The Ministry of Information Technology has released a draft of proposed changes to the Intermediary Guidelines Rules, 2011, made under Section 79 of the Information Technology Act, 2000 (“IT Act”). Section 79 provides that certain categories of intermediaries which merely host third party content shall not be liable for such third-party content, provided that certain conditions are complied with, which is known as a ‘safe harbour’. Compliance with the Intermediary Guidelines Rules drafted under Section 79 is a pre-requisite to any intermediary claiming the immunity or safe harbour under Section 79(1).
The present draft of the proposed amendments raises a whole host of concerns concerning privacy, freedom of expression and freedom of information. For the purpose of this post, I will be focusing on Draft Rule 3(9) and its potential impact on copyright law and access to knowledge.
Draft Rule 3(9) Will Harm Access to Knowledge and Undermines Fair Dealing in India
Draft Rule 3(9) states that “The Intermediary shall deploy technology based automated tools or appropriate mechanisms, with appropriate controls, for proactively identifying and removing or disabling public access to unlawful information or content.”
Draft Rule 3(9) does not provide sufficient clarity on the basis of which intermediaries are to identify and remove information which is ‘unlawful’. ‘Unlawful’ information and content can range from criminal forms of speech under the Indian Penal Code, to civil offenses such as defamation of copyright or trademark infringement. The determination of the lawfulness of content is dependent upon the particular circumstances and context in which such information is embedded. While certain forms of speech may be presumptively illegal, without taking into account its context (for example, extreme violence or explicit child sexual imagery), the vast majority of speech cannot easily be categorized as lawful or unlawful, and such determinations should normally be made only through judicial procedures which are accountable under law.
In the absence of judicial determination, intermediaries are ill-suited to make such categorizations, particularly as the mechanisms by which they make such decisions are generally private, non-transparent and unaccountable, at least in the present legal framework under which they operate. Moreover, intermediaries may not have a direct interest in the protection of legitimate speech and have economic incentives to avoid liability for third party content, inducing them to privately ‘over-censor’ legitimate forms of speech in the absence of a clear judicial determination of what constitutes ‘unlawful information or content’. As noted by the Delhi High Court in Myspace v Super Cassettes,“…if an intermediary is tasked with the responsibility of identifying infringing content from non-infringing one, it could have a chilling effect on free speech.”
This problem is particularly exacerbated in the context of copyrighted content, the infringement of which also constitutes unlawful content. The Delhi High Court has held that Section 79 of the IT Act also covers acts of copyright infringement under the Copyright Act. The scope of Draft Rule 3(9), similarly, would extend to all intermediaries who host copyrighted works under the Copyright Act. Owing to a low threshold for copyrightability in India, such ‘works’ cover almost a significant amount of all the content uploaded on the internet, the lawfulness of each of which an intermediary cannot reasonably be expected to monitor and filter, even with the use of automated systems.
In particular, draft rule 3(9) may undermine the crucial balance between access to knowledge and the use of copyrighted works, and the protection of author’s interests which is sought to be protected under the Copyright Act. The Copyright Act protects certain uses of a copyrighted work including the ‘fair dealing’ of a work for the purpose of private use or research, or the use of any work by students in the course of instruction. However, as noted above, the fear of civil or criminal liability for third-party content is likely to induce intermediaries to over-censor copyrighted content without taking into account the protections offered by the Copyright Act.
In any event, automated systems are not sufficiently evolved or sophisticated to be able to make decisions regarding the legality of the use of copyrighted works, something that is generally left to a judicial determination. Most automated systems rely on ‘matching’ technologies such as digital fingerprinting or hashing, which are yet unable to determine the context in which the work is being used, and are ineffective proxies for a judicial determination of infringement. Even the most sophisticated automated tools, including YouTube’s ContentID system, which reportedly cost Google 60 million USD, has been demonstrated to be ineffective both for failing to catch copyright infringement and incorrectly filtering legitimate content.
The reliance on automated mechanisms to prevent copyright infringement has also been mooted in other jurisdictions, particularly in the recently proposed changes to the EU Copyright Directive, and have come under significant criticism from rights holders and fair use advocates alike. Battling online piracy and protecting author’s interests requires a far more nuanced approach than what is proposed under the draft rules. Today is the *last day* for sending in your comments on these rules to the Ministry and speak up for a free and open internet.
Although researchers and policymakers in the US and Europe have developed strong arguments for regulating digital companies in the public interest, the situation is still chaotic. And the reason is that the current discussion around intermediary liability for copyright infringement is a considerable distraction from the real issue – which is the definition of what qualifies a service to be recognised as an ‘intermediary’ and provided ‘safe harbour’ protection.
Today, companies who have build their business model on data capture are passing themselves off as ‘intermediaries’. This is a shame! A service should qualify as ‘intermediary’ and afforded safe harbour protection only on condition its hosting of data is TAP: Temporary, Automatic and Passive pass-through of data.