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>.