On the occasion of World IP Day 2021, ‘Through the Lens – A discussion on Piracy and Copyright Issues’, was presented by Lex Witness, in association with K&S Partners, The Motion Pictures Association – India, CreativeFirst, and The Producers Guild of India.
Setting the context for the webinar, Mr Jyoti Sagar, Managing Partner, K&S Partners, focused the panel’s attention on how technological advancements like digital, robotics, IoT, AI, and machine learning have given rise to an age of economic disruption.
Mr Sagar demonstrated his point by highlighting the scale of said dramatic changes: close to 60% of the world’s population has access to the internet now, with 4.6bn active users – out of which over 3.8bn use social media.
Further, he shared an interesting insight on what happens every minute on the internet: Netflix reports 400,000 hours of video streaming, while Youtube sees 500 hours of video uploaded; on Whatsapp, almost 42mn messages are shared; and on Instagram, approximately 35,00,00 stories are posted every minute. With 700mn internet users, 450mn of which are active social media users, quite a lot of the above figures happens in India.
In keeping with said technological advances, he pressed on the need for IP laws to be more helpful to right owners, especially when internet-based piracy of digital goods is unrestrained by any physical borders or distance.
Expressing his eagerness to discuss what the future holds for IP law in the face of these enormous challenges, he invited Justice Manmohan to present his remarks.
Justice Manmohan, in his opening remarks said that the rationale or the intent behind the copyright law is to promote human ingenuity and human creativity. Copyright Acts world over, including India, he said, promote the creation of artistic works by conferring a bundle of rights on owners and creators, and providing remedies in case the rights are infringed.
Sharing his thoughts on the online world, he argued that supporting the blocking of websites or sites dedicated to piracy does not make one an opponent of free and open internet, but a protector of cyberspace. Advocating limits on accessing illegal content does not violate open internet principles, he added.
Speaking of measures taken by various governments, he said that countries dealing with the protection of IP rights have employed working with internet intermediaries as the main solution, while the concept of dynamic injunctions has been found to be an effective deterrent to mirror websites.
Citing challenges like the interplay between AI art and IP laws, the territorial nature of IP laws which strike at the very concept of copyright, he said that it is time for a neutral agency like the UN or WIPO to prepare a model IPR law for the entire world.
Commenting on the abolishment of IPAB and FCAT, Justice Manmohan pointed out that the power which a High Court judge enjoys is far better than any tribunal. It is therefore important, he continued, to keep aside the desire for speedy justice via tribunals and focus on bettering the High Court’s ability to provide justice. This can be done by appointing a specialised judge in the High Court dealing with IP jurisdiction, he offered.
In conclusion, Justice Manmohan said though the Copyright Act is very important, at the moment, “it whirls through the maze of a glamorous hall”. He emphasised the need to keep pace with the fast-changing ground level reality, soon to be a major challenge to many fundamental concepts in the coming years.
Mr Rajendra Kumar, Counsel & Senior Advisor, K&S Partners, turned the attention of the participants to the panel discussion.
Speaking of the value the M&E industry brings to the economy, Ms Lohita Sujith, Sr. Director – Copyright & Digital Economy, Motion Pictures Association, informed the panel that the gross output of the M&E industry was 349000 Cr rupees, while it supported 26.6 Lakh jobs. The significant role of IP in the growth of creative industries, therefore, is absolutely crucial, she added.
Further, she said that given the right impetus from a policy point of view, the M&E industry has the potential to support at least 1.1mn jobs and add at least 2,33,000 Cr of total gross output to the economy in the next 5 years.
However, she continued, in the process of providing an internet-based service, sometimes copyright is infringed – inadvertently or with intent. There needs to be clarity in the law whether there is a secondary liability if such service providers do have knowledge on copyright being infringed. Further, there is also a need for urgency in taking down the content from an infringing website, she added.
On the subject of theatres being exempt from paying royalties as exploiters, Mr Zameer Nathani, Sr. VP and General Counsel, UFO Moviez I. Ltd., said that the argument in favour of the theatres was that out of the 1000-1500 films that release per year in India, 60% make losses. The rest manage to barely cover their costs and make minimal profit. Further, he said, that coupled with the cost of running a theatre, if theatre owners were made to pay royalty as exploiters, the argument was that theatres would cease to exist. In light of these facts, the government, in its wisdom, rightly decided to exempt theatres from paying royalty as exploiters, he concluded.
Staying on the subject of royalties, the panel unanimously agreed that the Copyright Amendment Act of 2012 needs clarity, and that ironically, the act itself is the biggest hurdle in the collection of royalties. “Confusions created in Sections 17, 18, and 19 are standing in the way of collecting royalties. There is no clarity between who collects from whom and how much has to be collected. This debate itself is the biggest challenge in the collection of royalties,” Anil Lale, General Counsel, Viacom18 Media Private Ltd. said.
Further Mr Lale pointed out that even the most effective model, a private-public partnership like the Maharashtra Cyber Digital Crime Unit (MCDCU), has its limitations as a state agency in terms of jurisdiction. Further, dynamic injunctions and erstwhile John Doe orders directing ISPs to block pirate websites have also proved to be effective. However, this too is akin to treating a symptom as it doesn’t stop the pirate in his tracks. And considering that a fight against a pirate website is difficult for corporates to undertake as well, the question of what happens to the individual IP owner in such a fight remains unresolved, Mr Lale explained.
The only way forward, Mr Lale said, is a private-public partnership like the MCDCU as a central nodal agency with jurisdiction across India. Similarly, an agency for cooperation between nations is also the need of the hour, he concluded.