NAVIGATING THE LEGAL LABYRINTH: INTERNET SERVICE PROVIDERS’ LIABILITY ON COPYRIGHT INFRINGEMENT CASES BY - SRI PRAGNYA A, OISHANI DEB & ARYAN ROY
1. ABSTRACT
The rapid evolution of cyberspace has sparked a profound transformation
in intellectual property law, especially concerning copyright protection,
ushering in intricate legal challenges. This paper delves into the intricate
nuances of copyright within the digital domain, addressing pivotal legal
considerations and emerging trends that shape the landscape of intellectual
property rights. Firstly, the abstract delves into the prevalence of copyright
infringement in cyberspace, highlighting the ease with which copyrighted
material can be shared, copied, and distributed online. This ease of access has
led to a proliferation of copyright violations across various digital
platforms, including social media, file-sharing websites, and streaming
services.
At the core of copyright law lies the concept of granting creators
exclusive rights over their works, spanning reproduction, distribution, and
public display. However, the paradigm shift in cyberspace enables the
effortless replication and global accessibility of copyrighted works, posing
challenges to traditional frameworks. The complexities of jurisdiction demand
innovative legal strategies and cross-border collaboration to effectively
protect intellectual property rights.
This dynamic environment presents multifaceted challenges, ranging from
piracy to digital rights management. Emerging technologies such as blockchain,
artificial intelligence (AI), and digital rights management (DRM) offer both
opportunities and complexities in safeguarding intellectual property.
The paper navigates these copyright complexities, offering insights into
legal frameworks, technological advancements, and collaborative efforts. Key
considerations encompass the Digital Millennium Copyright Act (DMCA),
international treaties, fair use doctrines, and technological protection
measures (TPMs). Furthermore, it discusses blockchain, AI, and evolving DRM as
promising avenues for enhancing copyright enforcement in the digital age.
Key words: Intermediary, Internet Service Providers, Copyright Infringement
2. INTRODUCTION
2.1 Internet intermediary
According
to the Organization for Economic Co-operation and Development (OECD),
"internet intermediaries facilitate transactions between third parties on
the internet, bringing together or enabling access to content, products, and
services originated by third parties, while also providing internet-based
services to third parties."[2] The Indian Information Technology Act
defines an internet intermediary in section 2(1)(w) as follows:
"Intermediary, in relation to any specific electronic records, refers to
any person who, on behalf of another person, receives, stores, or transmits
that record, or provides any service concerning that record. This includes
telecom service providers, network service providers, internet service
providers, web-hosting service providers, search engines, online payment sites,
online auction sites, online marketplaces, and cyber cafes."
2.2 Intermediary
Liability
The liablity
of an intermediary arises when governments or private individuals seek to sue
intermediaries operating on the internet such as, ISPs and websites, solding
them responsible for unlawful/harmful content generated by the users on such
platforms[3] This liability can manifest in a number
situations, encompassing copyright infringements, digital piracy, trademark
disputes, network management, spamming and phishing, cybercrime, defamation,
hate speech, child pornography, dissemination of illegal content, hosting
offensive but legal material, censorship, compliance with broadcasting and
telecommunications laws and regulations, and safeguarding privacy.
The 2011 Joint Declaration stipulates
that intermediaries should bear liability for third-party content only if
proven that the intermediaries are directly involved in such content or have
not complied an order issued by an impartial body (court) instructing them to
remove such unlawful/harmful content from their platform[4].
Given the crucial role intermediaries
play in upholding and preserving the right to freedom of expression online, it
is essential to shield them from unwarranted interference, whether from state
or private entities, that may undermine this right. For instance, an
individual's capacity to exercise their right to freedom of expression online
hinges on the passive stance of online intermediaries. Therefore, any legal
framework compelling intermediaries to impose excessive constraints or engage
in self-censorship regarding content transmitted through their services will
ultimately jeopardize the right to freedom of expression online. The United
Nations Special Rapporteur (UNSR) has highlighted intermediaries' potential to
act as a vital safeguard against governmental and private overreach, given
their unique position to resist shutdowns, for instance[5]. However, this potential can only be
fully realized if intermediaries can act without the fear of facing sanctions
or penalties.
Social networks provide platforms for
users to publish self-generated content, while search engines index and grant
access to user-generated content. E-commerce sites facilitate online
transactions for buying and selling products and services. Initially, social
networks and other internet platforms were seen as advocates for free speech,
enabling users to express their opinions and comments on social and political
matters without editorial oversight. These platforms were expected to
self-regulate to prevent the dissemination of unlawful content. Consequently,
intermediaries were granted 'safe harbor' protections against third-party
content.[6]
Put differently, they were initially
absolved of liability for user-generated content. Nevertheless, as time has
progressed, these intermediaries have expanded their reach, amassing millions
of users globally. Self-regulation has become nearly unmanageable given the
vast volume of user-generated data processed daily by these platforms. The
proliferation of misinformation and illicit content via online platforms has
sparked global concern. Moreover, instances of intellectual property rights
violations stemming from content hosted by these intermediaries have surfaced.
As a result, there is a growing call to impose heightened liability on internet
intermediaries for infringements of intellectual property rights[7].
When it comes to content disseminated on
the internet, the liability of online intermediaries, including various service
providers, extends to the content transmitted, copied, or possessed by them,
potentially violating individual rights stemming from contractual agreements or
criminal offenses such as defamation, copyright infringement, false
advertising, fraudulent misrepresentation, among others. The level of knowledge
and control over the distributed information is a crucial factor in determining
the liability of internet intermediaries. Defamation in cyberspace has become a
significant concern with the exponential growth and widespread accessibility of
the internet, transforming it into a mass media and communication tool reaching
every corner of the world.
In cases where defamatory statements are
posted by companies, bloggers, or others on websites, victims have the right to
pursue legal action against the accused under relevant provisions of the Indian
Penal Code. The Information Technology Act, 2000, establishes a 'notice and
takedown' regime, wherein the host is obligated to promptly comply with
takedown notices by removing the illegal content or disabling access to it[8].
In a landmark decision, the Supreme
Court addressed intermediary liability in the case of Shreya Singhal v. Union
of India[9], Section 66A of the Information
Technology Act, 2000 was invalidated, citing its infringement upon the right to
freedom of speech and expression guaranteed by the Constitution, as well as its
reliance on vague standards for blocking and removing online content, which
were deemed unconstitutional. Moreover, the Court ruled that under section 79
of the Information Technology Act, the blocking of website content must only be
mandated by a reasoned order from a judicial, administrative, or governmental
body, ensuring transparency, with all blocking orders made public[10].
These liberal policies are expected to
provide e-commerce companies and spurious sellers with greater leeway to
continue selling substandard or low-quality goods unless interim orders from
the court are obtained by customers or others, potentially leading to numerous
hardships and grievances. Achieving a perfect balance between granting rights
and preventing their misuse is crucial in addressing these challenges.
3. LITREATURE
REVIEW
The rapid evolution of cyberspace has catalyzed a profound transformation
in the realm of intellectual property law, particularly concerning copyright
protection. As digital content traverses the digital landscape at lightning
speed, the transient nature of this content brings forth a plethora of
intricate legal challenges. This article delves deep into the intricate nuances
of copyright in the digital realm, shedding light on pivotal legal
considerations and emerging trends that shape the contemporary landscape of
intellectual property rights[11].
At the core of copyright law lies the concept of granting creators
exclusive rights over their original works, spanning a wide array of creative
endeavors ranging from literary masterpieces to artistic expressions and
musical compositions[12]. These rights encompass pivotal aspects such as reproduction,
distribution, adaptation, and public display, forming the cornerstone of
safeguarding creative endeavors from unauthorized exploitation.
However, the advent of cyberspace has ushered in a paradigm shift, where
copyrighted works can be effortlessly replicated, disseminated, and accessed on
a global scale within mere seconds. This unprecedented ease of digital
reproduction poses a myriad of unique challenges that challenge the traditional
frameworks of copyright protection. As digital content traverses borders
seamlessly, the jurisdictional complexities associated with enforcing copyright
laws become increasingly intricate, necessitating innovative legal solutions
and cross-border collaboration.[13]
In this dynamic digital landscape, the protection and enforcement of
copyright face multifaceted challenges, ranging from combating online piracy
and unauthorized distribution to addressing issues of fair use and digital
rights management. Furthermore, the proliferation of emerging technologies such
as blockchain, artificial intelligence, and decentralized platforms introduces
new dimensions to the copyright discourse, offering both opportunities and
complexities in the quest to safeguard intellectual property rights.
Against this backdrop, this article endeavors to navigate the
complexities of copyright in cyberspace, offering insights into the evolving
legal frameworks, technological advancements, and collaborative efforts that
shape the contemporary landscape of intellectual property rights.[14] By exploring key legal considerations and emerging trends, this article
aims to provide a comprehensive understanding of the dynamic interplay between
copyright law and the ever-evolving digital environment.
3.1 CHALLENGES POSED BY TRANSIENT NATURE
3.1.1 Digital Reproduction:
The digital landscape has ushered in an era of unparalleled ease in
copying and distributing copyrighted works, leading to rampant instances of
infringement. Technologies such as peer-to-peer (P2P) file sharing and
streaming platforms have played a pivotal role in facilitating unauthorized
reproduction on an unprecedented scale. This pervasive ease of digital
reproduction poses a significant challenge to traditional copyright frameworks,
necessitating robust measures to combat illicit distribution and protect
creators' rights.[15]
3.1.2 Global Accessibility:
Cyberspace knows no boundaries, transcending geographical constraints and
offering universal access to copyrighted works from any corner of the globe.
While this global accessibility presents immense opportunities for content
creators to reach wider audiences, it also engenders complex jurisdictional
challenges and enforcement dilemmas for copyright holders.[16] The borderless nature of the digital realm complicates efforts to
monitor and regulate the dissemination of copyrighted material, requiring
coordinated international cooperation and harmonization of legal frameworks to
effectively address cross-border infringement.
3.1.3 Ephemeral Nature:
In stark contrast to physical copies, digital content exhibits an
ephemeral nature, constantly in flux and susceptible to rapid changes or
disappearance. This transient characteristic of digital works poses a
formidable challenge in tracking and monitoring unauthorized use or
infringement. Content can be altered, deleted, or redistributed at a moment's
notice, making it arduous for copyright holders to maintain control and enforce
their rights effectively. The ephemeral nature of digital content underscores
the need for agile and adaptive enforcement mechanisms that can swiftly respond
to evolving threats and preserve the integrity of copyrighted works in the
digital domain.[17]
Addressing these challenges requires a multifaceted approach that
combines legal frameworks, technological solutions, and international
cooperation. Effective digital rights management (DRM) tools and technologies
are crucial for protecting digital content from unauthorized copying and
distribution. Additionally, international treaties and agreements play a
pivotal role in harmonizing copyright laws and facilitating cross-border
enforcement efforts.
In conclusion, the transient nature of digital content poses substantial
challenges for copyright holders and enforcement agencies alike.[18] However, with strategic interventions, collaborative efforts, and
advancements in technology, it is possible to mitigate these challenges and
uphold the integrity of intellectual property rights in the digital age.
3.2 LEGAL CONSIDERATIONS IN COPYRIGHT ENFORCEMENT
1. Digital Millennium Copyright Act (DMCA): The DMCA, enacted in
the United States, serves as a pivotal legal framework for addressing copyright
infringement in the digital realm.[19] It incorporates provisions for notice and takedown procedures, offering
copyright holders an efficient mechanism to request the removal of infringing
content from online platforms. The DMCA's safe harbor provisions also provide
protection to internet service providers (ISPs) from liability for the actions
of their users, provided they comply with specified requirements.
2. International Treaties and Agreements: Various international
treaties and agreements play a crucial role in establishing harmonized
standards for copyright protection in cyberspace. For instance, the Berne
Convention and WIPO Copyright Treaty set forth guidelines and principles that
facilitate cross-border cooperation among countries in combating online
copyright infringement.[20] These treaties promote the exchange of information, enforcement of
rights, and mutual assistance in legal proceedings related to copyright
enforcement.[21]
3. Fair Use and Fair Dealing: The concepts of fair use (in the
United States) and fair dealing (in other jurisdictions) provide flexibility in
copyright law by allowing limited use of copyrighted material for purposes such
as criticism, commentary, news reporting, and education. However, determining
fair use in digital contexts can be challenging due to the transformative nature
of online content and the potential for widespread dissemination[22]. Courts often evaluate factors such as the purpose and character of the
use, the nature of the copyrighted work, the amount and substantiality of the
portion used, and the effect on the market value of the work when assessing
fair use claims.
4. Technological Protection Measures
(TPMs): TPMs, such as encryption and access
controls, are employed to safeguard digital content from unauthorized access,
reproduction, and distribution. These measures are an integral part of
copyright enforcement strategies, ensuring that rights holders can control the
use and dissemination of their works in digital formats. However, TPMs also
raise concerns about potential limitations on user rights, interoperability
issues, and the balance between copyright protection and technological
innovation.
In conclusion, navigating the legal landscape of copyright enforcement in
the digital age requires a comprehensive understanding of these key legal
considerations. The DMCA, international treaties, fair use/fair dealing
doctrines, and technological protection measures play pivotal roles in shaping
copyright enforcement strategies and ensuring the protection of intellectual
property rights in cyberspace. Collaboration among stakeholders, ongoing legal
developments, and technological advancements are essential for addressing the
evolving challenges and opportunities in copyright enforcement in the digital
era.
3.3 EMERGING TRENDS IN COPYRIGHT ENFORCEMENT
1. Blockchain Technology: Blockchain
technology presents promising solutions for copyright management in the digital
realm. By leveraging blockchain's immutable and transparent ledger system,
creators and rights holders can establish verifiable ownership of their intellectual
property. Smart contracts embedded in blockchain networks enable automated
licensing agreements, tracking of usage rights, and ensuring fair compensation
for creators. Decentralized platforms built on blockchain technology offer
secure and efficient mechanisms for managing and monetizing digital content
while reducing intermediaries and transaction costs. These advancements in
blockchain-based copyright management hold potential for fostering a more
transparent, efficient, and equitable digital ecosystem for creators and
consumers alike.
2. Artificial Intelligence (AI) and Copyright Enforcement: AI
algorithms are revolutionizing copyright enforcement efforts by enhancing the
detection and mitigation of online copyright infringement[23]. Machine learning algorithms can analyze vast amounts of digital data,
including text, images, and audiovisual content, to identify instances of
unauthorized use of copyrighted material[24]. AI-powered content recognition systems, such as content ID algorithms
deployed by online platforms, play a crucial role in proactively detecting and
addressing copyright infringement[25]. These technologies enable rights holders to enforce their intellectual
property rights more effectively in the digital landscape while streamlining
enforcement processes and reducing manual intervention [26].
3. Evolving Digital Rights Management (DRM): Digital Rights
Management (DRM) tools and technologies continue to evolve to protect digital
content from unauthorized copying, distribution, and manipulation[27]. Advanced DRM systems employ encryption, watermarking, and access
control mechanisms to safeguard intellectual property. However, DRM solutions
must strike a balance between robust protection and preserving user rights,
privacy, and accessibility. Efforts are underway to develop interoperable DRM
standards, enhance user-friendly DRM interfaces, and address concerns about
DRM's impact on fair use/fair dealing rights. Additionally, DRM systems are
exploring innovative approaches, such as dynamic watermarking and
blockchain-based DRM solutions, to enhance security and accountability while
addressing emerging challenges in digital content protection[28].
In conclusion, emerging trends in copyright enforcement, including
blockchain technology, AI-driven solutions, and evolving DRM strategies, offer
promising avenues for enhancing intellectual property protection in the digital
age. Collaborative efforts among stakeholders, ongoing research and
development, and regulatory considerations are essential for harnessing the
potential of these technologies while addressing legal, ethical, and technical
challenges in copyright enforcement.\
3.4 LIABILITY
OF INTERMEDIARIES IN INDIA
In India, Section 79 of the Information
Technology Act, 2000 meticulously addresses the intricate matter of
intermediary liability. According to this section, an intermediary, unless
stated otherwise in Sections 79(2) and (3) of the IT Act, 2000[29], is absolved from liability pertaining
to any information, data, or communication link provided or hosted by them on
behalf of a third party. The term 'third party information' is elucidated in
Explanation 2 to Section 79 of the IT Act, 2000, encompassing any data managed
by an intermediary in their capacity as an intermediary. For instance, consider
a social media platform functioning as an intermediary, facilitating users to
share third-party information through user-generated content like images,
comments, or posts. As per the stipulations of Section 79(2) of the IT Act,
2000, an intermediary holds no liability if its sole function revolves around
granting access to a communication system through which third-party information
is disseminated, transmitted, or temporarily stored.
3.4.1
Intermediary Liability Preceding the I.T. (Amendment) Act, 2008:
Prior to the enactment of the I.T.
(Amendment) Act, 2008, the language of Section 79 pertaining to intermediary
liability was notably ambiguous. The previous rendition of Section 79 outlined
that an Internet Service Provider (ISP) bore no liability under the Act for any
third-party information or data provided by them, provided they could
demonstrate that any offense or violation occurred without their knowledge.
Alternatively, if the ISP could prove that they had exercised due diligence to
prevent such offenses or violations, they would also be exempt from liability
under the said section. Earlier, Section 79 of the IT Act of 2000 was limited
to network service providers who were considered intermediaries.
Previously, an intermediary was narrowly
defined as "with respect to an electronic message, any person who on
behalf of another person receives, stores, or transmits that message or
provides any service." This definition was notably limited compared to the
contemporary definition, which expansively encompasses various categories such
as telecom service providers, network service providers, and cyber cafes within
its scope. This broader definition ensures a more comprehensive coverage of
entities involved in facilitating electronic communications and services,
reflecting the evolving landscape of technology and communication.
The safe harbor protection afforded to
intermediaries is a significant provision, ensuring their immunity from
liability regardless of any conflict with other laws applicable in India.
Section 79 of the IT Act, 2000, initiates with the unequivocal phrase
"notwithstanding anything contained in any law for the time being in
force," establishing a paramountcy of this provision over any conflicting
statutes. This statutory framework shields intermediaries from legal
repercussions stemming from third-party content hosted or transmitted through
their platforms, fostering an environment conducive to innovation and free
expression online. Such legal insulation empowers intermediaries to operate
without fear of facing legal liabilities arising from the actions of their
users, thereby promoting the growth of digital services and facilitating the
dissemination of information in the digital age.
3.4.2
"Exemption of Network Service Providers from Liability in Specific
Circumstances"
Section 79 of the Information Technology
(IT) Act serves as a shield for Internet Service Providers (ISPs) from legal
liability regarding third-party information or data hosted on their platforms.
This means that if an ISP is unaware of any unlawful activities or content on
their network and has taken reasonable measures to prevent such occurrences,
they cannot be held accountable. However, if a case does not fit within these
exemptions, ISPs can be held liable for infringements such as copyright
violations, regardless of whether the actions were committed by their
subscribers.
The language of Section 79 is broad and
somewhat vague, leaving room for interpretation. This ambiguity raises concerns
about potential misuse of the exemptions by authorities, potentially leading to
harassment of companies. Despite the intention to protect ISPs from undue
responsibility for user-generated content, the loose wording of the law can
create challenges in its application, leaving room for misuse or
misinterpretation[30].
3.4.3 The Copyright Act and
intermediary responsibilities
The Copyright Act, updated in 2012, includes provisions regarding
intermediary liability within its fair dealing defense framework. In these
scenarios, intermediaries are shielded from liability provided that the
third-party rights holder hasn't explicitly prohibited the intermediary from
utilizing electronic links, access, or integration, or the intermediary is not
aware or lacks reasonable grounds to believe that the stored content infringes
upon copyright[31]. If a written complaint is filed regarding potential infringement of
third-party rights, the intermediary must refrain from storing such content for
21 days or until a court order is received regarding the complaint. If no court
order is received within 21 days, the intermediary may proceed to facilitate
access, electronic links, or integration of such content.
In the case of MySpace Inc. v. Super Cassettes[32], MySpace sought to distinguish between the application of the Copyright
Act and the Information Technology (I.T.) Act. The Court clarified that the
Copyright Act is primarily relevant to temporary storage, while the I.T. Act
pertains to intermediaries engaged in hosting content. The ruling emphasized a
cohesive interpretation of both Acts. Additionally, the Court examined the I.T.
Act's relevance in cases of alleged copyright infringement. Regarding Section
81, the Court asserted that it does not negate the defense of safe harbor for
intermediaries in copyright-related matters. Thus, it is determined that
Sections 79 and 81 of the I.T. Act and Section 51(a)(ii) of the Copyright Act
must be interpreted in conjunction.
According to some scholars, Section 52(1)(b) and (c) specifically pertain
to intermediaries categorized as mere conduits, often referred to as passive
intermediaries, while Section 79 encompasses a broader range of intermediaries[33]. Additionally, the Copyright safe harbor encompasses search engines
because of their role in providing hyperlinks and potential incidental storage.
This interpretation offers a more focused perspective compared to the wider
safe harbor framework under Section 79 [Section 2(w)], which applies to various
types of intermediaries as long as they refrain from content modification or
selection[34].
In the case of Olive e-business Pvt Ltd vs Kirti Dhanawat[35], the Delhi High Court issued a directive to Google India to freeze the
email accounts of defendants accused of stealing data from their former
employer, which contained infringing material. This ruling illustrates that
courts have the authority to instruct intermediaries to suspend or freeze email
accounts if plaintiffs seek injunctions restraining defendants from utilizing
those accounts. Nonetheless, the intermediary would not bear liability since it
functions solely as a carrier or service provider and lacks awareness of the
content transmitted through its service, nor does it participate in the
selection of email senders or recipients.
In the case of Vodafone India Limited v M/s R.K. Productions (P)[36] Ltd, a civil suit for a permanent injunction was initiated to prevent
the infringement of copyright in the movie 'Dhammu', and to restrain
defendants, including internet service providers and unknown individuals
through John Doe orders. It was argued that these internet service providers
unjustly profit from contributing to copyright infringement. Consequently, the
court directed that upon receiving a URL from the plaintiff, the defendants
must block any URLs hosting pirated movie links. The court held that Section 79
of the IT Act, 2000, does not extend to copyright infringement cases, as
expressly excluded by Section 81 of the same act. Citing the Super Cassette
Industries case, the court determined that even in cases where future
infringements are anticipated, an action for a permanent injunction remains
viable.
3.5 LIABILITY OF INTERNET SERVICE PROVIDERS UNDER THE DIGITAL
MILLENNIUM COPYRIGHT ACT
The American Copyright Act states that a copyright holder has “exclusive
rights over his intellectual property”. As known to all which are available to
all copyright holders are; the rights of reproduction, distribution, make
derivative works. Perform and display such works and violation of such rights
amounts to trespass into the ‘exclusive domain’[37]of the owners. The principle of strict liability was incorporated in the
US Copyright Act and thus does not require any knowledge in the part of the
infringer that he/she is infringing the copyright[38].
The rampant illegal activities on the internet, led to various cases
before the US Courts led to increased lobbying on the by various ISP’s to limit
their liability while amending the present copyright laws[39]. Courts in US have used a two pointer approach: firstly, a valid
copyright exists and then it is examined to check if any of its elements are
being copied or not[40]. Although there is a debate as to the scope of transitory and what is a
copy. It can be stated that a copy broadly refers to a permanent or stable
reproduction as opposed to a transitory communication. Hence, temporary copies
are excluded within the meaning of since they are transitory and temporary and
hence cannot be called as fixed[41]. Hence there arises a question of the liability of the ISPs. Since ISPs
also known as Intermediaries are not liable for millions of temporary copies
that are made on their computers and does the question arise as to the where
does the liability of the ISPs arise.
The Digital Millennium Copyright Act (DMCA)defines service provider in 2
ways, each catering to different subsections. A service provider is defined as
‘an entity offering transmission, routing or providing of connections of
digital online communications, between or among points specified by a user, of
the material of the user’s choice, without modification to the content of
material as sent or received’[42]. The second part of the section defines a service provider as ‘a
provider of online services or network access, or the operator of facilities
therefore’[43]. The intention behind such a broad definition is to include universities
and other institutions which provide internet to students and researchers. It
has also given a broader ambit in order to include the current ISPs as well as
providers of new services in the future[44].
Section 512(b) of the DMCA limits the liability of the ISPs for caching
as Section 512( c) protects storage of material on the provider’s mechanism or
network at the direction of the user and finally, ISPs who provide information
location tools such as links or directories which are also protected subject to
certain circumstances[45]
3.5.1 Intermediary liablity pre- DMCA
The United States prior to the passing of the DMCA relied on the
Copyright and the principle of strict liability and other courts held that the
ISPs were not liable at all. The congress in 1996, passed the Communications
Decency Act providing Immunity to the ISPs. Section 230 of the Act states that
‘ no provider or user of an interactive computer service shall be treated as
the publisher by another information content provider’, thus providing immunity
to internet service providers from being held liable under the state IP laws[46]. However in the case of Chicago Lawyers’ Committee for Civil
Rights under the Law Inc v Craiglist Inc,it was held bu the
court that Section 230(c)(1) of the act extends to hold ISs liable as the
publisher for content authored by third parties. It can be understood that
immunity granted to ISPs are not absolute and have certain limitations and
cannot escape liability in all circumstances[47].
One of the first cases where the liability of ISPs in cases of copyright
infringement was in Playboy Enterprises Inc v Frena. The Geroge
Frena operated a bulletin Board Service (BBS) for those people who purchased
certain products from the defendant and anyone who paid a fee could log on and
browse through different BBS directories to look at the pictures and could
download copies of the same. Among the several photographs, around 170 of the
photographs were copyrighted and belonged to the plaintiff. The court noted
that the intention of the BSS operator was irrelevant and applied the principle
of strict liability under the Copyright Act. The BSS operator was held liable
for the direct infringement due to the supply of the unauthorized copies of the
copyrighted work to the public by the defendant’s system. It was irrelevant
that the defendant did not make the infringing copied itself. Later the Court’s
ruling was highly debated and discredited[48].
A few years later, in the case of Religious Technology Center v
Netcom, the plaintiffs, Religious Technology Center (RTC) held
copyrights in the unpublished and published works of L Ron Hubbard, the founder
of the Church of Scientology who later became a staunch critic of the church,
On an online platform for criticisms and discussion of Scientology, Elrich
posted portions of the works of L Ron Hubbard. Elrich gained his access to the
Internet though BBS which was not directly linked to Internet, but was connected
through Netcom On-Line Communications Inc. After failing to convince Elrich to
stop his postings, RTC contacted BBS and Netcom. The owner of BBA demanded the
plaintiff to prove that they owned the copyrights of the works posted by Elrich
so that he would be kept off the BBS. The plaintiffs refused BBS owner’s
request as unreasonable. Netcom similarly refused plaintiffs’ request that
Elrich not be allowed to gain access to Internet through its system. Netcom on
the other hand contented that it would be impossible to prevent Elrich from
using the same to hundreds of BSS users. Consequently, plaintiffs sued BSS and
Netcom in their suit against Elrich for copyright infringement on the internet[49].
The court also noted that the notice of infringing activity of the
service provider would implicate him for contributory negligence as failure to
prevent an infringing copy from being distributed would constitute substantial
participation. Substantial participation is when the defendant has knowledge of
the activities of the primary infringers’ infringing activities and induces,
causes or materially contributed to the infringing conduct of the primary
infringer. The court rejected the argument of the defendant that an ISP is
similar to a common carrier and is therefore entitled to an exemption from
strict liability codified in Section III of the Copyright Act and stated that
carriers are not bound to carry all the traffic that passes through them. The
court did not impose the direct liability infringement on the ISP which would
result in liability for every single server transmitting information to every
single computer[50].
Three years after his case the DMCA was brought in. The Online Copyright
Infringement Liability Limitation Act was also enacted as a part of the DMCA,
1998. However the DMCA was an update to the Copyright Act 1976, which limited
the potential liability of the ISPs with regard to certain activities and
subject to their complying with certain conditions but did not exempt them from
liability. In addition to limiting the liability of ISPs, the DMCA also set
grounds where ISPs can be held liable[51].
3.5.3 Safe Harbour under the DMCA
The DMCA allows ISPs to avoid both copyright liability and the liability
to subscribers by adhering to certain guidelines set out in the statute also
known as ‘safe harbours’. through these safe harbour clauses, DMCA limits the
liability of ISPs to four categories: transitory digital network
communications, system caching, information residing on systems at the
direction of subscribers and information location tools. The DMCA abides by the
decision passed by the court in the Netcom case and gives express protection to
ISPs as long as the data is automatically transmitted through the server and
the ISP is not involved in altering the content, the ISP will not be liable for
mere transmission of infringing data through its server[52].
The ISPs have to follow a policy where it terminated access to its
subscribers who are repeat offenders. The ISPs also have to to put in place
technical measures to prevent infringements[53]. There are additional requirements mentioned in the provisions of the
act providing for additional requirements. The DMCA also has a system of
‘notice and take down’ under which, when an ISP receives a notification from a
copyright owner informing that there has been a breach of his copyright which
was committed through his system, the ISP is obliged to acknowledge such
complaint and take measures to restrict all access to such offending
information through its system.
If the ISP follows the statutory procedure, in such situations he is
protected by the law. If the ISP does not follow the statutory procedure and
take down the offensive content, he would be held liable by the copyright
owner. In cases where the ISP has acted upon the notice of such owner, can
report the content provided that there is a counter notice filed by the owner
stating that the posting of material does not infringe anyone’s copyright and
this can only be done by the copyright owner has not filed a suit for
infringement action against the user seeking a restraining order[54].
Initially USA wanted to adopt a procedure where ISPs were liable for the
content that was transmitted as transmission was regarded to be equivalent to
reproduction. In 1996, it was stated that the ISPs will not be liable for the
content which is unknowingly transmitted. However if they do not abide by the
take down notice, they would be held liable for the same.
In the case of Costar v Loopnet, Costar who is the
copyright owner of various photographs of commercial rela estate brought a suit
of direct infringement against the defendants, Loopnet Inc, an ISP for posting
its copyrighted photographs on Loopent’s website. If a subscriber includes a
photograph for a real estate listing, he mist fill out a form and agree to the
terms and conditions along with an additional express warranty that the
subscriber has ‘all necessary rights and authorizations’ from the copyright
owner of the photographs. The Court held that direct liability is attached only
when there some conduct that causes the infringement. The court took account of
the fact that the infringing activity was initiated by the subscriber and
therefore he is the direct infringer. The majority opinion was that the ISP
should not be held liable when tts facility is used to infringe a copyright but
it is engaged in no intervening conduct[55]. This decision also made it clear that
DMCA does not limit ISPs to the safe harbour provisions codified in the statute
rather, the ISPs may rely on either the DMCA safe harbour provisions, common
law defence s or both
Therefore, it is to be observed is that the US Congress has not granted
general immunity to the ISPs via DMCA, but has limited immunity to the ISPs
based on their knowledge and involvement of the infringing activity. This
practice has enabled USA to create an equitable balance among the interests of
all parties concerned. Thus, ISPs do not escape liability at all costs and
copyright holders also cannot harass ISPs where the sole responsibility for the
said infringing action is on the subscriber.
4.
ANALYSIS
From the above it can be inferred that
there has always been an interdependence that existed between Copyright laws
and Cyber laws. Due to the changing nature of the economy to a knowledge based
economy primarily dependent on the extensive use of technology and cyber
presence in the internet. Hence due to this exponential rise of activity in the
cyberspace, copyright eventually made its way into the cyberspace in the form
of digital art, movies being released on streaming platforms, computer
software. These have led to increased offences against owners of copyright such
as piracy, unauthorized use of copyrighted work by anonymous users.
Due to the rise of social media and
content creation, there was a rise of internet service providers which has been
defined in a broader way to not only include ‘internet service providers’ and
intermediaries or platforms that host content on their websites. There has been
a lot of ambiguity with regard to the liablity of internet service providers in
cases of copyright infringement where such an intermediary was included in such
infringements. In the United States where ‘anything and everything under the
sun can be protected’, there was a lot of ambiguity in determining the liablity
of intermediaries under the existing statutes.
Before passing the DMCA, the courts in the
US applied the principle of strict liablity and contributory infringement as
under the Copyright Act of US. Post various cases, policymakers felt the need
to draft a new law in order to accommodate the changing aspects of copyright in
the United States. With the advent of the DMCA, it brought together the ‘safe
harbour’ provisions which limited the liability of the intermediaries i.e an
intermediary will only be held liable if it does not consider the take down
notice sent by the copyright owner alleging that his/her copyright has been
infringed by a person via the internet service provider.
India also follows a similar approach to that
of the United States via section 79 of the Information Technology Act,2000 and
the Intermediary rules read along with the Copyright Act, 1952. The Delhi High
Court in various cases such the Mysapce case, Vodafone case and various other
cases has aided in clearing out in what situation can an intermediary or an
internet service provider can be held liable. Overall the protection or
immunity granted to intermediaries in India and the United States is similar in
nature and also have certain exceptions that an intermediary will not be
provided immunity under Section 512 of the DMCA and Section 79 of the IT Act if
it voluntarily causes, aids in committing activities which would lead to the
infringement of a copyright. Through this paper, the seamless transition of
copyright into cyberspace can be seen and the various legislations that have
been enacted to protect internet service providers from bearing the brunt of
direct infringement despite no fault of theirs.
5.
CONCLUSION
The landscape of copyright protection in cyberspace continues to evolve
rapidly, posing intricate legal challenges that demand innovative strategies
and collaborative efforts. The advent of digital technologies has fundamentally
transformed how copyrighted works are created, shared, and accessed,
necessitating a reevaluation of traditional legal frameworks and enforcement
mechanisms.
One of the primary legal considerations in addressing copyright issues in
cyberspace is the Digital Millennium Copyright Act (DMCA) in the United States,
which provides a framework for addressing copyright infringements and
protecting digital content. International treaties such as the Berne Convention
and the WIPO Copyright Treaty establish standards for intellectual property
rights protection across borders, promoting harmonization and cooperation among
nations in safeguarding creators' rights.
Technological protection measures (TPMs) are another essential aspect of
copyright enforcement in cyberspace, encompassing mechanisms such as
encryption, access controls, and digital rights management (DRM) systems. These
measures aim to prevent unauthorized access, copying, distribution, or
modification of copyrighted content, thereby safeguarding the interests of
content creators and rights holders.
In the context of India, copyright infringement in cyberspace presents a
complex set of challenges that require tailored solutions. As one of the
world's largest and fastest-growing digital markets, India grapples with the
widespread availability of copyrighted material online, compounded by factors
such as enforcement mechanisms, limited awareness of intellectual property
rights, and a diverse legal landscape.
To effectively address copyright infringement in cyberspace in India,
concerted efforts are needed from multiple stakeholders. This includes
policymakers, law enforcement agencies, technology companies, content creators,
and consumers. Legislative reforms that strengthen copyright laws, enhance
enforcement mechanisms, and streamline judicial processes are imperative. Additionally,
public awareness campaigns and educational initiatives can play a crucial role
in fostering a culture of respect for intellectual property rights among Indian
internet users.
In conclusion, while the transient nature of copyright in cyberspace
presents complex legal challenges, it also offers opportunities for leveraging
technology and collaboration to strengthen copyright protection, promote
creativity, and foster a vibrant digital ecosystem. By embracing technological
advancements responsibly, promoting legal literacy, and fostering cross-sector
partnerships, we can create a sustainable framework that upholds intellectual
property rights while promoting innovation, access to knowledge, and cultural
exchange in the digital age.
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