What can an Intellectual Property (IP) rights owner do when his music, film, or other content is spread to mirroring or redirecting websites? The answer lies in something known as a ‘dynamic injunction,’ which benefits both the IP owner and the courts from adjudicating the same case over and over again. Digital piracy is a result of changing technology, consumer preferences, and business models. The internet has enabled new ways of violating Intellectual Property Rights (IPRs), and consequently, difficult challenges in the IP legal framework in different jurisdictions have arisen. Interestingly, many nations are adapting their legal tools to keep up with these new modes of infringement on the internet.
Dynamic injunctions allow rights holders to require Internet Service Providers (ISPs) to block both the primary domain name and IP address of piracy websites and also the subsequent domains that they may shift to – if any. The practice of dynamic IP injunctions is prevalent mainly in countries, including Australia, Singapore, India, and the United Kingdom.
In August 2019, the Federal Court in Sydney passed Australia’s first dynamic injunction, targeting a list of 35 torrent, streaming, and related proxy sites. It was also the first time that a rights holder had directly aimed at proxy websites. In 2018, Australia’s Copyright Law was amended to include both dynamic injunctions and the targeting of websites that have a ‘primary effect’ of facilitating access to infringing content (along with more-explicit and central piracy sites). Dynamic orders are only possible when ISPs do not file an objection.
Denmark is a forerunner in terms of website blocking for Copyright Enforcement. In 2006, Denmark was the first country in the entire world to permit website blocking for copyright enforcement. In April 2019, the Court of Frederiksberg issued Denmark’s first dynamic blocking injunction in allowing LaLiga (the Spanish football league) to get local ISPs to block access to 10 sites that infringe its copyright by showing live matches. Nine of the ten piracy sites listed in the complaint were eventually deemed to be infringing (and generating revenue via advertising).
The United Kingdom and Ireland
In September 2020, Ireland’s High Court granted a dynamic blocking injunction to UEFA’s EURO 2020 (taking place in 2021 due to the COVID-19 pandemic) and other matches taking place during the 2020/2021 football season. It is the first injunction UEFA has sought and received in Ireland, but it follows a similar 2019 injunction for the English Premier League (which was extended in June 2020). The Irish injunctions follow the injunctions that UEFA had previously obtained in courts of England and Wales. In Ireland, it was observed by the court that dynamic injunctions for sporting events are critical as “the real-time nature of the live sport means that the primary value of UEFA live match broadcasts is at the point in time when it is being broadcast.” Moreover, it was held that “by the end of the match, the streams will have served their purpose, so removal post-match would carry no or, at best, very limited benefit.”
The judgment in Ireland echoes central facts about the use of website blocking for copyright enforcement: that ISP services are being used to infringe copyright (but the ISPs themselves are simply conduits); that dynamic orders prevent infringement—such that they at least make it tougher or discourage it; that they do not impose irrational costs on ISPs; and that they don’t needlessly deprive internet users of lawful access to content online. The judge noted that his decision is consistent with the stand of the Court of Justice of the European Union (CJEU) in that it strikes a fair balance between the respective rights and interests of rights holders and of the internet users.
In 2018, Matchroom, one of the world’s leading boxing promoters, received a similar dynamic injunction in the United Kingdom. Matchroom wanted to safeguard upcoming major boxing matches involving British professional boxer Anthony Joshua, which are broadcasted by Sky on a standard subscription or pay-per-view basis. Matchroom provided evidence that it lost a significant amount of revenue as a high number of illegal streams were made available for his prior fights.
In India, the Delhi High Court granted its first dynamic injunction – after which, the court has become the sought-after forum for the ones seeking to protect their copyright online in India. The case was that of UTV & Ors. vs. 1337x. To. & Ors. Through this decision, the court put a control on websites resurfacing with a different name by extending an existing injunction to new websites that could emerge with a different name in the future. The objective is to help the rights holder avoid the cumbersome process of filing a fresh suit. Dynamic injunctions specifically help in cases where an infringing website may resurface as a redirecting, mirror, or alphanumeric website. Website blocking, as observed by the court, is one of the cost-effective measures to redress the issue of flagrant violation or infringement. The court also observed that such orders should be passed by the court only when it is satisfied that such a measure is necessary and proportionate.
In July 2020, the Delhi High Court granted Disney a dynamic injunction against 118 piracy sites. Furthermore, in July 2020, the court granted a dynamic injunction to Snapdeal in fighting Trademark Infringement, which is a significant evolution in India in using dynamic injunctions for IP enforcement beyond copyright. In previous cases, the court allowed the rights holders to update the list of blocked websites by adding the names of mirror/redirect/alphanumeric websites, which piracy operators set up after they realized that their primary sites are blocked. This particular point significantly reduces the resources required for blocking every mirror infringing website. Parallel to courts in Ireland, England, Wales, and the European Union, the court consciously accounted for the rights of copyright holders in this manner.
While India and the Delhi High Court have not yet allowed live blocking orders, they do allow the use of website blocking for sporting events, including pre-emptive ‘John Doe’ orders targeting known infringers. It is imperative as online viewing of sports content, especially cricket, has grown rapidly in India due to the increasing availability of smartphones and reduction in the cost of data plans.
In July 2020, Singaporean courts granted a dynamic injunction to cover 15 blatantly infringing online locations that included copyright-protected content from the English Premier League, Discovery, BBC, La Liga, and TVB. International jurisprudence has influenced Singapore in different ways. In the initial case, the Singapore High Court largely relied on the approach of English courts. However, the Court expressly rejected the Australian approach, where it refused to allow dynamic blocking with judicial scrutiny. Also, contrary to the ‘right balancing analysis’ adopted by the Delhi High Court, the Singapore High Court adopted a means/ends analysis.
One of the major changes to online streaming of content over the last few years is the launch of prominent streaming services such as Netflix, Disney+, Amazon Prime, etc. Even the popular website YouTube has started streaming movies, which include comparatively new releases, and are available for purchase at reasonable rates. Dynamic injunctions and website blocking are extremely important because online piracy is widespread and frequent. Additionally, they have the potential to change consumer behavior by making legitimate sources of content more appealing to consumers. It is a significant factor – considering the total number of internet users. Surprisingly, the United States has failed to follow other nations in adapting website blocking injunctions as part of larger antipiracy efforts.
A rising number of nations view ‘blocking injunctions’ as an instance of best practices policy in backing creativity in digital content, whether it’s television, movies, books, or music. The problem of piracy only becomes more noteworthy as the world starts watching live and on-demand content online. Correspondingly, more nations have realized that website blocking can be well suited to protecting live events as well. The universal nature of illegal streaming of live events hopefully means that it becomes as common as website blocking. Together, these frameworks on dynamic IP injunctions and cases provide a growing body of work that together represents the policy best practices for other countries to adopt and aid the IP rights holders.