Modernising India's Copyright Laws In Digital Space

In the digital world, protecting any intellectual property takes on a new level of complexity — with rapid advancements in technology making it increasingly difficult for the regulatory framework to stay abreast with the times.

This is an all too familiar situation in the post-internet and post-social media world. It impacts not just film and TV shows but all kinds of art and content. From international artists dealing with their albums leaking prior to the release date, to pages of newly released books being made available for download illegally, movies and web series leaked before the official launch — these violations of IP rights have become big concern today.

However, Indian courts seem to be taking progressive steps to navigate this uncharted territory, with the rise of Dynamic Injunctions — a unique approach to protecting copyrighted content in online spaces. To ensure effective implementation of the regulations and adequate safeguards for IP rights, a codified framework on rules has become the need of the hour.

A Dynamic Injunction is an order from a court that not only blocks access to a website that infringes upon the IP rights of a plaintiff but also allows them to extend this blocking order to other similar websites or platforms that may surface later to protect against potential copyright infringement. This way, the aggrieved party can avoid filing fresh suits, while reducing the court’s burden to constantly monitor and adjudicate on the same matter.

In a landmark case in 2019, UTV sought relief from the Delhi High Court against the unauthorised streaming and downloading of their copyrighted content on multiple websites. Subsequently, a permanent injunction was granted to block the list of rogue websites submitted in the pleadings. The Dynamic Injunction also covered new websites that mirror the blocked ones or are redirected from them. The principles laid down in the UTV Case was also relied by the Delhi High Court in later cases involving media giants such as Disney and Universal.

In 2023, the Delhi High Court took a step forward in the evolution of the Dynamic Injunction and extended the relief to future IP created by the plaintiff in the noteworthy case involving Universal City Studios. To keep pace with the dynamic nature of digital IP infringements, the court extended the relief of dynamic injunctions to future works that would be created by plaintiffs as the court understood the impracticality for the plaintiffs to constantly seek injunctions from the court, every time they produced any new content, which subsequently got illegally distributed/circulated on online websites/platforms.

This is referred to as a Dynamic+ Injunction. In a very recent development, the Delhi High Court has also coined and applied the term “superlative injunction” as an extension of dynamic+ injunctions to extend enforcement measures to multiple modes of digital infringement, including mobile applications.

Dynamic+ Injunctions are becoming increasingly common, with noteworthy media companies seeking relief thorough this route. Only in the past month, we have seen such relief be granted for the broadcasters of popular sports leagues, such as the FIFA Club World Cup and the India-England test cricket series.

Although several courts have contributed to fill the legislative vacuum through Dynamic Injunction and Dynamic+ Injunctions, it has now become crucial to codify a statutory framework under the Copyright Act, 1957 and Copyright Rules, 2013.

Currently, relief through such injunctions is being granted by courts based on their own discretion which may create legal uncertainty for all stakeholders, including plaintiffs, intermediaries such as internet service providers and domain registrars.

Given the evolving nature of digital IP infringement, there is a pressing need for legislative intervention to provide legal certainty in relation to the grant of dynamic and dynamic+ injunctions.

The Government may need to consider making amendments to the Copyright Act, 1957 and the Copyright Rules, 2013 to codify a clear framework enabling aggrieved parties to seek dynamic injunctions before courts in a structured and predictable manner. This framework may provide the procedure to be followed by the courts while granting such injunctions which may include the following:

• Primary purpose of the website, being infringement of copyright;

• Volume of traffic or frequency of access to the website;

• The criteria that plaintiffs must satisfy to seek dynamic injunctive relief. It may also include the roles and responsibilities of key intermediaries such as ISPs, social media platforms and domain name registrars.

It is also of utmost importance that the legislative approach must remain flexible to allow courts to adapt to and tackle new methods of infringement in the digital age. 

To build the relevant framework inspiration can be drawn from foreign jurisdictions, such as the - European Union (Articles 8.3, 9 and 11 of 2001 InfoSoc Directive); the United Kingdom (Section 97A of the Copyright Designs and Patents Act 1988); Singapore (Sections 193DDA, 193DDB and 193 DDC of the Copyright Act, 1987). wherein courts have increased the responsibility of ISPs, whose services have been or are being used to access a website to infringe copyright of a party. These jurisdictions require ISPs to block access to a flagrantly infringing website, thereby, giving plaintiffs a more effective tool to disable access to infringing websites.

Codifying the framework will not only support aggrieved IP holders in securing timely and meaningful remedies but also bring about much-needed uniformity and judicial certainty across enforcement actions for copyright infringements.

Smriti Yadav is a partner and Sunaina Brahma is a principal associate at Khaitan & Co. The views expressed are personal.

Disclaimer: The views expressed here are those of the author and do not necessarily represent the views of NDTV Profit or its editorial team.