recent months, the Indian film industry has seen the most virulent attacks of film piracy and the inability of the institutions concerned to contain it and its direct effect on business. Piracy, historically, has co-existed with creativity, innovation and development, much like an alter ego of humanity. The losses from piracy of music and movies in India are approximately $4 billion per year as per an USTR 2016 report.
The industry has become almost indifferent to the usual video piracy. Today, the bigger threat is online piracy and that too prior to the theatrical release of a film. In the Trade Policy Forum (TPF) joint statement by the Indian and US governments in 2015, both countries “agreed to deepen cooperation on copyright, recognising the shared interest of the largest entertainment industries in the world to promote and protect their artistic and creative content”.
At the ground level, for Indian producers, it has become a norm to approach the courts, before every film release, to seek preemptive orders by filing John Doe cases, to be sent to Internet Service Providers (ISPs) for blocking online pirate links after the theatrical release of a film, for the limited effort of containing piracy in India.
John Doe, in copyright infringement suits filed against ISPs and cable operators, means ‘persons unknown’ who might be involved in or abating piracy. As far as availability of the infringing contents online for the rest of the world is concerned, the same still remains available even if the links are blocked in India. The activity of tracing pirate sites has led to an entire new business to prevent online piracy, at least to a large extent by sending notices to the infringing sites and/or the ISPs for blocking the links if not the sites.
However, in the last few months, starting with Udta Punjab, the trend of piracy has changed from being pirated online after release to be being pirated before release. In Udta Punjab, piracy took place two days before the film’s theatrical release, whereas in Great Grand Masti, it was three weeks prior to release, forcing the producers to advance the theatrical release date.
It was in these cases that the ineffectiveness of the John Doe orders from the enforceability perspective came to the fore. For Great Grand Masti, in spite of a court order, and the same being notified to ISPs, barring a few, they refused to fully comply and failed to block the sites which had either ignored the notices or refused to take down the infringing contents.
The speed and ferocity with which the infringing sites mushroomed once the content of the film was leaked on bit torrent sites was phenomenal; it became virtually impossible to contain the infringing links and sites showing the content, thereby resulting in massive losses, both from overseas theatrical revenue as well as domestic revenue.These instances of pre-release piracy of films reflect the urgent need for us to curb piracy. The judiciary and the government machinery including specialised cyber cells need to appreciate that the response time to tackle such piracy has to be quicker – quicker than the pirates – to save investments in these entertainment products, failing which the orders are reduced to merely paper orders and the action is taken too late.
The law per se needs to change and make piracy, which threatens investments worth millions, a stringently punishable criminal offence with equally stringent economic penalties for direct or indirect support for piracy. The recent governmental order to punish the end consumer accessing pirate sites, is definitively a step in the right direction but half-hearted because the process of punishment provided in the law is itself so long that a film producer is least likely to pursue the end consumer. The government needs to design a legal system that is suited to be fast, effective and preventive rather than mired in procedural complexities.
However, the latest change in the submission of films to the censor only through Digital Cinema Package, a specific tool to submit films to the CBFC, is a welcome measure to secure the logistical chain in film exhibition before theatrical release to control piracy.
The Motion Pictures Association of America (MPAA), which represents major film studios of the US, has been working closely with exhibitors to educate them against cam-cording and using watermarking technology to track sources of leaked content.
MPAA intends to work closely with the government to take more techno-savvy steps to help prevent film piracy and limit its spread. The menace is so enormous that the market size of film piracy is bigger than the size of the film industry itself! The industry needs to work with the other stakeholders to evolve a more innovative and cooperative way to curb piracy while protecting innovation in the online space.