
Cable piracy
Cable piracy is the unauthorized transmission of films through cable networks. As mentioned above, showing a film in a cable network requires the acquisition of proper authorization from the right holder. But many a time, films, especially the new releases, are shown through cables without such authorization, which tantamounts to piracy.
However, nowadays these pirated contents are easily available due to the internet. Online film piracy was increased by 62% in India during March 2020 than in February that is during the initial stage of lockdown. The reason behind this was that part of the country’s population could not afford legal video streaming platforms such as OTT or may want to intentionally consume free pirated content. OTT platforms with their advanced technologies have given rise to digital piracy as these platforms need the subscription through money. Last year, due to a lockdown when all the theatres were closed, many of the producers released their fresh films on OTT channels such as Netflix, Hotstar, Voot, Prime, etc.
Very recently, the movie Radhe was released on Zee studio however its pirated copies were leaked on Telegram and Whatsapp. The production company also filed a complaint about downloading and selling the pirated version of these movies, also Salman Khan the lead role actor in the movie warned the people who were engaged in piracy.
Piracy in web series
Piracy was also found in recent web series such as Sacred Games, the very famous series on Netflix. The pirated version of its second season was released on various messaging applications such as Telegram and other pirated websites on the internet. As per the report by Irdeto, a global solutions provider in digital platform security, media, and entertainment, Indian media and entertainment loses $2.8 billion of its annual revenue to piracy. Also, it observed that India is among the top five countries in peer-to-peer downloading.
The above contents were some of the common media piracy which has increased in today’s time. This causes a huge impact upon the original creators who invest lots of time, money, and skills in the creation of such unique things. Therefore, it is important to know about the laws governing media piracy.
Piracy law in India
In India, there is no definite law to regulate the act of piracy. However, it is governed under the Copyright Act, 1957 that gives protection to all kinds of literary, artistic, musical, and dramatic work. This also protects the interest of moviemakers and distributors. One of the objectives behind the Amendment Act of 2012 was to curb the rapid increase in online piracy in India.
Section 65 A of the Amendment Act secures Technological Protection Measure (TPM) that is used against the breach by the copyright owners. If such breach occurs by evading TPM, then the person could be punished with a fine and imprisonment up to 2 years. Section 65B of the Act also protects sensitive information from unauthorized and illegal sites through Information Rights Management. Any alteration or intentional removal of IRM would lead to an offence punishable with imprisonment.
Section 66 of the Information Technology Act, 2000 protects against the online distribution of illegal copies of the pirated contents and if such offence is committed, it can be punished with imprisonment for at most 3 years and fined up to 2 lacs.
Anti-piracy reforms in India
The act of piracy has immensely affected the profits of rightful copyright owners and also the overall economy of the country. This has increased due to the inability of the copyright owners in identifying the real culprit behind infringements of such rights and also due to the presence of digital media everywhere resulting in a lot of pirated content. Being scared of these increasing threats, the Government of India initiated numerous reforms at various levels to curb these threats.
National Intellectual Property Rights Policy, 2016
The government initiated this policy in 2016 with an intention to spread IPR awareness, creation, commercialization, and enforcement of these reforms. The policy defines “pirated copyright goods” as stated under the TRIPS agreement, “goods which are copies made without the consent of the right holder or person duly authorized by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.”
- Objective 1 of this policy is to create awareness of the economic, social, and cultural benefits of IPRs especially among the teenagers who are the major consumers of the pirated content. This would help in understanding the importance of IP rights and the impact of the infringement on the artist’s rights and the economy of the country. This will further help in clarifying the difference between the distribution of legal and illegal channels at a large scale in the society who are unknowingly the victims of promoting piracy.
- Objective 3 of the policy deals with the amendments in the Cinematograph Act, 1952 for additional provisions in the illegal recording of the films.
- Objective 6 of the policy states the requirement for awareness, firm enforcement, and mechanism to fight offline and online media piracy among a large group of individuals.
Few steps were taken to tackle the issue of piracy.
- There was an enhancement in coordination, direction, and guidance among various agencies for strengthening enforcement measures.
- Continuous sharing of intelligence and best practices at various national and international levels.
- Awareness about IP violations and their impact upon various sectors were studied.
- There was a continuous examination of implications in jurisdiction among enforcement authorities.
- Various solutions through appropriate technology were introduced for curbing digital piracy.
The Cell for IPR Promotion and Management (CIPAM)
The National IPR Policy has given rise to the Cell for IPR Promotion and Management (CIPAM) under the various departments of the Government of India that is the Department of Industrial Policy and Promotion and the Ministry of Commerce and Industry. This was profound for promoting awareness and strengthening the enforcement of IP rights. CIPAM together with the Film and Television Producers Guild of India and Viacom18 has campaigned against piracy through a series of videos on anti-piracy. This campaign consisted of top celebrities to give more effects on public minds. Also, various cartoon videos were aired for the children’s awareness stating ‘no to piracy’. These videos were played before the movies in all the cinema halls including the largest cinema chain that is PVR cinemas. Due to all these efforts, CIPAM collaborating with the National Internet Exchange of India and Maharashtra Cyber Digital Crime Unit (MCDCU) has suspended 300 pirated websites. These materials relating to anti-piracy were available on CIPAM websites in multiple languages in schools, markets, cinema halls, etc to combat the issue of piracy. CIPAM, in association with the Federation of Indian Chambers of Commerce and Industry (FICCI), has created an IPR Enforcement Toolkit for Police to guide police officials in dealing with IP crimes, in copyright piracy. The toolkit provides:(i) information on legal provisions relevant to IPR crime, (ii) a checklist for registering a complaint, (iii) a checklist for search and seizure, and (iv) proposed guidelines for search and seizure in case of IP crimes. This policy of 2017 has also initiated training programs for the judiciary such as high courts and district courts.
Indian Music Industry (IMI)
It is the second oldest music company established in the year 1993. It is registered as a society in West Bengal. IMI includes several major companies like Saregama, Venus, Sony, etc. It is the first organization to initiate police officers to lead anti-piracy operations. IMI operates law enforcement, gathering information, etc. to deal with the issue of piracy through its strong teams in the offices at Kolkata, Bangalore, Mumbai, Chennai, and many other cities in the Country. From 2001 to 2004, IMI registered over 5500 cases, seized over 10 lakh music cassettes, and around 25 lakh CDs.
Business Software Alliance (BSA)
BSA has its regional office in Delhi from where various anti-piracy operations are conducted across the country. According to BSA, India is at 20th Rank in global piracy. They involve the general public in providing information on pirated software through an anti-piracy initiative. They also punish various companies for using unlicensed software. They organized reward programs for encouraging people to fight against piracy.
Industry Enforcers
Famous T-series and Yash Raj Films and many more Bollywood and music companies have established anti-piracy reforms to fight piracy in specific markets. These branded companies have many times conducted raids along with the police officials to scrutinize piracy of its copyrighted contents and took strict action against the digital stealing. They are also part of enforcement activities against piracy at national and international levels. This organization is also trying to enforce anti-piracy laws by conducting raids across the country with the help of Ex-Cops.
Other initiatives by both Central and State Government
Anti-piracy measures in the Draft E-Commerce Policy– This was prepared in 2019 to take into consideration all the interests of the stakeholders like investors, manufacturers, MSMEs, traders, consumers, and start-ups. Following measures were initiated by these stakeholders.
- Intermediaries were involved to prevent the online dissemination of pirated content. Also gave priority to the trusted entities for resolving the complaints.
- As soon as the complaint was charged for the program, distribution of pirated content without any authority, such websites are removed or disabled access to the alleged content.
- Rogue websites are the host of all the pirated websites. A body of stakeholders are created to identify such rogue websites and after proper verification, they are included under “Infringing Websites List” (IWL), which provides the following measures
- Internet service providers (ISPs) remove or disable access to the websites identified in the IWL within a set of specific time periods.
- Payment gateways are not permitted for the flow of payments to or from such rogue websites.
- Search engines take the necessary steps to remove websites identified in the IWL in their search results.
- Advertisers or advertising agencies shall not host any advertisements on the websites identified in the IWL.
- The Ministry of Home Affairs has launched the National Cyber Crime Reporting Portal where the citizens could easily log and complain regarding cybercrimes. Online piracy complaints can be filed under subheadings.
The above are certain anti-piracy reforms initiated by the Government of India to combat media piracy. It’s not just the government but also the judiciary that has contributed to this fight against piracy. Following are the steps that were taken by various courts to prevent piracy in the country.
Judicial contribution
The Copyright Act has provided relief to the artist against cybercrimes to much extent from civil and criminal liabilities. From the purpose of restricting unauthorized broadcasting to blocking the websites, Indian courts have taken strict actions against online piracy.
With the help of the introduction of John Doe orders (also called Ashok Kumar orders in India), it has become easy to identify the infringers and take action against them for online pirates. The courts in such cases grant injunctions against anonymous persons, that is they do not reveal the identity of the infringer but describe them by a brief description of the identity of the person via notice. It allows the victim to search the premises and seize the evidence of infringement of the rights from the unknown defendant. To obtain this order the victim has to establish the following.
- a prima facie case.
- likelihood of irreparable damage if the order is refused.
- balance of convenience in favor of the plaintiff.
In the case of Taj Television LTD v. Rajan Mandal (2003) the concept of the John Doe order originated. In this case, the order was issued against the cable operator who was unauthorisedly broadcasting the World Cup football tournament. The Delhi High Court granted Taj ex-parte injunction on both named and unnamed cable operators for unauthorized transmission of its broadcasting rights which lead to infringement of copyright. Due to this, several cable operators have not signed up with Taj or its authorized operators for broadcasting the tournament without any permission, which has changed the television industry with millions of losses.
One of the important developments was brought in the form of a ‘dynamic injunction’ in the recent landmark judgment pertaining to combat online piracy in India. In the case of UTV Software Communication Ltd. v. 1337. TO and others (2019), the Delhi high court has assured that the right holders need not go through a lengthy and complex process of a judicial order for issuing blocking orders. Instead, the plaintiff can directly approach the Joint Registrar of the Delhi High Court to extend an injunction order which already existed against similar websites containing mirror contents. This form was inspired by Singaporean law. The Court has also ordered the plaintiff to file an affidavit for the confirmation of the mirror website with sufficient reasonable evidence. On satisfying the declaration, the Joint Registrar will direct the ISP to remove all the access in India to such mirror websites. This would restrain the people who are unknowingly using the pirated sites.
Conclusion
Every person has a right to protect their work from being stolen. Lots of financial and mental efforts are required to create such innovative art. Online media piracy has increased with the rapid growth in technologies. Both Central and state governments have enforced various anti-piracy reforms and amendments in the Copyright Act to secure the intellectual rights of the right holders. These efforts had proven to be successful to much extent. However, in this digital world, it is not easy to eradicate the problem of piracy completely as most of the users are aware of piracy, and it is easily and freely available.
The recent judgment is a giant step towards blocking the websites and making the enforcement procedure easier for the copyright owners. It can be more beneficial if these directions of the courts could be formulated as the policy in India. Due to all such reforms, there might come a time when the users will be notified about the pirated content they are unknowingly accessing. To make India a piracy-free country, many more anti-piracy reforms should be introduced and there should be easy and affordable access to the original content so that the users will no more use pirated content.
Reference
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