Viewer Discretion Required

The jury is still out. But looks like you can continue to download pirated version of movies. Anurag Kashyap, too, appeared to accept it: “My audience is Torrents audience....” said director-producer Anurag Kashyap in jest. The tongue-in-cheek one-liner has a dark reality. It not only cut into the profit of his own production Udta Punjab, but also made him take to Facebook and urge viewers not to watch the pirated copy. Online piracy is a clear and present danger, hitting the film industry where it hurts most: the profits.

The Bombay High Court recently might have set the record straight when Justice GS Patel stated: “The offence is not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission of copyright-protected material.” His observation cleared the confusion and ambiguity. The fact is that downloading pirated films or watching them online was never a legal offence. 

Hemant Kumar, an advocate with Punjab and Haryana High Court, concurs with Justice Patel, currently adjudicating the matter between Eros International and Internet Service Providers (ISPs) over blocking URLs over copyright-protected works. “The message that the error pages of Internet Service Providers use to display which tend to block certain URLs indeed gives a wrong impression. It leads to a conclusion that even 'viewing' is an offence under the Copyright Act, thus creating confusion over penalties prescribed under this Act,” says Hemant. 

However, Gurjot Singh Kaler, DSP cyber crime, Mohali can't understand the difference between an individual watching a pirated copy for leisure and its illegal commercial distribution. Besides when hundreds of individuals watch it, it no longer remains an individual affair. Rather he calls piracy an industry in itself. 

Losses mount

According to a report, the country's film industry continues to lose around Rs 50 billion in revenues and over 50,000 jobs every year due to piracy. India is one of the top 10 countries witnessing peer-to-peer file-sharing infringement worldwide. No wonder Kaler feels that onus has to be fixed even at the individual level and freeloaders and providers both have to be brought to book.

The big question is: how? Television and film actor Ayub Khan believes that good old rules are redundant in the digital age. Producers and makers have to devise newer ways to safeguard themselves. Fearing piracy Sajid Nadiadwala, the co-producer of Dishoom did not submit a DVD to the censor board. Instead a copy of the film was in the encrypted DCP-KDM format. Besides, Bollywood for now is putting up a united front. As films continue to fall prey to online piracy A-listers have come out strongly against piracy. Not too long ago the release date of Madari was postponed to give a fair advantage to Great Grand Masti which had been leaked. 

Is there a cure?

Video on demand and Electronic Sell Through (EST) mechanism are options that the film industry is seriously considering. Through EST, consumers can buy digital copies of films for unlimited viewing on demand via the Internet, mobile and cable in exchange for a transactional fee. But whether these will work, Khan is doubtful. In time of information overload who and why anyone should pay for content is his ticklish query. Should the makers then live with it? Perhaps, not, but they will have to realize that in the Internet age, models of financial and creative control can't be the same that were applicable many years ago. 

Interestingly, piracy is not a new phenomenon. Back in 1989, to pre-empt piracy of the Salman Khan-starrer Maine Pyar Kiya, producer Rajshri Productions released a VHS version simultaneously. But online piracy is far more lethal and leakages are near impossible to plug. Even though, the Malayalam filmmaker Ranjith decided to release Leela online on the same day as its theatrical release, it didn't work. The HD copies of the film were leaked on the net before being launched online. 

So how do you make the business of making and distributing films piracy-proof? Following the KDM code is one option. KDM Key Delivery Message is a special electronic key that contains a code to unlock the encrypted film and is followed strictly in Hollywood. Of course, all these measures would be an exercise in futility if not backed by a proper legal framework.

John Doe Order

Hemant says, “Let's hope the court lays down correct and rational propositions of copyright law in the light of contemporary realities.” For now makers are using the John Doe Order to stall online leak of their films. Last year John Doe Order, which is issued against anonymous offenders, was used by various production houses to block websites. But this measure also led to speculation about misuse of the order. Recently, Justice GS Patel refused to pass a John Order when Balaji Motion Pictures Ltd approached the Bombay High Court. Clearly decoding intellectual property rights and upholding the interest of filmmakers does not necessarily translate into a blanket ban of websites. Online piracy is a serious issue but equally serious (not kneejerk) have to be measures to counter it. 

nonikasingh@tribunemail.com