Liability and Copyright Protection of Internet Intermediaries
Copyright has always been directly connected with the technological world and the developments under it. The emergence of the digital world by the end of the twentieth century threw a new challenge to the copyright law. The Digital Technology has made possible the replication of physical material into a digitized format. This poses several problems in the traditional IPR system. Similarly, the range of contents in the websites are so vast that it requires varying levels of copyright protection. Never before has the owner’s information been so volatile, that it requires special care and protection in terms of legislation for the information. The main focus here lies with the Internet Intermediaries, the service providers to millions of internet users, who have come under the purview of several legislations to safeguard copyright.
Internet Service Providers (ISP) and the search engines are collectively called as the internet intermediaries since they function as a platform for all the internet activities.
Section 2(w) of the Information Technology Act, 2000, defines ‘intermediary’ as:
“intermediary” with respect to any particular electronic message means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message 1.
These internet intermediaries came under the ambit of the copyright law with the contention that they aid in the infringement of copyright.
Copyright Act, 1957:
Traditional Copyright has been governed by the Copyright Act, 1957. As the Act mentions, it was enacted at a time when the world was in complete oblivion to the internet. As per the act any person who permits the infringement of copyright is criminally liable. The ISPs had contended that this legislation does not apply to them as they are just service providers and have no say in what the internet users post in the internet. The ISPs made a point mentioning that it was impossible for them to monitor all the data which travels through their servers. This lead to the inclusion of a specific legislation for ISPs in the Information Technology Act, 2000.
ISP liability under Information Technology Act, 2000:
Internet Service Provider and the Search Engines are collectively called as intermediary in the Information Technology Act. Section 79 of this Act makes the intermediaries not liable for copyright infringement in certain cases. The Intermediary has to prove that the offence or contravention was committed without their knowledge and they have no role to play in the offence or assure that all due diligence was exercised to prevent the commission of such contravention.
Exemption from Liability:
The intermediaries can claim exemption from liability by the following two factors, under the Information Technology Act.
- Lack of Knowledge
- Exercise of Due Diligence
Lack of Knowledge – The Intermediary can escape from liability if it could be proved that they were not aware of the copyright infringement. This is not possible if a notice has already been served to them to remove a particular infringing material and they have not complied with the notice.
Due Diligence – The other area where the intermediary can escape is by exercising Due Diligence. When necessary care is taken to avoid infringing material to exist in the internet, the intermediary can claim innocence from their part in terms of the offence committed.
Though the Traditional Copyright law made the internet intermediaries liable for copyright infringement due to the offence done by a third party, the modern IT Act has practically made the intermediaries not liable with having due consideration to the technologies. The Intermediaries act just as a platform and they have no share in the infringement of copyright. The two-main points required for them to come out of liability are Lack of Knowledge and Due Diligence. Lack of Knowledge is self-explanatory but Due Diligence has not been defined in the Act. Thus the service provider taking necessary level of precaution itself becomes Due Diligence which makes them not liable under Copyright Infringement.
- S, 2(w) IT Act, 2000 ↩