Intermediaries rejoice after key appeal win by Myspace

By Daksh Kumar, LexOrbis
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Freedom of speech and expression over the internet influence the entire online community, professionally and personally, in varying degrees. In India, the statutory framework on these issues has been inept and judicial precedent to shed light on the complex legal and technical issues involved has been lacking.

Daksh_Kumar_-_LexOrbis_2017
Daksh Kumar
Managing associate
LexOrbis

The debate of online free speech and expression versus private censorship has been raging for nearly a decade in India and during its course the Copyright Act, 1957 (CA), the Information Technology Act, 2000 (IT Act), and the Information Technology (Intermediaries Guidelines) Rules, 2011, have been amended. The amendments have ensured specific clarification of terms and concepts such as “intermediary”, “primary and secondary copyright infringement”, “actual knowledge”, “due diligence”, “notice and take down” and “safe harbour”, to achieve a balance between safeguarding of rights and interests and effective law enforcement.

The debate dates back to a dispute in 2008 between Myspace – an entertainment and social networking website that allows users to upload and download music, videos and images – and Super Cassettes Industries (SCIL), a popular Indian music production house. SCIL filed a civil suit against Myspace seeking a permanent injunction and damages, claiming copyright infringement as Myspace was allegedly hosting SCIL’s content without obtaining a valid licence.

A single judge of Delhi High Court granted an interim injunction in favour of SCIL based on the following considerations:

(a) Prima facie case made out by SCIL as Myspace infringed SCIL’s copyright by seeking to profit from providing web space to SCIL content;

(b) Balance of convenience in favour of SCIL as Myspace would lose a few users at most whereas the allegedly infringed works are the fulcrum of SCIL’s business;

(c) Irreparable damage to SCIL if Myspace was allowed to continue making SCIL’s work public through its website.

The order of the single judge focused on preventing copyright infringement and overlooked vital aspects such as lack of knowledge by Myspace in respect of each instance of infringement; deletion of allegedly infringing material upon mere complaint by SCIL; and failure of SCIL to provide a list of its works as requested by Myspace.

Subsequent to this order, the CA and the IT Act were amended and were harmoniously interpreted in the consequent division bench ruling by Delhi High Court in this matter, in December 2016. The division bench took into consideration the WIPO Copyright Treaty, the WIPO Performances and Phonograms Treaty, the European Copyright Directive and the Digital Millennium Copyright Act of the US, as well as jurisprudence and statutes on online copyright infringement and “safe harbour” as a defence.

The court noted the distinction between general knowledge and “actual knowledge” under provisions of the CA (as amended). Further, the nature and scope of safe harbour provisions for intermediaries in India is clarified in light of the IT Act (as amended) along with the intermediary guidelines. While underlining the importance of “exercise of due diligence” by the intermediary, the court also explained the scope and limitations of technological measures and filtration tools such as DtecNet or CopySense to detect and limit copyright infringement.

Thus, the court held that corrective measures by an intermediary, i.e. a notice and take down procedure, is the right balance for allowing freedom of speech and expression and at the same time curbing or policing the unauthorized use of copyright material. Further, harmonious construction of sections 79 and 81 of the IT Act along with the provisions of the CA dealing with infringement and “fair use” is imperative. The earlier judgment was set aside and SCIL was directed to provide a list of URLs of specific works on the Myspace website. Myspace was directed to remove infringing content within 36 hours of receipt of notice by SCIL.

This judgment is a milestone in relation to online copyright infringement and liability of intermediaries in India. It also counters the recent trend of quia timet injunctions with John Doe orders. The court duly considered recent decisions in various jurisdictions, such as in the Viacom, Veoh, Napster and Grokster cases (US), the iiNet case (Australia) and EMI v UPC (Ireland). It also upheld the spirit and letter of international treaties.

This judgment is a primer on online copyright infringement as it deals with technical and legal issues inextricably linked with the internet. It is clearly a cause for respite and elation for all intermediaries in India.

Daksh Kumar is a managing associate at LexOrbis.

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