The troubled waters of copyright safe harbours in India

Abstract

The proliferation of the internet has raised novel concerns regarding the enforcement of copyright. Increasingly, online intermediaries are being targeted for their role in copyright infringement. Therefore, intermediary liability is arguably the single largest legal structure that may affect how our markets react to these technological changes. Against this background, this paper undertakes an analysis of the liability of internet intermediaries for copyright infringement, focusing primarily on the scope of ‘safe-harbour’ provisions. The author seeks conceptually to anchor the notion of intermediary liability in common law doctrines of secondary liability. Subsequently, the author throws light on the three most important elements of a safe harbour provision for internet intermediaries: (i) scope, in terms of kinds of activities and intermediaries it covers; (ii) fault or knowledge standard; and (iii) notice and takedown mechanism. To understand this triangular metric of gauging the effectiveness of a safe harbour, the experience of the Indian framework lies at the heart of this article. The author undertakes an analysis of Indian law—both prior to and subsequent to—the introduction of the ‘fair use exception’ by the Copyright (Amendment) Act 2012. Where relevant, the article also draws lessons from other jurisdictions. Through an analysis of the Indian framework, this article hopes to inform the larger legal debate on the scope of intermediary liability for copyright infringement.