Delhi High Court: In a case filed by Neetu Singh (‘plaintiff 1') being aggrieved as her work which is circulated by Telegram (‘defendant 1'), is continuously being infringed due to mushrooming of channels on the platform under challenge and seeking disclosure of details of the defaulters, Prathiba Singh J. remarked that ‘take down' or blocking orders are merely token relief for the interregnum and without monetary relief of damages, coupled with mushrooming of infringing platforms, the copyright owner's spirit to create and write may be considerably negated. The Court further directed Telegram to disclose the details of the channels/devices used in disseminating the infringing content along with their mobile numbers, IP addresses, email addresses, etc.,
Factual Background: Plaintiff 1 is a renowned author of books which are designed to train students aspiring to take various competitive examinations including the examinations of Staff Selection Commission (SSC), Bank Probationary Officer (PO), CDS, NDA, etc. The allegation in the suit is that the Plaintiffs' copyrighted works including course material, online lectures and other works are being disseminated unauthorizedly through various Telegram channels. Even after repeated notices being sent to Telegram, some channels were taken down, but some infringing channels continue to exist and new channels come up almost on a daily basis, with different names. The present suit was filed vide an application seeking discovery of the details of the people who are operating these channels.
Issue: Whether Telegram can be directed to disclose the identity of the creators of the infringing channels which unauthorizedly and illegally disseminate the Plaintiffs' copyrighted works?
Submissions: Telegram has opposed the grant of relief stating that it cannot share the data relating to the creators or users of the channels, as the said data is stored in Telegram's data servers in Singapore and the law of Singapore prohibits such disclosure. Moreover, as per Telegram, it being an intermediary under the IT Act, none of the pre-conditions which permit the intermediary to disclose the identity of the users, as per the IT Guidelines, are satisfied.
Observations: The Court noted that the Telegram stores its data on a cloud server. It is claimed that the same is in an encrypted form. The personal data is claimed to be protected under Telegram's Privacy Policy and its Terms of Service.
Whether the act amounts to copyright infringement?
The activity of circulating copyrighted materials on Telegram channels would be “communication to the public” as provided for in Section 2(ff) of the Copyright Act, 1957. The copies of the Plaintiffs' works, which are circulated on the Telegram channels, would constitute “infringing copy” of the Plaintiffs' works as defined under Section 2(m) of the Copyright Act, 1957. Thus, any reproduction of such literary work would constitute an infringing copy, even if the same is in electronic form.
The Court further noted that the remedies available for a copyright owner under the Copyright Act are both civil and criminal in nature. Thus, the significance of the protection and enforcement of such rights cannot be diminished, merely due to the growth of technology, which has made infringers easy to hide and conceal their illegal activities. The propensity of infringers to conceal and hide is the very reason due to which the provisions of law are widely worded.
The Court opined that the grant of injunction per se in the absence of commensurate damages or monetary deterrents, would be a toothless relief. Unless and until the identity of the operators of these channels who are ex facie infringers of the Plaintiffs' copyright are disclosed, the Plaintiffs are rendered without remedy for recovering damages.
The Court explained elaborate factors regarding Indian courts to be the natural forum of jurisdiction in this dispute. For the sake of brevity, a few are listed below
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The copyrighted material is related to Indian examination materials, and thus, in all likelihood the source of the infringing channels being in India, the accounts of such infringing channels would have been created from India and the data of such accounts would have been uploaded from India;
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Considering that the Plaintiffs' work relates to competitive examinations in India, it is highly possible that the devices circulating the infringing content and the persons running the infringing platforms and channels are located in India.
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Cloud computing being the norm these days, even if the data is stored in a physical structure outside India, the same is accessible to the company in other jurisdictions including from India.
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Therefore, the data is accessible across different jurisdictions, including India and the conventional concepts of territoriality no longer exist.
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The High Courts are vested with inherent powers to enable themselves to maintain their dignity, and secure obedience to their process and rules, i.e., and to give effective relief.
Thus, the courts in India would be perfectly justified in directing Telegram, which runs its massive operations in India to adhere to Indian law and adhere to orders passed by Indian Courts for disclosure of relevant information relating to infringers.
In so far as the law in Singapore is concerned, the provisions of Section 17 and First Schedule, Part III under Legitimate Interests in Personal Data Protection Act, 2012 (Singapore), specifically recognize violations of law, as being an exception to privacy, when details of the originators of the infringing data can be revealed. Moreover, copyrighted works are entitled to automatic protection in all WTO countries under the Berne Convention for the Protection of Literary and Artistic Works, 1886 read with the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), 1995.
Thus, in view of this position of the law regarding copyright along with compliance with local law, i.e., PDPA, Telegram cannot excuse itself from non-furnishing of information relating to the channels through which dissemination of infringing content takes place.
Coming to Indian laws, even according to the broad principles of Order XI Civil Procedure Code, the Court can direct disclosure of documents and information relating to ‘any matter in question in a suit'. Placing reliance on K.S. Puttaswamy v Union of India (2018) 1 SCC 809, the Court clarified that if there is a law in existence to justify the disclosure of information and there is a need for the disclosure considering the nature of encroachment of the right, then, privacy cannot be a ground to justify non-disclosure, so long as the same is not disproportionate.
Thus, the Court concluded that Indian Courts are competent to decide issues relating to infringement of copyright and the mere fact that Telegram is operating a messaging service in India which chooses not to locate its servers in India cannot divest the Indian Courts from dealing with copyright disputes or divest copyright owners from availing their remedies in Indian Courts.
The Court remarked “In the present age of cloud computing and diminishing national boundaries in data storage, conventional concepts of territoriality cannot be strictly applied. The dynamic evolution of law is essential to ensure appropriate remedies in case of violation of copyright and other IP laws.”
The Court thus directed Telegram to disclose the details of the channels/devices used in disseminating the infringing content, mobile numbers, IP addresses, email addresses, etc., used to upload the infringing material and communicate the same, as per the list of channels filed along with the present application.
[Neetu Singh v. Telegram FZ LLC, CS (Comm) 282 of 2020, decided on 30-08-2022]
Advocates who appeared in this case :
Ms. Rajeshwari H. & Ms. Swapnil Advocates, for the Plaintiff;
Mr. Amit Sibal, Sr. Adv. with Ms. Anushka Sharda, Mr. Madhav Khosla, Ms. Smriti Nair, Mr. Vinay Tripathi, Mr. Madhav Chitale, Mr. Aishwary Vikram and Mr. Saksham Dhingra, Advocates, for the Telegram.
*Arunima Bose, Editorial Assistant has put this report together.