Moving targets

With IP infringers shifting pirated content to mirror websites following takedown orders, Delhi High Court has started allowing dynamic injunctions to block new means of broadcasting the material. Rebecca Abraham reports

Delhi High Court has long played a key role in defining the contours of India’s intellectual property (IP) rights regime. This is in no small measure on account of the wide variety of IP disputes that land on the court’s dockets.

In 1991, Delhi High Court gave its backing to IP rights derived from transborder reputation, which was then a somewhat novel idea. Later, while most often ruling for the IP rights holder, the court at times also saw fit to rule against them. In a 2016 case that pitted international publishers such as Oxford University Press and Cambridge University Press against a photocopying shop in Delhi University, the court ruled against the copyright holders, stating: “Copyright law is intended to increase, and not impede, knowledge.”

A new focus

While not causing as much controversy, Delhi High Court is once again at the forefront of expanding IP jurisprudence by allowing dynamic injunctions against so-called rogue websites in an attempt to rein in online infringement. Injunctions against online infringement have until recently been most often against specific web addresses or uniform resource locators (URLs), and blocking entire websites, some have argued, is overkill.

“The court was conscious of the risks of over-blocking,” says Hemant Singh, the New Delhi-based managing partner of IP firm Inttl Advocare. “It thus enjoined a standard of evidence to be given by a plaintiff, as well as further orders to be granted by a judicial authority. Thus, if properly applied and granted, the remedy of dynamic injunctions contains inherent safeguards against over-blocking.” Singh was amicus curiae (friend of the court) to Delhi High Court when it first granted a dynamic injunction in April 2019.

Such an injunction was granted on 23 September, to media company Star India, against 38 websites that were found to be infringing the worldwide and exclusive rights it currently owns for telecasting, broadcasting and re-broadcasting the Indian Premier League’s cricket matches.

While ordering internet service providers to block the rogue websites, Delhi High Court ruled that the website blocking order in Star India Pvt Ltd & Anr v Jackstreams.com & Ors can be extended to any other websites Star India comes across that similarly infringe its rights. To do so, Star India was required to file an affidavit before the court, and once that is done the directions issued in the 23 September ruling would apply to newly found rogue websites.