This article is written by Shefali Chitkara, a student of Vivekananda Institute of Professional Studies.

Abstract

In this digital era, with the increased use of internet all over the world, the possibilities of piracy of copyright works have become quite regular. In case of digital piracy, the court generally adopt website blocking injunctions to protect the rights of the content creators. However, merely doing this does not necessarily ensure protection of copyright as there are dynamic ways of accessing an online location. This article focuses on the mechanism which is used to curb the menace of resurfacing pirated websites. It discusses the role played by such mechanism. It also describes the term ‘rogue websites’ and the issues faced by the court while applying the first dynamic injunctions in a case. Further, the author mentions about the different countries where this concept has been applied earlier.

Introduction

It is the possibility that if the ISPs block a particular URL then another mirror link providing access to the blocked URL can be easily created. This bypasses the effect of a website blocking injunction and fails to protect the rights of the content creators. Therefore, the courts have sought to evolve new mechanisms to counter the danger of digital piracy. One such mechanism is dynamic injunctions. It has been the most recent device used to curb the menace of resurfacing pirated websites. It specifically helps in cases where an infringing website may reappear as a redirecting, mirror or alphanumeric website. A dynamic injunction requires the copyright owner notifying the ISPs of additional domain names or URLs that provide access to the websites which were subject of the main injunction. Thus, it tries to cut down the dynamic means of accessing an infringing online location. 

Dynamic injunction: a fair solution

European Commission defines dynamic 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 URL and which is drafted in a way that allows to also cover the new URL without the need for a new judicial procedure to obtain a new injunction.”

Courts in various countries have passed expressed or implied dynamic injunctions:

Singapore

A dynamic injunction was granted by the High Court of Singapore in the case of Disney Enterprises, Inc. v. M1 Ltd. The plaintiffs were the copyright owners of several cinematographic films. They had been granted blocking orders under section 193DDA of the Copyright Act and the defendants (ISPs) were directed to take steps to block the identified FIOLs. The plaintiffs had also prayed for the dynamic injunction. The court also granted the same. 

It seems to be a fair solution because this measure not only relieves the Plaintiff from approaching the court repetitively, but at the same time it also ensures that the interests of the intermediaries is not unduly hampered.

The Milan Court of First Instance also gave its opinion that if an injunction could not operate in the future and the Court intervention is required again, it would render the injunction pointless and would be contrary to the purposes of injunctions. So, it basically points out the role of dynamic injunctions in today’s world.

First dynamic injunction issued to block access to ‘rogue websites’ in India

Earlier, in India certain important observations have been made in various orders which supported the concept of granting dynamic injunctions. One of them is:

Tata Sky Ltd. v. YouTube LLC. In this case, Tata Sky had submitted a complaint to YouTube, requesting it to take down certain URLs which provided instructions on how to hack the Tata Sky HD Set Top Box to receive High Definition content free of cost. Then, Tata Sky filed a suit praying for an injunction against YouTube. The court had granted an injunction but Tata Sky still alleged that many people were able to hack the HD channels and view them for free. Here, it can be observed that the injunction granted by the court later was similar to the dynamic one. There were some more cases similar to this which demanded the dynamic injunctions. 

Recently in India, the Delhi High Court granted the dynamic injunction in UTV Software Communication Ltd. v. 1337X.TO and Others, where the plaintiff filed eight suits primarily seeking an injunction to restrain the infringing activities of the defendants. The plaintiffs are engaged in the business of creating content, producing and distributing cinematographic films around the world, including in India. The defendants were classified into four broad categories- certain identifiable websites, John Doe defendants, ISPs, and government departments. The defendant’s websites did not respond to any of the summons, presumably as they were based outside India. However, the court adjudged the issue of general public importance and issued the relevant injunction even in such absence.

The court basically analyzed several issues:

First issue was whether an infringement on the internet is different from an infringement in the physical world? The court said that the copyright infringement on the internet should be treated same as there is no logical reason why crime in the physical world should not be considered same as in the digital world, especially when the Indian Copyright Act does not make such a distinction.

Second issue was whether seeking blocking of pirated website make one an opponent of free and open market? The court answered it in negative. 

Third issue deals with the definition of ‘Rogue Website’. The court defined it as a website which primarily make infringing content available.

Fourth issue was whether a qualitative or quantitative test was used to determine ‘Rogue Website’? The court to this question said that the test should be qualitative.

Fifth issue was whether the websites of defendant fell within the category of ‘Rogue Websites’? For this, court looked at the factors that were discussed under third issue and answered in affirmative.

Sixth issue was whether it would be justified to block the ‘Rogue Websites’ in their entirety? The court again answered in affirmative and said that it is very much necessary to consider whether disabling access to such a website is in the public interest or not?

So, this was the first case where the concept of ‘Dynamic Injunctions’ was applied in India and this was the best move taken by the High Court for the protection of digital India.

Conclusion

In my opinion, there was definitely a requirement for the establishment of a mechanism like dynamic injunction. It helps the plaintiff a lot, reduces burden of the court and doesn’t impose undue duties on the defendant. It marks a significant advancement in curbing the menace of online piracy. This mechanism was formulated keeping in mind the interests of the rights holder and desirability of the ‘free internet’ for the consumers. It is essential as it reduces the resources required for blocking every mirror infringing websites. The role played by such a mechanism is very essential in a nation where there are so many cases already pending. Further, it would be suggested that it should not just remain confined to the cases of copyright infringement but should cover all the cases where an injunction is granted by the courts, either it be defamation or other such issues.

References

1. www.scholar.google.com
2. www.ipkitten.blogspot.com
3. www.ili.ac.in
4. www.onlinelibrary.wiley.com
5. www.managingip.com