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OSP / ISP Liability and the Copyright (Amendment) Bill

The Copyright Amendment Bill attempts to create a safe harbour for Internet Service Providers (ISPs) and Online Service Providers (OSPs) in Indian copyright law through amendments to Sections 52(1)(b) and 52(1)(c) of the Indian Copyright Act, 1957 (which would effectively be novated). These provisions would protect websites like YouTube and Yahoo! from copyright infringement allegations in relation to User Generated Content including content uploaded by users such as film songs and other such similar content which are not owned by those who upload them.

The safe harbour is proposed to be established as follows: firstly, it is proposed to incorporate a provision in Section 52(1)(b) which would state that “the transient and incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not constitute copyright infringement.

In addition to this, it has been proposed to include, vide amendments in respect of Section 52(1)(c), provisions which would state 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” would also not constitute copyright infringement. Further, a person takes down allegedly infringing content pursuant to the issue of a takedown notice may require whoever has issued the notice to produce an order from a competent court within 14 days for continued takedown.

Although these provisions have been designed to create a safe harbour, they are not structured in the same manner as the provisions in Title II of the US Digital Millennium Copyright Act, 1996 (DMCA) i.e. the Online Copyright Infringement Liability Limitation Act, contained in Section 512 of Title 17, USC.

It is anticipated that the proposed Section 52(1)(b) would apply primarily to ISPs and that the proposed Section 52(1)(c) would focus on OSPs, and shield them from accusations of copyright infringement in respect of User Generated Content uploaded without their consent, and, presumably, without their encouragement and/or facilitation. There is, however, nothing in the proposed amendments which makes this differentiation clear, and the distinction may be drawn not from the explicit words of the proposed amendments but from the kinds of activities each of these provisions exempts from the scope of copyright infringement.

Interestingly, the proposed Section 52(1)(b) does not make provision for takedown notices, much less make provision for circumstances under which continued takedown may be enforced: what the provision does is create a blanket exemption which would protect alleged infringers provided their activities fell with the scope of the proposed Section. There have been some recommendations which have been made by those active in the digital world suggesting, however, that the proposed Section is not wide enough, and that it should not exempt merely the “transient and incidental storage” but the “transient or incidental storage” of works or performances purely in the technical process of electronic transmission or communication to the public. Presumably, this is not a recommendation which copyright owners would support.

It is unclear why the takedown provisions which are applicable in respect of the proposed Section 52(1)(c) do not also apply in respect of the proposed Section 52(1)(b). Further, the proposed provisions with regard to takedown notices themselves also seem to be of debatable merit.

Firstly, under the takedown provision in the proposed Section 52(1)(c), it appears that any person may send in a takedown notice in respect of any copyrighted content – the copyright owner and his licensees are not the only persons who are eligible to do so. It is unclear how this would work in practice as there appears to be no clause in the proposed provision which would prevent entirely arbitrary third parties which have no interest in a copyrighted work from sending in random takedown notices, and thereby obliging the takedown of allegedly infringing material. (In this connection, it is pertinent to note that the Copyright Act does not define an “interested person” with reference to a copyrighted work although the Patents Act, 1970, does so with reference to patents in Section 2(t).) Although any one complainant may be able to ensure takedown for beyond 14 days only on obtaining a court order as required by the provisions of the proposed Section, a series of complainants (who may, at least ostensibly, have no connection to the copyrighted work) would be able to ensure continued (or virtually continued) takedown for a period which is much longer than 14 days by sending in a series of takedown notices one after the other. Allowing anyone to become a complainant under Section 52(1)(c) appears to open the provision to abuse, unless the person being required to take down allegedly infringing material were able to obtain a declaratory injunction stating that the material was not infringing – a possibility which is in itself unlikely, and without doubt, cumbersome.

Secondly, even in entirely legitimate instances, obtaining a court order within a period of 14 days as required by the proposed Section 52(1)(c) for continued takedown may be a challenging task given how overburdened Indian courts are.

In addition to this, these proposed Sections contained in the Copyright (Amendment) Bill would, in all probability, interact with Sections 79 and 81 of the Information Technology Act, 2000. The provisions in the IT Act are themselves unclear, and have generated a reasonable amount of academic controversy in addition to being the subject of copyright infringement litigation. Considering this, it is entirely unclear what the impact of the proposed Sections 52(1)(b) and 52(1)(c) of the Copyright Act would be.

(This post is by Nandita Saikia and was first published at