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EDITION I · 172 Student, UPES Dehradun. Journal of Innovation, Competition and Information Law 1...
Transcript of EDITION I · 172 Student, UPES Dehradun. Journal of Innovation, Competition and Information Law 1...
Quarterly Law Journal | Published by Agradoot Web Technologies LLP
EDITION I
April 2018
Ankita Aseri .
Editor-in-Chief .
Sameer Avasarala
Publishing Editor
PUBLISHED BY
CITATION
1 JICIL 2018 (01)
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OWNING THE INTANGIBLE! : DIGITAL COPYRIGHT AND LIABILITY OF INTERMEDIARIES COMPARATIVE STUDY OF US
AND INDIA
Ishan Dhengula171, Abhinav172
Abstract
Improvements in technology have always been either boon or a bane. The internet community
believes that access should be universal and sharing should be free, whereas the copyright owning
community believes access should be controlled and copying should be paid. The technological
advancements have on one hand created ease of accessing and distributing the works on the internet,
while on the other hand they have led to copyright violations electronically. The concept of fair use
and fair dealing poses a big question in the digital environment. It demonstrates that how internet
has changed the very approach of the copyright law and how it works from a digital copyright
perspective. Since the copyright is violated electronically, the debate always boils down to the fact, as
to who is responsible for infringement- The person who copies those works? Intermediaries which
host it? Or both? This paper takes into account the changes and developments in the U.S. laws. This
paper examines the contribution of DMCA in controlling access to digital work. It deals with Indian
position in reference with digital copyright infringement under Indian Copyright Act, 1957 and the
Information Technology Act, 2000.
Keywords: Digital Copyright, Intermediaries, Digital Millennium Copyright Act, ISP, Indian
Copyright Act, Information Technology Act
171 Student, UPES Dehradun 172 Student, UPES Dehradun
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Introduction
Intellectual Property Rights (IPRs) are the rights that accord legal ownership to a person or
business for an invention/discovery with reference to a particular product, and which shields the
owner against unauthorized copying. Intellectual Property Rights are the rights conferred on
persons over the creations of their minds. The Exclusive right can be obtained over personal
creation for a defined time period under IPRs. Therefore, one imperative feature that entails note
is that the right is not perpetual.
Copyright protects literary works and other forms of works that constitute expression of ideas,
like painting, etc. Copyright is a legal right created by the law of a country that confers the creator
of an original work, exclusive rights for its use and distribution. This is ordinarily, only for a limited
time. The exclusive rights are not absolute but limited by limitations and exceptions to
copyright law, including fair use. A major constraint of copyright is that copyright shields only the
original expression of ideas, and not the underlying ideas themselves.
Copyright protection across the world has become more strenuous in recent years due to
technological advances that make content sharing, enormously easy and inexpensive. The drastic
increase in the utilization of Internet-related platforms such as social media also adds to the
problem. Since the dawn of the Internet Age in the late 1990's, legislators around the globe have
been trying to determine, how to balance the need of protecting an author's intellectual property
from unauthorized use, without hampering innovation.173 Due to the ease with which digital works
can be copied and distributed worldwide, virtually instantaneously, copyright owners hesitate to
make their works readily available on the Internet without reasonable assurance that they will be
protected against massive piracy.174 When a copyright is infringed electronically, it is much more
difficult to find the infringer and to bring him to court. The debate is whether any liability can be
fixed on the internet service providers/ intermediaries and if yes, to what extent can these service
providers be held legally responsible for or what shall be their duties or responsibilities.
Before moving to the point of discussion, some related concepts and definitions shall be
considered:-
Intermediaries Definition
173 Bradley S. Shear, Copyright Protection in the Digital Age (07 Sep 2010) available at http://www.acc.com/legalresources/quickcounsel/icpituscaeu.cfm accessed 24 March 2017. 174 Copyright of Digital Information http://digital-law-online.info/lpdi1.0/treatise33.html (last visited 24 March 2017.)
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Intermediaries has been defined in the Section 2(w) of the Information Technology Act, 2000
(hereinafter referred to as the “IT Act”). After the amendment, the definition of intermediary
stipulates that “with respect to any particular electronic records, Intermediary means any person
who on behalf of another person receives, stores or transmits that record or provides any service with
respect to that record and includes telecom service providers, network service providers, internet
service providers, web-hosting service providers, search engines, online payment sites, online-
auction sites, online-market places and cyber cafes.”175
The Copyright Act postulates that any “transient or incidental storage of a work or performance for
the purpose of providing electronic links, access or integration, where such links, access or
integration has not been expressly prohibited by the right holder”176 is not an act of infringement of
copyright unless the person responsible for such storage (i.e. an intermediary) is aware or has
reasonable grounds for believing that the work/performance stored is an infringing copy.
Liability of Intermediaries
Easy accessibility of information fallouts in greater prospect of infringement of intellectual
property rights in the virtual world. Although there are numbers of laws to protect copyright, but
to a grander extent, these laws are limited to territorial boundaries and/or are more concerned
with the protection of traditional IPRs, and digital/ virtual medium is left untouched. The question
thus comes to mind, who is accountable for infringement in a case, where it is done virtually on
the internet? - The person who copies those works? Intermediaries which host it? Or both? There
seems to be some confusion in this regard.
In the US, legislations such as Digital Millennium Copyright Act, 1998 (hereinafter referred to as
the “DMCA”) and various judgments have stated the stand point that an intermediary is not liable
for the acts of others in copyright infringement, if it did not have aforementioned knowledge. In
USA and Europe, wherever lawsuits questioning the liability of the ISP have emanated, the two
common grounds of defense have been the following:
a) First, ISPs assert that they are just “passive carriers” and they play the role of a mere
messenger and not of a publisher. In the case Fonovisa v Cherry Auctions177, the court
avowed that “supplying the site and facilities for direct infringement is ‘materially
contributing’ to the infringing conduct and must attract liability”. Conversely, in the case
of Sony v Universal Studios,178 the court rejected the proposition, and opined that “merely
175 Information Technology Act 2000, S 2(w). 176 Copyright Act, 1957, S 52(c). 177Fonovisa, Inc. V. Cherry Auction, Inc., 76 F. 3d 259 (9th Cir. 1996). 178Sony v Universal Studios 464 U.S. 417 (1984)
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providing means to accomplish infringing activity was not sufficient without constructive
knowledge of the infringing activity”.
b) Secondly, it is impossible to make certain that all the data flowing through its servers does
not infringe any person’s copyright. Given that the quantum of data passing through their
systems is enormous, it is highly impracticable to expect ISPs to be able to screen the
content in entirety. Furthermore, even post screening, 100% accuracy cannot be attained
so as to preclude every single instance of copyright infringement. In the case of Religious
Technology Service Centre v Netcom,179 the court held that information providers only offer
an opportunity to publish, and are inept to exercise any influence on, what people
articulate on the internet.
Thus, we can deduce, that two basic defences argued by the ISPs, are the fact that they are just
passive carriers of data and are in no way pertinently involved in the conduct of infringement and
secondly that it is in effect impossible to screen all the data passing through their servers.
In India, copyright is protected by the Copyright Act, 1957 but this Act does not deal with copyright
infringement in the virtual domain. The liability of intermediaries can be located in the Section 79
of the IT Act, 2000. Section 79 of the IT Act exempts intermediaries from liability of the third-
party infringement, if the intermediary exercised all due diligence and had no knowledge about
the incident. If the two exceptions are not met, the intermediaries can be held liable.
Liability of Intermediaries in US
The legal responsibility of the intermediaries has diverged from case to case. Before DMCA came
into force, a question pertaining to the liability of the intermediaries arose in the case of Playboy
Enterprises, Inc. v. Frena180. In this case, Playboy accused the defendants, operators of a bulletin
board system, with copyright and trademark infringement, as well as unfair competition.
Defendants’ bulletin board system was accessible via telephone modem to subscribers.
Subscribers uploaded onto the bulletin board various images which Playboy had earlier published
under its name and on which Playboy owned the pertinent copyright. Furthermore, these
subscribers, utilized Playboy's trademarks Playboy and Playmate. Lastly, Playboy's trademark was
removed from the photograph, and replaced with the name of the bulletin board service and its
telephone number.
The court held Frena liable and rejected its argument that he had no knowledge of the infringing
activity. Instead, the court avowed that knowledge or intention is immaterial when considering
179 Religious Technology Center V. Netcom online Communication Services, Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) 180Playboy Enterprises, Inc. v. Frena 839 F.Supp. 1552 (M.D. Fla. 1993).
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the infringement issue, and hence “…even an innocent infringer is liable for infringement”. The
court also rejected Frena’s second argument for the fair use doctrine.181
The case of Religious Technology Center v. Netcom On-Line Communication Services Inc.182 brought
out the rule of contributory infringement. In Netcom, the issue was whether an intermediary be
held directly, vicariously or contributorily liable for user’s infringing activity. A user had uploaded
copyrighted writings of a scientology guru L. Ron Hubbard to a discussion group on the Internet.
The right holder brought suit against two intermediaries: the BBS the user had used in uploading
and an Internet access provider this BBS had further connected to. The court found that
intermediaries could not be held as (1) direct infringers since a rule of strict liability “…could lead
to the liability of countless parties whose role in the infringing is nothing more than setting up and
operating a system that is necessary for the functioning of the Internet”. In addition, the argument
for (2) vicarious liability was rejected since there were no proofs of financial benefit to infringers.
However, the most important part of the decision was about (3) contributory infringement. The
facts were that the right holder had notified intermediaries and because they did not take any
action in order to delete (or take down) the infringing material, the right holder decided to sue
them too. The parties settled before the resolution. Nevertheless, it is accepted among scholars
that this case confirmed the rule of contributory infringement as settled law.183
The point in each of these cases is the standard of knowledge required before liability can be
addressed. We can see that the court explicitly addressed the control principle as the decisive
standard. It observed that the intermediary did not completely relinquish control over how its
systems were used.
After the Netcom case, it became obligatory for the legislature to formulate a codified legislation
regarding the digital copyright law, and amendment was brought by way of Copyright Act of 1976.
The law administering the matter of digital copyright in US, is now regulated by DMCA. This
development in the copyright act was done in accordance with the two international treaties
(WIPO Copyright Treaty and WIPO Performance and Phonograms Treaty) which obligated the
signatory state to conform to the provision of the treaties. The elementary documents of the
DMCA reveal that the legislators in the United States were apprehensive that the DMCA would
stipulate unambiguously what liability ISPs could face and that their risk of liability would not be
too high.184. The resulting DMCA provided a suitable mechanism for copyright holder to protect
181 Copyright Act of 1976, S 107. 182Religious Technology Center v. Netcom On-Line Communication Services Inc., 907 F.Supp. 1375 (N.D. Cal. 1995). 183MikkoValimaki, ‘Infringement Liability of online Intermediary for Copyright infringement’ available at https://helda.helsinki.fi/bitstream/handle/10138/21555/liabilit.pdf?sequence=2 accessed on 29 March 2017. 184 House Conference Report No. 105-796, (“HCR No. 105-796”).
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their online content. It criminalized production and dissemination of technology, devices, or
services intended to circumvent measures (commonly known as digital right management) that
control access of copyrighted work. The DMCA's fundamental innovation in the field of copyright,
is the exemption from direct and indirect liability of internet service provider or other
intermediaries.
In US, liability of intermediaries in relation to third-party content is administered by two separate
legislations – Section 230 of the Communications Decency Act and Section 512 of the DMCA.
Section 230 of the Communications Decency Act furnishes immunity to providers and users of an
"interactive computer service" who publish information provided by others.185 Section 512 of the
Digital Millennium Copyright Act postulates Limitations on liability relating to material online.186
Section 512 affords a platform for copyright owners and online entities, to address online
infringement, including limitations on liability for compliant service providers to help foster the
growth of internet-based services. To qualify for protection from infringement liability, a service
provider must bring to fruition certain requirements, generally consisting of implementing
measures to expeditiously address online copyright infringement.
The case of Doe v. Myspace187 is a classic example of the extensive immunity provided to
intermediaries under US law. Myspace was sued for negligence, for the reason that it failed to
implement proper safety measures to thwart minors from lying about their age, and gain access
to Myspace profiles through which they could communicate with potential sexual predators. The
US courts, held that Myspace could not be held liable for any communications published by third
parties, and dismissed the case of negligence against Myspace. Despite the fact, that the
Communications Decency Act offers intermediaries with broad immunity, the DMCA adopts the
‘safe harbour’ approach as used in India, in order to provide a conditional safe harbour for
intermediaries, for claims of copyright infringement. Furthermore, the DMCA specifically affords
a ‘notice and take-down’ process, by which the owner of a copyrighted work can apprise an
intermediary of any infringing content in the form and manner provided under the DMCA.188
Fair Use Doctrine
185 Communications Decency Act 1996, s 230 (c) (1). 186 Digital Millennium Copyright Act 1998, s 512. 187Doev. MyspaceInc., 528 F.3d 413 (5th Cir. 2008). 188 Smitha Krishna Prasad, Rakhi Jindal & Vivek Kathpalia, ‘Intermediaries – Messengers or Guardians? How India and US deal with the role and liability of intermediaries’ http://www.nishithdesai.com/fileadmin/user_upload/pdfs/Research%20Articles/Intermediaries_-_Messengers_or_Guardians.pdf (last visited 28 March 2017).
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United States copyright law has incorporated a doctrine titled “Fair Use” which permits people to
use copyright holder’s content without his/her authorization. Fair Use is now extensively
recognized in most countries around the world. It sanctions the limited use of copyrighted
material without any specific permission from the copyright owner. Fair use serves as an
affirmative defense to a copyright infringement allegations. As per fair use doctrine, copyrighted
works may be cited or replicated without the consent of the copyright owner, as long as, the
reproduction is used for "purposes such as criticism, comment, news reporting, teaching...,
scholarship, or research."189
The Digital Millennium Copyright Act came in to force in 1998 with the objective of updating
copyright act in harmony with the digital age. This act has various components, but it is best
known for the ‘safe harbor’ provision, which is also known as “DMCA Takedown” process. The idea
behind the safe harbor is, to immune the ISP or OSP from the liability for the infringing content
uploaded by the user. This provides legal protection to the ISP or OSP. It also removes any
requirement for host, to filter or monitor their sites for infringement.
In the United States, Fair Use countenances for the limited use of copyrighted material, devoid of
the copyright holder's permission. The difference between infringement and fair use, is not always
clear. Four factors are employed to determine if infringement has occurred. The four
factors include:190
a) the purpose and character of the use, including whether such use is of a commercial
nature or is for nonprofit educational purposes;
b) the nature of the copyrighted work;
c) the amount and substantiality of the portion used in relation to the copyrighted work as a
whole; and
d) The effect of the use upon the potential market for or value of the copyrighted work.
The landmark decision by the U.S. Supreme Court in Sony Corp. of America v. Universal City
Studios, Inc.191 marked a transforming juncture in the application of the fair use doctrine. When
Sony developed and marketed its Betamax machine, it became possible for private individuals to
record any televised program. Sony contended that most consumers chiefly used the Betamax for
"time shifting," through which consumers recorded the programs they could not watch at the time
of their broadcast, and recorded over that tape once they watched their program.”
189 Digital Millennium Copyright Act 1998, s 107. 190 Bradley S. Shear, ‘Copyright Protection in the Digital Age’ (QuickCounsel 7 Sep 2010) http://www.acc.com/legalresources/quickcounsel/icpituscaeu.cfm accessed on (last visited 29 March 2017). 191Sony Corp. of America v. Universal City Studios, Inc.464 U.S. 417 (1984).
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However, as entire programs were taped, Universal pursued its infringement claim and
condemned Sony's fair use defense. Since a new copying technology was involved, the court's
decision was critical. The district court found no contributory infringement because the Betamax
was capable of "substantial non-infringing uses," and therefore the court ruled in favor of Sony.192
The Ninth Circuit however, reversed that decision and found Sony liable for contributory
infringement. The Supreme Court granted certiorari to hear the case and, by a narrow margin,
the Court decided in favor of Sony. The Court held that Sony was not liable for contributory
infringement.193
In Fox Broadcasting v. Dish Network194, Dish Network tendered services that recorded television
shows and skipped over commercials, avowing that such technology was fair use when it was
subsequently sued by various networks. The case entangled a number of copyright and
contractual issues; while the court found largely in favor of fair use for time-shifting and place-
shifting technology, it also found that Dish Network may be liable for breach of contract.
Even though finding in favor of fair use of the PTAT (Prime Time Any Time) technology, the court
ruled against fair use for the copies DISH made as “quality assurance” copies, finding that they
were non-transformative.195
After ruling in favor of DISH’s time-shifting technology, the court also mentioned that place-
shifting is fair use: “Hopper Transfers is a technology that permits non-commercial time- and
place-shifting of recordings already validly possessed by subscribers which is paradigmatic fair
use under existing law. While this use is itself a fair use, however, DISH may have violated its
contractual agreements with Fox.
Liability of Intermediaries in India
The Courts in India encountered the issue of liability of intermediaries for the first time in the case
of Avnish Bajaj V. State196 wherein, the CEO of the auction portal Baazee.com, was arrested after a
user posted an obscene multimedia clip for sale on the site. Even though dismissing the motion to
quash the proceedings at the outset, the Delhi High Court held that the website which hosted such
material could be held liable under Section 67 of the IT Act 2000 for publishing information which
is obscene in electronic form.
192Ibid. 193 Ibid. 194Fox Broadcasting v. Dish Network No. CV 12–4529 DMG (SHx). 195 ibid. 196AVNISH BAJAJ V. STATE, 150 (2008) DLT 769.
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The Avnish Bajaj case197 resulted in the amendment of the IT Act 2000, in order to allow
intermediaries to incorporate safeguards to protect against liability based on content hosted by
them. On this issue, due to the anonymous nature of the internet, it is often reasoned that
intermediaries are best placed to filter or take down such objectionable content, since they
possess the technical means to do so.198
The protection of digital copyright in India came after the amendment act of 2012. Section 65A has
been inserted in the Copyright Act 1957. This section caters for protection of technological
measures. Copyright Act 1957 does not deal with liability of intermediaries. Liability of
intermediaries is dealt by the IT Act 2000. Section 79 of the IT Act provide conditional safe harbor.
Section 79 of the IT Act provides that an intermediary is not liable for any third-party content
hosted/made available through such intermediary when:
a) the function of the intermediary is limited to providing access to the system; or
b) the intermediary does not initiate, select the receiver of or select/ modify the information
contained in a transmission; and
c) the intermediary observes due diligence and abides by other guidelines prescribed by the
Government.
Section 81 of the IT Act, affords overriding effect to IT Act over other acts in force. It also lays
down that this act does not prevent anyone from exercising their rights under the Copyright Act
or Patents Act.199
The Information Technology (Intermediaries Guidelines) Rules, 2011 provides guidelines to be
followed by intermediaries to get exemption under section 79 of the IT Act. Various measures have
been provided in the 2011 Rules, which are to be taken care by the intermediaries such as200
(i) the requisite to inform the users of the computer resource not to transmit any
information that, among other things is harmful, obscene or defamatory;
(ii) the requirement to “act within 36 hours” of receiving knowledge of the transmission
of any prohibited information; and
(iii) the requirement to disable information that is contradictory to the Intermediary Law.
Sections 79 and 81 both are non-obstante clauses which make extremely difficult to interpret the
two Sections harmoniously, and to pinpoint which Section supersedes the other. Due to this
197Ibid. 198Yogesh Pai and NiteshDaryanani, ‘Online Intermediary Liability and Privacy in India’ https://www.law.uw.edu/media/140258/india-intermediary-liability-of-isps-privacy.pdf accessed 27 March 2017. 199 Information Technology Act 2000, s 81. 200 The Information Technology (Intermediaries Guidelines) Rules 2011 R 3.
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controversy over applicability of Section 79 to cases of copyright infringement, there was a move
to amend and introduce exceptions within the copyright law itself.201
Super Cassettes Industries Ltd. v. Yahoo Inc. & Anr202 is the best example of the controversy in which
the Honorable High Court of Delhi issued notice to Yahoo Inc. and its Indian subsidiary Yahoo
Web Services (India) Pvt. Ltd on a suit filed by Super Cassettes Industries Limited (SCIL), owner of
the Indian music label "T-Series", for infringement of their copyright caused by unlicensed
streaming of SCIL's copyright works on Yahoo's portal video.yahoo.com.
The plaintiff filed the suit for permanent injunction, restraining infringement of copyrights etc.
Plaintiff averred that they have a robust copyright licensing program under its ‘TPPL Scheme’ and
routinely grants licenses to other exploiters of music such as restaurants, hotels, resorts, shopping
malls, retail outlets, nightclubs/discotheques, airlines, FM radio stations, TV broadcasters etc., for
the use of works in which it enjoys copyright.
Subsequently the plaintiff found that the defendants are infringing the copyright of the plaintiff
by hosting and streaming the songs, partially and full video clips of audio-visual songs in which
the plaintiff owns the copyright. Legal Notices were served but it was realized that the copyrighted
works were not removed by the company.
Order was delivered by the court restraining defendants and/or its officers, servants, agents and
representatives from reproducing, adapting, distributing or transmitting in any manner on their
website, `www.video.yahoo.com’ or otherwise infringing in any manner, the cinematograph films,
sound recordings and/or the underlying literary or musical works of the plaintiff, in which the
plaintiff claims copyright, without procuring an appropriate license from the plaintiff.203
In another case Super Cassettes Industries Limited v. YouTube & Google204, SCIL asserted that the
business model of YouTube allows, encourages and profits from use of copyrighted work uploaded
on the website without obtaining any license or permission from the rightful copyright owners
and without paying them any royalty. The High Court passed the order against YouTube and
Google restraining them from reproducing, adapting, distributing, communicating, transmitting,
disseminating or displaying on their websites or otherwise infringing … any audio-visual works in
which the plaintiff [SCIL] owns exclusive, valid and subsisting copyright.
201 Saikia, Nandita, Art and Indian Copyright Law: A Statutory Reading http://dx.doi.org/10.2139/ssrn.2625845 (last visited 5 April 2017). 202Super Cassettes Industries Ltd. V Yahoo Inc. & Anr, CS(OS) No. 1124 of 2008 [Delhi High Court]. 203Ibid. 204Super Cassettes Industries Limited v. YouTube & Google SCIL LLC CS(OS) No. 2192 of 2007 (Delhi High Court).
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In another case MySpace Inc. vs Super Cassettes Industries Ltd.205 , Super Cassettes filed a suit
against MySpace in the year 2008. It was contended that a lot of the songs and other audio-visual
content that MySpace hosted on its website violated its copyright. It further claimed that MySpace
profited from this, through advertisements that were inserted into the videos. Furthermore,
MySpace’s existing systems of protecting copyright – i.e., a terms of service agreement with its
users directing them not to violate copyright, a notice-and-takedown system where MySpace
would take down copyright infringing material on being alerted by the holder, and a Rights
Management Tool, whereby copyright holders could sign up, create digital fingerprints of its
content, and then submit it to MySpace, who would then block mirror content – could not absolve
it of liability under Indian law. Super Cassettes contended that MySpace had violated provisions
of the Copyright Act. It sought a permanent injunction, and damages. High court of Delhi held in
the favour of Super Cassettes and MySpace was held liable for the infringement of the copyright.
On appeal, the division bench of Delhi High Court reversed the order of the single judge. Court
employed the provision of safe harbor, which affords immunity to the intermediaries in case of
copyright infringement in certain cases. Division Bench of the Delhi High Court reversed the
findings arrived at earlier by a Single Judge on the question of intermediary liability and maintained
that that intermediaries are immune from liability against copyright infringement for third party
content unless “actual knowledge” on their part can be proved. The Bench, while arriving at the
decision, ruled that S.79 of the Information Technology Act, 2000 provides a “safe harbor” to
intermediaries and the same is not struck by the proviso to S.81 of the same Act.206
Conclusion
Copyright confers a bundle of exclusive rights to the author of copyrighted work with respect to
reproduction of the work, and another specified acts, to empower the author to receive financial
benefits by exercising such rights and encourage innovation.
While comparing legislative structures and the interpretation, one may be inclined to argue that
US judges gives more freedom to access “fair use” and possibly extended these factors to ever new
areas of technology and copyright content.
The scope of online service provider’s liability for copyright infringing third party content under
the Indian law has seen a paradigm shift with the IT (Amendment) Act, 2008 coming into force. In
section 79 of the IT Act, 2000 (as amended), India devours its own ‘safe harbor provision’ which
offers immunity to intermediaries for third party information, data or communication link hosted
205MySpace Inc. vs Super Cassettes Industries Ltd. FAO(OS) 540/2011, C.M. APPL.20174/2011, 13919 & 17996/2015. 206Ibid.
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or made available by them. This has significant ramifications on the liability of OSPs under the
Copyright Act, 1957, and OSPs can claim immunity for hosting copyright infringing third party
material by reference to Section 79 of the IT Act, 2000.
Suggestions
Even though the Government has strived to provide a balanced framework between the Copyright
owner and intermediaries, there is an exigency of better legislation on liabilities of ISP for Digital
Copyright. Owing to increasing digitization in the 21st century, there are more chances of
Copyright infringement. Furthermore, Since India is becoming digital, it altogether creates a
necessity of more stringent law apropos ISP liability. If the law fixes liability only on the
intermediaries for user generated content, there is likelihood that the intermediaries will put
constraint on the accessibility of the content to evade from their liability. Section 79 of IT Act
endows safe harbor to the intermediaries but section 81 of the IT Act override the provision of the
section 79. There has been always conflict between these two provisions of the IT Act. Although
judiciary has tried to balance between these two provisions in the recent judgement of MySpace
Inc. vs Super Cassettes. While interpreting the two provisions, declaring that the rights conferred
under the IT Act, 2000 are supplementary and not derogatory to the Patents Act or the Copyright
Act. The proviso was inserted only to permit copyright owners to demand action against
intermediaries who may themselves post infringing content; the safe harbor only existed for
circumstances when content was third party/user generated.
IT Act provides for the liability of intermediaries but not for the liability of the person who actually
infringes the copyrighted material. It’s not only the liability of the intermediaries to protect the
copyright but the liability is of the user as well. The content available on torrent is pirated and
downloaded by the public is also a form of infringement of the Copyright and it should be ceased
by the users. The liability of the infringement of copyright should not only be on the intermediaries
but on the users also.