Piracy and Indian Copyright Law

Piracy is an offence in India punishable with imprisonment of 6 months upto 3 years and/or a fine of Rs. 50,000/- upto Rs. 2,00,000/- (approximately US$ 1086 to 4347). India enacted Copyright law in 1957 and cast statutory recognition on Copyright in various classes of works. The Indian Copyright Act provides the mechanisms for exploitation (by licensing and assignment) and protection of Copyright (through Civil and Criminal remedies). Copyright in a work vests with its creator and comes into existence by the mere act of expression of the work in any form or medium.

Registration of Copyright is not mandatory for protection, even though it is advisable to obtain registration as it facilitates in proving title. Registration is granted by the Registrar of Copyrights who is placed within the administrative jurisdiction of the Ministry of Human Resource Development of the Government of India. In addition to Civil remedy of injunctions and damages made available to owners of copyright, the law empowers any person to set the same in process against the offence of infringement of copyright i.e. piracy. An action against piracy can be initiated by informing the Police about its happening. The law casts duty on the Police to take cognizance of any report/ instance of piracy and empowers the Police to initiate ex-officio action.

The law has provided effective recourse to interim relief to right owners against infringement. This is evident from the sheer numbers of cases against infringements filed and/ or pending before Civil & Criminal Courts in the last decade. But it has been unable to provide effective final relief due to absence of grant of damages and prison sentences. This obviously has led to creation of firm belief that the law is incapable of putting away its infringers and infringement of copyright.

Piracy and Business

All types of copyright suffer infringements including in books, films, software, music, art, paintings, themes and it is a foregone conclusion that the Copyright in any popular work would be pirated.

Copyright owners and businesses have come to accept the function of protecting copyright as one essential for successful business in copyright, especially so in India. In the last decade campaigns against piracy have been launched in most copyright industries including music, software, films and publishing. These campaigns have made significant impact in curtailing the reach of pirated products while at the same time increased the market share for genuine publications.

The Anti-Piracy Campaign in India

In the year 2000 The Publishers Association of United Kingdom (PA) caused a survey of book sellers at Delhi which found 85 of the 115 shops surveyed selling one or the other type of pirated books. Best selling school, academic text books and trade fiction and non-fiction were pirated by making cheap but good quality offset reprints. These were identical in every regard to the original publication. Also available were black & white and colour photocopies of medical books and reference materials as well as higher education text in computer and technical education. The pirated books were priced at less than half the price and photocopies at less than 1/10th the price of the genuine publications. Piracy of books was rampant in most cities mainly because no actions had been taken so far. Delhi acted as the hub for all pirated businesses.

In Mumbai there was a road stretch of few miles with more than hundred street side retailers selling all kinds of pirated books. Photocopied books suppliers operated from on campus licensed copy shops’ in leading medical colleges and genuine library books were used to make photocopies for commercial sales. Pharma Companies were making “nice looking hard bound gold embossed” photocopies of leading medical journals for complimentary distribution to doctors. The disregard for copyright law was so blatant that these did not even hesitate in affixing stickers of their new drug releases on the photocopied journals.

On 2nd August 2000 the PA filed the 1st complaint against book piracy at Delhi. The IP Cell of the Crime Branch of the Delhi Police conducted simultaneous search and seizure operations at more than a dozen locations and seized 3040 pirated books and 6 copiers. 9 persons were arrested and a criminal case was registered. Shortly thereafter the 2nd PA complaint was filed with the Police at Hyderabad against piracy of computer & software books, leading to immediate raids. The raids caused instant recovery of market lost to piracy. The beneficiary publisher reported increase in sales of one title in one academic session of US$ 100000.

Following successes at Delhi and Hyderabad, in June 2001 the PA launched a sustained campaign against piracy in India with raids at Delhi which exposed 5 leading fixers of piracy. The half decade old campaign has delivered spectacular successes which have forever changed the way copyrights are dealt with in India. Each raid yielded ten’s of thousands of pirated books. Courts have rejected bail applications and denied anticipatory bails to book pirates at Delhi, Mumbai, Hyderabad, Chennai, Bangalore, Meerut etc.

Till date Indian Police in 11 States have seized 627,649 pirated books, 9 printing presses, more than 50 photocopiers and registered 107 criminal cases against more than 328 arrested book pirates in India. The arrested include large book seller and even the librarian of a State owned medical college who was arrested for misusing State property to undertake the business of piracy.

The campaign not only concentrated in initiating criminal action against wrong doers by carrying out arrests, search and seizure operations but also focused on training police officials and conducting seminars and awareness programs to fight the problem at its root. At the same time, lobbying with government officials has sensitized them and brought their attention to the many hurdles faced by publishers.

Losses to Piracy and delayed Prosecution

Industry estimates of loses to piracy range between 25 to 40% revenues. Prosecution of pirates is essential for long term deterrence. More than 100 criminal cases against book piracy are pending in Indian Courts including the above mentioned 1st case of year 2000. Piracy continues since prosecution of copyright violators is yet not a priority. Prosecutions are delayed since investigating officer, prosecutors and often the Courts are not versed in handling Intellectual Property cases. The Copyright Industries have repeatedly sought establishment of specialists Courts but there are others who hold the view that even specialists Courts would have to function within the existing procedures and hence are unlikely to solve the problem. The immediate need is for proactive ness where for example criminal cases atleast against repeat offenders are sent for time bound trial. At the moment, shortly after each enforcement action the respective anti-piracy case joins the long ‘queue” of cases pending prosecution and in case the accused chooses to continue with piracy the right owners only option is to initiate a fresh case.

Having suffered the heat of the campaign and loss of shelf space, pirated books have now surfaced at traffic light junctions and/or are sold clandestinely. Pirated books manufacturers have networked and production has been distributed all over the country to evade seizure of complete stock. The new centers are at Mumbai and Bangalore which has alone seizure of 51173 pirated books in 2006 and 50,000 copies in 2004.

Sustained actions have paid well as leading long time book pirates have given up book piracy in view of the increased risk in the business including loss of large stocks of pirated books to police seizures, long term of investigative custody, legal costs, etc. In addition to the above the PA Anti-piracy campaign has instilled respect and value for Copyrights in the Publishing Industry. Publishing companies have been encouraged to take on traditionally chronic problems like plagiarism and new ones of leakage as well as piracy on the internet.

Plagiarism and unauthorized translation

Plagiarism has been rampant in India. Most of these happens through publications of guide books alias ‘duggies’ which are often described as a reliable friend of an Indian student during examination. Publishers of such guide books customize these books for students by blatantly plagiarizing and copying content including tables, diagrams, examples, illustrations exercises etc from the original text books. Often two or more works are compiled in one such guide which is cheap and sold at one third the price of the original work. The good news is however that the Courts in India have upheld the copyright of the genuine publishers and the Delhi High Court has restrained even 2% similarity as long as the same is substantial. For example in case of academic and school text books any similarity in the domain knowledge of the authors is clearly substantiated hence plagiarism.

Similarly the Courts have not taken too lightly to unauthorized translations either. India is a country of various languages and innumerable dialects. A best seller falling prey in the hands of an unauthorized translation is therefore not a very remote possibility. While pro activeness is required on the part of the Copyright owner in preventing such misuse, the Courts have respected copyrights and have restrained unauthorized translation, adaptation and abridgement of literary and artistic works.

Leakage

A recent disturbing development is the export of low priced editions, meant only for sale in South Asia into other countries including US, UK and Africa. In order to combat piracy, some international publishers reprinted special low priced editions of latest and widely popular academic text, while restricting the territory of its circulation to the South Asian region. Even trade titles have been distributed at prices much lower than their international edition.

It is not known if reducing prices at all helped battle piracy especially as it does not take more than a dollar and half to print and distribute a pirated copy of any book. But the unusually low prices of genuine edition caused a unique and unexpected problem when these restrictive editions started leaking into the western markets causing substantial damages to revenues. Publishers affixed notices on these special India only editions but their exports have kept growing through 2004 to 2006. In last few years hitherto unknown book sellers have launched websites which offer cheap Indian reprints of latest books to customers worldwide at unbelievably low prices with the facility of efficient world wide delivery through services such as UPS.

In July 2006 the Indian Custom accepted the first complaint against infringement at the borders. The complaint was filed by the PA with Indian Customs at Nhava Shiva Port against the export of low priced India only/South Asian editions to Africa. The complaint sought confiscation of any books reproduced for the purpose of restricted circulation & distribution only within specified territory being exported outside the territory specified on the cover of each book, as it constitutes an “illegal export” within the meaning of the term as defined under Sec.11 of the Indian Customs Act. It is still too early to determine the success of this initiative, even though the Customs officials extended the fullest of their cooperation simply because detecting such a consignment is like looking for a needle in a haystack.

Piracy by eBooks

Fighting piracy by e Books is the latest to join the to-do list of publishers. Piracy by e Books may have been a by product of various State sponsored and private initiatives which digitized the contents of books and journals kept in various Indian libraries and networked the content for access of institution all over India. No licenses were taken for undertaking these initiatives and as feared, the digitized content found its way out of these intranets / servers, in to the open market. CD-Rom’s each containing 100 – 200 computer and software books were offered for sale on email for 3 US$. These e Books were then put up on intranets and public folders in computer networks of public and private educational institutions. Pirated e books are openly hosted on internet websites of various institutions of excellence in India. Also single user passwords of electronic journals are freely exchanged between libraries and even put up for use by all on their websites.

The PA and author Ms. J.K. Rowling issued cease & desist notices to one such Indian institute in the field of fundamental research and obtained a written apology. The institute immediately pulled down the infringing eBooks.

Recently, publishers discovered an internet website belonging to an Indian computer professional which was offering 700 best selling academic and trade titles for a sum of US$ 27 (Rs.1000/-.). This website was offering for download infringing e Books, which were hosted on its own server in the United States of America. This was in contrast to the practice of such websites which usually distribute URLs/links of ebooks and do not host the e files on their own server mainly to avoid any liability for infringement. Legal notices were issued to the website and its domain registrant. The infringing materials were removed immediately and the website paid a compensation of US$ 7500/-. This was a rarest of the rare development especially as this was a case of infringement of copyright on the internet, where it is common for amongst infringers to disappear without trace if faced with legal proceedings.

Indian urgently needs new measures for promotion and protection of Copyrights

Copyrights are precious national assets with huge business potential. Anti-piracy delivers business needs and so does Indian Law provided the approach is oriented to solutions and change. Urgent change is necessary in how the Government is known to view Copyright - To reap the potential of copyrights. India urgently needs new measures for its promotion and protection.