Latest News
Back
Delhi High Court Issues India’s First ‘Dynamic’ Website Blocking Injunction for Copyright Infringement.
The Delhi High Court through its judgement in UTV v 1337x.to, delivered on April 10, has made a significant contribution to this jurisprudence in India, particularly by crafting a new remedy of a ‘dynamic injunction’, whereby rights-holders do not need to go through the ‘cumbersome’ process of a judicial order in order to issue blocking orders to ISPs. Instead, as per this ruling, the plaintiffs have been allowed to approach the Joint Registrar of the Delhi High Court (an administrative position), to extend an injunction order already granted against a website, against a similar ‘mirror/redirect/alphanumeric’ website which contains the same content as the original website.
Mr. Justice Manmohan’s order is important for its detailed consideration of the issues involved in issuing website blocking injunctions, (at least compared to similar blocking injunctions we have seen in the past) as well as for the unique final remedy crafted to secure copyright holders’ interests in the form of a dynamic injunction.
While dealing extensively with the issue of online piracy, the Delhi High Court has held that it has the inherent power to issue a ‘dynamic injunction’ to contain mirror websites of an injuncted rogue website.
Rogue websites are those that primarily and predominantly share infringing/pirated content or illegal work. These websites either themselves allow streaming of content or provide a searchable database with links to third-party ‘Flagrantly Infringing Online Locations’. Mirror websites or ‘Hydra-Headed’ websites are the ones that multiply and resurface as alphanumeric or mirror websites on being blocked.
Background of the case was that the plaintiffs, including UTV Software Communications Ltd., are companies engaged in ‘creating content, producing and distributing cinematographic films around the world including in India’. The defendants are, inter alia, thirty identified websites, along with John Doe defendants, the Ministry of Electronics and Information Technology, the Department of Telecom and various ISPs.
The plaintiffs contend that the defendant websites host and provide access to their copyrighted works, in a manner which infringes their rights under the Indian Copyright Act. The plaintiffs provided access to a sample of such infringing content as evidence that the websites were primarily engaging in online piracy.
The principal defendants (the websites) did not respond to the summons, presumably since they are hosted outside of India. However, as the issues were deemed to be questions of law ‘of general public importance’, the Court appointed an amicus curiae, Mr. Hemant Singh, to assist the court with its determination on the questions of law
The Court stated that although the Indian law does not provide for a ‘dynamic injunction’, the same can be issued to meet the ends of justice and to address the menace of piracy.
Consequently, a plaintiff can file an affidavit confirming that the newly impleaded website is a “mirror/redirect/alphanumeric website” with sufficient supporting evidence, along with an Order I Rule 10 application for impleadment, to the Joint Registrar.
On being satisfied that the website is a mirror of an injuncted rogue website(s), the Joint Registrar shall issue directions to Internet Service Providers to disable access to them.While adjudicating the issue, the Court also laid down an illustrative list of factors to determine, qualitatively, if any website is a rogue website.
These factors are:
- Whether the primary purpose of the website is to commit or facilitate copyright infringement the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement;
- Whether the detail of the registrant is masked and no personal or traceable detail is available either of the Registrant or of the user.
- Whether there is silence or inaction by such website after receipt of takedown notices pertaining to copyright infringement;
- Whether the online location makes available or contains directories, indexes or categories of the means to infringe or facilitate infringement of copyright;
- Whether the owner or operator of the online location demonstrates a disregard for copyright generally;
- Whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
- Whether the website contains guides or instructions to circumvent measures, or any order of any court, that disables access to the website on the ground of or related to copyright infringement;
- The volume of traffic at or frequency of access to the website;
- Any other relevant matter.
The Court has clarified that the test does not apply to intermediaries governed by the Information Technology Act, which have statutory immunity and function in a wholly different manner.
Further, the Court also opined that website blocking in the case of rogue websites, like the defendant-websites, strikes a balance between preserving the benefits of a free and open Internet and efforts to stop crimes such as digital piracy. The Court also rejected the school of thought that an infringer of copyright on the internet should be treated differently from an infringer in the physical world, in the name of facilitating free consumer choice.
In view of the fact that the majority of the viewers accessing, viewing and downloading infringing content are youngsters who do not have knowledge that the content is pirated/infringing, the Court has issued directions to the Central Government as well.
The Court has directed the Ministry of Electronics & Information Technology and the Department of Telecommunication to explore the possibility of framing a policy under which a warning is issued to the viewers of the infringing content. The warning could be issued in the form of e-mails, pop-ups, or other modes, cautioning the viewers to cease viewing/downloading the infringing material, the Court said. In the event the warning is not heeded to and the viewers/subscribers continue to view, access or download the infringing/pirated content, then a fine could be levied on the viewers/subscribers, it added.
In the present suit, the Court passed a decree of permanent injunction restraining the defendant-websites from hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, any cinematograph work/content/programme/show in relation to which plaintiffs have copyright.
