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Digital Piracy- Copyright Holders & Safeguarding Measures

September 10, 2019

By Sanjana Kala and Pranit Biswas

The intangible rights which protect the creations of the human intellect and their expression are collectively known as Intellectual Property Rights. One such intellectual property is copyright, which provides the creator of an original work (including literary, dramatic, musical, artistic works) a bundle of exclusive rights aimed at protecting, distributing and sharing the creator’s original work in a lawful manner and without detriment to the creator/owner of such work. With the advancement of digital technology, creators can now disseminate their work across borders at the click of a button. Territorial barriers no longer serve as a restraint and work can be circulated in a convenient and inexpensive manner. However, with ease of distribution, such literary, dramatic, musical and/or artistic works are becoming increasingly vulnerable to digital piracy (a form of online piracy), which deprives the producers of such work from getting the due recognition and monetary benefits they are entitled to, owing to rampant and unauthorized distribution of their original work.

The digitization of media goods has made internet piracy the most prevalent in the recent times and is leading to the continuous weakening of copyright laws across the globe by making it easy for ordinary consumers to illegally share media files from one to another. However, these advancements have in the process made certain industries more susceptible to copyright piracy; one such being the entertainment industry. Accordingly, the Indian media and film industry, being one of the largest entertainment sectors in the world, was bound to fall prey to the menace of online piracy. Websites such as Torrent and Megaupload, which are easily accessible to Indian consumers, are examples of platforms that enable users to (a) download music, movies, books and other digital content and (b) stream such digital content posted on public access servers, without prior authorization of the creator/owner with whom copyright of such work subsists. By allowing digital piracy to remain unchecked for a substantial period of time, India came to be ranked at number four (4) in the world, for peer-to-peer (P2P) downloads, between January 2017 and May 2018.[1]

This alarming increase in digital piracy in India, has prompted both rights-holders and the government to introduce necessary measures so as to safeguard original content that is available online. Rights-holders have begun to introduce ‘digital watermarks’ on online content in a bid to track the use and movement of their work across the globe. With specific reference to India, the government, in 2012, introduced several amendments to the existing Copyright Act, 1957, aimed at inter alia curbing online piracy in India. The amendments mandate copyright owners to employ ‘Technological Protection Measures’ to protect their rights in a work and have penalized any attempts, to breach or circumvent these measures, with fine and imprisonment.

In addition to the above, courts in India, particularly the Delhi High Court has played an instrumental role in developing the jurisprudence on real-life enforcement against digital piracy. In 2002, the Delhi High Court in Taj Television Ltd. and ors. v. Rajan Mandal and ors[2] passed its very first ‘John Doe order’, commonly known in India as an ‘Ashok Kumar order‘. As the name suggests, John Doe orders are ex-parte orders enforceable against an unknown party. These orders help prohibit any potential infringing activities by unidentified people. If a rights-holder becomes aware of any incident of infringement after passing of the order, the plaintiff can save precious time by presenting the order to infringing parties instead of filing a suit and waiting for the court to pass an injunction order. The reasoning behind such an order is to not let the mystery of the defendant’s identity be an obstacle in pursuance of justice.

However, these orders were becoming ineffective due to similar ‘mirror/redirect/alphanumeric’ websites that cropped up after the original website was taken down and that displayed the same infringing content as the original website. Taking a leap forward, the Delhi High Court on April 10, 2019, through its order in UTV Software Communication Ltd. and ors  v. 1337x.To and ors[3], set down a broad legal framework for blocking websites, by granting, for the first time, the remedy of a ‘dynamic injunction’. Borrowing from Singapore High Court’s decision in Disney Enterprise v. Ml Ltd[4]., the Delhi High Court has allowed plaintiffs to directly approach the Joint Registrar of the Delhi High Court, for extension of an existing injunction granted against a website, against mirror/redirect/alphanumeric websites which contain the same content as the injuncted website. This has eliminated the need to obtain a judicial order against each and every one of these ‘hydra-headed’ or ‘rogue’ websites, thereby saving time and money of legitimate IP holders.

The aforementioned order by the Delhi High Court resulted in inter alia shutting down of approximately thirty (30) Torrent websites from hosting infringing content. However, only time will tell if creators/owners of copyright in India, who have been plagued with widespread infringement of their IP, will be able to rely on the remedy of dynamic injunction as a fool-proof method of blocking infringers in bulk from engaging in digital piracy of their work. Till then, we can only hope to be one step ahead of the wily digital pirates who try to subvert the law.

[1] ‘The Irdeto Global Consumer Piracy Threat Report 2018’ available at https://resources.irdeto.com/i/1013045-irdeto-global-consumer-piracy-threat-2018/6

[2] CS(OS) No. 1072/2002

[3] Cs (Comm) No. 724/2017

[4] (2018) SGHC 206)

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