2002 Tii June 09

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  1. Dear Shamnad and Kaushik, I was the guest blogger who wrote the post on the issue. I am deelpy grateful to you for bringing Section 81 to light and I admit that this section should have formed part of my post. However, I would like to put forth certain alternative arguments for establishing that Section 81 does not render Section 79 completely inapplicable. Argument 1: Section 81 only provides a jurisdictional basis for approaching the Courts in cases of copyright liability of intermediaries. Kindly note that the language used in Section 81 is “restrict any person from exercising his rights” rather than “restrict any right under the Copyright Act”. The distinction I am trying to make is between ‘the right to exercise a right (i.e the jurisdictional right’ and ‘substantive rights under the Copyright Act’. Argument 2: Argument 1 may be fortified on the basis of the legislative history of the amendment to Section 79. The amendment to Section 79 borrows heavily from the EU directive 2000/31 which is accepted to be its guiding principle. The EU directive itself was brought about and has been used for claiming immunity for intermediaries for copyright infringement and it appears the legislative intent in introducing the amendment to Section 79 was to ensure immunity from all liabilities including from those under the Copyright Act, 1957. I admit the argument may seem far fetched at first, but Courts have adopted similar interpretations in other cases in order to preserve the objective of the statute.Unfortunately, we do not have any comment from the Ministry behind the objective of introducing the proviso to Section 81. If the objective of the proviso was actually to nullify the effect of S. 79 with respect to copyright infringement, it is unlikely that an amendment will be introduced in the Copyright Act for absolving ISPs from liability.I would deelpy appreciate any further comments which you may have on the issue. Regards, Aditya Gupta

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