william
Asked September 21, 2013

Piracy and IPR law

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How is piracy and IPR related.Can dowloading a movie from torrent amount to violation of one's copyrights?What are the provisions related to this and what are the major judgements related to this?

Answer 1

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Saumya

Intellectual Property Rights are the rights given to a person over the creation of his mind.[1] Copyright is one of the many forms of IPR which is the right of ownership of the creator over his literary or  dramatic or musical work which is the creation of his mind. This form of right  of prescribes that the creator alone has the right to make copies of his or her works or alternatively, prevents all others from making such copies. The intention of granting such a right is to ensure that the commercial exploitation of the creativity benefits the creator and hence acts as an incentive for the creation of new form of intellectual property.[2] The term piracy essentially connotes the unauthorized reproduction, importing or distribution either of the whole or of a substantial part of works protected by copyright. As already stated, the author of a copyrighted work, being the owner, enjoys certain exclusive rights with respect to his or her works. These include right to reproduce, to publish, to adopt, to translate and to perform in public where the right also includes the right to  sell, assign, license or bequeath the copyright to another party. Where the material is used by anyone in anyway not authorized by the creator then such an act amounts to piracy.[3]

The Indian Copyright Act confers copyright on (i) original literary, dramatic, musical and artistic works, (ii) cinematographic films and (iii) sound recordings.[4] The Indian copyright Act, among other elements recognizes that the copyright holder has the exclusive right to do or authorize to reproduce the work in material form or to publish the work. A close reading of the provisions indicate that the copyright grants a right of ownership over the material and the creator has the right to decide the mode of transmission which may be authorized to another entity or the same can be sold to the third party.[5] The exception to this right over material can be seen under Section 52 of Indian Copyright Act which allows the reproduction for educational requirement or media comments or research purposes as a form fair comment upon the copyright material.

With regard to movies there are a series of copyrights associated with it where the primary one being the theatrical rights[6] vested on the producer which is the right to show the film in the theaters which is sold to the distributors by the producers. This indicates, that the right to telecast a movie can be undertaken by a person who has purchased the theatrical rights of the concerned movies form the producer of the movie. It is therefore seen that where the entity, providing a mode of telecast of a film without acquiring the theatrical right from the producer or purchasing the same from the distributors, is a clear form of copyright infringement. Further, with regard to the availability of the film on the internet it has been seen that the Indian Copyright Act under Section 51(a)(ii) prescribes an infringement as the publication of the material for profit in any place. The use of the term 'any place' has been used to indicate that infringement can be in any place and has been used to include the publication on the internet as well.[7]

In light of these factors involved, it is evident that in most of the instances the items available on Torrent and other such websites do not have the theatrical rights of the movie which is obvious from the fact that no producer would authorize the option of free download with the theaters ticket prices sky-rocketing.

Recently, in the case of  Super Cassettes Industries Ltd. v. Myspace Inc. & Another the issue of safe haven was raised. The Petitioners contended that the songs available on the social networking site, were the property of the Petitioner being the producers and publication of the same on MySpace infringed their copyright. The defense undertaken by MySpace was that they simply acted as intermediaries where the actual users published the concerned material for which MySpace was not responsible and reliance was placed on Section 79 of the IT Act to claim immunity as intermediaries. The Delhi HC in this concern identified that although one may satisfy the requirements under S.79 of the IT Act which grants immunity to intermediaries, an individual can still proceed against the intermediary using provisions of the Copyright Act or Patents Act.

 

Further, it was identified that MySpace failed to exercise due diligence and that it should have done a ‘preliminary check in all the cinematograph works relating Indian titles before communicating the works to the public rather  than  falling  back  on  post  infringement  measures’. The Delhi HC  gave this interpretation as it tired to avoid a conflict between the acts of infringement by way of permitting the place for profit provided under Section 51 (a) (ii) and Section 79.It is identified that even where Torrent maybe considered as an intermediary as the users of the website without any theatrical right actually upload the material, Torrent would be held guilty for copyright infringement. Though recently the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular the consequence of this amendment in terms of freedom to intermediaries is to be seen.

Do let me know if u need information with regard to other jurisdictions. 

 

[1] Read http://www.wto.org/english/tratop_e/trips_e/intel1_e.htm

[2] Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 (1939).

[3] Tanushree Sangal, Piracy in the media and entertainment industry in India: stemming the menace, Ent. L.R. 2009, 20(3), 82-86

[4] Section 13of the Indian Copyright Act, 1957

[5] Section 14 of the Indian Copyright Act, 1957

[6] Taj Television v. Rajan Mandal,  CS(OS) No. 1724/2011

[7] Indian Performing Right Society Ltd. Vs. Badal Dhar Chowdhry & Ors.  2012 (50) PTC 376 (Del.)(DB).; M/s. R.K. Productions Pvt. Ltd. v. Bharat Sanchar Nigam Limited & Ors., 2012-5-LW626

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