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25 January 2017

Copyright infringement – Liability of an online intermediary

A Division Bench of the Delhi High Court on 23-12-2016 has reversed a decision of the Single Judge on the issue of liability of an intermediary in copyright infringement. The appellant in case of Myspace Inc. v. Super Cassettes Industries Ltd, was a service provider providing free platform for uploading of audio or video along with other interactive features.

The Court was of the view that Section 51(a)(ii), in the case of internet intermediaries, contemplates actual knowledge and not general awareness, and to impose liability on an intermediary, conditions under Section 79 of the IT Act have to be fulfilled.

Observing that modification on the technical side by use of software would per se not constitute knowledge, the Court was of the view that prima facie there was no knowledge on the part of appellant with respect to allegations of infringement of the plaintiff’s works.

The Division Bench in this regard held that Sections 79 and 81 of the Information Technology Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously. It was held that proviso to Section 81 does not preclude the affirmative defence of ‘safe harbor’ for an online intermediary in case of copyright actions. Reliance in this regard was placed on Information Technology (Intermediaries Guidelines) Rules, 2011 and provisions of Section 79 of the IT Act which provide for an affirmative defence to an intermediary as long as it complies with the associated conditions.

Finally, it was held that in case of internet intermediaries, interim relief has to be specific and must point to the actual content, which is being infringed. It was observed that without a notice containing the details and location of the exact works in which infringement is complained of, the intermediary cannot be expected to scan through a large number of videos to discern infringement.