ABSTRACT

In today’s digital world the role of social networks, e- commerce website and outsourcing hosting services as content distributors has greatly changed during the digital age. But this change has also brought some legal issues concerning these intermediaries, especially when it involves the infringement of Intellectual Property Rights (IPR). In this article, it discusses how far intermediaries are obligated to respond to complaints of IP infringement on their sites, particularly within the legal framework. It discusses measures aimed at IP infringement risk exposure, and protection to intermediaries.

INTRODUCTION

India has seen a fast advancement of online business and solutions which has put great focus on the use of intermediaries in the business. Whether it is a large online store and social networks or internet service providers, intermediaries are significant for enabling communication, sales, and content exchange. However, their critical positioning also makes them vulnerable especially on issues to do with IP rights. The use of these platforms for copyright infringement, trademark infringement, and other forms of IP infringement has created increasing discussions on the level of responsibility. The conflict between IP rights and innovation and free speech is a recurrent issue in the Indian legal system. This paper aims to analyse intermediary liability in India under the legal provisions, judicial precedents and regulations. It also looks at the problems created by the advancement in technology and the international concerns and provides a possible solution on how to come up with a framework that will encourage innovation and at the same time protect innovations through IP rights.

Who is an intermediary

Any person, who receives, stores, transmits or provides any service in respect of such record “on behalf of another person” is what Section 2(w) of the Information Technology Act, 2000 describes as an intermediary. This encompasses telecom service providers, web-hosting service providers, search engines, online payment sites, online auction services, online marketplaces, and cyber cafes. The 2008 Amendment Act expanded and made comprehensive the concept of intermediary.

LEGAL FRAMEWORK

Section 79 of the IT Act, 2000

In India, Section 79 of Information Technology (IT) Act 2000 is the primary legal provision that deals with the liability of the intermediary. This section gives “safe harbor” protection to the intermediaries which makes them immune from the contents posted by third parties on their sites if and only if some conditions are fulfilled. Such conditions include not contributing to the content of the discussion, not changing the content of the posts, and following standard precautions. According to the IT Rules 2021, intermediaries are bound to follow certain due diligence standards including, displaying user policies, taking down unlawful content on receipt of complaints, and having a grievance officer. Non-compliance of these obligations leads to the stripping of the safe harbor protection leaving intermediaries legally liable.

IP Laws and Intermediary Liability

The Indian laws of IP do not have provisions to deal specifically with the liability of intermediaries; for instance, the Copyright Act, 1957 and the Trade Marks Act, 1999. However, their provisions are relevant only in the context of online infringement and even then, they do so only indirectly through reference to the IT Act. For instance, under copyright law, the intermediaries are entitled to compensate the rights owners if they do not take actions against genuine takedown notices containing infringing content. Likewise, if the platforms allow the sale of counterfeit products, they may also be found liable under trademark law if they engage in such activities.

OBLIGATIONS OF INTERMEDIARIES

When notified of an IP infringement complaint to be addressed by intermediaries, it is their obligation to:

Acknowledge the Complaint: Where at all possible a complaint should be acknowledged as received and also the process of verifying its validity should ideally get underway straight away.

Verify the Complaint: Decide the admissibility of the complaint according to legal standards according to which it should be demonstrated ownership of the IP rights and the demonstration of infringement.

Notice-and-Takedown: If the complaint is valid, the intermediary, in order to qualify for the safe harbor defence, should, at the latest, delete, or ban access to the infringing material contained in the specified timeframe.

Engage with Affected Parties: Alert the suspected infringer and see that the infringer has an opportunity to be heard and defend himself fairly.

Maintain Records: Record all complaints received, actions taken and communications for compliance with standards and as a reference for legal proceedings.

CHALLENGES FOR INTERMEDIARIES

A major challenge to India intermediaries is trying to reconcile safeguarding intellectual property (IP) rights with protecting users’ rights, in particular, freedom of speech or expression under Article 19(1)(a) of the Constitution. Although intermediaries are duty bound to act on complaints of IP infringement to fulfil laws such as the IT Act, 2000, excessive removal may cause suppression of legal content, fair use, criticism or parody.

Furthermore, intermediaries are frequently subjected to false or frivolous IP complaints, using such complaints to suppress competition, dissent, or creativity. This puts platforms in a difficult position to assess the validity of complaints without acting as arbiters of law, which they are not equipped to do. Incorrectly addressing these complaints, either through wrongful takedown or inaction, can damage either site users’ rights or IP owners’ rights, creating reputational damage or a risk of civil liability. Balancing these conflicting needs demands intermediary organizations to put in place just, transparent and effective complaint resolution process.

CASE STUDIES

MySpace Inc. v. Super Cassettes Industries Ltd.:

In this case the Delhi High Court elaborated the role of intermediaries in the copyright infringement and noted that safe harbor provision under section 79 of the IT Act is lost if the intermediaries become a part of or derive revenue from the infringing system. This entails activities such as advertising or profiting from materials violating the rights of others, thus making them become responsible for the content. Furthermore, the court stated that intermediaries are obliged to react without undue delay to the notices from rights holders and remove the infringing material, otherwise the intermediaries will be legally liable for such material even if they did not themselves post or upload the material.

CONCLUSION

The liability of intermediaries in IP infringement lawsuits remains as a question of legal certainty, technological feasibility, and practicality. Section 79 of Indian Information Technology Act is a basic structure the success of which has to be seen in the issue of addressing ambiguities and also in responding to changes in technology. This has been done through the courts but a better statutory solution is needed to fill gaps and problems at the cross-jurisdictional level. The IT Rules of 2021 enhanced accountability at the expense of higher implementation burdens for small players, this has raised a question of whether there needs to be a balance between regulation and growth to sustain the digital evolution. The future framework of proactive should be based on transparency, accountability and integration, as well as offering clear rules and fair shares of the intermediary burden. By adopting innovation but at the same time ensuring that there is reliability in the protection of IP, India has the chance of improving on the enforcement of IP and would become a leader of the digital economy globally.