INTRODUCTION
Intellectual property is not only an asset for the creator but also for the nation. Intellectual property being intangible, it needs to be safeguarded better than other tangible properties. There are different types of intellectual properties like Patent, Design, Geographical indication, Copyright, Trademark and many more.
In this article, we are going to deal with one of the important concepts in copyright, which is how the protection of artistic work should be done by any creator. It includes cinematograph film, music, lyrics, artistic performance, computer software, paintings, dramatic work etc. In simple terms, copyright is an exclusive right to use and exploit one’s creative work and prevent others from using it, for a fixed period of time within defined territorial limits.
The law recognises and values an individual’s originality. Creativity can take many forms, including music, art, writing, and other forms contemplated by the Copyright Act of 1957. Intellectual Property (hereafter referred to as IP) is recognised as one of the most important types of a person’s property under current law. Patents, trademarks, and other forms of intellectual property (IP) are examples of legal disciplines that have contributed to the rise of the global economy and international trade. However, technological advancement is said to have its drawbacks. In addition to invasions of one’s actual property (such as theft, trespass, and so on), we see invasions of one’s intellectual property (IP). The law allows for criminal prosecution of property infringers. With due regard to intellectual property, the legislature created India’s IP regime, which includes copyright, trademark, and patent. Because this article will examine the issuance of John Doe orders in cinematographic films, the Copyright Act of 1957 (hereafter referred to as the Act) is the applicable statute. A cinematographic film is defined by the Act as:
“…any work of visual recording and includes a sound recording accompanying such visual recording and “cinematograph” shall be construed as including any work produced by any process analogous to cinematography including video films.”
As for cinematograph films, songs, music and lyrics one needs to protect his or her work through copyright IP. Copyright comes with a bundle of rights like the right to make copies of the work, translate the work, distribute the work, assign the copyright, reproduce the work, communicate to the public etc. The copyright owners can exploit all these bundles of rights as well.
ENTRY OF JOHN DOE
The concept of John Doe was recognised in the USA for the first time in the Supreme Court case Doe vs Wade, where the court for the first time recognised the unknown defendant party as Doe in the suit. Years later in 2002 The Delhi HC in the case of Taj Television Ltd and Another vs Rajan Mandal and Others, ([2003]F.S.R 22) passed the first ex-parte interim order to search and seize equipment and gadgets of the unknown defendant. This case gave John Doe orders due to recognition in India and the Indian Judiciary became familiar with the concept of John Doe orders.
But the mere concept of introducing John Doe orders was not sufficient. It was or rather is required to be modified as per Indian laws and legal principles for its effective implementation. So John Doe orders serve the surface purpose of the plaintiff but create other lacuna and unjust on the side of the defendant. These drawbacks were highlighted in the case of R.K. Production Pvt Ltd vs BSNL and ors,O.A.No.230 of 2012 in the High Court of Madras where for the first time Internet service provider was made party to such order. Internet Service Providers have copyrighted and non-copyrighted content carrying them but it’s difficult to distinguish between the two. As a result, such an order passed against a provider for one matter affects their Internet service as a whole. And since John Doe order is ex-parte, ISPs don’t get a chance to be heard in the matter.
John Doe order for online piracy was first passed in the Reliance Entertainment Case relating to the film Singham in the year 2011. The producer argued that the film was copied and sold illegally via online and offline modes making an irreparable loss for the film. In the case of the movie ‘Dishoom’, the Bombay HC dismissed the application of the John Doe order and stated that blocking of websites would be ordered only when it is shown that the entire content of the website is pirated and the burden of proof lies on the plaintiff to prove the same. Here the balance of protection of the plaintiff’s and defendant’s rights were maintained.
SAVIOR OF THE INDIAN FILM INDUSTRY
The Indian Film Industry is one of the largest film producing industries in the world. This can be credited to the rampant increase the access to media by a significant population that inhibits the territory of India. Moreover, the internet has contributed to the shrinkage of the existence of territorial boundaries of this country, while simultaneously contributing to the consumption of Bollywood movies. However, online piracy, which is a perpetual resident of the internet acts as a counteractive force. Online Piracy because of its anonymity often escapes the clutches of law. In the absence of a specific law to combat this counteractive force, courts around the world evolved the ‘John Doe Jurisprudence’, which provides a speedy remedy to protect the copyright of the producers. However, over the years this jurisprudence took a form that resembled more a trend than a remedy, this creates a ground of debate for its survival in the jurisprudence.
The use of one’s work without his or her permission is copyright infringement or in simple words it’s piracy. Piracy is one of the biggest challenges copyright owners have to face while protecting their work. In the era of technology, it has become easier to copy the content without permission and earn from it. Also, there is a misconception amongst the common public that whatever is available online is free to copy.
People often watch movies, series, and web shows streaming on YouTube or other unauthorised platforms free of cost in low quality. There is a high possibility that the content is pirated because it’s free people don’t care about the source. It is also understood that the audience doesn’t consume the pirated content because they want to cause loss to the creators but irrespective of their intention, they indirectly contribute to promoting more piracy. Every year, the entire entertainment and media industry losses approx. 22,000 crore rupees in the piracy’s web.
NATURE OF THE JOHN DOE ORDER
A John Doe order is a type of injunction granted by courts in cases where an anonymous person may be committing a breach of the rights of the plaintiff and cannot be identified by the plaintiff at the time of filing of the suit. A John Doe order is obtained without notice to the person to whom it is addressed because the identity of the person is unknown.
John Doe orders usually restrain the violators from communicating without a licence or displaying, releasing, uploading, downloading, exhibiting, playing or in any manner infringing the copyright of the copyright holder of a film. Such orders also enable the applicants to seek police assistance to enforce the order. Violation of a John Doe order would entail consequences under order 39 rule 2A of the Civil Procedure Code, 1908, for breach or disobedience of an injunction order passed by the court.
For years, regulators have tried to come up with an effective way to shut down websites that contain pirated content. The matter is complicated by the anonymity of the web and the overseas location of many offending sites. While John Doe orders are helping to curb online piracy and unauthorized exhibition by cable operators, legislators still need to come up with some strong legislation and enforcement mechanisms to curtail online piracy as well as piracy on other platforms.
‘John Doe’ means ‘Anonymous Party’ as per the Oxford dictionary. In legal terms ‘John Doe’ term is used to identify ‘unknown defendant’. There is a possibility that the person causing a threat or a potential threat for creation may be unknown or untraceable. To protect creators and their creation legal remedy offered by the judiciary is termed as John Doe orders. Such unknown entity can be any individual, association, company trust etc. If the creator has an apprehension that his work might be infringed or pirated then he or she shall approach the appropriate Court with an application for getting John Doe orders for him or her. Such orders are categorised as “cease and desist orders” to protect the creator and minimise potential loss from piracy.
On the one hand, John Doe orders are helping copyright owners to protect their content against unknown parties but on the other side legislators still need to frame strict and concrete regulations and establish enforcement mechanisms to curtail piracy, online and offline as billions of dollars are blacked out from the entertainment industry because of it.
CONCLUSION
The Indian film industry has in the past lost a large amount of revenue to acts of online piracy. Since the case of Reliance Big Entertainment v. Multivision Network and Ors., the courts have used “John Doe” orders against unidentified persons named “Mr Ashok Kumar” on several occasions to stop possible infringement of copyright orders by passing an order to restrain the aforementioned “Mr Ashok Kumar’s from “distributing, displaying, duplicating, uploading, downloading or exhibiting the movie in any manner”. In conjunction with the Information and Broadcasting Ministry, the courts ended up blocking access to several domestic ISPs that were sharing such files. Thus, starting from Taj Television Limited vs. Rajan Mandal, the focus has shifted from unauthorized broadcast of channels to online piracy of movies. John Doe orders have helped in combating instances of online piracy and thus helped in protecting the rights of the media industry by tackling unauthorized signals and broadcasts.
The extent of piracy has only increased in recent times with the availability of links on various platforms. Despite the measures taken by the courts, this issue persists. With films being available on digital platforms such as Netflix, Amazon Prime, Hotstar, etc., one can stream films at a nominal cost in the comfort of their homes. It is believed by some that the level of piracy has decreased due to these platforms. Having said that, these platforms do not stream new films, as a result, people find illegal platforms to view movies.
The jurisprudence of John Doe orders is still at a nascent stage in India. With piracy increasing, the number of John Doe orders that are granted has also increased. As has been mentioned, the courts are trying their best to curb the problem of piracy. However, the courts have to take stricter actions to determine and to take necessary measures in cases of internet blocking. There is still a high number of people who enjoy going to the theatres and watching films. As long as people are willing to go to the theatre and watch the film, the producers and filmmakers will continue to earn profits piracy cannot diminish overnight; it will have to be a gradual process. With no piracy, the need for John Doe orders can decrease along with unnecessary removal and blocking of websites.
The future of the John Doe order will be determined by how these orders are granted and at the same time by ensuring that there is no over-blocking. It should also be important to protect the rights of those whose intellectual property has been infringed.
LAWBEES 