Open Access Research Article
“DIGITAL PIRACY VIS-A-VIS ENTERTAINMENT INDUSTRY: A COPYRIGHT PERSPECTIVE”
Published Paper
Article Details
“DIGITAL PIRACY VIS-A-VIS ENTERTAINMENT INDUSTRY: A COPYRIGHT
PERSPECTIVE”
AUTHORED BY -
MANSI VERMA
BBA
LL.B(Hons.).
School For Legal Studies
Babasaheb Bhimrao Ambedkar
University, Lucknow
(A Central
University)
PREFACE
This topic of research is undertaken by the researcher with the intention to do a small
contribution to the society by developing an insightful analysis of the
offense of piracy in the field of intellectual property rights especially focusing
on copyright.
The concept of patents, designs, copyright, trade mark, and geographical
indication, all are covered in the ambit of intellectual
property amongst which the copyright plays a
very significant role not only in the industry of development but also in the growth
of creative effort
in almost every field explored by the human. The fact that importance of
intellectual property is a sine qua
non in both the technological aspect as well as the economic development of the country and if anyone explores the scope
of intellectual property, the opulence of financial rooms will flourish.
Copyright piracy has an adverse effect on the creators because it
restricts them from the opportunity of making a profit out of their artistic works. Book publishing, arts, cinematographing,
audio recordings, or program coding are the severely affected areas of copyright piracy is a concept of violating the rights of the creators.
Piracy is recognized as a serious threat that is both morally wrong as
well as legally wrong. It affects
the innovative potential of the creators
by not providing them with their legitimate dues, also causing
huge economic losses to all those who have invested affluence of money to bring the work of art to the end user.
Since a large number of copyrighted products
are traded globally
thus making it more open to the existing risks of piracy. It is high
time and should be within the
national agenda, especially for developing countries, to provide sufficient
protection for copyright.
Countries like the United
States of America, Germany, Sweden, United Kingdom, have observed
that copyright-based industries have given comparatively more contribution
towards the growth of Gross Domestic
Product(GDP). On the other hand, for countries like India, no certain
effort is being undertaken to give the exact number to indicate
the copyright contribution to GDP although it is
established that this sector has made an important place in the economic arena of the nation.
The research carried out by the researcher here is a doctrinal,
secondary, and tertiary form of research.
A certain deduction has been made by reviewing the literature, giving and
taking views on the papers and
journals of eminent scholars, which have been done in a composed way.
This research is unique and it is of its kind. The researcher has
negotiated the limitations of digital
piracy vis a vis copyright piracy in different areas like video and sound
recordings, programs, cinematography,
etc. The researcher has also intended to study the impact of copyright piracy on the personal level of
the copyright holders but also at the national
level by studying the impact on the national
economy. The last chapter focuses
on the recommendations drawn
to tackle the piracy situation by improving the Copyright Act enforcement as
well as spreading awareness regarding such offenses of
piracy.
Mansi Verma
AN OVERVIEW
“Copyright
law has a history of development that can partly be explained by reference to technological challenges. The Internet is
undoubtedly the best source for transmitting and reproducing information in the present information era. The
information available on the internet
comprises copyrighted and infringed works. Today we are living in a world of paperless publication where the flow of
information from the author to the reader takes place in machine-readable forms. Putting the same in other words it
can be stated that cyberspace has
changed the phase and concept of electronic publication. For the holder of the
copyright, cyberspace appears to be
the worst of both worlds – a place where the ability to copy could not be better, and where the protection of law could not be worse.”
2.1
INTRODUCTION
Schumpeter's theory is based on the concept of creative
destruction, which not only assumes that
its cycle to break the economic
activity but also states that innovation is the key that will ultimately transform the economy of the
nation. This very fact holds relevant even in the todays’s world and seems likely continue till eternity. There exist an inherent market potential
which diverts the limited resources to the most efficient use, which gives a
motion to the new innovation process. It is highly recommended that the legal system should thus, act as an enabler in order to facilitate
and enhance the innovation process and if it does not , should act as a mere catalyst. The economy has the greatest
efficiency when the positive change
is brought in by the incentives and disincentives brought via the negative
change.[1] Minimising of the amount of time and
concerned efforts that are involved in bringing incentives as well as disincentives in execution is the biggest
need which requires responsive and
expeditious justice delivery system.
In a globalised world scenario where economies compete
innovation has became on of the most
important factors sustainable growth and economic prosperity for businesses[2].
Today there is innovation that transcends the physical borders of the nation. Countries understand
the need of particular innovation and the of this is execution is
reflected in alignment of appropriate
policies that strengthens, encourage and protect intellectual property rights.
It should be noted here that the
continuous creative and innovation activities lead to the development of new products or services
that provides a technological advantage to the
business and contribute significantly to its competitiveness[3].
Most of the businesses and firms invest
a lot of money in research and product development, as well
as put money in its promotion and marketing. This investmet
will not be made unless they have a scope of
recovering their full investment[4].
The apt and efficient protection of the intellectual properties helps
to establish the trust of the investors in the copyright content, investors and creators.
The right of intellectual property is said to unproven
and untangible addition to incorporeal rights.
It has over the period of time has became a non-compulsory right, which is more valuable than the property rights and
plays a very important role in protecting the hard work of the creators and their creativity and giving them a proper
and well deserved recognition.
Copytright is a form of intellectual property which was
designed to protect the creative and original
work of the creators in the field of music, literature, film, computer
programmes, etc. The very notion in
doing so is that it helps the creators to flourish commercially as well and enable them to earn profit from their own
piece of art.[5] Speaking
of India, the trend of copyright is
governed by the Act of Copyright, 1957 but tends to be unsucessful in accomplishing its main objective. Thus, a
concrete and proper enforcement of copyright is striongly required due to following reasons:
Foremost, in the world of copyright, where motivation is the main
determinant of the progress of the
work. In addition to providing entertainment via the entertainment industry making profit and earning a payment is
also an incentive attached thus, making a monetaruy advantage out of their ar. So, if there is any loophole which
is discovered in the enforcement of
the copyright then there is highest probability that cfreators will not feel
secure and would not be motivated to work more[6].
Secondly, bread earners also suffer from the problem of the incentives of
various kinds. The income or the
earning they make out of these work are not backed by the joint venture , and will often go to unprofitable activities
which does not withold any social benefits of their own.
Third reason is that the threat that it possess
to the creative works.
Fourth is that when copyright enforcement fails to give security to the
creators copyrighted work then it
disturbs the psychology of the artist thus demotivating them from carrying
their work in future.
Fifth reason states that technological advancement makes it easier to
make a copy of the original work and
sell it in the market.
Taking all the resaons into consideration, it is right to say that our
entertainment industry fits in all
the criteria perfectly, it involves an input which is the beginning of the
creative work like for onstance in
making of an actual song, the labor, the expenses incurred. Thus, the final product that reaches the public is the
actual music record which is source toi fetch profit for all involved in making it. It is for
these aforesaid resaons
that not only the
efficient protection but also the
proper enorcement to the copyright is required and should be understood from this perspective as well. The Copyright
Act,1957 of India expresly deals with copyright enforcement in the territory on India. Section 17[7] of
the Act deals with the ownership of the copyright.
Further, if the owner seks to transfer the ownership then he can approach the section 18[8],
30[9],
31and 32A[10] of the
Act respectively. The infringement of the copyright is deat with section 14[11]
of the Act.
With the advancement of the digital technology, the issue related to the
concept of copyright hs also came across a significant growth and is becoming more complex than ever. The resaon
behind is that the copyright protection has broadly wrapped itself around the international perspectives. As observed,
copyright benefits th economy of the nation as it help in increasing the employment and accounting which forms an
important part in the government
revenue in the form of excise duty, income tax and others as well. Per se the study conducted by FICCI[12],
the total contribution done by the entertainment industry to India’s annual GDP is about 5%. Thus, the
threat of digital piracy will not only ultimately affect the revenue potential but shall also lead to trhe
creation of the black economy which is basically
use to fund the illegal activities that are being carried in the nation. The
conclusive definition of the
“infringing copies” is given under section 2(m)[13]
of the Act. Furthermore, Section 53[14] read with rule 79
of the Copyright Rules,
2013 also deals with infringing copies.
The presence of infringement includes cross section of artistic works
including literary work, computer
software’s, sound recording and films etc[15].
In India, the extent of a piracy can be understood
from the fact that Indian online users downloaded 6.5 percent of bit torrents,
as reported by the Motion Pictures
Distributers Association[16] (MPDA).A
proviso to section 52(c) of the Copyright Act[17]
provides the intermediaries including ISP are required
not to facilitate infringing
content. The Section 52[18]
highlights the exceptions to the copyright infringement for tha acts which shall not be constituted as an infringement in the eyes of law.
Section 64, 66[19]
and 70[20]
of the Copyright Act also concern the procedure and are non- obstante or other prevailing provisions.
On the procedural front the Copyright Act is not very explicit so the procedure is governed mainly by the Code of Criminal
Procedure, 1973 (herein after referred as Cr.P.C).
Anyhow, though these povision still exist to regulate the copyright
protection but we have to admit
that the actual implementation and enforcement of copyrights faces various
challenges like:
1.
It is presumed
that the infringement of copyright protection is not that biog of an offence.
2.
The enforcemnt machineries does not have enough sources
to gather the informatiom or past records
of the violators.
3. The existing
copyright act is quite complicated. And sometimes is not able to be interpreted by the enforcement agencies
which are not much acquainted with the details
and hence making
the enforcement more dificult.
Researcher holds tha opinion to share the procedure which are to be
abided regarding enforcement of
copyright as it neceassry so that there exist is no scope of confusion
regarding its enforcement. With
respect to the substantive law of copyright enforcement three sections of the Indian Penal Code (I.P.C) needs to be studied
properly, namely section 28[21]
of the I.P.C which lays down the definition of counterfeit. Secondly, section
415[22]
of the Code[23] which defines cheating and lastly section
417[24]
which gives the punishment for the offence of
cheating.
Talking about the procedural aspect
of the copyright enforcement, section
155 [25]of the criminal procedure
code shall be preferred
which describes th procedure whiah the officer
in charge of the police
station has to abide by when there is a commission of non-cognisable offence.
Furthermore, section 100[26] in addition empowers
to search and seize a place of scene of commission of offence with a warrant.
Section 102 also gives the power to the police
officer to seize
the property as well. In case of Smt.
Basava Dyamangouda V. State Of Mysore[27], the apex court observed that the
very notion and scheme of the statutes
of the Criminal procedure
of code appeared to be that where the
property which has been subject matter of an offence
is seized by the police, it ought not to be retained in the custody of the court
or of the police for anytime longer
than what is absolutely necessary.
2.1.1
Copyright: Meaning
Copyright is such a legal concept which gives a protection to the creator of the original
work and and also empowers them with an exclusive incorporeal right for a limited time. In general, being a
copyright gives the owner the right to distribute their work, transfer his rights to the another individual, publish the
work, perform the work along with
certain pecuniary interests and many more rights related to their own work. The concept of copyright was origianlly
a notion which was conceived by the government
to put a restriction on the duplication of the work. The purpose of the existing copyright is to facilitate the creation of the new content by allowing authors
to manage and leverage from their projects. It is to be mentioned that
the law of copyright is said to be
territorial which in common parlance means that it can extend beyond a certain
limit of the borderline subjected
to the exception of the country being a member of the international
agreement[28].
However, this statement does not stand
of much relevenace in todays era as many such countries are taking a step towards signing an atleast one agreement
with other countries. The copyright law of today
seeks to strike a balance a between the interests of the creator and the very owner of the copyrighted material and the
final material as well as the end users of the
produsct. Lord Mansfield who is considered to be one of the reputed
arbiter of the concept of copyright
who says, “it should always be the author
who should make gains out of his
own work.”
2.1.2 Nature
Copyright is the right recognised by law as a natural right imposed on
the creative minded individuals[29].
International agfreements have set a minimum requirements for legislation, but countries are allowed so that they can issue the time span of the copyright
registration longer than them[30].
The duration of a copyright is the entire life
of the creator plus fifty to hundred years after the death of the
creator or is the time limit for
anonymity or co-creation of the companies. Few of the jurisdictions require procedures in order to establish the
guaranteed legal right but most of the granted
rights to the work made are given without
registration. Generally, laws are enforced as civil action, but some jurisdictiosn use criminal sanctions as well.
The protection
of copyright is an automatic generated right which means that there are no rules and regulations which makes it
mandates the process of registration. Anyway
there are models for copyright
registration which are in practice in India and copyright
registration has proved to be a great tool witholding numerous advantages. Obstruction and exclusion to the said
rights are provided for the the benefit of the
private consumers and as well for the general public. The duration of
the right is long but very limited.
For the most number of works, copyright is valid for only fifty years from the
end of the calendar year in which the work was created or fifty years after the end of the calendar years in which the
work is created or caused death of the authors.
2.1.3
Rights
It is basically a set of rights which was designed by the legislators to
protect the ineterset of the creators
and producers in form of securing their creative work which shall include literary, music and
cinematography, computer programmes etc. In general
terms, a some of the other form of rights that are incorporated in the right of copyright is rights given to
authorships, reproduction iof the copyrighted content, transmission and communication to the end users thus, broadcasting
it to a larger number of public
including adaptation and
translation of the material.
2.1.4 Remedies
Remedies for copyright infringement, can be divided into civil remedies
and criminal remedies. The former
are listed in chapter XII of the Copyright Act and includes remedies like damages and injunctions. The
latter are given in chapter XIII[31]
and includes remedies like
imprisonment and fines. Under section 64[32] of
The Copyright Act police officers not
below the rank of a sub inspector have been empowered to take action against copyright infringement. The offences of
copyright infringement have been
dealt in section 63 of Copyright Act[33]
as well as various provisions under the Indian Penal Code, 1861.
2.2
Piracy:
Meaning
Reproduction, Imitation, Distribution or Importation of copyrighted work
without license or through
unauthorized means is termed as Piracy[34].
It will not be wrong to point out
that piracy acn be said to be the root of all loss of profit for the content creators and no doubt is growing
to become a threat for the owners which they
have to take seriously into consideration. It is becoming to be the need of the hour to combat piracy and help the industry
of copyright production to flourish.
Piracy in a way rstricts the owner from enjoying their own due profits
and said to illegitimate use of the
copyrighted materials. The offence of piracy aims at replication of the computer programmes, entertainment industry
ranging from music to film. On the
other hand, replication of the books publishing and other scripts are said to be quite common as
they are done majorly for academic reasons.
2.2.(a) Pirating Movies
Considering the viewership of cinema in India with three major
entertainment industry, the traffic
sites that host pirated content is also significantly higher in the country. While the above torrent sites,
which are the most used worldwide, are quite
popular in India, people often visit pirated sites that exclusiovely feature Bollywood otr Tollywood content. Some of
the mahjorly visited sites are as follows:
a. Filmywap
b.
Todaypk
c.
Bolly4u
d.
Tamilrockers
As movie
piracy has become a more regulated art in recent times, from volatile recordings on camcorders to dedicated
sites, apps and add-ons to physical hardware, piracy has become more subtle
but more dangerous as a practice. In the United Kingdom, a third of people over the age of 16 pirated movies.
The method of
pirating movies and euploading them online has also become more complex and difficult to track. Pirates
often use Bit Torrent to upload their files and
store them online. The data reaches the user who requests the file provided by the contribution of a large group of
seeders, also known as pirates who upload the
files in bits and pieces. However, with the recent crackdown on online piracy and the closure of links to pirated files,
pirates save the files offline and thesesame
games and movies are then sold via optical discs in the
grey market.
2.2(b) History
Of Piracy
The term piracy can be easily understood from the term pirates. The roots
of the concept of pirate goes back to 13th century
when the sailors of the seas used to stop the merchant ships and naval vessels
and then used to stole all their goods were known to be pirates. At the raising of the new century, the term took
an entire new meaning, and
came to be applied on the illegal use or unauthorised utilisation of the intellectual property. On entering the era of
1900’s, the term has completely
detached from its etymological meaning and had become to use for the primitive depositors of the copyrighted works, patents, trademarks, designs. By the early years of the 21st
century, the term piracy, pirates and pirated goods were being used for the unauthorised distribution of the intellectual
properties, to be specific,
copyrighted materials via digital technology like compact disks, DVD’s, other computer softwares in the black
market of the copyright industry. The thing to be noted is that there exist numerous
statutory laws across the nation which does not expressly defines the word
“piracy”. Apart from these legislation. One of
the legislation who took notice of the issue and provided a definition
of the term “piracy” is called TRIPS
Agreement (Trade Related Intellectual Property Rights Agreement)[35]:
“Pirated
copyrighted goods shall mean any goods which are copies made without the consent of the right holder or person
duly authorized by the right holder in the
country production and which are made directly or indirectly from an
article where the making of that copy
would have constituted an infringement of a copyright
or a related right under the law of the country of importation”.
Furthermore,
most number of time the terms copyright infringement and digital piracy are used in place of one another
while talking about the concept of copyright
violations. Although, there is a slight difference between the term which can be understood bvy the way that
piracy takes into consideration about different varieties of music, literature, art, films, videogames,
cinematography, computer programmes.
2.2.(c) Characteristics and Nature Of Digitral Piracy
The term digital piracy refers to hacks that occur on the Internet and
that can occur through the use of any
social media or any sort of electronic technology. The term digital hacking or digital piracy is
easily distinguishable from that of
online hacking. The very best way is to describe an online crime is to say that
it is a type of digital offence that
takes place in the world of digital cyberspace.
It is an illegal copying of the copyrighted material, computer
programmes, software, digital data, digital audio (which might ionclude the
music and speech), and digital
video, for any reason other than a proper backup, without receiving the consent of the true owner of the paid
copyright owner. These very acts makes it certainly
illegal to replicate and distribute the content on digital media via the internet.
2.2.(d) Rights available against digital piracy
a. Illegal downloading of movies
The Union of India recently amended the Cinematography Act, 1952 to clearly define the punishment that can
be faced by pirates who make or distribute
copies of the video of the film using recording equipment without the written consent of the video
owner. The video need not be recorded
at all, or even shared on the Internet. If an individual tries to record a movie in the thetre, then he has
said to commit an offence. The penalty
for this is usually imrisonment, a fine or both. This penalty can also be extended to those who download pirated
videos.
b. Charges that can be imposed
against piracy
Since the offence of piracy is not just limited to published books and audio industry but the entertainment
industry as well, the above punishments
are not the only punishment that is being awarded to the violators or the pirates. It takes different forms depending
upon the industry. The most prominent
law under which the charges are framed are as followed:
·
Copyright Law: If a person uses a pirated computer or
creates or buys illegal program on a
computer device or a program manufactured
or purchased to infringe copyright, he can be jailed for at least 7 days and can be extended up to 3 years and
fined of Rs. 50 thousand that can be
extended up to 3 million.
·
IT Law: If a person has access to a computer, computer
system or computer system, then he
will continues to digitally view, copy and
delete information contained in the computer by digital means or removable storage media (pen or hard disk), will suffer a liability of compensation, which can be
up to Rs. 1 Crores, without the prior
consent of the content owner. Anyone who transfers
the stolen data will be liable for the same amount of compensation.
2.3
Entertainment Industry:
Meaning
Human beings have something special that sets us aparts from other living species. Self- organisation in
relationships is one of the characteristics of the human beings. Humans are good entrepreneurs, created to
serve’s specific goals and are left
to seek out of new ones[36].
The source of fun is indsputably the
new concept of humanity, has existed on earth since we existed[37].
Whether it’s the cave paintings of the first humans in or the power duels
of ancient Roman gladiators, our
fascination with the fun of has in many ways
always had an ancient origin. Jawahar Lal Nehru, “Films have had more impact in India than newspapers and
magazines combined, movies are aform of
communication that shows people in existence as well as their lifestyle in the past[38]."
An activity is
considered fun by one person and not by all the others. Even for one, a perception’s of entertainment
can change over time, but when researching
entertainment, one need to identify a number of resources that provide sources of which count mass
entertainment such as movies, television
and music as well. Also acknowledge that an individual needs to exclude other forms of entertainment, such
as sports. There are currently numerous
of studies. In this paper, the researchaer has tried to analysedigital entetainment business, which shall include
music and video businesses.
Altghough, sports
are broadcsast digitally but are not constituted in the content of the current
research.
2.4
Copyright
Piracy In India
Since, the paper revolves around the digital piracy in entertainment
industry. So the latest movies called
“udta punjab” already bacem a taget of digital
piracy as it started to circulate amongst the end user before its
release date. Thus, the legisaltion
in India, the copyright act states that the copyright exists in numerous types of works. Although it is
not a specific law, but is seek to be included
in the series of laws which are nubered. Taking the rights of the autrhors, it ois aready established that
India is currently a part of number of international
treaties which in a manner imposes obligations on the member state of the treaty. The impetus for the
amendments to Indian Law was per se the Trade Related Intellectual Property Rights Agreement (TRIPS agreement) as a
member to world trade organisation thsy must abide by certain rules and regulations in a given time span which is
mentioned in the agreement. The indian
copyright act is made with a legislative intent to grant the protection to the artistic work and not wanted to restrict the creativity of the of the artist.
The running
rights that are guaranteed to the original creators on their own piece of work are not depende on the
economic rights. However thy exist with certain
moral rights whiach are: empowered with the right to claim their ownership or authorship over their work
(also called right to attribiution), in addition
they are empowered to claim damages as well in case there is any sort of infringement or any other act like,
modification, distortion, replication or any
act similar to these which in any manner shall compromise the legitimate dues of the creators to malign the
reputation of the author (also known as right
of integrity). These rights which are considered to be the moral stands
are guaranteed to the creators to not
only protect their creation but also their personal
interests whatsoever. The fact to be noted that these copule of rights are not particularly assigned to the
creators but can be voluntarily waived off by the creators
if they desire so.
The copyright law of India clearly highights that a piracy in case of copyrighted work takes place only when a person
commits either of the following acts with an
intentions of doing
so:
a. A person
whio is making a sale or hires someone else to sell or sells or lets for hire, or with the help of display and perfromance shows an offers for sale or hire, or
b. Distribution
of the material either for the purpose of trade or to such an extent as to compromise the profit of the
owner of the copyright in any
manner, or
c.
importing or displays by way of trade exhibits in
public without the consent or knowledge of the true owner of the
copyrighted materials.
The body that
is responsible for the enforcement of copyright law in India is The Ministry Of Human Resources Development
(commonly known as MHRD). The ministry
has drafted a detailed report[39] after analysing the very impact of copyright
on different arenas of
the sectors. The study has given a detailed analysis of the copyright piracy in India by analyzing
its impact on various sectors. The committee that submitted the
report to the ministry was headed by Dr.N.K.Nair
and the report clearly highlighted the fact that contribution of the copyright –impacted industry is
approximately one percent of the GDP in 1996 -
1997. Apart from this national report the other glaring international
report is the various Special
301 Reports[40] which highlights the facts that India has to deliberate more on copyright protection in
order to develop the economy of the country.[41] According to various Special 301 Reports India is one among the top 10
countries of USTR’s ‘Priority Watch List”.[42]
There are numerous ways in which the offence
of copyright piracy
can be committed and the list of new tacticts
is still growing. Per se the
report submitted by ASCAAP[43]
talks about the connectivity of the
era of advancing internet technolgy and expanding copyright industry. Not oinly imiting itself to
these walls onle, it goes beyond researching of the availability of simple yet efficient tools (like blogging,
photo sharing, video sharing, social
networking sites) which can prove to be a weapon for hackers to publish
any kind of materials on the
web.
Thus, under
the ambit of copyright, several other rights are guaranteed as well, aome of
which are as follows:
a. Reproduction
or replication of the copyrighted work- under this head, it covers published books, recordings of songs, srt works, etc.
b. Derivation
of the material- adaptation of the copyrighted work is covered under
this ambit.
c. Distribution
of the materials- the very skill to make a sale or distribute the copies
of the work.
d. Performance
and display- to put the work on display a work in front of the ned users.[44]
The Indian
Copyright Law has taken a stanad to defines what exactly has to be understand when an individual piracy of
the copyright content special referance to the
term infringing copy:[45]
a.
When the violator tries to make for the sale or hire
or sells or lets for hire or by way of the trade puts it on display to put
out an offer for sale or
hire, or
b.
Distributing the content either with an intention of
trade or done to such an extent that the owner
of the copyright gets effected,
or
c. Puts it on display
by means of trading
to be presented to the public at large.[46]
The Ministry of HRD, governemnt of India, which is considered to be the
apex regulating body of our country
with respect to copyrighted content, thus, a
comprehensive study was formulated to reach and understand the root
causes of the incidence of the
criminal offence of piracy[47].
This study is very much different from
any other studiesand which is one of its own kind and was assigned to the National
Productivity Council
focussing on few of the goals to be
achieved:
a. Studying
the limits to which the offenc of piracy is incorporated in various fields
of the copyrighted industry like audio, videos, entertainment, arts, etc.
b.
Assessing the very impact of the digital piracy on not
only th copyright holders but also the economy of the
nation.
c. Trying to
come up with a planned programme to provide assistance in carrying out the
enforcement of the copyright more efficiently.
2.5
Digital Piracy
2.5.(a) Digital Technology: Meaning
The digital era of technology has created a huge market for the copyright industry with the internet. Majority of
the products are being sold on online platform
only. The public display with the help of auctions and exhibitimg the products intends to lend a hand
increasing the sale of the content by putting
it on a public display. Online commerce also leads to higher sales as compared to the general way of trade and
commerce. A very high quality of audio
and video productions vcen be produced and managed very well. A number of newletters and magazines are now
availbale to be downloaded digitally
in the databses library and schools for academic uses. Tghis form of technology thus, allows to organise a large amount of data and information in the databases, access
of which is npow being provided to various users through online mode[48].
Converting the soft copy of the content into the hard copy is quite cheap and easy and this goes to both the sides
that is convetrting it back into the soft copy from hard copy is also easy. This works a way of an incentive for the
develoipers of the copyrigfht, in order to
avloid any sort of custom duty, specifically while expotrting their
piece of work. Considering the use of
internet, it is very evident to know that while exporting, internet does not hav any borders
for any tax to be
imposed for the regulation of the
activities of the export. As the internet bandwidth and the speed of the modem increases, copies of the movies and music
can be viewed online.the book
publishers, directors and movie distributors explore various ways to deliver electronic content in their products,
and the very possibility of linking obiquitous products with the salke internet services.
The technology
also give permission to the work that has to be produced in fully digital form. The fact that the word
“digital” is not used in any law statutes
that bnpot amounty that such works are not protected by law. All work now can be digitalisede ven if they
contain plain text. Images, documents,
audio or even video and if once digitized, and circulated all over the world in a matter of seconds.[49]
the era of internet has made the global distribution
of the content much more easier tha ever can imagined, ultimately promising to reduce the cost and reduce the time
along with the liability of the
middlemen who creates, transfers, replicate and even sells the copies
in itys physical form. Unfortunately the digital age has some very strong
winds for manufactrers and other copyright owners as it was making it much easier than ever for consumers
to access the ciontent message without
permission.
Digital yechnology
has given the copyright
holder with new technologies and
opportunities which were tend to be beyond imagination when the xisting law came into operation. The doubt
arises in the mond of the copyright
holders that this introduction might lead to disturbance in th esecurity they enjoy. Thus, the drawback
is that making a copy of the copyrighted
content available for the potential end users, it also gets exposed to the potential pirates as well. Apart
from the right sguaranteed to the authors
which are both economical and moral rights, directors migh get vulnerable to the grwoing technology and
exposure of the content. The reason
being that while the conversion or translation of thw work is being carried there is a slight chance that an
uncertain manipulation can take place and
that very manipulation can cause hindrance in the with rights and integrity of the ownership. This will
ultimately cause difficulty for the copu=yright
holder to exercise their moral right against and sort of defamatory treatmemt of their work that can cause harm not only
to their personal reputation but can cause loss to their
earnings as well.
The general issues that arise when the copyright industry interacts with
the digital technology and it svery impact:
·
Easy to
replicate- as said, once the content is coverted int a digitalised form from its physical form,
it can further be replicated witrh
very ease and with very less cost witgout damaging the quality of the content available. Every single
replicated copy, can easily be further
reproduced without any complication and again without compromising the quality of the content. In this way, a single
copy of the original work can be
reproduced over and over without any damage.
·
Easy to
circulate- the introduction of digital technology has made it significantly esier to just publish and
promote the content on a larger scale
with much more ease with th econcept like broadcating which allows an inidvidual to just circulate the
material online starting from one single point.
·
Storing capacity- the ocean
of digital technology is no doubt deep but
it gets on deepning withy every passing advancement and development. Every single minute detail can be stored on digital technology without the fear of getting lost.
No doubt, there exist hundreds of ways in which the offence of copyright infringement can take place through the
digital technology amongst which linking[50] is the
most prominent and remarkable
form of violation of copyright in web environment. However, as the new ways are
evolving to commit copyright
infringement so does the intensity of commission of such offence.
2.5.(b) Digital Technology Vs.
Copyright Laws
The enforcement of copyright law was put to test across the world after
the advent of the digital age .
technological restrictions in restricting access and stopping unauthorised copying added more on the problems to the
current scenario. There exist nuumerous
of technologies that empowers the copyright
owners to restrict the access to any other unautghorised individual. These technologies however, will stop
the unauthorised access to only some extent
and not completely. It is important to understand that someone created the technology and therefore digital
technology is still available to all the copyright
holders and the investors at all time accompanied with the threats and challenges.
2.5.(c) Doctrine Of Fair Use
Digital rights management (DRM) technology is designed to provide value and control over rights holders
intellectual property. The limitation of DRM
are supported by the law behind the digital millenium act (dmca), which now prohibits the use. DRM
prescribes technology to control the copyrighted work.
Essentially,business
owners can now write their intellectual property in computer code and are confident that the DMCA will support this
process with the force of law. In
light of these developments, many have suggested that copyright holders will use DRM technology to circumvent
copyright Laws under the ambit of
“fair use” (or relatives,such as first sale in limited time) doctrine. Drm what is the strictness of fair use? Is the
tension irreconciable? If so
which should be allowed?
2.4.(ca) Fair use: a boon or a
bane?
While the four factor test specified in section 107 of the copyright act
is the widely known (at least in law), the fair obligation in law no. Is not
clear.
Note the three aspects of fair use of in the real world ,but worth going
into detail here :
(1)
many activisties
depend on the legaligty of fair use ;
(2)
mysterty,natural phenomenonis the basis for meditation
of new technologies and laws;
(3)
fair use has become
a force for innovation and a source
of competition.
[1] The theory of Economic Development;
an inquiry into profits, capital and the business cycle. The Dynamic analysis of innovation and diffusion: A study in process control,
Thomson Learning 1989.
[2] Lindley LJ in hanfstaengl v. Empire
palace (1894) 3 Ch 109 at p. 128 quoted in British leyland v. Armstrong (1984) FSR 591 at p. 608 (C.A.)
[3] Gramophone Co. V. Birender Bahadur Pandey, AIR 1984 SC 667
at p. 676
[4] Stewart, International Copyright and Neighbouring Rights, Butterworths, 2nd edition p. 13. 1989
[5] William cornish, davis ilewelyn,
tanyaaplin, intellectual property: patents, copyrights, trademarks and allied rights,
8th edition, sweet and maxwell,
pp, 451-475, 2013.
[6] Mark T.
Bender and Yongsheng Wang, “ the impact of digital piracy on music sales: a
cross-country analysis, Source,”
International Social Science
Review, Vol. 84, p. 155-170, (2009)
[7] “subject to the provision of this Act,
the author of a work shall be the
first owner of the copyright
therein”
[8] “the owner of a copyright in an
existing work or the ptrospective owner of the copyright in a future work may assign to any person the copyright
either wholly or partially and either generally or subject to limitation and either for the whole of the copyright
or any part thereof.”
[9] “The owner of the copyright in any
existing work or the prospective owner of the copyright in any future work may grant
any interest in the right by
license in writing by him or by his duly authorized agent.”
[11] “For the purpose of this Act
copyright means exclusive right subject to the provision of this Act to do or authorizethe doing of any of the
following act in respect of a work or any substantial part thereof.”
[13] Infringing copy if such
reproduction, copy or sound recording is made or imported in contravention of
the provision of This Act.”
[14] “The owner of any right
conferred by this Act in respect of any work or any performance embodied in
such work or his duly authorized
agent may give notice in writing to the commissioner of custom, or to any other officer authorized in this behalf
by central board of excise and customs.”
[15] “K. R. Venugopala Sarma v. Sangu
Ganesan, 1972 Cri LJ 1098 (Mad) was a case of infringement of copyright in picture and it was held that
an infringement of the copyright was complete even though the reproduction was not exact, but the effect
on the mind by study of the two pictures was that the respondent's picture was nothing but a copy of the
plaintiff's picture. The Court while applying the various tests observed as follows
(at p. 1100).”
[17] “Provides
for the certain acts not to be infringement of copyright clause (c) provides
that transient or incidental storage
of a work or performance for the purpose of providing electronic links, access
or integration has not been
expressly prohibited by the right holders, unless the person responsible is
aware or has reasonable grounds for believing that such storage
is of an infringing copy.
[19] “Provides for disposal of infringing copies
or plates for purpose of making infringing copies.”
[20] “No court inferior to that
of a metropolitan magistrate or a judicial magistrate of the first class shall
try any offense under this act.”
[21] This provision provides for the counterfeit
it means who causes one thing to resemble another thing, intending by means of that resemblance to practice
deception, or knowing it to be likely that deception will thereby be practiced”
[22] This provision provides for the
counterfeit it means who causes one thing to resemble another thing, intending by means of that resemblance to practice
deception, or knowing it to be likely that deception will thereby be practiced”
[23] This provision defines
cheating it provides that whoever by deceiving any person, fraudulently or
dishonestly induces the person so
deceived to deliver any property to any person, or to consent that any person
shall retain any property, or intentionally induces the person
so deceived to do or omit to do anything which
he would not do or omit if he
were not so deceived and which act or omission causes or is likely to cause
damage or harm to that person in
body, mind, reputation or property, is said to cheat. A dishonest concealment
of fact is a deception within the meaning of this section.”
[24] “This provision deals with
punishment for cheating, it provides that whoever cheat shall be punished with imprisonment of either description for a term which may extend to 1 year or
with fine or with
both.”
[25] “It provides
for information as to non-cognizable cases and
investigation of such cases.”
[26] “Where any person in or about such
place is reasonably suspected of concealing about his person any article for which search should made, search
should be made and if such person is woman, the search shall be made by another
woman with strict regard to decency.”
[29] V.J.Taraporevala
(2013),Law of intellectual property, 2nd edition, P 1205 para
[30] Nimmer, David (2003). Copyright:
Sacred Text, Technology, and the DMCA. Kluwer Law International’s. 63.
[31] The
Copyright Act 1957.
[32] “Power of the police to seize
infringing copies it provides that 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 be produced before a magistrate”
[33] “Any person who knowingly
infringes or abets the infringement of the copyright in a work or any other
right conferred by this act shall be punishable with imprisonment for a term
which shall not be less
than 6 months but which may
extend to 3 years and with fine which shall not be less than 50 thousand rupees
but which may extend to two lakhs rupees.”
[34] Bryan A.
Garner(ed), “Black’s Law Dictionary”8th ed. 2004,Thomson West, U.S.A.P. 1186
[35] Article 15,
Note 14, Section 2: Civil and Administrative Remedies, Part III – Enforcement
of Intellectual Property Rights,
TRIPS.
[36] Shah,Vikas, “The role of Film in
Society” an exclusive interview with Tom Sherak,” The Academy of Motion Picture Arts and sciences, thought
June 2001.
[37] Gould,D.M and WC Gruben, “The Role
of Intellectual Property Rights in Economic Growth” Journal of Development Economics,vol.48,p.323-350,1996
[38] Cinema has
become a powerful vehicle for culture, leisure, education and propaganda. in a
1963 report for the united nation
educational scientific and cultural organization looking at Indian cinema and
culture, the author (Baldoon Dhingra)
quated a speech by Prime Minister Nehru who stated, “…the influence in India of
films is greater than newspapers and books combined.” Even at this early stage in
cinema, the Indian film-market catered
for over 25 million people
a week- considered to be just a ‘fringe’ of the population.
[39] Chittor P.Krishnan, “Growing Markets
– Grey or White”, Hindu Business Line dated
on 24th April, 2000.
[41] American
Society of Composers, Authors and Publishers
[45] Term ‘ Infringing copy is defined under Section 2 (m) of the Copyright Act, 1957
[47] Report of Human Resource
Develpment
[49] S.K.Verma
and Raman Mittal (2013),Legal
dimensions of cyberspace, 2nd
edition p. 115 para 4
[50] Ticketmaster Corp v.
Microsoft Corp No 97 -3055 CD
DA, Complaint filed on April 1997.
Article Information
“DIGITAL PIRACY VIS-A-VIS ENTERTAINMENT INDUSTRY: A COPYRIGHT PERSPECTIVE”
Authors: MANSI VERMA
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/14
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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