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Intermediary Liability Amendment: Counter Comments on Copyright Issues

By Roshni Sekhar and Siddharth Manohar

The counter-comments submitted to MEITY on the draft amendment to the Intermediary Guidelines Rules, 2018 covered a range of issues, including the copyright issues in relation to Rule 3(2). Star India had in the initial comment period argued in favour of requiring intermediaries to deploy tools to proactively disable access to content deemed as unlawful. The Indian Music Industry (IMI), in their original submissions, had argued that platforms should be required to take down content on receipt of notice from copyright holders. These arguments have been countered by Software Freedom Law Center in the subsequent counter comment period, while IMI has reiterated its stance, finding support in submissions from Reliance Jio. An issue-wise breakdown of these comments is provided below.

Technology-based Tools under Rule 3(9)

SFLC, in its counter comment argues that the requirement for intermediaries to determine the legality of content violates the SC order in Shreya Singhal. The submission points out that YouTube’s “Content ID” system for detecting infringing content has been criticised for excessive censorship, blocking original content. “It should also be noted that automated systems are not efficient enough to determine the legality of the use of copyrighted works, especially for fair use exemptions. Such a determination must be made by the judiciary. Introduction of a provision that would make intermediaries liable for violating Rule 3(9) is beyond the scope of these Rules and would result in excessive delegation of legislative power.”

The Indian Music Industry reiterated its stance on the deployment of technology-based automated tools under Rule 3(9) of the draft Rules. The submission recommends adding “infringement of intellectual property” under the definition of “unlawful content” under Rule 3(2). It recommends the further addition an enforcement provision in the Rule to hold intermediaries liable for violation of the Rule.

Definition of Unlawful Information should include copyright violations, says Star

Star India, in its counter comment recommends that Rule 3(9) of the draft Rules be amended to insert a clarification that ‘unlawful information’ refers to information mentioned under Rule 3(2), including information which ‘infringes any patent, trademark, copyright or other proprietary rights’.

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SFLC’s counter comment with respect to copyright cites Myspace v. Super Cassettes to argue that intermediaries cannot be the arbitrators of legality of copyright. The Delhi High Court has held in this case that “if an intermediary is tasked with the responsibility of identifying infringing content from non‐infringing one, it could have a chilling effect on free speech.”

Widening Value gap

The Endretta has stated in their submission that the tech Industry has grown at the expense of content industry for decades. As a result of content being uploaded on platforms like YouTube by users, these platforms refuse to negotiate agreements with rights owners for licensed content on fair terms, which results in the widening “value gap”. “To determine copyright infringement, content uploaded by a user can be compared with a database of copyrighted content. The technology for this, albeit inaccurate, still exists. However, in contrast, building detection algorithms for determining the legality of content with no comparators is extremely onerous and difficult.”

‘Copyright-infringing content’ over ‘unlawful content’

Cyber Peace foundation and CCAOI suggest that copyright-infringing content is already regulated comprehensively under Section 52 of the Copyright (Amendment) Act, 2012 and Rule 75 of the Copyright Rules, 2013. They further suggest that the term “unlawful content” remains vague, suggesting instead the phrases ‘copyright-infringing content’ and ‘information listed in Rule (2)’.

IAMAI recommends that intermediaries be required to strengthen their mechanism/guidelines to counter digital piracy on a best effort basis. The submission is in favour of requirements of due diligence, and maintenance of good hygiene on their platforms, particularly with respect to copyright infringement.

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