LIABILITY OF INTERMEDIARIES AND COPYRIGHT INFRINGEMENT: A COMPLEX AFFAIR
The most hotly debated issue in terms of impact of digital media on copyright law is the determination of intermediary liability for infringing content posted on their platforms. Online intermediaries have faced the ire of copyright owners, even for infringement by third-party users on their platforms. Due to the uncertainty on their liability, intermediaries tend to over comply with copyright infringement complaints given by right holders affecting legitimate speech. Unfortunately, the Indian regulatory framework has muddled the issue of intermediary liability for online infringement and this legal uncertainty is likely to have a negative effect on the right to free speech online. In this piece, I seek to analyse this issue and suggest a plausible approach that can be adopted by the government to bring clarity to the jurisprudence on intermediary liability in cases of copyright infringement by third-parties.
INTERMEDIARIES AND SAFE HARBOUR PROTECTION
An intermediary can be construed to mean a person or entity that receives stores or transmits on behalf of another person and includes telecom service providers, network service providers, internet service providers, search engines, online payment sites, online-market places, etc.[i] In effect these include Google, YouTube, Facebook, Twitter, etc. Section 79(1) of the IT Act states that an intermediary shall not be liable for any third party content shared on their platform. This broad exemption is qualified by a number of factors. These include that the intermediary must not initiate, select or otherwise modify the communication; that it must observe due diligence while following its duties under the act, and observe government guidelines in this respect. Moreover, the exemption does not apply if the intermediary has “conspired or abetted or aided or induced” the commission of the unlawful act. If the intermediary even after the receipt of actual knowledge or on being notified by the appropriate Government that any content hosted by the intermediary is unlawful fails to expeditiously remove or disable access to that content loses its immunity.[ii]
This process is known as “notice and takedown” mechanism as stipulated under the Information Technology Act, 2000.Thus Section 79 provides “safe harbour protection" to intermediaries against copyright infringement claims and immunises the intermediary against any unwarranted liability due to the content created by users, provided that such intermediaries fulfil the conditions laid down in this section.
UNCERTAIN INTERMEDIARY LIABILITY AND ITS CHILLING EFFECTS ON FREE SPEECH
Intermediaries may not have a direct interest in the protection of legitimate speech and have economic incentives to avoid liability for third party content, inducing them to ‘over-censor’ legitimate forms of speech in the absence of a clear judicial determination of what constitutes ‘unlawful information or content’.[iii]
Due to the uncertainty on their liability, the intermediary platforms tend to over comply with copyright infringement complaints. Several intermediaries such as YouTube, etc., take down content immediately on receipt of any notice by anyone, without requiring proof of rights over the alleged infringed content. One of the incidents in which these Takedown notices stifled legitimate speech was during the John McCain’s presidential campaign who asserted that “numerous times during the course of the campaign, our advertisements or web videos have been the subject of YouTube takedown notices regarding uses that are clearly privileged under the fair use doctrine.” This shows that the YouTube takedowns have been misused to silence legitimate speech.[iv]
This loophole has also been utilised recently by WhiteHat Jr in silencing dissent and criticism against it.[v] Pradeep Poonia who made videos to review/comment on the advertisements and marketing campaigns of WhiteHatJr faced multiple YouTube Copyright Strikes and his channel and posts were taken down. As per Youtube’s fair use policy, works of commentary, criticism, research, teaching, or news reporting will all be considered fair use. Even the Copyright Act has an exemption, where one can reproduce the content for reviews under Section 52.[vi] However, companies are abusing this Content ID system of YouTube to silence legitimate criticism against them and claim that the burden to take down infringing posts lies with the intermediary itself, not the copyright owners. This has led to “unwarranted private censorship”, a chilling effect on the free speech of citizens and curb on creativity and innovation. Therefore, a mechanism should be introduced to punish false copyright claims or copyfrauds to prevent filing of numerous frivolous copyright complaints. In order to resolve disputes on takedown requests the intermediaries should have grievance redressal mechanisms in place.[vii]
AUTOMATED FILTERS AND ITS LIMITATIONS
Recently the Indian Government notified that under Rule 4(4) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 the intermediaries should deploy ‘technology-based measures’ to proactively identify and monitor unlawful content / information.[viii] In other words, this Rule imposes liability on intermediaries, which mostly rely on user-generated content, to adopt certain automated technologies which will act as “upload filters” [ix] i.e., recognise and filter work created by someone other than the copyright holder.
Mandating active monitoring by intermediaries impinges upon the safe harbour protection provided to intermediaries in the case of MySpace v. Super Cassettes Industries [x].In this case it was held that MySpace (intermediary) cannot be liable for third party content unless it had ‘actual knowledge’ of the specific infringing content from the copyright owners. It loses its safe harbour protection only when it fails to expeditiously remove such infringing content upon such notice and thereby limited the liability of passive intermediaries in cases of third-party copyright infringement. The burden of proof to establish actual knowledge on the part of the intermediary lies on the owner of the copyright. [xi]
Also the intermediaries cannot reasonably be expected to monitor and filter the lawfulness of millions of uploaded videos in the ‘virtual world’, even with the use of automated systems.[xii]Filtering Technologies have its own limitations with respect to their accuracy, as they lack the ability to judge legal uses such as parody, memes, remixes ,critiques, humour etc. and can hardly substitute human judgment.[xiii] YouTube’s Content ID system proved to be ineffective both for failing to identify copyright infringement and incorrectly filtering legitimate content.[xiv]These filter mechanisms will in effect function as “censorship machines” affecting online free speech and free flow of information.[xv] Moreover, such filtering technologies would be considerably expensive, both in terms of money and resources, placing small players in a disadvantaged position.[xvi]
The Indian Government should take steps to amend the Copyright Act, 1957 to clarify the scope of intermediary liability for copyright infringement. The term “intermediary” should be defined under the Copyright Act, as defined in the IT Act, to avoid any further legal uncertainties. Given the unique nature of online intermediaries any law on intermediary liability must also take into account the commercial feasibility of intermediaries to conduct commerce, so new alternatives such as Complaints forum should be established in place of automated filters. Therefore, a balanced approach should be taken to protect the freedom of expression of users and freedom of intermediaries to conduct business while also providing legal protection to copyright owners in the digital age.
[i] Section 2(w) of the Information Technology Act, 2000 [ii] Section 79 of the Information Technology Act, 2000 [iii] Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet , The Centre for Internet and Society , April 27th 2012, (Accessed on 25th March 2021), https://cis-india.org/internet-governance/chilling-effects-on-free-expression-on-internet#:~:text=Intermediary%20Liability%20in%20India%3A%20Chilling%20Effects%20on%20Free%20Expression%20on%20the%20Internet,-The%20Centre%20for&text=The%20results%20of%20the [iv] David Sohn, Campaign Takedown Troubles: How meritless Copyright claims threaten online political speech , Center for Democracy and Technology, September 3rd 2010, (Accessed on 20th March 2021), https://cdt.org/wp-content/uploads/pdfs/copyright_takedowns.pdf [v] Pankti Mehta, WhiteHat Jr and the curious case of disappearing dissent, Forbes India, October 22nd 2020, (Accessed on 10th March 2021), https://www.forbesindia.com/article/take-one-big-story-of-the-day/whitehat-jr-and-the-curious-case-of-disappearing-dissent/63627/1 [vi] Section 52 of The Copyright Act, 1957 [vii] Intermediary Liability 2.0 – A Shifting Paradigm, Software Freedom Law Center, March 2019, (Accessed on 10th March 2021), https://sflc.in/sites/default/files/reports/Intermediary_Liability_2_0_-_A_Shifting_Paradigm.pdf [viii] http://egazette.nic.in/WriteReadData/2021/225464.pdf [ix] Glyn Moody, Upload filters: Heads – they’re illegal;Tails – they’re illegal, CopyBuzz, February 17 2018, (Accessed on 10th March 2021), https://copybuzz.com/copyright/upload-filters-heads-theyre-illegal-tails-theyre-illegal/ [x] MySpace Inc. v. Super Cassettes Industries Ltd. ,48 PTC 49 (2016) . [xi] Viacom International, Inc. v. YouTube, Inc.,WL 2532404(2010). [xii] Martin Hvidt Thelle, Closing the Gap – Indian Online Intermediaries and a liability system not yet fit for purpose, Copenhagen Economics, March 2014, (Accessed on 9th March 2021), https://www.copenhageneconomics.com/dyn/resources/Publication/publicationPDF/1/251/0/Closing%20the%20Gap%20-%20Copenhagen%20Economics_March%202014.pdf [xiii] Malachy Browne, YouTube Removes Videos Showing Atrocities in Syria, The New York Times, August 22nd 2017, (Accessed on 9th March 2021), https://www.nytimes.com/2017/08/22/world/middleeast/syria-youtube-videos-isis.html [xiv] Daphne Keller, Internet Platforms - Observations on Speech, Danger, and Money, Hoover Institution Press, October 2018, (Accessed on 9th March 2021), https://www.hoover.org/sites/default/files/research/docs/keller_webreadypdf_final.pdf [xv] Tiffany Li, Beyond Intermediary Liability: The Future of Information Platforms, The Information Society Project Yale, February 13th 2018, (Accessed on 9th March 2021), http://tiffanyli.com/wp-content/uploads/2018/08/Beyond-Intermediary-Liability-Workshop-Report_FINAL.pdf [xvi] Antonio Tajani, Article 13 of the EU Copyright Directive Threatens the Internet, June 12th 2018, (Accessed on 9th March 2021), https://www.eff.org/files/2018/06/12/article13letter.pdf