Are Torrent Sites Legal in India?

This article is written by Shally Yadav, a first-year law student of Hidayatullah National Law University, Raipur.

In the wake of Covid-19 and people being in lockdown, the Indian population and population around the world is consuming entertainment in large quantities. The source of this entertainment may not always be ethical though. People look for sources which are easy on their pockets and convenient to use. This leads to online film piracy.

• Online film piracy increased 62% in India in the last week of March compared to the last week of February 2020.

• Film piracy increased 41% in the US, 43% in the UK, 50% in Spain and 66% in Italy, according to digital piracy authority MUSO.

What is a Torrent?

The use of torrent has increased nowadays. But what is a torrent?

A torrent is a file sent via the BitTorrent protocol. It can be just about any type of file, such as a movie, game, song, or application. During the transmission, the file is incomplete and therefore is referred to as a torrent.

The torrent file contains all the information of the file such as data, format, size, author etc. Torrent can be used to view, share and download various contents.

Legality of Torrents in India

Movies like Udta Punjab, Mohalla Assi, Paanch,, Tera Kya Hoga Johnny were leaked before their official release date. All of these movies were available on torrent sites for download days before they were released. This leads to these movies not performing to their maximum profit on the box office.

In July 2016, after Bollywood movie Dishoom was denied John Doe orders by the Bombay High court, a notification was published. The Indian government, with the help of internet service providers, and presumably under directives of court, has banned and blocked thousand of

websites and URLs providing pirated content. In recent times, if any of the blocked websites are visited, there is a display message, part of which reads as,

“Infringing or abetting infringement of copyright-protected content including under this URL (Torrent website) is an offence in law. Sec. 63, 63-A, 65 and 65-A of the Copyright Act, 1957, read with Section 51, prescribe penalties of a prison term of up to 3 years and a fine of up to Rs.3 lakhs.”

 What is a Copyright and the Sections mentioned in the notification?

 Copyright is the right of the owner over their original work. This work can be in the form of literary, musical, sound recording, cinematography or dramatic work. To prevent unauthorized use of the original work (based on skill and labor), there is the establishment of copyright.

Section 63 of the Copyright Act, 1957: This section deals with the offence of infringement or abetment of infringement of copyright or any other right granted by this act (except the rights under 53-A i.e. Resale share right in original copies); which shall be punishable with imprisonment for a term not less than six months extending up to three years and fine not less than fifty thousand rupees extending up to two lakh rupees.   Punishment can be less than six months or fine less than fifty thousand when the infringement was not for gains or profits during the course of trade or business.

Section 63-A: Increased punishment in case the offense mentioned in section 63 is committed for the second or any subsequent times. The imprisonment in such a case shall not be less than a period of one year extending up to three years, fine not less than one lakh rupees may extend up to two lakh rupees.

Section 65: If any person expressively makes copies or has in possession any plate (tools with the help of which the process of copying is done) with the intention of making infringing copies of works that are protected by copyright, shall be punished with imprisonment up two years and fine.

Is visiting a torrent site a crime?

After the release of the notification a common misconception arose that merely visiting a blocked torrent site or URL may land a person in jail or get him fined. This is untrue. Merely visiting and browsing a torrent website is not an offence under the Indian law. Provided a person is viewing the files in private, even if one downloads files from a torrent site, then also it is not a crime under the laws.

If a person starts distribution of these files or public showcase of the downloaded material then only, the person may be penalized.

The Bombay high court in the case of Eros International Media Limited and Ors. vs. Bharat Sanchar Nigam Limited and Ors opined that merely viewing the unlawful copy of the film is not punishable in India. The offense is in making copies, giving in distribution, public exhibition or for sale or hire without the consent and permission of the copyright owner. Keeping the earlier error message in mind court directed the ISPs to have a more generic message and not include “viewing, downloading, exhibiting or duplicating” to avoid confusion in the minds of the layman.

Conclusion

In conclusion, merely visiting and downloading files from torrent sites is not illegal, provided the person is viewing and using the files for private use. But distribution, making copies and sale or hire of these files and content without the permission of the owner of the copyright is illegal.

 References

MANU/MH/1484/2016

https://techterms.com/definition/torrent

Image From: https://www.cyberpunk.rs/best-torrent-sites