INTRODUCTION

In recent times with a global surge in the field of technology, there has been a novel yet very detrimental form of robbery. The form of Robbery being discussed here is known as Online Piracy. Online Piracy is like a parasite that was born from the Cyber World and is regularly draining out revenue by the illegal distribution of data. This kind of parasite is even more active in India, especially in the Entertainment Industry. With a continuous rise in the volume of movies rolled out in India year on year, we need a robust and fail-proof legal system to tackle this digital menace. In India alone, the latest statistics show that online piracy with respect to the Entertainment Industry rose by 63% during March 2020 compared to February 2020 according to digital piracy authority MUSO.

The biggest tool at the hand of the Legal Fraternity to tackle this digital robbery is in the form of multiple provisions under the Law dealing with Intellectual Property Rights. One such legal branch of Intellectual Property Right is the Law of Copyright which is regulated by the provisions of the Copyright Act, 1957. The provisions of the Copyright Act legally empower the owners in the case of an original work by laying down six major rights which are as follows:

1. Reproduction of the work in any medium using electronic means;

2. Issuing copies of original content (not previously in public circulation) to the public;

3. Performing any work with respect to content or communicate such content to the public;

4. Making any cinematographic film or sound recording based on the content;

5. Translation of content;

6. Adaptation of content. 

STATUS OF ONLINE COPYRIGHT ENFORCEMENT AND PIRACY

When the discussion arises about Indian Entertainment Industry there are two factors that need to be understood. The first factor is revenue generation. There is a wide scope of earning substantial revenue from the Indians residing in India as well as the Indian Diasporas in the developed countries. The second factor is the platform of the display. Major entertainment artistic works are released traditionally in theaters but slowly there is a new trend of Over the Top Media Platforms which is arising and becoming famous. All media platforms are aware of copyright laws to follow, however, Over-The-Top Media is not clear about which laws to follow and they look up to the Indian Penal Code. Apart from Netflix and Amazon, Indian OTT platforms like Viacom, Hotstar entering OTT are suffering from ‘hangover of laws’, as these players know that comedy shows in the platforms need some outspoken attitude, but they are confused about the content they should put in their OTT platform.

Unfortunately, the Indian Entertainment industry lacks the will, resources as well the manpower to safeguard the luxuries given to the copyrighted content in the form of protection as well as remedies. It has been laid down by the Indian Apex Court in a recent matter, “In the matters of trademarks, copyrights and patents, litigation is mainly fought between the parties about the temporary injunction and that goes on for years and years and the result is that the suit is hardly decided finally” (M/s. Shree Vardhman Rice & Gen Mills v. M/s. Amar Singh Chawalwala [2009] P.T.C. 41 (Supreme Court of India).

• Jurisdiction

Every law in the present era is framed as per the requirement of a traditional physical and tangible platform or area. Online Platforms unlike these traditional platforms are intangible in nature which makes these online platforms a Pandora’s box when it comes to deciding the jurisdiction especially when multiple regions and countries are involved. Such determination can be made on the basis of the origin of the creator of the work in question, site of retention of the piece of work, or even the location of application or display of the piece of work. It also needs to be noted that an act held to be illegal in one country or region can be a legal or justified act in another. Due to the highly complex network of the Cyberspace, it has become even more complicated to lay down the required rules and regulations

• Usage in a Public Vs Private Domain

There is a distinction with respect to reproduction laid under the legal provisions of the Copyright Act of 1957. This distinction provided is one that separates the reproduction of content in public and private domains. This distinction helps in determining the legality of any sort of reproduction done of the content. Once granted permission from the original owner or creator of the content an individual is to reproduce the copyrighted content in the public domain. This flow of permission can be ensured flawlessly in the real world but has turned out to be a much-complicated issue when it happens in the virtual world of cyberspace.

• Reproduction of Content

Reproduction of content creates a huge dilemma when it happens in an online environment. Reproduction in the online era happens majorly in the form of distribution of the concerning content material. Tracking the flow of this content is difficult because the distribution happens in the form of small packets of information which consists of random parts of the original content. This transfer happens in a haphazard order while it is in the escrow but is organized in the order of the original content when it reaches its final destination. This technique or mechanism is known as “Packet Switching”. Packet Switching is gradually evolving into a much more complicated mechanism which makes the reproduction of the content even harder to be traced.

• Enforcement of Liability

Copyright Infringement in any form over any platform can be penalized or held accountable only by laying down the concerning liability. The liability can be determined and ensured by enforcing different forms of punishment based on the proportion of severity of the crime.

It becomes even further complex because of the involvement of multiple entities. Information contained in the content can be broken down into information which is further divided into further multiple layers and such information is transmitted through various servers and computers. This transmission is done at the hand of various foreign entities that have completely no connection with each other. Another legal complication that arises while enforcing copyright and the concerned penalties are determining the party on which the liability is hanging i.e. whether the liability would lie on the party who is the receiver of the infringed content or the one who transmits it.

The Information Technology Act states that an intermediary shall not be liable for any actions of third parties (The Information Technology Act. Section 79).This makes it even difficult to decide upon the liability of the intermediaries which is usually misused by online criminals who commit cyberspace copyright infringement for their own financial gains.

• Implementing multiple Intellectual Property Right Laws in India

Since the online platform is intangible and international in nature, it is obvious that it involves Intellectual Property Rights rules and regulations from multiple nations and regions. This application of multiple laws is rarely harmonious and leads to further legal complications. There is always a variation in the implementation of laws in relation to digital piracy as well as copyright enforcement on the internet.

Thus it is important to formulate and draft an official set of rules and regulations in order to implement laws that can be accepted globally to safeguard and enforce copyright in the online platform even when multiple jurisdictions of the people accused of infringement are international entities. One such good law can be one where the Internet Service Provider is entitled to assist the concerned authorities in tracking down the accused people involved in the infringement of the content on an online platform.

• Issues of Enforcing Copyright in the Media & Entertainment Industry

Prior to dealing with the Media and Entertainment Industry one needs to remember that the rights both moral and economic attached to the author can be protected by the tools of Copyright Law. Once the content gets the tag of copyright protection, it shifts the sole authority of the content to the author. Media and Entertainment shows are becoming the new trend in today’s society and have thereby given rise to a lot of unhealthy competition between the channels, scriptwriters, and all other entities concerned in the development of such a show. This competition includes poaching rival media house’s employees in order to get a peep into their secrets. Such unhealthy competition often ends up causing huge monetary damage to the media house and also morally discourages the authors and other entities who utilize their intellectual abilities to come up with ideas.

• Issues Copyright Infringement In The Indian Media and Entertainment Industry

The Entertainment Industry in India has been growing rapidly and has been a financially independent industry in India. It is expected to generate an income of approximately USD 35 Billion by 2021. The industry not only shows financial growth but has also been a major source of employment. The Industry has been able to cope up with the competition because of the regular technological advancement. Such advancement has in turn created not only an offline base but has also spread into a massive online platform comprising a large number of consumers. These advancements have been in all the platforms involved directly or indirectly in the media and entertainment industry. Such presentation can be enumerated as the broadcasting of content on television, distribution of content, printing the content, cinematographic representation of content in the form of entertainment media, representation of content in form of digital media on digital platforms, presentation of content in animation form, radio, advertising, live events, etc. Irrespective of the positive sides, the regular technological advancement has left the entertainment industry highly vulnerable to multiple legal complexities with respect to Intellectual Property Rights which are mostly in relation to enforcement of online Copyright Law. The Copyright Law deals with the primary domain of which includes literary works (such as novels, poems, and plays), films, music, artistic works, etc (The Copyright Act, 1957 Section 13(1)). The main issue with respect to Copyright is the piracy of content that takes place, which is impossible to be tracked due to a large number of access points of such content in the form of multiple online platforms. Copyright Piracy has been a threat to the creative liberty of artists due to a large amount of unauthorized reproduction as well as the reproduction of a major part of the content which is protected by copyright. The Motion Pictures Distributors Association of India (MPDA) has expressed that India has one of the highest rates of video piracy in the world. It is considered that the global online TV and movie industry would lose 51.6 billion U.S. dollars to piracy in 2022. 

CONCLUSION

The whole phenomenon of this transfer from traditional platforms to digital platforms has raised multiple legal complications that call for executive rules and legislation. The biggest hit of this transformation with respect to Copyright Enforcement has been on the Entertainment Industry. The widespread Entertainment Industry and its financial importance in the country have made it compulsory to tackle the challenges faced by piracy. This piracy can be reduced by targeting the main reason which has given rise to the piracy that is the rates of the content. The best possible solution to piracy will be to make the content available to the common mass at reasonable rates so that it would not only attract the audience but would also be accessible to all.

There is an urgent need to tackle the challenges of enforcing online copyright because a balance needs to be maintained with respect to the rights of all the stakeholders involved in the mechanism. For example when Piracy takes place entities like the entertainment industry and the government takes a hit in the form of loss of revenue which pours in the system in the form of ticket sales revenue, royalties, taxes, and any other monetary factor involved. Thus it is important to apply the legal tools of copyright in a very effective and efficient way in order to implement Copyright in the online platform. Besides applying the tools, the proper exercise of the available remedies both civil and criminal in nature will go a long way in determining the fate of the implementation.

-Ishaan Michael

KIIT School of Law