You Tube and § 79 of the IT Act – A Second Look

I was not really expecting any comments on the short note I posted last week on § 79 of the IT Act and Pawan Duggal’s comment regarding YouTube’s liability. However, I did get an interesting observation by email from Mathew Chacko, an intellectual property lawyer in Delhi. I quote from his email:

“You Tube’s liabilities are probably going to originate in copyright law and a theory of network service provider liability under copyright law will probably be based on theories of contributory, vicarious and inducement based liabilities. § 79 are restricted to offences create [sic.] by the IT Act and may not strictly apply.”

Later, I also got a comment from Shamnad stating substantially the same thing – that the IT Act probably does not cover copyright infringement on the Internet. (See comment to the post titled § 79 of the IT Act)

First, I must admit that when I posted the comment, I was thinking only about Mr. Pawan Duggal’s comment vis-à-vis liability under § 79 of the IT Act and not under the Copyright law. Matthew email was therefore certainly appropriate in that it points out that the analysis of You Tube’s liability was incomplete.

It is indeed true that the IT Act does not expressly deal with issues of intellectual property, particularly intellectual property infringement on the Internet. Interestingly, Pawan Duggal’s article states that the “IT Act, 2000… leaves… contentious yet very important issues concerning Copyright, Trademark and Patent… untouched in the said law thereby leaving many loopholes in the said law.” However, he seems to find it OK to make You Tube liable under § 79. At least one author works on the premise that § 79 would cover ISP liability for copyright infringement on the Internet (but also states that the wording of § 79 is ambiguous as to the applicable standard to determine liability.) See article by VK Unni here.

In my view, given the ambiguities in the language of the Act, a pretty good argument could be made for excluding ISP liability in cases of copyright infringement on the Internet under § 79 read with § 43(b) and § 81 of the IT Act.

§ 43(b) states:

43. Penalty for damage to computer, computer system, etc. – If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network, –

(b) downloads, copies or extracts any data, computer data base, or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
… shall be liable…

For the purpose of this section, the relevant definitions as contained in § 2 of the Act are “Data”, “computer network”, “computer system”, “computer”, and “information.” The definitions are worded so broadly that it would, in my opinion, be possible to include a wide variety of activities within § 43(b).

If such interpretation is not entertained by the court, as pointed out by Shamand, § 51(a)(ii) of the Copyright Act might kick in to make ISPs liable. The exclusion from liability under § 51(a)(ii) is clearly much narrower than that under § 79 of the IT Act. If § 51 is found to be applicable to ISPs, the ISP would have to show not only that she was not aware of the infringement but also that she had no reasonable ground for believing that such communication to the public would be an infringement of copyright.

In case of § 79, the ISP has to show either that the contravention was committed without her knowledge or that she had exercised all due diligence to prevent the commission of the offence. Not withstanding the fact the “due diligence” is an ambiguous term, the fact that the ISP has the option of merely proving that she had no knowledge of the contravention, makes the standard under § 79 one that is more favorable to ISPs than the standard under § 51(a)(ii) of the Copyright Act.

If § 43 is found to be applicable in case of copyright infringement on the Internet, the applicability of § 51(a)(ii) of the Copyright Act might be trumped by § 81 of the IT Act. § 81 states that “The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.”

This section when read with the provisions of § 43(b) would suggest that even if a third party were to “copy… data… or information from … computer network including information or data held or stored in any removable storage medium,” and thereafter, if this third party makes this data or information available via an ISP, the ISP will be shielded from liability under § 79 (notwithstanding the provisions of the Copyright Act) provided she can prove that the offence or contravention was committed without his knowledge or that she exercised due diligence to prevent the commission of the same.

Admittedly, one would have imaginatively stretch the language of the sections of the IT Act (discussed above) in order to include copyright violations on the Internet within the scope of the Act. I welcome comments on the above analysis.