How long before the current form of Dynamic Injunction is Reinvented again?

Earlier, aggrieved parties seeking relief against infringement of copyrights, were protected by grant of injunction by the Courts, against the perpetrators. However, traditional form of injunctions has proved to be inadequate as rapid rise of digitalization meant that the infringing data was simply moved from one website to another mirror/redirect/alphanumeric website with the same content of an already blocked website.

To counter this type of piracy, it became necessary for the courts to become creative for providing protection to the copyright holders and to prevent and deter infringement of their rights.

‘Dynamic injunctions’ was defined by the European Commission as follows:

"injunctions which can be issued for instance in cases in which materially the same website becomes available immediately after issuing the injunction with a different IP address or URL and which is drafted in a way that allows to also cover the new IP address or URL without the need for a new judicial procedure to obtain a new injunction."

Relying on this, various national courts in Europe issued dynamic blocking injunctions.

The Singapore High Court granted a similar dynamic site blocking injunction, averring that it was necessary to prevent circumvention of the main injunction. The court observed, dynamic injunction could potentially reduce the burden by obviating the need to return to court every time a new website arises.

Dynamic Injunction is also finding its place in India.  

Drawing inspiration from the judgement passed by the Singapore High Court, the Delhi High Court, in a suit filed by UTV Software Communication Ltd. passed an order of dynamic injunction, restraining the websites from resurfacing with a different name, by extending an existing injunction to new websites which could emerge with a different name in the future, to avoid filing fresh proceedings each time. The copyright holder could apply to the Registrar of the High Court along with appropriate evidentiary documents and extend the existing injunction to the website publishing the same infringing content.  

The Court laid down certain criteria to identify sites as "rogue websites" for the purpose of extending the injunction, which included:

• whether the website primarily aims at copyright infringement;

• whether the website hides the details of the registrant; and

• whether there is inaction after receiving a takedown notice with regard to copyright infringing content.

In the matter of Eros International Media Ltd. v. BSNL, the Bombay High Court, preferred a quantitative remedy whereby an entire website could be blocked, only when the copyright holder showed all contents of the website are infringing.

However, in another matter, the Delhi High Court was of the opinion that if majority of the contents of the website are infringing, the entire website could be blocked, as it would be cumbersome and onerous for the right holder to provide all the contents of the URLs.

Recently, six American studios, jointly, sought an injunction against digital platforms, to stop the illegal, unauthorized, and flagrantly illegal distribution of their copyrighted content. The Delhi High Court passed an order of ex parte ad interim order of dynamic injunction, restraining the rogue websites from streaming present and future content of the petitioners.

The Court observed, that to keep pace with the dynamic nature of the infringement that has taken the form of a hydra-headed monster, it has become necessary to issue such ‘dynamic injunction’  to protect copyrighted works as soon as they are created, to ensure that no irreparable loss is caused to the authors and owners of copyrighted works, as there is an imminent possibility of works being uploaded on rogue websites or their newer versions immediately upon publication or creation.

The Court permitted the Plaintiffs to implead any mirror/redirect/alpha-numeric variations of the websites either based on the name, branding, identity, or even source of content, by filing an application along with documentary evidence before the Registrar.

The court further also ordered the Internet Service Providers [ISP] to block the malicious websites, to enforce the injunction. The Department of Telecommunication [DOT] and the Union Ministry of Electronics, Information, and Technology [MEITY] were both instructed, to issue blocking orders against the websites.

In a typical copyright infringement case, the court first identifies the work, establishes the plaintiff's ownership of the subject work, and then issues an injunction. However, due to the nature of the illegal activities that rogue websites engage in, it is necessary to enact injunctions that are also dynamic qua the plaintiffs, as it is observed that upon any film or television series being released, they may be immediately uploaded on the rogue websites, causing severe and immediate financial harm.

The court stated that the American studios may not be able to approach the court for every single film or television series that is produced in the future to get an injunction against piracy because copyright in future works comes into existence as soon as the work is generated.

“As innovation in technology continues, remedies to be granted also ought to be calibrated by Courts. 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,” the court said.

The Delhi High Court has since, taken the concept of dynamic injunction to next level by taking a pre-emptive stand in favour of the Broadcaster by passing an order against nine websites involved in the illegal broadcasting of the ICC Men’s Cricket World Cup 2023 matches, even though the World Cup’s scheduled dates from October 5 to November 9, this year.

The Court observed that rogue websites which have indulged in piracy of copyrighted content previously are very likely to continue communicating copyrighted works to the public during the currency of World Cup 2023, causing severe financial loss to the broadcaster.

Most recent is the case of Viacom18 Media Private Limited, a broadcaster, who filed a suit seeking protection of its rights including reproduction rights in the programme ‘Bigg Boss’, in all formats when the Delhi High Court passed an ex-parte ad interim order in its favour. ‘Bigg Boss’ is a popular reality show which is telecast in many languages. The plaintiff, Viacom 18 obtained the format rights for broadcasting as well as for reproducing the programme from M/s Endemol Shine IP BV, the owner of the format.  The defendant's websites are currently running previous seasons and programmes of Bigg Boss in an unauthorized and non-licensed manner, for viewing. The domain name of the defendants is also registered in the name of Bigg Boss. The Defendant's websites worked through the mode of Video-On-Demand (VOD), where users were required to first register and then subscribe and /or make payment to access the unauthorized content which was hosted, streamed etc. The websites were also advertising the next two seasons, which are going to be produced and telecasted on the Plaintiff’s platform, contending that the same would also be launched on these websites. The Delhi High Court injuncted the Defendants from infringing on the Plaintiff’s copyright of broadcast and reproduction rights and observed that if such mushrooming of websites are permitted, it would boost piracy and unauthorised dissemination causing heavy losses to the Plaintiff.

Time and again, the Delhi High Court has attempted to protect the plaintiff's rights from potential violation from infringement by creative means however, the dynamic nature of digital evolution will necessitate equally dynamic and constantly evolving jurisprudence to combat the menace of malicious websites.

Mahua Roy Chowdhury is the Founder and Managing Partner of Royzz & Co. 

Jhanavi Singh is a Litigation Associate at the Firm.