The internet, informally known as the net, is a global network of computers and other electronic devices used to access information, communicate with anyone in the world, and do much more. The internet has revolutionized the entire world. From the way we think, conduct day-to-day activities, and communicate, to how we entertain ourselves and even shopping, banking, and personal relationships are now governed by the internet.
The internet has become an integral part of our lives, thanks to its easy availability and accessibility. Not many years back, the internet was available in India at certain designated places (also known as cyber cafes) and was not only erratic but also expensive. Over the past few years, with the introduction of reasonably priced smartphones, tablets, and laptops along with affordable plans by service providers, the internet has percolated to more or less every household as explained in the table below: [image: cid:image002.png@01D6011C.36858380]
- Source: https://dot.gov.in/reportsstatistics/telecom-statistics-india-2019
However, convenience comes at a cost! One of the unintended consequences of the internet has been its misuse for illegal activities. The ease of information has resulted in crimes being committed both offline and online. One such crime is online piracy.
Online Piracy and its impact
Online piracy is the downloading or distributing of copyrighted content, such as movies or music, digitally without permission from the owner. In this technology driven era, very few of us can escape from online piracy. Intentionally or unintentionally, most of us aid the online piracy market in one way or the other. It is possibly the most committed crime today because most of us do not view it as a problem.
Downloading/streaming/hosting or even viewing copyrighted content without the permission from the owner is no less than crimes committed offline such as stealing, trespassing or committing breach of trust. The increase in instances of online piracy is directly proportional to the increase in the number of internet users. While most of us are aware of crimes committed offline, lack of knowledge and ignorance is the root cause of online piracy.
In 2018, there were over 190 billion visits to pirate sites, with India taking the third position.[footnoteRef:1] Visits per country are represented in the graph below: [1: https://dataprot.net/statistics/piracy-statistics/ Source: https://dataprot.net/statistics/piracy-statistics/
Online piracy purports to be a victimless crime as we do not face any repercussion or witness the harm being inflicted by downloading such pirated content. In reality, piracy not only effects the right holder but also every single person directly or indirectly and the economy at large. A lot of skill, labour and judgment is involved in creating a work and when the same is pirated and made illegally available to public neither can the right holder monetize his investment nor does it assist the economy in any manner. According to an industry study, piracy causes the Indian film industry alone an annual financial loss of around US$ 1 billion along with 600,000 jobs.[footnoteRef:2] [2: https://link.springer.com/chapter/10.1007/978-981-13-8102-7_8]
Given the grave impact digital piracy has on the interests and rights of the stakeholder, it is only justified to deal with digital crimes as any other crime taking place in the physical world.
In November 2019, the Walt Disney Company entered the world of streaming by launching their own platform for providing original as well as critically acclaimed and commercially successful shows and movies by the biggest mass media and entertainment conglomerate in the world. One of the biggest successes that came early on after the launch of Disney’s streaming platform was a spin-off of the Star Wars Saga, called The Mandalorian. The show gained huge popularity and media buzz within hours of its release on the streaming platform due to the presence of a popular character “Baby Yoda” amongst the fans of the show. However, with the success of the show, piracy caught speed and within a mere span of two months of release, The Mandalorian became one of the most pirated show of 2019.
This is an example that technology is advancing at a fast pace and with technology, is piracy. Thus, it is imperative to have laws and regulations to keep pace with the new forms of piracy resulting from the advancing technology.
For quite some time now, mass media conglomerates and rights owners have continuously tried and failed to stop the rise of piracy and distribution of pirated content around the world. Website blocking has emerged as one of the most successful, cost effective and proportionate means to address this issue. However, one of the biggest problems faced was to ensure a continuous implementation of the website blocking orders orders secured against the online piracy websites. As soon as one website was taken down by the operators after securing injunction from the Courts, multiple mirror websites would emerge containing the same infringing content.
Thus, merely granting injunction against a particular domain name or website shall not serve the purpose since as soon as the injunction is granted there exists a likelihood that the infringer commences operating under a different domain name. In order to ensure the effectiveness of the injunction, it became pertinent to come up with a remedy that supplements the main injunction. Hence, dynamic injunctions were introduced which obliterates the need to report each and every instance of injunction and is limited to such mirror websites. Comment by Jessica Kaur Sahni: Sir, should it be infringement instead of injunction?
Tabulated below is a bird’s eye view on the regulations/ legislations applicable for website blocking in various countries:
- Act/ Statute
- Section 115A of the Copyright Act
Allows rightsholders to apply to the Federal Court for an injunction directing ISPs to block access to websites that infringe copyright content.
- Copyright Act, Section 193A, DDA, DDB, and DDC
Singapore amended its Copyright Act to enable Courts to make an order that would require ISPs whose services have been or are being used to access an online location to infringe copyright of rightholders, to block access to a “flagrantly infringing online location”; thereby, giving rightholders a more effective tool to disable access to pirate websites Section 193DDA gives the High Court the power to disable access to flagrantly infringing online location.. In a recent judgement in Disney Enterprises, Inc. and others v. M1 Ltd and Ors [footnoteRef:3], the High Court supported the issuing of the dynamic injunction on the basis that it was ‘necessary to ensure that the main injunction operated effectively to reduce further harm to the right holders, especially in light of the ‘ease and speed at which circumventive measures may be taken by owners and operators of the blatantly infringing online locations to evade the main injunction’. The judge noted that a dynamic injunction ‘provides a practical means of ensuring the continued effectiveness of the original injunction since it provides an expedited process for the blocking of additional domain names which resolve to the same infringing websites’. [3:  SGHC 206]
- Copyright, Designs and Patents Act, Section 97A
Grants power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.
- Article L.336-2 of the French Intellectual Property Code.
Gives power to a regional first instance criminal Court, to order any measure to prevent an infringement of copyright or related rights against any person that can contribute to remedying the situation, on receiving an application for such order by the holders of the rights in the copyrighted works and subject-matters the USA.
The Digital Millennium Copyright Act (DMCA)
The Digital Millennium Copyright Act (DMCA) is a U.S. law against domestic infringement. The DMCA includes two particularly relevant provisions- The Digital Rights Management (DRM) encryption protection provision makes it illegal to remove DRM technology meant to prevent infringers from copying their works. This also prevents legitimate copying by non-infringers. The other important provision in the DMCA is the Notice-and-Take-Down Provision, which allows copyright owners to give notice to a host website and requires the site to take down or block access to the infringing work. These laws strictly prevent most copying of technological works within the United States. Section 512 of the DMCA provides a streamlined method for copyright owners to have infringing material taken down without first having to go to court.[footnoteRef:4] [4: COMBATING MEDIA PIRACY BY FOREIGN ROGUE WEBSITES WITHOUT RATTLING THE INTERNET, 67 Consumer Fin. L.Q. Rep. 420]
Position in India
The High Court of Delhi in its landmark judgment in UTV Software Communication Ltd. vs. 1337X.TO and Ors [CS(COMM) 724/2017] set a precedent by issuing India’s first-ever ‘dynamic injunction’ against multiple websites found to be infringing upon the rights of copyright holders. UTV filed as many as eight lawsuits against various defendants including identifiable websites; unknown parties such as registrants of websites, uploaders, creators of redirect/mirror/alphanumeric websites; ISPs; as well as Government Department/Agency (‘defendant’). The reliefs sought included permanent injunction; order directing ISPs to block access to the websites of the defendant; and order directing Registrar of the defendant-websites to disclose the details of the registrants.
UTV contended that the defendant websites hosted as well as provided access to their copyrighted works, in a manner that infringed their statutory rights under the (Indian) Copyright Act, which was supported by access to samples provided by UTV.
The court made a significant contribution to the copyright infringement jurisprudence by introducing the remedy of ‘dynamic injunction’, whereby right-holders need not go through the ‘cumbersome’ process of identifying and obtaining judicial order in order to issue blocking orders against all infringing ISPs. It was held that UTV is allowed to approach the Joint Registrar of the High Court to have the injunction extended against any similar ‘mirror/redirect/alphanumeric’ website which contains the same content as the original website.
The court stated that one of the key issues around digital piracy is the importance of distinguishing between accidental and intentional piracy. The court summarized that some of the factors to be considered for determining whether the website complained of is a FIOL (Flagrantly Infringing Online Locations)/Rogue Website are:
- whether the primary purpose of the website is to commit or facilitate copyright infringement;
- the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement;
- whether the detail of the registrant is masked and no personal or traceable detail is available either of the Registrant or of the user.
- whether there is silence or inaction by such website after receipt of take down notices pertaining to copyright infringement.
- whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;
- whether the owner or operator of the online location demonstrates a disregard for copyright generally;
- whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
- whether the website contains guides or instructions to circumvent measures, or any order of any court, that disables access to the website on the ground of or related to copyright infringement; and
- the volume of traffic at or frequency of access to the website;
- any other relevant matter.
The court clarified that the aforementioned factors are illustrative and not exhaustive and do not apply to intermediaries as they are governed by the (Indian) Information Technology Act, 2002 having statutory immunity and function in wholly different manner.
The court was also of the opinion that 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!
A question that arose for consideration was how courts should deal with ‘hydra headed websites’, which after being blocked, multiply and resurface as alphanumeric or mirror websites. 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 of the Code of Civil Procedure (‘CPC’) permitted UTV to implead the mirror/redirect/alphanumeric websites under Order 1 Rule 10 as these websites provide access to the same content/websites which were the subject of the main injunction.
The court stated that as per Order 1 Rule 10 of CPC, UTV shall file an affidavit confirming that the newly impleaded website is a mirror/redirect/alphanumeric website with sufficient supporting evidence. Such application shall be listed before the Joint Registrar, who on being satisfied with the material placed on record, shall issue directions to the ISPs to disable access in India to such mirror/redirect/alphanumeric websites.
The Court also offered its suggestion that MEITY/DOT (Ministry of Electronics & Information Technology / Department of Telecommunication) 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.
It would be safe to say that the judgement is ground breaking and is indicative that the judiciary is adept and exploring measures to deal with the new hurdles imposed by technology. In the absence of any prescribed statute, the judgment has laid down the concept of dynamic injunctions in the Indian jurisprudence as an efficient tool to curb online piracy.
The court has laid the foundation for dynamic injunctions to be granted wherein right-holders do not need to go through the ‘cumbersome’ process of judicial order in order to issue blocking orders to ISPs when mirror websites become available.
The court has endeavoured to maintain a balance in approach and policies to avoid unnecessary cost or impact on other party’s rights and interests. Consequently, the onus is put on the right holder to prove to the satisfaction of the court that each website they want to block is primarily facilitating wide spread copyright infringement. Expecting a plaintiff to identify each and every individual infringing URL would not be proportionate or practical as it would require the plaintiff to expend considerable effort and cost in notifying long lists of URLs to ISPs on a daily basis. Having said that, it was noted that while passing a website blocking injunction order, courts would have to consider whether disabling access to the online location is in public interest, its proportionate response and the impact on any person or class of persons likely to be affected by the grant of injunction. The order granted by the Court must be effective, proportionate and dissuasive, but not lead to creating barriers to legitimate trade.
The judgment signifies that combating online piracy is a multi-faceted approach that cannot be solved only by judicial intervention but action by other bodies shall also be required.
As they say, ‘well begun is half done’, dynamic injunctions can be a reasonable and efficient tool in curbing online piracy and encouraging use of copyrighted content through legal means. Its enforceability, however, should be transparent, cautious, efficient, accountable, and cost effective so that misuse and overreach be prevented.