With the advancement of technology and as we move into the digital era, the amazing capabilities that it brings with itself to promote and exchange effective and efficient communication, have drastically changed the way we used to communicate a decade ago. The internet era has completely revamped the way people interact. The greatest advantage being the ability to send and receive messages anywhere across the world within seconds.

However, with the updation in technology, the risks it possess to intellectual property has also increased at an alarming rate. And more so, Internet Service Providers play a significant role in not only sending those messages but also giving a helping hand to such risks.

Table of Contents

• What is ISP?
• What are the ISPs Liability?
• Direct liability and contributory liability
• Laws to curb copyright infringement in developed countries
• Playboy Enterprises v. Frena
• Religious Tech. CTr. v. Netcom Online Commun. Servs
• Conclusion

Internet Service Provider are those corporations, which enable a common user, access to internet. These ISPs provide their customers the ability to create art and literature and make them available to the public.

One of the most common risk associated with the digital age is the reproduction of the content and that too without original author’s prior permission. The question for consideration is whether the ISPs can be held accountable for such reproduction?

What are the ISPs Liability?

The major legislation dealing with infringement on the internet is the Information Technology Act. Unlike other developed countries cyber space Act, the Information Technology Act remains silent on the point of liability of the ISPs towards copyright infringement.

The basis of copyright infringement depends upon two factors viz. the direct liability and contributory liability. Under the direct liability, when the person directly infringes someone’s copyright or when a person has a duty to protect copyright but Acts against its interest, such infringement is known to be direct infringement.

However, contributory liability arises only when a person participates in the act of direct infringement and has knowledge of the infringing activity. The problem in the case of ISPs is to place them under which category?

 Under the WIPO Cooperation Treaty, 1996 a new right was incorporated known as right of distribution. This right specifically provides for legal remedies against infringement and promotion of technological measures used by authors to protect their work. Legal protection was also granted to the rights management information systems used by the authors while transmitting works in a digital environment. It was further made clear that mere provision of physical facilities for enabling or making a communication does not itself amount to communication within the meaning of this provision

Thus, WIPO treaty specifically provides for protection of authors from copyright infringement. However, a big question is that if it holds ISPs accountable for such copyright infringement?

The liability of ISPs are neither covered by the Copyright Act nor the Information Technology Act. However, the IT Act protects the ISPs in case they have been able to prove of no knowledge of any occurrence of copyright infringement by them. Furthermore, if ISPs are able to show that they have taken all necessary steps in order to avoid such infringement, they can be exempted from copyright infringement.

However, the story does not unfolds here. The obvious question which arises is whether ISP will be held accountable when it fails to take reasonable steps in order to avoid such infringement? Or whether the plea of not having knowledge of infringement is available to ISPs or not?

The Information Technology Act does not provide any provisions relating to due diligence by the ISPs. Therefore, the question still remains unanswered in terms of IT Act and are left by the legislature at the interpretation of the judiciary.

However, the United States makes its stance clear on this point. Legislations such as the Digital Millennium Copyright Act 1998 and the Anti-Cybersquatting Consumer Protection Act 1999 covers broad concept of copyright infringement in cyber space.

Furthermore, US judiciary have been clear on this point. In the case of Playboy Enterprises v. Frena, the question before the court was to determine the liability of electronic Bulletin Board System operator (BBS) for the acts of users who had uploaded and downloaded the plaintiffs copyrighted photographs?

The Court found Frena liable for violating the plaintiffs right to publicly distribute and display copies of its work. The ruling was based on the ground that intention or knowledge does not form an element of infringement.

In another case of Religious Tech. CTr. v. Netcom Online Commun. Servs , the Court laid down that the notice of infringing activity to the service provider will implicate the ISP for contributory negligence because failure to stop an infringing copy from being distributed worldwide would constitute substantial participation. Substantial participation is where the defendant has knowledge of the primary infringers infringing activities and it induces causes or materially contributes to the infringing conduct of the primary infringer.

CONCLUSION

After the adoption of the WIPO Cooperation Treaty, various developed countries such as United States have adopted its charter and have framed its legislation based on the treaty. Under the legal framework of the United States, ISPs can be held accountable for copyright infringement, had it not taken necessary steps in order to safeguard the interest of the authors.

Indian framework through the Information Technology Act tries to clarify this stance by providing for situations when ISPs can be exempted from copyright infringement. However, it does not define due diligence on the part of ISPs and thus, the question as to whether ISPs can be held accountable for copyright infringement or not still remains unanswered.