Intellectual property (IP) is an intangible asset and probably the most important form of property today. The definition of IP has widened with the growth of international trade and globalization of economy, giving the whole business a new paradigm. IP having developed into a powerful commercial asset with the ever revolving digital technology, its theft has also become rampant.
India has started using this unique concept of John Doe orders (also famously known as Ashok Kumar orders) to punish class of unknown infringers. The name "John Doe" is used to identify unknown infringers, who have allegedly committed some wrong, but whose identity is unknown to the plaintiff. To avoid delay and to render justice, the court names the defendant as "John Doe" until such time the defendant is identified. The orders passed by court in such cases are thus popularly known as "John Doe orders".
John Doe orders are given when no other alternative is left to ensure justice and means to provide immediate and effective course of action to the plaintiff. The John Doe order also affords the trade-mark or copyright owner the possibility of curtailing the infringer's future activity by means of an injunction.
The Indian judiciary has taken positive steps towards development of this trend and recognizing the need for such orders to provide relief to interested parties. The Indian Courts have since long granted interim order under Order 39 Rules 1 & 2 of the Code of Civil Procedure, 1908 to protect the rights of the plaintiff and prevent possible injury. The Delhi High Court ("Delhi HC") passed its very first John Doe order in the year 2002, in Tej Television Limited vs. Rajan Mandal. The matter dealt with unauthorized transmission of channel ("Ten Sports") by unlicensed cable operators without entering into agreements with marketing partners of the plaintiff. Around 1377 cable operators had taken licenses but several prominent cable operators had not signed up and broadcasted the same without any approvals. The plaintiff was the owner of the registered broadcasting right of the channel for the Soccer World Cup, 2002. The unauthorized broadcasting caused losses to the plaintiff and also strained their relationship with the other licensees.
Quia Timet injunctions in the recent past have been given prior to release of several new movies to prevent sale of pirated copies and illegal copying/distribution/ broadcast of new films/songs by cable operators and other unauthorized persons. The Delhi HC has been the most pro-active in creating awareness and passing such unique orders in case of movies like Singham, Bodyguard, Speedy Singhs and Don 2, granting ad-interim ex-parte injunction against unknown persons and protecting the proprietors from infringement of their intellectual property.
In Singham case, interim applications were filed for injunction to prevent piracy and loss of revenue to the plaintiff without actual infringement. The Delhi High Court passed a John Doe order restraining all defendants and other unknown persons constituting part of the same class from distributing, displaying, duplicating, uploading, downloading or exhibiting the movie in any manner. Eventually, several Indian ISPs were contacted to block access to several file sharing websites.
John Doe orders are becoming quite common in the film industry and seem to be an effective way to curb piracy. The trend is not restricted to only movies but as was initiated in Tej Television, also extends to cases involving broadcasting/using unauthorized signals.
India has not been far behind in tracking Internet Service Providers ("ISPs") to prevent unwanted and unlawful materials from being shown or written on internet by anonymous bloggers or illegal downloading following the path paved by other jurisdictions. Recently, Reliance obtained John Doe order from the Delhi HC to prevent pirated copies of movie inter alia Don 2 and Bodyguard from being sold/downloaded/distributed. By the passing of John Doe orders websites, cable operators and Internet Service Providers (ISPs) and others were prevented from pirating the movie, in advance.
The usage of John Doe orders in the Indian scenario has brought in awareness and protection to holders of IP rights but the question remains how such orders will be implemented and enforced. The issue before us is if the unidentified defendants are unaware of such orders or unwilling to abide by the Court order and continue with the said infringement, is any remedy left with the plaintiff or the entire process of obtaining such orders go waste leaving the plaintiff without any benefit and losing its entire impact? Appointment of Commissioners for search and seizure, new guidelines for curbing copyright infringement are all modes of effectuating John Doe orders. But still the notion seems to be at nascent stage with handful of orders being passed and still very few people knowing about its usage and application. An effective mechanism needs to be set into motion to address implementation of such extreme orders, by way of communicating the same to the proposed infringers through a proper mode and their compliance to receive the desired reliefs. John Doe has miles to go in achieving its very purpose.
Disclaimer: The sole purpose of this article is for information only; and not to be construed for any legal advice. The article was drafted, based on the information considered upto 29th July 2013.