Indians will not be penalised for simply viewing a blocked torrent website or URL!
There seems to be much debate and controversy surrounding the message the Tata Teleservices message that comes onscreen while trying to access Torrent site. Perhaps, it is time to put things in perspective.
The relevant part of the message states, "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/-."
Since the relevant provisions of law are quoted above, it would be a fair exercise to try and understand what the four provisions stated above actually mean before arriving at any conclusion.
Section 63 makes knowingly infringing or abetting copyright in a work (includes a movie, song, software, books, etc.) an offense.
Infringement happens when any person:
a. makes copies of;
b. distributes;
c. carries out public performance (with respect to a play, script, novel, song, etc.);
d. makes a movie or sound recording;
e. translates;
f. creates adaptations
of any work without the permission of the person who has got the exclusive right to do any or all of the above acts.
Section 52 of the Copyright Act lists the exceptions to infringement of copyright. Under Section 52, one of those exceptions includes fair dealing (except a computer program) for private private use of any copyrighted work. What constitutes fair dealing is not defined in the law. So, if a person views or downloads a song, video, etc, for his own viewing, it may constitute an exception and may not amount to an offence under Section 63.
Section 63A provides for greater punishment with respect to a second or subsequent offense. So, clearly that is not applicable to here.
Section 65 makes possessing a plate for the purpose of making an infringing copy an offence. A plate is defined (among others and relevant to this discussion) as a duplicating equipment intended for reproducing copies of any work. Viewing or downloading work may not be interpreted as possessing a plate for purpose of making infringing copies. Hence, this provision is not applicable to viewing or downloading of movies or songs from a Torrent site.
Section 65A talks about circumventing technical measures deployed for protecting copyright. This section is directly applicable to cracks used for installing pirated software. Any person using a crack for defeating activation requirements or to dispense with a license key is liable under this provision. Other instances would include access to a subscription site like Netflix or any other similar site by hacking.
Section 63B (not given in the message displayed onscreen) is directly applicable to use of pirated computer programs and makes it an offence. There is no equivalent of Section 63 for content other than software programs.
Merely browsing a torrent website cannot be an offense unless one begins to download and store. Even then, if one is not distributing or circulating the content downloaded from Torrent websites, it is doubtful whether an offense is made out under the current laws.
This discussion does not apply to computer programs. We can always stretch the law and prosecute by misusing. So if given a choice, download a movie, but don't share it amongst your friends.
The Author is Director, Asian School of Cyber Laws
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