On August 9th, the Delhi High Court came out with a new type of order to keep pace with the “hydra-headed” nature of copyright infringement today. Enter: the Dynamic+ injunction. Proposed by Justice Pratibha Singh (whose courtroom is no stranger to copyright conflicts), the order protects not only currently copyrighted works in infringement cases, but also works as soon as they are produced by the copyright owners themselves.
How did this verdict come about? The order came after a case filed by studio giants protesting against 16 pirate websites uploading their copyrighted films, shows, and more for free online without authorisation. Justice Singh sided with the studios, observing:
“This Court has no doubt in holding that such websites have the potential to curb [the] creation of copyrighted content and hurt the thriving content creation industry in India and abroad, as they offer unlicensed/unauthorised alternate platforms than those offered by the copyright owners themselves. Ignoring the existence of such rogue websites could result in curtailing and stifling creativity itself inasmuch as the creation of this content involves enormous investments and involves the collaborative work of various creative people such as authors, lyricists, singers, actors, dancers, musicians, support staff, extras etc…However, owing to the nature of the illegalities that rogue websites indulge in, there is a need to pass injunctions which are also dynamic qua the Plaintiffs as well, as it is seen that upon any film or series being released, they may be immediately uploaded on the rogue websites, causing severe and instant monetary loss. Copyright in future works comes into existence immediately upon the work being created, and Plaintiffs may not be able to approach the Court for each and every film or series that is produced in the future, to secure an injunction against piracy [emphasis added].”
What’s so special about this type of order anyway? This isn’t the first time courts have prevented future copyright infringements by pirate websites—these protections are issued through ‘dynamic injunctions’. As Divanshi Gupta, writing for Lexology explained, “dynamic injunction orders intend to expand the blocking orders granted against an original website, to the ‘hydra-headed’ rogue websites. It [sic] allows a right holder to approach the courts to extend the main injunction order against all mirror websites providing access to the same infringing online locations that were the subject of the main injunction.”
But, as pointed out by Justice Singh, they only focus on content that’s already been created and copyrighted. The fix: a “dynamic+” injunction that protects yet-to-created content that is exclusively owned by the rights holder from piracy.
“The injunction ought to also not merely extend to content which is past content created prior to the filing of the suit but also to content which may be generated on a day-to-day basis by the Plaintiffs,” Justice Singh observed. “This is not to say that in every case, an injunction qua future works can be granted. Such grant of an injunction would depend on the fact situation that arises and is placed before the Court.”
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However, this blanket protection also precludes someone’s chance to dispute whether the ‘owner’ actually holds copyright over future work, as SpicyIP pointed out:
“The right to dispute the claim of ownership is preceded by the automatic and blanket application of the dynamic injunction. The rationale to pre-emptively shield the plaintiff’s future works from an expectation of infringement from FIOLs [flagrantly infringing online locations], unfairly widens the terrain over which dynamic injunctions may be judicially applied. The precedentiary value of this order is deeply concerning as (i) it could soon become the prevailing norm while meting out dynamic injunctions and may be remiss of due deliberations and (ii) the inclusion of future works/creations, could result in the additional burden on the plaintiffs to prove their ownership of the copyrighted content (if disputed with malafide intents), further prolonging the adjudicatory process…The Delhi High Court’s attempt at securing the plaintiff’s rights from the possible, anticipated infringement at the hands of the defendant is well-meaning but requires more deliberation in the context of its efficacy in balancing party interests. [emphasis added]”
But, how did the Court arrive at the need for a dynamic+ injunction?: Justice Singh was hearing a case jointly filed by studio giants Universal, Warner Bros, Columbia, Netflix, Paramount, and Disney. They were unhappy with 16 online streaming websites—which were unauthorisedly streaming their vast library of copyrighted works to the public for free. Some of these websites were even new versions of “rogue” websites that had been acted against in other cases. Justice Singh recorded a laundry list of the features of these ‘rogue’ websites, including:
- Unclear owners: No details are available on who registered the website’s domain. The websites use “privacy protect” features to mask their identities. No clarity on who makes the content on these websites available. Ther is no contact details or addresses on most websites either.
- Repeat offenders: Some websites were already injuncted, that is their infringing actions were restrained, by courts in different cases. This time round, they’re using different “alphanumeric addresses” while retaining the same website name. For example, TamilMV, a defendant in this case, was acted against by the Delhi High Court in 2019 in a case filed by Warner Brothers. Vegamovies, also a defendant in the case, was acted against by the same court in 2022 in a case filed by Universal.
- Spreading the message: The websites also encourage users to join platforms like Telegram to share unauthorised content. The order describes Telegram as a platform which supports “sharing of voluminous content”. Note: Telegram has also come under the scanner for groups unauthorisedly sharing copyrighted educational and news content. Last year, Justice Singh ordered the platform to hand over the identifying information of the users behind these accounts to the petitioners in a case—a precedent that has been closely followed by others.
- Discouraging subscription-based models: Some websites even have forms encouraging users to recommend new content that can be uploaded. “The website, apart from hosting and making available illegal content, is enticing and welcoming viewers to suggest more and more titles that can be unauthorisedly made available,” Justice Singh observed.
- Hosting illegal ads: Some websites even serve ads and generate revenue from them—these include ‘unlawful’ ads for betting websites. Note: The recent IT Rules amendments prohibit intermediaries in India from hosting ads for games that haven’t been verified by private self-regulatory bodies, or that violate current laws. Gambling is banned by many Indian states.
After perusing the facts, Justice Singh sided wholly in favour of the studios. Then came the dynamic+ order.
How did the Court settle the studios’ demands? All 16 rogue websites were restrained from making public any content of the studios where their copyright ownership was undisputed. This includes their future movies, shows, and more, “if the need so arises”.
The websites were also forbidden from disseminating this work on mirror websites, or via ‘alphanumeric variations’ in the sites. The latter include “websites which are associated with the Defendants’ websites either based on the name, branding, identity or even source of content”.
The IT Ministry and Department of Telecommunications were directed to issue blocking orders within a week of the court’s order, while the eight ISPs listed as defendants were told to block the rogue websites.
Domain name registrars were directed to “lock and suspend” the rogue websites’ names after being intimidated by the studios. They were also ordered to hand over any information on the websites’ registrants, including their KYC, credit card details, and mobile numbers.
How have other courts dealt with copyright infringements of this nature? In a relatively sober way, by simply curbing future infringements of the specific material in question.
In 2019, the Delhi High Court held that it could be justified in ordering ISPs and the Indian government to prevent future infringements as well. Back then, the Court held that even mirror websites hosting the same pirated content could be blocked:
“Keeping in view the aforesaid findings, a decree of permanent injunction is passed restraining the defendant-websites…from, in any manner hosting, streaming, reproducing, distributing, making available to the public and/or communicating to the public, or facilitating the same, on their websites, through the internet in any manner whatsoever , any cinematograph work/content/programme/show in relation to which plaintiffs have copyright. A decree is also passed directing the ISPs to block access to the said defendant-websites. DoT and MEITY are directed to issue a notification calling upon the various internet and telecom service providers registered under it to block access to the said defendant-websites. The plaintiffs are permitted to implead the mirror/redirect/alphanumeric websites under Order I Rule 10 CPC in the event they merely provide new means of accessing the same primary infringing websites that have been injuncted [emphasis added].”
In 2019, when Star India challenged the unauthorised streaming of the film Chhichhore on ‘rogue’ websites, the Delhi High Court directed that the websites be blocked. It also held that:
The apprehension expressed by the Plaintiff is justified considering the fact that piracy on the internet has become quite rampant and therefore, if adequate orders are not passed to protect the rights of the Plaintiff, the Plaintiff would suffer enormous losses…Defendant Nos. 58 and 59, i.e. the Department of Telecommunications and the Ministry of Electronics and Information Technology are also directed to issue, as expeditiously as possible, a notification calling upon internet and telecom service providers to block access to the rogue websites and any other website(s) which the Plaintiff notifies as illegally transmitting or broadcasting the cinematograph film ‘Chhichhore‟ in any manner. [emphasis added]”
In a separate case last year challenging the unauthorised broadcast of IPL matches by ‘rogue’ websites, the Delhi High Court then held that:
“As and when further websites which stream the contents of TATA IPL 2022 matches illegally and unauthorisedly emerge, an affidavit in this regard may be filed by the Plaintiffs before this Court along with evidence thereof. The said websites shall also stand blocked with immediate effect, upon notice being issued to the ISPs that such an affidavit has already been filed before this Court.”
This year, the Bombay High Court ruled in favour of Applause Entertainment, which challenged social media platforms (including Instagram) hosting “substantial parts” of a web series. While directing that the accounts be blocked, in an ad-interim dynamic injunction (as described by Justice Singh), the Court restrained “even the adoption of different identities [by these websites] to perpetuate such unauthorised dissemination”.
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Note: this piece was updated on 12/9/23 at 11:45 am to correct a typographical error.