Intermediary Liability in India with respect to Copyright and Trademark
-by RINTU MARIAM BIJU
The Copyright Amendment Act and provisions on ISP Liability
The Old Copyright Act provided for the concept of Secondary Liability for Copyright infringement. The act does not contain any express provision for determining or limiting ISP liability.
As per Section 51, “Copyright in a work shall be deemed to be infringed, when any person, without a licence granted by the owner of the Copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright.”
If the ISPs do transmit and store infringed material, they could still be liable if they fulfil the above two requirements. He may be criminally liable under section 63 of the Copyright.
There are two new provisions Section 52(1) (b) and 52(1) (c) which provide some degree of protection to ‘transient or incidental’ storage of a work or performance.
Former allows for the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public”.
The latter allows for “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration where such links, access or integrations has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy”.
Section 52(1)(b) and (c) as amended therefore, refer to “how” the storage of content is effected and “why” it is effected respectively.
Section 52(1)(c) thus seems designed to protect intermediaries from secondary infringement and not from the acts of primary infringement.
As mentioned earlier exception applies only if the intermediary is under the impression that the relevant content is not infringing and has good reason to believe so.
It also contains a ‘notice and take down’ procedure which requires taking down infringing content for a period of twenty-one days upon receipt of a complainant.
The ‘safe harbour’ is quite similar to that of DMCA in its structure, but the intermediaries in India have been less time to take down the infringing material they wanted to be protected by the safe harbor.
The intermediary rules do not contemplate a re-upload, on failure to demonstrate that the content was actually infringing. (after the completion of 21 days).
An intermediary may be found to have committed infringement with reference to forms to intellectual property other than copyright, particularly with respect to the interaction between Sections 79 and 81 of the IT Act.
DMCA was an update of the general law governing copyright, the Copyright Act, which limited the potential liability of ISP’s regarding certain activities but it did not exempt them from liability. DMCA also lays down when they can be held liable for the infringement of copyright by their subscribers.
The DMCA allows ISP’s to avoid both copyright liability and liability to subscribers by adhering to certain guidelines set out therein which are known as safe harbors.
The safe harbor provisions limits ISP provisions to four categories,
- transitory digital network communications,
- system caching
- information residing on systems at the directon of subscribers
- information location tools
The DMCA has a system of ‘notice and take down’ under which when an ISP receives a notification from a right- holder informing it that a breach of copyright had been committed through its system, the ISP is forced to take account of such an information and to act to restrict all access to the offending information through its system
The Act goes to adopt a policy which provides that ISP’s are not liable for content that they unknowingly transmit. But it has to be taken into account that ISP’ would be held responsible for taking down content that copyright holders can show to violate their copyright rights. The burden of monitoring the content is on the owners of IP.
General immunity is not granted to ISP’s through DMCA, but it has limited the liability of the ISP’s based on their knowledge and involvement of the infringing activity. This has created an equitable balance between all parties.
In the case of Super Cassettes Industries Ltd. V. Myspace Inc. -the Court found Myspace guilty of primary copyright infringement for allowing the viewing and sharing of images and music over which Super Cassettes claimed ownership. Clearly showing how important is to adhere to copyright laws by any intermediary.
The term “Intermediaries” has been defined in Section 2(w) of the IT Act as “intermediary with respect to any particular electronic message means any person who on behalf of another person receives, stores and transmits that message or provides any service with respect to that message. “This definition includes telecom service providers, web-hosting service providers, search engines, online payment sites, online auctions, online market places, and cyber cafes and etc., would fall within the purview of the exemption provided in Section 79 of the IT Act.
Further Section 79 makes it very clear that an intermediary and a “network service provider” are one and the same. Section 79 thus absolves the liability of the ISP if it can prove that firstly, there was no knowledge of the alleged infringement, and secondly, due diligence was taken to prevent such infringement. Thus, the Statute makes it clear that Section 79 defenses are applicable to all intermediaries including those in E-Commerce and this represents the clarity in drafting and explains legislative intent.
Section 81 of the IT Ac, it has an overriding effect over other acts in force provided it does not prevent anyone from exercising their rights under Copyrights Act or Trademark Act.
Major Limitations of the Indian Law
(a)The vague provisions of section 79 of the IT Act, which leave enough scope for authorities to harass ISPs in matters where their liability comes into question.
(b) The expression “due diligence” is pivotal in deciding the liability of ISPs. The term has not been defined in the entire Act. This creates confusion and ambiguity.
(c) Neither the Copyright Act nor the IT Act classifies or defines an ISP. ISP liability, if included within the IT Act, is erroneously same for one who acts as a mere communication carrier such as telephone network operators, and one who is responsible for transfer of data via the internet.
The above article is written and brought to you by RINTU MARIAM BIJU