Shemaroo Entertainment secures a curious John Doe from Bombay HC

 Entertainment industries everywhere around the world tend to put in years of hard effort and monetary investments to being their creations to the audiences.  Speaking of the Bollywood Industry, there’s a clear divide between works and ‘works of art’ – every time you give your eyes the unsolicited pleasure of watching an Aap Ka Suroor or Bodyguard, you think the bar can’t fall any lower, and come Happy New Year, you’re forced to reconsider your earlier affirmations.

However, regardless of how grueling it may be to sit through some of the worst movies you may ever watch, piracy has been causing magnanimous losses to the entertainment industry for the longest time now, and well, it’s hard on the Humshakals and Barfis alike. Although we love our torrents, the truth is that the whole affair is rather unfair on the movie industry – after spending crores on making their movies, producers spend sleepless nights worrying about pirated versions of their movies releasing in the form of CD and digital copies while the movies are still running in the theatres.

We recently received information in the form of a Press Note released by Shemaroo Entertainment, that the production company has procured a John Doe order from the Mumbai High Court to pre-emptively protect its recent March 20 ‘Hunterrr’ movie release from the clutches of the crafty movie pirates.

We weren’t able to get our hands on the order, but the Press Note says that it restrains any person from  :

“ downloading from internet/ telecasting/ broadcasting/ distributing/ putting on the cable TV network/disseminating/reproducing or otherwise making available to the public, the film ‘Hunterrr” or “from (i) making a copy of the said film, (ii) to sell or give on hire, or offer for sale or hire, any copy of the said film (iii) to communicate the film to the public in any manner whatsoever including by way of but not limited to telecasting and/or re telecasting the said film, or even otherwise dealing with the rights in the said film which vest exclusively in the Plaintiff, in any manner whatsoever”

and

“from communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading or exhibiting, or playing, and/or defraying the movie “Hunterrr” in any manner from the Plaintiff or in any other manner which would violate/infringe the Plaintiff’s copyright in the said film “Hunterrr”.

What has, however caught our interest is the statement made at the very beginning of the Note, stating verbatim, “The order, not only restricts piracy on cable, digital and physical medium but action can also be taken against a person watching the film from an illegal source”.

However, don’t worry just yet. Heaven hasn’t got a plan for you, but Indian copyright laws don’t on anti-piracy either, so nobody’s stealing the benefits from you just yet.

While the legal legitimacy of downloading movies or streaming it online is a subject of wide debate, the present Indian laws don’t appear to, atleast expicitly, incorporate provisions that can permit prosecution of persons for viewing illegal copies of cinematograph films.

However, here there seem to be two questions to look at – firstly, whether viewing content online amounts to infringement, and secondly, whether downloading such content is infringement.

In an earlier post, Gopika reported about the Public Relations Consultants Association Limited v. The Newspaper Licensing Agency Limited case on the issue of whether merely viewing content on a website without a license would amount to copyright infringement, where the UK Supreme Court held that as such an act does not constitute infringement of exclusive right to reproduction of the copyright owner, and fell under the exception stated in Article 5.1 of the Directive 2001/29/EC. This case seems to provide more perspective on the first question.

While the Press Note asserts that downloading the film from an illegal source amounts to infringement and action can be taken against such persons, I have serious doubts as to the legitimacy of this statement in the light of India’s prevailing copyright law because the issue of the legality with regard to private, non commercial downloading in general has yet to be taken up and considered by Indian courts.

Relevant Provisions of the Indian Copyright Act

As far as the Indian Copyright Act is concerned, Section 14 of the Copyright Act confers upon the owner of copyright the exclusive right to reproduce and issue copies of his work, and to make any cinematograph film in respect of the work and communicate it to the public.

Section 39(a) of the Act states that, “No broadcast reproduction right or performer’s right shall be deemed to be infringed by the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research.”

The Act defines ‘broadcast’ in Section 2(dd) of the Act as “communication to the public (i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii) by wire, and includes a re-broadcast”.  When this section is read with Section 39(a) it appears that communication of the film to the public can be construed as broadcast, and the downloading of such material could amount as a reproduction of the film for private use, thus falling well within the ambit of the law.

Further, Section 51 lays down the acts that result in infringement of the copyright owned by the owner, which includes

• doing anything that falls within the owner’s exclusive right
• makes for hire/sale or sells or lets for hire
• distributes for trade or in a manner that prejudicially affects owner’s right
• by way of trade exhibits in public
• imports infringing copies of the work into India ( subject to the exception that import of one copy of any work for the private and domestic use of the importer shall be allowed)

In the Canadian Supreme Court judgement in Law Society of Upper Canada v. CCH Canadian Limited, which was cited in India’s EBC v. D.B.Modak case, stated that “In assessing the character of a dealing, courts must examine how the works were dealt with. If multiple copies of works are being widely distributed, this will tend to be unfair. If, however, a single copy of a work is used for a specific legitimate purpose, then it may be easier to conclude that it was a fair dealing. 

Considering the fact that piracy to a large extent takes place through the uploading of copies on internet websites, the word ‘ímport’ here need not necessarily mean receiving a CD copy of the film in your mailbox, and seems to suggest that the downloading of pirated movies perhaps may not be held as infringement.

Section 52 then lays down the acts that are not to be considered as infringement, with 52(a) in particular making a wide exception for acts associated with cinematograph films that may have otherwise been construed as copyright infringement, by adding through the 2012 amendment, a fair dealing clause applicable to cinematograph films as well, allowing reproduction for the purposes of :

• private use, including research;
• criticism or review, whether of that work or of any other work;

None of the above provisions explicitly claim that viewing pirated content constitutes copyright infringement.  While the act of pirating a movie and selling it for profit or otherwise through an upload online or through sale of CDs may very well amount to copyright infringement  by constituting illegal issue of copyrighted material to the public, so far as whether the mere act of viewing the content made available is concerned,  does not appear to be an illegality under Indian law.

As Swaraj quite plainly put it, either the Court got it wrong or the Press Note did.