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Intermediary Liability And Immunity In Case Of Copyright Infringement- A Critical Study

The technological advancements followed by the invention of the internet were a ground-breaking norm, which has opened a Pandora box of opportunity as well as challenges to the modern knowledge-based economy. The digital era has transformed the way that ideas are shared, creativity is expressed, and business is conducted. However, it has also introduced new legal difficulties, especially with regard to copyright violations. It is important to consider the accountability and immunity afforded to intermediaries, including online service providers, in instances of copyright infringement.

This study looks at the intricate relationships that exist between internet middlemen, copyright holders, and the changing legal system. It focuses on examining the various culpability levels placed on intermediaries for hosting or enabling content that violates copyright as well as the immunity clauses that, in some situations, protect intermediaries from prosecution.

Through navigating the complexities of legal doctrines, precedents, and international frameworks, the study seeks to critically analyze the need to safeguard copyright and the need to promote innovation and free expression online. Online content has made things easier for customers to obtain and has accelerated corporate growth. It does, however, also provide anonymous pirates access to copyrighted works. Since it is hard to identify specific users, copyright owners rely on internet intermediaries to stop the distribution of stolen content. As such, they hold internet service providers responsible for permitting the existence of pirated works.

Emergence of intermediaries

The inexorable march towards the commercialization of the internet was an irresistible force, transforming the digital landscape into a dynamic marketplace of endless possibilities, and the internet has become an inevitable part of communication and the dissemination of information across the globe. The term intermediary has evolved for decades now. The internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses' [1]observed by the court in Fair Housing Council of San Fernando Valley v., LLC, internet has become the basic public good [2].

With the advent of the internet, certain jurisdictions have realized the need to regulate the intermediaries, and as a result, several laws and international frameworks have evolved. The first challenge was to different jurisdictions is to define the term of "intermediaries in internet" .

When it comes to enabling communication, transactions, and interactions online, intermediaries are crucial. Internet service providers (ISPs), domain registrars, app stores, social media, e-commerce, online payment processors, online advertising networks, content delivery networks (CDNs), domain registrars, and review and rating platforms are examples of common intermediaries. These middlemen facilitate transactions, link consumers to the internet, and assist users in finding information. They also make it easier to buy and manage domain names, improve the delivery of web content, and link users and developers. They also make it easier to share reviews and ratings and to distribute mobile applications.

The problem of intermediaries has plagued India for more than two decades; it has recently been the subject of discussions in several countries, including the EU and the USA. India's stance on intermediary liability is still being developed; it aims to strike a compromise between the standards of developed nations and its own. It has been difficult to provide a clear framework for intermediaries' role since inconsistent attempts have been made to address the extent of intermediary accountability.

In India, people that receive, store, or send electronic documents on behalf of another person are known as internet intermediaries, and their activities are defined by the IT Act. These middlemen offer services including social media, web hosting, search engines, internet services, and e-commerce platforms. The internet's anonymity, nevertheless, can encourage misuse and criminal activity. This affects the internet's independence and freedom of expression by raising concerns about whether middlemen should be viewed as simple messengers or as more powerful sentinels.

Understanding intermediary liability and immunity

In terms of copyright law, intermediary liability refers to the legal obligations of organisations like ISPs, social networking platforms, search engines, and content hosting websites that operate as middlemen in communications or transactions between parties. These middlemen are essential to the spread of digital content and online communication, but they also run the risk of unintentionally encouraging users to violate copyright.

Internet intermediaries are liable for contributory infringement in copyright law, Intermediaries such as internet service providers (ISPs), social media platforms, search engines, and websites that contain information are subject to a variety of responsibilities under copyright law. These responsibilities fall into one of five categories: safe harbor, secondary, vicarious, direct, and contributory immunity. When an intermediate commits a direct copyright violation, such as keeping stolen content on its server, this will inevitably lead to guilt.

When a middleman intentionally aids or abets in copyright infringement by another party-for example, by offering platforms, services, or tools utilised for infringement�they become liable for contributory liability. When an intermediary controls infringing acts and receives direct financial profit from them, vicarious liability arises. A more expansive idea known as secondary liability makes intermediaries liable for third parties' copyright violations even in cases where they were not directly involved in the illegal activity or received financial gain from it. Intermediaries are allowed safe harbour immunity subject to certain requirements, including the implementation of notice-and-takedown processes and the termination of repeat infringers' accounts following valid notification from copyright holders.

Situations when an intermediary indirectly supports copyright infringement�for example, by offering services or infrastructure that make it possible for illegal activity to take place�are referred to as instances of indirect responsibility. Intermediaries who assist copyright infringement may still be held legally liable, but their cooperation may also have negative effects on their reputation or business. Intermediaries must comprehend and manage these responsibilities in order to guarantee copyright compliance and reduce legal risks.

An intermediary is defined as any organisation that manages electronic documents on behalf of others, including storing, transmitting, or offering services associated with such records, under Section 2(1)(w) of the Information Technology Act, 2000. This includes a variety of organisations, including network, internet, and telecom service providers, in addition to online platforms like search engines and e-commerce websites.

"The Information Technology Act of 2000, or IT Act, 2000, defines "intermediary" in Section 2(1) (w) that- with respect to any particular electronic records, means any person who on Behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes"[3] Regarding internet activities, intermediaries' legal obligations and immunity are outlined in India's Information Technology Act, 2000[4].

Similar restrictions on intermediaries' responsibility and immunity for online copyright infringement are included in the Indian Copyright Act, 1957[5]. The legal environment that affects Indian intermediaries doing business in the digital sphere is shaped by these legislative frameworks taken together. Information Technologies Act of 2000, Chapter 12, discusses an intermediary's exemption from liability in specific situations.

Exemption from Liability (Subsection 1):
Intermediaries are not liable for any third-party information, data, or communication links made available or hosted by them, subject to conditions outlined in subsequent subsections.

Conditions for Exemption (Subsection 2):
  • Intermediaries are exempt from liability if their function is limited to providing access to a communication system where third-party information is transmitted or temporarily stored.
  • Intermediaries must not initiate the transmission, select the receiver of the transmission, or modify the information contained in the transmission.
  • Intermediaries must observe due diligence as prescribed by the Act and other guidelines set by the Central Government.
Exceptions to Exemption (Subsection 3):
  • Intermediaries are not exempt from liability if they conspire, abet, aid, or induce unlawful acts.
  • If an intermediary receives actual knowledge or notification from the appropriate Government or its agency that their platform is being used for unlawful activities, they must promptly remove or disable access to the material without compromising evidence.

Except as provided in Sections 79(2) and (3), intermediaries are not accountable for third-party information, data, or communication links that they host or make available under Section 79 of the Information Technology Act, 2000 in India. Any information handled by an intermediary while they do their duties is referred to as third-party information. According to Section 79(2), an intermediary is exempt from liability if all it does is grant access to a communication system where content is uploaded by third parties and if it doesn't start transmissions or choose the receivers. On the other hand, if an intermediary follows the Central Governments due diligence guidelines, it is accountable.

The conditions under which an intermediary is accountable for information provided by third parties are specified in Section 79(3) of the IT Act, 2000. If the Intermediary uses threats or promises to plot, abet, help, or urge an unlawful act, it is accountable. The Intermediary is liable if they remove information linked to a computer resource used to perform an illegal act without altering or destroying the evidence after becoming aware of it or receiving notice of it.

Intermediary liability under copyright Act and changes

Revised in 2012, the Copyright Act contains provisions that exempt intermediaries from the fair dealing defense. If the third-party right holder has not explicitly forbade the use of electronic links, access, or integration, or if the intermediary is unaware or lacks reasonable grounds to believe that the stored content infringes copyright, then intermediaries are not liable[6] . In response to a written complaint alleging a violation of third-party rights, the intermediary is obligated to suspend the storage of the content for a period of 21 days, or until formal court proceedings are initiated.

If no court order is issued within twenty-one days, the intermediary may recommence facilitating access, electronic connections, or integration. Section 52 elucidates two notable exceptions. One exception pertains to temporary or inadvertent storage that takes place in the course of transmitting electronic data. The second scenario pertains to intermediaries who facilitate electronic connections, access, or integration of transmissions[7] . In this instance, Section 52(1)(b) applies a takedown provision.

MySpace attempted to differentiate between the Copyright Act and the I.T. Act in their respective applications. In favor of a harmonious interpretation of the two Acts, the court determined that transitory storage is governed by the Copyright Act, whereas intermediaries hosting content are subject to the I.T. Act[8]. The court further discussed the potential use of the I.T. Act in situations involving purported copyright infringement.

It affirmed that Section 81 does not invalidate the safe harbor defense for intermediaries in relation to copyright actions, and that Sections 79 and 81 of the I.T. Act ought to be interpreted in conjunction with Copyright Act Section 51(a) (ii). Divergent approaches to interpreting harmonious reading are the primary cause of scholarly disagreement. Although the I.T. Act and the Guidelines place obligations on intermediaries, including simple conduits, these obligations do not include the ability to hold parties accountable for copyright infringement.

Certain scholars argue in favor of strict compliance with the language of the law, placing particular emphasis on the fact that safe harbor protection under the I.T. Act is contingent upon Section 81, which permits the simultaneous operation of other statutes such as the Copyright Act. By incorporating the safeguard provision from Section 52(1)(c) into the fair use exception, this interpretation provides protection against secondary infringement for intermediaries.

The objective of the 2012 amendment to the Copyright Act was to restrict the application of filtering and blocking methods by intermediaries on their platforms. A notice and termination approach is permitted under certain conditions under Section 52(1) (c); however, intermediaries are not required to adhere to a specific timeline in order to restore content[9].

Certain academics contend that Section 79 applies to all categories of intermediaries, whereas Section 52(1)(b) and (c) exclusively pertain to passive intermediaries. The safe harbor provision, which applies to search engines as well, is limited in scope in comparison to the broader framework described in Section 79 [S. 2(w)]. This is because search engines merely provide hyperlinks and engage in incidental storage engagement; they are not permitted to modify or select content.

In brief, although an intuitive interpretation of Sections 79 and 52(1)(b) and (c) seems reasonable, the position taken by the Delhi High Court regarding this issue is still ambiguous. Advancements have been achieved with respect to the understanding of intermediaries and their involvement in copyright infringement cases; therefore, these developments merit additional scrutiny.

Understanding the Evolution of Intermediary Liability in India: A Two-Decade Journey

Significant changes have occurred in India's digital governance landscape regarding intermediary liability regulations during the last twenty years. Each of the five distinct phases that comprise these modifications signifies a turning point in the legal framework regulating intermediaries.

Initially Section 79 of the I.T. Act (2000) is enacted. The expedition commenced upon the implementation of Section 79 of the Information Technology Act of 2000. Intermediaries are defined in this section as those who participate in the processes of message reception, storage, transmission, or the provision of associated services. At the outset, intermediaries, specifically network service providers (NSPs), were considered to be passive entities whose primary function was to facilitate access to the Internet. A second phase can be observed S. 79 (2008�09) Amendments Section 79 underwent substantial revisions during the second phase, with provisions expanded to encompass particular categories of intermediaries in a manner analogous to the definitions found in Section 2(w).

Initially, judicial interpretations, as exemplified by, applied a restricted definition of 'intermediaries' that specifically excluded e-commerce websites. In contrast, subsequent amendments to the definition in 2008 resulted in a more comprehensive agreement. And it further evolved by Delivery of Judgments As legal precedents progressed; inquiries concerning the proactive or passive status of intermediaries emerged. The initial assessments rigidly followed a "letter of the law" methodology. In contrast, contemporary judicial decisions, including Amazon v. Amway[10] and Christian Louboutin[11], have examined novel interpretations that take into account the technical capabilities of intermediaries.

Issuance of Guidelines:
Phase IV Guidelines have significantly influenced the development of intermediary liability standards. The due diligence regimes outlined in the 2011 Guidelines were rudimentary at best, whereas the 2021 Guidelines adopted technological progress by requiring proactive measures for content removal. The 2021 Guidelines broadened the scope of intermediaries to encompass digital news platforms, social media companies, and over-the-top (OTT) platforms. Phase Five: Copyright Act The proliferation of intermediary liability has been further complicated as a result of the Copyright Act's implementation.

While the provision does not provide an explicit definition of the term "intermediary" in Section 52(1) (c), it does furnish instances of individuals who aid in the inadvertent and transient storage of online content. In addition, the legislation specifies protocols for notifying intermediaries about counterfeit materials and requires their removal within twenty-one days after receiving the aforementioned notification. In regard to intermediary liability regulations, India has experienced a gradual shift from passive facilitation to active involvement due to technological progress and evolving judicial interpretations. Change is the constant and the digital environment continues to evolve, regulatory frameworks must be modified to ensure the mutually beneficial coexistence of accountability and innovation.

An Analysis of Copyright Infringement Liability Regulations in the European Union and the United States

The proprietor is granted exclusive rights under Section 106 of the U.S. Copyright Act of 1976, which supplies the fundamental framework for copyright law. However, liability for infringement arises when an individual engages in actions that are restricted to the copyright holder exclusively, or when that person offers assistance, support, or resources for such actions without obtaining the owner's permission, which is generally obtained via a license.

This dichotomy generates two distinct categories of copyright infringement: primary, also known as direct copyright infringement, and secondary, or indirect copyright infringement. Particularly in the United States, case law has primarily developed the latter in regards to the following three theoretical premises: contributory infringement, vicarious liability, and inducement liability.

Contributory infringement is established when the defendant exhibits both awareness and active participation in the infringement. Conversely, vicarious liability emerges when the defendant possesses the capacity or jurisdiction to regulate the infringing conduct and profit directly monetarily from it. On the contrary, inducement liability pertains to the action of aiding and abetting the violation of another person's rights.

The Digital Millennium Copyright Act (DMCA) introduced an amendment to the U.S. Copyright Act of 1976 by incorporating Section 512. This provision provided conditional immunity from primary and secondary copyright infringement liabilities to online service providers (OSPs) and certain intermediaries. While this immunity does not impact the ability of OSPs to obtain monetary relief, it also does not apply to injunctive and other equitable reliefs.

OSPs that offer particular services, such as information location tools, system caching, user-directed material storage, and transitory digital network communications, are granted conditional safe harbor protections under the DMCA. On the contrary, copyright proprietors prohibit standard technical measures and require operating system providers (OSPs) to develop protocols for terminating service for repeat infringers.

Comparable safe harbor protections are extended by the E-Commerce Directive (Directive 2000/31/EC) to intermediaries and online service providers who enable the transmission, caching, and hosting of information within the European Union. As per the provisions outlined in Article 17 of Directive (EU) 2019/790, more rigorous regulations have been enforced as of late. According to this provision, online content-sharing service providers are required to obtain permission from the legitimate proprietors of copyrighted materials.

Online content-sharing service providers are liable for unlawful acts of public communication, as stated in Article 17, in the absence of reasonable attempts to obtain consent, impede access to illicit content, and promptly address notifications from rights holders.

Adapting Legal Frameworks for Intermediary Liability and Copyright Enforcement in the Digital Age
In brief, while regulatory frameworks for liability pertaining to copyright infringement are in place in both the European Union and the United States, recent occurrences highlight the fluid nature of legislation concerning digital copyright and the challenges of reconciling the interests of digital service providers and rights holders.

The current methodologies used to address intermediary liability and copyright infringement have been widely criticized across various disciplines. The immunity provisions have been found to favor the interests of copyright holders over users and intermediaries. This has led to excessive focus on copyright enforcement, which has compromised fundamental liberties such as privacy and freedom of expression. The effectiveness of notice-and-takedown mechanisms has also been questioned, as they may be used to suppress lawful discourse or for censorship purposes. The lack of nuance in automated content filtering systems may lead to the stifling of legitimate expression.

The digital environment presents unparalleled opportunities and challenges for the enforcement of copyright and liability of intermediaries. Blockchain and artificial intelligence, along with other promising technologies, can revolutionize content moderation and rights administration. However, they present legal and ethical complexities that are unprecedented. For example, AI-driven content recognition algorithms may improve the effectiveness of copyright enforcement, but concerns remain around their precision, partiality, and the potential for erroneous results. Similarly, blockchain-based systems enable decentralized content distribution and transparent rights management but present challenges related to scalability, governance, and interoperability.

Given the intricate nature of the issues at hand, it is imperative that the current legal frameworks concerning intermediary liability and copyright infringement undergo revision. Principles such as due process, transparency, and the protection of fundamental rights, including freedom of expression and privacy, should serve as guiding frameworks for reform efforts. Diverse stakeholders, including academics, policymakers, industry participants, and civil society organizations, must join forces to develop nuanced and equitable strategies concerning intermediary liability.

Engaging in this collaborative endeavor may promote the recognition of mutual goals, the resolution of divergent issues, and the application of novel approaches to the development of regulatory frameworks. By encouraging discourse, ingenuity, and cooperation, policymakers and interested parties can adeptly maneuver around these intricacies, thereby shaping a digital milieu that nurtures advancements, progress, and societal enhancement. An equitable approach to intermediary liability is essential for safeguarding fundamental rights and values while optimizing the advantages of the digital era.

  1. Fair Housing Council of San Fernando Valley v., LLC, 666 F. 3d 1216 (9th Cir. 2012)
  2. Faheema Shirin.R.K vs. State Of Kerala AIR 2020 KERALA 35
  3. Information technologies Act 2000 section 2(1)(w)
  4. Information technologies Act 2000
  5. The Copyright Act, 1957(14 OF 1957)
  6. Copyright Act 1957, Section 52(1) (c)
  7. Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 1). (n.d.). URL:
  8. Myspace Inc. v. Super Cassettes Industries Ltd. (2017) 236 DLT 478 (DB)
  9. Advani, Pritika Rai. 2013. "Intermediary Liability in India." Economic and Political Weekly 48: 120�128
  10. Amazon Seller Services Pvt Ltd. v. Amway India Enterprises Pvt. Ltd. & Ors. High Court of DelhiFAO(OS) 133/2019
  11. Christian Louboutin v. XYZ 10 (2012)

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