Recent reports about the change in copyright infringement warnings on various websites have triggered anxiety among many Internet users in India. While the government has maintained a list of banned websites for quite some time, the warning that one earlier saw merely mentioned that the website had been blocked under directions from the Department of Telecommunications, while the new message warns against the viewing, downloading, exhibition and duplication of the contents of the URL as being offences which are punishable under Sections 63, 63-A, 65 and 65-A of the Copyright Act. It further states that these provisions prescribe a punishment of up to three years and a fine of up to Rs.3 lakh.
Internet users in India, many of whom routinely use torrent sites to access a range of entertainment and other content, are understandably worried about the new punitive rhetoric that underlies the warning. It may therefore be useful to unpack what the law actually says on the point and also examine the impulse behind this rhetorical shift within the logic of copyright enforcement.
Conflating various provisions
Sec. 63 of the Copyright Act, which deals with the offence of infringement, provides that any person who ‘knowingly’ infringes copyright or abets in the infringement of the same may be punished with imprisonment (minimum of six months and extendable to three years) and fined up to Rs.2 lakh. The new warning seems to have accounted for inflation and arbitrarily extended the fine amount to Rs.3 lakh, but that is only one part of its disingenuity. What the warning does is to conflate all the provisions and flatten them as though they all deal with a singular thing called infringement.
It is important to remember that the provision of the Act itself distinguishes between commercial and personal infringement and it provides that where any infringement has not been made in the course of trade or business, the court may impose a term for less than six months and a fine of less than Rs.5,000. Sec. 63-A deals with repeat offences and provides for a higher fine and imprisonment term for someone who has already been convicted for an offence under Sec. 63. Sec. 65 deals with the possession of plates for the purposes of making infringing copies, a term inherited from print piracy which deals with mass reproductions of material such as bestsellers. And finally Sec. 65-A deals with the circumvention of technological measures for protecting copyright or what is popularly known as digital rights management with the intention of infringing rights. And even within this provision there are a number of exceptions provided where someone may legitimately circumvent a measure for technological protection.
It is abundantly clear that the warning is neither accurate in law nor entirely honest in its invocation of the penal provisions of the Copyright Act. While it is true that some of these provisions penalise the infringement of copyright, the fact is that the provisions which have been cited in the warnings all pertain to different acts and to different degrees of liability accruing based on the nature of the act, the pecuniary gains, etc. The requirement of knowledge in the case of Sec. 63 and intention in Sec. 65-A establishes a relatively high burden of proof on someone claiming infringement, but the warning seems to shift this burden and creates a presumption that any act with respect to a prohibited URL would necessarily be infringement.
What happens in cases when someone uses file-sharing mechanisms as a way of distributing public domain material? Raj Kapoor’s Awaara, for instance, is available through The Pirate Bay, but it is a film whose term of copyright has expired and may be legitimately downloaded from The Pirate Bay. By flattening the differences between the provisions, the warnings seek to rely on a by-now-well-known strategy of ‘shock and awe’. Just as the global war against terror obfuscated the debate through the rhetoric of shock and awe, the war against piracy relies on a similar strategy that conceals rather than illuminates some of the key questions.
Piracy as a productive force
The question of copyright and the appropriateness of a model that treats intangibles as property has been seriously questioned both in terms of its normative basis as well as in terms of its efficacy. Rather than just seeing media piracy as a legal or a moral problem, it would be more accurate to see it as a global pricing problem. High prices for media goods, low incomes, and cheap digital technologies are the main ingredients of global media piracy. Media piracy arises when market failures meet increasingly cheap and improved infrastructures (bandwidth, hardware) of information transmission. Does this pose a problem to owners of copyright? Of course it does, but there is nothing new about that.
Every technological advancement starting from the print revolution has transformed the ways we access knowledge and culture and innovations in technology have also been accompanied by innovations in business models. Thus while the introduction of VHS and video cassettes were predicted to be the death of the film industry, what happened instead was the creation of a new business model of home entertainment. In the Indian context, Moser Baer recognised this with their introduction of low-priced DVDs which competed with the pirate markets. So assuming that the desire for low-cost entertainment is not going to disappear, the options are either a rethink of the business models or to rely on penal laws to protect any older business model.
The shift in the nature of the warning seems to suggest that the government and private players have opted for the latter. This may be a short-sighted strategy that misrecognises the role piracy has played not just as a destructive but also as a productive force. Piracy indeed does impose a range of costs on producers and distributors of content, but in developing countries they also act as the main source of access to a wide range of media and knowledge. One good example of this is LibGen, a site which provides access to thousands of pirated books, many of which are not just not available or affordable in India. While this is indeed piracy, if we were to suspend for a moment our legal and moral indignation and ask what other descriptions one could give of LibGen, then as Bodo Balazs – a scholar of piracy studies – provocatively argues, it has been the single greatest knowledge transfer project in the history of humanity.
Not a settled debate
It is also important to understand the dynamics of media markets in emerging markets, and the harms of piracy should not be treated as settled question, but one that needs more debate. Studies have shown that the perceived harms of copyright infringement may be overstated and the presumption that every download equals a lost sale is just not true. In a global comparative study of media piracy in emerging economies it was found that there was no correlation between the commercial success of a film and the number of times that it had been downloaded, and it was indeed the case that the films which were downloaded the most were also the most successful ones at the box office.
The new warnings and the panic it seeks to create are counterproductive for all parties – consumers, governments and copyright interests – that drive the enforcement agenda, and there is a need to frame the debate within a larger structural understanding of the complex dynamics of the costs imposed by more stringent enforcement of copyright. The history of technology and cultural production is a contested history in which new technologies disrupt existing power relations, redistribute the means of cultural production and redefine questions of access. The war against piracy addresses only one axis of the debate and as with all wars which are being lost, you hope to win by heightening the rhetorical stakes. Perhaps this ill-informed and misguided set of warnings should be taken not just as a moment in which we panic but one in which we collectively raise larger questions and challenge the logic of stronger penalising of knowledge offences.
We are, after all, from the country which produced the most subtle text of literal and moral wars – the Mahabharata – in which Ekalavya, when denied a privileged education, created the first pirated copy of Dronacharya to educate himself. Ekalavya paid a terrible price – the cutting of his thumb – but there are still millions who bleed as a result.
Lawrence Liang is a professor of law at Ambedkar University, Delhi, currently teaching at Yale University.