Contributory Copyright Infringement
What is Contributory Copyright Infringement?
Contributory copyright infringement happens when a party knowingly contributes to or induces another party’s direct infringement of a copyrighted work.
It is a secondary form of a breach that holds an individual or entity responsible for indirectly participating in the unauthorised use of copyrighted material.
Examples of contributory liability in copyright violation cases include:
Primary Infringement vs. Contributory Infringement
Primary infringement refers to the direct violation of a copyright holder’s exclusive rights, while contributory infringement occurs when someone aids or facilitates the primary infringement.
In both cases, the infringing party can face legal consequences, but contributory violation specifically targets those who enable or support the violation of copyrighted material.
The Importance of Addressing Contributory Copyright Infringement in the Digital Age
Contributory copyright infringement matters for several reasons, as it plays a crucial role in protecting the interests of copyright holders and maintaining a fair and balanced creative ecosystem.
Here are some key reasons why it matters:
Upholding the rights of creators: Copyright holders invest time, effort, and resources into creating original works.
By addressing contributory infringement, the law ensures that those who facilitate or enable violation are held accountable, further safeguarding the rights of creators and encouraging creativity and innovation.
Preserving the value of copyrighted works: Unauthorised distribution and sharing of copyrighted content can devalue the original works.
Contributory copyright infringement helps maintain the value and integrity of these works by targeting those who support or enable infringing activities.
Promoting responsible behavior among intermediaries: Intermediaries, such as internet service providers (ISPs), online platforms, and search engines, play a significant role in how content is accessed and shared.
By holding intermediaries accountable for contributory infringement, the law encourages these entities to adopt responsible practices that protect copyright holders’ rights.
Discouraging illegal activities: Holding parties accountable for contributory copyright infringement serves as a deterrent against engaging in activities that facilitate or enable the violation of ownership rights, thus discouraging illegal activities related to copyrighted content.
Protecting the creative economy: Violation of copyright can have a negative impact on the creative economy, as it undermines the financial incentives for creators to produce new works.
Addressing contributory copyright infringement helps protect the creative economy by ensuring that those who contribute to copyright violations face legal consequences, which in turn supports a sustainable environment for creators to thrive.
Elements of Contributory Infringement
The elements of contributory copyright infringement are the key factors that must be present for a party to be held liable for indirectly participating in the unauthorised use of copyrighted material.
There are two main elements of contributory copyright infringement:
Knowledge of Infringing Activities
The accused party must have actual or constructive knowledge of the primary infringing activity.
Actual knowledge refers to the direct awareness of the breach, while constructive knowledge means that the person should have known about the violation, even if they were not explicitly aware of it.
In many cases, courts will consider whether the accused party had reason to have knowledge of infringement or willingly ignored clear signs of infringing activity.
Material Contribution
The accused party must have materially contributed to the primary infringement.
This means their actions facilitated or enabled the violation to occur, such as providing the necessary tools, resources, or support that allowed the direct infringer to violate the copyright holder’s exclusive rights.
Material contribution can take various forms, including providing a platform for sharing copyrighted material or offering technical assistance to foster violation of the exclusive rights of the owner.
Both elements must be present for a court to hold someone liable for contributory copyright infringement.
If either element is lacking, the accused party may not be found liable for this secondary form of violation.
Understanding Contributory Liability in Indian Law
Section 51 of the Copyright Act in India lays out the provisions regarding the violation of copyright.
Section 51(a)(i) outlines the conditions under which copyright infringement is considered to have occurred.
It states that a copyright is considered to have been violated when someone acts in a manner that is solely reserved for the owner of the copyright without first acquiring a license or in breach of a license.
Contributory infringement in Indian copyright law is grounded in Section 51(a)(ii).
It states that when someone ‘allows any place to be used for profit for communicating the work to the public, and such communication results in copyright violation unless they were unaware and had no reasonable grounds to believe that the public communication would infringe on copyright’, the copyright is also deemed to have been infringed.
Actions that support the primary infringements and those that amplify their impact are two different categories of secondary infringement.
Section 51(a)(ii) pertains to instances where someone assists in the primary infringement.
This section also provides the defense that can be employed by a defendant to avoid liability under this provision, namely that the defendant was unaware or had no reasonable grounds for believing that the public communication would constitute copyright violation.
Section 51(b) addresses scenarios in which the defendant’s actions amplify the consequences of an existing primary infringement.
According to Section 51(b) of the Copyright Act, selling, distributing, importing, or exhibiting an infringing copy of a copyrighted work in public for commercial purposes also constitutes copyright violation.
As a result, India’s legal framework for contributory infringement and secondary responsibility is established under Sections 51(a)(ii) and 51(b) of the aforementioned Act.
Safe Harbors for Internet Service Providers: Understanding the IT Act, 2000
Specific laws regarding the responsibilities of Internet Service Providers (ISPs) are included in the Information Technology Act of 2000, sometimes known as the IT Act.
These provisions establish ‘safe harbors’ for ISPs. Section 2(w) of the IT Act defines an ‘intermediary’ as a person who, on behalf of another, receives, stores, or transmits an electronic message or provides any service related to that message.
The broad definition under the Information Technology Act of 2000 encompasses almost every entity such as ISPs, search engines, and online service providers, allowing them to avail the safe harbor provisions.
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An intermediary is exempt from liability under Section 79 of the IT Act for any information, data, or communication link that they offer or host on behalf of a third party.
However, to take advantage of the safe harbor provisions, an intermediary must meet certain conditions.
The intermediary’s role must be limited to providing access to a communication system, not initiating the transmission, selecting the receiver, or modifying the transmission.
Additionally, the intermediary should adhere to guidelines set forth by the Central Government.
The ‘IT (Intermediary Guidelines) Rules 2011’ outline the conditions an intermediary must meet to receive the protection of safe harbor provisions.
According to these guidelines, the intermediary must observe due diligence measures specified under Rule 3.
For example, the intermediary should remove any infringing material on its network within thirty-six hours of being notified of the violation.
Contributory Infringement Copyright Case of India
My Space Inc. vs Super Cassettes Industries Ltd: A Case Overview
December 2016: Delhi High Court Reversal
In December 2016, the Delhi HC overruled a previous single-judge bench verdict, asserting that intermediaries could not be held responsible for contributory copyright infringement without evidence of ‘actual knowledge.’
2008 Copyright Violation Lawsuit
T-Series (Super Cassettes) initiated a copyright breach lawsuit against MySpace in 2008 for hosting unlicensed infringing material.
MySpace was accused of profiting from T-Series’ copyrighted sound recordings through advertisements placed alongside the content.
Single Judge Verdict
The single judge found the defendant guilty of a violation under Section 51 of the Copyright Act, stating that the safe harbor provisions under Section 79 of the IT Act were not applicable to the defendant, as per Section 81 of the IT Act.
Actual Knowledge Requirement
The court maintained that actual knowledge was necessary for an intermediary to be held accountable for infringing.
Before the defendant could be said to have known about the specific infringing material, the plaintiff had to identify it.
Delhi High Court Decision: Overturning the Single Judge Verdict
The Delhi High Court overturned the single-judge bench’s decision in December 2016, saying that actual knowledge had to be proven before an intermediary could be held accountable for contributing to a breach of copyright.
Safe Harbor under Section 79 of the IT Act
The Delhi High Court later asserted that Section 79 takes precedence over any other law, including the Copyright Act, and any limitations on safe harbor provisions must be considered within the scope of Section 79.
The IT Act and the Copyright Act should be interpreted harmoniously, as they complement each other.
MySpace’s Limited Role and Compliance with the IT Act
MySpace had a limited role in providing access to a communication system and only modified the format, not the content, through an automated process.
Since MySpace met the requirements outlined in the IT Act and Intermediary Guidelines of 2011, it was granted the protection of Section 79 of the IT Act.
Further Reading: Copyright infringement cases in India
Real-World Examples of Contributory Copyright Infringement In the United States
Sony Corp v Universal City Studios Inc
The Betamax case, also known as Sony Corp v Universal City Studios Inc, was a groundbreaking legal dispute that addressed the topic of secondary liability and contributory infringement under the 1976 Copyright Act.
The central issue was whether a VCR manufacturer could be held responsible for copyright violations committed by its consumers.
The court recognised that secondary liability was a firmly established notion in US copyright legislation, encompassing both vicarious liability and contributory liability.
Since Sony was unaware of its customers’ copyright-related acts, the court ruled that Sony could not be held accountable for contributing to that infringement.
The argument was that Sony possessed only indirect knowledge that its clients could utilise its devices to create unauthorised duplicates of copyrighted materials.
The court leaned on the staple article of commerce doctrine from patent law, which asserts that an infringing item with substantial non-infringing uses would not incur liability for infringement.
Sony was found not liable for contributory violation since Betamax had a considerable number of non-infringing applications.
This case laid the groundwork for the notion that selling copying equipment, like other commercial products, does not amount to contributory infringement if the item has widespread legitimate applications and offers substantial non-infringing uses.
The Napster Case
The Napster, Inc. case was about whether the company was responsible for violating the ownership’s exclusive rights that occurred on its peer-to-peer file-sharing platform.
The Music Share software used by Napster allowed users to share and download MP3 music files directly from each other’s computers.
The Ninth Circuit court held Napster responsible for both contributory and vicarious violations.
This means that Napster had actual knowledge of the infringing activity taking place on its platform and materially contributed to it by providing the software and services.
The court ruled that the defense in Sony, which limits liability for companies that distribute products with substantial non-infringing uses, was not applicable in this case because Napster had specific knowledge of direct infringement.
This case set a precedent for holding companies responsible for infringing activities that occur on their platforms, even if the company itself did not directly engage in infringing activities.
Please read the original version of this article on the Bytescare Blog to learn more about it.