Accessing Blocked Websites: Why It Is Not a Crime

There have been various reports in past couple of days claiming that viewing a torrent site or even a blocked site could land you into jail for up to 3 years! Subsequent reports have attempted to clarify that no one is going to jail for simply visiting a blocked website. This post traces the reasons for these reports and attempts to shed some light on this issue.

De-mystifying the Message Displayed on Blocked URLs

The message displayed by Tata Communications Limited (an internet service provider) which gave rise to these many concerns is as follows:

“This URL has been blocked under the instructions of the Competent Government Authority or in compliance with the orders of a Court of competent jurisdiction. 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/-. Any person aggrieved by any such blocking of this URL may contact at urlblock@tatacommunications.com who will, within 48 hours, provide you the details of relevant proceedings under which you can approach the relevant High Court or Authority for redressal of your grievance”

The message was a result of an ongoing litigation in the Bombay High Court regarding a John Doe order (an ex parte interim injunction commonly used to prevent piracy) for the movie ‘Dishoom’. On July 26 2016, in a path-breaking order (discussed here) Justice Patel had laid down a set of safeguards to reduce the growing abuse of John Doe orders in India. The order required the ISPs to display a default error page on the blocked URL specifying the relevant provisions of the Copyright Act that prescribe penalties for copyright violations. ISPs were also required to specify details of the suit and a statement specifying how persons affected by the order may approach the court. Tata Communications Limited (an ISP directed to block under the July 26 order) approached the court citing certain technical difficulties due to which it was unable to comply with the order. This finally resulted in a modified error message accepted by the court which is displayed in the text box above (SpicyIP has discussed TCL’s applications and subsequent order in detail here).

There is no new regulation, policy or court order making even viewing of a blocked URL punishable – rather only a badly drafted error message by the ISP. The error message correctly lays down the sections under the Copyright Act that prohibit infringement of copyright as per the safeguards prescribed by Justice Patel. However, due to use of overbroad language – specially ‘viewing’- it creates unnecessary confusion.

The Copyright Law and Prohibited Acts

Viewing a torrent website (blocked or otherwise) is not a punishable offence under the Copyright Act 1957.  Section 63 of the Copyright Act prohibits any person from knowingly infringing (or abetting) the copyright in a work. Section 51 which defines when copyright is infringed does not include ‘viewing’ copyrighted content within the scope – while acts such as distribution, exhibition to public, selling or import of such content are provided for. The section also prescribes that infringement of copyright occurs when someone does an act – the exclusive right of which belongs to the copyright owner. However, there is nothing to indicate that a person who is simply viewing the copyrighted content on the website would infringe this right. Section 63A provides for penalties in case of a repeat offence and Section 65 punishes anyone who is in possession of plate for making infringing copy.

Section 65A (also mentioned in the error message) prohibits circumvention of technological measures applied for protecting the rights of copyright owners. Therefore, attempts to access these blocked websites by circumventing the block for the purpose of copyright infringement would be punishable.

Simply viewing the websites/URLs, blocked or otherwise, is not punishable under the Copyright Act. Downloading, making copies, exhibiting or circumventing technological measures to infringe copyright may all amount to offences under the act.

 

 

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