SpicyIP Guest Post: High Level Committee recommends a ‘three-strike policy’ and other measures to curb piracy

Thanks to Sai Vinod Nayani, our serial guest blogger, we have this very interesting post on a recent report by a High Level Committee on Piracy. Apparently this committee has recommended that India adopt a ‘three-strike’ policy to curb internet piracy. Readers who have a copy of the report are requested to please pass on a copy to us.
by Sai Vinod Nayani

The high profile committee set up last December by the Ministry of Information & Broadcasting having the likes of Mr. Yash Chopra and Mr. Manohar Shetty and headed by the Special Secretary of the Ministry Mr. Uday Kumar Varma to suggest measures to combat video and audio piracy has submitted its report last August. The recommendations according to the press release are measures to make “piracy substantially risky and financially unattractive”. The following are the recommendations of the committee:
Source: Image from here

(a) Three-Stage Strike Model for ISPs
The Committee recommended “action against errant subscribers” by ISPs adopting a “three stage strike model” but nothing was spelt out regarding its working. A similar policy is already in place in certain Western democracies and the same has been endorsed in the latest draft of ACTA. The ISPs issue warning notices with conclusive evidence to its subscribers infringing copyrights and would take down connections on repeated infringements. A record of infringers is maintained by the ISPs and this would be disclosed to the copyright holder who further can take recourse to courts for damages. This would greatly compromise privacy on the internet and this measure has been termed as “draconic” by human rights groups. Mindful of India’s vehement opposition to ACTA and its willingness to go to any extent to “sabotage” the negotiations for various reasons, implementation of this policy is unlikely.

(b) Prohibiting Cam-Cording Devices
Film-makers bank heavily on openings for recovering costs and protection from leakages is vital. The Committee suggested that an obligation be placed on theatre owners to ensure that no viewer would use cam-cording devices during the screening. However, there are numerous instances where the theatre operators themselves have facilitated such recording straight from projector cabins. It would be meaningless if action is not taken against such operators. The industry has recently witnessed instances where audio and video was available on the internet before its official release and this cannot be possible without the help from the people within.

(c) Conversion of traditional theatres into digital theatres in smaller towns
This has a favorable impact streamlining distribution and associated costs. Furthermore, leakages by unauthorized conversion of traditional reels into beta version and from that to DVDs can be plugged. Digitalization is inevitable in the future and as pointed out by the committee over 3000 theatres have already been converted. Hence, any resistance from operators should be overpowered and the process should be completed.

(d) Reducing the cost of legitimate optical discs and simultaneous release of DVDs along with theatrical release in big cities to “make piracy unviable”.
Keeping in view the accessibility and affordability of optical discs by the consumers, the Committee suggested a laudable move to lower prices without compromising on the quality. Such a move obviously would discourage people from purchasing pirated copies. However, it is hard to match the pirated copies as associated cost in making such copies is just the disc. So, the prices of original copies should be competitive to pirated copies and this allows very little scope to exploit commercially.

According to the prevailing practice in the industry, the movie is first released in theatres followed by transmission through cable and satellite and finally through discs. This enables film-makers to exploit each window at a time. Simultaneous releases have been tested before and results have not been inspiring. There is a great risk of eating up revenues from each other widows for the simple fact that there exists an opportunity for multiple viewing using a disc and the same is absent with theatre releases. The threat of piracy should not be forgotten. Hence, the focus of reform should be towards protecting leakages at each window.

(e) Licenses for Cable Operators
Transmission of latest films through the cable network without copyright license (sometimes hours after theatre release) is a common site in most parts of the country. An amendment to Cable Televisions Networks (Regulation) Act shifting from the existing mandatory registration to license has been suggested. However, relevancy of such move in eliminating piracy is unclear. Under the existing system it is illegal and criminal liability is attached to anyone operating a cable network without registering. Further, government has the power to prescribe a “programmme code” which if not adhered attracts imprisonment. Introduction of licensing system would do nothing different from the existing framework. Furthermore, there is no justification for government intervention in aspects other than ones incidental to cable operation and it should instead focus on effectiveness of these provisions since it has been over a decade since these measures have been introduced.

(f) Preventive Detention of Pirates
In the last decade states such as Maharashtra, Kerala and Tamil Nadu have enacted laws authorizing preventive detention of pirates equating them to “Goondas” and Andhra Pradesh is contemplating such a move. The competency of state legislature in enacting such laws has been questioned before the Madras High Court. However, these measures have not demonstrated any signs of improvement at the ground level. Burma Bazaar in Madras still continues to be the biggest hub for video piracy. Piracy is an organized crime and it funds terrorism. The impact of preventive detentions would be limited to the surface and it does not weed out the root cause because the big fish would still be at large.

(g) Miscellaneous
The Committee has also suggested the Ministry to support and encourage initiatives such as the “Alliance against Copyright Theft”• Furthermore, it called for sensitization of police, judicial and administrative officials on related laws and efforts to up-scale training and capacity building to minimize violations. Another measure irrelevant to curbing piracy is the online registration of films with the Copyright office or in the alternative admitting censor certificate as evidence of copyright.

It is common sense that as long as there is a demand from viewers and in the absence of adequate supply through legitimate means, there is always fuel for piracy markets considering quality has no impact on preferences of majority consumers. So, the cumulative effect of measures should have a dual effect decreasing the rate of piracy and at the same time incentivize the operations to make counterproductive measures harder to succeed and the recommendations falls short on this aspect although it seemed to have made in this direction.

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