About Author: Pragati Yaduvanshi is a final year law student pursuing BA LLB from Vivekananda Institute of Professional Studies- Technical Campus, GGSIPU, Delhi.
Ubi jus, ibi remedium- where there is a right, there is a remedy.
Indian courts are the pioneers of innovation and have been so ever since independence. From bridging the gap left untouched by the legislature to ensuring that no injury is devoid of remedy. The Indian Courts are evolving as much as the world is. The supersonic speed at which the technological world is advancing though has brought some obstacles before the courts. However, the courts have come up with newer and experimental ways to tackle all the challenges and have brought the “Modern problems require modern solutions” quotation of American comedian Dave Chappelle to life. We’ve seen examples of inventions done by the Supreme Court in the form of continuous mandamus[1] to ensure implementation of court directions in its pith and substance, the principle of absolute liability[2] to hold an individual liable without any exception in cases of escape of any dangerous substance stored in its premises. The high courts of India are also closely following in the steps of the Apex Court. The grant of “Dynamic+ Injunction” by the High Court of Delhi in a recent judgement to protect the future works of the Plaintiff in a copyright infringement suit is the latest example of how high courts are keeping up with the changing times as well as changing nature of ways in which rights of individuals can be injured. The courts step in to bridge this right-remedy gap for the time being till the legislature comes up with a new concrete legislation or amends the existing ones to fill the void. Thus, no individual is bereft of remedy as a consequence of invention of newer ways of violation of rights adopted by violators. In this article we will focus on Dynamic Injunctions. Everything that one needs to know about dynamic injunction is elaborated below.
Need for Dynamic Injunction
In a copyright infringement suit, one of the remedies available under section 55 of the Copyright Act, 1957 is that of injunction. With the advancement of technology, the conventional forms of injunctions granted by the courts often prove to be ineffective. Particularly with the publication of movies, shows, series, etc. by rogue websites[3] courts have evolved several ways to curb copyright infringement starting from blocking URLs of such rogue websites to banning entire websites. However, it did not help solve the problem of piracy as immediately upon such ban, newer versions of these websites pop up with the infringed content being available on the new mirror website. These websites keep popping up like hydra-heads after an injunction is granted against the original website which diluted the effect of the injunction order. It was the need of the hour to deal with this issue and the Delhi High Court came up with yet another innovative solution in the form “Dynamic Injunction” in 2019. What is so special about this kind of injunction is that it is granted not only in respect of present infringed works of the plaintiff but also with respect to the future works of the plaintiff. Thus, every time there is an infringement of the work of the plaintiff, the plaintiff need not file a fresh suit to seek remedy in the event of copyright infringement by such rogue website/s. This is especially instrumental for copyright owners creating and publishing newer work on a regular basis such as movie studios, media houses, etc.
Meaning and Definition
Let us understand what a dynamic injunction is. In simpler terms, dynamic injunction can be understood as an injunction that is granted upon subsequent infringement of newer works of plaintiff by rogue websites without the plaintiff having to institute a fresh copyright infringement suit every time
The European Commission defines forward-looking or dynamic blocking injunctions as “injunctions which can be issued for instance in cases in which materially the same website becomes available immediately after issuing the injunction with a different IP address or URL and which is drafted in a way that allows to also cover the new IP address or URL without the need for a new judicial procedure to obtain a new injunction.”[4]
In the case of UTV Software Communication Ltd. v. 1337X.TO [2019 SCC OnLine Del 8002] the Delhi High Court defined dynamic injunction as an injunction order which automatically applies to any mirror website that may appear subsequent to blocking the website against which original injunction order was granted. The relevant extract of the said judgement is given below:
“an injunction order that is not static but dynamic. This means that, while the initial injunction order may only apply to one website, if mirror websites are created, the injunction will dynamically apply to those mirror websites as well.”.
Indian Scenario
Indian courts realised that blocking the URLs as well as entire websites were not enough to crackdown piracy effectively. The threat that rogue websites pose to the rights of copyright holders could not be tackled with available remedy under the Indian Copyright Law. So when this issue was brought before the Delhi High Court, it not only laid down illustrative grounds to identify rogue websites but also granted dynamic injunction against any future mirror/redirect website of an already injuncted website.
This was the first case in India in which remedy of dynamic injunction was granted against rogue websites. Here the Delhi High Court considered the judgement of the Singapore High Court in Disney Enterprises, Inc. v. M1 Ltd. [[2018] SGHC 206]], and held that a solution needed to be found to stop the proliferation of websites with infringing content. After considering the judgement of the Singapore High Court and various provisions of Indian law, the Delhi High Court brought the concept of a ‘dynamic injunction’ to Indian soil, in order to prevent copyright infringement by mirror/redirect websites.
In this case the Delhi High Court passed dynamic injunctions against 16 rogue websites, their redirects, its variations from streaming or making available for downloading the existing and future content from six plaintiffs who are some most renowned American studios. J. Pratibha Singh pointed out that grant of such an injunction would depend upon facts and circumstances of each case. Further, she highlighted the need for such a measure and the same is mentioned below in her own words:
“19…To keep pace with the dynamic nature of the infringement that is undertaken by hydra-headed websites, this Court has deemed it appropriate to issue this ‘Dynamic+ injunction’ to protect copyrighted works as soon as they are created, to ensure that no irreparable loss is caused to the authors and owners of copyrighted works, as there is an imminent possibility of works being uploaded on rogue websites or their newer versions immediately upon the films/shows/series etc.”
Procedure to get dynamic injunction in India
The procedure has been simplified for the plaintiff by the court. Upon coming across subsequent infringement by a rogue website which the plaintiff believes to be associated with a website earlier blocked then in such a case, the plaintiff can implead such a website as defendant by filing an application for impleadment under Order I Rule 10 CPC before the Registrar.
Along with the application, Plaintiff has to attach an affidavit with sufficient supporting evidence seeking extension of the injunction to such websites, to protect the content of the Plaintiffs, including future works, the injunction shall become operational against the said websites and qua such works. If there is any work in respect of which there is any dispute as to ownership of copyright, an application may be moved by the affected party before the Court, to seek clarification.
International scenario
The remedy of dynamic injunction, though new, is not unique to India. The European Parliament equips its courts to terminate any alleged infringement as well as prevent any future violation of rights of a right holder.[5] As per Article 11 of Intellectual Property Rights Enforcement Directive (IPRED), the judicial authorities of member states may issue against an infringer an injunction aimed at prohibiting the continuation of the infringement. Most European countries such as Denmark, France, Ireland, Italy, the Netherlands, Spain, Sweden etc. have granted dynamic injunctions in case of piracy while deriving authority from the directives of the EU parliament and IPRED. Lithuania is the first European Union country to pass a law in respect of dynamic injunction.
In Asia as well there are some countries that provide website blocking orders as a matter of statutory remedy. For instance, Singapore amended its Copyright Act to enable copyright holders to obtain website blocking orders in 2014.[6] While others like India are bringing in the dynamic injunction through judicial arms.
Lord Justice Arnold, in Newzbin2[7], elaborated the rationale behind grant of dynamic blocking injunctions by the UK courts, in the absence of any statute in this regard in the UK, as a measure to deal with copyright infringement and the same is reproduced below:
“I do not consider that the Studios should be obliged to return to court for an order in respect of every single IP address or URL that the operators of Newzbin2 may use. In my view the wording proposed by the Studios strikes the appropriate balance. If there is a dispute between the parties as to whether the predominant purpose of an IP address or URL is to enable or facilitate access to Newzbin2, they will be able to apply to the court for a resolution of the dispute. In saying this, I do not mean that BT will be obliged to check IP addresses or URLs notified by the Studios. It will be the Studios’ responsibility accurately to identify IP addresses and URLs to be notified to BT.”
Challenges Ahead
Global Blocking: It is pertinent to note that the effect of dynamic injunction is restricted to the territory to which jurisdiction of court passing such an injunction extends to. The rogue websites can be accessed from areas outside of the court’s jurisdiction as well as within the territorial jurisdiction through VPNs and other methods. Thus, there needs to be a global understanding in this regard so as to effectively curb the menace of piracy globally.
Balancing Interests of Both Sides: Dynamic injunctions should not be passed in a routine manner and the court should ensure that the entirety of the website contains infringed data before passing such a blanket blocking injunction order. The website may also contain content that is not infringing any copyright and in such a case passing an injunction order to ban the entirety of the website would result in violation of the rights of the website owners. The courts should be mindful as they have been so far to block only data which is being displayed without due authorisation from the owner of such content. Thus, the Bombay High Court rightly formulated a three step verification process to show that the whole of the website contains only illegitimate/ infringing content and no legitimate content is there on the website before granting any blocking order in the case of Eros International Media Ltd. & Anr. v. Bharat Sanchar Nigam Ltd. & Ors., Suit No. 751/2016. Such measures would ensure that rights of all parties involved in a copyright infringement case are balanced.
Though the idea of dynamic injunction prevents institution of a new infringement suit, the process of moving an application for impleadment at every instance when a new website pops is going to be bothersome. The Courts have done a commendable job in balancing the right-remedy gap in the absence of any express provision in India. Now, it is time for the Legislature to come up with a concrete law on the issue and further strengthen the copyright law in India. Further, stakeholders need to come up with a way to effectively implement dynamic injunctions across borders otherwise copyright holders would have to knock at the doors of courts of every jurisdiction where rogue websites are accessible despite being injuncted in another jurisdiction.
Conclusion
Dynamic injunctions have opened an easy way for copyright holders to tackle with repeated infringements and, consequently, have enhanced the scope of remedy available to rights holders till a concrete law is passed in this regard in India. It not only saves time of courts as well as copyright owners but also reduces litigation expenses. As a consumer of such rogue websites one would be vexed by the dynamics of dynamic injunction, however, it has proved to be a holy grail for the owners of copyright for the protection of their economic as well as creative rights.
[1] Vineet Narain v. Union of India, AIR 1998 SC 889.
[2] M.C. Mehta v. Union of India, 1987 SCR (1) 819.
[3] They are those websites which primarily and predominantly share infringing/ pirated content or illegal work (See: Para 2 of Order dated 29.07.2016 in DEITY vs. Star India Pvt. Ltd, FAO (OS) 57/2015).
[4] EU’s communication to the European Parliament dated 29.11.2017 providing guidance on Directive 2004/48/EC.
[5] Article 18(1), ) Directive (EC) 2000/31 of the European Parliament.
[6] Copyright (Amendment) Act 2014, An Act to Amend the Copyright Act (Chapter 63 of the 2006 Revised Edition).
[7] Twentieth Century Fox Film Corporation and others v British Telecommunications plc [2011] EWHC 1981 Ch, 28 July 2011.
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