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India’s Copyright Bill: Standing Committee On Safe Harbor, Fair Usage & Intermediary Liability

The Standing Committee looking into India’s Copyright (Amendment) Bill 2010, submitted its recommendations to the Parliament yesterday, after a closed room consultation process with multiple stakeholders invited, particularly from the music, films and broadcasting business. (Hat Tip: Spicy IP) The report submitted by this committee is particularly important, given the context that there have been, of late, instances of laws being passed by India’s legislature; In case of  India’s Information Technology Act, in 2008, the standing committe’s recommendations were accepted without debate. Download the report here.

The Copyright (Amendment) Bill 2010 has significant implications for digital businesses (including ours), because it covers ownership of content, licensing of rights, what constitutes copyright violation, whether DRM is illegal, what constitutes piracy, what constitutes ‘communication to the public’, tariff’s for copyright content among others. Importantly, it also covers Intermediary Liability of ISPs and websites, including content sharing sites. First up, we’ll look at the recommendations related to an issue which should concern all websites, ISPs and content owners:

Intermediary Liability, Safe Harbor

Given the context of the infamous case against Baazee.com (now eBay India), in relation to pornographic content being sold via their website, the inclusion of a safe harbor provision was particularly important for Internet businesses in India. This would also cover comments on sites like ours, as well as content uploaded to YouTube. The Internet Technology Act provided for safe harbor for ISPs, but for copyright content, said that it should be government by the Copyright Act. In the initial version of the Copyight Amendment Bill 2010,  the wording suggests that “transient and incidental” storage, referring primarily to caching of content, should not be deemed copyright infringement. Both Ebay India and MediaNama had requested changing the wordings to “transient or incidental”, which would also be applicable to user generated content, which may be incidental, but not transient. This recommendation has been accepted, taking care of the concern related to “unlimited liability for third party actions.”

Fair Usage & Takedown Notices

Section 52 A looked to provide a fair dealing for work (not a computer programme) for private or personal use, including research; criticism or review, in terms of “reporting of current events, including the reporting of a lecture delivered in public shall not constitute on infringement of copyright.” Additionally, the contention was that takedown notices in case of infringement have to be followed up with a court order within 14 days.

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Stakeholder Comments:
– The Indian Broadcasting Federation asked for this to be extended to 90 days.
– The Indian Motion Picture Producers Association suggested court order should procedure should be done away with
– The Motion Picture Association said that “fair dealing” should not include making a copy of a work when accessed from unauthorized sources, or, making a copy of a rented film. They felt that the 14 day period was too long, since “in the case of India the majority of a film’s revenues are realized within three days of its theatrical release. ISPs would be required to act expeditiously upon such notifications.
– Saregama RPG Enterprises said that both the intermediary liability and fair usage clauses would “prove to be a God-sent opportunity to pirates to falsely plead that music files illegally stored by them on their computers, mobile phones etc. are for their private or personal use or for criticism or review.”

Committee Comments: they’ve said that the viability of the 14 day period needs to be reviewed, and not commented on fair usage for personal or private use.

Written By

Founder @ MediaNama. TED Fellow. Asia21 Fellow @ Asia Society. Co-founder SaveTheInternet.in and Internet Freedom Foundation. Advisory board @ CyberBRICS

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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