Mapping the piracy scourge Part 2: Stringent laws alone cannot end piracy

Legislation alone will not end the problem of piracy. A change in attitude among the people is equally important. Adgully’s four-part indepth series on Film Piracy puts the spotlight on this pertinent issue. Part 1 of the series dwelled on how and where piracy takes place, piracy in the digital era, addressing the deep-rooted cultural issues and more.

Part 2 of this series takes a look at the legal provisions available to tackle piracy and whether they have been adequate to curb this menace. Also, what are the alternate steps that producers are taking to crack down on piracy.

Also read:
Mapping the piracy scourge Part 1: From theatres to Telegram

Prince Pictures producer S Lakshman Kumar felt that a concerted effort is needed from all stakeholders to stem piracy. “It would be nice if people understand that any movie is an outcome of the blood and sweat of a thousand people or more. Piracy essentially wrecks the livelihood of these people and their families. State and Union governments should see to it that these families are not deprived of their right to life,” he said.

According to him, the menace of piracy has to be tackled at multiple levels. Fundamentally, he felt, what is required is the need to set in motion a drastic change in perception in society, especially among the tech-savvy youngsters, who predominantly either indulge in piracy for monetary gain or think it is cool to download and watch pirated films. “From a young age, children need to be sensitised to the fact that a film is the property of someone and it is wrong to steal it. That is more critical than having any anti-piracy law,” he opined.

Diving deep into the issue, Kumar said that the government has to take an active interest by deploying solutions at a higher level. “An individual producer or a few producers or council at best cannot do anything meaningful as they do not have the wherewithal to counter this issue. The government should form a joint committee of techno-functional experts to provide needed support to prevent piracy,” he suggested.

Legal remedies

Indeed, societal changes alone will not be sufficient to end the piracy menace. So, how equipped is the Indian legal system when it comes to combating piracy? Can effective legislation with stringent punishments for violators solve the issue to some extent?

Anamika Jha, a Mumbai-based media and entertainment lawyer and the founder of Attorney for Creators, felt that mere legislation was not enough to curb this menace.

“No doubt, the law is a crucial tool to curb piracy,” she said, while at the same time also noting that, “We must admit that we cannot restrain piracy merely by making a stringent law to punish violators. Also, effective legislation cannot simply focus on the punishment for pirates/ infringer.”

According to Jha, “Policymakers need to consider the wholesome dynamics of the piracy market in India. Our law must focus on dismantling the business of the pirates. Generally, these pirate sites earn money through advertisements.”

She maintained, “Our law should impose penalties on the business entities, who put their advertisements on these sites.”

“Our regulator should issue the list of infringing websites and prohibit any business entity from commercially dealing with such websites. Also, it must be the legal mandate for a search engine to demote such a website. Our law also needs to address the demand side of pirated content. There should be the provision of a fine to download and watch pirated content. Hence, instead of merely having a penal provision for the violators, we need a comprehensive law that duly identifies all the stakeholders in the piracy chain and focuses on breaking that chain per se,” Jha added.

Are the penal provisions in the Cinematograph Amendment Bill 2021 sufficient? What are the lacunas in the legislation?

Jha pointed out that the Cinematograph Amendment Bill 2021 has repeated the same pattern of focusing on the penal provision as a panacea for curbing piracy.

She further explained, “Section S.7(1A) lays down the stringent penalties for using an audiovisual recording device to make or transmit a copy of a film or its part. The penalties range from three months to three years of imprisonment and/or fine worth Rs 3 lakh extending up to 5% of the audited gross production cost of the film. This provision has linked the penalty to the cost of production that shall result in harsh penalties in the case of a big-budget movie. This provision does not have any distinction between the first-time offender and repeat offenders. Hence, it may be the case that first-time offenders of a high-budget film might receive harsher penalties than repeated offenders of low-budget films! Further, an infringer of art films or indie films shall not receive adequate punishment in comparison to the infringers of mainstream cinema.”

“We also need to note that piracy is already a punishable crime under Section 63 of the Copyright Act, 1957,” the lawyer said, adding “Hence, it is not the case that the proposed amendment in the Cinematograph Act will be a game-changer.” According to Jha, a game-changer legislation has to tackle the issue of piracy and copyright infringement multi-dimensionally. “A law needs to be framed by including the liability of other stakeholders like companies putting advertisements in the pirated sites, intermediaries like telegrams with channels of pirated content, search engines, domain name providers and finally, the consumers of the pirated content,” she added.

Individual filmmakers are employing third-party anti-piracy agencies to crack down on piracy. How effective are such measures? Jha considered this as an admirable step to crack down on piracy. According to her, such action is more common in a developed country. However, we rarely see an independent or small filmmaker from underdeveloped or developing countries invest in such measures.

“We also need to see if there is an adequate return on investment of hiring third-party agencies to track the pirated sites. Even if these agencies track down the pirates, we do not have a fast mechanism to stop them from illegally exploiting the content. Our courts are overburdened with backlogs, and it is tough to get the immediate remedy and injunction every time. Things become more complicated when these infringers are acting from outside India. Our courts shall face jurisdiction challenges in such matters,” she added.

Experts agree that a multi-pronged approach is essential to stem piracy. That is the best way forward. Industry-wide collaborations and monitoring with government support can go a long way in stemming piracy.

Jha believed that a change in approach regarding the fight against piracy is needed.

According to her, “First of all, a joint lobby from the film industry is required to make the government understand that we need legislation that understands the root and expansion of piracy. The law needs to target all the stakeholders involved in the piracy, and merely making stringent penal provisions against one stakeholder shall not serve the purpose. We can also moot the need for a separate IPR court for speedy justice in piracy cases.”

Secondly, she added, the film industry must collectively invest in awareness and research. “The industry should make substantial efforts to create awareness among common masses that piracy is a crime (many people do not know that!). They should create a reporting system where viewers can report piracy incidents, and such viewers may be rewarded. The industry should also invest in research related to Artificial Intelligence to identify and block pirate sites’ content.”

Thirdly, said Jha, innovative steps like watermarking of content (one may explore the use of NFT in the same) might reduce piracy.

“Content creators should also explore the possibilities of a voluntary agreement with private players like the agreements between copyright holders and payment processors, advertising networks, domain name registrars, search engines, etc., to dismantle the business of the pirate sites. These voluntary agreements target critical facilitating services and processes that enable piracy sites to profit from facilitating access to illegal content as if they were legitimate businesses. Industry-wide trade unions can also play roles in this collective fight against piracy and making a strategy to deal with extraterritorial incidents of piracy,” she concluded.