MUMBAI: The problem of piracy - be it in film or music - is growing day by day. One of the sessions at FRAMES 2003 "IPR & Legal: giving the owner his due" held during the latter half of the first day (14 March), dealt with the importance of intellectual property in a digital age and what needs to be done to protect it.

The government should develop the will and proactively tackle, curb piracy! This was the consensus of the panelists which included Motion Picture Association International VP Mike Ellis; Amarchand Mangaldas managing partner Pallavi Shroff; Federation of Film Producers' Association (FIAPF) director general Valerie Lepine-Karnik and Pravin Anand.

While addressing the gathering, Motion Picture Association International VP Mike Ellis said, "Moviemaking is an inherently risky business. Contrary to popular belief that moviemaking (for our members) is always profitable, in actuality, only one in ten films ever retrieves its investment from domestic exhibition. In fact, four out of ten movies never recoup the original investment."

Ellis pointed out that the industry lost US $3.5 billion last year and added that the Indian audio visual market lost $75 million. He also mentioned that 87 per cent of DVD s seized came from Asia. He said that the piracy level in India is at 60 per cent. This is a marginal increase from the 55 per cent a couple of years ago.

Blasting the pirates, Ellis further said: "These pirates, literally, are nothing but organised crime syndicates. They are opportunists who look for easy money and also risk friendly. Consider the example of a submerged tank which was used to smuggle 70,000 VCDs from one port to another."

Other countries also face similar problems. Malaysia has a major problem with syndicates rapidly replicating. Government officials receive repeated death threats. "As far as tackling the menace is concerned, containment is the number one priority so that it doesn’t spill beyond all control. In countries where we have government support and effective enforcement like Hong Kong, we are starting to see progress in containing the problem," Ellis said.

The second priority is reduction, which requires a multifaceted approach that requires an effective prosecution and expedient judicial process. Ellis however pointed out that this method is completely lacking in India. "It takes 13 years to get a result. There is need for education in India that everyone loses when piracy flourishes," Ellis added.

Ellis pointed out that a DVD reward targeting source scheme had been launched a few days ago. He stressed that the Indian copyright law needed to be amended.

Another point that several other speakers made was that the punishment should be a strong deterrent. Ellis gave the example of the break point theory that was developed in Hong Kong whereby 50 raids were conducted everyday for several years in the city. In 1997 there were 1000 pirate shops. Today there are around 100.

In fact the project was so successful that the number of daily raids conducted has dropped to 35. Calculations were made as to how many times to raid a pirate and this would depend on factors such as the size of his business, value of his rental.

"The aim is to increase the pirates cost of doing the business to the level where the legitimate product can break in. After all if you don’t protect what you own you own nothing," Ellis said.

Amarchand Mangaldas managing partner Pallavi Shroff gave some stark facts and figures about how the pirates are responsible for the rot setting in at the core of the entertainment industry. She provided the following statistics: "The film industry lost Rs 10 billion last year while the music business suffered to the tune of Rs 7 billion. In 1997, 947 cases were registered for music. In 2002, the number dropped to 578. Of these only 191 cases ended in conviction."

Shroff also mentioned that Napster started the problem of online piracy with Peer to Peer file transfers. It was found guilty of both contribution infringement as well as vicarious infringement. The last one should be introduced in our country, she advocated.

Shroff further went on to add that KAZAA and Morpheus have created an even larger problem through their system of total anarchy. This means that a system is created that is so complicated that one cannot control it. It was pointed out that KAZAA was let off the hook on grounds that it did not know the illegal activities being conducted.

Shroff offered a solution by saying that a piracy fund should to be set up. She urged FICCI to think along those lines. Also technologists should work on anti piracy software although it was also pointed out by another speaker that as soon as this happens another software is developed to break the code.

Shroff stated that the industry should take the initiative on its own to persistently track down internet infringers and make sure they are prosecuted.

Another speaker Pravin Anand pointed out that through KAZAA and Morpheus 400,000 movies are downloaded a day. "Today, it takes 40 minutes but we are not far way from the time when it will take 40 seconds," he warned.

One of the remedies Anand suggested was for statutory damages to be introduced in India. In the US, the amount is between US$ 50 - US$ 30,000 per infringement. If it is found to be willful then the amount can go up to US $150,000.

Another solution lies in the three layered technological sandwich. The first layer is a law the second layer is a lock like CDROM keys and the third layer is law, which says that breaking the lock is a punishable offense. One issue Anand mentioned which was still in the air was that Hollywood wanted software makers to include anti piracy technology on a mandatory basis. However Microsoft and Intel refused as the cost of software would increase

" Also, I feel that it is imperative that a copyright infringement be made non-bailable. The burden of proof must be shifted onto the accused. The judicial process should be swift as it was found through research that the biggest fear a pirate has is going to jail. Unfortunately, this fear exists largely in the mind due to the negligible conviction rate," Anand added.

Anand drew attention to the fact that Ten Sports raised a big hue and cry in June 2002 when the signals for the soccer World Cup were stolen by unscrupulous operators. The Delhi High Court passed the John Doe order. This enabled the police the enter the premises of an operator where they were suspicious of wrong doing. A recording of the telecast was made as proof.

Federation of Film Producers' Association (FIAPF) director general Valerie Lepine-Karnik said that public authorities in most countries were lackadaisical in tackling the problem. It is not high on their agenda. "Legislations like Trade related aspects of intellectual property (Trips) agreement are not enforced with the hoped for efficiency degree. There are different types of digital piracy. You can have the flea market in cyberspace. These are hard good sales on the net. Then there is downloading, streaming,. Now DVD circumvention tools are available which is DeCSS. This enables one to duplicate the disc," Lepine-Karnik added.

"Another problem being faced is that there are rapid strides being made in the area of compression technology," Lepine-Karnik added. One solution she gave was for companies to offer Internet business solutions. This refers to legitimate services which are already being provided by the likes of sightsound, ifilm, movielink.

In terms of laws for Europe Lepine-Karnik mentioned that the European Copyright Directive had been adopted in June 2002. There is also a proposal for an Enforcement European Directive to strengthen the fight against piracy!