India: Bombay High Court says that viewing of pirated films online is not an offence
In a recent order, the Bombay High Court has said that it is inaccurate to suggest that merely viewing an illicit copy of a film is a punishable offence under the Copyright Act. Honorable Justice G.S. Patel said, “The offence is not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission copyright–protected material. These error pages appear to have confused the penal provisions regarding obscenity with penalties under the Copyright Act, 1957.”
The resultant order by Justice Patel stems from a warning message that was displayed by all Internet Service Providers (hereinafter referred to as ISPs), on all the websites that were hosting pirated content. The said message was, ““This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Viewing, downloading, exhibiting or duplicating an illicit copy of the contents under this URL is punishable as an offence under the laws of India, including but not limited to under Sections 63, 63-A, 65 and 65-A of the Copyright Act, 1957 which prescribe imprisonment for 3 years and also fine of upto Rs. 3,00,000/-. Any person aggrieved by any such blocking of this URL may contact at email@example.com who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance”. He directed all ISPs to drop the line "'viewing, downloading, exhibiting or duplicating' a particular film is a penal offence" from the 'error message' and directed them to display a more generic message on URLS to be blocked for infringement of copyright.
This message led a number of newspapers around the country to wrongly report that, a mere viewing of illicit copies of a film could land one in jail. The Copyright Act, 1957, nowhere states the same and sections 63, 63A, 65 and 65A suffer from a gross misinterpretation. The message has been poorly drafted by ISPs, which was the primary cause for the confusion.
In a later order dated August 30, a copy of which can be found over here, Justice Patel asked all ISPs to display a more accurate generic message. The said message contained in paragraph 4 of the order read as, “This URL has been blocked under instructions of a competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. Infringing or abetting infringement of copyright-protected content including under this URL is an offence in law. Ss. 63, 63-A, 65 and 65-A of the Copyright Act, 1957, read with Section 51, prescribe penalties of a prison term of upto 3 years and a fine of upto Rs.3 lakhs. Any person aggrieved by the blocking of this URL may contact the Nodal Officer at xyz@[isp-domain] for details of the blocking order including the case number, court or authority to be approached for grievance redressals. Emails will be answered within two working days. Only enquiries regarding the blocking will be entertained.”
The matter has now been listed for September 23, when the court will examine if a more complete error message can be displayed by the ISPs. While doing so, Justice Patel also endorsed the suggestion made by Prof. Basheer for a need of a neutral ombudsman for future blocking related issues.