COPYRIGHT ENFORCEMENTAND PRIVACY IN INDIA
– Akhilesh Mishra,
LLM (2014-2015), Hidayatullah National Law University
“Copyright, is a bundle of rights, which grants protection to the unique expression of ideas. Ideas per se cannot be protected; it is the expression of ideas in a material medium that is the subject matter of copyright protection. Copyright is a negative right and the owner ofa copyright gets the right to prevent others fromcopying his work without his consent towards a commercial end. However, at the same time it gives to the author an exclusive right for the commercial exploitation of his work.”1 Copyright is an important part of the wider sphere of Intellectual Property Rights.
India is a powerhouse in the field of copyright because of its rich heritage culture, be it literary work such as books; cinematograph films or computer software.2 India has a large film industry and it is the largest producer of films in the world which are liked byboth national and international audience.3 Shakti Mallik, President of the Federation of Indian Publishers, said the Indian publishing industry was now ‘worth Rs.80 billion and it is growing by over 15 percent every year’. Indian software industry was calculated to be US $5.7 billion in the year 1999/2000 which is the best performing industry against the global competition.4
HISTORY OF COPYRIGHT LAW IN INDIA
India was a British colony for close to 150 years. Therefore, the first Indian Copyright Act, which is the Copyright Act of 1914, was influenced by the British copyright law. The first British copyright law was called the Statute of Anne in 1709. Need for a copyright law was felt because of the introduction of the printing press in Britain.5 Before that time, copying was considered as a difficult thing to do as it was expensive and time consuming.6 But with the advent of the printing press began the unregulated copying of books as a result of which the Statute of Anne came into force.7 The purpose of having a copyright law in the system was to give the author some rights with respect to his work for some period of time after which the work went to the public for free use, i.e., there was no need to take any license or permission.8 The statute’s full title was “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” 9
India got independent onAugust 15, 1947. India adopted the Copyright Act of 1957 and the reason for adopting it was that “it was necessary to enact an independent self-contained law on the subject of copyright in the light of growing public consciousness of the rights and obligations of authors and in the light of experience gained in the working of the existing law during the last forty years. New and advanced means of communications like broadcasting, litho-photography, etc., also called for certain amendments in the existing law. Adequate provision has also to be made for fulfillment of internationalobligations in the field of copyright which India might accept.Acomplete revision of law of copyright, therefore, seemed inevitable, and the Bill attempts such a revision.”10 The 1957 Copyright Act was further amended in 1983 and 1984 in order to comply with the Berne Convention and the Universal Copyright Convention which provided higher and more efficient levels of copyright protection.11 The 1983 amendment was criticized by the international community mainly on the grounds of increasing piracy in India.12 As a result, the Act was amended again in 1984 which had provisions (better than before) for discouraging piracy and deterring pirates.
The evolution of international standards for the enforcement of copyright and related rights has been dramatic in recent years, and this evolution has been driven principally by two factors.
The first is the advance of technological means for the creation and use (both authorized and unauthorized) of protected material, including, the recent advent of digital technology which makes it possible to transmit and make perfect copies of any information existing in digital form, including works and productions protected by copyright and related rights. The second factor is the increasing economic importance of goods and services protected by intellectual property rights in the realm of international trade; simply put, trade in products embodying protected intellectual property rights is now a booming worldwide business.
PROVISIONS ON ENFORCEMENT OF RIGHTS IN INTERNATIONAL COPYRIGHT AND RELATED RIGHTS CONVENTIONS
While the international copyright and related rights conventions administered by WIPO do not contain extensive provisions dealing with enforcement of rights, the obligation of States to provide adequate means for enforcement of rights is clearly present in these conventions. The Berne Convention contains two specific provisions on the enforcement of rights, on the one hand Article 16(1) and (2), which provides that infringing copies of a work are subject to seizure in any country of the Berne Union where the work enjoys protection even when the copies come from a country where the work is not or no longer protected, and on the other hand Article 13(3), which provides for seizure of copies of certain recordings of musical works imported without permission of the author or other owner of copyright in the country of importation.
The Berne, Rome and Phonograms Conventions also contain provisions indirectly requiring appropriate enforcement measures in any country party to the conventions. For example, Article 36(1) of the Berne Convention provides that “Any country party to this Convention undertakes to adopt, in accordance with its constitution, the measures necessaryto ensure the application ofthis Convention”; paragraph (2) ofthe sameArticle provides that “It is understood that, at the time a country becomes bound by this Convention, it will be in a position under its domestic law to give effect to the provisions of this Convention.” Similar provisions are found in Article 26(1) and (2) of the Rome Convention. Article 2 of the Phonograms Convention obligates each Contracting State to protect producers of phonograms against the making of duplicates (copies) without the consent of the producers and against the importation and distribution of such duplicates; Article 3 of the Convention leaves the implementation to the Contracting States, which may choose one or more of the following: copyright or other specific (“related” or “neighboring”) rights, unfair competition or penal sanctions.
CIVILAND CRIMINAL ENFORCEMENT UNDER THE COPYRIGHT ACT
The Copyright Act provides for both civil and criminal remedies for infringement. Section 55 provides for civil remedies and declares that, upon infringement, “the owner of the copyright shall be entitled to all such remedies by way ofinjunction, damages, and accounts and otherwise as are or may be conferred by law for the infringement of a right.” Civil suits are instituted at the appropriate district court having jurisdiction – including where the plaintiff resides.
Similarly, Chapter XIII (Sections 63-70) provides a range of criminal penalties for infringing copyrights which are typically punishable with terms of imprisonment that “may extend up to three years” along with a fine. These offences would be taken cognizance of and tried at the court of the Metropolitan Magistrate or Judicial Magistrate of the First class (Sec 70), in the same manner as all cognizable offences in India i.e. by following the procedures under the Code of Criminal Procedure, 1973. Section 64 of the Copyright Act dealing with police powers was amended in 1984 to give plenary powers to police officers, of the rank of a sub- inspector and above, to seize without warrant all infringing copies of works “if he is satisfied” that an offence ofinfringement under section 63, “has been, is being, or is likelyto be, committed”. Prior to amendment, this power could only be exercised by a police officer when the matter had already been taken cognizance of by a Magistrate. Prima facie, this is a very sweeping power since its exercise is unsupervised by the judiciary and only depends on the “satisfaction” of a police officer. To put matters in perspective, under the Income Tax Act, dealing with the far more sensitive issue of tax evasion, a search and seizure can only be conducted based on information already in the possession of the investigating authority.13
In Girish Gandhi and Etc. v Union of India14, a case before the Rajasthan High Court, the petitioner, who ran a video cassette rental business, challenged the constitutional validity of the wide powers granted to police officers under this section. Citing various instances of violations of privacy that the abuse of the section could occasion, the petitioner contended:
“The provisions of Section 64 itself give arbitrary and naked powers without any guidelines to the police officer to seize any material from the shop and thus, drag the video owners to the litigation. He has given instances in the petition that police officer usually demands for video cassettes to be given to them free of charge for viewing it at their homes and in case, on any reason either the video cassette is not available or it is not given free of charge, there is likelihood that police officer shall misuse his powers and tryto seize the materialfor prosecution under the various provisions of the Act”
Although the High Court dismissed the petition on the grounds that it did not disclose any actual injury to the petitioner, it upheld the constitutionality of the section by reading the word “satisfaction” to mean that the “police officer will not act until and unless he has got some type of information on which information he is satisfied and his satisfaction shall be objective.”
is also not arbitrary for the reason that guidelines and safeguards are provided under Sections 51, 52 and 52Aand Section 64(2) of the Copyright Act, coupled with the fact that it is expected of the police officer that he would not act arbitrarily and his satisfaction shall always based on some material or knowledge and he shall only proceed for action under Section 64 in a bona fide manner and not for making a roving inquiry.
Despite the pious hopes expressed in this decision, they do not appear to have influenced the actual behavior of police officers. In May 2011, the DelhiHigh Court struck down a notification issued by the Commissioner of Police which had instructed all subordinate functionaries of the police to “attend to and provide assistance” whenever any complaint “in respect of violation of the provisions of Copyright Act, 1957” was received from three companies: Super Cassettes Industries Limited, Phonographic Performance Ltd and Indian Performance Right Society Ltd. This virtually amounted to the commandeering of the criminal enforcement system by a few private owners for their own private interests. In their suit, the petitioner – Event and Entertainment Management Association – had contended that the police machinery “cannot be made to act at the behest of certain privileged copyright owners”. Striking the notification down, as unconstitutional, Justice Muralidhar of the Delhi High Court held:
“To the extent the impugned circular privileges the complaints from SCILover other complaints from owners of copyright it is unsustainable in law for the simple reason that there has to be equal protection of the law in terms of Article 14 of the Constitution. The police are not expected to act differently depending on who the complainant is. All complaints under the Act require the same seriousness of response and the promptitude with which the police will take action, Likewise, the caution that the Police is required to exercise by making a preliminary inquiry and satisfying itself that prima facie there is an infringement of copyright will be no di fferent as regards the compl ai nts or i nfor mati on recei ved under the Act.” 15
This decision significantly tempers the severity of possible searches and seizures conducted by the police under Copyright Law. It advances the cause of privacy by reining in the power of the state to arbitrarily intrude on citizens.
Parallel to the attempt at ‘hedging in’ of police powers in criminal enforcement by this High court, there has been a move to expand powers of investigative bodies in civil suits. The next sub-section looks at two innovations by courts – Anton Pillar Orders and John Doe orders – which are mechanisms unwarranted by civil procedural law, but crafted by high courts specifically to dealwith copyright investigation.
‘Anton Pillar’ orders and ‘John Doe’ Orders
In addition to the extensive police powers under the Copyright Act mentioned above, plaintiffs have other, equally intrusive powers at their disposal. In the past decade it has become common for copyright owners and owners-associations to employ civil procedure to emulate the same kind of invasiveness. This is done via the mechanism of so-called ‘Anton Pillar’ orders – orders obtained unilaterally ‘ex-parte’ (in the absence of the defendant) fromcivil courts which permit court-appointed officers, accompanied by representatives of the plaintiffs themselves, to search premises and seize evidence without prior warning to the defendant. Frequently, courts have also issued ‘John Doe’ orders16 -orders to search and seize against unnamed/ unknown defendants – who virtually translates into untrammeled powers in the hands of the plaintiffs, aided by court-appointed local commissioners, to raid any premises they set their eyes on.
Although the authority of the courts under Indian law to grant these orders is suspected, they have virtually been regularized in practice over the past decade through routine issue by the High Courts, especially the Delhi High Court. This has led to a widespread phenomenon of powerful copyright owning groups such as the Business Software Alliance and the Indian Performing Right Society Limited managing to successfully assume for themselves almost plenary powers of search and seizure as they go about knocking on the doors ofsmall businesses and demanding to be allowed to audit their software.
THE POLICY BEHIND COPYRIGHT ENFORCEMENT IN INDIA
There have been 2 different issues regarding the policy behind copyright law. The developed countries are in favor of the policy that wants strong copyright protection as most of the intellectual property is owned by them. On the other hand, developing countries want less copyright protection as it limits access to knowledge.17 This is known as the North-South Debate regarding copyright protection. The developing countries argue that strong copyright laws would result in less access to knowledge and technology.18 They also believe that stronger copyright laws would cause cash out flows from the developing countries in the form of huge royalties to the copyright owner which would result in economic dependency.19 Also, it affects their piracyindustrywhich manufactures counterfeit copyright goods.20 The developed countries on the other hand argue that stronger copyright protection would provide economic incentives to domestic authors and attract foreign capital which in turn would reduce economic dependence, if not in the short term but certainly in the long run.21
Multilateral organizations like TRIPS and WIPO are engaged in the efforts to harmonize this conflict between the developed and the less developed countries. India has signed the TRIPS Agreement and has complied with it to provide minimum standards of IP protection. The Copyright Act, 1957 was also amended in 1999 to bring it in conformity with TRIPS and it leaves sufficient room for the non-enforcement of copyright.22 However, non-enforcement and piracy is not the policy of copyright law in India.
The importance of copyright in India was correctly stated by the Supreme Court in R.G. Anand v. Deluxe Films .23 The court held that:
“It seems to us that the fundamentalidea of violation ofcopyright or imitation is the violation of the Eighth Commandment: “Thou shall not steal” which forms the moral basis of the protective provisions of The Copyright Act.”
Therefore the policy of Copyright Law in India is to recognize the time, labor and skill put in by the people who make creative and artistic works. These people should be granted some exclusive rights to claim and make profit of their creative expression and labor involved in the work. No one shall be allowed to make any kind of use of such works without the permission of the author. Any such unauthorized use of the work would be considered as theft depriving the author fruits of his labor and creative expression. Creativity is the keystone of progress which no civilized societycan afford to ignore.24 It leads to the economic and social development of the society.
In the last decade, India has realized that copyright can be a factor which can contribute tremendously to the economy of the country.25 There is no doubt that how important the protection of creative labor, is for industries such as Motion Picture or Indian film industry, publishing industry, information technology industry etc. The protection granted by copyright which provides an incentive to the copyright owners, say, the technical community could lead to investment in innovations from venture capitalists.26 This can also create jobs in the IT industry. According to an economic impact study conducted by IDC India, “if the present piracy rate of 72% in India is curtailed by even 10 percentage points by 2009, India could benefit with an additional 1,15,000 new IT jobs, an additional $5.9 billion pumped into its economy and increased tax revenues of $386 million. But then that still leaves you at about 60% piracy rate which is huge and needs to come down.”
Trade losses to the software industry alone caused due to piracy increased to US$ 1,060 million in the year 2008. According to the IIPA report, 2009, “Piracy losses to the music and recording industry from mobile chip, physical, internet and public performance piracy were US$36.2 million in 2008, with piracy levels at 55%. Losses from mobile chip piracy are estimated to be about US$5 million.”
Speaking about the Media and Entertainment industry of India, FICCI Secretary General, Dr. Amit Mitra pointed out to a study by the U.S.-India Business Council (USIBC) andsaid, “India’s entertainment industry already generates more than $11 billion annuallyfor the country, growing at a combined annual rate of over 18%. If we can stop piracy, these industries will grow even faster and employ more Indian workers.”27 Farokh T. Balsara, National Sector Leader, Media and Entertainment for Ernst & Young-India said, “If we can slow or stop piracy, a direct correlation in the generation of wealth and employment will be the result.”
All such losses can be avoided if some measures are taken to improve and make effective the copyright enforcement system in India.
Copyright and Publicity :
Do we have a copyright over our identities – our names, our appearances, our life histories, our reputation and our bodies – so that we have an actionable interest in preventing their deployment in public without our express authorization?
This question has arisen in a limited set of cases in India that raise interesting questions. As with the confidentiality cases discussed above, the lines separating ‘defamation’ actions from ‘copyright’ claims is not brightly drawn in these cases. Neither is the line linking copyright to the protection of privacy clearly evident. All one can say with confidence is that copyright and privacy are two words tossed into the plaints by the plaintiffs while asserting their claims.
In one of the most high-profile cases of its kind, Phoolan Devi v Shekhar Kapoor28, the Delhi High Court was faced with the question of whether ‘public figures’ are entitled to any degree of control over the representation of their lives. Here the petitioner, Phoolan Devi, a reformed bandit, had ‘licensed’ the production of a biopic on her life to the defendant, a film director of note, who was to consult the plaintiff’s own writings and those of her authorized biographer in making the film. However, the defendant – the director of the biopic – had exceeded this mandate and also depicted incidents that emerged from various newspaper accounts – including a graphic gang rape scene where the plaintiff was the victim, and a massacre which she had allegedly orchestrated. Although generally well-known, neither of these incidents were either admitted to by the plaintiff herself or mentioned in the plaintiff’s own writings and those of her biographer. Even worse, the film had not been shown to her even several months after it had been released to national and international audiences. In Arundhati Roy’s moving words the producers of the film “(R)e-invent her life, her loves, her rapes. They implicate her in the murder of twenty-two men that she denies having committed. Then they try to slither out of showing her the film!”
One of the contentions that the petitioner’s advocate had advanced was that the defendant had no right “to mutilate or distort the facts as based upon prison diaries” and that any such distortion would fall afoul of her right under Sec 57 of the Indian Copyright Act. This section confers certain ‘special rights’ on the author including the right to claim authorship and to restrain any distortion/mutilation or modification of the work that would be prejudicial to his/ her honour or reputation.29 These rights survive any assignment of the copyright made by the author i.e. they can be asserted by the author above any contract entered into by her with third parties such as the producer in this case. The Court framed the question it was faced with in these terms:
“The question before me is whether such person like the plaintiff has no right to defend when someone enlarges the terrible facts, enters the realm of her private life, depicts in graphic, details rape, sexual intercourse, exhibits nudity, portrays the living person which brings shame, humiliation and memories of events which haunts and will go on haunting the plaintiff, more so the person is still living. Whether the plaintiff has no right and her life can become an excuse for film makers and audience to participate in an exercise of legitimate violence with putting all inhibitions aside.”
Ultimately, the High Court sided with the petitioner and issued an injunction restraining the defendant from exhibiting his film.30 This decision was based more on a consideration of constitutional right to privacy principles than anevaluation of the plaintiff’s case under Copyright law. However, it does provide an interesting factual matrix for the exploration of the way in which protection of copyright.
MEASURES TO BE TAKEN
a) Increasing the number of suo moto raids: For the reasons mentioned earlier in this paper, there must be an increase in the number of suo moto raids by the police officers. It has been noted that as a result of the suo moto raids in Tamil Nadu in 2007, an additional 59 convictions for video piracy took place. 63 raids were run in New Delhi, which are very less in number, but managed to seize over 3 million units of pirate optical discs.31 However, these raids are run because of the pressure from the Motion Picture Association. Very rarely raids are run in the internet piracy cases and almost none in the software and book piracy cases.32 However, success has still been achieved by conducting suo moto raids and such raids shall be increased in the future in order to deter piracy.
b) The speed of adjudication in the civil and criminal cases needs to be increased. These are the following objectives recommended by the IIPAin its Special 301 Report, 2009:
• ease backlogs (IP judges or courts should begin free of backlogs);
• enforce deadlines for adjudication/resolution of piracy cases, and prevent unjustified continuances;
• encourage completion of a set number of “model” cases with deterrent penalties to deliver a message to the Indian public about piracy;
• adopt case management techniques (we understand progress has been recently made on this and on instituting plea bargaining); and,
• treat piracy as a serious economic crime.
c) Specialized Intellectual Property courts and Intellectual Property judges shall be appointed. The copyright cases are brought to the same courts as the other civil or criminal cases which are large in number. These results in ignorance or delay in the adjudication of copyright cases. Creation of special IP courts with special IP judges will not only decrease the backlogs from the usual civil or criminal courts but also provide speedy injunctions to the copyright owners. Moreover, the special courts would have more resources and the law enforcement would take serious note ofthe IP infringement cases. Special IP judges, certainly, would have to be more qualified in deciding IP matters. These judges shall be specially trained to tackle with infringement and piracy cases.
d) Police authorities need to be trained regularly along with the ever changing technology. Funds should be provided by the government for various training programs in the field of Intellectual Property to detect piracy and equipments or machinery with the help of which piracy is committed. The lack of trained IP prosecutors also often hinders enforcement. These prosecutors also must be specialized in indentifying and prosecuting piracy crimes.
e) The Indian public needs to get aware of the importance of copyright laws and their effects, not only on the creative and innovative thinking of the authors but also on the national economy of the country. The government should take necessary measures to promote copyright enforcement by informing people about the harms of copyright violation. Public statements by the media, government, and popular people in the country should focus on informing the public about the seriousness of the offense. Educational campaigns about copyright law and its infringement should take place regularly. Finally copyright owners themselves should be educated explaining to them their rights, the effective enforcement of which would yield beneficial results to them. A message of keeping faith in the police and the judicial system should be conveyed to them so that they are not reluctant to file complaints thinking that it is a lengthy and ineffective process.
Some other changes must be brought to the current copyright law in India.33 They are as follows:
• A system of statutory damages shall be adopted in civil cases and compensation should be awarded in criminal cases.
• A separate optical disc law and criminalprovisions for anti-cam cording shall be adopted to deter optical disc piracy. As the optical disc piracy causes a huge harm to the Indian film industry and the music industry, there is a need for such legislation. Once this law is enacted in India, every factory manufacturing CDs and VCDs has to obtain a license. Also, there will be special secret codes on every disc, so that these can be traced back.
• The process of implementing and ratifying the WIPO Internet treaties shall be completed and amendments shall be made in this regard.
Further, copyright law in India requires the government to show the “actual knowledge” of infringement of the defendant. Astrict liability rule has to be established, as it is in the United States copyright law, for copyright infringement in India which willprevent copyright infringers from avoiding culpability by concealing evidence of their knowledge.
India has seen a tremendous change in its copyright regime in the last 25 years. There has certainlybeen improvement in the copyright law and, to some extent, its enforcement. However, this is not enough. As the technologies will change, the need for better enforcement provisions will arise. It is very important, especially, for a country like India that is so rich in its cultural heritage and artistic expression, to realize the value of copyright specially and Intellectual Property generally. The pressure from the United States is a blessing in disguise for the Indian economy so that it is able to make full use of its resources and grow. For India to compete with the developed countries on the economic front and to do justice with the tag of the next economic superpower, it has to take allmeasures to strengthen the enforcement ofits intellectual property laws.
From the discussion in the previous sections, it follows:
Firstly, that ‘property’ – as embodied by copyright law – is, at the best, an unreliable guarantor of privacy. It works when bussed along with dignity claims, for instance the Phoolan Devi case where the petitioner’s suffering underlay her property claim but fails when asserted as ‘property’ per se (as in Manisha Koirala’s case34). One does not (under the Indian Copyright Act, at least) have a reliable ‘property’ interest in one’s life story, bodily representation, name etc. This stands in contrast with other regimes such as the US where several states have enacted ‘Right to publicity’ statutes or have recognized publicity rights through common law processes.35 These rights can be read to offer people a ‘property’ means for protecting their privacy (by preventing unauthorized publicity) in those jurisdictions. Analogous claims are unavailable in India.
Secondly, that ‘property’ operates frequently as a license for the violation of privacy with impunity. This emerges most clearly from the cases of copyright investigation that we examined in Section 1.2 above. Pecuniary copyright interests appear to completely overwhelm any regard for competing privacy concerns.
Thirdly, that, notwithstanding the preceding two points, the copyright act does protect privacy in limited ways. Chiefly these are: a) by conferring limited copyright on ‘unpublished works’ it enables authors to restrict their publication except on terms acceptable to them. b) The Act grants a very wide “Performer’s right” to performers and no sound or visual recording may be made of themwithout their express consent. No such recording can broadcast or communicated to the public without their consent. This gives a very powerful weapon of control in the hands of performers to restrict the extent to which representations of them are publicized. c) As mentioned above in the penultimate section of this paper, various fair dealing exceptions carve out spaces of privacy where infringing acts are granted immunity – for instance private uses, uses in educational institutions and libraries etc.
Lastly, with the arena of copyright infringement shifting gradually to the internet, it is foreseeable that the ITAct will be employed with greater frequency in the coming years to do the work of copyright enforcement. The legal regime already supports this change through provisions in the IT Act which preserve all existing rights available under the Copyright Act (Section 81 (proviso) of the IT Act) and put new powers of take-down (see Intermediary Guidelines) in the hands of Copyright Owners. Thus on the one hand, copyright owners would be able to lawfully hack into potential infringers’ computers while enjoying immunity under the IT Act. On the other hand, ‘intermediaries’ would be legally bound to co-operate in copyright enforcement including, conceivably, handing over a number of personal details of those accused of copyright infringement. In other jurisdictions, such as the EU, such ‘co-operation’ is heavily policed by judicial oversight where personally identifiable information is involved36.
Contrastingly, in India, with its diminished concerns for privacy and limited awareness of how IP address data can seriously imperil privacy, there is a very real threat that these provision will license the wholesale violation of online privacy.