A test case for India’s new safe harbour provision: AGS Entertainment v. 37 ISPs

In the first of its kind case, after the enactment of the Copyright (Amendment) Act, 2012 the Madras High Court has passed an interim injunction against 37 Internet Service Providers in a qua-timet action by the producers of “Maattrraan/Brothers”, a Tamil movie starring Surya playing the role of conjoined twins. The plaintiff-producers were represented by A.A. Mohan and Associates. 

A qua-timet action, is typically filed even before the infringement has taken place, on the apprehension that such infringement is going to take place in the not so distant future. 

The present order, which can be accessed over here, despite what the ToI might claim, is not a John Doe order. The court’s order is limited to only 37 ISPs and not any un-named John Does. Unlike the previous blanket orders of the Madras High Court which led to widespread blocking of entire file sharing websites, the present order of the HC is careful to direct the ISPs to block only infringing websites/webpages that the ISPs are notified of, in writing, by the copyright owners. The order further requires ISPs to takedown the offending links within 24 hours of being notified of the same. 

What strikes me about the order is its complete silence on the words ‘Copyright Act, 1957’. If the order is being passed under the Copyright Act, 1957 it is expected that a judge at-least make a cursory mention of the legislation so as to inform the defendants the nature of the orders being passed against them. 

The second point of discussion in this case, is the impact of the new ‘safe-harbour’ provision enacted as a part of the Copyright (Amendment) Act, 2012. This provision which can be found in the proviso Section 52(ii)(c) of the Act and reads as follows: 

Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access; 

The first issue is whether this provision is limited to content providers like Youtube or whether it extends to even ISPs like Tata Telecommunications. Do ISPs, qualify for the category of “person responsible for the storage of the copy”? Presuming that ISPs do fall within this provision, the further question is whether ISPs should be sued until such time that the first remedy under the provision is exhausted i.e. the written complaint to the ISP giving them an opportunity to remove infringing content.

 From my point of view, the entire point of a ‘safe harbour’ principle is to reduce the litigation and liability being faced by third-party intermediaries. India’s safe harbour provision fails in this respect by giving copyright owners options to either file a complaint with the service provider OR file a civil action before a court. Ideally, content owners should be allowed to sue intermediaries only in cases where intermediaries refuse to remove infringing content. However as the present case demonstrates, content owners have no qualms about dragging these cases to the courts at the very first instance. This means that we are back at where we started. ISPs will continue to spend money defending themselves in litigation throughout the country.