Section 2(f) pf the Copyright Act,1957[1] defines Cinematograph Film as any visual recording or any audio recording which accompanies such visual recording, the means of recording the same is immaterial. Copyright Act being the primary legislation, apart from protecting the rights of the authors, also encompasses producers, filmmakers and other relevant operators[2]. We are dealing specifically with rights in context of pirated works.
To lay down the structure of the blog, it begins with addressing the issue of piracy in context of India to have a pragmatic view. Then, the new legislative Framework, Cinematograph Act, 2023 is analyzed specifically in context of piracy by comparing it to the earlier statute and pinpointing the fallacy in the proposed statute.
Background of piracy in india: specifying the extent
Copyright in Cinematograph Films is of complex nature given the multiplicity of rights, first and foremost, the copyright is owned by the producer, this is the established rule. Now, the distributors buy the theatrical rights from the producers and enter into arrangements with the theatre owners for display to the public. Another way is to sell the video rights to the parties engaged in cassettes making and then sold in the market, which is meant to be viewed privately[3]. Now, through the cable system, it includes cable network which is viewed by the individuals which are physically connected through cable wires fixed by the operators and secondly, through satellite channels, there is infinite transmission and received using dish antennas.
Piracy of Cinematograph Films is done in two ways; one is Video piracy[4] wherein when the commercial exploitation is done without due authorization from the rights owner. It occurs when the video rights with respect to the work is not sold to any third party, however, the video cassettes are available in the market for selling and borrowing or when video rights are sold to one party and video cassettes are made and sold by the other party. Second way is Cable Piracy[5], when a film is shown in a particular network, the prerequisite is to obtain permission from the owner, when it is done without authorization, it amounts to piracy. There are very rare instances of piracy for satellite channels.
Cinematograph films and cinematograph amendment act, 2023: extent of piracy covered
Comparing the provision of piracy to cinematograph act, 1952
On July 31st 2023, Lok Sabha passed the Cinematograph (Amendment) Bill, 2023 which provides for amendment to the Cinematograph Act, 1952.[6][7] One of the significant alterations made is with regard to the piracy based upon the quantum of loss to the Government Exchequer based on the Standing Committee Report, 2019[8]. The latest amendment remained the same in substance like defining the scope which includes “make or transmit, attempt to make or transmit and abet to make or transmit”. In the previous legal framework, to determine the liability, the “knowledge” and “copy” were the relevant factors which is now transformed to be based on Intention and Infringing Copy instead of the abovementioned terms respectively[9].
This implicitly recognizes more defenses than those explicitly specified under Section 52[10]. Additionally, punishment for the same is made stricter under Section 6AA and 6AB. It includes imprisonment ranging from three months to three years and fine of three lakhs with an add on of “5% of the audited gross production cost” which is significantly more than the punishment prescribed under Section 7(1) which provides for punishment up to three years and fine of one lakh which can be increased by twenty-five thousand in case of continuing offence[11].
Analysing the provision of piracy: online piracy being the grey area
There are several aspects of the proposed legislation which requires more deliberation. The grey areas are as follows:
- No comprehensive mechanism – It mainly targets the cam recording piracy and fail to accommodate online piracy of content. It prohibits the usage of audiovisual recording devices wherein licensed exhibition is allowed provided it is intentional copyright infringement. Another aspect which requires attention is Section 55 and 63[12] which deals with civil remedies and imprisonment, specifically grant of interim relief which is mainly due to procedural delays. Recently, in UTV Software Communication Limited & Ors. Vs. 1337X. to & Ors.[13], the Delhi High Court exercised power under Section 151 of CPC to seek relief from Joint Registrar instead of a long suit.
- Online piracy – The present amendment does not protect against online piracy which is prevalent in lieu of technological advancement. The Delhi High Court[14] analyzed the concept of cyber locker which deals with data storage which acts as a host and refer the other platforms for infringed material. There is a concept of rogue sites[15] as well which are primarily used for sharing content of infringing nature. It either allows for streaming content or direct to third party website that hosts such content. One of the impediments for the same is lack of means to determine operators, they remain non identified, therefore, even after intervention of the court, the servers work well.
- Preventive measures – There were remedies already available under the Copyright Act as well as the IT Act[16]. The latest act allows for blocking orders for such websites, IP addresses, URLs which contain infringed content and inhibit transmission of the same. However, the issue of extraterritorial jurisdiction remains unaddressed in the present regime which occurs in matters of cyber law.
Conclusion
To sum up, Copyright Law is an essential means to protect the rights of the owner of Intellectual Property, in this case, specifically, Cinematograph Films. On one hand, the legal framework has allowed the Film Industry to prosper by opening up opportunities to scale commercialization and enable legitimization, however, on the other hand, piracy is a looming issue which is persisting for long. The 1952 Act provides for protection of rights of the filmmakers, producers etc. and also inhibit piracy. Implementation and enforcement are the fronts wherein, the legislation is not able to redress the issue. For instance, Establishment of Intellectual Property Rights Cell and Cyber Cell are the institutions which plays a significant role in resolving copyright infringement issues[17].
Cinematograph Act, 2023 is a step in the right direction which requires a little more maneuvering. One of the primary issues is not recognizing online piracy which is prominent in the age of technological advancement. There is other bone of contentions as well like mirroring servers, Jurisdictional issue, cyber locker uploads etc. therefore, there is a requirement to introduce a comprehensive legal framework which at the judicial as well as legislative levels address the issue of online piracy.
[1] Copyright Act, 1957, No. 14, Acts of Parliament, 1957 (India).
[2] Rajnish Kumar Singh, Indian Approach on Copyright Protection for Cinematograph Films https://www.dehradunlawreview.com/wp-content/uploads/2020/12/Paper-3-INDIAN-APPROACH-ON.pdf (Last Visited Sept. 2, 2024, 6:07 PM).
[3] Ministry of Human Rights Development, Study on Copyright Piracy in India https://copyright.gov.in/documents/study%20on%20copyright%20piracy%20in%20india.pdf (Last Visited Sept. 5, 2024, 5:08 PM).
[4] Id. at 45.
[5] Id. at 46.
[6] Times of India, (Last Visited Sept. 4, 2024, 4:45 PM) https://timesofindia.indiatimes.com/videos/toi-original/lok-sabha-passes-cinematograph-amendment-bill-2023-to-curb-film-piracy-revamp-age-based-certification/videoshow/102277315.cms
[7] Cinematograph Act, 1952, No. 37, Acts of Parliament, 1952 (India).
[8] Ministry of Information and Broadcasting, (Last Visited Sept, 6, 2024, 6:34 PM) https://prsindia.org/files/bills_acts/bills_parliament/2019/SC%20Report_Cinematograph%20(A)%20Bill.pdf
[9] Lokesh Vyas, Cinematograph Amendment Act, 2023: Of Piracy and Penalties, SpicyIP, (Last Visited Sept. 7, 2024, 7:08 PM) https://spicyip.com/2023/08/cinematography-bill-2023-certification-censorship-and-public-consciousness.html
[10] Supra Note 1.
[11] PRSIndia, https://prsindia.org/billtrack/the-cinematograph-amendment-bill-2023 (Last Visited, Sept. 11, 2024, 4:56 PM).
[12] Supra Note 1.
[13] AIRONLINE 2019 DEL 773.
[14] Universal City Studios LLC and Others Vs. Mixdrop.co and Others CS(COMM) 663 of 2022.
[15] Supra Note 13.
[16] Information Technology Act, 2000, No. 21, Acts of Parliament, 2000 (India).
[17] Seema Surendra, Application of Copyright Law to Indian Film Industry, 3. Ind. J. Int. Res L., 1 (2018) https://ijirl.com/wp-content/uploads/2023/06/APPLICATION-OF-COPYRIGHT-LAW-TO-THE-INDIAN-FILM-INDUSTRY-AN-ANALYSIS.pdf
Author: Deepika Pathania, 4th Year student at Hidayatullah National Law University
