the rules of the game

Clichés though at the cost of nuance, are often accurate in their generality. In law no other cliché is truer than history repeating itself. Legal disputes inevitable rely on the predictability of past decisions being beautifully captured in the Latin phrase Stare Decisis. Quite simply translating to stand by things decided. However if the past chains and results in abuse, legal doctrine should evolve and depart on the basis of such experience itself. Recent experience and abuse of John Doe orders suggests that there is an urgent need to depart from the precedent which created it.

The first instance of a John Doe order being issued was with the launch of the Ten Sports channel in a press conference on March 25, 2002 which would commence telecast in India in a month with the broadcast of the 2002 FIFA World Cup. The World Cup which would be hosted in Japan and Korea was broadcast under exclusive rights which were won by Ten Sports on considerable expense. Eager to protect it and fearing the piracy of the signals it approached the Delhi High Court. It alleged that it anticipated piracy of its signal by Cable Operators.

The High Court of Delhi waived off the requirement for Ten Sports to identify each such specific infringement and granted them an anticipatory interim injunction. This came to be termed as a John Doe order. Such an injunction would be valid and applicable to any potential infringement which would occur and not be limited to specific defendants pleaded in advance. At the time this sounded like a reasonable exercise of judicial discretion however in time the procedural burden which was eased by Ten Sports has been abused by other plaintiffs.

Last month as the 2014 FIFA World Cup kicked off in Brazil, another broadcaster approached the Delhi High Court praying for a John Doe Injunction. Even though the rules of football stayed the same, it seemed the rules in Court had become relaxed. It allowed an aggressive style of play, where the Plaintiff, Sony was granted a wide ranging John Doe injunction without any verification. The Order which was aimed at curbing piracy through video sharing websites at first instance blocked 472 websites, including Google Documents. Google Documents which was a document sharing platform was not even technically capable of streaming a video stream. It was clear that the Plaintiff’s had rushed to Court without proper verification and obtained an interim order necessary diligence. What is worse, is that acting on the representations of the Plaintiff, the Court was mistaken into issuing such an Order blocking the websites. Though this Order has been limited subsequently to be 219 websites, it is debatable whether it has been corrected.

During this period of 12 years from when the first John Doe Order was issued, the legislature showing unexpected alacrity has amended the Copyright Act to reflect the challenges faced by content owners due to web piracy. In 2012 by way of an amendment Section 52(1)© was amended to include protection for such websites when the content hosted on it was uploaded by users. In 2013 this was further supplemented by Rule 75 of the Copyright Rules, 2013 which prescribed the procedure by which such a remedy could be availed. This required a copyright owner to first send a written complaint to the website identifying the content which was being infringed after which the website would take it down. The Owner had to within 21 days of the complaint approach a court in an infringement suit specifically alleging copyright infringement against the actual user which uploaded the content and not the website which streamed it.

Quite clearly, the legislature placed the burden to police the content on the copyright owner. This law was made specifically keeping in mind the conflicting interests of copyright owners, websites which stream content and the general public. However it seems owners find this rule inconvenient and plead that they cannot trace the websites or the users. As the Original Order of the High Court states, “many of the websites are anonymous in nature and it is virtually impossible to locate the owners of such websites or contact details of such owners.” Nothing is further from the truth. This is even after the Order has been modified.

Take the very first URL which has been blocked by the revised Order. The URL which is and is presently blocked in India provides a contact, has terms which informs users not to infringe others copyright and further provides contact details for owners to remove content illegally hosted on their service. Rather than complying with the Copyright Act and the Rules which have been made, the necessary rigours of law have been relaxed for an anticipated infringement in benefit of a copyright owner.

This is not a solitary instance of attempts to bypass the statute in favour of the general ether of foreign judgements. Judgements cited selectively to expand the protection available to content owners. Recently similar attempts have been made to protect mere facts. Live scores of cricket matches have been argued to be protected under Copyright. This argument was specifically admonished by a division bench of the Delhi High Court. Though this judgement has been appealed to the Supreme Court it has not daunted efforts to further expand the monopolies of intellectual property protection. At the heart of this debate is a narrative in which content owners have successfully persuaded the wider public as to their sense of victimhood and entitlement to profit. Premised on absolute intellectual property protection and a reading of law which is for their benefit exclusively. It is an interpretation of law which is contrary to the statutes which recognise such protections as limited monopolies, allowing them with ample exemptions in public interest. It is an interpretation which harms not only the owners of websites but also the general public which may want to view content not connected with the World Cup.

The 2014 world cup has been marked by high scoring and rough tackles. Many have commented on unethical play adopted by players. An instance is the Dutchman Arjen Robben diving to manipulate a referee into awarding him a penalty. It seems copyright owners are adopting similar tactics in Courts. Diving before High Court benches and earning penalties against the wider public.

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