A PROJECT REPORT ON:

ONLINE PIRACY LEGISLATIONS IN INDIA: A CRITICAL ANALYSIS

SUBMITTED TO:
DR. AVINASH SAMAL
(FACULTY FOR PUBLIC POLICY)

SUBMITTED BY:
BHARAT RAJ
ROLL NO.-51
VITH SEMESTER

DATE OF SUBMISSION:

15TH FEBRUARY, 2016

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

TABLE OF CONTENTS

S.NO

TOPIC
PAGE NO.

1.

CERTIFICATE OF DECLARATION

2.

ACKNOWLEDGMENTS

3.

INTRODUCTION

5-6

4.

OBJECTIVES
7

5.

RESEARCH METHODOLOGY
7

ANALYSIS

OF THE

LEGISLATIONS INTRODUCED

BY THE

INDIAN GOVERNMENT

TO

COMBAT ONLINE PIRACY

8-14
7.

ONLINE PIRACY LEGISLATIONS IN OTHER NATIONS

8.

MEASURES UNDERTAKEN TO CURB ONLINE PIRACY IN INDIA

15-17

17-19
9.

SUGGESTED MEASURES TO CURB ONLINE PIRACY IN INDIA

19-21

10.
11.

CONCLUSION
BIBLIOGRAPHY

22
23

Certificate of Declaration

I hereby declare that the project work entitled Online Piracy Legislations in India : A Critical
Analysis submitted to HNLU, Raipur, is an original work, which has been done by me under the
able guidance of Dr. Avinash Samal, Faculty Member, HNLU, Raipur.

Bharat Raj
Roll No. 51
SEM-VI

Acknowledgements

At the very beginning, I would like to thank all those who were the guiding lights behind this
project. First of all I would like to take this opportunity with esteem privilege to express my
heartfelt thanks and gratitude to my course teacher Dr. Avinash Samal, (Faculty for Public Policy,
H.N.L.U.) for having faith in me in awarding me this very significant project topic. Her
consistent supervision, constant inspiration and invaluable guidance have been of immense help
in carrying out the project work with success.
Next, I would like to thank my colleagues for maintaining an academic atmosphere which helped
in creation of new ideas and lines of thought for the betterment of this project.
Subsequently I would like to thank my university for providing such an enriched Library, the
computer lab, internet facility without which this project would have been in a distant realm.
I extend my heartfelt thanks to my family and friends for their moral support and encouragement.
I also take this opportunity to thank all those people who contributed in their own small ways for
the completion of this project.

Introduction
In India, although there is no specific legislation dealing exclusively with online piracy, but the
subject is dealt with majorly in the Indian Copyright Act, 1957 and Information Technology
Act, 2000.
Before delving into the legislations in force, it will be helpful if we get an idea about online
piracy and its general impact on the country.
Online Piracy refers to the the unauthorised downloading or distribution over the Internet of
unauthorised copies of works such as movies, music, videogames and software. Illicit
downloads occur through file-sharing networks, illegal servers, websites and hacked
computers. Hard goods pirates also use the Internet to sell illegally duplicated DVDs through
auctions and websites.1
Piracy is a mass phenomenon on the Internet today. Various file sharing platforms offer free
access to unauthorised copies of copyrighted works such as media content and software.
Copyright holders are using a range of legal and technical methods to protect their rights, and
they are lobbying for legislation that would give them additional ways of enforcing their
copyright online. However, little is known about how effective current forms of copyright
enforcement are and how enduring the effect of proposed new measures can be.2
The statistical data and the object of the initiatives in India indicate that the nature of the
infringements is wide-ranging. Statistics indicate that the entertainment industry in India is
losing revenue of about 80% owing to physical and online piracy. India is among the top ten
1
http://portal.unesco.org/culture/en/ev.phpURL_ID=39412&URL_DO=DO_TOPIC&URL_SECTION=20
1.html (visited on 8th February, 2016).
2 http://www.internetsociety.org/sites/default/files/07_1_0.pdf (visited on 8th February, 2016).
5

countries which account for P2P and BitTorrent activities. Although piracy in India is still
dominated by street side vendors and small shops selling pirated products, the rising number of
broadband connections in India is an alarming indication that implies a rise in digital piracy, in
addition to what is currently prevalent. Another factor to be taken into consideration is the loss
incurred by other countries because of physical and digital piracy in India.3
So, online piracy has also been slowly increasing its stronghold as the internet continues to
increase its reach throughout the world. In order to address this issue, the Indian Governnment
especially through the Indian Copyright Act, 1957, the Information Technology Act, 2000 and
through other related legislations and measures, has tried to curb this issue.
Indias Copyright Act, 1957 and Information Technology Act, 2000 especially consist of
several provisions, which cover within their scope online piracy too. Under the Copyright Act,
recently in May 2012, the act has been significantly amended. Both houses of the Indian
Parliament have unanimously placed their seal on the Copyright Amendment Bill, 2012,
bringing Indian copyright law into compliance with the World Intellectual Property
Organization Internet Treaties. These amendments have specifically dealt with the issue of
online piracy under Sections 65A and 65B.
The 2012 amendments make Indian Copyright Law compliant with the Internet Treaties the
WIPO Copyright Treaty (WCT) and WIPO Performances and Phonograms Treaty (WPPT).4 The
treaties address challenges relevant to the dissemination of protected material over digital
networks such as the internet. The WCT deals with the protection for the authors of literary and
artistic works. The WPPT extends copyright like protection to performers and producers of
phonograms.
India has emerged as one of the biggest hubs of online piracy, with Delhi, Bangalore and
Mumbai accounting for the major share of the illegal downloads. According to studies
commissioned by the Motion Picture Distributors Association (MPDA), the local office of the
3 Nikita Hemmige, Journal of Intellectual Property Rights, Vol 18, Sept 2013, Piracy in the Internet Age,
p.5.
4 http://www.ip-watch.org/2013/01/22/development-in-indian-ip-law-the-copyright-amendment-act2012/ (visited on 10th February, 2016).
6

Hollywood Motion Picture Association (MPA), India accounts for maximum film piracy in any
English-speaking country if one goes by the number of broadband subscribers.5

Objectives
1) To analyse the various legislations in India which cover online piracy issues.
2) To assess the implementation of the measures under these legislations.
3) To provide brief suggestions towards strengthening the legislations to combat online
piracy.

Research Methodology
This project work is descriptive & analytical in approach. It is largely based on the analysis
of online piracy legislations in India. Books & other references as guided by faculty of Public
Policy were primarily helpful for the completion of this project.

5 http://www.deccanherald.com/content/41541/india-major-online-film-piracy.html (visited on 10th

February, 2016).
7

Analysis of the legislations introduced by the Indian Government to combat

online piracy
The major general provisions covering online piracy are found under Indian Copyright Act, 1957
and Information Technology Act, 2000. These provisions have been explained below
(1) Copyright Act, 1957 and on-line copyright issues: The following provisions of the
Copyright Act, 1957 can safely be relied upon for meeting the challenges of information
technology:
(a) The term computer has been defined under Section 2 (ffb) of the act. The definition is
very wide and is inclusive in nature, it includes any electronic or similar device having
information processing capabilities. Thus, a device storing or containing a copyrighted
material cannot be manipulated in such a manner as to violate the rights of a copyright
holder.
(b) The corresponding section of the act, that is Section 2 (ffc) deals with the term computer
programme. It has been defined to mean a set of instructions expressed in words, codes,
schemes or in any other form, including a machine readable medium, capable of causing a
computer to perform a particular task or achieve a particular result. It must be noted that
Section13 (a) read with Section 2(o) confers a copyright in computer programme and its
infringement will attract the stringent penal and civil sanctions.

(c) The Section 2 (o) of the act provides an inclusive definition of the term literary work. It
includes computer programmes, tables and compilations including computer databases. Thus,
although there is no explicit mention of online piracy in these sections, but the wordings have
certainly been organized in a manner that provides sufficient protection for computer related
copyrights. It is not directly mentioned but the wordings are certainly wide enough to include
online piracy within its ambit.
(d) The copyrighted material can be transferred or communicated to the public easily and
secretly through electronic means. To take care of such a situation, the Copyright Act has
provided the circumstances which amount to communication to the public, Section 2 (ff) has
specifically defined the term. It includes, making any work available for being seen or heard
or otherwise enjoyed by the public directly or by any means of display or diffusion other than
by issuing copies of such work regardless of whether any member of the public actually sees,
hears or otherwise enjoys the work so made available, may violate the copyright. The
communication through satellite or cable or any other means of simultaneous communication
to more than one household or place of residence including residential rooms of any hotel or
hostel shall be deemed to be communication to the public.
(e) The copyright in a work is infringed if it is copied or published without its owners
consent. The Copyright Act provides that a work is published if a person makes available a
work to the public by issue of copies or by communicating the work to the public. Section 2
(m) of the act provides that infringing copy includes such reproduction or copy made in
contravention of the provisions of this act. Thus, the ISPs, BBS providers, etc may be held
liable for copyright violation if the facts make out a case for the same.
(f) Chapter XI of the act deals with infringement of copyright. Section 51 provides the
provisions under which publication or distribution of work shall be deemed to be an
infringement of copyright. It says that, copyright in a work shall be deemed to be infringed
when a person, without a license granted by the owner of the copyright or the Registrar of
Copyrights under this Act or in contravention of the conditions of a license so granted or of
any

condition

imposed

by

competent

authority

under

this

Act-

(i) Does anything, the exclusive right to do which is by this Act conferred upon the owner of
the copyright, or
9

(ii) Permits for profit any place to be used for the communication of the work to the public
where such communication constitutes an infringement of the copyright in the work, unless
he was not aware and had no reasonable ground for believing that such communication to the
public would be an infringement of copyright.
(g) The Copyright Act specifically exempts certain acts from the purview of copyright
infringement. Thus, the making of copies or adaptation of a computer programme by the
lawful possessor of a copy of such computer programme from such copy in order to utilize
the computer programme for the purpose for which it was supplied or to make back-up
copies purely as a temporary protection against loss, destruction, or damage in order only to
utilize the computer programme for the purpose for which it was supplied, would not be
copyright infringement.
Similarly, the doing of any act necessary to obtain information essential for operating interoperability of an independently created computer programme with other programmed by a
lawful possessor of a computer programme is not a copyright violation if such information is
not otherwise readily available. Further, there will not be any copyright violation in the
observation, study or test of functioning of the computer programme in order to determine
the ideas and principles, which underline any elements of the programme while performing
such acts necessary for the functions for which the computer programme was supplied. The
Act also makes it clear that the making of copies or adaptation of the computer programme
from a personally legally obtained copy for non-commercial personal use will not amount to
copyright violation.
(h) If a person knowingly makes use on a computer of an infringing copy of a computer
programme, he shall be held liable for punishment of imprisonment for a term which shall
not be less than seven days but which may extend to three years and with fine which shall not
be less than fifty thousand rupees but which may extend to two lakh rupees. However, if the
computer programme has not been used for gain or in the course of trade or business, the
court may, for adequate and special reasons to be mentioned in the judgment, not impose any
sentence of imprisonment and may impose a fine which may extend to fifty thousand rupees.
It must be noted that copyright can be obtained in a computer programme under the
10

provisions of the Copyright Act, 1957. Hence, a computer programme cannot be copied,
circulated, published or used without the permission of the copyright owner. If it is illegally
or improperly used, the traditional copyright infringement theories can be safely and legally
invoked. Further, if the medium of Internet is used to advance that purpose, invoking the
provisions of the Copyright Act, 1957 and supplementing them with the stringent provisions
of the Information Technology Act, 2000 can prevent the same.
(i) Section 63 of the Copyright Act provides the punishment for offence of copyright
infringement. Any person who knowingly infringes or abets the infringement of the copyright
in a work or any other right conferred by the Act is punishable with imprisonment for a term
which shall not be less than six months but which may extend to three years and fine which
shall not be less than Rs. 50,000 but may extend to 2 lacs. On second and subsequent
conviction imprisonment is for a term not less than one year but which may extend to three
years and fine which will not be less than one lac but may extend to 2 lacs. Punishment may
be reduced if infringements are not made for commercial gain. As per Section 63 B ,
knowing use of infringing copy of a computer programme is punishable with imprisonment
for term not less than 7 days but may extend to three years and fine not less than Rs. 50,000
but which may extend to Rs. 2 lacs. Punishment may be reduced if infringements are not
made for profit or gain. Section 69 provides that if an offence is committed by a company
then every person who at the time offence was committed was in charge of and responsible
for conduct of business of company shall be deemed guilty of such offence and liable for
punishment unless if he proves offence was committed without his knowledge or that he
exercised due diligence to prevent commission of such offence.6
(2) Information Technology Act, 2000 and on-line copyright issues:
The following provisions of the Information Technology Act, 2000 are relevant to understand
the relationship between copyright protection and information technology:
(a) Section 1(2) read with Section 75 of the Act provides for extra-territorial application of
the provisions of the Act. Thus, if a person (including a foreign national) violates the

6 J.N Bagga v All India Reporter ltd, AIR 1969 Bom 02.
11

copyright of a person by means of computer, computer system or computer network located

in India, he would be liable under the provisions of the Act.
(b) Under Chapter IX penalties and adjudication, the Section 43 of the act provides for
penalties for damage to computer, computer system, etc. If any person without permission of
the owner or any other person who is in charge of a computer, computer system or computer
network accesses or secures access to such computer, computer system or computer network
or downloads, copies or extracts any data, computer data base or information from such
computer, computer system or computer network including information or data held or stored
in any removable storage medium, he shall be liable to pay damages by way of compensation
not exceeding one crore rupees to the person so affected. Thus, a person violating the
copyright of another by downloading or copying the same will have to pay exemplary
damages up to the tune of rupees one crore which is deterrent enough to prevent copyright
violation.
(c) Section 66 of the act prescribes punishment for computer related offences. Under it, if any
person dishonestly or fraudulently does any act referred to in Section 43, then he shall be
punishable with imprisonment for a term which may extend to three years or with fine which
may extend to five lakh rupees or with both.
(d) Section 47 Factors to be taken into account by the adjudicating officer.
While adjudging the quantum of compensation, the adjudicating officer shall have to
consider the following factors:
(i) The amount of gain or unfair advantage, wherever quantifiable, made as the result of the
default;
(ii) The amount of loss caused to any person as a result of the default;
(iii) The repetitive nature of the default.
Thus, if the copyright is violated intentionally and for earning profit, the quantum of damages
will be more as compared to innocent infringement.

12

(e) A network service provider (ISP) will not be liable under this Act, rules or regulations
made there under for any third party information or data made available by him if he proves
that the offence or contravention was committed without his knowledge or that he had
exercised all due diligence to prevent the commission of such offence or contravention. The
network service provider under Section 79 means an intermediary and third party information
means any information dealt with by a network service provider in his capacity as an
intermediary.
(f) The provisions of this Act shall have overriding effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force.7
Besides the above, the Copyright Act also provides several provisions which specifically
govern online piracy, they have been mentioned below
Under the act fair use provisions have been extended to the digital environment. Any
transient and incidental storage of work through the process of caching has been provided
as an exception as per international practice. But any intentional storing of such work and
reproduction and distribution of such work is an infringement under Section 51 of the act,
attracting civil and criminal liabilities. The exceptions have been increased to include
reproduction and distribution for educational purposes and research purposes as are available
in digital form or on internet.
The unauthorized use of copyright work over the Internet leads to suspension of the service
providers activity. The clause (c) of Section 52 provides for exception for transient and
incidental storage of works, also provides for Internet service providers liability. If any such
provider facilitates access to information which may be subject to copyright, then on
receiving a written complaint from the copyright owner, he shall refrain from providing
access for the period of 21 days or until courts order. If no such order if received within these
21 days, then he can continue the access to information.
Section 53, dealing with importation of infringing copies, has been substituted with a new
section providing detailed border measures to strengthen enforcement of rights by making
7 http://www.legalserviceindia.com/article/l195-Copyright-Law-in-India.html (visited on 10th February,
2016).
13

provision to control import of infringing copies by the Customs Department, disposal of

infringing copies and presumption of authorship under civil remedies.8
In order to protect technological measures employed by authors to protect their rights,
Section 65A has been introduced by copyright Amendment Act 2012 which provides that if
any person circumvents such technological method with intention to infringing rights, he
shall be punished with imprisonment which may extend to two years and shall also be liable
to fine. There are certain exclusions in this Section such as conducting lawful investigation,
security check with authorization from owner, operator, for encryption research using lawful
copy, for identification or surveillance of a user, and for acts done to protect national security.
Section 65B introduced by Copyright amendment Act 2012 further provides that any person
who knowingly removes or alters any rights management information without authority or
distributes, imports for distribution, broadcasts or communicates to public without authority
copies of any work or performance knowing that electronic rights management information
has been removed or altered without authority shall be punishable with imprisonment which
may extend to two years and shall also be liable to fine. Civil remedies are also available
incase rights management information has been tampered with. These provisions are of
immense value to electronic publishing industry, gaming industry where authors are using
DRMs to protect reverse engineering or circumvention of technological measures they opt to
protect their copyrights from infringement. Some known techniques in use are namely,
encryption, electronic signature, or digital watermarking or pay per view system, electronic
software distribution.9
The protection of technological measures and rights management information were
introduced in WCT and WPPT as effective measures to prevent infringement of copyright in
digital environment. The introduction of Sections 65A and 65B is expected to help the film,
music and publishing industry in fighting piracy.10

8 Supra Note 4.
9 http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html (visited on 10th February,
2016).
14

It is interesting to note that with respect to jurisdiction, the laws are broader in connotation.
Though the Civil Procedure Code suggests that the suit is to be instituted in a district court
having jurisdiction, Section 62 of the Copyright Act makes available an additional forum of
jurisdiction to the aggrieved party. This is to ensure that the statutory rights of the copyright
holder are protected. Thus, the plaintiff can institute a suit where he actually and voluntarily
resides or carries out business or personally works for gain and as a result the wrong doer is
required to submit to the choice of court of the plaintiff.11

Online Piracy Legislations in other Nations

United States of America
The United States of America has extended its copyright law and enacted the Digital Millennium
Copyright Act (DMCA) which came into force in 1998. The Act contains six exceptions to
infringement including educational research, encryption research, protection of minors, reverse
engineering, privacy of individuals and security testing. The DCMA added Section 512
specifically to the Copyright Act which brought forth the limitation of liability on the service
providers in case of online copyright infringement and assigned rules in case of non-profit
educational institutions.
It is based on the concept of safe harbour which protects the rights of ISPs, inter alia, cases of
third party violation. A few sections under the Act have faced criticism for their failure to deal
with relevant issues that are meant to curb online piracy. With the rapid growth of technology, it
is imperative that laws keep pace with changing needs. Recently, to safeguard the interests of
copyright holders, a bill, namely, the Stop Online Piracy Act (SOPA) was brought to the table. It
aims at eliminating all such foreign websites which encourage illegal downloading and
10 Supra Note 4.
11 Supra Note 3.
15

infringement of copyrighted material. It also gives a Judge the power to rule on matters
pertaining to legitimacy of a website and issue a court order to block the same if required.
Representative Lamar Smith, who had introduced the SOPA Bill claims that the intent behind
this legislation is to prevent people indulging in piracy from generating profits and harnessing
the interest of an industry that contributes to almost 60% of US exports, rather than curbing the
use of Internet as a form of communication.12
The opponents of the Act have pointed out certain flaws that might be detrimental. SOPA targets
only the website and not web users. In case of any illegitimacy, a website can be struck down by
a court order, with no opportunity being provided to the website, like in the case of gradual
response. Furthermore, the ISPs are required to create a system in which one can easily identify
any such activity that occurs and what is to be noted is that this system will differ for all
networks.
Lastly, it can be contended that in the course of identifying activity that is unusual there might be
deep packet inspection which might conflict with users right to privacy. By 2010 it was brought
to public attention and a conference was held in the USA constituting law professors and
organisations who expressed their concern with regard to this agreement and requested
President Obama to put on hold any further discussions on it.13
Spain
The exigent need for a law in place does not seem like a surprise as statistics show that the
creative economy is being doomed by illegal downloads. Numbers suggest that 97.8% of all
music downloads and 77% of movie downloads were illegal in the first half of 2010 (ref. 10).
The newly enacted Sinde Law aims to eliminate such illegal activity. Like in United
Kingdom, the governmental body shall have the discretion to bring down any website that
permits such transactions and also gives the right holders the power to sue for loss incurred by
them. The target is to complete the process within a span of 10 days in order to ensure that there
is decline in the rate of online piracy. There was a lot of opposition by the owners of websites
and other companies that were against it, but it has stood the test of time. It is commendable that
12 Ross Drath, Hotfile, megaupload, and the future of copyright on the Internet: What can cyberlockers tell us
about DMCA reform?, John Marshall Review of Intellectual Property Law.

13 http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta (visited on 11th

February, 2016).

16

they have one of the toughest laws in place especially after having been on top of the countries
listed for Internet piracy.14
France
The French system of the graduated response was an innovative way of tackling this issue. The
law was revised within few days of coming into force, bringing in some changes with relation to
the functioning of the administrative authority.
The scheme was that of a three-strike one, wherein the law gives the offender the opportunity to
rectify the error. This mechanism also requires the cooperation of the ISPs because they are in a
position to provide information pertaining to the warning given to the offenders. The law ensures
that sworn surveyors of collecting societies and other legal bodies have the power to make
referrals in case of any infringement that arises with respect to the members of their associations
respectively. These referrals were made to HADOPI, the administrative body responsible for
the proper functioning of the system. Although it is a very favourable law to the copyright
holders, there have been protests from Internet users and net activists from the very beginning. It
was felt that the law restricted the access of Internet to individuals who benefitted from it and
also that it curtailed freedom of speech and expression also arises. Inter alia, the French
Constitutional Bench also questioned the authority of the administrative body to suspend Internet
access when the courts were well within their ambit to do so and also when dealing with the
point of infringement, it would be difficult to identify the offender as there could be a conflict
between the subscriber of the Internet connection and the actual user. This goes against the
French constitutional principle of presumption of innocence.15

Measures undertaken to curb online piracy in India

Although online piracy has been on a rise in India, but it does not mean that measures to curb it
have not been taken. Below mentioned are several measures introduced to control the situation,
which were taken either independently or through the help of other nations.

14 http://www.bbc.com/news/technology-16391727 (visited on 11th February, 2016).

15 http://www.worldipreview.com/news/france-relaxes-three-strike-piracy-scheme (visited on 11th February,
2016).

17

The Special 301 Report released by the Unites States of America for the year 2013 shows Indias
continued presence on the priority watch list. The report tracks the progress that India has made
in the last one year with specific reference to protection and enforcement of IPRs and suggests
mechanisms that can be adopted. Indias enactment of copyright amendments and publication of
draft rules for comments and implementation of the Madrid Protocol and a draft National
Intellectual Property Strategy has been appreciated, however the need to have an effective
enforcement mechanism has been stressed upon. Further, it has been suggested that India make
additional legislative changes in order to ensure that content-based industries can effectively
combat physical and online piracy and develop new models for the delivery of content and as
part of this reform, India should enact anti-camcording legislation and provide further protection
against online copyright piracy, signal theft, and circumvention of technological protection
measures.16
India has acted in furtherance of the WIPO Copyright Treaty (WCT) and the WIPO
Performances and Phonograms Treaty (WPPT) by incorporating provisions on Obligations
concerning Technological Measures (Article 11 of the WCT and Article 18 of the WPPT) and
Rights Management Information (Article 12 of the WCT and Article 19 of the WPPT) in the
Copyright Act (Amendment), 2012. The intention of the legislature is to curb the rampant
piracy practices prevalent in the country and also provide copyright owners with technological
measures that are an effective means of enforcing their rights in the digital age.17
The Kerala Anti-piracy Cell is a commendable initiative by the State Government where the Cell
functions under the states CBCID ( Crime Branch Crime Investigation Department) as a central
unit to coordinate collection of intelligence, creation of data bank, coordination of investigation
and direct investigation of crucial crimes to trace out their origin and also web distribution. The
object was to curb the menace of piracy in the Malayalam film industry which was incurring
heavy losses owing to tax evasion and royalties. The Cell has been successful in detecting 77
cases throughout the state as on date. They have laid down certain warnings in public interest for
16 http://www.ustr.gov/sites/ default/files/05012013%202013%20Special%20301%20Report.pdf (visited on 11th
February, 2016).

17 Ahuja V K, Law of Copyrights and Neighboring Rights: National and International Perspectives, Lexis Nexis
Butterworths, India, 2007.

18

the public at large, Internet subscribers, cable TV operators, mobile shop owners and CD/DVD
distributors across the state of Kerala.18 Such an anti-piracy cell can serve as a model for other
states of the nation to curb the issue of online piracy.
Likewise, the United States Business Council launched the Bollywood-Hollywood Initiative
(the worlds largest film industries in terms of volume and revenue respectively) with the
Federation of Indian Chambers of Commerce and Industry (FICCI). Their initiative, in the form
of a ground-breaking survey, determined the true cost of piracy and counterfeiting to the Indian
Entertainment Industry; a push to ensure Indias adoption of Optical Disc Legislation to combat
piracy; a campaign to raise public awareness of the detrimental effects of piracy on India; and a
drive to US-India governmental cooperation in combating international, cross-border piracy particularly of Indian films in the US and other countries as well as US films in India.19
The Government approved a scheme to implement an anti-piracy initiative in the audio-visual
sector under 12th Five Year Plan and the Ministry of Information and Broadcasting has an outlay
of 2 crores for the Plan period 2012-17. Though the FICCI-KPMG shows that the figures of
piracy have declined in comparison to 2011, the piracy markets still account for 600-700 million
unit sales of DVDs each year and one of major factors is the increased competition within the
sector. Some of the activities planned by the Government under the Plan are as follows:
(a) Campaign against piracy through audio-visual, Internet and print media and a dedicated
web portal;
(b) Training programmes and workshops to sensitize police, judicial, administrative officials,
multiplex and cinema hall owners about the Copyright Act;
(c) Research on effects of piracy and develop public-private strategies to combat it; and
(d) Inclusion of anti-piracy awareness material in the curriculum of the schools and colleges,
road shows/street plays/documentaries for creating awareness.20

Suggested Measures to curb online piracy in India

18 http://keralapolice.org/ newsite/anti-piracy-cell.html (visited on 11th February, 2016).

19 http://www.usibc.com/advocacy/initiatives/piracy (visited on 11th February, 2016).
20 http://pib.nic.in/newsite/erelease.aspx?relid=89529 (visited on 11th February, 2016).
19

1) Implementation of WCT and WPPT - One of the first and foremost steps is to act in
furtherance of the Internet Treaties that are already in force. Once other nations adopt the
code set down and incorporate it in their national legislations, there will be considerable
control in the rate of infringement. This will have a dual effect protection of intellectual
property and development of e-commerce. WIPO like it did in the past should to offer
support to countries that wish to embrace the provisions of the said treaties. The WIPO
Internet Treaties (WIPO Copyright Treaty, WCT and WIPO Performances and
Phonograms Treaty, WPPT) are designed to update and supplement the existing
international treaties on copyright and related rights, namely, the Berne Convention and
the Rome Convention. They respond to the challenges posed by the digital technologies
and, in particular, the dissemination of protected material over the global networks that
make up the Internet. The contents of the Internet Treaties can be divided into three parts:
(1) incorporation of certain provisions of the TRIPS Agreement not previously included
explicitly in WIPO treaties
(2) updates not specific to digital technologies; and
(3) provisions that specifically address the impact of digital technologies.
2) Role of ISPs - The current situation will only change if the access providers themselves
become more active in policing their clients. This would be the case if the ISPs are
themselves more directly benefited from value or content added services. Many of the
laws that exist in the countries mentioned impose responsibility on the ISPs to keep a tab
on such infringements. It might seem impossible for the service provider to filter
information but the only way out is to devise a system in which violation of specific
standards laid down will be brought to the attention of the provider who will in turn take
necessary action. Uniform Dispute Resolution Policy (UDRP) set up by ICANN is an
international dispute resolution body to resolve issues pertaining to domain name
registrations. Since it is in the form of web contracts, it cannot be duplicated and only one
body can adjudicate matters relevant to this. Similarly, the service providers can play a
pivotal role between Internet users and an enforcement body.21

21 Branislav Hazucha, Enablement of copyright infringement: A role of social norms in the regulation of dual-use
technologies, Intellectual Property Law & Policy Journal, 24 (2009) 25-96 at 49.

20

3) Online Licensing - For legal protection to remain meaningful, right holders must be able
to detect and stop the dissemination of unauthorised digital copies. And for e-commerce
to develop to its full potential, workable systems of online licensing must evolve which
inspire confidence in consumers. The answer to these challenges to a great extent will lie
in the technology itself.
As much as this seems farfetched, the practical usage of this might be a solution to the
on-going piracy rage. What is to be noted is that licensing does not necessarily imply a
pay to use policy and is required to be interpreted more broadly.22
4) Internationalization of Rights - At the level of the judiciary, the courts are required to
strike a balance between the interests of right holders and users while considering the
governance structure bias. The courts can do so by interpreting copyright law in favour of
the weaker and disadvantaged party in the policy making process. The reasoning behind
this would be that such changes will result in internationalization of individual copyright
norms without the need to impose severe legal sanctions. This will in turn ensure higher
efficiency than many national copyright laws have at present. There will be jurisdictional
barriers, but that also can be set aside if the courts of law choose to rule in a certain
pattern that enables precedence and sets a standard that can be followed.
5) Incorporating laws in force in other nations In India currently there is few and far in
between legislations which specifically cover online piracy. Most legislations deal with
online piracy indirectly, as evidenced by the several provisions under Indian Copyright
Act, 1957. These legislations have not proved to be totally effective, so to improve the
situation, inspiration can be sought from legislations in force in other nations. One of the
most influential being the laws in force in Spain, the nation follows a comparatively strict
code of law under it Sinde Law, which gives governmental bodies discretion to take
down websites which violate copyright, moreover there is also a mandate to solve the
cases within a span of 10 days, which makes the law highly effective. The Stop Online
Piracy Act (SOPA), would also have brought in laws similar to Sinde Law, but because it
gave too much discretion to administrative authorities, thus it was not allowed to be
implemented. In France too, powers similar to Spain has been given under its graduated
22 Lessig Lawrence, Free Culture: The Nature and Future of Creativity, The Penguin Press, US, 2004, pp.283-284.
21

response, which gives preference to administrative authorities over courts to address the
issue of online piracy independently.
Keeping in view the above, Indian administrative bodies could also be given more power
to handle online piracy independently to ensure that issues are solved quicker, without
requiring unnecessary permission from other authorities. Also, a unit within the police
force too can be constituted as is already in operation in Kerala.

Conclusion
It is significant to take note of the laws that various countries have enacted and enforced in order
to curb or at least regulate online piracy and related activities. Further, though the Copyright Act,
1957 and Information Technology Act, 2000 in India deal with certain facets of piracy, they do
not conclusively deal with this menace. It is the need of the hour for India to draft and enforce
laws which will address the current problem and also take into consideration the technological
advancements that are likely to give rise to more of such complex issues. Formulating such a law
in the near future will be a welcome change and will definitely give India the IP advantage.
Further, to meet the ever- increasing challenges, as posed by the changed circumstances and
22

latest technology, the existing law can be so interpreted that all facets of copyright are adequately
covered. This can be achieved by applying the purposive interpretation technique, which
requires the existing law to be interpreted in such a manner as justice is done in the fact and
circumstances of the case. Alternatively, existing laws should be amended as per the
requirements of the situation. The existing law can also be supplemented with newer ones,
specifically touching and dealing with the contemporary issues and problems.
It can be inferred from the limited scope of the copyright law in India that there is no conclusive
mechanism that has been adopted to curb online infringement of content except for a few
noteworthy initiatives and amendments to limited provisions under the Copyright Act. The law is
inclined towards the growth of e-commerce rather than the protection of works created by
individuals. This is a telling fact that reflects the need to address this growing menace by
analysing the legislative enactments of other countries, and the lacunae persisting in those laws
and thereby successfully devising an appropriate policy framework. This framework should take
into consideration the ever-increasing broadband network connections and also the nature of
infringements. Redesigning laws in tune with present day technology and assessing compatibility
among nations in this regard is one of the best ways to deal with the on-going copyright crisis.

Bibliography
1. Ahuja V K, Law of Copyrights and Neighboring Rights: National and International
Perspectives, Lexis Nexis Butterworths, India, 2007.
2. Branislav Hazucha, Enablement of copyright infringement: A role of social norms in the
regulation of dual-use technologies, Intellectual Property Law & Policy Journal, 2009.
3. J.N Bagga v All India Reporter ltd AIR 1969 Bom 02.
4. Lessig Lawrence, Free Culture: The Nature and Future of Creativity, The Penguin Press,
US, 2004.
23

5. Nikita Hemmige, Piracy in the Internet Age Journal of Intellectual Property Rights, Vol
18, Sept 2013.
6. Ross Drath, Hotfile, megaupload, and the future of copyright on the Internet: What can
cyberlockers tell us about DMCA reform?, John Marshall Review of Intellectual Property
Law
7. http://www.deccanherald.com/content/41541/india-major-online-film-piracy.html
8. http://portal.unesco.org/culture/en/ev.phpURL_ID=39412&URL_DO=DO_TOPIC&URL
_SECTION=201.html
9. http://www.internetsociety.org/sites/default/files/07_1_0.pdf
10. http://www.ip-watch.org/2013/01/22/development-in-indian-ip-law-the-copyrightamendment-act-2012/
11. http://www.legalserviceindia.com/article/l195-Copyright-Law-in-India.html
12. http://www.karnikaseth.com/protecting-copyright-in-the-cyberspace.html
13. http://www.wcl.american.edu/pijip/go/blog-post/over-75-law-profs-call-for-halt-of-acta
14. http://www.bbc.com/news/technology-16391727
15. http://www.worldipreview.com/news/france-relaxes-three-strike-piracy-scheme
16. http://www.ustr.gov/sites/default/files/05012013%202013%20Special
%20301%20Report.pdf
17. http://keralapolice.org/ newsite/anti-piracy-cell.html
18. http://www.usibc.com/advocacy/initiatives/piracy
19. http://pib.nic.in/newsite/erelease.aspx?relid=89529

24