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John Doe, conceptually is a legal personification of the unknown, the untraceable. In this age of rampant online piracy, copyright owners, especially movie studios and online broadcasters face the trouble of not knowing the identity of potential infringers to prevent them from causing any damage. In such a scenario, the courts, taking into consideration the huge risk of revenue loss to the plaintiff owing to the copyright infringement and to avoid delay in justice-delivery, name the unidentified defendants as ‘John Doe’ a.k.a ‘Ashok Kumar’(the Indian Counterpart) and then issue ex-parte temporary injunctions by invoking Order 39 Rule 1 and S.151 of the Code of Civil Procedure. Once the identity and particulars of the defendants are found out, they are merely substituted in place of John Doe and thus without further ado the order is instantly made enforceable.

When and how is it made enforceable in practice?

Such orders, essentially, being in the nature of ex-parte injunctions, is subjected to the same standards of judicial tests and safeguards as a precondition. Hence the plaintiff has to establish the well-known triad of prima facie case, balance of convenience and irreparable damage along with details that prove the existence of a right and its potential breach. More often than not, these days such orders are garbed in the secured layer of  a quia timet action in order to prevent imminent violations which may not have already taken place.

John Doe orders, although a brainchild of the English Courts, have found its way to the Indian legal system in recent years, more specifically in the 2003 Delhi High Court Judgment of ‘Taj Television v. Rajan Mandal’ wherein it was held that the lack of identity of the defendant is not a hurdle as the only consideration of the court should be whether their activities fell within the scope of action. Since then John Doe orders have been part and parcel of the copyright jurisprudence and courts generally either direct the Internet Service Providers (ISPs) to block infringing websites and provide identity of illegitimate users or  seek the lesser-trodden path of directing to block only the particular URL that seems to have infringed the copyright.

Issues that have cropped up in recent years through judicial pronouncements

The blocking of entire websites in apprehension of potential infringement has lead to multifarious issues that affect not just the copyright owners, but also the ISPs and the legitimate users of the Internet. While the Delhi High Court’s track record of handling such disputes vide cases involving movies like Singham, Bodyguard and Don 2, has proven to be detrimental to the legitimate users owing to the blanket ban on certain websites, it also has resulted in the violation of consumer’s fair use rights under S.52 of the Copyright Act .

Since in most cases it is entrusted upon the ISPs to enforce the ban and thus forced to compromise with the interests of their customers, their avenue of revenue goes at stake. In a follow up to this, consumer complaints were filed against the ISPs citing deficiency in service  when the Madras High Court continued the trend of blocking entire websites on a petition by the production house of the movie ‘3’, by directing the ISPs to do the same. The Madras Court later, at the instance of the ISPs, rectified  its stand by narrowing down the earlier order to have  covered only those particular URLs which were found to be infringing rather than entire websites. Again Courts reverted back to the tradition of blocking websites, supporting the argument that ban on specific URLs would not hold good as a mere change in a character in the URL paves way for circumventing the order with ease.

Conclusion

The only saving grace to this vast pasture of ambiguity came out from the mighty pen of Justice  Gautam Patel of Bombay High Court in his latest Judgment in 2016 while giving John Doe order for the movie ‘Dishoom’, where he set out a well-chiselled framework to prevent ISPs from exercising arbitrary powers while blocking websites, to accommodate aggrieved third parties of the order at the earliest and to enforce the statutory limit of enforceability of John Doe orders as per S.52(1)(c) of the Copyright Act i.e 21 days, thus preventing  the ban to go on indefinitely unless further ban is approved by the Court after the limit. Since the Bombay High Court’s decision will only have a persuasive effect, an Apex court precedent is the need of the hour to smoothen this slippery patch of piracy.

Sports has always been a passionate affair for all the Indians for a long time and the impact it makes in the lives of the people has only multiplied over the years with the advent of technology that enabled streaming of live matches and games, both online and offline. More often than not such matches are aired through licensing contracts entered into between the hosting body of a particular sport and a broadcasting organization like the ESPN or Star Sports whereby an exclusive copyright, at par with an original dramatic/literary work, called ‘broadcast reproduction right’ is conferred upon the latter. S.37 of the Copyright Act, 1957 sets out this right, loud and clear. Since reporting of these events to inform the viewers about its progress and results, would need other organizations like the news houses to air snippets of such matches, it would virtually result in the infringement of aforementioned rights.

Here arises the relevance of Fair Dealing, an exception to the idea of exclusivity of copyrights, that permits the reproduction or use of copyright for the purpose of reporting of current events, in a manner laid down by S.39 (b) and S.529b) of the Act and thus embodies an exception to infringement of copyrights. While the concept of Fair Dealing or Fair use, as known in US, sits on the solid bed-rock of public interest, the commercial prospects of the broadcast right holders suppressed beneath wears off at times, leading to claims of infringement of their rights.

Is Public interest hoodwinked into commercial exploitation of the broadcast rights?

There indeed lies a fundamental right to report news under Article 19(1)(a) with the broadcasting houses of news networks but piggybacking on the commercial stakes of a broadcasting body that has acquired broadcast reproduction rights, by interposing the reporting with advertisements and brand marketing of their sponsors or using the match-clippings in the news excessively or even holding discussions, analysis and related programmes centred around displaying key moments of the match, would be totally unjustifiable and result in breach of broadcast rights. In such cases the defence of the public interest involved in the information dissemination of current events will not suffice, as it tantamount to a direct exploitation of the broadcaster’s investment. In the context of social networking and related apps also these days we often see highlights of cricket/football matches being shared by fans rather generously and celebrating its entertainment value.

Twin test of reporting of current events

In the light of such developments, it is pertinent to trace what constitutes ‘reporting of current events’ as it is the yardstick of fair dealing as mandated by S.39 and S.52 of the Act. For this, the conjoint reading of two important decisions of the Delhi High Court, namely ‘ESPN Star Sports v. Global Broadcast News Limted & Ors.’(2008) and ‘NDTV v. ICC’(2012), will throw some light to the twin test propounded by the court.

Nature of the coverage :  It checks if the coverage is mere result-oriented reporting or  involves analysis or review of a sporting event. In the latter case, injunction must follow notwithstanding the fact it is fair or unfair reporting.

Aggregate length of reporting : With regard to the this, there has been many precedents which set diverse time limits such as a minimum of 2 minutes of sports feed per bulletin or 7-10 minutes per day. But in this case the Court rationally observed that the aggregate length of reporting can only be discerned on a case to case basis as the coverage of each sport demanded different durations of display. Obviously the time-frame for reporting of a match of cricket can never be on the same footing as that of a larger event like Olympics due to the obvious change in scale and scope.

Conclusion

Fair dealing in copyright is the quintessential limb of public interest, but when clothed in the context of ‘reporting of current events’ through which broadcast of sports videos are effected, the very same limb often gets coloured in pursuit of gaining commercial mileage by other TV channels and social networking agencies, forcing it to carry out scathing attack on the broadcast reproduction rights of the legitimate broadcasters. While it certainly remains a concern as for their investments and profits, such a right of broadcasters in itself will be questioned soon as it poses a hurdle in this era where any clippings can be shared online for entertainment, educational, analytical or even promotional purposes by anyone.