Marsoof and Gupta (2019)
|Marsoof and Gupta (2019)|
|Title:||Shielding internet intermediaries from copyright liability — A comparative discourse on safe harbours in Singapore and India|
|Author(s):||Marsoof, A., Gupta, I.|
|Citation:||Marsoof, A.and Gupta, I. (2019) Shielding internet intermediaries from copyright liability — A comparative discourse on safe harbours in Singapore and India. J World Intellectual Prop. 22, 234 - 270|
|Key Related Studies:|
|About the Data|
|Data Description:||The study consists of a comparitive legal analysis of intermediary liability legislation in India and Singapore.|
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|Data Analysis Methods:|
|Cross Country Study?:||Yes|
|Government or policy study?:||No|
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“Without intermediaries that provide access to, host and link content, the internet will not be the vibrant place it is today. Yet with the rising number of online copyright infringements, right holders have increasingly shifted their focus to intermediaries in their efforts to curb infringements. This has led to internet intermediaries being increasingly exposed to copyright liability. In light of this, safe harbours that provide certain classes of intermediaries with conditional immunity play an important role in maintaining a healthy balance between the interests of right holders and third parties. In the copyright context, the Digital Millennium Copyright Act 1998 (DMCA) enacted in the United States was the first instance where such a safe harbour was afforded to internet intermediaries. During the two decades of the DMCA's operation, it has been used as a blueprint to shape safe harbours in other jurisdictions. This article focusses on two such jurisdictions—namely, Singapore and India—and provides a comparative and in‐depth analysis of the safe harbour frameworks in the said jurisdictions, while mapping out how they compare with the DMCA. In the process, the article highlights a number of features in the DMCA that have been remodelled in Singapore and India.”
Main Results of the Study
Overall, the study finds that the Singapore system of intermediary liability creates a better balance between copyright owners, intermediaries and users than India (and potentially the USA/DMCA system):
• The knowledge standard is stricter in Singapore. Notices that are not fully or substantially compliant cannot be used to impute actual knowledge or red-flag based knowledge.
• Singapore also grants broader protection to users and creators of UGC by allowing counter notices and restorations under any circumstance (whether subsequent to a notice or otherwise).
• By contrast, several features of the Indian system create legal uncertainty. In particular, the study points to the requirement for intermediaries to act within 36 hours of receiving a notice; but to what extent content should be removed within this timeframe is uncertain (an acknowledgement may be sufficient. Similarly, the lack of counter notifications and restoration provisions may lead to narrower protection for users/creators of UGC.
• However, India does have unique features worth consideration. The knowledge requirement is premised on actual knowledge derived from the notice served upon the intermediary, to the exclusion of any “red-flag” knowledge. India also imposes additional due diligence requirements on intermediaries to protect the interests of rightsholders.
Policy Implications as Stated By Author
The study recommends re-evaluating the Indian system of intermediary liability, noting that a “more structured and consolidated approach to the liability and immunity of internet-based intermediaries is needed in the interest of substantive and procedural certainty and clarity”.
Coverage of Study