- Praharsh Kashyap
The Hindi film industry (Bollywood) has a habit of blatantly imitating previously copyrighted Hollywood/ Foreign films by effectively “Indianizing” it just enough for the Hindi film audience. In this process, Bollywood infringes on the legally protected creative work, it misappropriates the intellectual work, under the garb of Indianizing the initial work. The Indian filmmakers have argued that when you take an idea and route it through the Indian heart, it changes entirely, but let’s call a spade a spade.
While Bollywood has its trend of intellectual theft on its hands, it itself is plagued with digital piracy of its creative work. Despite best efforts by authorities, the statistics suggest that piracy has been flourishing, with its growth nothing short of exponential.
Over 60,000 jobs are lost every year due to piracy. The Indian media and entertainment industry (M&E Industry) has reported losses amounting to 2.8 billion US dollars of its annual revenue due to piracy.[1] In 2008, loss due to piracy was close to 27 million US dollars, which in 2017 jumped to 2 billion US dollars.[2] Furthermore, the FICCI- EY Report 2018 on Reimagining India’s M&E sector reported that over the period of nine years, piracy in films alone has grown by 300%, while the legit part of the film industry has only grown by 40%.[3] These statistics only shed light on the pre- Covid era, Covid had forced people to stay home, and for entertainment, during numerous lockdowns, people turn to the cinema. The lockdowns facilitated the digital dissemination of copyright work by the owners through various emerging OTT apps. However, the digital dissemination of movies has inadvertently made the movie industry more susceptible to copyright infringement. According to a report by Digital TV research, the loss of revenue for OTT players on account of piracy in India is expected to cross 3.08 billion US dollars by 2022, while the cost of global online streaming piracy will reach 52 billion US dollars.[4]
Filmmaking is an intricate and very thorough process. The scripts are original literary work and therefore, inherently carry Intellectual property rights, as they are the beginning of a film, thus it is crucial that the script screenplay, and therefore the execution of the main idea of the film is protected. So generally, the producers hire scriptwriters under contracts as prevailing under the current Copyright legislation (The Copyright act,1957)[5]. Now as the foundation has been laid next in the process is deciding the cast of the film, here the intellectual property issue related to transfer of rights of the producer and performer’s conditions of employment are dealt with. Next, the broadcasting and licensing of the film come into play. Section 37 of the Copyright Act,1957[6] allows a broadcasting propagation right to broadcasting associations exclusive of the copyright that rests with the proprietor. Thus, from the script to the screen, every aspect is intertwined with Intellectual property laws and these legal sanctions are the few tools the filmmakers have in their perpetual fight against piracy (digital or camcorder) and misuse of their intellectual property.
In India, the filmmakers in recent years have tried to fight the theft of their intellectual work by obtaining John Doe orders, also known as “Ashok Kumar orders”. The Ashok Kumar orders are basically, temporary ex- parte injunctions used by the copyright owners as an impediment to unknown infringers.[7] These orders are based on the principle “if a litigating finger is directed at unknown defendants, the inability to identify him by name is a mere misnomer”. These orders ban unknown individuals from infringing on the rights of others while also preventing any possible infringement. It's used when a producer or director expects their film to be pirated but doesn't know who is responsible for the piracy or who is the infringer, granting pre-emptive and quick remedy to the copyright owners. Order 7 of the Civil Procedure Code, 1908 (CPC)[8], requires the defendant's name and residence to be identified, although, in circumstances when this is impossible, the courts have granted John Doe orders. In Taj Television v. Rajan Mandal 2003[9], the court prevented unlicensed cable providers from broadcasting the FIFA World Cup, and the plaintiff was authorized to inspect and confiscate unknown defendants' devices. here lies the jurisprudence of John Doe orders in India. Since then, the number of cases where these orders were granted has increased tremendously in the past years.
In truth, the substantive laws in India for copyright and intellectual property rights are more than adequate to deal with copyright infringement, it is the enforcement of these laws, particularly the criminal laws, that has been inadequate. The practical enforcement of these laws has always been weak, effectively defeating the purpose of the laws. This is one of the ostensible reasons why India features in the Priority Watchlist of countries with weak intellectual property law systems, in a report prepared by the United States Trade Representative (USTR). The USTR’s report has acknowledged that ‘India boasts a vibrant domestic creative industry’ and has seen ‘Judicial orders that have strengthened enforcement against pirated movies and music online.’[10] However, it has been observed that India needs to ‘address its judicial inefficiencies ‘and ‘strengthen criminal enforcement efforts, including imposing deterrent level sentences and giving intellectual property rights prosecutions a greater priority.’[11]
To sum up, everything that has been stated so far, the Indian substantive laws with provisions under the Information Technology Act, 2008[12] and the Copyright act, 1957[13] are enough to address the piracy of copyrighted materials, but India is in dire need of an enforcement mechanism that efficiently increases the chances of the perpetrators getting caught. The true deterrence lies in increasing the probability/likelihood of punishment as harsher punishment does not deter crime because perpetrators think they would not get caught. India really needs to increase the probability of people who do engage in these acts of piracy are definitely caught and prosecuted, so that people know that they are not going to get away with theft of copyrighted creative intellectual work, that actually will have an effect on reduction of piracy of movies/cinematic work.
Intellectual property rights are an important intangible asset for any creator. India is a fast-growing economy and innovation is key as well as a priority for the state’s growth. The protection of intellectual property rights is crucial. Piracy has wounded the Hindi film industry enough and to prevent piracy is to rekindle the artists\filmmakers creativity and innovation. One of the most fundamental tensions of cinema is lack of inspiration and encouragement which is diminished by intellectual theft of creative work, so a robust mechanism, a system efficient enough to ensure execution of the legislative sanctions that are already in place is the need of the hour.
Praharsh Kashyap is a third year student at Pravin Gandhi College of Law, Mumbai.
[1] Reimagining India’s M&E sector, FICCI- EY Report 2018, Available at :https://ficci.in/spdocument/22949/FICCI-study1-frames-2018.pdf [2] Ibid. [3] Ibid. [4] PTI, New Delhi, Deccan Herald, 13:09 IST June 06,2021. URL:https://www.deccanherald.com/business/original-content-creators-losing-money-to-digital-piracy-during-covid-19-pandemic-ey-india-994355.html [5] Copyright.gov.in;URL:https://copyright.gov.in/documents/copyrightrules1957.pdf
[6] The Copyright Act, 1957. [7] Shrishti Talukdar, John-Doe Jurisprudence – The much Awaited Hero of Bollywood, Scconline blog, 20th January,2021:https://www.scconline.com/blog/post/2021/01/20/john-doe-jurisprudence-the-much-awaited-hero-of-bollywood/#_ftn26 [8] Civil Procedure Code,1908. [9] Taj Television v. Rajan Mandal 2003, (2003) FSR 22 (India).
[10] Office of the United States Trade Representative, Special 301 Report (2013) 39. http://www.ustr.gov/site/default/files/05012013%202013%20Special%20301%20Report.pdf [11] Ibid. [12] Information technology Act, 2008. [13] The Copyright Act, 1957.