The proviso to Section 81 override the “safe harbour” granted to intermediaries under Section 79 of the IT Act
Section 81 which state that the provision of the act shall have an overriding effect. The provision states that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act 1957 or the Patents Act 1970.
Whereas, section 79 has been modified to the effect that an intermediary shall not be liable for any third party information data or communication link made available or hosted by him. This is however subject to following conditions:
1) The function of the intermediary is limited to providing access to a communicationv system over which information made available by third parties is transmitted or temporarily stored or hosted;
2) The intermediary does not initiate the transmission or select the receiver of thev transmission and select or modify the information contained in the transmission;
3) The intermediary observes due diligence while discharging his duties.
As a result, section 81 has created a lot of uncertainty as to the extent of immunity provided U/S 79 of IT Act.
This uncertainty shall be seen in MYSPACE (thereby ‘defendants’) V. SUPER CASSETTES (thereby ‘plaintiff/ T-Series’).
A civil suit was filed in 2008 by T- Series against MySpace in Delhi High Court for alleged infringement of copyright in their works. T- Series had alleged that the social networking site hosted infringing material (over which T-Series had copyright) in the form of cinematographic films, sound recordings and literary works, without obtaining a valid license from them.
Plaintiff further asserted that the Defendants was generating revenue out of these infringing materials by including advertisements at the beginning of these materials uploaded by MySpace’s users. In light of these, Plaintiff sought for relief in the nature of damages and permanent injunction.
The learned single judge favored the plaintiff, restraining the defendants to carry any material that belongs to the plaintiffs in their website. A prima facie case was established against the defendants, constituting an infringement U/S 51 of the copyright act. Hence, the immunity provided U/S 79 of IT Act was unavailable, where the case of copyright infringement claims in light of the clear language of the proviso to S.81. Consequently, the defendants appealed before the division bench, against the impugned judgment of the single judge.
The introduction of the above proviso made it uncertain whether online intermediaries will be eligible for the immunity under S.79 even in cases of copyright infringement claims.
CLARITY ON SECTION 81 OVERRIDDING SECTION 79 OF IT ACT
This raises the question, how would the bench division tackle this tricky proposition – the interpretation to these provisions that ‘safe harbour of S.79 was unavailable in case of copyright infringement claims as the proviso to S.81 saves the rights under the Copyright Act’.
The court without any delay observed that the immunity granted by S.79 is a measured privilege, consistent with global standards for intermediary liability and can only be invoked subject to fulfilling the various conditions therein. Thus, S.79 is no way a blanket immunity, incapable of harmonious interpretation.
The court then seeks to find out the intention behind the proviso to section 81 “To put it differently, but for the proviso (to Section 81), copyright owners would have been unable to pursue legal recourse against Internet intermediaries. Under the current regime, while private copyright owners can still demand action against intermediaries who may themselves post infringing content, intermediaries can seek safe harbour where the content is uploaded by third party users or is user generated”
Therefore, section 79 provides immunity to online intermediaries (especially when it comes to secondary infringement) while at the same time protecting the rights of the copyright holder through proviso to section 81 to sue intermediaries in case of primary infringement and secondary infringement (if the conditions of S.79 and the associated Intermediaries Guidelines Rules, 2011 are not fulfilled).
The division bench set aside the interim injunction and directed T-Series to provide MySpace with a “specific” list of its works, which are made available on the website without its authorization.
The present judgment given by the division bench gave a better clarity on online intermediaries then compared to the interpretation given by the single judge. Moreover, disputes related to digital media merit a treatment distinct from conventional disputes should serve as a guiding light while similar issues are dealt with in the future.
 Ibid, p 38