This article has been authored by Sahana Priya Satish, a fourth-year law student at Tamil Nadu National Law University, Tiruchirappalli.
Copyright refers to a kind of intellectual property right which enables the creator of an original work to have an exclusive right over the reproduction and distribution of the copyrighted work. Copyright infringement is the act of an individual of duplicating or reproducing the work of another individual, who possesses the copyright of the work, without his permission to do so. This act of producing an ‘infringing copy’ has been defined under Section 2(m) of the Copyright Act, 1957. With the advancement in technology and the advent of internet, the problem of copyright infringement has increased multi-fold. The introduction of various over-the-top (OTT) platforms for the purpose of streaming audio as well as video content has further opened up a new area of copyright infringement on the internet. The model of most of these streaming platforms require consumers to pay for viewing content, as a consequence of which, there has been an increase in the number of avenues providing pirated content on the internet free of cost. In some cases, software applications which are primarily used for other purposes have been used to share and circulate copyrighted material belonging to various OTT platforms. This article will explore the copyright infringement that is caused due to the video piracy of OTT content and the corresponding liability under the Information Technology Act, 2000.
The Problem of OTT Video Piracy
A constant need of online viewers to access premium OTT content in terms of movies and web series free of cost has led to the increase in the video piracy on the internet. The high demand for such free content has led to a plethora of avenues for online viewers through which they can access a pirated version of the content that is originally the property of OTT media services. To cite an example, a mobile application named Telegram, which is a cloud-based instant messaging and voice over IP service headquartered in Dubai, is a common platform for its users to share pirated content of movies and web series which are typically available on OTT platforms such as Netflix, Amazon Prime Video, Hotstar etc. This has led to an increase in peer-to-peer piracy which allows users to distribute and share digital media obtained by illegal means. This increase has a detrimental effect on such platforms and content providers as it takes away a large part of their potential revenue.
The regulation of this illegal activity becomes difficult because the perpetrators cannot be traced easily, the cost associated with such illegal distribution is negligible and it is difficult to assess and control the number of people who access the pirated content. The use of Virtual Private Networks further exacerbates the problem of tracing as it allows individuals to access their desired content freely without their internet activity being traced back to their IP address. Even if an individual who is guilty of video piracy of OTT content is identified, adjudicating on the case may not be easy as different countries may be involved and determination of jurisdiction may become difficult. Another problem is that, from copying and reproducing the content from the various platforms to making the pirated version available to the general public, a number of people may be involved which makes it difficult to identify the wrongdoer and assign liability for the crime.
Liability under the Copyright Act and Information Technology Act
The Copyright Act, 1957 as well as the Information Technology Act, 2000 lay down certain provisions to deal with the menace of piracy. Section 14 of the Copyright Act gives the meaning of copyright and lays down the various exclusive rights that are vested in a copyright owner including the right to make copies, reproduce the work and store the work. Section 51 of the Act lays down that any deliberate storing of a work or its unauthorized reproduction and distribution constitutes copyright infringement and attracts civil and criminal liability. Sections 65A and 65B have been introduced to ensure the protection of technological measures as well as the rights management information in order to prevent the infringement of copyright in the digital environment.
The scope of piracy under the Information Technology Act, 2000 is as laid down in Sections 43 and 66 under which any unauthorized online distribution of copyrighted content is a punishable offence. According to Section 79 of the Information Technology Act, 2000 read with Rule 3 sub-rule 4 of the Information Technology (Intermediary Guidelines) Rules, 2011, it is the responsibility of an intermediary to act with due diligence while performing its duties and ensure that it does not host or publish any information which infringes on the intellectual property rights of an individual or entity. It is the duty of the intermediary to inform the users to refrain from disseminating any information which might infringe upon the proprietary rights of an individual and if any user is found to be indulging in such illegal activities then the intermediary has the power to terminate the access or usage rights of the user. The draft Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018 also directed the intermediary to make use of technology based automated tools to proactively identify and remove or disable public access to unlawful content.
When copyright holders wish to block or remove its copyrighted content from various digital platforms, the onus is on the copyright holder to prove to the satisfaction of the court that the website or other platform is primarily facilitating in wide spread copyright infringement. In case of digital platforms and applications which are used for the distribution of pirated content and act as intermediary, the affected party can approach the court asking for the grant of necessary directions for the removal of the infringing content from the concerned platform.
It is difficult to identify persons who are involved in video piracy online as their identity and other information about them may not be known. In order to hold such persons liable, the Indian judiciary relies on the John Doe order also known as the Ashok Kumar order. This was first introduced in the case of Taj Television & Anr v Rajan Mandal & Ors. A John Doe order enables an intellectual property rights owner to protect his work by serving a notice and taking action against any individual who is found to be infringing the rights of the owner but whose identity may be unknown to him. Such orders are passed under Order 39 Rule 1 and 2 of the Civil Procedure Code, 1908, read with Section 151 of the Code and Part III of Specific Relief Act, 1963 which deals with the power of the Court to grant a temporary injunction which prevails as a permanent injunction. In order to procure a John Doe order a person has to satisfy certain requirements which are as given below:
The person acquiring the order has to satisfy the Court that his rights has been infringed by showing instances of previous breach and sporadic infringement by known and unknown persons
The person has to satisfy the court of the existence of a prima facie case before any relief can be granted
The person has to establish that if the John Doe order is not granted to him then he will be faced with some financial or irreparable damage
When a court is satisfied that the plaintiff satisfies all the requirements, it passes the John Doe order which, depending on the relief sought by the plaintiff, may entail blocking access to the content for a fixed period of time. The plaintiff has the liberty to then issue a public notice which sets out the substance of the order for the benefit of the John Doe defendants. The courts also allow the defendant(s) or any other aggrieved individual to approach the court for a variation or modification of the order. The provision of John Doe orders becomes especially useful in cases of online piracy where the identity of the perpetrators is often unknown. The grant of such orders has been on the rise as it helps to protect the rights of copyright owners and ensures that their works are not distributed illegally.
Liability of the Intermediary for Copyright Infringement by its Users
In the recently decided Delhi HC court case of Jagran Prakashan Limited v. Telegram FZ LLC, the Court directed Telegram to take down certain channels in which the users were reproducing and distributing the copyrighted content of the plaintiff corporation which provides a digital e-paper to its subscribers. The Court also directed Telegram to disclose the basic subscriber information of the users of the channels. Not many cases on this issue have come to the Indian judiciary yet and hence reference has been made to foreign judgments in the succeeding paragraph.
While dealing with the issue of intermediary liability, the US courts have relied on the ‘Doctrine of Inducement’. The US Supreme Court in the case of MGM Studios v. Grokster Ltd. held that under the doctrine, the defendant company could be sued for IPR infringement because it promoted peer-to-peer file sharing on its platform, thereby encouraging direct infringement while also vicariously profiting from such infringement. In the case of Arista Records LLC v. Lime Group LLC, a permanent injunction was granted by the US District Court to shut down the file sharing facility provided by the defendant on the grounds that the intermediary promoted infringement and vicariously contributed to it with an aim to earn profits. The US District Court has also, in the case of In re Aimster Copyright Litigation, applied the ‘theory of contributory or vicarious infringement’ to impose indirect liability on the intermediary due to the impracticability of enforcing the rights against the infringers severally, due to their large numbers as well as anonymity.
Measures to Combat the Problem
The developers of software applications need to take steps to be aware and vigilant about the ways in which their products can be used to distribute pirated content on their platform. They should be proactive in ensuring that users who make such content available as well as individuals who access such content are held liable. At present there are no laws which obligate an intermediary to apply its own mind to identify whether certain content should be blocked or removed from its channel or not. This will require a lot of regulation in the form of sufficient legal provisions and the efficient implementation of such provisions. Legislators need to be mindful of the advancements that are made in the sphere of internet technology in order to ensure that there are appropriate laws to adapt to the changes. The case of UTV Software Communication Ltd. v. 1337X to and Ors., which discussed the various aspects of copyright infringement on the internet at length, suggested that warnings should be provided to viewers of infringing content to caution them from viewing or downloading infringing material and if despite such warnings the viewers continue to access the pirated material then a fine could be levied on them.
The laws that are made should be in line with international treaties so that there is uniformity in laws of different nations and to facilitate cooperation in tackling the issue of video piracy over cyberspace. A positive step towards achieving this is the World Intellectual Property Organisation Internet Treaties which lays down certain measures which can be taken by countries to protect copyright and other related rights. Though India is a signatory and it has made significant amendments to the existing law by way of the Copyright (Amendment) Act, 2012, there is a need for the enactment of better laws which are in line with such treaties. It is important to amend current laws to include specific provisions which deal with the matter of jurisdiction in cases of copyright infringement over the internet and also provide for clear laws regarding liability in such cases.
The rise in the number of streaming services available on the internet and corresponding increase in content will only lead to more piracy from such video streaming services. Even though the current laws provide for certain measures to deal with this problem, it is essential to enact more specific laws which are in line with international standards along with strict implementation. This will ensure that the rights of creators of copyrighted work are protected which will consequently lead to a decrease in OTT video piracy.