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The article is written by Stuti Jain, from Vivekananda Institute of Professional Studies, New Delhi.. This article explains how the entertainment industry has changed during the COVID 19 and what are the piracy-related laws when the entertainment industry has gone online during the pandemic.

Introduction

Isn’t it easy to watch the movies that are available for probably Rs 400-700 per month’s subscriptions on the other pirated websites? But have we ever thought of the repercussions that it has, on the whole industry, when we go and just download a movie or watch it on other pirated websites, instead of the authorised websites? No, we don’t. The producers, filmmakers and the people who have devoted their mind, energy and hard work don’t get the deserving revenues that they rightfully deserve. The entertainment industry has already been facing a downfall due to the current lockdowns and closure of stadiums, movie halls, concerts; and these piracy concerns are just a cherry on the top.

With a large number of people, sitting idle at home due to lockdowns, the piracy concerns have shot up across the world. According to MUSO, piracy during lockdown has increased by 63% in India, whereas 66% in Italy and 41% in the USA. 

According to Irdeto, India is among the top 5 countries, for peer-to-peer downloads.

How has pandemic affected the entertainment industry

As Irving Berlin’s movie say, “there’s no business like show business”.

On one hand, due to the closure of movie theatres, cricket matches, concerts, the entertainment industry is hard stricken by the pandemic, on the other hand, this particular industry has gained a lot due to the pandemic by the online streaming and the increased demand for the web series and other such shows.

The movie releases around the globe have either been postponed or have been streamed online. For example movies like “Gunjan Saxena”, “Gulabo sitaabo” etc. which were to be released in theatres were all released on the media platforms like Netflix or Amazon, with a whopping amount of audience base. But movies like “Sooryavanshi” were set to be released later. Various countries are taking different initiatives to boost up their entertainment industry, for example, one of the Dubai malls has facilitated the drive-in movie theatres for the customers, along with maintaining the social distancing norms. 

However, with the shooting of the movies is at pause, the daily wage earners are facing huge repercussions. There are many movie stars and celebrities who did come forward to help and provide for these daily wage earners, however, if such a situation prevails, even such big superstars might have to cut off these pays, and might have to lay-off the labours under independent contractors. 

With the shooting of daily soaps being on a halt, the television industries are telecasting the repeated episodes of the popular shows like Ramayana, Mahabharat etc. DD saw a 650 per cent growth in viewership in one week and became the most-watched channel for two consecutive weeks, according to the Broadcast by the Audience Research Council. There are many TV shows, which have started the shooting quite early, with adequate safety measures, still, the new episodes of these daily soaps would obviously be a huge task, because there might be a lot of workers or TV actors who either went back to their hometowns or have fallen sick. 

The sports industry is one area of entertainment, which is deeply affected by the pandemic. The cancellation of IPL and Olympics was shocking news for all of us. Since the audience can’t attend the sports event in the stadium, there is a desperate need for the technology advancement through which the audience could see even a minute details on their televisions. The cost that used to be incurred for the audience, will now have to be incurred on the production and broadcasting detailing of the games. 

The live concerts like Coachella or sunburns are an obvious no-no at this time. However, tomorrow’s land music festival this year was conducted online.

Despite a huge loss incurred by most of the entertainment sector, the pandemic proved to be a silver lining for online gamers. In India, games like rummy, ludo and online casinos are on a fast growth track. The global video game market is forecast to be worth $159 billion in 2020. The biggest market by revenue is Asia-Pacific with almost 50% of the games market by value. 

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Anti-piracy laws in India

Piracy in the Indian context means, to unauthorised copying, distributing and selling of copyrighted work. By “unauthorised” we mean, without having the legal right or licence for a particular act. Under international laws, there is no particular law that governs “piracy” of the movies or other entertainment industry. In India, to prevent piracy, we use “The Copyright Act, 1957” in order to protect the infringement issues in the entertainment industry. Under Section 13 of the Act, copyright protection is conferred on literary works, dramatic works, musical works, artistic works, cinematograph films, and sound recordings.  Under this Act, there is a mention of two kinds of rights:

  1. Economic Rights-  The scope of this Act falls under originally conceptualized work including literary works, dramatic works, musical works, artistic works, cinematograph films and sound recordings.
  2. Moral Rights- Section 57 of the Act splits moral rights into two basic rights, right of paternity and right of integrity.

Not only the Copyright Act, but one could be held liable under the Information Technology Act, 2000 as well. 

Development of online piracy laws in India

There is no particular law for the online pirated content, however, over the years, there have been amendments in the copyright act,1957, the judicial pronouncements and other enforcement measures are taken up to curb the online piracy

Copyright (Amendment) Act, 2012 

Following are some of the changes that took place in 2012, in the context of the digital advancements.  

  1. The amendment in the “right to store”

Under Section 14, the words “any medium by electronic or other means” was introduced, in respect of artistic works, cinematographic films and sound recording. 

  1. The amendment of the “commercial rental” 

The term ‘hire’ given under Section 14, (in respect to cinematographic films and sound recordings) was replaced by “commercial rental”. Commercial rental means, to give for rent or lease or lending of a lawfully acquired copy of work. Also, as the name suggests, it’s for the “commercial” use of rent, and not for the “non-commercial” aspect. “Non-commercial” aspects would include the renting or leasing to the non-profit library or the Non-profit educational institutes.

  1. Right of royalties to performers

Section 38A was inserted, Through which, the performers were given the right to receive the royalties if their performances are subjected to commercial use. 

  1. Amendment in fair use 

Earlier the “fair use” only extended to lottery, dramatic, musical and artistic works. With the amendment, the fair use covers all works( except computer programmes) and hence including sound recordings and videos within its purview. This would enable people to make copies for teaching in classrooms, making personal copies of the songs etc.

  1. New exceptions included in fair use, to be at par with the digital advancement

  • Section 52(1)(b)– It relates to fair dealing for reporting the current events in newspaper, magazines etc. 
  • Section 52(1)(c) – it relates to the production of certain works for the judicial proceedings.
  • Section 52(1)(n)– It relates to the publication of lectures delivered in public in newspapers, magazines etc. 
  1. Insertion of new sections for technological measures 

Sections 65A and 65B were added to protect the circumvention of the technological measures taken for the protection of the rights and to protect the rights of the management information respectively. 

Concept of John Doe orders

John Doe orders are the type of “injunction” that describes an injunction sought against someone, whose identity is unknown at the time when the order is passed. Hence, of an unknown person, might become a threat to the intellectual property owner’s work, John Doe orders could be sought by the owner against such unknown entities.

When a movie is made, the right to broadcast such films is vested with a particular entity. However, there might be a risk that other websites might release the movie before the broadcasting agency releases the same. Hence, John Doe injunctions could be sought against such internet service providers or unlicensed websites. Indian movies like “Thank You” and “Saat Khoon Maaf” sought John Doe injunction.

Punishment and fine

The punishments specified are as follows:

  • Copyright Act: If a person uses a pirated computer program, or a program that has been manufactured or acquired through copyright infringement, on any computer device, he shall be liable for imprisonment no less than 7 days, extending up to 3 years, and a fine no less than Rs. 50 thousand, which may be extended up to Rs. 3 lakh.
  • IT Act: If a person gains access to a computer, a network of computers, or computer systems, then proceeds to view, copy and extract the data present on the computer, either through digital means or through a removable storage medium(pen drive or hard disk), without prior authorization from the owner of the computer, he is liable to pay damages as compensation which can go up to a sum of Rs. 1 crore. Any person who downloads said stolen data will also be liable for the same amount.

Online release and recent instances of piracy

  1. A while ago, the movie Udta Punjab was leaked online before its release date. The producers of the films immediately lodged a complaint in cyber cells. The leaked version had a watermark stating “for censor”, due to which suspicion on the Central Board of Film Certification (CBFC) was raised. The culprit was arrested in Mumbai and was sentenced to 3 years of imprisonment along with a fine of Rs. 3 lakh. The investigators have found that the original Censor Board copy was “stolen” and subsequently uploaded on the website by the accused. 
  2. Janhvi Kapoor starrer movie “Gunjan Saxena” which is based on the life of the female pilot who went for the Kargil war 1999 was leaked for downloads on websites like Tamilrockers, Telegrams etc. Every Time a website like Tamilrockers is banned, it comes up with a new domain name. The other famous movies and web series which became a target for the pirated websites were films and shows such as Dark, Rasbhari, Bulbbul, Paatal Lok, Aarya, Penguin, Gulabo Sitabo, Chintu Ka Birthday, Choked, Ratkanchal, Ghoomketu, Betaal, Illegal,  Family Man, The Raikar Case, Hundred, Extraction, Hasmukh, Money Heist, The Lion King and Frozen 2.
  3. The ban on 73 websites– Plaintiff, Star India Pvt. Lyd sought John Doe injunction order against 73 “rogue” websites which released the pirated content on their websites. Star India Pvt. ltd sought the order before the broadcast of Indo-Australian cricket series, in order to prevent any future piracy of the same. The whole websites were banned, and not just particular URLs because changing the URLs is an easy task. The direction was given to the Central Government’s Ministry “DEITY” to ensure that such websites are blocked. However, DEITY appealed against this order, to be against the freedom of trade on the internet. However, since there was enough evidence against the rogue websites piracy, the higher court confirmed the injunction and blocked the whole website. 

Conclusion

Despite many government actions, the peril of piracy is still standing high. Even when the government orders to ban a particular website, other 10 clone websites are ready to serve the audience with the pirated content. 

The government needs to take more serious actions in order to punish the offenders. There is an eager need for technological development so that the enforcement departments are able to locate the ones sitting behind the computers and give the outcome to their malice intentions. There is a need to develop a statute that particularly focuses on piracy since it’s not a non- serious crime that one could ignore. This crime is not less than the other economic offences like theft or money laundering. According to the reports, by Ernst & Young, there has been a loss of 959 US dollars, due to just “film” piracy. Other than film piracy there are music piracy, gaming, television piracy etc.   

Consumer awareness plays an important role in preventing piracy. Since the last few years, the government and the entertainment industry have done a lot of initiatives to make the consumers aware of the perils of piracy. The advertisements and the disclaimers before the movies is one such example. 

References 

1.https://indiankanoon.org/

2.https://www.wipo.int/edocs/lexdocs/laws/en/in/in107en.pdf

3.https://www.meity.gov.in/

4.https://cbfcindia.gov.in/


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