A Frightening Case of Digital Piracy in the Entertainment Industry

Introduction

Creative expressions are not a new domain and are as old as human societies, the difference in today’s scenario being the increased importance that is given to protection of such expressions. It was in 1667, when John Milton sold the rights of his legendary work, Paradise Lost for mere 10 pounds. As it was the problem with earlier times, creative art was not valued commercially and it was restricted to mere philosophers, who used the medium of writing and speaking to share their wisdom without any expectation of commercial returns. With time, human intellect and its products started to be seen as commercially valuable. The intangible rights which protect such products and expressions are collectively known as Intellectual Property Rights.[1]Copyright is one such field in intellectual property rights which specifically deals with the same, the primary domain of which includes literary works (such as novels, poems and plays), films, music, artistic works, etc.[2] Such works of artistic value are vulnerable to being used without giving due credit to its producer. It has become difficult to keep a track on copyright violations with the increasing accessibility of multiple platforms.

Copyright piracy is a threat to the creative liberty of artists. Piracy means unauthorised reproduction and distribution either of the whole or of a substantial part of works protected by copyright.[3] In cinematographic works piracy happens through unauthorised reproduction of the film in various formats.  Among countless ways of piracy, the most prominent in recent times is internet piracy. The increase in external websites in streaming unauthorised content is an alarming concern as accessing content through third party applications does not add up to the revenue of the creator and also harms their prospective of income. The Motion Pictures Distributors Association of India (MPDA)have expressed that India has one of the highest rates of video piracy in the world. It is considered that the global online TV and movie industry would lose 51.6 billion U.S. dollars to piracy in 2022.[4] India is a country with a weak Intellectual Property enforcement system. The US government in its special 301 report asked India to strengthen the protection and enforcement various facets of Intellectual Property.[5]

Digital Content and Network Effect

The recent shift of the entertainment industry has been to the digital platform with all creative content made available online. With newer technologies such as virtual reality, one can create a 360 degree immersive environment without having to venture out. Various streaming websites have come up which act as a platform for producing new content or hosting third party content. But, the increase in accessibility has also resulted in the increase in vulnerability. Earlier, the content was restricted to a certain section of audience in a protected environment, which was not conducive for piracy. With the advent of Internet and development of peer to peer network, every user can find the content he is searching from million other computers and thus establish a link to get the content delivered to the host computer. The structure of internet makes it more difficult to track pirated content as the servers are spread around the world and one might store content in a country different to one’s country of residence.

The revenue generation for these unofficial and unauthorised websites is from advertises through one click ads, leeches etc. The cost of reproduction is marginal as procurement of a single copy would result in unlimited distribution. The market is further problematic as the primary objective is not to make profit or sell content but to develop a network effect so as to get recognition. Network effect is defined as a valued service which is directly proportional to the number of users. Thus larger the network, the better and dominant will be its market structure.[6]The primary source of revenue generation is no longer the content that is available on these platforms but the value of the platform on which the content runs. Among all these there is a serious threat to the content creators and to the expression of their ideas. Copyright laws aims to protect such content creators and thus value content as products of one’s intellect.

Conclusion

The executive legislation and rules are too broad to catch up with the technological advancements. The time has come to critically address the issue which is haunting every creative artist around the world. The entertainment industry needs to take certain measures to tackle the challenge faced from piracy. It can do so by making its content accessible at a nominal rate to the audience so that it can attract audience and thereby start a more reliable trend.

The need is to balance the rights of all stakeholders. While piracy affects the entertainment industry and the economy by depriving the government of the revenue that could have been earned by the means of taxes, other serious concerns overshadow the problem of IPR. Thus importance should be given on efficient implementation of existing laws and keeping infringement under the check by suitable exercise of the available remedies. Among other remedies, the one effective way to deal with digital piracy is through criminal sanctions. Criminal remedies are separate and exist independently and can be availed along with the civil remedies. Criminal remedies include imprisonment, seizure, etc. Section 63 to 70 of the Indian Copyright Act, 1957 lay down the criminal remedies.[7]With ever increasing awareness about the rights ensued by the field of Intellectual Property Rights, it is imperative for a country like India to strengthen its copyright regime and to create an atmosphere conducive for the growth of intellectual faculties and creative talent.

Author: Abhishek Tripathy, student of B.A. LL.B(Hons.) from Institute of Law, Nirma University, Ahmedabad, Intern at Khurana and Khurana Advocates and IP Attorneys and can be reached at swapnils@khuranaandkhurana.com

References:

[1]Intellectual Property Right. (2018). In: Black’s Law Dictionary, 2nd ed. [online] Available at: http://thelawdictionary.org[Accessed 5 May 2018]

[2] The Copyright Act 1957, s 13(1)

[3] Black’s Law Dictionary, 2nd ed.

[4] PTI, ‘Indian Film and TV Industry Threatened by Online Piracy’ The Hindu(Mumbai, 16 december 2009)

[5] Arul George Scaria, Piracy in the Indian Film Industry: Copyright and Cultural Consonance ( 1st ed., Cambridge University Press 2014)

[6]Prasar Bharti v. Tam Media [2012] CCI 32

[7]The Copyright Act 1957

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