Internet Intermediary (ISPs) Liability for Contributory Copyright Infringement in USA and India: Lack of Uniformity as a trade barrier

Abstract

With the internet today transcending all national boundaries, the protection of IP and penalising its infringement over the ‘world-wide-web’ has become even more difficult, given the territorial nature of the grant of the IP Right. Moreover, while hosting, routing, and linking to these ‘infringing material harbouring’ - sites or services, internet service providers (ISPs) themselves become vulnerable to charges of copyright infringement. The law in the US has since long, been very strict against these ISPs for contributory/ secondary copyright infringement, the law being rooted in the landlord/ dance-hall operator liability principle. However, India has only recently enacted a proper legal provision dealing with ISPs. This came in light of continued criticisms that India’s law wasn’t in line with that in the USA, which remains one of the main reasons delaying an Indo-US FTA. Also, India has not ratified the WIPO internet treaties, which makes it in no way obligated to have a strict ISP Liability law. Nonetheless, India’s new law post the 2012 Copyright Amendment Bill read together with the Ss.79 and 81 of the IT Act and the May 2012 Guidelines for Internet Intermediaries constitute a comprehensive law that is both strict as well as consumer friendly. This paper seeks to highlight the salient features of the ISP Liability laws in both these jurisdictions, and also discusses how, even with the new law, differences still remain, leading to continued trade-relations barriers.