Screenager versus Kerala’s Bizarre Copyright Law

[Edit: The original post had erroneously stated that the arrest of the teenager was carried out under The Kerala Anti-Social Activities (Prevention) Act 2007. The author regrets that the title may have been chosen hastily.]

In a bid to prevent online piracy which is on the rise in Kerala’s film industry, Mollywood, Kerala police recently arrested a teenager for uploading a copy of the Malayalam film ‘Dhrishyam’ using Facebook (He had uploaded the film on Facebook in three sections/pages and it was shared by more than 10,000 people.)

A case was filed against the youngster for copyright infringement; the accused pleaded guilty and said that he never realized the gravity of the matter and that he acted on his own without any other intervention. Although the arrest of the teenager was most likely carried out under The Copyright Act of 1957, it is worth examining Kerala’s own state legislation which allows prosecution and conviction for illegal uploads of copyrighted material in Kerala, namely, The Kerala Anti-Social Activities (Prevention) Act 2007 (hereinafter referred to as “the Act”) and whether it can applied to the present case.

The Act is draconian and bizarre in this that it allows ‘preventive detention’ of a person accused of the offence of online piracy for a period which can extend to six months; the legislation also denies the right of legal representative to any person detained under the Act. [See section 10(3) of the Act].

Prashant and Sai Vinod have extensively discussed the constitutionality and implications of the said legislation in several earlier posts here, here and here. Constitutionality aside, the interpretation of the legislation itself needs to be revisited.

What is ‘commercial purpose’?

Section 2(h) of the Act defines ‘digital data and copyright pirate’ in section 2(h) of the Act as:

”digital data and copyright pirate” means any person who knowingly and deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific work and includes any person who illegally enters through the identity of the user and illegally uses any computer or digital network for any illegal personal profit by deceiving any person or any computer system. (Emphasis added)

In the present case, it would be wrong to apply the state legislation to the accused since  there was nothing in his act to suggest that it was done for “commercial purpose”.

While it is true that online piracy spreads by circulating content online, it is a reality today that most people view more movies online than they do at multiplexes and the simple act of sharing content online is never a conscious effort to promote online piracy, atleast not on the part of the end users.

The point I am trying to drive home is that most of the things that we as netizens do is out of a desire to share interesting stuff on the internet rather than to seek any commercial gain and it would therefore, be wrong to impute criminal intent to the teenager in this case (the news reports do not mention any allegation of “commercial purpose” made out by the film-producer.)

The film producer might argue that innocent or not, the act of uploading a film online causes revenue loss to the film and a blatant infringement of copyright; while this is true and in keeping with the spirit of copyright (one of the reasons why copyright exists is to ensure economic incentive to the creator), doesn’t it make more sense to go after the perpetrator, i.e., the websites which host copyrighted material and allow users to download the same? The practicality of this approach lies in this that punishing individuals for sharing/uploading movies will not stop the million others from sharing/uploading the film, so long as it continues to be available online. It is prudent, instead, to restrain the websites (on which the film is available) from posting the infringing material since they stand to profit commercially (by directing traffic to their websites/through advertisements) from distributing the film online.

Interestingly, there was a very recent Simpsons episode about online piracy which premiered as ‘Steal This Episode’ with one of the underlying sub-themes hinting at how one deserves a full movie-going experience for free because film studios make a lot of money!

In another example of online piracy, ‘Game of Thrones’ has recently won itself the title of ‘Most Pirated TV Show of 2013’ and it was heartening to know that the show producers are quite happy with the publicity generated around their show, thanks to the online pirates

Closer home, the critically-acclaimed and award winning film ‘Ship of Theseus’ produced by Recyclewala Films has been released online by the producers along with the director’s cut DVD release and can be downloaded legally for free; for the producers, this move will ensure that the film reaches a wider cross-section of the population which it could not earlier, because it is not a mainstream film.   A remarkable feature of their marketing strategy is the ‘pay as you wish’ model adopted by them- this means that those downloading the film are free to contribute any amount that they deem fit if they like the work. Experiments such as these in social media ensure multiple incentives for the film-makers by sufficiently promoting the film.

My objective in enunciating these illustrations is not to compel the film-producers to start releasing their films online but to realize that copyright legislations are being unfairly used against end users and individuals to combat online piracy. There is a dire need to distinguish between the websites which release illegal copies of the movies (thereby profiting commercially from it) and people who download movies for sheer entertainment.

It is time for the film industry to realize the near-impossibility of going after each and everybody who watches/shares their movies online and instead focus on smarter business models to garner revenue for their films without jeopardizing their audience base.