Indian cyberspace is passing through a revolutionary phase. On the one hand we are witnessing an increase in entrepreneurship activities in technology fields whereas on the other hand we are facing problems that India never visualised in the past. The biggest challenge before India is to ensure a techno legal framework that can accommodate techno legal issues and challenges thrown by Indian cyberspace. The Information Technology Act, 2000 (IT Act 2000) is clearly missing the fineness of a techno legal regime that has been avoided by Indian Parliament for so long due to lack of techno legal expertise. Even Indian courts like High Courts and Supreme Court is not capable of managing techno legal issues and wrong decisions can be found very frequently for technology related issues in India. These include decisions regarding cyber law due diligence (pdf) and Internet intermediary liability law in India. We at Perry4Law Organisation (P4LO) strongly recommend that the Internet intermediary liability law of India must be suitable amended and clarified by Indian government as soon as possible.
However, the worst decisions, especially from various High Courts in India, pertain to copyright violation in the cyberspace in India. Although the IT Act 2000 and Indian Copyright Act, 1957 both confer a long arm jurisdiction (pdf) upon Indian courts yet Indian courts have wrongly applied this principle. The entertainment industry of India has waged a war against many foreign websites and High Courts of India have favoured them in an unreasonable manner. This has happened because judges of these High Courts were not aware how technology and Internet operates. They simply granted a blanket blocking of the websites alleged to be blocked by the movie production houses and entertainment industry of India. The worst part is that the websites blocked by such judicial orders were neither represented nor there was a timeline specified by such blocking orders of High Courts. The net result was a life time blocking of such websites in India even if the film or movie in question has long become non profitable.
Indian government has to be blamed equally in this regard as it failed to take appropriate action in this regard. Everything has been left to the Judiciary to take care of. As a result websites blocking in India has become a judicial act rather a quasi-judicial act that even Indian government was required to take care of. Till now we do not have a techno legal IPR policy in India that can take care of these issues.
It is clear that both High Courts of India and Central Government were parties to and responsible the wrong decisions pronounced by these High Courts. However, the worst part is that both High Courts and Indian government have also ignored the cyber crimes committed while protecting the copyright and intellectual property rights (IPRs) of movie producers and entertainment industry of India. After movie producers failed to get the desirable results through technological means like DNS redirection, they started doing illegal acts in the form of using distributed denial of service attacks (DDoS) to take down copyright violating websites, using DNS cache poisoning attacks to manipulate DNS services, etc. Most of these activities are illegal to perform yet the entertainment and media industry is hiring professionals to do the same. This can make them liable for civil and criminal actions yet no action was taken by Indian government against those engaging in such illegal activities and also those who hired their services. Brand protection and copyright protection in India must be performed in a legal and authorised manner. Unfortunately, this is not happening in India as on date.
Even States in India are fighting among themselves regarding their copyright. As per media reports, Telangana today said it filed a case with Cyber Crime cell against Andhra Pradesh alleging it has indulged in “plagiarism” by copying their web designs and data formats that were submitted to the Ministry of Commerce.
Fortunately, we have at least One High Court Judge who has understood the implications of blanket John Doe orders. In Balaji Motion Pictures Ltd. & Anr v. Bharat Sanchar Nigam Ltd. & Ors., Suit (L) No. 694 Of 2016, Justice Gautam Patel of Bombay High Court has refused to grant a blanket injunction against the entire website as opposed to the infringing link carrying page alone. The learned Judge has also provided for a sunset clause so that the injunction does not operate indefinitely. This is a sensible and pro active approach and we at Perry4Law Organisation (P4LO) welcome this decision. We also strongly recommend that movie producers and entertainment industry of India must now stress upon genuine, law abiding and proper techno legal measures to safeguard their interests as days of blanket ban would be over very soon.
A continuous vigil in the cyberspace over a long period of time can bring better results than a knee jerk reaction and blanked John Doe order. But this requires patience, selection of proper techno legal partner and obviously expenses as well. But in the long run, every single rupee spent on brand management and online copyright protection is worth spending.