"Onus is on ISPs to prevent film copyright infringements"

The Madras High Court has put the onus of preventing film-related copyright infringements on the web on Internet Service Providers (ISPs).

“Internet service providers (ISPs) have an obligation not to allow infringement to take place by using their services,” Justice K.Chandru observed while dismissing an application filed by ISPs, including BSNL, Bharti Airtel Ltd and others seeking to vacate an interim injunction restraining them from infringing on the copyright of two movies through their respective websites and web pages.

While allowing applications in two civil suits on June 22, the Court had passed interim order granting the interim injunction only in respect a particular URL (universal resource locator) where the infringing content was kept and not in respect of entire website. It also directed that the ISPs be informed about the particulars of URL where the infringing content of the movie was kept and on such receipt of particulars of URL, they (ISPs) take necessary steps to block such URLs within 48 hours.

Originally, the suits were filed by R.K. Productions Private Limited and Creative Commercials Media and Entertainment Ltd seeking reliefs in respect of movies – ‘3’ and ‘Dhammu’. Both suits were filed for ‘John Doe’ orders or ‘Ashok Kumar’ orders, as they are referred to in India.

In its suit, R.K Productions stated that their venture was a cinematographic film titled ‘3’ directed by Aishwarya R.Dhanush and having Dhanush and Shruthi Haasan as lead actors. Immediately after the release of its trailer, the film was also well-known for its promotional song "Why This Kolaveri Di", which had become an international sensation.

The production companies said various websites and web pages hosted by various persons across the world indulged in activities of recording, camcording and reproducing the film screened in theatres and then copying them through various media such as CDs, DVDs, VCDs, Blu-ray discs, computer hard drives and pen drives, and, distributing the same for a meagre sum to the general public.

Counsel Arun C.Mohan said: “Such illegal communication of a cinematographic film or motion picture results in enormous loss to the production companies.”

The production companies submitted that the web pages and websites which provide such links are also multifarious and dispersed across the world. As they did not know the exact composition of unknown persons, the unknown persons are represented under the name “Ashok Kumar”. The ISPs are responsible for the contents provided in the websites and web pages and have administrative control over the said websites and web pages of such unknown persons. However, the ISPs and the unknown persons who maintain the websites and web pages have continually turned a deaf ear on the pleas of the production houses.

Seeking to vacate the interim injunction, BSNL said an ISP only offers a medium for the users to get access to the world wide web and exchange or retrieve information. Section 79 of the Information Technology Act specifically absolves the ISPs from any liability under any law including under the Copyright Act in respect of their activities.

Bharti Airtel Ltd said “It is not the function of the ISP to check each and every URL being accessed by every customer. The function of the ISP does not include the exercise of any editorial control over any of the websites. The ISP has no concern or control with the content of any website”.

However, dismissing the applications of ISPs seeking to vacate interim injunction, Mr. Justice K.Chandru pointed out that the court had granted omnibus injunction order at the ex-parte stage and later the court made a correction on June 22 directing them to block the URL.

“That amended order is not under challenge and the said order is making workable solution without hurting the stand of both sides. The ISPs undoubtedly have obligation not to allow such infringement to take place by using their services.” (EOM)