INTRODUCTION
“Code is law. As we move online, it is not the legislature but the architecture of the internet that will determine how freedom and control coexist.”
– Lawrence Lessig
In the contemporary world, where every person has internet access also has the potential to become a creator, a distributor or even a consumer of copyrighted material. This popularization of content creation has stimulated multifaceted legal challenges, notably concerning copyright infringement on online platforms.
Although the law evidently punishes the direct infringers, it is often the intermediaries, such as the internet service providers (ISPs), social media platforms, and the video sharing apps who face scrutiny for aiding such infringement.
In India, the matter of intermediary or secondary liability has attained a notable standing with the accelerating rise of user-generated content and digital piracy. The Indian legal framework, through the Copyright Act, 1957 and the Information Technology Act, 2000, attempts to find a balance between protecting the rights of the copyrights owners and safeguarding innovation, digital entrepreneurship and free expression.
This particular article assesses the principle of secondary liability for copyright infringement in India, the evolving role of the internet service providers, the judicial trends in enforcing the intellectual property rights in cyberspace.
CONCEPT OF SECONDARY LIABILITY IN COPYRIGHT
Secondary Liability occurs when a person or any entity, albeit not directly, commits infringement, facilitates, contributes or induces to it. It is conventionally divided into two categories, i.e., Contributory infringement and vicarious liability.
Though the Indian Copyright Act, 1957, does not unequivocally defines these doctrines, the concept is deliberated in Section 51(a)(ii), which states that a person who permits the use of any place for communication or sale of infringing copies shall be liable if they were aware of such infringement.
Around the globe, the doctrine has been well established. In the United States, the “Substantial non-infringing use” test was introduced by the landmark case of Sony Corp. of America v. Universal City Studios, Inc., (1984), dealing with the limited liability for manufacturers of technology capable of lawful use.
Subsequently, in MGM Studios Inc. v. Grokster, Ltd., (2005), the United States Supreme Court held that a service provider can be held secondarily liable if the service provider knowingly encouraged infringement by users. These principles have flowed into the Indian jurisprudence on online intermediaries.
LEGAL FRAMEWORK IN INDIA
India’s framework on secondary liability is governed by a combination of the Copyrights Act, 1957 and the Information Technology Act, 2000 (IT Act).
Copyrights Act, 1957
- Section 51(a)(ii): This particular section deals with liability for allowing the use of premises for infringement.
- Section 63: In accordance this section provides for the penalties for the said infringement.
Information Technology Act, 2000
- Section 76: This section of the IT Act furnishes a ‘Safe harbour’ for the intermediaries safeguarding them from liability for third-party content if they operate in the role of as mere facilitators and uphold ‘due diligence’.
- The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021: This additionally inflicts obligations on the intermediaries, compelling them to act upon particular complaints, maintain the grievance redressal mechanism and remove infringing material within 36 hours.
This convergence between the two statutes (Copyright Act and IT Act) provides for both copyright protection and intermediary immunity which offers the crux of India’s approach to intermediary liability.
This protection relies on certain terms, and if the intermediaries participate or do not remove infringing material after obtaining actual knowledge, the intermediaries will lose their immunity.
JUDICIAL INTERPRETATION
The Indian judiciary has acted a quasi-judicial role in shaping secondary liability with relative judgments that are insatiably trying to reconcile the proprietary interests of copyright enforcement with the freedom of the internet.
The Myspace Inc. Case
The Delhi H.C’s ruling in the case of Myspace Inc. v. Super Cassettes Industries Ltd., (2016), continues to be a landmark within the framework of intermediary liability in India. In its ruling, the court ruled that intermediaries are not required to monitor each and every piece of content in a proactively manner, and only have to act, with specific takedown notices from copyright owners. Blanket monitoring would be infeasible technologically, and would be antithetical to free speech. The judgment aligned Indian law with international standards of “notice and takedown” by placing emphasis on the need for reasonableness and practical application.
The Kent RO Systems Case
Importantly in the case of Kent RO Systems Ltd. v. Amit Kotak, (2017), the court reaffirmed that intermediaries receiving coverage under Section 79 must adhere to their obligations of due diligence to qualify as passive conduits of information. The decision emphasized distinctions between active participants – who can be held liable – and neutral intermediaries – who can’t.
The Super Cassettes Ind. Case
The recent decision in case of Super Cassettes Industries Ltd. v. YouTube LLC, (2023), dealt with the ancillary issue of secondary liability in a streaming world. The Delhi High Court held that YouTube would not be held liable for infringing content uploaded by users, as long as once a valid complaint was received, YouTube acted to delete the infringing content. Essentially, the Court relied on the “actual knowledge” standard embraced in Shreya Singhal v. Union of India, (2015), which enabled the intermediaries to refrain from unrealistically high obligations in policing content.
The Indian judiciary has repeatedly called attention to a harmonized approach of imposing accountability on the intermediaries for negligence as well as preserving the technological neutrality that is essential for digital progress.
CHALLENGES
Even though there is judicial clarity, India’s intermediary liability system still faces a variety of challenges:
- Lack of a statutory definition of “secondary liability,” resulting in differences in interpretations.
- Over-reliance on self-regulation that allows larger platforms to create takedown policies without transparency.
- There is a lack of understanding of the distinction between “active” and “passive” intermediaries, specifically with regard to content-categorizing algorithms.
- Enforcement issues at an international level, as infringing servers may not be located in Indian territory.
RECOMMENDATIONS
- Provide a statutory definition of “secondary liability” in the Copyright Act.
- Provide a uniform notice-and-takedown process with a time limit, and in a manner consistent with international best practices.
- Oblige intermediary platforms to produce transparency reports regarding alleged infringing content.
- Support co-regulation, where compliance is designed jointly by industry and governmental actors to protect the rights of creators while continuing to encourage digital innovation.
CONCLUSION
The development of intermediary liability in India has demonstrated that the judiciary has pragmatically engaged with issues of balance between enhancing creative rights, while allowing for technological freedom. The Indian judiciary, through cases like Myspace and YouTube, has aligned domestic law alongside comparable international standards focused on protecting copyright holders of course, in the context of the “reality” of digital intermediaries.
As India transitions into a data-driven, AI-driven future, secondary liability must evolve to encompass new platforms, algorithmic curation, and global content environments. The aim is not to bring in more regulation but to create adaptive frameworks to better protect creativity, innovation, and user agency in equal measure.
“The future of copyright law will not be about punishing technology either, but developing policies empowering creators and intermediaries to operate together in well-ordered, internalized environmental ways – meeting under fair, transparent, and responsible terms.”
FAQs
1. What is intermediary liability in the context of copyright law?
Intermediary liability pertains to the legal duty of online platforms or service providers—such as YouTube, social media websites, or ISPs—to address copyright-infringing content uploaded or shared by their users. In India, intermediaries receive protection for liability under Section 79 of the Information Technology Act, 2000, if they are acting as neutral intermediaries and fulfilling their duties of due diligence.
2. Are intermediaries in India directly liable for user-generated copyright infringement?
No, intermediaries are usually not held liable for user-generated content, unless they intentionally engage with, endorse, or possess infringing content on their platform and fail to remove the infringing material upon valid notice. This rationale was established in Myspace Inc. v Super Cassettes Industries Ltd. (2016), through the “notice and takedown” approaches.
3. What constitutes ‘secondary liability’ for copyright infringement?
Secondary liability transpire when the defendant although not directly infringing, assists, induces, or profits from the infringing activity of another person. This includes contributory infringement (assisting or inducing an infringer), and vicarious liability (obtaining profits while having the right and ability to control such infringing actions).
4. How does the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 affect copyright enforcement?
These Rules obligate intermediaries to take swift action in response to certain complaints, remove infringing material within 36 hours, and ensure grievance redressal mechanisms are addressed. If intermediaries do not comply with the Rules, they can lose the protections of “safe harbour” under Section 79 of the IT Act, and be liable for the actions of users.
5. What are the major judicial precedents shaping intermediary liability in India?
The important cases are:
- Myspace Inc. v. Super Cassettes Industries Ltd. (2016 SCC OnLine Del 6382)
- Kent RO Systems Ltd. v. Amit Kotak (2017 SCC OnLine Del 7228)
- Super Cassettes Industries Ltd. v. YouTube LLC (2023 SCC OnLine Del 4352)
In these decisions, the courts highlight that while intermediaries are not held to a standard to monitor all activity, they must take action once they have actual knowledge of infringement.
ABOUT AUTHOR
Anushree Vijay Tawani is a law student at BMS College of Law, Bangalore, with a focused interest in Intellectual Property Rights and Corporate Law. She is committed to developing her expertise through rigorous research and writing, aiming to contribute to the evolving discourse in these fields.
REFERENCES
https://www.lexology.com/library/detail.aspx?g=be8df572-55b1-499a-85cf-8b44b59ee0bc