Online Digital Piracy in the Indian Film Industry: an empirical study

under Indian Copyright and Technology Laws

Introduction

With the Internet the Film and Entertainment Industry seems to have witnessed a paradigm
shift in respect of the traditional notions of “protection against infringement” that were
earlier provided under the Indian copyright regime. The excessive proliferation of the
internet has facilitated free illegal access to copyrighted works. This has come to question
and doubt the very concept of copyright law and standards of protection under it. With the
ensuing digital era, copyright has widened itself to include “works existing in any medium”.
However, the law lacks enforcement in case of violation and infringement to copyrights.
Digital piracy for creative copyright in the entertainment industry has become a worldwide
concern.

Article 7 of the Trade Related Aspects of Intellectual Property Rights Agreement (TRIPS)1
stating the Objectives Clause, underlies the faith of the member states of WIPO to the
promotion and protection of Intellectual Property such that it contributes to achieving the
balance of rights and obligations between the right holders and the interests of the public.
Copyright Law is one such branch of IP that seeks to fulfil this objective by differentiating
between public and private use of a work, thereby making the former an infringement if
accessed in an unauthorised manner or through illegal means. Section 52 of the Indian
Copyright Act, 1957 further states that a private use of the copyright work shall be exempt
from liability of any kind for infringement.

Internet is defined as a ‘world wide web’ consisting of interconnected networks using

standardized communication protocols. It has today evolved as the fastest growing medium
of transmission or communication of any information or content. The pace at which
technology has been growing, the internet may be described as the world’s biggest ‘copy’
machine, as has been rightly quoted by Kevin Kelly2. The irony of digital content is that

1
Trade Related Aspects of Intellectual Property Rights
Agreement, 1995 https://www.wto.org/english/docs_e/legal_e/27-
trips_01_e.htm)
2
Kevin Kelly is the founding executive editor of Wired Magazine, and a former editor/publisher of the Whole
Earth Review, https://www.youtube.com/watch?v=fOIRhMIOcfU
‘access-to-content’ is deemed synonymous with ‘control-of-content’3. As a result what
bothers the content owners is the easy reproduction and dissemination of the work at a low
cost leading to loss of ownership and incentive for the creator. When any copyright
protected work which is originally assessed for private use only, is made available on the
internet, it is subsequently transformed into public use. This allows others to have access to
the same content without paying any cost for it. This consequently reverses access-to-
content into control-of-content for the person who shares such content and puts at stake
everything that has contributed towards the creation of the content. This has undermined the
significance of the Copyright and Technology regime in this digital age and has come to be
defined as online digital piracy.

Consumer digital piracy in the Media and Entertainment Industry has emerged as one of
the most devastating effects of the Internet and digitization of data. Piracy as a practice
shall never come to an end. Data reveals illegal activities including Streaming,
Downloading and Sharing makes available the pirated version of a Film on the Internet
during the first few weeks post release through CAM, TC, DVDRip/BluRay. However, a
change in the theoretical perspective to limit its impact- introducing neutralisation
techniques to reduce dissonance by understanding piracy determinants- may turn out
promising in the long-run.
The practice of file sharing over the internet has bothered the Music industry, both
nationally and globally. Sharing of copyrighted digital sound recordings leads to decreased
revenues and profits of notable record labels. Gradually, copyright owners started to employ
practical approach to meet consumer demand by improving online music distribution system
by adapting to novel business models that saw the emergence of iTunes, Spotify, Zunes,
Pandora etc., as legitimate music distribution sources. Online music services were offered to
consumers where record companies granted licensing agreements to a variety of online
retailers and reducing the gap between off-line and online releases, thereby providing
consumers with greater flexibility4.

Digital piracy in the Film Industry also seems to be going through its initial phase. Though
the International and National copyright protection regime has been brought in place to

3
Sanjib Chakraborty, The Future Development of Copyright in India, Odisha Review, 90-100, 2013
http://www.ipcsit.com/vol9/19-B006.pdf
4
J. Rogers, Re-Thinking Crisis in the Digital Economy: A Contemporary Case Study of the Phonographic
Industries in Ireland,School of Communications, Dublin City University, 2010http://doras.dcu.ie/15700/
check piracy rates, those are not well-equipped to combat the rates of digital piracy in the
film industry. Hence, the focus of the present study is on the copyright law in its ability to
balance the right of the public and the right holders in theage of Internet in the Indian
Entertainment Industry, with special reference to the film industry. The present study
reassesses the copyright law that is facing a crisis with widespread infringement and
disregard for the law through piracy in the virtual world in the Entertainment Industry.

The primary objective of the present study is to understand the following:

● The phenomenon of online digital piracy and the factors contributing to widespread
online piracy in the Indian Film Industry;
● The changing paradigms of Indian Film & Entertainment Industry with special
reference to application and implementation of Law of Copyrights and technology
laws in India;
● Conceptualising a framework that may be adopted at the International/National level
to reduce its impact on revenue generated by this Industry and the creative instinct
of its people.

The Indian Film and Entertainment Industry: Socio-economic

perspectives

It would not be wrong to say that the Indian Film industry represents the sentiments and
cultural aspects of the Indian community. By putting forward stories that resonate with the
people from every strata of society, the industry captures the spirit of the county and its
varied cultural diversity, languages and ethnicity. The platforms that it caters to, both
nationally and internationally is what makes it one of the biggest film industries across the
world generating and contributing to the country’s GDP in numbers that cannot be forgotten.

The film industry also has tremendous impact on the Indian economy. It was estimated at
approximately INR 18,600 crores in the financial year 2019-2020, and is expected to grow at
a CAGR [Compound Annual Growth Rate] of 9% in the financial year 2024-2025 to achieve
an estimated size of INR 29,900 crores. While the Covid-19 pandemic has left the rest of the
Indian economy in shambles, the film industry continues to remain unshaken with the
greatest number of films produced by any industry in the world. The Indian film industry
comprises not only of the Hindi film industry [that is, Bollywood], but also of various other
regional film industries- Kannada, Telugu, Tamil, Malayalam, Bengali and Marathi- being
the most prominent ones. Combined together, the regional and Hindi film industries certified
2,412 movies in 2019, which is double the movies certified a decade ago in 2019. At
present, the Hindi film industry covers a 21% share of the total number of movies made, but
brings in approximately 40% of the total revenue earned by the Indian film industry. Allied
to the film industry, stand the cinema screening and multiplex businesses. As of December
2019, the country has a screen density of 6.5 screens per million people, all of which are
digitised. The Gross Output (direct) of the film industry in the financial year 2019-2020 is
estimated at around INR 30,521 crores and the Gross Operating Surplus is sized at INR
1,587 crores, which indicates total returns to the capital invested as well as the direct taxes.
The Total Gross Output, taking into account the direct as well as indirect and induced
economic impact of the Indian film industry, stands at INR 92,326 crores. The industry
provided direct employment to approximately 2.56 lakh people and total employment,
comprising of indirect and induced employment, to 7.36 lakh people. The wage payments
paid to contractual workers is estimated to be INR 3,796 crores in the said financial year.
The total direct impact of the film industry, comprising of the gross output, gross operating
surplus, gross value added and NIT, is estimated to be a whopping INR 7,444 crores in the
financial year 2019-2020.5

But film piracy seems to know no boundaries. With the advent of the digital age, the efforts
and guilt that goes into piracy have both declined, and pirating of films has reached to an all-
time high, and the Covid-19 pandemic has only made matters worse. Reports show that
online digital piracy of films has risen by 62% in India during the nationwide lockdown as
compared to merely a month before it6. This is despite the fact that approximately 71% of

5
Report by Deloitte in association with Motion Pictures Dist. Association (India) Pvt Ltd, Economic
Contribution of the Film and television industry in India in 2017, 2018,
https://www.mpa-apac.org/wp-content/uploads/2018/05/India-ECR-2017_Final-Report.pdf)
6
Lata Jha, India seeks big spike in film piracy post Covid 19, 2020
https://www.livemint.com/news/india/india-sees-big-spike-in-film-piracy-post-covid-19-
11589183182123.html
the Indian population is aware of the illegality of producing and sharing pirated content, and
64% being aware that streaming and downloading of pirated content stands at the same
footing in the eyes of law7. In order to tackle the issue of piracy, it, hence, becomes
imperative to consider a more stringent legal solution, as the present legal order seems to be
failing miserably. The unorganised Film Piracy Industry earns around $2.7 billion every
year. Despite the IT Act “take down notices”8 in place and several John Doe orders that have
been passed against the perpetrators, consumer behaviour averts any change, thereby
indicating the ineffectiveness of the present copyright regime and appealing a change in the
business model in order to give effect to the principle of balance of rights and obligations
between the creator and the public.

Protection of Cinematographic films: Legal provisions and Judicial

pronouncements

A cinematograph film has been construed to mean a visual recording and the sound
recording accompanying it, if any9. The section further clarifies that a cinematograph means
any work which is produced through a process analogous cinematography. It is inclusive of
video films. The definition appended to cinematograph films in this Section is inclusive in
nature, as was held in Entertaining Enterprises vs State of Tamil Nadu10, as per which due to
the inclusivity of Section 2(f), recording movies in a video tape and then exhibiting it on
television is a process analogous to cinematograph. The author of a cinematograph film is its
producer, who is also the owner of the copyright subsisting in films11. With the ratification to
the WCT and WPPT, The Copyright Amendment Act 2012 provides for the anti-
circumvention measures under the Copyright Act, 1957, in order to stay at par with the
techno-legal policy decisions taken at the International front.

7
IDERTO Report on Despite High Levels of Awareness in India that Piracy is Illegal, 66% of Consumers
Polled Still Access Pirated Content
https://irdeto.com/news/irdeto-research-despite-high-levels-of-awareness-in-india-that-piracy-is-illegal-66-
of-consumers-polled-still-access-pirated-content/
8
Information Technology Act, 2000, Section 79 http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf
9
The Copyright Act, 1957, Sec 2(f) http://www.copyright.gov.in/Documents/Copyrightrules1957.pdf
10
Entertaining Enterprises vs State of Tamil Nadu (AIR 1984 Mad 278)
11
The Copyright Act, 1957, Section 2(d)(v)
Under section 14(d) of the copyright act, one of the exclusive rights of the owner/author of a
copyright is to broadcast the work. In this Section, “broadcast” means communicating the
work to the public through a medium of wireless diffusion or through a wire. Such diffusion
can take the form of a sign, sound or image. The term “broadcast” is also inclusive of re-
broadcast.

Further, communication to public12 under the Indian Copyright Act has been defined as
making any work available for being seen or heard or otherwise enjoyed by the public
directly or by any means of display or diffusion. However, it does not include distributing
physical copies of the concerned work. Such display, diffusion etc. can be either done
simultaneously wherein all the members of the public watch, hear or enjoy the work at the
same time; or at different times. It is inconsequential whether the public actually sees, hears
or enjoys the work that is being communicated. Section 65 of the Copyright Act also merely
provides for “copy control protection” rather than “access control protection” provision.
Therefore, showing a film on cable television to paying subscribers without authorisation
and license to do so amounts to a broadcast, and is hence an infringement of the copyright
holder’s exclusive right. This definition is broad enough to include communication of
information or content through the Internet as well post the Copyright (Amendment) Act,
2012.

The copyright-holder is given certain exclusive rights over the work in which he holds the
copyright. In case of cinematograph films, the exclusive rights of the owner extend to
making a copy of the movie in any form, including a photograph of a scene from the movie
or storing it in any medium; selling or commercially renting or offering to do so a copy of
the movie; and communicating the movie to the public. However, such acts if done without
permission from the author/owner amount to infringement. In India, for example, the
Amendment to the Cinematographic Act, 195213 in the early 2019 relating to criminalising
illicit camcording in cinema theatres has been acknowledged as an important step towards
effectively enforcing and safeguarding IP. However a major concern of this amendment is
that the Cinematograph Act mostly deals with restriction on Theatrical piracy rather than
online piracy.

The Copyright Act, 1957, Section 2(ff), http://www.copyright.gov.in/Documents/Copyrightrules1957.pdf

12

Information Technology Act, 2000, Section 6AA read with Section 7

13
Further, the Doctrine of First Sale in Copyrights states that anybody can ‘re-sell’ a legit copy
of the owners work without his permission after the first sale, but nobody can ‘sell’ the copy
of the owners work without permission that has been illegally reproduced. Thus, after the
first sale of the work, only distribution is permissible, but not its unauthorised reproduction
and distribution. However, the internet seems to blur this distinction as a result of rampant
online piracy of the copyrighted content and consumers seeking to have access to such
content which is an illegal copy of the original.

Section 51 of the Copyright Act, 1957 categorises infringement into primary and secondary
acts of infringement. The former comprise of situations wherein a person performs any act
which is the exclusive right of the copyright owner, or permits running for profit any place
which communicates to the public any copyrighted work without having knowledge that
such communication constitutes infringement. It is pertinent that the aforesaid acts must be
carried out without a license from the copyright holder, or the Registrar of Copyrights, or
where a license has been obtained, the act must be in violation of the terms and conditions of
such license. Secondary acts of infringement include selling, hiring, displaying for sale,
offering for sale or hire, exhibiting in public by way of trade, or distributing for trade
infringing copies of a copyrighted work without permission of the copyright holder.

Acts of piracy shall fall under both such acts of piracy. Offline piracy may amount to
primary infringement as there is distribution and communication to the public without
authorization from the owner for a commercial gain. On the other hand, online digital piracy
shall constitute secondary infringement insofar as the film is exhibited on internet platforms
and search engines to be downloaded, streamed and shared by the infringer.

Internationally, there is no specific remedy or principle of law that governs any aspects of
digital an internet piracy Though there were some developments being made under the
Comprehensive and Progressive Agreement for Trans Pacific Partnership (CPTTP 11)14 and
the Anti Counterfeiting Trade Agreements, but heavy criticism anti-ACTA protests across
several countries on grounds of freedom of expression isolation and privacy have thwarted
the very purpose behind its enforcement. The problem of new age piracy requires a
completely new age set of International Treaties and Agreements.

14
Comprehensive and Progressive Agreement for Trans-Pacific Partnership chapter 18
(https://ustr.gov/sites/default/files/TPP-Final-Text-Intellectual-Property.pdf)
Under the Information Technology Act the provision for safe harbour clauses seems to be
providing a blanket protection to such rogue and aggregator websites. Sections 79 and 81 of
the IT Act read with Section 51(a)(ii) of the Copyright Act require online intermediaries to
have actual and not general knowledge of the infringement, to seek relief that was specific,
and specify the actual content which was being infringed15. Section 79 providing for
secondary liability for copyright infringement may not be made applicable to websites that
provide for pirated copyright content and make themselves available as platforms for end
users to share and download the content as they rightly fall under the suspicion of
“knowledge” aspect. Further, the three strikes mechanism “Notice-and-Take Down/Notice-
and-Stay Down) that is followed in India is only prevalent as far as the content on YouTube
is concerned. Moreover, research in countries like Germany and France have shown that the
application of Graduated responses as a mechanism to deal with copyright infringement in
case of film and entertainment industry do not prove very effective. Rather the perpetrators
eventually become immune to the system and hence the legal implications are rendered
ineffective. In fact empirical data suggests that though in the long run such measures shall
help in streamlining the copyright regime, the drawbacks of the system- including taking
away internet from the users as a penalty and violation to right to free speech and privacy
due to monitoring the users- cannot be ignored16. In fact it has been inferred in some cases
that the jurisdictions where there are higher levels of protection mechanism and stricter
consequences for flouting the law, higher are the piracy rates. The more safe harbour
mechanisms are resorted to protect the ISPs’ secondary liability, the higher the chances of
consumers resorting to illegitimate websites like Pirate Bay for having access to copyright
content17.

Recently the new rules passed under the Information Technology (Intermediary Guidelines
and Digital Media Ethics Code) Rules 2021 though provides for due diligence, mechanism
for intermediaries and in so far as the online curated content is concerned, however doesn’t

15
ESYA Report on Trends in Copyright Infringement and enforcement in India, (2019)
https://static1.squarespace.com/static/5bcef7b429f2cc38df3862f5/t/5dee10b8af06d83e3e65ed2b/15758829
43779/Esya+Centre+-+Copyright+Infringement+and+Enforcement.pdf
16
Peter K Yu, The Graduated Response, Florida Law Review, Vol 62, 1373-1430, 2010
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1579782
17
Antoni Terra, Copyright Law and Digital Piracy: an Econometric Global Cross National Study, NORTH
CAROLINA JOURNAL OF LAW & TECHNOLOGY Vol 18, Issue 1, 69-117, 2016
https://scholarship.law.unc.edu/cgi/viewcontent.cgi?article=1320&context=ncjolt
specifically imbibe any provisions pertaining to restricting online piracy of any copyright
content18.

In terms of Judicial intervention in the matters of restricting and tackling piracy, the courts
in India have adopted remedies like issuing of Anton Pillars orders19. However, in most cases
these orders have not been able to cater to the objectives behind its grant for the reason that
in cases of it becomes difficult to identify the infringer. Hence the Indian Courts have
formulated what is known as the Ashok kumar/John Doe20 orders which facilitate search of
the defendant’s premise and seizure of the infringing goods21. . As these are issued in the cases of offline copyright

infringement 22, for online copyright infringement it becomes even more important to have remedies that are well suited to the functioning of the internet. These again are not adequate

because blocking of a single URL

is not effective to prevent infringement because the websites can provide
infringing content by changing the URLs23.

Recently there has been a shit in the nature of the injunctions that are being issued in cases
of online infringement and these include order Dynamic Injunction24. Counties including
Australia, Sweden and Singapore25 have been practicing for quite some time now In India
the Delhi High COurt adopted it for the first time in the case of UTV Software
Communication Ltd. v. 1337X. To & Ors.26 where it was held blocking as a remedy can be
adopted in the cases of rogue websites in such a manner that it is both necessary and
proportionately balances out the right to speech, trade and the intellectual property rights.

Countries like the UK also follow what has come to be known as Live Blocking of websites

18
INFORMATION TECHNOLOGY (GUIDELINES FOR INTERMEDIARIES AND DIGITAL MEDIA
ETHICS CODE) RULES, 2021 https://www.meity.gov.in/content/notification-dated-25th-february-2021-gsr-
139e-information-technology-intermediary
19
Souvik Bhadra, Arka Majumdar, Anton Piller Order in UK and its Possible Implications in India, Journal of
Intellectual Property Rights, Vol 12, 488-496, 2007,
http://docs.manupatra.in/newsline/articles/Upload/01C250ED-5A41-4B35-8361-3CFB38064867.pdf
20
The Civil Procedure Code, 1908, Order 39 Rule 1 and 2 read with Section 151
21
Payel Chatterjee, ‘What’s in a name’… John Doe arrives in India,
(https://www.nishithdesai.com/fileadmin/user_upload/pdfs/-What-s_in_a_name-_-
_John_Doe_arrives_in_India.pdf)
22
Taj Television & Anr. v. Rajan Mandal & Ors (2003) F.S.R. 22.
23
Department of Electronics and Information Technology v. Star India Pvt. Ltd., 2016 SCC Online Del 4160;
Star India Pvt. Ltd. & Anr. v. Haneeth Ujwal & Ors. CS(OS) 2243/2014 decided on 28 July, 2014; Balaji
Motion Pictures Ltd. v. Bharat Sanchar Nigam Ltd., 2016 S.C.C. OnLine Bom 10311
24
Pratik P. Dixit, Dynamic injunctions against Internet intermediaries: An overview of emerging trends in India
and Singapore, Journal of World Intellectual Property, Vol. 23(2), 65-74, 2019
https://doi.org/10.1111/jwip.12140
25
Disney Enterprises v. M1 Ltd.,[2018] SGHC 206.
26
UTV Software Communication Ltd. v. 1337X., 2019 SCC OnLine Del 8002.
in which internet service providers (ISPs) block access to the servers hosting live streaming
for the duration of the event. However the application of this to India shall depend on
understanding if there are similar ways in which piracy operates in India or not.27

Online Digital Piracy: Behind the scenes

The original connotation of piracy- plundering and looting of ships by seafarers- seems to
have been replaced with the new age definition where it is understood by most as illicit
copying and unauthorized downloading of digital content online. Piracy in the digital realm
can be of a wide variety of content available including movies, music, video games and e-
books. There are several different forms of piracy including counterfeit, internet piracy, end-
user piracy, client-server overuse and hard-disk loading. Of these forms, the one that is
behind piracy of films, movies and songs in the ENtertainment industry falls within the
suspicion of counterfeiting and internet piracy.

Counterfeiting can be defined as is the illegal acquisition, duplication, and distribution of

any copyrighted material, which directly imitates the copyrighted product. The nature of the
distribution of the said product may be a sale, or not. The most common way of distributing
such pirated works is through compact discs. On the other hand Internet piracy is the act of
downloading a file from the internet, or by procuring an online software through a compact
disc. Methods of conducting internet piracy are websites offering free downloads of
software, auctions selling illegally obtained software or P2P servers which transfer
programs.28

Worldwide copyright content in Films and Movies may be made available on the internet in
various ways. These include29:

1. Content available on OTT platforms on a paid subscription basis

2. Content accessed through cyberlockers
3. Content ripped off from cinemas, Blu-Ray, online services like iTunes and OTT

27
ESYA Report on Trends in Copyright Infringement and enforcement in India, (2019)
https://static1.squarespace.com/static/5bcef7b429f2cc38df3862f5/t/5dee10b8af06d83e3e65ed2b/15758829
43779/Esya+Centre+-+Copyright+Infringement+and+Enforcement.pdf
28
OECD Report on The Economic Impact of Counterfeiting and Piracy, 2007
https://www.oecd.org/sti/38707619.pdf
29
IPO Report, Cracking down on digital piracy, 2017 https://www.fact-uk.org.uk/files/2017/09/Cracking-
Down-on-Digital-Piracy-Report-Sept-2017.pdf
 platforms and made available on websites like BitTorrent, Dailymotion an
applications like Telegram
4. Content streamed or rebroadcast from local TV stations or live-TV

These host aggregator or rogue websites then tend to make money by way of
advertising, subscription, exposing users to malware and by resorting to content
ransom.

Factors contributing to Online Digital Piracy: the changing landscape of

content consumption mediums

Consumption habits have shifted significantly in the last decade or so as new innovations
have become available. Physical sales, such as cassettes and optical discs, dominated the
industry's revenues until 2005. However, in 2006, this pattern shifted for the first time in
history. India is now one of the top countries when it comes to expenditure of time on their
phones. Non-physical factors, such as smartphone downloads, and the internet, are now the
most popular. Earlier, piracy operated by way of CD or DVD but with advent of internet and
storage options, users download music or movie and store in an online storage space. This
indicates that physical piracy has shifted to cyberspace. People can now create their separate
digital library where they can access illegally downloaded material from anywhere. They
also hold the liberty to share this access with countless numbers of people and thus generate
their own revenue30.

Engaging in acts of piracy is a behavioral trait. Hostede had undertaken a research on the
relation between cultural dimensions and a consumer’s behaviour By far he concluded that
the culture in which one is brought up plays a pivotal role in determining their traits as a
community and an individual. A study that he undertook in the late 1984 proves the acts that
in India these cultural dimensions- an interplay of factors including power distance index
and individualism vis-a-vis collectivism- are determinant factors in evaluating consumer
behavioural traits. A higher power distance index and collectivism indexe lead to behaviors
that are delinquent and get influenced from the behavioural inclinations of a majority
population in the community31. Importing the same inferences to present times in order to

30
Deloitte Report on Indian Music Industry, Audio OTT economy in India – Inflection point, 2019,
https://www2.deloitte.com/content/dam/Deloitte/in/Documents/technology-media-telecommunications/Audio-
OTT-Economy-in-India_web_v3%20(1).pdf
understand reasons behind consumer inclination towards piracy, it may be said that by far
the culture dimensions are responsible for higher rates of digital piracy in India.

According to the Routine Piracy Theory under Criminology Control Analysis lack of
consequences is the biggest factor that gives an impetus to the consumer (perpetrator and
user) inclination towards online digital piracy32.

The Opportunist Consumer Behaviour theory also governs and determines the attitude of the
consumers to watch pirated content33. Attitude is an important aspect that constructs and
frames human psychology It is powerful enough to convince the consumers to indulge in
digital piracy despite the knowledge that their acts are morally socially and legally incorrect
and that they are causing huge losses to the copyright industry business.34

Some other studies attribute increase in internet piracy due to lack of clarity and a
harmonised approach in application of the limitations and exceptions to copyright protected
works over the internet35. With Covid pandemic the content consumption trends have
changed in two ways: people prefer staying home and enjoy movies and other entertainment
sources, and media distributors have got an opportunity to develop their own direct-to-consumer
streaming services. This growth is promising, but the task of convincing the majority of consumers
to pay a premium to stream a movie at home may take time. This is a major factor attributable to
soaring figures of online piracy globally during the pandemic. Among consumers who have not paid
to watch a Premium VoD movie, cost was the top factor.36

The other factors that are attributable to consumer inclination to online piracy includes easy
and cheap availability of content online, on mediums including BitTorrent and Telegram;

31
Hofstede, G, Dimensionalizing Cultures: The Hofstede Model in Context, Online Readings in Psychology
and Culture, Vol 2, Issue 1, 2011, https://doi.org/10.9707/2307-0919.1014
32
Alex Towers, 'Routine Piracy: Digital Piracy and Routine Activity Theory' Vol 1 Inns Student L Rev 19-32,
(2011) http://heinonline.org/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/kingsinslr1&section=7

J. Liang and I Phau, “Comparisons of attitude towards digital piracy between downloaders and
33

non-downloaders”, in proceedings of the Korea Scholars of Marketing Science Conference 2012,

Korean Scholars of Marketing Science, 2730-2749.
34
Jasper V. George, Consumer Behaviour vis-à-vis Digital Piracy and Copyright Infringement, Journal of
Intellectual Property Law, Issue 5, ISSN 2455-0361

Darrell Panethiere, The Persistence of Piracy: The consequences for Creativity, for Culture and For
35

Sustainable Development, REPORT BY THE GLOBAL ALLIANCE FOR CULTURAL DIVERSITY,

UNESCO, 2005 https://unesdoc.unesco.org/ark:/48223/pf0000145517
36
Andrew Wallenstein, Premium VOD films have a pricing problem, Variety, July 28, 2020
https://variety.com/vip/premium-vod-films-have-a-pricing-problem-1234717320/
price of the movie tickets and hassle to visit the theatres; unavailability of certain copyright
content on cable or due to non-subscription to OTT platforms, ignorance about content being
pirated and absence of stringent legal measures to penalise the wrongdoers.37

Online Digital Piracy and Consumer Behaviour: Empirical Study

1. Research Methodology adopted for conducting Pilot study in the city of Ahmedabad:

In order to understand the real time scenario with respect to the levels of online digital
piracy of the content generated by the film industry and consumer behaviour the research
undertook a pilot study in the city of ahmedabad.

The research methodology adopted was empirical in nature and the research methods aim to
obtain results that are both quantitative and qualitative in nature The target samples included
consumers in the age group of 15-35 years who are deemed to be the largest set of
consumers of film and movies by resorting to online media platforms. A stratified sampling
method was adopted and the target population was divided into two categories: first those
hailing from legal background and the other who belong to the non-law background. The
consumers belonging from the legal background include law students, law professors and
law practitioners. The idea behind this categorisation is to understand the different
perspectives pertaining to online digital piracy, legality and illegality of content
consumption behaviour among the target population hailing from the two very diverse socio-
cultural backgrounds. This helped in ascertaining if there is a problem with implementation
of the law and its efficacy or there is lack of awareness and ignorance among the content
consumers about the illegality of piracy behaviours.

2. Data collection and analysis:

A simple random sampling was employed to collect the data from the target population by
way of preparing a close ended questionnaire and approaching the target population to fill in
their responses.

37
Intellectual Property office Research, UK, Online Copyright Infringement Tracker, (March 2017) (ISBN:
978-1-910790-28-1)
After the data was collected it was analysed that the target population belonging to the non-
law background especially in the age group between 15-25 were more included towards
downloading and watching pirated content despite having knowledge of the fact that such
content was pirated and hence unlawful under the law Though they had little knowledge
about the legal provisions pertaining to illegality of piracy, but they were reluctant owning
to the fact that the legal consequences as far as India is concerned are going to be negligible.

The remaining lot of consumers who hail from the legal background were also included
towards watching pirated content despite having knowledge about the fact that it was rather
illegal But again the belief that the legal system was not strong enough to hold them liable or
take any action against them made them weave the threads of ignorance around them and
continue to flout the under the blanket protection of ignorance that the law has offered them.

As a result of the survey conducted for the consumers in the city of Ahmedabad the
following conclusions were drawn:

A. The majority of the viewers agreed that convenience in terms of timings and
availability of the pirated content was a driving factor behind motivating them to
watch pirated content (Fig. 1). However, they also agreed that if the original content
was made available to them at affordable prices and are readily available on
mediums of entertainment they prefer, they might rather watch original content only
(Fig. 2).

Fig. 1
 Fig 2.

B. The nature of the movie and the cast also plays a vital role, rather a decisive factor in
determining if the viewers would like to watch original content or piracted one (Fig
3.)

Fig. 3

C. The results also prove that a majority of the consumers were not concerned about the
consequences of watching a pirated movie as they believed that the law was not strict
enough to take any action against them and hence shows the callous tendencies of
consumers about the consequences. (Fig. 4 & 5). This clearly depicts that there is a
lack of awareness regarding piracy laws amongst both the groups and it is not
material for the consumers to have the knowledge about the consequences of the
illegal activities pertaining to the piracy. Also, the survey shows that a certain
consumer belongs to the legal background does not necessarily mean that there is
awareness. In addition, the current survey majorly involves young adults who
despite being constant and consistent users of the internet are ignorant about the
laws.

Fig. 4

Fig. 5
Hence these conclusions challenge the effectiveness of the current legal framework and the
implementation procedures in so far as online digital piracy of the copyright content in the
Indian Film industry is concerned. To a certain extent the data and the study corroborate the
studies undertaken in the past on relation between copyright protection measures and rates
of piracy which indicate that they are not effective enough in the present times.

The data collected however only represents a small group of population. In fact there were
instances when the respondents have chosen to remain silent and averted to give their
opinion on a few questions due to considerations of privacy and confidentiality.

Conclusions:

We need to admit that technology in the present times is moving at a much faster pace than
the law. Piracy is not a problem of the consumers, rather it is an advantage that the
consumers take off the law that is silent and insufficient. The real culprits are those who
make the end users get involved in it. The cases of piracy can only be mitigated with
implementation of deterrent laws and policy. Any form of statutory damages or criminal
penalties are only a minimum relief that may be ordered in several of the few cases that are
actually reported. Provisions under the COpyright laws and Technology laws need to be
strengthened to the extent that every form of illicit streaming and downloading can be
curbed at its very source of origin. Controlling online piracy requires a nationwide
enforcement mechanism and policy regulations at the international level.

Alternatively, if the copyright content in the film and movies is made available to the
viewers at their terms and convenience, we may see some reduction in the rates of piracy.
However again this might go against the very jurisprudential principles behind grant of
copyright monopoly to the creators of the original content in films and movies.

Despite the fact that the Film Industry may not be adversely affected in terms of major
losses to its revenue, the fact remains that the smaller production houses might have to bear
its brunt. Moreover, due to the Covid Pandemic news reports have brought in statistics that
show the increase in consumption of piracy content has spiked immensely. As per recent
reports, Telegram saw a 1092% or 11 times jump in piracy in by September 29, 2020 and
the internet and mobile saw a 348% increase overall38. As per a recent news,39 OTT
Platforms lose around 50% of their subscription revenue to piracy. Moreover, these OTT
platforms are losing around 30% revenue overall due to piracy.

Another issue that has come to bother the OTT industry is Subscription Mooching. This
concept refers to using someone else’s subscription to use a streaming service. For example,
a brother provides his sister with the login credential to his Netflix/Prime/Hotstar account.
The sister here can basically use these services without paying for them and can free ride on
the brother’s payment for subscription. Therefore, here, the streaming services are being
used by multiple people without subscription payment which makes it cost-effective and
therefore a more preferable option. This leads to reduction in piracy because of the
availability of movies on the streaming platforms, even though subscription mooching is not
authorised by the streaming service per se.40 An online investigation also found that login
credentials of OTT platforms are also being leaked and shared on social media apps such as
Telegram,41 which is an illegal method of subscription mooching.

The E-Commerce industry has now resorted to what is called Administrator Blocking. This
may be adopted in so far as tackling online piracy is concerned. However, again there are
reports which show that blocking of websites in some countries has not been welcomed by
the netizens owing to their fundamental rights violation.

Therefore, the issue of piracy exists and affects the Indian Film Industry in a negative
manner. Even though the present study is limited in its scope and population survey, yet the
facts which exist indicate the rampant piracy in the Indian film Industry. Hence, the need of
the hour is to devise policy regulations that can balance the interests of both the content
creator and content users at the same time, with the effect that the intermediaries are ruled
out and the content is made to reach the consumers directly for consumers. The revenue
distribution schemes may be revised in a manner that may also fulfill the interest of the

38
Megha Mandavia, A Napster moment for online video and music platforms in India as piracy soars in
lockdown, September 2020 https://economictimes.indiatimes.com/tech/internet/a-napster-moment-for-online-
video-and-music-platforms-in-india-as-piracy-soars-in-lockdown/articleshow/78379786.cms?from=mdr

39
Nisha Qureshi, As OTT platforms lose up to 50% subscription revenue to piracy, CII on war mode to tackle
problem, February 2021, (https://bestmediainfo.com/2021/02/as-ott-platforms-lose-up-to-50-subscription-
revenue-to-piracy-cii-on-war-mode-to-tackle-problem/ )
40
Stephen Lovely, Subscription Mooching and Streaming media, 2020
https://www.paymentsjournal.com/subscription-mooching-streaming-media/
41
Zoe Bernard, People are using the messaging app Telegram to share pirated movies and stolen Netflix and
Spotify accounts, 2018
https://www.businessinsider.in/tech/people-are-using-the-messaging-app-telegram-to-share-pirated-
movies-and-stolen-netflix-and-spotify-accounts/articleshow/63752901.cms
content creators and content distributors equally.