Ameet Datta, Senior Partner, Saikrishna and Associates

India is one of the largest and fastest-growing music markets in the world. Currently ranked at 15th, it is expected to break into the top ten in the foreseeable future. Despite being a huge market, its overall turnover is measly compared to the other major music markets. One of the main reasons behind this is the lack of a strong legal framework to curb copyright infringement thereby increasing the value gap.

The need for stringent rules and regulations to avoid copyright infringement is non-negotiable. India is among the top countries affected by piracy and curbing it should be the Indian government and music industry’s top priority.

One of India’s leading IP litigators Ameet Datta, Senior Partner, Saikrishna, and Associates. Datta is renowned for his expertise in matters related to Intellectual Property in the field of Technology, Entertainment and Media.

With over 20 years of experience, Datta specializes in a broad set of issues related to IP including copyright, trademark and design, Trade and Regulatory Compliance, eWaste Regulation, Legal Metrology Regulation besides advising on privacy and personal data protection and policy development on these issues in India.

In 2010 Datta was invited to appear before the Parliamentary Standing Committee as an expert witness during the reviewing of wide-ranging amendments to the Indian Copyright Law.

For our Interview of the Week, we spoke to Ameet Datta about copyright infringement in India, the laws to curb it, his thoughts on the Indian Copyright Act, and the amendments he would like to witness in them.

Copyright is a statutory right which means they are formed by passing of specific laws by the parliament. The law in question, in India, is the Copyright Act 1957 which determines when an infringement will occur. Section 51 of the law states every copyright owner has exclusive rights, set out in Section 14, and if these exclusive rights are exercised or authorized without the owner’s consent it amounts to infringement. Secondly, if any action is carried out in contravention/breach/violation of an existing license, it amounts to copyright infringement. There is a statutory basis for how infringement is defined. Section 51 broadly and exhaustively deals with when an infringement will occur.

The remedy for copyright infringement is both, civil and criminal. They are considered to be parallel remedies, which means, you do not have to select one over the other. Under section 54 and 55 actions can be taken by a copyright owner or an exclusive licensee against any party that is infringing on their copyright. Under Section 63 a criminal complaint can be preferred or lodged by any interested party, the owner of the copyright or the police can ‘Suo Moto’ themselves register an offense of infringement. Anybody who is ‘Abetting’ the infringement, as per the definition of ‘Abetment’ under Section 107 of the Indian Penal Code, will also be held liable.

Why aren’t damages imposed in case of infringement?

Damages are definitely a part of the remedy. A few years ago the courts said that not only compensatory damages but also curative damages shall be awarded in case of willful infringement. Now the courts are looking at imposing heavier damages and work on a broader canvas to calculate these damages. In most cases damages have never been hefty as calculation of damages is, according to me, still at a nascent stage in India. In most of the cases where the damages have been granted, are ‘exparte’ judgments as the defendant has stopped appearing. Therefore the plaintiff and the Court are the two parties that have looked at the damages with the plaintiff arguing for damages and the court looking at what has been proven and what not been proven.

A stronger jurisprudence around damages and calculation of damages is required and needs to be developed in India. The jurisprudential mindset plays a role if you look at the US where the curative damages often exceed the compensatory damages and are in essence a punishment as a deterrent for people who willfully infringe. Indian courts have been more subdued or conservative where curative damages are concerned so as a general loose rule curative damages will never exceed what the actual compensatory damages are. There is definitely some work to be done here.

What is changing is the Patent Litigations in the technology domain, courts are now looking at interim and other damages while granting a wide range of damages. That sort of law will develop gradually. There is a need for the courts to take into account a heavier and more punitive scale of damages if the civil litigation system is truly to be a deterrent against copyright infringement.

What has been withholding the courts, unlike western countries?

In my belief, India has eschewed a damaged culture similar to the U.S. The system there has been criticszed to be like a runaway horse where damages are concerned. It is due to the litigious nature of U.S. society, that damage claiming culture became such a big thing. The Indian judiciary has been more concerned about protecting the rights and prevention of infringement by virtue of injunction and innovative injunctions as opposed to the final case. That’s another reason less than 2%-3% of Intellectual Property matters actually go through a contested trial and a final judgment. Most of these cases, at least until recently, would be settled at the interim stage. Due to a combination of factors, there was no scope for the court or judiciary to test the principle on which to calculate the damages and what measure of damages to grant.

What are your views about the Inreco vs. Illayaraja Case?

In cases like this where there is a contest in terms of title as opposed to the infringement cases where the infringer is a stranger, the yardsticks are bound to be different in terms of calculating whether damages should be granted or not. In this case, there was a contesting claim on the ownership and that’s where you don’t have a large damages grant. It also depends on the kind of evidence and pleading you put in the court where damages are concerned.

In the UK, you have a finding based on merits where a permanent injunction will be granted and if it is granted it means the court has ruled in favour of the plaintiff against the defendant. Post this will start what is known as an ‘inquiry into damages’ which is literally a second mini-trial. This is done to assess the number of damages that should be payable. We don’t have this system yet in India. Our Code of Civil Procedure (CPC) does not take into account the requirement for splitting the inquiry into merits and an inquiry into damages. However, I think courts will start doing that soon because they will realize the need to first rule on merits whether infringement has taken place and then invite the concerned parties to file affidavits etc.

The US judiciary has a pre-trial discovery provision wherein the parties are bound by the court to hand over all the relevant documents to the court which makes the calculation of damages much easier. In India, the discovery procedure begins after the suit is filed and can take months if not years. Discovery as a tool has not been used by parties often. The law around discovery in India is well developed but what it does is prevents phishing and therefore many a time parties use this excuse to avoid providing details. So in the absence of details, it is often problematic to grant damages. One more reason would be the lack of a formal economy, in India, vis-à-vis an infringer who will withhold sales details to tax authorities making it difficult to calculate damages.

I won’t get into crystal ball gazing as to what the government or the parliament will do in terms of the change in the law. The contest today is between the Performers Rights Societies and the music industry on the definition of the term ‘performer.’ The pre-2012 amendment definition of the said term talks about a ‘visual or acoustic presentation made live.’ There have been objections to interpretation of what ‘visual or acoustic presentation made live’ means. Whether it presupposes it in presence of an audience or if a studio-recorded presentation is made live. India has acceded to the WIPO Performances and Phonograms Treaty (WPPT) which incorporates the Rome convention that recognizes the audio performer’s rights.

The Beijing Treaty for audiovisual performances which recognizes the performers whose performances are a major part of a film or a visual medium has come into force a couple of weeks back. The draft of this treaty was finalised on the 27th of June 2012. India’s 2012 Copyright Act amendments came into effect on the 21 st of June 2012. There are two ways to look at it. One, as India had already expressed in terms of its statements and objects of reason, it intended at that time to align itself with the WIPO Internet Treaties i.e., the WCT and WPPT. Once India intended to align, one could argue it incorporated certain principles or intended to incorporate.

But the law in India is that regardless of treaty obligations, the municipal law i.e., the Copyright Act will prevail in matters of violations and not the treaty. If India has breached its obligation that is at the World Trade Organization (WTO) on trade dispute level but if an Indian law violates a treaty obligation, it is the Indian law that will prevail in India.

Performers argue that India intended to align with WPPT so the treaty must be read into the law because in effect the 2012 amendments are pre-accession ratifications for the treaty. Whereas the audio-video performer’s rights are concerned it is open as India has not acceded to that treaty.

Tell us your views on Section 31D and other amendments.

I don’t assume that the law brought out by the parliament is going to change, till it actually does. Until that happens, it will be very speculative to comment. Section 31D has effectively brought a Statutory License for television and radio. When this law was made the intention clearly was to cover the traditional forms of the broadcast which were television and radio. Some radio stations and even internet streaming services have filed an appeal, so it is now for the Intellectual Property Appellate Board to look into the 31D provisions.

Ideally, I would like India to align itself with what is happening in the rest of the world. With the rapid growth in the digital segment, stakeholders have realized the role they can play. If India has to become a country with a vibrant cultural industry, all its stakeholders should share the proceeds from the royalty revenue generated. The ideal scenario to oversee revenue distribution would be on a private contract basis like it is in any part of the world. There is no statutory right to royalty in England or Europe.

No such contracting practice has ever developed in India that is why I feel the law intervened to create a statutory royalty right. Unless we have a robust contracting system that takes into account the ability of the stakeholders to renegotiate the contracts, with each other, we are going to have a market imbalance. This is not good for creativity, investment, long term business, I would like India to follow the world system and we are getting there.

Text by Hardik Joshi

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