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June 23, 2020

Dynamic injunctions against digital piracy in India

Author: Krithika Muthuraman

The rapid growth in technology has created a unique landscape for creation, exchange and consumption of content. While it has made communication more amplified and convenient, it has also significantly compounded the existing issues faced by Intellectual Property (IP) holders with respect to piracy of their work. As opposed to physical piracy, digital piracy benefits from potential shields of anonymity, non-traceability and a quicker bounce-back ability. Even when websites hosting and sharing pirated content are blocked, they often resurface as mirror/alphanumeric websites having the same infringing content. The concept of dynamic injunctions has been developed with the aim of addressing this issue.

What are Dynamic Injunctions?

Dynamic Injunctions are those which enable the plaintiff(s) to use the original injunction order (granted against the primary infringing website) to block mirror/redirect sites providing the same infringing content.

The framework for dynamic injunctions was first devised comprehensively by the High Court of Singapore in Disney Enterprise v. M1 Ltd. [(2018) SGHC 206] to address the issue of flagrant infringement on digital platforms. The Court observed that it “…has the jurisdiction to issue a dynamic injunction given that such an injunction constitutes “reasonable steps to disable access to the flagrantly infringing online location”. This is because…the dynamic injunction merely blocks new means of accessing the same infringing websites, rather than blocking new infringing websites that have not been included in the main injunction.”

In India, a dynamic injunction was first granted in the case of UTV Software Communications Ltd. & Ors. v. 1337x.to and Ors. [2019 (78) PTC 375 (Del)]. The Plaintiffs had sought website blocking injunctions against the Defendant websites which were hosting infringing content. The Plaintiffs had also impleaded the relevant Internet Service Providers (ISPs) as Defendants to implement the blocking orders. The Delhi High Courtanalysed whether the Defendant websites were “rogue websites” such as would warrant website blocking injunctions.

Factors for Determining Rogue Websites

The Court laid down the following factors to be considered while determining whether a website is a rogue website:

“a. whether the primary purpose of the website is to commit or facilitate copyright infringement;

b. the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement;

c. Whether the detail of the registrant is masked and no personal or traceable detail is available either of the Registrant or of the user.

d. Whether there is silence or inaction by such website after receipt of take down notices pertaining to copyright infringement.

e. Whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;

f. Whether the owner or operator of the online location demonstrates a disregard for copyright generally;

g. 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;

h. 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; and

i. the volume of traffic at or frequency of access to the website;

j. Any other relevant matter.”

Based on the above factors, the Court found the Defendant websites to be rogue and granted blocking injunctions against them. However, while evaluating how to effectively deal with the issue of the websites resurfacing as mirror/alphanumeric sites after being blocked, the Court relied on the Singapore HC’s Disney Enterprise judgment and granted a dynamic injunction.

The mechanism allows Plaintiffs to implead additional mirror/alphanumerical websites (through an application under Order I, Rule 10 of the CPC) with an Affidavit to the Joint Registrar of the Court proving that the impleaded websites are simply mirrors of the injuncted websites, providing the same content. The Joint Registrar may then order ISPs to block the impleaded websites.

Conclusion

The decision in UTV Software has introduced a strong online IP enforcement mechanism in India, in the form of dynamic injunctions and laid down comprehensive factors for determination of rogue websites. The above decision has been relied upon by the Delhi High Court in multiple copyright infringement suits, most recently in Disney Enterprises, Inc. & Ors. v. rlsbb.unblocked.ltda & Ors. [IA No. 14909/2019 in CS(COMM) 594/2019]where a dynamic injunction was granted against rogue websites, following the same framework as UTV Software. Since dynamic injunction is a new enforcement mechanism in Indian jurisprudence, its effectiveness and other implications in varying cases remain to be seen.

Disclaimer: Views, opinions, interpretations are solely those of the author, not of the firm (ALG India Law Offices LLP) nor reflective thereof. Author submissions are not checked for plagiarism or any other aspect before being posted.

Copyright: ALG India Law Offices LLP.

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