When Copyright Tramples on the Right to Freedom of Expression

Vimeo, Pastebin, Piratebay and many other sites were blocked for over a month in India. There was lot of clamour in the twitterverse and social networking sites against the Internet Service Providers (ISPs) and the Department of Telecommunications (DOT) on this large scale website blocking. However, areply that SFLC.in has received from MTNL in response to an application under the RTI Act reveals the real picture. The reply shows how agents of copyright owners have misrepresented the Court order and forced ISPs to block these websites.

MTNL has furnished acopy of the letter that they received from Copyright Labs, the agents for M/s Creative Commercials Media & Entertainment Limited who are the the producers of the movie "Dammu". Copyright Labs have in the letter demanded that the ISPs block a long list of 272 websites including vimeo.com, pastebin.com and xmarks.com citing the Chennai High Court order. This is a clear misrepresentation of the court order as the order does not require blocking of websites. Earlier, areply that SFLC.in receivedfrom DOT showed that DOT had not issued any order to block websites.


A reply that SFLC.in has received from MTNL in response to an application under the RTI Act reveals the real picture.

The order in the suit filed by M/s Creative Commercials Media & Entertainment Limited restrains 38 Internet Service Providers (ISP) including MTNL, BSNL and Airtel and unknown persons named as "Ashok Kumar" from infringing the copyright by copying or communicating or allowing others to communicate or copying the movie. The orders with directions to unknown persons are often termed as John Doe orders or as Ashok Kumar orders in India. Such orders are issued when suspected offenders are unknown. This ensures that the copyright owner is not forced to approach the court to obtain an injunction every time the identity of an offender is known.

The Chennai High Court had also issued temporary injunctions in a suit filed by RK Productions, the producers of the movie "3". It is ironical that the movie "3" which derived maximum publicity from its song "kolaver di" having gone viral on social media and content sharing networks has now become the reason for blocking those very websites which ensured the wide distribution of the song and made it a roaring success. MTNL has stated in the reply that they received a letter from RK Productions, but they have enclosed the letter sent by Copyright Labs on behalf of Creative Commercials Media & Entertainment Limited.

Now, the question to be asked is whether such indiscriminate blocking of websites is mandated by the order of the Chennai High Court. The order restrains the ISPs as well as unknown persons from infringing the copyright or allowing others to infringe. The order does not have any direction on blocking of websites. SFLC.in contacted Mr.Harish Ram, CEO of Copyright Labs and he assured us that they have only asked the ISPs to block specific URLs that are infringing on their copyright. However, we filed this RTI request to verify this and the copy of the letter that they have sent to ISPs shows that what he said is not true. Their action in asking for blocking of entire websites is a mis-representation of a judicial order to cause indiscriminate blocking of these web-services through out the country.

The ISPs have chosen not to take a risk and have over-complied with the High Court order by blocking entire websites instead of taking down only the infringing content. The uncertainty that is prevailing about the safe harbour provisions, thanks to the problematic Information Technology (Intermediaries Guidelines) Rules, 2011 and the pending cases against Google and Facebook could have prompted them to take the safer option than to stand up for the rights of their users. This does not bode well for Internet freedom in India and is an ominous sign of things to come.

The Chennai High Court by a subsequent order dated June 15, 2012 clarified that the John Doe order issued to the producers of the movie "Dammu" is "only in respect of the particular URL where the infringing movie is kept and not in respect of the entire website". We hope that this clarification would stop further instances of indiscriminate blocking of websites. However, we find that the Piratebay is blocked even now in most networks.

The Supreme Court has held the right to receive information to be an ingredient of the fundamental right of freedom of speech and expression. When this right of the citizens are violated by such indiscriminate blocking of websites, it does not augur well for the largest democracy in the world.

This instance of blocking underlines the need for the law to prescribe penalties for sending such inappropriate blocking requests. This could be considered when the Government reviews the Information Technology (Intermediaries Guidelines) Rules, 2011 as promised by Kapil Sibal, the Minister for Communications & Information Technology in the Parliament.

Copyright owners need to understand the importance of the medium in popularising and monetising their work and should not take such ill advised action that affects this dynamic medium which is on an exponential growth path in India.