‘Actual knowledge’ of ISPs required to impose liability: DHC

The Delhi High Court recently ruled that ‘actual knowledge’ and not ‘general awareness’ of internet intermediaries is required to impose liability on them for infringement with respect to a specific copyright work.

The Court was entertaining an appeal filed by MySpace against the grant of interim injunction in favor of T-series whereby MySpace was restrained from hosting on its website all of T-Series copyright works.

After a thorough review of Sections 51(a)(ii) of the Copyright Act and Sections 79 and 81 of the Information Technology Act respectively, a Division Bench of the Court said, “”proviso to Section 81 does not preclude the defence of safe harbor for an intermediary in case of copyright actions. Accordingly it is held that Sections 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously.”

“Mere suspicion is insufficient; and similarly an apprehension is not enough. Here again would it be reasonable to expect a defendant/content host to sift through millions of videos or audio files to form a reasonable belief that certain specific data infringes copyright of someone? The requirement is to give specific information to the content host or the website (MySpace) that infringement occurs with respect to the specific work. A general or vague description of the works would be insufficient as this then leaves room for MySpace to rely guesswork as to what content has to be removed. Therefore, the onus is upon the plaintiff to give detailed description of its specific works, which are infringed to enable the web host to identify them”, the Court opined.

The Court further said that to attribute knowledge to the intermediary industry would mostly likely lead to its shutdown, especially where content is of this magnitude and size. Closure of website and business would inevitably follow, for instance, if messenger services like Whatsapp or social media portals like Facebook or Twitter, (given the number of users registered with these service providers as well as the volume of information being broadcasted/ “forwarded”), were held liable for each infringement.

The Court said, “Section 79 grants a measured privilege to an intermediary. However, that would not mean that the rights guaranteed under the Copyright Act are in any manner curtailed. All Section 79 does is regulates the liability in respect of intermediaries while the Copyright Act grants and controls rights of a copyright owner.”

About DSLegal

A full service international law firm based in New Delhi with an office in Chicago, USA.
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