The first-of-its-kind initiative by the anti-piracy cell of the Kerala Police to register cases against 1,010 Internet users for uploading or downloading the Malayalam film Bachelor Party has sparked a debate between social media experts and legal puritans on what the law actually says.
Internet users and anti-monopoly advocates say the police action against movie downloaders is “questionable.” They argue how the Copyright Act, 1957, has given wide exception to those who disseminate copyright works for “personal and private use.”
Legal puritans, on the other hand, quote the same 1957 law and the Information Technology (IT) Act, 2000, to argue that the State police have not done anything wrong.
They say the act of uploading and downloading a copyrighted cinematographic work amounts to publishing and transmitting it, respectively.
They cite Section 66 of the IT Act, 2000, that says a “hacker,” if found guilty, can get three years’ imprisonment, a fine up to Rs.2 lakh, or even both.
That’s not all. Section 43 of the same statute prescribes that a “hacker” may have to cough up Rs.1 crore in compensation in case of “damage to the computer system.”
Some others draw the middle line about the police’s drive. They say that though downloading is as illegal as buying a pirated CD from the market and “ignorance of law is no excuse to escape prosecution under an existing law,” the sheer magnitude of registering mass cases against downloaders, probably on a global scale, is impractical.
“It is questionable whether downloading for personal use by itself constitutes an offence under the Copyright Act, 1957. The Act has created a wide exception for personal and private use,” says Pranesh Prakash, programme manager for Access to Knowledge, Openness, Internet Governance and Freedom of Speech at The Centre for Internet and Society in Bangalore.
The usage “personal and private use” in the Act can be better understood in the contrast — that is, downloading without any intention to “disseminate the cinematographic work to a community you are not provisionally associated to.”
Prashant Iyengar, Assistant Professor and Assistant Director, Centre for Intellectual Property Rights Studies, Jindal Global Law School, says the legislative intent behind the wide exceptions given to dissemination of work in the 1957 law is actually strengthening the public domain.
“In India under the Copyright Act, we have a robust regime of fair dealing rights to ensure that information cannot be monopolised at the expense of the public’s access to information,” he says.
He refers to Section 52 of the Act that allows reproduction of literary, artistic, musical, and dramatic works for research and private uses without any “quantitative restriction” on the amount that may be copied. “However, cinematographic works do not fall under this exception,” he says.
Under Section 51, a single copy of a cinematographic work could be “imported” to India for personal and domestic use. This would not amount to copyright infringement.
“But it is currently unsettled in law whether Section 51 would protect users downloading movies for their personal use. On the other hand, if you receive a copy of a movie CD by post, this section would clearly apply,” Mr. Iyengar says.
Pavan Duggal, senior Supreme Court lawyer specialising in cyber laws, differs in his opinion. As far as he is concerned, the law is clear against copyright infringement.
He says unauthorised downloading of movies also attracts action under the IT Act, 2000. “The legal perspective is that when you upload a pirated copy, you are doing an act of publishing and when you click the ‘download’ button, you are transmitting data in an electronic format for the purpose of diminishing the value of electronic information,” he says.
“The Kerala Police have not done anything fundamentally wrong by registering cases against uploaders and downloaders. When I am creating a film, I have copyright to both cinematic and electronic versions. In case of infringement, I can act by suing for damages, injunction, in addition to exposing the person to criminal liability under the Copyright Act,” Mr. Duggal says.
However, Mr. Iyengar vehemently counters the point. He asks a “pertinent” question — how the Kerala Police conducted their probe and how the Internet Protocol addresses were obtained when Internet service providers have strict privacy obligations against disclosure of any such details, except to government authorities.
“In this case, one hears that a private investigation firm called ‘Jadoo Infotech’ was involved in conducting ‘cyber-patrolling,’ which is not authorised by any law. They would be guilty of the digital equivalent offence of ‘lurking house trespass’,” Mr. Iyengar says.
But Nandagopal Rajan, an associate editor with a technology magazine in Delhi, has a simple logic grounded in law.
“Anybody who is downloading illegally cannot seek protection. You are actually doing something illegal. On the flip side, how many people can you prosecute?” he asked.