Office Location

Delhi:

E-5, 2nd Floor, Defence Colony
New Delhi - 110024
Tel : 011-24336744

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Mumbai:

Office No. 1410, 14th Floor, Maker Chamber V, Nariman Point, Mumbai
Tel : +91 22-22873499

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Gurgaon:

Level 18, One Horizon Center, Golf Course Road, DLF Phase 5, Sector 43, Gurgaon 122002, India
Tel : +91 124 668 8146 / +91 124 668 8147

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Mumbai (Entertainment and Media Practice)

Office No. 213, 2nd Floor, A-wing, Crystal Plaza, Andheri Link Road, Andheri (W), Mumbai.
Tel : 022-62360762

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Mumbai (Corporate and Transactional Practice)

909/A, Capital Building, Bandra Kurla Complex, East Mumbai- 400098

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Bangalore:

21/2, 1st Main Road,
Opp Indian overseas Bank,
Gandhinagar,
Bengaluru - 560009

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Kanpur:

77A, Cantt., Kanpur - 208004

Liability of an ISP for Copyright Infringements

Internet, as we know, serves as an important tool and a powerful mechanism for our collaboration, communication and interaction regardless of our geographic location. In this era where the Internet is given so much importance, the Courts too have begun to seek assistance of what is called as the “Internet Service Providers” or the ISP to remedy the issues that come before them.  Many a time, these ISPs are sued for evasion of privacy, copyright, etc. The concept of ‘territoriality’, as we all know, becomes a little confusing when applied to ISPs and/or the Internet per se, for Internet is known to work across borders. The Indian law in this regard is no different, for it too does not delimit any such liability of an ISP based merely on territory.

Liability of ISP in India

In India, in the absence of any such ‘territory’ based law applicable to ISPs, the Copyright Act and the Information Technology Act alone would govern the liability of an ISP.

Nowadays the Internet Service Providers are often calling upon their managers to store their users’ data at their own servers and when required, to transmit the same across their area of their network. What is stored (and often transmitted) is at times not checked, and this often causes infringement of someone else’s rights. It is in this process that an ISP becomes liable for an act of Infringement and accordingly gets sued by third parties.  However, it is quite well known that to be liable for infringement, it is necessary that the ISP should materially benefit from the data – whether financially or otherwise.  It is also quite known that an ISP would earn irrespective of whether or not the data so transmitted by it is copyrighted, for there are various accompanying Advertisements that provide financial succor to the ISP. However, the revenues earned from these Advertisements are generally not considered here, as the net earnings arising directly from the data alone count for assessing the liability of any such infringement.

Criminal Liability of an ISP

An ISP can be held criminally liable when, it knowingly does an act of infringement or abets an infringement of -
(a) the copyright in a work, or
(b) any other right conferred by the Copyright Act / IT Act.
If a person knowingly does such an act as is contrary to what the Copyright Act provides for he shall be liable for punishment of imprisonment which may extend to three years and with fine, which shall not be less than Rs. 50,000/- but may extend to Rs.2,00,000/-.

Defense under Copyright Act

However, the crucial point often ignored is that the liability of an infringer is limited to cases where knowledge per se can be imputed to the Infringer. In cases where an ISP is actually unaware that it was causing any such infringement or whether the data in question was a copyrighted data not required to be transmitted through their servers, and where it can actually establish its ignorance, it shall certainly not be liable for any such infringement.

Defense under Information Technology Act, 2000

In accordance with the provisions of Section 79 of Information Technology Act, an ISP is a Network Service Provider and as such an “Intermediary” under the IT Act.  Intermediary is defined as “any person who, on behalf of any other person, receives, transmits or stores any message or provides any service with respect to any message.” This section also provides that no ISP can be held liable if it can establish that it was NOT aware of the infringement that was caused by the third party and can also establish that he had exercised all due diligence to prevent the commission of any such offence.  This defense is akin to the “knowledge” defense available under the Copyright Act.