Piracy and the effect on the Entertainment Industry
Piracy in simple terms refers to unauthorized duplication of copyrighted content that is sold at a substantially lower price in the grey market[1].
In a landscape where technology has rewritten the rules of content consumption, the media industry confronts a pressing and multifarious challenge: piracy, spanning both the digital realm and the tangible world. The digital frontier, with its remarkable ability to disseminate information with a few clicks, has enabled the mass sharing of content across the globe. However, this digital democratization of access comes at a steep cost, as it fuels a rampant culture of unauthorized content duplication and distribution. From movies and music to software and e-books, a staggering volume of copyrighted material is illicitly shared through torrents, streaming sites, and peer-to-peer networks. This unchecked flow not only erodes the revenue streams of content creators and legitimate distributors but also tests the very fabric of intellectual property rights in the digital age.
Yet, piracy's dominion is not confined solely to the virtual realm. Offline piracy, often manifested through counterfeit DVDs, bootlegged merchandise, and street-corner peddlers, continues to thrive in many corners of the world. While this tactile form of piracy may lack the global reach of digital counterparts, it inflicts substantial financial losses and challenges the enforcement efforts of authorities. The problem does not only lie in loss of revenue but also with the infringement of copyright.
Piracy and Statistics
In today's world where intellectual property rights are gaining momentum, such infringement in terms of piracy causes significant harm to the creator of a work as it impacts their economic and moral rights. With the recent trends of films being released on OTT platforms, it has become even easier to get prior access to unreleased films and circulate them. According to a joint report which was published by Akamai and MUSO, the Indian subcontinent recorded 6.5 billion visits to piracy websites which is the third highest after USA and Russia[2]. The report elaborated that 61.5% of consumers have accessed piracy sites directly and 28.6% have actively searched for them[3].
An essential part that has to be noted from the report is from the conversation with the security researcher at Akamai who stated that as content developers get better at garden against piracy criminals are adapting their methods to access protected content. This simply means that with the advancement in technology the pirated content has significantly increased in numbers despite precautions taken by the media and entertainment companies.
Most notably some of the anticipated movies like Shershah, Mimi, Toofan[4] were available on pirated website prior to their digital release. This was not only observed in the movies released domestic leave but also some of the internationally renowned movies like Black Widow, Wonder Women etc., were also released on such website release before their theatrical release[5]. It has been observed that the increase in pirated films is because of easy accessibility and increasingly high quality of the downloads which is at par with the original film[6].
On the face of it piracy seems quite harmless but the consumption of pirated content has led to loss of employment and significant cut in revenue collection. According to a research done by US-India Business Council, the film industry of India has seen 11% loss in employment and $ 2.8 Billion revenue cut due to media piracy[7]. According to the Motion Picture Distributors Association and Hollywood Motion Picture Association, India has now become the fourth largest downloader of films and there has been a rampant use of file sharing networks like Bittorrent, Rapidshare and Hotfile[8] which has enabled such piracy sites to release pirated versions of film, songs, music videos etc., quite easily.
To combat piracy, the Indian laws visa-vis the judgements of various courts have tried to come up with solutions however given the increasing rate of piracy the solutions are proving to be less effective.
EXPLORING THE LEGAL REPERCUSSIONS OF PIRACY
The Indian Copyright Act, 1957
The Copyright Act of 1957, contains certain provisions that allow to combat online copyright infringement and piracy introduced through the Copyright (Amendment) Act, 2012. Under section 65A[9], the act states that any person who circumvents an effective technology measure that allows to protect the rights of a copyright holder and influences such right is punishable with and imprisonment of 2 years alongside a fine.
This section is read with section 65B of the act wherein it has been stated that any person who removes or alters the rights management information without having authority to do so, engages in distributing, importing or communicating the work to the public without any authority to do so will be punishable with imprisonment of 2 years alongside a fine[10].
Information Technology Act, 2000
The Information Technology Act of 2000 under its section 66 [11] entails that digital privacy can lead up to 3 years of imprisonment and fine of rupees 2 lakhs for illegally distributing copyrighted content in the digital space. Though the enactments seem to combat the problem, at a grass root level they have failed to do so simply because of the advancement in technology. It has become increasingly difficult to track down IP addresses of piracy website given the rampant use of VPNs and other online portals that allow a person to hide their identity and location in the digital space.
JUDICIAL INTERVENTION
John Doe or Ashok Kumar Orders
In order to provide a more robust system, the Indian judiciary introduced a new measure called as the John Doe order. The nature of the orders is such that it allows to pursue legal action against an unidentifiable defendant[12]. It is especially helpful in cases[13] where there are several unknown parties involved in a dispute. The origin of John doe orders lies in protection of intellectual property rights and combating situations like digital piracy. These orders find their legal position under Order 30 and Order 39 of Code of Civil Procedure, 1908.
In the case of Viacom 18 Media Pvt. Ltd. v. BSNL[14], the Madras High Court granted a John doe order in favor of Viacom 18 restraining the respondent BSNL from infringing the copyright of the plaintiff in the film “Padmaavat”. There were as many as 2495 websites enlisted that were infringing the copyright of the plaintiff by using the internet services of the respondent.
An interim injunction was passed to restrain the defendant from copying, recording, reproducing or allowing camcording of the film. Thereafter on January 24th 2018, a John Doe order against all the internet service provider BSNL from infringing the copyright in the film. The court also ordered for blocking 2495 websites to ensure and established a safety net for the plaintiff.
While doing so, reliance was laid on the case of Department of Electronics and Information Technology v. Star India Private Limited[15], the court had held that even if the URL of a rouge website is blocked an operator can simply login the websites source code and change the URL. Therefore, and entire website has to be blocked in order to ensure that such copyright infringement does not take place.
The court while deciding the case of Balaji Motion Pictures Ltd. v. BSNL[16] held that the immediate concern is with blocking the ISPs to ensure that piracy sites cannot access the copyrighted content. The other movies that followed suit and obtained the John doe order were Hichki, Padman, Masaan to name a few.
The problem that a rose with granting these orders was that the advancement in technology has significantly impacted the success of the John doe orders. And underlying issue is in regards to the ISP's as there is no standard set of law that determines blocking of websites which consequently lead to blocking of the website without sanction or any directives from the Department of Information Technology[17].
Dynamic Injunction
Significant contribution with made by the Delhi High Court taking a step further from the John Doe orders in utilizing the Singapore’s law for providing a new remedy called “dynamic injunction”. In the case of UTV. v. 1337x.to and Ors[18] the Delhi high court granted dynamic injunction where in the copyright holders do not have to go through the tiresome process of obtaining a judicial order in order to block ISP's.
The nature of the order is such that it allows extension of an injection order already granted against a website to be granted against similar websites which contain the same content or more famously called as the “alphanumeric or mirror websites”[19] as the original website[20]. UTV Software Communication contended that the defendants were infringing their rights by providing access to copyrighted content. The court came to the conclusion that online and offline infringements are both crimes and cannot be treated differently from each other.
Further the court identified that asking a copyright owner to present all the infringing elements would be bored in some specially in cases where websites can easily change their URL. The Court pointed out that website blocking is an exercise in futility as website operators shift sites–the so-called ―whack-a-mole‖ effect. Therefore, the court came to the conclusion of applying dynamic in junction to reduce the burden of both the plaintiff and the judiciary itself.
While the advancement in law has been nothing less than impeccable it is imperative to note that certain legal solutions take excessive amount of time and labor. There is a lack of quick solutions that can allow film makers to ensure that their content is not produced in form of pirated work.
OFF BEAT LEGAL SOLUTIONS
Note: These solutions are additional to the legal solutions. These are in no way meant to replace the legal solutions but are rather certain steps that a film-maker can take after assessing its pros and cons.
In order to come up with of beat legal ways, one has to recognize why pirated content is produced in the first place. Pirated content gains a lot of attraction not only from its easy accessibility and availability but also cheap prices. Every time you visit a piracy site, the rates at which the films are provided is significantly lower than what the OTT platforms take and are way cheaper than a ticket to watch the film in theatre. When we look into the market for entertainment in media industry in India we come to a conclusion that most of the people living in rural India watch the films on piracy sites.
Therefore, to nip the bud from its roots it is essential to diminish the demand right from the get go. Here are some of beat legal solutions that can help filmmakers to avoid piracy:
Mystery Release Date
Mimi, one of the hits of the Indian cinemas, was released 4 days prior to its actual release date. A lot of speculation followed the same as rumors left and right stated that the movie was released on some pirated websites and thus, the early release date was imperative. This makes us think that keeping the release date a mystery a film maker can substantially reduce the probability of piracy.
A trend that has to be noticed is that right before the actual release of a film such piracy sites release them on their website. Now what if we reverse the situation and keep the release date as a mystery while continuing with its promotion. This will not only catch the operators of such sites off-guard but will significantly reduce the revenue collected by them.
The advantage one might have while opting this solution is that the piracy sites will not be able to release the films before time. Since the release date is a mystery, it will be easier for the film makers to prevent any activity that might infringe the copyright.
However, on the flip side, the marketing or the PR strategy has to be quite strong. The promotion of the film has to be done in a manner that it captivates the audience, whether that means breathtaking teasers or conferences.
Rentals
The norm in the market is to release the film in theatre as well as on OTT platforms in order to preserve exclusive rights over both. In doing so the industry follows a window of few months between releasing the film in theatres and then on OTT platforms like Netflix, Amazon Prime, Disney hot star etc. The movies are also available on credible websites for renting at a price which only few can afford. As we already concluded that the rural India is the market for media and entertainment industry, for them paying and an amount to watch a single film on OTT platforms or rent the same at a high price is not possible.
Therefore, lowering the cost of renting the film can be helpful. As it is common knowledge that accessing piracy sites can cause significant damage to the computer system the alternative that a film maker can provide is subsidizing the cost for rent in the film.
One of the negative impact can be the generation of less revenue. Though a lot more consumers would want to rent the film, providing the same at a subsidized rate can decrease the overall percentage of revenue generated. On a positive side, the revenue would not be divided as the probability of piracy would be lesser. Since one of the major concerns for film makers is the loss of revenue due to piracy, the revenue so generated would now solely be through the legal method.
Streaming Parties
A common word used for the music industry, streaming parties mean where the consumers listen to the same audio content at the same time. Through utilizing the services like YouTube, Twitch etc., a film maker can host such streaming parties where the film is streamed online and at a subsidized price. This can be done after the theatrical release of the film through utilizing the payment feature of online live streaming services.
One of major advantage is that the upcoming generation finds more interest in such streaming parties and therefore garnering audience and collection of revenue would be easier. However, such streaming services only find popularity amongst the youth.
Personalized Merchandise Bundles
Partnering with merchandise manufacturers to create special edition bundles can make legitimate purchases more appealing. For instance, a movie DVD or digital download could come with a limited-edition poster, a unique prop replica, or a custom-made collectible. This not only adds a tangible and unique aspect to the purchase but also supports fan engagement and loyalty.
Interactive Alternate Endings
Engage the audience by offering multiple alternate endings for a film or series. Viewers who access legitimate copies could have the opportunity to choose their preferred ending, adding an element of interactivity and personalization that's not available through pirated versions.
Limited-Time Unlockable Content
Offer exclusive content that unlocks for a limited time after the viewer watches the film or series. This could include extended scenes, bloopers, or interactive elements that encourage viewers to engage with the legitimate content.
Rewards and Leaderboards
Gamify the viewing experience by awarding points or rewards for engaging with legitimate content. Leaderboards could showcase the most dedicated fans, creating friendly competition among viewers.
TV Release
A lot of people living in the rural parts of India or even those who are not avid watchers of films in theatres, usually access the piracy sites to watch them in comfort of their home and at a cheaper rate. Given that a lot of people do not have access to OTT platforms and do not wish to wait for long periods to have the movie released on TV the film makers can set window as they have for OTT platforms.
To shorten the window between theatrical release and the release on TV can significantly reduce this problem. The release on cable TV networks can be as early as a month or as soon as the film is removed from the theatres since the average time a film is released in theatres does not exceed 2 to 4 weeks. This will satisfy the TV watching audience as well.
As advantageous it is catering to variety of audiences, the television rights are slightly harder to get by with. There are a lot more complications involved in obtaining exclusive TV rights and dividing the revenue percentage between the film maker the TV broadcaster.
CONCLUSION
Piracy has been a core issue for the media and entertainment industry for a long time and it seems like no matter what measure is taken; the piracy sites seem to be one step ahead of the legal system. It is important to note that completely eradicating piracy is next to impossible and the only possible solution lies in reducing the demand for the same. A proactive approach has to be obtained to quickly deal with the problem since the loss of revenue is quite high.
With more and more issues cropping up after the pandemic it has become quite important that legal steps like dynamic injunction become more accessible and common. It is also imperative that the IP cells of a state are provided with the funds and manpower to block the access to such piracy sites within their state.
While identifying the problem one has to also note the changing nature of the problem. The piracy of content has gone from being offline to online where becoming anonymous is easier. This commands not only laws specifically dealing with the issue of piracy but also stronger data privacy laws alongside with a robust system to protect the intellectual property rights of a creator.
(Assisted by Ms. Kanika Goswamy, legal intern at TrailBlazer)
REFERENCES
https://economictimes.indiatimes.com/defaultinterstitial.cms
https://indianexpress.com/article/technology/tech-news-technology/india-ranks-third-globally-for-consuming-pirated-content-akamai-report-7753275/#:~:text=India%20recorded%206.5%20billion%20visits,websites%20were%20logged%20in%202021.
Ibid
https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/piracy-is-at-an-all-time-high-in-the-age-of-ott-releases/articleshow/85700331.cms
Ibid.
https://timesofindia.indiatimes.com/entertainment/hindi/bollywood/news/piracy-is-at-an-all-time-high-in-the-age-of-ott-releases/articleshow/85700331.cms
https://blog.ipleaders.in/the-prevalence-of-piracy-in-the-indian-film-industry/
https://iccwbo.org/content/uploads/sites/3/2016/11/Counterfeiting-piracy-and-smuggling-in-India-Value-of-IP-in-india.pdf
Copyright Act, 1957
Ibid
Information Technology Act, 2000
https://www.latestlaws.com/articles/online-piracy-and-copyright-infringement-issues-and-challenges-by-princess-kalyani#:~:text=Section%2065%20A%20states%20that,is%20bound%20to%20deter%20several
Code of Civil Procedure, 1908
https://iprmentlaw.com/wp-content/uploads/2018/01/Viacom-18-vs-BSNL-Padmaavat-2.pdf
https://iprmentlaw.com/wp-content/uploads/2018/01/Department-of-Electronics-vs-Star-India-1.pdf
2016 SCC OnLine Bom 4636
https://www.scconline.com/blog/post/2021/01/20/john-doe-jurisprudence-the-much-awaited-hero-of-bollywood/#_ftn27
https://spicyip.com/wp-content/uploads/2019/04/UTV-v-1337x-10.04.20191.pdf
Ibid
https://spicyip.com/2019/04/breaking-delhi-high-court-issues-indias-first-dynamic-website-blocking-injunction-for-copyright-infringement.html