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IN THE HIGH COURT OF DELHI AT NEW DELHI
S. RAVINDRA BHAT, DEEPA SHARMA, JJ.
Myspace Inc. - Appellant
Versus
Super Cassettes Industries Ltd. - Respondent
FAO (OS) No. 540 of 2011, C.M. Appl. No. 20174 of 2011, 13919 & 17996 of 2015
Decided On : 23-12-2016
The Court held that the appellant, an internet service provider, was not liable for secondary copyright infringement under Section 51(a)(ii) of the Copyright Act, 1957, as it did not have actual knowledge or reasonable grounds to believe that the content uploaded by its users was infringing. The Court also held that the proviso to Section 81 of the Information Technology Act, 2000, does not preclude the defense of safe harbor for an intermediary in case of copyright actions. Accordingly, Sections 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously.
Fact of the Case:
The respondent, a music company, filed a suit against the appellant, an internet service provider, alleging that the appellant was infringing its copyright by hosting infringing content uploaded by its users. The respondent sought a permanent injunction restraining the appellant from infringing its copyright and damages.
Finding of the Court:
The Court held that the appellant was not liable for secondary copyright infringement under Section 51(a)(ii) of the Copyright Act, 1957, as it did not have actual knowledge or reasonable grounds to believe that the content uploaded by its users was infringing. The Court also held that the proviso to Section 81 of the Information Technology Act, 2000, does not preclude the defense of safe harbor for an intermediary in case of copyright actions. Accordingly, Sections 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously.
Issues: Whether the appellant was liable for secondary copyright infringement under Section 51(a)(ii) of the Copyright Act, 1957.
Ratio Decidendi: The Court held that the appellant was not liable for secondary copyright infringement under Section 51(a)(ii) of the Copyright Act, 1957, as it did not have actual knowledge or reasonable grounds to believe that the content uploaded by its users was infringing. The Court also held that the proviso to Section 81 of the Information Technology Act, 2000, does not preclude the defense of safe harbor for an intermediary in case of copyright actions. Accordingly, Sections 79 and 81 of the IT Act and Section 51(a)(ii) of the Copyright Act have to be read harmoniously.
Final Decision: The Court allowed the appeal and set aside the impugned order of the learned Single Judge. The Court directed the respondent to provide an updated catalogue of “specific” works in which it holds copyright along with the location/ URL of such work on the appellant Myspaces website to the appellant as and when SCIL detects infringement. The Court also directed the appellant to remove/ block access to such content, in accordance with Rule 3(4) of the Intermediary Guidelines Rules of 2011, within 36 hours of receiving such notice from the respondent. The Court also directed the appellant to 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.
Section 79 of the IT Act is discussed in the paragraph that explains the scope and application of intermediary protections, particularly focusing on the conditions under which an intermediary can claim safe harbor from liability. It details the provisions that require intermediaries to observe due diligence, not initiate or modify transmission, and respond appropriately upon receiving specific notices of infringement. The paragraph emphasizes that Section 79 provides an affirmative defense for intermediaries as long as they meet certain prescribed standards and conditions, and it clarifies the relationship between Section 79 and other relevant laws and provisions within the framework of intermediary liability. (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!) (!)
S. Ravindra Bhat, J.
1. This is a defendants interlocutory appeal in C.S(OS) 2682/2008 (“the suit”)wherein the order, on application by the plaintiff(“Super Cassettes” or “SCIL”)for interim injunction was granted and the appellant (“MySpace”) was restrained from hosting on its website all of SCIL’s works including future works. Its application for vacation of the previously granted ex parte interim injunction was dismissed. SCIL’s suit claimed permanent injunction restraining Myspace from infringing and exploiting its intellectual property, primarily the copyright owned by it in cinematograph films, sound recordings, and literary and musical works and has also claimed damages for such exploitation. This court, by the present judgment is conscious of the caution sounded in regard to interlocutory judgments by the Supreme Court in International Confederation of Societies of Authors and Composers Vs. Aditya Pandey, 2016 SCC Online 967 (decided: 20 September 2016),that “an elaborate reasoning with the “footnote” that the same are prima facie or tentative is hardly an effective remedy to prevent the imprint of such observations on the human mind that mans the court at different levels.” The single judge’s impugned judgment spanned 132 pages; this court has striven, but not entirely succeeded to cover the entire spectrum of the case, the arguments addressed, the case-law cited and also furnish its reasoning, by this judgment in slightly over a third of that length.
2. SCIL also known as T-Series, started its business in recorded audio and videocassette production and flourished to become one of India’s largest music companies. It now owns and controls copyright in more than 100,000 songs in various languages. It claims to acquires and produce various copyrighted works such as films (cinematograph films), music videos (audio-visual songs), songs (sound recordings), underlying musical works (melody) and literary work (lyrics) and that for acquisition of such work, it invests substantial sums and bears risks. It claims to be the launch-pad for several talented individuals and to have invested significantly to ensure high quality standards in audio-video production. SCIL’s business is exploitation of its copyrighted works either by sale of audio/video records or by licensing their use (including for sale, reproduction, sound recording, etc.) and on multiple platforms like satellite television, radio, digital, Internet and mobile platforms. By its program- the TPPL scheme (“T-Series Public Performance Licenses”) it grants licenses to all those forming the user-base of its works, including restaurants/discotheques, TV and radio stations, malls, hotels, public performers etc. The licensees are enabled to play/use/perform/or communicate the respondents works to the public. The revenue garnered by these furthers SCIL’s business and provides a public platform to the original artists to showcase their talent. SCIL also enters into licensing agreements with various Internet music and video sharing/streaming platforms and Internet service providers. This helps it to regulate and protect the use of its intellectual property and also ensures that a balance is maintained between the rights of the owner of copyrighted work and the use of such work in emerging media.
3. Myspace (variously referred to as “defendant” or “appellant”) is an Internet Service Provider (ISP) and claims to be an “internet intermediary “and operates the social networking and entertainment website www.myspace.com. Its website was first launched in the United States but it now has global outreach. Its foray to India was sometime in 2007. When a user accesses Myspace from here she/he is automatically redirected to the website’s India centric version. Here users can access music works, entertainment videos, images, cinematograph works etc. without paying any fee. Ess
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