Name: Tabitha Reji
Year of college & Course: 4th Year/BBA LLB (Hons)
College/ University: Symbiosis Law School, Pune
Copyright law gives the creator the exclusive right to permit the copying, preparation of derivative works, and dissemination of copyrighted works. This definition, however, cannot be exclusively extended to copyright on the internet. Even simply browsing information on a computer monitor (which is similar to reading a book or magazine in a bookstore) will result in the creation of an unauthorized copy since a temporary copy of the work is made in the RAM of the user’s computer for the purpose of access. The law on the subject is changing, but the prevailing consensus is that viewing a web page more than once is not an infringement because the copy produced is temporary or ephemeral.
Keywords: protection of copyright in digital age in India, copyright in internet in India, digital copyright in India, copyright protection in digital environment
When people plan to take advantage of others and inflict financial damage to those who have won those rights through hard work, the issue of copyright infringement arises. What is clear is that technical advancements have made reproducing copyright material simple and inexpensive, while also making copyright infringement simple and difficult to manage. They’ve given copyright infringement an international character. Several parties are interested in the transmission of a job from one access point to another or when it is made available for public access. Entities that offer internet access or web services fall under this category. They are responsible for the act of infringement if they engage in distributing or rendering accessible materials produced by others that infringe copyright or modify rights.
Another problem that web site owners face is using links to other sites in the design of their own websites. Would such linking, which provides access to other copyrighted sites, be considered a copyright infringement? Though in strict sense, it could be a copyright infringement. However, there is an implicit public access doctrine for connecting to other web sites.
The Copyright Act, 1957 provides the author with exclusive rights, including the right to publish. When an author or creator or publisher publishes his creation in electronic mode or puts it on an electronic medium, the author’s copyright also remains with the author, which is known as the author’s electronic copyright. When other users of the Internet are able to copy the author’s creations, etc. without paying any money by using their electronic gadgets it is called an electronic infringement of copyright. The Copyright Act today deals with business models that are growing on the Internet, where users are actively participating and companies earn on this basis solely on the basis of internet services by making it easier for users to share their attractive content (including motion pictures, films, songs, graphics, trailers, private communications, etc.) in such a way as to make it common to all and to allow them to see it easily by staying at home.
It has therefore become necessary that the Copyright Act also addresses the problems of infringement of copyright on the Internet and other related aspects. Although no specific reference has been made to this aspect, the amended provisions of the Copyright Act seek to address some practical problems, including the inclusion of a policy of fair use and other aspects of temporary and incidental storage of work or performance, or the provision of links to such links.
Internet and Established Body Responsible for Electronic Infringement:
The application of information technology has made it very hard to apply traditional theories to different cyberspace entities and organizations. These cyberspace players may be categorized under the following sections:
(1) Internet Service Providers (ISPs),
(2) Bulletin Board Services Operators (BBSO),
(3) Commercial Web Page owner/operators, and
(4) Private users.
The Role and Liabilities of ISPs in India
Internet Service Providers (ISP):
Internet Service Providers most often provide access to the Internet and may be held liable for infringements of copyright. In India, however, neither under the Copyright Act, 1957, nor under the Information Technology Act, 2000, ISP made unconditional liability instead of imposing an adaptable conditional liability. As per the I.T. Act, ISP shall be liable only if it has prior knowledge of the materials and has not taken necessary measures to ensure the interests of the authors/owners . The liability provision was clearly laid down in the United States copyright law.
In Religious Technology Center v. Netcom On-Line Communication Services Inc, the Court held that Netcom was not liable for direct infringement and could be liable for the infringement if the plaintiffs had demonstrated that they were aware of the infringement activity.
ISP Liability in India:
In India, the legal approach to ISP liability is vertical. This signifies that the liability of the alleged infringer would vary based on the area of law applicable to the specific type of infringement. This method has led to the establishment of the responsibility of ISPs under the Copyright Act and the Information Technology Act, which are addressed below:
1. Indian Copyright Act, 1957:
The Indian Copyright Act was taken up at a time when the importance of the Internet as it is currently was clearly not predicted. Obviously, there is no reference of liabilities for ISPs in copyright infringement cases as such. Although the Act was amended in 1994 and 1999, it still does not contain any specific provision for determining or constraining the liability of the ISP. Even so, a meticulous choice of words has enabled it to be both technologically neutral and open to interpretation. This is evident from Section 51(a) (ii) of the Copyright Act, which could be interpreted as having, to a certain level, an impact on the liability of ISPs under it.
Now, ISPs are allowing their servers and other telecommunications devices to store and transmit data to their users all across network. Nevertheless, these servers and devices are present physically in the Service Provider’s business premises. They would therefore fall within the meaning of the term “any place” as set out in the Act and would be held liable for the storage and transmission of infringed third party data if the other requirements were met. In addition, the term “profit permits” is also of great importance. The ISP must therefore benefit financially from the infringing activities in order to be liable. ISPs receive not just service charges, but also advertising. Now, if they provide some service free of charge, for example: illegal copyrighted material, they still benefit from it through advertisements that are tied with it.
Therefore, if the ISPs transmit and store the infringed material, they could still be liable if they comply with the two criteria given above. In addition, if these requirements are met, they may also be criminally liable under Section 63 of the Copyright Act. Finally, the expression ‘unless he was not aware of it and had no reasonable grounds to believe that such communication to the public would constitute an infringement of copyright.’ This term is important in the sense that liability is constituted only if the ISPs have knowledge of the infringing material stored or transmitted through their servers. Therefore, the only exception to this liability is for the ISPs to verify that they did not yet know that their activities were detrimental to the copyright owner.
2. Information Technology Act, 2000
In India, the relevant provisions to ISPs are, to a certain extent, laid down in the IT Act 2000 where the Internet Service Provider is mentioned to as the “Network Service Provider.” Pursuant to S. 79(a) of the Act, a network service provider means an “Intermediary”. Subsection 2(w) again defines an intermediary as “any person who receives stores or transmits that message on behalf of another person or provides any service with respect to that message.”In addition, Section 79 of the Act deals with instances where network service providers are not liable.
Consequently, the liability of the ISP shall be waived if it can verify that, first off, there was no knowledge of the alleged infringement and, secondly, due diligence was done to avoid such infringement. It can be well understood that the purpose of this bit of legislation in this section is to provide immunity to ISPs. This immunity is absolute if the ISP is able to prove any of these. If the ISP is aware that the data passed through or stored on its servers is likely to infringe the copyright of another, it is considered to have ‘knowledge’ about it and is obliged to take adequate initiatives to restrain it from doing so. In addition, the term ‘due diligence’ is also included in the section. The level of diligence would be decided on the basis of reasonable standards expected of a person who is conscious of, or likely to be aware of, illegal activity. In India, this has left the concept of liability very ambiguous and limited.
Therefore, to sum it all up, the major limitations of Indian law in addressing the problem of online copyright infringement are;
(a) The vague provisions of section 79 of the IT Act, which leave sufficient scope for officials to harass ISPs in issues where their liability is at issue.
(b) The term “due diligence” is crucial in determining the liability of ISPs. Unfortunately, the term has not been defined in the Act as a whole. This creates uncertainty and vagueness among ISPs about the correct interpretation of ‘due diligence.’
(c) Neither the Copyright Act nor the IT Act shall classify or describe an ISP. Responsibility for ISPs, if incorporated in the IT Act, is wrongly the same for one who acts as a simple communication carrier, such as a telephone network operator, and for one who is accountable for the transmission of data via the Internet. It is therefore vitally important that the distinction be stated clearly and that these two entities (Network Providers & Internet Service Providers) are classified.
Infringement and Fair Use:
Most of the infringements of copyright have been committed in the name of “fair use.” Recognition of a fair use defense under these conditions gives copyrights and other users free access to whatever works are developed by the creator. Thus, in the presence of transactional barriers in the negotiation process, the doctrine of fair use provides the important feature of enabling dissemination without considerably disturbing creativity. It has now been established that the rule of fair use has progressed as a fair response to market failure as a means of ensuring that socially useful uses are not obstructed. In actuality, however, one of the only reasons of failure of the copyright infringement protection measure is the defence of “fair use” because there is no framework for determining the term “fair use” in Indian copyright law. Quite often socially responsible taxpayers are also not convinced that an act is a fair use or not? In fact, the aim of incorporating “fair use” was completely obvious.
The globalization and added value of the copyright-related industries have, on the other hand, transformed domestic copyright-related property into global property and, on the other hand, made the infringement process like nothing. Any individual from any part of the world can access the electronic resource of any place by clicking the mouse only.
The Copyright Act 1957 did not deal with the issue of electronic copyright infringements in this modern electronic age. The current copyright law in India needs a detailed examination and modification in order to deal with technological advancement. Copyright law is a form of governance of society. The law on ISP liability is ambiguous and vague and facilitates an unfair shift in the responsibility of wrongful users to ISPs, making them the victim of an inefficient legal framework. There is therefore a pressing need to integrate express provisions in the Indian Copyright Act or the Information Technology Act concerning ISPs.
We must go a long way towards realizing the huge potential of information technology to protect copyright from its electronic infringement methods. A great deal depends on the government’s policy of building the required infrastructure to preserve the huge IP market through a proper protection mechanism.
Information Technology Act, 2000, s 79
 Religious Tech. Center v. Netcom On-Line Communications Servs Inc. (1995) 907 F. Supp. 1361 (N.D. Cal. 1995) (17)
. Kabir Sagar, “Protection of Copyright in The Digital Age: The Role And Liabilities Of ISPs In India”, (Legal Services India, 1 June 2015), <http://www.legalservicesindia.com/article/1638/ Protection-Of-Copyright-In-The-Digital-Age-The-Role-And-Liabilities-Of-ISPs-In-India.html> accessed 15 March 2021
. Dr. Shashi Nath “Electronic Infringement of Copyright: A Real Challenge Ahead”, (Global Journal of Human-Social Science Research, 7 December. 2010), <https://socialscienceresearch .org/index.php/GJHSS/article/view/104> accessed 15 March 2021