Apar GuptaThis is a long post as it extracts the legal provisions, if you are just interested in the analysis, please skip to the end.
Copyright Rules, 2013 and Internet Intermediaries
This post examines the issues which emerge from the recently notified Copyright Rules, 2013 for internet intermediaries in India.
Internet Intermediaries are essentially companies which provide online services which facilitate transmission of user generated data. Often this data is the subject of copyright owned by a person other than the User who initiates the transmission. Due to this there is often the concern that the internet intermediary may be held liable for copyright infringement which originates due to the illegality of the User.
In this context the recent amendments under the Copyright Act, 2012 provide for an exemption from liability. The procedure for this is defined under the Copyright Rules, 2013.
Copyright Amendment Act, 2012
As many know that the Copyright Amendment Act, 2012 amended the existing law to bring in a provision to exempt liability of internet intermediaries for copyright. The relevant provisions contained in the Amendment Act are Sections 52(1)(b) and 52(1)© which provide for a notice a takedown mechanism when an online service provider or an intermediary is providing for “transient or incidental storage”.`1`
This legal provision is formulated on the principle, that if the intermediary is passive and secondly it takes down the content when it is notified that it is infringing then it will not be held liable.
These text of Sections 52(1)(b) and 52(1)© is available below:
https://docs.google.com/file/d/0B_-V5K_jBhEXa1NtTXRTX2FfajQ/preview
You can even download it here.
These provisions set the high brow principles of exemption of liability for intermediaries but do not spell out the procedure and the specifics. These details which are often left to delegated legislation formed through rules are fleshed out in Rule 75 of the Copyright Rules, 2013.
Copyright Rules, 2013
As stated before Rule 75 of the Copyright Rules, 2013 define the procedure for intermediaries to avail this exemption. Rule 75 is available below:
https://docs.google.com/file/d/0B_-V5K_jBhEXa1NtTXRTX2FfajQ/preview
You can even download it here.
How a Rule 75 takedown will work
On a broad level, the rules contemplate that the Copyright owner has to give a written notice to the Intermediary under Sub-Rule (2), after which the Intermediary has to take down the content within 36 hours. It is important to stress that the written notice should mention the location, i.e. the specific URL where the work is being made accessible from.
This take down of the content needs to be confirmed by the Copyright owner within 21 days of making the complaint. This confirmation is through by procuring a court order which mentions the infringement of the work.
If the Copyright owner fails to procure such a court order then the Intermediary can do two things. Firstly it can restore access to the content which was taken down. Secondly it is not obligated to respond to such further takedown notices for the work which is at a specific location.
Problems with the Amendment Act
Let me preface any criticism with a compliment to the Copyright Office which has drafted the rules. As per me, given that the Copyright Act itself set the boundaries within which the Rules (which are the delegated legislation could be made) could be made, the Rules reflect a balance between the competing interests of owners and users.
In many ways the inadequacies of the rules can be traced to the original sin of the parent enactment. The first and the most prominent is with respect to the scope of the exemption available to the different types of intermediaries. Rule 75 carries forward the language of Sections 52(1)(b) and 52(1)© whereby it allows the exemption from liability only available to, intermediaries who facilitate, “transient and incidental storage of work for providing electronic links, access or integration”.
The obvious problem is that the categorization is quite narrow. Many intermediaries even provide permanent storage of data based on user request. They would naturally fall outside the ambit of protection.
Then is the issue of semantics or as lawyers term it, interpretation. The terms, “transient” or “incidental” have not been defined in the enactment. By a lack of such statutory precision the results of application of this provision become unpredictable.
Practically, it may mean, that a copyright owner may assert that a Intermediary does not qualify for the statutory protection since the copyrighted work was not hosted in a “transient” or “incidental” capacity. This can now only be settled through litigation and judicial determination, which is not the most efficient way to determine legal rules.
Issues with Rule 75
Firstly, the biggest omission under Rule 75 is the absence of a counter notification system. A counter notification system essentially allows the content to be accessible even after a notice has been received by the intermediary for copyright infringement. Under it on receiving a take down notice, the intermediary provides a copy of the notice to the User who uploaded the content. On receipt of the notice if the User does not respond, access to the content is disabled.
However, the User has the option to disputing the notice. On disputing the notice, the content stays up. Here the liability is shifted from the intermediary directly to the User and is consistent with the broader principles under Rule 75. The absence of such a system is clearly problematic and can lead to a chilling effect where the User has no option to dispute the notice from the very beginning.
Secondly, the mechanisms built to discourage frivolous take down notices by Copyright Owners deserves some comment. Rule 75 states that the take down notice will mention the place, i.e. the URL where the work is hosted. After the notice is sent the owner has 21 days to procure a court order confirming the veracity of the notice. If such an order is not produced then the Intermediary can put the content back up and is not obligated to respond to further requests to take down the content on that specific URL.
This structure, is aimed at preventing the intermediary from exercising any determination and going by the representations of the owner. Hence, the URL as opposed to the work itself becomes important. Please consider, that the same work/content can be posted on multiple URLS’s.
Also important to bear is that a mandatory court order will enforce a check on frivolous and overbroad requests for take-down of content. However this check may not be as strict as it appears. Such a court order will be in the nature of a interim injunction and while a court may inquire as to the prima facia satisfaction of infringement it may not get into a deeper inquiry on issues such as fair use.
It is also important to consider that the Intermediaries are under no obligation to repost the content if such a court order is not produced by the owner. This is as, intermediaries are private platforms who have their own terms for users. Now even if the owner, does not send a Court Order, the intermediary may still keep the content down. This may not be due to a breach of its terms, but may just be a function of passivity. This will destroy the incentives built to check frivolous take down notices if there is a general pattern of not reinstating the content. The owners will no longer be forced to approach a court or to get an order.
Finally it would be out of place not to mention that there is a mismatch between the present rules and the Information Technology (Intermediary Guidelines) Rules, 2011. The Information Technology (Intermediary Guidelines) Rules, 2011 under Rule 3(2), state that an intermediary will not be liable if it takes down certain content. Such content includes a complaint for copyright infringement. Under these Intermediary Rules there is no obligation on the Intermediary to restore access to the content.