By
Tejas Tare, V year of B.A., LL.B. from DES Shri Navalmal Firodia Law College
“It is one thing for the industry to lose half its revenue to piracy; it’s another to destroy it emotionally”
-Jimmy Lovine
1. Introduction
Imagine investing your blood and sweat for months or years, into creating something unique content, worthy of being presented before the common public for monetary purposes. Now imagine even before this work is brought before the eyes of common public, the same gets either leaked or destroyed by and cybercrime legend, after which you are just left helpless because apparently in a 7.7 billion of total world population, it seems a close to impossible task to find out the real person behind this act of crime and hold him criminally liable before the courts of law.
It is against these helpless situations that in the era of medieval England, we were introduced to the John Doe orders. The basic idea of passing such orders was to provide for protection particularly where the defendants were unidentifiable or anonymous. Now, in a country like ours, where even the pandemic has seemed to give a boost to such already booming cyber crimes against numerous persons, such remedy to the content creators comes in very handy, especially before any sort of damage even being done to their work. Over the years, we have seen many instances where producers or television channel heads have approached the courts of law to seek such orders even before their content was out for public viewing, preventing an estimated loss owing to such rampant cyber attacks.
2. Necessity for John Doe
The basic benefit of the John Doe orders has been to enable the right, so rightly available to the original content creators and publishers. Introduced in the medieval era, maybe foreshadowing the immense necessity of this remedy in the cyber surrounded and extremely risky world of today, this remedy has stood strong protecting the basics of the Intellectual Property world.
This Pre-Infringement Injunction remedy has also been recognized under Order 39 rule 1,2 and 3 of the Code of Civil Procedure, read along with Section 151 of the same. Although, before obtaining any such order for their creative work, the plaintiff has to prove:
1. He has a good arguable case against the defendant. The stronger the order, no doubt the stronger that case should be.
2. The order has to be in terms which clearly state what the defendant must and must not do.
3. It must be possible to identify the defendant against whom the order is sought.
4. It will only be effective against a person who, when made aware of the terms of the order, will understand that it applies to him.[1]
So courtesy the Indian judiciary, to have given the proper effect to this remedy, as the mere existence of the same would never have guaranteed protection of the creative works from piracy. Over the years, many such suits were filed in the High courts around India, seeking John Doe orders, especially from the film industry, owing to the severe cases of online piracy happening now and then, against every big budgeted film. According to statistics as published in 2016, The Indian film industry had to suffer losses, amounting approximately to a 2.7 billion dollars ( 18000 crores), and over 60000 jobs, only as a consequence these online piracy acts, and therefore the effective enforcement of such a remedy like John Doe was the need of the hour.
Hence, it is not only the film industry which desperately requires this remedy, but even other television channels who have particularly acquired the rights to show the premier of any film, show or any live streaming show, can calculate an estimate of the loss of viewership if such is broadcasted by someone not having proper rights to do so, and as a consequence of loss of business which shall further affect their TRP ratings, can file for a suit in the courts, seeking for such John Doe orders against the unknown infringers.
3. Precedents
A. Taj television Ltd V Rajan Mandal and Others[2]
The plaintiff, who had the rightful authority to broadcast the coverage of the FIFA world cup 2002, moved to the court to seek an injunction order against a few named, and many unknown such channel owners, who would have broadcasted the same, but unlawfully. This was the very first case in India, where the court duly recognized the immediate need to grant the orders like John Doe, estimating the losses to the plaintiff in the failure of the same.
B. Eros International and Another v BSNL & Others [3]
A very significant judgment, with respecting to implementing such orders in India, where the petitioners had approached the court, to seek the John Doe orders against several defendants, both known and unknown, for protection of copyright over their upcoming film, “Ki and Ka”, and the Bombay High Court laid down several guidelines to be followed by the petitioners, advocates and the courts themselves, in the filing and implementing the John Doe orders in India.
The Judgment also finalized the time as 21 days, for the order being valid, after which the petitioner has to seek the help of the court again for an extension of the same.
C. Red Chillies Entertainments Private Limited V Hathway Cable & Datacom Limited & Others.[4]
The producers had moved before the Honorable Bombay High court, to seek an injunction order as a measure of safety, before the release of their film Happy New Year, in the theatres, being very cautious of the rampant acts of piracy which led many such production houses to suffer numerous losses by that year and even before it.
4. Conclusion
We have remedies enshrined in our Indian statutes where the defendant, who has performed the infringing act is known or traceable to the plaintiff, however, the problem increases when the defendant or defendants for that matter, are either unknown or not traceable. In such instances, the John Doe orders have come in extremely handy, for film production houses or cable network companies to move to the courts, to get access to and restrain such anonymous persons, from infringing their basic rights as given under the Intellectual Property laws. Also, it has worked as a brilliant defence against the acts of online piracy, which has led to causing billions of losses to the industry every year. Not to forget that as these advances in nature and effect over the next years, the variety of piracy shall also take place, which would require the judiciary to alter granting such John Doe orders, only after considering the facts and circumstances of the particular case.
[1] Bloomsbury Publishing Group v News Group Newspapers(HC 03 C01725)
[2] IA NO. 5628/2002 in CS (OS) 1072/2002
[3] NOTICE OF MOTION (L) NO. 1052 OF 2016 in SUIT (L) NO. 303 OF 2016
[4] Notice of Motion (L) No. 2366 of 2014 In Suit (L) No. 993 of 2014