ONLINE PIRACY LEGISLATIONS IN INDIA: A CRITICAL ANALYSIS

A PROJECT REPORT ON:

“ONLINE PIRACY LEGISLATIONS IN INDIA: A CRITICAL ANALYSIS” SUBMITTED TO: DR. AVINASH SAMAL (FACULTY FOR PUBLIC POLICY)

SUBMITTED BY: BHARAT RAJ ROLL NO.-51 VITH SEMESTER

DATE OF SUBMISSION:

15TH FEBRUARY, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY RAIPUR, CHHATTISGARH

1

TABLE OF CONTENTS

S.NO

TOPIC PAGE NO.

1.

CERTIFICATE OF DECLARATION

3

2.

ACKNOWLEDGMENTS

4

3.

INTRODUCTION

5-6

4.

OBJECTIVES 7

5.

RESEARCH METHODOLOGY 7

6

ANALYSIS

OF THE

LEGISLATIONS INTRODUCED

BY THE

INDIAN GOVERNMENT

TO

COMBAT ONLINE PIRACY 8-14 7.

ONLINE PIRACY LEGISLATIONS IN OTHER NATIONS

8.

MEASURES UNDERTAKEN TO CURB ONLINE PIRACY IN INDIA

15-17

17-19 9.

SUGGESTED MEASURES TO CURB ONLINE PIRACY IN INDIA 19-21

10. 11.

CONCLUSION BIBLIOGRAPHY

22 23

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Certificate of Declaration

I hereby declare that the project work entitled “Online Piracy Legislations in India : A Critical Analysis” submitted to HNLU, Raipur, is an original work, which has been done by me under the able guidance of Dr. Avinash Samal, Faculty Member, HNLU, Raipur.

Bharat Raj Roll No. 51 SEM-VI

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Acknowledgements

At the very beginning, I would like to thank all those who were the ‘guiding lights’ behind this project. First of all I would like to take this opportunity with esteem privilege to express my heartfelt thanks and gratitude to my course teacher Dr. Avinash Samal, (Faculty for Public Policy, H.N.L.U.) for having faith in me in awarding me this very significant project topic. Her consistent supervision, constant inspiration and invaluable guidance have been of immense help in carrying out the project work with success. Next, I would like to thank my colleagues for maintaining an academic atmosphere which helped in creation of new ideas and lines of thought for the betterment of this project. Subsequently I would like to thank my university for providing such an enriched Library, the computer lab, internet facility without which this project would have been in a distant realm. I extend my heartfelt thanks to my family and friends for their moral support and encouragement. I also take this opportunity to thank all those people who contributed in their own small ways for the completion of this project.

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Introduction In India, although there is no specific legislation dealing exclusively with online piracy, but the subject is dealt with majorly in the Indian Copyright Act, 1957 and Information Technology Act, 2000. Before delving into the legislations in force, it will be helpful if we get an idea about online piracy and its general impact on the country. Online Piracy refers to the the unauthorised downloading or distribution over the Internet of unauthorised copies of works such as movies, music, videogames and software. Illicit downloads occur through file-sharing networks, illegal servers, websites and hacked computers. Hard goods pirates also use the Internet to sell illegally duplicated DVDs through auctions and websites.1 Piracy is a mass phenomenon on the Internet today. Various file sharing platforms offer free access to unauthorised copies of copyrighted works such as media content and software. Copyright holders are using a range of legal and technical methods to protect their rights, and they are lobbying for legislation that would give them additional ways of enforcing their copyright online. However, little is known about how effective current forms of copyright enforcement are and how enduring the effect of proposed new measures can be.2 The statistical data and the object of the initiatives in India indicate that the nature of the infringements is wide-ranging. Statistics indicate that the entertainment industry in India is losing revenue of about 80% owing to physical and online piracy. India is among the top ten 1 http://portal.unesco.org/culture/en/ev.phpURL_ID=39412&URL_DO=DO_TOPIC&URL_SECTION=20 1.html (visited on 8th February, 2016). 2 http://www.internetsociety.org/sites/default/files/07_1_0.pdf (visited on 8th February, 2016). 5

countries which account for P2P and BitTorrent activities. Although piracy in India is still dominated by street side vendors and small shops selling pirated products, the rising number of broadband connections in India is an alarming indication that implies a rise in digital piracy, in addition to what is currently prevalent. Another factor to be taken into consideration is the loss incurred by other countries because of physical and digital piracy in India.3 So, online piracy has also been slowly increasing its stronghold as the internet continues to increase its reach throughout the world. In order to address this issue, the Indian Governnment especially through the Indian Copyright Act, 1957, the Information Technology Act, 2000 and through other related legislations and measures, has tried to curb this issue. India’s Copyright Act, 1957 and Information Technology Act, 2000 especially consist of several provisions, which cover within their scope online piracy too. Under the Copyright Act, recently in May 2012, the act has been significantly amended. Both houses of the Indian Parliament have unanimously placed their seal on the Copyright Amendment Bill, 2012, bringing Indian copyright law into compliance with the World Intellectual Property Organization “Internet Treaties”. These amendments have specifically dealt with the issue of online piracy under Sections 65A and 65B. The 2012 amendments make Indian Copyright Law compliant with the Internet Treaties – the WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).4 The treaties address challenges relevant to the dissemination of protected material over digital networks such as the internet. The WCT deals with the protection for the authors of literary and artistic works. The WPPT extends copyright like protection to performers and producers of phonograms. India has emerged as one of the biggest hubs of online piracy, with Delhi, Bangalore and Mumbai accounting for the major share of the illegal downloads. According to studies commissioned by the Motion Picture Distributors’ Association (MPDA), the local office of the 3 Nikita Hemmige, Journal of Intellectual Property Rights, Vol 18, Sept 2013, Piracy in the Internet Age, p.5. 4 http://www.ip-watch.org/2013/01/22/development-in-indian-ip-law-the-copyright-amendment-act2012/ (visited on 10th February, 2016). 6

Hollywood Motion Picture Association (MPA), India accounts for maximum film piracy in any English-speaking country if one goes by the number of broadband subscribers.5

Objectives 1) To analyse the various legislations in India which cover online piracy issues. 2) To assess the implementation of the measures under these legislations. 3) To provide brief suggestions towards strengthening the legislations to combat online piracy.

Research Methodology This project work is descriptive & analytical in approach. It is largely based on the analysis of online piracy legislations in India. Books & other references as guided by faculty of Public Policy were primarily helpful for the completion of this project.

5 http://www.deccanherald.com/content/41541/india-major-online-film-piracy.html (visited on 10th February, 2016). 7

Analysis of the legislations introduced by the Indian Government to combat online piracy The major general provisions covering online piracy are found under Indian Copyright Act, 1957 and Information Technology Act, 2000. These provisions have been explained below (1) Copyright Act, 1957 and on-line copyright issues: The following provisions of the Copyright Act, 1957 can safely be relied upon for meeting the challenges of information technology: (a) The term ‘computer’ has been defined under Section 2 (ffb) of the act. The definition is very wide and is inclusive in nature, it includes any electronic or similar device having information processing capabilities. Thus, a device storing or containing a copyrighted material cannot be manipulated in such a manner as to violate the rights of a copyright holder. (b) The corresponding section of the act, that is Section 2 (ffc) deals with the term ‘computer programme’. It has been defined to mean a set of instructions expressed in words, codes, schemes or in any other form, including a machine readable medium, capable of causing a computer to perform a particular task or achieve a particular result. It must be noted that Section13 (a) read with Section 2(o) confers a copyright in computer programme and its infringement will attract the stringent penal and civil sanctions.

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(c) The Section 2 (o) of the act provides an inclusive definition of the term ‘literary work’. It includes computer programmes, tables and compilations including computer databases. Thus, although there is no explicit mention of online piracy in these sections, but the wordings have certainly been organized in a manner that provides sufficient protection for computer related copyrights. It is not directly mentioned but the wordings are certainly wide enough to include online piracy within its ambit. (d) The copyrighted material can be transferred or communicated to the public easily and secretly through electronic means. To take care of such a situation, the Copyright Act has provided the circumstances which amount to communication to the public, Section 2 (ff) has specifically defined the term. It includes, making any work available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion other than by issuing copies of such work regardless of whether any member of the public actually sees, hears or otherwise enjoys the work so made available, may violate the copyright. The communication through satellite or cable or any other means of simultaneous communication to more than one household or place of residence including residential rooms of any hotel or hostel shall be deemed to be communication to the public. (e) The copyright in a work is infringed if it is copied or published without its owner’s consent. The Copyright Act provides that a work is published if a person makes available a work to the public by issue of copies or by communicating the work to the public. Section 2 (m) of the act provides that ‘infringing copy’ includes such reproduction or copy made in contravention of the provisions of this act. Thus, the ISPs, BBS providers, etc may be held liable for copyright violation if the facts make out a case for the same. (f) Chapter XI of the act deals with infringement of copyright. Section 51 provides the provisions under which publication or distribution of work shall be deemed to be an infringement of copyright. It says that, copyright in a work shall be deemed to be infringed when a person, without a license granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a license so granted or of any

condition

imposed

by

a

competent

authority

under

this

Act-

(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or 9

(ii) Permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright. (g) The Copyright Act specifically exempts certain acts from the purview of copyright infringement. Thus, the making of copies or adaptation of a computer programme by the lawful possessor of a copy of such computer programme from such copy in order to utilize the computer programme for the purpose for which it was supplied or to make back-up 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, would not be copyright infringement. Similarly, the doing of any act necessary to obtain information essential for operating interoperability of an independently created computer programme with other programmed by a lawful possessor of a computer programme is not a copyright violation if such information is not otherwise readily available. Further, there will not be any copyright violation in the observation, study or test of functioning of the computer programme in order to determine the ideas and principles, which underline any elements of the programme while performing such acts necessary for the functions for which the computer programme was supplied. The Act also makes it clear that the making of copies or adaptation of the computer programme from a personally legally obtained copy for non-commercial personal use will not amount to copyright violation. (h) If a person knowingly makes use on a computer of an infringing copy of a computer programme, he shall be held liable for punishment of 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. However, if the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment, not impose any sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees. It must be noted that copyright can be obtained in a computer programme under the 10

provisions of the Copyright Act, 1957. Hence, a computer programme cannot be copied, circulated, published or used without the permission of the copyright owner. If it is illegally or improperly used, the traditional copyright infringement theories can be safely and legally invoked. Further, if the medium of Internet is used to advance that purpose, invoking the provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions of the Information Technology Act, 2000 can prevent the same. (i) Section 63 of the Copyright Act provides the punishment for offence of copyright infringement. Any person who knowingly infringes or abets the infringement of the copyright in a work or any other right conferred by the Act is punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and fine which shall not be less than Rs. 50,000 but may extend to 2 lacs. On second and subsequent conviction imprisonment is for a term not less than one year but which may extend to three years and fine which will not be less than one lac but may extend to 2 lacs. Punishment may be reduced if infringements are not made for commercial gain. As per Section 63 B , knowing use of infringing copy of a computer programme is punishable with imprisonment for term not less than 7 days but may extend to three years and fine not less than Rs. 50,000 but which may extend to Rs. 2 lacs. Punishment may be reduced if infringements are not made for profit or gain. Section 69 provides that if an offence is committed by a company then every person who at the time offence was committed was in charge of and responsible for conduct of business of company shall be deemed guilty of such offence and liable for punishment unless if he proves offence was committed without his knowledge or that he exercised due diligence to prevent commission of such offence.6 (2) Information Technology Act, 2000 and on-line copyright issues: The following provisions of the Information Technology Act, 2000 are relevant to understand the relationship between copyright protection and information technology: (a) Section 1(2) read with Section 75 of the Act provides for extra-territorial application of the provisions of the Act. Thus, if a person (including a foreign national) violates the

6 J.N Bagga v All India Reporter ltd, AIR 1969 Bom 02. 11

copyright of a person by means of computer, computer system or computer network located in India, he would be liable under the provisions of the Act. (b) Under Chapter IX penalties and adjudication, the Section 43 of the act provides for penalties for damage to computer, computer system, etc. If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network accesses or secures access to such computer, computer system or computer network or downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium, he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected. Thus, a person violating the copyright of another by downloading or copying the same will have to pay exemplary damages up to the tune of rupees one crore which is deterrent enough to prevent copyright violation. (c) Section 66 of the act prescribes punishment for computer related offences. Under it, if any person dishonestly or fraudulently does any act referred to in Section 43, then he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. (d) Section 47 Factors to be taken into account by the adjudicating officer. While adjudging the quantum of compensation, the adjudicating officer shall have to consider the following factors: (i) The amount of gain or unfair advantage, wherever quantifiable, made as the result of the default; (ii) The amount of loss caused to any person as a result of the default; (iii) The repetitive nature of the default. Thus, if the copyright is violated intentionally and for earning profit, the quantum of damages will be more as compared to innocent infringement.

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(e) A network service provider (ISP) will not be liable under this Act, rules or regulations made there under for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. The network service provider under Section 79 means an intermediary and third party information means any information dealt with by a network service provider in his capacity as an intermediary. (f) The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.7 Besides the above, the Copyright Act also provides several provisions which specifically govern online piracy, they have been mentioned below Under the act fair use provisions have been extended to the digital environment. Any transient and incidental storage of work through the process of ‘caching’ has been provided as an exception as per international practice. But any intentional storing of such work and reproduction and distribution of such work is an infringement under Section 51 of the act, attracting civil and criminal liabilities. The exceptions have been increased to include reproduction and distribution for educational purposes and research purposes as are available in digital form or on internet. The unauthorized use of copyright work over the Internet leads to suspension of the service provider’s activity. The clause (c) of Section 52 provides for exception for transient and incidental storage of works, also provides for Internet service provider’s liability. If any such provider facilitates access to information which may be subject to copyright, then on receiving a written complaint from the copyright owner, he shall refrain from providing access for the period of 21 days or until courts order. If no such order if received within these 21 days, then he can continue the access to information. Section 53, dealing with importation of infringing copies, has been substituted with a new section providing detailed border measures to strengthen enforcement of rights by making 7 http://www.legalserviceindia.com/article/l195-Copyright-Law-in-India.html (visited on 10th February, 2016). 13

provision to control import of infringing copies by the Customs Department, disposal of infringing copies and presumption of authorship under civil remedies.8 In order to protect technological measures employed by authors to protect their rights, Section 65A has been introduced by copyright Amendment Act 2012 which provides that if any person circumvents such technological method with intention to infringing rights, he shall be punished with imprisonment which may extend to two years and shall also be liable to fine. There are certain exclusions in this Section such as conducting lawful investigation, security check with authorization from owner, operator, for encryption research using lawful copy, for identification or surveillance of a user, and for acts done to protect national security. Section 65B introduced by Copyright amendment Act 2012 further provides that any person who knowingly removes or alters any rights management information without authority or distributes, imports for distribution, broadcasts or communicates to public without authority copies of any work or performance knowing that electronic rights management information has been removed or altered without authority shall be punishable with imprisonment which may extend to two years and shall also be liable to fine. Civil remedies are also available incase rights management information has been tampered with. These provisions are of immense value to electronic publishing industry, gaming industry where authors are using DRMs to protect reverse engineering or circumvention of technological measures they opt to protect their copyrights from infringement. Some known techniques in use are namely, encryption, electronic signature, or digital watermarking or pay per view system, electronic software distribution.9 The protection of technological measures and rights management information were introduced in WCT and WPPT as effective measures to prevent infringement of copyright in digital environment. The introduction of Sections 65A and 65B is expected to help the film, music and publishing industry in fighting piracy.10

8 Supra Note 4. 9 http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html (visited on 10th February, 2016). 14

It is interesting to note that with respect to jurisdiction, the laws are broader in connotation. Though the Civil Procedure Code suggests that the suit is to be instituted in a district court having jurisdiction, Section 62 of the Copyright Act makes available an additional forum of jurisdiction to the aggrieved party. This is to ensure that the statutory rights of the copyright holder are protected. Thus, the plaintiff can institute a suit where he actually and voluntarily resides or carries out business or personally works for gain and as a result the wrong doer is required to submit to the choice of court of the plaintiff.11

Online Piracy Legislations in other Nations United States of America The United States of America has extended its copyright law and enacted the Digital Millennium Copyright Act (DMCA) which came into force in 1998. The Act contains six exceptions to infringement including educational research, encryption research, protection of minors, reverse engineering, privacy of individuals and security testing. The DCMA added Section 512 specifically to the Copyright Act which brought forth the limitation of liability on the service providers in case of online copyright infringement and assigned rules in case of non-profit educational institutions. It is based on the concept of safe harbour which protects the rights of ISPs, inter alia, cases of third party violation. A few sections under the Act have faced criticism for their failure to deal with relevant issues that are meant to curb online piracy. With the rapid growth of technology, it is imperative that laws keep pace with changing needs. Recently, to safeguard the interests of copyright holders, a bill, namely, the Stop Online Piracy Act (SOPA) was brought to the table. It aims at eliminating all such foreign websites which encourage illegal downloading and 10 Supra Note 4. 11 Supra Note 3. 15

infringement of copyrighted material. It also gives a Judge the power to rule on matters pertaining to legitimacy of a website and issue a court order to block the same if required. Representative Lamar Smith, who had introduced the SOPA Bill claims that the intent behind this legislation is to prevent people indulging in piracy from generating profits and harnessing the interest of an industry that contributes to almost 60% of US exports, rather than curbing the use of Internet as a form of communication.12 The opponents of the Act have pointed out certain flaws that might be detrimental. SOPA targets only the website and not web users. In case of any illegitimacy, a website can be struck down by a court order, with no opportunity being provided to the website, like in the case of gradual response. Furthermore, the ISPs are required to create a system in which one can easily identify any such activity that occurs and what is to be noted is that this system will differ for all networks. Lastly, it can be contended that in the course of identifying activity that is unusual there might be deep packet inspection which might conflict with users’ right to privacy. By 2010 it was brought to public attention and a conference was held in the USA constituting law professors and organisations who expressed their concern with regard to this agreement and requested President Obama to put on hold any further discussions on it.13 Spain The exigent need for a law in place does not seem like a surprise as statistics show that the creative economy is being doomed by illegal downloads. Numbers suggest that 97.8% of all music downloads and 77% of movie downloads were illegal in the first half of 2010 (ref. 10). The newly enacted Sinde Law aims to eliminate such illegal activity. Like in United Kingdom, the governmental body shall have the discretion to bring down any website that permits such transactions and also gives the right holders the power to sue for loss incurred by them. The target is to complete the process within a span of 10 days in order to ensure that there is decline in the rate of online piracy. There was a lot of opposition by the owners of websites and other companies that were against it, but it has stood the test of time. It is commendable that 12 Ross Drath, Hotfile, megaupload, and the future of copyright on the Internet: What can cyberlockers tell us about DMCA reform?, John Marshall Review of Intellectual Property Law.

13 http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta (visited on 11th February, 2016).

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they have one of the toughest laws in place especially after having been on top of the countries listed for Internet piracy.14 France The French system of the ‘graduated response’ was an innovative way of tackling this issue. The law was revised within few days of coming into force, bringing in some changes with relation to the functioning of the administrative authority. The scheme was that of a three-strike one, wherein the law gives the offender the opportunity to rectify the error. This mechanism also requires the cooperation of the ISPs because they are in a position to provide information pertaining to the warning given to the offenders. The law ensures that sworn surveyors of collecting societies and other legal bodies have the power to make referrals in case of any infringement that arises with respect to the members of their associations respectively. These referrals were made to HADOPI, the administrative body responsible for the proper functioning of the system. Although it is a very favourable law to the copyright holders, there have been protests from Internet users and net activists from the very beginning. It was felt that the law restricted the access of Internet to individuals who benefitted from it and also that it curtailed freedom of speech and expression also arises. Inter alia, the French Constitutional Bench also questioned the authority of the administrative body to suspend Internet access when the courts were well within their ambit to do so and also when dealing with the point of infringement, it would be difficult to identify the offender as there could be a conflict between the subscriber of the Internet connection and the actual user. This goes against the French constitutional principle of presumption of innocence.15

Measures undertaken to curb online piracy in India Although online piracy has been on a rise in India, but it does not mean that measures to curb it have not been taken. Below mentioned are several measures introduced to control the situation, which were taken either independently or through the help of other nations.

14 http://www.bbc.com/news/technology-16391727 (visited on 11th February, 2016). 15 http://www.worldipreview.com/news/france-relaxes-three-strike-piracy-scheme (visited on 11th February, 2016).

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The Special 301 Report released by the Unites States of America for the year 2013 shows India’s continued presence on the priority watch list. The report tracks the progress that India has made in the last one year with specific reference to protection and enforcement of IPRs and suggests mechanisms that can be adopted. India’s enactment of copyright amendments and publication of draft rules for comments and implementation of the Madrid Protocol and a draft National Intellectual Property Strategy has been appreciated, however the need to have an effective enforcement mechanism has been stressed upon. Further, it has been suggested that India make additional legislative changes in order to ensure that content-based industries can effectively combat physical and online piracy and develop new models for the delivery of content and as part of this reform, India should enact anti-camcording legislation and provide further protection against online copyright piracy, signal theft, and circumvention of technological protection measures.16 India has acted in furtherance of the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) by incorporating provisions on Obligations concerning Technological Measures (Article 11 of the WCT and Article 18 of the WPPT) and Rights Management Information (Article 12 of the WCT and Article 19 of the WPPT) in the Copyright Act (Amendment), 2012. The intention of the legislature is to curb the rampant piracy practices prevalent in the country and also provide copyright owners with technological measures that are an effective means of enforcing their rights in the digital age.17 The Kerala Anti-piracy Cell is a commendable initiative by the State Government where the Cell functions under the state’s CBCID ( Crime Branch Crime Investigation Department) as a central unit to coordinate collection of intelligence, creation of data bank, coordination of investigation and direct investigation of crucial crimes to trace out their origin and also web distribution. The object was to curb the menace of piracy in the Malayalam film industry which was incurring heavy losses owing to tax evasion and royalties. The Cell has been successful in detecting 77 cases throughout the state as on date. They have laid down certain warnings in public interest for 16 http://www.ustr.gov/sites/ default/files/05012013%202013%20Special%20301%20Report.pdf (visited on 11th February, 2016).

17 Ahuja V K, Law of Copyrights and Neighboring Rights: National and International Perspectives, Lexis Nexis Butterworths, India, 2007.

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the public at large, Internet subscribers, cable TV operators, mobile shop owners and CD/DVD distributors across the state of Kerala.18 Such an anti-piracy cell can serve as a model for other states of the nation to curb the issue of online piracy. Likewise, the United States Business Council launched the ‘Bollywood-Hollywood Initiative’ (the world’s largest film industries in terms of volume and revenue respectively) with the Federation of Indian Chambers of Commerce and Industry (FICCI). Their initiative, in the form of a ground-breaking survey, determined the true cost of piracy and counterfeiting to the Indian Entertainment Industry; a push to ensure India’s adoption of Optical Disc Legislation to combat piracy; a campaign to raise public awareness of the detrimental effects of piracy on India; and a drive to US-India governmental cooperation in combating international, cross-border piracy particularly of Indian films in the US and other countries as well as US films in India.19 The Government approved a scheme to implement an anti-piracy initiative in the audio-visual sector under 12th Five Year Plan and the Ministry of Information and Broadcasting has an outlay of 2 crores for the Plan period 2012-17. Though the FICCI-KPMG shows that the figures of piracy have declined in comparison to 2011, the piracy markets still account for 600-700 million unit sales of DVDs each year and one of major factors is the increased competition within the sector. Some of the activities planned by the Government under the Plan are as follows: (a) Campaign against piracy through audio-visual, Internet and print media and a dedicated web portal; (b) Training programmes and workshops to sensitize police, judicial, administrative officials, multiplex and cinema hall owners about the Copyright Act; (c) Research on effects of piracy and develop public-private strategies to combat it; and (d) Inclusion of anti-piracy awareness material in the curriculum of the schools and colleges, road shows/street plays/documentaries for creating awareness.20

Suggested Measures to curb online piracy in India

18 http://keralapolice.org/ newsite/anti-piracy-cell.html (visited on 11th February, 2016). 19 http://www.usibc.com/advocacy/initiatives/piracy (visited on 11th February, 2016). 20 http://pib.nic.in/newsite/erelease.aspx?relid=89529 (visited on 11th February, 2016). 19

1) Implementation of WCT and WPPT - One of the first and foremost steps is to act in furtherance of the Internet Treaties that are already in force. Once other nations adopt the code set down and incorporate it in their national legislations, there will be considerable control in the rate of infringement. This will have a dual effect – protection of intellectual property and development of e-commerce. WIPO like it did in the past should to offer support to countries that wish to embrace the provisions of the said treaties. The WIPO Internet Treaties (WIPO Copyright Treaty, WCT and WIPO Performances and Phonograms Treaty, WPPT) are designed to update and supplement the existing international treaties on copyright and related rights, namely, the Berne Convention and the Rome Convention. They respond to the challenges posed by the digital technologies and, in particular, the dissemination of protected material over the global networks that make up the Internet. The contents of the Internet Treaties can be divided into three parts: (1) incorporation of certain provisions of the TRIPS Agreement not previously included explicitly in WIPO treaties (2) updates not specific to digital technologies; and (3) provisions that specifically address the impact of digital technologies. 2) Role of ISPs - The current situation will only change if the access providers themselves become more active in policing their clients. This would be the case if the ISPs are themselves more directly benefited from value or content added services. Many of the laws that exist in the countries mentioned impose responsibility on the ISPs to keep a tab on such infringements. It might seem impossible for the service provider to filter information but the only way out is to devise a system in which violation of specific standards laid down will be brought to the attention of the provider who will in turn take necessary action. Uniform Dispute Resolution Policy (UDRP) set up by ICANN is an international dispute resolution body to resolve issues pertaining to domain name registrations. Since it is in the form of web contracts, it cannot be duplicated and only one body can adjudicate matters relevant to this. Similarly, the service providers can play a pivotal role between Internet users and an enforcement body.21

21 Branislav Hazucha, Enablement of copyright infringement: A role of social norms in the regulation of dual-use technologies, Intellectual Property Law & Policy Journal, 24 (2009) 25-96 at 49.

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3) Online Licensing - For legal protection to remain meaningful, right holders must be able to detect and stop the dissemination of unauthorised digital copies. And for e-commerce to develop to its full potential, workable systems of online licensing must evolve which inspire confidence in consumers. The answer to these challenges to a great extent will lie in the technology itself. As much as this seems farfetched, the practical usage of this might be a solution to the on-going piracy rage. What is to be noted is that licensing does not necessarily imply a ‘pay to use’ policy and is required to be interpreted more broadly.22 4) Internationalization of Rights - At the level of the judiciary, the courts are required to strike a balance between the interests of right holders and users while considering the governance structure bias. The courts can do so by interpreting copyright law in favour of the weaker and disadvantaged party in the policy making process. The reasoning behind this would be that such changes will result in internationalization of individual copyright norms without the need to impose severe legal sanctions. This will in turn ensure higher efficiency than many national copyright laws have at present. There will be jurisdictional barriers, but that also can be set aside if the courts of law choose to rule in a certain pattern that enables precedence and sets a standard that can be followed. 5) Incorporating laws in force in other nations – In India currently there is few and far in between legislations which specifically cover online piracy. Most legislations deal with online piracy indirectly, as evidenced by the several provisions under Indian Copyright Act, 1957. These legislations have not proved to be totally effective, so to improve the situation, inspiration can be sought from legislations in force in other nations. One of the most influential being the laws in force in Spain, the nation follows a comparatively strict code of law under it ‘Sinde Law’, which gives governmental bodies discretion to take down websites which violate copyright, moreover there is also a mandate to solve the cases within a span of 10 days, which makes the law highly effective. The Stop Online Piracy Act (SOPA), would also have brought in laws similar to Sinde Law, but because it gave too much discretion to administrative authorities, thus it was not allowed to be implemented. In France too, powers similar to Spain has been given under its ‘graduated 22 Lessig Lawrence, Free Culture: The Nature and Future of Creativity, The Penguin Press, US, 2004, pp.283-284. 21

response’, which gives preference to administrative authorities over courts to address the issue of online piracy independently. Keeping in view the above, Indian administrative bodies could also be given more power to handle online piracy independently to ensure that issues are solved quicker, without requiring unnecessary permission from other authorities. Also, a unit within the police force too can be constituted as is already in operation in Kerala.

Conclusion It is significant to take note of the laws that various countries have enacted and enforced in order to curb or at least regulate online piracy and related activities. Further, though the Copyright Act, 1957 and Information Technology Act, 2000 in India deal with certain facets of piracy, they do not conclusively deal with this menace. It is the need of the hour for India to draft and enforce laws which will address the current problem and also take into consideration the technological advancements that are likely to give rise to more of such complex issues. Formulating such a law in the near future will be a welcome change and will definitely give India the IP advantage. Further, to meet the ever- increasing challenges, as posed by the changed circumstances and 22

latest technology, the existing law can be so interpreted that all facets of copyright are adequately covered. This can be achieved by applying the “purposive interpretation” technique, which requires the existing law to be interpreted in such a manner as justice is done in the fact and circumstances of the case. Alternatively, existing laws should be amended as per the requirements of the situation. The existing law can also be supplemented with newer ones, specifically touching and dealing with the contemporary issues and problems. It can be inferred from the limited scope of the copyright law in India that there is no conclusive mechanism that has been adopted to curb online infringement of content except for a few noteworthy initiatives and amendments to limited provisions under the Copyright Act. The law is inclined towards the growth of e-commerce rather than the protection of works created by individuals. This is a telling fact that reflects the need to address this growing menace by analysing the legislative enactments of other countries, and the lacunae persisting in those laws and thereby successfully devising an appropriate policy framework. This framework should take into consideration the ever-increasing broadband network connections and also the nature of infringements. Redesigning laws in tune with present day technology and assessing compatibility among nations in this regard is one of the best ways to deal with the on-going copyright crisis.

Bibliography 1. Ahuja V K, Law of Copyrights and Neighboring Rights: National and International Perspectives, Lexis Nexis Butterworths, India, 2007. 2. Branislav Hazucha, Enablement of copyright infringement: A role of social norms in the regulation of dual-use technologies, Intellectual Property Law & Policy Journal, 2009. 3. J.N Bagga v All India Reporter ltd AIR 1969 Bom 02. 4. Lessig Lawrence, Free Culture: The Nature and Future of Creativity, The Penguin Press, US, 2004. 23

5. Nikita Hemmige, Piracy in the Internet Age Journal of Intellectual Property Rights, Vol 18, Sept 2013. 6. Ross Drath, Hotfile, megaupload, and the future of copyright on the Internet: What can cyberlockers tell us about DMCA reform?, John Marshall Review of Intellectual Property Law 7. http://www.deccanherald.com/content/41541/india-major-online-film-piracy.html 8. http://portal.unesco.org/culture/en/ev.phpURL_ID=39412&URL_DO=DO_TOPIC&URL _SECTION=201.html 9. http://www.internetsociety.org/sites/default/files/07_1_0.pdf 10. http://www.ip-watch.org/2013/01/22/development-in-indian-ip-law-the-copyrightamendment-act-2012/ 11. http://www.legalserviceindia.com/article/l195-Copyright-Law-in-India.html 12. http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html 13. http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta 14. http://www.bbc.com/news/technology-16391727 15. http://www.worldipreview.com/news/france-relaxes-three-strike-piracy-scheme 16. http://www.ustr.gov/sites/default/files/05012013%202013%20Special %20301%20Report.pdf 17. http://keralapolice.org/ newsite/anti-piracy-cell.html 18. http://www.usibc.com/advocacy/initiatives/piracy 19. http://pib.nic.in/newsite/erelease.aspx?relid=89529

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