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Online Music Piracy In India

Music industry has gone through tremendous changes from its start to the present day online streaming. At the very beginning of audio industry there are Gramophones in fashion which lasted for nearly half a century. In the 1980s the records of music came into force replacing Gramophones which is in use. Later the records developed into cassettes and the cassettes were developed into CDs during the 1990s and later in the 2000s the music industry transitioned into online streaming which bypass the CDs and digital downloads.

With the forgoing changes in the music industry there is a gradual increase of pirated works in market. The pirated works can be traced back to ages of music sheet where the music sheet is copied and distributed. The pirated works are accepted by most of the people as they find the pirated works to be of easy use than the original work. The pirated works came into market at a larger amount only after the introduction of internet in the day to day life of the people.

Before the introduction of internet there is lesser chances of copying as it is difficult not only for copying but also for distributing the pirated work among the people. With the increase in the amount of users of internet, the people find it easy for them to download a song or music of their choice for their own consumption. But the people failed to understand the consequences it creates on the producer or on the lyricist or on the singer of the song which is pirated.

Copyright is not a new concept in India as India has copyright laws from colonial period. Even after the introduction of copyright laws in India there are many cases of copyright infringement mainly due to inadequate knowledge of the people regarding what is a copyright and what amounts to copyright infringement. The people are also unaware of the consequences of the copyright infringement. The importance of copyright law and its protection is understood only in the late 20th century.

During the late 20th and early 21st century there has been many debates regarding the ethics of redistributing media content and their loses and what to be considered as piracy has been taken place. Even now many countries have tried their best to protect the interest of the copyright owners to protect them from suffering losses due to piracy and to increase the contribution of music sector to their GDP.

What is music piracy?

Music piracy is form of copyright infringement where the recording of the music is copied and distributed as a whole or a piece without the consent of the copyright owner. Music piracy can either be a civil wrong or a crime depending on the jurisdiction of the country in which the infringement has taken place. Music piracy takes place either by way of copying and distributing hardware such as CDs and DVDs or through digital form known as online music piracy. Online piracy is the practice of downloading and distributing copyrighted works digitally without permission such as music or software[1]. Music piracy is one of the major threats to the protection given for copyright owners by the government. Music piracy has evolved with time from handwritten piracy to the present day online music piracy.

Evolution of music piracy

Over the period of time not only the music industry has evolved but also the ways to pirate has also evolved. The improvement of internet in the late 20th and early 21st century contributed a major role in its evolution. The amount of pirated goods in the market increased with the increase in the amount internet users. At present even aged people and children below 5 years of age are well versed in using not only smart phones but also the internet. During the late 20th century people are of fond of mp3 player to listen music which later developed and people are able to download the song of their choice using the internet. This results in encouraging people to attract to pirated goods.

Even before the introduction of internet there is piracy of music in the market but the amount is not high as it is now.

Before the introduction of internet piracy is of three types:

  1. Songs from different legitimate CDs are combined together in a single CD. They use different cover and logo to differentiate between the original and their pirated CD. In this various songs of different right holders are compiled together.
  2. In this type of piracy the songs from the original is put into with the almost similar cover and logo thus misleading consumers to think that they have bought the original version of the song. This is known as counterfeiting[2] of goods.
  3. In this type of piracy unauthorised recording of the music or performance are made and reproduced to sell in the market which is unaware even to the performers or the recording company. This is known as bootlegging[3].

According to the study conducted by the ministry of human resource development, Government of India on copyright piracy in India it stated that in the times of CD the moment a new music album is released the markets are flooded with that album's pirated version.

From the moment the recorded music has stepped into digital era it not only brings opportunities for the development of music industry but also for the development of piracy. With the introduction of smart phones people have interested in listening to music online for which many streaming websites are available to make people listen to the song of their choice anytime anywhere. In modern times it has become much easier to share between one computer to another or from one mobile phone to another. This has increased the difficulty in restricting the online fraudsters from peer to peer file sharing.

With the speed in which the music industry evolved is more or less equal to the speed in which the music piracy has also evolved. In recent times many pirated music relies on illegal websites like y2mate, Save From, etc.

Reasons for people's involvement in music piracy
Music piracy is not a one way operation it requires people's cooperation to download the pirated songs or movies. If the people refuse to download the pirated songs in the internet then the piracy may come to end with one sided operation. The support given by the people for pirated goods may be with their knowledge or without their knowledge. Many people in the present day is still unaware of the fact that they are supporting piracy by downloading songs from illegal websites. There are some reasons listed below for the people to support piracy, they are
  1. One of the main reasons for people to do piracy is because of the amount decided by the producers or the company for their products. People need the product for free which allows the huge torrent websites to use the opportunities to pirate the same product and give them to the people for free.
  2. Another main reason for online piracy is that the people find it difficult to appreciate a movie or a music album at a desired time, when downloading the music from internet it enables people to watch and enjoy their downloaded content at their comfortable time. This makes people particularly satisfied as it will not affect their working hours or their busy schedule.
  3. It also stands for a reason that many people may be unable to afford it even if they are willing to buy them at the original price. Thus leading them to support piracy because of their incapacity to buy or because of the price is expensive enough for normal people to buy.
  4. One of the reasons for the piracy is that some songs are unavailable in their region which results in the people of that region to download pirated goods to fight against discrimination. This reason stands out only in cases of CDs and cassettes.
  5. Another reason for piracy is that delay in making the song available for people in a country. This stands if a song is released abroad it may take time to reach all places. This results in people buying pirated or counterfeited goods for their satisfaction to listen their favourite songs.
  6. Piracy also takes place due to release of limited amount of goods at the time of release of that songs or CD. At times of limited goods the people find it difficult to purchase the song so they opted for pirated or counterfeited albums for their wish to listen to the songs.
  7. People also felt it is unnecessary to buy a original song if they are only using it only once as the price for a original album maybe expensive, thus people opted for pirated goods available at free of cost.
  8. Some people are also of the thinking that the creators have enough money so it will not be problem if they didn't buy the original album at the amount fixed by the creators.
  9. Some people are of the thinking that the creators are earning enough money so they need not spend their money to buy the original album.
  10. Many people are involved in piracy due to the fact that other people are also involving in piracy. The defence they opt is that I am not the only one who is downloading songs from online.
  11. Many people are involved in piracy without having the knowledge that they are actually involving in piracy. This shows that many people are still unaware of the copyright acts and laws involved in protecting the rights of the copyright holder.
  12. Another reason for people to involve in such activities is because the process of a downloading a pirated content is much more easy, quick and free as a rational consumer only think of his/her profit.
  13. Another reason is because of the mindset of the people most of the people think that why need to spend money when you can get the same stuff for free.

Consequences of music piracy

Consequences of music piracy are high as it will lead to discouragement of the composer or the musician. Music piracy not only causes discouragement but also results in the financial loss to the producer of the album which is pirated. This entirely makes people fear in investing and creating music albums of young talents.

It is also stated that with piracy there are great losses occurred to the Indian music industry thus resulting in its inability to sign new artist as it is already in loss. This leads to music industry to be unable to recruit new talents which is not only a loss to music industry but also to the music enthusiast people who likes to listens to new and inspirational and improved music styles rather than listening to the same old styles of music.

Digitalisation has enormously altered through piracy that music is a free service which affects people's mindset to spend money on music thus incurring losses to the producers and other people involved in the industry.

Generally torrent downloading websites comes with its own risks. Online Music piracy not only affects an individual but also affects the cyber security of the country as hackers use pirated music to spread viruses thus resulting in chaos between people in the country.

Effect of music piracy on Indian music industry
Indian music industry is one of the biggest entertainment industry with turn over 2.6 billion sadly it is a target for online piracy. Digital piracy is one of the major threads for the music industry. According to the report of Indian Music Industry, the rate of music piracy in India is higher than the global average of 30%, India has a higher percentage of 68% which is more than twice of the global average[4]. A study of IPSOS in 2017 states that there are over 94 percent of web users accessed pirated music contents.

A study conducted by IFPI states that a lot of users in India use piracy to download music than any other countries which are involved in that study[5]. Music piracy not only affects the artist but also the producer in the large as he is the one who invests in producing an album. It is estimated that the loss acquired due to music piracy will be exceeding millions. Indian music industry spotted

One of the foremost factors overlooked is that music is a business industry and unauthorised distribution of music by illegal means not only affects an individual but affects the music industry as a whole[6]. This factor not only suppresses the music composers, publishers and record labels but also other low level workers like technicians lose their jobs in the industry.

The escalation of smart phones and internet with reduced data costs one of the main factors in the growth of the digital audio streaming where India stands at a highest rate of about 97 percent[7], however more than 76% of the content is often obtained through piracy[8].

Actions taken by Indian music industry to control online music piracy
The music industry believes that all parties within the digital economy have responsibility to support legitimate contents and prevent piracy from happening in the industry. The Indian music industry has taken many actions to control music piracy. Not only Indian music industry but also courts have issued orders for larger compliance from online intermediaries. Some of the measures taken by the Indian music industry are as follows
  • Providing fair price for the content owners from the broadcasters.
  • Directing people to legit free websites instead of pirated website using electronic messaging for downloading music.
  • Providing larger transparency using collective governance and society with higher use of technology.
  • Export incentives[9]
  • Moving customers to a subscription based system to make them get used to pay for contents in the future.
  • Innovation atmosphere along with Digital India to search solutions mainly for Indian market.
Copyright right law on music piracy
International laws and conventions play a major role in implementing national laws in member countries. Copyright is one of the subjects which is harmonised by international laws to implement in the member countries. Conventions like BERNE, TRIPS, and WIPO deals with copyright protection. Mainly WIPO treaties such as WCT and WPPT extended its rights to the digital age and provide legal protection under article 11 of WCT[10] and article 18 of WPPT[11] against the circumvention of technological protection measures.

India is also joined WIPO and become one of its member countries where the national law is yet to be implemented. Delhi high court in the case of UTV Software communication Ltd[12] for the very first time issued dynamic injunction[13] which is in consideration with Singapore High Court's decision in Disney v. M1 Ltd[14]

In comparison with other countries India globally ranks 2nd in the highest rate of piracy, where many countries initiated several measures to completely curb online music piracy such as preventing even VPN masked devices and imposing penalty not only on the offenders but also for the people who are involved in piracy.

Many countries have taken many measures to ensure the safety of their artists by preventing the people from supporting piracy thus maintains the music industry in a very harmonious way. It also increases the change to encounter a young talent who can be a trendsetter of the era and many young talents will be ready to try and be glorious in their life by selecting the one career which they loves. Increase in piracy will increase the risk of these talents from showcasing their talent to the world.

Effect of Indian copyright laws on online music piracy
Indian copyright act came into force in the year 1957 after replacing the previous copyright act of 1914. In the copyright act, 1957 sec 52A[15] which explains what particulars has to be included in sound recording and video films. Sec 52A(1) states that no person shall publish a sound recording in respect of any work unless the following particulars are displayed on the sound recording and on any container thereof, namely:
  1. The name and address of the person who has made the sound recording
  2. The name and address of the owner of the copyright in such work and
  3. The year of its first publication.
Indian copyright act states that in the case of infringement of copyright the offender shall be punishable with imprisonment for a term which shall not be less than six months but which may extend to three years and with fine which shall not be less than fifty thousand rupees but which may extend two lakh rupees provided under special reasons and circumstances the court on mentioning the reason in the judgment can impose a sentence of imprisonment for a term of less than six months or a fine of less than fifty thousand rupees[16].

Even after amending the copyright act several times it still lacks some features to control music piracy. Indian copyright act does not explicitly mention about online music piracy but the provision itself does not constrain itself only to hardware way of piracy it impliedly provides guidance for online piracy.

The lack of expressive provision for online music piracy is one the lacking criteria to be improved and the copyright act also lacks in providing effective guidelines to prevent online music piracy. The courts can only decide based on the provisions available which sometimes may be a defence to the offender of the copyright infringement suit. In India the Copyright Act, 1957 protects all types of songs, music and videos and other artistic works. According to a survey on 2016 states that 5.4 billion films, prime time TV, and VOD downloaded worldwide were all pirated contents.

On one hand Indian copyright law embarks in the journey to comply WCT by updating the statute through 2012 amendment where it confers its protection against TPMs but on the other hand it lacks in covering general TPMs like access control and it also fails to define neither the effective TPMs nor distinctly prohibited importing or dealing with circumvention devices[17].

Issues and challenges faced in achieving control over music piracy:
  • One of the issues in achieving control over online music piracy is the lack of jurisdiction as online is an intangible space where many countries may involve in a piracy. Thus the confusion arises on which jurisdiction it has to be decided. It can either be th place of its origin or the place in which it is lastly displayed, etc. The countries may also have contracting laws which will result in a problem between countries.
  • The online domain makes it difficult to decide whether the person have got consent from the owner as it is easy to share between two persons which results in this difficulty[18].
  • The right of reproduction is a huge issue on the internet distribution of any material over the internet requires the material to be reproduced. The data in the internet is transferred through a technique where the entire information is breakdown to smaller parts and is joined together at the end to reproduce the product. This is called pocket switching[19].
  • Another major issue is determining on whom the liability lies because in internet it is difficult to determine on whom the liability is to be vested. Quite often in the cases of online copyright infringement several people will be involved in the piracy as it goes through several computers before being transmitted into the public.
  • Another issue is the lack of harmony between the state IPR laws of different countries. The varying domestic laws regarding the digital piracy makes it difficult to implement effective measures to control digital piracy.

The only way to overcome the above issues is by providing effective results for the existing problems in implementing control over online piracy. By means of Harmonising state laws, determining the liability in online piracy, providing adequate jurisdiction for the courts to exercise its power in preventing online music piracy and most importantly by making laws in relevance with the international treaties online music piracy can be curbed to some extent.

Steps to control music piracy in India
  • One of the most effective ways to prevent piracy is by removing the incentive for the customers to look for pirated content. This can be achieved by giving good product and good user experience at a fair price.
  • Another way is by providing education to the customer that piracy is illegal and a crime that should not be committed. Many people are still unaware of the fact that they are involved in something illegal, so educating them in this aspect will be an effective measure in abolishing music piracy.
  • Piracy can also be stopped by making it difficult for the pirated website to get selected by the people. The government can take measures to prevent them from appearing on the forefront and make the legal websites appear at the forefront.
  • By strong and proper enforcement of laws, the government can prevent the offenders from committing infringement. For online infringement, special and proper laws have to be made to prevent it from happening.
  • By achieving cooperation between companies, the threat of music piracy can also be addressed. Rather than being in competition, companies can use their time to cooperate in preventing their music from being pirated by keeping a close eye on the songs.

The Indian music business has been pro-active in confronting the menace of piracy. The Indian music industry has convicted over 4000 copyright infringement cases under copyright act 1957 with fines and punishments. The fines may range up to three lakhs rupees and punishment may include imprisonment for three years. Even though the government and courts have made many rules and regulations in accordance to prevent piracy such as blocking of pirated website, etc it cannot block people accessing the content using VPN masking devices[20].

India not only requires to enhance its enforcement of adequate IPR across India for national enforcement agency and Administrative Site blocking and also a legal framework for the reformation in the TPMs is essential.

Because of the ambiguity of IPR violation sec 69A of IT Act read with IT rules is also futile even though the insertion will encourage the court in restraining the infringement effectively. This ambiguity has to dealt with properly to ensure the protection of the copyright owners.

Even if all the ambiguity and other flaws are dealt with it does not ensure the complete abolition of music piracy. The countries can only try to curb the online music piracy as much as it can to ensure proper safety of the copyright owners. This also ensures the producers to invest in young talents without the fear of bearing losses due to online piracy, this not only increases the quality of music in India but also ensures the overall growth of the country not only in artistic value but also in the economic aspect. If the people start to take their own responsibilities in a serious manner which will undoubtedly make the country's improvement in a very positive way.

  • Copyright (Amendment) Act, 2012
  • Information Technology Act, 2000
  • Information Technology (Intermediaries Guidelines) rules, 2011
  • Information Technology rules, 2009
  • - vol.7, issue 2 - the evolution of music piracy and technology by Surabhi Gupta
  • - vol.9 issue 6, June 2019 - digital music piracy in India: issues and challenges by Ms. Urvi Shah
  • Definition of internet piracy - PC Magazine encyclopaedia
  • Counterfeiting - resemble closely
  • Bootlegging - illegal manufacture, distribution or sale of goods
  • IFPI, 'Digital Music Study 2019'
  • IFPI 2018 music consumer insight report
  • Priya, effects of piracy on music industry (wikye, 9 April 2019)
  • IFPI, Music Listening 2019
  • Indian Music Industry, economic impact of the recorded music industry in India 2019
  • Incentive - something that encourages people to do something
  • Article 11 of WCT, 1996 states that proper protection has to be given to prohibit circumvention of technological measures
  • Article 18 of WPPT, 1996 states that legal protection has to be given to the performers and producers of phonograms against the circumvention of technological measures
  • 2019 SCC Online Del 8002
  • Dynamic injunction - it refers when court have granted to block rogue websites which develops again after initial injunction as the "mirror websites" with the minor alterations in URL and infringes same content.
  • (2018) 5 SLR 1318
  • Inserted by Act 65 of 1984
  • Sec 63 of Copyright Act, 1957
  • Copyright (Amendment) Act, 2012, section 65A
  • Subhasis Sah and Sourav Keshri (2008) "challenges to Copyright Work in Cyber Space", journal of intellectual property rights Vol.3, pg 35-42
  • Pocket switching - reproduction at every stage of transmission of data through a computer
  • Anushree Rauta, interview with Blaise Fernandes, president and CEO of Indian music industry, (December 11 2019)
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