A STUDY ON COPYRIGHT INFRINGEMENT IN CYBERSPACE

WITH SPECIAL REFERENCE TO THE LIABILITY OF THE

INTERNET SERVICE PROVIDER

Project work submitted to the

TAMIL NADU NATIONAL LAW UNIVERSITY

by

NAME OF THE STUDENT P.Prashanna Guruparan

Register No. BA0150032

Under the guidance of

Prof. Mrs. Preetham Balakrishnan

TAMIL NADU NATIONAL LAW SCHOOL

MARCH 2019
© 2019 P.Prashanna Guruparan. All rights reserved.
 DECLARATION BY STUDENT

I certify that

a. The work contained in the project report is original and has been done by myself
under the general supervision of my faculty.
b. I have followed the guidelines provided by the faculty in writing the project report.
c. Whenever I have used materials (data, theoretical analysis, and text) from other
sources, I have given due credit to them by citing them in the text of the project report
and giving their details in the references.
d. Whenever I have quoted written materials from other sources, I have put them under
quotation marks and given due credit to the sources by citing them and giving
required details in the references.

(Signature and Name of the Candidate)

 ACKNOWNLEDGMENT

At the outset, I take this opportunity to thank my Professor Mrs.

Preetham Balakrishnan from the bottom of my heart who has been of

immense help during moments of anxiety and torpidity while the project was

taking its crucial shape.

Secondly, I convey my deepest regards to the Vice Chancellor Kamala

Shankar and the administrative staff of TNNLS who held the project in high

esteem by providing reliable information in the form of library infrastructure

and database connections in times of need.

Thirdly, the contribution made by my parents and friends by foregoing

their precious time is unforgettable and highly solicited. Their valuable advice

and timely supervision paved the way for the successful completion of this

project.

Finally, I thank the Almighty who gave me the courage and stamina to

confront all hurdles during the making of this project. Words aren’t sufficient

to acknowledge the tremendous contributions of various people involved in this

project, as I know ‘Words are Poor Comforters’. I once again wholeheartedly

and earnestly thank all the people who were involved directly or indirectly

during this project making which helped me to come out with flying colours.
 A STUDY ON COPYRIGHT INFRINGEMENT IN CYBERSPACE WITH
SPECIAL REFERENCE TO THE LIABILITY OF THE INTERNET
SERVICE PROVIDER

INDEX

CHAPTER I…………………………………………………………..

INTRODUCTION

CHAPTER II ………………….

THE PHENOMENON OF COPYRIGHT INFRINGEMENT IN CYBER SPACE

CHAPTER III ……………………….

LIABLITY OF ISP IN AN EVENT OF COPYRIGHT INFRINGMENT

CHAPTER IV …………………

THE DIGITAL MILLENNIUM COPYRIGHT ACT 1998 AND its SIGNIFICANCE

CHAPTER V ………………………………………………………………

.CONCLUSION

Research question:-

1. If the internet service provider can be held liable for copyright infringement under the
Information Technology Act 2000?
2. Whether the Indian cyber space is in need of a separate statute like the Digital
Millennium Copyright Act (DMCA) for protection of copyrights?

Research Objective:-

1. To study about the problem of copyright infringement in cyberspace.

2. To discuss the liability of internet service providers for infringement.
3. To study about the effectiveness of the legal statutes governing the copyright
infringement.
 A STUDY ON COPYRIGHT INFRINGEMENT IN CYBERSPACE WITH
SPECIAL REFERENCE TO THE LIABILITY OF THE INTERNET
SERVICE PROVIDER

CHAPTER I

INTRODUCTION

The Internet is a mere global network of interconnected computer and the respective
networks. The significance of Information Technology is that it has grown more rapidly than
any other modes of communication provided that its influence on humankind is phenomenal.
The invention of the computer has made fax, television, and telephone and other former
technologies go out of a use. The reason being it’s immaculate and instantaneous access to
information that too from anywhere in the globe (ubiquity) with not much effort or
expenditure or costs. Expansion of the Internet from the mid-1990s onward resulted from the
combination of three main factors:

1. The technological discovery of the World Wide Web by Tim Berners-Lee and his
willingness to distribute the source code to improve it by the open-source contribution
of a global community of users, in continuity with the openness of the TCP/IP
Internet protocols. The web keeps running under the same principle of open source.
And two-thirds of web servers are operated by an open-source server program called
the Apache.
2. Making institutional change in the management of the Internet by keeping it under the
loose management of the global Internet community, privatizing it, and allowing both
commercial uses and cooperative uses.
3. Major changes in social structure, culture, and social behavior: networking as a
prevalent organizational form; individuation as the main orientation of social
behavior; and the culture of autonomy as the culture of the net-work society1.
The convergence of unceasing rapid innovation and the evolution of a number of vital
technologies and broadcast media, media and computer publishing have resulted in many
legal disputes. This also because of the unique and distinguished features of this specialised
medium.

Permanency: Almost everything that is uploaded on the internet is been archived and such
material will remain cached making it potentially available even after the removal of the

1
Richard Stallman, Free Software, Free Society, Free Software Foundation, Inc.; 2nd Edition (December 27,
2010)
original material. This may help in ease in search of that material but also facilitates
duplication of the material without breaking a sweat.

Ubiquity: Aforesaid, easily accessibility and dissemination of information from any nook or
corner of the globe.

Anonymity: The Internet offers users an unprecedented ability to communicate

‘anonymously’ and, if desired, set up multiple ‘personae’ or ‘online identities’ making it
difficult to find the culprits or wrong doers2.

CHAPTER II

THE PHENOMENON OF COPYRIGHT INFRINGEMENT IN CYBER SPACE

Copyright is a form of intellectual property protection that is conferred on literary,

drama, musical, artistic works and cinematograph films3. But this provision only protects the
original works i.e. the expression of such ideas and not the ideas themselves. There are
certain rights4 vested within the owner of such copyright and such rights being enjoyable only
by the owner or any person who has duly licensed such intellectual property.

Infringement can be described as abuse of privilege, disfranchisement or to be simple

improper use of a particular IP without prior permission of such property’s owner.
Infringement of copyright has now become a prevalent happening or event in the cyber space.
It is not necessary that infringement is done with intent it can also happen over ignorance.

The various forms of infringements happening in the cyberspace are as follows

1. Framing: Framing is where instead of an original window a framed window appears

after one independent website gives access to incorporate contents from it to other
website into frame of its own. Each frame acts independently so that each frame sits
respectively into to the appropriate frame without overlap and ensuring that the user
doesn’t have the knowledge that the particular content actually comes from another
website rather than the original5 . The Future Dontics, Inc vs. Applied Anagramics Inc6.

2
https://blog.ipleaders.in/copyright-infringement-on-the-internet/
3
Sec 13 of the Copyright Act 1957
4
Sec 14 of the Copyright Act 1957
5
Microsoft Press Computer Dictionary, third edition, p 207
6
CV-97-6991 ABC
 is a very good example of this case where the website developed by the plaintiff was
reproduced by the defendant in a separate frame amounting to infringement.
2. Linking: Linking was found to ease up the job of manually typing the URL of websites
rather by providing link for the linked in the original site. The phenomenon of linking is
of two kinds’ surface linking and deep linking. The first one doesn’t amount to
infringement as its purpose is fulfilled by just providing the location of the linked site.
But deep linking actually may amount infringement as the inner content is being exposed.
This because the deep linking allows access to inner pages that can be entered without
even entering the homepage of the linked website. Shetland Times Ltd v Dr Jonathan
Wills and Zet News Ltd7 hyperlinks created to link the user to articles of Shetland times
was considered infringement.
3. Inlining: Also a form or linking mostly dealing with images. The famous case of Kelly
vs. Arriba Soft Corp8 is an example where the image of plaintiff was used by an image
search engine without prior approval of Kelly but the court rule in favour of Arriba s there
was no commercial nature and relying upon fair use rule.
4. Caching which generally means a temporary storage in this context it refers to disk cache
and cache memory in computers. Firstly the document that is being displayed is copied
and secondly such copied material is retained along with documents reviewed by the user
and such material is uploaded to the Internet Service Provider enabling the material to be
available for a temporary period of time9.
5. Archiving. Archiving without permission of the owner amounts to infringement.
Incorporating particular material of another website that was either downloaded or stored
from another website. Downloading pirated movies, music, applications etc. fall under
this category.
6. Public Display of the Right by uploading on the Internet There is no unrestricted view
of a copyrighted article in the cyber space. Such public display of a copyrighted article
may amount to infringement.
 Playboy enterprises Inc v Frena10 the defendant was held liable even though he
was unaware that the bulletin board service contained infringed materials
 Playboy Enterprises Inc vs. Web World In11c vicarious copyright infringement if
defendant found to have financial interest in such infringement action.
7
(1997) FSR 604, 1997 SLT 669
8
(JW 1999) US District LEXIS 19304
9
http://www.mondaq.com/india/x/682548/Trademark/Cyber+Theft+of+Intellectual+Property
10
839 F Supp 1552 (MD Fla 1993)
  Religious Tech Ctr vs. Netcom Online Communication Service Inc12 defendant
not liable as there was only passage or conduit of information and not control of
information13.14

In the case of copyright infringement in cyber space it is really a hard shell to crack as in the
process to determine the jurisdiction whether to consider the traits of the material such as

1. Place of origin
2. Place of storage
3. Place where being displayed
Choice of statute is also a considerable problem as different copyright statutes are different
from one and another, some contradicting each other.

CHAPTER III
LIABLITY OF ISP IN AN EVENT OF COPYRIGHT INFRINGMENT

The Basis of Liability

The criteria to determine the liability in event of copyright infringement rests on three
theories-

 Direct infringement when a person directly and expressively infringes the exclusive right
of the copyright owner. Intention doesn’t count in. Strictly liability.
 Vicarious infringement failure to prevent the event of infringement even when such a
person has the capacity or right to do so but ending up benefitting from such event of
infringement. Intention doesn’t count in. Strictly liability.
 Contributory infringement. Participating in the act of infringement having knowledge of
such activity15.

Indian scenario

The liability of ISP under the Copyright Act 1957

11
986 F Supp 1171 (ND tax 1997)
12
907 F Supp 1361. 1372-73 (ND Cali 1995)
13
William J. Cook, Be Wary of Internet Casting Shadows on Copyright Holders, Chicago Law., Apr. 1996
14
https://www.plagiarismtoday.com/2015/04/23/6-current-copyright-cases-more-important-than-blurred-lines/
15
https://globalinitiative.net/10-biggest-cyber-crimes-and-data-breaches-till-date/
The liability of ISP in the event of copyright infringement is not expressly mentioned or
covered by the Copyright Act 1957. However in the Information Technology Act, 2000 there
is an exemption clause that exempts ISPs from liability in the event of copyright
infringement.

The liability of ISP under Information Technology Act, 2000

“Network service provider is considered to be an intermediary as it is addressed as Network

Service Provider16.
The term intermediary is defined under Section 2(1) (w) of the Information and Technology
Act 2000. Section 79 of the information Technology Act, exempts ISPs from liability in the
event of copyright infringement provided that they prove that they were not aware or had no
knowledge of the happening of such act or event and did take effective measures or steps to
prevent such violation from happening. Due diligence to prevent copyright infringement it
reads, but the Act states such statement in an ambiguous manner as to not mentioning as to
what is the actual meaning of due diligence rather than a vague definition. It wouldn’t be fair
and rationale to ask an ISP to policing (if that’s what is meant) leaving behind its natural
work of building internet and to add it may also be considered as loss or invasion of privacy.

The possibility of determining the liability of ISPs is a tough job because of its
various forms occurring in different problems. The Information Technology Act, 2000 does
carry out a filtering procedure while determining the liability of ISPs in case of copyright
infringements. Basically the procedure is to first treat the act or omission under the respective
Act under which it occurs and if found liable then filtering it through the 79 sec of the
Information Technology Act 2000. Example, if a Service Provider is accused of illegally
allowing access to copyrighted music works, then the liability of the ISP is first determined
under Copyright Act, 195717 if found liable then hi liability again is tested under of section 79
of the IT Act, 200018.

To qualify for exemption, ISPs may neither initiate the transmission, select the
receiver nor have any editorial control by the selecting or modifying the material. Section 79

16
Explanation (a) to s. 79 of IT Act, 2000
17
section 51(a) (ii) and section 63
18
Dinwoodie, Graeme B, Secondary Liability of Internet Service Providers, Springer International
Publishing, Volume 25, 2017
of the IT Act also provides two circumstances under which an ISP can qualify for exemption
from liability:

a) Lack of knowledge: The ISP being unaware of the fact of the event of copyright
infringement or having no knowledge about it is a prerequisite and essential criterion for
determining the liability under section 79 of the IT Act, 2000. If it could be proved that the
ISP was unaware of the happening of the event of copyright infringement or all data that was
stored and conducting though his servers the ISP can escape liability. It is also necessary that
if the ISP is found to have knowledge about the presence of such infringed work in their
storage or passage, they have to carry out measures to removal or taking down of the same
immediately and in event of failure of such measures being taken the ISP is held to be liable.

b) Due diligence: In order to escape copyright infringement liability "due diligence” is to be

exercised by the service provider. If an ISP encounters particularly suspicious circumstances,
i.e. if the ISP is found to have knowledge about the presence of such infringed work in their
storage or passage, they have to carry out measures to removal or taking down of the same
immediately and in event of failure of such measures being taken the ISP is held to be liable.

The provision 79 of the IT Act 2000 lacks clarity in stating service providers their
liability limits. The provision raises questions like in case there is a request made by a person
regarding the purpose of claiming copyright of a particular material that is on the internet19.

Where does the swing sword of liability fall if the ISP fails to take action or measure
within reasonable and what if the service provider fails to prevent the event of infringement
of copyright and whether the plea of not having knowledge of the act is available to him?
And also in the case where the service provider removes the material because of the request
made by a person regarding the purpose of claiming copyright of a particular material that is
on the internet which is later proved to be false, at what quantum the ISPs are liable to the
actual owner of such material that has been removed?

19
James Boyle, The Public Domain, Yale University Press, edition 1 (December 9, 2008)
 CHAPTER IV

THE DIGITAL MILLENNIUM COPYRIGHT ACT 1998 AND its SIGNIFICANCE

It is an honest action taken by the United States to push the copyright laws of the
nations to the digital age making it the first state legislate a statue of such nature that too
specifically for copyright works. The Digital Millennium Act 1998 was a shrewd attempt by
the Congress of the United States with the view of establishing and enforcing treaty
obligations and rights associated with copyright.

Various publishers, scientists, civil right groups and laymen came together and made
a collaborative effort in such a significant statute. The DMCA has its background from the
famous Playboy Enterprises v. Frena case where the Court found Frena liable of infringing
the copyrighted work of playboy by uploading their copyrighted photographs. The defendant
pleaded that he had no intention or knowledge of indulging in such activity and also
contended that there was immediate removal of such photographs from The Bulletin Board
Service and had attempts to prevent further uploading of such photographs once it received
the complaint. The court rejected defendant’s argument and ruled in favour of the plaintiff
stating that

i. Intention or knowledge for committing such infringement is irrelevant and not an

element of infringement relying upon the Section III of Copyright Act.
ii. The service providers are not liable and bound to conduit all the traffic that passes
through them.

Online Copyright Infringement Liability Limitation Act was enacted as a part of the
DMCA after the Playboy Enterprises, Inc. v. Hardenbaugh, case where the defendant was
held liable for directly participating in the infringement by screening the copyrighted
photocopies in the upload file and thereby transferring them to the master file for users20.

20
Kumar Aakanksha, Internet Intermediary (ISP) Liability for Contributory Copyright Infringement in
USA and India: Lack of Uniformity as a Trade Barrier, Journal of Intellectual Property Rights Volume 19,
July 2014, pg.no 272-281.
 The main pros of the DMCA is codifying the ruling in the case RTC v NETCOM
clarifying and prohibiting passive automated acts as a ground for raising copyright
infringement claims. Also the statute effectively established the criteria for determining
vicarious and contributory infringement issues raised against Internet Service Providers. Also
the removal of the copyrighted material that has been uploaded can be brought down from the
website in a relatively simple manner under DMCA. Also it is found to be cost efficient and
time saving method as there is no need to hire a lawyer rather the user can directly serve a
notice to the alleged violator to take down the content immediately. Also penalties
skyrocketing up till USD 150,000 per each violation according to DMCA the users are sure to
reconsider their attempt to infringe a copyrighted work21.

CHAPTER V

CONCLUSION

As said above the provision 79 of IT Act 2000 lacks clarity in various aspects leaving lot of
questions unanswered. Only vague elements are found in the statute making it difficult for the
users to raise copyright infringement claims. There must be parts in provisions or specific
provisions that are equipped enough to determine necessary elements like the relationship
between an ISP and a third party, financial aspect of the transaction, as these are vital in
determining the identity of the violator. It won’t make a bad idea if the American model of
contributory infringement is incorporated. I have postulated my suggestions as following to
condense the happening of events of copyright infringement22.

1. Enactment of separate legislation for protection and enforcement of rights of not just
copyright owners but also owners of IP situated in the cyber space with proper and
unambiguous clarification and addressing regarding concepts like limited liability
limits, due diligence of ISP etc.
2. Encouraging the development of technologies like MediaKey in order to curb
copyright infringement.

21
David Halbreich et al., Intellectual Property on the Internet: Surfing Through Liability and Coverage Issues,
Mealey's Litig. Rep.: Emerging Ins. Disputes, Nov. 14, 1996, at 20, 25-26.
22
Singh Devika, Blacklisting blacklists: The Information Technology Amendment Act, 2008 and ISP driven
content filtering, India Law Journal, 2(4) (2009).
 3. Providing access authority only to valid legitimate users who are recognized as so by
the owner of such copyrighted article and barring others by methodology of digital
receipts or passcodes or memberships etc.:-
4. Addition of features like timed out and protected viewing, non- sharing only viewable
documents etc. to the copyrighted work.
5. There must be parts in provisions or specific provisions that are equipped enough to
determine necessary elements like the relationship between an ISP and a third party,
financial aspect of the transaction, as these are vital in determining the identity of the
violator. It won’t make a bad idea if the American model of contributory infringement
is incorporated.

BIBLIOGRAPHY

Books Referred

1. James Boyle, The Public Domain, Yale University Press, edition 1 (December 9,
2008)
2. Richard Stallman, Free Software, Free Society, Free Software Foundation, Inc.; 2nd
Edition (December 27, 2010)
3. Dinwoodie, Graeme B, Secondary Liability of Internet Service Providers, Springer
International Publishing, Volume 25, 2017

Articles referred

1. Kumar Aakanksha, Internet Intermediary (ISP) Liability for Contributory

Copyright Infringement in USA and India: Lack of Uniformity as a Trade
Barrier, Journal of Intellectual Property Rights Volume 19, July 2014, pg.no 272-
281.
2. William J. Cook, Be Wary of Internet Casting Shadows on Copyright Holders,
Chicago Law., Apr. 1996
3. David Halbreich et al., Intellectual Property on the Internet: Surfing Through
Liability and Coverage Issues, Mealey's Litig. Rep.: Emerging Ins. Disputes, Nov.
14, 1996Singh
4. Devika, Blacklisting blacklists: The Information Technology Amendment Act,
2008 and ISP driven content filtering, India Law Journal, 2(4) (2009).
Other materials referred

1. Microsoft Press Computer Dictionary, third edition, p 207

Legal materials referred

1. Information Technology Act 2000

2. Copyright Act 1957
3. Digital Millennium Copyright Act 1998

Websites Referred

 https://blog.ipleaders.in/copyright-infringement-on-the-internet/
 http://www.mondaq.com/india/x/682548/Trademark/Cyber+Theft+of+Intellectual+Pr
operty
 https://www.plagiarismtoday.com/2015/04/23/6-current-copyright-cases-more-
important-than-blurred-lines/
 https://globalinitiative.net/10-biggest-cyber-crimes-and-data-breaches-till-date/
 https://cyber.harvard.edu/property99/liability/main.html