Guest Post: Website Blocking to Prevent Copyright Infringement: A Comparison of the Indian and UK Approaches Part 1

Majority of the Spicy IP readers are no doubt already aware of the hornet’s nest that promises to be stirred in the debate between freedom of expression of thought and belief, especially via cyber media, and reasonable restrictions imposed to prevent publication of objectionable and copyrighted content. In the relating ongoing controversy involving Website moguls like Facebook and Google (India), the Delhi High Court has recently even mooted options of blocking the offending websites, as has been seen in the petition filed by the journalist Vinay Rai. For the readers, the Spicy IP team brings a series of guest posts reflecting the comparative analysis of the Indian and the U.K. scenario regarding website blocking to prevent copyright infringement. These posts have been authored by Ms. Neeti Jain, an Indian freelance lawyer with experience in IP/IT and corporate law in India and abroad. Ms. Jain, who has complete her LL.M. from the Columbia Law School, professes a keen interest in the fields of media and entertainment laws, as well as issues involving copyright law and technology, Internet regulation and digital media.

Part 1 – Website Blocking in India

Website blocking has been resorted to by the Indian government and media companies to prevent alleged copyright infringement, obscenity and defamation by making ISPs block access to offending websites by Internet users. I have been looking specifically at website blocking as a means of preventing online copyright infringement and the debates around it in the UK. Having sifted through existing legislation, rules and judicial precedent in India, I failed to find any consistency in the approach to website blocking in India for the purpose of prevention of copyright infringement. This post does not go into the issues of intermediary liability and immunity under the (Indian) Information Technology Act, 2000 (the “IT Act”) in much detail. Rather, it is an attempt to illustrate the point that website blocking is resorted to in an ad hoc manner by Indian copyright owners, setting judicial precedents that are dangerous to the freedom of the Internet, due process and consumer rights. As a comparison, I have explored the instances of website blocking in the UK and the judicial procedure followed, as also the reaction of civil society groups when faced with the prospect of legislative action sanctioning the blocking of websites by ISPs at the behest of copyright owners. This series of three posts covers the Indian and UK approach to website blocking for copyright protection purposes. This Part 1 is a brief review of the current position in India.Link
Blocking and content removal: To state the obvious, website blocking is not the same as the removal of content from websites. Website blocking is addressed by the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 (the “Blocking Rules”), published by the Central Government (Ministry of Communications and Information Technology, Department of Information Technology). Blocking is only available under the Blocking Rules for those instances covered under Section 69A of the IT Act, which does not cover copyright infringement. Therefore, if a copyright owner has to have a website blocked, they cannot seek recourse under the Blocking Rules. Requests to block websites or specific content have to be made to the Department of Information Technology (“DIT”), through designated “nodal officers”.

Content removal, on the other hand, is addressed by the Information Technology (Intermediaries guidelines) Rules, 2011, notified on 11 April 2011 (the “Intermediary Rules”). These rules require intermediaries to remove information that “belongs to another person” within 36 hours of receiving an e-mail communication from an “affected person” (Rule 3, sub-rule 2(a), read with Rule 4). However, exercising the right to have infringing content removed under these rules would involve being able to give notice of such infringement to an entity that would actually remove the content – which in the case of websites is impractical because often the identify of the website owners is not known or they are based outside Indian jurisdiction and can ignore requests to comply. ISPs and operators of social network sites such as Facebook and Google claim technical inability to monitor and remove content, or simply refuse to do it if it does not violate their usage policies.

John Doe Orders: An alternative method, exercised of late by copyright owners, is to file for a John Doe court order claiming that the applicant copyright owners anticipate infringing activity that could cause financial loss to them. A John Doe order passed by Justice A.K. Pathak of the Delhi High Court on 20 July 2011 was exercisable by the producer of the film Singham against anyone playing unauthorised copies of the film on cable TV, the Internet or through the sale of CDs and DVDs. Reliance Entertainment reportedly also obtained a similar order prior to the release of the film Bodyguard. When ISPs such as Airtel, MTNL and BSNL were presented with the order, asking them to prevent unauthorized access to Singham by users of their service, they reacted by blocking entire file-sharing websites. ISPs are clearly not equipped to monitor the activities of each user and block access to particular content being streamed by users from file-sharing services. Section 79 of the IT Act provides intermediaries with a safe-harbour against liability for copyright infringement if certain conditions are met. However, various provisions in the Indian Copyright Act, 1957 and the IT Act may strip intermediaries of this safe harbour (See here for a robust analysis of these provisions).

In the absence of clarity regarding the rules on ISP liability versus their safe harbour, ISPs would seemingly rather err on the side of blocking websites, than not. Therefore, in most cases, copyright owners do not need to go through the DIT route for website blocking at all. As has been demonstrated by the Singham court order, unidentified defendants are restrained from displaying or making available copyrighted work. These defendants include ISPs and cable operators. The width of the order is clearly enough to scare the ISPs into blocking entire websites that are used widely by users to share content, both legal and infringing. These injunctions imply that copyright owners, in the future, do not need to pursue lengthy litigation to prove infringement, but can merely seek John Doe orders and compel ISPs to block websites. ISPs are not yet challenging the producers’ instructions to block websites; even though the John Doe orders do not name the ISPs, do not point to specific demonstrated instances of infringement and do not even identify by name the websites or services that are being made the target of these blocking instructions, nor the percentage of infringing content on these websites as compared to legitimate content.

My next post on this subject will look at the UK statutory provisions and legal precedents relating to the blocking of websites for the purpose of prevention of copyright infringement.

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