By Adv. R. S. Agrawal 

 

THROUGH the order passed in the Commercial IP Suit between Applause Entertainment Private Ltd. and Meta Platforms Inc. and others on May 2, 2023, Justice Manish Pitale, at the Bombay High Court, has considered reasons for the plaintiff seeking “Dynamic injunction” and opined that in the facts and circumstances of this case and the manner in which 33 defendants (other than Meta Platforms Inc.) appear to be using Instagram platform, a strong prima facie case has been indeed made out on behalf of the plaintiff for granting such ex-parte ad-interim relief, which may amount to a “dynamic injunction”. The present proceedings have been initiated by the applicant –plaintiff, asserting copyright in a web series titled “Scam 1992: The Harshad Mehta Story, which is said to be a cinematic adaptation and dramatisation of the book titled “The Scam”.

It has been stated in the plaint that the authors of the said book, published in the year 1992 and thereafter, republished in 2001-2002, had executed an assignment agreement in favour of the plaintiff for valuable consideration, whereby they assigned all rights, title and interest in the said book, in favour of the plaintiff for adapting the book into a series or any audio-visual content. Copy of the assignment agreement has been placed on the record of the case. Thereafter, the plaintiff entered into Memorandum of Understanding of January 16, 2019, with Sony Pictures Network India Private Ltd, whose studio acted as a line producer for producing the web series. The production agreement was executed in that regard, in which credits show the plaintiff as the owner of the copyright of the said web series.

Subsequently, by licence agreement of May 20, 2020, the licence was granted to OTT Platform of Sony for broadcasting the said web series. The said web series was released on October 9, 2020 on digital platform SonyLiv. On this basis the plaintiff claims exclusive rights in the said web series. According to the plaintiff, in December, 2022, it came across social media handles of defendants-2 and 3 on defendant-1’s platform-Instagram, whereby those defendants were found to be using features available on Instagram to publish or communicate to the public, substantial parts of the said web series. Certain clips from the web series were found to be stored, broadcasted and communicated by defendants 2 and 3 in the context of their business and to promote their activities for generating revenues. Against this backdrop, on December 19-20, 2022, advocates of the plaintiff filed complaint with defendant-1, as per the mechanism of grievance redressal of the said defendant. The defendant-1 took no action in respect of the said activity. As a result, defendants 2 and 3 have continued with their activities amounting to infringing upon the proprietary rights of the plaintiff.

In March, 2023, the plaintiff discovered social media handles of defendants Nos 4 to 34 on Instagram platform indulging in similar activities. The plaintiff filed complaint again to the grievance redressal mechanism of the defendant-1, regarding infringing activities of defendants 4 to 34.On demand, the plaintiff provided copies of all the relevant documents on the basis of which, the plaintiff was claiming proprietary rights. Against this backdrop the present suit was filed. Regarding the activities of defendants – 20 to 34, the plaintiff’s counsel pointed out to the High Court material placed on record indicating that those defendants are illegally using short audio-visual clippings from the said web series of the plaintiff and thereby infringing the proprietary rights of the plaintiff. It has been also submitted that there is every possibility of defendants – 2 to 34 using different identities or rogue handles on Instagram platform to continue to violate the rights of the plaintiff. It has been also contended that if this Court grants ex-parte ad-interim relief as prayed, it would be an order of the Court, as contemplated under section 79 of the Information Technology Act, 2000, which defendant -1, as an intermediary, would be bound to follow.

According to the HC, the nature of documents placed on record do show that the said web series can be watched only on the aforesaid OTT SonyLiv platform, as per the terms and conditions insisted upon by the said OTT platform . Any other form of communication or broadcast of the said web series or any part thereof, would amount to violation of the copyright in the said web series, which prima facie appears to be in favour of the plaintiff.

The material placed on record also indicate that defendant Nos 2 to 34 have used the Instagram platform to illegally use parts, snippets or short clips of the audio-visual content of the said web series on their handles, in order to promote their own business activities. Prima facie, it appears that the said activity of defendants – 2 to 34 violates the proprietary rights of the plaintiff.

As the HC has been convinced that unless interim reliefs are granted urgently in favour of the plaintiff, it is likely to suffer grave and irreparable loss, as the balance of convenience also lies in favour of the plaintiff. Pending hearing and final disposal of the suit, the HC has granted ex-parte ad-interim reliefs in terms of prayer clauses (a), (c), (f) and (g) and restrained the defendants 2 to 35, their proprietors, partners, employees owners, affiliates, entities and /or other person claiming through them from infringing the plaintiff’s exclusive copyright subsisting in the said web series by publishing the impugned posts and in any other manner whatsoever. These defendants have been also directed to remove and/or delete the impugned posts. The HC has also prohibited these defendants from misleading and/or misrepresenting to any person of having any association with plaintiff and /or its business activities in any manner whatsoever.

Pending hearing and final disposal of the suit, though an order of temporary injunction/order, the High Court has directed the defendant-1 Meta Platforms Inc., it’s Directors, employees agents, officers, assigns, representatives and/or any other person claiming through it to disclose to the Plaintiff and this HC all particulars available with the defendant-1 including but not limited to the contact details, mobile numbers, email addresses, IP addresses and physical locations / addresses of defendants- 2 to 34, which it should comply with before the next date of hearing – June 19 next. Ex-parte ad-interim reliefs shall continue to operate till then.