IPRMENTLAW WEEKLY HIGHLIGHTS (APRIL 8-14)

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DELHI HIGH COURT PASSES A LANDMARK JUDGEMENT AGAINST FILM PIRACY- ISSUES ITS FIRST DYNAMIC INJUNCTION AGAINST HYDRA HEADED ROGUE WEBSITES

The Delhi High Court vide its judgement dated April 10, 2019 in the matter of UTV Software Communications Ltd vs 1337TX.TO & ORS decreed a permanent injunction against defendant websites from, in any manner making available to the public any cinematograph work/ content in relation to which the plaintiffs have copyright. Department of Telecommunication and MEITY were also directed to issue a notification calling upon various ISPs / TSPs to block access to the said defendant websites. The plaintiffs were permitted to implead the mirror/redirect/alphanumeric websites under Order I Rule 10 of the CPC in the event the defendant rogue websites merely provide new means of accessing the same primary infringing websites that have been injuncted.

The following issues were taken into consideration by the Court:

  • Whether an infringer of copyright on the internet is to be treated differently from an infringer in the physical world?

The Court answered this in the negative and held that that there is no logical reason why a crime in the physical world is not a crime in the digital world especially when the Copyright Act does not make any such distinction.

  • Whether seeking blocking of a website dedicated to piracy makes one an opponent of a free and open internet?

The Court answered this in the negative and held that the key issue about Internet freedom, therefore, is not whether the Internet is and should be completely free or whether Governments should have unlimited censorship authority, but rather where the appropriate lines should be drawn, how they are drawn and how they are implemented.

  • What is a Rogue Website ?

The Court listed the following factors to be considered while determining whether a website is a Flagrantly Infringing Online Locations (FIOL)/ Rogue Website:

  1. whether the primary purpose of the website is to commit or facilitate copyright infringement;
  2. the flagrancy of the infringement, or the flagrancy of the facilitation of the infringement;
  3. Whether the detail of the registrant is masked and no personal or traceable detail is available either of the Registrant or of the user.
  4. Whether there is silence or inaction by such website after receipt of take down notices pertaining to copyright infringement.
  5. Whether the online location makes available or contains directories, indexes or categories of the means to infringe, or facilitate an infringement of, copyright;
  6. Whether the owner or operator of the online location demonstrates a disregard for copyright generally;
  7. Whether access to the online location has been disabled by orders from any court of another country or territory on the ground of or related to copyright infringement;
  8. whether the website contains guides or instructions to circumvent measures, or any order of any court, that disables access to the website on the ground of or related to copyright infringement; and
  9. the volume of traffic at or frequency of access to the website;
  10. Any other relevant matter.
  • Whether the test for determining a Rogue Website‘ is a qualitative or a quantitative one?

The Court analysed two judgements while deciding on this issue. First  one being of Bombay High Court’s decision in EROS vs BSNL where the Bombay High Court had held that for a blocking order to be passed against the entirety of a website, it must be shown by the plaintiffs that they have found the entire website to contain only illicit and infringing material with no legitimate content whatsoever. The second one being the Delhi High Court division bench’s decision in Department of Electronics and Information Technology v. Star India Pvt. Ltd where the Court had taken the qualitative approach instead of the quantitative approach by observing that the rogue websites are overwhelmingly infringing and therefore prima facie the stringent measure to block the website as a whole was justified. The Court was of the view that if the test to declare a website as a rogue website is that it should contain only illicit or infringing material, then each and every rogue website would add a small percentage of legitimate content and pray that it be not declared an infringing website. Consequently, the real test for examining whether a website is a Rogue Website is a qualitative approach and not a quantitative one.

  • Whether the defendant-websites fall in the category of Rogue Websites?

The Court answered this in the affirmative for the following reasons:

  1. The rogue websites do not provide any legitimate contact details, they hide behind veil of secrecy and are located in safe-havens and rarely comply with requests for takedown.
  2. The rogue websites facilitate infringement by providing features such as indexing, detailed search functions, categorization, etc. which make it very convenient for a user to search and download illegal content.
  3. The sample evidence filed by the plaintiffs is consistent with the criterion adopted globally by various courts to direct blocking of such websites, such as in Singapore and in Australia.
  4. The rogue websites encourage a user to circumvent detection or blocking orders by providing detailed instructions on how to avoid detection or access a blocked website.
  5. The rogue nature of these websites has already been accepted by courts in other jurisdictions such as in Australia and the Plaintiffs have duly filed such orders before this Court. Consequently, the question of whether these websites are indeed rogue websites and deserving a blocking order have already been dealt with by competent courts in other jurisdictions.
  6. Sample evidence has been filed considering the volumes of content of the website and in order to avoid making it an impractical, costly, ineffective, non-fruitful and time consuming exercise.
  7. The list of movies provided in the Plaint are admittedly an illustrative list and not an exhaustive one.
  8. The volume of traffic to these websites is also indicative of their rogue nature.
  • Whether this Court would be justified to pass directions to block the Rogue Websites‘ in their entirety?

The court answered this in the affirmative. It was of the view that passing a website blocking injunction order, it would have to also consider whether disabling access to the online location is in the public interest and a proportionate response in the circumstances and the impact on any person or class of persons likely to be affected by the grant of injunction. The Court order must be effective, proportionate and dissuasive, but must not create barriers to legitimate trade. Further, website blocking in the case of rogue websites, like the defendant-websites, strikes a balance between preserving the benefits of a free and open Internet and efforts to stop crimes such as digital piracy.

  • How should the Court deal with the ‘hydra headed’ ‘Rogue Websites’ who on being blocked, actually multiply and resurface as redirect or mirror or alphanumeric websites?
  • The Court referred to the Singapore High Court’s decision in Disney v M1, where the Court, considered the issue of websites with different domain names or IP addresses providing access to a website which is the subject of an existing blocking order. The Singapore Court, in this case, crafted a ‘dynamic injunction’ whereby a plaintiff could file an additional affidavit stating to the court why a new website fell within the purview of an existing blocking order, and forwarding the same to an ISP, which could dispute the merits of the blocking order. The Delhi High Court in this case notes that the ‘dynamic injunction’ stemmed from specific provisions of Singapore law. However, the Court held that it was within its inherent powers under Section 151 CPC to craft a solution of a similar nature, and that the plaintiffs could avail of a similar injunction by impleading additional websites under Order 1 Rule 10 of the CPC. However, the court considers that the judiciary itself should not be burdened with constantly monitoring such affidavits and adjudicating upon their validity. The order therefore delegates the power to adjudicate upon the issue of additional websites being added to an existing blocking order to the joint-registrar of the Delhi High Court, who functions in an administrative capacity

The Court also added a suggestion to ‘MeitY and the DoT, who were also defendants in this case, to consider coming up with a policy for a graduated response scheme, where individuals who access ‘pirated content’ can be notified of the same by ISPs, and if they do not refrain from continuing such actions, they may be fined.

DELHI HIGH COURT FINDS PEWDIEPIE’S SONGS RACIST AND DEROGATORY; DIRECTS IMMEDIATE REMOVAL FROM YOUTUBE

The Delhi High Court vide order dated April 8, 2019 has granted an ex-parte injunction directing Youtube to remove and disable access to the songs ‘T-Series Diss Track/ Bitch Lasagna’ and ‘Congratulations’ and also ensure that the said videos do not get uploaded ever again on the Youtube platform. The Court found these songs to be abusive, vulgar and also racist in nature and observed that it would be in the interest of justice that these videos are taken off by Youtube.

T-Series contended that in a bid to outscore T Series and regain is top position, PewDiePie has been uploading defamatory and disparaging music videos which target the plaintiff and Indians as a community and contains racist, inflammatory and hateful remarks against them as well as T-Series In a bid to ridicule and disparage the plaintiff and its trademarks. T Series further pleaded that the lyrics used in the Impugned Songs uploaded by PewDiePie are on the face of it defamatory, disparaging, insulting and offensive and that these videos are accessible throughout the world to a global audience of more than a billion who access internet and Youtube every day.

The Court observed that a perusal of the snapshots of the videos shows that there are repeated comments made which are abusive, vulgar and also racist in nature and that it would be in the interest of justice that these videos are taken off by Youtube. The Court further took note of a communication dated October 7, 2018 where PewDiePie had apologized for posting the first video stating that it was all in good fun and had assured that he is not planning any more videos on the same line. However, despite such assurance PewDiePie recently on March 31, 2019 uploaded a new video on the same lines as the first video.

SUPREME COURT ASKS WEST BENGAL GOVT TO PAY INR 20 LAKHS COMPENSATION TO PRODUCER OF BENGALI FILM “BHOBHISHYOTER BHOOT” WHICH SUFFERED UNOFFICIAL BAN

The Supreme Court bench of Justices D Y Chandrachud and Hemant Gupta on April 11, 2019 passed a landmark judgement directing West Bengal Government to pay compensation of INR 20 lakhs to the producer of the film “Bhobhishyoter Bhoot”, which had to face an “unofficial” ban in the state.

“Free speech cannot be gagged for fear of the mob,” the court said. It expressed concern over “growing intolerance” in society against artistic freedom.

Justice Chandrachud and Justice Gupta had deliberated on the matter stating that “once a movie is certified by (the) Central Board of Film Certification (CBFC), it is not open to any authority to issue formal or informal directions preventing the producer from having the movie screened”.

The Court relied on a catena of judgements passed by the apex court which emphasised the value of freedom of speech and expression in our democracy including  Romesh Thapar vs State of Madras, LIC vs Manubhai Shah, S Rangarajan vs P Jagjivan Ram, KM Shankrarappa vs Union of India,FA Picture International Vs CBFC, Prakash Jha vs Union of India,  Viacom18 bs Union of India, etc.

The Court observed there’re was a clear abuse of public power in the instant case and that the West Bengal police overreached their statutory powers and have become instruments in a concerted attempt to silence speech, suborn views critical of prevailing cultures and threaten law abiding citizens into submission.

It held “In the present case, we are of the view that there has been an unconstitutional attempt to invade the fundamental rights of the producers, the actors and the audience. Worse still, by making an example out of them, there has been an attempt to silence criticism and critique. Others who embark upon a similar venture would be subject to the chilling effect of ‘similar misadventures’. This cannot be countenanced in a free society. Freedom is not a supplicant to power.”

The Court held that as a consequence of the pulling off of the film from the theatres where it was screened on 16 February 2019, the petitioners have suffered a violation of their fundamental right to free speech and expression and of their right to pursue a lawful business. This has been occasioned by the acts of commission and, in any event, of omission on the part of the state in failing to affirm, fulfill and respect the fundamental freedoms of the petitioners. The Court was of the view that a remedy in public law for the grant of remedial compensation is required in the present case and accordingly  directed the respondents to pay to the petitioners compensation quantified at Rs. 20 lakhs within a period of one month from the date of the present judgment.

SALMAN KHAN ISSUED NOTICE BY ARCHAEOLOGICAL SURVEY OF INDIA (ASI) FOR DAMAGING ANTIQUE FIGURINE WHILE SHOOTING FOR ‘DABANGG 3’

As per reports,  Archaeological Survey of India  has issued a notice to Salman Khan and his team to remove two set pieces of the film which were being constructed at the historic Jal Mahal in Mandu, Madhya Pradesh. As per the notice, the film crew violated the norms of the Ancient Monument and Archeological Sites and Remains Act 1959 by constructing the set there. They have also been accused of damaging an antique figurine at one of the forts located nearby the banks of the river Narmada in the town of Maheshwar. According to the eyewitnesses, the figurine got damaged while the set of the film was being removed from the fort. The notice mentions that the shoot might get cancelled if they do not pay heed to the above directive.

According a reports, the production house had been informed previously also regarding the same but no action was taken on their side.

SARA ALI KHAN GETS A LEGAL NOTICE FROM COPS FOR RIDING A PILLION WITHOUT A HELMET ON THE STREETS OF NEW DELHI

The Delhi Traffic Police on 9 April, 2019 asked for the details of actress Sara Ali Khan pillion riding without helmet during the shoot of ‘Love Aaj Kal 2’ in Delhi. The police have sent her a notice and have said they wouldn’t excuse her and take action against her callousness, under the Motors Vehicle Acts, after facts pertaining to the incident are received, perused and verified.

The Delhi Police’s action comes after actor Kartik Aaryan and Sara Ali Khan were spotted in Delhi, travelling on a bike for the shoot of their film, directed by Imtiaz Ali Khan. While Aryan was wearing the helmet, Sara was not wearing a helmet. The actress, who was riding pillion, got trolled heavily on social media for not wearing the helmet.

A complaint was made with the traffic police and the complainant demanded that action should be taken for the alleged violation of law. The complainant alleged that Sara Ali Khan should not be spared just because she is an actor.

Further investigation is underway in the matter.

ELECTION COMMISSION STOPS RELEASE OF PM NARENDRA MODI BIOPIC TILL END OF LOK SABHA POLLS, PRODUCERS MOVE SUPREME COURT AGAINST THE EC ORDER

The Election Commission of India vide order dated April 10, stopped the release of the film ‘PM Narendra Modi’, a biopic on the Prime Minister till the completion of Lok Sabha elections, saying any such film that subserves purpose of any political entity or individual should not be displayed in the electronic media.

The Election Commission of India order came a day before the movie was to be released.

In its order, the poll panel said that allowing the film to be displayed could hinder the level playing field.

The EC’s decision came on the same day that the Central Board of Film Certification green lit the release of the Vivek Oberoi starrer ‘PM Narendra Modi’ and gave it a U-certificate, which would have allowed it the widest possible release on 11 April, 2019, the first day of polling.

The Supreme Court on 9 April, 2019 dismissed a petition filed by a Congress activist seeking stay on the release of the biopic and said the Election Commission would be an “appropriate” place to seek the redressal.

The apex court said it was not entertaining the petition for the stay on the release of the film as it was “premature” since the movie is yet to be certified by the Censor Board.

The makers of the film have on April 12 moved the Supreme Court against the Election Commission’s order.

The matter has been listed for an early hearing and the Supreme Court has agreed to hear the matter on 15th April.

The Election Commission’s general order on such political content can be viewed here. On a related note, the Election Commission issued a letter to the Chief Electoral Officer, Delhi regarding alleged illegal broadcast of DTH Channel named Namo TV and directed that all political advertisements and all recorded programmes with political contents are mandatorily required to be pre-certified by the MCMC before telecasting/displaying.

BANNED FOR HOSTING PORN, TIKTOK CITES DAMAGE TO FREE SPEECH IN ITS APPEAL TO INDIA’S SUPREME COURT

ByteDance, the Chinese publisher which owns the app TikTok had filed an appeal in the Supreme Court against the Madras High Court order imposing a ban on the App. In its petition, Bytedance  states that ban “amounts to curtailing of the rights of the citizens of India”. The plea will be heard on April 15 before Chief Justice Ranjan Gogoi and Justices Deepak Gupta and Sanjiv Khanna. The court had earlier refused the ‘urgent listing’ of the same plea on April 8.

BOMBAY HIGH COURT ASKS THE CENTRAL GOVERNMENT TO REVIEW THE ONLINE GAME PUBG

The Bombay High Court on April 12 asked the Central Government to review the online game ‘Player Unknown Battle Ground (PUBG) and decide if regulatory guidelineshave to be issued to internet service providers. The bench comprising of Chief Justice Pradeep Nandrajog and Justice Nitin Jamdar was hearing a PIL filed by a student Ahad Nizam through hismother where heargued that the game promotes violence and aggression and the players use expletives.

FILMMAKERS RAJESH AND KIRAN BHATIA ISSUE NOTICE TO SUNIL SHETTY FOR INTERFERING IN DAUGHTER ATHIYA’S FILM

Rajesh and Kiran Bhatia, producers of the upcoming movie ‘Motichoor Chaknachoor’ starring Nawazuddin Siddiqui and Athiya Shetty, have issued a notice to actor Sunil Shetty. Sunil Shetty was said to be interfering in the movie because his daughter Athiya Shetty’s was playing a leading role in the film. In the notice, producers Rajesh and Kiran Bhatia have made it clear that they are the final decision-making authority on every aspect and or/every project of M/s Woodpecker Movies Pvt Ltd and has asked Sunil Shetty has to stay away from the sets of Motichoor Chaknachoor or such act shall be considered as trespassing and breach of confidentiality at its own risk, cost and consequences.

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