Experts & Views
Intermediaries v. Copyright Holders: The Delhi High Court Wants to Protect Both [Part I]
By Smitha Krishna Prasad
The Delhi High Court recently reversed a long standing order which implied that intermediaries such as social media platforms would be liable for third party content. Part I of this two-part series, discusses the background to the case, some relevant legal provisions, and the earlier order of the Delhi High Court. Part II delves into the recent order of the Delhi High Court, and its impact on intermediary liability.
In July 2011, a single judge bench of the Delhi High Court issued an interim order in the case of Super Cassettes Industries Ltd. v. Myspace Inc. & Anr. The bench effectively held Myspace (a social media website) liable for infringement of copyright by third party content posted on its platform. This decision was considered to put a dent in the protection of internet based businesses and intermediaries. Recognising the far-reaching implications of such an order, a division bench of the Delhi High Court has now reversed this decision.
This post focuses on the background of the case and the 2011 order of the Court, and some of the concepts discussed which may impact the liability of intermediaries and the safe harbours afforded to them.
Myspace is a social media platform, which operates by allowing users to upload content, and view content posted by other users. Super Cassettes, more popularly known as T-Series, is a music label, and production house which owns rights to a large repertoire of Indian music.
Issues before the court
T-Series alleged that Myspace was infringing its copyright by allowing infringing copies of T-Series’ work to be posted on the Myspace platform. T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages.
The primary issue before the court was whether Myspace, should be held liable for third party content posted on its platform.
T-Series argued that (i) infringing copies of several of its works were available on the Myspace platform, (ii) that Myspace was aware of such infringing material, and (iii) that Myspace was guilty of primary infringement of T-Series’ rights.
Myspace on the other hand argued that the content was user generated, and it had no control over the content. The terms in its user agreement restricting users from posting infringing content could not be held to mean that Myspace was aware of specific instances of infringement. Further, although Myspace did take a limited license from its users to modify the content, such modification was limited to an automated process to insert advertisements. Myspace also stated that it had rights management and notice and takedown processes, which T-Series could use to protect its rights.
Important legal provisions
The arguments of the parties and the orders of the court largely focus on three provisions of law:
- Section 51(a)(ii) of the Copyright Act, 1957 (Copyright Act), which provides that copyright is infringed when any person “permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work”. However, an exception is provided, where the person was not aware and had no reasonable ground for believing that such communication would be an infringement;
- Section 79 of the Information Technology Act, 2000 (IT Act), which provides that an intermediary will be provided with a safe harbour, and not held liable for third party content if
- The intermediary does not initiate the transmission of content
- The intermediary does not select the receiver of the transmission
- The intermediary does not modify the content
- The intermediary undertakes certain due diligence requirements as prescribed
It further states that to be exempted from liability the intermediary must remove or disable access to the content when it becomes aware that the content is unlawful
- Section 81 of the IT Act, which states that nothing in the IT Act will restrict any person from exercising rights granted under the Copyright Act.
Decisions of the court: Interim injunction awarded in 2011
In 2011, the court found that Myspace did ‘permit for profit’ a place i.e. the Myspace platform, to be used for the communication of infringing material. Further, the court also found that Myspace was aware of possible infringement, as evident by the rights management tools it used. In relation to the IT Act, the court reasoned that section 81 of the IT Act overrides the protection granted under section 79. The court also took cognizance of the license taken by Myspace to modify the posted content, and the modifications undertaken in terms of insertion of ads. It stated that as a result Myspace did not meet the criteria for protection under section 79.
An injunction was given requiring Myspace to, among other things:
- Ensure that no works owned by T-Series would be uploaded on its platform without making enquiries as to ownership / rights to the work.
- Ensure that as and when the T-Series informed Myspace of any of its works available on the Myspace platform, such work is removed within 1 week of receiving such notice.
This order was seen as a cause for concern, not just for Myspace but for all social media platforms and intermediaries, as well as civil liberties such as the right to free speech. Part II of this series will discuss the Delhi High Court’s recent reversal of this order, and its impact in the larger context of intermediary liability.