Limitations of Copyright Law in Cyberspace
The advent of the internet has led to the creation of an anarchic place called the cyberspace, which uncovers limitations of Copyright Law. Introduction: Limitations of Copyright Law in Cyberspace With the dawn of information society and the consequent advancement of information technology at a rapid rate, the intellectual property law has to be modified and integrated in… Read More »
The advent of the internet has led to the creation of an anarchic place called the cyberspace, which uncovers limitations of Copyright Law. Introduction: Limitations of Copyright Law in Cyberspace With the dawn of information society and the consequent advancement of information technology at a rapid rate, the intellectual property law has to be modified and integrated in a way to acclimatize with the pace. Internet which is one of the most revolutionary innovations of all times has made...
The advent of the internet has led to the creation of an anarchic place called the cyberspace, which uncovers limitations of Copyright Law.
Introduction: Limitations of Copyright Law in Cyberspace
With the dawn of information society and the consequent advancement of information technology at a rapid rate, the intellectual property law has to be modified and integrated in a way to acclimatize with the pace. Internet which is one of the most revolutionary innovations of all times has made it convenient for every person to find any desired data on their mobile phones or computers. Concurrently, the advent of the internet has led to the creation of an anarchic place called the cyberspace, which hampers and poses huge challenges for copyright protection.
Copyright infringement becomes difficult to be traced to a specific jurisdiction due to the ubiquitous presence of the internet. So, we can see that if on one hand internet provides a business with a humongous platform to expand its reach and thereby growing the revenues, on the other hand, the very advancement has resulted perilous for intellectual property like copyright.
In an era where reproducing a mirror copy of the music, movies and books are possible in mere mouse clicks, securing the interest of copyright holders in the cyberspace is extremely necessary. In the case University of London Press Ltd v. University Tutorial Press Ltd.[1], Justice Peterson had emphasized the importance of copyright by saying, “what is worth copying is prima facie worth protecting.”
I. Liability of Internet Service Providers
Intellectual Property is susceptible to rampant infringement in cyberspace, the majority of which are a challenge to identify and determine the address of. Currently, the digital literature such as e-books are witnessing a surge in the acceptance on cyberspace due to easy accessibility provided the price the author seeks and security against the unscrupulous piracy and copying.
Authors are even seeking to ensure control of the use of their work before they make available the property in the digital media. Yet it is difficult to determine if the copyright regime is equipped to strike a balance between social benefits and private incentive.
The copyright holders are holding the internet service providers (ISPs) legally liable for allowing copyright infringement since it is inherently not possible to enforce their rights against each individual internet user. It is not even impractical to hold the ISPs responsible as they are in a position to police the internet. Yet, on the other side, the ISPs are merely the intermediary or carriers akin to telecom companies and thus, should be provided with some limitation from liability with respect to intellectual property violation.
One of the distinctive functions of ISPs are to lay out connectivity software engaging a central server such as live sharing programs or internet messenger services. Further, software which does not need a central server to work is called a peer-to-peer networking system. It is these novel functions of ISPs that are the most susceptible to copyright infringements.
There are three theories upon which the liability of a copyright breach rests and they are – direct, contributory and vicarious infringement. When a person exclusively infringes the copyright of another person’s intellectual creation then it amounts to direct violation. Now, when an individual fails to obstruct copyright violation, even though he is vested with the right to do so, in such cases vicarious infringement of copyright arises. Finally, contributory infringement takes place when a person participates or has knowledge of the violation. Now, the dilemma arises as to in which category will the liability of the ISPs fall in amongst the aforementioned ones.
ISP liability does not indeed exist in India and moreover liabilities are drawn up in such a manner that the actual delinquents committing the infringement might be on a pedestal to flee liability. Since World Wide Web can be accessed via ISPs only; it is practical to break the chain at the beginning of the entire cycle. Therefore, it is imperative to restrict the immunity provided to ISPs by virtue of Section 52 (1) (b) of the Indian Copyright Act, 1957 in order to develop an efficient diminution of copyright violations in cyberspace.
II. Legal Ramifications of copyright violations
In the past, there have been quite some judgements that have addressed the issue at hand. In 2017, a Finnish court had rendered an important decision holding liable the founders of Pirate Bay which is a bit torrent website supplying an index of digital content of software and entertainment media. Similarly in the US, a circuit court in the case of BMG v. Cox Communications[2] propounded the “willful blindness test” according to which a person shall be liable when the circumstances prove that he has purposely ignored the obvious.
The court observed in the case when the internet service provider has reasons to believe that its customers might be engaging in violation of copyright and thereby fails to prevent such unlawful act, it shall be guilty of contributory violations.
On the contrary, the Indian courts have enjoined ISPs in many instances to put an end to the online piracy but never really implicated them. In 2017, the Madras High Court in the case Prakash Jha Productions v. Bharat Sanchar Nigam Limited[3], ordered a number of ISPs to deactivate user access to sites which enabled users to access copyrighted works. The court in this order exercised an excessive blanket ban curtailing the public access to all the websites and not the ISPs who were the entity facilitating the entire infringement.
In a recent similar case Star India Pvt Ltd v. Moviestrunk.com and Ors[4], the Delhi High court found guilty several websites that were found illegally streaming the movie “Mission Mangal” prior to its release. Yet again the court directed the ISPs to block to the defendant’s websites.
Likewise in the case of Ht Media Limited & Anr v. Www.the worldnews.net and Ors.,[5] the Delhi high court directed the ISPs to disable the users to access the accused website. This situation makes it necessary to set up an appropriate standard to ensure that infringement is curtailed or nipped in the bud itself and not reach a stage where the public access to several websites has to be deactivated.
Further, following the US standards will ensure that the ISPs are compelled to create a structure to tackle breach by users without the requirement of the court to order constraints on several websites.
On the other hand, Indian courts adhere to the John Doe Orders or Ashok Kumar orders to indict anonymous parties to copyright infringement. This, however, may not be competent as a pervasive measure to curtail copyright infringement on cyberspace. Moreover, there is also a likelihood that certain innocent websites, might be disabled because of the lack of certainty to circle out the infringing parties.
III. Indian Copyright Act, 1957
Section 63 and 63A of the Indian Copyright Act, 1957 lays down the penal punishments for first-time offenders and repeat offenders respectively. But the aforementioned Sections do not indict an ISP. According to Section 52 (1) (b) which entails that “storing work in the technical process of electronic transmission or communication to the public” limits the liability of the ISPs since they are mere intermediaries.
Likewise, Section 52 (1) (c) lays down provision for intermediary immunity except for circumstances wherein they are “aware or have reasonable grounds for believing that such storage is of an infringing copy”. This provision is undesirable with respect to the rights of copyright holders as the conclusive engagement of an intermediary is very challenging to be proven in case of copyright infringement.
The concept of deactivating websites to curtail infringement has been termed equivalent to “whacking moles” in Australia, implying that the ramifications would be insignificant as the owners of the same would move forward to creating a new rogue website reproducing the same data elsewhere.
Moving forward, as the streaming services like Netflix and Amazon Prime in India takes pace, the need to secure the rights of a creator of an artistic work or software has increased. As mentioned above the “willful blindness” test propounded in US must be incorporated in the Indian copyright regime in order to inculcate a stricter legal system competent to take head-on any unscrupulous entities making available an individual’s intellectual creation with his authorization.
Additionally, the ISPs upon gaining knowledge of any illegal activity of the user must take steps towards containing infringement by deactivating access for certain days instead of disabling the websites in entirety.
Further Section 79 of the Information Technology, 2000 subject to the amendment in 2008 adds to the agony of the copyright holders with respect to the liability of ISPs in the cyberspace. Section 79 entails, that an intermediary is not accountable for any third party communication link, data or information made available or hosted by him.
The non-obtante clause at the beginning of the provision “Notwithstanding anything contained in any law for the time being in force” augments the immunity of the service providers corresponding to their liability mentioned in other existing statutes (for example liability as laid down in the Copyright Act, 1957).
It is relevant to read proviso to Section 81 of the IT Act along with Section 79 as it says, “nothing contained in this Act shall restrict any person from exercising any right under the Copyright Act, 1957 or the Patents Act, 1970”.
A bare reading would insinuate that the protection provided under Section 79 does not extend to copyright infringement. However, it is imperative to interpret the provision taking into account the objective for which it was introduced in the Act and that is to ensure a horizontal approach to the intermediary liability in India.
It appears that the amendment to Section 79 has been heavily borrowed from Article 12-15 of the European Union Directive which intends to establish lucidity with regards to the rules for liability for copyright infringement.
The entire idea behind the amendment to section 79 would be defeated if Section 81 is allowed to exercise an overriding effect over it and thereby narrowing the scope of immunity entitled to the intermediaries in Section 79. Therefore, Section 79 shall have an overriding application over the proviso appended to Section 81.
It is, therefore, important to strike a harmonious interpretation of Section 79 and proviso to Section 81. Alternatively, we can interpret Section 81 which mentions “restrict any person from exercising any right” instead of “restrict the rights of any person” to be a right to the copyright holder to seek court intervention.
This means that an intermediary cannot claim that a court is incompetent due to lack of jurisdiction to adjudicate a matter by virtue of Section 79. This interpretation is important to abstain from defeating the objective of the amendment and to ensure the purpose of the Act. Nevertheless, better clarity will be reposed on the provisions subsequent to a judicial pronouncement in this regard.
IV. Conclusion
The rise in the application of the internet to find every other information has seen a surge and simultaneously created cyberspace for copyright infringement. Cyber technology offers new modes of commercialisation or copyright infringement by individuals and business firms.
These new modes have provided both opportunities and a field of threats to be tackled considering the intellectual property rights of the creator. Also, the magnitude of threats is unprecedented due to the presence of technological viability of the delinquents equipped with skills to commit online piracy just by a click.
This calls for a reform of the Copyright Act to curtail the infringement by holding responsible any entity either participating, abetting, aiding or having the knowledge of such violations. India should recognize ISP liability and implement stricter rules to enforce the rights of the copyright holders in cyberspace.
There exists a lack of international acknowledgement of principles with regard to copyrights in cyberspace and thereby giving scope for digressive domestic standards.
[1] [1916] 2 Ch 601
[2] BMG v. Cox Communications No. 16-1972 [4th Cir. 2018]
[3]Prakash Jha productions v. Bharat Sanchar Nigam Limited 2017 SCC OnLine Mad 29061
[4] Star India Pvt Ltd v. moviestrunk.com and Ors, MANU/DE/0585/2020
[5] Ht Media Limited & Anr v. www.theworldnews.net and Ors., MANU/DE/0563/2020
