Open Access Research Article
INFRINGEMENT AND PIRACY IN COPYRIGHT
Published Paper
Article Details
AUTHORED BY - ANSHIKHA RAWAT
INTRODUCTION
In
India, objective is toward a stronger economic future and sustainable economic
growth and sustainable development coming decades. Draft policy of Intellectual
Property Right states, creativity and innovation are the forces which drive the
growt.Indian government focuses on the national IPR policy as a guiding
principle for creative and innovative policy. Media and entertainment sector
that registered a growth of 11.7% amounting to INR 1026 billion in 2014.In the
year 2019 it is expected to grow approximately INR 1964 billion by 2019.
Piracy
is a unauthorized duplication of the content and then sold at substantially
lower price in open market. It has become one of the dominant threat to the
entertainment industry. Ease of access to technology has become reason for
rampant piracy. Today piracy has become a simple affair. CD writers are
available off the self at a very low price. whenever question arises for
punishment developed countries are very much serious for punishing piracy
related issues whereas in Asian countries and specially in India government[1]
has not given due attention due to more engaging issues in hand.
Propelled
by the mobile first phenomenon of internet adoption and innovative business model
with “mobile first” strategic. India became the second[2]
largest country in terms of number of internet user. In India more than 213
million mobile internet user by Jan 2016. The emergence of 4G services and
healthy growth in number of 3G subscriber and continued adoption of 2G by
masses in the hinterland and concerted efforts by various digital ecosystem
players under the Digital India Program have played a major role to make this
possible. Availability of affordable Smartphone’s and tablets has fuelled the
screen phenomenon Smartphone penetration in India is around 10% .This is much
lower than average global smartphone penetration by 25% allowing for
considerable upside. India is expected to reach 640 million internet users by
2017.following are the outcome discussed in report.
12
Number of internet user are expected to grow
much faster than tv viewers in the next 5 years. Due to rural electrification
the internet penetration is growing at much faster rate.
II. Internet penetration in India is being driven
by mobile internet user. 14 As of December 2014 there were about 173 million
mobile internet user in India. This figure has grown by 33% as compared to
2013.India had around 116 million internet enabled smartphone’s and the number[3]
is expected to reach 435 million by the year 2019.
IV.
3G Services at greater uptake.
14 The
eagerly 4G pan India role out- operator like reliance, Airtel, Aircel are
planning to roll out their 4G services. India is basically late entrant in the
4G market, globally 4G reaches 26% of the population with 90% reaches in
developed market and 15% in the developing country[4].
VI.
The great India urban-rural internet divides.
VII.
Low internet speed is still plague in the country.
II. TYPES OF PIRACY
Internet piracy:
Internet
piracy is the downloading and distribution of unauthorized copies of
intellectual property such as movies, television, music, games, and software
programme via the internet file sharing network, pirate server, websites and
hacked computer. Hard good pirates also use the internet to sell illegally
duplicated DVD through auction.
Peer-To-Peer Piracy:
The
biggest threat is not through the illegal dvd factories but from peer to peer
file sharing which is allowing copyright content to be distributed around the
world instantaneously without any remuneration to the artist and producers of
such content.
Theatrical camcorder piracy
Cam-
cording or infringing copies of new release titles that originate from cinema
hall [5]appear
online within few hours of film release . This affects distribution cycle,
performance and jobs. Cam- coding takes place when someone[6]
enters the theatre with any type of recording device, camcorder, voice recorder
etc.
Cinematographic Works
"Cinematograph"
shall be construed as including any work produced by any process analogous to
cinematography including video films’’ In the case of CD, VCD and DVD there is
visual recording and these are primarily considered as cinematographic work .
Cable piracy
Cable
piracy refers to unauthorized transmission of films through cable network. Very
often, films, especially the new releases, are shown through cable without
permission from the rights holder. Piracy is a rare phenomenon in satellite
channels because these are organized and generally do not show films without
buying proper rights.
Sound Recordings
“Section
2 (XX)12"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. The advent of
Compatible Discs (CDs), sound recording piracy has become even more common in
the country.
Software Piracy
Software
piracy consist of firstly illegal using, then copying[7]
and distributing it without owner’s permission. Software piracy is prevalent in
the business environment both in the small scale and large scale companies.
Optical Disc Piracy
Optical
disc piracy is the illegal manufacturing, sale, distribution or trading of
copies of motion pictures in digital disc formats for illegal manufacture and
distribution of motion pictures.
Internet and Mobile Piracy
With
growing technology, piracy is bound to increase especially when the enforcement
mechanisms are so weak. India was the fastest growing market in the world for
mobile phones. The piracy through the internet involves downloading
unauthorized material from the websites, peer-to-peer file sharing. These files
can be further compressed and copied to a mobile phone from a computer or
directly from the internet.
Literary Works
Book
piracy in India is dependent upon two factors. First, the popularity of the
book in their particular area. Second, the price of the book which is of high
cost.
Parallel Import
It
refers to the importation of the goods authorized for manufacture or
distribution in the exporting country but import has taken place without prior
permission of copyright owner.
In
the case of State of Andhra Pradesh v. Nagoti Venkataramana, it
was broadly discussed that: Piracy has become a global problem due to the rapid
advances in technology. It has assumed alarming proportions all over the world
and all the countries are trying to meet the challenge by taking stringent
legislative and enforcement measures. The problem of piracy and the necessity
for taking sufficient anti-piracy measures were also voiced by members of
Parliament at the time of the consideration of the Bill to amend the Copyright
Act, 1957, last year.
The
emergence of new techniques of recordings, fixation and reproduction of audio
programmes, combined with the advent of video technology have greatly helped
the pirates. It is estimated that the losses to the film producers and other
owners of copyright amount to several crores of rupees. The loss to Government
in terms of tax evasion also amounts[8]
to crores of rupees. In addition, because of the recent video boom in the
country, there are reports that uncertified video films are being exhibited on
a large scale. A large number of video parlors have also sprung up all over the
country and they exhibit such films recorded on video tapes by charging
admission fees from their clients. In view of these circumstances, it is
proposed to amend the Copyright Act, 1957, suitably to combat effectively the
piracy that is prevalent in the country.
The
Bill provides for the following amendments to the Act, namely:
(i). To increase the punishment provided for the
infringement of the copyright, namely, imprisonment of three years, with a
minimum punishment of imprisonment of six months, and a fine upto Rs. 2 lakhs,
with a minimum of Rs. 50,000/-;
(ii). To provide for enhanced punishments in the case
of second and subsequent convictions;
(iii). To provide for the declaration of the
offence of infringement of copyright as an economic offence so that the period
of limitation provided for in the Criminal Procedure Code, 1973, for offences
will not be applicable to this offence; Section 3 of the Act defines
publication as making a work available to the public by issue of copies or by
communicating the work to the public. Whereas section 4 of the Act envisages
when work is not deemed to be published or performed in public.
Section
4 of the Act provides that except in relation to infringement of copyright, a
work shall not be deemed to be published or performed in public without the
license of the owner of the copyright. The permission of the owner is
mandatory, if the owner has not taken permission of the owner then it has
become appropriate case for the violation and infringer can be prosecuted in
copyright violation. Registration of the copyright has become important tool to
give statutory recognition to the copyright owner. Section 44 of the Act provides that there shall be copyright
registrar office and the registration of the copyright work shall be deal by
the registrar office.
III. Causes of Piracy
Price
of some copyright material are huge and it cannot be afford by a common people
.Due to this reason emergence of unscrupulous trader has taken place. These
unscrupulous traders are causing reverse marketing also. Apparently it is cause
of piracy and this cause of piracy can take place only with the help of
consumer. Therefore this cause of piracy can be tackled by creating awareness
in masses. Following are the supportive reasons.
There
is lack on the part of government authorities to communicate negative
consequences from using unauthorized
good.
Lack
of deterrent punishment.
The
development of digitization and the availability of used manufacturing
equipment has facilitated the counterfeiting and piracy of a variety of
products – from traditional industries like cigarettes and apparel to high-tech
sectors like computer software and music CDs.
Lack of Employment
Although
it is very difficult to establish a direct link between piracy and unemployment
but we can affirmatively say that unemployment is economic and social evil [9]
. Due to high volume of unemployment legitimate number can be involved only in
labor intensive as a result unemployment person resort to all kinds of
activities including the illegal production and selling of the goods .making
quick money and to get high returns
Poor Enforcement Mechanism
Laxity
on the part executive machinery is important cause of piracy. Anti-piracy
enforcement machinery remained very ineffective. Slackness on the part of right
holder on one hand and passive attitude on the part of police. Great
involvement of the force in maintaining law and order, controlling murders, riots,
and terrorist activities etc .The strength and number of the police force is
also not adequate to tackle effectively the problem of India’s size and
complexity.
Inefficient Policing
Police
officers are not so keen and vigilant in copyright cases, they are taking
grievous offences cases like murder, robbary, rape, theft etc. on the priority
basis. .In our governance system state is duty bound to protect law and order
of the country. Our police system is putting their earnest endeavour effort on
certain issues except copyright .In India in the case of life and liberty
police take it on the priority whereas in the case of economic offences they
are not taking it on the priority. Police should be encouraged to take the
copyright violation cases on the priority basis.
This
process is very time consuming as the court [10]can
take several years to decide a case. As a result the witness is not available
for such a long time and the case gets dismissed. According to Manas Saikia of
the Cambridge University Press and Foundation Books, “It is extremely difficult
to get the police to make raids and arrests and seizures in the case of actual
pirates”.
Police
officers from bottom to top should get training for investigating in such a
manner that accused should not use it as an escape route.
In
Canada there is Police Science Institute at Ontario.
In
Kenya there is copyright board enforcement department which ensures for
training of country wide police officers.
In
US, FBI is putting their earnest Endeavour effort for providing training of
copyright issues to their police officials.
Although
in India there are police academies and they are still providing training but
still they are not successful to create awareness for copyright issues to their
officers.
Beyond Reasonable Doubt
Beyond
reasonable doubt is the principle of on which our criminal justice system is
based. Habitual offenders are getting benefits and it has become a kind of
escape route
Naive Judicial System
Indian
judicial system has to play a very important role for strengthening of our copyright
enforcement, Judiciary has to take seriously all these copyright[11]
issues cases .Large number of the cases are pending before the court of law and
they are trying their best to get rid from pendency of the cases but judiciary
has to play a pivotal role for protecting copyright cases .Government should
provide training and should establish judicial academy in order to provide
better capacity building. Copyright issues should be strength to improve our
FDI and to encourage our economic condition. There should be special training
program to judges on copyright issues only. Large number of cases are pending
in court of law. Court takes long time to reach at the finality. Investors are
not keen to invest in Indian economy due to less protection of copyright cases.
Due
to weak enforcement machinery right holders are not keen to bring cases of
copyright infringement. Government should provide machinery through which right
holders should institute the cases without any hesitation and get expedite
justice.Utmost duty of judiciary to interpret the law in such a manner that it
can maintain the balance between private right as well as public right. Court
while pronouncing must try to make the punishment deterrent .There are lack of
deterrence approach while court is pronouncing the judgment.
Inexperience Police System
In
copyright Enforcement Advisory Council meeting government[12]
has decided to take initiative of capacity building, sensitization of
stakeholders etc. In order to achieve object of better enforcement machinery
government has to overcome following issues and take strong initiative for
strengthening police system. Section 64 of the Act provides that police
officers not below the rank of sub inspector has power to take initiative.
Followings are the suggestion: Appointment of adequate police officers
Qualified appointment should take place Training should be specifically for
copyright issuesm They should able to make distinction between genuine and fake
copies Foreign training should be given Target should provide to them All India
character
CONCLUSION
The
present study reveals that infringement of copyright and piracy is a menace
that denies the legitimate dues and rights of creative people and therefore the
real challenge is how to enforce the law properly. As we know that the law is
for the society and society must assume its responsibility along with
government for its successful implementation.
The
role of the Central Government is substantially advisory in nature. However,
the role played by the police and other Central Government agencies is vastly
instrumental in enforcement, bringing the infringing agents into picture but
still Central Government has long way forward. Till now government has not
given due stress and emphasis on sensitizing the common people and sharing of
best practices on copyright issues. Infrastructure which also comprises of
capacity building are inadequate and require immediate augmentation. With
respect to capacity building measures, one needs to understand the dimensions
of copyrights and their rapid evolution in the areas of infringement and
violation. Thus, this has led to a situation where in an effective and
efficient force catering to such violations must be created. The existing
police personals are ill equipped both technologically and knowledge wise,
which requires augmentation of their skill set in order to address this
pressing issue. Moreover, such violations cannot be tackled through single
agency, it requires coordination and convergence of both public and private
agencies in order to address as well as reach to the root cause of the problem.
Further, the seriousness of the issue calls for developing and effective forum
on which all stakeholder can interact and decide for addressing the problem and
also steps for strengthening the enforcement in entertainment industry. This
forum shall not only be deliberative but also it shall lead to convergence of
minds from hailing from various stakeholders.
REFERENCES
14 Marron, D. B. & Steel, D. G.
“Which Countries Protect Intellectual Property?” The Case of Software
Piracy, Economic lnquiry,2010.
15 Maskus, K. E. & Penubarty, M.
“How Trade-Related are Intellectual Property Rights?,” Journal of
International Economics. .1995
16 Maskus, K. E., “Intellectual Property
Rights and Economic Development, Beyond the Treaties” A Symposium on Compliance
with International Intellectual Property Law, organized by Frederick K. Cox
International Law Center at Case Western Reserve University, 2010.
17 Oberholzer, F. & Stumpf, K. “The
Effect of File Sharing on Record Sales: An Empirical Analysis,” The
University of North Carolina at Chapel Hill, Working Paper. 2014
18 OECD “The Economic Impact of
Counterfeit,” Organisation for Economic Cooperation and Development, Paris,
1998.
19 OECD “The Impact of Trade-Related
Intellectual Property Rights on Trade and Foreign Direct Investments in
Develping Countries,” Organisation for Economic Cooperation and Development,
Paris. 2016
[1] The Economic
Times, “ How offline internet could make the web more accessible to India’s
Telecome user base” page 5, 3rd Feb 2015
[5] Luigie Proserpio, Severino Salvemini
and Valerio Ghirnghelli, “ Management Entertainment Pirates Determinants of
Piracy in the software, music and movie Industries”,p 34-36, 2015
[9] Rafael Rob and Joel Wald Fogel “Piracy
on the High Music Downloading, Sales and Displacement and Social Welfare in a
sample of college students”. The Journals of Law and Economics 49th ed.
[10] Priti H Dosh, “Copyright Problem in
India Affecting Hollywood and Bollywood”. 26 SFKTLR 295. Discussing the
damage cause to the Indian film industry due to Piracy,p. 3-9, 2008.
[12] Any police officers not below the rank
of a sub inspector, may, if he is satisfied that an offence under section 63 in
respect of the infringement of copyright in any work has been, is being, or is
likely to be committed, seize without warrant, all copies of the work, and all
plates used for the purpose of making infringing copies of the work, whenever
found, and all copies and plates so sized shall, as soon as practible, be
produced before a magistrate.
Article Information
INFRINGEMENT AND PIRACY IN COPYRIGHT
Authors: ANSHIKHA RAWAT
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/05/06
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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