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Introduction
The advent of Internet has raised many unprecedented issues that do not
find express solution in the existing Indian legal regime. One of the
most contentious issues associated with the Internets facilitation of
information distribution is the liability of service providers for
transmitting content created by others. The most important right under challenge is the right of
reproduction. In the digital context the copyright works are stored in digital format
and multiplied every time it is used or sent to another person. The
question which arises is whether all forms of reproduction whether
temporary or permanent form a part of reproduction right in the digital
context? Can the service providers be held responsible for violations
that take place in the net of which they may or may not have information? Are their activities like providing access by linking by deep linking,
system catching, framing etc. violations of the rights of reproduction
of the copyright holders? Explaining the role of Internet Service Providers (ISPs) in making
copyright work available to end users over the net, the paper describes
the basis of liability, response of the US legal regime to the issue,
treatment of liability issue in WIPO Internet treaties and finally
studies the Indian law on that regard. It points out the need for a
clear and well-defined liability standard for service providers as an
imperative to the healthy promotion of intellectual property in the
digital environment in the country.
The Basis Of Liability
The liability for copyright infringement rests on three theories- direct, vicarious and contributory infringement. Direct
infringement occurs when a person violates any exclusive right of the copyright owner.
Vicarious liability arises when a person fails to prevent infringement
when he can and has a right to do so and is directly benefited by such
infringement. These two theories are based on the strict liability
principle and a person will be liable without any regard to his mental
state or intention. Contributory liability arises when a person participates in the act of direct infringement and has knowledge of the
infringing activity. The question arises as to which standard should be
applied in order to fix the responsibility of service providers.
Existing International Norm
This issue for the first time caught the attention of the international
community in the WIPO Copyright Treaty, 1996 [WCT]. The right of making
available to the public the work in such a way that the members of the
public may access the work from a place and a time individually chosen
by them was incorporated into the WCT to cover internet communication of
the works. The treaties updated the Berne Convention by incorporating
the existing TRIPS provisions in its folds and granted additional rights to the authors in the context of Internet.
A new right referred to as the right of communication to the public was
incorporated and right of distribution was specifically spelt out. It
also provided for legal remedies against circumvention of technological
measures used by the authors to protect their work. Legal protection
was also granted to rights management information systems used by the
authors while transmitting works in digital environment. It was further made clear that mere provision of physical facilities for enabling or making a communication does not itself amount to
communication with the meaning of this provision. Since there was no
agreement to treat both temporary and permanent reproduction as a part
of reproduction rights in digital format, no specific provision was
included in the WCT in this regard. It was the failure of the
international community due to the pressure from interest groups to reach to a definitive conclusion on the nature
of the liability of service providers and users, that left the international law unsettled and it was left to the respective Nation
States to introduce appropriate provisions in the domestic law to protect the interests of the owners.
Implementation- Us Leads The Way
One of the first countries to legislate on the Treaty provisions was the US through its
Digital Millennium Copyright Act (DMCA) that came into
force in 1998. Before referring to the DMCA it is necessary to refer to
some of the judicial pronouncements of US Courts on the issue.In Playboy Enterprises v. Frena , the Court was called upon to determine the liability of electronic Bulletin Board System operator (BBS) for
the acts of users who had uploaded and downloaded the plaintiffs copyrighted photographs. The Court found Frena liable for violating the
plaintiffs right to publicly distribute and display copies of its work.
The defendant contended that he had in fact removed the photographs from
the BBS when he received the complaint and had since monitored the BBS
to prevent additional photographs of Playboy from being uploaded. The
Court ruled in favour of the plaintiff on the ground that intention or
knowledge is not an element of infringement. This ruling has been criticized on the ground that imposition of strict liability would
compel them to monitor private transmission of their users in an effort
to detect potential violations thereby making their functioning precarious and also open them to the challenge of violation of right to
privacy.In Sega Enterprises v. Maphia , the Courts did not approve Ferna Courts
findings but tried to find service providers liable under vicarious and
contributory liability theories. Following this, in Religious Tech.
CTr. v. Netcom Online Commun. Servs , the Court laid down that the notice of infringing activity to the service provider will implicate him for
contributory negligence because failure to stop an infringing copy from
being distributed worldwide would constitute substantial participation.
Substantial participation is where the defendant has knowledge of the
primary infringers infringing activities and it induces, causes or
materially contributes to the infringing conduct of the primary infringer.
It rejected the argument of the defendant that it was in essence a
common carrier entitled to exemption to strict liability codified in
Section III of the Copyright Act and held that service carriers are not
bound to carry all the traffic that passes through them. It however, did
not go far to impose direct infringement liability on the service provider as it would, in the opinion of the Court, result in liability
for every single server transmitting information to every other computer.
The lead taken by the Netcom Court was maintained by the Courts that
followed it. At the same time the Courts havent been reluctant in
imposing direct infringement liability on the service provider when he
himself was selling the infringing material. In Playboy Enterprises,
Inc. v. Hardenbaugh , where the defendant himself was screening copyrighted
photos in the upload file and then shifting them to the master file for
users, the Court held the defendant liable for direct infringement
because of his direct participation in the infringing activity.After Hardenburgh, the U.S. Congress enacted the Online Copyright
Infringement Liability Limitation Act as part of the Digital Millennium
Copyright Act of 1998. The Digital Millennium Copyright Act (DMCA)
effectively gives legislative backing to the principle laid down in
RTC v. Netcom by codifying its ruling that passive automatic acts shall not
become grounds for a finding of online copyright infringement. Second,
the law clearly spells out the criteria to establish a case of contributory or vicarious copyright infringement against an ISP. Thus,
we see that the U.S. Courts have not granted any general immunity to the service provider but impose liability on the service providers
depending upon the degree of control and knowledge of the infringing
activity.
The Indian Position
The liability of service providers for copyright infringement is not
expressly covered by the Indian Copyright Act. The Information
Technology Act, 2000 exempts ISPs from liability if they can prove that
they had no knowledge of the occurrence of the alleged act, and that
they had taken sufficient steps to prevent a violation. However, the existing provision does not clearly prescribe liability
limits of service providers. For example, if a person makes a representation to a service provider claiming copyright on the material
available on the network, will the service provider be liable if he
fails to take steps within a reasonable time to remove the infringing
material from the network? If the service provider fails to prevent
infringement of copyright in the above circumstances, is the plea of not
having knowledge of infringement still available to him? If the service
provider removes the material from the network in pursuance to the representation made by a person which later on proves false, will the
service provider be liable to the person whose material has been removed?
The Indian position in liability of service providers for copyright
infringement must be made more explicit. The I.T. Act must include
sections that address the financial aspect of the transaction, and the
relationship between an ISP and a third party, because this is vital to
determining the identity of the violator. The American concept of contributory infringement can also be incorporated into the Indian Act
so that if any person with knowledge of the infringing activity, induces,
causes, or materially contributes to the infringing conduct of another,
the person can be made liable. In order to be exempt from liability, the Indian Act requires the
service provider to exercise due diligence to prevent the commission of
copyright infringement. The Act does not provide the meaning of the
term due diligence. If due diligence means policing each and every
aspect of the Internet, it can lead to loss of privacy and can ultimately have a disastrous effect. There is a need for a consensus on
the meaning of the term due diligence because the primary function of
ISPs is to build the Internet, not to play the role of a policeman. If
the behavior of an ISP is reasonable, then that ISP should not be held
liable for each and every activity on the Internet as has been held by
the US Courts.
Conclusion
There is a dying need for express provisions either in the Copyright Act or the Information Technology Act, 2000 prescribing liability of
service providers for copyright infringement in the light of the issues
raised in the paper. Issues concerning ISPs should be taken seriously,
because any hesitation over implementing policies or regulation of ISPs
can prove detrimental to the development of the institution of Internet
as a whole.
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