Curbing online copyright infringement: due diligence

By Madhu Chaudhary Gadodia and Rishabh G Mastaram, Naik Naik & Co
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It is common for intermediaries, such as Yahoo or Google, that have a global presence to include content on their website that can be instantly uploaded and downloaded by an unlimited number of users. This content can also be converted into a single digital stream and easily manipulated to create a variety of works.

However, problems arise when real time or downloadable content is placed on an intermediary’s website without the permission of the owner of the copyright of the intellectual property.

Madhu Chaudhary Partner Naik Naik & Co
Madhu Chaudhary
Partner
Naik Naik & Co

Protecting rights

The Information Technology (Intermediary Guidelines) Rules, 2011, notified on 11 April, aim to address issues regarding infringement of copyright of content. The rules mandate that all intermediaries need to carry out due diligence before uploading content on a website. This will be necessary in order to enjoy exemption from liability for hosting any third-party information under section 79 of the Information Technology Act, 2000. The protection afforded by the “safe harbour” provision under the act corresponds with that in the Digital Millennium Copyright Act in the US. This provision was analysed in great detail in Viacom International Inc v YouTube, Inc.

Whether intermediaries will carry out such due diligence exercises and how it would protect online publications is yet to be seen. In addition, no court has as yet ruled on whether carrying out such due diligence will absolve an intermediary of liability.

Curbs on free speech

The Information Technology (Intermediary Guidelines) Rules place a legal obligation on an intermediary to remove objectionable content described in rule 3(2) and 3(3). These guidelines give the intermediary the power to censor content, which they need to do in order to distance themselves from any liability for acts committed by the website’s users. While doing so, intermediaries will be encroaching upon the freedom of speech and expression in the online publishing space.

The question that then arises is: do these intermediary guidelines aid the regulation of online content or do they jeopardize the freedom of expression in online publishing?

Easy to apply?

With regard to the freedom of speech, the regulation of online content has to be consistent with that of offline content. At the same time, the rules should adopt a practical rather than a theoretical approach. However, the implementation of the rules appears to be burdensome for the intermediaries. For instance, intermediaries often take the stand that it should be “actual knowledge” and not “general knowledge or awareness” of copyright infringement that decides the liability of an intermediary.

While it is possible to apply Indian law to intermediaries, it is impractical to require all intermediaries (both in India and outside) to observe India-specific prescriptions regarding due diligence.

In addition, is it fair to apply the same parameters for every intermediary? This is a question that needs careful consideration as some intermediaries deal with user-generated content and others deal with self-generated content. If the same rules apply for both, it may become impossible for a user to publish critical views without being exposed to the summary censorship procedure.

Rishabh G Mastaram Senior associate Naik Naik & Co
Rishabh G Mastaram
Senior associate
Naik Naik & Co

Fixing liability

If a content owner uploads material that infringes copyright on the internet, he usually attracts liability. However, fixing liability is difficult as it is hard to locate the uploader. The host of a peer-to-peer network may attract intermediary liability, depending on how much it has contributed to providing access to any copyright infringing material.

It may also be worthwhile to consider if the intermediaries can be indemnified by publishing the rules and regulations, privacy policy and user agreement prescribed under the rules. Enforcing such an indemnity would be an issue, particularly when users are from different jurisdictions. Users may also shift the onus onto the intermediary since the buck stops at the intermediary from all angles.

The way ahead

It will be interesting to see how the judiciary interprets the Intermediary Guidelines. Historically, the judiciary has given due recognition to “actual knowledge” in case of liability of an intermediary in cases of copyright infringement. So far, the judiciary has adopted a liberal approach by tilting the equilibrium towards the fundamental right of freedom of speech and expression. However, the guidelines may make it a challenge for the judiciary to absolve an intermediary from the due diligence obligations and liability in case of a breach.

Madhu Chaudhary Gadodia is a partner at Naik Naik & Co. She specializes in IPR, media and entertainment laws and litigation. Rishabh G Mastaram is a senior associate and deals with FEMA, corporate and commercial transactions. The firm was founded by Ameet Naik. It is a full-service law firm with specific focus on entertainment, real estate, retail and technology. It has a pan-India presence.

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