c o m p u t e r l a w & s e c u r i t y r e v i e w 2 7 ( 2 0 1 1 ) 5 3 7 e5 4 1

available at www.sciencedirect.com

www.compseconline.com/publications/prodclaw.htm

All talk and no bite: Copyright infringement and piracy trends

in India5

Ameen Jauhar 1
West Bengal National University of Juridical Sciences, Kolkata, India

abstract

Keywords: The Copyright Act 1957 presents the face of modern copyright protection afforded to different
Copyright law intellectual works and is a key statement of intellectual property rights (IPR) in the Indian
Infringement legislation governing this domain, as well as being compliant to the TRIPS Agreement on
Piracy Trade Related Aspects of Intellectual Property Rights. This Act has been acceptably referred to
Copyright act on many occasions on global platforms, on account of its being one of the most elaborate and
well-structured pieces of legislation in the field of intellectual property law. However, this well
encompassing, highly creditable and widely acknowledged legislation seems to fall down in
its practical implementation rendering its theoretical purpose partly futile. The situation so
stands, that India continues to project major piracy rates with little regression in the trend
despite the fact that this law is still very much in force. The reasons which deny effective
copyright protection in India, for works of miscellaneous categories, have much to do with the
lack of an equally strong enforcement mechanism. This paper provides an insight into the
inadequacies of the Indian legal and administrative systems which have ultimately dimin-
ished the effectiveness of the copyright regime contrary to that envisioned by the law.
ª 2011 Ameen Jauhar. Published by Elsevier Ltd. All rights reserved.

1. Introduction However, the flipside of such development is the vulnerability

Steve Jobs, the Apple CEO believes that online music stores do
not threaten the music industry; it is the high piracy rates
which accomplish that task. This apprehension in the
contemporary, ever expanding technology driven world
seems completely tenable and supported with sound
reasoning. Rapid enhancements of technology, especially in
the field of communication, such as the proliferation of the
internet or the growing popularity of global radio stations
et al., have indeed made rendered works of literature, music,
cinematography and other works much more accessible.
of copyright holders and their various rights under existing IP
regulation. Copyright is an exclusive legal right conferred on
the creator of a musical, dramatic, cinematographic, literary,
or any other category of work to copy or reproduce the same.
The idea behind the copyright law of any country, similar to
other related IP law, is to incentivize the creation of new
works. The incentive is not only the grant of an exclusive right
to reproduce one’s work but the pecuniary benefits that one
may accrue as a result of this type of ‘monopoly’.
Copyright, as a concept, was first developed in England in
the early eighteenth century. In order to safeguard the rights

5
This paper derives from a conference paper presented at the First International Conference on Computing Business Applications and
Legal Issues (ICCBALI 2011) Institute of Management Technology Ghaziabad, India and Winona State University, USA, March 3e4 2011.
1
The author acknowledges the valuable inputs of Mr. Anirban Mazumdar, Associate Professor at the WB NUJS who kindly provided
some critical insight into the functioning of Copyright Law in the field of Computer Software to the author.

0267-3649/$ e see front matter ª 2011 Ameen Jauhar. Published by Elsevier Ltd. All rights reserved.
doi:10.1016/j.clsr.2011.07.009
538 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 7 ( 2 0 1 1 ) 5 3 7 e5 4 1
of authors, the legislators enacted a statute which allowed
only the author to publish or reprint his work.2 This statute,
the Statute of Anne 1709 (8 Anne c.21), was succeeded by other
legislation which ultimately culminated in the passage of the
Copyright Act of 1911 (c. 46) in England, the first major copy-
right legislation to follow after the initial revision of the Berne
Convention for the Protection of Literary and Artistic Works in
1908. This legislation was also applicable to disputes over
copyrights in India as the same was a British colony. It was
only in 1957 that the Indian Government enacted a new
copyright act thereby eschewing the provisions of its prede-
cessor. The Indian Copyright Act, 1957 provides protection for
original literary, dramatic, musical and artistic works, cine-
matographic films and sound recordings.3
Copyright infringement, and its most common form e that of
piracy, is a global menace, with national, transnational and
international violations taking place all the time. As the creator
of a particular work, the individual reserves the right to publish,
distribute or reproduce the same. Piracy and copyright
infringements are the antithesis to this bundle of rights available
to the creators of works. Piracy, therefore, affects not only the
economic interests of the nation by reducing the revenues it may
earn through these works, but also impairs the incentive for an
individual investing his energy and resources in creating a work
by not allowing him to receive his deserving returns from society.
As is amply clear from all the aforementioned points,
piracy and copyright infringement is endemic, a picture which
projects the weakness and inefficiency of intellectual property
law in the digital age, both generally and in terms of national
law,in securing the rights of creators of works. It is also no
secret that piracy rates in India are some of the highest in the
world. Copyright infringements are often carried out in such
diurnal patterns that, in time, they become readily accepted as
a licit act; something that it is not!
This paper will reflect on the possible causes of this para-
doxical scenario and highlight reasons which can be listed as
the causes behind spiking rates of piracy and copyright
infringement. It will also look into possible solutions to these
innate fallacies in the law and suggest ways to ameliorate the
same. The current paper’s objective is to provide a thorough
insight into the Indian ‘copy right’ and the mechanisms it
provides for curbing piracy. The first part of the paper presents
a primer to the Indian Copyright Act and the mechanisms
available under it to curb copyright infringement. This part
will highlight the high prevalence of these trends by providing
illustrations of copyright infringement in the Indian film
industry and piracy afflicting the software manufacturing
sector. The second section will stipulate the arguments as to
why the legislation, as the title suggests, is all ‘talk and no
bite’. The Copyright Act 1957, despite its passage into force in
the pre-digital or offline world is, in terms of enduring prin-
ciple, one of the most thorough laws pertaining globally; yet
the enforcement of the rights available under it has, to put the
2
The Queen Anne’s statute provided exclusive copyrights to
authors. However, works of art, music etc., were not brought
within the purview of this legislation which only safeguarded the
rights of authors with respect to their works.
3
Section 13(1) of the Act lists out the works protected under the
legislation.
point succinctly, been disappointing. The final part of the
paper will talk about viable solutions to these problems,
bringing to the fore model solutions which have been adopted
in numerous developing countries.
2. Copyright Act 1957: rights and remedies
The problem of piracy in India is not supported by empirical
evidence or statistics of any sort; however the same is unde-
niably epidemic. India today exhibits some of the highest
rates of piracy and copyright infringement, second only to
a few South East Asian countries.4 Two primary reasons for
prevalence of such high piracy rates are poor enforcement
mechanisms and a severely deficient rate of information in
the area. The copyright law regime in India offers most
protections and rights at parity with its western counterparts.
The differences which exist can be found in the enforcement
mechanisms which, in India, are critically devoid of effective
implementation. Police personnel, who should enforce these
provisions, are often not entirely conversant with them; not
only that, the main focus of law enforcement agencies is on
conventional law and order issues and piracy abuse figures
low on the priority list. The general lack of awareness of the
public in copyright matters or possibly their apathy toward
the issue is another major cause of the problem in India. The
following overview of the Indian Copyright Act will introduce
the different facets of the legislation such as the definition of
copyright, the actions which constitute infringement of this
right, and the mechanisms and authorities provided to
redress such infringements et al.
The Indian Copyright Act provides for a spectrum of rights
available to the author/creator of a creative work. As already
posited, the idea behind affording an exclusive right in the
work, thereby facilitating a type of ‘monopoly’ in the expres-
sion of its creator over his work, has been to incentivize the
effort one invests in such an exercise, on behalf of “the prog-
ress of science and the useful arts”. However, it is submitted
that any monopoly created can never serve the public welfare.
If one is to understand the justification behind copyright there
exist several theories which address the issue. These theories
can broadly be divided into the utilitarian and non-utilitarian
theories with the latter further branching into several
different discourses.5 Though there are conflicting arguments
to all theories the one point to which they all conform is that
the monopoly crafted under a copyright regime cannot be
accorded unconditionally and must be limited.6 There is also
4
See Abdul Ghani Azmi, Development of law in Asia: Copyright
Piracy and Prosecution of Copyright Offences and Adjudication of IP
Cases, pp. 402e425.
5
For a holistic insight into these theories see, Lior Zemer, “On
the Value of Copyright Theory”, I.P.Q. 2006, 1, 55e71.
6
The ‘fruits for labour’ theory which finds its origin in Lockean
understanding of property, and which is considered strongly to
promote pro-proprietary rights, also seeks to limit such
a monopoly on grounds of ‘non spoilage’ and ‘equal use’. The
Utilitarian theory seeks to balance the incentive for the creator
with the social welfare that emerges by granting access to the
work, thereby, facilitating the greater good for a greater number
of people.
 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 7 ( 2 0 1 1 ) 5 3 7 e5 4 1
another rule of thumb, which governs the dynamics of copy-
right law regimes, that incentive and access are inversely
proportional; an increase in one will always hinder the other.
The idea, as has been iterated in the introduction, is to fine
tune these two and achieve a balance satisfactory to both
parties i.e. the creator as well as the public.
The Indian Copyright Act prima facie provides a vast bundle
of rights to the author/creator of a work under the ambit of
copyright protection.7 The rights together constitute a nega-
tive right as a whole which prohibits third parties from
exploiting the work of another without the creator’s permis-
sion. The Copyright Act 1957 can be said then to provide two
types of rights to creators or copyright holders e economic
and moral rights. The economic rights arise under Section 14
of the Act wherein the creators of works protected by the Act
are granted rights to reproduce, sell or give on hire, issue
copies, perform the work in public or exploit the work in any
manner as provided for under Section 14.8 The moral rights
which subsist under the legislation are two pronged namely
the right of paternity and the right to integrity.9
An understanding of what constitutes an infringement to
these aforementioned rights must be juxtaposed to the
previous paragraph so as to provide a context to the same. The
purpose behind the grant of copyright protection is to ensure
certain exclusive rights to the creator. Any other person who
attempts to usurp these exclusive rights will cause an
infringement of the copyright.10 Section 2(m) lists four types of
copies of works which are to be considered as infringing the
rights of the author/creator if the same are reproduced in
a manner contravening the provisions of the Act.11 Section 51
lists acts which constitute a copyright infringement under the
Act. Unlike the rights afforded to different works under
Section 14, Section 51 highlights no specific infringements for
different works but instead lists certain action actions in
7 3.
Section 14 of the Indian Copyright Act defines a ‘copyright’
and lists all its components.
8
It is also important to note here that the rights provided for
different works are overlapping yet different. These have been
expressly stipulated under Section 14 of the Copyright Act 1957.
9
Section 57 defines moral rights and creates two main cate-
gories. The right of paternity establishes the right of the creator of
a work and blocks all others from claiming authorship over the
same. The right to integrity, which stems from Hegel’s ‘person-
hood’ thesis justifying copyrights, allows the author to restrict
any distortion, mutilation or other alteration to his work as would
affect his honor or reputation in an untoward manner.
10
B.L. Wadhera, “Law Relating to Patents, Trademarks, Copyright
Designs and Geographical Indications”, 3rd Ed., Universal Law
Publishing, pp. 372e383, 372.
11
Section 2 (m): Infringing copy means: (i) in relation to
a literary, dramatic, musical or artistic work, a reproduction
thereof otherwise than in the form of a cinematograph film; (ii) in
relation to a cinematograph film, a copy of the film or a record
embodying the recording in any part of the sound track associ-
ated with the film; (iii) in relation to a record, any such record
embodying the same recording; and (iv) in relation to a pro-
gramme in which a broadcast reproduction right subsists under
section 37, a record recording the programme, if such reproduc-
tion, copy or record is made or imported in contravention of the
provisions of this Act.
539
generic terms which are tantamount to infringements of
copyright. These actions include production of infringing
copies for the purpose of sale or hire, permitting public
performance at a place where such performance causes an
infringement, public exhibition of infringing copies et al. It is
submitted that such broadly worded clauses are intended
unquestionably to serve a much broader agenda than simply
ensuring the functioning of the Copyright Act, thereby
securing the necessary incentive for the creator of a work.
The Copyright Act 1957 allows both civil and criminal
action against the violator of a copyright. Civil remedies
include injunctions, damages and accounts. Copyright
infringement also amounts to cognizable criminal offences
under the Section 63 of the Act. The Act empowers a sub-
inspector, or an official of higher rank, to take cognizance of
an actual or potential infringement and thereby seize, without
warrant, all copies and materials used for such infringement
activity. The offence is punishable by an imprisonment of 6
months with a minimum fine of Rs. 50,000. For second time
offenders the imprisonment extends to one year with
a minimum fine of one lakh rupees.
Indian IP law, including the Copyright Act, with the series
of amendment under the auspices of the WTO, has now
become TRIPS compliant.12 In fact, despite its age, the Copy-
right Act 1957 is considered one of the most progressive laws
in the field of IP legal regime globally.13 This said there is no
challenge to the fact that, with such an elaborately drafted
legislation, India’s enforcement mechanisms against copy-
right violations and piracy activities are totally inadequate.
The subsequent portion of this paper will reflect on the spate
of copyright infringements and piracy activities by identifying
these abuses in the film and software manufacturing indus-
tries. It will further present ideas as to the root causes of these
illegalities.
A primer to software duplicates and piracy
The ‘computerization’ of industrial society that was well
underway by the early 1990s resulted in an expanding
software piracy industry. As per records of the Software
Publishers Association unauthorized copying and
12
The TRIPS Agreement came as a part and parcel of WTO’s
membership. Every member country which was also a signatory
to the Agreement was to place into effect or amend existing IP
laws in conformity with the principles enshrined within the
TRIPS Agreement for which each country was accorded a 10 year
transitional period. India, with its amendment to the Copyright
Act in 1994, made sure it was ‘TRIPS compliant’ by adding satel-
lite broadcasting, computer software and digital technology to
the traditionally protected areas under copyright law. See,
Rachna Desai, ‘Copyright Infringement in the Indian Film Industry’, 7
Vand. J. Ent. L. and Prac. 259, 2004e2005.
13
The International Intellectual Property Alliance (IIPA), which
is a private conglomerate monitoring copyright law develop-
ments in over 80 countries worldwide, has declared India to have
at its disposal one of the most advanced Copyright laws. See IIPA,
2003 Special Report 301: India 123, available online at http://www.
iipa.com/rbc/2003/2003SPEC301INDIA.pdf.
540 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 7 ( 2 0 1 1 ) 5 3 7 e5 4 1
distribution, colloquially known as software piracy, made
over $7.4 billion illicitly in 1993.14 Software piracy forms an
easy and lucrative business for many illicit traders and as such
is widely practiced. Piracy can occur when copies of original
programs are resold; when software is sometimes preloaded
in a system which is sold; or when programs are sold as free
complimentary goods along with computer systems etc.
The computer software industry has, over the past two
decades, emerged as the single most dominant player within
the industrial scene in India.15 The same has received
a further boost by enhanced copyright protection which has
since been awarded by amendment to the Copyright Act
1957.16 This legislation has, since 1994, incorporated
a widened definition of literary works which now expressly
includes computer software and databases. However, the
bundle of rights which exist for computer software has been
listed differently under Section 14.17 The NASSCOM is the
vanguard agency which combats software piracy in India. The
organization helps in generating awareness amongst users of
the ill effects of using counterfeited software and if need be,
conducting raids on premises of sellers of illegal software to
their customers.18 Statistics and empirical studies19 reveal
that the dominant share of software piracy in India affects not
only domestic companies but also foreign software manu-
facturers too.
The primary reason behind this thriving piracy racket is
the economic viability for both those engaging in piracy as
well as end users of such pirated software. The primary
incentive which attracts end users is the enormous cost
difference which exists. As such, the market price of pirated
software is lower than the retail price of the original software
to such an extent as to produce lucrative returns for the
pirates, and simultaneously tempt customers into making
such illegal purchases. This price difference between the
original and counterfeit software products is even more
14
The 1993 SPA Study, as found in Preventing Software Piracy
through Regional Trade Agreements: The Mexican Example, 20 N.C.J.
Int’l L. & Com. Reg. 175 1994e1995.
15
The Indian software industry has an annual compound
growth rate of 50 percent. With an export turnover of about 60
percent the industry is a prominent earner of foreign exchange.
The government has also labeled it as the ‘thrust sector’ for both
export and domestic purposes. For empirical data on the growth
of the Indian software industry, see ‘Study on Copyright Piracy in
India’, sponsored by the HRD ministry, Government of India,
available online at http://copyright.gov.in/Documents/STUDY%
20ON%20COPYRIGHT%20PIRACY%20IN%20INDIA.pdf.
16
The Copyright Act 1957 incorporated an inclusive definition of
literary works thereby affording protection to computer software
too. The definition was further amended in 1994 to expressly
include ‘computer programs and compilations, including
computer databases.’ See TC James, ‘Indian Copyright Law and
Digital Technologies’, Journal of Intellectual Property Rights, Vol. 7,
September 2002, pp 423e435.
17
The Copyright Act 1957 categorizes computer programs as
literary works; however, that said, the Act also affords a different
set of rights in addition to those enjoyed by a normal literary
work. These rights are listed in Section 14(b) which, in addition to
the right to reproduce, bestows sale and rental rights on software
creators.
18
Supra 14.
19
Id.
significant in developing and third world nations where
multinational software manufacture sell the original products
without accounting for the prevailing economic and per capita
conditions in those countries. Therein, conditions prevail
whereby the pirates can make enormous profits by repro-
ducing counterfeit goods at much lower production and
distribution costs20 and selling the same with adequate profit
margins.
4. A composite of possible solutions
Through the course of this paper the author has reaffirmed
the strong nature of the Copyright law prevalent in India. The
Copyright Act 1957, being TRIPS compliant in its present
format, presents a model copyright protection law which is
enviable even for more advanced and developed nations.
However, with all that said it is also necessary to understand
the real limitations in implementing and enforcing the stat-
utory mandate. By creating the requisite regulation without
the backing of sound and effective enforcement mechanisms,
or in some cases adopting a selective approach to enforce-
ment, renders robust legislation impotent. What follows is
a brief illustration of some possible solutions which have been
adopted successfully in other countries and which, in the
opinion of the author, are well suited for the Indian copyright
regime.
5. Special IP courts
The enforcement of IP laws in South East Asian countries has
been a perennial problem. Prosecution of IP infringements and
inadequate sentencing of the same are two fundamental issues
which pose as obstacles to enforcement.21 Therefore, effective
adjudication, through criminal and civil courts, can be
considered a significant problem with respect to IP cases.22
Thailand has already established specialized international
trade and IP courts which provide a more expeditious forum for
adjudication of disputes. The rationale behind setting up
independent civil courts is that IP rights are essentially private
in nature and the onus for enforcing the same should be placed
on the owner of such rights, not the government. Similarly,
Indonesian commercial courts have now had special jurisdic-
tion conferred to deal with IP matters, a move which has
unquestionably speeded up the prosecution of such cases
there. Malaysia too is considering setting up similar courts. The
20
The traders of pirated software employ numerous mecha-
nisms for cost efficient and untraceable distribution which not
only lowers distribution costs but also helps evade law enforce-
ment authorities too. For example, in Malaysia, the infringers are
now resorting to the use of children to peddle these goods,
including pirated software. Supra 3, 408.
21
Supra 3, 421.
22
Id. The problems related to inefficient prosecution can also be
resolved by training the judiciary, prosecutors and other con-
cerned agencies in IP concepts and evidentiary rules. This
training becomes a more substantial need given the rapid rate of
development and growing sophistication of technology which
has provided such a catalyst to novel forms of piracy.
 c o m p u t e r l a w & s e c u r i t y r e v i e w 2 7 ( 2 0 1 1 ) 5 3 7 e5 4 1
main impediment, which has often been highlighted by jurists,
scholars and enforcement agencies with respect to IP rights, is
the lack of expertise and insufficient knowledge among con-
cerned officials working in the area of IP. Such a deficiency can
be rectified by established special courts or tribunals operating
similarly to civil courts, with members who are well versed
with the intricacies of IP law. In India special courts and
tribunals already exist for various civil matters, e.g. family law
cases, consumer courts, industrial tribunals et al. Most of these
courts have been established under separate statutes or after
suitable amendment to existing legislation. In the author’s
opinion, by enacting new legislation the Parliament can
establish an effective hierarchy of specialized courts, consti-
tuted of jurists and IP law experts, to adjudicate future cases.
Such a step will definitely ensure greater efficiency to the
overall enforcement mechanism for IP rights.
6. Bilateral agreements specific to IPR
enforcement
It is submitted that the inadequate enforcement of IP rights
stem primarily from the lack of administrative and financial
resources and infrastructure to facilitate the same. There is
also reticence on the part of government to divert scarce
resources from other schemes of public welfare to the devel-
opment of this infrastructure for enforcement of IP rights.23 A
possible solution to this dilemma could be investment from
other countries in order to generate the necessary capital to
establish an adequate enforcement structure. Through bilat-
eral agreement or creation of a MOU with the participants,
national assistance can be sought in the form of low interest,
long term loans. Furthermore MOUs can also be signed to
coordinate training and education programs for prosecutors,
judges and other individuals who are involved in the process.
With this kind of help, resources could be found to develop
a proper enforcement system with trained and expert
personnel working in it.
7. Judicial sensitivity and appraisal of IP rights
The judiciary in India has taken a conservative stand on pro-
tection of IP rights. For instance the ‘lay observer’s theory’,24
23
India typically spends as little as 0.027% of its fiscal budget on
enforcement of IP rights. Compare this to the position of devel-
oped countries such as the US where the federal government
spends almost 1.7% of its budget in creating a sound structure for
enforcement of IP rights. For further discussion on this point see:
Jishnu Guha, ‘Time for India’s Intellectual Property Regime to Grow
Up’, 13 Cardozo J. Int’l & Comp. L. 225 2005.
24
The ‘lay observers’ theory is essentially a rule used by the
courts to determine whether, for example, the plots of two
movies are substantially similar and therefore represent a copy of
the original work. To determine the answer to this question, the
court perceives the two works from the perspective of a lay
person and tries to determine if he/she would find the two works
to be substantially similar. If found to be so, then the work is
judged to be a copy of the original and therefore an infringement
of copyright. This rule was first evolved in R.G. Anand v. M/s Delux
Films & Ors., AIR 1978 SC 1613.
541
as has been evolved by through case law development,
exhibits a general understanding of copyright protection by
judicial officers and judges which favors a restrained appli-
cation of copyright law. This attitude of the judiciary has led to
a very limited number of copyright infringement cases being
actually reported and prosecuted. The court’s judgment in
Microsoft v. Deepak Rawal25 reflects the cautious attitudes of the
Indian judiciary in affording adequate remedies in cases of
copyright infringement. This was a clear instance of software
piracy by the defendant for which he offered no tenable
defence. The court accepted that the defendant’s liability to
pay damages extended even to the payment of punitive
damages. However, the amount awarded as such was
a meager sum, just 5 lacs, and stood in stark contrast to the
amounts claimed by the plaintiff as representing reasonable
compensation for the infringement.
In the author’s opinion, this conservative trend stems from
the judicial officers’ lack of experience with respect to copy-
right law and its economic consequences. Such lack of
expertise further results in a lack of sensitivity of the judiciary
to a reasoned appraisal of copyright interests. To ameliorate
the situation it is necessary that the officials handling IP cases
receive more training; a step which can be secured through
the establishment of and investment in special courts, as has
been highlighted in the preceding paragraphs. Such steps will
ensure that copyright law not only secures de jure protection in
dispute cases but effective remedies too; a step which will
patently boost IP related litigation, thereby securing the
interests of right holders in balance with the legitimate
expectations of consumers too.
8. Conclusion
The Copyright Act 1957 presents an updated, modern and
sophisticated approach to IP regulation to the world.
However, enforcement mechanisms fall far short of expec-
tations due to a lack of expertise and a general apathy among
law enforcement to the policing of copyright violations. For
this reason the statute fails to secure the protections it
should offer on paper. Software piracy thrives in the Indian
market because of inadequate enforcement measures. The
industry accrues over $7 billion dollars annually from the
reproduction and sale of pirated software and CDs. As such
the Indian software industry, which is a major growth sector
ion its own right, faces a severe crisis in the form of depleted
annual turnover.
The solution lies only in the form of more stringent
enforcement mechanisms. Indian law needs to equip both law
enforcement agencies and the courts so that copyright
infringement can be tackled with the severity it deserves. For
this to happen the time is right for government to act to
implement the changes advocated in this paper.
Ameen Jauhar. The author is currently a 4th year student at the
West Bengal National University of Juridical Sciences, Kolkata, India
25
2006 (33) PTC 122 (Del.).