India: To Sue Or Not To Sue Ashok Kumar?

An Analysis of John Doe Orders in the Light of Fundamental Right to Access to  Internet

In the year 2016, when a message had started appearing on websites, that stated that watching pirated films could result in a fine of Rs. 3 lakh and up to a 3 year prison-term, Justice G.S. Patel of Bombay High Court took note of the ambiguity of the messages and said: "This is inaccurate... The offence is not in viewing, but in making a prejudicial distribution, a public exhibition or letting for sale or hire without appropriate permission copyright-protected material." ¹There was no particularly pressing reason behind the Court having made this statement and thus the authors are of the view that it should not have. This observation highlights the one-sided approach that the Courts take towards piracy and reaffirms the incorrect notion that the viewer is an innocent bystander in all of this.

Currently, the biggest legal tool against piracy, is John Doe orders. Referred to as Ashok Kumar orders in India, they are used when an IP holder knows that his right is being infringed, but is unable to identify the potential infringer(s). Via this order, ex parte preliminary injunctions may be sought by IP owners to immediately restrain anticipated IP infringements, ² without having to wait to identify the exact identity of the infringer before instituting a case.

Evolution of the John Doe:

The Delhi High Court on 14^th June, 2002, passed India's first ever 'John Doe order' in the judgement of Taj Television v. RajanMandal. ³While initially, such an order was considered to be radical, overtime, other Courts have depended on this case to grant such orders of their own.

For example, in Tata Sky Ltd. v. Nimble TV Inc. and Ors, ⁴ the defendants had a website in which they had displayed the logo of the plaintiff- "Tata Sky," without authorization. The plaintiff immediately filed a suit of passing off as the misuse of the plaintiff's name on the defendant's website was misleading people regarding the real owner of that webpage. An injunction order was passed against these unidentifiable defendants who, in all probability, had caused monetary losses to the plaintiff's business.

Ashok Kumar Orders in India, involve a conjoint reading of the provisions concerning 'temporary injunctions ⁵' and 'inherent powers ⁶' in the Code of Civil Procedure ("CPC"), 1908. ⁷ The Court may use such inherent powers, which are not otherwise written in any Act, to meet the ends of justice.

Similarly, Order 39, Rule 7 ⁸ of the CPC can be interpreted to allow for the search of premises of plausible defendants for evidence that they may destroy, as this Rule talks about the detention, preservation and inspection of subject-matter of suit. This Rule also allows the Court to authorise any person to enter upon the land of another for such aforementioned purpose.

Thus, while it is suffice to say that there seems to be a valid legal basis for an Ashok Kumar Order in India, it is also true that country's courts have not been uniform in applying this order.

In the year 2010, in a case of the Delhi High Court, ⁹ it was mentioned that the Courts must attempt to pass clear and specific injunctions as there must be no negative implication of a vague injunction. While this was a step in the right direction, immediately after this judgement, the Delhi High Court itself went on to pass several vague John Doe orders, as if in a deliberate attempt to ignore its previous warning.

Instances of over-blocking as a result of John Doe Orders are many. For instance, in the case of Star India Pvt. Ltd. &Anr. v. HaneethUjwal&Ors., ¹⁰ a blanket ban was issued on several websites. Not only this, but the Court went to the extent of saying that those websites that may be subsequently notified by the plaintiffs, within three days from the date of receipt of the copy of the order should also be sought to be blocked by the defendant via an Internet Service Provider ("ISP"). Thus, this Order ultimately gives free reign to the plaintiff to block content, without review by the Court itself, which may result in the violation of substantive rights of individuals.

The condition of granting unfettered John Doe orders only seemed to be getting worse, until in July 2016, when a paradigm shift came about in a case, ¹¹ where an application for an Ashok Kumar order to prevent infringement of the cinematographic film Dishoom was rejected by the High Court of Bombay. ¹² It was also firmly stated in the ruling that copyright protection for the plaintiffs is important, but it cannot be at the cost of other public law rights and thus there must be a balance created to protect the Constitutional rights and freedoms of the ISPs as well.

The Way Forward:

In recent judgements, the SC has held that the access to the internet is a fundamental right. ¹³Going back to the observation by Justice G.S. Patel of Bombay High Court, there seems to be a quagmire between the two. The problem arises because a person is allowed to view pirated content and according to the SC judgements, right to internet access is a fundamental right, hence the Court cannot arbitrarily take away this right through John Doe orders, by blocking whole websites. The orders need to be looked into with the view of preserving the right to internet access and avoiding blocking of innocuous content, whilst the pirated and the infringing content is being blocked

The Courts must also acknowledge that the legislatiouns regarding Copyright violation have evolved since the time Ashok Kumar Orders first started being used in India and that such harsh John Doe orders may no longer be necessary to prevent cases of Copyright violation. For instance, the 2012 amendment of the Copyright Act introduced certain solutions by way of section 55A ¹⁴, which makes circumvention of a technological protection measure ("TPM") with the intention to infringe upon the owner's rights, a criminal offence. ¹⁵

A TPM is basically any effective device that controls access to a work and whose use is authorized by the copyright owner. Thus, such an amendment to the Copyright Act would effectively tackle the problem mentioned in the case of Star India v SujitJha and Ors, ¹⁶whereby the Court was worried about the circumventing of the blocking of URLs by simply discovering a new URL for the same content. This now, also leaves the Court with no reason to block full websites instead of URLs alone.

Finally, the author would suggest the following measures in order to improve the system of John Doe Jurisprudence as a whole, thus paving the way for a brighter future of the same:

Firstly, all those websites/URLs that are recommended for censure by the Plaintiff must be analysed in depth in order to prevent any wrongful blocking of content. Further, those injunctions for the blocking of entire websites ought not to be granted unless it is demonstrated that the entirety of the website contains only illicit material.

In order to make sure that the previous suggestion may be effectively followed it is essential to reduce the burden on Courts by creating more number of cyber cells along with separate tribunals or specialized dispute resolution mechanisms for tackling media and entertainment related piracy disputes, as such measures will help in handling online piracy more effectively and in a timely manner.

Finally, but most importantly, the lens through which the courts view the problem of piracy in itself needs to be changed. Courts must also constantly strive to address this in their judgements instead of treating the viewer of pirated materials as separate from the crime of piracy.

While traditionally, John Doe orders have focused on blocking of URLs/websites, it is the authors' view that this system is simply a temporary cure and does not seem to be addressing the root-cause of piracy itself- i.e., the mind-set of those who view pirated content. Oftentimes, people do not understand fully, the ill-effects of piracy and infringe Copyright without thinking twice about the consequences of their actions. To ensure that there is long-lasting protection to intellectual property,the authors' view is that after an Ashok Kumar order has been passed, there should be an investigation as to the identity of the perpetrators and they should face pecuniary penalties for deterrent purposes.

The question to be asked today is not regarding the merits of the John Doe order itself, but is with regards to the application and the enforcement of the same in India. In the future, the way in which these Orders are granted must be amended in order to ensure that there is no over-blocking, but at the same time, the rights of those whose IP has been infringed must also be protected. The idea of looking at the viewer as an innocent bystander also has to be revised.

Footnotes

1SankhayanGhosh, High Court Says Viewing Pirated Films Isn't Illegal,  LIVE MINT, (Sep. 7, 2016, 05:11 PM),https://www.livemint.com/Leisure/L7NjKAoe7L3MqXe6XpQ5FK/High-Court-says-viewing-pirated-films-isnt-illegal.html

2 Quentin Cregan, Roving Injunctions and John Doe Orders Against Unidentifiable Defendants In IP Infringement Proceedings, J. Intell. Prop. L. &Pract. 623, 631 (2011)

3Taj Television v. RajanMandal, [2002] 6 WLUK 202.

4 (2016) 229 DLT 455.

5Order XXXIX, Rule 1, Code of Civil Procedure, 1908, No. 5 of 1908, Acts of Parliament (India).

6§ 151, Code of Civil Procedure, No. 5 of 1908, 1908, Acts of Parliament (India).

7SaloneDukle, John Doe Orders for Online Piracy: Examining the Judicial Trend in India, HNLU Student Bar Journal, 47, 50 (2016).

8 Order XXXIX, Rule 7, Code of Civil Procedure, 1908, No. 5 of 1908, Acts of Parliament (India).

9Indian Performing Right Society v. BadalDharChowdhry&Ors., CS(OS) 1014/2004.

10Star India Pvt. Ltd. &Anr. v. HaneethUjwal&Ors., CS(OS) No.2243 of 2014

11Eros International Media Limited v. Bharat Sanchar Nigam Limited, NMSL 2147 of 2016 in Suit (L) No. 755 of 2016.

12AadyaChawla, John Doe Orders: Prevention of Copyright Infringement of Cinematograph Films, 2 ILI Law Review, 64, 70 (2017).

13AnuradhaBhasin v. Union of India, 2019 SCC OnLine SC 1727; GhulamNabi Azad v. Union of India, 2019 SCC OnLine SC 1726.

14 The Copyright Act, 2012 (Act 27 of 2012), s. 55A.

15AadyaChawla, John Doe Orders: Prevention of Copyright Infringement of Cinematograph Films, 2 ILI Law Review, 64, 71 (2017).

16Star India v. SujitJha&Ors.,CS(OS) No.3702 of 2014.

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