Copyright Infringement and Liability of ISP: Digital Era
The development and evolution of the Internet is one of the crowning triumphs of the twentieth century's technological breakthroughs and endeavors. What began as a primary tool for the sharing of data and information among a restricted group of scientists and physicists quickly evolved into a forum for the global exchange of knowledge, skill, and information. Distances shrank even more with the onset of Globalization, and the Internet developed as a facilitator of international trade, commerce, and other economic activity. In the context of Intellectual Property Rights, the Internet's remarkable capacity to bridge cultural and other differences can be viewed with skepticism. With the introduction of the internet, a low-cost and widely available substitute for nearly all forms of intellectual discipline has developed. The development has proved to be both a boon and a bane for the IPR. On one side where the reach has widened and easy availability and accessibility has helped people in connecting and accessing contents all over the world but at the same time manipulating, copying and disseminating the work of others has been an easy task. With the introduction of the Internet through the world wide web, the digital revolution swept the world in the 1980s and 1990s. In order to meet the challenges of the Internet to the copyright system, the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT) were drafted in 1996. The treaty discusses the problems that arise when protected content is disseminated over digital networks (such as the Internet). According to the treaty, the W.I.P.O.'s goal is to promote intellectual property protection around the world by cooperation among governments and, where appropriate, collaboration with other international organizations. The World Intellectual Property Organization (WIPO) oversees six copyright treaties and strives to "homogenize state intellectual property laws with the ultimate goal of creating a uniform, cohesive body of worldwide international law."
Since electronic communications became widespread and accessible to the majority of people around the world, political and regulatory authorities have been attempting to determine the most appropriate and effective approach to manage the new cyberspace. The most serious issue with electronic data processing is its regulation and oversight. Regrettably, the tools for monitoring the information flow are inadequate, and it is simply difficult to monitor the global online world.
COPYRIGHT
A copyright is a legal right that is recognized and protected when the work for which it is claimed is authentic and unique. It can include a wide range of artistic pursuits such as music, books, artifacts, cinematographic films, paintings, sculpture, and many more. Because such material is readily available on the internet, there is always the risk that it will be illegally obtained, copied, and spread on the internet. Nowadays, copying and sharing digital information, as well as copying and pasting from a web page and sharing files, is much easier. The majority of the time, sharing files entails the creation of copies. Even routine actions like email and web browsing necessitate the making of copies. Copyright is now facing its toughest challenge ever on the Internet. The first is the ease with which it can be replicated. If one chooses to save this paper, he will have an exact replica of the original. He also has the option of making as many copies as he likes. The benefit of digital media is that it does not degrade with repeated copies. For some, this is both a blessing and a curse. The owner of property rights works is protected by copyright law from others who "copy" or otherwise take and use the form in which the author's original work was expressed. Copyright infringement is the illegal use of works protected by copyright law in a way that infringes on the exclusive rights of the copyright owner.
Section 51 provides that copyright in a work is infringed whenever an individual does something the absolute right to do which is the right of the author as per the Act without even a license from the author or registrar of copyrights or contravenes the terms of a license, or allows for profit a place to be used for distribution of work to the public where such transmission constitutes copyright infringement. When copyright is violated, the owner of the copyright has the right to sue for damages, injunctions, profit of accounts, and delivery up of infringing goods. Although there are no conflicting minds on the importance of safeguarding IPR on the Web in the sake of creators, the enforcement of such rights via this medium is likely to be difficult due to the technological device's sophistication. The enforcement procedures will almost certainly entail the use of pricey and advanced technological gadgets.
Many copyright infringements occur because people are unaware of the laws and the consequences of breaking them. There are also some that willfully transgress in the hopes of going undetected. ISPs are held accountable for such violations of their subscribers' rights. “The proponents of such liability argue that the danger of copyright infringement is an unavoidable side effect of using the Internet. As a result of the principles of enterprise liability, Internet Service Provider, ISPs should internalize losses resulting from that risk as a cost of doing business. The proposal to put up the liability of the copyright infringement on the Intermediaries put forth two opposite arguments. Those who were against stated that ISPs should be held liable because the actively participate and are responsible for scrutinizing the content before publishing it and because they have deeper pockets will compel ISPs to prevent copyright infringement, increase compensation for infringements that do occur, and disperse costs across the Internet community.” At the same time, an understanding of the scope of the culpability is required. The other side of the argument stated that Intermediaries are just messengers and mediators, they are just delivering the content without scrutinizing the content. It would be unfair to place the entire weight on ISPs, and they should be given the opportunity to explain their case and bargain. in addition to this the vastness of the internet and millions of content upload every day, every minute, it is not possible to scrutinize each and every content. However, appropriate efforts must be taken to curtail such copyright infringements, and shifting blame to ISPs is simply one aspect of this ‘determination of culpability' process.
INDIAN LAW ON DETERMINATION OF LIABILITY OF THE ISP’S
Access providers play a critical part in the Internet's operation by offering a variety of services ranging from a dial-up account for residential users to a permanent leased-line connection for commercial use. Nowadays, a typical access provider is a for-profit company that makes money by selling Internet connection to both residential and commercial customers. ISPs (internet service providers) are a type of commercial access provider. There is a perpetrator and a victim in every wrongdoing. The same is true in the case of an online wrongdoing. Transmission of an online communication, on the other hand, can only be accomplished with the help of third parties, especially service providers. As a result, committing a crime over the Internet is impossible without the intentional or unintentional involvement of service providers who support communication. This sparked a heated debate over ISP accountability for copyright infringement by third parties, as well as the scope of such obligation. Why do people sue the ISP for the infringement that has been caused by a third party? To begin with, it's difficult to sue someone if you can't locate them. Internet is so vast and people have their anonymous identities, it is very difficult to pin down someone for the acts when you cannot trace them. Clients who publish infringing materials may be mobile or otherwise difficult to track down, but many ISPs are corporate companies with established locations. As a result, the ISP is frequently lot easier to track down than the person who purportedly posted the allegedly infringing item. Second, the infringers are likely to lack the financial means to pay a large liability judgment. As a result, copyright holders frequently attack ISPs because they nearly invariably have more money than the individual client who is accused of copyright infringement. Section 79 of the IT Act of 2000 addresses the liability of ISP. The liability of network service providers is addressed in Chapter XII of the Act. These clauses, on the other hand, are only statutory safeguards that shield service providers from accountability. The IT Act of 2000 refers to an ISP as a "network service provider," and defines it as an intermediary in Explanation (a) of Section 79. It also defines the term "intermediary" which is defined as "any person who receives, transmits, or saves any message or offers any service with respect to any message on behalf of any other person." under Section 2 of the Act (w). In some circumstances, the Act increased the responsibilities of service providers by requiring them to prove their innocence in order to avoid accountability. This rule further states that no ISP can be held accountable if he can demonstrate that he was unaware of the infringement committed by a third party and that he employed all reasonable efforts to prevent the infringement.
As a result, if the copyright violation is proven under this section, the ISP can avoid liability by proving that:
(a) The ISP was completely unaware of the infringement- In this context, it is important to acknowledge one of the necessary prerequisites for proving ISP responsibility is that the ISP has knowledge. If an ISP can show that he is not responsible, he can avoid being held liable. Actual knowledge or constructive knowledge both are acceptable.
If an ISP is aware that information passing through or being stored on its servers is likely to infringe on another's copyright, he is regarded to have "knowledge" of the situation and is required to take adequate steps to avoid it.
(b) That he exercised all reasonable precautions to avoid such violation- Once it is proven that the ISP has awareness of the unauthorized content, Section 79 imposes a legal obligation on the ISP to take steps to prevent transmission or publication of the content. Expecting an ISP to monitor every single transaction that passes through its networks is not a particularly practical proposition. Allowing the ISP to play a part in pre-censorship is likewise undesirable. On the other side, failing to impose any statutory duty of care would empower ISPs to be careless, resulting in a slew of copyright infringement claims across the Internet.
Both these conditions are very vague and leaves a plenty of room for interpretation and manipulation and escape the liability or on the contrary to make an innocent person liable. Secondly while exempting the ISPs of the liability under section 79, the act has not specified that who will bear the responsibility for such infringement.
The Google and T-Series Case
T-Series filed a lawsuit against YouTube.com and its parent company Google Inc in 2007 for profiting at the expense of a legitimate copyright owner by allowing its users to upload T-Series copyrighted materials without obtaining any license or permission from T-Series. With its rapid development, T-Series took a proactive approach to copyright law and was the plaintiff in this case. Google is well-known for such lawsuits, with its search engine and related searches being the subject of copyright infringement accusations. Google, being cautious, adopts the strategy of settling these disputes.
The facts that led to T-Series' lawsuit was that users of YouTube uploaded some materials on their website www.youtube.com that were protected by T-Series' copyright. T-Series should have taken action against the user who shared such material in the normal course of events. The consumer may be accused of infringing on the copyright under Section 51 of the Indian Copyright Act 1957. However, Section 63 also contains within its scope abetment of infringement. Instead of suing the customer, which would be futile in terms of compensation, T-Series, through its parent company, Super Cassettes Industries Limited (SCIL), filed a lawsuit against YouTube and its parent company Google Inc. in the Delhi High Court, as is customary in such cases. The Delhi Court issued an interim injunction prohibiting YouTube from reproducing, adapting, distributing, contacting, uploading, disseminating, or showing on their websites any audiovisual works in which the SCIL owns exclusive, legitimate, and subsisting copyright, or otherwise infringing in any way. The injunction was issued on the grounds that YouTube and Google benefited financially by making T-Series' copyrighted songs accessible for free on their website, which included advertising, without first obtaining a license or permission from SCIL, which profited from the sale of these copyrighted songs in the market in the form of DVDs, CDs, and other formats.
The arguments used by YouTube is that the content posted on the website is not created by YouTube but by millions of users all over the world, and that it is virtually impossible for Google to filter all of this material. They also agreed to remove all T-Series copyrighted titles from their website if T-Series provides them with the copyrighted titles. However, after all the arguments and interim orders passed it is highly anticipated that the matter will conclude in weighty negotiations taking place between the parties keeping in mind the past record and accomplishments of Google in ably resolving such issues.
CONCLUSION
The Internet's borderless existence necessitates more encouraging relationships with other jurisdictions as well as close collaboration with international organizations. To avoid any unauthorized use, society must be informed about the importance of Copyright rights. The Indian perspective on service providers' responsibility for copyright violation needs to be clarified. The law concerning ISP liability is ambiguous, allowing for an unjust shifting in the responsibility of wrongful individuals to ISPs, making them the culprit of an insufficient legislative framework. The exact function of ISPs in facilitating data exchange with end users is critical to the Internet's growth. Because verifying the identity of the violation is critical, the I.T. Act should include parts that deal with financial component of the activity as well as the relationship between an ISP and a third party. We need changes and amendments in the act and along with that we need consumers and authors to be more careful and cautious while dealing with the content. To achieve effective copyright governance in the digital era, it is vital to ensure that the laws and standards specified in international treaties and conventions are respected at the worldwide platform.
Janhavi Singh,
UPES, Dehradun