Op EdsOP. ED.

Introduction

“We live in a world measured by piracy because, piracy means access.”[1]

The internet came into existence in the early 1980’s, and since its inception everything around has become easily accessible. The experience of watching a film has changed dramatically over the last 100 years. Earlier, people would frequent their local film theatre and watch films, but with the evolution of the internet this has decreased tremendously. There are various online film service platforms which upload the films within a few weeks or even within a few days of its release and people can watch them in the comfort of their homes saving them the trouble of going to the theatre. The over-the-top media services (OTT) platforms have become very popular these days.  With the digital platforms like Netflix, Amazon Prime, Hotstar gaining popularity, people now stream films and download them at a minimal amount or sometimes for no cost at all. These platforms obtain a requisite licence in advance from the distributors. However, there are other online film platforms too, where a film is uploaded without obtaining any licence, these are called pirated films.

A recent example of a pirated film that was circulating was of Angrezi Medium (2020). The film was running in the theatres when the corona virus lockdown was announced by the Hon’ble Prime Minister. At the beginning of the lockdown there were number of pirated copies of the film that was circulated in various platforms. But, recently Hotstar bought the licence of the film and it is been view legally by a number of people since then. John Doe orders are based on the principle, “if litigating finger is directed at unknown defendants, the inability to identify him by name is a mere misnomer”. The underlying principle behind this being that the enigma of defendant’s identity should not be an impediment in implementation of justice.

According to the Dictionary, piracy is “the unauthorised use or reproduction of other’s work”.[2] Piracy is an infringement of copyright and one of the civil remedies that are given in such situations is the John Doe order. This article will discuss the future of John Doe jurisprudence in India, focusing on copyright infringement and Bollywood.

The Ascent of Copyright Piracy in Bollywood

Mukesh Bhatt, a well-known Bollywood producer in an interview said –“Digital piracy is the biggest menace, which the producers face and the amount of revenue that the filmmaker loses is huge.”[3] The Bollywood industry is one of the worst victims of piracy in the world.[4] Statistically, India is ranked amongst the top five countries worldwide for piracy.[5] In a study conducted, it was found that Indians are the largest users of the torrent sites.[6] A large section of people upload films illegally i.e. without having any authorisation or licence, catering to an equally large section of viewers who download and stream these films on illegal platforms. This makes us the culprits and the victims at the same time.

Despite stringent security checks at movie theatres, there is still a reported 91% leakage through camcording[7] i.e. camera recording in the theatres. Films releasing overseas before the Indian market can also be a contributing factor to piracy.

Movie producers and filmmakers end up paying a heavy price at the end of it all. As per data, each time a link is opened with a pirated film, there is a loss of INR 25, which later totals to an amount of INR 3 crores lost against the producer.[8] Due to the rampant mushrooming of platforms hosting pirated films, the Indian Government along with internet service providers (ISPs) has taken the necessary steps to curb piracy, by banning several websites and uniform resource locators (URLs).

Despite putting a ban, thereby making it a punishable offence to download copyrighted products illegally, the practice of illegal streaming and downloading has not completely stopped. In 2017, there was a very interesting online consumer survey on India by Irdeto, the world leader in digital platform security. It was found that 71% of consumers are well acquainted with the fact that sharing or producing pirated video is felonious, and 64% are aware that streaming or downloading pirated content is felonious and nevertheless, 66% still choose to watch the pirated content.[9]  Keeping supply and demand in mind, piracy is still rampant only because there is a readily available mass of viewers for whom this medium is economical and easily accessible.

Piracy is an infringement of copyright. It is to be noted that all piracy is copyright infringement but all copyright infringement is not piracy. Infringement of copyright has been mentioned in Section 51 of the Copyright Act, 1957. It includes acts of a person, when he does anything in absence of a licence from the owner or Registrar of the copyright, and the exclusive right of which is conferred upon the copyright owner under the Act.[10] An unauthorised person, allowing a place to be used for public infringing communication of work is also sectioned under infringement of copyright.[11] The Act also provides the owner of copyright exclusive rights of communication of a film.[12] Therefore, piracy of a film is illegal as the film is being uploaded without obtaining any licence or without the permission of the filmmaker and hence is an infringement of copyright.

The Act provides various remedies for infringement of copyright to the copyright owners.[13] Section 55 of the Act gives the owners whose copyright has been infringed (including exclusive licensees)[14] to obtain all civil remedies, through injunctions, damages and disgorgement.[15] In the context of Bollywood, the civil remedy that is popularly used is the John Doe order, also known as Rolling Anton Pillar order[16] or Ashok Kumar orders[17]. John Doe orders are granted under Order 39 Rules 1, 2 and read with Section 151 CPC.[18] Thus, the same principles are applied for John Doe orders as applied under Order 39 for interim injunctions.

The Arrival of the Hero: John Doe Order

John Doe is the common classification of persons who are unknown to the world at large. John Doe orders in simple terms are, temporary ex parte injunctions used by the copyright owners as an impediment to the unknown infringers.[19] These orders proscribe infringing activities by unknown people and along with that it also averts any probable infringing activities. It is used when the producer or the filmmaker anticipates that there is going to be piracy of their film, but, they do not know who may cause the piracy or is the infringer. These orders arise out of quia timet actions, which are actions by a party looking for the court’s help to avert an injury to the party’s rights or interest in the future.[20] The order acts as armour and grants pre-emptive and quick remedy to the copyright owners.[21] As per Order 7 CPC, identification of the defendant’s name and address is required[22], but, in cases where the identification is not possible, the courts have allowed John Doe orders. A “John Doe” in Bollywood productions copyright, case is initiated under Order 39 Rule 1 and 2 read with Section 161 CPC.[23]

The US Supreme Court case of Roe v. Wade[24] was where the anonymous entity to a criminal suit was referred to as Doe for the first time. The jurisprudence of the John Doe order in India goes way back to 2003 in Taj Television v. Rajan Mandal[25] where the court restrained the transmission of FIFA World Cup by unlicensed cable operators and the plaintiff was allowed to search and seize devices of unknown defendants. In recent times, we see that the amount of cases where John Doe was granted has increased tremendously, especially when it comes to piracy of new films. This can be attributed to the digital age and the internet. There has been a shift of the physical sale of films to the availability of movies from the online portals where the film can be easily streamed or downloaded from. With respect to Bollywood, the first case to use John Doe orders was for the movie Singham (2011).[26] In this case, the Delhi High Court included the term “internet” for the first time.

In the case of the movie Great Grand Masti (2016), the Bombay High Court allowed implementation of the John Doe order against the ISPs.  The court provided “sufficient service” to the defendants and allowed them to apply against the grant of injunction in a period of four days.[27]

The banning of the whole website because of an infringing content is archaic and with this the piracy rate increases rather than decreasing, as violators find other means for infringement. With the High Court order in case of the film Dishoom (2016) this has changed too. Justice Patel in this case extended the guidelines given in the case of Great Grand Masti. He instructed that blocking of the whole website is not allowed, unless it can be proved that the whole website contains only pirated or illicit content.[28] Thus, with the case of Dishoom it was seen that the court maintained a balance between the protection of constitutional rights and the freedom of ISPs.  This way one could check the legitimacy of the plaintiff’s claims and ISPs could be protected.

Year 2018 saw many instances in Bollywood where John Doe order was granted. The biggest movie of the year i.e. Padmaavat directed by Mr Sanjay Leela Bhansali sought a John Doe order from Madras High Court to avert any copyright infringement and piracy. To prevent any further losses, keeping in mind the controversies surrounding it, the makers of the movie sought a John Doe order. The other movies of the past year that got a John Doe order were, Hichki, Pad Man, Pari, Qarib Qarib Singlle, Soorma, Don 2 and Masaan.

The Good, Bad and Ugly of the John Doe Order

There is a lot of debate surrounding the John Doe jurisprudence in India. There are many issues and arguments relating to the “Ashok Kumar orders” as they call it in India. As we have already discussed, the order overrides Order 7 of the Civil Procedure Code, 1908 that specifies identification of the defendant’s name and address and failure to do so results in rejecting the plaint. Another reason is that the order takes no notice of the principle of inherent powers that the Supreme Court has expressed in times only to as an enhancement or to monitor the mechanism adopted by courts, without any connection to the litigant’s substantive rights for which courts have to be specially empowered.[29] The order is very ambiguous in nature. Its ambiguous nature aggravated in the case of the movie Singham (2011) when it included the word “internet” in context of the John Doe orders. The irony when we talk about John Doe orders increasing with the new internet age is that there is no substantial information available related to success of John Doe jurisprudence anywhere else except for the internet. Another issue with the John Doe order is in regards to the ISPs i.e. there is no standardised set of laws which determine blocking of websites and blocking of the same. As a result ISPs are blocking the websites without the sanction and in absence of any directives from the Department of Information Technology.[30] In the film Bodyguard (2011) the police were asked to assist the copyright owners by the court to curb piracy without any guidelines thereby giving them redundant discretion power which may further lead to constitutional scrutiny.[31] The courts also grant injunctions in the form of John Doe orders to curb piracy. The John Doe orders as a measure should be kept in check and be used during exceptional conditions where the injury of the copyright owner is superior to the compromise of the larger public goal of defending and protecting the internet freedom and constitutional rights of ISPs.[32]

There is a conflict between the copyright protection and public consumption of cultural goods. In this context we can look into Article 27 of the Universal Declaration of Human Rights, which states that everyone has the right to participate in the cultural life of the community and enjoy the arts. Also, it states that the interests of the author of a literary or artistic work should be protected. Therefore, we see that there is a conflict between the public consumption of cultural goods and the interest of the copyright owner. Some scholars argue that through piracy the cultural goods are made affordable and it ensures a larger access.[33] Whereas, on the other hand people believe in the protection of interest of the copyright owners in this context the filmmakers and the producers who incur financial loss due to piracy.

After the order issued with the film Dishoom, it has been noted that the entire website cannot be banned, as they also contain a sizeable portion of legitimate content. In order to overcome issues relating to the John Doe jurisprudence, there should be a distinction made between the websites that incidentally commit copyright infringement and those that intend to commit the same.  It should be noted that despite the intention, the Ashok Kumar order cannot be enforced unless there is an actual act of infringement.

Nowadays, long before the release of a film the makers release the teaser and the trailer online. There is also that one song of the film that is released by them online and people download it and share it across everywhere. But, as the date of the release of the same film comes near, the same makers procure a John Doe order to prohibit their film to be available on various mediums. This is the double standard of the filmmakers.[34] In a bid to contest the unbridled piracy, there has been a mounting craze among Bollywood producers to obtain John Doe orders before the release of their films. The rationale behind this is that since films have a limited shelf life, the producers of these films cannot wait until the identity of infringer is determined.

Conclusion

The extent of piracy has only increased in the recent times with the availability of links on various platforms. Despite the measures taken by the courts, this issue still persists.  With films being available on digital platforms such as Netflix, Amazon Prime, Hotstar, etc., one can stream films at a nominal cost at the comfort of their homes. It is believed by some that the level of piracy has decreased due to these platforms. Having said that, these platforms do not stream new films, as a result people find illegal platforms to view movies.

The jurisprudence of John Doe orders is still at a nascent stage in India. With piracy increasing, the numbers of John Doe orders that are granted have also increased. As has been mentioned, the courts are trying their best to curb the problem of piracy. However, the courts have to take stricter actions to determine and to take necessary measures in cases of internet blocking. There is still a high number of people who enjoy going to the theatres and watching films. As long as there are people willing to go to the theatre and watch the film, the producers and filmmakers will continue to earn profits piracy cannot diminish overnight; it will have to be a gradual process. With no piracy, the need for John Doe orders can decrease along with unnecessary removal and blocking of websites.

The future of the John Doe order will be determined by the way in which these orders are granted and at the same time by ensuring that there is no over blocking. It should also be important to protect the rights of those whose intellectual property has been infringed.


* BA LLB (Hons.), National Law University and Judicial Academy, Assam, e-mail: shristitalukdar541@gmail.com.

[1] Dr Kalyan C. Kankanala, Pirates of Bollywood  (2015).

[2] Oxford Dictionary of English (3rd Edn. Angus Stevenson, 2010).

[3] Indo-Asian News Service, Muklesh Bhatt: Digital Piracy is the Biggest Menace, NDTV Movies (28-12-2019, 3:31 P.M.), <http://movies.ndtv.com/bollywood/mukesh-bhatt-digital-piracy-is-the-biggest-menace-613985>.

[4] Aadya Chawla, John Doe Orders: Prevention of Copyright Infringement of Cinematograph Films, 2 ILILR 64, 65 (2017).

[5] Ibid.

[6] Arul George Scaria, Online Piracy of Indian Movies: Is the Film Industry Firing at the Wrong Target, 21:3 MSILR 647, 649 (2013).

[7] Maryam Farooqui, YRF Files John Doe to Protect Hichki from Piracy; A Menace that Made Film Industry Lose 30% Revenue in 2017, Money Control (11-1-2020, 12:00 P.M.), <https://www.moneycontrol.com/news/trends/entertainment/yrf-files-john-doe-to-protect-hichki-from-piracy-a-menace-that-made-film-industry-lose-30-revenue-in-2017-2532925.html>.

[8] R.K. Productions (P) Ltd. v. BSNL, 2012 SCC OnLine Mad 4184

[9] Irdeto, Building a Secure Future, Irdeto Research: Despite High Levels of Awareness in India that Piracy is Illegal, 66% of Consumers Polled still Access Pirated  Content (2017), <https://irdeto.com/news/irdeto-research-despite-high-levels-of-awareness-in-india-that-piracy-is-illegal-66-of-consumers-polled-still-access-pirated-content/>.

[10] S. 51(a)(i), Copyright Act, 1957 .

[11] S. 51(a)(ii), Copyright Act, 1957 .

[12] S. 14(d), Copyright Act, 1957

[13] Ch. XII, Copyright Act,  1957.

[14] S. 54, Copyright Act,  1957

[15] S. 55, Copyright Act,  1957 .

[16] David Barron, Roving Anton Piller Orders: Yet to be Born, Dead or Alive, 18 EIPR 183 (1996).

[17] ESPN Software India Pvt. Ltd. v. Tudu Enterprise, 2011 SCC OnLine Del 5710 

[18] Civil Procedure Code, 1908.

[19] Quentin  Cregan, Roving Injunctions and John Doe Orders against Unidentifiable Defendants in IP Infringement Proceedings,  6(9) JIPLP, 623-631 (2011).

[20] Juhi Gupta, John Doe Copyright Injunctions in India, 18 JIPR 351, 351(2013).

[21] Ibid.

[22] Civil Procedure Code, 1908.

[23] Ibid.

[24] 35 L Ed 2d 147 :  410 US 113 (1973)

[25] (2003) FSR 22.

[26] Reliance Big Entertainment Pvt. Ltd. v. Jyoti Cable Network, 2011 SCC OnLine Del 5709 

[27] Balaji Motion Pictures Ltd. v. BSNL, 2016 SCC OnLine Bom 4636

[28] Eros International v. BSNL, 2016 SCC OnLine Bom 10315

[29] Gupta, supra note  21, 352.

[30] Ibid.

[31] Reliance Big Entertainment Pvt. Ltd. v. Jyoti Cable Network, 2011 SCC OnLine Del 5709

[32] Chawla, supra note 5, 70.

[33] Pradip Thomas, Copyright and Emerging Knowledge Economy in India, 36(4) Economic & Political Weekly, 2147 (2011).

[34] Achal Prabhala and Lawrence Liang, A

Ludicrous Ban, The Open Magazine (27-1-2020, 1:30 P.M.), <http://www.openthemagazine.com/article/nation/a-ludicrous-ban>.

Case BriefsHigh Courts

Delhi High Court: In what may probably go down as the first of its kind decision in India on the subject of anti-piracy and intellectual property law, Manmohan, J. passed a decree of permanent injunction against “rogue websites” from infringing, in any manner, the plaintiff’s copyrighted work. Internet Service Providers (“ISPs”) and the Government departments concerned were also directed to block access to such rogue websites and “hydra headed websites”.

The Court was deciding a bunch of suits brought by UTV Software Communications Ltd., Twentieth Century Fox Film Corpn. and others, all of which are companies engaged in the business of creating content, producing and distributing cinematographic films around the world including in India. They primarily sought injunction restraining infringement of copyright on account of defendants communicating to the public the plaintiffs’ original content/cinematographic works without authorization. The defendants that were impleaded can be categorised in four classes — (i) Certain identifiable websites that were unauthorisedly communicating the plaintiffs’ copyrighted work; (ii) John Doe defendants who were hitherto unknown parties engaged in the unauthorised communication of the plaintiffs’ copyrighted works, including the registrants of the defendant-websites, uploaders, creators of redirect/mirror/alphanumeric websites; (iii) ISPs that provide internet access, enabling users to visit any website online, including the defendant-websites; and (iv) Department of Telecommunication (“DoT”) and Ministry of Electronics and Information Technology (“MEITY“).

This was a rare occasion where in an ex-parte matter, questions of law of general public importance arose for consideration. The Court was of the view that the general industry evidence appears consistent with a hypothesis that digital piracy has hurt the movie industry. In fact, online piracy has had a very real and tangible impact on the film industry and the rights of the owners. The Copyright Act, 1957 confers a bundle of exclusive rights on the owner of a “work” and provides for remedies in case the copyright is infringed. The Court was of the opinion that it had ample powers to mould the relief to ensure that the plaintiff’s rights are adequately protected.

The Court discussed the relevant law on the subject including Sections 2(y),(f) and (ff), 14(d), 51(a)(i) and (ii), 52(1)(c) and 55 of the Copyright Act; and Sections 2(1)(w), 69-A and 79 of the Information Technology Act, 2000; along with relevant case laws, both domestic and foreign. The seminal points and the Court’s conclusion after due consideration is, in seriatim, delineated below:

(a) Infringer of copyright on the internet not to be treated differently from an infringer in the physical world — If the view of the “Internet exceptionalists school of thought” is accepted, then all infringers would shift to the e-world and claim immunity! A world without law is a lawless world. There is no logical reason why crime in the physical world is not a crime in the digital world especially when the Copyright Act does not make any such distinction.

(b) Seeking blocking of a website dedicated to piracy does not make one an opponent of free speech and open internet — Advocating limits on accessing illegal content online does not violate open internet principles. The key issue about Internet freedom is not whether the Internet is and should be completely free or whether Governments should have unlimited censorship authority, but rather where the appropriate lines should be drawn, how they are drawn and how they are implemented.

(c) What is a “rogue website” — Music and film piracy are primarily facilitated on the net by Flagrantly Infringing Online Locations (“FIOLs“) or Rogue Websites. They are those websites which primarily and predominantly share infringing/pirated content or illegal work. The registrant details of these websites are unknown and any or all contact information is masked/blocked. In Para 59 of its judgment, the Court also chalked down some illustrative factors to be considered for determining whether the website complained of is a FIOL/rogue website. It was clarified that such factors do not apply to intermediaries as they are governed by IT Act, having statutory immunity and function in a wholly different manner.

(d) Test for determining a rogue website is qualitative — If the test to declare a website as a rogue website is that it should contain only illicit or infringing material, then each and every rogue website would add a small percentage of legitimate content and pray that it be not declared an infringing website! Consequently, the real test for examining whether a website is a rogue website is a qualitative approach and not a quantitative one.

(e) Defendant-websites were rogue websites — The Court gave a list of reasons to conclude that the defendant-websites satisfied the “qualitative test” and therefore were rogue websites. The reasons include that they do not provide any legitimate contact details and hide behind the veil of secrecy, they encourage users to circumvent detection or blocking orders, etc.

(f) Court is justified to pass directions to block the rogue websites — Website blocking in the case of rogue websites, like the defendant-websites, strikes a balance between preserving the benefits of a free and open Internet and efforts to stop crimes such as digital piracy. The Court was also of the opinion that it has the power to order ISPs and DoT as well as MEITY to take measures to stop current infringements as well as if justified by the circumstances prevent future ones.

(g) Dealing with the “hydra headed” rogue websites — The question that arose for consideration was how should courts deal with hydra headed websites, who on being blocked, actually multiply and resurface as alphanumeric or mirror websites. In the present batch of matters though the Court had injuncted the main website by way of the initial injunction order, yet the mirror/alphanumeric/redirect websites had been created subsequently to circumvent the injunction orders.

Though there is no similar procedure for issuing a “dynamic injunction” as is issued by courts in Singapore and elsewhere, yet in order to meet the ends of justice and to address the menace of piracy, the court in the exercise of its inherent power under Section 151 CPC permitted the plaintiffs to implead the mirror/redirect/alphanumeric websites under Order 1 Rule 10 CPC as these websites merely provide access to the same websites which were the subject of the main injunction. On being satisfied that the impugned website is indeed a mirror/redirect/alphanumeric website of the injuncted rogue website(s) and merely provides new means of accessing the same primary infringing website, the Joint Registrar shall issue directions to ISPs to disable access in India to such mirror/redirect/alphanumeric websites in terms of the orders passed.

Relief

(i) Keeping in view the aforesaid findings, a decree of permanent injunction was passed restraining the defendant-websites, tehir owners, partners, proprietors officers, servants, employees, and all others in capacity of principal or agent acting for and on their behalf, or anyone claiming through, by or under it, from, in any manner hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same, on their websites, through the internet in any manner whatsover, any cinematograph work/content/programme/show in relation to which plaintiffs have copyright.

(ii) A decree was also passed directing the ISPs to block access to the defendant-websites.

(iii) DoT and MEITY were directed to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the defendant-websites.

(iv) The plaintiffs were permitted to implead the mirror/redirect/alphanumeric websites under Order 1 Rule 10 CPC in the event they merely provide new means of accessing the same primary infringing websites that have been injuncted.

(v)Plaintiffs were held entitled to actual cost of litigation.

Suggestion

As a measure for curbing pirated content and the dark-net for promoting legal content and accelerating the pace of Digital India, the court suggested that since website blocking is a cumbersome exercise and majority of the viewers/subscribers who access, view and download infringing content are youngsters who do not have knowledge that the said content is infringing and/or pirated, the MEITY/DOT should explore the possibility of framing a policy under which a warning is issued to the viewers of the infringing content, if technologically feasible in the form of e-mails, or pop-ups or such other modes cautioning the viewers to cease viewing/downloading the infringing material. In the event, the warning is not heeded to and the viewers/subscribers continue to view, access or download the infringing/pirated content, then a fine could be levied on the viewers/subscribers.

Words of appreciation

The court also appreciated the services rendered by Hemant Singh, Amicus Curiae as well as Saikrishna Rajagopal and the team of Advocates assisting them. They not only handed over innumerable notes, charts and articles but explained with great patience certain technologies that the Court was not familiar with. [UTV Software Communication Ltd. v. 1337X.to, 2019 SCC OnLine Del 8002, dated 10-04-2019]