[This post has been authored by Bhavya Sangri, student at University Institute of Legal Studies, Panjab University and Kanika, student at the Rajiv Gandhi National University of Law, Patiala.]
Introduction
In recent times, the Indian courts have observed a growing indulgence of parties in obtaining judicial recourse through the means of Last-Minute Injunctions. While the courts have attempted to discourage this practice, the recent case of the “White Tiger” has brought this issue to the forefront. This case was initiated before the Delhi High Court by Mr. John Hart Jr and Ms. Sonia Mudbhatkal (hereinafter referred to as “the plaintiffs”) to seek an injunction against the movie White Tiger, on the grounds of copyright violations. However, the plaintiffs did so merely 24-hours before the release of the film. Condemning this growing trend, the Delhi High Court in its judgment refused to grant any injunction in favour of the plaintiffs in order to bring an end to the misappropriation of the judicial process.
While the Indian Courts endeavor to protect the interests of the litigants when disputes of such nature arise, the law and the courts are short of ideas, hence, only resort to imposing high costs on the offenders. This blog attempts to theoretically analyze the principles laid down in American Cynamide Co. v. Ethicon Ltd (hereinafter referred to as “American Cynamide”), to determine the outcome of such cases in the light of Covid-19 and attempts to provide a way forward.
Last-Minute Injunctions and Impediments for the Court
The matter of last-minute Copyright Injunction as in the case of White Tiger is yet another example of a spate of litigation in the entertainment industry to injunct the release of movies at the 11th hour. Copyright infringement cases lack rationale and seeking interlocutory indirection against the release of such films constitutes a major part of such litigations. A common denominator that captures the similarity of the opinions highlighted in various judgments in this regard is that most of these litigations are devoid of merit which makes such litigations a waste of the court’s time. This was reiterated by Justice Shankar who remarked on the frivolous and groundless filings while stating that, “it is settled that the litigant approaching the court last minute seeking injunction against the release of any cinematographic film is disentitled to any such relief.” This assertion is derived from the fact that such instances constitute a serious menace to the administration of justice. This is in addition to the fact that the legal system has already suffered a harrowing blow in light of the global pandemic; such vexatious litigations, further add to the existing burden on the Courts.
However, such cases completely lie at the court’s discretion as regulated by §37 of the Specific Relief Act, 1963 and §94(c), §94(e) and Order 39 of the Code of Civil Procedure, 1908. Additionally, this discretion to assess the grant of interlocutory indirection is based on the American Cynamide principles: firstly, whether the litigant has a prima facie case? Secondly, whether the balance of convenience is in the favour of the litigant? Thirdly, whether the litigant will suffer an irreparable injury if his request is not allowed.
Although the courts regard importance to certain cases of last-minute injunctions, the complainant is devoid of any prior knowledge of the act in question. If the same is not proven by the complainant, the courts consider such an act as an unconscionable indulgence and the party faces serious consequences which imposes heavy financial burden on the said party.
Critical Analysis of Mr. John Hart Jr. & Anr. v. Mr. Mukul Deora & Ors. in light of Covid- 19
In the midst of the pandemic, exigent cases requiring emergency relief are becoming more difficult to deal with. The access to courts has dramatically changed as the courts are operating with limited resources. In such challenging times, it becomes all the more important for the plaintiff to prove that a prima facie case exists on his part. The Federal Court of New York in the case of FEI Hong Kong Co. Ltd. v. Global Foundries, Inc. chastised the litigant for bringing the motion while commenting on the facially deficient application filed during the global health crisis. The Bench also remarked that with severely limited personnel, the staff is already taxed while dealing with other substantial matters and such applications are abusive as they are a menace in the administration of Justice. Courts around the globe are not shying away from berating the parties for unnecessarily taxing the system with frivolous claims as also witnessed in the case of Art Ask Agency v. Individuals, Corps., Ltd.
Even before the global crisis, the Indian Courts in catena of cases such as the case of Zee Plex, Kaala, Dashrath B. Rathod etc. has highlighted that resorting to last-minute injunctions not only put the courts and their infrastructure under pressure but also, unfairly prejudiced the other side. The prejudice against the defendants even increases in cases where the plaintiff had a lot of time at hand to raise a question pertaining to copyright infringement but resorts to such injunctions.
The instant case is no different as the plaintiff despite having prior knowledge resorted to an Emergency Injunction against the release of Priyanka Chopra and Rajkumar Rao starrer- White Tiger. He claimed that he had “won” the right to make a movie adaptation of the book as there existed a Legal Auction Agreement between him and the author. However, the assertions pertaining to the absolute right of the plaintiff in the adaptation of the book were completely rejected by the defendants. Moreover, the plaintiff had failed to present these notices before the court. He further added that due to the ongoing pandemic he was under the impression that no film shooting was taking place. The failure on part of the plaintiff to produce the aforementioned documents and depriving the court of law of its fair chance to peruse these documents led to a case that fell short of a prima facie case on the litigant’s part.
Additionally, The Court determined this matter on the basis of balance of convenience as laid down in the case of American Cynamide. There was no evidence as to if the case went on a trial on no other evidence than the ones available during the present hearing on the application, the plaintiff will be entitled to a permanent injunction in terms of the interlocutory injunction. In present times, the virus has already pushed human life to the confines of their homes directly affecting their incomes and livelihood.
If the Court’s decision favoured the plaintiff in this matter, the cost incurred by the defendant would have proven to be an irreparable injury to him, manifesting in the form of financial loss as well as a stained reputation. Additionally, in light of the Covid-19 Pandemic, the harm suffered becomes manifold as compared to times of normalcy considering that this industry has suffered catastrophic losses.
Hence, the Court was justified in setting aside the plaintiff’s complaint.
Way Forward
The litigation in such matters has led to a loss of judicial time. In the times of Covid-19, when cases of emergency relief have substantially increased and with the creation of a special Intellectual Property Division by the Supreme Court of India, such abuse of the judicial process and time is inevitable in Intellectual dispute matters. Therefore, the abuse of the court’s process and time should be dealt with seriously to ensure judicial harmony. The Courts should not only seek exemplary damages as devised in the case of Dnyandeo Sabaji Naik v. Mrs Pradnya Prakash Khadekar & Ors. but also, there is an abject need to devise a proper mechanism under which circumstances the plaintiff should approach the court to seek emergency relief. This begs the question of what steps can be undertaken to curb the menace.
Firstly, there is an urgent need to define what qualifies as an ‘emergency’ matter. The courts should provide a direction as to which emergency cases will be dealt with like the ones qualifying to be “exceptional” in nature. Secondly, the requesting party can provide written testimony, based on his personal knowledge showing that the relief requested is appropriate for an emergency hearing in addition to the regular request. The written declaration must make an affirmative factual statement showing irreparable harm and immediate danger so that it eases the Court’s process of assessing a prima facie case on the part of the plaintiff. Furthermore, the applicant should also show in the written declaration that an emergency injunction will result in a change in the status quo of the matter. The absence of any such documents should be allowed by a dismissal of the plaintiff with costs on the basis of lack of a prima facie case.
One of the alternatives that prevent the burdening of the judiciary is provided in the form of Arbitration. With the presence of an arbitration clause in a contract, the parties are directed to resort to arbitration in case of any dispute. This not only saves the time of the court but also of the parties who can avoid the hassles of litigation. The arbitrability of intellectual property disputes has been discussed at length by the Indian judiciary. The possibility of resolving intellectual property disputes has been explored by the courts.
The first case that initiated a new direction to this negative trend was Eros International Media Limited v. Telemax Links India Pvt Limited. In this case, the respondent was granted a copyright license to distribute the petitioner’s films. The license, in expressed terms, prohibited the use of copyrighted films upon the termination of the contract. The petitioners invoked the arbitration clause when the respondent violated the license agreement. For the first time, it was held by the Bombay High Court that the case was one of those instances where the dispute arose from a contract which made it a right in personam as opposed to being right in rem, as the general notion states. This makes the dispute arbitrable in nature. The most recent case that discussed this issue at length was in the case of Hero Electric Vehicles Private Limited v. Lectro E-Mobility Private Limited. The Delhi High Court held that the dispute was ex-facie arbitrable in nature since there was a valid arbitration agreement between the parties and the dispute thereon was a contractual dispute wherein one party to the contract demanded the restraint of use of a Trade Mark vested with them.
Therefore, it could be duly noted that the abovementioned precedents depict a positive trend towards recognizing intellectual property disputes as right in rem, that arise out of a contract and referring the same to arbitration. As a consequence of this growing importance, it becomes necessary to explore avenues that provide relief in cases that are urgent in nature. Considering that the mechanism of getting an arbitral award is also not a day’s matter, cases that require instant deliberation may resort to an Emergency Arbitration.
Emergency Arbitration, as the name suggests, provides an emergency relief to those who wish to approach the arbitration institution before the constitution of an arbitral tribunal in order to obtain interim relief. Emergency Arbitration has recently been recognized by the Arbitration and Conciliation Act 1996, in the case of Amazon.Com NV Investment Holdings LLC v. Future Retail Limited & Ors. wherein the Supreme Court ruled that an award made by an Emergency Arbitrator under the SIAC Arbitration Rules is enforceable under the Arbitration and Conciliation Act, 1996. Additionally, Emergency Arbitration is also accredited by the Delhi (Arbitration Proceedings) Rules, 2018, the Mumbai Centre for International Arbitration (Rules), 2016 and The Madras High Court Arbitration Centre Rules, 2017, by providing for Emergency Arbitration in their respective Rules. Additionally, the Indian judiciary is validating its importance in today’s legal system. In the light of the recent acceptance of this principle at the central level combined with a growing emphasis on referring matters of intellectual property to arbitration, Emergency Arbitration would function as an apt alternative to assess matters of urgent nature.
Conclusion
The proprietor of an intellectual property right, in certain circumstances, can secure an injunction on an interim emergency basis, usually when the full proceeding is pending. Given the above considerations, in such cases, the burden lies on the plaintiff to “make out so overwhelming a prima facie case that all other considerations pale into insignificance.” At this juncture it is pertinent to note that 11th Hour Injunctions have been accorded in cases of Gulaab Gang, Ramleela, etc. relying on the aforementioned principles. Regardless, the facet of using last-minute injunctions against copyright infringement to stifle free speech is particularly worrying.
In case there exists disparity in the bargaining powers of parties weighing against the respondent, as is the situation in the present case, such a respondent would be in a precarious circumstance. The perilous state of affairs arises not only because of the possibility of an injunction on the release but, this situation becomes even more aggravated in light of the ongoing pandemic. In this backdrop, it is justified on the part of the courts to pay increased attention to the American Cynamide principles that are necessary for securing interim relief but, even after the imposition of high costs, the Courts are prone to the abuse of judicial process and time. Hence, the steps mentioned will prove as a step forward to ensure the safeguard of the same.