Copyright Piracy and the Indian Film Industry: a “Realist” Assessment
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BANERJEE ARTICLE (Do Not Delete) 10/28/2016 3:03 PM COPYRIGHT PIRACY AND THE INDIAN FILM INDUSTRY: A “REALIST” ASSESSMENT ARPAN BANERJEE* Abstract In India, the academic discourse surrounding intellectual property (IP) has been marked by great skepticism. Global IP laws have been viewed as a Western imposition detrimental to national interests. In this paper, I will make the case for a “realist” approach to film piracy in India, i.e., an approach that is rooted in legal pragmatism and draws from the New Legal Realism (NLR) movement. I will suggest a rough template for such an approach, referring to seven broad elements: a) international relations realism; b) contextualization of IP; c) contextualization of copyright; d) the views and interests of the film industry (including creators); e) the working of the pirate economy; f) Permission is hereby granted for noncommercial reproduction of this Article in whole or in part for education or research purposes, including the making of multiple copies for classroom use, subject only to the condition that the name of the author, a complete citation, and this copyright notice and grant of permission be included in all copies. *Alexander von Humboldt Foundation German Chancellor’s Fellow, Bucerius Law School, Hamburg (2016-17); Assistant Professor and Executive Director, Centre for Intellectual Property and Technology Law, Jindal Global Law School, India (on research leave). A shorter version of this paper was awarded first prize at the 9th ATRIP Essay Competition for Young Researchers in Intellectual Property Law (2015), and presented at the 35th ATRIP Congress at Jagiellonian University, Krakow, 26-29 July, 2016. I am very grateful to ATRIP for awarding me the prize and inviting me to the Congress, and to the Fédération Internationale des Conseils en Propriété Intellectuelle (FICPI) for sponsoring my visit. The genesis of the paper lies in a presentation I made at the 10th WIPO-WTO Colloquium for Teachers of Intellectual Property, Geneva, June 17 to 28, 2013. I was able to carry forward my ideas and write a full-length paper after being awarded a competitive research grant from the Global Research Intellectual Property Program (GRIPP), an initiative of the Motion Picture Association of America (MPAA), in fall 2014. I thank WIPO and the WTO for selecting me for the Colloquium and funding my visit, and the GRIPP for providing me with research funding with complete independence. Working drafts of the paper were presented at the 6th Harvard Law School Institute for Global Law and Policy Workshop in Doha (Jan. 2 to 11, 2015) and the inaugural Transnational Law Summer Institute Workshop at King’s College London (June 28 to July 10, 2015). I thank the organizers of these events for selecting me and funding me, and the faculty and co-participants for their comments. I am deeply grateful to all the individuals who granted me interviews amidst their busy schedules. I thank my parents, friends and students for providing me with helpful leads. I also thank everyone who provided me with comments on the abstract of this paper and/or drafts of the final version, particularly (in alphabetical order) Tanya Aplin, Robert Bone, Hanoch Dagan, Howard Erlanger, Dev Gangjee, Shubha Ghosh, Mark Janis, Jayanth Krishnan, Marshall Leaffer, Lawrence Liang, Prashant Reddy, Gregory Shaffer and Peter Yu. Finally, a special word of thanks to Stuart Brotman for his encouragement. 609 BANERJEE ARTICLE (Do Not Delete) 10/28/2016 3:03 PM 610 CARDOZO ARTS & ENTERTAINMENT [Vol. 34:609 the law and its enforcement; and g) reforms in the law and industry strategies. In keeping with the spirit of NLR, I will explore a range of top-down and bottom-up perspectives. I will conclude by commenting on the feasibility of certain legal reforms. INTRODUCTION ................................................................................. 611 I. SKEPTICISM TOWARDS IPRS IN INDIA ............................................ 617 II. THE CONTOURS OF A REALIST APPROACH ................................... 627 III. THE FIRST ELEMENT: INTERNATIONAL RELATIONS REALISM ...... 631 IV. THE SECOND ELEMENT: CONTEXTUALIZING IPRS ...................... 635 V. THE THIRD ELEMENT: CONTEXTUALIZING COPYRIGHT ................ 637 VI. THE FOURTH ELEMENT: THE INTERESTS OF THE FILM INDUSTRY 642 VII. THE FIFTH ELEMENT: THE WORKING OF THE PIRATE ECONOMY 650 VIII. THE SIXTH ELEMENT: THE LAW AND ITS ENFORCEMENT........ 660 IX. THE SEVENTH ELEMENT: REFORMS IN THE LAW AND INDUSTRY STRATEGIES ............................................................................ 672 A. Camcording Laws .......................................................... 677 B. Preventive Detention Laws ............................................. 679 C. Graduated Response Systems ......................................... 685 CONCLUSION ..................................................................................... 697 BANERJEE ARTICLE (Do Not Delete) 10/28/2016 3:03 PM 2016] COPYRIGHT PIRACY & INDIAN FILM INDUSTRY 611 INTRODUCTION The school of legal realism (specifically, American Legal Realism (ALR))1 and the school of international relations realism2 both reject formalist scholarship. Yet, they share “little kinship” with one another.3 The schools appear divided in terms of their underlying perspectives, i.e., a top-down approach focused on the consolidation of state power in the case of international relations realism and a bottom-up approach focused on the needs of ordinary citizens in the case of ALR. However, the more recent NLR movement4 arguably provides an opportunity to 1 Domestic law scholars tend to associate the term “realism” with the ALR movement. See HANOCH DAGAN, RECONSTRUCTING AMERICAN LEGAL REALISM & RETHINKING PRIVATE LAW THEORY 1-15 (2013) (introducing ALR). Prior to the birth of ALR, Oliver Wendell Holmes had famously advocated a study of law that went beyond textual formalism. See Oliver Wendell Holmes, The Path of the Law, 10 HARV. L. REV. 457, 467-69 (1897) (stating, inter alia, that judges and lawyers had neglected to weigh the “social advantage” of laws, and that “the man of the future” would not be “the blackletter man” but “the man of statistics and the master of economics”); OLIVER WENDELL HOLMES, THE COMMON LAW 1 (1881) (stating “[t]he life of the law has not been logic: it has been experience”). ALR scholars adhered to such non-formalist methods, focusing on those “[b]ehind decisions,” i.e. judges with fallibilities, and those “beyond decisions,” i.e. “people whom rules and decisions directly or indirectly touch.” Karl N. Llewellyn, Some Realism About Realism – Responding to Dean Pound, 44 HARV L. REV. 1222, 1222 (1931)). However, ALR scholars often leaned towards the post-Depression “New Deal politics” of the American left. Mark C. Suchman & Elizabeth Mertz, Toward a New Legal Empiricism: Empirical Legal Studies and New Legal Realism, 6 ANN. REV. L. SOC. SCI. 555, 557 (2010) [hereinafter, Suchman & Mertz, Toward a New Legal Empiricism]. George Peek, a right-leaning Roosevelt administration official went to the extent of describing some ALR scholars as “Lenin baby chicks.” GEORGE PEEK & SAMUEL CROWTHER, WHY QUIT OUR OWN 117 (1936). 2 International law and international relations scholars tend to associate the term “realism” with the concept of “political realism” in international relations theory, where “national interest” assumes primacy over moral considerations. See Hans J. Morgenthau, Six Principles of Political Realism, in INTERNATIONAL POLITICS: ENDURING CONCEPTS AND CONTEMPORARY ISSUES 7, 12 (Robert J. Art & Robert Jervis eds., 2011) (arguing that “political realism” ought to be “defined in terms of power and rational order,” which “refuses to identify with moral aspirations.” Statespersons should distinguish between their official duty, which is “to think and act in terms of the national interest,” and their personal wish, “which is to see their own moral values and political principles realized throughout the world.”). Rudimentary notions of political realism date back to ancient thinkers. See Colin Elman, Realism, in INTERNATIONAL RELATIONS THEORY FOR THE TWENTY-FIRST CENTURY: AN INTRODUCTION 11, 11-12 (Martin Griffiths ed., 2007) (citing the examples of Thucydides and Kautilya). However, it was Morgenthau who advanced the case for a “truly scientific theory of international law,” which understands “international law as it really is” and focuses on “psychological, social, political and economic forces.” Hans J. Morgenthau, Positivism, Functionalism, and International Law, 34 AM. J. INT’L L. 260, 269-73 (1940). See also KENNETH WALTZ, THEORY OF INTERNATIONAL POLITICS 113, 117 (1979) (arguing that “power,” “struggle” and “accommodation” are more influential than “authority and law.”). According to international relations realists, states are selfish actors and “do not inherently possess a normative interest” in international law. Note, Tackling Global Software Piracy under TRIPS: Insights from International Relations Theory, 116 HARV. L. REV. 1139, 1145 (2003) [hereinafter Note, Tackling Global Software Piracy under TRIPS]. 3 JEAN D’ASPREMONT, FORMALISM AND THE SOURCES OF INTERNATIONAL LAW: A THEORY OF THE ASCERTAINMENT OF LEGAL RULES 88 (2011). See also Gregory Shaffer, The New Legal Realist Approach to International Law, 28 LEIDEN J. INT’L L. 189, 205 (2015) [hereinafter Shaffer, New Legal Realist Approach to International Law] (stating “International relations realism…completely ignored legal realism.”). 4 See generally Howard Erlanger