On our request, the Internet and Mobile Association on India, which represents (as of last year) at least 77 Internet and Mobile companies in India, has shared with us their comments on the Copyright (Amendment) Bill 2010. A brief summary of their comments (as summarised by us) is as follows, and we’re pleasantly surprised that quite a few points resonate with our recommendations:
1. Intermediary Liability: The IAMAI has suggested that the Copyright Act must limit the liability on Internet intermediaries, protecting them from unust claims, treating ISPs as “mere hosts and conduits”, with no obligation to monitor third party material, nor any general obligation to police infringing activity. They’ve also suggested that an ISP should be held liable only if it has knowledge of the infringing activity and “has failed to remove the infringing material on receiving a lawfully sufficient notice from the concerned content owner or if it induces, causes, or materially contributes to the infringing conduct of another.”
2. Take Down Mechanism: “Internet intermediaries should not be held responsible for words they didn’t write, pictures they didn’t take, or videos they didn’t create. One method to balance the concerns of rights-holders is that in any event before an ISP is held liable an effective Notice and Takedown (“NTD”) mechanism should be followed. This consists of a scheme where the parties hosting content agree to remove content in case of a legitimate notice by the content owner. It has the advantage of reducing high costs of litigation by providing a quick redressal mechanism to address content owners’ legitimate complaints.” The IAMAI suggests that a notice and takedown mechanism should be implemented, to enable the safe harbor provision, and at the same time penalize the content owners for abusing the notice process; they want a counter-notification process, and “ultimately dependent upon timely judicial review.”
ED: The IAMAI apparently hasn’t specifically addressed the situation created by section 52 (1) (c) , where an intermediary can require that the entity filing the take-down-notice to produce a court order within 14 days.
3. Criminal sanction against ISPs for infringement: The IAMAI suggests that ISPs do not have knowledge of the end users’ activity on their platforms, nor have the means to control the end users conduct. Thus, they suggest that blanket criminalization of copyright infringement would have unwanted implications, and that criminal sanctions should only apply to direct infringers, not ISPs. They’ve also suggested that criminal penalties should be contingent upon certain accentuating factors such as a finding of wilfulness or conduct that is driven by commercial advantage or private financial gain.
Note: MediaNama’s comments on this issue go a step further – we’ve requested that instances of copyright violation by individuals in the digital space should be deemed a civil offence, and not a criminal offence; that only copyright violation on a commercial scale be treated as a criminal offence.
4. Fair Dealing and Copyright Exceptions: The IAMAI has requested that section 52(1)(a) of the Copyright Act to expressly add parody and satire, as well as “to add another clause allowing for other uses, including transformative uses, that do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the rights holder.”
5. Access for the disabled(Sections 31B and section 52(1)(zb) of the Copyright (Amendment) Bill, 2010): The Copyright (Amendment) Bill proposes that copyright work be allowed for adaption, reproduction, issue of copies of any work in any format accessible to persons with visual, aural or any other disabilities, with the primary objective of enabling persons with such disabilities to access copyrighted works as flexibly and comfortably as pe