DIGITAL PIRACY IN MODERN INDIA

Author:  Krishnamiraa, CMR Law College, Bangalore.

This research is on the topic which is currently being debated in the country. This research is secondary and not a primary one. This topic is related to a broader concept called ‘IPR’ which stands for Intellectual Property Rights. It generally deals with sub concepts like patents, trademarks, copyrights etc. The reason why online piracy is connected with IPR is because, piracy is simply illegally distributing one's intellectual property without their permission. It recently started gaining momentum in the country. For the same, laws and regulations have been passed by the legislature in the country. But still these kinds of piracies keep occurring in new ways in spite of laws being enacted to stop it. Digital piracy is closely related to the concept of copyrights under Intellectual Property Rights.  The purpose and objective of this research is to understand how digital piracy poses a threat to various industries including the film industry in modern India. The findings of this research aims to focus on how digital piracy is taking place in India, laws that regulate these piracies, and how it affects the industry and the people related to it. 

Digital privacy, modern India, copyrights, laws, issues.

Digital piracy reflects the issues or challenges present in the modern/ digital era combining with the technological, legal issues. India being one the countries that comprises the wide range of online users faces several issues with regards to infringement of the materials that has been posted on the various digital platforms. Digital piracy generally means the illegal downloading, copying, disseminating the material, content etc on other digital platforms with the help of illegal (third parties) service providers without the permission of its rightful owner. Through the distribution of these kinds of pirated materials, a huge amount of money is earned by the pirates, which at the same time costs a huge loss to the rightful owners. In order to take actions against these offences, the Indian government has enacted many laws. Few of it have been successful in reducing these kinds of offences and few had loopholes in it.  

Copyright is a right which is granted by the law to the people who create music, drama, art, literary, films, cinematography and wound recording. The concept of copyrights were brought in mainly with the idea to protect the materials and rights of people who create something new using their own intellect.

When any person illegally distributes, releases the materials which are copyrighted, with malicious intentions on pirate platforms without acquiring the copyrights then, such acts are punishable under the law. 

As aforementioned, this research aims to explore digital piracy, issues caused and the regulatory frameworks enforced in India. The significant point of this research is that, online piracy is something which is emerging as a trend nowadays. At the same time not much awareness has been created amongst the public on these piracies. This article comprehensively focuses on digital piracy so that the readers can easily understand and comprehend the concept. As a result, people who are unaware about these can also gain awareness of this trend. The research methodology used here is a secondary research I.e., research is made on several other surveys, news published, articles etc. As of the year 2023, the piracy economy of our country was approximately around Rs. 224 billion and GST loss is around Rs. 43 billion. This piracy is mainly done using mobile applications and online platforms, where around 50% of the Indians use pirated content. All these eventually lead to loss in the country's economy. India has been positioned fourthly out of the top 20 countries that use pirated contents.

Piracy is classified as one of the crimes under Indian laws. More-or-less it comes under victimless crimes I.e., it may not be targeting one single person and pirates do not have any kind of restriction with regard to the territory boundaries. When innovations are made in the field of technology, new kinds of offences and crimes keep rising. Piracy was occurring even before mobile phones were in high usage, then it was done through DVDs, CDs and other kinds of physical modes. Copyrights cover a wide range of segments of an industry and that is the reason when pirate contents are disseminated it affects all of those segments. 

According to an IMI report of the year 2019, piracy leads to approximately a loss of Rs.1000 crores to the music industry. Unlawfully downloading and distributing the musical works in the pirated platforms affects the music composers, sound recorders etc. Even platforms like telegram have been used to spread the contents which were illegally downloaded by the pirates. A famous website named Tamil rockers was used to upload the pirated materials, for example, movies were being uploaded in the website just after its official release in theatres and On The Top (OTT)  platforms. 

In the segment of literary works, the books are downloaded in an unauthorized manner and released in the pirate platforms without the permission of its publishers. In the field of software also piracy exists. It costs around Rs. 33 billion loss to the country every year because of the unlawful release of single user licensed softwares and other softwares which are distributed without the permission of its rightful owner.  

Section 2(h), 2(p), 2(xx), 13 of the Copyright act, 1957 deals with the definitions of various divisions dealt by the act and works in which copyright subsists. 

• (d) “author” means, —

(i) in relation to a literary or dramatic work, the author of the work;

(ii) in relation to a musical work, the composer;

(iii) in relation to an artistic work other than a photograph, the artist;

(iv) in relation to a photograph, the person taking the photograph;

[(v) in relation to a cinematograph film or sound recording, the producer; and

(vi) in relation to any literary, dramatic, musical or artistic work which is computer-generated, the person 

who causes the work to be created;]

• Sec 2(f) “cinematograph film” means any work of visual recording [***] and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films;]

• [(o) “literary work” includes computer programmes, tables and compilations including computer [databases];]

• [(p) “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music;]

• [(p) “musical work” means a work consisting of music and includes any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with the music;]

• (xx) “sound recording” means a recording of sounds from which such sounds may be produced regardless of the  medium on which such recording is made or the method by which the sounds are produced;]

• 13. Works in which copyright subsists.— (1) Subject to the provisions of this section and the other provisions of this Act, copyright shall subsist throughout India in the following classes of works, that is to say,—

(a) original literary, dramatic, musical and artistic works;

(b) cinematograph films; and

(c) 1[sound recording].

(2) Copyright shall not subsist in any work specified in sub-section (1), other than a work to which the provisions of section 40 or section 41 apply, unless,—

(i) in the case of a published work, the work is first published in India, or where the work is first published outside India, the author is at the date of such publication, or in a case where the author was dead at that date, was at the time of his death, a citizen of India;

(ii) in the case of an unpublished work other than a 2 [work of architecture], the author is at the date of the making of the work a citizen of India or domiciled in India; and

(iii) in the case of 2[work of architecture], the work is located in India.

Explanation.— In the case of a work of joint authorship, the conditions conferring copyright specified in this subsection shall be satisfied by all the authors of the work.

(3) Copyright shall not subsist—

(a) in any cinematograph film if a substantial part of the film is an infringement of the copyright in any other work;

(b) in any 1[sound recording] made in respect of a literary, dramatic or musical work, if in making the 1[sound recording], copyright in such work has been infringed.

(4) The copyright in a cinematograph film or a 1[sound recording] shall not affect the separate copyright in any work in respect of which or a substantial part of which, the film, or, as the case may be, the 1 [sound recording] is made.

(5) In the case of 2 [work of architecture], copyright shall subsist only in the artistic character and design and shall not extend to processes or methods of construction.

Online digital piracy has a severe influence on industry stakeholders such as actors, music composers, directors, producers, and authors, resulting in financial losses and deterring creativity. The efforts of stakeholders to develop fresh material are futile, and incentive to innovate is reduced. Piracy causes substantial financial losses and hinders creative endeavours. For example, films such as Great Grand Masti, Kabil, and Padmavat sustained significant losses as a result of leaks and unauthorised downloads. The Telugu film business lost ₹1,064 crore due to over 24.76 lakh unauthorised downloads of the blockbuster movie Bahubali. Small and regional OTT platforms are particularly vulnerable, with fewer films being produced and many stakeholders losing their livelihoods. Stakeholders have urged for more robust legal frameworks to tackle piracy. Strategies include imaginative methods such as uploading anti-piracy messaging disguised as pirated videos, obtaining court orders to block illegal pirated websites, and utilising anti-piracy companies to seize unlawful DVDs and disable unauthorised links. For example, My Name is Khan producers collaborated with local authorities to collect 3,000 pirated DVDs and block 11,000 online piracy connections. Piracy damages creators and authors by undermining their efforts and decreasing the revenue which has to be earned on their investment. It also raises cybersecurity issues because pirated content can transmit malware and viruses, leaving users and networks vulnerable to intrusions.

Piracy diminishes revenue and employment prospects in the intellectual property sector, and it has the potential to fuel organised crime.  Reducing the demand for stolen content is very difficult. Educating customers on the dangers of piracy, including malware infections and harm to authors, is not that simple. Collaboration between industry stakeholders, legal entities, and consumers can assist to mitigate the negative consequences of piracy and foster a sustainable entertainment economy.

The Copyright Act of 1957 governs the concept of copyrights in India, under its Section 13 protecting original literary, dramatic, musical, and artistic works, as well as cinematograph films and sound recordings. Sections 14 and 57 guarantee commercial rights (e.g., reproduction, adaptation, public communication) as well as moral rights (e.g., authorship, protection from distortion). Injunctions, financial damages, and special orders such as the Anton Pillar and Mareva Injunctions are also available as remedies for infringement. The Cinematograph Act of 1952, as revised in the year 2021, criminalises unauthorised film recording or transmission and imposes penalties or imprisonment. Civil remedies include statutory injunctions and damages, while criminal penalties include imprisonment for up to 3 years and fines of up to ₹3 lakhs. Unauthorised computer access or data theft may result in compensation of up to ₹1 crore. The law also requires confiscation of infringing materials. Recent modifications attempt to successfully tackle piracy while also reflecting India's developing digital landscape. India, as a TRIPS Agreement signatory, has improved its intellectual property laws to combat internet piracy and safeguard creative works. The Copyright Act of 1957, as revised by the 2012 Copyright (Amendment) Act, enacted Technological Protection Measures (TPM) under Section 65A to protect ownership, with violators facing up to two years in prison and fines. The Information Technology Act of 2000 also handles piracy, punishing offenders with up to three years in prison and fines under Section 66. The amendments are consistent with WIPO conventions, intended to reduce piracy while providing copyright owners with digital enforcement tools. The National Intellectual Property Rights Policy of 2016 improved IP protection, boosting India's Global Innovation Index rating from 81st in 2015 to 52nd in 2019. State initiatives such as Kerala's Anti-Piracy Cell address regional piracy issues. However, India remains on the United States' Priority Watch List for intellectual property concerns, with recommendations for increased prosecution of digital piracy and camcording.

To conclude with, this article comprehensively focuses on the emerging trend which is digital piracy. As mentioned in the article above, there have been instances where the industries faced loss of an exorbitant amount of money leading to the loss in the economy of the country. There are several forms of digital piracy such as cyberlockers, streaming sites, torrent sites, peer to peer etc. Even though there have been various laws and regulations that were enforced by the Indian government to tackle these issues, it is still not effective enough to completely curb the problem of digital piracy. It is still in continuance, committed by people using other new ways such as creating new websites, channels etc to illegally distribute the unauthorized contents. Problems like piracy require stricter law enforcement and stricter punishments to at least reduce it by half. Enactments of new legislations or amendments in the existing legislations can help in reducing the issue. In my opinion, a separate law solely dedicated to digital piracy has to be enacted with stricter punishments in our country. If not for stricter laws, then the innovations and creations would start decreasing because of the fear of piracy. In order to encourage people to create new ideas and to bring in new stuff, India has to start boosting the IP system with various protection laws. 

1. Vidhi Mitesh Shah, Regulations on piracy and pirated works in India: An analysis, 3 JUSCORPUS L.J. 92 (December 2002)

2. Nivedita Sudheer and Nieharika Sharma, Digital piracy in the film industry in India, 1 NLUA Journal of Intellectual property rights

3. Gunman Chawla and Nidhi Buch, Impact of Online Digital Piracy on the Indian film industry: an empirical investigation into consumer behaviour, 28 Journal of Intellectual property rights (January 2023)

4. Article on Study on copyright piracy in India sponsored by Ministry of Human resource development, Government of India

5. Matthew N.O. Sadiku, Talulope Joshua Ashaolu, Abayomi Ajayi- Majebi and Sarhan M. Must, Digital piracy, 2 International Journal of scientific advances (January 2021)

6. Article on Critical study on copyright piracy in India with specific reference to online piracy of music sound recording and films. 

7. Arul Gerorgia Scaria, Online piracy of Indian movies: Is the film industry firing at the wrong target, 3 Michigan State International Law Review.