About Author: The author is a B.A. LL. B graduate from ILS Law College, Pune (Batch: 2014-19) and currently practices intellectual property laws.
The Ministry of Electronics and Information Technology (“MEITY”) and the Ministry of Information and Broadcasting (“MIB”) has on 25th February 2021 published and notified the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021 (hereinafter referred to as “new rules”) which supersedes the Information Technology (Intermediary Guidelines) Rules, 2011 (hereinafter referred to as “previous rules”).
The new rules, since its notification, have been the centre of debate as associations such as Digital News Publishers Association and intermediaries are raising their concerns of its effect on right to freedom of speech and right to privacy, thereby challenging the rules to be unconstitutional. The intermediaries have also raised its issues over ‘traceability’ requirement that will lead to losing their ‘intermediary’ status. All these litigations are mainly focused towards the ‘ethics code’ which majorly forms the second part of the new rules.
The first part of the rules deals with the due diligence to be followed by the intermediaries. While few rules in respect of due diligence from the previous guidelines have been retained and refined, it surprisingly did not retain the take down within 36-hour system for complaints submitted by the affected person to such intermediary platforms.
- Legal Position under Information Technology (Intermediary Guidelines) Rules, 2011 vis-à-vis the Copyright Act,1957 :
Rule 3 of the previous rules provided for the due diligence to be observed by an intermediary. Rule 3(4) provided that “The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2)”
Further, Rule 3(2)(d) of the previous rules provided that the intermediaries shall inform the users not to host, display, upload, modify, publish, transmit, update or share any information that infringes any patent, trademark, copyright or other proprietary rights.
Section 52(1)(c) of the Copyright Act, 1957 provides that transient or incidental storage for providing e-links or access would not amount to copyright infringement. It further provides that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such storage is an infringement, “such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitation access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;”
Therefore, Rule 3(4) of previous rules read with Section 52(1)(c) of the Copyright Act envisaged that when the intermediaries are brought to actual knowledge of a content stored or hosted or published by it that infringes the copyright of a person, such intermediary shall disable access to such reported content within 36 hours of receiving of such knowledge. These provisions served as a seed for the take-down notice system that is followed by all the intermediaries.
With rise in the number as well as variants of intermediaries, the modus of infringing the intellectual property rights of the owners have grown exponentially. Several suits have been filed by the owners of intellectual properties against such intermediaries for infringement of their rights on these platforms. In these cases pending before the courts, the ad-interim orders[i] have recorded the statements of the intermediaries whereby it undertook to follow the take-down system as provided under rule 3(4) of the previous rules.
- Legal Position under the Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021
Rule 3 and 4 of the new rules provides for the due diligence to be observed by an intermediary. Rule 3(1)(d) states that an intermediary “upon receiving actual knowledge in the form of an order by a court of competent jurisdiction or on being notified by the appropriate Government or its agency” shall not host, store or publish any unlawful information prohibited by any law in relation to the interests of the sovereignty and integrity of India, including the information which violates any law for the time being in force.
It further provides that “the intermediary shall remove or disable access to that information, as early as possible, but in no case later than thirty-six hours from the receipt of the court order or on being notified by the appropriate government or its agency”.
Rule 3(2) provides that the intermediary shall prominently mention the name of the Grievance Officer along with the contact details and mechanism by which a user or a victim may make complaint against violation of the provisions of this rule (Rule 3) or other matters pertaining to computer resources made available by the intermediary. The Grievance Officer shall be responsible for acknowledging the complaint within twenty-four hours and dispose-off the complaint within a period of 15 days from the date of receipt of the complaint. Rule 3(1)(b)(iv) of new rules is same as Rule 3(2)(d) of the previous rules. It provides that the intermediaries shall inform the users not to host, display, upload, modify, publish, transmit, update or share any information that infringes any patent, trademark, copyright or other proprietary rights. Thus, for violation of Rule 3(1)(b)(iv) the victim, i.e., the owner of the intellectual property rights may make complaint before the Grievance Officer.
Therefore, conjoint reading of these rules provides that the intermediaries are liable to disable/ take down the content within 36 hours of receipt of information only when such information is in form of a court order or on being notified by the appropriate government or its agency. Therefore, a complaint by the copyright owner does not impose a requirement on the intermediaries to disable the content within 36 hours of receiving knowledge that the content is infringement of copyright.
The new rules have introduced setting up of a Grievance Officer by the intermediary, and the victims of infringement of copyright on such intermediary platform may make a complaint to such Grievance Officer. Rule 3(2) provides that the Grievance Officer shall acknowledge the complaint within twenty-four hours and dispose off the complaint within 15 days from the receipt of complaint, however, it does not provide the minimum time within which the access to such infringing content shall be disabled while the Grievance Officer resolves the complaint. Therefore, even after reporting such infringement, there is high apprehension that the content may continue infringing the copyright for fifteen days, even after giving actual knowledge of infringement to the intermediary.
The new rules have ignored the time sensitivity involved in the intellectual property infringement matters and has complicated the situation for the owners of such intellectual property to protect their rights from being infringed on the intermediary platforms. Prior to new rules, the intermediaries were required to take down reported content within 36 hours of receipt of the actual knowledge of such infringement by the owners of copyright. Such reporting was done by the copyright owners by providing the URLs of content infringing their rights. However, pursuant to the new rules, even if the owners directly send a written notice to the intermediary, thereby giving them an actual knowledge of the infringement, the intermediaries can take its sweet time to take down the content which can extend upto fifteen days from receipt of such notice. This may lead to a continuing infringement. To prevent such continuing infringement, the owners of the copyright may have to knock the doors of courts, every time, asking for an order to direct the intermediaries to take down the infringing content within 36 hours of receipt of actual knowledge. This is because the intermediaries are under obligation to disable the content within 36 hours only upon receipt of information in form of a court order or on being notified by the appropriate government or its agency.
While the owners of copyright were struggling with locating and informing every single URL to the intermediaries that were infringing their copyright, now the struggle has increased manifold as the owners may have to approach the courts along with such URLs. Not to forget that the ease of creation of content in today’s world has led to immeasurable content being created on daily basis.
- Jurisprudence on “actual knowledge” in MySpace judgement- redundant?
The question on what amounts to an “actual knowledge” of infringement of copyright to the intermediaries as well as the action to be taken by the intermediaries upon receiving such knowledge was extensively discussed by the Division Bench of the Hon’ble High Court of Delhi in the matter of MySpace Inc. vs. Super Cassettes Industries Ltd.[ii].
The MySpace judgment has expressly recorded that “Under Section 79(3) read with Rule 3(4) of the Rules posit an intermediary on receiving “actual knowledge” or upon obtaining knowledge from the affected person in writing or through email to act within 36 hours of receiving such information disable access to such information. If copyright owners, such as SCIL inform MySpace specifically about infringing works and despite such notice it does not take down the content, then alone is safe harbor denied”.
It is pertinent to note that following the new guidelines, the liability imposed on the intermediaries upon receipt of “actual knowledge” of the infringement of intellectual property owners as per this landmark judgment seems to have become redundant. Even if the said “actual knowledge” is given by the intellectual property owners to the intermediaries by providing the URLs of such infringement, the intermediaries can in its free will choose to ignore such reports owing to the new guidelines.
The liability of intermediaries in infringement of intellectual property has been a highly debated issue since last few years with multiple music companies approaching courts against these intermediaries. While the relief granted by courts was limited to Rule 3(4) of the Intermediary Rules, 2011, the courts had time and again mentioned that the intermediaries must lookout for technical methods to restrict such infringement[iii]. The new rules, instead of having addressed this issue, have created a hard row to hoe for the intellectual property owners. The waters have not been tested so far in respect of these new rules and it will be interesting to observe the positions that will be taken by intermediaries in respect of complaints by the intellectual property owners under the new rules.
[i] Tips Industries Ltd. vs. Glance Digital Experience Pvt. Ltd. & Ors. ; CS (Comm) 561/2020 (Delhi High Court).
[ii] MySpace Inc. vs Super Cassettes Industries Ltd.; 2016 SCC OnLine Del 6382
Supercassettes Industries Pvt. Ltd. vs. Relevant E-Solutions Pvt. Ltd. & Ors., CS (Comm) 347/2020 (Delhi High Court)