"JOHN DOE ORDER AND COPYRIGHT INFRINGEMENT CASES IN INDIA: A STUDY" By Law Padho

  
This article is written by  HAOVANGDONGLIEN KIPGEN,  a student at   Symbiosis Law School, Hyderabad, where he discusses about "JOHN DOE ORDER AND COPYRIGHT INFRINGEMENT CASES IN INDIA". 

TABLE OF CONTENTS

SL NO.	CONTENT	PAGE
1	INTRODUCTION	1
2	CHAPTER 1: John Doe Orders in India 1.1   Paradigm shift 1.2   Copyright and film industry of India 1.3   John Doe Orders and Code of Civil Procedure	3
3	CHAPTER 2: Remodeling the parameters of John Doe Orders 2.1 Checking (CVMs) 2.2 Content Surveillance	5
4	CHAPTER 3: CONCLUSION AND SUGGESTION	7
5	BIBLIOGRAPHY	10

INTRODUCTION

In the present age, the internet is present all over the world and it has become a part of our everyday life. This helps people to grow as an individual or as a whole by providing several opportunities. But this comes at a high price because, it has deeply invaded the privacy of its users. The introduction of internet has greatly changed the conventional copyright system. Online piracy has become one of the most issues over the world. There is need to identify a wrong doer so as to get remedy from him. Therefore, “specificity” has played a big part for an individual to win any case in front of a court. So now the question is, what will happen to a victim if he cannot identify the wrong doer? Does this prevent the wrong doer a punishment from his crimes? A case needs to have some sort of identification for both the victims and the wrong doers and when there are such situations where the wrong doer cannot be identified, then comes in the John Doe Order.

The word “John Doe” originated from England at the time of King Edward III. The main purpose of John Doe is to address defendants who cannot be identified. It is a remedy against possible infringement to an individual for the purpose of protecting the intellectual property like movies, songs etc. In India, this order is called Ashok Kumar Order. The very concept of this order has been changing with the change in time to keep up with the unexpected complexities. The concept of intellectual property is also recognized in India now with more than one legislations like Copyrights Act, 1957 and the Patent Act, 1970. These legislations are implemented to protect the intellectual property of an individual but however, these two legislations alone are not enough to cope with the existing issues.

Anonymity has played a great role in terms of internet users. It hides certain information like address etc. and because of this the issue of piracy is worsen. There has been a massive growth of piracy in recent years and has escalated several numbers of issue. The legislation and the judiciary also developed a keen interest regarding this issue. Internet has massively improved our life in every field. It helped in technological advancement, also helps in daily life at home too. It provided certain opportunity to numerous people. However, like the two face of a coin, it has its negative sides too. The negative side is mostly concerned with the privacy of an individual. The traditional existing copyright regime has been drastically transformed by the Internet in a negative way.

In India, this order was passed for the first time by the High Court of Delhi, in Tej Television V Rajan Mandal[1]. The Court passed an injunction which enables the plaintiff to search for the necessary materials against defendants who cannot be identified. This order was regarded as the introduction of this order in our country, India. And since then, several other courts have also started to use this order wherever and whenever necessary. Similar concept was applied in the case of ESPN Software v Tudu Enterprises[2]. This order is not limited to media industry alone but also other industries. This can be seen in the case of Luxottica Group Limited v Mr Munny[3].  In this case, the order was passed to an individual who was manufactures and sold fake glasses using the famous trademark “Ray Ban” because there was no authorization from the trademark owners.

In India, John Doe Order is issued in  MOVIES, BOOKS, SPORTS EVENTS. With John Doe orders getting popular and common these days, there arises some question like if several producers want john doe orders, how will the judiciary cope with that? And regarding the availability of remedies for the innocent defendant against john doe orders.

CHAPTER 1: JOHN DOE ORDERS IN INDIA

The John Doe Jurisprudence has been brought from the case laws in America and is commonly found in use among different countries such as Canada, Australia etc. In India, it was first used in the case of Taj Television v. Rajan Mandan[4]. This case was in relation to the FIFA world cup 2002. The plaintiff of this case was the owner of broadcasting rights for the match. Several cable- operators were infringing the copyright of the plaintiff by broadcasting the matches of the world cup without getting any type of authorization or permission from the plaintiff. Therefore, the plaintiff wants an injunction order against these cable- operators. One of the contentions of the plaintiff was regarding the approaching final match of the world cup. The final of the world cup is watched by billions of people around the world therefore, there is a great risk of cable operators to infringe the copyrights of the plaintiff again and since there is no proper structure in the industry, the proof of infringement can easily be removed. This will cause the plaintiff to suffer great loss. The courts grant the injunction to serve justice.

After this case, the Indian courts were more open minded towards granting John Doe Orders and has been giving out numerous orders. Then comes the case of ESPN Software[5]. In this case, the court held that India shares a common system with countries such as U.S, Canada etc., where John Doe Orders are common. Therefore, Indian courts have the power within them to pass John Doe Orders. This order is suitable for cases concerning with movie piracy because previous cases of movie piracy were physical selling of pirated CDs to people but in recent years, it has changed to online piracy where people can download the movie. Several internet service providers were also ordered to block certain websites where pirated movies can be download by people.

2.1 PARADIGM SHIFT

Few years after the first introduction of John Doe jurisprudence in India, several courts have started granting the orders excessively and without any proper investigation. Between January to December 2014, it has been found that more than 2000 were being block by the order of the court. This action of the court has been criticized by several individuals. This is because most of the ISPs were legitimate and does not contain anything pirated. Their appeals to the courts were ignored. However, this seems to change when the Mumbai High court rejected a plea for passing John Doe Orders in 2016. This application was made regarding the movie “Dishoom” to prevent any pirated downloading of the movie or selling of pirated CDs. The court rejected the application on the basis that a website cannot be completely blocked if there is no evidence which suggest that the website contain only pirated movies. The judge is of the opinion that copyright protection does not overshadow the public laws. This is important because there are many legitimate ISPs which gets blocked because of other ISPs which contains pirated content in their website. It is also equally important to protect innocent Internet service providers. The judge further gives safeguards and rules to be followed concerning investigation for copyright infringement. One of those rules is, when any type of extensive investigation is to be done concerning any blocking of ISPs, the courts must not blindly agree but instead conduct a cautious examination of the information provided by the plaintiff. This is to prevent any mistake such as blocking of any legitimate ISFs.

2.2 COPY RIGHT AND FILM INDUSTRY OF INDIA

According to reports made by the government of India[6], “The Indian film industry is the largest producer of feature films”. This is because there are over 500 films in different languages such as Hindi, Kannada etc. annually. The Indian film industry alone is to be worth around 2 billion USD. However, The Indian film industry falls victim to online piracy and has been suffering massively in recent years. This is because there has been great increase in selling of CDs which are pirated. Another reason is the pirated downloading of movies through platform provided online by individuals. When we look at the statistics provided by researchers, India is among the top 10 countries which falls under the victim of online piracy. The people of India are to be blame for this because they ranked the 4^th highest when it comes to downloading pirated movies. Due to the above reasons, the government of India has provided different legal protection. Besides this, the industry has also come together against piracy by forming Alliance Against Copyright Theft (AACT). This alliance performed various numbers of raids to protection their work.

 2.3 JOHN DOE ORDERS AND CODE OF CIVIL PROCEDURE.

John Doe Orders comes under Order 39, rule 1 and 2 and section 151 of the code of civil procedure (CPC). In accordance with the Code of Civil Procedure, there arises two issues. the first issue is regarding order 7 of CPC. Order 7 of CPC makes it mandatory upon the plaintiff to gives detail information of the defendant with the cause of action and if the plaintiff does not meet such requirement, then the court will reject the plaint. However, since there is no defendant in john doe orders, it completely ignore order 7 of CPC.

The second issue which arises is the mis interpretation of inherent powers of courts. John Doe Orders are passed in absent of the defendant and without their knowledge. The defendant will only be aware only after the court’s order. When it comes to granting an ex parte order, The Code of Civil procedure, under order 9, rule 6, makes it mandatory that the absence of the defendant must be deliberate meaning that the defendant choose to absent even after having detailed information about the situation. However, in John Doe Orders, the absence of the defendant is not deliberate meaning the defendant has zero knowledge regarding the passing of such orders.

 CHAPTER 2: REMODELING THE PARAMETERS OF JOHN DOE ORDERS

John Doe Orders are not an issue if there is no possibility of affecting the rights of an innocent defendant. However, this does not seem to be the case because John Doe orders are being passed by several courts without any proper investigation and hence leading to several innocent defendant being affected. If the misuse of this order persists, then it will lead to two main issue such as Blocking of websites or ISPs without any proper checking, affecting innocent individuals (alleged defendant Protecting the copyrights of one while ignoring the rights of others is not justice. Hence, to maintain certain balance, there is a need to remodel or improve the present mechanism. There seem to be a way, which will be deal with below.

2.1 CHECKING (CVM)

One main issue dealing with the jurisprudence of John Doe is that there is no proper mechanism for checking or verifying the information provided by the plaintiff such as the website which the plaintiff provides for the purpose of blocking. Exhaustive and cautious verification of websites is required. Therefore, there is requirement for adopting certain methods like Checking and Verification Method also known as CVM. In CVM, all the websites contain in the list provided by the plaintiff to be blocked are being checked and verified by an unbiased party for the purpose of fairness. After checking is done, CVM will give those websites with pirated content to the ISPs for blocking. Even after the verification by CVM, there is no guaranteed of not affecting innocent defendant. Therefore, if there is a case of affecting innocent party, the plaintiff and unbiased party will provide compensation to the affected party. This concept can be seen in the case of Ramrameshwari devi v. Nirmala devi[7], where the court held that “in certain cases where the court grant injunction order and afterwards the suits is dismissed, it is upon the plaintiff to pay damages or compensate the parties involved”. The purpose of this is to prevent any plaintiff without actual proof and for the plaintiff to come with preparation and surety.

Besides, a variety of check would likewise be put on the delegates who are the general reason for abridgement of the sites or URL. There ought to be appropriate rules made in such manner which are important to be trailed by the mediator to abridge the sites or explicit URLs. These rules may incorporate the inconvenience of risk on the middle people if any honest site gets hindered. This will actuate the ISPs to re-check the rundown provided by CVM to keep away from the obligation. Consequently, such a three- sided confirmation technique would make a hearty registration instrument which would be useful in ensuring the privileges of outsider blameless sites.

Moreover, a period breaking point can be forced inside which the whole cycle must be finished which would pre-empt the probability of the contortion of proof. Behind this component, the ISPs would check the sites after the confirmation by CVM and the offended party. Subsequently, they are at the last phase of confirmation and are more averse to be at risk. Notwithstanding, it does not assist them with getting away from the responsibility.

2.2 CONTENT SURVEILLANCE

John Doe Orders is a tool for the protection of an individual’s copyright. Its purpose is to prevent any infringement in the work of the plaintiff by the defendant. A blocked chain method of distributing the movie is being recommended. This will not only transform the industry but also solidify its copyright protection.

A Blockchain is a timestamped arrangement of an unchanging record of information that is controlled not only by one unit however by a heap of computers. Information is put away in blocks, which have an elite code and is produced based on more established squares and a timestamp. Curiously, when the new information is put away or recorded, a square is associated with the chain of more seasoned squares. Under this system, the maker would send the private Blockchain innovation, for the dispersal of his work and issue a private key to the real client. This digitized conveyance would empower the copyright holder to allow a confined use to them. Any change made across the organization (counting the key which approves the authenticity of the exchange is recorded. Moreover, if the substance is encroached from any source, the family can be followed back to that source by the first proprietor to discover the culprit.

This will protect the work of the producer. But the producer will also be able to see certain information like the identity of individuals who tried to infringe his rights.

CONCLUSION AND SUGGESTIONS

In the beginning, the Indian courts were oblivious to the jurisprudence of John Doe Orders. But in recent years, the Indian Judicial system has been liberal in granting this order to the point where it has been started to mis-used and the rights of innocent defendant are being affected. However, in recent times, the issue with this order has been dealt with. John Doe Order is the perfect solution for online piracy because the concept of copyright infringement or piracy has changed from physically selling pirated CDs to downloading the movie through online platforms.

With the cases of piracy increasing daily and there are no proper mechanism or frameworks to deal with this issue, the courts have a huge burden upon their shoulders. Therefore, it is very important to establish cyber agencies with different tribunals which would be specifically designed to deal with piracy issue. This will not only improve the situations but also relive the burden placed upon the court.

Written By  - Haovangdonglien Kipgen,

5th Year, BA. LL.B , Symbiosis Law School, Hyderabad. 

REFERENCE 

1) Ramrameshwari Devi & Ors. v. Nirmala Devi, (2011) 8 SCC 249

2) I.A NO. 5628/2002 in CS (OS) 1072 of 2002.

3) Supra note 2.

4)  Report on Study on Copyright Piracy in India, GOI. 

5) “[2003] FSR 22.”

6) “CS (OS) 384/2011.”

7) “CS (OS) 1846/2009.”