Author – Akshay A. Nair’
A copyright is a right granted to the creator of any literary, dramatic, musical, or creative work. A copyright gives the owner the ability to reproduce the protected work, communicate it to the public, change it, and translate it into any other form. In India, the Copyright Act, 1957, (hereinafter referred to as the “Act”) and the Copyright Rules, 2013 provide the legal framework for protection of copyrights.
In recent times, where copyright protected work may be instantly reproduced and circulated, it is necessary to secure such protected material from any further infringement. With an increase in rapid use of the internet across the globe, the instances of copyright infringement over the internet has drastically increased. Since, the infringing content is uploaded online, the role of the intermediaries has greater importance in protecting the right of the creators. It is pertinent to note that though the infringing content is uploaded online, the Internet Service Provider (ISP) or an intermediary is not liable for copyright infringement because the internet is an open platform and any person can upload any material as per his wish. Accordingly, this type of model is called a “Safe harbour” model where ISP or intermediary are granted immunity from any liability arising out of copyright infringement.
However, such protection is not absolute and is subject to some conditions. In such a scenario, copyright holders can use take down notices to inform an ISP that a concerned website hosts any content that infringes on the copyright holder’s rights. A “takedown” method is one in which, upon receiving the notification of unlicensed upload of copyrighted material, the host site would remove the infringing database as well as take a digital fingerprint of it, then store the information distinctively reflecting the file in a system to ensure that it would not be reposted without resolving the dispute. In addition, all relevant information about the infringing content must be provided, and the host website must be notified to remove the content. These Take Down notices are often used to disable the access to other illegal, defamatory and obscene content published on the intermediary platforms as well. As per law, such intermediaries are now under an obligation to conduct sufficient due diligence as well as set up a grievance redressal mechanism to ensure such offensive and illegal content is not published by the users.
Most social media platforms allow its users or any copyright holder to directly raise complaints regarding copyright infringement with the platform which assists in taking down any such content which violates the copyright holder’s rights. Some platforms go to the extent of also penalising the person guilty of publishing such infringed content by limiting their access on the platform. It has been held by courts that such takedown order for publishing offensive content has a global effect and the online platforms or intermediaries are obligated to disable or block the content against which the takedown request has been processed on a global level. These online platforms or intermediaries cannot use geo blocking techniques to block or disable the access to the offensive content in a specific geographic territory.
With the exponential rise in internet access, issues like phishing, fraudulent mobile apps, brand abuse and malware are a constant concern. Original creators and copyright holders are left with very little recourse for instances wherein any kind of copyright violation takes place in places outside geographical boundaries. The internet provides everyone with an opportunity to share information and content without the limitations associated with territorial borders. However, it has also made it difficult to control and regulate the rights to use such information and content. In such circumstances where copyright issues have increased, the owner of the copyright content is within rights to raise complaints pertaining to such copyright infringement with the ISP or with the intermediary platform on which such copyright violation takes place.
The Copyright law in India:
The Act, provides how copyright is infringed. Accordingly, as per the provisions of the Act, copyright is infringed when any person without authentication from the owner or the registrar interferes with the exclusive right of the owner and makes unauthorized use of such copyright.
The Act further deals with the doctrine of “fair use” wherein, temporary or incidental storage of a work or performance to enable electronic links, access, or integration, provided the right holder has not specifically prohibited such linkages, access, or integration shall not constitute copyright infringement. However, if the entity in charge of such storage receives a written complaint from a copyright owner alleging that such transient or incidental storage is an infringement, the entity in charge of storage shall refrain from facilitating such access for twenty-one days or until he receives an order from the competent court prohibiting such facilitation.
Further, the Copyright Rules, 2013 provides how a complaint can be made to a facilitator as mentioned under the Act. Accordingly, the complaint should contain the following particulars:
- All the information about the work
- Evidence that the work belongs to the owner;
- That the infringing act is not covered under the doctrine or fair use or permitted under any provision of the act
- Details of the location from where such infringement is happening;
- Details of the person responsible for such infringement;
- An undertaking to the effect that a suit shall be filed against the infringer in the competent court of the jurisdiction and the copy of orders would be delivered within 21 days of the receipt of the notice.
On the receipt of the notice, the person responsible for the storage if satisfied based on the complaint that the work is an infringement work then in that case, he within 36 hours, can stop the access for 21 days. In case, if the order from the court is not received in the stipulated time, then in that case the person responsible for storage would not require to respond to any complaint made to remove the data.
Liability of the Intermediary under the Information Technology Act, 2000
The intermediaries or ISP are regulated by the Information Technology Act, 2000 (hereinafter referred to as “IT Act”). Accordingly, an intermediary is defined as any person who receives, stores, or transmits a message on behalf of another person or offers any service related to that message.
The IT Act provides that the intermediary or ISP shall not be liable for the link provided or hosted by it for any third party. However, such protection is subject to following conditions:
- The function of the intermediary must be limited to providing access to the third party.
- The intermediary must not initiate, select the receiver and modify the receiver in the transmission.
- The intermediary must exercise due diligence while discharging its duties under the act.
Further, the IT Act, provides that if the intermediary aids in the commission of an unlawful act or does not comply with the takedown order of the government then, in that case the protection granted thereunder may be withdrawn.
The provisions of the IT Act has an overriding effect on any other law for the time being in force. However, the proviso to the section provides an exception for copyright holders to exercise their rights given under the copyright laws. It follows that the copyright holders can proceed against the intermediaries in the event of any direct infringement by them.
- Judicial Precedents
- Shreya Singhal vs Union of India [AIR 2015 SC 1523]
In this case, one of the issues before the Hon’ble Supreme court was that whether Section 79 of the IT Act is constitutionally valid or not vis-à-vis Article 19 of the Constitution. The court was of a view that if the provisions of the section are met, intermediaries are excluded from liability. By reading down Section 79 (3) (b) and Rule 3 to hold that the knowledge referred to in this section must be obtained exclusively through the method of a court order or a government-established agency.
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MySpace Inc. vs Super Cassettes Industries Ltd. (SCIL) [2011(48)PTC49(Del)]
In this case, the plaintiff SCIL filed a suit claiming a permanent injunction restraining the defendant My Space from infringing its intellectual property right i.e., the copyright in the cinematographic films and musical works. The court was majorly dealing with two issues: firstly, whether My Space is said to have the knowledge of infringement and secondly, whether the proviso to Section 81 of the IT ac has overriding effect over “safe harbor” protection granted to the intermediaries under Section 79 of the IT ac.
The court was of the view that Myspace has not violated the provision of Section 79(2) of the IT act. There is nothing on record to show that Myspace has provided access to the third party or has modified the receiver in the transmission. As far as the requirement of due diligence is concerned Myspace has uploaded the user agreement and privacy policy. Further, under Section 79(3) actual knowledge is required to implicate the intermediary or upon receiving the complaint from the affected person, and the intermediary is required to take action within 36 hours of receipt of such notice. However, for that to happen SCIL has to show that, it served a notice to My Space and they failed to take any action as stipulated under the act.
Concerning the third issue, the court observed that the Copyright Act does not exclusively provide for intermediary liability, and hence, parliament by an amendment to Section 81 of the IT act intended to create a separate provision and regime for intermediaries. It follows that to provide the copyright holder a remedy against the intermediary the proviso to Section 81 can be used wherein an intermediary can be held directly liable for copyright infringement.
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Swami Ramdev v. Facebook, Inc. & Ors. [CS(OS) 27 of 2019]
In this case, the plaintiff – Swami Ramdev filed a suit against Facebook, Google, and 4 other platforms seeking a permanent injunction. The plaintiff contended that a book titled Godman to Tycoon- The untold story of Baba Ramdev’ contains defamatory remarks against the plaintiff and the same was the subject matter of judgment passed wherein the court refrained the author from publishing, distributing, and selling the offending portions. The suit was challenged before the Hon’ble Supreme court but there was no stay in the judgment. The defendants had no issue in blocking the URL in India but they were not willing to take it down globally. Therefore, the issue before the court was whether the defendants can be directed to take down the URL from global servers.
The court was of a view that Under Section 79 of the IT Act when a court orders an intermediary to remove content from its platform, the platform must prevent access not only from local domains but also from its worldwide service. The court based its decision on the IT Act’s definition of “computer resource,” which stated that “computer resource” includes a “computer network,” implying that platforms had to remove it globally. The court found that Section 75 of the IT Act allows for extraterritorial applicability for offenses or contraventions committed outside of India, as long as the computer system or network is in India. As a result, as long as the uploading is done from India or the information/data is stored on an Indian computer resource, Indian courts will have the authority to make global decisions. At last, the court noted that the order of takedown is an absolute order which implies that it has to be treated as a whole and cannot be taken in parts i.e. having distinction in Indian and global servers.
Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 on Takedown Services
Recently, the government in February came up with Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021.
These rules provides for relevant due diligence by an intermediary. Accordingly, the intermediary is required to publish rules and regulations, privacy policy, or user agreement to inform its user not to host, display, upload, modify, publish, transmit any information which results in infringement of any patent, trademark, copyright, or any other intellectual property right.
Further, these rules provide the manner in which the intermediary has to comply with the takedown notice. It follows that, when an intermediary receives an order of the court or being notified by the appropriate government or its agency, about infringing content, it shall not host, store or publish any unlawful information which is prohibited under any law. The intermediary is required to act on the order of the court or from the appropriate government or its agency within 36 hours. It also provides for a grievance redressal mechanism to be set up by the intermediary. Accordingly, the intermediary is required to appoint a Grievance Officer who will receive complaints against the violation of the rules. The Grievance Officer is mandatorily required to acknowledge the complaint within specified timelines (24 hours) and dispose of such complaint within 15 days from its receipt.
Further, the rules provide for additional due diligence by significant social media intermediaries. It mandates significant social media intermediaries to appoint Chief Compliance Officer for ensuring compliance to the provision of the IT Act and rules. The said officer would be liable in any proceedings where he fails to ensure due diligence as prescribed under the rules.
However, as far as the copyright protection and takedown services are concerned, the new IT rules have provided a lot of hope to the content creators as in case of infringement they can directly register their complaint with the Grievance Officer with timely disposal of the same. In the previous regime, the liability of the intermediary towards the copyright holders was secondary and the intermediary was liable only in case of non-compliance with the court order.
