This post is a contribution made by our interns, Twinkle Rai and Danish Alam (Amity University, Noida)

In 21st century, the population in any country is an economy driven population where every single individual wants best of the amenities in life and as result tends to surpass the limit of ethics which play a key role for a repugnant development both internally and externally.

With the refinement on intellectual property rights and most highlighted and improved right i.e. the copyright act, 1957 enacted and constantly amended to cope up with rigorous changes in technology and its impact on the losing creativity of work and its gravity. Such a recent order of protection from piracy and exclusive copying is being used by every other film/literary work/music/ sound i.e. any copyrightable matter coming within the scope of the act. Explaining the quote in more refined manner; every person does have a right to use any material he/she wants but it shall not be on the price of pre-eminent creativity and contribution to work.

Inception in India:

The inception of John Doe order occurred in the famous case of Taj Television v. Rajan Mandal and Ors.[1], where the telecasting of FIFA World Cup 2002 was stopped on various cable networks without licensing and their equipment ceased. The identity of all the telecasters was not known hence a ‘John Doe’ order was passed to prevent unlicensed showcase of the World Cup matches. The John Doe order, in Indian context, the usages of orders have brought the awareness and feel of armour amongst the Intellectual Property owners. The main agenda of John Doe order before the court of law is that what if the unidentified defendants are:

1. Not aware about such orders or,
2. Not willing to follow such orders,
3. Avoids and prefers to continue with such infringement even after that then in that case what will be the purpose of having served such orders as a wastage if the ultimate goal is not achieved of having intellectual property rights protection.

A John Doe injunction is given under Order 30 Rule 1 of The Civil Procedural Code, when the petitioners have made a prima facie case establishing the likelihood that their copyrighted work maybe prone to piracy or network sharing, which will affect their financial objectives leading to massive loss. Piracy in India is perhaps, the most emerging concern after rampant terrorism on LOC these days. It is estimated that every year at least 650 million pirated DVDs are sold in comparison of 20 million original published which is 32.5 times. As per an estimate, piracy causes $2 Billion loss every year. Accordingly, the significance of John Doe order can be easily looked at as the same is invincible. The right use and awareness campaign by government shall play a crucial role in an effective implementation of the order.

John Doe’ has its origin in the reign of England’s King Edward III when the orders were used to refer to unidentifiable defendant. Oxford Dictionary defines John Doe as an “Anonymous Party”. In Canada, John Doe order were resorted to by owners of IPR in order to preserve evidence against unknown infringers by allowing the representatives of the Plaintiff to search and seize infringed products. Once identified the term John Doe is replaced with the name of the Defendant. It is an established concept in America, Australia and UK.

Evolution of the principle:

‘John Doe’ is a term used as a reference so to provide a title to an unknown or anonymous person, entity, organization etc. The person maybe a group or an individual a real person or a legal person, a company, a registered society, service providers websites, newspapers  or anything which infringes a right of another through certain actions. Rights range from civil, political, and natural to corporate, intellectual property (copyright, trademark, and patent) and even confidential rights. Copyright owner’s shield ‘John Doe’ orders or ‘John Doe’ injunctions or “Ashok Kumar Orders” are ex parte preliminary injunctions obtained against unidentified defendants to restrain anticipated copyright infringement. In order to successfully obtain this order, the Plaintiff has to satisfy three important requirements (i) there should be a Prima facie case (ii) the infringement should cause irreparable injury to the plaintiff and (iii) the balance of convenience should be in favour of the Plaintiff. These orders have certainly been an advantage for the plaintiffs in the field of copyright protection.

In an order passed by Justice G. S. Patel, the Bombay High court allowed an ex- parte ad-interim relief in a John Doe action brought by Yash Raj Films Private Limited (Plaintiff) against 50 Defendants including major Internet Service Providers (ISPs) like Bharat Sanchar Nigam Ltd (BSNL) etc., to take measures to block access to approximately 102 web links which contain or purport to contain infringing or illicit copies of the yet to be released Salman Khan starrer Film “Sultan”. In addition to the this, the Court granted liberty to the Plaintiff to move against all the URLs stated in the affidavit if found active. The Court also granted liberty to the Plaintiff to approach the Cyber Crime Cell and report about any other web link or URL pointing to an individual download, without reference from the Court. The Court further through this order restrained intermediaries and cable/ DTH operators from making any broadcast or making available any form of download of the film, including but not limited to CDs, DVD etc., without obtaining proper permission from the Plaintiff

Peeping into the window of legality:

Under Section 14(d) of the Copyright Act, the copyright infringement in respect of a cinematographic film, the person who has actually infringed and communicated the film to the public has to be made as a defendant and such communication should be of the entire film or part of the film. .

 Section 2(m) defines infringing copy in relation to a cinematographic film as a copy of film made on any medium by any means.

 Section 51(a) (ii) defines that copyright is infringed if any person permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work.

Section 62 of the Act provides that a suit for infringement of copyright can be filed where the plaintiff resides or carries on business.

Section 55 provides for the grant of an injunction whenever copyright infringement takes place in addition to damages and accounts.

Communication to public is available: under section 2(ff) and means making any work available to the public and this availability is solely dependent on the permission approved by the copyright owner of the work for few specified persons and not everyone.

Order 7 Rule 1 of the Code of Civil Procedure provides, the plaint shall contain the name, description and place of residence of the defendant so far as can be ascertained. When such identification is unknown, a ‘John Doe’ suit is maintainable. It is also seen that the number of defendants are many.

In the case ESPN Software India Private Ltd. vs. Tudu Enterprise and others[2], it was held that Indian Courts have jurisdiction to pass an order against unknown persons arrayed as “Ashok Kumar”.

In the order for Prem Ratan Dhan Payo, the order mentions that Saikrishna Rajagopal, the representative for the plaintiff, highlighted earlier instance such as: Bang Bang and Bombay Velvet. Similarly, in a suit filed by Multi Screen Media Pvt. Ltd. against similar websites who were hosting pirated content related to the 2014 FIFA’s world Cup, and in suits filed by Star India Pvt. Ltd. in respect of various sporting events such as the ICC Cricket World Cup 2015, the India-England Series 2014, India-Sri Lanka Series 2014, the India-Australia. Cricket Series 2014-15, and the ICC Cricket World Cup 2015…”

Conditions for giving the order:

The courts in India have laid down various restrictions and conditions which the plaintiff needs to comply with before obtaining a John Doe Order.

1. Frank and full disclosure: Plaintiff has an obligation to make full and frank disclosure to the Court inter alia of the existence of his right, instances of previous breach and of an anticipated large scale and sporadic infringement by known and unknown persons.
2. Prima facie case: Plaintiff is required to establish a prima facie case before any preemptive relief can be granted to the plaintiffs. The Indian Courts while passing John Doe orders have also relied on cases/judgment passed by foreign courts where it has been held that “in cases where plaintiffs show that they have a bona fide claim that unknown persons are infringing their copyright, they have a right to have the identity revealed for the purpose of bringing action.”
3. 3. Actual/ Potential Damage or Irreparable Losses: Plaintiff must establish that, in the absence of the requested John Doe order, defendant’s actions will cause harm that will potentially or actually result in financial or irreparable losses.

In case UTV Software Communications Limited v. Home Cable Network Ltd. and ors[3]while granting a John Doe order against the cable operators, who illegally telecast pirated version of the films, the Court relied on the fact that a single telecast by the defendant would simultaneously reach several hundred thousand homes resulting in loss which are irreparable and cannot be computed in terms of money. Once these conditions are satisfied, several Courts in India have proceeded to issue John Doe orders against cable operators, internet service providers etc

Conclusion

The future of protecting copyright from online data sharing and preventing piracy is ‘John Doe’ orders. This tool is effective as the stats have shown a decline in piracy of movies which had resorted to prevention of infringement via such orders. The mindset of the people changes as a legal dictum is enforced by a Court of law, this is the order: a warning from the law. It leads no to only on economic but as well as financial loss to everyone involved in the work. Hence such a order is a savior for the present coping up of circumstances.

[1] [2003] F.S.R. 22

[2] MANU/DE/1061/2011

[3] CS(OS) No. 821/2011