cmn-policy-block

An extraordinary piece of news began making the rounds over the weekend: that accessing a blocked Torrent URL could, in and of itself, lead to criminal prosecution under the Indian Copyright Act. Presumably, this message will become little more than a footnote in the story of rights owners endeavouring to counter online infringement but, for the moment, it appears to have become the source of some consternation. According to a report in India Today, a user accessing a blocked URL would be shown the following message:

“This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of upto Rs. 3,00,000/-. Any person aggrieved by any such blocking of this URL may contact at urlblock@tatacommunications.com who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance”

The references to law in the notice appear to be a congealed mass of several different provisions. However, at a practical level, as Gautam John points out, “This is the first time I have seen such a notice include contact details and offers of more information. Which, to me, is actually a good thing.” Unfortunately, the offer of additional information does not seem to include suggestions about where content may be legally obtained, neither does the notice itself provide such information. As John says, “I really wish they took proactive measures to direct people to legal sources for the same content. It’s so silly to block but not to offer an alternative. People will find a way around your block. No matter how hard it is.”

In light of this, although the notice could be considered to have made an effort to be transparent, it could also easily be argued that it doesn’t go far enough. While copyright infringement in India is, without doubt, both a civil wrong and a criminal offence, the level of awareness in the country about what constitutes copyright infringement is low. As such, it would be helpful if notices referencing copyright infringement not only explained how content could be legally obtained but also clearly explained what would constitute illegal copyright infringement.

Unfortunately, the reported notice is anything but clear about the law. It appears to say that it is potentially criminal to not only download, exhibit, or duplicate an illegal copy of the contents of a blocked URL but also to view such a URL. There are several aspects to this:

The first and most startling being that viewing a blocked URL alone could seemingly have the potential to attract criminal prosecution according to the notice. In real world terms, this is almost the equivalent of saying that catching sight of a stall selling pirated films by the roadside is potentially a crime, which appears bizarre by any rational standard, and which does not appear to be supported by the Indian Copyright Act.

Secondly, the notice seems to state that downloading the contents of a blocked URL is potentially illegal. While this is likely true, it is extremely unlikely that the owners of a Torrent hosting site would sue for the infringement of any of their pages: as a general rule, it is other copyright owners, and those who could potentially be held accountable by such copyright owners, who would have an interest in restricting the dissemination of protected content (such as films) accessible via Torrent sites. The message, however, makes no distinction between content accessible through a blocked URL and the blocked URL itself.

Thirdly, the notice fails to distinguish between the acts of an end-user, so to speak, and a person who might engage in secondary copyright infringement for which liability may legitimately be imposed for copyright infringement, particularly since secondary copyright is rarely limited to personal use. Although India has no clear statutory laws which deal with secondary infringement of copyright, it is easily possible to make a claim against a person who indulges in such infringement possibly by providing a place for infringement to be executed even if he does not directly infringe copyright himself.

Claims relating to secondary copyright infringement could be made, amongst other things, through a reading of Section 51 of the Indian Copyright Act which states, in relevant part:

“Copyright in a work shall be deemed to be infringed [when any person without authorisation] (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.”

The notice in question, however, seems oblivious to all of this, and contains a catch-all phrase that talks of the illegality of acts ‘punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of upto Rs. 3,00,000/-’ sans explaining how these provisions might apply.

Section 63 defines the offence of criminal copyright infringement: in essence, under this provision, the knowing infringement of copyright could see a person punished with imprisonment of between six months and three years as well as with a fine of between 50,000 INR and 200,000 INR – both of these punishments may be relaxed if the infringement is not in the course of business. Section 63A provides for an enhanced punishment in cases where persons have already once been convicted under Section 63: the latter provision envisages imprisonment of between one and three years, and a fine of between one and two lakh INR; once again, these statutory punishments may be relaxed in certain circumstances.

Section 65 of the Indian Copyright Act, oddly enough, speaks of the possession of plates for purpose of making infringing copies, and it isn’t at all clear how it applies to Torrents. And Section 65A, which was introduced to the statute in 2012, criminalises the removal of technological protection measures in some circumstances. It isn’t entirely clear how this applies to Torrents in general either especially since (it is this author’s understanding that) the vast majority of Torrents available via Torrent sites are anyway free of DRM. In any case, both Sections 65 and 65A speak of the acts criminalised by them being punishable ‘with imprisonment which may extend to two years’ and an unspecified fine.

As such, it appears that the notice which has been in the news isn’t drafted as well as it could have been. There are definitely acts which may be committed in relation to Torrents which are criminal, and copyright owners are firmly within their rights in attempting to counter infringement. That said, the wording of this specific notice seems to belong quite firmly to the “How can it hurt to say this?” school of thought.

It mixes up between types of liability, isn’t entirely clear about what potential punishments could be, and, most alarmingly, it fails to differentiate between acts which are illegal in fact and acts which are likely illegal only in fantasy.

Whether such a notice could truly help to raise awareness about the legal wrong of copyright infringement, or help to counter it, is questionable.

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