Apar GuptaI recently authored an article on the The Firm Blog on the effect the passage of the Copyright Amendment Act has on ISP and Intermediary liability in respect of sections s.52(1)(b) and 52(1)©. Extracting some of it below, for the complete article click here.
Cold Comfort for Internet Intermediaries
Ever since the judgment in Super Cassettes Industries v. Myspace Inc. was pronounced by the Delhi High Court, the liability net for Internet companies which facilitate the transmission, hosting and distribution of user generated content increased tremendously. The court in the abovementioned case ruled that the safe harbours contained under Section 79 of the Information Technology Act, 2000 did not extend to cases of copyright infringement and would not exempt their liability. Here the newly christened Section 52(1)(b) and Section 52(1)©, provide Internet companies with some comfort.
Section 52(1)(b), provides that transient or incidental storage of works made in the technical process of electronic transmission or communication to the public shall not constitute an infringement of copyright. Section 52(1)© further provides that the transient and incidental storage for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy also shall not constitute an infringement of copyright. Broadly, this provision would provide protection to Internet intermediaries only when they are providing transient or incidental storage; they have reasonable grounds for believing that such storage is not of an infringing copy and the rights holder has not expressly prohibited it. It is not out of place to state, that the phrasing of the section does leave much to desire in terms of precision and specificity.
The proviso to Section 52(1)© further complicates matters when it states that, when such a person gets a written notice from a rights holder that such storage is an infringement then that person shall refrain from facilitating the access for a period of twenty-one days. This take down continues beyond the twenty-one days if the rights holder has a judicial order which records such. If the rights holder fails to get such a court order within twenty one days of the notice then the access is restored. This is obviously a provision which will promote litigation immensely and if the objective was to keep Internet intermediaries out of court, that has surely not come out in the law.
It is also relevant to note that the section does not provide for the time period within which the Internet company has to act. The lack of such specificity and a fully fleshed notice and take down procedure will only make more copyright infringement litigation rise. Unless the Government sees an increase in stamp cost earned through the filing of such Suits as a net benefit, there is no excuse for such legislative lethargy in omitting to draw up a detailed notice and take down provision.