With the number of active web users growing every day, piracy remains a big threat and needs to be addressed through multiple strategies targetting different areas
The previous decade was noteworthy for a number of reasons, not least of which was the sharp rise in the number of Internet users — more than a billion people from across the world joined the new Internet bandwagon in the last six years alone. This has had massive cultural implications, requiring the revision of legal, economic and technological frameworks. Intellectual Property (IP) frameworks have received much importance in this era, especially because they can impact areas beyond IP. For instance, copyright laws can have implications beyond the digital content ecosystem and can extend to an array of areas such as free speech, the flow and availability of information and the manner in which cultural products such as art, music, film and the like are produced and exchanged.
Such cultural products in the creative industry play an important role in a country’s economy. For instance, the Indian creative industry (largely comprising the media and entertainment industry) is poised to be worth $31 billion by 2020 and is expected to create over a million jobs by 2022. However, this industry has repeatedly highlighted copyright piracy as a major issue that eats into its profits significantly. While this is an issue that has practically been around since the beginning of the copyright framework, technological advancements have meant that it is now possible to make perfect replicas at a scale almost instantaneously and with much easier access.
One of the first steps to tackle piracy is to understand its underpinnings and to assess the factors that contribute to it. A few studies in this regard have been there in India and they indicate that piracy is influenced by several factors — ranging from personality-based to social and cultural. However, the overall lack of information about various aspects of this issue is a problem. There is no recent academic literature on the drivers of piracy and more importantly, there is a lack of reliable data on the total size of the cultural economy in our country.
This lack of information complicates policy and law-making in this area. While the standard legislative response has been to use stringent penalties for copyright infringement without accounting for differences in the kinds of infringement and infringers, this approach has had limited success. Then there are also other challenges that relate to tackling digital piracy. We have an overburdened judicial system, disparate enforcement mechanisms, a fragmentate supply chain and more generally, the absence of a widespread understanding of “copyright.” Additionally, since “law and order” is a State subject under the Constitution, enforcement relies on respective police forces, making it difficult to implement centralised and uniform enforcement strategies.
Other measures that have been effective in controlling piracy include a reduction in the “windowing period” between releases abroad and in India. This means lesser the time taken for a new release to be made accessible through legal platforms, the more likely is it that users will consume such content through legal means.
This can be effective when such content is easily available on various over-the-top (OTT) platforms for content that is highly anticipated. Another development that has been instrumental in reducing piracy rates has been the introduction of online streaming services, making legal content easily available at a reasonable price. However, the effect of the stark increase in the number of streaming services, all with their own catalogues and separate pricing plans, is yet to be seen.
Nevertheless, other technological measures can be useful in this regard. For instance, various forms of water-marking techniques have been used to identify the source of pirated content, fingerprinting and related technologies have been used by platforms such as YouTube and Facebook, which host user-generated content, to combat infringement by helping to identify and block the illegal use of copyrighted content.
More recently, blockchain technology is also beginning to be explored as a means to combat infringement, both as a way to establish a chain of contact for content and to expose piracy through the use of Bitcoin rewards to incentivise the detection of pirated content. While these methods have varying rates of success in combating infringement, upgrades and innovations in technology, especially those that combine various existing methods, can be expected to make them more viable in the future.
The use of soft-law approaches along with public-private partnerships have also been effective in targetting piracy, especially where they target revenue models of those indulging in large-scale piracy. For instance, infringing website lists, which identify websites that host pirated content, have been used to reduce advertising, thereby disrupting revenues. Such lists are usually prepared by law enforcement or other arms of the Government in partnership with the private sector. For instance, the UK’s Police Intellectual Property Crime Unit partners with experts, companies and law enforcement agencies in other countries to counter crime on an international scale. It compiled an IWL as part of its “Operation Creative” initiative, which helped reduce advertising on illegal websites.
More localised and country-specific lists are also being used to target the revenue of websites hosting pirated content. In India, the Maharashtra Cyber Digital Crime Unit, which is a part of the State’s cyber police force, works on a model that relies on collaboration with the private sector. It has taken down hundreds of websites that host pirated content and has sent notices to different brands and networks advertising on such websites.
Piracy is, therefore, a complex issue with numerous drivers and needs to be addressed through multiple strategies targetting different areas of the ecosystem. In this context, a report by the Esya Centre titled, Trends in Copyright Infringement and Enforcement in India, explores the issue of copyright piracy and the challenges in effectively countering it. It examines legislative, judicial, policy and technological best practices both from India and internationally to inform next steps in this regard.
What is clear is that in framing responses to piracy that are effective and time-sensitive, it is essential to have in place judicial safeguards to ensure that all interventions are narrowly tailored and aimed only at addressing piracy. This because of the impact that these laws can have on issues of free speech and access and because it is important to also account for fair dealing exceptions provided for under copyright law. Ultimately, copyright forms a part of larger goals of increasing innovation, promoting research, progress in the arts and sciences and providing fair wages to creators of various kinds, among others. It is essential to situate copyright in that larger context and tailor remedies for infringement within those bounds.
(The writer is a junior fellow at the Esya Centre)
