If we’re going to claim that imprisoning people will have a deterrent effect on copyright infringement, then we need to have data to back that up, declared Nandita Saikia, a lawyer speaking independently. Saikia’s comments came during a contentious debate about whether copyright violations, including piracy, should be decriminalised.

She was speaking at MediaNama’s discussion on the proposed amendments to the Copyright Act, for which the Indian government has begun private consultation. The Act was last amended in 2012, when the internet and multimedia landscape was wildly different, and perhaps unrecognisable. Held on October 30 with support from Netflix, Amazon, and Facebook, the discussion focused on long-pending issues such as the demand for decriminalisation, dynamic injunctions, and John Doe orders, among other things.

Does imprisonment lead to deterrence?

For long, multimedia industries have been batting for stringent laws against piracy, especially with the proliferation of digital media. Pirated copies of a web series or movies can lead to a potential drop in revenues for the copyright owner. Rahul Ajatshatru of The Ajatshatru Chambers felt the answer lies in criminalising piracy, which would act as a “deterrent effect” to infringement, and that piracy is not a minor offence, and involves the “bread and butter” of creators.

  • Is copyright theft? Even so, copyright infringement isn’t necessarily analogous to theft, most of the panelists agreed. They noted that even in the case of piracy, the owner continues to hold the copyright. “You’re only depriving the [copyright] owner of potential revenue stream,” explained Aparajita Lath, associate at Trilegal.
  • Dealing with infringements: But panelists differed on how this infringement should be treated, and if the copyright owner — such as streaming services — should aim recovering losses. Should streaming platforms sue violators and ask for recoveries? Would this work, given that the violators being sued may not even be able to pay for the damages? What if the violator is a college student operating out of his hostel room? What purpose would it serve to throw this student into jail, if they cannot pay up in any case, wondered a panelist. “A deterrent. To deter. This is crime. There is stigma of being a criminal, having a criminal record,” replied Ajatshatru.
  • The deterrent effect: However, the deterrent effect hasn’t been actually been proven when it comes to copyright infringement, countered Saikia.

“If we’re going to claim that there’s a deterrent effect by doing so, we need to have something backing that. At the moment, I’m not entirely convinced that we do have the data to say that it’s true that there’s any deterrent effect,” said Nandita Saikia.

The conversation then one step further, when Aamod Gupte, legal head for ZEEL, said that as a real deterrent, piracy could be made a “heinous crime”. Other panelists, including Ajatshatru, disagreed with this suggestion. In fact, Ajatshatru then countered that even civil liability, and not necessarily criminal, could act as a deterrent.

  • Ambigious criminal provisions: Besides the debate on deterrence, there is lack of clarity in the criminal provisions in the Copyright Act, which the amendment should address, according to Saikia. She said the criminal provisions apply to rights conferred by the Act, but they are “anyway never really applied anywhere”. She cited the example of the right to receive royalty, which could “potentially” fall under these criminal provisions. Saikia also called for differentiation between personal infringement — when someone consumes media at home for personal use — and between infringement on an “industrial scale”. “I think that we should ideally use this opportunity to create more nuance in the Act so that it works for us,” she said.
  • Some of the offences could be decriminalised instead of all offences: The government has decriminalised minor offences in the Companies Act, Ajatshatru pointed out. Something similar could be done for Copyright Act as well, he added.
  • TRIPS minimum standards: The government could also consider the TRIPS’ minimum standards on criminalisation, which recommended criminal remedies commercial piracy, according to Arul George Scaria, co-director of the Centre for Information, Intellectual Property and Competition (CIIPC) at NLU Delhi. He suggested that the country could decriminalise all thing except for piracy being done at a commercial scale. A vast majority of copyright infringements in the country wouldn’t have criminal remedies that way, he added.

Do rights management deal with digital works?

The current Act’s Digital Rights Management (DRM) is broken up into technological protection measures (TPM) and rights management information (RMI), explained Saikia. RMI provision implicitly deals with digital works. “But our problem right now with the RMI newly introduced provision is that, there is nothing in that section which specifies that it’s for digital works,” she said.

She added that violating RMI provisions is potentially a criminal offence, but this isn’t clear whether such an approach would work. She said there needs to be clarity on how that works. “I mean I don’t see a problem at all with decriminalization of copyright as the government has proposed, but we need to work out how it should be decriminalized, in what way and to benefit whom.”

On parody, and whether it comes under fair dealing

Parodies have long had a contentious past in India. Some have argued that it is an infringement of copyright since it is essentially an imitation of the original work. At the same time, others have argued that parody comes under fair use since it is done for the purpose of criticism.

The Indian legal system does not exempt parody under fair dealing, said Ajatshatru. He said there are many curbs on freedom of speech and expression in India. Furthermore, he added that parody could not be considered criticism, which would otherwise allowed an exemption.

There is, again, a need for clarity on the matter, felt Scaria. He noted that there are judgements from high courts that say parodies come under purview of fair dealing provisions. “But of course, I have not seen a Supreme Court judgement on this,” he said.

Clarity on legal framework for obtaining injunctions

The new Act should bring clarity and transparency to the legal mechanism around dynamic injunctions as well as the overbroad nature of John Doe orders, according to some panelists. Dynamic injunctions are an emerging method of website blocking where a court can approve future mirror URLs of a blocked website to be nearly automatically blocked as well. The first such injunction in India was issued by the Delhi High Court in May 2019.

Overbroad John Doe orders: The amendments need to address the legal mechanism of obtaining injunctions against ISPs or intermediaries, said Divij Joshi, an independent researcher. Joshi said that the people who request John Doe orders give a very broad list of content like websites for blocking, which usually gets little scrutiny. One way to resolve this is to create a distinct IP ombudsman who would have both the responsibility and the ability to pass John Doe requests. He noted that the Delhi High Court has tried this approach through its registry, but this wasn’t sufficient. Essentially, someone like a neutral ombudsman at the helm could understand whether a John Doe order is fair. he said.

  • But, will such a system work at scale? The internet, with thousands of gigabytes of data being created and hosted every day, presents a huge challenge to the efficacy of Joshi’s proposed ombudsman system. Joshi admitted that there is no clear answer to how his proposed system will work at scale. But, he added, John Doe orders have led to problems such as shutdown of the public resources such as the Internet Archive multiple times. He said that there needs to be discussion whether it is in the public interest to let plaintiffs get away with “whatever they want”.

Sachin Dhawan, a public policy manager at Facebook, agreed with Joshi’s suggestion. Additionally, he suggested that there be penalties on wrongful copyright claims and “bad faith” claims. “This is in line with global standards. So this is something that can be looked at,” he said.

Act should help access to education

The pandemic has made it relevant for the Copyright Act to examine how copyright exemptions can help increase access to education, felt Arul George Scaria. According to a recent survey, he said, around 20% of school students don’t have access to textbooks. If expanded to the higher education sector, this number could be 50%, he said. The current Act already has exemptions with regard to education, as has been established in the Delhi University Photocopy Case, wherein Delhi High Court had ruled that copying and distribution is not infringement as long as it was for the purpose of educational instruction.

“But whether all those exceptions are applicable in the online context is something questionable. So, we definitely need more clarity there” — Arul George Scaria, co-director of the CIIPC, NLU Delhi.

The best way to bring clarity around this would be to clarify Section 52(1)(i), which talks about dissemination of education materials in the course of instructions, he said.

Exception: text and data mining and user generated content

Another new-age matter to be addressed, Scaria felt, is one of text and data mining (TDM). TDM is the process of deriving information from machine-read material at a large scale. Scaria said that TDM plays a very important role today in knowledge discovery. Technically, TDM entails a reproduction of copyrighted goods, so “there is a question of whether there is a copyright infringement happening when I am engaging in text and data mining”.

  • Different jurisdictions are taking different approaches to TDM: The United Kingdom, he said, is allowing TDM for non-commercial purposes, provided it is also for research. In the United States, exceptions are available for TDM even in commercial use. “But in the Indian context, some of the TDM activities might be covered under fair dealing, but most of the TDM activities may not be. So, I would really like to see a very specific exception under our copyright law which would allow text and data mining.”
  • Privacy and TDM: On the other hand, data mining is very critical, because it has implications on data privacy, copyright and personally identifiable information (PII), felt Aamod Gupta. “So keep[ing] it out of copyright may be, you know, a very large ask.” To this, Scaria replied that indeed there are privacy issues involved in TPM. “But it is an undeniable fact that there are serious copyright issues also. And I think for the vast majority of text and data mining it is more copyright issues rather than privacy related issues,” he said.
  • Need to address user-generated content: The Copyright Amendment should have provisions for the use of non-commercial user generated content (UGC), said Scaria. UGC refers to any form of content that has been created by general users of social media or any internet platform. For instance, any tweet or Facebook post you author can be considered UGC. “This is not anything radically new, Canada already has a provision in this particular regard.  And so far I haven’t seen any major threats happening to copyright industries from having such a kind of exception,” he said.

Collective licensing and balancing artist interests

Netflix supports a balances copyright framework in India, said Diyanah Baharuddin, the company’s Global Content Protection and IP Policy counsel. She said that while it is important for people who contribute to production such as writers, artists, to be fairly remunerated, “freedom of contracts” is very important.

“It should be up to negotiations between talent and the producer to decide on appropriate remunerations and the terms for such remuneration as well” — Diyanah Baharuddin, Counsel, Global Content Protection and IP Policy, Netflix

Collective licensing: The Act could explore a collective licensing system, suggested Divij Joshi. A collective licensing organisation would be allowed to negotiate on behalf of all users in a particular class. For instance, if one is a lyricist, there could be a collective society that could manage a collective license. “It’s not a new way, a lot of countries have been doing it for a while, but it’s an interesting way to kind of generate more competition, break up the monopoly of collective licensing societies.” He added that this could also solve the problem of “discovery”, wherein it has become harder in the digital age to identify the creator of a work, and then license it.

Simplifying multimedia copyright

Panelists also spoke for the need to simplify the process of applying for copyright for multimedia works. There should be a single application system, said Pragya Chaturvedi, senior intellectual property advisor at the British High Commission. Speaking in a personal capacity, Chaturvedi said, “When it comes to multimedia works, we have different multiple copyrightable components within the same work.  And as of now the situation is that the applicant has to file multiple applications for protecting different components of the same work, let’s say a video game or even a website that, you know, has different components.”

Chaturvedi said that it would benefit applicants if there was a single system. “This is even more relevant in the digital space because we have more you know, many more such types of multimedia works we created than ever before,” she said.

Rahul Ajatshatru had similar views: he felt the current Act, though supposed to empower authors and composers, had botched up when it came to ownership of the copyright property. He said that the cinematograph film or a sound recording is effectively owned by the author, in the scheme of the Act. This mean the author is also the economic owner of the property.

“So, where is the economic burden on sharing on somebody else? So, you introduced a negative component saying we are disabling you from assigning rights other than equal royalty,” said Rahul Ajatshatru of The Ajatshatru Chambers

He said that there needs to be freedom of trade.

“If [authors] want a compulsory sharing of revenue generated from master to the owners of underlying works, which is lyrics and music and now screenplay, and story and dialogue, that needs to be properly defined, not how it is existing after the 2012 amendment [of the Act],” he said

Compulsory licensing system must function well

The existing compulsory licensing system — wherein people have the right to access certain work — needs to work well, said Ajatshatru. He took the example of a rare book; someone should be able to approach the copyright board, apply for a compulsory license for use in institutions. The board could mandate payment to the copyright owner; if the owner is not known, the payment could be deposited to the board which will give it to the owner after verification, he pointed out. “Everything is there on the paper, it’s just that it’s not functioning.” he said.

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*Update (November 5, 2020 at 12:32 pm): Nandita Saikia was earlier referred to as an independent lawyer, this has been changed to a lawyer speaking independently. Originally published on November 4 at 5:58 pm.