The Future of John Doe Jurisprudence in India

Introduction

Technology or precisely, the technology that catalyses reproduction of commodities is in constant conflict with itself in what it intends to achieve with what it actually achieves. Intellectual Property, oftentimes finds itself caught in the middle of this perpetual inconsistency. Intellectual Property, as the manifestation of ideas in form of expressions is a result of extreme labour and is a rarity which leaves it susceptible to theft. Bollywood movies, too, fall in line with this narrative.

It is pertinent to note that, Cinema takes up the space as one of the most crucial ingredients of the culture of a country, for it not only reflects what a country is made up of but also has the potential to persuade masses. Therefore, technology too is bending and flourishing in a way to circumvent the expedition of production of films. However, the same technology has brought in various perils for the cinema, especially, in form of Piracy.

The Indian Film Industry is one of the largest films producing industry in the world. This can be credited to the rampant increase the access to media by a significant population that inhibits the territory of India. Moreover, the internet has contributed to the shrinkage of the existence of territorial boundaries of this country, while simultaneously contributing to the consumption of the Bollywood movies. However, online piracy, which is a perpetual resident of the internet acts a counteractive force. Online Piracy because of its anonymity often escapes the clutches of law. In the absence of a specific law to combat this counteractive force, courts around the world evolved the ‘John Doe Jurisprudence’, which provides speedy remedy to protect the copyright of the producers. However, over the years this jurisprudence took a form that resembled more to a trend than a remedy, this creates a ground of debate for its survival in the jurisprudence. The author in the following essay will discuss in detail the evolution of the John Doe Jurisprudence, while critically analysing its implementation over the years and finally its future in India.

The presence of various laws to protect the rights of the producers, they lack teeth when it comes to Online Piracy. The issue with online piracy is of identification, for the infringers’ identities are unknown or false. The urgency to protect the copyright lead to evolution of the John Doe Jurisprudence.

Therefore, the article hereby will critically analyse the conflicts that arise in execution of John Doe orders and its future implications.

John Doe Order: Evolution in India

In US the Supreme Court case of Doe v. Wade[1]where for the first time the anonymous entity to a criminal suit was referred to as Doe. However, it was only in year 2002, i.e., years after the inception of this jurisprudence in countries such as U.S. and U.K. that the John Doe arrived in India in the case of Taj Television v Rajan Mandal[2].A “John Doe” in Bollywood productions copyright, case is initiated under Order 39 Rule 1 and 2 read with Section 161 of the CPC[3].

Conflicts in execution of John Doe Orders

‘John Doe’ or ‘Rolling Anton Piller’ orders evolved to overcome difficulties copyright owners encountered in ascertaining specific defendants, enabling them to institute ex parte infringement suits against unknown persons belonging to an identifiable class[4] who upon identification would be impleaded and presented with the opportunity to defend themselves analogous to any civil proceeding[5].For having such characteristics, the ‘John Doe’ jurisprudence proves extremely effective, superficially, for it results in expeditious remedy against online piracy which often times outsmarts the copyrights laws.

Notwithstanding that most orders are obtained a day prior to the movie’s release by which time substantial piracy may already have been perpetrated, one can sympathize with the producers’ apprehensions[6]. However, this emotion is only sporadic as on a closer look it is revealed that the orders are executed with no guidelines and supervision.

The ambiguity and consequently sweeping nature of the orders were only compounded when the Delhi High Court included the deceptively innocuous term ‘Internet’ for the first time while granting a John Doe order to the producers of Singham[7] without any further qualification[8].

One of the most alarming aspect of the John Doe orders is the ex parte order that are delivered against the defendants. In the case M/S R.K. Productions Pvt. Ltd. V. BSNL and Ors[9]., the Internet Service Providers for the first time were made a primary party to such in such orders. It is pertinent to note that all websites carry copyrighted and non-copyrighted material on them, however, since the courts have no means distinguish between the two the entire websites have to bear the brunt, moreover, since these orders were passed ex parte the ISPs never get the opportunity to defend their cases. Such execution strikes at the very basic principles of the Jurisprudence which states the importance of proving both the parties with opportunities to be heard.

These, executing fallacies show that the John Doe orders prove to only fruitful on surface, but, are highly damaging in the larger picture. The rulings of the various High Courts over the year showed a bright future for the John Doe Orders in India, but, overall a dystopian future for the consumers of the Internet and the ISPs.

Conclusion: The Future

The John Doe Orders in the past turned out to be harmful for the welfare of the consumers of the Indian Film Industry as a result of murky orders which resulted in unclear way for their execution. The Bombay High Court[10]in a recent case attempts to put on end to this practice, however, the order too has various fallacies, for instance, the provision for Ombusdman can prove to be troublesome, for they might get influenced by the producers of the movies.

The John Doe Orders, with the pace they were delivered in the past had the capacity to turn to be more damaging than the ‘evil’ of Piracy it was attempting to combat. The future, of John Doe orders in India is still unclear at best. The reason is that the Courts still might be inclined towards giving the producers the benefit, but, if they strictly follow the guidelines laid down by the Bombay High Court, the remedy might not reach them in time. John Doe Order has failed to provide a balance of rights in India. But, in the absence of any other effective legislation at the moment, it is here to stay, however, with certain check and balance.

Author: Shivani Kundle, BA LL.B. IVth year, Bharati Vidyapeeth Deemed to be University, New Law College, Pune, Intern at Khurana & Khurana, Advocates and IP Attorneys. In case of any queries please contact/write back to us at niharika@khuranaandkhurana.com

References:

[1] 410 U.S. 113 (1973).

[2](2003) F.S.R. 22.

[3]Civil Procedure Code 1908, 21st march 1908.

[4]Hayhurst Gordon W., Ex parte Anton Piller Orders with John Doe Defendents, 9 EIPR, 257, 257 (1989).

[5] Seymour Jillaine, Injunctions enjoining non-parties: Distinction without difference?,66(3) CLJ, 605, 607-608  (2007).

[6] Recent Inclination of Indian Judiciary to Pass “John Doe” Orders – A Critical Analysis on the Perspective of Copyright Infringement of Film Productions, Law Mantra, (Sep. 28, 2018), http://lawmantra.co.in/recent-inclination-of-indian-judiciary-to-pass-john-doe-orders-a-critical-analysis-on-the-perspective-of-copyright-infringement-of-film-productions/#_ftn62.

[7]Reliance Big Entertainment Pvt Ltd v Jyoti Cable Network & Ors, CS(OS) No. 1724 of 2011.

[8]Supra, 6.

[9] O.A.No.230 of 2012 in the High Court of Madras.

[10]Balaji Motion Pictures Ltd. & Anr. V. Bharat Sanchar Nigam Ltd. & Ors

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