Chaitanya, a Stanford law student, who has previously blogged for us over here, has written for us this very interesting post analysing the safe-harbour provision under the Copyright (Amendment) Act, 2012, the Copyright Rules, 2013 and has also contrasted it to the safe harbour provisions under the DMCA in American law. As Chaitanya concludes, it is a pity that the Government lost this opportunity to firm up the safe harbour provision for intermediaries especially since the point is being intensely litigated in various judicial forums across the country.
A look at the new notice and takedown regime under the Copyright Rules, 2013
By, Chaitanya Ramachandran
The Copyright (Amendment) Act 2012 (available here) introduced “safe harbours” for Internet intermediaries through the new ss.52(1)(b) and (c). Both clauses limit the liability of intermediaries with respect to the “transient or incidental storage of a work or performance”, which I shall call “transient copies” for brevity. Clause (b) protects ISPs, cable/DTH providers and the like, while clause (c) protects “information intermediaries” such as Google, YouTube, or any other entity providing “electronic links, access or integration”.
In this post, I analyze Rule 75 of the Copyright Rules, 2013 (available here), which fleshes out the notice and takedown process under clause (c). I first assess Rule 75’s scope and interaction with its parent section, and then make some broader points about the scope and significance of the new s.52 safe harbours.
I. Rule 75: A house built on sand
Section 52(1)(c) provides that the making of transient copies by information intermediaries is not copyright infringement if two conditions are met:
(1) The copyright holder has not expressly prohibited the intermediary’s provision of the “links, access, or integration”; and
(2) The intermediary has neither actual nor “red flag” knowledge that the transient storage is of an infringing copy.
The basis for the notice and takedown process is contained in the proviso to clause (c) – it allows the holder to deliver a written complaint to the intermediary alleging that its transient storage is an infringement, in which case the intermediary must block access to the content until the complainant obtains a court order restraining the intermediary from providing. If such an order is not obtained within 21 days, the intermediary may restore access to the transient copy.
On close reading, it becomes apparent that this seemingly straightforward provision is beset with ambiguities:
1) What does “transient or incidental storage” mean? Is it a reference to caching, or does it have a broader meaning? What is the threshold below which a copy is “transient or incidental” as opposed to “normal”? This term is a strong candidate for semantic wrangling in litigation, but I haven’t found a definition for it in the Act.
2) What triggers the notice and takedown process – the fact that the underlying copy is infringing, or the act of making a transient copy of the underlying work? The latter would seem to vitiate the idea of a safe harbour for transient copies, but the drafting of the provision enables such an interpretation. While the proviso to clause (c) requires the written complaint to indicate that “such transient or incidental storage is an infringement” – which could be read as referring to the act of making a transient copy – condition (2) of clause (c) refers to the intermediary’s knowledge that the underlying copy is infringing. I think that the written complaint should also allege that the underlying copy is infringing – it doesn’t make sense for the copyright holder to allege that the transient copy is infringing, because the safe harbour protects the making of transient copies. Rule 75 accords with my interpretation, so is the ambiguity in clause (c) merely attributable to imprecise drafting?
3) It seems that the copyright holder must merely allege infringement in its written complaint to trigger the takedown. What happens if the allegation is unreasonable, and/or the intermediary has a good faith belief that the copy is not infringing? How is a difference of opinion between the two parties to be mediated?
Given that the parent section is fraught with ambiguities, one can forgive the somewhat skewed nature of Rule 75, which, in setting out the notice and takedown process in detail, gives considerable power to intermediaries. In essence, a copyright holder may complain in writing to an intermediary with details of (i) the identity of the work, (ii) its ownership of the work, (iii) the fact that the underlying copy is infringing and is not a permitted use under s.52 or otherwise, (iv) the location of storage, and (v) the uploader, if known. The copyright holder must undertake to file an infringement suit within 21 days of the notice. While clause (c) permits only the “owner of copyright” to deliver a written complaint, Rule 75 appears to extend the power to do so to exclusive licensees as well.
More notably, Rule 75(3) requires the intermediary to take down the work within 36 hours of receipt of the complaint only if it is satisfied that the copy is infringing. Presumably, if it is not satisfied, it doesn’t have to take down the work. Can the intermediary always refuse to take down the work citing dissatisfaction with the complaint? Or would the complaint itself constitute “red flag” or actual knowledge that the work is infringing, therefore making the intermediary’s satisfaction irrelevant when read with clause (c)? I subscribe to the first interpretation as it is more consistent with clause (c), but recognize that it gives the intermediary virtually unchecked discretion in the notice and takedown process.
If the work is taken down, the intermediary must display a notice to persons trying to access it. If no court order is obtained within 21 days, the work may be put up again, and the intermediary may ignore future complaints regarding the same work.
II. Are the s.52 safe harbours truly safe?
To put the s.52 safe harbours into perspective, let us compare them with their U.S. counterparts – the DMCA safe harbours in §512 of the US Copyright Act. There are four §512 safe harbours for intermediaries, each directed at a specific intermediary activity. So intermediaries must meet different conditions to be exempted from liability for damages for (i) transmission, (ii) “intermediate and temporary storage”, i.e. caching, (iii) storage of works at the direction of users, and (iv) provision of links or search facilities. §512 protects a much broader range of intermediary activities than the s.52 safe harbours. Although clauses (b) and (c) refer to the intermediary activities of transmission and provision of links/search, the safe harbours don’t fully protect these activities – they only protect the making of transient copiespursuant to such activities. So the scope of the s.52 safe harbours is extremely limited. One wonders why protection has not been extended beyond the making of transient copies. Presumably, even if the intermediary meets the safe harbour requirements for transient copies, it can still be held secondarily liable for the storage of the underlying works or the provision of information services pointing to those works. And given that the broader safe harbours under the IT Act do not apply to copyright infringement, it seems like the s.52 safe harbours represent another missed opportunity to create a fair safe harbour for intermediaries that appropriately balances their interests against those of copyright holders.
Though the notice and takedown process under §512(c) gives copyright holders a strong advantage, it is considerably more detailed (and less ambiguous) than the Rule 75 process. The key difference in §512 is that the intermediary must always take down the allegedly infringing work, unless it receives a “counter-notice” from the uploader alleging that the work was taken down by mistake or due to misidentification. This benefits the copyright holder because its complaint is not subject to gatekeeping by the intermediary, but this advantage is offset by the imposition of a strict 14-day deadline for the filing of a lawsuit. It also allows the uploader to participate in the notice and takedown process. So, while §512 creates a robust safe harbour for intermediaries and counterbalances it by giving copyright holders strong power to demand takedowns, s.52 goes in the opposite direction by creating a weak safe harbour and giving intermediaries the final say on takedowns.
In sum, the s.52 safe harbours are only a token nod to the interests of intermediaries, and their failure to provide more substantial protections means that Indian intermediary liability law is back to square one. Rule 75 appears to offset the weak position of intermediaries by giving them the power not to act on complaints from copyright holders. The end result is that no one is really better off. Intermediaries are not sufficiently protected from liability, and copyright holders can do little more than hope that their written complaints will be acted upon. So it may already be time to go back to the drawing board on intermediary liability rules.
Agree with your observations. The fallacies of the Intermediary Guidelines, 2011 could have been rectified in the Copyright Amendment. We could have adopted a similar safe harbor provision as in US . An automated electronic notice system wherein on receipt of notice, the service provider would be under an obligation to take down the content unless proven otherwise by the uploader, would have been ideal. The amendments introduced by the Copyright Amendment Act and the Rules wrongly place the burden of proof of fact of infringement on the owner; placing burden on the copyright owner is illogical and impractical. The copyright owner would be mandated to file a copyright infringement suit in the court of competent jurisdiction, without any provision for re-imbursement of litigation costs if the infringement is proved. (Which means that the owner would have to spend lacs of rupees). It is again illogical to have the mandate of getting a court order within 21 days. Without a strict direction by law on the judges to decide such cases within 21 days or less any such mandatory directions are highly unreasonable, arbitrary and probably in the teeth of Article 14.