John Doe orders bring relief for film producers

Piracy is catastrophic to the commercial exploitation of cinematograph films. A film’s life is largely dependent on the revenues generated through its theatrical exploitation, especially in the first week of release.

A producer spends tens of millions of rupees in making and marketing a film. In India around 4 billion tickets are sold annually at an average price of US$0.50 per ticket. From the value of around US$1.7 billion generated by the film industry annually, US$1.2 billion (70%) is lost to piracy.

Technologies used

Piracy takes place in various ways. Films are usually camcorded in the theatre and then made available on CDs, DVDs or on cable TV through local cable operators, or uploaded on the internet for downloading by the general public.

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Among the various technologies used to curb piracy, one is to have special “water marks” on every physical print of a film circulated to cinemas. If a pirated copy is generated from a physical print bearing a water mark, the pirated print would also show the water mark on the screen. This enables film producers and distributors to determine the theatre and print used for piracy.

In some instances criminal action has been initiated against such theatres.

Recent efforts

The endeavour to combat online piracy has led to the recent introduction of the Stop Online Piracy Act bill in the US and the Digital Economy Act 2010 in the UK.

While film producers and distributors are tempted to knock at the door of courts seeking injunctive relief against the offenders, the problem they face is that details of all the offenders are not known and not knowable.

It is therefore necessary for producers/distributors to obtain injunctive relief in the form of a John Doe order against unknown violators, restricting them from communicating a film to the public without obtaining a valid licence from the producers/distributors.

The concept of a John Doe order is well entrenched in the common law jurisdictions of Canada, Australia, the US and UK.

Nature of the order

A John Doe order is a type of injunction granted by courts in cases where an anonymous person may be committing a breach of the rights of the plaintiff and cannot be identified by the plaintiff at the time of filing of suit. A John Doe order is obtained without notice to the person to whom it is addressed because the identity of the person is unknown.

John Doe orders usually restrain the violators from communicating without licence or displaying, releasing, uploading, downloading, exhibiting, playing or in any manner infringing the copyright of the copyright holder of a film. Such orders also enable the applicants to seek police assistance to enforce the order. Violation of a John Doe order would entail consequences under order 39 rule 2A of the Civil Procedure Code, 1908, for breach or disobedience of an injunction order passed by the court.

For years, regulators have tried to come up with an effective way to shut down websites that contain pirated content. The matter is complicated by the anonymity of the web and the overseas location of many offending sites. While John Doe orders are helping to curb online piracy and unauthorized exhibition by cable operators, legislators still need to come up with some strong legislation and enforcement mechanisms to curtail online piracy as well as piracy on other platforms.

Delhi High Court cases

Delhi High Court has been instrumental in granting John Doe orders in a plethora of cases. The first such order was passed by the court on 14 June 2002, in the case of Taj Television v Rajan Mandal. The path-breaking order authorized a court-appointed commissioner to enter the premises of any cable operator in India and record evidence of any unauthorized telecast of the FIFA World Cup football matches.

Delhi High Court has passed several similar orders this year, including one on 18 February to protect the copyright of telecast of the International Cricket Council Cricket World Cup 2011, and one on 4 April to protect the copyright of the film Thank You.

Pursuant to a John Doe order passed by Delhi High Court for the film Singham in the suit filed by Reliance Big Pictures, all file-sharing websites, including mediafire.com, megaupload.com, rapidshare.com, hotfile.com and fileserve.com, have been blocked by internet service providers in India.

Similar restraining orders were passed by Delhi High Court for the films Bodyguard (on 26 August), Speedy Singhs (on 21 September) and Loot (on 21 October).

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Naik Naik & Co, founded by Ameet Naik, is a full-service law firm with specific focus on entertainment, real estate, retail and technology. It has three offices in Mumbai and one in Delhi. Ravi Suryawanshi is a senior associate at the firm and can be contacted at ravisuryawanshi@nnico.com.