Telegram: Pirates of the Intellectual Property
It was in 1990s, when the Multiplex Screen in India put the small theater or single screen out of business. And now, in this COVID-19 pandemic when all the Multiplexes and movie theaters are closed for more than six months the Over the top (OTT) platform has taken the market and Filmmakers are opting to release their movies on OTT platforms. However, during this pandemic when the OTT Platforms attract a huge number of viewers at the same time it faces piracy, especially on encrypted messaging platforms like Telegram. Since the launch of Telegram, it has served as a haven for online pirates. During this Lockdown various news articles claimed that Telegram saw piracy on its platform for about 11 times. The availability of the contents on the OTT Platforms and usage of Telegram in these days have attracted many IP Practitioners to have healthy discussion on Piracy on Telegram.
• OTT Platform Have Encouraged Piracy
It cannot be denied that the OTT platforms encourage piracy of the movies and web-series. Taking a simple example, pirates acquired content from Multiplex screen by recording the screen which is a punishable offence and one can be held liable for infringement under Section 63 of the Copyright Act. However, in the case of the OTT platforms it is very easy to record the screen sitting in your room and that cannot be even easily traceable like in theaters where you get caught at the moment you pick up your mobile phone in your hand. Thus, the level of piracy to which content is exposed on an OTT platform is far greater than that of content which premiers in movie theatres. Secondly, the audio- visual quality of the movies recorded at the OTT platform are much better than the movie theatres. Thus, high-quality video of pirated content and lack of legal, moral or technical knowledge encourage piracy.
• Telegram Adding Fuel to the Fire
With the advent of Telegram and OTT platform in the market the Piracy of the movies and web-series is skyrocketing. Telegram, founded in 2013, with end-to-end encryption used for instant messaging have recorded different sets of users in the last 3 years for downloading pirated copies of films, TV series, and games. Before Telegram, downloading movies and series from torrent or any other popular website became tiring and monotonous. Now, it’s just three click away to download contents from Telegrams i.e. – I) Open the App II) Search for Movies and III) Click on Download Button (in short OSC).
Telegram is the biggest consumer of pirated content on the messaging platform. Private chat groups on Telegram containing movies and web-series are filled with Indian users. The Telegram channel “HINDI HD MOVIES” having 6.2M subscribers is owned by an Indian user and is one of the most subscribed global channels on Telegram.
To understand the scale of the Piracy, Netflix Original Series “The Haunting of Bly Manor” released on 09th October 2020, was uploaded on the “Best Hindi HD New Movies” Channel (having over 6 Lakh subscribers) on 12th October, 2020. It was also observed that many web-series/movies were uploaded on Telegram on the same day of release like Gunjan Saxena, Raat Akeli Hai and Class of ’83 are few of Newly released web-series/movies. Further, addressing the problem Tushar Vohra, Head Technology, Zee5 said, “The investments we make in original content is humongous. When our customers are stolen from us by Telegram, WhatsApp, BitTorrent, it becomes a huge problem. Then customers move into the direction of getting content illegally. It is a loss of money and users”.
• Jagran Prakashan Limited Vs Telegram FZ LLC Case: Pin one’s hopes on
Not related to the Web-series or movies but the circulation of the daily edition of the Danik Jagran e-newspaper was observed by the plaintiff Jagran Prakashan. He filed a lawsuit before the Delhi High Court for the violation of his trademark and copyright subsisting in the e-newspaper. The plaintiff said that telegram have created channels with IDs: t.me/dainkjagran, t.me/DJagran, t.me/dainikjagranhindi, t.me/dainikjagran_jnm, t.me/dainikjagranpdf, t.me/dainik_jagran, t.me/dainikjagran, t.me/Dainik_Jagran_pdf, t.me/Fainik_Jagran_News, t.me/dainikja. On these channels the e-papers of the plaintiff are being uploaded in PDF format on a daily basis.
The plaintiff asserted that considering these facts Telegram indulged into reproducing, adopting, distributing, transmitting and disseminating the e-newspapers of the plaintiff and thereby not only causing the plaintiff serious financial loss but also violating the plaintiff’s trademark rights as well as copyrights in the e-newspaper. The Delhi High Court on 29th May, 2020 granted an ad-interim injunction in favor of the plaintiff and directed Telegram to take down/block all the telegram channels infringing the rights of plaintiff within 48 hours of the receipt of the order. The case is still pending before the Hon’ble High Court for final decree or order.
• The Other Side of the Coin
Another facet of the telegram was accentuated through PIL for banning the Telegram Application was filed before the Kerala High Court in 2019. The petitioner alleged that obscene content related to women and children are frequently being circulated on the platform. The petitioner further alleged that telegram is used to promote terrorism and can’t be controlled since it does not even have a nodal officer in India to give any statutory direction. The High Court asked Center’s views/response on banning the Application and was still pending before the Hon’ble High Court.
• Why this Hue and Cry against Telegram
Since the Telegram is an encrypted messaging platform, law enforcement agencies do not have access to these encrypted platforms which makes sharing pirated and illegal content much easier. Secondly, as compared to other Encrypted Messaging Apps like WhatsApp and LINE, Telegram allows its users to share messages, photos, videos and files of any type (doc, zip, mp3, etc.), of up to 2 GB each. Further, on telegram you can create groups of up to 200,000 people or channels for broadcasting to unlimited audiences which allows pirates to hit millions of people in just three-click (i.e. OSC). Thirdly, the administrators of the Telegram Channel grants access and permission to the users of the application to create various channels while not disclosing the identity of such users and thus are unknown. Last but not the least, the telegram channels provide links for the live streaming of any performance broadcasting on any paid channels like TV Shows and Sports. For instance, live streaming of DREAM11 IPL, 2020 requires Disney+ Hotstar subscription, but various Telegram Channels provide links of Live IPL matches which can be easily played on media player software or streaming media server.
• Concluding Remarks
It can be concluded that how easy it is to access telegram for downloading the movie and web-series as compared to Torrent websites. However, even though there is no copyright infringement case registered against the Telegram. It appeared as IP holders are not serious about piracy and infringement cases through Telegram. India is on the verge of becoming top consumer of pirated contents; it is necessary to highlight these issues and develop & evolve policies to tackle digital piracy. It can be said that Jagran Case is just the start and may wake up the IP holder of the Movies and Web-series.
“Accountability” has been a pertinent issue on telegram. There are possibilities that a developer may escape from its liability on the ground that it is an intermediary as laid down in the Section 79 of the Information Technology Act. Secondly, due to anonymous/unknown administrator of telegram channels based on client-server/server-client encryption, it is quite difficult to trace the administrator. In such a situation like that in the Jagran Case, the IP holder may have the option to either sue the developer Telegram FZ LLC or pray for the John Doe Order/ Ashok Kumar Order against the unidentified administrator of the Telegram Channels. It would be interesting to follow the developments in Jagran Case to see how the Delhi High Court sets the precedents for the other IP Holder as remedy for copyright infringement on Telegram.