2002 tii Oct 102

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  1. Sai Deepak:My argument is that soitcen 63 does not confer a right upon the copyright holder. It defines an offence, and lays out its punishment. It is like any other provision of the IPC. Section 58, on the other hand, confers rights.Also, I think it would be better for us to analyse secondary liability through Indian statutory and case law before we go by foreign laws. The soitcen 79 shield is, of course, much broader than copyright, so in other matters, analysis of its antecedents might be extremely useful.@ Aditya Gupta:The way I see things, s.79 does not add much in way of protecting intermediaries in way of secondary liability as statutorily laid out.Section 81 does not seem to save s.63 ICA for the reason I’ve mentioned above (it is not a “right”), and I believe that the threshold for “aided” (used in s.79) is as low as the knowledgeable (wilful?) inactivity threshold provided in s.51.Are there any bases (judicial?) for secondary liability beyond these statutory provisions?@ Anonymous (4:23 PM)I am nitpicking, true. But I think such nitpicking is important. The question thrown up by Shamnad’s reading of s.81 is: Even in the absence of s.79, can an honest ISP that does not actively aid and has a working take-down policy be held liable under the Copyright Act while acting as a carrier/intermediary? I argue that insofar as secondary liability goes, it can’t. I think the important point raised by Shamnad is that primary liability may still exist (contrary to what I stated in my first comment). I accept that that was an oversight on my part, but I am still in the process of thinking this through, and am not fully convinced.@ Anonymous (2:06 PM)Thanks for pointing that out, but I think my original question still stands.And just to add some nuance to your statement that lack of knowledge is not an excuse for copyright infringement: independent creation is permissible under copyright law (unlike patent law) and in such as situation, lack of knowledge would go to show lack of infringement. That apart, you are right, lack of knowledge is generally not an excuse. But that is so for primary liability, and not for secondary liability. Lack of knowledge does seem to be an excuse, insofar as statutory provisions on secondary liability go, for secondary liability. What we have to see are what aspects of various intermediaries’ dealings would incur secondary liability, and what aspects would incur primary liability.Would things such as caching (which seem to fall in the hazy space between primary and secondary liability, if you ask me) actually lead to claims of primary liability being held up by Indian courts?Does that mean that in countries where the private use exception is not as broad as it is in India (which means a great many countries), each and every person who uses a browser (most makes of which do, after all, employ caching unless specifically switched off) is liable for copyright infringement? Would that also mean that all the relay servers through which data packets travel are infringing copyright? Would it mean that all copying unto RAM is infringement on part of computer the computer manufacturers?I think a great many practical absurdities will result by applying legal logic strictly. Which is why I believe that we (or at least I) need to think through the issue of primary liability of intermediaries more carefully.

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