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#NAMA: Intermediary liability and fair use: what needs clarity in India’s copyright law

“Copyright law is not just about the rights of creators, but it’s also about the rights of society to access the work, and also the right of society to use the works in different manners,” Dr. Arul George Scaria said at MediaNama’s discussion on Copyright and Digital Media. The roundtable was organised against the backdrop of the government’s private consultation to amend the Copyright Act. In the discussion, participants surfaced many gaps in the law that could be filled surrounding fair use and intermediary liability for copyrighted content. The discussion was held on October 30 with support from Netflix, Amazon, and Facebook.

“If you’re putting too much of liability on the side of intermediaries, there would be serious hampering of free speech, and there would also be other casualties. So we need to take a very, very careful approach there,” Scaria said.

What counts as fair use?

  • Are short video apps fair use? When “fair use” is cited as a protection for using copyrighted material, proponents may argue that using a small snippet of content may be acceptable. That’s not so easy when it comes to short video apps like TikTok, which rely heavily on copyrighted tracks for background music. “The jurisprudence on fair use is pretty much established in India in terms of the de minimis principles. Having said that, there is a recent trend in these short video sharing apps. There is a fine line between whether a short video app is an intermediary with safe harbour provisions applying to it, or there is going to be copyright infringement,” said Ujjwala Jeremiah, Associate Director, IP & Digital Economy at the US-India Strategic Partnership Forum.
  • Is “user generated” content really user generated? “I might be making a parody based on an existing video or a photo, I can also make a meme. Like that, we all are engaging in constant creation of so-called user generated content,” said Dr. Arul George Scaria, co-Director of the Centre for Innovation, Intellectual Property and Competition at the National Law University Delhi said. “And if you look at our Indian copyright law, we still do not have much clarity on the question of liability on both, the person who is creating the work as well as the intermediary platform,” Scaria added.
  • Clarifying safe harbour and fair use: In 2016, the Delhi High Court upheld intermediary liability for online platforms and rejected the need for a “general filter” for content, something that was a positive for fair use, in an appeal filed by the social media company MySpace. However, independent researcher Divij Joshi said there remained room for clarity. “The framework for intermediary liability will need to be like relooked, at least in terms of what you expect from intermediaries, which is super unclear right now,” Joshi said. The MySpace judgment does not give clarity even on copyright matters, as some issues could have been cleared during trial, he added, particularly given what the interpretation Section 52 is of intermediaries and issues like fair use, and the fact that there the Copyright Act also has intermediary liability protections apart from the IT Act. “Now you can say that Section 79 of the IT act still provides safe harbour, but where does that leave the specific exemptions for fair use or fair dealing under Section 52 of the Copyright Act? This question is not been answered.”

Defining infringement

  • Where is the line for infringement drawn? Joshi said, “The Copyright Act has self-contained intermediary liability provisions because it also provides for secondary liability, for facilitating profit of infringement of copyright,” that is to say, by abetting copyright violation. “It also provides for non-infringement where you are a mere conduit. And it also provides for non-infringement in case of user generated content to some extent — if you are hyperlinking to content or if you are only hosting it, there is a specific language within Section 52 for that. But it would be important to clarify what this is, and debate where we need to go forward in terms of platform responsibilities for infringing speech,” he added.
  • Industry thinks ISPs shouldn’t get blanket copyright exemption: “The industry view is that there should be more clarification in the law that user generated content website should be made explicitly outside the scope of safe harbours. Because many times the safe harbour provisions are used by these platforms to avoid liability of copyright infringement,” said Pragya Chaturvedi, Senior Intellectual Property Advisor at British High Commission in New Delhi. Chaturvedi was speaking in a personal capacity. “And the ask is that the scope of liability privileges applicable to internet service providers also should be reviewed and only the truly technical and passive ISPs should benefit from the safe harbour provisions and it should not be available at the blanket exemption.” 

Crisscrossing judgements on intermediary liability

The state of intermediary liability: The Information Technology (Intermediaries Guidelines) Rules, 2011 had a provision for “due diligence” to be done by intermediary liabilities, but this provision was read down by the Supreme Court to be limited to complying with court orders and government notifications, Sarvjeet Singh, Director of the Centre for Communication Governance at NLU Delhi, pointed out. “However, we need to realize that they were talking about it in a very specific context and only looking at generally free speech rights and constitutional rights,” Singh argued, indicating that there remained space for further clarity for copyright infringement. He also added that “transient or incidental storage”, protected by intermediary liability, isn’t defined adequately.

  • Per the MySpace judgement, Singh said, “If T-Series does enough to make MySpace aware that there is infringing content on MySpace, then the onus is on T-Series to show that it has done everything it could to make MySpace aware, and if MySpace does not take down that content then it is liable.”
    • Rahul Ajatshatru of Ajatshatru Chambers, who argued for T-Series in the case, said that a provision for takedown notices “exists not in the IT Act, it exists in Section 52 of the Copyright Act. And as you rightly pointed out, it’s got a very crazy condition that you have to back your copyright takedown notice with an injunction order for the content within twenty-one days, and after twenty-one days if there is no order served on the platform, then yes, the platform is under no obligation to continue the takedown, you can resume serving the content.” He added, “So, I think this requires another round of litigation in court, probably at least a division bench or a bigger bench, to look at all these provisions of law and reconcile. “
    • Ajatshatru argued that copyright infringement should be looked at differently depending on whether it is a “blind” uploading of an entire work, like a film or a song, versus a segment.
  • In a case involving the water purifier brand Kent RO, Singh said, “Justice Rajiv Sahai Endlaw specifically said that you cannot ask intermediaries to proactively filter content, because that would change their nature from passive intermediaries who are just allowing you to upload content, to actually taking part in looking at what content is there and what isn’t, which, if we look at the strict definition of Section 79, they should not be doing.”
  • “Then obviously there is the famous case of Christian Louboutin in which the Delhi High Court has put out twenty-six parameters that they say are specifically for e-commerce, under which it will be decided whether an e-commerce platform is a passive or active player. And if they are passive, they will get intermediary liability protection, but if they are active, they won’t.” In Amazon v. Amway, a Delhi High Court appeal case, it was ruled that selling a product without the trademark holder’s consent doesn’t amount to infringement, Singh pointed out, saying that the judgement relied heavily on the Shreya Singhal precedent to give safe harbour to such intermediaries.

Takedown durations and over-censorship

  • Is 30 days too much time for takedowns? “The Ministry of Electronics and Information Technology has issued a notification that acknowledging notice [for copyright takedowns] is sufficient action and under the rules you have to take it down within a period of thirty-six hours of receipt of note. And they say that if you acknowledge the notice, the time gets extended up to a month,” Ajatshatru said. “So go and ask Karan Johar if his film is found online and he sends notice, is he willing to wait for one month for them to act and takedown the film or not.”
  • Disincentivising “algorithmic” takedowns: Scaria was critical of overzealous takedowns by platforms that weren’t strictly required legally. “We are living in an era of algorithmic copyright infringement,” he said, resulting in intermediaries immediately removing any content that a copyright owner flags as an infringement. “And they don’t have an incentive to restore the content. So we need to change that incentive structure also. And ideally, in my mind, we should also impose costs on intermediaries who are not following this particular provision, that is, restoring content if the copyright owner is not able to bring a court order within a specific period of time,” This is even more relevant, he said, in context of The Ken’s recent article showing that “even organizations like Byju’s are using copyright infringement and this provision for taking down content and without any rational basis. So I think that’s something which we need to take into consideration.”
  • Overt censorship: There is a lot of overt censorship by these large platforms, and there has been proper documentation of over-censorship of copyrighted material, Singh said. “I think there is a need for a bigger bench either of the High Court, but probably at some point the Supreme Court to harmonize all these judgements. As someone who works on consumer rights, I would say Amazon versus Amway makes a lot of sense that you can’t just inform the intermediaries and you need to get a court order. I also acknowledge that if there is large scale piracy, maybe the standard of MySpace versus [T-Series] makes sense, where the onus is on the holder of copyright to prove that they had given actual notice. So I think in terms of what happens, I would say there is a need to clarify this.”

Quotes have been edited for length and clarity.

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Written By

I cover the digital content ecosystem and telecom for MediaNama.

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



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