As per the amendment, “immunity” for intermediaries is no longer limited to offences under the IT Act, but extends to offences arising under any law in force in India. Therefore, one might argue that an ISP can now claim immunity for any breach of the Copyright Act, 1957, provided it acts as a mere intermediary and has no knowledge of the copyright violation in question.

Unfortunately, Section 81 of the IT Act stands in the way of such an interpretation. It reads thus:

“The provisions of this Act [IT Act] shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force. Provided that nothing contained in this Act shall restrict any person from exercising any rights conferred under the Copyright Act, 1957 or the Patents Act, 1970.”

In other words, the IT Act cannot absolve an intermediary of liability, if that intermediary is otherwise found liable under the Indian Copyright Act. Secondary liability is mainly found in sections 51 (a) (ii) and 63 of the Copyright Act. If perchance an intermediary is found liable under one of these provisions or under any other provision of the Indian Copyright Act, it cannot take recourse to section 79 and nullify the “right” of a person to sue for such infringement.

Interestingly the proviso to section 81 of the IT Act only mentions “copyright” and “patent” liability. It does not include liability for other kinds of IP infringement such as trademarks, geographical indications, plant varieties etc. Therefore, in so far as these infringements are concerned, an intermediary can claim an exemption under section 79. Why this difference? Did this have anything to do with lobbying by special interests? Or was this a genuine mistake?

History of Section 79?

Rumour mills have it that the push to amend the IT Act came in the wake of the infamous Baazee case, when a “one name” Prabhakaran got after an unsuspecting Avnish Bajaj. Matters took a political turn when Condy Rice intervened. Given this political baggage, I’m surprised that eBay, Google and other intermediaries did not lobby hard enough to absolve IPR infringement as a whole.

It is pertinent to note that section 79 is liberally worded and will even exempt any ISP or intermediary from liability, provided such intermediary:

i) does not initiate the transmission
ii) select the receiver of the transmission; and
iii) select or modify the information contained in the transmission

Most online intermediaries and ISP’s (such as Rediff, eBay, Google, Youtube etc) ought to qualify under the liberal exemption above. Unfortunately, its a pity that they cannot do so, when it comes to copyright and patent infringements. Of course, they could still claim that since they did not know of the infringement or had no reasonable ground for such knowledge, they fall outside the scope of secondary liability enshrined in section 51 (a) (ii) of the Copyright Act. However, section 51 (a) (ii) is limited to cases involving a communication of copyrighted works to the public. In so far as other copyrights (such as the right to reproduce etc are concerned), an ISP could still be potentially liable for cached/temporary copies created on its network.

Intermediary Liability and the “Secret” Copyright Bill

Given that the current copyright amendment bill is underway, the ISP and intermediary lobbies ought to insist that “intermediary” exemption under the IT act extend to copyright infringements as well. Particularly when such exemptions are likely to favour public interest and the enormous number of users who avail of such intermediary services. Unfortunately, like most other IP initiatives, the copyright bill is also shrouded in considerable secrecy and none of us will know what the actual provisions look like until the bill is introduced in Parliament (scheduled for this Winter session).

The government insists that it made the bill public in 2006 and called for comments. While this is no doubt true, it is only partly so. Since the 2006 draft was put up, the government has made a number of changes, including the addition of altogether new provisions, such as an equitable remuneration in favour of artists. Little wonder then that lobby groups such as the Indian Broadcasting Federation are up in the arms decrying the secrecy and lack of consultation. Clearly there is, and will continue to be, a lot of politicking around the present Bill. Whether it will finally pass and if so, the form in which it will do so remains to be seen.