legality of torrent

In this article, Anubhav Pandey talks of legality of torrent in India.

Legality of torrent in India

Copyright is the exclusive right over one’s own work. Copyrights can be over literary, dramatic or musical work, sound recording, and cinematography film. A copyright violation is based on the principle that, law does not permit another to steal what has been produced by the skill and labour of others. The issue with torrent websites is, they contain many items, mostly covered by copyright law and such items becomes accessible to the public at large. Let us take a look at the legality of torrent in India.

What is a torrent file

A torrent file contains a metadata and trackers information of the file to be shared. In layman’s terms, all the information of a file is available to you that you want to download. A torrent file does not contain the content to be distributed; it only contains information about those files, such as their names, sizes, folder structure. What the statutes say on legality of torrent in India?

Is visiting a torrent site crime or not

A recent controversy arose on the legality of torrent websites in India. Clearing all current ambiguities, a detailed answer to the above query is required. Whether visiting a torrent site in Indian is a crime or not? If no, then can a mere download of a torrent file makes you a criminal? Which law governs these issues?

Not very long time before, a message displayed on the screen while accessing torrent website said,

Infringing or abetting infringement of copyright-protected content including under this URL (Torrent website) is an offence in law. Ss. 63, 63-A, 65 and 65-A of the Copyright Act, 1957, read with Section 51, prescribe penalties of a prison term of up to 3 years and a fine of up to Rs.3 lakhs.”

Visiting a torrent site: Legal position

Merely visiting and browsing a torrent website is not an offence under the Indian law. If one downloads files from a torrent, then also it is not a crime under the laws providing he is viewing it in private. This is what interpretation of relevant statutes say on legality of torrent in India.

If a person starts distribution of these files or public showcase of the downloaded material then only, law can grab hold of him. These observations are derived from the following legal points and statutes.

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Here is an exact reason, why mere visiting a torrent website is not a crime in India.

Reason#1 (why visiting a torrent website is not a crime in India)

When a person knowingly infringes or abets the infringement of (making copies, distribution, public performance) of,

  1. Copyright materials.
  2. Song
  3. Movies
  4. Books
  5. Software
  6. And other material over which copyright exists,

It is an offence when done without the permission of the person who has got exclusive rights to grant it. This is an offence punishable with a fine upto 3 lakhs and 2 years jail term.  

In a torrent website, there are plenty of works including songs, movies and other such work over which copyright exists. Files in torrent may also be with the prior permission of users.

An example of this is, many a time various browsing software gives access to torrent user to download their file. Such downloading and even sharing is not illegal with the permission of the person who has got the exclusive right to grant it is obtained in such cases. Cases, where no prior permission is granted by the owner of the work and still these works, are being downloaded by the user might be a crime only when, one uses it for the purpose of public viewing, distribution or making copies.

Only viewing of such work is not an offence under the Section 63 of the Copyright Act. “The offence is not in viewing but in  making a prejudicial distribution, a public distribution or letting for sale or hire without appropriate permission copyright-protected material.” Therefore, on answering the proposition on legality of torrent in India, the answer is, no. Let us look at other reasons, what statutes say on legality of torrent in India.

The following things will not be considered as a copyright infringement:

  1. A fair dealing with a literary, dramatic, musical or artistic work for the purpose of private works only.
  2. The reproduction of a literary, dramatic, musical or artistic work for the purpose of judicial proceeding or for the purpose a report of judicial proceedings,
  3. The making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme to make backup copies purely as a temporary protection against loss, destruction or damage in order only to utilize the computer programme for the purpose for which it was supplied.

Reason#2 (Why visiting a torrent website is not a crime in India)

  • Digital piracy is common nowadays. A movie released yesterday is available on torrent websites within few days only. Under the Copyright Act, a rationale is to prevent the possibility of high rates of digital piracy.       
  • There are tools by the use of which artistic or other files can be copied. These are called plates. Any person who is knowingly using these plates or is in possession of a plate is liable for punishment for 2 years along with fine. Just as there are counterfeiting machines used for the purpose of duplicating currency notes, in the same manner, photocopy machines, computer or laptop can be used for duplicating works containing copyright. 
  • Therefore, duplicating a movie downloaded from torrent is punishable, even transferring it from hard drive to pen drive might drag you in trouble.

Looking from this perspective, let us relate viewing of a torrent website and the act relating to possession of plate. When an individual views a torrent website he does not creates a duplicate copy just by viewing it. If after downloading is complete, the files are being copied and pasted in various devices, this will amount to the violation of copyright infringement laws. Therefore, according to the second reasoning on legality of torrents in India, the answer is, no. Visiting a torrent website will not land you into trouble.

Hence, this provision is not applicable to viewing or downloading of movies or songs from a Torrent site. Copyright Act only talk about possession, infringement, production and distribution of the pirated contents. Merely viewing a pirated content on the torrent website would not amount to a punishable offence.

Reason#3 (Why mere visiting a torrent site will not land you in jail)

Hacking, often observed phenomenon over the internet where someone gains unauthorized access to any software or another’s account. Critics supporting the reasoning that viewing torrent might land you in jail give the provision of section 65A of the Copyright Act in their support. The section says, visiting of websites blocked by the use of cracks and hacking is punishable under law with a jail term of 2 years and fine.

Therefore, using of proxy and other such online software for accessing blocked torrent or other website is an offence under the Copyright Act. Since torrent website (except few) are not as such blocked by the Indian government, therefore, visiting these websites won’t land you in jail. Gaining access to a subscription of Netflix through a crack or other technological measure is an offense. Hence, third reasoning on legality of torrent in India also justifies the stance that, a mere visit or even a download for personal use will not land you into jail.

Reason#4: Specific to computer programs (Why mere visiting a torrent website will not land you in jail)

Any person who knowingly makes use on a computer of an infringing copy of a computer programme shall be punishable with imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend to two lakh rupees provided where the computer programme has not been used for gain or in the course of trade or business.

Therefore, if one downloads a software from torrent and uses it for his business or trade purposes then only he can be held liable for an offense of breach of copyright laws. Just merely visiting a torrent website will not land an individual in jail

What is the status? Will mere Visiting a torrent website will land you in Jail or not? What is the final answer? Yes or no?

No. Merely viewing a pirated content on the torrent website would not amount to a punishable offence.

This was all on the legality of torrent in India. Do let us know your views by commenting below.

 

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Suggested reading.

How to Register Cyber Crime Complaint with Cyber Cell of Police – Online Complaint Procedure

 

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