Guest Post: Website Blocking to Prevent Copyright Infringement: A Comparison of the Indian and UK Approaches Part 3

For the readers of Spicy IP, Ms. Neeti Jain, an Indian lawyer specializing in media and entertainment laws, as well as issues involving copyright law and technology, Internet regulation and digital media, brings as follows the 3rd and final part of her incisive guest post series on website blocking to prevent copyright infringement. The earlier 2 parts of the series are available here and here.

Part 3 – Never Say Die

A statement by the UK’s Foreign Secretary, William Hague, in his closing remarks at the London Conference on Cyberspace, on 2 November 2011, reiterated an important message, aimed at governments the world over. He said,

“Do not treat cyberspace as if it belongs to you….You should not imagine for an instant that you can resist the growing force of the tide now flowing for transparency, open information and the free exchange of ideas.”

A UN report also declared recently that access to the Internet is a human right.

I feel that these two statements must be kept in mind by governments and courts when they meddle with the Internet.

An encouraging response to demands for blocking has been that of Virgin Media, another major ISP in the UK, who at least seems to think that a part of the problem is that content is not always affordably priced. When Virgin was asked for its response to the BT judgment and whether they would block Newzbin2 as well, a spokesperson for virgin Media said to the BBC, that it would obey the law, but would not take action over the matter until it had received a court order of its own.

“As a responsible ISP, we will comply with any court order addressed to us but strongly believe such deterrents need to be accompanied by compelling legal alternatives such as our agreement with Spotify, which gives consumers access to content at the right price,” a spokesman told the BBC.” (Emphasis added).

I turn now finally to look at the civil society movement against website blocking, particularly the work done by the Open Rights Group.

The Open Rights Group, other organizations and freedom of expression experts in the UK have joined together to persuade rights-owners and the Foreign Secretary that website blocking will do more harm than good. Consumer Focus have argued that because the demand for movies is huge, the solution lies not in blocking but in providing affordable, legal choices for consumers. There has been a proposal by a rightsholders’ group in the UK that sets out a voluntary website blocking scheme, with judicial oversight, providing for expedited court procedures. If this were to come through, consumers would stand to lose any control they have over the way they use the Internet. Copyright owners and ISPs would get to decide what content we see online and courts could become puppets granting ex parte injunctions for the blocking of websites without having an opportunity to defend themselves in court. This would threaten legitimate uses of copyrighted material as well, since big rights-holders are notorious for often being touchy even about fair uses of their works and demanding their removal (See, Lastly, there is a whole lot of common law that has led to the development of the remedy of injunctions. Expedited court proceedings that do not take the interests of the defendant (unnamed in case of John Doe orders) into account, would run the risk of being unfair to defendants that have not had a chance to present their case at all– and a discussion on this could be the subject of a whole other post.

This is one battle that is clearly not over. The studios have found their foothold in Section 97A injunctions (discussed in part 2) and have obtained a precedent. Website blocking is bound to increase, with more copyright owners taking this route, unless there is a strong argument against it which forces the government to stop and consider the interests of those other than copyright owners, as well as the effect of website blocking on the nature of the Internet itself.

In conclusion, I think that while the approach to website blocking in the UK suffers from serious flaws when looked at from the perspective of consumers and even ISPs, it is at this stage still a process that requires more than just a knock on the door by a copyright owner. In India, a knock on the door of Delhi High Court seems to be all they need. It seems unlikely that ISPs in India will stand up to rightsholders like BT did. Therefore, if there is no concerted action by Internet users and civil society groups objecting to the setting of precedent such as the John Doe orders for Singham and Bodyguard, it won’t be long before any website with a whiff of infringement, never mind its legitimate uses, will be blocked at the behest of the Indian film industry. If one were to consider the Internet’s indispensability and growing relevance in development and commerce, especially in India, it could be argued that the government has an obligation to equally protect the rights of consumers to a free Internet and access to content at affordable prices, as it seems to be doing for copyright owners and those with religious, moral and political sensibilities.

The Spicy IP team thanks Ms. Jain for this series of comprehensive and analytical overview of this contentious controversy. We hope that she would continue her association with us for the benefit of the readers, who have undoubtedly enjoyed her writing and her expertise.

Shouvik Kumar Guha

Shouvik Kumar Guha

Shouvik is at present employed as a Research Associate and a Teaching Assistant at The W.B. National University of Juridical Sciences, Kolkata. He has obtained his B.A. LL.B. (Hons.) degree from NUJS itself and is also currently pursuing his LL.M. degree from the same university. From his very year at law school, he had been attracted towards the discipline of Intellectual Property and that interest has been kindled further in course of time. The interface between IP and other disciplines such as Economics, Anti-trust Law, Human Rights, World Trade Law and the technological developments relating thereto, has especially caught his attention since then. He’s authored several papers on issues relating to IP and other legal disciplines for journals, books, magazines and conferences in national as well as international levels. He is also currently co-heading an organization called Lexbiosis, which is an endeavor meant to facilitate the collaboration between the legal industry and academia.

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