We’re not sure if MySpace still has a presence in India, but they certainly do have legal representation: last Friday at the Delhi High Court, I witnessed arguments being made by T-Series against social networking site MySpace violation of copyright, with T-Series content being uploaded on the website by its users. Apparently, MySpace had present arguments based on the US’ Digital Millennium Copyright Act (DMCA), and suggested that the IT Act (Amended) 2008 also provided a safe harbor to intermediaries.
According to the safe harbor provision, “intermediaries”, essentially entities like ISPs which allow the transfer of data, sites like eBay which allow sale of goods, and websites with user generated content, like MySpace and YouTube are not held liable for content uploaded or transfered by users. However, arguing on behalf of T-Series, lawyer Amit Sibal said that the legislators in India did not replicate the DMCA in India, instead, according to section 81 of the act, brought copyright content in the digital space under the ambit of India’s Copyright Act.
This is in contrast with the DMCA, which puts the onus entirely on the copyright owner to initiate action, and allows platforms and publishers to be free of liability, though they have to honor take-down notices for removal of copyright content. The business of sites like MySpace, Sibal argued, is to provide this service which allows uploading of copyright content, and monetize it with advertising; the content has economic significance for the website. He added that the IT Act does not prevent courts from preventing or terminating copyright infringement.
With digital copyright content on the web being governed primarily under the Copyright Act, and intermediaries not being granted a safe harbor, the Copyright amendment bill introduced in the Indian Parliament last week becomes all the more significant.