Video Piracy- Background And Its Control

INDEX 1. LIST OF REFERENCES 2. INTRODUCTION • MEANING OF VIDEO PIRACY • RIGHTS OF FILM PRODUCERS • SPECIAL FEATURES OF COPYRIGHT • ASSIGNMENT AND LICENSING • TYPES OF PIRATED VIDEO PRINTS 3. EVOLUTION OF PROBLEM OF VIDEO PIRACY • POLICE ACTION • BETAMAX SUIT • CLAIMS AND PRACTICES • FAIR USE ALLOWED 4. FACTORS RESPONSIBLE FOR VIDEO PIRACY • PIRATED VIDEO FILMS SCREENED IN HOTELS, CLUBS AND RESTAURANTS • VIDEO HOME RECORDING AND MUSHROOMING OF VIDEO LIBRARIES a) MOVIE MAKING b) COPYING ON VIDEO • GROWTH OF CABLE T.V. a) BACKGROUND b) CLAIMS c) SOMETHING MORE d) COPYRIGHT LAW e) ABOUT BROADCASTING: THE INDIAN LAW f) FOR THE PRESENT 5. REMEDIES AGAINST VIDEO PIRACY • TECHNICAL REMEDIES • LEGAL REMEDIES a) CHAPTER I- ACCEPTING THE REALITY OF VIDEOS b) CHAPTER II- CIVIL AND PENAL ENFORCEMENTS

c) CHAPTER III- ROYALTY COLLECTION 6. PLEA OF INNOCENCE 7. THE GOVERNMENTAL RESPONSE 8. JUDICIAL DECISION ON IRREGULAR VIDEO SHOWS

INTRODUCTION MEANING OF VIDEO PIRACY Video Piracy means an act of copying, showing, distributing and selling a video of motion pictures without the due authority to do so for some consideration in return like money, etc. Unauthorized copying, showing, distributing and selling of a video is considered as an offence because of the fact that film producers own a copyright in their productions. Thus they are provided with legal protection by means of stringent copyright laws so as to safeguard their work from video piracy or invasion.

RIGHT OF FILM PRODUCERS Two circumstances, the socio-cultural attitude towards intellectual and artistic creations and the industrial revolution have together brought up the concept of intellectual property. There are two main branches under it, industrial property and copyright. The area of industrial property concerns the protection of inventions, patents, trademarks and industrial designs and also the restraint of unfair competition. Copyright encompasses the protection of cultural works in all media—literature, music, art, architecture, audio-visual productions. The film producers have copyright in their films. Copyright, it is said, is not the mere creature of a statute but a natural and civil right though by the Indian Copyright Act, 1957 it is creature of a statute. The term “work” in Section 2(y) of the Act includes “cinematograph film”. By Section 14(c) of the Act it is the exclusive right of the cinematograph film producer to do or authorize the doing of the acts prescribed therein. It is his exclusive right to make the copy of the film and cause the film to be seen or heard in public. In other words, copyright law is concerned with the negative right of preventing the copying of physical material.

SPECIAL FEATURES OF COPYRIGHT Copyright law has some special features of its own. By Section 18 of the Act, the owner of copyright in an existing work or the prospective owner of copyright in a future work may “assign” wholly or partly the copyright in the work, the mode of assignment given in Section 19 being that he should give it in writing, signed by him or by his duly authorized agent. Copyright in a future work, (e.g. - a motion picture in the process of production) is assignable, subject to the condition that copyright will vest after the work is completed. Thus assignment is like an agreement in contractual terms. Movie producers select their distributors well before completion of the movie by assignment procedures and distribution by any other agency is termed as “VIDEO PIRACY”.

ASSIGNMENT AND LICENSING The grant of any interest in a work by licensing should be distinguished from an assignment. Section 30 of the Copyright Act, 1957 lays down the procedure for licensing. Here, the licensee is permitted to do a certain act which is the exclusive right of the copyright owner and the licensee does not get the copyright over the act he has been licensed to do. Whereas Section 18 of the Act lays down that the assignee of a copyright as respects the rights so assigned shall be treated as the owner of the copyright.

TYPES OF PIRATED VIDEO PRINTS With much difficulty four types of video prints have been identified as pirated. They are: 1. Prints made abroad which are recorded from the original film print without any due license. Such places are Hong Kong, London and Gulf. 2. First copy done from the original print within the country but without due license. 3. Re-recorded prints from DVDs/CDs which are not original prints. 4. Camera prints, i.e., video recording of films made clandestine during the screening of a film in a cinema hall.

EVOLUTION OF THE PROBLEM O VIDEO PIRACY In the last few years technology has proved a boon to mankind in that the birth of video has made cinema come to the doorstep of the common people. The speedy circulation of cinema by videos has the negative side of it and that is video piracy, which has become a stunning reality. With the continuously growing technology it is the task of the law to keep pace with it. With the introduction of television in mid 50’s, the west has witnessed the closure of a number of movie theatres. The introduction of Television had chilled the bones of a many film producers in the initial days. However a much colder blast was awaiting the film producers for which they were wholly unprepared. This was the sale of old films to television. However there was a stern reaction to this. An association of cinema owners who had organized themselves for better business banned it at once, but some producers found higher sale prices more attractive. Thus the film producers continued making films with the new market poised well enough to telecast them under the licenses and Television became the accepted mode of film screening. Fusion of Television with cinema was thus a forced one. With these already existing problems the cinematograph film producers had to face there toughest challenge, i.e., “VIDEO PIRACY”. “Video Piracy” had its origin in mid 70’s which was due to the introduction of VCRs. With the introduction of VCRs in the mid 70s, the film industry has to blame itself to have contributed to yet another self-inflicted suffering, i.e., “VIDEO PIRACY”. The film producers thought they could cash in on the coming boom by selling their movies in a video cassette to the home market. The decision backfired. Most viewers only wanted to see a movie once or twice. Therefore, viewers started buying pirated or duplicate cassettes as they found it far cheaper than the original cassettes. Later on with the introduction of DVD Players and DVDs/CDs used in them the problem of Video Piracy enlarged as these pirates found it far convenient to duplicate DVDs and CDs then the video cassettes used in VCRs. Thus as claimed by the Motion Pictures Association of America, technology has enabled professional pirates and consumers alike to steal more than fifty billion dollar a year worth of movies. However technology is not entirely to blame for the plight of the movie industry. Movie companies still do not release DVDs/CDs at the same time that a movie plays at the theatres, despite consumer demand. Thus these anti social elements commit

piracy by making duplicate DVDs/CDs. However these pirates are not to be blamed alone, but the consumers are also to be blamed as they to buy these pirated DVDs/CDs. Illegally recorded DVDs/CDs are now also available from video libraries at such rentals as Rs. 20 to Rs. 40 per day. Hence, from the above discussion we can clearly conclude that the problem of Video Piracy evolved with the introduction of Television and was further aggravated with the advent of VCRs and DVD Players resulting in heavy loses to the business of film industry. We shall now see that what action was taken by Police against the first complaint made against Video piracy right at the time when it first evolved.

THE POLICE ACTION In Karnataka, the Karnataka Film Chamber of Commerce filed a number of police complaints on October 21, 1983 against video shows of the Hindi film “Mandi”. Messers Blaze Film Enterprises Pvt. Ltd., Bangalore claim in their complaint that the trade was an illegal distribution of video cassettes of that film in which they owned the copyright. The police first information reports (FIRs) recorded offences under Sections 63, 64 and 65 of Copyright Act, Section 420 of Indian Penal Code and Section 10 of the Cinematograph Act, 1952. On 16 December, 1983 the State Police conducted a series of surprise raids in the city of Bangalore and seized illegal cassettes and recording instruments, in all worth one lakh rupees (Reg. No. 245/1983). (Courtesy: Office of the Commissioner of Police, Bangalore.)

THE BETAMAX SUIT It all began very suddenly during 1976 when Walt Disney Productions and Universal Studios, as copyright owners of the film broadcast on television filed what has came to be known as the “Betamax suit”. The defendants were Sony Corporation of America, Sony’s Ad-Agency, several of its dealers and a consumer who allegedly had used a Sony Betamax VCR to tape Disney and Universal Products off the air for his own use, an incident that came to light.

Though copyright laws don’t specifically exempt home taping like that it had long been assumed that profit was a salient feature of culpability in copyright cases and even if nonprofit home copying were made illegal, such a law would defy enforcement making it functionally impotent. Courts had held, earlier, that holding the audio portion of a television show off the air was not in itself a violation of copyright. It was widely believed that Sony would win this case. Sony did win the first round. Disney and Universal had alleged that though the consumer was the chief infringer, Sony was nevertheless culpable as a contributory infringer. In October 1979, the United States District Court for the Central District of California found in favour of the defendants. It declared that neither the 1909 nor the 1976 copyright laws gave the copyright holders monopoly power over an individual’s off-theair copying in his home for private, non-commercial use. Two years later, the three member U.S. Court of Appeals reversed the District Court’s verdict holding that “off-the-air copying was illegal and that Sony was indirectly liable for infringement because it knew that the VCRs would be used to reproduce copyrighted materials and induced, caused or materially contributed to the infringement conduct of VCR owners”. Responding to a petition of the Sony manufactures the U.S. Supreme Court in Washington took up the case in 1982 summer. The U.S. Supreme Court on 18th January, 1984 finally held that “the use of recorders at home for taping television programmes for viewing later is a “fair use” and there was no infringement of the copyright of films and television produces”. It is reported that the 5-4 decision of the Court was a victory to the electronics industry in the United States and a blow to movie producers. The dissenting judges, however, said they disagreed with the interpretation that home recording of programmes was “fair use”. The Court, however, recognized the competence of U.S. Congress to make laws for payment of royalties to the film makers. In the present circumstances the U.S. verdict does not appear to have given, the consideration it deserves to one cardinal factory, that is, to the movie producers in the instant case and their colleagues throughout the world who fear that Betamax would appear as a sort of mechanized parasite that is spreading its tentacles into the blood stream of the film industry and feed itself upon it.

There are a few lakhs of VCRs owned by residents in India itself and more because of the illegal trading in video cassettes through video libraries and restaurants. Film producers in India also have moved the courts to the effect that regularization by licensing and levy of Entertainment Taxes have become the need of the hour. Much before the decision of the U.S. Supreme Court the Supreme Court in India had rules in M/s. Geetha Enterprises v. State of U.P. and others that to places of entertainment like restaurant, clubs etc. where video games are displayed, the Entertainment Tax can be extended. This decision has been a trend setter. The High Courts of Allahabad, Karnataka and Delhi have applied the same theory on video show of motion pictures. Regulations governing the video shows in different States in India have come up, with the Central Copyright (Amendment) Act, 1983 (Act No. 23/1983) expected to be brought into effect. The topmost judicial verdicts in United States and in India have thus made way into legal provisions which could govern the regularity of video circulation. If one decides that home recording is legitimate the other extends the levy of Entertainment Tax to video screening in public. A fuller discussion in these cases of the similarity of the two systems, cinema and video, would have been of value.

CLAIMS AND PRACTICES The confrontation has grown because of the claims and practices such as: •

by holding commercial licenses issued by the P&T Department, for both video and the television one can make commercial use of them, which will include exhibiting of films.

•

that the provisions of Cinematograph Act, 1952 would not be applicable to the displaying or exhibiting of video cassette film and the relevant provision of place of exhibition, and the regulations governing it would also be ultra virus one’s fundamental right guaranteed by Article 19 of the Constitution.

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that TV-films are not Cinematograph films within the meaning of the term Cinematograph occurring in the cinema regulations and that the regulatory provisions do not apply to them. On this premise, a further claim has been that entertainment provided in restaurant, clubs etc. by VCRs for the promotion of the main business is not an entertainment to be subject to levy of taxes under the Entertainment Tax Acts.

•

pleasing the Commercial (Entertainment) Tax Officer by paying some taxes and then evading the very question of cinema regulations.

THE FAIR USE ALLOWED Section 52, of the Indian Copyright Act, establishes the country’s policy regarding the fair use of copyrighted works. Coming within the scope of “fair use” of literary, dramatic, musical or artistic material is used for research or private study, criticsm and review and the reporting of current events. Furthermore, collections which are primarily of non-copyrighted material may include short passages from literary and dramatic works, provided the publication is intended for educational institutions, literary dramatic, musical or artistic works may also be reproduced by teachers or students in the course of instruction. Certain non-profit performances of literary, dramatic, or musical works also constitute fair use. They constitute what is known as a traditionally permitted fair use. The province of video home recording for private use apparently needs to be considered as fair use under the terminology of this section on other literary and artistic works, as here again the audiences is limited to residents. But, this new avenue of VCR recording was not even thought of when the Copyright Act, 1957 was framed and passed. And VCR copying of motion pictures came not merely as a technical facility; it came in more as a harbinger of pirates in their putative activities, of recording, smuggling, hiring, selling and ultimately seeking legal protection.

PIRATED VIDEO FILMS SCREENED IN HOTELS, CLUBS AND RESTAURANTS Let us first consider the Indian Copyright Act, 1957. Section 51 of this Act states: “Copyright in a work shall be deemed to be infringed, when any person, without a license granted by the owner of the copyright under this Act or in contravention of the conditions of license so granted or of any condition imposed by a competent authority under this Act•

Make a copy of the film.

•

Cause the film, insofar as it consists of visual images to be seen in public and insofar as it consists of sounds to be heard in public.

•

Make any record embodying the recording in any part of the sound track associated with the film.

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Communicate the film by radio diffusion without the license by the Copyright Registrar or in the absence of an assignment by the copyright owner.

Further, such infringement of cinematographic rights may take variety of forms, e.g.•

Converting a work into cinematographic work, i.e., the making of the film itself.

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Publicly performing or representing the film.

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Publicly performing or presenting a film licensed only for private presentation.

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Reprinting the individual pictures from the film as still pictures.”

The above four modes go together when a film is video taped and shown in public without holding a license to do so pr under an assignment by the copyright owner, i.e., the film producer. The terms “shown in public” needs to be discerned in the trend today because of the accessibility of the video show of a film to the people who go to a restaurant or who reside in adjacent units of a flat enmeshed under a system called cable network.

The easy availability of video entertainment has been of legal concern. The new technologies and their impact on copyright were the subject of two days of hearings heard by the House Copyright Sub-Committee during July 1983 in the United States. The subcommittee members heard testimony from the office of Technology Assessment and a consultant familiar with the subject, all of whom expressed the necessity for amending the present copyright law. At a stage when umpteen numbers of video parlors have mushroomed either involving in unlicensed show of movies or merely dealing in the business of selling or hiring pirated DVDs/CDs, a presumption arises as to the illegality of the show and the dealing. These glaring irregularities have been the bypassing of the Cinematograph Act and Rules and the evasion of entertainment taxes.

VIDEO HOME RECORDING AND MUSHROOMING OF VIDEO LIBRARIES MOVIE MAKING The movie makers of present age take a lot of pain in making a movie. Movie’s birth takes place in the mind of a maker in the form of an idea. Movie maker conceives an idea or thought or topic on which he works to get the end result as a movie that the masses anxiously await to watch in the theatres. Movie makers take a deep interest in the art of film making. They start with an idea on which they work for months. They dig out for authentic information on their idea by doing a lot of research. A film is not merely a media of entertainment but an instrument of thought control. A movie generally creates mind sets of general public as the influence of movies is very strong on the young generation. Masses have now started copying what they see their favorite actors doing on the big screen. Not just the effect on public but also the investment of maker is huge in the film. Investments of both, the historian movie maker and the now too popularly suffering commercial movie maker are enormous irrespective of their ideals. The final scripts of photo productions are frozen on their edited soundtracks. These film prints are preserved with great care. They are taken out for exhibition after the film passes through the censorship office. The film producer has to go through all these processes. Further, for his film to be exhibited the producer thinks of a certain atmosphere in the cinema theatre, an atmosphere of social consciousness, linking a thousand people all settled in silence in total darkness. Into the darkened quietness of the cinema hall the producer would wish to present the best lighting, visual and sound effects. One can now understand the disgust of a movie maker when the film is stolen from his possession and more copies of the film prints are made and circulated for unauthorized exhibition. Video pirates record these movies for both there personal as well as commercial use. These movies are recorded in home with the help of a DVD Player. A movie is copied or recorded on a DVD Player and is then used for various commercial purposes such as smuggling, hiring, selling, etc. Thus video home recording is permissible if it is only for personal viewing of the viewers, but is not permissible if it is with intent of commercial usage.

COPYING ON VIDEO The VCs/DVDs/CDs is capable of perfectly copying or recording a film content when run in a VCR/DVD Player/CD player respectively. Like a film projected on a screen the VCs/DVDs/CDs can give an identical effect on a television screen. The DVDs/CDs, a development since 1987, which looks like records, plays like records are made like records. They produce stereophonic soundtrack of the film it is projecting on the television screen. The DVDs/CDs are available everywhere and are very popular. The reason may be that delicate handling and maintaining the perception and reception quality would not be so conducive to piratic activities. The vast numbers of DVDs/CDs available are mainly because of its demand together with the increasing number of competent producers of these DVDs/CDs. Now once these movies are copied at home with the help of a DVD/CD Player, these pirated DVDs/CDs are made available everywhere at a very cheap rent. These DVDs/CDs are thus made available on theses numerous video libraries for both hiring as well as selling. Thus with the upcoming of video home recording, the availability of pirated DVDs/CDs has become far easier at the various video libraries present almost everywhere. Video piracy has come into existence only with the mushrooming of these omnipresent video libraries.

JUDICIAL DECISIONS ON IRRIGULAR VIDEO SHOWS On video games which have been popular these days there is a decision of the Supreme Court in India that entertainment tax can be levied. In the case of Geetha Enterprises and others v. State of Uttar Pradesh and others, M/s. Geetha Enterprises were running a video parlour at Agra installing a machine with a video screen to which persons were admitted without any charge. This machine provided educational entertainment by showing some video games titled Sea Warfare, Battlefield, Space Warfare, some sports and other things. The viewer had to insert a coin of fifty paise to view the video screen which itself was owned by the manufacturing company (a company in Japan). The petitioner was collecting a share of the amounts deposited in the machine from the authorized representatives of the company who had hired the machine to the petitioner. On that entertainment, the authorities functioning under the Uttar Pradesh Entertainment and Betting Tax Act, 1937 (U. P. Act, 1937) demanded entertainment tax from the petitioner. The Supreme Court held that, 1. The mere fact that payment was not made at the time of entering the premises, hall, theatre, or any place open to public was irrelevant. Payment made at a later stage by inserting a coin was nonetheless for being admitted to a “place of entertainment”. 2. The duration of the show or the identity of the persons who operated the machine and derive entertainment was wholly irrelevant in judging actual meaning of the world “entertainment” as used under the stipulated law. 3. The fact whether admission was free or not, and whether persons operating the machine shared the returns of the show was also irrelevant. The Supreme Court seemed to have taken exception to or explained the actual meaning of the term “entertainment” defined under Section 2(3) of the U.P. Act, 1937 which reads thus“Entertainment includes any exhibitional performance, amusement, game, or sport to which persons are admitted for payment.”

The court examining the true meaning of the term “entertainment” as a general term without reference to this definition expressed that the term “entertainment” has been used in a very wide sense so as to include within its ambit, entertainment of any kind including one which may be purely educative. This verdict of the Supreme Court has been duly commended and followed by the High Courts in India. There had been a misconception among the video owners in restaurants, cafes, milk bars and such places that TV films screened by them in their places on the strength of commercial license issued by the P&T Department under the Telegraph Act was legitimate. Under the contention that screening TV films is not a “cinematograph” within the meaning of that term occurring in the cinema regulations and that the regulatory provisions made therein do not apply to them the petitioners in the case of M.G. Gurlhosur and others v. State of Karnataka by its Commissioner and Secretary to Government moved the High Court of Karnataka. They contended that entertainment provided by them on TV, through VCRs for promotion of hotel business was not entertainment to levy taxes under the Karnataka Entertainment Tax Act, 1958. On the other hand, the respondents asserted that exhibition of films on TV through VCRs in hotels to which public was admitted was a “cinematograph” or a cinema and the regulatory provision of the cinema regulations equally applies to those exhibitions. On this premise the respondents claimed that the petitioners are liable for taxes under the Entertainment Tax Act. The court held for the respondents. Justice K.S. Puttaswamy who delivered the judgement considered the provisions of the Entertainment Tax Act and the Cinematograph Act in great detail. In what may be called a highly innovative judgement his Lordship has brought out the technical details of VCRs and video exhibitions contrasting it with the technicalities of a cinema exhibition. But the judgement in lucid terms treats the audio-visual effect on the audience as final. It says that a film in a cinema is exhibited on a wide screen through a projector but a film on a cassette is exhibited on a smaller TV screen through VCR. Except for this difference, exhibition of films in cinema theatres or on TVs through VCRs in hotels or public place has hardly any difference at all. So far as the viewers of the films, the audio-visual effect on them with which we are primarily concerned there is really no difference. The Court thus held that show owners should possess licenses for the exhibition as required under cinema regulations. At a time when this investment on video appeared affordable and several hoteliers and club owners proved it a fact, the court did rightly take notice of the other fact that the hoteliers’ main business had changed to video shows and the hotel business was “only a cloak or camouflage to exhibit films on TV as regular shows”.

In this decision again, the meaning of the term “entertainment” has been detailed. The court was put to go into the details of “inclusive” and “exhaustive” definitions narrated in Craise’s Statute Law. The court was replying to an objection that its application of the Supreme Court’s explanation in Geetha Enterprises of the term “entertainment” occurring in the Uttar Pradesh Entertainment and Betting Tax Act, 1937 would be inapplicable to the interpretation of that term occurring in the Karnataka Entertainment Tax Act, 1958. Section 2(c) of the Karnataka Entertainment Tax Act, thus defines: “Entertainment means a horse race or a cinematograph show to which persons are admitted for payment.” The court decided that in the light of the other provisions of the Act and under the circumstances the term “means” was to be taken as not restrictive but extensive. It is the spirit of the statute to be gathered from the preamble and the object the Act seeks to achieve therein, which should be looked into to help law keep track of the new modes of entertainments. Wondering at the changes that were overtaking the film industry not merely in its outward forms but in its inner life and creativeness as well, Ernest Betts, a writer on film business, remarks that “the lines of demarcation between film and television has blurred”. When we have a developing technology which solicits novel changes in the law, tradition seems to interfere occasionally. There had been a view contrary to the verdict of the Karnataka High Court. In Manoranjan Hotel v. State of Rajasthan and others, the decision of Justice Mehta, was that 1. In VCR, magnetic tapes are used which are not nitrocellulose base and for this reason the magnetic tapes as used in the VCR for the purpose of exhibition, does not fall within the purview of Cinematograph Act of 1952 as well as Rajasthan Cinema Regulations Act, 1952. 2. The exhibition of video cassettes which are based on magnetic tapes does not fall within the purview of Rule 3(g) of the Cinematograph rules, 1948. This decision was challenged before a Division Bench of the Rajasthan High Court and the Division Bench’s decision is awaited. One might prefer a reversal of the opinion based on technical differences.

The term “film” defined under Rule 3(g) of Cinematograph Rules, 1948 which we have considered above, does in fact say that “film means motion pictures or sound recording film having a nitrocellulose base”. But the magnetic tapes used in VCRs has the same audio-visual effect on the audience. Judicial decisions similar to the verdict of the Karnataka High Court have come from the High Courts of Madhya Pradesh and Maharashtra. An interesting and a highly comprehensive judgement have come from the Delhi High Court. It was decided on 8th February, 1984. The case is Balwinder Singh v. Delhi Administration. The petitioner in this case owned a video set and television set. He had taken commercial licenses issued under the Indian Telegraph Act, 1985. He had paid higher license fee postulated for taking out a commercial license. At the Commercial place he had hired for video shows, he had accommodated some 25 chairs for viewers and he charged them Rs.2 per head. The petitioner acceded to the payment of entertainment taxes but had refused to take license under the Cinematograph Act, 1952 and abide by the regulations therein required. A large number of petitions which raised the identical questions of law had been filed before the Delhi High Court. Among other questions the court had to decide on the distinction between the terms “exhibition” and “viewing”. The court had to consider for this purpose Section 10 of the Cinematograph Act, 1952. The section thus reads: “Cinematograph exhibition to be licensed: Save as otherwise provided in this part no person shall give an exhibition by means of a cinematograph elsewhere than in a place licensed under this part or otherwise then incompliance with any conditions imposed by such license”. Chief Justice Prakash Narain and Justice Charanjit Talwar of the Delhi High Court while issuing rule nisi on some writ petitions and serving notice on others to show cause why rule nisi be not issued on them have held that Section 10 of the Cinematograph Act, 1952 prohibits anyone to give an exhibition of cinematograph elsewhere than in a place under Part III of the Act and that such exhibition should be in accordance with and in compliance with any conditions and restrictions imposed in the license. The Court held that the crucial words in the section are “shall give an exhibition”. Giving of an exhibition will be different from viewing of a programme received on a television set by public transmission or with the aid of an apparatus like video, the court said. The court meticulously resolved the confusion which the petitioners sought to create by contention that projecting film with the aid of video and television would amount to viewing and not exhibiting. The Court clarified by holding that the distinction between viewing and exhibiting is obvious.

“A person who sees a film views it. A person who makes it possible for others to see a film exhibits it or gives an exhibition of the film. A person is permitted to give an exhibition only in a licensed premise and that also in accordance with the conditions of the said license.” Such minor unsuccessful objections as raised above appear lamentable but nonetheless the court comes down with vital clarity. The petitioners raised another objection by stating that in the above interpretation of Section 10, even domestic use of a video or television or both by a family in their household would be a violation of Section 10. This contention has made the judgment a little more important because of the court’s blatant disapproval of it. The words used in Section 10 are “give an exhibition”, which obviously a domestic video or television cannot do. The same falls outside the purview of the Cinematograph Act as there is no exhibition. Their Lordships found themselves agreeing with the Division Bench’s view in Restaurant Lee and others v. State of Madhya Pradesh and others. The judges observed that “one of the meanings of ‘exhibit’ is to show publicly for the purpose of amusement or instruction. ‘Exhibition’ means a public display i.e. a display to which public is admitted. It is in this sense that the word ‘exhibition’ as used in Section 3 has to be understood.” The decision has stressed on the point that it matters not whether one holds a commercial license under the Indian Telegraph Act, 1885 for his television and video. In their comments on the provisions of the Indian Telegraph Act, 1885 and the Wireless Telegraph Act, 1933 the learned Judges have held that a license under these Acts would allow the petitioner to use his video and television in premises other than the premises meant purely for residential purposes or commercial or residential-cum-commercial premises for receiving programmes and messages transmitted for general reception. One can thus be convinced that the mere possession of commercial licenses does not entitle the video owner to do anything or act in any manner contrary to any rule made by a competent authority, like the Board of Film Certification constituted under Section 3 of the Cinematograph Act, 1952 or any advisory panel constituted by the Board. In this case, the court was put to answer a more fundamental question when the petitioner urged that Section 10 of the Cinematograph Act, 1952 would be violative of Article 19 of the Constitution of India, as this section prohibited the petitioner from carrying on a lawful trading activity. The court held that, apart from the fact that the conditions on which commercial licenses have been issued to the petitioner, only permit reception and not exhibition, no provision of Article 19 had been violated. Clause (g) of Article 19 of our Constitution guarantees the right to practice any occupation, trade or business but reading Article 19(6) it is obvious that a reasonable restriction can be imposed on the exercise of right of occupation, trade or business that one wishes to carry.

As with the petitioner’s occupation or trade, such restrictions are found in the Cinematograph Act, 1952. The restrictions imposed by Section 10 and the rules framed in Part III are in the interest of general public, as to restrictions take case of health, sanitation, crowding safety, etc. The court held that these were reasonable restrictions and the petitioner had no fundamental right in running a mini cinema regardless of public interest as envisaged by the rules for sanitation, safety, etc. It should be noticed that the liability towards copyright infringement of the film owners copyright in the films were not at all considered in the cases cited above. But the cases have made way towards this accountability by probing into the actualities of each case. The decisions obviate the fact that once video shows and cinema in the theatre are treated on par the owners of motion pictures and feature films, who own copyright in their productions, would be able to reap the returns of their efforts. The courts have thus made out a strong case, to regulate the video shows in clubs and restaurants. There should now be no difficulty in extending the provisions of the Cinematograph and Entertainment Tax Acts to the video coaches (Luxury buses with a video set in it) as the terms ‘place’ is defined to include ‘any description of transport’ whether by sea, land or air [Section 2(e) of Cinematograph Act, 1952]. That there has been a difference of opinion expressed in some decisions, like the Manoranjan case, is a result of wilder interpretations of terms and traditional inclinations by the courts. In course of time, a unanimous judicial opinion is bound to prevail on this issue of video menace. Not that courts would follow each other slavishly. But the soaring menace would make misinterpretations unnecessary.

PLEA OF INNOCENCE The issue is simply that by Section 51(a) (ii) of the Copyright Act, 1957, any person who for private profit permits a theatre or other ‘place of entertainment’ without the consent of the copyright owner infringes the copyright in the work unless when he is not aware and has no reasonable ground for believing that such performance would be an infringement of copyright. It is doubtful how one can establish this plea of innocence at all when he is indulging in video show of a motion picture. We will consider this aspect separately when we discuss the ‘fair use’ of copyrighted material in Chapter 4 and Chapter 6. For the present, we can say the video menace has made it incumbent to disallow this plea of innocence and therefore shift the burden of proof on to the alleged infringer to establish that he had no reasonable ground for believing that he was giving an infringing exhibition of copyright in a work. Support for this viewpoint can be derived from the British case of Performing Rights Society v. Bradford Corporation cited by authors Copinger and Skone James. In this case it was indicted that although the profits from the concerts organized by a corporation would only be applicable in relief of rate payers, the defendants were actually acting for their private profit, in that they desired to make profit so that they should not be a burden on the rates. Commenting on a similar provision of law under the British Copyright Act, 1911, Section 2(3), the authors Copinger and Skone James take a view that the burden of proof would not be discharged when the defendant has received a warning from the plaintiff that there was a risk of infringement. In fact, once that trader acquires a VCR/DVD player and a TV, he seems to disregard everything else except the business and the exploitation modus. Fearing these developments, the South India Film Chamber of Commerce, Madras, published a “Warning – To whom it may concern” on 10th October, 1983 making an announcement of their existing rights, asserting that “Producers of feature films are automatically the legal copyright owners thereof for a period of 50 years from the date of completion of the film. Formal registration of Copyright Act, 1957 is not essential for possession of this right.”

THE GOVERNMENTAL RESPONSE In prompt response to the just claims of the film industry in Tamil Nadu, the Government issued the Tamil Nadu Exhibition of Films on Television Screen through Video Cassette Recorders (Regulations) Ordinance, 1984. The ordinance makes it obligatory for a license to be obtained for screening the video cassette films on TV. Such screening confined to the members of a household exempted from this requirement. Failure to obtain the necessary license entails one year imprisonment and a fine of Rs. 1,000. Existing video libraries and video parlours was given four week’s time to obtain the license. Through an order issued on December 8, the Andhra Pradesh Government has suitably amended provisions in the Andhra Pradesh Cinemas (Regulations) Rules, 1970 to enable the video owners to screen films on commercial basis. However, it has been revealing that if with the minimum of drawbacks we are to derive the maximum use from the present media (like films, video cassettes, discs, tape recordings, television et.) for the intellectual works, the absolute right of the copyright owner is bound to suffer limitations. With due care and caution the moral and economic rights of the copyright owners of features films, specially the amateurs and the middle class producers of films of a creative interest, should be protected. Regulations are in the offing in the State of Karnataka also the Karnataka Film Chamber of Commerce has recommended to the State Government certain necessary improvements in the State Entertainment Tax Act and the Cinematograph Act and Rules.

FACTORS RESPONSIBLE FOR VIDEO PIRACY There are mainly three factors responsible for the growth of Video piracy. These are, namely: 1. Screening of pirated video films in hotels, clubs and restaurants. 2. Video home recordings and mushrooming of video libraries. 3. Growth of cable television. These factors are now discussed in detail.

GROWTH OF CABLE-TV “Cable television” is not a very good expression, since it is used to designate cable systems that may carry besides television programmes a host of other services which is no way can be described as television. It has so happened because we choose to call the receiving equipment a television set. Cable systems in some countries are covered under the law governing broadcasting and in some they have been given a special status and regulation. In countries where the law is silent (India for example) cable transmissions automatically fall under telecommunications law. Consequently national regulations have been of variety. It is internationally accepted that television by cable includes the cable distribution’s own programme. Telecommunications law does enable holding a license to run the cable system. What is causing concern to the film industry about the onslaught of this technical development in India is the use of video tapes of films in cable distribution programmes.

BACKGROUND The earliest cable television system consisted of prominently placed antennae connected by co-axial cable to the homes of subscribers in the surrounding area. The typical Community Antennae Television System (CATV) functions through the aid of a Central Antennae which receives the signals broadcast from a regular television transmitter, amplifies them and transmits them via cable to the subscribers’ TV sets. Subscribers pay an initial hook up charge and then a monthly fee for the service. The attraction here is that the residents of a multistoried building can affordably subscribe to Cable-TV and pick programmes on the subscribers list availed to them by the marketing agency. AT the request of the subscribers the list can be improved. With a minimum of 40 subscribers and each one subscribing to an installation charge of Rs. 1000 (roughly) and Rs. 200 or so for maintenance every month, the agency runs its telebusiness. Subscribers list invariably contains video games and video films in addition to other programmes. Nemula Video Network is the India’s biggest and most ambitious cable-TV systems.

The term cable-TV is a misnomer, says Mario Periera. A more accurate description would be closed comprising video and sound which originate from different sources viz. TV antennae, VCR, Video Disc Player (VDP), Video Camera etc. are mixed, amplified and sent to a number of places (hotel rooms and apartments) over a single co-axial cable which is connected to the television set.

CLAIMS It is widely believed over the networks that cable-TV is essentially above the purview of copyright and censorship law as it is not a public entertainment system but only an extension of private home having its own video. Instead of a single VTR and TV set for one home, several members of a Co-operative Housing Society hook up to a single VTR-a private community’s private arrangement. It is further claimed that as this is purely individualistic in nature, it also obviates the need for paying royalty for televising any copyright material produced by any external sources as would, say, Doordarshan or any public broadcast system. “Similarly as censorship is not applicable to films and videos seen at a home or at private screenings it won’t be applicable to the promoters of cable TV” it is claimed. Most of the Hindi feature films which are shown on Cable-TV are marketed by well known companies like Esquire. They get these films from abroad paying customs duty at the airport. The claim that follows on this count is that the very point that the customs charge duty makes the entire exhibition legitimate.

SOMETHING MORE Naturally, telecasting Hindi films over cable-TV has not been palatable to the Hindi film industry especially when almost every new film is available on videos, either through the libraries or other sources and has been seen on most video screens within days of their release. If this cable technology has established a creative edge to the video business and an easy availability of feature films to subscribers, the industry (cable) has itself become embroiled in a dispute in its very infancy. The Bombay film industry has taken a strong objection to the cable casting of feature films and is trying to put an end to this.

The producers of blockbusters like Sholay, Shaan, etc., G. P. Sippy has furiously thus uttered: “They are robbers, they are desiring income from our films without paying a thing……The exhibition of any film other than those made by cable-TV people themselves is illegal. Cable-TV, in effect is preventing people from coming into theatres thereby reducing our revenue”. By his suit against NTV, G. P. Sippy has obtained an undertaking from the company that none of his films would be shown pending disposal of the case. On the other hand Ronnie Screwala, theatre star and pioneer of the cable-TV phenomenon, says: “If you look at Indian copyright law you will find that you have only infringed it if you make a copy or shown it in public. Nowhere does it say that exchange money makes it an infringement.”

THE COPYRIGHT LAW Let aside the above confrontation. The question now revolves around an interpretation of clause (1) and (2) of Section 52(k) of the Copyright Act, 1957. The relevant section states that it would not be an infringement of copyright if a recording is heard either at any premises where persons resides as part of the amenities provided exclusively or mainly for residents therein or as part of the activities of a club, society or other organization which is not established or conducted for profit. It is now known to us that cable-TV operators charge for installation and maintenance and derive lucrative business out of this. Therefore, the analogy of piped music that is played in hotels as an amenity for guests which is subject to royalty payments necessarily applies here. While the film producers run the grave risk of losing their investments if the film flops the cable-casters have no such fears t all nor any other.

ABOUT BORADCASTING: THE INDIAN LAW By Section 37 of the Indian Copyright Act, 1957 “a broadcast reproduction right” shall subsist in the programme broadcast by the Government or any other broadcasting authority (the Doordarshan) [Section 37(1)]. The Government or the broadcasting authority owns the broadcasting or reproduction right for duration of 25 years [Section 37(2)].

During the operation of the right any person who1. without a license of the owner of the right i. rebroadcasts the programme or any substantial part thereof, or ii. causes the programme in question or any substantial part thereof to be heard in public, or 2. without a license records it or any substantial part of it, shall be deemed to infringe that broadcasting right. Copinger observes on similar wordings in the British statute that the expression broadcast in the 1956 Act is not defined in such a way as to distinguish from other forms of wireless communication but it is assumed that the expression necessarily involves that the message shall be received or be capable of being received by a large public. He rightly points out that, while it is only rights in a television broadcast, which are infringed by causing the broadcast to be seen or heard in public, the act of rebroadcasting is an infringement both of television broadcasts and of sound broadcasts.

FOR THE PRESENT Instead of allowing the narrow growth of cable casting in leaps and bounds without even the communication reaching the rural side it is better that the corporations or any prescribed authority should take over cable operations as an additional sector along with the broadcasting stations. It can both self-regulate and govern the private cable networks in programme selections. The regulations thus sought for should make available the Protection Zones for broadcasters, that is, the prescribed area of each cable operation and the kinds of programmes operable. The regulations should have special concern for royalty collection towards programme owners, whether they are cinema producers or other performers. The possible regulation could be to derive royalty from installation and maintenance charges of cable-TV which will not go in the name of taxes. The remedies sought against VCR/DVD/CD recording and use of DVD/CD/Video cassettes should apply here also.

REMEDIES AGAINST VIDEO PIRACY TECHNICAL REMEDIES It was a new item that the use of laser-vision video records is a sure way of preventing large scale video piracy of films according to a loading multinational manufacturer of video equipment. The news item says “according to a spokesman of the manufacturer who have exhibited this record at the Filmotsav ’84 film market…..it uses a different tape of player on which ordinary video cassettes-of which copies can be easily made-cannot be played. The ‘record’ has both sound and pictures on it, recorded by means of pits on a shield of aluminium densely packed on both sides by fractions of mirrors. It is read optically by a low-powered laser beam.” It was a UNI reporting which went on to say that this manufacture would soon commence in India and that each record would cost less than an ordinary video cassette. While the credibility of such a technical solution should solicit a scant disregard by the pirates who cannot easily be defined or traced and who are not aliens in a technically growing field who also beat round the clock for the latest movie productions, a saner remedy should be sought for in the legal framework itself. We might recall the technical wits in the fifties which were a failure against the television which had come to stay. The cinema did survive and now that history is repeating itself with the invention of DVDs/CDs, the cinema is again going to establish its fitness to survive.

LEGAL REMEDIES Remedies have to be struck against the misuse of the fair use doctrine which is taken as privilege in other than the owner of the copyright, to use the copyrighted material in a reasonable manner without his consent, now withstanding certain exclusive rights vested in the owner of the copyright. In the first two parts of this chapter, we shall be considering the remedial legislations which have been coming up in recent days and a few cases which have presented precedent-setting civil and criminal remedial enforcements. In the third and conclusive part of the chapter, we shall be arriving at a few new suggestions which should help law to curb piracy.

CHAPTER I - ACCEPTING THE REALITY OF VIDEOS Video has come to stay. But the problem is how to keep it under control. When we read about the mushrooming video theatres, the large scale home recording and illegal distribution of video cassettes and the alarmingly developing cable-TV networks in the urban area of the country, we felt compelled to mention the legislative actions that have at least picked up breath nationally and internationally as well. Widely in the news today is the proposed amendment of Copyright Act, 1957 to make video-piracy a cognizable and the non-bailable offence. Further, while the Gazette Notification is awaited, any video film that would be exhibited through the VCR after 1st March 1984 should bear a “Censor Certificate” issued separately by the Central Board of Film Certification after the authorities are satisfied on the genuineness of the acquisition of video rights from the concerned right holders of the films (producer or distributor). This has been so by way of an amendment to the Cinematograph Act, 1952.

CHAPTER II - CIVIL AND PENAL ENFORCEMENTS If enforcement of penal and civil laws against piracy had been a little easy, the very piratic activity would not have been such a serious problem. To define video piracy may be easy but tracing the offender and taking possession of the pirated video cassettes or video discs are both difficulties in the extreme.

How far can Seizures Help? Under the action of the Commissioner of Police on a complaint by one of the members of the Karnataka Film Chambers, the video cassettes of the Hindi film “Mandi” were ceased from various centers. The policy took prompt action by arresting the video library owners. The police action was wholeheartedly welcomed by the Film Industry. But has it stopped piracy, by any measure? What the police seized are the cassettes that were available and the arrested offenders were an unlucky few. Some drastic enforcement seems to be necessary. The piracy of books was an immediate reason for the move towards the first international agreement in the copyright field, exactly as the piracy of records and sound tapes caused Governments rapidly to conclude the Geneva Phonogram Conventions.

To quote from Plowman and Hamilton “it is recorded that at the end of the nineteenth century the London Music Publishers, led by Chappel and Co., employed retired Policy Sergeants and other tough Characters to raid premises of pirates and cases are reported of pitched battles with buckle-belts and even pokers. Today, Hong Kong has found it necessary to use special policy against pirates.” Knowing or not knowing such possible actions the Karnataka Film Chambers had simply demanded from the Government that any video cassette seized in the course of raid operation by the licensing authorities be handed over to the Karnataka Film Chamber of Commerce so that it could be restored to the concerned producer or distributor or right holder who may possess the legitimate video rights of the film. Let us see how such restoration will enable the right owners to take any legal action against the offenders under the Copyright Act, 1957, for infringement of their copyright in the film.

The Mild Statute By Section 55 of the Copyright Act, 1957, the copyright owner will be entitled to all such remedies by way of injunction, damages, accounts and any other remedy as the authority may prescribe. But in case the alleged offender manages to prove that he was not aware and had no reasonable grounds to believe that copyright subsisted in the work of which such copies are alleged to be infringing copies or that such copies do not involve infringement of the copyright in the work, the copyright owner will become helpless. This defence is available under Section 58 of the present Act. Moreover from Chapter XIII of the Copyright Act one can understand that the Act is toothless. It will enable police to get into action only when the Magistrate takes cognizance of any offence under Section 63 and the punishment meted out to the infringer is just a year of imprisonment and some fine. At the most, infringing copies (those available after seizure) will be delivered up to the owner of the copyright. Any more details about other measures in the statute will be of little value. The most famous example of the fight against piracy comes from Hong Kong where copyright infringement was a widespread and flourishing business. Most of this illegal activity was constrained to sound recordings although some involved literary and artistic works and cinematograph films. The general belief was that for every legitimate cassette tape sold, thee were at least thirty pirated copies. Against this, the Hong Kong Government established a Special Copyright Investigation Unit of the Customs and Excise Services originally consisting of seven officers and later increased to over forty who were instructed to carry arms on all radios.

Stunning results were that over four hundred people were arrested, fines totaling more than one million Hong Kong dollars were imposed and over half a million illegal copies of tapes, records, books, street guides and films were confiscated.

Piracy and Fair-use and the Privacy Aspect Piracy that occurs in India is in the form of copying for sale, hire and exhibit in public and appropriation to the detriment of the right owners. Both courts and policy have shown their little power against it. The film industry has deplored the decline in exports, etc. Nevertheless, when the expression piracy occurred in the form of private uses of copyrighted works (video recording of films for domestic viewing, time shifting etc.) we faced what looked like an unresolved problem of defining the proper place of the consumer in the creation/diffusion/performing right syndrome and ultimately the proper place of the private sphere of privacy. Invasion of privacy is against fair use and fair use is the buffer between copyright projection and public requirements. The extent to which fair use presents certain fundamental problems can be observed from reading the chapter “Outer Limits of Copyrights” in Plowman and Hamilton. They cite an instance of the Swedish Parliament which had once introduced an ancient Nordic legal rule concerning the right of everyone to trespass on privately owned lands for reasons for recreation as a common public right. No wonder, by an analogy of this right it was soon proposed (by a one-time Education Minister of Sweden) for a similar common public right in the filed of intellectual property. The expected reactions of interested parties were obviously violent and the Swedish Government sincerely adhered back to the basic principles of author’s individual rights. Law could never have meant misuse as fair use. In principle, only the nebulous and uncertain doctrine of fair use refers to the individual’s extreme use of copyrighted material. It was more due to the belief in traditional copyright concepts than material exploitation that one response to this new situation resulted in such absurdities as banning and seizures at such places where it was possible. And against private use of VCRs, the inchoate response has still been one of vehemence with a moral fear of invasion of privacy winning the toss. Thus it was that when piracy not only occurred but seemed to have occurred, that a penal measures was found justified.

CHAPTER III - ROYALTY COLLECTIONS AND BLANKET LICENSING SCHEME We put the bite on DVD player home copying by accepting the contributory infringement doctrine and we found it absolutely essential to step ahead of the West German Legislative measures. Large tunes of royalties can thus be ensured in a common fund which could be later settled amidst right owners. We could appreciate such a way out as reconciliation between advancement of human progress DVD/CD player is an achievement today and there is need to confront the progressing avenues within fair limits palatable to the movie industry.

The Royalty Scheme In the Betamax suit, the Court of Appeals remanded to the District Court to determine the appropriate remedy for contributory infringement. The Court of Appeals had observed that when great public injury would result from an injunction a court could award damages or a continuing royalty. The court added the hint that this may very well be an acceptable resolution in this context. This statement of direction from the Appellate Court suggested that it regarded a court imposed compulsory license royalty on recording equipment as being preferable to an injunction banning the use of VCR records. The U.S. Copyright Act, 1976 already provides authority for a court imposed compulsory license royalty in a slightly different context. Section 405(b) discusses the liability of a person who innocently infringes the copyright on a work from which the notice of copyright has been absent. The section provides that in an infringement suit arising in these circumstances the court may instead of enjoining the infringing activity require as a condition over permitting the continuation of the infringement, an undertaking that the infringer pay the copyright owner a reasonable license fee in an amount and on terms fixed by the Court. Nimmer who draws authenticity for enabling such a scheme to govern audio home recording quotes a patents case Foster v. American Machine and Foundry Co. In this case the District Court denied the plaintiff injunctive reliefs from the defendants infringement of his patent. Instead it granted him a reasonable royalty for the defendants continued use of his patented process. The United States Court of Appeals for the second circuit affirmed the ruling, observing that

“The Court could properly conclude that to impose irreparable hardship on the infringer by injunction without any concomitant benefit to the patentee would be inequitable. Instead the District Court avoided the cessation of business to the benefit of neither party by compensating the plaintiff in the form of a compulsory license with royalties”. We can thus derive that the Court’s reason for granting a compulsory license in this case would apply equally well in the video home recording context where an injunction would only cause substantial loss to the manufacturer of DVD player sellers and consumers without producing an offsetting benefit for the copyright owners. Under a compulsory license royalty scheme, it would be unnecessary to enforce the copyright laws against the individual who engages in video home recording; the manufacturer’s payment of the court imposed royalty on the recording equipment would relieve the equipment purchaser from liability. This logic would extend to the video cassette manufacturers also. It is foreseeable that the manufacturer would shift the cost of the royalty on the consumer. Arguably, the consumer is the primary infringer and the manufacturer would find reason to shift the burden by raising the price of the recording equipment and the cassettes. The simpler factor is that the enforcement of this royalty levy against the manufacturer has no problems of privacy or of enforceability, given that the sales of the equipment are public.

Distribution Among Claimants A Royalty Tribunal could be commissioned. The Film Federation of India could initiate its organization. Its job would be to see that the royalties are equitably dispersed, overlooking neither the creator’s proprietary interests nor the public good. For example, the U.S. Copyright Act, 1976 requires the operators of Cable Television systems to pay a percentage of their gross receipts into a fund that is distributed by the Copyright Royalty Tribunal among copyright claimants or else, a private negotiation between DVD Player manufacturers and the movie producers can be encouraged.

The Drive Against Piracy It is not merely that law that can outwit piracy. Some voluntary associations of cinema people equipped with a legal cell must come forward as a threat to pirates.

Mr. Gul Anand (Producer and Exporter) has set an example in getting together almost all the video dealers in U.K. under one umbrella, the India Videogram Association which has been formed and registered in U.K. The British Parliament has already produced its Anti Piracy Bill which provides such remedies as: 1. Magistrates can impose a fine of 1000 or impose a two month prison sentence for possessing, making or distributing a pirate cassette. 2. Courts can impose two-year prison sentence and/or an unlimited fine for serious offences. 3. The police have powers armed with warrants, to search any premises in which they have reason to belief that pirate tapes are being made or distributed and take away any items considered to be evidence.