It is our opinion* that India’s new IT Act 2008 (Amended) incorporates a safe harbor provision, which single handedly changes the countrys approach to user generated content and piracy of copyright content on the web and mobile. Please note that though the Act has been passed by both houses of Parliament (unfortunately, without any debate), it is yet to be notified by the President of India, and hence hasn’t become a law yet.

What is a Safe Harbor?

A safe harbor provision in the US’ Digital Millennium Copyright Act ensures that platforms are not held liable for the content on their site, or content that they are inadvertently providing access to, if it cannot be proven that they actively conspired in having that content put up. That situation changes when a company is notified about the violation, wherein they can act upon dealing with the specific violation within a certain timeframe. The Indian IT Act incorporates a similar provision.

Our interpretation* of section 79 of the the IT Act is as follows: “An intermediary is not responsible for any third party content or links made available by him, as long as he doesn’t select the content, the receiver or modify the information; Has done due diligence, and removes the information on receiving actual knowledge, or being notified by a government agency.” Do take a look at the detailed act here.

The Impact of Safe Harbor: Content And Comment Liability

More than any other company, the incorporation of Safe Harbor is critical for Google in India. From what our sources have told us, the company has been lobbying the Indian government for around 2 years for the incorporation of the Safe Harbor provision. 

Google is currently facing a lawsuit in the Delhi High Court, filed by India’s largest music company T-Series, over violation of copyright. YouTube hosts content which has been uploaded by users – on some occasions, entire films that have been uploaded in 10-15 parts of 10 minutes each. The company has also been taken to task about hate communities on their social networking site Orkut. In a similar vein, this impacts companies like Rediff, with its video sharing portal iShare, MySpace, online game aggregation sites, perhaps even torrent sites which allow users to upload links to copyrighted content. 

It also means that publications like ours, and any others that allow user comments, cannot be held liable for those comments. Online and mobile chat rooms will not be responsible for the comments that users make.

Google’s Take On The IT Act

Responding to our question on Safe Harbor at a conference, this is what Rishi Jaitly, Policy Analyst at Google had to say:

“Our substantive point of view on Section 79 is as follows: Section 79, as I see it, in statement 1, offers unequivocal immunity to intermediaries, and to the earlier question on safe harbor, that is how I’m reading it”

“A more serious concern is the situation where your immunity can be stripped. As soon as you receive notification, effectively, your immunity is gone. Our view is that in rules and regulations process, it should be clarified that the expectation of the intermediary should not be to unequivocally, in all settings, no matter where the request is coming from, to always produce user data, and to always remove content. Instead, the obligation of an intermediary should be to drive any notification to a rapid legal conclusion.”

Audio excerpts of Jaitly’s comments:

 
Due Diligence?

The law does not define what Due Diligence is, but mandates that intermediaries are not liable if they have done adequate due diligence. These details are apparently still being framed by the government, and will impact all types of intermediaries – including us. If the due diligence is too stringent – for example, mandates that once a particular audio/video has been published by a user, others should not be allowed to publish the same – will lead to an increase in technology costs, and in case the content cannot be identified and slips through – the intermediary will be held liable.

How it affects copyright content owners

We believe* that the IT Act puts the onus of identification and notification of copyrighted content on content owners. Depending on the rules and regulations regarding due diligence, it does mean that content owners will have to allocate resources for monitoring user publishing of copyright content on the web. This can lead to an increase in costs. This also means that the liability for copyright content published on sites like YouTube and MySpace will not lie with the platform, but with users. So Copyright content owners will now have to chase down individual users, in case they wish to take legal option – much like the RIAA does in the US. Platforms (Intermediaries) were easier, larger targets.

Recommendation

We would suggest that all potential intermediaries and copyright content owners contact officials in the Ministry of Information Technology, and offer their inputs on the finer details of what due diligence should be done. These are yet to be finalized.  

* Disclaimer: We are not legal experts, and laws are open to interpretation. Please do consult your lawyer for adequate due diligence and a legal opinon on the impact of the IT Act on your business, before taking any decisions based on the IT Act.