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  W HETHER S HARING OF M ANU S HARMA ’ S I NTERNET A CTIVITY WITH T HIRD P ARTY IS I LLEGAL AND V IOLATION OF R  IGHT TO P RIVACY ? It is most respectfully submitted that the respondent actions are in no way illegal and in violation of the right to privacy of Manu Sharma. The actions of the respondent were in furtherance to  protect the copyright infringement of the sister company relating to their upcoming movie „Sugar Rush‟. Sharma had downloaded pirated songs of their movie on August 19, 2014 using WindTel  broadband connection installed at his home. The respondent has a duty to report a crime wherever it is committed. Right to Privacy not an Absolute Right While the Constitution does not explicitly guarantee a right to privacy, the courts in India have consistently read that right into the definition of the fundamental right to life and personal liberty. 1  These rights are not absolute and the courts have held that parliament may impose reasonable restrictions on the exercise of fundamental rights.  Mr. „X‟   v.  Hospital „Z‟  2 , involved a claim for damages made by a patient against a hospital which disclosed the fact that the patient tested positive for HIV which resulted in his proposed marriage being called off and the patient being ostracized by the community. This court observed: “  public disclosure of even true private facts may amount to an invasion of the right of privacy which may sometimes lead to clash of one person‟s “right to be let alone” with another person‟s right to be informed. The right, however, is not absolute and may be lawfully restricted for the 1  R. Rajagopal v. State of T.N. (1994) SCC 632; and summarized in Naz Foundation v. Government of Delhi,W.P. (C) No. 7455/2001, (2009) 2  (1998) 8 S.C.C. 296   prevention of crime, disorder or protection of health or morals or protection of rights and  freedom of others ”.  Similarly, there are several other cases where the courts have allowed the disclosure of information for a larger public benefit. The courts balance the countervailing arguments for  public benefit which may arise from the disclosure. 3  Courts, hence, may allow the disclosure when it concerns a person infected with the AIDS virus whose prospective marriage will likely result in the communication of the virus; 4  the issue of the legitimacy of a child for which a divorced husband will be liable to pay maintenance; 5  and the steps to be taken by a bank to recover debts from a willful defaulter. 6   Copyright Infringement According to §14(a)(i) of the Copyright Act, 1957 the copyright owner in a literary, dramatic or musical work has an exclusive right subject to the provisions of the Act to reproduce the work or authorize the reproduction of the work in any material form. Reproduction rights include the right to store the work in any medium by electronic means. 7  Moreover, under the Copyright Act it is provided that the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”. 8  Therefore, whosoever uploads of downloads copyrighted material without the permission of the copyright owners no doubt violates copyright law. 3  Apar Gupta, The Law of Online Privacy in India , (2011) PL April S-3 4   Mr. ‘X’ v. Hospital ‘Z’, (1998) 8 S.C.C. 296   5  Akila Khosla v. Thomas Mathew, 2002 (62) D.R.J. 851 6  Mr. K. J. Doraisamy v. The Assistant General Manager, State Bank of India, (2006) 4 M.L.J. 1877. See also District Registrar & Collector, Hyderabad v. Canara Bank, A.I.R. 2005 S.C. 186 7  Alka Chawla, Law of Copyright: Comparative Perspective , First Edition, 2013, Lexis Nexis 8  §51 Explanation of the Copyright Act.  In  Microsoft Corporation  v.  Nimesh, 9   defendants were loading software programmes of Microsoft on to the branded computers witout taking any authorization from them and selling the computers with the unauthorized computer programs to the customers. Held, the defendants infringed rights of the owners of the copyright under §§14(a)(i) and 51. Further held that the rights of the plaintiff were protected under §40 of the Copyright Act, 1957 as both India and US are members of Berne Convention and Universal Copyright Convention. Right to Privacy vs. Piracy One of the biggest perils that the music industry faces today is the ferocious battle between  privacy rights and the violation of copyrights stemming from music piracy. In today‟s digital age, the downloading, burning or transmission of copyrighted material is referred to as piracy, and is definitely against the law. 10   Music piracy has heavily increased since the beginning of MP3‟s and other wid ely used digital audio formats. Unfortunately, anyone with a computer and an Internet connection can connect to multiple computers and share data virtually undetected. This has caused quite a problem for the record industry and has trickled down to have an effect on artists, writers, arrangers and arguably the entire music industry. India has emerged as one of the biggest hubs of online piracy, with Delhi, Bangalore and Mumbai accounting for the major share of the illegal downloads. 11  Studies by the Motion Picture Association have showed that India accounts for maximum film piracy in any English-speaking 9  2012(51) PTC 205 (Del), also see, Microsoft Corporation  v. Dhiren Gopal  , 2010 (42) PTC 1 (Del);  Microsoft Corporation  v.  Rajendra Pawar  , 2008 (36) PTC 697 (Del). 10  Topher Adam Sawan,   Privacy vs. Piracy, Berkley Music Business Journal, Music law, November 2008. Available at http://www.thembj.org/2008/11/privacy-vs-piracy/ 11  Swaraj Paul Barooah, Taking a look at Online Piracy in India, January 24, 2013, http://spicyip.com/2013/01/guest-post-taking-look-at-online-piracy.html  country if one goes by the number of broadband subscribers. 12   This study also shows that India is the fourth largest downloader of films after the US, Great Britain and Canada. 13  According to the US India Business Council, report of Ernst & Young 2008 on „The Effects of Counterfeiting and Piracy on India‟s Entertainment Industry,‟ the Indian film indust ry lost USD 959 million and 571,896 jobs in that year due to piracy. 14  We can only protect our intellectual rights if we know and go after the one who infringes them. Being able to put a face to a name is the only way justice can run its course. Taking an example of an IP address, which could be used for anything not-so- honourable on the web: for infringing copyright, jail- breaking PayTV or identity theft on social media. If we can‟t put a face to this IP address and get the real name, whom to sue? And where? 15  So it gets very important to identify the infringer and ensure that piracy does not hide behind privacy. One of the ways through which the Indian Courts have given way to copyrights when it locks horn with privacy is John Doe orders. 16   “John   Doe”  orders or “John   Doe”  injunctions are “cease  and desist”  orders passed by a court of law against anonymous entity/entities. The principle is that the person who is a threat is not known as they are veiled being many in number backed by unknown identities. Recently,  Delhi High Court in Star India Pvt. Ltd. & Anr.  vs  Haneeth Ujwal & Ors . 17  passed an Ex Parte Ad Interim Order in favour of Star India Ltd wherein over a hundred 12  ENVISIONAL & MOTION PICTURES ASSOCIATION, INDIA: INTERNET PIRACY LANDSCAPE AUDIT (2009) 13  Id. at 13. 14  http://www.financialexpress.com/news/piracy-a-serious-threat-to-indian-film-industry/592752, Piracy, a serious threat to Indian film industry,   Published: Mar 19 2010, 00:05 IST   15  Alexander Tsoutsanis, Privacy and piracy in cyberspace: justice for all,  Journal of Intellectual Property Law & Practice (2013) 8 (12):952-956.   16   See ,  Taj Productions v. Rajan Mandal and Ors. 2003 F.S.R. 22; Viacom 18 Motion Pictures v. “John   Doe”  Cable  Networks and Ors., I.A. No. 11242/2011, in the Delhi High Court (“Singham”  Movie Case); Reliance Big Entertainments v. Multivision Networks and Ors., CS(OS) 3207/2011 in the High Court of Delhi (“Don   2”  Movie Case).   R.K. Productions v. BSNL Ltd and Ors. O.A.No.230 of 2012 in the High Court of Madras.(The “Kolaveri   Di”  Case), etc.   17  CS(OS) 2243/2014, on 28 July, 2014
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