Starting from the very grassroots of its definition to linking copyright with technology, this paper tries to explain the effect on copyright law with the development of technology and how these technologies have brought plenty of changes in the world of copyright. These infringements have become very common in today’s world but various steps have been taken to deal with this issue, some of these initiatives have made a huge change whereas some of these initiatives have failed, keeping this as an important aspect, the paper mentions few initiatives taken to curb digital piracy including the amendments in the provision focusing straight up on digital piracy. This article shall also look at one of the most affected platforms e.g. The Indian film industry, which is the largest film industry in the world
Section 14 of the Copyright Act, 1957 defines the term copyright. Copyright basically means when a person invents a thing, he is granted a bundle of rights like the right to reproduce the work, right to display the work publicly, right to distribute copies, etc, which the law provides. It can consist of anything such as painting, novels, music, etc, if someone creates it, they own it and it’s the copyright law that assures the ownership.
The way innovation of printing press alarmed the copyright law and the importance of copyright became more pronounced soon after, similarly, today internet has brought along with itself the same threat to the copyright owners. The threat for the copyright owners on the internet is greater because of five main reasons: (i) Distribution on the internet is much simpler and quicker, (ii) Distribution on the internet easily reaches to a wide population, (iii) Any person can distribute it to a wide population, (iv) Distribution of these works are inexpensive, (v) It becomes convenient for the users also to obtain some copyrighted material on the internet in a much cheaper and easier way.
The piracy law in India was amended by The Copyright (Amendment) Act, 2012. One of its main aims was to curb digital piracy. Where online piracy is rampant in India and all over the world, it was necessary to make certain changes and this amendment to the Copyright Act is one of those measures which the government had taken to curb digital piracy in India. The problem is easy access to social media platforms, for example, YouTube makes it easier for anyone to come and post their content without even bothering that this can infringe the copyright of some other person who owns the copyright of that content. Now these digital copyright infringements are variously categorized, the most significant ones are (i) linking (ii) file sharing (iii) posting (iv) framing (v) caching (vi) archiving.
Among various technological developments in the past two decades, the internet and other digital means of communication and publication have taken the highest leap. Digital piracy is the newest area of product counterfeiting, which has emerged together with the growth of the World Wide Web. One of the most effective solutions was John Doe's orders or Ashok Kumar orders. John Deo's order is an injunction sought against a person whose identity isn't always known at the time of filing the suit. It gives the freedom to copyright owners to serve notice and take movement against anyone who's located to be infringing their rights. It also permits the plaintiff to search the premises and seize proof of infringement of its rights via unknown defendants. Such an order is granted under order 39 rules 1 and 2 of the Code of Civil Procedure, 1908, which states the power of the court to grant a temporary injunction, read with section 151 of the code, which provides for inherent powers of the court. “Taj Television Limited v Rajan Mandal was the first case where this order was passed in which Delhi High Court, invoking its jurisdiction under section 151, issued a John Doe order against various cable operators to restrain unauthorized broadcast of the Football World Cup. To obtain a John Doe order, the burden of proof lies on the plaintiff to establish (1) a prima facie case, (2) likelihood of irreparable damage if the order is refused, and (3) balance of convenience in favour of the plaintiff.” On the other side is Bombay High Court, which has favoured granting of limited John Doe orders, based on concrete and precise information, to block specific URLs and links hosting the infringing material rather than entire websites, as was the case in infringement suits in respect of the movies Udta Punjab and Dishoom. In 2016, the Bombay High Court in the case Eros International and Anr v BSNL & Others extended the necessary guidelines, not only for the executing authorities but also for the jury and the plaintiff, to deal with unidentified defendants, ISPs and anonymous bloggers who violate the piracy laws. The court, in this case, narrowed the validity of the block to 21 days, after which the plaintiff would be required to approach the court and obtain an order for extension of the ban. This order also grants excessive powers for the enforcing authorities like in the case of Reliance Big Entertainment v Jyoti Cable Network & Ors, the court asked the police to assist the film production companies to remove piracy without providing proper guidelines, which ended up granting excess discretion for the enforcing authorities which may lead to Constitutional scrutiny. The John Doe orders jurisprudence in India is still at a nascent stage in India, the
Indian judiciary and legal system are making constant efforts to improve and amend their laws with technology.
Stating about the problem of jurisdiction, the borderless nature of information flows over the Internet complicates online piracy. As the Internet is a global network that connects to every corner of the world, so when infringement takes place on the internet, many countries are involved, and these countries may have their own jurisdiction in respect of such infringements, therefore, it becomes very difficult to ascertain the jurisdiction. Even if the infringer is found, it becomes very difficult to hold that person liable for infringement because of the lack of cross border laws or because it is not financially viable to sue the infringer. The laws in respect of cyberspaces and copyright differ from each country, therefore there may arise a problem of conflict of law. It is difficult to find out where the infringement of the copyright had taken place. The question remains the same as whether it should be determined with reference to where the material originated, or where it went along the way or where it ended up being displayed, stored or printed. Even though in India the Civil Procedure Code states that a suit should be instituted in any 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 the copyright owners that their statutory rights are protected. Thus, the plaintiff can file a suit where he resides or carries out business or personally works for gain and as a result, the wrongdoer is required to submit to the choice of the court of the plaintiff. In a case concerning infringement on the internet, if the defendant carries on business in India by subscribing to the Indian net users through his website along with the internet accessibility, it can be said that part cause of action has arisen through the minimum contacts test establishment. Cases where the suit is filed and judgment have been passed against an Indian in a foreign court for infringement of copyright on the internet, such judgment may be enforced in India in accordance with section 12 of the Code of Civil Procedure.
Taking a glance at the cinema world, at ₹ 1.5 trillion, the Indian media and entertainment sector is one of the largest industries in the world, but this sector continues to suffer a serious piracy problem where ₹2.8 billion of its annual revenue goes to piracy. The Irdeto Global Consumer Piracy Threat Report states that India is among the top five countries for peer-to-peer (P2P) downloads, with over 965 million P2P downloads between January 2017 to May 2018. According to the report, India accounts for a large proportion of piracy visits (60 percent) via P2P sites.
Conclusion
The digital content supply chain is becoming so complex that it will be a challenge in the coming days to keep track of where and why the ads are surfacing. In the rapidly expanding and hypercompetitive world of content streaming, the industry is getting hammered by fraud. On one hand, there is a continuous infringement of the rights of owners and on the other hand, there is a constant effort by the government to curb this issue. 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. This issue is in immediate need of publicity and awareness as more than half of the population is aware of the rights and obligations regarding digital piracy. The problem of jurisdiction is very complicated as all the countries must cooperate and come to a common conclusion to solve this issue. The cinema industry is in thirst for an effective mechanism to solve this issue as they are the ones who are affected drastically. Being a part of a democratic country, the work done by the owners should be appreciated and protected. Infringement of these rights is not just the loss for the owners, but it is a loss for the emerging economy too. The copyright owners must be more alert about these infringements. The owners should also help by contributing to shaping the policies and communicating with policymakers by updating them whenever necessary and optimally enforce violations.
Submitted by
SNEHA.Y
SYMBIOSIS LAW SCHOOL, PUNE
(Images used for representative purpose only)