I. Introduction
The world is constantly emerging and growing into a chain of connected networks through the internet. People are more technical advance and attached to technology than ever. This also means that every minute new thousand of videos & products are getting uploaded on Youtube and Amazon by their copyright owner. But what if there is a third person who is using these ‘Intermediaries’ and infringing the real owner’s copyright.?
In clear words let’s say Mr. Beast who is a well-known Youtuber uploaded a video on youtube and the very next minute I downloaded that video and upload it on my Youtube channel; will Youtube as an intermediary will also be liable for copyrightinfringement along with me? Or What if I am selling a book written by any other author claiming it was mine on Amazon;what is Amazon’s liability in this case? If your answer is ‘NoLiability’ wait a while.
II. Who Is An Intermediary?
Every existing app available on the play store cannot be classified as an intermediary there are some preconditions.There is no reference to it in the Copyright Act, of 1957 but According to the Organization for Economic Cooperation and Development (OECD), “Internet intermediaries connect or execute transactions between 3rd parties on the internet.”
In the Indian context, an Intermediary has been mentioned in The Indian Information Technology Act, Section 2(1)(w).
“Intermediary, concerning any particular electronic record, means any person who receives, stores, or transmits that record on behalf of another person or provides any service with respect to that record, and includes telecommunication services providers, network service providers, internet service providers, web-hosting telecommunications companies, search engines, online payment sites, online outlets, online market places, and cyber cafes,” the act states.
III. Intermediary Liability Laws In India
The Copyright Act of 1957 and the Information Technology Act of 2000 are two different laws that contain key clauses addressing intermediary responsibility. In addition, the owners have the option to file lawsuits to get an injunction against internet sites that are most likely to host illegal information.
The Indian Copyright Act of 1957 was modified in 2012, and Section 52 detailed a number of situations in which an exemption could be granted for copyright infringement. Intermediary acts are immune from copyright infringement under Section 52(1)(c) unless they are aware or have reasonable grounds to believe that such storage is an infringing copy.
“Safe-harbour provision” is a clause included in Section 79 of the Indian IT Act. All intermediates are now included in the definition of an intermediary, which was expanded by the 2008 amendment. In contrast to offenses covered by the IT Act, the intermediaries were protected from all illegal actions only if they were aware of them.
IV. Procedure Of Due-Diligence
A significant amount of due- diligence must be performed by intermediaries to comply with Section 79 of the IT Act. In accordance with Part II of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, intermediaries are required to exercise “Due Diligence”and to establish a “Grievance Redressal Mechanism.”
The Information Technology (Intermediaries Guidelines) Rules 2021 establish certain specific procedures that must be adhered to by such intermediaries, including:
1. The requirement to warn users of the computer resource not to transmit any information that, among other things, could be harmful, obscene, or defamatory;
2. The commitment to “take action within 36 hours” upon learning that material on their portal has been transmitted in violation of law;
3. Information that violates the law governing intermediaries must be disabled.
V. Recent Landmark Cases About Intermediary & Copyright
In the case of Super Cassettes Industries Ltd. vs. Myspace Inc. and Anr, the court found the intermediary responsible for copyright infringement for permitting the viewing and sharing of images and music that belonged to Super Cassettes because the violator was aware that such content existed on their website. In the Kent RO Systems case, the same choice was made.
As a result, when it comes to determining culpability, knowledge of the intermediary is crucial in India.
In a recent decision, the European Court of Justice (ECJ) sided with YouTube and determined that it and other intermediaries cannot be held liable for copyright infringement unless they had actual knowledge that the protected content was being used illegally on their platform and failed to take prompt action to remove it or block access to it.
The Madras High Court handled a copyright infringement case involving educational materials uploaded on a third-party platform in Fermat Education v. Sorting Hat Technologies P. Ltd. The uploading of content to the Platform was controlled by the Defendant (Unacademy). In addition, it demanded payment from other parties for content uploaded to its platform. The Court came to the conclusion that the defendant was not acting as an intermediary because he had considerable control over the posted material and was also taking monetary payment for the same.
VI. Position In USA & Europe
The Communications Decency Act and the Digital Millennium Copyright Act (the “DMCA”) are two statutes that deal with intermediary responsibility in the USA. The facilitator of the “interactive computer service” is exempt from legal liability for any content created by a third party on its platform under Section 230 of the Communications Decency Act. Since it places no obligation on such intermediaries to take any action against the offensive use of such platforms, the protection is sufficiently broad. In the famous Doe v. Myspace case, Myspace relied on the Act’s provisions to escape responsibility for failing to verify the users’ ages, which left minors vulnerable to sexual predators.
The DMCA, in contrast to the Communications Decency Act, offers a conditional “safe harbour” clause rather than an outright denial of culpability and obligation. In the event that any unlawful content is discovered by the intermediary or at the request of the copyright holder, it provides for a suitable “notice and takedown” procedure. In the recent case of Viacom International Inc. vs. YouTube Inc., the DMCA was thoroughly examined, and the court gave intermediates more protection while placing the entire burden of proof on the copyright owner to show that the intermediary had knowledge of the illegal behavior. The court absolved YouTube of any responsibility in the aforementioned case since Viacom was unable to demonstrate that YouTube knew about the specific Copyright Infringement on its platform.
Talking about Europe, since it imposes a legal obligation on the intermediaries for the type of content hosted on their e-platforms, the EU’s legislation regarding intermediaries is the source of many conflicts. Online intermediaries are held liable for user-generated content if it violates someone’s copyright under Article 13 of the EU Directive on Copyrights (Article 17 in the revised version). Additionally, in the EU, memes, and parodies may not be considered to violate copyright.
Vii. Conclusion & Way Forward:
Since the Indian legislation does not specify the types of content that are prohibited by the law, there is little clarity regarding the law on intermediaries. Furthermore, it is unclear what steps the intermediary should take when it encounters such content. This is the reason why many intermediaries have taken matters of censorship into their own hands, which could be considered an infringement on the constitutionally protected right to free speech and the expression of users.
Answering our above question that whether or not Intermediaries will be liable for copyright infringement the answer is not a clear-cut ‘Yes’ or ‘No’ as it depends on the knowledge of the Intermediary that whether or not they have the Actual Information regarding the content being posted on their platform.
The “Safe Harbour Provision” allows intermediaries like YouTube and Amazon to protect themselves from direct liability in situations where their users have broken the law while still adhering to all applicable laws in the country, such as Section 79 of the IT Act read in conjunction with the Copyright Act.
Having said that, appropriate legal action should be taken against the offender to put an end to the infringing behavior. Additionally, to balance the interests of the owners and prevent the owners from losing their economic rights, a strict mechanism must be in place to prevent these intermediaries from serving as a breeding ground for infringing copyrighted works.