Copyright Law’s Worst Nightmare : Pervasive File Sharing Frenzy By Instant Messaging Services Like Telegram

Introduction

Piracy refers to the unlicensed duplication, distribution, and sale of copyrighted works.[i] A rise in online video piracy can be attributed to fans’ insatiable need to illegally obtain whole episodes of popular web series and movies. As a result of the massive interest in this type of free content, many different methods have emerged by which online users can receive a stolen copy of the content that rightfully belongs to OTT media companies.

Telegram stands out as anInstant messaging platform where users share movies and shows already on Netflix and other OTT platforms. It presents itself as a digital swap meet camp where legal and shared content collide, challenging the norm of sticking to mainstream streaming. This has led to an increase in peer-to-peer piracy, wherein users facilitate the distribution and sharing of pirated digital material among themselves[ii]. To put it another way, this increase is bad for these platforms and content producers since it takes away a sizeable chunk of their prospective earnings.

Throughout the years, piracy has increased, but now more than ever it threatens the media and entertainment industries. A new movie usually finds itself in the telegram channels in the form of uploaded user copies. The movie’s production company suffers tremendous financial losses as a result of this. When consumers know that a pirated copy of a film can be found on the Instant Messaging app with a single search, they are less likely to see it in a theatre, resulting in lower box office receipts and a financial loss for the filmmakers. The same could be illustrated through the Pirate Bay trial in Sweden wherein massive gatherings of youths vied for a free sharing system against music giants in the name of free knowledge and open world access.[iii]

[Image Sources: ISTOCK]

Copyright Act 1957

Netflix, Hotstar, Amazon Prime, ET Times, and The Hindu all pay hefty sums to be official media partners for movies. The same can be attuned to affect these streaming sites as the pirated copies usually act as a stealing revenue measure for these official streaming servicesresulting in financial loss to distributors, hardworking employees and ultimately the company who put in resources to license it, stream it, take costs to dub it in various languages and bore the brunt of privacy to lose it all. Despite the existence of copyright laws, authorities are insufficient to prevent piracy since, even with copyright protection, internet piracy prevents the rightful owners of an original work from reaping the financial benefits of their creation. None of the terms associated with interactive or online streaming are defined by current copyright law.

The Tussle Of The Laws To Get It Right

The Copyright Act of 1957 and the Information Technology Act of 2000 both have anti-piracy provisions. Section 14[iv] of the Copyright Act defines copyright and outlines the owner’s comprehensive exclusive rights to create copies, reproduce the work, and store it. Copyright infringement under Section 51[v], which includes both passive and active acts like storing or making copies without permission, is punishable by fines and jail time underSection 63[vi] of the Act. Sections 65A[vii] and 65B[viii] of The Copyright (Amendment) Act 2012 were adopted to ensure the upkeep of technical protections and rights management data, respectively, in order to combat copyright infringement in the digital sphere with the usage of Technology Protection Measures like digital locks, encryption, passwords and digital watermarks[ix].

Despite the existence of Section 51, India does not have any laws that explicitly address the liability of Instant Messaging Services for the copyright infringement of content their platforms, nurturing for a safe harbour and even absolved of duty in cases of infringement. While the intermediary strives to avoid infringing on intellectual property rights, the exemption from liability under Section 79[x] of the Information Technology Act, 2000, incentivizes a more passive approach, prioritizing due diligence over actively pursuing violators. This poses a huge threat to copyright since legally they are absolved from the liability for any information hosted by them or made available to them.

Rule 3 of the Information Technology (Intermediary Guidelines) Rules, 2011[xi]states thatthe Intermediary is obligated to warn users against spreading content that could violate someone else’s intellectual property, and may even cut off the user’s access if they are discovered to be infringing. This only acts as a pandoras box since the curiosity of a customer supersedes the admonishing character of Intermediaries, many of whom fail to demonstrate the power of cutting of access in the hope of retaining the customer.

Telegram And Security Measures Or The Lack The Reof

In a recent legal development, the Delhi High Court, in the case of Jagran Prakashan Limited v. Telegram FZ LLC[xii], issued an order directing Telegram to take down specific channels hosting content copyrighted by the plaintiff firm. Jagran Prakashan Limited, known for distributing digital e-papers to its subscribers, found its content being shared without authorization on the messaging platform.The business model of Jagran Prakashan Limited revolves around providing digital editions of newspapers to its clientele. The court, in response to the copyright infringement claims, not only instructed Telegram to remove the channels hosting the pirated content but also mandated the platform to disclose basic subscriber data associated with these channels. The security measures provided by the privacy policy of telegram conform to reporting the channel or group and sending the original works along with claims to bring down the respective content on the channels to relevant email IDs provided by Telegram mainly- abuse@telegram.org and dmca@telegram.org.[xiii]

The problem of Telegram lies in the form of Direct and Vicarious infringement wherein the group administrators usually turn a blind eye towards sharing of copyright content, simply because they themselves are benefitting from it. Another reason constituting to copyright infringement is the easy process of making and leaving of channels and groups. When a person receives a copyright notice or strike, they simply move to another channel with their subscribers. The modus operandi of flexibility in leaving and making channels while not holding anyone accountable seems to work for infringers who see it as a small cost of salvation when it comes to the ideology of free sharing.

In a recent Delhi High court judgement of  Neetu Singh & Anr v. Telegram Fz & Ors, Telegram[xiv] was asked to disclose the information regarding the names, emails and member information to stop spread of copyright infringement. In the same case, it was also held that existence of servers in a foreign country should not leave the copyright holders remediless against infringers, even if the law (in the country where servers are located) does not allow Telegram to do so.

In UTV v 1337X[xv], the Court issued a decision to help find and shut down sites that host and provide pirated content (2019). It recommended coming up with future techniques to hurt both the original and mirrored versions of detected websites by implementing “dynamic bans.” The following criteria were established by the court to define a “fraudulent website:”

The basic objective of the website:

  • Is to facilitate infringement;
  • the traceability of the owner;
  • the website operator does not respond to the removal notice;
  • the website contains infringement promotion- A description of the copyright andtraffic or frequency of visits to the site.

The criteria that the Court established for identifying malicious websites were necessary in order to prevent the dynamic injunction from being applied to legitimate online platforms. These platforms fall under the category of intermediaries and are afforded statutory protection in accordance with the Information Technology Act of 2000.

Even if Telegram does not fall under the category of website, the criteria laid down by the above case makes it redeemable that it operates as website through groups chats and channels indirectly for facilitating copyright infringement on its platform.

Conclusions

The long-standing litigation    que for Telegram is taking an upward trend showcasing the noncompliant nature of the app in the file sharing copyright frenzy.[xvi] The recent case of Red Chillies Entertainment Pvt. Ltd. v. Ashok Kumar/John Doe & Ors[xvii], wherein the court pointed towards various groups who have been bought into notice for circulation of new pirated movies like ‘Jawan’ and directed Telegram as well as Meta to shut down these groups is an instant reminder, that courts have to come into regular play to ask platforms like Telegram to perform obligatory legal duties in a fast and swift manner. Despite reminders by the Indian Judicial system, a lack of accountability and enforcement of penalty towards these platforms is leading to dire situation of ‘paper judgements’, which feel good on reading but in actuality have no effect on the platform.

Nevertheless, the Indian government published its National Intellectual Rights Policy in 2016, which included a number of specific directives. These policies have the following goals in mind:[xviii]

1) Raise public knowledge about the benefits of copyright protection on an economic, social, and cultural level

2) Raise people’s consciousness about the many forms of digital piracy.

3) Make the necessary modifications in line with the Cinema Law and other legislation that is relevant to it.

 4) In order to make the requirements of the law more effective, a management and promotion team for intellectual property should be established.

In the wake of the dynamic environment of copyright infringement, a commendable step in the right direction was also proposed by Justice Pratibha Singh in the recent case of Universal City Studios llc& ors v. Dotmovies. baby & ors[xix] in August 2023 wherein dynamic+ injunction orders were enforced. These allow the court to block not just the original website, but also any other websites that are doing the same thing. This helps to make sure that the copyright holder’s rights are protected, even as the pirates keep changing their tactics. Although dynamic bans have been allowed, new dynamic+ bans also protect the yet to be created content, providing for an extra layer of protection of future proof solution. These solutions can help in enforcing some control over the rampant copyright infringement in apps like Telegram.

Author: Harjas Gulati, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

[i] CAMBRIDGE DICTIONARY, https://dictionary.cambridge.org/dictionary/english/copyright-piracy, (13th December 2023)

[ii] Mohua Das, Torrents to Telegram, piracy makes a comeback in OTT era,TIMES OF INDIA, (13th December 2023), http://timesofindia.indiatimes.com/articleshow/93645484.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst

[iii] Mikael Ricknäs, The Pirate Bay four found guilty in Sweden,COMPUTER WORLD, (17th April 2009), https://www.computerworld.com/article/2523466/the-pirate-bay-four-found-guilty-in-sweden.html

[iv]The Copyright Act, 1957, §14, No. 14, Acts of Parliament, 1957 (India).

[v]The Copyright Act, 1957, §51, No. 14, Acts of Parliament, 1957 (India).

[vi]The Copyright Act, 1957, §63, No. 14, Acts of Parliament, 1957 (India).

[vii]The Copyright (Amendment) Act, 2012, §65A, No. 27, Acts of Parliament, 2012 (India).

[viii]The Copyright (Amendment) Act, 2012, §65B, No. 27, Acts of Parliament, 2012 (India).

[ix] Prateek Chakravarty, Effective Applicability of Sections 65A and 65B of Copyright (Amendment) Act, 2012 using Case Study of Digital Watermarks, Vol.20, JOURNAL OF INTELLECTUAL PROPERTY RIGHTS,388-397, (November 2015)

[x] The Information Technology Act, 2000, §79, No.12, Acts of Parliament,2000 (India)

[xi]Rule 3, Information Technology (Intermediary Guidelines) Rules, 2011,(India), https://dispur.nic.in/itact/it-intermediaries-guidelines-rules-2011.pdf

[xii] Jagran Prakashan Limited v. Telegram FZ LLC CS(COMM) 146/2020 Delhi High Court

[xiii] TELEGRAM , (13th December 2023), https://telegram.org/faq

[xiv] Neetu Singh & Anr v. Telegram Fz & Ors, Telegram, CS (COMM) 282/2020

[xv] UTV v 1337X CS(COMM) 724/2017 & I.As. 12269/2017

[xvi] Aarathi Ganesan, Everything You Need To Know About 5 Copyright Cases Against Telegram At The Delhi HC, MEDIANAM, (17th January 2023) ,https://www.medianama.com/2023/01/223-telegram-5-copyright-cases-delhi-hc/

[xvii] Red Chillies Entertainment Pvt. Ltd. v. Ashok Kumar/John Doe & Ors., CS(COMM) 240/2023 & I.A. 18184/2023

[xviii] DRISTI IAS, National IPR Policy, (13th December 2023), https://www.drishtiias.com/daily-updates/daily-news-analysis/national-ipr-policy#:~:text=IPR%20is%20required%20to%20safeguard,made%20of%20the

%20manufactured%20goods.

[xix] Universal City Studios llc  & ors v. Dotmovies.baby & ors, CS(COMM) 514/2023 and I.A. 14120/2023, 14122/2023

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