Thursday 29 December 2016

How to mould relief if there is infringement of copyright on internet?

 On the question of what relief would be practical, the Division Bench by its order dated 06.03.2009 had directed SCIL to supply a list of its works to MySpace, which it would remove within one week of receipt of notice. Perhaps the Division Bench was more mindful of technological constraints as well as the notice and take down mechanism considering the order was made before the amendment to the IT Act which introduced safe harbor provisions only in October 2009. The Court is conscious of the fact that under the current system, MySpace hosts several hundreds and thousands of videos, which is only growing every single day. Without a notice containing the details and location of the exact works in which infringement is complained of, MySpace cannot be expected to scan through such large number of videos to discern infringement. This is not only impractical but also dangerous for reasons discussed previously. A vague order of injunction against works which are yet to exist is not only contrary to law but also impossible to monitor. Therefore, SCIL cannot give vague and general lists of its works but will have to give notice with specific details as well as locations of the works, which the appellant shall remove within 36 hours of receiving such notice.
67. Despite the lengthy analysis and reasoning, a fundamental aspect overlooked by the learned Single Judge is the peculiarity of the Internet intermediary industry. The Internet industry often coined the term "fastest growing industry" enabling access and innovations at an exponential rate. In cases like these, the Court has to appreciate that relief should be sound and practical, not far-reaching and momentous in regard to policy and growth of trade or information dissemination. Such care is warranted where interim orders in respect of liabilities are yet to be ascertained and claims tried. Whilst in other areas of law like property or contracts, the enforcement mechanism has remained relatively unchanged, enforcement under the technology regime, because its very nature is different. It is these considerations, which the court has to keep in mind while granting relief. Apart from avoidable prolixity and attendant imprecision in the impugned  judgment (which a reader may perhaps justifiably complain about this judgment as well) the width of the directions has resulted in what was colourfully described by the US Supreme Court in Reno v American Civil Liberties Union 521 US 244,as ―to burn the house to roast the pig‖ (i.e a disproportionate response, or a remedy worse than the disease). The court has - as always to tread a delicate balance between the Scylla of over protection (of intellectual property and privileging it in an overbearing manner) and the Charybdis of ineffective or under-protection, of IP rights: both of which chill and kill creativity, in the final analysis, harmful to society.
68. To summarize the conclusions, it is held as follows
(a) Sections 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously. Accordingly, it is held that proviso to Section 81 does not preclude the affirmative defence of safe harbor for an intermediary in case of copyright actions.
(b) Section 51(a)(ii), in the case of internet intermediaries contemplates actual knowledge and not general awareness. Additionally, to impose liability on an intermediary, conditions underSection 79 of the IT Act have to be fulfilled.
(c) In case of Internet intermediaries, interim relief has to be specific and must point to the actual content, which is being infringed.
In light of the above discussion impugned order of the learned Single Judge is set aside and is substituted with the following relief:
(i) The plaintiff Super Cassettes shall provide an updated catalogue of "specific" works in which it holds copyright along with the location/ URL of such work on the appellant Myspace‟s website to the appellant as and when SCIL detects infringement.
(ii) On receiving such notice from the plaintiff SCIL, the appellant/MySpace shall within 36 hours remove/ block access to such content, in accordance with Rule 3 (4) of the Intermediary Guidelines Rules of 2011.

(iii) MySpace shall also keep an account of all such content removed pursuant to such requests as well as other details such as the number of viewings (wherever mechanisms exist to track such action) of such content, till it is removed, the advertisement revenue earned from it (proportionately) etc to enable calculation of damages, at the trial stage.
Delhi High Court
My Space Inc. vs Super Cassettes Industries Ltd. on 23 December, 2016
Read full judgment; Click here 
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