How Can India Implement Public-Private Partnership As A Means To Tackle Digital Piracy

Introduction

Digital piracy remains a menace to the media and entertainment industry in India as well as globally.  India’s digital ecosystem was ranked third in consuming pirated content during the first eight months of 2022, with 7.99 billion visits made to pirate websites.[1] India ranked first music piracy in 2021[2] and music piracy in India stood at 68% which was double the global average[3]. Therefore, it comes as no surprise that India’s recorded music industry suffers revenue losses of around ₹217 crore to ₹300 crore annually owing to visits to illegitimate websites and apps.[4] Moreover, the entertainment industry in India loses up to USD 2.8 billion of revenue annually due to digital piracy.[5]

Public-private partnerships have emerged as an effective means to tackle digital piracy and are increasingly being implemented globally to dismantle pirate operations and enforce intellectual property rights. Brazil’s recent “Operation 404” campaign is one such success story of a cross-border public-private partnership.

Functioning of Brazil's Operation 404

To deal with audiovisual piracy which costs Brazil around USD 5 billion annually, a campaign titled “Operation 404” (codenamed after the famous HTTP error “Error 404”) was initiated by Brazil’s Ministry of Justice and Public Security in 2019. Over 4 phases, the campaign involved around 100 search and apprehension orders and has resulted in the blocking of over 1000 websites and 700 apps that were streaming illegal content.[6] Operation 404 is considered by many to be an international model in the fight against digital piracy[7] and demonstrates the significance of collaboration while serving as an important case study on implementation of public-private partnership.

The campaign saw cross border collaboration of the Brazilian Civil Police, US enforcement agencies, UK’s Intellectual Property Office and Police Intellectual Property Crime Unit (PIPCU) with ANCINE (Brazil’s Movie Agency), ANATEL (Brazil’s Telecommunications Agency) and the National Council on Combating Piracy and Intellectual Property Crimes (CNCP), collectives like the Alianza Group, Alliance for Creativity and Entertainment, Motion Pictures Association (MPA), International Federation of Phonographic Industry (IFPI)

Brazil’s National Council on Combating Piracy and Intellectual Property Crimes (CNCP) comprises of representatives from the government as well as the private sector and works on IP enforcement issues.[8] The CNCP has facilitated public-private agreements to tackle digital piracy by preventing advertisement placement on infringing sites and introducing guidelines on best practices for Internet Platforms and for the implementation of anti-piracy measures by the Government, Right Holders, Payment Service Providers and Intermediaries.[9]

Recommendations for India: Adopting Public-Private Partnerships to Combat Digital Piracy 

International cooperation

Digital piracy transcends borders and its global nature demands coordinated action at the international level. The collaboration of Brazilian authorities with the UK IPO, PIPCU and United States Homeland Security for Operation 404 is an exemplary illustration of the value of international collaboration against digital piracy. International public-private partnerships through memorandum of understanding agreements (MoUs) would not only facilitate knowledge sharing but also increase efficiency of anti-piracy initiatives and such MoUs can exist outside the framework of free trade agreements (FTAs). 

IP Crime Body in Police Forces

‘Police’ and ‘Public Order’ are State subjects in India as per the Seventh Schedule of the Constitution of India and accordingly law enforcement agencies of States and Union Territories are responsible for dealing with cyber-crimes including digital piracy. In the State of Maharashtra, Maharashtra Intellectual Property Crime Unit (MIPCU) is a public-private initiative under the Maharashtra Cyber Cell that deals with complaints on digital piracy. 

Since digital piracy is not limited to boundaries of a nation or state, the establishment of dedicated IP crime units like MIPCU in other states and union territories is imperative in facilitating coordination with authorities from other jurisdictions to take integrated action against digital piracy and effectively enforce intellectual property rights. 

Role of Ministry of Home Affairs 

Digital Piracy facilitates criminal enterprises that fund and support organized crime, and therefore, home ministries must actively undertake initiatives to curb piracy. The role played by the Homeland Security Investigations (U.S. Department of Homeland Security) in the successful phases of Operation 404 highlights the importance of initiatives by home ministries to curb digital piracy.

The Cyber and Information Security (C&IS) Division of the Ministry of Home Affairs (MHA) looks after matters relating to cyber security and cyber-crime and has launched the Indian Cybercrime Coordination Centre (I4C) Scheme to deal with all types of cyber-crimes in a comprehensive and coordinated manner.[10] However, components of the I4C do not address the cyber-crime of digital piracy.[11] By adding digital piracy to the I4C scheme, the MHA can provide assistance to local law enforcement agencies to supplement their anti-piracy initiatives and coordinate anti-piracy actions nationally and internationally. 

Administrative copyright enforcement through a centralized public body

The establishment of an administrative body empowered to enforce the rights of content owners via administrative site blockings is imperative for combating digital piracy. Such a national body could be established through coordination among the Ministry of Electronics and Information Technology (MeitY), the Department of Telecommunications (DoT) and the Department for Promotion of Industry and Internal Trade (DPIIT). Such a national body dealing with digital piracy would play an instrumental role in facilitating public-private partnerships, akin to Brazil’s National Council on Combating Piracy and Intellectual Property Crimes (CNCP).

[1] Piracy Data Overview January 2022 to August 2022, MUSO, available at: https://www.muso.com/magazine/piracy-data-overview-january-2022-to-august-2022.

[2] Andy Chatterley, 2021 Muso Discover Piracy by Industry Data Review, MUSO, available at: https://www.muso.com/wp6-2021-muso-discover-piracy-by-industry-data-review.

[3] Digital Music Study – 2021, The Indian Music Industry, available at: https://indianmi.org/wp-content/uploads/2022/03/Digital-Music-Study-Report-2021-ONLINE.pdf

[4] A Case for Free Market Economics in the Indian Recorded Music Industry, The Indian Music Industry (April 2021), available at: https://indianmi.org/wp-content/uploads/2021/05/IMI-Economic-Report-Final.pdf.

[5] Patrick Kilbride, Digital piracy jeopardises India’s flourishing creative economy, The Times of India (Nov. 6, 2022), available at: https://timesofindia.indiatimes.com/blogs/voices/digital-piracy-jeopardises-indias-flourishing-creative-economy/?source=app&frmapp=yes. 

[6] Jenil Shah & Priyanshi Rastogi, Operation 404 : The Brazil-UK-US Trilateral – Lessons for India to Globally Tackle Digital Piracy of Indian Content, The Indian Music Industry, available at: https://indianmi.org/wp-content/uploads/2022/11/Brazil-Operation-404-Trilateral-Lessons-for-India-1.pdf 

[7] Annual   Intellectual Property Report to Congress, Office of the U.S. Intellectual Property Enforcement Coordinator (April 2022), available at: https://www.whitehouse.gov/wp-content/uploads/2022/04/FY21-IPEC-Annual-Report-Final.pdf.

[8] 2021 Special 301 Report, Office of the United States Trade Representative, available at: https://ustr.gov/sites/default/files/files/reports/2021/2021%20Special%20301%20Report%20(final).pdf.

[9] Commission Staff Working Document: Report on the protection and enforcement of intellectual property rights in third countries, European Commission (Apr. 21, 2021) available at: https://trade.ec.europa.eu/doclib/docs/2021/april/tradoc_159553.pdf.

[10] Learn about Cybercrime, National Cyber Crime Reporting Portal, Ministry of Home Affairs, available at: https://www.cybercrime.gov.in/Webform/CrimeCatDes.aspx.

[11] Details about Indian Cybercrime Coordination Centre (I4C) Scheme, Ministry of Home Affairs, available at: https://www.mha.gov.in/division_of_mha/cyber-and-information-security-cis-division/Details-about-Indian-Cybercrime-Coordination-Centre-I4C-Scheme.