Online Piracy and Copyright Infringement: Issues and Challenges By: Princess Kalyani

The Author, Princess Kalyani is a 3rd Year student of National University of Study and Research in Law, Ranchi. She is currently interning with LatestLaws.com.

Introduction

With the advent of technology, a new kind of robbery has now started doing the rounds of the legal world. Online piracy is truly a menace to the cyber world. The problem is all the more prevalent in India, especially when it comes to piracy in the movie industry. Since India produces more than 1000 movies per year, the cases of online piracy are always on the rise. Online copyright infringement is done not just by people with ill-intention, but also people who are not even aware they are committing a crime.

Copyright is a kind of intellectual property right which gives the original creator of the material (movies, songs) the right to get paid. These creators are also given control of the distribution of their product. 

Piracy basically occurs when a person copies, distributes or even sells a material, without the express permission of the creator of that product. Such distribution and sales online can lead to a huge loss of revenue and is a hard thing for the original creators to go through. The problem is all the more enhanced because several people are either unwilling or unable to pay the right sum of money for it. Piracy is a form of online copyright infringement, wherein games, movies, software, etc are sold and distributed without the knowledge or permission of the original creator.

There are essentially 5 types of online piracy:  

• Counterfeiting: Counterfeiting refers to the illegal sale or distribution of duplicates original copyrighted materials.
•  Internet Piracy: Internet piracy refers to the illegal download/upload of movies, software, games for free. Usually, there should be a legal purchase made to use copyrighted material. However, in case of internet piracy, software and other copyrighted materials are made available for free download. 
• End-User Piracy: End-user piracy refers to the illegal copying, reproduction, and usage of copyrighted materials without proper authorization.
•  Client-Server Overuse: Client-server overuse refers to the form of piracy where a central program is being used by too many people at the same time, without any license. 
• Hard-Disk Loading: Hard disk loading refers to illegal loading of copyrighted software on the hard disks of new computers. This is usually done to boost up sales.

Why is internet piracy such a menace?

Internet piracy has become a huge copyright issue, in the past few years. The unhindered growth of technology along with the increase in cybercrimes has made internet piracy issues quite common in today’s day and age. Here are a few reasons why internet piracy is becoming such a huge problem[1]:

• Easy and wide distribution using the internet
• No limits as to the number of people that a material can be distributed to
• Difficult to distinguish between the original and the fake copies
• Hardly any cost associated with the illegal distributing
• Easy to access copyrighted material without the threat of being raced down. 

LEGAL SCENARIO IN INDIA

In India, the Copyright Act 1957 along with the Information Technology Act, 2000 deal with the several facets of piracy. However, of late, there has been an increasing need for more pieces of legislation that can help us conclusively deal with the problem of internet piracy. With more and more technological advancements, the need for enforcement of strong copyright laws to deal with complex internet piracy cases has become essential.

The main legislation for the protection of art from copyright issues is the Copyright act of 1957. However, the measures against online copyright infringement weren't satisfactory. Therefore the copyright act was amended in 2012 to bring under its umbrella the various forms of online piracy that takes place. Section 65 A of The new copyright (amendment) act, 2012 protects the owners of copyrighted materials in case of a breach. Section 65 A states that “any person who circumvents an effective technological measure applied to protect any of the rights conferred by this Act, to infringe such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.” Such punishment is bound to deter several cybercriminals from using or misusing the copyrighted data. This section is meant for “protection of technological measures” and is key to curb digital piracy. 

Section 65 B of the Copyright (Amendment) Act, 2012 provides “Protection of Rights Management Information”. The section states that “any person, who knowingly- (1) removes or alters any rights management information without authority, or (2) distributes, imports for distribution broadcasts or communicates to the 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.” This is essential to protect unauthorized access and misuse of sensitive information.

Another piece of legislation that deals with digital piracy is the Information Technology Act, 2000. Section 66 of the Information Technology Act provides for punishment with up to 3 years of imprisonment and fines up to Rs 2 lakhs for illegal online distribution of copyrighted content.

A rather new measure that the Indian courts have taken to reduce the cases of digital piracy in India is the “john doe” order”. John Doe orders require very little information about the accused and his identity is unknown at the time of filing of the petition. All the above-mentioned pieces of legislation along with these new John Doe orders help block potential threats before the release of new movies and govern the entire digital piracy scenario in India. However, several different aspects of digital piracy are still not dealt with, by Indian legislation. There are several issues and challenges regarding online piracy in India that still need a lot of work.[2]

LEGAL ISSUES AND CHALLENGES

The Issue of Jurisdiction

Since the internet is an intangible space, determination of jurisdiction can be problematic. In the case of online copyright infringement, various countries or regions could be involved. The question then arises as to which jurisdiction would be applicable. It could be decided based on the origin of the matter. It could also be decided based on place of storage, or even in the place where the material is finally used or displayed. It is not necessary that what constitutes illegal copyright infringement in one country, would be illegal copyright infringement in another country too. Sometimes different countries can even have conflicting laws. This makes it difficult to punish an individual. There is also the issue of determining whether or not such infringement has taken place. With the increasing complexity of the cyberspace, it becomes very difficult to determine whether or not an individual is responsible for any infringement. After the establishment of an infringement case, the determination of what jurisdiction is to be applied is added trouble. The problem becomes all the more difficult to sort when there are conflicting laws in different countries regarding the matter. And lastly, the lack of feasibility as well as higher costs makes it rather difficult to punish a person. Therefore, it is important to have clear cut rules about the determination of jurisdiction when it comes to online copyright infringement. It is also difficult to determine the work’s place of origin.

The Issue of Public Vs Private Use

Under traditional copyright laws, especially the act of 1957, there is a distinction provided between the reproduction of particular content in public and private domains. This distinction allows a person to reproduce copies of copyrighted content in the public domain, with prior permission from the author or original creator. However, the cyberspace makes such distinction difficult. Since one person can transfer material to several people through the internet, the copyright laws regarding public and private spaces have become difficult.[3]

The Issue of Rights of Reproduction

The right of reproduction is a huge issue on the internet. Distribution of any material over the internet requires the material to be reproduced. Data through the internet is transferred using a technique wherein there is a breakdown in the entire information into small packets. These small packets are then reconstituted to form the entire matter. This technique is called “packet switching”. Packet Switching therefore means that there is reproduction at every stage of transmission of data through a computer. This makes it difficult to have a clear cut idea about the exact rights of reproduction and can be misused in cases of breach.[4]

The Issue of Enforcing Liability

The major issue with regards to copyright infringement over the internet is liability. To enforce any form of punishment against an offender, it is important to determine where exactly the liability lies. However, in one issue related to copyright infringement over the internet, several people can be involved. Information could go through several layers and several different computers before being transmitted into the public domain. Several people could be involved in such infringements. Quite often; these people could be based in entirely different places[5]. For example, the question is, in a piracy case, whether the liability would lie on the party receiving the information, the party that transmits such information or the act that has been involved in the process. Section 79 of the IT Act 2000 intermediaries will not be liable for any third-party information”. However, it does become difficult to determine whether or not the intermediary is at fault. The section, though meant to protect innocent intermediaries, is often misused by criminals for their gains.[6]

 Implementing harmonious State IPR Laws in India

There is a lack of harmony between the state IPR laws about online copyright infringement on the internet. The varying domestic laws regarding digital piracy and copyright infringement n different states make effective implementation very troublesome. Since online copyright infringement usually has several players and could involve multiple offenders from various states, it becomes necessary to have state laws which are in harmony. For example, some states can compel the ISPs to examine the material. Whereas, several other states do not hold that power. This usually leads to the issues of disharmony and delay.

Suggestions

It has become quite clear that there are several legal issues with online copyright and piracy laws in India. Since technology is ever-growing, it becomes all the more important to focus on these issues so that offenders are not able to escape punishment. Here are a few suggestions that can be incorporated to make the cyberspace a safer place for creators, artists and software developers. 

• Laws in line with International treaties:  Since the internet is a global entity, it is important to follow international trends when it comes lawmaking about the copyright issues in cyberspace. Therefore, India needs to have to laws that are in line with the international treaties that are in force as of now. This could not only help make the laws stronger but would also help the development of e-commerce in India. Therefore India needs to embrace a few provisions of treaties like WIPO internet treaties. Online licensing could be a great idea to prevent online piracy and data infringement. Online licensing helps beat technology with technology itself. An efficient online licensing system would help regain the confidence of customers as wells reduce the chances of falling victim to online piracy.
• Jurisdictions: It is also important to have a clear cut idea about what jurisdictions should be applied in cases of online piracy. There is a lot of ambiguity about the jurisdiction in cases of online piracy. The IT act along with the Code of Civil Procedure is still not specific as to what exactly would determine the jurisdiction in cases such as these. It is therefore important to have clear cut rules regarding jurisdiction.
• Harmonization of state laws: Since there are differences in the laws about online copyright infringement or the procedures in different states, it makes quick action very difficult. It is therefore important to have uniform harmonization between all the domestic cyber laws regarding online copyright infringement.
• Determination of liability: There are several cases where it is difficult for the courts to decide who exactly will be liable in case of copyright infringement through the internet. It is therefore important to have clear cut rules that govern liability in cases where multiple countries are involved.

Conclusion

There are a host of issues with online copyright infringement laws in India. The challenge is all the more difficult to deal with because of the rate of growth of new technology. The judiciary is taking its time to deal with such cases and to form guidelines about various scenarios in the digital world that can enhance issue like online piracy. India is not new to online piracy cases. The most recent example could be of the movie ‘Udta Punjab’. The movie was leaked online before its release date. The culprit was a 25 year old from Mumbai and was charged under the Information Technology Act. Another major case was in Kerala in 2012. In this case, the anti-piracy cell of Kerala ended up tracing the IP addresses of around a thousand people in Kerala who were involved in illegal uploading and downloading of the movie ‘bachelor party’.

However, the government is taking appropriate measures to keep this growing menace under control. Digital rights management provisions and John Doe orders along with various new measures are being taken by the government. Piracy and online copyright infringement can be reduced with awareness, polices and a few precautions. It is also important to be in sync with the various piracy laws of different countries. The existing Indian legal framework when it comes to online piracy is undoubtedly inadequate. However, things seem to be changing for the better now. Enough awareness, along with a few new policies to be implemented, could help the growing menace of online copyright infringement.

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