SSRN Id4564448

ACCEPTED PAPER: FORTHCOMING IN NLUD JOURNAL OF LEGAL STUDIES (AUGUST 2023)
CURBING COPYRIGHT INFRINGEMENT WITH DYNAMIC

INJUNCTION: THE CASE FOR TRANS-JUDICIAL INFLUENCE
IN INDIA
MD TASNIMUL HASSAN
B.A., LL.B. (H) Class of 2023, Jamia Millia Islamia, New Delhi
Abstract
This paper examines the concept of dynamic injunction as a potential solution for
curbing copyright infringement in India. Dynamic injunctions serve as a legal
mechanism that empowers courts to issue injunctions against internet service
providers and other intermediaries, compelling them to block access to websites or
platforms that facilitate copyright infringement. This approach acknowledges the
constantly evolving nature of digital infringement, allowing courts to swiftly adapt to
emerging threats. The paper also explores the potential benefits and challenges
associated with adopting dynamic injunctions and trans-judicial influence in India. It
underscores the significance of striking a balance between safeguarding copyright
holders’ rights and upholding the principles of free expression and access to
information. Furthermore, the implications of integrating dynamic injunctions and
trans-judicial influence into India’s legal framework are examined, including the need
for legislative amendments and the role of intermediaries in enforcement. While
delving into the concerns regarding potential abuse of these mechanisms and
underscores the necessity of robust safeguards to prevent overreach and protect
individual rights, this paper asserts that the adoption of dynamic injunctions can
greatly enhance India’s capacity to combat copyright infringement in the digital
landscape. It calls for a comprehensive approach that balances the interests of
copyright holders, intermediaries, and the public while fostering innovation and
creativity in the evolving digital ecosystem.
I. INTRODUCTION
Copyright protection is essential for safeguarding intellectual property rights
(hereinafter “IPR”) and ensuring the recognition and reward of creative endeavours.
However, with the advent of the digital age, copyright infringement has become
increasingly widespread and difficult to effectively address. Technologies emerged as
human civilization progressed, ones that altered the course of human history. The
internet is one such tool, making global communication instantaneous and accessible
from anywhere in the world. Although the world has benefited greatly through the
internet, the situation is far from ideal, as it has its own set of problems. The
availability and the development of information technology has contributed to the
already-present social tensions surrounding copyright law. 1 By making it simple for
customers to transmit media files from computer to computer, the digitization of
1NS Gopalakrishnan, et. al., ‘Social Dimensions of Copyright Infringement and Enforcement: A Quick
Reflection in the context of Sci-Hub Litigation’ (Banana IP, 28 February 2021)
<www.bananaip.com/ip-news-center/social-dimensions-of-copyright-infringement-and-
enforcement-a-quick-reflection-in-the-context-of-sci-hub-litigation/> accessed 12 November 2022.
Electronic copy available at: https://ssrn.com/abstract=4564448

media goods dramatically undercut copyright regulations around the world.2 Imagine
a filmmaker creating an original piece of work, a video film, making investments in its
production, only to realize that the said work is being unauthorizedly copied and
disseminated through the internet. This act of unauthorised dissemination – also
termed as piracy, is an “ever-existing” social phenomenon across the globe.3 Recently,
the Bombay High Court directed Instagram to disclose all personal details of several
Instagram users, who apparently shared videos through their accounts infringing
copyright of the creators.4 Moreover, Telegram, considered to offer the highest
standards of privacy to users, has been ordered to disclose personal details of the users
to the court.5 This is a question that the internet age is struggling with – how to balance
the rights of the consumer and the creator?
Undoubtedly, piracy harms economic interests of all those associated with content
creation, which in turn reduces employment and competitiveness. 6 Not just the
economic interests of the country, piracy reduces the incentive for a person to invest
their time, effort, and resources in producing a work by preventing them from
receiving their just rewards from society.7 Pirate websites got 132 billion visitors in
2021 and India had the third-highest number of visits to such websites with 6.5 billion,
after the United States and Russia, while there were over 67 billion (~50 per cent)
visits for TV piracy, 30 billion for publishing (23%), 14.5 billion for movies (11%), 10.8
billion (8%) for music, and 9 billion for software piracy (7 per cent). 8 Pirated video
content receives over 230 billion views each year, while the movie industry globally
loses between $40-$97.1 billion annually due to digital piracy.9 MUSO, an anti-piracy
company, witnessed over 182 billion visits to piracy websites in 2021, an increase of
15.2% from 2020.10 Clearly, piracy reduces mainstream viewership, causing monetary
2 Brett Danaher, et. al., ‘Copyright Enforcement in the Digital Age: Empirical Evidence and Policy
Implications’, (2017) 60(2) Communications of the ACM 68 <http://dx.doi.org/10.1145/2979673>
accessed 17 November 2022.
3 Gopalakrishnan, et. al., n__, 6.
4 Applause Entertainment Private Limited v. Meta Platforms Inc., Interim Application (Lodging) No.
10257 of 2023 in Commercial IP Suit (Lodging) No. 10238 of 2023, Order dated 2 May 2023 (the court
while granting dynamic injunction for the take-down of infringing content directed “all particulars
available with Instagram including but not limited to the contact details, mobile numbers, email
addresses, IP addresses and physical locations/addresses” be disclosed to the rightsholder as well as the
court).
5 IANS, ‘After Delhi HC Order, Telegram Discloses Details of Users Sharing Infringing Material’ (ET
Legal World, 1 December 2022) <https://legal.economictimes.indiatimes.com/news/industry/after-

delhi-hc-order-telegram-discloses-details-of-users-sharing-infringing-material/95905131> accessed
12 February 2022; Prashant Jha, ‘Delhi High Court Orders Telegram to Disclose Identities of Channel
Operators Sharing Dainik Jagran ePapers sans Authorisation’ (Bar and Bench, 26 November 2022)
<https://www.barandbench.com/news/litigation/delhi-high-court-orders-telegram-to-disclose-
identities-of-channel-operators-sharing-dainik-jagran-epapers-sans-authorisation> accessed 12
February 2023.
6 UTV Software, n__, para 29.
7 Ameen Jauhar, ‘All talk and no bite: Copyright infringement and piracy trends in India’ (2011) 27(5)
Computer Law & Security Review 537 <http://dx.doi.org/10.1016/j.clsr.2011.07.009> accessed 6

November 2022.
8 Tech Desk, ‘India ranks third globally for consuming pirated content in 2021: Akamai Report’ (The
Indian Express, 2 February 2022) <https://indianexpress.com/article/technology/tech-news-

technology/india-ranks-third-globally-for-consuming-pirated-content-akamai-report-7753275/>
accessed 16 October 2022.
9 Damjan Jugovic Spajic, ‘Piracy Is Back: Piracy Statistics for 2022’ (Dataprot, 17 May 2022)
<https://dataprot.net/statistics/piracy-statistics/> accessed 2 November 2022.

10 Andy Chatterley, Discover Piracy by Industry Data Review (MUSO 2022) <www.muso.com/wp6-
2021-muso-discover-piracy-by-industry-data-review> accessed 20 October 2022 (United States

loss to the work’s owner as the creator cannot fully utilise their work and earn themself
profits.11 The rise of internet-based piracy can be correlated to drops in revenue from
media sales.12
Piracy can never be ethically or legally justified.13 However, it is convenient to resort

to and difficult to be held accountable for. As a consumer, to legally watch or read any
copyrighted content, one will need to pay for different streaming or viewing platforms.
However, by using pirate websites, one can freely access all these shows without paying
anything and, without being held accountable for illegally accessing copyrighted
content. Owing to cross-border piracy, the most promising attempt at tackling piracy
is through website blocking.14 The infringing website can legally be blocked in three
ways: Internet Protocol (hereinafter “IP”) address blocking, Domain Name System
(hereinafter “DNS”) blocking, and Uniform Resource Locator (hereinafter “URL”)
blocking.15 Although the global internet revolution brought piracy to a new height and
administrative measures have proven to be insufficient to deal with it, due to the ever-
changing domain names of websites.16 Thus, judicially enforced mechanisms have
taken prominence, which includes John Doe orders, notice and takedown, live
blocking, and the novel remedy of “dynamic” injunction.17 The remedy of injunction, a
form of “equitable” civil remedy, is granted by courts, to prevent a person from
violating another person’s rights.18 However, dynamic injunction is a remedy to block
“redirect/mirror/alphanumeric” websites when the pirate services change online
accounted for 10.6% of all global piracy traffic or 68 visits per internet user and had 88% more piracy
than Russia, which ranked second by the number of visits. The media category-wise piracy of content
was in the order of TV, Publishing, Film, Music, and Software).
11 PTI, ‘Digital piracy rises amid pandemic; original content creators lose money: EY’ (The Hindu
BusinessLine, 6 June 2021) <https://www.thehindubusinessline.com/info-tech/as-digital-piracy-

rises-amid-pandemic-original-content-creators-losing-money-ey/article34743362.ece> accessed 13
November 2022.
12 Brett Danaher et. al., n__.
13 Gopalakrishnan, et. al., n__, 11 (arguing in the context of Sci-Hub, that “development, from the
perspective of copyright, is the affordable availability of works to those who are in need of the same,
particularly those left out by the market. Access to copyrighted works is important for promoting
creativity and cultural needs”). What they fail to acknowledge is that access to copyrighted works
through back-ends, would lead to the creator’s motivation being reduced, impacting the quality and
quantity of work.
14 While website blocking is effective in curtailing infringement, it has been criticised for its ability to
stifle free speech, reduce internet freedom, and for being disproportionate at times. See, Jonathan Lee
Xue Han, ‘Effective Anti-Piracy in Vietnam: A Journey Through Site Blocking’ (2022) 1 International
Journal of Law, Ethics, and Technology 50, 55 <http://dx.doi.org/10.55574/dkoo8048> accessed 17
October 2022.
15 Pranay Bali and Nayantara Malhotra, ‘To Block or Not to Block? Analysing the Efficacy of Website
Blocking Orders and Dynamic Injunctions in Combating Digital Piracy’, (2020) 11 Indian Journal of
Intellectual Property Law 179, 193.
16 Charles WL Hill, ‘Digital piracy: Causes, consequences, and strategic responses’ (2007) 24(1) Asia
Pacific Journal of Management 9 <http://dx.doi.org/10.1007/s10490-006-9025-0> accessed 20

November 2022.
17 Megha Patnaik, Shohini Sengupta and Aishwarya Giridhar, Trends in Copyright Infringement and
Enforcement in India (Report No. 002, Esya Centre 2019)

<www.esyacentre.org/documents/2020/7/29/trends-in-copyright-infringement-and-enforcement-
in-india> accessed 5 November 2022.
18 An injunction can be granted if three criteria are in favour of the claimant: balance of convenience,
prima facie case and irreparable harm. See, Order XXXIX of the Code of Civil Procedure, 1908
(hereinafter “CPC”).

locations to evade the blocking order.19 The injunction order, when allowed to be
modified to include additional infringing sources, without approaching the court in
case of a repeated breach after the original injunction is granted, is regarded as a
dynamic injunction. This allows for flexible site blocking for additional domains
redirecting to the same online location already blocked. If a person has obtained
dynamic injunction against any content being disseminated illegally, not only the said
dissemination but any later emerging mirror appearance of the said content would
also be blocked. Unlike ordinary blocking injunctions, which are specifically aimed at
certain content and a certain infringer, dynamic injunction’s scope is not set in stone,20
providing a better base for copyright enforcement in the digital world. Instead of
covering one single domain name of an infringing website, blockage of which can be
easily circumvented by the infringer, a dynamic injunction covers all future
infringements relating to the same right of the rightsholder. 21 This allows a claimant
to acquire an efficacious relief without following the lengthy judicial process every time
an infringement happens. Policymakers in many countries want this “dynamic”
framework to become an effective part of the toolbox that rights holders utilize to
protect their copyright.22 Legally, it can be argued that the freedom to access
information and entertainment through the internet is a fundamental right,23 and any
attempt to disproportionately block access to websites would infringe on this right.
Dynamic injunction in India was first granted by the Delhi High Court in UTV
Software Communication Ltd. v. 1337x.to24 due to trans-judicial influence.25 The
Court considered the remedies available across jurisdictions and placed reliance on
the Singaporean case of Disney Enterprises, Inc v. M1 Limited,26 ordering internet
service providers (hereinafter “ISPs”) to block access to the piracy websites, and
granted a dynamic injunction to block mirror websites when the pirate sites change
online location to evade the original blocking order. After UTV Software, courts across
India have been passing orders in favour of the rightsholders and against the
alphanumeric/mirror website owners, thus, giving strength to the dynamic injunction.
More recently, in Universal City Studios LLC v. Mixdrop.co,27 the Delhi High Court
granted dynamic injunction against certain “referral sites” who provided access to the
pirated content, and later extended the remedy against the pirate cyber-locker
19 Dynamic injunctions are also referred to as “internet injunction.” See, Manmeet Kaur Sareen and
Kanika Kalra, ‘Dynamic Injunctions - Internet “Injunctions 2.0”’ (2019) II(Winter) ILI Law Review 32
<https://ili.ac.in/pdf/mkk.pdf> accessed 8 October 2022.
20 Berdien BE van der Donk, ‘How dynamic is a dynamic injunction? An analysis of the characteristics
and the permissible scope of dynamic injunctions under European Law after CJEU C-18/18
(Glawischnig-Piesczek)’ (2020) 15(8) Journal of Intellectual Property Law & Practice 602
<http://dx.doi.org/10.1093/jiplp/jpaa071> accessed 2 November 2022.
21 Berdien BE van der Donk, n__.
22 Nigel Cory, ‘Adaptive Antipiracy Tools: An Update on Dynamic and Live Blocking Injunctions’ (ITIF,
22 October 2020) <https://itif.org/publications/2020/10/22/adaptive-antipiracy-tools-update-

dynamic-and-live-blocking-injunctions/> accessed 20 November 2022.
23 Arpan Banerjee (2019), n__, 182.
24 2019 SCC OnLine Del 8002 (hereinafter “UTV Software”).
25 For more on trans-judicial influence, see, Arun K Thiruvengadam, ‘In Pursuit of the Common
Illumination of Our House: Trans-Judicial Influence and the Origins of PIL Jurisprudence in South
Asia’ (2008) 2 Indian Journal of Constitutional Law 67
<www.commonlii.org/in/journals/INJlConLaw/2008/3.html> accessed 25 November 2022.
26 [2018] SGHC 206 (hereinafter “Disney Enterprises”).
27 CS (COMM) 663/2022.

websites hosting that pirated content. The Delhi High Court while accepting UTV
Software as a precedent has granted dynamic injunction in a plethora of matters.28
This paper looks at the origins and development of dynamic injunction, with respect
to piracy and copyright enforcement in India, arguing that the remedy is promising,
however, the procedural law is unclear so far, which makes judicial discretion the
supreme deciding authority. Due to this ambiguity, several gross and misjudged orders
like Applause Entertainment have been passed by different courts across India. Part
II highlights the problem of piracy while providing an overview of the existing regime
on curtailing piracy and strengthening copyright enforcement in India, while
discussing the measures taken by the government through different amendments to
reduce piracy in the internet age. Part III traces the evolution of dynamic injunction
in Australia, European Union (hereinafter “EU”), United Kingdom (hereinafter “UK”),
Singapore and Canada. Part IV discusses the adoption, development, and deployment
of dynamic injunction in India, before and after UTV Software, arguing that the
remedy is unstructured and discretionary thus has several problems. Part V notes that
the status quo as laid down in UTV Software is incomplete, and gives rise to concerns
about fairness, proportionality, and permissibility, which has the capacity to turn the
tables in favour of misuse and autocratic use of the remedy, significantly impacting
free speech and expression. In conclusion, Part VI argues that the remedy needs to be
defined further to bring more clarity in its deployment, reducing the judicial discretion
and making it proportional and fair to both, the potential aggrieved and the infringer.
II. COPYRIGHT VERSUS PIRACY: THE ‘UNIQUE’ INDIAN

APPROACH
To protect the rights of the creators, the Copyright Act, 1957 (hereinafter “1957 Act”),
along with the Copyright Rules, 2013 (hereinafter “2013 Rules”), form the basic
structure of copyright regime in India. The vesting of copyright is a limited monopoly,
insofar as it is limited in scope and time.29 To achieve an equilibrium between the
society’s need for access to information and the necessity to safeguard IPR, certain
uses of copyright material are allowed sans author’s authorization, in terms of “fair
use.”30 The 1957 Act provides rights holders a two-fold legal system for enforcing their
rights, through the Copyright/Appellate Board and the judiciary. It gives the owner of
28 Universal City Studios LLC v. FZMOVIES.NET, CS(COMM) 202/2023, Order dated 11 April 2023;
Arha Media and Broadcasting Limited v. WWW.VCINEMA.COM, CS (COMM) 925/2022, Order dated
28 December 2022; Star India Pvt. Ltd. v. MHDTV.WORLD, CS(COMM) 567/2022, Order dated 22
August 2022; Sporta Technologies Pvt. Ltd. v. CRICHD, CS (COMM) 470/2022, Order dated 14 July
2022; Culver Max Entertainment Pvt. Ltd. v. F1.MYLIVECRICKET.LIVE, CS(COMM) 439/2022, Order
dated 29 June 2022; Universal City Studios LLC v. VEGAMOVIES.RUN, CS(COMM) 265/2022, Order
dated 27 April 2022; Star India Pvt. Ltd. v. FILMYCLUB.WAPKIZ.COM, CS(COMM) 518/2021, Order
dated 12 October 2021; Sony Pictures Network India Pvt. Ltd. v. WWW.SPORTSALA.TV, CS (COMM)
289/2021, Order dated 4 June 2021; Disney Enterprises, Inc. v. KIMCARTOON.TO, CS (COMM)
275/2020, Order dated 27 July 2020; Snapdeal Private Limited v. SNAPDEALLUCKY –
DRAWS.ORG.IN, CS (COMM) No. 264/2020, Order dated 20 July 2020; Warner Bros. Entertainment
Inc. v. HTTP://TAMILROCKERS.WS, CS (COMM) 369/2019, Order dated 24 July 2019.
29 Copyright Act, 1957, Ch. V. A literary, dramatic, musical, or artistic work published during the
author’s lifetime is protected by copyright for sixty years after his or her death; in contrast, sound
recordings and cinematographic works are protected for 60 years after the first publication.
30 Copyright Act, 1957, s. 52 (it permits certain activities not amounting to infringement, which includes
reproduction of literary, dramatic, musical, or artistic works for educational purposes, and reporting in
media).

“work” certain rights, which inter alia includes a cinematograph film or any artistic
work.31 The infringement of copyright, i.e., the work is disseminated or shared without
any license or express permission, is dealt with under Section 51. To curtail piracy, it
provides civil remedies and penal provisions,32 while the aggrieved can seek remedies
by way of injunctions, damages, and accounts.33 The accused on conviction can be
imprisoned for infringement of copyright for a term which shall not be less than six
months, but which may extend to three years along with a fine which shall not be fifty
thousand but may extend to two lakh rupees.34 Moreover, the heavily criticised35
Cinematograph (Amendment) Bill 2021, aimed “to tackle the menace of film piracy,”
proposed amendments to prohibit “unauthorized recording” of films.36 This
amendment will apply to recordings “in any place,” while the phrase “copy of a film or
a part thereof” remains undefined, which might mean that making or transmitting a
content of any duration for any purpose is prohibited. Moreover, the contravention of
the above said provision has been criminalised via another amending provision.37 This
amendment for enhancing penalties risks misuse and the possibility of a person being
convicted under multiple laws for a single action.38 Earlier in 1984, Section 63 of the
1957 Act was amended to provide for imprisonment of up to 3 years, while Section 64
was amended to empower police officers to arrest without a warrant.39 However, the
1957 Act did not provide whether the offences are cognizable. 40 The Supreme Court
has recently held41 that copyright infringement is a cognisable42 and non-bailable43
offence under the Code of Criminal Procedure, 1973 (hereinafter “CrPC”). Due to such
31 Copyright Act, 1957, s. 2(y).

32 Copyright Act, 1957, Ch. XII and Ch. XIII.
33 Copyright Act, 1957, s. 55(1).
34 Copyright Act, 1957, s. 63.
35 DH Web Desk, ‘Why filmmakers are against Cinematograph Bill 2021’ (Deccan Herald, 30 June 2021)
<www.deccanherald.com/national/why-filmmakers-are-against-cinematograph-bill-2021-
1003207.html> accessed 3 November 2022; Deeksha Bhardwaj, ‘Cinematograph Act: Govt May Drop
Provisions on Re-Examination of Films’ (Hindustan Times, 20 November 2022)
<https://www.hindustantimes.com/india-news/cinematograph-act-govt-may-drop-provisions-on-re-
examination-of-films-101668970674631.html> accessed 28 November 2022.
36 Clause 6AA of the Cinematograph (Amendment) Bill, 2021, reads:
“Notwithstanding any law for the time being in force, no person shall, without the
written authorization of the author, be permitted to use any audio-visual recording
device in a place to knowingly make or transmit or attempt to make or transmit or abet
the making or transmission of a copy of a film or a part thereof.”
37 Clause 7(1A) of the Cinematograph (Amendment) Bill, 2021, reads:
“If any person contravenes the provisions of section 6AA, he shall be punishable with
imprisonment for a term which shall not be less than three months but which may
extend to three years and with a fine which shall not be less than three lakh rupees but
which may extend to 5% of the audited gross production cost or with both.”
38 Adyasha Samal, ‘The Cinematograph (Amendment) Bill 2021: Overbroad, Disproportionate and
Unnecessary’ (SpicyIP, 13 July 2021) <https://spicyip.com/2021/07/the-cinematograph-amendment-

bill-2021-overbroad-disproportionate-and-unnecessary.html> accessed 3 November 2022.
39 Copyright (Amendment) Act, 1984.
40 Ankoosh Mehta, et. al., ‘Cognisability of Copyright Infringement Debate is Back’ (Cyril Amarchand
Blogs, 5 May 2020) <https://corporate.cyrilamarchandblogs.com/2020/05/cognizability-of-

copyright-infringement-debate-is-back/> accessed 5 November 2022.
41 Knit Pro International v. State of NCT of Delhi, 2022 LiveLaw (SC) 505.
42 Cognizable offence is defined under Section 2(c) of CrPC as “an offence for which, a police officer may,
…arrest without warrant.”

43 Bailable offence is defined under Section 2(a) of CrPC to mean “an offence which is made bailable by
CrPC or any other law….and non-bailable offence means any other offence.”

a legal position, many copyright owners might use the threat of police to scare
potential infringers to extort licence fees.44
The judicially enforced anti-piracy mechanisms have been prominent which include
five broad forms of remedies: John Doe orders, notice and takedown, notice and stay
down, live blocking and dynamic injunction. John Doe orders in India were first
passed in Taj Television45 case and are issued against unknown defendants as
injunctive orders, intended to deter IPR infringement. 46 The 1957 Act and the 2013
Rules lay down the procedure for “notice-and-take-down” for the intermediaries47 that
host “incidental or transient” links to infringing content, which requires
intermediaries to take steps to stop facilitating access to the relevant material if such
material infringes copyright, on receiving a complaint from a copyright holder.48 Rule
8(6)49 and Rule 9(2)50 of the Information Technology (Procedure and Safeguards for
Blocking for Access of Information by Public) Rules, 2009 (hereinafter “IT Rules,
2009”), allow the blocking of websites for all different reasons, and in the last 5 years,
the union government has blocked a total of 29,154 URLs under the said provisions.51
The notice-and-take-down system requires intermediaries to proactively identify and
take down infringing content and prevent its uploading in future, once they receive
notice from a copyright holder.52 The live blocking orders require ISPs to block access
to the servers hosting these event streams for the duration of the event. The most
important, dynamic injunction, the subject matter of this paper, extends website
blocking injunctions beyond those websites mentioned in the court order.
Additionally, one can lodge complaints for cybercrimes, which includes piracy.53
44 Prashant Reddy T and Yogesh Pai, ‘Crime and copyright infringement’ (The Hindu, 8 June 2022)
<www.thehindu.com/opinion/op-ed/crime-and-copyright-infringement/article65504063.ece>
45 Taj Television Ltd. v. Rajan Mandal, 2017 (71) PTC 200 (Del); 2003 FSR 22.
46 Ordinary injunctions are granted under Order XXXIX, Rule 1 and 2 of CPC.
47 Information Technology Act, 2000, s. 2(1)(w) (hereinafter “IT Act, 2000”). It defines an intermediary
as “any person who on behalf of another person receives, stores, or transmits that record or provides
any service concerning that record,” which would include telecom service providers, internet service
providers, search engines, among others.
48 Copyright Act, 1957, s. 52(1)(c). See also, Copyright Rules, 2013, r. 75(3).
49 IT Rules, 2009, r. 8(6), reads:
“Designated Officer, on approval of the request by the Secretary, Department of

Information Technology, shall direct any agency of the Government or the intermediary to
block the offending information generated, transmitted, received, stored or hosted in their
computer resource for public access within the time limit specified in the direction.”
50 IT Rules, 2009, r. 9(2), reads:
“In a case of an emergency nature, the Secretary, Department of Information Technology

may, if he is satisfied that it is necessary or expedient and justifiable for blocking from
public access of any information or part thereof through any computer resource and after
recording reasons in writing, as in interim measure issue such directions as he may
consider necessary to such identified or identifiable persons or intermediary in control of
such computer resource hosting such information or part thereof without giving him any
opportunity of hearing.”
51 Gursimran Kaur Bakshi and Tushar Kohli, ‘Over 29 Thousand Online Pages Blocked by the Union IT
Ministry in the Last Five Years’ (The Leaflet, 8 February 2023) <https://theleaflet.in/over-29-
thousand-online-pages-blocked-by-the-union-it-ministry-in-the-last-five-years/> accessed 22
February 2023.
52 Felipe Romero-Moreno, ‘“Notice and staydown” and social media: amending Article 13 of the
Proposed Directive on Copyright’ (2018) 33(2) International Review of Law, Computers and Technology
187 <http://dx.doi.org/10.1080/13600869.2018.1475906> accessed 6 November 2022.
53 Express News Service, ‘Cyber cell tracking source of sites that uploaded pirated version of new Salman
Khan-starrer Radhe: Police’ (The Indian Express, 16 May 2021)

The regime was slightly modified with the Information Technology (Intermediary
Guidelines and Digital Media Ethics Code) Rules, 2021 (hereinafter “IT Rules, 2021”).
Rule 15(2)54 and Rule 16(1)55 enlists the procedure for blocking of websites. The
intermediary is granted “safe harbour” under Section 79 of the IT Act, 2000, and thus
is protected from any liability for “any third-party information, data, or
communication link made available or hosted,” as long as they adhere to the IT Rules,
2021, failing which, their safe-harbour protection will be taken away.56 Section 79 also
envisages a “notice and takedown” procedure whereby an intermediary upon receiving
actual knowledge from a court order or on being notified by the appropriate
government or its agency that unlawful acts relatable to Article 19(2) are going to be
committed has to expeditiously remove or disable access to such material, otherwise,
it will be liable.57 Further, the IT Act, 2000, makes it clear that this Act does not
prevent anyone from bringing an action in case of copyright infringement under the
1957 Act.58
The draft national e-Commerce policy, promulgated in 2019, proposed strategies to be

established to tackle digital piracy,59 including that intermediaries shall put in place
measures to prevent online dissemination of pirated content, and upon being notified
by the owner of copyright, the website or platform should expeditiously remove or
disable access to the alleged content. Yet, the policy lies in limbo,60 with an associated
<https://indianexpress.com/article/cities/mumbai/cyber-cell-tracking-source-of-sites-that-
uploaded-pirated-version-of-new-salman-khan-starrer-radhe-police-7317796/> accessed 10 October
2022.
54 IT Rules, 2021, r. 15(2) reads:
“The Authorised Officer shall, on approval of the decision by the Secretary, Ministry of
Information and Broadcasting, direct the publisher, any agency of the Government or any
intermediary, as the case may be to delete or modify or block the relevant content and
information generated, transmitted, received, stored or hosted in their computer resource
for public access within the time limit specified in the direction: Provided that in case the
recommendation of the Authorised Officer is not approved by the Secretary, Ministry of
Information and Broadcasting, the Authorised Officer shall convey the same to the
Committee.”
55 IT Rules, 2021, r. 16(1) reads:
“Notwithstanding anything contained in rules 14 and 15, the Authorised Officer, in any case
of emergency nature, for which no delay is acceptable, shall examine the relevant content
and consider whether it is within the grounds referred to in sub-section (1) of section 69A
of the Act and it is necessary or expedient and justifiable to block such information or part
thereof and submit a specific recommendation in writing to the Secretary, Ministry of
Information and Broadcasting.”
56 IT Rules, 2021, r. 7 reads:
“Where an intermediary fails to observe these rules, the provisions of sub-section (1) of
section 79 of the Act shall not be applicable to such intermediary and the intermediary shall
be liable for punishment under any law for the time being in force including the provisions
of the Act and the Indian Penal Code.”
57 Shreya Singhal v. Union of India, (2013) 12 SCC 73.
58 IT Act, 2000, s. 81.
59 Government of India, ‘Draft National e-Commerce Policy - India’s Data for India’s Development’
(Ministry of Commerce and Industry, 23 February 2019)

<https://dpiit.gov.in/sites/default/files/DraftNational_e-commerce_Policy_23February2019.pdf>
60 Subhayan Chakraborty, ‘E-Commerce Policy Remains in Limbo as Ministries Differ, Provisions
Carved out to Other Legislation’ (Moneycontrol, 28 July 2022)

<https://www.moneycontrol.com/news/business/economy/e-commerce-policy-remains-in-limbo-
as-ministries-differ-provisions-carved-out-to-other-legislation-8898761.html> accessed 23 November
2022.

parliamentary panel arguing that the policy should include safeguards against
counterfeiting and piracy as well as safeguards for the rights of individual consumers. 61
Thus, although the government has attempted strengthening the copyright regime in
India, its enforcement is yet to be strengthened as such.62 Moreover, India lacks
judicial coherency on several parameters of copyright, resulting in diverse and
conflicting opinions from different courts. To prevent end users from accessing
content unlawfully, certain countries have implemented “graduated response”
systems, in which ISPs take a variety of actions against infringers, from giving
warnings to terminating service.63 In the EU, the strategy adopted by the legislators
and the judiciary has been to enhance the level of deterrence mechanisms. 64 In UTV
Software, the Court echoed a similar stance, while suggesting framing a policy
where users are warned with emails, or pop-ups and fined in the event of not heeding
the warnings.65 The government of India has taken different measures and initiatives
to reduce digital piracy and enforce copyright laws by blocking different websites and
promulgating amendments to punish the piracy facilitators. Further, the judiciary, too,
has evolved remedies which have taken shape in the wake of massive piracy digitally
due to easy access to the internet, the most prominent remedy being dynamic
injunction.
III. DYNAMIC INJUNCTION: THE EVOLVING JURISPRUDENCE

The very basis of dynamic injunction is the fact that an ordinary injunction would not
be sufficient to protect copyright. It helps the aggrieved in ways including, shortening
legal pathways, and providing a wide and inclusionary remedy over copyright
breaches. This form of remedy evolved essentially in the wake of the internet boom, as
it allows individuals to disseminate information easily and imperiously. This part
analyses the law in various first world jurisdictions, to note that dynamic injunction is
still evolving and being used cautiously and proportionately, sans which, the remedy
can harshly impact free expression.
A. Australia
In Roadshow Films Pty Limited v. Telstra Corporation Ltd,66 the Federal Court of
Australia ordered certain carriage services providers (hereinafter “CSPs”) to block
access to websites like The Pirate Bay and Torrentz that aided in the infringement of
the plaintiff’s copyright in films owned or managed by them. The action was brought
under section 115A of the Copyright Act, 1968, which covers injunctions against CSPs
that provide access to online places outside of Australia. The main issue in the case
61 Amiti Sen, ‘Parliamentary Panel Calls for Notification of E-Commerce Policy to Address Sector’s
“Strategy Vacuum”’ (The Hindu Business Line, 24 March 2023)
<https://www.thehindubusinessline.com/economy/parliamentary-panel-calls-for-notification-of-e-
commerce-policy-to-address-sectors-strategy-vacuum/article66658067.ece> accessed 26 March 2023.
62 Priyanka Khimani, ‘India needs stronger enforcement of copyright and IP laws to reduce piracy and
counterfeiting’ (Bar and Bench, 2 July 2022) <www.barandbench.com/columns/india-needs-stronger-

copyright-and-ip-laws-to-reduce-piracy-and-counterfeiting> accessed 26 November 2022.
63 Arpan Banerjee (2019), n_, 180.
64 Christophe Geiger and Elena Izyumenko, ‘The Role Of Human Rights In Copyright Enforcement
Online: Elaborating A Legal Framework For Website Blocking’ (2016) 32(1) American University
International Law Review 43, 111 <https://digitalcommons.wcl.american.edu/auilr/vol32/iss1/7/>
66 [2016] FCA 1503.

was whether the scope of any orders made by the Court to disable access to websites
could be later extended to domain names, IP addresses, and URLs other than those
associated with the disabling order, without further order from the Court. The Court
noted that “whether the terms of any injunction should be varied to refer to additional
domain names, IP addresses and URL is a matter for the Court to determine in light
of the evidence.”67 The applicants were required to file and serve a proposed form of
order, supported by affidavit evidence, seeking the Court’s permission to modify the
existing orders to include any other additional domain names, URLs, or IP addresses
that began providing access after the original orders were issued.68 Notably, the Court
said that an amount of A$50 per domain, would be appropriate to be paid by the rights
holders to the intermediaries as compliance cost of blocking the websites.69
Later in 2018, a significant amendment was made in Section 115A(b). Prior to this
amendment, section 115A(1)(c) read: “the primary purpose of the online location is to
infringe, or facilitate the infringement, of copyright (whether or not in Australia)”.
As a result of the 2018 amendment, this threshold was lowered so that it now
extends to websites with the: “primary purpose or primary effect of infringing, or
facilitating the infringement, of copyright (whether or not in Australia)”. While the
2018 amendments lowered the “primary purpose” threshold, it remains high enough
to safeguard those legitimate websites which contain only a small percentage of
infringing content.70 Post the amendment, the very first dynamic injunction was
ordered for the ISPs to take reasonable steps to block their customers from accessing
the sites that infringed copyright, only if the ISPs did not object to the injunction. 71 In
April 2020, another case titled Roadshow Films Pty Limited v. Telstra Corporation
Limited72 was handed down under the aforesaid section 115A wherein the Federal
Court of Australia ordered the ISPs to block access to 86 websites that had the
“primary purpose” of facilitating the infringement of copyright. The decision provided
for a simplified process for the orders to be extended to new domain names, IP
addresses and URLs for the same websites – thus paving the way for dynamic
injunctions. The Court set out the procedure for blocking new domain names, URLs,
and IP addresses:
67 Roadshow Films (2016), n_, para 137.

68 Roadshow Films (2016), n_, para 136. See also, Pratik P Dixit, ‘Dynamic injunctions against Internet
intermediaries: An overview of emerging trends in India and Singapore’ (2019) 23(1-2) Journal of
World Intellectual Property 65 <http://dx.doi.org/10.1111/jwip.12140> accessed 2 October 2022.
69 Roadshow Films (2016), n_, para 149.
70 The three requirements of section 115A(1) must be met: a carriage service provider provides access to
an online location outside of Australia (Provides Access); the online location infringes, or facilitates an
infringement of, copyright (Infringes or Facilitates the Infringement); and the online location has the
primary purpose or effect of infringing or facilitating an infringement of copyright (whether or not in
Australia) (Primary Purpose or Effect). Malcolm Burrows, ‘Website blocking orders – what has to be
proven?’ (Dundas Lawyers, 21 August 2020) <www.dundaslawyers.com.au/website-blocking-orders-
what-has-to-be-proven/> accessed 7 November 2022.
71 Campbell Kwan, ‘Foxtel could potentially block piracy websites without needing to attend court’
(ZDNET, 26 August 2019) <www.zdnet.com/article/australias-anti-piracy-laws-used-to-block-proxy-

websites-for-the-first-time/> accessed 14 November 2022; Rohan Pearce, ‘Foxtel obtains ‘rolling’
injunction to block pirate sites’ (Computerworld, 27 August 2019)
<www2.computerworld.com.au/article/665704/foxtel-obtains-rolling-injunction-block-pirate-sites/>
72 [2020] FCA 507 (hereinafter “Roadshow Films”). See also, Imogen Loxton and Anita Cade, ‘Rocking
the Boat: New Orders for Piracy Claims’ (Ashurst, 29 June 2020) <www.ashurst.com/en/news-and-
insights/insights/rocking-the-boat-new-orders-for-piracy-claims/> accessed 18 November 2022.

i. the applicants would notify the Court and the respondents in writing,
identifying the new domain name, IP address, or URL and certifying in good
faith that it was a new website from the existing orders;
ii. if any respondent objected to disabling the domain name, IP address, or URL
within 7 days, or the Court considered it appropriate to do so, the proceeding
would be relisted for direction; and
iii. if no respondent objected within 7 days, and the Court did not consider it
necessary for the matter to be relisted, the respondents would be required to
take steps to disable access to the new domain name, IP address or URL.
B. European Union
Dynamic injunctions are not statutorily available in most EU states, and their scope
and conditions differ among countries despite the fact that the availability of static
injunctions is acknowledged.73 Yet, dynamic injunctions have been issued by France,
Sweden, Austria, Denmark, Italy, Netherlands, and Sweden.74 There are no explicit
prerequisites for the issuance of dynamic injunction, because the concept is yet not
established by domestic laws, but courts have interpreted the existing laws to include
dynamic injunction.75 The European Commission in 2017 came up with the remedy of
dynamic injunction, defined as “an injunction that can be issued for instance in cases
in which materially the same website becomes available immediately after issuing the
injunction with a different IP address or URL and which is drafted in a way that allows
to also cover the new IP address or URL without the need for a new judicial procedure
to obtain a new injunction.”76
Article 18(1) of the EU e-Commerce Directive77 (hereinafter “ECD”) directs to ensure

that legal actions can be taken to stop any infringement and stop additional harm to
the interests concerned in the information society services.78 The ECD, thus, allows its
members to access blocking directives from judicial and administrative authorities,
and it ensures that these orders follow EU legislation. 79 Moreover, the Information
73 Giancarlo Frosio and Oleksandr Bulayenko, Study on Dynamic Blocking Injunctions in the European
Union (European Union Intellectual Property Office
2021) 15 <https://data.europa.eu/doi/10.2814/301088> accessed 12 November 2022 (hereinafter
“EUIPO”). See also, Giancarlo Frosio and Oleksandr Bulayenko, ‘Website Blocking Injunctions in Flux:
Static, Dynamic, and Live’ (2021) SSRN Electronic Journal
<https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3848063> accessed 12 November 2022
(concluding that, “Dynamic measures are available in most European jurisdictions but have been so far
issued in limited numbers, with the exception of the UK, also because courts might be traditionally
resistant to issue broad measures that apply to future infringements, without the plaintiff seeking
specific redress for each infringement”).
74 EUIPO, n_, 35. See also, Berdien BE van der Donk, n_.
75 EUIPO, n__, 36.
76 European Commission, Guidance on certain aspects of Directive 2004/48/EC of the European
Parliament and of the Council on the enforcement of intellectual property rights (Document
52017DC0708, European Commission 2017) <https://eur-lex.europa.eu/legal-
content/EN/TXT/PDF/?uri=CELEX:52017DC0708&from=EN> accessed 12 November 2022.
77 Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain
legal aspects of information society services, in particular electronic commerce, in the Internal
Market, (EUR-Lex 32000L0031 2000) <http://data.europa.eu/eli/dir/2000/31/oj> accessed 20
November 2022.
78 ECD, art 18(1).
79 ECD, art 14(3).

Society Directive80 (hereinafter “InfoSoc”) provides that, “Member States shall ensure
that rights holders are in a position to apply for an injunction against intermediaries
whose services are used by a third party to infringe a copyright or related right.” 81 The
limited scope of the injunctions is extended to enforcement by the IPR Enforcement
Directive82 (hereinafter “IPRED”), which provides that “Member States shall also
ensure that rights holders are in a position to apply for an injunction against
intermediaries whose services are used by a third party to infringe an IPR…” 83 The
European Commission has also stated that “…under the condition that necessary
safeguards are provided for, such [dynamic] injunctions can be an effective means to
prevent the continuation of an IPR infringement.”84
The Court of Justice of the EU (hereinafter “CJEU”) also makes it clear that blocking
orders will be governed by Articles 11 of IPRED and 8(3) of InfoSoc. 85 Additionally,
the CJEU affirms the availability of dynamic injunctions by noting that injunctions
issued in accordance with Article 11 of the IPRED must be available “to take measures
which contribute, not only to bringing to an end infringement of those rights by users
of that marketplace, but also to preventing further infringements of that kind.”86 It was
determined that blocking practises where entire websites were prohibited because of
a single piece of content, as well as blocking practises that persisted even after the
infringing content had been deleted,87 were illegal.88 In most EU countries, courts are
required to determine the measure’s proportionality, which is often done on a case-
by-case basis in accordance with various national standards.89 Therefore, in order to
prevent such violations, copyright holders may seek injunctions, provided that these
injunctions preserve the balance between the relevant interests and safeguard
fundamental rights.90 Notably, in the majority of EU nations, the expenses associated
with enforcing a blocking injunction fall on the “innocent” intermediates.91
C. United Kingdom
In the UK, it is legal for rights holders to request that ISPs prohibit both the principal
and mirror websites that are used for extensive infringement. Additionally, the UK
demonstrates how the use of technology in conjunction with dynamic injunction
80 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the
harmonisation of certain aspects of copyright and related rights in the information society, (EUR-Lex
02001L0029-20190606 2019) <http://data.europa.eu/eli/dir/2001/29/2019-06-06> accessed 20
November 2022.
81 InfoSoc, art 8(3).
82 Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the
Enforcement of Intellectual Property Rights (EUR-Lex 02004L0048-20040430, 2004) <https://eur-

lex.europa.eu/eli/dir/2004/48/2004-04-30> accessed 20 November 2022.
83 IPRED, art 11.
84 European Commission (2017), n __, 21.
85 UPC Telekabel v. Constantin Film, ECLI:EU:C:2014:192, para 40, in EUIPO, n_, 19.
86 L’Oréal v. eBay International AG, EU:C:2011:474, para 144, in EUIPO, n_, 19.
87 Vladimir Kharitonov v. Russia, App. no. 10795/14 (ECtHR, 23 June 2020), in EUIPO, n_, 24.
88 Engels v. Russia, App. no. 61919/16 (ECtHR, 23 June 2020), in EUIPO, n_, 24.
89 EUIPO, n_, 28.
90 Tobias Mc Fadden v. Sony Music Entertainment Germany Gmbh, EU:C:2016:689, para 101, in
EUIPO, n_, 19.

91 EUIPO, n_, 50.

orders may assist stop piracy.92 The procedural mechanism for dynamic injunctions
has formed a part of various website-blocking orders granted under Section 97A of the
Copyright, Designs and Patents Act, 1988. In Cartier International AG v. British Sky
Broadcasting Ltd.,93 while upholding a decision ordering blocking of websites to
protect trademark of the rightsholder, the Court of Appeal observed that:
“An important feature of all the orders made pursuant to Section 97A has
been that they have included a provision for the rightsholders to notify
additional IP addresses or URLs to the ISPs in respect of the websites which
have been ordered to be blocked. This has allowed the rightsholders to
respond to efforts made by the website operators to circumvent the orders
by changing their IP addresses or URLs. Responsibility has fallen on the
rightholders to identify IP addresses and URLs which are to be notified to
ISPs in this way. For this purpose, the film studios have engaged a business
called Incopro to monitor the server locations and domain names used by
the target websites. The judge found that this service and the costs of
collating, checking and sending notifications to the ISPs amounted to
around £3,600 per website per year.”94
The judges in the Court of Appeal disagreed, they came to the conclusion that ISPs
should be held responsible for the “modest” compliance cost, which would be a portion
of the cost that ISPs must pay in exchange for the immunities they currently enjoy. 95
However, the Supreme Court, on appeal, held that not the intermediaries, but “the
rights-holders should indemnify the ISPs against their compliance costs…and the
indemnity must be limited to reasonable compliance costs.”96 Even when the terms of
a blocking injunction have already been agreed upon by the parties, the courts in the
UK are always required to determine the proportionality of the order to ensure that it
is appropriate, to ensure that the injunction is not overly broad or overly restrictive.97
D. Singapore
In Disney Enterprises, the plaintiffs prayed for the relief of dynamic injunction under
section 193DDA98 of the Singapore Copyright Act, 1987 (hereinafter “SCA”), to prevent
the defendants from providing access to certain websites that infringed plaintiff’s
copyrighted work. The plaintiffs sought the following two orders from the Court:
i. requiring ISPs to take reasonable steps to disable access by its subscribers

to the “Fully Qualified Domain Names” (hereinafter “FQDNs”)99
92 Nigel Cory, ‘Using Dynamic Legal Injunctions and AI to Fight Piracy in Real-Time in the United
Kingdom’ (ITIF, 3 December 2018) <https://itif.org/publications/2018/12/03/using-dynamic-legal-
injunctions-and-ai-fight-piracy-real-time-united-kingdom/> accessed 13 October 2022.
93 [2016] EWCA Civ 658, affirmed on appeal in [2018] UKSC 28.
94 [2016] EWCA Civ 658, para 18 (Lord Justice Kitchin).
95 [2016] EWCA Civ 658, para 170, 214.
96 [2018] UKSC 28, para 36, 39.
97 EUIPO, n_, 29.
98 This section empowers the Court to “make an order requiring the network service provider to take
reasonable steps to disable access to the flagrantly infringing online location (FIOL).”
99 The Court has defined FQDN as “a domain name, a uniform resource locator and/or an Internet
protocol address which can access an online location, including a website” See, Disney Enterprises,
n__, para 4.

providing access to the “Flagrantly Infringing Online Locations”

(hereinafter “FIOLs”);100 and
ii. requiring ISPs to block any new FQDNs subsequently discovered to
provide access to the same FIOLs that are the subject of the main
injunction upon notification from plaintiffs.101
The Court allowed the blocking of the FIOLs as per section 193DDA(2) of the SCA.
Following that, the Court noted that section 193DDA empowered the Court to issue
website blocking orders against ISPs to prevent access to the FIOLs. The Court issued
an order requiring ISPs to take reasonable steps to prevent access to the FQDNs, while
issuing a dynamic injunction requiring the defendants to “block additional domain
names, URLs and/or IP addresses that provide access to the same websites which are
the subject of the main injunction.”102 In order to assure the efficiency of website
blocking, the court determined that dynamic injunctions are a natural extension of any
existing statutory website blocking scheme.103 However, the burden of enforcing
dynamic injunctions has largely fallen on ISPs; instead, the plaintiffs should notify the
owner of the new domain name that the plaintiffs are extending their rights under the
dynamic injunction to the new domain name and that it is up to them to contest the
application.104
E. Canada
Like India, there is no statutory backing for dynamic injunctions in Canada, the
judiciary has gradually started accepting this remedy. In Rogers Media Inc. v. John
Doe 1,105 the plaintiffs sought an interlocutory injunction getting the ISPs to block IP
addresses that host copyright-infringing pirate streams of live Hockey broadcasts, of
which rights were held by the plaintiffs. The Federal Court of Canada, extending its
own precedent authorizing a site-blocking injunction, issued the injunction directing
the ISPs to block access to certain IP addresses identified in real-time during live
hockey matches. The Court had issued a website-blocking order earlier, in Bell Media
Inc. v. GoldTV.Biz,106 wherein the injunction enumerated the websites to be blocked
and provided that targeted IP addresses could only be added by Court order. It was
affirmed on appeal in Teksavvy Solutions Inc. v. Bell Media Inc.107 The Court in
Rogers Media relied on GoldTV and ultimately accepted that the plaintiffs had shown
a prima facie case that the targeted conduct caused irreparable harm and that the
balance of convenience favoured the plaintiffs. Although the blocking order in Rogers
Media was limited to a season of the game, it could serve as a precedent that will assist
other copyright owners in seeking dynamic website-blocking injunctions.108
100 FIOL is understood as “an online location which flagrantly commits or facilitates infringement of
copyright” and has been declared as such by the Court. See, SCA, s. 193A.
101 Disney Enterprises, n__, paras 5-6.
102 Disney Enterprises, n_, para 38.
103 Jonathan Lee Xue Han, n_, 59.
104 Ryan Huang, ‘Dynamic injunctions in Singapore: disabling access to blatantly infringing online
locations’ (2018) 14(1) Journal of Intellectual Property Law & Practice 10

<http://dx.doi.org/10.1093/jiplp/jpy160> accessed 24 November 2022.
105 2022 FC 775 (hereinafter “Rogers Media”).
106 2019 FC 1432 (hereinafter “GoldTV”).
107 2021 FCA 100.
108 Christopher Naudie, et. al., ‘Canadian Federal Court issues dynamic website-blocking injunction to
combat unauthorized hockey webcasts’ (Osler, 9 June 2022)

IV. DYNAMIC INJUNCTION IN INDIA: TOO ABUSIVE A REMEDY?

Ordinary injunction remedy has existed in India, and initially, the orders for blocking
infringing content on sites would often lead the ISPs to block entire websites. 109 It
changed, slightly, in Vodafone v. R.K. Productions,110 which allowed blocking only the
specific URLs hosting infringing content, thus giving rise to a new URL blocking
regime. Yet, this position narrowed down the effectiveness of enforcement of blocking
orders, since the URLs could be easily modified and mirrored by pirate websites. This
section of the paper has two parts, dealing with the piracy curtailing measures of the
judiciary before and after UTV Software, respectively.
A. Before UTV Software
In Balaji Motion Picture Limited v. Bharat Sanchar Nigam Ltd,111 the plaintiff sought
a John Doe order against defendants to restrain infringement of its copyright over the
movie Udta Punjab. The court allowed only specific URLs to be taken down while
noting that “when the Plaintiffs draw attention to any of these intermediaries or cable
operators to any site that contains illicit material, those intermediaries and cable
operators will undoubtedly cooperate as they are required to do under the statute.”
This order, therefore, provided that the plaintiff should approach the defendant(s)
directly who will have to reasonably cooperate in taking down the infringing content.
Further, in Balaji Motion Pictures Ltd. v. Bharat Sanchar Nigam Ltd.,112 the plaintiffs
sought John Doe orders with the blocking of around 800 websites (not specific
infringing URLs) to stop unlawful distribution or access to the film titled Great Grand
Masti. The Court denied the relief vide an order dated 1 July 2016,113 noting that “such
an order assumes, ex hypothesi, that every single bit of digital matter on every single
one of these websites is not just illicit, but that all of this matter on all these websites
relates to, and only to, illicit downloads of the Plaintiffs’ film.” However, vide another
order dated 4 July 2016,114 the Court granted a temporary injunction in favour of the
plaintiff and against 482 specific URLs, while allowing the plaintiffs to approach the
police if some other URL points to the individual download of the film. In another
matter, vide an order dated 22 July 2016,115 the Bombay High Court denied a sweeping
injunction to wholly block certain websites that were allegedly infringing plaintiff’s
copyright over a film titled Dishoom. In a second ruling dated July 26, 2016, the Court
approved the blocking of 135 specific URLs for 21 days, subject to future Court
extensions, as required by Section 52(1)(c) of the 1957 Act. The ruling established a
procedure for minimising the harmful consequences of John Doe orders, a three-step
verification process for selective material banning instead of sweeping bans, which
<www.osler.com/en/resources/regulations/2022/canadian-federal-court-issues-dynamic-website-
blocking-injunction-to-combat-unauthorized-hockey-web> accessed 15 November 2022.
109 Arpan Banerjee, ‘Copyright Piracy and the Indian Film Industry: A “Realist” Assessment,’ (2016) 34
Cardozo Arts and Entertainment Law Journal 609, in Jonathan Lee Xue Han, n_, 60. See also, Star
India Private Limited v. Haneeth Ujwal, 2014 (60) PTC 504 (Del) (recognising that unless access to the
whole website is blocked, any URL specific restrictions would be easy to circumvent).
110 2012 Indlaw MAD 2837.
111 2016 SCC OnLine Bom 6607.
112 Notice of Motion (L) No. 1940 of 2016 in Suit (L) No. 694 of 2016.
113 ibid.
114 ibid.
115 Eros International Media Ltd. v. Bharat Sanchar Nigam Limited, Suit (L) No. 751 of 2016
(hereinafter “Eros International Media”).

includes an independent verification of the list of URLs, an Affidavit consisting of the

infringing URLs verified by the plaintiff and another Affidavit on oath, majorly to
ensure protection for the John Doe defendants.116 In Eros International Media Ltd. v.
Bharat Sanchar Nigam Limited,117 the plaintiff sought a John Doe order, as well as an
order based on Order 1 Rule 8, read with Section 151 of CPC, due to the “apprehension
of breach” of the copyright over a film titled Ki & Ka. The Court vide its order dated 30
March 2016, granted an injunction in favour of the plaintiff, as the court found the
balance of convenience in their favour, since the film was being made available on the
internet for download in different formats. Similarly, several other John Doe orders
have been passed by the Court for films including Veerappan, Azhar, Dilwale, and
Bajirao Mastani, among others.118
The Delhi High Court, however, has been granting reliefs very close to being
considered dynamic injunctions. In Tata Sky Ltd. v. YouTube LLC,119 the Court
granted an interim injunction in favour of plaintiff for the removal of the infringing
video, which was declared absolute against all “unknown” defendants after YouTube
promised the Court that new infringing content would be removed without delay,
meaning that when the plaintiff files a complaint of a “similar” type, YouTube will
immediately take down the infringing content (as is done in a dynamic injunction). In
PepsiCo India Holdings Private Ltd. v. Facebook,120 the Delhi High Court granted a
temporary injunction in favour of PepsiCo, directing Facebook to take steps to block
the URLs, “or any other similar video,” showing the Plaintiff’s product in a bad light.
Similarly, in Patanjali Ayurveda Limited v. Google LLC,121 the Court finding a video
to be offensive against the plaintiff, ordered that if the same video with respect to
which the injunction is granted is found, the plaintiff will be at liberty to approach the
intermediary directly for its removal, and the intermediary will have to abide by such
request within 48 hours. The Delhi High Court in Department of Electronics and
Information Technology v. Star India Private Limited,122 upheld a sweeping John Doe
order for blocking 73 websites on the grounds that if only a URL is blocked, the access
to the blocked content through another URL can very easily be provided. 123
Consequently, the Court held that where the plaintiff was able to “show that the rogue
websites are indulging in rank piracy,” blocking of the concerned website was
justified.124 However, the Delhi High Court in Tata Sky Limited v. National Internet
Exchange of India,125 had declined to grant dynamic injunction sought by the plaintiff
saying that such would vest adjudicatory powers in the hands of the respondent, and
such powers can be exercised either by the courts or by authorities/tribunals
constituted by law. As a result, the Court considered whether to name a Grievance
Officer to whom complaints about the registration of problematic domain names
might be directed, unless the complaints involved a dispute over a matter of law or
fact. On this point, the Bombay High Court had in an order dated 30 August 2016, also
116 ibid. See also, UTV Software, n__, para 17.

117 Suit (L) No. 303 of 2016.
118 Nikhil Pahwa, ‘Here’s why Bombay High Court declined two John Doe orders’ (MediaNama, 6 July
2016) <www.medianama.com/2016/07/223-bombay-high-court-john-doe-orders/> accessed 4

November 2022.
119 2016 SCC OnLine Del 4476.
120 CS(OS) 80/2018, order dated 23 February 2018.
121 2019 SCC OnLine Del 7362.
122 2016 SCC OnLine Del 4160 (hereinafter “DoEIT”).
123 DoEIT, n__, para 12.
124 DoEIT, n__, para 14.
125 2019 SCC OnLine Del 7931 (hereinafter “Tata Sky”).

considered the requirement to designate an ombudsman to whom complaints and

concerns pertaining to infringement could be directed.126
B. The UTV Software Argument
The continued dilemma of dealing with piracy while balancing the rights of the
stakeholders brought forward the case of UTV Software, wherein the plaintiffs
claimed that the defendant’s websites were primarily designed to “infringe or promote
infringement” of their copyrighted works. One of their main concerns was that when
one website was restricted, other mirror websites with identical content were formed,
sometimes even before the blocking order was passed. The Court conducted a
thorough examination of the consequences of digital piracy, the available enforcement
mechanisms, and their efficacy, as well as the legal approaches taken in India and
other countries and granted the plaintiffs a dynamic injunction. This relief was granted
to free the Courts “from constantly monitoring and adjudicating the issue of
mirror/redirect/alphanumeric websites” and to ensure that “the plaintiffs are not
burdened with filing fresh suits.”
The Court laid down the factors to be considered while determining whether a website
is an FIOL or a “rogue” website, inter alia whether the primary purpose of the website
is to commit, or facilitate, copyright infringement; the flagrancy of the infringement
(or the facilitation thereof); whether details of the registrant and/or user are masked
or unavailable; whether there is silence or inaction, by such website after receipt of
takedown notices pertaining to copyright infringement. The Court then evaluated
whether the test for identifying a rogue website should be “qualitative or
quantitative.”127 The Court in the instant matter favoured the position in DoEIT,
wherein it was held that since the websites were overwhelmingly infringing, blocking
was justified. Accordingly, the Court in UTV Software held that the test for
determining whether a website is rogue is qualitative. While evaluating how to order
an effective website blocking injunction, the Court referred to the judgment in Disney
Enterprises and granted a dynamic injunction in favour of the plaintiff. The Court in
UTV Software thus provided a list of factors for identifying a rogue or FIOL website:
such as whether the purpose of websites is infringement, without any response to any
notices or complaints.128
The statutory power to grant dynamic injunction was derived from Section 151 of CPC,
which empowers courts to “make such orders as may be necessary for the ends of the
justice or to prevent abuse of the process of the court.” The dynamic injunction order
allows the plaintiff to enjoin additional mirror websites under Order I, Rule 10 of CPC,
accompanied by an affidavit submitted to the Joint Registrar of the Delhi High Court
demonstrating that the websites merely provide new ways of accessing the same
infringing content as the websites injuncted in the original order. The Joint Registrar
may order ISPs to prohibit impleaded websites if convinced that they are mirror
websites, which can be appealed within 15 days. The Court delegated its power to the
Joint Registrar for passing such orders under Section 7 of the Delhi High Court Act,
126 Eros International Media, n__.

127 Qualitative test examines whether the primary purpose and effect is to facilitate infringement, while
quantitative test examines purely the quantity of infringing content. The Court in UTV Software
observed that in Eros International Media, the quantitative test was followed, holding that for an entire
website to be blocked, the plaintiffs must show that all content hosted on it is infringing.

1966 read with Chapter II, Rule 3(61) read with Rule 6 of the Delhi High Court
(Original Side) Rules 2018. Section 74 of the 1957 Act provides the Registrar of
Copyrights with the authority to act as a civil court, including the authority to receive
evidence on affidavits; these powers may be expanded to include the ability to grant
dynamic injunctions if the central government so chooses to frame the rules. 129 The
adjudication of power to the judicial Registrar, as provided for in UTV Software is
infeasible, considering the backlog across Indian courts.130 Following UTV Software,
dynamic injunction orders have been passed by Delhi High Court in several cases, even
though several procedural questions remain unanswered.
V. THE QUESTION OF PROPORTIONALITY AND PERMISSIBILITY

The advent of the digital era has necessarily revolutionised access to information,
however, it has also created monopolies over who owns what. As of 2020, Elsevier
accounted for 16 per cent of the total academic publishing market, with a 40 per cent
profit margin – more than Google and Microsoft; while over 50% of the market was
jointly owned by Elsevier, Black & Wiley, Taylor & Francis, Springer Nature, and
SAGE.131 Elsevier has particularly been accused of “rent-seeking,”132 and even leading
universities struggle to pay for its subscriptions.133 Most, if not all, of these publishers
deploy a subscription-model of revenue, and thus their publications are behind a
paywall, which an ordinary person or university cannot access. To bridge the
knowledge gap created due to publishers’ monopoly, at least as it claims, Sci-Hub
provides ‘illegal’ access to more than 85 million academic research papers to anyone,
for free. When a user requests an article on Sci-Hub, the website will attempt to log in
to a university portal using passwords, snap the content, and save a copy of it on its
server so it may be easily accessed again in the future.134 Lib-Gen, a similar website,
claims to provide access to 7 million nonfiction and fiction books, 86 million science
magazine articles, among others.135 In December 2020, Elsevier, Wiley, and American
129 Mohit Panchal, ‘Combatting Digital Piracy in Cinematographic Works: Delhi High Court Grants
India’s First Dynamic Injunction against Rogue Websites’ (2019) 14 Journal of Intellectual Property
Law & Practice 596 <http://dx.doi.org/10.1093/jiplp/jpz092> accessed 12 October 2022.
130 PTI, ‘Nearly 5 Crore Pending Cases In Courts, Over 69,000 In Supreme Court’ (NDTV, 9 February
2023) <https://www.ndtv.com/india-news/nearly-5-crore-pending-cases-in-courts-over-69-000-in-
supreme-court-3768720> accessed 22 February 2023.
131 Martin Hagve, ‘The money behind academic publishing’ (Tidsskrift, 17 August 2020)
<https://tidsskriftet.no/en/2020/08/kronikk/money-behind-academic-publishing> accessed 15
November 2022.
132 Alejandro Posada and George Chen, ‘Inequality in Knowledge Production: The Integration of
Academic Infrastructure by Big Publishers’ (2018) ELPUB <https://hal.archives-ouvertes.fr/hal-

01816707v1> accessed 11 July 2022 (rent seeking “occurs when an entity seeks to gain added wealth
without any reciprocal contribution of productivity”).
133 Brian Resnick, ‘The costs of academic publishing are absurd. The University of California is fighting
back.’ (Vox, 1 March 2019) <www.vox.com/science-and-health/2019/3/1/18245235/university-of-

california-elsevier-subscription-open-access> accessed 13 November 2022; Patricia Nilsson,
‘Universities pressure Elsevier for cheaper journal fees’ (Financial Times, 3 March 2021)
<www.ft.com/content/9525bbfc-87b7-44d8-bb58-fdc4eef19b11> accessed 13 November 2022; Fatima
Qureshi, ‘Norway joins the ranks of Germany and Sweden, cancels subscription with Elsevier’ (Editage
Insights, 19 March 2019) <www.editage.com/insights/norway-joins-the-ranks-of-germany-and-
sweden-cancels-subscription-with-elsevier> accessed 13 November 2022.
134 Brian Resnick, ‘Why one woman stole 50 million academic papers — and made them all free to read’
(Vox, 17 February 2016) <www.vox.com/2016/2/17/11024334/sci-hub-free-academic-papers>

135 ‘Library Genesis Statistics’ (Library Genesis) <https://libgen.li/stat.php> accessed 10 November
2022.

Chemical Society approached the Delhi High Court, seeking a permanent and dynamic
injunction against Sci-Hub and Lib-Gen, claiming that these websites encourage
piracy and must immediately be shut down.136 Since 2015, Sci-Hub has been sued in
countries like the United States, Russia, Italy, France, Germany, Austria, and Great
Britain.137 Interestingly, after the suit was filed in India, many individuals and groups
defended the two websites, arguing that free access to information should not be
thwarted – which would otherwise be a huge setback to India’s researchers. 138 The
human mind behind Sci-Hub, Alexandra Elbakyan, argues that people will have equal
access to knowledge if there is no private intellectual property and all scholarly
publications are nationalised,139 which is obviously illogical.
Previously, in a major copyright case in India, some publishers sued a photocopier

shop that was located on Delhi University’s campus, alleging that both the copier and
the University had violated the publishers’ copyright by disseminating certain portions
of books and selling them without authorization.140 The Delhi High Court determined
that such photocopying qualified as duplication of the work by a teacher during
instruction and does not constitute copyright infringement by virtue of section 52(1)(i)
of the 1957 Act. However, Sci-Hub and Lib-Gen might not avail of this exception since
they disseminate copyrighted content on a massive scale without being educational
institutions. Interestingly, individuals using these sites to access copyrighted content
might be protected in law,141 as in India, the responsibility of end users for accessing
illegal content is unclear; outside of India, however, judicial precedents support
establishing responsibility.142 Thus, the Court will have to test this case both
qualitatively and quantitatively.143
As noted in UTV Software, the hydra-like websites multiply on being blocked, thus
protecting IPR is of utmost importance. However, website blocking may turn out to be
invasive and effectiveness of blocking should be looked at carefully by the judges
before granting dynamic injunction.144 Ideally, site blocking regimes should have
136 Elsevier Ltd v. Alexandra Elbakyan, CS(COMM) 572/2020.

137 Alexandra Elbakyan and Aras Bozkurt, ‘A critical conversation with Alexandra Elbakyan: Is she the
Pirate Queen, Robin Hood, a scholarly activist, or a butterfly flapping its wings?’ (2021) 16(1) Asian
Journal of Distance Education 111 <https://doi.org/10.5281/zenodo.4749225> accessed 20 October
2022.
138 Divya Trivedi, ‘Cases against Sci-Hub and Libgen imply long-term consequences to research and
education in India’ (Frontline, 4 February 2021) <https://frontline.thehindu.com/the-nation/locking-

up-research-cases-against-sci-hub-and-libgen-imply-long-term-consequences-to-research-and-
education-in-india/article33641506.ece> accessed 9 November 2022.
139 Alexandra Elbakyan, ‘Transcript and Translation of Sci-Hub Presentation’ (Open Access UNT, May
2016) <https://openaccess.unt.edu/symposium/2016/info/transcript-and-translation-sci-hub-
presentation> accessed 22 November 2022.
140 Chancellor, Masters & Scholars of the University of Oxford v. Rameshwari Photocopy Services,
2016 SCC OnLine Del 6229.

141 Copyright Act, 1957, s. 52(1)(a)(i). It exempts “private or personal use, including research,” from the
ambit of copyright infringement.

142 Arpan Banerjee, ‘Contemporary Challenges of Online Copyright Enforcement in India’ (2019)
Innovation, Economic Development, and Intellectual Property in India and China 173, 180
<http://dx.doi.org/10.1007/978-981-13-8102-7_8> accessed 2 November 2022.
143 Kavya Jha, ‘Shadow Libraries: Copyright Infringement or Public Interest?’ (Metacept, 24 April 2021)
<https://metacept.com/shadow-libraries-copyright-infringement-or-public-interest/> accessed 20
October 2022.
144 See, Giancarlo Frosio and Oleksandr Bulayenko, n_, 29 (noting that, “Effectiveness should be an
additional requirement to justify blocking injunctions according to requirements above and should be
more consistently applied by national courts. Websites blocking is a highly invasive practice, as entire

precise guidelines that make it possible to identify rogue websites and effective
enforcement methods to deal with potential infringers. 145 An irreparable injury,
insufficiency of available remedies, justification for an equitable remedy, and absence
of public interest opposition are all necessary for a permanent injunction to be granted
to the plaintiff.146 Thus, it has been argued that an injunction against websites like Sci-
Hub might harm the public interest, particularly in a situation where not all the
content posted by the sites are copyrighted work of the plaintiffs.147 Even if Sci-Hub
loses in court, it would function through mirror websites making dynamic injunction
a necessity, and increasing compliance costs exponentially. Even if damages are
granted to the publishers against Sci-Hub, it would be almost impossible to enforce
because of jurisdictional inconsistencies.148
The 1957 Act does not distinguish between individual infringement and commercial
infringement.149 While it prescribes lighter punishment for those who indulge in
infringement without any “gain in the course of trade or business,” this is left entirely
open to the judge’s interpretation.150 This is arguably another instance of misallocation
of scarce resources in the enforcement of copyright disputes, needlessly increasing the
costs of public enforcement.151 As such, the Agreement on Trade-Related Aspects of
Intellectual Property Rights (hereinafter “TRIPS”) recommends reserving criminal
sanctions only for copyright infringement on a business gage.152 Further, courts have
directed that the sentence be proportionate with the degree and type of the offence,
depending on the facts and circumstances of each case, considering any aggravating,
or mitigating circumstances.153 Under most jurisdictions, for instance, in the EU,
dynamic injunctions are permissible, if they are effective, proportionate, and strike a
fair balance between the rights of the parties involved.154 In UTV Software, the Court
endorsed the proportionality principle, holding that the principle “requires that a fair
balance be struck between competing fundamental rights, i.e., between the right to
intellectual property on the one hand, and the right to trade and freedom of expression
website are blocked, rather than targeted information taken down, thus it should be enforced cautiously
according to a law and economics cost/benefit analysis only if the positive externalities overcome the
negative ones, both for users and businesses”).
145 Jonathan Lee Xue Han, n__, 72 (arguing that, “in common law jurisdictions, like India and
Singapore, this has resulted in clear factor tests followed by dynamic injunctions. In contrast, civil law
jurisdictions have also found success in well-constructed broad statutes that allow their courts to
effectively address the idiosyncrasies of the case in front of them”).
146 EBay Inc. v. Mercexchange, LLC, 547 US 388 (2006).
147 Arul George Scaria, ‘Sci-Hub Case: The Court Should Protect Science From Greedy Academic
Publishers’ (The Wire, 22 December 2020) <https://thewire.in/law/sci-hub-elsevier-delhi-high-court-

access-medical-literature-scientific-publishing-access-inequity> accessed 11 November 2022.
148 Quirin Schiermeier, ‘US court grants Elsevier millions in damages from Sci-Hub’ (Nature, 22 June
2017) <www.nature.com/articles/nature.2017.22196.pdf?origin=ppub> accessed 10 November 2022.

149 In the context of a given product in a market, counterfeiting or piracy “on a commercial scale” refers
to the size or scope of normal or usual commercial activity. See, World Trade Organization, China –
Measures Affecting the Protection and Enforcement of Intellectual Property Rights (WT/DS362/R,
WTO 2009) para 7.577 <www.wto.org/english/tratop_e/dispu_e/362r_e.pdf> accessed 19 October
2022.
150 Copyright Act, 1957, s. 63.
151 Arul George Scaria, Piracy in the Indian Film Industry: Copyright and Cultural
Consonance (Cambridge University Press 2014) 159 <https://doi.org/10.1017/CBO9781107588325>
accessed 20 October 2022, in Esya Centre n__, 13.
152 TRIPS, art 61.
153 Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648, para 69.
154 Berdien BE van der Donk, n __.

on the other.”155 Thus, the Court has to be extremely cautious while awarding such a
strict remedy, and as far as the Joint Registrar is concerned, while blocking additional
infringing websites/URLs, the action should be strictly confined to the mirror
appearances of the websites blocked by the court.
The most prominent part of the jurisprudence on dynamic injunction is the criteria for
blocking a website. The decision in Eros International Media laid down the
quantitative approach, that if a website is to be blocked, it must be shown that the said
website contains only illicit and infringing material with no legitimate content, and
thus, the Court maintained that the trend of broad John Doe orders is dangerous, while
directing specifically identified URLs to be blocked. However, the Court in UTV
Software differed from this decision and stated that instead of the quantitative
approach, a qualitative approach would be more effective. Thus, it relied upon its own
decision in DoEIT, wherein it was stated that simply blocking URLs is not sufficient
and that the infringing website as a whole ought to be blocked.
In UTV Software, neither the evidence needed to persuade the courts that websites
violate the law nor the precise way to inform impacted parties that websites have been
blocked have been addressed.156 The Court repeatedly discussed the cost-effectiveness
of website blocking, but failed to mention and address who would bear the cost of
complying with the blocking order – the ISP, the rightsholder or the rogue websites.
Insofar as dynamic injunction is concerned, it would require extreme participation by
the ISP to block websites on being notified. The intermediaries are legally innocent, as
they are merely providing the network to access a website and thus, they should not
bear the cost of blocking compliance.157 The dilemma persists over who would pay for
the compliance cost of blocking websites. Since, if rights holders are made to pay for
blocking illegal access to the content, they already have copyright over, this defeats the
purpose of creation of this right. Therefore, UTV Software has a number of
shortcomings, such as the fact that it relies solely on the evidence provided by the
plaintiff, that it does not enlist any mechanism to communicate blocking orders to the
website owners, which may hinder their right to appeal the order within 15 days, that
it does not clarify who would bear the cost of compliance, and that it does not provide
any clarity on blocking website domains in cases of foreign domain owners, which can
only be access-blocked and can easily be circumvented.158 The judgement also leaves
intact the “authority” of the adjudicating bodies who would make necessary
compliances. Overall, such an incomplete jurisprudence gives rise to the contentions
of fairness and proportionality.159
VI. CONCLUSION AND RECOMMENDATIONS
155 The Court cited its decision in Myspace Inc. v. Super Cassettes Ltd., 2016 SCC OnLine Del 6382,
wherein the principles of proportionality were enunciated in the following words: “A further balancing
act is required which is that of freedom of speech and privatized censorship. If an intermediary is tasked
with the responsibility of identifying infringing content from non-infringing one, it could have a chilling
effect on free speech.”
156 Abhinav Shrivastava and Nirmal Prasad, ‘Dynamic Injunctions In India’ (LiveLaw, 12 May 2022)
<www.livelaw.in/law-firms/law-firm-articles-/european-union-gsl-chambers-injunction-eros-
international-internet-service-provider-198930> accessed 5 October 2022.
157 Cartier International AG, [2018] UKSC 28, n__, para 36.
158 Pranay Bali and Nayantara Malhotra, n_, 213.
159 Pranay Bali and Nayantara Malhotra, n_, 207.

The remedy of dynamic injunction, if deployed cautiously, is promising. Since the

existing legal mechanism was unable to fully remedy the infringement of copyright,
and in absence of any statutory provision to curb the menace of digital piracy, the
Court looked elsewhere, and influenced by other jurisdictions came up with this
remedy of dynamic injunction. It provides an effective and efficacious remedy to the
plaintiff and reduces the burden on Court, and its advantages have been well
acknowledged.160 However, the remedy is still evolving, some problems and
deficiencies are also surfacing.161 The problems of compliance cost, adjudication by
Registrar, divergences in Courts’ opinions, have been discussed above emanating from
the UTV Software. The regime needs to be rebuilt to strengthen copyright
enforcement – strict liability against commercial offenders and repetitive individual
offenders on mass scale is required. Beyond this, in this regard, a more effective
alternative to Joint Registrar implementing the order of the Court to block subsequent
variance or mirror websites, may be a neutral IP ombudsman, 162 although doing so
raises issues about the possibility of non-judicial bodies exerting adjudicatory
powers.163 The ombudsman would operate as a neutral third-party mediator to help
resolve disputes expeditiously in an enlightened self-regulation mode to better balance
out the interests, without unduly burdening the plaintiffs, the defendants or the
courts.164 The compliance costs, which UTV Software is silent on, must not be levied
on the rightsholders, rather it should either be the intermediary to pay for compliance
which would bolster their self-regulation. Instead of absolute judicial discretion,
legislative intervention is required to define the law of dynamic injunction, making the
relevant stakeholders aware of the consequences of copyright infringement, which can
be done by simply amending the 1957 Act or promulgating a separate set of rules under
the said act specially for dynamic injunction.
Overall, there is heavy conflict and difference of opinions between Indian courts on
issuing dynamic injunctions and the reasons adopted for reaching that. Therefore, the
UTV Software regime needs to be modified, to make it more balanced and reduce the
undefined judicial discretion and ambiguity. The infringement threshold should be the
prime consideration before granting dynamic injunction. Overall, the approach taken
by the Federal Court of Australia in Roadshow Films is well balanced and gives both,
the aggrieved and the accused the right to pursue their interests with respect to the
remedy, and this brings forth a procedure that is overly balanced which can be looked
at. Additionally, the stance of the Federal Court of Canada in GoldTV that websites can
only be blocked by court orders, which is like the stance taken by Delhi High Court in
160 Nigel Cory, ‘India and Website Blocking: Courts Allow Dynamic Injunctions to Fight Digital Piracy’
(ITIF, 29 May 2019) <https://itif.org/publications/2019/05/29/india-and-website-blocking-courts-
allow-dynamic-injunctions-fight-digital/> accessed 11 November 2022.
161 Nikhil Purohit, ‘Delhi High Court’s Dynamic Injunction in Favour of Disney: An Unclear and
Overbroad Exercise?’ (SpicyIP, 3 August 2020) <https://spicyip.com/2020/08/delhi-high-courts-

dynamic-injunction-in-favour-of-disney-an-unclear-and-overbroad-exercise.html> accessed 20
October 2022. See generally, Eashan Ghosh, ‘What We Understand and Imagine Dynamic IP
Injunctions To Be’ (SpicyIP, 15 August 2020) <https://spicyip.com/2020/08/what-we-understand-
and-imagine-dynamic-ip-injunctions-to-be.html> accessed 20 October 2022.
162 Shamnad Basheer, ‘Of Bollywood “Blocks” and John Does: Towards an IP Ombudsman?’ (SpicyIP,
24 August 2016) <https://spicyip.com/2016/08/of-bollywood-blocks-and-john-does-towards-a-

neutral-ombudsman.html> accessed 6 October 2022.
163 Essenese Obhan and Taarika Pillai, ‘Dynamic Injunctions To Tackle Digital Piracy In India’ (Mondaq,
18 December 2020) <www.mondaq.com/india/copyright/1017874/dynamic-injunctions-to-tackle-

digital-piracy-in-india> accessed 10 November 2022.
164 Shamnad Basheer, n_.

Tata Sky should be accepted, instead of giving the discretion to the Registrar to
implead additional mirror websites. The approach taken by the Bombay High Court in
Eros International Media, formulating the “three-step verification” test consisting of
verification by an independent entity, extensive documents being placed on record and
an affidavit on oath, has also been very cautious and balanced, and that can be
proceeded with and amended or tweaked to include all defined measures to protect
everyone’s rights and interests.
The UTV Software judgment is a landmark decision in the field of copyright

jurisprudence in India, which sets out the principles that courts should follow when
considering applications for dynamic injunctions. However, there are several
amendments that could be made to improve the jurisprudence:
a. Proportionality: The amendment could emphasise the importance of

proportionality when issuing dynamic injunctions, considering the potential impact
on freedom of expression, innovation, competition, and the public interest. By
blocking websites, copyright holders can prevent individuals from accessing
potentially valuable or significant information or ideas. The law should be
meticulously drafted to ensure that it neither overly restricts nor favours one side.
Before granting a dynamic injunction, the threshold that must be met could be
clarified by the amendment. It should specify the necessary conditions, such as a
high probability of infringement or irreparable harm.
b. Notice and opportunity to be heard: The amendment could strengthen the

requirement for providing affected parties with notice and an opportunity to be
heard before issuing a dynamic injunction. This ensures fairness and avoids
excessive censorship. As a result, the amendment could provide guidance on the
duration of dynamic injunctions as well as a mechanism for periodic review. This
ensures that injunctions are not granted indefinitely and allows for adjustments as
circumstances change.
c. Accountability and transparency: The amendment could emphasise the importance

of transparency and accountability in the dynamic injunction process. The courts
could impose regular reporting requirements on the use of dynamic injunctions,
ensuring public access to information about their issuance and enforcement. A
more transparent system would aid in holding copyright holders and ISPs
accountable for their actions.
d. Safeguards against abuse: The current regime contains no safeguards against the
abuse of dynamic injunctions. This could result in copyright holders using
injunctions to lobby for the blocking of websites that are not actually infringing
copyright, or for the blocking of websites for reasons unrelated to copyright
infringement. The law should be amended to include safeguards against abuse, such
as requiring copyright holders to provide evidence of actual harm because of the
infringement. The amendment could include safeguards to prevent abuse, such as
penalties for false claims, an expedited review mechanism for injunction orders, or
a periodic reassessment of the injunction.
One’s intellectual property is their labour and hard work, and they deserve to leverage
their creation to the fullest to earn benefits. However, internet has facilitated piracy

on a massive scale, and it takes away the benefits from the creator in part if not at all,
and it must be stopped. However, these reasons should not be the justification for
blocking access to websites blindly. Dynamic injunction should be deployed carefully,
to protect copyright of its holders, without curtailing free expression of the public. The
UTV Software approach is intended to be good, but its effect may not always be good,
since it leaves so many gaping voids. The authors, therefore, submit that the remedy
needs to be well defined to protect the rights of all stakeholders, and a uniform law
should apply throughout the country.

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ACCEPTED PAPER: FORTHCOMING IN NLUD JOURNAL OF LEGAL STUDIES (AUGUST 2023)

CURBING COPYRIGHT INFRINGEMENT WITH DYNAMIC

Electronic copy available at: https://ssrn.com/abstract=4564448

Legal World, 1 December 2022) <https://legal.economictimes.indiatimes.com/news/industry/after-

Computer Law & Security Review 537 <http://dx.doi.org/10.1016/j.clsr.2011.07.009> accessed 6

Indian Express, 2 February 2022) <https://indianexpress.com/article/technology/tech-news-

<https://dataprot.net/statistics/piracy-statistics/> accessed 2 November 2022.

2021-muso-discover-piracy-by-industry-data-review> accessed 20 October 2022 (United States

Electronic copy available at: https://ssrn.com/abstract=4564448

Piracy can never be ethically or legally justified.13 However, it is convenient to resort

BusinessLine, 6 June 2021) <https://www.thehindubusinessline.com/info-tech/as-digital-piracy-

Pacific Journal of Management 9 <http://dx.doi.org/10.1007/s10490-006-9025-0> accessed 20

Enforcement in India (Report No. 002, Esya Centre 2019)

Electronic copy available at: https://ssrn.com/abstract=4564448

22 October 2020) <https://itif.org/publications/2020/10/22/adaptive-antipiracy-tools-update-

Electronic copy available at: https://ssrn.com/abstract=4564448

II. COPYRIGHT VERSUS PIRACY: THE ‘UNIQUE’ INDIAN

Electronic copy available at: https://ssrn.com/abstract=4564448

31 Copyright Act, 1957, s. 2(y).

Unnecessary’ (SpicyIP, 13 July 2021) <https://spicyip.com/2021/07/the-cinematograph-amendment-

Blogs, 5 May 2020) <https://corporate.cyrilamarchandblogs.com/2020/05/cognizability-of-

…arrest without warrant.”

Electronic copy available at: https://ssrn.com/abstract=4564448

“Designated Officer, on approval of the request by the Secretary, Department of

“In a case of an emergency nature, the Secretary, Department of Information Technology

Khan-starrer Radhe: Police’ (The Indian Express, 16 May 2021)

Electronic copy available at: https://ssrn.com/abstract=4564448

The draft national e-Commerce policy, promulgated in 2019, proposed strategies to be

(Ministry of Commerce and Industry, 23 February 2019)

Carved out to Other Legislation’ (Moneycontrol, 28 July 2022)

Electronic copy available at: https://ssrn.com/abstract=4564448

III. DYNAMIC INJUNCTION: THE EVOLVING JURISPRUDENCE

counterfeiting’ (Bar and Bench, 2 July 2022) <www.barandbench.com/columns/india-needs-stronger-

Electronic copy available at: https://ssrn.com/abstract=4564448

67 Roadshow Films (2016), n_, para 137.

(ZDNET, 26 August 2019) <www.zdnet.com/article/australias-anti-piracy-laws-used-to-block-proxy-

Electronic copy available at: https://ssrn.com/abstract=4564448

Article 18(1) of the EU e-Commerce Directive77 (hereinafter “ECD”) directs to ensure

Electronic copy available at: https://ssrn.com/abstract=4564448

Enforcement of Intellectual Property Rights (EUR-Lex 02004L0048-20040430, 2004) <https://eur-

EUIPO, n_, 19.

Electronic copy available at: https://ssrn.com/abstract=4564448

i. requiring ISPs to take reasonable steps to disable access by its subscribers

Electronic copy available at: https://ssrn.com/abstract=4564448

providing access to the “Flagrantly Infringing Online Locations”

locations’ (2018) 14(1) Journal of Intellectual Property Law & Practice 10

combat unauthorized hockey webcasts’ (Osler, 9 June 2022)

Electronic copy available at: https://ssrn.com/abstract=4564448

IV. DYNAMIC INJUNCTION IN INDIA: TOO ABUSIVE A REMEDY?

A. Before UTV Software

(hereinafter “Eros International Media”).

Electronic copy available at: https://ssrn.com/abstract=4564448

includes an independent verification of the list of URLs, an Affidavit consisting of the

116 ibid. See also, UTV Software, n__, para 17.

2016) <www.medianama.com/2016/07/223-bombay-high-court-john-doe-orders/> accessed 4

Electronic copy available at: https://ssrn.com/abstract=4564448

considered the requirement to designate an ombudsman to whom complaints and

B. The UTV Software Argument

126 Eros International Media, n__.

Electronic copy available at: https://ssrn.com/abstract=4564448

V. THE QUESTION OF PROPORTIONALITY AND PERMISSIBILITY

Academic Infrastructure by Big Publishers’ (2018) ELPUB <https://hal.archives-ouvertes.fr/hal-

back.’ (Vox, 1 March 2019) <www.vox.com/science-and-health/2019/3/1/18245235/university-of-