Copyright 2020

Last Updated February 18, 2020

India

Trends and Developments


Authors



LexOrbis is a full-service IP boutique law firm with offices at three strategic locations: Delhi, Mumbai and Bengaluru. The firm has a diverse client base, including Fortune 500 companies, multinational corporations, leading Indian companies, public sector organisations, research institutes, universities, small and medium-sized enterprises and technology start-ups. With a team of over 90 attorneys and patent agents, it provides end-to-end services and practical solutions to all aspects of patents, designs, trade marks, copyright, competition, sports, media and entertainment, unfair competition, e-commerce and other related laws. The team of lawyers has been effectively protecting and managing IP portfolios for clients by formulating prosecution strategies and handling trade mark litigation and enforcement in India and across the world through its wide network of associates. The firm is working with many companies in media, entertainment, publishing, toys and gaming industries and has been assisting them in obtaining protection for and enforcing IP rights.

Combating Copyright Online Piracy in India: Government's Initiatives and Judicial Enforcement

The internet and other digital means of communication and publication have taken the biggest leap amongst all the technological developments witnessed in the past two decades. India has emerged as the second largest online market in the world with approximately 566 million internet users, of which 251 million are in rural India. 97% of the Indian population uses mobile phones with an average monthly data consumption of 9.8 GB per user. Approximately 900 satellite TV channels, 6,000 multi-system operators, 60,000 local cable operators and seven Direct-to-Home (DTH) service providers are currently operating in the country. The media and entertainment industry in India has grown at a Compound Annual Growth Rate (CAGR) of 10.9% from financial year 2017-18. Media consumption has grown at a CAGR of 9% during 2012-18, almost nine times that of the USA and two times that of China. From April 2000 to December 2018, foreign direct investment inflows in the information and broadcasting sector reached USD7.5 billion. However, parallel to the escalation in the use of digital media and expansion of related industries, piracy has increased rapidly, resulting in a reduction in the fruits of labour for copyright owners. Piracy refers to the unauthorised copying, distribution and selling of copyrighted works. Before the arrival of online streaming platforms in India such as Netflix, Amazon Prime, Amazon Music, Wynk etc, unauthorised websites and torrents were popular among film and TV buffs who had the ‘no-cost’ alternative for downloading/streaming such content. When it came to music and sound recordings, downloading music from unauthorised websites was taken as the normal course of action for a wide range of audiences who were not even aware that such distribution of music was illegal and unauthorised.

Piracy has not only affected the due profits of rightful copyright owners but has given a major blow to the overall state of the economy, which has seen a loss of jobs and revenue. What makes digital piracy so prone to risk and difficult to curb is the inability of copyright owners to identify the infringers due to the omnipresent nature of digital media and the resultant exponential number of pirates. The government of India (GOI) and various departments thereunder have been mindful of this technological threat, and various initiatives have been taken at structural and policy levels to combat the same. The continuous and unending improvements along with the sweeping and far-sighted changes at the legislative and administrative levels have resulted in strengthening the administration, management and enforcement of intellectual property rights (IPRs).

National Intellectual Property Rights Policy, 2016

India’s march towards robust protection and enforcement of IPRs started with the introduction of the National IPR Policy ("the Policy") in 2016, which brought radical and profound changes to the table. The GOI adopted the Policy with a view to promoting creativity and innovation, as well as recognising the value of IPR in economic development. The Policy lays down the road map for India in its quest to increase creativity and stimulate innovation by establishing an ecosystem which is conducive to these aims in terms of IP awareness, creation, commercialisation and enforcement.

Objective 1 of the Policy is aimed  at creating awareness of the economic, social and cultural benefits of IPRs. The steps to be taken in furtherance of this objective include the introduction of IPR studies in school curriculum. School children, especially teenagers, constitute a major section of consumers of pirated content, be it for films or unauthorized downloads of music. Introducing IPR studies in their curriculum would teach them the significance of IP rights and how infringement of the same results in injury not only to the owner of the rights, but also has a significant impact on the economy of the country. More specifically, IPR studies would at least clarify the distinction between legal and illegal channels of distribution to a large section of society which may be unknowingly promoting piracy.

Objective 3 of the Policy called for suitable amendments in The Cinematographs Act, 1952 for the inclusion of penal provisions for illegal duplication of films. Objective 6 of the Policy underlined the need for public awareness and stringent enforcement mechanisms to combat offline and online piracy. A few important steps identified under the objective to tackle the issue of piracy are set out below.

  • Enhanced coordination between the various agencies and providing direction and guidance on strengthening enforcement measures; coordination and sharing of intelligence and best practices at the national and international level; studying the extent of IP violations in various sectors; examining the implications of jurisdictional difficulties among enforcement authorities; and introducing appropriate technology based solutions for curbing digital piracy.
  • Initiating fact-finding studies in collaboration with stakeholders to assess the extent of piracy and the reasons behind it as well as measures to combat it.

In this regard, the Policy specifies that the definition of "pirated copyright goods" as provided in Article 51 of the TRIPS Agreement shall serve as the guiding principle: “goods which are copies made without the consent of the right holder or person duly authorised by the right holder in the country of production and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright or a related right under the law of the country of importation.”

The Cell for IPR Promotion and Management (CIPAM)

The National IPR Policy has also led to the establishment of the Cell for IPR Promotion and Management (CIPAM) under the aegis of the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, GOI. It is a national focal point for the WIPO Technology and Innovation Support Centre programme and has taken profound initiatives for promoting awareness and strengthening the enforcement of IP rights.

CIPAM, in cooperation with the Film and Television Producers Guild of India and Viacom18, has launched a campaign against piracy through a series of videos including animation videos on anti-piracy. A number of top celebrities have been involved in giving anti-piracy messages in these videos to strengthen the impact on the audience. These videos are shown before the screening of films in various cinemas across the country, including PVR cinemas, which is the largest cinema chain in India. CIPAM’s collaboration with National Internet Exchange of India and Maharashtra Cyber Digital Crime Unit (MCDCU) has resulted in the suspension of over 300 infringing websites, having over 186 million hits per month have been suspended.

CIPAM has also cleverly devised its activities around children and educational institutes to foster awareness about IP rights from an early age. Nicklodean videos have also been created to appeal to children and explain to them about IPRs in a simple manner. A series of anti-piracy videos with cartoon characters have been aired with the message: “Say No to Piracy”. India has also found its first IPR mascot “IP Nani” ("Nani" means maternal grandmother in Hindi), which has been created to raise awareness about the importance of IPRs, especially among children, in an interesting manner. A number of animated videos explaining the importance of IP rights have been produced in collaboration with the European Union Intellectual Property Office (EUIPO). Content on IP rights is being included in the curriculum for high school students, and colourful posters, brochures, and presentations have been created for students to teach them about IP rights. The said material is available in multiple languages and can be downloaded from CIPAM’s official website.

CIPAM’s IP awareness programmes, which started in 2017 in collaboration with the International Trademark Association (INTA), have reached over 100 schools. Any teacher or educational institute interested in organising an IP awareness campaign in their school can write to CIPAM. An annual IP competition called IPRISM has launched to engage college and university students in its anti-piracy campaign. This competition provides students with a  national platform to showcase their talent, such as by making a film or comic book on topics related to IP. More than 100 IPR Cells have been established at various colleges and universities across India, and IPR awareness programmes have been conducted in over 10,000 academic institutions reaching over 200,000 students; 100,000 college students and faculty members, and over 2,700 rural students were reached through satellite communications.

One of the major objectives of the National IPR Policy is the effective enforcement of IP rights, which is only possible through capacity building of enforcement agencies, including judiciary, police and customs. CIPAM, in association with the Federation of Indian Chambers of Commerce and Industry (FICCI), has created an IPR Enforcement Toolkit for Police to aid police officials in dealing with IP crimes, in particular, trademark counterfeiting and copyright piracy. The toolkit provides:(i) information on legal provisions relevant to IPR crime, (ii) a checklist for registering a complaint, (iii) a checklist for search and seizure, and (iv)proposed guidelines for search and seizure in case of IP crimes. The toolkit has been disseminated to all state police departments and major industry associations across the country. In order to strengthen the enforcement mechanism, CIPAM has devised a capacity building campaign for enforcement agencies by organising training programmes. The training programmes for police officials are aimed at sensitising the police about their powers and duties while handling IP cases. The participants are generally in-service and probation police officers. These training programmes have been designed to give an overview of all domains of IP and to ensure that police officials get a broad insight into varied related topics. Expert academics, lawyers and industry experts are invited to conduct the training programmes.

CIPAM has also been working in conjunction with WIPO and National Judicial Academy, India (NJA) to organise training and awareness programmes on IPRs for high court and district court judges.

Maharashtra Cyber Digital Crime Unit (MCDCU)

The Maharashtra Cyber Digital Crime Unit (MCDCU) is a collaboration between the cyber police and industry players like the Motion Picture Association of America, Indian Motion Pictures Producers’ Association, the Producers Guild, and the Indian Music Industry (IMA). Established in August 2017 and headed by Special Inspector General of Police Brijesh Singh, MCDCU has been leading the way in the fight against piracy with the skilful execution of serious actions against piracy, resulting in the permanent shut down of over 200 top piracy websites with 172 million hits monthly. This effort has been praised by WIPO, and MCDCU has been emerging as one of the strongest units across the world. The US Chamber of Commerce recently honoured MCDCU with the 2019 Global Intellectual Property Champion Award.

Other initiatives by central and state governments

In a move to eradicate piracy and the sale of counterfeit movies on CD and DVD, the GOI, in coordination with the state agencies, has been proactive in conducting raids and carrying out timely checks to guard against this threat with every upcoming release. Some other important changes and initiatives are as follows.

  • Anti-Piracy Measures in the Draft E-Commerce Policy: In 2019, the Draft E-Commerce Policy was prepared and put in the public domain. The Drafy Policy takes into account the interests of all stakeholders, like investors, manufacturers, MSMEs, traders, retailers, start-ups and consumers. The following anti-piracy measures have been introduced.
    1. Intermediaries have been called upon to put in place measures for preventing the online dissemination of pirated content. They shall also identify "trusted entities", whose complaints will be resolved as a priority.
    2. Upon being notified by the copyright owner that a website or e-commerce platform is making available, selling or distributing any copyrighted content without the prior permission of the owner, such website or platform should expeditiously remove or disable access to the alleged content.
    3. A body of industry stakeholders will be created to identify "rogue websites". Rogue websites are those which predominantly host pirated content. After verification, these rogue websites shall be included in the "Infringing Websites List" (IWL), which provides  the following: (i) internet service providers (ISPs) shall remove or disable access to the websites identified in the IWL within set time-lines, (ii) payment gateways shall not permit flow of payments to or from such rogue websites, (iii) search engines shall take necessary steps to remove websites identified in the IWL in their search results, and (iv) advertisers or advertising agencies shall not host any advertisements on the websites identified in the IWL.
  • Amendments in the Cinematograph Act, 1952 (Anti-Camcording Provisions): The Cinematograph (Amendment) Bill, 2019 was introduced in Rajya Sabha by the Minister of State for Information and Broadcasting on 12 February  2019. The Bill seeks to introduce an anti-camcording provision in the Cinematograph Act, 1952, which shall prohibit a person from using a recording device to make a copy or transmit a film, without written authorisation from the producer of the film. Any person who contravenes this anti-camcording provision will be sentenced to imprisonment of up to three years, or fined up to INR10 lakhs, or both. In October 2019, the Bill was referred to Parliament’s Standing Committee on Information Technology to submit its report.
  • National Cybercrime Reporting Portal: The Ministry of Home Affairs of the GOI has launched the national cybercrime reporting portal (https://cybercrime.gov.in) where the citizens can lodge complaints on cybercrimes. The complaints have been divided into two categories: (i) women and child related, and (ii) other cyber complaints. Online piracy complaints can be filed under the second heading.

Judicial enforcement

Indian courts have played an instrumental role in the development of an effective IP jurisprudence in India. The right to communicate the work to the public is undoubtedly one of the most crucial rights that any IP owner has, and the same has been recognised under the Copyright Act, 1957 as well. The Indian copyright law provides relief to copyright owners in the form of civil remedies and criminal penalties against infringement. From restricting unauthorised broadcasting to passing injunction orders and blocking websites, Indian courts have taken stringent measures to curb online piracy.

Due to the anonymous nature of online piracy, it is difficult for IP owners to identify the infringers and take action against online pirates. In order to address this issue, relief is found in the form of John Doe orders (also called Ashok Kumar orders in India), whereby the courts can grant an injunction against anonymous person(s) to protect the rights of IP owners. To elaborate, a John Doe order is an injunction sought against a person whose identity is not known at the time of the issuance of the order. It enables the right holders to serve notice and take action against anyone who is found to be infringing their IP rights. It also allows the plaintiff to search the premises and seize evidence of infringement of its rights by unknown defendants. To obtain a John Doe order, the plaintiff needs to establish (i) a prima facie case, (ii) likelihood of irreparable damage if the order is refused, and (iii) balance of convenience in favour of the plaintiff.

In India, the jurisprudence of John Doe orders originated from Taj Television Limited v Rajan Mandal [2003] F.S.R 24, wherein the Delhi High Court issued a John Doe order against cable operators, restraining the unauthorised broadcasting of the World Cup football tournament. Subsequent to this order, seeking a John Doe injunction became a practice before the launch of any major film or sporting event. Recently in 2019, the Delhi High Court issued an ex-parte interim injunction against the unauthorised audio broadcast of the ICC Cricket World Cup 2019 in Channel 2 Group Corporation v Http://Live.Mycricketlive.Net/ and Others. [CS (COMM) 326/2019, I.A. 8510/2019 and 8508/2019]. The suit was filed by Channel 2 Group Corporation in anticipation of a likely abuse of its audio rights by a number of defendants, including various websites, radio channels, internet service providers and unknown defendants, by filing an application praying for a John Do order/Ashok Kumar order. The High Court referred to the principle laid down in Star India Pvt. Ltd. v Piyush Agarwal, 2013 (54) PTC 222 (Del), which directed that any person wishing to gratuitously relay ball-by-ball or minute-by-minute score updates or match alerts without a license can do so, provided a time lag of 15 minutes is maintained in transmitting such updates. This 15 minute time lag principle was also upheld by the Supreme Court vide its order of 30 September 2013 in Star India Pvt. Ltd. v Akuate Internet Services Pvt. Ltd., SLP (C) No 29633 of 2013. Placing reliance on the above discussed principle, the High Court granted the ex-parte ad-interim injunction, restraining the defendants from broadcasting/transmitting/communicating to the public any audio/radio streaming of the subject ICC tournament, whether by way of live reporting or deferred updates, through any means without authorisation of the plaintiff. However, it was further clarified that any defendant complying with the interim order may relay the score update gratuitously, maintaining the time lag of 15 minutes. The issued interim order was also directed to operate as a John Doe order against unknown defendants. The High Court further directed the search engines to take down/delete from their search result pages listings of websites/URLs which infringe upon the plaintiff’s copyright and broadcast reproduction rights, as and when notified by the plaintiff. The ISPs were directed to comply with the plaintiff’s requests to block access to the unlicensed content of the infringing websites, upon the plaintiff giving notice of the infringing activity to the said ISPs.

Another recent landmark case which has shaped the jurisprudence pertaining to combating online piracy in India is UTV Software Communication Ltd. v 1337X.TO and Others [2019(78) PTC 375(Del)] where a significant development in the form of "dynamic injunction" was brought by the Delhi High Court under which the rights-holders do not need to go through the time consuming process of a judicial order in order to issue blocking orders to ISPs. By virtue of this judgment, the plaintiffs have been allowed to approach the Joint Registrar of the Delhi High Court (an administrative position) to extend an injunction order already granted against a website to another similar "mirror/redirect/alphanumeric" website which contains the same content as that of the already blocked/injuncted website. Drawing inspiration from the Singaporean law, the court noted that to address the threat of piracy, it can permit the plaintiff to implead the mirror/redirect/alphanumeric websites.

While providing this relief, the court acknowledged the importance of judicial scrutiny of such directions. Consequently, in addition to an application for impleadment, the plaintiff shall be required to file an affidavit confirming that the newly impugned website is a mirror/redirect/alphanumeric website of the impugned website with sufficient supporting evidence. On being satisfied with the aforesaid declaration, the Joint Registrar shall issue directions to the ISPs to disable access in India to such mirror/redirect/alphanumeric websites in terms of the orders passed.

Since website blocking is a cumbersome exercise and the majority of young viewers/subscribers may not realise that they are accessing, viewing and/or downloading infringing content, the Hon’ble court also directed the Ministry of Electronics and Information Technology of the GOI to explore the possibility of a technologically feasible method to caution the viewers of infringing content to refrain from viewing/downloading such infringing material or otherwise be liable to penalties in the form of fines.

This judgment is a giant step in towards the blocking of websites that host infringing content by making the enforcement procedure easier for copyright owners. It would be interesting to see whether the court’s directions are adapted in the form of concrete policies and if India could witness a time when users would be notified that the content they are watching is infringing. However, we cannot deny that most users are aware of piracy and justify the same in the name of free use. Future developments in anti-piracy could focus on making accessibility/availability of content easier for people, which would greatly benefit the anti-piracy movement.

Au fond, the Indian government, judiciary, police force, and industry have synergised to tackle piracy together. The strategies are moving in the right direction and are also being skilfully executed.

LexOrbis

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Trends and Development

Authors



LexOrbis is a full-service IP boutique law firm with offices at three strategic locations: Delhi, Mumbai and Bengaluru. The firm has a diverse client base, including Fortune 500 companies, multinational corporations, leading Indian companies, public sector organisations, research institutes, universities, small and medium-sized enterprises and technology start-ups. With a team of over 90 attorneys and patent agents, it provides end-to-end services and practical solutions to all aspects of patents, designs, trade marks, copyright, competition, sports, media and entertainment, unfair competition, e-commerce and other related laws. The team of lawyers has been effectively protecting and managing IP portfolios for clients by formulating prosecution strategies and handling trade mark litigation and enforcement in India and across the world through its wide network of associates. The firm is working with many companies in media, entertainment, publishing, toys and gaming industries and has been assisting them in obtaining protection for and enforcing IP rights.

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