A legal panel on countering piracy in the MENA region

As global demand for content continues to boom, piracy remains a perilous problem for the industry. Our legal panel brought together high-profile lawyers representing media houses from the UAE, Egypt, India and the UK to address some of the key issues that plague the industry.

Titled ‘The Rule Book: Combating Piracy with Legal Experts’, the discussion, moderated by Jon Parker, Partner/Head of IP at Gowling WLG, addressed the threats faced by businesses and the counter measures the industry must initiate to render piracy ineffective. The panellists were Addy Verma, Senior Legal Counsel at OSN; Ameet Naik, founder and Managing Partner of Naik Naik & Company; Nicki Schroeder, Senior Director Global Anti-Piracy at Discovery, Inc; and Walid Abdel Mohsen, Senior Legal Counsel at Rotana Media Group.

Jon Parker began by highlighting some positive developments in the industry in terms of sentences handed out to criminals in the UK for the sale of illegal set-top boxes (STBs). He also highlighted significant wins regionally, where OSN had again secured a jail term for a person selling illegal STBs, as well as the closure of their business.

Parker first asked OSN’s Addy Verma to share his observations on developments in the region in the last 12 months.

“We’ve seen further progress from both a legal and business point of view, whether it is in the courts or the way the law has been interpreted over the last 12 months,” Verma acknowledged.

“Content owners have invested more in content protection activities. Collaboration between owners has improved, because everyone is impacted at some point or the other.

“In this region, people are not used to paying for content. There’s a diverse population, especially in the GCC, that come from different countries and have different ways of accessing the content they like.

“We don’t want to go to the courts in the first instance. We consider other options such as administrative enforcement, where we create awareness without initiating a criminal complaint. We resort to criminal action when we identify a pirate who has committed a technological breach or uses their activities to make money.”

In some cases, cracking down on pirates can be a complicated process with above-normal costs involved in safeguarding assets, Verma explained.

“Back in 2014, a subscriber pirated a popular movie from our platform and uploaded it on a pirate torrent website for monetary gains. Our initial challenge was to identify the pirate and ensure that identification would hold good before the courts. There were cross-border issues as well as challenges to establish jurisdiction. The evidence was dynamic, and interpretation of the laws was untested in that territory. However, in the end, we were successful in obtaining judgment against the pirate.

“The UAE is making efforts to establish specialised IP courts which provide for expert witnesses to review complaints and evidence. Over the years, we’ve seen more of this kind of action across the region, whether it be Jordan, Egypt, the UAE or Kuwait. The courts have interpreted the law in the right spirit.”

Parker then turned to Ameet Naik, whose company reportedly represents some of the highest-profile players in Bollywood, and asked him how India, which ranks fifth globally for online piracy, has addressed this menace.

Before responding to the query, Naik set the stage by sharing some statistics with the attendees.

“India is a country of 1bn people; the penetration is huge and the average viewer online is between the age of 15 and 25. Therefore, India ranks #5 in online piracy. The country produces 400 mainstream films and 400 regional films annually, and it appears that broadband will soon be free in the country. Despite these issues, we see a big change coming to India, which started with the Indian music industry, whose revenue loss was colossal at approximately $670m every year. Now, the OTT players are following suit,” Naik stated.

Naik pointed to three fundamental changes taking place within the Indian context, from an industry, legislative and judicial point of view, and explained that India is witnessing the coming together of these three critical elements.

“From an industry perspective, we have the Broadcasting Federation in India, and the Television and Producers Guild – I represent both entities. Both are collaborating as guilds should in every country. These players have come out with strong regulations and have the ability to admonish people.

“The second is statute. I was part of a select committee of the Parliament in 2012 in India, where we brought about a change to the certification act. A change to the copyright act is on the anvil, with the ability to take both civil and criminal action against offenders.

“The third is judicial intervention. We were recently about to get a dynamic injunction, where we were allowed not just to block a website but block any recurrence of it without having to file a fresh case. This is where the judiciary has an all-important role to play in outsmarting piracy.”

Naik acknowledged that the legal system is indeed dealing with clever pirates, but they could pre-empt their moves and bring laws to counter that.  With Avengers: Endgame on the threshold of being released during our conference, Naik pointed out that teams across the globe should remain vigilant to ensure that the movie was not pirated.

“There are jurisdictions, where there were going to be 24-hour screenings for a film, so when you understand the appetite for a particular content, you must take anticipatory action. Even Hollywood studios out of India in different jurisdictions went out and got protection early on. My advice is to go to the courts and engage lawyers if necessary and come together as an industry. More importantly, get the regulator on your side. The Telecom Regulatory Authority in India has played a vital role in mitigating piracy. Content is universal. All regions want content but protecting that content is the mantra.”

In terms of IP injunctions and copyright orders, there have been some notable wins in court across the world, Nicki Schroeder of Discovery observed.

“What I have seen over the course of the last three months is a number of significant criminal enforcement actions in the Netherlands, the US, the UK, Spain, South Korea, Germany, Thailand and China. All of that is very encouraging. In terms of criminal enforcement, there are a range of options in the region, including administrative action by the Telecommunications Regulatory Authority (TRA). In some parts of the region, there is also the option of site-blocking injunctions.”

She distinguished between static and dynamic injunctions, explaining that the latter can be amended if the URL changes and are very useful for live streaming of content, particularly live streaming of sporting events.

“I think there are 30 or 31 countries where it’s possible to get a dynamic injunction or static injunctions. Thinking about the political arena and changes in legislation, Article 17 of the EU Copyright Directive is something that’s been debated at length in Europe over the past months,” she remarked.

The panellists agreed that the area most affected by technology is the legal dimension, and Parker asked Mohsen of Rotana to share his views on the authentication and licensing processes in Egypt, in terms of proving ownership of data.

“In the past, asset authentication was the main problem in the MENA countries. In Egypt, for example, we had a lot of places dealing with authentication processes. Today, the Egyptian Chamber of Cinema is instituted as the one source responsible for the authentication of movies, while the Ministry of Culture oversees the authentication of Arabic content. So pirates cannot escape with any fake licences, as the regulation in the country is now streamlined. For Arabic-language movies being brought into Egypt, UAE authorities have an agreement with the Chamber of Cinema, which I think is a good step in our fight against piracy,” Mohsen said.

The panel discussed the need for collaboration among various entities and rights holders, as a measure to reduce the cost of protecting assets and prosecuting pirates.

Verma pointed out here that “the idea behind forming coalitions is to overcome challenges, which primarily relate to documentation and proving ownership of being a licensee”.

“There’s always the issue of jurisdiction, which might be a limiting factor for us to act against pirates situated across the globe. However, we have taken down several illegal content providers’ sites via forms available on Facebook, YouTube, etc. Some of the coalitions we are part of include IPTV Taskforce and Asian Pacific American Media Coalition (APAMC). Through Audiovisual Anti-Piracy Alliance (AAPA), we work with Interpol and Europol, where we deal with issues not based in this region. It’s important to work within coalitions because this helps to engage everyone in bringing best practices to this region.”

Schroeder agreed: “From an enforcement point of view, working within coalitions such as the Movie Pictures Association (MPA) IPTV Taskforce has enabled rights holders to mitigate costs.

“Some sorts of work we do with rights coalitions involve landscaping work and research. For example, the Internet and Television Association (NCTA), which Discovery is a part of, has done a huge amount of work in terms of research behind why people consume pirated content, what are the drivers of demand, what kind of things you can do to stop credential sharing, how to structure your service to make it less attractive, and also what kind of measures we can apply to take pirates down. The third piece of work we try to do as a coalition of rights holders is to work with governments and in the political sphere.”

Mohsen cited an experience where a content provider was unaware that he had bought pirated content.

“Our primary aim is to spread awareness about IP rights in the region. In Tunisia, theatres have been closed down because of rampant piracy. Now people don’t visit cinemas; they prefer to take pirated CDs from street vendors and watch it at home. Coalitions must work with countries such as Tunisia where the public have no awareness about copyright infringements,” he remarked.

Parker then steered the team from collaboration to the role of strategic business models to counter piracy.

Schroeder rightly pointed out that “pirates and illegal providers are not playing by the same rules as content owners” and that “perhaps the best way to differentiate from pirates is by keeping to what legitimate services are best at – ensuring safe viewing and reliable service”.

“We need to find ways to differentiate the legal offers from the pirate offers in a way that doesn’t come down to price and range of content, because that’s not a level playing field. As legitimate content owners and broadcasters, we are constrained by regulatory compliance issues and geographical limitations of the law. On a commercial basis, we are never going to be able to compete with pirated services in terms of price, because they are not paying for content. We must aim to differentiate our services in terms of the integrity of content, the reliability of service, ensuring cyber safety and so on,” she noted.

Naik pointed out here that the middleman poses a huge threat at the last mile.

“Business houses need to ensure their content remains sanitised, and the challenge is often at the last mile. In the Indian regime, every broadcaster started aggregating content to mitigate this. They learned that by taking the middleman out, they can contain some of this.”

Verma pointed out at this stage that legitimate content providers and distributors must identify their target audience.

“This is how pirates function: they identify the demand of their target audiences and tailor their services. Based on research, we sold our commercial subscriptions at discounted rates to audiences in labour camps. Over time, the way they consume content has changed; now they want an IPTV decoder and apps. There’s a lot of scope for all types of business models if we succeed in maintaining exclusivity.”

Mohsen added that one of the big concerns still is convincing judges that content theft is just as big a crime as stealing anything else.

“I once worked on a copyright case where we had a judge who thought he couldn’t punish someone for pirating movies. He said he can put him behind bars if he stole a bicycle, but how can he put someone in prison for pirating a movie? Nowadays, we coordinate with the Egyptian Governor and have a new IP law including 45 articles and prison sentences. This is a small win, but more needs to be done.”

Everyone agreed that things were changing, with courts and judges becoming more aware of the situation.

Parker concluded the discussion by asking each member to share how they could better enforce their clients’ rights.

“There’s a need to extend the ambit of administrative actions. Currently, in the UAE and Kuwait, we’ve worked on an administrative process for site blocking. We are now trying to extend that to cyber laws,” Verma said.

“We believe safeguarding content should be any content owner’s top priority, just like revenue generation. Have a dedicated cell of people who do only this,” Naik recommended.

“We need to find ways to persuade viewers that these pirate services are not interchangeable with the legal offer and that it’s not a victimless crime,” said Schroeder.

Mohsen concluded that the focus should be on educating content providers. “If you manage to protect the first release of a piece of content, you may have saved it from piracy. Nilesat recently proposed to movie producers in Egypt to broadcast their movies via satellite to protect their content. Most producers refused on grounds of cost, but they could potentially incur even bigger losses.”

The panellists concluded by agreeing that a multi-pronged strategy with content providers collaborating with courts, lawyers, tech experts, coalition groups and regulatory authorities, is required to institute stricter rules to fight piracy.