Several jurisdictions have permitted the blocking of websites propagating child pornography, online gambling, terrorism. Is blocking of websites the appropriate measure to curb copyright infringement? UTV Software Communications Ltd and Ors. v. 1337 X.TO and Ors. is a judgment of the Hon’ble Delhi High Court delivered on April 10, 2019 that deals with this issue among others. These were eight suits seeking permanent injunction in order to restrain the defendants from communicating to the public the cinematograph works of the plaintiff without authorization. Justice Manmohan in this landmark judgment granted the injunction for blocking the websites of the defendants that provide access to infringing/pirated content. It was also directed that the mirror/alphanumeric websites that provide new means of gaining access to the same infringing content be impleaded under Order I, Rule 10 of the CPC. Further, the Joint Registrar was directed to issue directions to disable access to these hydra headed websites on being satisfied that they provide a new platform to access the primary infringing website. Countries including Singapore have passed dynamic injunctions in order to deal with the menace of mirror/alphanumeric websites.
A survey conducted by the Carnegie Mellon University(published in April 2016) to study the impact of an order passed by the a Court at United Kingdom directing the ISPs(Internet Service Providers) to block certain infringing websites revealed that the problem of piracy was reduced to a large extent as a result of the blocking. It further showed that the consumption of legal content was on the rise.
Another instance worth mentioning is when the Delhi High Court vide order dated June 03, 2019 issued an ex-parte interim injunction against unauthorized Audio Broadcast of ICC World Cup 2019. The parties that were injuncted from broadcasting the matches included a number of websites and radio channels. Yet another episode is that of the Ashok Kumar case, wherein, 219 websites were directed to be taken down for disregarding MSM Satellite’s exclusive broadcasting rights of the 2014 FIFA World Cup.
The rogue websites ought to be blocked in order to preserve the delicate balance between free cyber space and containing digital piracy. The principles of necessity and proportionality require adherence while considering deindexing measures. Blocking measures are a sword in the hands of the party in whose favour the injunction is granted and are susceptible to abuse by them. Hence, the Department of Telecom and the concerned Department of Information Technology in every jurisdiction require to oversee the process by which deindexing directions are implemented in order to prevent misuse. The order/judgment in the absence of any statutory guidelines/provisions ought to state the manner in which the said injunction would be implemented.
Most of the users particularly children and teenagers may not be aware that they are viewing infringing content and violating the copyright(s) enjoyed by the author of the said work. They may not be in the know how that the content being viewed is pirated as the website has not obtained a license from the author/producer of the work. Thus, a pop up, a notification to that effect should appear while gaining access to the said work or an email intimating the user about the illegal access being provided by the rogue website should be sent to the user. If the user inspite of all these measures continues to view the infringing content, then fines/penalties may be imposed.
Another remedy could be to send a judicial notice to the website owners to remove the infringing content within a specific time frame, failing which, the website should be blocked.