Internet Service Providers and Copyright Protection
The world today is advancing at an extremely fast pace where each individual is connected to the other-even-after sitting far across the globe through the internet. It is a commendable channel which is being used to exchange information and has become a medium of interaction between common public and copyright owners. With the spread of such a medium, there arose liabilities on the internet to attain various implications with respect to copyright law which will take it beyond the widespread reach of data to an infringement of such ownership in an instance. There was an urgent task at hand for the lawmakers globally to form a regime of liabilities which fits all the criterions of internet to avoid any such infringement.
Since the introduction and advent of the concept of a global networking system “World Wide Web”, there has been a significant increase in controversial matters and spread of tensions across the globe. The Cyberspace suddenly became a whole matrix of opportunities, convenience, advantages which gave huge utility to the people but also, posed an instant threat of various kinds of liabilities on these people along with the service providers incharge for the provision of such networking systems. Such liabilities have become a big issue for various governments across the globe considering the introduction of a new criminal space to be taken care of along with other aligned liabilities put down on the Internet Service Providers. The internet is basically a whole network of various packet software applications brought in together and placed under protocols known as Transmission Control Protocol or Internet Protocol (hereinafter as TCP or IP).
Introduction
This liability of the internet service providers has been evolving since the past 10 years at the international level. The discussion on the issue started with emerging aspect of copyrights and with the widespread use of internet when people started disregarding the ownership of a particular source and using it for their personal selfish gains which is entirely against the concept of a copyright protection. It was first brought up as a concern in the Berne Convention2 (Article-11) which later became the main provision to have an international liability impact before 1996. The provision has, till-now, given the right to the copyright owner to choose and give the right to authorize the broadcasting of the work to the service providers. This has been evolving provided with the confusion which revolves around the word ‘broadcasting’3, but essence of the liability has emerged where the breaching party along with the broadcasting party (ISPs) are made liable by law.
This paper aims at-setting out-various legislations which discuss online copyright infringement by subscribers, highlighting alongside the role and liabilities of the ISPs. In doing so, the scope of the study expands from the evolution of copyright at an international level, the DMCA4 and Bernes Convention and then talks about the various liabilities of ISPs in cases of online copyright infringement.
Analysis
A Comparison on the Understanding of the term ‘Internet Service Providers’
There are several roles which a networking system can play based on its functions which can range from home user dial account to a broadband network system. A traditional access provider today is a business access provider. Organization earnings from the marketing of home and commercial consumers of Internet service. This supplier of commercial access is widely regarded as ISPs.
A consumer needs an ISP and a communication medium to facilitate the stream of data to and from the device in order to access the web. ISP, delivers resources such as ISPs to the customer
The web, e-mail, list resources, newsgroups as well as other extra features, such as hosting service and design, make the role of the technological web ever more popular.
The Digital Millennium Copyright Act5, 1998 (DMCA) in the United States describes' service provider 'in two ways:
(i) “Section 512(k)(1)(a)”6 'a person providing, without alteration to the quality of the material as sent or received, the delivery, provision of connections for online interactive systems to work between various pointers as issued by the user
(ii) “Section 512(k)(1)(b)”7 'a data provider' is, thus, “a provider of online services or connexons’ to the internet or an owner of the facilities.”
In a general sense, the DMCA defines a service provider to include unions and other entities to provide their students, professionals, researchers, etc. with Internet access.
A 'service provider' is described by United Kingdom’s law as 'any entity offering a service to the data society.'8 Service of the digital age includes “any service usually rendered for pay and benefits, at a distance, by means of electronic processing facilities and data storage, promotes individual of the service user.”9
The Indian Law is very broad in sense when it comes to Copyright and infringements thereof and cannot be brought in the restrictive scope of Internet service providers. The basic defining nature of the word “intermediary” is supposed to have and involve business related as well as non-professional works, and the scope of the definition is further broadened by the words given in the IT Act as “or provides any service with respect to that message.”10 All functions and duties of an ISP are listed under Section 7911 and it restricts the use of the term in any other manner and including it in any other categories which so exist for the purposes of classification.
What are ISP Liabilities? What is the need?
A suspect and a survivor are included in any unjust act. The same will be true of any criminal act made over the internet. However, it is only through the intervention of private entities, including service providers, that the delivery of online interaction can be made possible. Therefore, without deliberate or accidental intervention of service providers who allow contact to take place, the commission of an error which is criminal in nature over the Internet cannot occur. This awakened the common discussion on the responsibility of ISPs for third party copyright violations and the scope of such liability. The holders of copyright insist that responsibility be placed on ISPs as a privilege to seek credit. On the other hand, the ISPs have been aggressively pressing for constraining their responsibility. ISPs assume that, by no fault of their own, they are easy targets.
As the Internet encourages people to stay anonymous, it is hard to identify the true culprit, making it difficult to locate the exact offenders. In terms of finding the culprits, the ISP is recognizable and accessible and most frequently found in the same jurisdiction, and so it is easier to keep them responsible. More so, if the defendant and the copyright owner are in separate countries, the argument against the ISP in the home jurisdiction12 of the complainant or in a jurisdiction that has taken advantageous judgments in related claims is easier to keep. In fact, however, the efficacy of the cross-border argument depends largely on how accurately and coherently the claim was expressed before the appropriate venue.
While on the other hand, there have also been arguments against the application of liabilities on the ISPs: ISPs assert that they are merely "passive carriers" and "mere information conduits" and play the role of a courier giver rather than an owner. The Fonovisa v. Cherry Auctions13 case, the Court decided: it is 'materially adding' to the infringing actions of another to include the 'location and services' for direct infringement and must attract liability.
However, the Court dismissed the proposition and in Sony v. Universal Studios14 ruled that no knowledge in particular of the infringement, simply having ways to carry out an infringing activity,' was not appropriate.
In addition, the majority ruled in the case of Costar v. LoopNet15, in order to stop any single case of copyright infringement, even though continuous scanning, hundred percent precision will not be obtained.
The Court ruled in Religious Technology Service Centre v. Netcom16 that network operators merely give an ability to upload and are powerless to have any impact over, or what users say on, the Internet. In addition, keeping ISPs accountable will impede the development of the internet at a pioneering stage, especially in India.
The Limitations of the Indian Law in context of ISPs
1. IT Act, Section 7917's ambiguous clauses moving on the responsibilities of the ISPs for scope on using this provision as a way to threaten ISPs as well as harassment cases.
2. If the ISP has performed with all due care, the clause precludes ISPs from responsibility for copyright infringement. Ironically, the definition of 'due diligence' has not been specified anywhere in the Statute.
3. The Section 79 definition is also subject to a general interpretation that brings nearly all intermediaries into the 'internet service provider' scope.
4. Although Section 79 restricts the responsibility of ISPs, it should not determine who, in certain conditions, is responsible for copyright infringement.
5. Responsibility for ISPs heavily relies about what kind of work they do. Thus, the responsibility for the contract worker and the one who publishes is erroneously taken as the same person for liabilities to be bestowed upon them.
The Google and T-Series Case18
There have not been major cases of IPR in the Indian legal system, but in 2007, T-Series filed a case against YouTube and Google Inc as a result of their actions which represented personal economic gains at the cost of another’s copyright ownership. They had a forward-looking view to copyright protection with its accelerated growth and was the claimant in this case. By google analytics and related searches being the subject of attacks claiming copyright violations, Google is known for such lawsuits in this respect. Google adopts a policy of resolving these conflicts while being cautious enough.
The details of the case provided that YouTube had uploaded some material on their site under the name of the other party’s ownership. The T-Series should have continued against the individual who shared those material in the usual course of events. This may be regarded as breaching the copyright by the recipient under Section 5119 of the Indian Copyright Act 195720.
However, Section 6321 also provides violation relief within its scope. Thus, as is the normal trend in such cases, the action was taken up at the Delhi High Court where the decision so provided that it was useless to check for their ability to pay any relief if the main infringing party is not accused.
An interim order of injunction was released by the Delhi Court prohibiting YouTube from violating any audio or video material as uploaded by T-Series and not to take up the Suo matter under the name of SCIL.
It was done on the assertion that the parties gained financial gains by providing access, free of charge, on their website of the copyrighted T-Series songs containing advertising without receiving any license or authorization from SCIL.22
However, after all the claims and provisional directives have been passed, it is strongly expected that the case will be concluded in heavy discussions between the sides, taking into account Google's historical record and successes in the ability to address such problems.
Conclusion and Recommendations
In India, the legislation on ISP responsibility is ambiguous, which encourages an arbitrary change in the liability of unjust consumers to ISPs, rendering them the excuse of an ineffective legal system. Internet development is increasingly based on the practical role of ISPs in facilitating end-user purchases and interactions. Intermediaries face the inevitable danger of being kept accountable for any or all of their acts and inactions, thus inhibiting the digital revolution. The IT Act has to be given more scope and exposure about precisions on matters except which the ISPs can be termed as a liability to the internet itself. There has to be proper preparation of Indian laws in order to deal with ISP responsibilities in regard to third party copyright infringement.
Likewise, the system should also be divided, and responsibilities must be bifurcated depending on the principles of actual, correlative and vicarious infringement23, as found in various copyright infringement laws worldwide. Contributory infringement24 is when someone who stimulates, triggers or indirectly leads to the infringing actions of someone with awareness of the infringing operation.
Contributory infringement may further be integrated into the IT Act, that is an American principle, that any individual with prior information assists and abets will also be found responsible in the execution of a violation. In addition to this, it is important to discern that the Law specifically sets out the tests that will determine such liability.
As defined by the DMCA in the US, Indian law shall establish a note and take down scheme. The DMCA provides a special provision under which the owners can ask for any ISP to remove or take down a published material or completely cut off website access, wherever without their consent, the work as copyrighted in the license appears. Although the DMCA attempts to balance the certain areas, the 'warning and takedown regime' is also troublesome for the needs of all stakeholders.
The DMCA scheme raises the risk of 'wrongful removal' as it also left little opportunity for subscribers to clarify, it was argued that stronger controls should be incorporated into the notification before their materials are taken.25 and takedown clauses of DMCA and the parties misappropriating DMCA protocols should be held responsible for losses suffered by those they target.
The owners and the suppliers of services. Under Section 512(i)(2)26, 'standard technical measures' means technical measures used by copyright holders to recognise or protect copyrighted works that have been created in a free, equitable and voluntary multi-industry process.
Footnotes
1. References The Berkman Center for Internet & Society at Harvard Law School, Internet Service Provider Liability - Case Study. Available at http://cyber.law.harvard.edu/property99/liability/main.html, (last visited on 26th October 2020).
2. Tysver, Decsiv A., ISP Liability, Bit Law, A resource on Technology Law. Available at http://www.bitlaw.com/internet/isp.html (last visited on 25th October 2020). ↩
3. References Okta, Wrenn, Greg, “WIPO Workshop on Service Provider Liability- DMCA”, 2019. ↩
4. Yen, Alfred C., Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, Georgetown Law Journal, Vol 88. ↩
5. References The Digital Millennium Copyright Act, 1998, No. 17 of 1998, United States Constitution. ↩
6. Section 512(k)(1)(a) of The Digital Millennium Copyright Act, 1998. ↩
7. Section 512(k)(1)(b) of The Digital Millennium Copyright Act, 1998. ↩
8. Shah A, The Information Technology Act, 2000: A legal framework for e-governance, 2018. ↩
9. Gershwin Publishing Corporation v Columbia Artists Management Inc, 443F 2d 159, 1162 (2d Cir 1971). ↩
10. Reference Lisa N Takeyama et al, Developments in the Economics of Copyright Research and Analysis (Edward Elgar Publishing, UK), 2005, 37-42, 60. ↩
11. Section 79 of the Information Technology Act, 2000. ↩
12. Band J and Schruers M, Safe harbours against the liability hurricane: The Communications Decency Act and the Digital Millennium Copyright Act, Cardozo Arts and Entertainment Law Journal, 20 (2002) 304, Section 512(i)(1) of the DMCA. ↩
13. Reference Fonovisa v. Cherry Auctions, E.D. Cal. 1994. ↩
14. Sony v. Universal Studios, 464 U.S. 417 (1984). ↩
15. Costar v. LoopNet, 373 F.3d 544. ↩
16. Religious Technology Service Centre v. Netcom, 907 F. Supp. 1361 (N.D. Cal. 1995). ↩
18. References Google and T-Series Case, KFC 47 .C322. Cal. ↩
19. Section 51 of the Indian Copyright Act 1957. ↩
20. Indian Copyright Act 1957, No. 9 of 1957, Parliament of India, 1957. ↩
21. Section 63 of the Indian Copyright Act 1957. ↩
23. Reference Shah A, The Information Technology Act, 2000: A legal framework for e-governance, 2018. ↩
24. Gershwin Publishing Corporation v Columbia Artists Management Inc, 443F 2d 159, 1162 (2d Cir 1971). ↩
25. Online Policy Group v. Diebold, 337 F. Supp. 2d 1195 (N.D. Cal. 2004). ↩
- Tysver, Decsiv A., ISP Liability, Bit Law, A resource on Technology Law. Available at http://www.bitlaw.com/internet/isp.html (last visited on 25 th October 2020).
- References Okta, Wrenn, Greg, “WIPO Workshop on Service Provider Liability- DMCA”, 2019.
- Yen, Alfred C., Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, Georgetown Law Journal, Vol 88.
- References The Digital Millennium Copyright Act, 1998, No. 17 of 1998, United States Constitution.
- Section 512(k)(1)(a) of The Digital Millennium Copyright Act, 1998.
- Section 512(k)(1)(b) of The Digital Millennium Copyright Act, 1998.
- Shah A, The Information Technology Act, 2000: A legal framework for e-governance, 2018.
- Gershwin Publishing Corporation v Columbia Artists Management Inc, 443F 2d 159, 1162 (2d Cir 1971).
- Reference Lisa N Takeyama et al, Developments in the Economics of Copyright Research and Analysis (Edward Elgar Publishing, UK), 2005, 37-42, 60.
- Section 79 of the Information Technology Act, 2000.
- Band J and Schruers M, Safe harbours against the liability hurricane: The Communications Decency Act and the Digital Millennium Copyright Act, Cardozo Arts and Entertainment Law Journal, 20 (2002) 304, Section 512(i)(1) of the DMCA.
- Reference Fonovisa v. Cherry Auctions, E.D. Cal. 1994.
- Sony v. Universal Studios, 464 U.S. 417 (1984).
- Costar v. LoopNet, 373 F.3d 544.
- Religious Technology Service Centre v. Netcom, 907 F. Supp. 1361 (N.D. Cal. 1995).
- References Google and T-Series Case, KFC 47 .C322. Cal.
- Section 51 of the Indian Copyright Act 1957.
- Indian Copyright Act 1957, No. 9 of 1957, Parliament of India, 1957.
- Section 63 of the Indian Copyright Act 1957.
- Reference Shah A, The Information Technology Act, 2000: A legal framework for e-governance, 2018.
- Gershwin Publishing Corporation v Columbia Artists Management Inc, 443F 2d 159, 1162 (2d Cir 1971).
- Online Policy Group v. Diebold, 337 F. Supp. 2d 1195 (N.D. Cal. 2004).
- Reference Section 512(i)(2) of the DMCA, 1988.