Common Problems in IP

Intellectual property is different from real property in a few important ways, and these differences are the reason behind some of the biggest problems in the field of intellectual property.

Common Problems in IP

Intellectual property is different from real property in a few important ways, and these differences are the reason behind some of the biggest problems in the field of intellectual property.

Real Property

Intellectual Property

Is tangible and exists in the real world

Is intangible, and may not have a physical representation

Can be enjoyed by only a limited number of people at one time

Can be enjoyed by a large number of people at one time

Possession and ownership are heavily linked

The link between possession and ownership is absent


 

Due to this nature of IP, issues such as counterfeiting, IP theft, piracy, etc. are very common, and perpetrators of these actions can do them very easily as compared to a theft involving physical property.

The Indian market is a fast-growing consumer hub, and the South Asian region as a whole is a strong global manufacturing hub. This is why there have been growing instances of companies encountering locally produced counterfeit goods, which amount to IP theft and affect the owner of the IP from reaping its benefits.

A major problem in India is the illegal distribution of media (songs, TV shows, movies, software, etc), also referred to as piracy. In terms of digital piracy, there are a few different types.


Piracy is a huge problem for the entertainment industry, and its magnitude has only grown with easier access to internet services (97% of the Indian population now has access to the internet through their mobiles). According to a Forbes article, the movie Expendables 3 was leaked three weeks before its release onto piracy websites, and it was viewed an estimated 70 million times. This is a major loss to everyone who worked on making the film as they receive no revenue from these viewings. This is a clear-cut instance of intellectual property theft, but the ease with which such property can be duplicated and distributed makes it very hard to catch the perpetrators. Academic studies estimate around 10% losses in the box office and digital sales due to piracy, and around 19% if the movie leaks before its release date.

Ironically, the rise of streaming services like Netflix, Amazon Prime Video, etc., which were seen as roadblocks to piracy, has now in turn contributed to a rise in piracy themselves. Since these services were so successful, every corporation now wants a slice of the pie and is starting its own streaming services. This is causing a splinter in the ready availability of media to consume, and many people would rather just pirate content than subscribe to multiple streaming services.

The government has taken steps to combat this specific problem, as the Copyright Act itself was insufficient in curbing the rise of IP theft. The Government passed a Policy titled the National Intellectual Property Rights Policy, 2016.

The Department of Industrial Policy and Promotion and the Ministry of Commerce and Industry set up the Cell for IPR Promotion and Management, with the objective of promoting awareness and strengthening the enforcement of IPR.

The CIPAM launched an awareness campaign in collaboration with Viacom18 about informing a change in behavior among Indian consumers relating to pirated content. Under this campaign, they created awareness videos for kids using popular characters owned by Viacom18’s flagship channel Nickelodeon (Sonic, Motu-Patlu, and Shiva), spreading the message of how piracy amounts to stealing. They also held a workshop in 2017 with the aim of educating prosecutors and police officials in understanding their role with regard to effective enforcement of IPR.

The Maharashtra Cyber Digital Crime Unit (MCDCU) is a collaboration between the cyber police and industry stakeholders like the Motion Picture Association of America, Indian Motion Pictures Producers' Association, the Producers Guild, and the Indian Music Industry (IMA). Established in August 2017, the MCDCU has been leading the way in the fight against piracy with the skillful execution of serious actions against piracy, resulting in the permanent shut down of 200 top piracy websites with 172 million hits per month. This was praised by WIPO, and MCDCU, which has been emerging as one of the strongest units across the world. The US Chamber of Commerce recently honored MCDCU with the 2019 Global Intellectual Property Champion Award.

Amendments have been proposed for the Cinematograph Act which prohibits a person from making a video recording of a film without written authorization from the producer of a film. This amendment will be a huge blow to pirates who thrive on “cam prints”, which are in high demand for people who don’t want to pay for a ticket to see the movie in theatres but also do not want to wait for a digital release.

The Indian judiciary has also played its part in combating this issue. Since it is difficult to track down the perpetrator of the IP theft and distribution, relief can be found in the form of John Doe orders (known as Ashok Kumar orders in India), which are injunctions sought against persons whose identities are not known. This enables IP owners to put a stop to unauthorized distribution of their IP even if the perpetrator is unknown. The first John Doe order was passed by the Delhi High Court in Taj Television Limited v. Rajan Mandal. Only last year, in Channel 2 Group Corporation v http://live.mycricketlive.net/ and Others, an ex-parte interim injunction was passed by the Delhi High Court to stop the unauthorized audio broadcast of the ICC Cricket World Cup. It has now become common practice to seek a John Doe order prior to the launch of any major film or sporting event.


 

BY -

SHIVALIK CHANDAN