Delhi High Court: A Division Bench comprising of S. Ravindra Bhat and  Deepa Sharma, JJ. decided questions arising out of an appeal filed by MySpace related to ‘knowledge’ of infringement by an intermediary and extent of ‘safeguards’ extended to intermediaries. The suit was filed by ‘Super Cassettes Industries Ltd.’ (hereinafter “SCIL”) against MySpace for infringing their copyright under Section 51 of the Copyright Act, 1957. MySpace is an intermediary on the internet which provides a conduit for videos, songs, etc. SCIL asserts that their songs and videos being communicated to viewers free of cost and the ease of access by MySpace which is discouraging viewers to buy CD’s and DVD’s available in the market and leads to an immeasurable loss in revenue. However, MySpace earns its revenue from the advertisements it places on the videos uploaded on its portal. In addition thereto, there are individuals who upload videos violating the copyright of SCIL under the exclusive control of MySpace. The plaintiff’s contention is that its copyright is violated under Section 51 of the Copyright Act.

The Single Bench of the Delhi High Court found favour with the contention of plaintiffs, it said MySpace cannot take the aid of Section 79 (S. 79 – safeguards offered to intermediaries on the internet) of the Information Technology Act, 2000 because the IT Act and the Copyright Act operate in different fields and only the Copyright Act would apply to the case at hand. Consequently, the Single Bench issued an interim direction against MySpace to remove or block of videos within one week.

The Division Bench re-considered the exposition of law on Section 51 of the Copyright Act with Sections 79 and 81 of the IT Act and set aside the Single Bench decision on the ground that the standard of awareness required in Section 51 is not of mere suspicion or general awareness but of actual awareness. The Division Bench took credence from R.K. Mohammed Ubaidullah v. Hajee C. Abdul Wahab, 2000 (6) SCC 402 –

“A person is said to have notice of a fact when he actually knows that fact, or when, but for willful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.”

The Division Bench also said that the implementation of the order of the Single Bench would be impossible as the equation of virtual place with actual place was not fair as the nature of the internet is very different from physical place because of the sheer numbers accessing the world wide web. The Division Bench also resolved the confusion between Sections 79 and 81 of the IT Act by saying that both have to be harmoniously construed. Section 79 of the IT Act provides a safe harbour to the intermediaries by pointing out cases where the intermediary liability would not be arising. The difficulty in interpretation arises because Section 79 of the IT Act contains a non-obstante to the effect that the provisions of the IT Act would override any law whereas Section 81 lays down that the provisions of the Copyright Act would not in any way be curtailed by the IT Act.

The Division Bench clarified that the remedies of the intermediaries would be available and the same shall not stand precluded by virtue of Section 81 of the IT Act. The appeal was allowed by holding that the plaintiff i.e. SCIL will have to discharge the burden of pointing out the exact violation for MySpace to take it off their website and the same shall be dome within 3 weeks as is contemplated in Rule 3(4) of the Information Technology (Intermediary Guidelines) Rules, 2011. [MySpace Inc. v. Super Cassettes Industries Ltd., 2016 SCC OnLine Del 6382,  decided on  23-12-2016]


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