Review: “Contemporary Challenges of Online Copyright Enforcement in India” (2019) by Arpan Banerjee

Author: Janaki Arun

Citation: Banerjee A. (2019) Contemporary Challenges of Online Copyright Enforcement in India. In: Liu KC., Racherla U. (eds) Innovation, Economic Development, and Intellectual Property in India and China. ARCIALA Series on Intellectual Assets and Law in Asia. Springer, Singapore. <https://doi.org/10.1007/978-981-13-8102-7_8 >

Introduction:

Written by Arpan Banerjee, affiliated with Jindal Global Law School, Sonipat and University of New South Wales, Sydney, the book chapter, the text under review, discusses the challenges faced by and online enforcement strategies available to copyright holders in India, especially in the film industry.

The text outlines how increasing accessibility to the internet has seen a directly proportionate increase in online piracy. According to the writer, the law, as it stands, is arguably sufficient to cover almost all kinds of online infringement, and it is global scale of internet usage that is making it nearly impossible to identify and curb infringement.

Landscape of Piracy:

The writer deduces that there are three major issues that plague the possibility of online copyright enforcement, viz. prevalence of physical piracy, hosting of pirated content in servers outside India, and infrastructure of the justice system. The writer notes that the motive for piracy could be either financial or non-financial. A 2009 report by the Committee on Piracy, Ministry of Information & Broadcasting[1] is cited by the writer describing piracy as a “high-reward’ business and stated that a significant amount of piracy is motivated by financial gain.

The writer mentions that there are now many options for legitimate consumption of content online, such as online streaming platforms like Netflix, Amazon Prime, etc. What the writer fails to consider is how ingrained the movie culture is in India, and while piracy could be stemming from sources that are financially motivated, for the average Indian consumer, it is the lack of access to theatres and online streaming services that drives them to pirated content. The writer also fails to take into account the financial status of the average Indian consumer and how these supposedly ‘nominal’ subscription fees are beyond their budgets. 

Graduated Response Proposal:

The writer proposes a graduated response model that targets end users. This model proposes to loop in Internet Service Providers (ISPs) and have them take action such as issuing warnings, suspension of services to eventual termination of services (extending to other ISPs as well). While the writer rightly points out that the law in India requires ISPs to inform users not to host or upload any information that infringes copyright, there is little evidence to show that in the absence of court orders, ISPs ever voluntarily disconnect/terminate users who upload pirated content.

What has also not been considered is the sheer size of India’s population. If an end-user who routinely indulges in downloading pirated content is blocked by one ISP, it is nearly impossible for other ISPs to be aware of the same, and to not provide a connection, not to mention the lack of motivation on the part of ISPs to slow down bandwidth let alone block a user, which the writer has also talked about. The effectiveness of this model, if ever implemented, is therefore questionable.

Website blocking injunctions:

The text delves into, what now appears to be the most lucrative solution to online piracy, viz. website blocking injunctions. Over the years, courts in India have developed largely effective strategy to deal with online piracy. The latest being dynamic injunctions[2]. This form of injunction gives rights-holders the option to simply approach the administrative section of a Court to extend an existing injunction against a website, to similar ‘mirror/redirect/alphanumeric’ websites which hosts the same content as the original.

This, as the writer rightly points also presents its fair share of issues. One such major issue is with the implementation of orders and unintentional blocking of legitimate websites. 

 Ad-Supported Piracy:

An interesting aspect of online piracy that the writer chose to deal with is ad-supported piracy through discussing a study conducted by the Federation of Indian Chambers of Commerce and Industry (FICCI) and Strategic IP Information (SIPI) in 2017[3]. The study found that on torrent and other online piracy mediums, 46% of the advertisements concerned pornography, gambling, etc. and the remaining 54% concerned products from automobiles, entertainment, and retail industries. The study, intriguingly, blamed this ad-supported piracy on the functioning of digital advertising. As per the study, a small portion of ad budget is usually funnelled to “ad networks that provide cheap and efficiency driven media campaigns” which include entities such as Google AdSense, PopAds, etc. These websites place ads depending on the traffic to a particular webpage.

While Google has taken the defence that it takes online piracy seriously and has terminated several thousand AdSense accounts, the FICCI-SIPI study showed that this shutdown has not even remotely affected ad-supported piracy, which continues to flourish.

Conclusion:

The text outlines the problems faced by copyright owners in light of rampant digital quite thoroughly, however, some assumptions as to the socio-economic landscape of India was given a miss at certain points. Having said so, the text lays down the realities of dissemination of pirated content through the internet and the limitations on right holders in curbing such rampant infringement, which is not owing to a ‘law-lag’ as is often misconceived but owing to the dynamic nature of the internet.

End Notes:

1. Ministry of Information & Broadcasting. (2009). Report of the Committee on Piracy.
2. UTV Software Communication Ltd. v. 1337x.to [CS(COMM) 724/2017 and Ors.]
3. Federation of Indian Chambers of Commerce (FICCI) and Industry & Strategic IP Information (SIPI) (2017). Badversiting. http://verisiteglobal.com/Badvertising_Report.pdf.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

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