This is the second of a two part post that critically analyses the practice of website blocking for enforcements of copyrights. Part I outlined the probable cause of actions for John Doe or Ashok Kumar orders for the blocking of entire websites hosting copyright infringing content. This post reviews the nature of these orders in light of concerns of online freedom while also evaluating the effectiveness of the same in protecting copyrights of right holders.
Curtailment of Online Freedom
While the practice of passing John Doe orders is prevalent in various countries, it is generally quite notorious in India from the context of Intellectual Property Rights (IPR). There has been an alarming trend of courts passing overbroad and illogical orders as Ashok Kumar orders.[i]In the following paragraphs, we shall discuss some of the problems associated with these orders which have recently emerged:
Wide Scope of the Orders
In clear contravention of the requirement of being directed against specific instances of IPR infringement, Ashok Kumar orders direct ISP’s to block entire websites.[ii]They do not aim at removing any one instance of IPR infringement but rather choose to take down entire websites regardless of their actual content. Furthermore, these orders also operate against any website which hosts content ‘relating’ to the copyrighted material in question. As a consequence, websites such as the Internet Archive, Bleacher Report[iii] etc have been blocked even though these are not websites which encourage piracy of copyrighted material. In this context, it would be appropriate to quote the case of Balaji Motion Pictures & Anr v Bharat Sanchar Nigam & Ors[iv], wherein it was stated that “orders blocking websites should only be given when “it is demonstrated that the entirety of the website contains, and contains only, illicit material”[v]. Thus, the status quo is such that even websites which do not host these pirated movies are being banned. This occurs mainly because these are ex-parte orders based solely upon the arguments of the plaintiff.
There is a clear distinction between holding the primary party who is liable for the infringement liable and holding intermediaries such as ISP’s liable for the infringement. The responsibility is thrust upon the ISP’s to take down the alleged infringing content if the court so orders. To ensure this, specific ISPs are made parties to the suit. This ensures that these ISPs have an active incentive to comply with the overbroad order to avoid any liability for themselves. They would thus refrain from putting up a defence against the court order to avoid liability.
It is in addition to these specified ISPs that other ISPs or online intermediaries are impleaded as John Does to the blocking injunction. However, holding ISP’s responsible for infringement is against the Copyright Act itself which clearly grants an exemption to ‘mere conduits’.[vi]
Access to Knowledge
While it may be argued that the blocks are limited in time and are in the commercial interests of copyright holders, a wholesome understanding of the situation would indicate the inability of such authors or artists in meeting market demands at the prevalent market conditions. Resultantly, consumers seek out illegal methods of viewing, streaming or downloading through infringing outlets. Therefore, what is lacking, in addition to transparency in procedure, feasibility and justification of judicial actions and statutory shortcomings, is the multi-stakeholder balance between copyright monopoly over certain works and the recognition of the need of access to information under the purview of the IT Act and Copyright Act.
For example, while the Copyright Act is concerned with take down orders for the protection of infringement, it does not provide for the same content to be subsequently put up. Similarly, the uncertainty in intermediary liability and the lack of specificity in the manner of blocking, take down or due diligence of content on websites do not indicate towards furthering the principles of public access to legitimate content.[vii] This essential aspect of access to a repository of knowledge which is central to the justification of copyright law has been overlooked.
Effectiveness of Website Blocking
The law lag between technological advancement and statutory provisions in the cyber space has lead to issuing of John Doe orders as a pre-emptive step by several entertainment production houses. ISPs being the last leg of the supply chain in online content, have universally become the target of increasing frequency of such omnibus ex parte injunctions as can be observed here and here.
Reaction of ISPs
ISPs are likely to comply with orders of blanket blocking of websites as they are cost effective as opposed to litigation and undertaking diligence is effectively an acknowledgment of liability if the infringement is detected. Furthermore, ISPs are not invested in providing access to works in public domain. However, this neither satisfies the interests of the copyright holders nor consumers or the public whose access to information is being curtailed.
Moreover, the flipside of blanket ex parte blocking of websites is that it neither favours the hosts of websites nor the case of access to authorised or licensed works. Due to the lack of identification of parties in such orders, owners of websites often find out that their websites have been blocked by the ISP, with no prior notice or legal recourse. Moreover, blocking or issuing an injunction against the conduit or the ISP does not necessarily curtail copyright infringement.
Website blocking affects the ISPs, website hosts and the consumers, leaving out primary infringers from facing any consequences. Primary infringers include persons effecting theft, unauthorised recording and distribution of the copyrighted work, who subsequently share or upload the same on host websites or aggregating websites which are susceptible to being shut down.
Further, the use of Virtual Private Network (VPN) and proxies to circumvent blocks on websites, ergo an advanced technological option not opted by many, are possible avenues open for such infringers to carry on their activities. Similarly, while the argument by the Delhi High Court in Star India v. Haneeth Ujwal[viii] with regard to the convenience of shifting URLs by infringers is true, the same is true for the possibility of mirroring of entire websites with insignificant changes in their domain names, the regulation of which cannot be perceived under the current legal framework.
Moreover, the liability of those accessing infringed works is also uncertain. Therefore, the deterrence factor required to control or reduce copyright infringement by primary infringers is absent.
Copyright holders may, instead of pursuing litigation post infringement, undertake pre emptive measures of copyright protection through Technological Protection Measures (TPM). TPM may be required to be undertaken by agents or experts hired by the production company or the right holder, to control, regulate or prohibit access to or copying of copyrighted content. Such agencies may be better equipped to identify instances of infringement or piracy and suitably identify the perpetrators as opposed to the judiciary. This would effectively reduce the omnibus nature of John Doe orders. Additionally, law enforcement officials may prevent copyright infringement by primary infringers by clamping down on video recording and related activities which feed the secondary sources with the infringed work.
With regard to issuing blocking orders, certain very innovative guidelines were suggested by the Bombay High Court in Balaji Motion Pictures & Anr. V. Bharat Sanchar Nigam Limited,[ix] which amongst other things, provided for the time limitation of the blocking injunction, the display of the order number as well as consequences of infringement on the blocked pages and most importantly, recourse for innocent parties impleaded as John Does to approach courts with 48 hours prior notice. In a subsequent case,[x] the High Court has further, stressed upon the verification and diligence of links prior to the issuance of these order by neutral agencies. However, the initial excitement in the jurisprudence of Jon Doe website blocking orders subsequent to Balaji Motion Pictures may be dampened by the persisting injunctive activities, the outcome of which may not be fool proof or in public interest.
Therefore, to effectively bridge the gap between technological advancement and statutory shortcomings and in light of frequent website blocking, there is a requirement of reviewing specifically, the effectiveness of website blocking on copyright infringement by means of an expert committee report. Such an endeavour may delve into technological advancements in the field of online piracy and correspondingly incorporate changes in statutes and policy, while taking into consideration the claims of various private and public stakeholders.
[This post has been written by Nayana Dasgupta and Abhishek Hazari, 5th year and 3rd year law students at WBNUJS, Kolkata respectively and edited by Ramya Chandra, a 5th year law student at WBNUJS, Kolkata]
[ii]As in the case of Red Chillies Entertainments Pvt. Ltd. v BSNL and Ors. C.S. No. 601 of 2017 ; Prakash Jha Productions v. BSNL and ors. C.S. No. 576 of 2017
[iii]Star India Pvt. Ltd. Vs. Sujit Jha & Ors. O.S. no. 3702/2014
[iv]SUIT (L) NO. 694 OF 2016
[v]Balaji Motion Pictures & Anr v Bharat Sanchar Nigam & OrsSUIT (L) NO. 694 OF 2016
[vi]Section 52(1)(b) The Copyright Act 1957
[vii] Indialegal, ‘Blocking websites or internet access: An Open and Shut Case? (India Legal, 22 August 2017) <http://www.indialegallive.com/constitutional-law-news/courts-news/blocking-websites-or-internet-access-an-open-and-shut-case-33462> accessed 30 August 2017.
[ix] Suit (L) No. 694 of 2016.
[x] Eros International & Anr. V. Bharat Sanchar Nigam, (L) No. 2147 Of 2016 in Suit (L) No. 751 OF 2016.