Copyright

Copyright Infringement and ISP Liability: A Critical Flaw in India’s IT Act


An earlier guest post opined that the recently amended Information Technology (IT) Act absolves internet service provider (ISP’s) and other intermediaries from IP infringement liability, provided they satisfy certain pre-requisites. Kaushik Krishnan, one of the brightest law students I have ever encountered thinks our guest got it wrong in one cardinal respect. I think Kaushik is spot on…but will wait to hear your thoughts on this.
The guest post states in pertinent part that:

“The most significant ramification of the amendment is that the immunity under the IT Act now extends not only to the liabilities arising under the IT Act, 2000 but to liabilities arising under any law in force in India. Therefore, an ISP can claim immunity from liability under Copyright Act, 1957 or criminal liability under the Indian Penal Code by virtue of Section 79 of the IT Act, 2000.”

Section 81 of the IT Act

Unfortunately, the statement above overlooks the existence of a newly added proviso to section 81. Section 81 now reads as:

“The provisions of this Act [IT Act] shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any rights conferred under the Copyright Act, 1957 or the Patents Act, 1970.”

In other words, the IT Act cannot absolve an intermediary of liability, if that intermediary is otherwise found liable under the Indian Copyright Act. Secondary liability is mainly found in sections 51 (a) (ii) and 63 of the Copyright Act. If perchance an intermediary is found liable under one of these provisions or under any other provision of the Indian Copyright Act, it cannot take recourse to section 79 and nullify the “right” of a person to sue for such infringement.

Interestingly the proviso to section 81 of the IT Act only mentions “copyright” and “patent” liability. It does not include liability for other kinds of IP infringement such as trademarks, geographical indications, plant varieties etc. Therefore, in so far as these infringements are concerned, an intermediary can claim an exemption under section 79. Why this difference? Did this have anything to do with lobbying by special interests? Or was this a genuine mistake?

History of Section 79?

Rumour mills have it that the push to amend the IT Act came in the wake of the infamous Baazee case, when a “one name” Prabhakaran got after an unsuspecting Avnish Bajaj. Matters took a political turn when Condy Rice intervened. Given this political baggage, I’m surprised that eBay, Google and other intermediaries did not lobby hard enough to absolve IPR infringement as a whole.

Perhaps this error slipped in at the stage of the Joint Parliamentary Committee (JPC) which was tasked with reviewing the bill. Kaushik points out that this proviso is similarly worded to the one found in India’s competition Act and surmises that this might be yet another instance of a blind legal transplant. However, the Competition Act (section 3(5))makes an exception for all kinds of intellectual property (barring Plant Variety Protection) and not just for patents and copyrights.

It is pertinent to note that section 79 is liberally worded and will even exempt any ISP or intermediary from liability, provided such intermediary:

i) does not initiate the transmission
ii) select the receiver of the transmission; and
iii) select or modify the information contained in the transmission

Most online intermediaries and ISP’s (such as Rediff, eBay, Google, Youtube etc) ought to qualify under the liberal exemption above. Unfortunately, its a pity that they cannot do so, when it comes to copyright and patent infringements.

Intermediary Liability and the “Secret” Copyright Bill

Given that the current copyright amendment bill is underway, the ISP and intermediary lobbies ought to insist that “intermediary” exemption under the IT act extend to copyright infringements as well. Particularly when such exemptions are likely to favour public interest and the enormous number of users who avail of such intermediary services. Unfortunately, like most other IP initiatives, the copyright bill is also shrouded in considerable secrecy and none of us will know what the actual provisions look like until the bill is introduced in Parliament (scheduled for this Winter session).

The government insists that it made the bill public in 2006 and called for comments. While this is no doubt true, it is only partly so. Since the 2006 draft was put up, the government has made a number of changes, including the addition of altogether new provisions, such as an equitable remuneration in favour of artists. Little wonder then that lobby groups such as the Indian Broadcasting Federation are up in the arms decrying the secrecy and lack of consultation. Clearly there is, and will continue to be, a lot of politicking around the present Bill. Whether it will finally pass and if so, the form in which it will do so remains to be seen.

Perhaps we ought to kick-start a new form of wagering involving laws and policies: Is the current copyright bill likely to pass? Will it pass this winter session or be referred to a Joint Parliamentary Committee? And finally, what provisions are likely to make it? Any bets?

Shamnad Basheer

Shamnad Basheer

Prof (Dr) Shamnad Basheer founded SpicyIP in 2005. He is currently the Honorary Research Chair of IP Law at Nirma University and a visiting professor of law at the National Law School (NLS), Bangalore. He is also the Founder of IDIA, a project to train underprivileged students for admissions to the leading law schools. He served for two years as an expert on the IP global advisory council (GAC) of the World Economic Forum (WEF). In 2015, he received the Infosys Prize in Humanities in 2015 for his work on legal education and on democratising the discourse around intellectual property law and policy. The jury was headed by Nobel laureate, Prof Amartya Sen. Professional History: After graduating from the NLS, Bangalore Professor Basheer joinedAnand and Anand, one of India’s leading IP firms. He went on to head their telecommunication and technology practice and was rated by the IFLR as a leading technology lawyer. He left for the University of Oxford to pursue post-graduate studies, completing the BCL, MPhil and DPhil as a Wellcome Trust scholar. His first academic appointment was at the George Washington University Law School, where he served as the Frank H Marks Visiting Associate Professor of IP Law. He then relocated to India in 2008 to take up the MHRD Chaired Professorship in IP Law at WB NUJS, a leading Indian law school. Prof Basheer has published widely and his articles have won awards, including those instituted by ATRIP and the Stanford Technology Law Review. He is consulted widely by the government, industry, international organisations and civil society on a variety of IP issues. He also serves on several government committees.

26 comments.

  1. AvatarPranesh Prakash

    I don’t agree completely: Section 81 wouldn’t have a negative effect on ISPs and intermediaries vis-a-vis copyright infringement.

    S.63 of the Copyright Act requires “knowing” abetment of copyright infrigement, and s.52(a)(ii) requires the intermediary to be “aware” and have “reasonable ground for believing” that copyright infringement is being carried out.

    The exemption under s.79 of the IT Act would not apply in any case (thanks to s.79(3)) if the intermediary has “conspired or aided or induced or authorised” the commission of an unlawful act, or if despite “receiving actual knowledge” that its resources are being used to commit unlawful acts, the intermediary doesn’t take down the material.

    Thus, I don’t see liability under the Copyright Act (as it presently exists) as being in consonance with the exemption of the liability under the IT Act.

    Reply
  2. AvatarShamnad Basheer

    Pranesh,

    You have the answer right there in your own response. You rightly note that section 51(a)(ii) requires the intermediary to be “aware” and have “reasonable ground for believing”.

    Assume that the copyright owner could establish that there was some reasonable basis for knowing (and this is what was argued in the Baazee Avnish Bajaj case as well0. You’re not exempt under 51 (a) (ii). But you could be exempt under section 79, had it applied to copyright offences. For all that 79 requires is that intermediary:

    i) does not initiate the transmission
    ii) select the receiver of the transmission; and
    iii) select or modify the information contained in the transmission.

    Which is why if you want a more liberal exemption for ISP’s, you must amend the copyright act to have a proviso similar to the current section 79.

    Reply
  3. AvatarPranesh Prakash

    Shamnad,
    I’m arguing that having “reasonable ground for believing” would nullify s.79(1)’s applicability too because in addition to s.79(2) (the three conditions of being an intermediary), s.79(3), which lays out exceptions, also applies.

    I believe one with “reasonable ground for believing” an unlawful act was being committed, but who still did not act upon that belief might well be said to have “conspired or abetted or aided or induced. . . the commission of the unlawful act”.

    It would be interesting to compare being “aware” or having “reasonable ground for believing” of 52(a)(ii) Copyright Act (where it is phrased in the negative) with “actual knowledge” of 79(3)(b) of IT Act. It seems to me that the latter shifts the burden away from the alleged infringer by requiring “actual knowledge” to be shown to her before she is compelled by the statute to act upon that knowledge. Thus, only on that ground do I believe the Copyright Act is more onerous. And that ground might not arise at all if the ISP can be shown to have “conspired or abetted or aided or induced”.

    Further, the non-obstante proviso to s.81 of the IT Act does not wholesale negate s.79 when it comes to copyright matters. I think the wording “from exercising any right conferred” is very important. This applies to fair dealing rights (for I would argue that because of their wording they are liberty rights (in the Hohfeldian framework), and not merely statutory defences) along with the rights conferred through s.14. What other provisions of the Copyright Act confers rights is something that must be thought through.

    Interestingly, I had occasion to look at the Expert Committee report on the IT Act Amendment, and specifically the part on s.81. Nowhere is the rationale for introduction of an additional provision regarding copyrights and patents explained. Further, in that report, the change was substantially different:

    “s.81(2)
    Nothing that is permitted under the Copyright Act 1957 and the Patents Act 1970 as amended from time to time shall render any person liable for
    contravention of any of the provisions of this Act.”

    which finally became:
    “s.81 proviso
    Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patents Act, 1970″

    Reply
  4. AvatarAditya Gupta

    Dear Shamnad and Kaushik,

    I was the guest blogger who wrote the post on the issue. I am deeply grateful to you for bringing Section 81 to light and I admit that this section should have formed part of my post. However, I would like to put forth certain alternative arguments for establishing that Section 81 does not render Section 79 completely inapplicable.

    Argument 1: Section 81 only provides a jurisdictional basis for approaching the Courts in cases of copyright liability of intermediaries. Kindly note that the language used in Section 81 is “restrict any person from exercising his rights” rather than “restrict any right under the Copyright Act”. The distinction I am trying to make is between ‘the right to exercise a right (i.e the jurisdictional right’ and ‘substantive rights under the Copyright Act’.

    Argument 2: Argument 1 may be fortified on the basis of the legislative history of the amendment to Section 79. The amendment to Section 79 borrows heavily from the EU directive 2000/31 which is accepted to be its guiding principle. The EU directive itself was brought about and has been used for claiming immunity for intermediaries for copyright infringement and it appears the legislative intent in introducing the amendment to Section 79 was to ensure immunity from all liabilities including from those under the Copyright Act, 1957.

    I admit the argument may seem far fetched at first, but Courts have adopted similar interpretations in other cases in order to preserve the objective of the statute.

    Unfortunately, we do not have any comment from the Ministry behind the objective of introducing the proviso to Section 81. If the objective of the proviso was actually to nullify the effect of S. 79 with respect to copyright infringement, it is unlikely that an amendment will be introduced in the Copyright Act for absolving ISPs from liability.

    I would deeply appreciate any further comments which you may have on the issue.

    Regards,

    Aditya Gupta

    Reply
  5. AvatarShamnad Basheer

    Pranesh,

    I wouldn’t really equate “reasonable grounds for believing” with conspiracy and abetment, as these concepts are qualitatively different in tenor and ambit. But perhaps we’ll agree to disagree on that count.

    In any case, section 51 only applies in the context of “communication to the public”. You will appreciate that some intermediary activities implicate other exclusive rights under the copyright act (reproduction in the context of temporary/cached copies). In all such cases, section 79 may have come to the rescue, had it included “copyrights”. And to this extent, it is wider in scope than what sections 63 and 51 provide.

    Secondly, you state:

    “I think the wording “from exercising any right conferred” is very important. This applies to fair dealing rights (for I would argue that because of their wording they are liberty rights (in the Hohfeldian framework), and not merely statutory defences) along with the rights conferred through s.14.”

    I’m not sure I follow you. How exactly will section 81 save the exercise of a fair use provision? I’m hard pressed to think of any circumstance where a fair use provision could not have been resorted to, but for section 81.

    And lastly, i took a look at the initial IT Bill introduced in the Lok Sabha in December 2006. It has the same provision as what we find today. And even has a bizarre explanatory section that is not very clear.

    In any case, I’m curious to see the JPC you mention. Can you please email this to me? Thanks.

    Reply
  6. AvatarShamnad Basheer

    Dear Aditya,

    We’re all trying to make sense of a badly thought out and drafted provision. I can appreciate where you’re coming from. However, a court is likely to interpret this in accordance with its plain reading.

    To me, this provision seems to suggest that if X could have exercised his right (copyright) over an intermediary “Y”, then nothing in the IT Act shall detract from that position.

    You state that “The distinction I am trying to make is between ‘the right to exercise a right (i.e the jurisdictional right’ and ‘substantive rights under the Copyright Act’. “

    Assuming X had the substantive right under the copyright act, then how is the IT Act implicating the “jurisdictional right”. For if the IT Act does not implicate the jurisdictional right, there is no reason to have a savings provision in section 81?

    Reply
  7. AvatarJ. Sai Deepak

    Dear Sir,
    I may be conceptually flawed here and precisely for this reason i would like to think aloud. For a moment, let us assume that there was no proviso to section 81 which speaks of a copyright or patent owner’s ability to exercise his rights against the ISP. If such a proviso were to be absent, would it mean that the defence available to an ISP under Section 79 automatically estopps a right owner from suing the ISP? I wouldnt think so because the defence available under Section 79 is more in the nature of a burden that the ISP has to fulfill in order to be exempted from liability. This means that when the ISP is sued,he would have to prove that he has adhered to the stipulated standards of due-diligence. If so, the next question is what happens once he has fulfilled the requirements of Section 69? Does it mean he can continue to host the infringing material on his site? Again, i think it would be banal to state that this cannot happen because all that s.79 avails him is a safe harbour from liability but not a license to continue hosting the infringing material.So even in the absence of the proviso to s.81, a right owner could have exercised his rights against the ISP and seek removal of the material from his site.

    Also, if proviso to s.81 was meant to nullify the defense of the ISP under Section 79, it would have been appended as a proviso to s.79 and not s.81.

    Now, how does the proviso to s.81 alter the aforesaid logic? Does it work to the detriment of IP right owners other than copyright and patent owners is probably the question we are trying to answer.

    Bests,
    Sai.

    Reply
  8. AvatarShamnad Basheer

    Dear Sai,

    Thats a good point you raise. If section 81 were absent, then ISP’s could avail of section 79 as a defence, provided they complied with all the preconditions of section 79. And to this extent, the copyright owner wouldn’t be able to recover damages etc.

    Section 81 is not restrictive in its tone. Rather, its language seems to indicate that it would override section 79 as well, in so far as copyrights and patents are concerned. You’re right that it would have been far better to place this within 79 itself–but that is just bad legislative drafting–i’m not sure if you can use that to restrict an otherwise wide provision. In fact, I’ve been informed by Nikhil Narendran, an upcoming technology lawyer, that:

    “if you look at  section 79 in the 2006 bill it was worded 
     
    ” Notwithstanding anything contained in any other law”

    This was changed in 2008 Act as

    “Notwithstanding anything contained in any law”

    This seems to suggest that section 81 will override section 79 as well.

    Reply
  9. AvatarSneha

    Dear Shamnad,

    I beg to differ to your conclusion that s.81 overrides s.79 for the following reason:

    1. The old s. 79 which exempted intermediaries from liability was not worded as a non-obstante clause. The amended s.79 however, starts with “Notwithstanding…”.

    2. The immediate question to be asked is – what does s.79 override? As Nikhil pointed out – the 2006 Bill contained the words “Notwithstanding anything contained in any other law..” however in the final Act, this word was dropped and s.79 started as – “Notwithstanding anything contained in any law…

    I believe that the effect of dropping “other” from the final Act is to give s.79 an overriding effect over any provision inconsistent to it present in the IT Act itself as well.

    Thus, I believe s.79 over rides s.81.

    Reply
  10. AvatarJ. Sai Deepak

    Dear Sir,
    Instead of finding whether S.79 prevails over S.81 or vice-versa, I thought i should probably go by the concept of secondary liability. If knowledge is a condition precedent for imputation of secondary liability, then even if S.79 was completely absent, the ISP may not be held liable for copyright infringement if he establishes that he had no knowledge that the material was infringing in nature. I subsequently went through the comments of Pranesh and I think it seems plausible.

    Also, in the last comment, you said the 2006 Bill spoke of “any other law” in Section 79 whereas the 2008 Act speaks of “any law”. If so, shouldnt s.79 be held as overriding s.81 and not the other way round? In other words, if the ISP satisfies conditions under S.79, he may not be held liable even under the IT Act and not just any other Act. Please let me know if there’s a logical pitfall that i may have succumbed to.

    Bests,
    Sai.

    Reply
  11. AvatarShamnad Basheer

    Sai,

    Lack of knowledge does not absolve an intermediary of copyright infringement. In fact, you could be subject to damages as well (subject to the qualification in the proviso to section 55).

    So if an intermediary has created a cached copy on its network, it is not covered by section 79. Neither will section 51(a) (ii) help, since this is an act of reproduction and not merely of “communication to the public”. So your argument of lack of knowledge does not work in this context.

    You’re right on 79 vs 81. I read it the other way around. But 81 also states “nothing contained in this act”..which presumably includes 79 as well.

    Reply
  12. AvatarShamnad Basheer

    Sai,

    Lack of knowledge does not absolve an intermediary of copyright infringement. In fact, you could be subject to damages as well (subject to the qualification in the proviso to section 55).

    So if an intermediary has created a cached copy on its network, it is not covered by section 79. Neither will section 51(a) (ii) help, since this is an act of reproduction and not merely of “communication to the public”. So your argument of lack of knowledge does not work in this context.

    You’re right on 79 vs 81. I read it the other way around. But 81 also states “nothing contained in this act”..which presumably includes 79 as well.

    Reply
  13. AvatarShamnad Basheer

    Sneha,

    I’ve already responded to Sai on this. Let me reproduce what section 81 states again:

    “The provisions of this Act [IT Act] shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any rights conferred under the Copyright Act, 1957 or the Patents Act, 1970.”

    The first part makes clear that the IT Act shall override other legislations, should there be an inconsistency, In other words, if there is any discrepancy between section 79 and the copyright act, the IT act would prevail. However, the latter half of section 81 provides for an exception to the general rule outlined in the first above.

    The proviso in the latter half explicitly states that “nothing contained in this act” (which ought to include section 79 as well..) shall restrict the exercise of any rights under the copyright act.

    Also, remember that section 81 comes after section 79…

    Reply
  14. AvatarShamnad Basheer

    Also bear in mind that we’re trying to make sense of thoroughly botched up provisions. And perhaps attributing more sense and wisdom to our legislators (and to the process) than they actually possess.

    More importantly, I think I’ve been unsuccessful at communicating the key point of this blog post:

    That the IT Act can be “plausibly” interpreted in the manner I’ve set forth. And if that is so, there is a lacuna in terms of intermediary liability. And we need to plug that..

    Reply
  15. AvatarSneha

    Dear Shamnad,

    I agree that we are giving too much credit to our legislators… I was surprised to see that the debate on s.79 of the IT Amendment Act in the Lok Sabha was over in 7 lines! Amendment to S. 81 was passed without a debate!

    However, considering that we are all trying to come up with a solution which harmoniously interprets s.79 and s.81 of the IT Act and the provisions of Copyright Act, I beg you to hear me out while I think aloud –

    Let us consider the proviso to s.81 – Provided that nothing contained in this Act shall restrict any person from exercising any rights conferred under the Copyright Act, 1957 or the Patents Act, 1970

    I believe that the proviso to s.81 simply says that if any person has any right under Copyright/Patent Act, and if any provisions of the IT Act restricts the exercise of those rights available under Copyright/Patent Act, then such restriction under the IT Act shall not apply to the exercise of those right by he copyright/paten owner. Thus, the simple question that arises is – Can S. 79 be read so as to imply that it is restricting the exercise of a copyright/patent owner’s rights under the Copyright/Patent Act?

    I believe the answer to this question is No. S.79 simply seeks to impose/prevent the imposition of a liability on an ISP if certain conditions are met. S. 79 in no way restricts the exercise of a right by a copyright/patent owner available to him under the Copyright/Patent Act.

    Regards,
    Sneha

    Reply
  16. AvatarShamnad Basheer

    Sneha,

    Sure–we can continue discussing this, but i’m hoping that someone might bring up a new angle here..

    You state that “S.79 simply seeks to impose/prevent the imposition of a liability on an ISP if certain conditions are met. S. 79 in no way restricts the exercise of a right by a copyright/patent owner available to him under the Copyright/Patent Act.”

    I’m not sure i follow you here. If section 79 prevents a copyright owner from holding an infringer liable, then isn’t section 79 restricting a right that is otherwise available to such owner under the copyright act? Isn’t that the real effect/impact of section 79?

    Reply
  17. AvatarSneha

    Dear Shamnad,

    I do not think that the copyright owner has the right to hold the infringer liable in the first place. He simply has the right to assert that an infringer may be liable. Whether or not such infringer is liable is matter to be decided by the Courts.

    I say that s.79 does not prevent a copyright owner from asserting that an ISP may be liable. Therefore he question of s.79 restricting the exercise of a copyright owners rights under the Copyright Act does not arise.

    Reply
  18. AvatarPranesh Prakash

    @ Sneha
    I completely agree with you in that we need to think very carefully about what all s.81(2) protects and what all it doesn’t. So while s.63 (a criminal provision) is not protected, s.58 (a civil provision) will be, since it is worded as a right.

    I disagree with Shamnad in that I don’t believe secondary liability for copyright infringement is at all affected by s.81(2). However, primary liability of intermediaries is something that needs to be thought through. Would knowledge or lack of knowledge make a difference there?

    I don’t think that the difference between asserting liability and finding an intermediary liable is at the crux of the matter.

    Reply
  19. AvatarAnonymous

    @Pranesh:

    “However, primary liability of intermediaries is something that needs to be thought through. Would knowledge or lack of knowledge make a difference there?”

    dude…you need to go back and brush up on your copyright basics! Lack of knowledge is not an excuse for copyright infringement. Lack of copying is–but this is very different than lack of knowledge!

    Reply
  20. AvatarAnonymous

    Another point that noone else seems to have pointed out, is that S. 81 as of now only includes the Copyright and Patent Act. Is there a reason behind the glaring exclusion of the Trademarks Act?

    Reply
  21. AvatarAnonymous

    pranesh is merely nitpicking.and forgets main point…that if isp can be held liable under cpyright act, then lack of section 79 defence is a flaw. and needs to be cured. i think thats what shamnad is trying to say.

    Reply
  22. AvatarJ. Sai Deepak

    Dear Anon,
    I appreciate your contributions to the discussion and your clear approach to the issue at hand, but I would request you to be respectful of the people who are attempting to contribute positively to the discussion. Kindly refrain from making personal comments about anyone who is participating in the discussion. You have stated that no one has pointed out about the glaring exclusion of the TM Act from Section 81, I think this is not true. I would request you to go back to the post where Kaushik has clearly mused thus:

    “Interestingly the proviso to section 81 of the IT Act only mentions “copyright” and “patent” liability. It does not include liability for other kinds of IP infringement such as trademarks, geographical indications, plant varieties etc. Therefore, in so far as these infringements are concerned, an intermediary can claim an exemption under section 79. Why this difference? Did this have anything to do with lobbying by special interests? Or was this a genuine mistake?”

    Also, in my first comment to this post, I have stated thus:
    “..how does the proviso to s.81 alter the aforesaid logic? Does it work to the detriment of IP right owners other than copyright and patent owners, is probably the question we are trying to answer.”

    I am sure your comments are well-meaning, but I request you to steer clear from taking an aggressive posture when it is not required or warranted. I hope you will take this request in your stride.

    Warm Regards,
    Sai

    Reply
  23. AvatarJ. Sai Deepak

    Dear Pranesh,
    S.81(2) refers to any person on whom a right has been conferred by the Copyright Act or the Patents Act. Your initial comments on this provision alluding to fair use sound very plausible, however can I request you to elaborate on the last comment where you state that “right” means and is restricted to a civil provision? If right conferred on any person includes the right of a copyright holder to take action, why would it be restricted to civil action?

    Also, on your question on primary liability, please let me know if I have understood you right- are you suggesting that S.79 is a defence that may be extended even if the allegation is that of primary liability? From what I understand of the object of introduction of Section 79 is that it is meant to work on lines similar to the EU directive 2000/31 and the DMCA where the objective is to strike a balance between the legitimate interests of a right owner and the culpability of intermediaries in instances where they have no knowledge of an infringing act. If this is so, any interpretation which swings in extremes in either direction would render the purpose of the section otiose.

    Also, here I would like to add to Kruttika’s observation; prevalent precedents on secondary liability of ISPs in the context of copyright typically seem to take the following stance:
    1. The ISP or any manufacturer of devices cannot be held guilty of secondary liability (if so, primary liability is ruled out) merely because he designs, manufactures or distributes a product which is capable of substantial lawful use though he may be aware of its potential for being put to an infringing or unlawful use.
    2. For imputation of secondary liability, clear proof of active encouragement or promotion of infringement is necessary.
    I would assume this applies to our Copyright Act as well. If it does not, then S.79 probably carves an exception so as to exempt ISPs from secondary liability.

    Bests,
    Sai.

    Reply
  24. AvatarAditya Gupta

    @ Pranesh

    Could you please explain as to on what basis are you reaching the conclusion that Section 81 does not affect secondary liability and may have repercussions only on primary liability?

    Reply
  25. AvatarPranesh Prakash

    @ J. Sai Deepak:
    My argument is that section 63 does not confer a right upon the copyright holder. It defines an offence, and lays out its punishment. It is like any other provision of the IPC. Section 58, on the other hand, confers rights.

    Also, I think it would be better for us to analyse secondary liability through Indian statutory and case law before we go by foreign laws. The section 79 shield is, of course, much broader than copyright, so in other matters, analysis of its antecedents might be extremely useful.

    @ Aditya Gupta:
    The way I see things, s.79 does not add much in way of protecting intermediaries in way of secondary liability as statutorily laid out.

    Section 81 does not seem to save s.63 ICA for the reason I’ve mentioned above (it is not a “right”), and I believe that the threshold for “aided” (used in s.79) is as low as the knowledgeable (wilful?) inactivity threshold provided in s.51.

    Are there any bases (judicial?) for secondary liability beyond these statutory provisions?

    @ Anonymous (4:23 PM)
    I am nitpicking, true. But I think such nitpicking is important. The question thrown up by Shamnad’s reading of s.81 is: Even in the absence of s.79, can an honest ISP that does not actively aid and has a working take-down policy be held liable under the Copyright Act while acting as a carrier/intermediary? I argue that insofar as secondary liability goes, it can’t. I think the important point raised by Shamnad is that primary liability may still exist (contrary to what I stated in my first comment). I accept that that was an oversight on my part, but I am still in the process of thinking this through, and am not fully convinced.

    @ Anonymous (2:06 PM)
    Thanks for pointing that out, but I think my original question still stands.

    And just to add some nuance to your statement that lack of knowledge is not an excuse for copyright infringement: independent creation is permissible under copyright law (unlike patent law) and in such as situation, lack of knowledge would go to show lack of infringement. That apart, you are right, lack of knowledge is generally not an excuse. But that is so for primary liability, and not for secondary liability. Lack of knowledge does seem to be an excuse, insofar as statutory provisions on secondary liability go, for secondary liability.

    What we have to see are what aspects of various intermediaries’ dealings would incur secondary liability, and what aspects would incur primary liability.

    Would things such as caching (which seem to fall in the hazy space between primary and secondary liability, if you ask me) actually lead to claims of primary liability being held up by Indian courts?

    Does that mean that in countries where the private use exception is not as broad as it is in India (which means a great many countries), each and every person who uses a browser (most makes of which do, after all, employ caching unless specifically switched off) is liable for copyright infringement? Would that also mean that all the relay servers through which data packets travel are infringing copyright? Would it mean that all copying unto RAM is infringement on part of computer the computer manufacturers?

    I think a great many practical absurdities will result by applying legal logic strictly. Which is why I believe that we (or at least I) need to think through the issue of primary liability of intermediaries more carefully.

    Reply

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