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)

Journal of Innovation, Competition and Information Law 1 JICIL 2018 (01)

Published by Agradoot Web Technologies LLP 36

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



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.)



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)



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).



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”).



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).



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).



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.



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.



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).



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.



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.

edition i · 172 student, upes dehradun. journal of innovation, competition and information law 1...

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