This article is written by Samridhi Srivastava from Lloyd Law College, Greater Noida. The article gives an overview of piracy laws and prosecution challenges in India.
Table of Contents
Introduction
Piracy is one of the most common hazards of our society. In our daily life, we come across so many websites, posts, research works, movies, songs, etc. which are copied and sold in the market at the lowest price. This practice not only affects the original owner’s hard work but also the nation’s economy. However, there are laws against such illicit practices that protect the interest of the owner of original work globally.
In India, the Copyright Act, 1957 provides protection to any artistic or literary work, music, sounds, etc. by allowing the owner to safeguard his interest through copyright, and when the original work is protected under it, anyone who uses it without the owner’s permission will be punished by the court of law.
This article will give an insight into the piracy laws of some of the countries across the globe and various other developments that took place in India.
Piracy
Piracy is a practice where the original work is copied through unaccredited means and made available in the market at a cheap rate. However, there are various types of piracy and they are as follows:
- Software Piracy: When someone violates the copyright of the software by copying the programming of the software illegally, is it known as software piracy. There are five types of software piracy and they are as follows:
- Counterfeiting: In this type of piracy, a person tries to sell and distribute the duplicate version of the software through an illegal means.
- Internet Piracy: The basic understanding of this type of software piracy is that it happens when someone downloads software from the internet and makes it available for free on websites, auctions the software on the internet where counterfeit is accepted or makes it available on platforms, and also there are programs available through which copyright software are transported via peer-to-peer internet.
- End-User Piracy: This happens when someone who is not an authorized person produces false copies of the software.
- Client-server Overuse: It occurs when several people are using one copy of the program at one time through a local area network or a wide area network. Here, a single copy of the program is overused.
- Hard-disk Loading: It happens when an illegal copy of a software is installed by a business that is involved in selling computers. It is done to increase the sale of computers in the market.
- Video Piracy: It happens when someone produces a film or a movie, without obtaining authorization, in the form of CDs or DVDs. The authority of allowing an individual to produce copies of the movies is held with the producer.
- E-Commerce Piracy: This type of piracy is widely prevalent in the e-commerce sector where various duplicates of one original product are made available to the purchaser at a cheap cost.
- Music Piracy: As soon as new music releases, many local individuals tend to get involved in copying the original music and providing it at a cheap rate without taking the permission of the music producer, which results in its piracy.
- Cable Television Piracy: This type of piracy takes place when a television cable provider transmits films without prior permission of the producer.
- Online Piracy: As technology evolves and everything is easily made available to us through the medium of the Internet, the risk of pirated versions of the original product also rises. However, there are different types of online piracy and they are as follows:
- Streaming Sites: There are free online streaming websites available that do not require us to register ourselves or buy a subscription but will provide us with links of illegal/unauthorized online movie sites.
- CyberLockers: It is similar to cloud storage where it provides a storage facility for various media content, for instance, audio, video, photos, etc. but these are often inaccessible. They anonymously share these content which anyone can easily stream and download conveniently. It ensures security for any kind of data.
- P2P: When an individual is using a Peer-to-Peer network for sharing their media contents among their few friends, unknowingly, they are also allowing strangers to access their files, which in turn increases the risk of misuse of the shared content by those individuals attached through the same P2P network. It also results in the spread of pirated files which anyone can download it in their systems.
- Linking Sites: These sites provide various pirated versions of movies that are linked to cyberlockers.
- Torrent Sites: There are certain people involved in sharing and uploading media files on private torrent sites. Eventually, the files make their way to a public torrent site that can be easily accessed by anyone.
Laws related to piracy across the globe
There are various countries facing the issue of piracy, and in order to address the same, they have implemented laws to regulate it and punish the violators. These are some of the countries that have implemented anti-piracy laws:
The United States Of America
The USA has laws that protect the interest of the content creators, and the Copyright Office manages issues that are reported under the Copyright Act, 1976, the Semiconductor Chip Protection Act, 1984, and the Vessel Hull Design Protection Act. The penalty for infringing copyright laws, when found guilty under first conviction, is imprisonment for a term of 5 years, or a fine of $250,000, or both. If a person is found guilty under second conviction, he is sentenced a jail term for a maximum period of 10 years, or a $250,000 fine, or both.
The United Kingdom
The Copyright, Designs, and Patents Act 1988 protects the interest of the content creators. It aims to protect the work of a film producer, musician, author, artist, designer, etc. The law in the UK also allows the owner to seize the pirated contents, without prior permission of the Court, as per Section 100 and Section 196 of the Act. However, in case of criminal proceedings, the punishment for those who violate the copyright law and are charged under Section 107 and Section 198, is imprisonment for a maximum term of 10 years, or an unlimited fine, or both.
France
Here, Copyright Law protects any artistic work covered under Section 1 of the French Intellectual Property Rights Code. The person who violates the code is subjected to a jail term of 5 years, with a fine of 500,000 Euro.
Italy
In Italy, any proceedings regarding copyright infringement are initiated under the Law for the Protection of Copyright and Neighbouring Rights. This law protects all the artistic or literary work, etc. and the copyright infringer is held liable under Chapter-3 of the Law, where the penalty for infringement of various rights are mentioned.
Some countries have signed the Anti-Counterfeiting Trade Agreement(ACTA) for implementing stronger legislation against piracy. 8 countries are signatory to this and countries who choose to rectify it intend to have a more stringent penalty against the violator.
India
Pirated versions of any original work comes handy due to the internet serving as the fastest medium for spreading any kind of content from one person to millions. And in India, the worst-hit industries in today’s time are the film, TV and e-commerce industry.
The film industry is considered the worst hit because the pirated version of any movie is easily made available on the internet by millions of websites and even before a movie is released, one can easily find it on the internet which adversely affects the market of these movies. Therefore, it results in a drop in investment in the original copy of the movie, and the younger generation also prefers this cheap and handy version of the movie to the costly CDs or DVDs.
The TV industry is affected because there are local cable providers offering a subscription of 300 plus channels at a nominal rate in comparison to the other broadcasters. Because of the cheap rate, the population opts out of the leading broadcasting stations and they tend to lose 400 to 700 subscribers daily. The truth is that the local service provider installs a local head unit which transfers the pirated channels to its subscribers. The significant increase in the piracy of TV channels is due to the Interconnection Regulations, 2017. And the worst-hit states are Gujarat, Andhra Pradesh, Telangana, and Madhya Pradesh. The broadcasting of channels is done by Distribution Public Operators(DPOs), who either provide service through DTH or transfer it to the local cable operators(LCOs). They sort to distribute it to the LCOs when there is a dispute regarding the payment made to the broadcaster by the distributor. This activity of DPOs increases the loss of subscribers to leading broadcaster and it is still unaddressed.
The basis of the e-commerce industry is to provide various products and services to its customers at their door-step via the internet. With the evolution of technology, most businesses opt for online-based services which results in a significant improvement in their annual sale and a positive impact on the economy. As a coin has two sides, likewise, businesses that provide services online also face a drop in the sale of their products due to the presence of a pirated version of their products. The spread of these duplicate products have even reached the offline market, and these products are so similar in their appearance and quality that it becomes difficult for the buyers to distinguish between them.
Prosecution challenges in India
The Copyright Act, 1957 and the Trademark Act, 1999 provide the remedy to an individual whose product, art, literary work, design, or music, etc. are sold without his or her permission, in whose name copyright or trademark is registered. The one involved in providing duplicates of these products is treated as a criminal in the eyes of law if found guilty. They are held liable because they tend to tarnish the image of the established firms whose goodwill is marked in the eyes of the law and public, and breach the trust of the buyers, for whom it is difficult to distinguish between original and fake products.
The purpose of a trademark is to distinguish goods or services from one another, making it easier for the consumers to make the distinction among other available products. It is required that products must mention all the characteristics of the goods or services, such as the date of manufacture, expiry date, ingredients of the product, etc. A person can register its trademark either in symbol, sign, or in any other design they prefer, but it should be unique.
However, even after having a registered and unique trademark, there are still individuals who involve in the sale of any goods or services which is already a registered trademark without taking permission from the owner of the trademark. In the case of infringement of the trademark, one can avail remedy by lodging an F.I.R under Section 156 of the CrPC. The penalty, in the case of trademark infringement, is mentioned under Section 103 and Section 104 of the Trademark Act, 1999, where the person liable for infringement is sentenced a jail term of not less than 6 months but not more than 3 years, along with a fine of Rs. 50,000 which can go up to Rs. 2 lakhs.
The purpose of copyright is to protect one’s creativity from being copied. In the case of copyright infringement, one should file an FIR under Section 420 of IPC. The punishment for a person who is found guilty, under Section 63 of the Act, is a jail term of 6 months that can be extended to 3 years, and a fine of Rs. 50,000 that can go up to 2 lakhs. Also, police officers have the power to seize the pirated version of the product without a warrant under Section 64 of the Act.
Other remedies that are available are as follows:
- When you are filing a complaint in the police station for a criminal act along with it you always file for civil proceeding. As by initiating a civil case, one cannot deal with the product and likewise, the counterfeited product will be seized.
- One can also seek a remedy by approaching the Court asking for an injunction order against the proprietor dealing with the counterfeited product, under Section 36 of the Indian Specific Relief Act, 1963. This order will put a halt to the manufacturing of the products.
- The damaged party can also seek monetary relief.
- When there is an infringement of copyright, trademark, or any other intellectual property right, one also file a case under Section 113 of the Customs Act, 1962. This section also gives the power to seize any counterfeited product.
Landmark Judgments
The following are the landmark judgments:
Yahoo!, Inc. v. Akash Arora & Anr. 1999
In this case, the defendant started a website under the domain name of Yahoo India. The court held that the domain name serves the same purpose as the registered trademark which is not just a mere address. Therefore, it is entitled to equal protection as a trademark.
Patel Field Marshal Agencies Ltd v. PM diesel Ltd. & Ors. 2017
In this case, the court answered the most disputed question regarding the availability of the remedy of ratification of a trademark, if there is a suit of trademark infringement, under Section 47 and Section 57 of the Trademark Act, 1999. The court in this case held that one can claim for ratification of the trademark by the way of litigation, as the power of ratifying it lies with the statutory authority.
Kent Ro Systems Ltd & Anr v. Amit Kotak & Ors.2017
In this case, the Supreme Court gave a ruling that intermediaries have no such obligation on their part for screening any content before publishing, whether it tends to violate any intellectual right or not.
Suggestive Reforms
The availability of pirated content has increased with the evolution of technology. Everything we need is just a tap away which is made possible due to the presence of electronic gadgets. As piracy increases, the annual sale of the leading companies falls because an exact copy of original work is available on both the online and offline platforms. And when the annual sale of these companies fall, it also affects the nation’s economy because it leads to an increase in the unemployment level. Therefore, it is imperative to control the pirated sale of any product. The followings are the suggestive reforms:
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- Stringent punishment: Along with the film industry, TV Cable and e-commerce industry are worst hit by the grey market. So, in order to regulate piracy, stringent laws should be implemented. In the Copyright Act, the punishment for copyright infringement is very minimal. It should be increased from 3 years to 10 years which will not only help in controlling the pirated product market but also decreasing the presence of fake or duplicate products.
- Awareness: The common public should be made aware of the piracy laws in India because the one who is producing and spreading a pirated version of the audio, video, products, etc. and the one who is using it, even after being aware of the fact that the available goods or services are pirated, are equally guilty of the act.
- Websites should be banned: Websites that are providing links to pirated movies, music, etc. should be analyzed and banned immediately. As these websites make a profit by the time a user is on the site or shares the link, and due to their presence the creator suffers a loss.
- Regulatory body: A regulatory body should be established whose main motive should be to identify the source of the piracy and to bring injunction orders against them.
Conclusion
There are various laws in the country that are implemented for protecting creativity, business, broadcasting of channels, designs, etc. but these laws are not very stringent in comparison to other countries. For instance, in the USA, the punishment for copyright infringement is imprisonment for 10 years with a fine of $250,000, which helps in the effective regulation of piracy. While, in India, the punishment for copying other works is merely a jail term ranging from 6 months to 3 years depending upon the seriousness of the crime committed by the violator.
Although there are various reforms introduced in various sectors of the law for improving institutional functioning or reducing the crime rate, there were no such reforms introduced that would reduce piracy or improve the anti-piracy laws. However, every case law that was dealt with by the court of law answered the implication of the anti-piracy laws but there were no reforms brought to improve its implication.
References
- https://www.nortonlifelock.com/us/en/legal/anti-piracy/types-piracy/.
- https://www.cnbctv18.com/business/tv-industry-worried-as-piracy-of-channels-rises-300-under-new-regulatory-framework-4346921.htm.
- https://www.hindustantimes.com/analysis/e-commerce-the-threat-of-counterfeits-and-piracy-opinion/story-Q7LujeIDtiVn9OTvnZKeqL.html.
- https://www.thehindu.com/features/cinema/The-piracy-nightmare/article14593263.ece.
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