‘India needs robust implementation mechanism to stem piracy’

Disney-Star has filed a FIR with the Bengaluru cyber police against piracy platforms such as TamilMV, Tamilrockers, etc. What is the likelihood of a legal conviction in this regard? What are the odds given the pitfalls and lacuna in the current Indian legal framework? Tanu Banerjee, Partner, TMT practice group, Khaitan & Co, and Akriti Sirsewala, Associate, Khaitan & Co, dwell at length on the issue.

The Indian anti-piracy laws such as Cinematograph Act 1952, Information Technology Act 2000, the Copyright Act 1957, etc., offer several penalties for piracy, including imprisonment. However, while the judiciary has passed several blocking orders to prohibit access to pirated content, there have not been many noteworthy instances of criminal penalties being imposed on perpetrators. As a result of this, even though there are penal consequences for piracy, the lack of their implementation reduces the deterrent effect of such provisions. Further, technicalities such as extra-territorial application of applicable laws, the location of the computer/ computer resource are often relied upon to avoid serving time/ paying hefty penalties.

In India, the Information Technology Act 2000 has extra-territorial application and empowers Indian courts to take cognizance of offences committed outside India, even by foreign nationals, provided such offence involved a computer, computer system or a computer network located in India. Further, the Copyright Act 1957 grants Indian courts jurisdiction over disputes arising within the territory of India. Therefore, a website based outside India that facilitates infringement by providing unauthorised access to content may confer jurisdiction on courts in India to adjudicate the dispute.

However, even with the extra-territorial application of laws, online and cross-border piracy goes largely unregulated due to challenges in enforcement of the existing anti-piracy laws. For example, from a practical standpoint, it is a challenge to identify the owners of such rogue websites. Most often, when a legal remedy is sought and action is initiated against a specific website/URL – a similar alternate website /URL will emerge within a few hours, requiring a fresh action. Legal remedies such as dynamic injunctions are helpful in such cases, however practically a content owner will need to take action consistently against all alternate websites/URLs.

Consultations with the relevant stakeholder that enable the government to analyse the practical challenges encountered during implementation of anti-piracy laws may be helpful. The industry can play an important role in combating piracy by acting as a facilitator and coordinator. Platforms can channelise isolated initiatives and create a common platform to assist the state in formulating anti-piracy policies and also come up with efficient enforcement mechanisms.

The Indian legal framework has several penal provisions in respect of piracy, and the Indian government has also been attempting to introduce stricter provisions. For example, Government of India recently introduced the Cinematograph (Amendment) Bill 2021 to tackle the menace of piracy by proposing to impose a strict penalty of a minimum of 3 months of imprisonment up to a maximum of 3 years and a fine of Rs 300,000, extending up to 5% of the audited gross production cost of the film. The bill also sought to punish unauthorised recording of a film or part thereof using any audio/ visual recording device in a place.

Further, under the Information Technology Act 2000, a person can be punished with imprisonment for up to 3 years with fine for up to Rs 200,000 for distributing illicit copies of copyrighted content. The Copyright Act 1957 provides that any person infringing copyright in a work shall be punishable with imprisonment for not less than 6 months, extending to 3 years and a fine of not less Rs 50,000 extending to Rs 200,000.

However, of course, enforcement becomes key to reducing the menace of piracy. While there are several laws laying down provisions punishing different forms of piracy, India is in need of a robust implementation mechanism to ensure that the perpetrators are punished under relevant laws.

Technical solutions

In the absence of a global law combating piracy and the jurisdictional issues faced by courts while dealing with online piracy, the most practical solution will be find technical solutions to the scourge of piracy. A major technical challenges faced by regulators is that upon blocking a website carrying unauthorised content, such rogue websites multiply and resurface as redirected, mirrored, or alphanumerically addressed websites. In order to tackle this issue, in line with global practice, the judiciary has adopted the practice of passing dynamic injunctions which extends an injunction order already granted against a website, against a similar “mirror/ redirect/ alphanumeric websites, etc.” that contains the same content as the original website.

Additionally, tools such as the Managed Content Protection Tool introduced by Akamai (an American content delivery network, a cybersecurity and cloud service company) or other similar tools may be agreed by players to be used uniformly across the entertainment sector to detect direct piracy attempts and active attacks. The presence of laws that hold intermediaries which knowingly host pirated content accountable for such content has also facilitated action from intermediaries such as deployment of Content ID by YouTube.

Courts in India have recently passed several orders for blocking access to pirated websites. For instance, the Delhi High Court recently passed an order against 34 rogue websites indulging in online piracy by streaming cricket matches without authorisation. This order was passed pre-emptively, based on the imminent need to protect the interest of the plaintiff and past instances of these websites habitually posting pirated content. The challenge arises owing to the fact that if an application to block the pirated content is filed after the pirated content has already been made available, by the time the process of blocking the content is completed, enormous losses have been suffered. Criminalisation of intentional and commercial acts of copyright infringement in some EU countries has helped combat piracy. Innovative punishments such as suspension of Internet service upon use of online services to commit offences in France have been helpful in deterring online piracy.

VPN services

VPN apps are used across the world to keep users secure as they browse online by anonymising the Internet address and offering encryption to secure a user’s online activity from being tracked. Despite their many benefits, VPNs get a negative reputation due to their role in making prohibited content accessible, such as pornography, pirated content, etc. While banning VPN apps may not be the solution as VPNs offer several benefits – there may be other technological measures that could be helpful in reducing piracy undertaken through such apps. Recently, the Indian Computer Emergency Response Team introduced certain directions requiring VPN service providers to collect certain information in relation to customer accounts (that is, name, address, ownership pattern, IP address allotted, time stamps at the time of registration, purpose of hiring, etc.) and store it at least for the prescribed period. While these directions are not aimed at tackling online piracy, and in general have a hugely overarching effect – if implemented with the right balance, followed by appropriate implementation, these may have some positive impact on combating piracy.

In the context of apps, which are largely conversation platforms, imposing restrictions on the file-size being shared and the number of persons who may be added to a group may be an innovative solution that does not compromise the privacy of individuals and does not involve any governmental control on the content being shared. Deployment of AI-based solutions that are used for identifying pirated content may also be helpful in tackling piracy such apps such as Telegram.

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