Practice Area

Copyright Infringement on the Internet

Author: Devna Arora

Internet is an ideal medium for the artists to exercise their creativity. Copyright exists in all original works from the time they come into existence even if they are not registered. Ubiquitous nature of the internet has made it vulnerable to copyright violations. With the growth of technology there is difficulty in determining whether the content has been uploaded with or without permission. Cases of direct as well as vicarious copyright infringement have been on a rise.

An Internet Service Provider (“ISP”) faces the double-edged sword of potential lawsuits from both the owner and the subscriber. This comment analyses ISP’s liability in light of contradictory provisions under the IT Act.

Section 79 of the Information Technology Act (“IT Act”) provides immunity to intermediaries if the conditions under clauses (2) and (3) are satisfied. However, the noble intent of the legislature to give protection to intermediary is undone by the proviso under Section 81. Section 81 was meant to give an overriding effect to the act, but the proviso states that there will be no effect on the remedies under the copyright act. It implies that even though the intermediary is exempted under Section 79 of the IT Act it can be prosecuted under the relevant provisions of the Copyright Act. Making the protection offered under IT Act completely redundant. Intermediaries will be flooded with law suits if vicarious liability is attributed for every online copyright infringement.

Some relief has been offered to the intermediaries by insertion of Section 52(1)(b) and 52(1)(c) by the recent 2012 amendment in the copyright act. These provisions cover situations where the content is held in transient or in incidental storage of a work. However the onerous nature of Intermediary Rules 2011, has also been reflected in these provisions, wherein awareness or reasonable grounds of believing that their exists an infringing copy require them to take down the same.

Though there have been efforts to limit the potential liability of ISP’s , the legislative intent is however questioned when proviso to section 81 seems to defeat the purpose of section 79.