Role of Executive Machinery in combating Literary a

Abstract: Economy of the twenty first century is based on knowledge. Studies around the globe have concluded that the emerging copyright laws relating to industries associated with informative and entertainment value is having tremendous impact on the growth and national economies. It is being realised that the future prosperity of nations will depend more upon their intellectual property than their natural resources and physical assets. Understanding of the copyright law, therefore assumes significance.

Copyright law tries to provide a balance between the interests of creators of work and those who want to have an access to the said works. The players in the copyright are the creators, disseminators of work and the public who make use of the work for their benefit-personal or private. The specific works covered by the law of copyright are original literary, dramatic, musical and artistic works and derivatives like film and sound recordings.

This article is designed to be a complete treatise that focuses on the role of executive machinery combating musical, literary and software piracy. Also, it discusses the problems associated with the enforcement of Copyright Act 1957, U.S role in encouraging India for copyright protection. It also examines the steps to overcome, elaborately discussed factors like role of police,public awareness, role of judiciary, role of entertainment industry as an enforcer and  also the necessary steps which are to be taken in order to reduce the extent of piracy.

Let, me first discuss a brief introduction about musical and literary works and their piracy.

Music takes a leading role in the core activity of entertainment. . India is counted among the top seven publishing nations of the world with a sizeable portion of her publications being in English.  It constitutes the largest market for audio cassettes and films produced in the country exceed 600 per annum.British Music industry generates £3.2 billion in value to the UK economy and earns 1.3 billion through exports. Alternatively, music enters our lives in a more indirect way : when we enter a shop, a bar, a café, a hotel or even a lift ; when one is put on hold on the telephone or hear the call of a mobile phone; or one enters someone else’s home or even the work place. All the above are recognized uses of music, some paid for, others not. Some are legitimate and others may not be in the context of copyright. The potential for music rights to be used is far-reaching, and how music is used and how its use is monitored and paid for is at the heart of copyright in the music industry.

In terms of production, music is made in multifarious ways, in locations that span the private domain of people’s home, to the recording studio’s that support the global corporate music industry. Music may be written or in lyrics. It may be performed live or it may be recorded. It may also be sorted digitally in a computer, in one or many places simultaneously and in various formats. All forms of music may be subject to copyright on creation, but it is not always so clear who is the originator or ‘author’ of the work being produced, especially if, when there is more than one contributor to the work. Similarly in some instances, it is not fair if a piece of music has been produced at all – that is, can all sounds be considered to be music?[1]

Stealing music is the same as stealing anything else. It is illegal and the consequences are real, for artists, songwriters, you, and for the future of music. You wouldn’t sit by and let somebody steal products from you. And it’s not free at all – it is the musicians, artists, sound technicians, legitimate less music being sold. People’s livelihoods are affected. Further, as a result of piracy there is less money to be invested in new talent, which ultimately means less music available for your functions. Music retailers and all the other people involved in the music industry who are paying price with less music being sold. People’s livelihoods are affected. Further, as a result of piracy there is less money to be invested in new talent, which ultimately means less music available for your functions.

Literary work covers the work which is expressed in print or writing, irrespective of the question whether the quality or style is high. Literary work is not defined in the Copyright Act; however the phrase may include maps, charts, plans, tables and compilations. Literary work consists of matter or material or subject, which is expressed in a language and is written down. Though it may not be a comprehensive definition, literary work means any work, other than a dramatic or musical work which is written, spoken or sung and accordingly includes a table or compilation or a computer programme and preparatory design material for a computer program. Copyright subsists in original literary works and relates to the expression of thought, but the expression need not be original or novel.

Its essentials may broadly be enumerated as follows:-

- The work must not be copied from another work but must originate from the author. Two authors independently producing an identical work will be entitled for copyright in their respective works.

- The emphasis is more on the labour, skill judgment and capital expended in producing the work. It includes tables, compilations and computer programs.

- The term of protection for a copyright literary work is the author’s life plus sixty years, which is ten years less than the European Union which provides for life plus seventy years.

- In the rapidly changing technological environment, copyright protection is being extended too many areas of creative work particularly in computer industry, relating to computer software and databases. This has found recognition in the 1994 amendment act. Further certain special rights have been introduced for the first time for the benefit of the performers like musicians, actors, acrobats, jugglers, snake charmers and so on.

The present article deals mainly with the problems associated with the enforcement of Copyright Act, 1957 (Amended in 1994). It also examines how these problems can be tackled. The concerned article covers the public awareness of copyright and the necessary steps to be taken in order to reduce the extent of copyright violation (piracy), if not eliminate it. Even its rich cultural heritage, India had always remained a powerful force in the field of copyright. The activities that come under the subject of copyright are largely prevalent in the country and they are growing. India is counted among the top seven publishing nations of the world with a sizeable portion of her publications being in English.  It constitutes the largest market for audio cassettes and films produced in the country exceed 600 per annum. India has a huge potential in the field of computer software. The software industry has been growing at an amazing rate of above 50% for consecutive years since the beginning of the current decade.

The protection and enforcement of Intellectual Property Rights has been a matter of great concern in India. The general public is not even aware of what intellectual property actually means. And the very few laymen, who have heard something about it, mostly cannot differentiate between a trademark, copyright and a patent. The remaining who actually know about it, do not fear from infringing these rights as the enforcement mechanisms are inefficient and ineffective.

India is a powerhouse in the field of copyright because of its rich heritage culture, be it literary works such as books; cinematograph films or computer software.India has a large film industry and it is the largest producer of films in the world which have been liked by both national and international audience. Shakti Mallik, president of the Federation of Indian Publishers, said the Indian publishing industry was now 'worth Rs.80 billion and it is growing by over 15 percent every year'. Indian software industry was calculated to be US $5.7 billion in the year 1999/2000 which is the best performing industry against the global competition. Copyright in India is not a new concept and it has been there since 1847. However, because of the technological developments and the increasing globalization of the economy, a lot of changes have been brought in the copyright law structure of the country. This is mainly because of the increasing protection provided to IP rights all over the world. The United States of America encourages strong IP rights and stronger enforcement of these rights. Also the WTO Agreement on Trade Related Aspects of Intellectual Property lays down the minimum standards of IP protection that every member country has to incorporate in its national laws. India is a WTO member country and it agreed to comply with the TRIPS agreement in 1994 which meant that it would have to provide minimum standards of IP protection in the country. As a result, the Copyright Act was amended in 1994 and provisions for more strictly enforcing copyrights were introduced. The Indian Copyright Act already had strong provisions for protecting copyright and it became even stronger after the amendment in 1994. However, the piracy issue in India is a big problem. India’s copyright laws have failed to meet the international standards. The new enforcement policies have also failed to protect copyright in the country. The United States, through its Special 301 provision, wants to put pressure on India to provide better and stronger protection and enforcement of U.S copyrights in India. The protection of copyright can contribute to the national economy significantly and it can be a boon for India.

- This article also discusses the role played by the United States in increasing copyright protection and its enforcement in India and why does it affect the U.S? 

Role of the United States in encouraging Copyright

Enforcement in India

Copyright is not limited to national boundaries; rather it is an international right. Due to this, Copyright is not limited to national boundaries; rather it is an international right. Due to the increasing globalization and rapid proliferation of technology, there had been increased need to protect copyright internationally. For example, now a copyright is granted automatically in all countries who are WTO members or members of the Berne Convention. As the United States recognizes the critical importance of intellectual property and innovation, it uses a wide range of the increasing globalization and rapid proliferation of technology, there had been increased need to protect copyright internationally. For example, now a copyright is granted automatically in all countries who are WTO members or members of the Berne Convention. As the United States recognizes the critical importance of intellectual property and innovation, it uses a wide range of tools to protect intellectual property rights worldwide. This is because the laws and practices of some of the foreign countries deny adequate and effective protection of intellectual property rights which can be harmful for US copyright industry.

For instance, the U.S. copyright industry estimates loss in sales due to piracy in India of U.S. movies, sound recordings, musical compositions, software, and books amounted to almost $500 million in 2004.[2]Therefore, to control such losses in India and other countries, the United States has taken several actions in the international arena in order to promote the protection and enforcement of intellectual property rights and prevent piracy.

Copyright enforcement and its drawbacks since 1994

Despite its numerous amendments to the copyright law, India had failed to protect intellectual property rights.[3] It was named a ‘Priority Foreign Country’ in 1991.[4] A section 301 investigation was launched against India in 1992 as its practices in Patent, Trademark and Copyright laws were declared ‘unfair’ by the USTR.[5] The USTR noted that the IP practices of The USTR noted that the IP practices of India had been egregious, resulting in an adverse impact on U.S. industry.48 It was the result of this pressure created by the USTR that the Indian government adopted the Copyright Act of1994, which came into effect from May 10, 1995. As a result of the amendments made to the Indian Copyright Act in 1994, enforcement provisions were considerably changed. A major development in the area of copyright was the amendment to the Copyright Act of 1957 in 1999, to make it fully compatible with the provisions of the TRIPS Agreement.[6] The Copyright Act was one of the most modern copyright laws in any country.[7] The Act provided better copyright protection to domestic as well as foreign artists. The Copyright Act now has now made copyright infringement a cognizable non bailable offence.[8]An infringer of copyright under the Act is punishable with a minimum of 6 months of imprisonment which may extend to three years and a fine between Rs. 50,000 ($1000) to Rs. 2,00,000 ($4000).[9]To further strengthen enforcement in the country, Indian government has set up a Copyright Enforcement Advisory Council to advise the government on measures for improving copyright enforcement.[10]

Let us examine the effectiveness of role of police and lacunae’s therein as a part of executive machinery in combating infringement as well as enforcing copyright protection.

Role of Police

The section 64 of the Indian Copyright Act confers the power on the police to seize infringed copies of copyrighted works. The section authorises any Police officer, not below the rank of a sub-inspector, to seize without warrant, all copies of the work wherever found if he is satisfied that an offence under section 63 in respect of the infringement of copyright in any work has been, is being, or is likely to be committed and all copies and plates so seized shall, as soon as practicable, be produced before a magistrate. As per the sub section (1) of the section 64, the power of seizing infringing copies has been conferred on sub inspector and above. However, many police officers may refrain from implementing their powers because of the clause „if he is satisfied‟. Based on discussions with some of the owners of copyrighted works and some police personnel under Crime Branch, it was found that there have been allegations and counter allegations regarding the role of police personnel’s. Police, in general, admits that infringement of copyright work has not been extended as high a priority as in the case of murders law and order problems, etc. They blame the right holders for not coming forward to either lodge a complaint formally or failing to produce necessary proof/document before the court. The right holders on the other hand, blame the police for not taking effective steps and for their apathetic attitude towards copyright violators.

The police personnels in general also agreed that they lacked the orientation towards copyright laws, such as knowledge of distinguishing infringed copies (i.e. duplicate copies) from the originals, machines used for making duplicate copies etc and more particularly penalties for violations etc. The problem is more acute in case of computer softwares. As per the information received from the thirteen States/Union Territories, it is found that none of the states have arranged any training for their police personnel associated with the implementation of Copyright Act. When asked about the problems faced in arranging training

Programmes, the responses were in expected lines, that there is lack of adequate funds, shortage of good trainers in the copyright area etc. They also sometime find it difficult to spare police personnel for training since they are mostly busy not only in copyright related crimes but also in other engagements. Police personnel involved in combating piracy have to be trained in Copyright Act, kinds of violations under different segments of copyright industry. They have also to be trained to differentiate the original from the pirated products. The respective associations should take a lead in this area since ultimately the losses due to piracy affect their members the most. There can also be some sort of revenue sharing whenever raids are conducted between the police personnel and the right holder/copyright societies. Towards the effective implementation of Copyright Act, the right holders have to fully co-operate with the police departments not only in conducting raids but also appearing before the court as and when required with original documents and necessary materials.

Even though the Copyright Act provides strong enough provisions to convict a person or a group for copyright infringement, the procedural structure of the Indian system has always been a hurdle to deter piracy. India still remains on the Priority Watch List according to the IIPA Special 301 Report, 2009, for the following reasons:

Policing and less number of suo moto raids:

In order to provide better copyright enforcement in India, the police have to play an extremely important role. However, a majority of the Police personnel in the Crime Branch or copyright cells in most of the states are not familiar with the provisions of the copyright act.[11] Police gives priority to other civil and criminal cases than to copyright infringement cases as they are unable to realize the seriousness of such an issue because of lack of training in this particular field.[12]Moreover, when the raids occur, the information about the raid is leaked themselves by some of the police officers to the pirates.[13]

The IIPA reported a disappointing drop in the suo moto raids in 2007. The Police act only on a complaint by the witness in case a suo moto action,[14]for e.g. an ex-officio action, is not taken. In such cases, the witness has to be available for all court hearings. This process is very time consuming as the court can take several years to decide a case. As a result the witness is not available for such a long time and the case gets dismissed.[15]

According to Manas Saikia of the Cambridge University Press and Foundation Books, “it is extremely difficult to get the police to make raids and arrests and seizures in the case of actual pirates. Most such piracy in Delhi for example occurs in the old city...Banaras and Patna are the other big piracy centres’. The actual pirates are involved with the underworld. Most publishers would find it difficult to tangle with them."[16] Therefore the need for suo motoaction arises so the Police can take action on its own and be the witness.

UPDATE ON ENFORCEMENT IN INDIA

Criminal Enforcement: The principle challenge posed by the Indian enforcement system is to make the criminal system work more effectively despite inefficient court procedures, lack of training, very long delays, occasional corruption, and relatively few convictions (and even those are followed by low fines and virtually no significant jail terms). In a welcome development, criminal convictions did increase in 2009 in both the music and video area under the criminal copyright piracy provision of the Copyright Act (Section 63) and under Section 52A, which criminalizes failure to use the required certificate on videos or sound recordings. Criminal convictions under Section 63 are still relatively rare, though the Indian music industry (IMI) reported that they received an unprecedented 60 convictions under Section 63 in 2008 and this section carries far more severe penalties than Section 52A. Fines under this latter section rarely exceed $1000 but the offense is far easier to prove.

A key element in creating an effective criminal system is increasing the number of suo moto raids by the police. While such raids increased in 2009 for the music industry in a number of states, the software, motion picture and publishing industry have not experienced any improvement. When the police act only on complaint, it becomes necessary for a witness for the complainant to be available for all court hearings. Typically, this process can take up to several years after the raid has occurred and is sometimes an airplane trip’s distance away. This ends up making criminal enforcement substantially more expensive and often results in the dismissal of the case if the complainant’s witness cannot be, or is no longer, available. Suo moto raids, where the police involved become the witnesses; result in expedited trials and more actual convictions. Raid and convictions for the Indian music industry were not available in time to include in this submission report, but did report that the situation improved significantly in 2009 with respect to enforcement against high levels of mobile chip piracy. This proved difficult to achieve, however, given the police’s lack of awareness and training, and piracy rates in this area continue to grow.

MPA counted 393 raids taken nationwide in 2009. While convictions have shown a welcome uptick in 2009, the statistics continue to illustrate the problems with the Indian judicial system in the criminal area. For example, MPA has roughly 1,900 pending criminal cases.

BSA reports again that for 2009 the criminal system continued not to work against software piracy, and initiated no criminal cases in 2009. There has never been a criminal conviction for software piracy in India, though BSA is now exploring the possibility of using the plea bargaining provisions in the Criminal Procedure Code (discussed below). In 2008, BSA conducted a criminal enforcement action in Bangalore on September 10, 2008 against an individual who was in the business of burning/replicating software of BSA member companies and then selling them at cheap prices to consumers. The modus operandi of this individual was to circulate pamphlets/leaflets in newspapers listing out various software programs and the prices at which they could be purchased from him. He had also provided his mobile number on the pamphlet so that potential consumers could contact him. The impunity with which he was operating is indicated by the fact that he clearly stated on the pamphlet that he was in the business of providing pirated software to those who could not afford genuine software. BSA contacted the Central Crime Branch at Bangalore and informed them of this illegal activity. The Police then agreed to conduct a criminal action against the target based on BSA’s complaint.

The publishing industry again reports good cooperation from authorities in smaller cities such as Jabalpur, Gwalior and others, with less cooperation in the major metropolitan areas (Delhi, Mumbai, Kolkata, etc.). Long delays between complaints and action result too often in information leaks or distribution of pirate stock prior to enforcement action. In the last quarter of 2009, however, a major operation was conducted in Delhi against a printer, binder and distributor producing pirated academic and scientific, technical and medical (STM) books. The pirate printer/distributor was caught with 80,000 prints and 124 negatives of a publisher’s title on hand. Two warehouses belonging to the distributor were also subject to search, and at the first location, upwards of 25,000 academic and STM titles for several publishers (both international and domestic) were seized. A subsequent search of the second warehouse was also conducted following the arrest of one of the distributors. In total, 135,000 pirated STM books were seized during the raid operation. Of those 135,000 pirate copies, only 35,000 were books whose copyright is owned by international publishers. Clearly, this large scale piracy operation was harming not just international publishers but also Indian publishers This was the largest ever seizure of pirated academic and STM books in the country. The publishing industry hopes that this matter will be pursued vigorously by the Indian authorities so as to send a strong message against those engaged in book piracy that it will no longer be tolerated. It is of note that there have, to date, been no convictions for book piracy in India, and this case would certainly be an opportunity to demonstrate that the government will no longer tolerate the ruinous activities of large scale piracy operations.10 Pretrial detention of up to a one year maximum under the Goondas Act in Tamil Nadu continues to result in some deterrence. This remedy should be expanded to other states. In order to deal with the continued lack of training and political will of local police, India created a total of 19 IP cells in 2002. However, many of these have stopped functioning as separate units. They continue to exist in certain cities — IMI reports that the cells that function most effectively are in Delhi, Tamil Nadu and Kerala. BSA reports that they work with the cells in Delhi and Mumbai, as well as with those in Bangalore, Chennai and Hyderabad.[17] However, even these are under-resourced and incapable of raiding larger production and distribution targets. Training and funds are desperately needed. In addition, the lack of trained prosecutors severely hinders effective enforcement. States should set up more trained IP cells and specialized prosecutorial units, trained and unhindered by existing backlogs, to prosecute piracy crimes. Of late, the Punjab state government proactively took initiatives to tackle video & audio piracy. A state-level anti piracy cell has now been constituted to check and take action against audio and video piracy. BSA has made a representation to the state government to include software piracy under their campaign.[18]

Public Awareness on Copyright

In the previous section of this chapter the role of enforcement authority more so for police has been highlighted and the problems associated with it. Also, if we look at the other side of the story, we can find that the main responsibility of the piracy lies with the endusers i.e. ultimate customers who use/buy these products. It is the apathy of customers and their demand for cheaper products that give rise to copyright violations by the unauthorised persons/agencies. The other side is also true equally that if pirated products were not available, customers would not be able to procure them. The situation is like the popular chicken and egg story.

The effective steps which are required in order to educate the people i.e. end users of these products, it is essential to know whether people are aware of the existence of copyright and also the extent of penalties for their violations may call for under the Copyright Act. These questions were looked into from two angles. On the one hand while conducting the NCP survey, we approached the right holders of copyright products and sellers/distributors of copyright products and on the other hand we also approached the end users themselves. The sample may not be fully representative to reveal all relevant aspects in the sense that the respondents are located in the large urban areas and were also confined to those who have acquired some education. In all the cases the end users were matriculates and above, a majority of them being graduates and above. Nevertheless, it would give the required leads in this regard. No doubt, Copyright owners and sellers of Copyright products placed the main responsibility on the end users with regard to problem of enforcement. it has been found that public is generally aware of the fact that copyright violation is not a desired thing. They also admit that anything created/made/produced by somebody is not to be duplicated copied and commercially exploited by others. Another interesting feature was revealed while carrying out the survey for software end users belonging mostly to the organisations from both service as well as manufacturing sectors. A question was addressed to the computer personnel whether by using one legal software in more than one independent computer machine, would amount to copyright violation or not. We found that a majority (about 59 per cent) out of 87 respondents The term end user may require a redefinition under the Act. The present machine specific definition may be too narrow to serve any useful purpose and could therefore encourage wilful violations.

At the national level, two of the principal challenges in combating counterfeiting and piracy are to (i) find ways to enhance enforcement and (ii) raise awareness of counterfeiting and piracy issues. More may need to be done to undermine counterfeiting and piracy at the point where infringement originates; once goods enter domestic or international trade, the task becomes far more difficult. Raising awareness is an important aspect of combating counterfeiting and piracy and needs to be pursued vigorously. Consumers should be adequately informed about the growing threat that substandard counterfeit and pirated products pose to their health and safety, and consumers and counterfeiters and pirates should be aware about the legal consequences of infringing IPRs or knowingly purchasing infringing products. Raising awareness could also have beneficial effects on consumer attitudes and behaviour towards counterfeiting and piracy. One of the important factors of inefficient copyright enforcement in India is that the people are not aware of this problem. A person who watches a latest Bollywood movie on the cable, or buys a best seller from the street, or downloads latest music from the computer and makes his own MP3 to play it in his restaurant does not even have a hint that he infringing someone’s rights. It is important that the public must have knowledge about the role of intellectual property in the growth of the country and the seriousness of the offence if they infringe such rights.

Industry Enforcers

Bollywood Film and Music companies, such as T-Series and Yashraj Films, have established anti-piracy arms to combat piracy in specific markets. T-Series has been in the industry for over 15 years, as a brand of Gulshan Kumar founded Super Cassettes Industries Limited, and has often been at the forefront for conducting raids along with the police officials to check piracy of its copyrighted content. In its latest announcement last year, T-Series launched an anti-piracy campaign against those stealing digital content. The announcement came after they filed a complaint on June 1 with a police station in Mangalore against Classic Video shop for infringement of its copyright works like Billu, Ghajini, Aap Ka Suroor, Apne,Fashion,Karz that had been illegally downloaded and copied into multiple discs, card readers and pen-drives.[19]

Yashraj Films, a leading film studio, has long been a part of enforcement activities against piracy, both in the Indian market and internationally. Most recently, it was a key member in the formation of the United Producers and Distributors Forum, which also included chairman Mahesh Bhatt, Ramesh sippy, Ronnie Screwalla of UTV. Shah Rukh Khan, Aamir Khan and Eros International. This organization is now trying to enforce anti-piracy laws by conducting raids across the country with the help of another ex-cop from Mumbai, A.A. Khan. Yashraj Films has also established anti-piracy offices in the United Kingdom and the United States to curb piracy in those markets, as overseas returns of its films, watched by the desi diaspora is one of the largest revenue earning sources. The website of Yashraj Films lists new reports from across U.S and Europe of instances of crackdown on pirates.

In the context of intellectual property in the creative industries, these anti-piracy agents have successfully created the halo of illegality around the subject of piracy. The discourse on informal networks and circuits of distribution of cultural goods remains hijacked with efforts to contain piracy as the only rhetoric which safeguards the business of big media companies and multinational corporations. 

Efforts of NASSCOM and BSA are also being appreciated. These two are working in tandem to stop the menace of piracy from the society. They have established a special Anti-Piracy (Hotline) in Delhi. The alliance, with the help of the Police and Judiciary appointed Commissioners are carrying out the operations against anti-piracy. They are facilitating police raids against this menace, providing information of infringement.

Steps taken by Indian Government for combating Musical Piracy [20]

The government is set to bring about changes in the Import Order to restrict the import of compact discs and digital video discs to protect the country’s 150 crores music industry against rampant piracy. A ministerial committee headed by Commerce Secretary Ghulam Hussain held a meeting last month, where the decision was taken to make amendments to the related section of Import Order 2009-2012. The law-enforcement agencies, along with the anti-piracy task force comprising home ministry and cultural ministry officials, carry out regular drives to uproot malpractices in the sector, but piracy goes on unabated.

The law-enforcement agencies seized 61,187 CDs in October alone. "Eighty percent of local trade of the music industry is executed through unauthorised copying. Piracy is destroying the music industry," said Kumar Biswajit, president of Music Industry Owners Association of Bangladesh.

Unscrupulous profiteers are usurping the intellectual property of artists, musicians and composers through unfair practices, Biswajit said. This is also the reason why the industry has been failing to raise its production standards, he added. groups/individuals are continuing their reckless operations," said Major Masum Ahmed, convener of the anti-piracy taskforce.

Police urged the industry people to prepare a list of suspected music pirates and hand the list to the police, so that they can take necessary action against them.

Salim Khan, managing director of Sangeeta Ltd, a top music production house, said around 15 lakh music CDs are produced and distributed by about 250 production houses a year.

Although the production houses generated jobs for about 2 lakh people and invested about Tk 400 crores, many shops are finding it hard to survive due to large-scale unauthorised copying, Khan added.

Businessmen import discs, mainly from China, Thailand and Singapore, and copy popular music on them.

The government is also contemplating revisions to the copyright act. The commerce ministry plans to install the latest technology to stop people from freely downloading copyrighted audio and video performances to personal computers and cell phones via internet.

The ministry also plans to put in place a dedicated anti-piracy wing at the home ministry to bolster anti-piracy crackdowns. Magistrates will be deployed to lead mobile courts to seize pirated CDs and DVDs, and punish the culprits. The ministry is weighing options to impose some restrictions through issuance of additional licences in the retail trade of CDs and DVDs.

Indian Judiciary as a part of the enforcement machinery

Smt. D. Purandeswari, Minister of State for Human Resource Development has said that, “The Indian Judiciary has the onerous responsibility of interpreting the balance between private interests and public welfare”.[21] The Indian Judicial System comprises of around 15,000 courts across the country.[22] The total pendency of cases in these courts is 3, 00, and 00,000.[23] The judicial system is very slow and burdensome which makes copyright enforcement an even more difficult task. It takes a long time for the courts to bring cases to final judgment which affects not only the domestic copyright industry but also gives a reason to the international industry in not investing in India.[24]This also contravenes TRIPS articles 41, 41(2), 42 and 61.[25] The right holders are often reluctant to bring complaints about copyright infringement as it is very expensive and time consuming, especially in the lower criminal courts.[26] Immediate enforcement cannot be sought unless there is speedier justice provided to the right holders. The court procedures are also very slow and cumbersome.[27] Penalties are inadequate; there are delays in case preparation and prosecution. The people investigating the case are often transferred to remote locations while the case is still pending.[28]

Therefore all the evidence collected by them is either lost or tampered.[29]The most important function of the judicial system is to ensure dispensation of justice at the earliest possible opportunity. Intellectual Property enforcement is not a matter which can be delayed for a long time as the whole purpose of it is to provide immediate protection to the right holders so that they can enjoy the exclusive rights granted to them by the statute.

 Enforcement of Copyright Law

Although Indian copyright laws have kept up with the times and the higher level of the Judiciary has treated copyright enforcement issues effective, at the lower judiciary level, copyrights remain at low priority. The Government has initiated some measures to strengthen the enforcement of copyright law, but a whole lot more needs to be done on this front.

Enforcement of the Copyright Law beyond raids is impeded by the overburdened court system, which can take up to seven years to complete a criminal case, making the strong mandatory sentencing provisions of the Law illusory. The delay in bringing cases forward remained unchanged in 1997. There were, however, two notable exceptions. In May 1997, a Delhi Magistrate sentenced a cable operator to six months imprisonment, to be served in hard labour, and ordered a fine of Rupees 5,000 ($140 US). This marked the first conviction of a cable operator in India. It was reported that after this case there was a substantial reduction in the cable transmission of pirated material by cable operators in Delhi. It can therefore be said that the Law's deterrent effect will work, if used properly. In January 1997, a magistrate in the Bangalore Court sentenced a video pirate to three years hard labour in a 1993 case. Although the case took four years to complete, this sentence should also act as a deterrent. Both of these cases followed the standard of the new Copyright Law in that minimum sentences of six months to three years in prison were imposed. The maximum fine of Rupees 5,000 (US$140) was not imposed because these two cases pre-dated the Copyright Law amendments, and the provisions were not made retroactive. However, it was a positive sign that the judges, though not bound by the provisions of the new Copyright Law in these cases, did impose prison sentences.

In addition to trial delays, there are procedural and evidentiary hurdles deterring effective enforcement. Copyright ownership and the defendant's "actual knowledge" of infringement still must be proved. Perhaps the laws need to be amended to include statutory presumptions of copyright subsistence and ownership and a requirement that the defendant merely "knew or reasonably should have known" of the infringement which is the normal standard of proof. Regarding the presumption of copyright ownership, as mentioned earlier, the Supreme Court of India created a presumption of copyright infringement if video cassettes do not carry censor certificates declaring copyright ownership and identifying the producer.

Thus, India has seen a tremendous change in its copyright regime in the last 25 years. There has certainly been improvement in the copyright law and, to some extent, its enforcement. However, this is not enough. As the technologies will change, the need for better enforcement provisions will arise. It is very important, especially, for a country like India that is so rich in its cultural heritage and artistic expression, to realize the value of copyright especially of Intellectual property laws.

 [1]Haynes, R., ‘Media rights and intellectual property’, (Edinburgh University Press Ltd, Edinburgh , 2005