By-- Ms. Krishma Shah
(Senior Associate, A&P Partners)
The recent release of Salman Khan starrer “Radhe – Your Most Wanted Bhai” and the subsequent acts of piracy by a handful, makes us revisit and reiterate the importance of “John Doe/ Ashok Kumar” orders to protect our Intellectual Property Rights.
For the unversed, the superstar Salman Khan starring movie “Radhe – Your Most Wanted Bhai” recently released in Dubai on 12th May 2021 and in India on 13th May 2021 on an OTT platform and immediately thereafter, the illegal release of the film on online platforms came to light on the evening of 13th May 2021. Corrective measures have been taken by the makers of the movie and courts have also granted them interim protection against piracy.
This makes us consider the need and importance of protecting our Intellectual Property Rights. The Media and Entertainment industry thrives on creativity and originality, and content creators at all times endeavor their best to bring something new, unique, and exclusive to the table for public exhibition and consumption, while also displaying their inimitable talent. While originality and innovative ideas are worshipped, appreciated, and also rewarded, but the question is, whether that is enough for the author and/or the owner and/or the licensee/ assignee, etc. of such works?
In today’s day and age of the internet, advanced technology, easy accessibility, etc., there is a rampant practice of illegal downloading, uploading, and exhibiting of content, which ultimately leads to immense economic and emotional losses to all those involved in the process of creating, licensing, investing, producing, distributing, etc. of the said material.
While there is a lot of time, money, effort, and energy invested in creating and distributing a piece of work to be exhibited to the general public; Piracy, although illegal, is a flourishing practice.
To protect the rights of such content and content creators and to prevent it from being copied and/ or pirated, it is essential to consider the importance of Intellectual Property Rights (“IPR”). With increasing awareness and consciousness, we have come a long way in developing and recognizing our IPR. Upon analyzing and realizing the importance of IPR and the losses/ potential losses in case of its violation, Indian Courts were compelled to consciously consider the rights of the content creators’/ content owners and protect their rights from infringement. One of the most classic steps towards achieving and protecting the IPR is the “John Doe” orders, wherein, the courts have gone a step ahead and granted protection to the applicant’s/ plaintiff’s rights even before the infringement has taken place and that too against unknown defendants, to restrain apprehended and impending wrongful acts. The evil of piracy has cursed several sectors of the media and entertainment industry. The investors and stakeholders suffer huge losses due to piracy and illegal exhibition of their films as the infringers do not pay any monetary compensation of any nature whatsoever, and the person who uploads, downloads, distributes, or exhibits such infringing material, is unknown to the world and hence, it becomes difficult to identify and book him/ her for such offenses. Therefore, pre-emptive action like ‘John Doe orders’ has attained great connotation to protect intellectual property rights and deter infringements.
Owing to the ever-increasing cases of piracy, it is now a usual practice for people in the media and film industry to seek John Doe orders against internet service providers, illegal unlicensed distributors, and cable operators before the release of their films. The idea and intention behind the John Doe order, emanates from situations where a court passes such orders in form of Quia Timet injunction, even before the infringement. Quia Timet injunction – is an order of injunction passed to protect the plaintiff's rights and restrain threatened or imminent wrongful acts of an unknown defendant. Film-makers and film producers have now come to an understanding it is easier to stop problems than to correct them and one would ideally want to avoid a problem if possible, rather than deal with it. Thus, making a paradigm shift towards John Doe orders.
As explained in the beginning, recently, superstar Salman Khan’s release of his new movie “Radhe – Your Most Wanted Bhai” on OTT platforms (on 12th May 2021 in UAE and on 13th May 2021 in India), was soon followed by pirated versions of the film being circulated, shared and viewed on various online platforms. Fortunately, the makers of the movie had already procured a John Doe order from the Hon’ble Madras High Court on 12th May 2021 wherein, the Court has inter alia directed Internet Service Providers to block access to the websites/webpages on which this film was expected to be made available unauthorized. In light of the John Doe order procured by the film’s producers, the damage has been mitigated and was reduced to infringement at the hands of few. Lest, I cannot even fathom to imagine the damage that could have been suffered by the makers, had it not been for the John Doe order.
As they say, sometimes, it’s best not to take risks. It is to avoid these situations and to mitigate damage and loss in such cases, that many film-makers/ producers procure John Doe orders against internet service providers, illegal unlicensed distributors, and cable operators before the release of its films. Indian judiciary has also recognized the need to protect copyright violations in several situations and accordingly, has passed John doe injunction orders prior to the release of several new movies to prevent piracy and illegal copying, distribution, broadcast of new films and/or songs at the hands of unknown and unauthorized persons.
Hence, in a move to avoid possible unpleasant consequences, the John Doe order has been instrumental for many in the film industry to fight or at least curtail piracy. Owing to the deterrent orders passed by the Indian courts from time to time as also the application of penal provisions on piracy, many people who would casually engage in piracy on a frequent basis for viewing content, have now switched to paid and protected sources.
While I believe that our journey to protect the IPR has commenced, but with the recent explosion in the case of Salman Khan starrer “Radhe – Your Most Wanted Bhai”, despite having procured a John Doe order, it is evident that we still have a long way to go. An FIR has been registered by the film’s producers and the probe is underway. Also, the Delhi High Court vide its Order dated 20th May 2021 has also granted interim protection against piracy of the movie in any form and has restrained the storing, reproducing, circulating, copying, selling, exhibiting, communicating, and making available of the copies of the said film on Whatsapp or any other platform. Hopeful for a better journey ahead towards our destination for a piracy-free world. Signing off.
There is a lot of discussion on the intermediary guidelines notified by the Government under the Information Technology Act, which is intended to regulate the digital content and it will be interesting to see if the nature and implication of the John Doe order changes in light of its applicability and enforceability. John Doe orders vis-à-vis intermediary guidelines are an entirely different topic and may deserve an independent discussion.