Copyright Law
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This article is written by Vivek Maurya from ICFAI Law University, Dehradun. In the article, the author has critically analyzed a copyright case that is Sony v. Sportsala and has also mentioned John Doe or Ashok Kumar’s order in copyright cases.

Introduction

In this case, the plaintiff Sony Pictures filed a lawsuit against a number of browser-based websites, seeking a permanent injunction against the distribution, production, reproduction, or making available on their platforms of content from the ongoing cricket matches between India and England and India and Sri Lanka. The plaintiff seeked an interim injunction against the defendant’s activities because they infringe on the plaintiff’s copyright under Section 51 of the Copyright Act of 1957, and as a result, other issues such as audience sharing, low TRP, and limited advertising capabilities have harmed their business, prompting the plaintiff to seek a permanent injunction against such illegal activities.

Facts of the case 

The England and Wales Cricket Board Limited (ECB) and Sri Lanka Cricket (SLC) have granted Sony Pictures Network the exclusive license and media rights to broadcast the India Tour of England 2021 in India, Pakistan, Afghanistan, Sri Lanka, Nepal, Bangladesh, Bhutan, Myanmar, and the Maldives. Later, Sony Pictures found that www.sportsala.tv was streaming these events on their website. www.Sportsala.Tv is a website that is in the business of streaming and uploading unlicensed material. The website, among other things, illegally streamed athletic events and had previously infringed on Sony Pictures Networks’ exclusive media rights. Sony Pictures Network filed this lawsuit to prohibit them from doing so during the 2021 India-England International Cricket Series.

Issue of the case

The issue framed in the suit is:

  1. How to stop www.sportsala.tv from infringing their exclusive contents?

The relief prayed in the suit

  1. Pass a permanent injunction prohibiting the defendant , their partners, owners, officers, employees, agents, and representatives, franchisees, head-ends, and all those acting as principal or agent on their behalf from:
  • Transmitting / communicating, telecasting, to subscribers or otherwise, the India Tour of England 2021 and the India Tour of Sri Lanka 2021, whether through the Plaintiff’s Channels or Platform, or any other channel or any other signal piracy.
  • Transmitting/communicating to the public/making available any match, footage, clip, audio-video, audio-only, and/or any part of the India Tour of England 2021 and the India Tour of Sri Lanka 2021, including live score updates, play-by-play, and/or textual and/or audio-only commentary, via any website, application and/or any other digital platform via the internet, mobile and/or radio delivery.
  • The Plaintiff’s channel includes reproducing, making sound and/or visual recordings of the Plaintiff’s Channels or the feed thereof, and communicating the same to the public without the Plaintiff’s permission; and doing anything else that is likely to infringe on the Plaintiff’s exclusive rights in the India Tour of England 2021 and the India Tour of Sri Lanka 2021.
  1. Pass an order enforcing the aforementioned injunction against the defendant’s or any other person’s that provides access to the defendant s’ websites / mobile applications.
  2. Allow the Plaintiff to submit an affidavit with the Joint Registrar to be implemented under Order I Rule 10 CPC if they provide additional ways to access the same principal infringing websites that have been injuncted.
  3. Pass an order allowing Plaintiff to inform all search engines and request that listings of websites/URLs/mobile applications that infringe on the Plaintiff’s Copyright and broadcast reproduction rights be taken down/deleted from their search results pages.
  4. Pass an order requiring defendants to reveal the names and addresses of all servers they utilize, as well as any additional websites or mobile applications discovered to be engaged in unlawful or pirated activities.
  5. Pass an order requiring the Registrants of defendant’s websites to provide the names of the proprietors of the aforementioned websites that distribute the Thop TV application.
  6. Pass an order for damages in Plaintiff’s favour, subject to the defendant’s’ violation of Plaintiff’s rights, as described in this Suit.
  7. An order for the appointment of two Local Commissioners with the attendant powers to be issued in the case of defendants who are currently unidentified and/or unknown as of the date of the order.
  8. In order to carry out the aforesaid instructions, the Registry may be instructed to issue additional summonses in the name of Ashok Kumar’s / Unnamed defendant s, whose information will be provided by the Plaintiff as and when it becomes available.
  9. An order for the defendant to deliver all apparatus that they may use to re-transmit and/or store the broadcasts of the India Tour of England 2021 and the India Tour of Sri Lanka 2021, as well as any related content or other infringing material, to the Plaintiff’s authorized representatives for destruction.

Judgment

The Court ordered an interim injunction prohibiting the defendants from hosting, streaming, reproducing, distributing, or transmitting to the public any cinematograph work, material, program, or event in which the plaintiff owns the copyright. This is known as the Ashok Kumar or John Doe order since it was obtained as a temporary ex parte injunction on the broadcast.

MSOs and cable operators were also covered by the temporary injunction, and local commissioners were appointed to monitor and enforce the Court’s directives. The Court’s rulings principally apply to Sony Pictures’ copyrights, implying that non-infringing and fair uses of content related to cricket matches between India and England/Sri Lanka are permitted.

These are usually injunctive reliefs given by the courts to protect plaintiffs from damage. Injunctions are equitable remedies that cannot be obtained as a matter of right but are accessible only when parties have exhausted all other legal options, meaning that John Doe’s orders are likewise to be the last option for granting relief.

Ratio decidendi 

The Court noted that the plaintiff possessed exclusive media rights from the ECB and SLC and that a prima facie case had been established in favour of the plaintiff for protection against the illegal transmission, broadcasting, communication, telecast, and unauthorized distribution of any event, match, film, clip, audio-video, or audio-only of the India Tour of England, 2021, planned from August 4 to September 14, 2021, and the India Tour of Sri Lanka 2021 scheduled from 13 July 2021 to 27 July 2021.

The Court further stated that if the plaintiff is not given an injunction for safeguarding its rights against the defendant, it is possible that the plaintiff would suffer irreparable loss and harm, which cannot be repaid in monetary terms and may be reimbursed to the plaintiff afterwards. The Court assigned two local commissioners to investigate the defendant’s unauthorized dissemination.

Case Analysis

This case analysis discusses the copyright infringement and the John Doe or Ashok Kumar order, which has been issued by the Court to prevent the infringement.

Copyright Infringement

The use or creation of copyright-protected content without the consent of the copyright owners is known as copyright infringement. Copyright infringement occurs when a third party infringes on the copyright holder’s rights, such as the exclusive use of a work for a certain period of time. Music and movies are two of the most well-known kinds of entertainment that are subjected to major copyright violations. Infringement lawsuits may result in contingent liabilities, or funds set aside in the event of a lawsuit.

The following are the exceptions to infringement under Section 52 of the Copyright Act of 1957:

  1. Use for personal or private purposes, including research.
  2. Use for evaluation of that work.
  3. Use for the coverage of current events and current affairs, including the coverage of a public speech.

Remedies available against infringement 

In the case of copyright infringement, there are two sorts of remedies available:

Civil remedy

Where copyright in any work is infringed upon, the owner of the copyright is entitled to all such remedies by means of injunction, damages and accounting, according to Section 55 of The Copyright Act, 1957.

Criminal remedy

The copyright holder can bring criminal proceedings against the infringer under Section 63 of the Copyright Act, 1957, which provides for at least six months of imprisonment, which can be extended to three years, and a fine of Rs. 50,000, which can be extended up to Rs. 2 lakhs.

If the defendant proves that he was unaware and had no reasonable grounds to believe that copyright existed in the work at the time of the infringement, the plaintiff will not be entitled to any remedy for the whole or part of the profits made by the defendant from the sale of the infringing copies as the court may deem reasonable in the circumstances.

Power of police to seize infringing copies

Any police officer not below the level of sub-inspector may make copies without a warrant to produce before a Magistrate if he is convinced that an offence under Section 63 in relation to the infringement of copyright in any work has been committed.

An overview of Ashok Kumar or John Doe order

The media and entertainment industries are increasingly pursuing John Doe or Ashok Kumar’s orders against internet service providers, unlawful unlicensed distributors, and cable operators in an effort to combat piracy.

Meaning of Ashok Kumar or John Doe order

Blocking injunctions for whole websites should only be issued if it can be proved that the entire website contains illegal material.

India’s media law jurisprudence has long piqued curiosity since the country has one of the world’s largest multimedia businesses and customer bases. As a result, in 2003, India entered the John Doe orders period or Ashok Kumar orders age, as it is known in the Indian legal system.

The Delhi High Court issued the first ex parte interim order in the matter of Taj Television & Anr v Rajan Mandal & Ors, 2003, enabling the plaintiff to search and seize equipment and gadgets of the unknown defendant, thereby establishing the jurisprudence of issuing orders against John Doe/Ashok Kumars. While the Taj Television verdict was seen as hazy in terms of implementation and the drafting of execution directives, Indian courts have developed in the last decade to deal with IP infringement cases.

Implementing John Doe order 

The growing media and entertainment industries have embraced this development with open arms, seeking John Doe orders against internet service providers, unlawful unlicensed distributors, and cable operators as an effort to minimize piracy and its threat.

In India, the John Doe orders jurisprudence is still in its early stages, with the Indian judiciary and legal system working hard to enhance and adapt their rules as technology advances. In India, John Doe orders are regulated by Order 39 rules 1 and 2 of the Civil Procedure Code, 1908, as well as Section 151 of the CPC and the perpetual injunction provisions of the Specific Relief Act, 1963.

As a result, in order to get John Doe orders, plaintiffs must demonstrate a prima facie case, with a balance of convenience and possible damage, as well as establish the owner’s property rights. The following John Doe order criteria were used by Indian courts in the 2003 case Bloomsbury Publishing Group v News Group Newspapers.

Steps for claiming John Doe order  

  1. First and foremost, the claimant must show that he has a strong case against the defendant. Without a question, the stronger the order, the stronger the argument. 
  2. Second, the order must be written in such a way that it is obvious what the defendant needs to follow.
  3. Third, the defendant against whom the injunction is requested must be identifiable. 
  4. Fourth, it will only be effective against someone who understands that the order applies to him after being made aware of the provisions.

However, there are certain complexities, such as the execution of orders in light of technical constraints and jurisdiction concerns, which John Doe identified solely by a numerical IP address, which may or may not really be within the court’s jurisdiction.

Judicial Guidelines

In the case Eros International and Anr v BSNL & Others, 2016 the Bombay High Court expanded the required instructions to deal with unnamed defendants, including ISPs and anonymous bloggers who break the piracy laws, not just for the executive authorities but also for the jury and the plaintiff.

The Court has ordered that copyright holders verify and authenticate the allegedly unlawful connections before demanding their banning and that advocates and general counsels double-check the links. Finally, pursuant to Order 39, Rule 1 of the CPC, the plaintiff is required to provide all relevant evidence to the High Court as an affidavit on oath.

The Court has also made guidelines for judges, which need to be followed while issuing John Doe orders. Advising them to check the list and verify its validity or assign this task to a neutral third party. ISPs are required to post a note on the blocked webpage that provides the facts of the case and the reason for the block, the copyright holder’s address, and a declaration that any aggrieved party, including viewers, may file a lawsuit with at least 48 hours notice to the plaintiff’s attorneys. The validity of the block was also shortened to 21 days, after which the plaintiff would have to visit the court and request an extension of the restriction.

Conclusion

Due to the absence of formal embedding of these orders, plaintiffs have a broad range of options for seeking unjust enrichment, with courts having the authority to utilize these as ordinary remedies. Some courts have been careful and cautious in their application of these remedies, requiring full and open information and even limiting their reach. Given its tight adherence to the examined criteria, a 21-day review time is provided for the appointment of investigators and the restriction of material banning. However, these are only ideals and most courts have recast this remedy to favour the plaintiff. In this case, the Delhi Court was lenient in making the decision, conducting no preliminary inquiry into the claim’s legitimacy and tilting the balance in favour of the plaintiff, leaving equity elusive. Orders issued by Ashok Kumar need to be reworked and clarified to ensure that equality is not jeopardized by the very orders that were issued to protect it.

References

  1. https://www.bananaip.com/ip-news-center/indian-orders-and-judgments-intellectual-property-law-2021-2/
  2. https://spicyip.com/2021/06/spicyip-weekly-review-june-7-13.html
  3. https://singhania.in/admin/newsimage/news-doc1626332438.pdf
  4. https://www.mondaq.com/india/broadcasting-film-tv-radio/607546/dealing-with-john-doe-orders-in-india

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