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The Possible Legality of Downloading in India

    Note
    It is not entirely impossible to construct academic arguments (of questionable practical validity) in favour of the legality of private, non-commercial downloading under the Indian Copyright Act, 1957, through Sections 39(a) and (c) read with the definition of 'broadcast' in Section 2(dd), as well as through Section 52. (The applicability of any Section 51 'exception' is especially doubtful.) 
    Sections 39 and 52, which constitute exceptions and limitations to infringement under Indian statutory law, allow for the making of recordings of broadcasts, and for the making of copies of works, in specified circumstances and to a certain extent. The first exception to copyright infringement contained in Section 52 of the Copyright Act allows ‘fair dealing' with certain works per se — presumably, downloading works in their entirety would not be fair. This is buttressed by the fact that Section 14 of the Copyright Act, which explains the meaning of copyright in works, states that copyright owners have exclusive rights not only in respect of their works as a whole but also in respect of any substantial part thereof. 
    There may be slightly more leeway to make arguments in favour of downloading works which are broadcast given that Section 39(a) of the Copyright Act allows for sound or visual recordings recordings of broadcasts to be made for private use. As such, the recording of a work which is broadcast online (for private use by the person making the recording) may, arguably, be legal provided the recording is not audio-visual in nature (as would probably be the case with regard to most films). 
    Arguing for the permissibility of (even private) downloading under Indian law requires considerable interpretative legerdemain, and there is no explicit indication in the Indian copyright statute that such downloading either is or is intended to be legal.

Post

Copyright comprises a bundle of exclusive rights which allow the copyright owner, inter alia, to reproduce a work, issue copies of it, communicate it to the public, and to authorise others to do so. In the US, there has been a series of cases in which it has been consistently held that peer-to-peer downloading is illegal under US copyright law.

Copyright is, however, a territorial right, and the law is not the same in all countries. In Spain, for example, the law allows P2P file sharing.1 Domestic Spanish copyright law states that to be held liable for copyright infringement, a person must have copied a protected work with “an intent to profit”.2 Quite obviously, persons who download works protected by copyright usually have no such intent: they merely want to acquire a copy of a protected work for private use, and as such, their downloading of works would not amount to actionable copyright infringement. (The interaction of domestic law with EU law, however, does not seem to be entirely free of friction as the decision of the Court of Justice of the European Union in Case C‑467/08, Padawan SL v Sociedad General de Autores y Editores de España (SGAE) reveals.)

In India, the question of a downloader’s liability for copyright infringement has never actually been tested in a court; thankfully, Indian copyright industries have not (?yet) sent out Legal Notices indiscriminately to downloaders. Copyright infringement is, however, defined by Section 51 of the Copyright Act which states that:

    51. When copyright infringed. Copyright in a work shall be deemed to be infringed —
    (a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act —
        (i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
        (ii) permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
      (b) when any person —
        (i) makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
        (ii) distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
        (iii) by way of trade exhibits in public, or (iv) imports into India, any infringing copies of the work Provided that nothing in sub-clause
        (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.
      Explanation. For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an "infringing copy".

    If one were to focus on the mere act of downloading, it could be argued that it falls squarely within the scope of Section 51(a)(i). However, Section 51(b)(iv) states that one copy of a work may be imported by a person for his private and domestic use. It may therefore be possible to argue that an act of  downloading one copy of a copyrighted work hosted on a server outside India, at any rate, would not qualify as an infringing act as it would fall within the scope of Section 51(b)(iv). Considering that much copyrighted material is, in fact, hosted on servers abroad, and considering that no person is likely to download the same work many times, it is possible, though highly unlikely, that a downloader would be able to escape liability for copyright infringement by availing of the exception provided in Section 51(b)(iv).

    There is another angle to the issue: the Copyright Act defines broadcast extremely broadly. Under Section 2(dd) of the Act, a broadcast means “communication to the public (i) by any means of wireless diffusion, whether in any one or more of the forms of signs, sounds or visual images; or (ii) by wire, and includes a re-broadcast”. However, under Section 39(a), “No broadcast reproduction right or performer’s right shall be deemed to be infringed by the making of any sound recording or visual recording for the private use of the person making such recording, or solely for purposes of bona fide teaching or research.”

    As such, it may, be possible that communication to the public via the Internet would qualify as a broadcast, and that by virtue of Section 39(a), downloading the content of such a broadcast for private use for purposes of bona fide teaching or research would be a form of “fair use”. Such an argument could be proposed to exempt a downloader from liability for copyright infringement especially considering that the Act provides no guidance as to what bona fide teaching or research would be.

    Despite the fact that a fair use argument may be possible, it may not, however, be possible to use the provisions in Section 52 of the Copyright Act which deal with fair dealing exceptions to copyright infringement to argue that downloading is legal because Section 52(1)(a) is closely associated with the doctrine of substantiality and does not contemplate entire works being copied. And as far as Sections 39 and 51 are concerned, considering that the courts have no yet adjudicated the issue, no interpretation of the law can be anything but speculative.


    References:
    1. http://www.theregister.co.uk/2006/11/03/spanish_judge_says_downloading_legal/
    http://www.afterdawn.com/news/article.cfm/2007/10/19/court_decides_p2p_downloading_is_not_illegal
    2. http://torrentfreak.com/downloading-3322-movies-is-okay-in-spain-090529/

    (This post is by Nandita Saikia. It is entirely speculative and was first published at Indian Copyright. The note at the beginning of the post was added in December 2012.)