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The Camcording Piracy Bill Is A Shot In The Dark

BloombergQuintOpinion

India needs solutions against film piracy, but the anti-camcording bill is a muddled attempt.

Mobile-phone cameras, ever-improving in quality, have made it easy to furtively camcord films inside theatres. Following repeated appeals from Bollywood, the Prime Minister publicly promised action. The budget speech promptly announced “anti-camcording provisions in the Cinematograph Act to control the menace of piracy.” Shortly afterwards, the I&B Minister introduced the Cinematograph (Amendment) Bill in Parliament.

Past attempts to address piracy using the Cinematograph Act (seemingly aborted) include the draft Cinematograph Bill 2010 and recommendations by a committee headed by Justice Mukul Mudgal. The former astutely looked beyond camcording and prohibited duplication “in any form using any technology”. The latter proposed an entire chapter on piracy. However, such measures warrant close scrutiny.

Industry estimates of losses caused by piracy are alarming. A research paper by this author, consciously venturing beyond Bollywood, showed that arthouse and regional sectors are significantly affected. There are also transnational dimensions to the problem. For example, India has complained to the United States about several U.S.-based websites hosting pirated Indian films, cutting across languages.

Locally and globally, piracy flourishes because it is profitable.

Rogue websites are frequently supported through online advertising. A report by an advisor to then U.K. Prime Minister David Cameron claimed that pirate websites had generated over $200 million annually through ads — not merely of dodgy adult websites, but also well-known corporations, clueless about where ad agencies were promoting their wares. In India, Federation of Indian Chambers of Commerce & Industry and Strategic Intellectual Property Information tracked hundreds of pirate websites and found nearly 75 percent to be supported by ads, many of respectable firms. At a roundtable, voices from Member of Parliament to industry representatives called for modernising laws and adopting multi-pronged strategies. Instead, the bill is a piecemeal and unimaginative response.

The bill outlaws unauthorised copying or transmission (including abetment) in an “exhibition facility”. It punishes this with imprisonment of up to three years and/or a fine of up to Rs 10 lakh. The bill initially overruled “any provision of the Copyright Act”. Although it now omits this clause, it must fundamentally be asked why the Cinematograph Act is sought to be amended.

The Cinematograph Act’s preamble and provisions, as well as its historical context, make it apparent that its purpose is to govern film certification (and, to some extent, fire safety). In contrast, camcording, and its abetment, easily qualifies as criminal or civil infringement under the Copyright Act.

The Copyright Act is also replete with other provisions relevant to piracy cases, including possible defences. Presumably, the bill is motivated by a desire to impose stronger penalties. The Copyright Act stipulates a maximum punishment of a three-year prison term and a Rs 2 lakh fine. As mitigating factors, it provides for lower punishments for first-time offenders, and allows reduced penalties in “adequate and special” cases.

Arguably, this matters little when the real challenges that copyright owners face are linked to intrinsic flaws within the criminal justice system. Moreover, even if the severity of punishment is considered more important than its certainty, and if the Copyright Act is considered too lenient, no minimum penalty is specified in the bill.

Hence, in theory, a conviction under the bill may result in punishment less than that prescribed in the Copyright Act, which does specify a minimum fine and prison term.

It must further be asked why only camcording is being targeted, when much film piracy emanates from the leak of high-quality preview copies or ‘screeners’ by hackers and industry moles. Meanwhile, grievances from other industries may open a Pandora’s box.

The television industry, for instance, may ask why anti-piracy clauses have not been mooted in the Cable Television Networks (Regulation) Act. Ditto for the software industry vis-à-vis the Information Technology Act.

After requesting public responses to the draft bill, the I&B Ministry introduced it in Parliament with inexplicable haste. If the government is seriously open to suggestions, it ought to adopt a more holistic view and consider at least five measures.

First, the proper legislation to amend ought to be the Copyright Act. Introducing stronger penalties for camcording, at the expense of other types of copyright infringement, will naturally look incongruous. Thus, 'piracy' can be defined as a distinct offence, applicable across different media.

Second, it would be fair and pragmatic to introduce graded penalties, distinguishing between first-time and subsequent offenders, and imposing high prison terms only in egregious cases.

Third, instead of fussing over legalistic solutions, the government and industry should think of ways to choke the financial ecosystem which supports piracy. For example, think about curbing ad-supported piracy, or other piracy earnings that evade the tax net.

Fourth, regulatory impediments and business models that make consuming entertainment expensive need to go. The recent reduction of GST on cinema tickets is a positive step. Another could be student discounts, commonplace elsewhere.

Fifth, the centre should consult with states and regional film industries, since criminal enforcement is a state-level matter. States have adopted differing anti-piracy approaches — from special legislation, to police cyber cells, to conventional enforcement under the Copyright Act, to rank indifference.

After lending an ear to Bollywood, the centre should extend the same courtesy to regional industries and note their grievances and suggestions.

Finally, search engines and ISPs need to be brought to the table.

It may be that Bollywood has been lobbying with the I&B Ministry instead of the Commerce Ministry—which oversees the Copyright Act—as the latter has its hands full with other matters. Bollywood’s impatience is understandable, as is the government’s alacrity before general elections.

Nevertheless, the bill remains a poorly conceived half-measure likely to achieve precious little.

Arpan Banerjee is an Assistant Professor at Jindal Global Law School and Scientia Doctoral Scholar, University of New South Wales.

The views expressed here are those of the author and do not necessarily represent the views of BloombergQuint or its editorial team.