Aliza Khatoon*
The Cinematograph Amendment Act 2023 aims to combat piracy by prohibiting unauthorized recording and exhibition of films, receiving praise for its efforts. However, it falls short in addressing the complexities of online piracy, leaving loopholes such as mirroring servers and jurisdictional challenges unresolved. To tackle these issues effectively, comprehensive legislative amendments are needed, encompassing judicial, legislative, and international reforms. While the 2023 Act is a step in the right direction, it does not serve as a complete solution to the ongoing problem of piracy.
Introduction
Piracy is a significant plague that pervades the creative industry. The Delhi High Court in Universal City Studios LLC v. Dotmovies Baby recognized that piracy and unauthorized reproduction of copyrighted content is a pressing concern internationally . In ubiquity of easy and affordable access to the internet across the globe, copyright owners are compelled to pursue measures in different jurisdictions seeking injunctive relief against rogue websites that enable the access to content in an unauthorized manner.
Owing to piracy’s ever-evolving and dynamic nature it remains undefined in the Indian legal context. For the purpose of the Cinematograph Amendment Bill 2019, the Standing Committee on Information Technology (2019-20) Report connotes piracy as the unauthorized duplication of films. Reports suggest that the Indian entertainment industry loses up to USD 2.8 billion of revenue annually due to digital piracy. Further, according to the Ernst and Young Report, it is estimated that the Indian film industry loses around 60,000 jobs annually as a result of film piracy. Thereby, with the vision to curb the menace of ‘piracy’ which is causing losses of Rs. 20,000 crores to the film industry and to further promote the film industry the Cinematograph (Amendment) Act 2023 was passed by the Parliament.
The Cinematograph (Amendment) Act 2023, (‘2023 Act’) inserts new provisions Section 6AA, 6AB to the principal act, that prohibits the unauthorized recording and unauthorized exhibition of films. Along with sub-sections 7(1A) and 7(1B) that mandate punishment for contravening the aforementioned sections. The article acknowledges that the amended provisions are a welcomed step to curb the menace of piracy. However, it expresses reservations about considering the amendment as a panacea to the challenge of online/digital piracy. The enactment is substantially enforced against the unauthorized cam cording and transmission thereby limiting the scope of the article to combat online piracy. Lastly, it suggests an approach to enact a comprehensive code for resolving the challenge of online piracy.
Welcomed Provisions Against the Menace of Piracy
The Cinematograph Amendment Act 2023 is in consonance with the prior draft bills and committee reports that consistently condemned and penalized piracy. The issue of piracy was examined by the Justice Mudgal Committee in 2013 wherein it recommended piracy to be construed as a substantive non-bailable offence. Similarly, the draft Cinematograph Amendment Bill 2019 prohibited unauthorized recording and penalized the offenders. In the same vein, Draft Cinematograph Amendment Bill 2021 proposed to criminalize the audiovisual recording that knowingly abets, attempts, or transmits a copy of a film device in a place without written permission of the author. The present amendment in pursuance of a similar objective provides a clear statutory construction in Section 6AA that prohibits persons use of any audio-visual recording device in a place licensed to exhibit film and with the intention (mens rea) to make, attempt, or abate transmission of infringing part or copy of the film. Moreover, it eliminates criticism of the 2021 draft that mentions “using any audiovisual recording device in a place” leaving ambiguity in understanding the place of prohibition; by explicitly mentioning “in a place licensed to exhibit films” for prohibiting recording. Furthermore, section 7(1A) provides severe punishment for contravention of Section 6AA and 6AB including a fine minimum of 3 lacs extended up to 5% of gross production along with imprisonment. The present amendment upholds the legislature’s documented anti-piracy spirit visible throughout the decade.
The enactment aligns with the standing committee 2019-20 recommendation and serves as an anti-cam cording legislation that provides an effective means to restrict piracy. Herein, Section 6AA specifies the prohibition of using audiovisual recording devices at a ‘place licensed to exhibit films’. The legislative intention behind the anti-cam cording provisions is curbing piracy at its place of origin and to provide a deterrent effect by levying heavy imposition of penalties and criminal liability on offenders. Similar anti-cam cording provisions are found in various jurisdictions.
For instance, The United States of America according to 18 U.S. Code Section 2319B penalized any person who, without the authorization of the copyright owner, knowingly uses an audiovisual recording device to make a copy of such work in a motion picture exhibition facility. Similarly, South Korea, The Copyright Act of 1957, Article 104-6 mandates that no person shall record cinematographic works protected by copyright at a movie theatre, etc…without consent of the holder of the author’s economic right. Therefore, through the amendment in India conforms with the international practice for the protection of copyright holders of cinematographic work.
It is to be noted that the amendment does not supersede the prevailing laws in force. Since, the amendment includes a non-obstante clause inserted in section 7(1B) that expressly permits the aggrieved person to take suitable remedies available for infringement under Section 51 Copyright Act or Section 66 IT Act 2000. Additionally, the act complements the prevailing laws by providing additional remedies against specific aspects of piracy such as prohibiting unauthorized recording of cinematographic film. Furthermore, the enactment does not introduce any explicit provision that determines the superseding nature of the amendment. Therefore, multiplicity of remedies available against the offenders
Amendment Not a Panacea to Piracy
The legislature, to overcome the multifaceted implications of piracy over employment and revenue generation in the film industry, has been enacting comprehensive changes in the cinematography laws. Online piracy is a prominent emerging threat to the film industry. The Standing Committee 2019-20 noted in the context of online piracy that two-thirds of the 350,000 downloads of a Bollywood movie on BitTorrent were from India. The judicial position over online piracy is substantiated by UTV Software Communication Ltd. v. 1337X.To, Delhi HC that upheld online piracy has had a very real and tangible impact on the film industry and rights of the owners. Further in Star India (P) Ltd. v. 7Movierulz.TC, Delhi HC iterated that rogue websites in order to make illegal gains make infringing copies and make them available for public consumption. Despite the identified challenges posed by online piracy, The Cinematograph Amendment Act 2023 does not take adequate measure to address the perils. The following focal issues substantiate this viewpoint.
(i) Lack of Comprehensive mechanisms
There are no specific comprehensive measures available against online piracy of cinematographic content. The amendment represents an anti-cam cording legislation against piracy. The inserted provisions mandate specific prohibitions on the use of audiovisual recording devices in place of licensed exhibition for intentional transmission of an infringed copy. The pre-existing copyright and cinematographic laws empower the copyright holder to approach the Court against infringement. The Copyright Act enables a general safeguard against copyright violation by virtue of Section 55 and Section 63 which prescribes civil remedies and imprisonment.
However, seeking interim relief has limited effectiveness from the copyright holder’s lens. The two aspects that undermine the efficacy of interim relief are: Firstly, the procedural delays in legal proceedings have a direct and causal connection to the plaintiff’s subsequent revenue loss. The time elapsed from the initial filing of the suit till the court hearing against infringing websites causes the proliferation of unauthorized content on the web and thereby diminishes the plaintiff’s financial gains. Secondly, the costs of pursuing litigation for smaller stakeholders often dissuade them from initiating a suit and eventually, they endure the impact of piracy. Additionally, the relief of injunction against violators blocks certain websites on the internet. However, due to technological advancement the infringed content is mirrored on proxy servers. The dissemination of copyrighted content, although hindered by blocking order, persists on the web.
To address the concern regarding procedural delays and proxy websites it is pertinent to consider the Delhi HC approach withheld in UTV Software Communication Ltd. and Ors vs 1337X. to and ors case. Delhi HC exercised power under Section 151 CPC and permitted the plaintiffs to implead the mirror/redirect/alphanumeric websites under Order I Rule 10 CPC. Thereafter, the court delegated power to the joint registrar to issue directions to ISP disabling the access to mirror/redirect/alphanumeric websites. This mechanism allows the plaintiff to seek relief from the joint registrar of court against identified mirroring websites that enable access to unauthorized content.
The Delhi HC approach resolves the plaintiff’s concern to secure timely remedies rather than initiating a fresh suit. Further it reduces the court’s burden from constant monitoring and adjudicating mirroring websites. Presently, such reliefs are granted at court’s discretion and are not statutorily incorporated in the Cinematograph Act. As a result, the benefits of obtaining such reliefs against infringing websites is limited to fewer jurisdictions. Therefore, there is a necessity of enacting comprehensive mechanisms to provide accessible and effective interim relief against online piracy across jurisdictions.
(ii) Emerging Avenues of Online Piracy
Technological advancement initiates emerging avenues of online piracy. The 2023 Act is not equipped to address these challenges. Such avenues are highlighted by the Delhi HC wherein it scrutinizes the concept of cyber locker in Universal City Studios v. Mixdrop Co case. The Court observed that cyber lockers are online data storage platforms that are purpose-built for hosting and disseminating copyright-infringing material. The pirated content is uploaded here and communicated with the public via referral websites. Similarly, the Court defined rogue websites in UTV Software Communication Ltd. v. 1337X.To, as those websites that primarily share infringed content. They either allow streaming of content or provide a searchable database with links to third-party websites that allows users to watch pirated releases/movies. There remains the prevailing threat of online piracy and constant litigation filed against such websites. Furthermore, the unidentified operators behind managing these websites are not apprehended thereby even after injunction orders mirrored servers are present. Despite the persisting lacunas, measures to curb the transmission of infringed content through these illicit means are not addressed in the 2023 Act.
(iii) Inadequate Preventive Measures
The 2023 Act mandates imprisonment and imposition of penalties for contravention of Section 6AA and 6AB. Moreover, it does not override pre-existing remedies available in the Copyright Act and IT Act 2000. This act permits judicial intervention to restrict the transmission of copyright content by the issuance of blocking orders against rogue websites, URLs, and IP addresses that host infringed content. Yet, the issue of extraterritorial jurisdiction is unaddressed wherein the source of the rogue website or cyber locker is not within the territorial jurisdiction of India. For instance, the relief of Dynamic Injunction based on the Singapore High Court’s 2018 decision in Disney Enterprises v. Ml Ltd. that upheld the blocking of mirror/redirect/alphanumeric websites that merely provide new means of accessing the same primary infringing website without filing fresh suit. Although blocking orders are granted against such website the internet remains vulnerable to their resurgence due to the lack of an IP protection regime in jurisdiction of their origin. Lastly granting John Doe Orders or Ashok Orders that implead the unidentified parties concerning infringing websites to the civil suit to grant a temporary injunction against transmission of copyright content. The court’s power provides interim relief to copyright holders by blocking websites yet the major drawback remains that apprehended offenders are not penalized. Therefore, the present remedies are insufficient to tackle the online piracy.
Solution to Online Piracy
The emerging online piracy challenges necessitate the formulation of comprehensive legislative guidelines to balance its imperatives. The guidelines can be developed on a three-pronged approach for addressing concerns raised by online piracy. Firstly, at the judicial level, reforms include establishing a separate Intellectual Property Division Bench similar to the Delhi High Court Intellectual Property Division that exclusively deals with intellectual property cases. Thereafter it would streamline and expedient the adjudication process.
Next, introducing innovative remedies against the menace of piracy. For instance, issuing ‘live blocking orders’ against of live sports matches. Live blocking orders were pioneered by the UK in the FAPL vs BT (EWHC 2017) case. It is directed to block access to streaming servers rather than websites. The list of Target Servers is created and “re-set” each match week during the sports match season. It only has effect for a short duration till the live premier of match footage is broadcast. Additionally, copyright holders can seek relief of ‘quia timet’ action for an injunction order against the potential infringement of forthcoming cinematographic work.
Second, at the legislative level, the enactment of the 2023 Act does not cater to countering online piracy. Therefore, it remains imperative to amend the Cinematograph Act to introduce a separate chapter dedicated to protection from online piracy. Codifying specific statutory provisions would harmonize and streamline remedies against infringing websites and expedient judicial procedure.
Next, a specialized police force unit in every state akin to the Maharashtra Intellectual Property Crime Unit (MIPCU) to combat infringement of intellectual property in general and infringement of copyright in specific. Vesting the police force with statutory power to investigate piracy cases and identify infringing websites would enhance enforcement against online piracy. Additionally, collaborating with the Internet Service Providers (‘ISPs’) and judicial bodies for setting up an institutional coordination mechanism to facilitate the enforcement of blocking orders and reporting the infringing websites.
Lastly, at the international level, India could lead the establishment of Asian counterparts of organizations such as Intellectual Property Crime Coordinated Coalition – (IPC) and Eurojust which assists complex cross-border operations and provides operational and technical support to law-enforcement agencies to effectively constrain IP infringement. Thereby, India could form an ‘Asia IP Crime Task Force’ through multi-jurisdiction cooperation and conduct transnational investigations to take down illegal networks facilitating the streaming of infringed content..
Conclusion
India safeguards intellectual property rights and holds an anti-piracy standpoint against infringed content. In pursuance of these ethos, the Cinematograph Act 2023 was enacted. It received acclaim from various stakeholders for acknowledging the implications of piracy and taking measures to curb its menace. In its present form amendment strikes piracy at the place of origin by introducing anti-cam cording legislation that proactively prohibits unauthorized recording and transmission. However, the 2023 Act does not resolve the plethora of challenges posed by online piracy. Online piracy emerged with technological progress causes revenue loss to the copyright holder. Further the 2023 Act does not address the concerns against mirroring servers, websites originating from a different jurisdiction, and cyber locker uploads of infringed content. In light of these inadequacies, there is a necessity to draft comprehensive legislative amendments that suggest reforms at judicial, legislative, and international levels to address the perils of online piracy. The 2023 Act is an appreciated attempt to curb the menace of piracy however it does not provide the required panacea to the unaddressed abyss of piracy.
*Aliza Khatoon is a second year law student at RGNUL
