By Sujeet Jain
India is the fastest growing economy in the world with GDP set to grow at 7.1 in 20171. Ranked 6th in global GDP2, India is also the second largest Internet market in the world after China with projected growth of 456 million Internet users by end of June 20173. Our country ranked third in the top international box office markets after China and Japan in spite of sluggish global economic growth of 2.6%. These statistics would lead one to believe that growth in the Indian Media &Entertainment sector is equally positive. Unfortunately, that has not been the case. Copyright piracy, and particularly its convergence with digital technology, has severely hindered the growth of the film and television industries to the point where decisive government action is essential. A turnaround of existing systems and processes for intellectual property rights enforcement and adjudication is the need of the hour.
The success of a film in India is highly dependent on its release weekend. However, in 2016, several Indian films including Manjhi: The Mountain Man were leaked online before the release date, whereas Force 2 and Rangoon were leaked online on the day of release. Content theft continues to negatively impact the industry with losses to the tune of INR 180 billion p.a. accompanied by a loss of 60,000 jobs every year4.
Globally, the growth of the Internet presents new benefits and opportunities to society at large, but it has also facilitated growth of online piracy, by sharing of content through myriad file sharing, including through illegal/rogue websites accessed through mobile phones and other devices. In 2016 there were an estimated 21.4 billion total visits to streaming piracy sites worldwide across both desktops and mobile devices.5
According to Internet Trends 2017 report by Mary Meeker – Kleiner Perkins Caufield & Byers, 80% of users in India access the Internet through their mobile phone and spend 45% of their time watching entertainment. Actions by pirate/ rogue websites continue to threaten our business and also put consumers at risk by exposing them to High Risk advertising (ads involving the sex industry, gambling, malware and scams). In India, it is estimated that large pirate networks can generate between $2-4 million per annum, and medium and small pirate websites can generate as much asto $2 million annually.6
Hence, it is pertinent for us to analyze and realign our priorities as we brace ourselves to compete in an era of convergence and knowledge economy. Intellectual Property is a catalyst in creating a knowledge economy and driving innovation. IP asset generation in the M&E industry, in addition IPR enforcement is no less important than IP assets emerging from innovation/ R&D from other sectors. Our industry generates revenue from commercialization of Copyright mainly and from opportunities for licensing and merchandising. The opportunity to grow lies in successful exploitation of Copyright in both the domestic and international market. To be globally successful, we must ensure that we operate in an ecosystem that is conducive for creation and exploitation of Intellectual Property Rights. This cannot be achieved in a weak legislative environment, which makes it difficult for copyright owners to enforce their rights.
For example, the existing remedies available to content owners to address online piracy are cumbersome, expensive, and largely ineffective. The process followed now is to petition a court to seek injunctive relief through the combined interplay of relevant provisions of the Copyright Act and the license agreement terms between ISPs and the Department of Telecommunications (DOT), Ministry of Communications and the Ministry of Electronics and Information Technology (MeitY) to bring about site blocking. This process to involve the courts in each instance takes valuable time of the Judiciary and is an expensive option for copyright holders, and is merely an interim remedy subject to the initiation of a fault-based copyright infringement suit against one or more defendants. Malaysia and South Korea, by comparison, have mechanisms for expedited procedures by their relevant administrative authorities. Australia and Singapore have provisions in their laws, based largely on UK law, that facilitate the service of blocking orders on network and carriage service providers without any attendant determination of ultimate liability.
On May 12, 2016, the Union Cabinet of India approved the National IPR Policy, which is set to lay down the future roadmap for Intellectual Property Rights in India. The policy envisions enriching the IPR ecosystem in India to usher in an era of creative and innovative India. For the media and entertainment industry, the policy is a step in the right direction, as it lays down clear objectives for increasing IPR awareness, generating IPRs and including an effective legal framework to balance the interests of right owners with larger public interest.
Furthermore, while, the recent announcements of IP Crime units in Telangana and Maharashtra are encouraging, there is an immediate need to create a national enforcement taskforce within the Department for Industrial Policy and Policy (DIPP), Cell for IPR Promotion and Management (CIPAM) to work with different Indian states in a coordinated, systematic and efficient manner not restricted by jurisdictional issues, on organized crime units engaged in piracy to ensure protection of intellectual property rights.
It is interesting to note that the report by the Parliamentary Standing Committee7 that examined the Copyright Bill, 2010, recommended the need to bring the Copyright Act in tune with the IT Act, 2000. Considering the 2012 amendments to the Copyright Act, 1957 fell short of including effective provisions extending to technological protection measures and specific remedies to block rogue websites, we welcome any move by the Government to introduce better remedies.
Efforts to form fruitful partnerships between industry and government and focused industry groups/ coalitions appear to be effective in driving the desired legislative and enforcement changes to improve intellectual property ecosystem for the sector. Recent initiatives such the Alliance4Creativity (ACE)8 and Global Cinema Federation9 will help align business interests in a common mission to create high value jobs, revenue growth and sustainable growth and markets for the M&E industry in India. To paraphrase Kaylan Kankanala, “Let’s ensure a protected ecosystem for creative industries to thrive in a digital age.”
Sujeet Jain is the Group General Counsel and Company Secretary for Viacom 18 Media Private Limited.
1 HSBC report
3 Internet and Mobile Association of India – IMRB
4 Indian films gross USD2 billion, but piracy makes 35 per cent more’, The News Minute, http:// www.thenewsminute.com/article/indian-films-gross-2-billion-piracy-makes-35-more-48603 accessed on 05 January 2017 and FICCI KPMG M&E Report, 2017
5 http://alliance4creativity.com/mission/the-threat-of-online-piracy/ - (Analysis of SimilarWeb data, based on streaming sites with at least 10,000 copyright removal requests according to the Google Transparency Report)
6 Strategic IP Information, Badvertising: When Ads Go Rogue, available at http://sipi-ip.com.