The advancement in digital technology has allowed copyright owners to disseminate their work across borders at the click of a button. Territorial barriers no longer serve as an impediment and work can be circulated at a reduced cost. However, these advancements have inadvertently made certain industries more susceptible to copyright infringement; one such being the movie industry. While copyrighted work has always been prone to infringement, the invention of the internet has taken infringement to another level, enabling piracy in a matter of minutes. In order to tackle issues like copyright infringement, the concept of John Doe orders, erstwhile having Indian alias 'Ashok Kumar orders', have been introduced in India. John Doe orders are based on the premise, "if litigating finger is directed at unknown defendants, the inability to identify him by name is a mere misnomer".1 The rationale being that the mystery of defendant's identity should not be an obstacle in pursuance of justice.
John Doe orders are ex-parte orders against an unknown party. These orders prohibit not only infringing activities by unidentified people but also prevent any potential infringing activities. If any incident of infringement comes to Plaintiff's awareness after passing of the order, the plaintiff can save precious time by presenting the order to infringing parties instead of filing a suit and waiting for the court to pass an injunction order. These orders have also been granted for the inspection of unnamed defendants' premises, so that the counterfeit goods can be seized. The Hon'ble Delhi High Court passed the first ever John Doe order, in Taj Television Ltd. and ors. v. Rajan Mandal and ors.,2 restraining the transmission of FIFA World Cup by unlicensed cable operators.
Filmmakers make huge financial investments in the making of movies. The unknown defendants, who indulge in piracy, remain shrouded in mystery, their indulgence costing a fortune to Filmmakers. In order to combat this rampant piracy, there has been a growing trend among Bollywood producers to obtain John Doe orders before the release of their movies. The reason being, that since movies have a limited shelf life, the producers cannot wait until the identity of infringer is ascertained. The concept of John Doe order for Bollywood movies began with producers of 'Thank you' and '7 khoon maaf' seeking John Doe orders. Since then there has been a constant parade of Bollywood producers seeking John Doe orders with producers of 'Masaan' being the recent to join the ranks.
There are no two ways about it that John Doe orders have indeed made a significant contribution in curbing copyright infringement. However one cannot deny that courts have showed a somewhat lax attitude in granting of these orders. The unprincipled implementation of these broad worded orders, coupled with absence of any specific time period for application of the orders, has resulted in jeopardizing internet freedom. For instance, In RK Productions vs BSNL, the court had granted an order, blocking 'rouge websites' prior to the release of movie '3'. However, it was only after a petition filed by Internet Service Provider (ISP), that the order was narrowed down to URLs hosting the movie.
Courts need to be a little more circumspect while granting such orders, keeping in mind that not all content on the websites may be illegal and that by completely blocking the 'rogue websites', they are also hampering the legitimate and bona fide interests of the people. Websites like 'Megaupload' and 'Filesonic', which were blocked by Reliance Communications in furtherance of a John Doe order passed by the Delhi High Court for the movie 'Don 2', are also used for sharing of photos, thereby depriving legitimate access to internet users. This has led to grievance among the ISPs who, as a result of these orders, are losing business. An appeal was filed by a consortium of ISPs demanding for specificity in complaints of infringing content, instead of a John Doe order which was obtained by the Copyright Labs for the producers of the movie 'Dammu'. On the appeal, the court then clarified that the order was granted only in respect ofURLs where the infringing movie is kept and not in respect of the websites.
Another point raised by the proponents of internet freedom is that, under Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, except for court ordered blocking of websites,3 Department of Electronics & Information Technology (DEITY) is the only authority which can approve blocking of the websites.4 Even when a court does pass an order for blocking of any information or part thereof generated, transmitted, received, stored or hosted in a computer resource, it is the Designated Officer who immediately on receipt of certified copy of the court order, submits it to the Secretary, DEITY and initiates action as directed by the court.5 This is crucial in the light of previous blockings by ISPs suo moto, claiming that it was undertaken in pursuance of court orders, under Section 79 of Information Technology Act 2000, which in fact only provides for exemption from liability of intermediary.6 As a result film producers have now begun impleading Department of Telecommunications and DEITY as primary parties in the litigation. Moreover, since John Doe orders are applicable against unnamed websites, compliance with the order should not be left in the hands of the ISPs, but should be supervised by a court appointed officer.
The courts have taken an over enthusiastic approach in granting these orders. A balance between the rights of the movie producers and that of the public is absent which needs to be taken in consideration. Issuance of vague John Doe orders will only serve as an impediment to the already struggling internet freedom.
1. Taj Television Ltd. and ors. v. Rajan Mandal and ors. (CS(OS) No. 1072/2002)
2. CS(OS) No. 1072/2002.
3. Rule 10, Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
4. Rule 8, Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009.
5. Id at 3.
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