Copyright

A Response To the IMI’s Claims about ShareChat and Intermediary Safe Harbour Law in India


ShareChat, an Indian local language social media service, is once again in the middle of a copyright storm. Readers may remember ShareChat’s tussle with TikTok from last year, regarding its status as an intermediary and protections against copyright infringement claims. This time, it’s ShareChat facing the proverbial music, with T-Series and a related entity Lahiri Recording taking civil and criminal action against ShareChat for allegedly violating their copyright through its services.

The dispute has once again revealed the copyright fault lines between the online service providers industry and the Indian music industry, with the Internet and Mobile Association of India (IAMAI) publicly supporting ShareChat, while record label representatives Indian Music Industry wrote about why ShareChat was in the wrong, on our blog here. This piece is a response to the IMI’s claims about ShareChat’s legal responsibilities.

Background

Earlier in November, T-Series had filed a suit for copyright infringement against ShareChat claiming that some 2,20,675 copyrighted works had been illegally used by ShareChat. Consequently, T-Series obtained an ex-parte ad-interim injunction from the Delhi High Court. The order states as follows:

“Consequently, till the next date of hearing, defendant, its directors, officers, employees, agents, assignees, representatives and all other persons etc. are restrained from using or by way of storing, hosting/reproducing/making copies, issuing copies, commercially exploiting/monetizing, communicating to the public, digitally transmitting, publicly performing, synchronizing with other works, making new works therefrom   adapting,   modifying and making available the plaintiff’s copyrighted works on/through the impugned services or in any other manner whatsoever exploiting the plaintiff’s copyrighted works details whereof have been mentioned in the CD.” (Emphasis mine)

Subsequently, in March, 2020, the Yeshwantpur Police in Bengaluru filed an FIR against Sharechat and its directors under Sections 63 of the Copyright Act and Section 102 of the Trademarks Act, based on a complaint by Lahiri Recording Company.

IMI’s Claims about ShareChat’s Liability

The IMI makes two legal claims about ShareChat’s intermediary liability status under the IT Act, which I would like to respond to, based only on the information provided in the blog post and the Delhi HC order.

First, IMI claims that ShareChat is not an intermediary because it has knowledge of copyrighted content being circulated on its platform (basis its description on the Apple App Store). This is a misreading of Section 2(w) of the Information Technology Act, which does not include a knowledge standard for qualifying for the status of intermediary (under that Section). The only qualification for an intermediary under Section 2(w) is that it deals with third-party electronic records (“on behalf of another person”). There is no claim herein that ShareChat uploads content of its own accord, and the knowledge standard does not come into the picture when qualifying for intermediary status under the IT Act. A standard of knowledge for the purpose of liability only comes into play when considering safe harbour protections under Section 79, and not upon the qualification as intermediary under Section 2(w).

Second, the IMI claims that ShareChat cannot claim protection under Section 79 of the IT Act. Here, IMI claims that Section 81 of the IT Act intends to exclude questions of copyright violation from intermediary safe harbour. This assertion is contrary to judgements of the Delhi and Bombay High Court, stemming from the division bench’s decision in Myspace v. Super Cassettes which categorically held that Section 81 does not preclude a safe harbour defence in case of copyright actions. Additionally, the Court held that intermediaries would lose their safe harbour protection only if they do not comply with takedown notices, which provide specific URL’s or locations of infringing material. In the present case, the claims for liability were not preceded by takedown notices for the allegedly infringing content, according to ShareChat representatives.

Admittedly, the liability for intermediaries does not extend when the intermediary has actual knowledge, or when it “conspired or abetted or aided or induced” the doing of the unlawful act (as per Section 79(3)(a)). As already mentioned, in secondary infringement claims under the Copyright Act, the standard is that of ‘actual knowledge’ as modified by the MySpace decision. Further, in Christian Loubatin v. Nakul Bajaj, the Delhi HC had held that the standard for ‘conspiring, aiding, abetting or inducing’ is that the intermediary must be an ‘active participant’ in the infringement or illegal act, although the judgement did not specify a standard of knowledge which is required for such disqualification. In the present case, the claim as per IMI is that (i) ShareChat has a number of infringing videos on its platform, and (ii) that it’s App Store description indicates a general knowledge of such infringement. It is unlikely whether this is sufficient basis for liability.

The waters of intermediary liability jurisprudence in India are certainly muddy, with the uncertainty over the application of the law leading to divergent and conflicting judgements and affecting both internet and recording businesses. The court’s will ultimately have to pull themselves out of this quagmire of conflicting standards of liability, until which it appears unlikely that either online intermediaries or copyright holders will be breathing easy.

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