Protection in paralysis

With India’s legal enforcement machinery hamstrung by lockdown, infringement activity has climbed to an all-time high. What can IP owners do to stay ahead? Vandana Chatlani reports

Producers of the gritty, gory crime thriller Mirzapur finally gave ecstatic fans what they had been anxiously awaiting when the second season premiered on Amazon Prime in late October. But just 24 hours after the first two episodes were released, Mirzapur 2 was available for download on torrent sites and platforms such as Telegram, according to several reports.

Digital piracy is nothing new in India, however the coronavirus pandemic has undeniably created a fertile ground for its rise.

In the last week of March, film piracy rose by 62% in India compared with the last week of February this year, according to MUSO, a tech company providing anti-piracy, market analytics and audience connection solutions that disrupt the piracy market for digital content. The statistics are broadly similar across Spain, Italy, the US and the UK.

Ashwin Julka, the Gurgaon-based managing partner of Remfry & Sagar, says that a large number of suits has been filed before the courts as a result. In response, he says the courts have been “very responsive in issuing quick decisions” to block: (1) illegal streaming on OTT (over-the-top) channels; (2) infringing content being distributed on messaging services such as Telegram; and (3) infringing domains, while also applying newly emerging remedies such as dynamic injunctions in a series of cases.

The proliferation of online counterfeiting has ignited another fire for intellectual property (IP) owners and lawyers alike, with the lockdown immobilizing the enforcement apparatus needed to extinguish it.

Although there has been a spike in the number of IP applications filed in the healthcare sector – particularly in the field of medical devices and pharmaceuticals – on account of the pandemic, Manisha Singh, a New Delhi-based partner at LexOrbis, notes a “corresponding increase in the counterfeiting of goods related to this sector,” including hand sanitizers, PPE [personal protective equipment] kits and protective face masks.

“In terms of enforcement actions, there was a complete freeze in the initial days of the lockdown,” says Julka. “Hardships continued for a while as state machinery used to conduct raids, etc., was busy in efforts to stem the spread of the pandemic. Restrictions also made it hard to conduct investigations in the market on account of closures and low footfall.”