Liability of Internet Service Provider(ISPs)

Dear Dinkar,

This is a very thorny issues in today's Digital age. For example when we enacted the copy right act of 1957, we did not imagine even television not to speak of computer and internet. In today's digital age millions of unauthorized copies can be reproduced simply by clicking the mouse and duplicate it exactly the same as the originals. This posed the issue whether RAM random access memory constitutes the making of a copy for the purpose of copyright law etc.

                          The CRA 1957 and the amendment act of 1994, does not mentioned Collective works rather the words work of joint authorship and the words computer and computer programme has been defined in section 2 of the act.I am also not aware of any cases and you may excuse me for the ignorance if there is any cases covering this area.

                 Without proceeding further, in brief, I am of the view that the ISP will not be liable for any copyrights infringement by its customer if the ISP is unaware of the subscriber’s violation, and this has been demonstrated by the case of DVD Vs  Jon Johansen, a nineteen year old hacker Norwegian boy who cracked the DVD code,and who was sued by a group of film companies including the Disney and Twentieth century Fox and Jon was found guilty.  in India an ISP may be held liable if on learning of the violation and failing to take action to shut subscriber down. Section 79 of the Information and Technology Act 2000 speak in the same line.

                          I am of the view that in the context of copyright law, vicarious liability extends to cases where the defendants has the right and ability to supervise the infringe activities and also has a direct financial interest in such activities and its failure to police the system's will leads to the imposition of the said liability.

Dear Sir,

The liability of service providers for copyright infringement is not expressly covered by the Indian Copyright Act. The Information technology  Act 2000 exempts ISPs from liability if they can prove that they had no knowledge of the occurrence of the alleged act, and that they had taken sufficient steps to prevent a violation. However, the existing provision does not clearly prescribe liability limits of service providers. For example, if a person makes a representation to a service provider claiming copyright on the material available on the network, will the service provider be liable if he fails to take steps within a reasonable time to remove the infringing material from the network? If the service provider fails to prevent infringement of copyright in the above circumstances, is the plea of not having knowledge of infringement still available to him? If the service

provider removes the material from the network in pursuance to the representation made by a person which later on proves false, will the service provider be liable to the person whose material has been removed?

The Indian position in liability of service providers for copyright infringement must be made more explicit. The I.T. Act must include sections that address the financial aspect of the transaction, and the relationship between an ISP and a third party, because this is vital to determining the identity of the violator. The American concept of contributory infringement can also be incorporated into the Indian Act so that if any person with knowledge of the infringing activity, induces, causes, or materially contributes to the infringing conduct of another, the person can be made liable. In order to be exempt from liability, the Indian Act requires the service provider to exercise due diligence to prevent the commission of copyright infringement. The Act does not provide the meaning of the term due diligence. If due diligence means policing each and every aspect of the Internet, it can lead to loss of privacy and can ultimately have a disastrous effect. There is a need for a consensus on the meaning of the term due diligence because the primary function of ISPs is to build the Internet, not to play the role of a policeman. If the behavior of an ISP is reasonable, then that ISP should not be held liable for each and every activity on the Internet as has been held by the US Courts.

There is a dying need for express provisions either in the Copyright Act or the Information Technology Act, 2000 prescribing liability of service providers for copyright infringement in the light of the issues raised in the paper. Issues concerning ISPs should be taken seriously, because any hesitation over implementing policies or regulation of ISPs can prove detrimental to the development of the institution of Internet as a whole. 

Assumi and Shree,

great explanation!!!

Really a nice discussion and very useful too.