8/2/2019 Internet Piracy and Counterfeiting
1/36
Presented by:
Rajeshwar Nandan
LLM 1st year
8/2/2019 Internet Piracy and Counterfeiting
2/36
Contents Internet piracy and counterfeiting: Meaning Economic Impacts of Internet piracy and counterfeiting.
Prevention of Internet Piracy and Counterfeiting. WIPO Copyright Treaty. SOPA PIPA
Criticisms ACTA Indian position. Conclusions.
8/2/2019 Internet Piracy and Counterfeiting
3/36
HypothesisAlthough there are numerous international and
domestic legislations dealing with the issue ofcopyright infringement yet the issues of Internetpiracy and counterfeiting have been largelyunaddressed until recently till the US governmentcame up with two legislations namely SOPA and PIPAwhich have not been implemented and have beenhighly criticized.
8/2/2019 Internet Piracy and Counterfeiting
4/36
What is Internet Piracy? Piracy conducted via the Internet
What do the Digital Pirates Do?
Since pirates steal. Digital pirates steal digital data by transferring files back
and forth
downloading without paying
Stolen files include: music, video, pictures, texts, and software
sensitive material, industrial secrets, government secrets
8/2/2019 Internet Piracy and Counterfeiting
5/36
The Types of Pirated Files
Music
2001, music files formed the largest category ofpiracy on the Net
MP3 files traded using peer-to-peer (P2P)technologies
Video
Next biggest footprint on the bandwidth scale
belongs to video
anything from latest DVDs to sports games to musicvideos to pornographic videos
far fewer pirates trade video than audio (bandwidth
issues)
8/2/2019 Internet Piracy and Counterfeiting
6/36
Types of Pirated Files (2) Pictures
The next in the chain, many are pictures of celebrities,movie stars, rock stars, and pornographic pictures
Software
Next after pictures
Texts
least popular form of piracy people dont like to read a large amount
most books are cheap compared to music, DVDs, andsoftware
much harder to get a book into a file than music or video
8/2/2019 Internet Piracy and Counterfeiting
7/36
Internet Piracy
Economic ImpactsEstimated losses:
Difficult to estimate
OECD estimates 5% - 7% of world trade is in piratedgoods
Gieschen Consultancy 2006 14% of all internet tradevalued at US$100 billion
Trend towards using the internet as a medium ofdistribution
8/2/2019 Internet Piracy and Counterfeiting
8/36
Global ImpactThe extent of software piracy and losses due to such piracycannot be given in exact quantitative terms though it is believedthat piracy in this sector is wide spread. In Europe alone thesoftware industries lose an estimated $ 6 billion a year.
In fact, Europe holds the dubious distinction of accounting forabout 50 per cent of world wide losses from software piracy,more than any other region including the number two Asia.
According to a study of Software Publishers Association, a USbased body, losses due to piracy of personal computer businessapplication softwares nearly equalled revenues earned by theglobal software industry.
In 1996, piracy costed the software industry US $ 11.2 billion, a 16percent decrease over the estimated losses of US $ 13.3 billion in1995.
8/2/2019 Internet Piracy and Counterfeiting
9/36
Global Impact The country-specific data show that in 1996 Vietnam
and Indonesia had the highest piracy rate of 99 percent and 97 percent respectively, followed by China
(96%), Russia (91%), Thailand (80%) etc. In India software piracy is costing the IT industry
quite dear. According to a survey conducted jointly byBusiness Software Alliance (BSA) and NASSCOM in
May 1996, total losses due to software piracy in Indiastood at a staggering figure of about Rs. 500 crores (US$ 151.3 million) showing about 60 per cent piracy ratein India.
8/2/2019 Internet Piracy and Counterfeiting
10/36
Internet Piracy -ReasonsReason for online piracy
the ease at which pirates may maintain anonymity;
the ability to be located any where in the world; the potential size of the market; and
the ability to reach a global audience at marginal costs.
8/2/2019 Internet Piracy and Counterfeiting
11/36
PreventionCriminal action
Reporting the sale of pirated products to police
Police investigates Police takes action
Civil process
Third party discovery proceedings
Civil proceedings against infringer
8/2/2019 Internet Piracy and Counterfeiting
12/36
Criminal actionAdvantages
Exercise of police powers results in greater
investigation efficiency
Speed of action
Deterrent effect
Disadvantages
Volume and bandwidth
8/2/2019 Internet Piracy and Counterfeiting
13/36
Civil proceedingsAdvantages
Potentially possible to recover damages and cost
Disadvantages Confidentiality issues which prevents disclosure of
third party information
High legal cost
8/2/2019 Internet Piracy and Counterfeiting
14/36
Industry self-regulationTake-down provision currently exist Copyright Act
Useful against taking down illegal uploads of pirated
digital media Less useful against other types of sale of counterfeit
products in the internet
Some auction sites have implemented take-down
provisions: eBay Verified Rights Owner (VeRO)
Yahoo report on auction abuse
8/2/2019 Internet Piracy and Counterfeiting
15/36
WIPO Copyright TreatyIn 1996, in direct response to the growing threat of Internetpiracy, the World Intellectual Property Organization(WIPO) adopted new copyright treaties to enable better
enforcement against digital and online piracy. WIPO lists seventy countries as having ratified the WCT.
However, 68% of the countries that the BSA tracks thathave ratified the WCT have shown no change or only a
minor increase or decrease in software piracy rates. Thethree countries that showed a significant decrease areRussia (which only ratified in February), China (whichratified in 2007), and Qatar (which ratified in 2005).
8/2/2019 Internet Piracy and Counterfeiting
16/36
SOPA SOPA places a burden to protect IP rights from foreign
infringement on service providers. Internet search engines,payment network providers, and internet advertising
services. It could expand secondary liability under copyright law.
Immunizes blocking of websites by service providers,payment network providers, internet advertising services,
advertisers, internet search engines, domain nameregisters, and domain name registrars.
Places liability on payment network providers and internetadvertising services.
8/2/2019 Internet Piracy and Counterfeiting
17/36
PIPA The bill is intended to combat rogue websites
operated overseas, the text of the bill, as currently
written, has a much wider application. The bill is apotential burden on many bootstrapped startupcompanies, as it imposes compliance requirementson any site that either processes financial
transactions, sells or serves online advertising, orprovides even a single link to content thatsomehow infringes upon an intellectual propertyright.
8/2/2019 Internet Piracy and Counterfeiting
18/36
ACTAACTA is a multinational treaty for the purpose of
establishing international standards for intellectualproperty rights enforcement. The agreement aims toestablish an international legal framework fortargeting counterfeit goods, generic medicines andcopyright infringement on the Internet, and wouldcreate a new governing body outside the existing
forums, such as the WTO, the WIPO or the UnitedNations.
8/2/2019 Internet Piracy and Counterfeiting
19/36
Criticisms The applicable definitions for infringing sites include the word
facilitate, which can encompass a wide array of websites including usergenerated sites.
SOPA imposes on sites in which only a small portion of the site is
infringing. Conceivably, an entire website containing thousands ofpages could be targeted because of a small part being infringing. Severe practical problems arise for sites with substantial user generated
content, such as facebook, twitter and youtube and for blogs that allowusers to post videos, photos and other materials.
SOPA encourages over enforcement by making companies immunefrom suit for mistakenly punishing sites outside the bills scope.
SOPA is a violation of the First Amendment because it allows a privateparty to suppress speech without prior notice or a judicial hearing.
8/2/2019 Internet Piracy and Counterfeiting
20/36
Criticisms Where notice to the owner/operator of the site is required
under the PIPA, there is no corresponding opportunity forthe aggrieved site operator to be heard before the allegedlyoffending site or link is removed from the internet.
Under SOPAs private right of action, no notice is necessarybefore a plaintiff can have a site cut off from paymentnetwork providers and internet advertising services.
In defining an infringing website, SOPA uses word likefacilitate and enable. There is potential that a site could
qualify under the statutory definition but not meet therequirements for secondary liability under existing law. Inthis regard, SOPA could cause a lot of uncertainty in thelaw.
8/2/2019 Internet Piracy and Counterfeiting
21/36
Criticisms The DMCA provides a take-down and counter-notice
procedure. There is no counter notice procedurecontemplated in PIPA, and thus no chance for an aggrievedsite operator or owner to protest the removal. The DMCA
also provides for immunity for system caching, while PIPAdo not contemplate system caching. Furthermore, theDMCA also provides penalties for those who knowinglymisrepresent a copyright violation, which are absent inPIPA and can lead to abuse of claims.
Under certain situations, SOPA and PIPA may require aservice provider to block access to a foreign infringing sitesdomain name. Some have argued that DNS blocking couldcompromise the architecture of the internet.
8/2/2019 Internet Piracy and Counterfeiting
22/36
Indian Position The International Intellectual Property Alliance has
recommended in their Special 301 report that Indiaremain on the Priority Watch List in 2011.
8/2/2019 Internet Piracy and Counterfeiting
23/36
Priority ActionsPriority actions to be taken in 2011:
Enforcement
Create a national anti-piracy task force with goals to reducepiracy, inter alia, by working with State nodal officers,providing them with significantly increased resources;provide more accountability and power to the recentlyconstituted task force by FICCI under the aegis of the
Ministry of Human Resource Development (MHRD). Reinvigorate IPcells within the state police, provide them
with significantly increased resources, and establishspecialized IP prosecutors.
8/2/2019 Internet Piracy and Counterfeiting
24/36
Priority Actions Continue training police authorities to be more effective in
addressing rapidly growing mobile device and Internetpiracy
Increase the number of suo-moto raids, including againstcorporate end-user software piracy.
Encourage judicial reform, including accelerating theadjudication process in criminal and civil cases, andimposing deterrent fines and imprisonment; and establishspecialized IP courts, judges, and prosecutors.
Legalize use of books and journals at educationalinstitutions.
Empower customs to effectuate ex officio seizures, followedby destruction, of pirate goods.
8/2/2019 Internet Piracy and Counterfeiting
25/36
Priority Actions - Legislation Ensure the Copyright Bill 2010 contains WCT- and WPPT-
consistent protections, and takes into account right holderscomments to the Standing Parliamentary Committee.
Adopt effective anti-camcording provision, either as part ofCopyright Bill or as standalone bill.
Adopt statutory damages in civil cases; allow restitution to beawarded in criminal cases; and establish enhanced penalties for
pre-release piracy. Reject attempt to recast unauthorized imports as non-infringing,
as would result from the proposed revision of Section 2(m).
Adopt an optical disc law.
8/2/2019 Internet Piracy and Counterfeiting
26/36
Priority Actions
Market Access
Eliminate market access barriers, including thoseimposed on motion pictures, entertainment softwareand business software.
8/2/2019 Internet Piracy and Counterfeiting
27/36
Legal Position - CounterfeitingThe primary legislation in India that deals withcounterfeiting are:
The Trademarks Act 1999;
The Copyright Act 1957; and
8/2/2019 Internet Piracy and Counterfeiting
28/36
Trademarks Act, 1999The Trademarks Act provides remedies for theinfringement of a registered trademark, as well as acommon law remedy of passing off to protect against
infringement of an unregistered trademark.
Section 27(2) recognizes the common law remedy ofpassing off against any person dealing in counterfeitgoods. Section 29 mentions the various acts thatamount to the infringement of a registered trademark.
8/2/2019 Internet Piracy and Counterfeiting
29/36
Trademarks Act, 1999 Section 135 provides for civil remedies in case of either
infringement or passing off.
These remedies include injunction, damages, deliveryup and rendition of accounts. Section 103 provides forcriminal remedies such as imprisonment of up to threeyears and fines of up to Rs200,000 (around $5,000) incase of counterfeiting.
8/2/2019 Internet Piracy and Counterfeiting
30/36
Copyright Act Section 51 of the Copyright Act envisages the various acts
that amount to infringement of copyright vested with theowner. Further, Section 53 restricts the importation ofcopies which would infringe copyright. The act also
provides both civil and criminal remedies against softwarecounterfeiting.
Section 55 provides for civil remedies by way of injunction,damages, rendition of accounts and delivery up. As far ascriminal remedies are concerned, Section 64 empowers
the police to seize all counterfeit software copies, whileSection 63 provides for imprisonment of up to three yearsand fines of up to Rs200,000 in case of infringement orabatement.
8/2/2019 Internet Piracy and Counterfeiting
31/36
Judicial Position The Indian judiciary has become diligent in
dealing with software piracy. The Delhi HighCourt, in particular, has granted in numerous
instances ex parte ad interim injunctions, as wellas Anton Piller orders in software counterfeitingcases. In 2005 the Delhi High Court also put anend to the Indian courts culture of refusing toaward damages. Since then, the court hasawarded damages in various IP cases, includingsoftware piracy cases such as the following:
8/2/2019 Internet Piracy and Counterfeiting
32/36
Cases Microsoft Corp v Pawar (Case 530/2003) in this case the
court awarded Rs20 million to Microsoft; Microsoft Corp v Vahi (Case 817/2004) in this case the court
awarded Microsoft Rs23.62 million plus 9% per year from the
date of the order until payment is made; Microsoft Corp v Mayuri (Case 1027/ 2005) in this case the
court awarded Microsoft Rs500,000 in compensatory damagesand Rs500,000 in punitive damages, as well as costs; and
Microsoft Corp v Popat (Case 2005 (30) PTC 245 (Del)) inthis case the court awarded Microsoft Rs19.75 million plus 9%interest per year from the date of the order until payment ismade.Other Indian courts have since followed suit and now awarddamage s to IP owners in counterfeiting and piracy cases
8/2/2019 Internet Piracy and Counterfeiting
33/36
Conclusion India has adequate IP laws and an effective judicial
system in place to tackle counterfeiting. However,much has still to be done to curb the problem, in
particular with regard to software piracy. To counterpiracy, a four-pronged approach should be adopted.
Firstly, efforts should be made to increase IP awarenessthroughout the country. This could be achievedthrough education programmes, newspapers, circularsand pamphlets organized or distributed bygovernment agencies and non-governmental agencies.
8/2/2019 Internet Piracy and Counterfeiting
34/36
Conclusion Secondly, it is of paramount importance that the legal fraternity and
the enforcement agencies are fully aware of and equipped to deal withthe various aspects of IP law. This could be achieved by organizingtraining programmes for judges and police personnel on a regular
basis.
Thirdly, efforts to speed up trials should be made; this would enhancethe efficiency of the legal system by ensuring the early prosecution ofcounterfeiters and pirates.
8/2/2019 Internet Piracy and Counterfeiting
35/36
Conclusion Lastly, more specialized police cells should be
created to deal with IP and other economicoffences in various cities around the country.Existing specialist departments should be givenadequate powers. Further, the courts should beequipped with modern technologies to handle
various IP issues more effectively.
8/2/2019 Internet Piracy and Counterfeiting
36/36
THANK YOU
Top Related