Intermediary safe harbour from copyright infringement in India—Alternative to the interpretative conundrum

Abstract

The Information and Communication Technology (ICT) platforms that allow copyright owners to reach a large number of users and increase their economic fortune, contritely; enable the potential infringers preferring free‐riding to upload and distribute copyrighted materials. Under various theories of direct and secondary copyright infringement, the platforms now loosely called intermediaries are likely to become liable for copyright infringement. Like other jurisdictions, Indian law contains specific provisions to protect the intermediaries from such unanticipated liability. However, this intermediary liability and immunity law got muddied by inconsistent interpretations of the two operating statutes. Taking clues from the cross‐jurisdictional insights, this paper looks at the interpretative conundrum. Furthermore, the paper contends how the preferred interpretation is incompatible with the Berne Convention and Agreement on Trade‐Related Aspects of Intellectual Property Rights recommended three‐step doctrine for creating copyright exceptions. Ultimately, this paper advocates for a legislative intervention to clear the clouds of confusion in view of India's endeavour to enact a new law on ICT.