Intermediary Liability: What IMI said in its submission to MeitY

The Indian Music Industry’s response to MeitY’s Draft “The Information Technology [Intermediaries Guidelines (Amendment) Rules] 2018” outlines its concerns about the definitions of an intermediary, safe harbour and the content takedown notifications. These are all the important points the association raised in its submission. The notes are paraphrased unless explicitly quoted.

General: 

• The association asks MeitY to “set out clear rules” on primary and/or secondary liability for intermediaries that “engage or whose services are used in copyright infringing activities.”

Definition of intermediaries

• The IT Act, 2000 defines “intermediaries” broadly, and the 2018 Rules should take care that “liability privileges and/or other benefits and obligations of the regime are not applied to types of service for which they are not intended.”
• IL limitations “only make sense if the underlying liability for the relevant wrongful or tortious act is clearly established.”

On Safe Harbour, the reinstatement of the deleted Rule 3(4)

• “Any intermediary safe harbours should be limited to technical, automatic and passive intermediaries and on the condition that they operate in the manner expected of a diligent economic operator to prevent the availability of infringing content on their platforms.”

IMI says that entities like YouTube which “bear little resemblance to essential infrastructure providers” have relied on safe harbours, depriving copyright holders of fair revenues. This also gives these services an unfair advantage over other digital music services which license directly from right holders. It cites the ‘Value Gap’ market distortion which states that “active user upload services are (i) engaging in copyright restricted acts and (ii) cannot benefit from safe harbours for the content they make available, is at an advanced stage.”

• Safe harbour legislation “must include a specific obligation to take down content if the intermediary becomes aware of facts or circumstances, or should reasonably have been aware of facts or circumstances, from which the infringing activity is apparent.”
• “This type of “red flag” knowledge should not only arise from a take down notice sent by a right holder but should be characterised by reference to steps a diligent economic operator would be expected to take in the circumstances.”
• “In addition, “notice and take down” should mean “notice and stay down”: on receipt of a notice, service providers should be obliged to take reasonable steps to ensure that all other copies of, or URL links to, infringing content: (a) are also removed; and (b) do not appear in the future.”

The association wants the re-introduction of the deleted Rule 3(4) of the 2011 Rules. It states that this rule was deleted due to the SC judgment in the Shreya Singhal v. Union of India dated 24.03.2015. “The judgment in Shreya Singhal v, Union a/India, however, only dealt with offensive messages falling within Rule 3(2)(b) of the 2011 Rules and the consequent punishment under Section 66A of the Information Technology Act, 2000.

The IMI said that the judgment does not “deal with hosting of infringing content on the internet” and that the “2018 Rules in its existing form will dramatically increase digital piracy in India.”

• The deletion of Rule 3(4) of the 2011 Rules in 2018 Rules gravely harms the interests of IMI Members, as well as the whole of the creative content industry.

On Rule 3(3) and 3(9)

• IMI proposes that Rule 3(3) of the 2018 rules should include the words “or otherwise provide access to” after “host or publish” in line 1.
• A further sentence at the end of Rule 3(3) should clarify that the exemption applies only if all such activities of the intermediary are of a technical, automatic and passive nature and that it does not apply to any service playing an active role in respect of content on or passing through its service.
• IMI proposes that the safe harbour provision at section 79 of the Information Technology Act 2000 should be amended to read “…if he proves that the offence or contravention was committed without his knowledge AND [replacing OR] that he had exercised all due diligence…”

The removal of the notice and take down provision

• “IMI is extremely concerned that the deletion of Rule 3(4) of 2011 Rules from the 2018 Rules will facilitate digital piracy in India.
• Rule 3(4) of the 2011 Rules mandates intermediaries to take down any content falling within Rule 3(2) pursuant to a notice given by an affected person.
• Thus, IMI Members can issue a notice to intermediaries to remove infringing content as specifically listed in Rule 3(2)(d) of the 2011 Rules (replicated in the 2018 Rules).”
• “Rule 3(3)(b) of the 2018 Rules does not allow IMI Members to issue a notice to the intermediaries to remove infringing content”

For Sub rule 3(9) of the 2018 Rules, the IMI suggests:

• “Firstly, IMI believes that the provision would be clarified (and the creative industries would immensely benefit) if the rule explicitly specified that ‘unlawful content’ under Rule 3(9) includes inter alia content which infringes intellectual property, for example, by adding the words “of the type specified in sub rule 3(2)” at the end of the Rule 3(9) provision.”
• “Secondly, IMI is concerned that intermediaries may escape legal liability owing to the lack of an enforcement provision for Rule 3(9) in the 2018 Rules.
• IMI strongly believes that the 2018 Rules must make intermediaries liable for each and every violation of Rule 3(9) as well as every other rule of the 2018 Rules.”