INTRODUCTION
In the digital age, the internet is the primary platform for commerce, communication, and information dissemination. However, this borderless digital domain also presents significant hurdles for the protection of intellectual property (IP) rights within India and globally. Infringement content can be easily created, uploaded, shared and accessed online with a large number of users. As such, various tools have been adopted in order to have a strong framework to combat the IP infringements occurring on the online domain. Hence, website takedown actions have emerged as a crucial tool for rights holders in India seeking to combat online infringement of their copyrights, trademarks, and other IP. The increasing prevalence of online infringement underscores the critical need for efficient and effective takedown procedures within India’s legal and technological landscape.
THE PERVASIVENESS OF ONLINE IP INFRINGEMENT IN INDIA
India, has a prolific internet user base and with increasing number of internet users, faces a significant challenge in combating online IP infringement. Copyrighted works, including films, art, music, software, and literary content, are frequently distributed without authorization through various online platforms. Trademarked logos and brand names are often misused on counterfeit goods sold via unauthorized e-commerce sites and social media channels, deceiving consumers and harming brand reputation. The online dissemination of design specifications and the offering for sale of products infringing patents also pose considerable threats. This widespread infringement not only causes substantial economic losses to the IP rights-holders, but also discourages domestic creativity and innovation. The massive amount of online content and the speed of its dissemination over the digital domain, necessitate proactive measures like website takedowns to safeguard IP rights within the Indian digital ecosystem.
LEGAL FRAMEWORKS GOVERNING WEBSITE TAKEDOWNS IN INDIA
The Indian legal framework addresses online IP infringement through a combination of specific laws and general principles. The key statutes include:
- The Copyright Act, 1957: Section 52(1)(c) provides a “notice and takedown” mechanism, particularly concerning the transient or incidental storage of infringing material by intermediaries. The proviso mandates that upon receiving a written complaint from the copyright owner, the intermediary must refrain from facilitating access to the infringing content for 21 days or until a court order is received. Rule 75 of the Copyright Rules, 2013 outlines the essentials of a takedown notice.
- The Information Technology Act, 2000: Section 79 provides a conditional exemption from liability for intermediaries, including website hosts and ISPs, for third-party content. However, this exemption is contingent upon the intermediary observing due diligence and expeditiously removing or disabling access to unlawful content upon receiving “actual knowledge” or being notified by the rights holder or a government authority. The Information Technology (Intermediaries Guidelines) Rules, 2011, further elaborate on the due diligence obligations of intermediaries, requiring them to have mechanisms for handling complaints related to IP infringement and to take down infringing content within 36 hours of receiving notice.
- The Trade Marks Act, 1999: While this act primarily deals with offline trademark infringement, its principles extend to the online use of infringing trademarks, and takedown actions can be initiated against websites selling counterfeit goods or using trademarks without authorization.
- General Principles of Law: Indian courts also apply general principles of law, such as injunctions and damages, in cases of online IP infringement.
THE TAKEDOWN PROCESS IN INDIA: A PRACTICAL OVERVIEW
The notice and takedown process in India generally mirrors international practices with some domestic modifications, in compliance with the Indian IP legal framework:
- Identification of Infringement: IP rights holders identify specific instances of online infringement, documenting URLs and evidence of the violation.
- Preparation of a Takedown Notice: The takedown notice, as per Rule 75 of the Copyright Rules, 2013, typically includes:
- Detailed description of the copyrighted work or trademark.
- Specific URLs of the infringing content.
- Proof of ownership of the IP right.
- A statement that the use is unauthorized and not covered by fair use or exceptions under Section 52 of the Copyright Act.
- Complainant’s contact details and an undertaking to file an infringement suit in a competent court within 21 days of the notice.
- Submission to the Intermediary: The notice is sent to the designated grievance officer of the OSP (Other Service Provider), as mandated by the IT (Intermediaries Guidelines) Rules, 2011.
- Intermediary Action: Upon receiving a valid notice, the intermediary is obligated to take down the infringing content, typically within 36 hours as per the Intermediary Guidelines. For copyright infringements under Section 52(1)(c) of the Copyright Act, the intermediary must prevent access for 21 days.
- Counter-Notice and Restoration: While the legal framework allows for counter-notices, the specific procedures and timelines might vary depending on the intermediary’s policies and the specific legal context (Copyright Act vs. IT Act). If no court order is received within 21 days under the Copyright Act, the intermediary may restore access.
CHALLENGES AND LIMITATIONS OF WEBSITE TAKEDOWN ACTIONS IN INDIA
Despite the existence of a comprehensive legal framework in combating digital IP infringement, there are various challenge for effectively implementing website takedown actions in India:
- Jurisdictional Complexities: Enforcing takedown notices against websites hosted outside India remains a significant hurdle, requiring dependence on international cooperation and requiring distinct legal compliances as per the foreign jurisdictional laws.
- Identifying Intermediaries: Determining the correct OSP or intermediary, especially for platforms operating across borders, can be a difficult exercise, especially when multiple servers of the website exist in various countries.
- Bad Faith Notices: The potential for misuse of takedown procedures through the submission of fraudulent or erroneous notices exists, and the same would have adverse impact on legitimate content and website operators.
- The “Hydra Effect”: Infringing content often reappears on new websites or different platforms shortly after a takedown, necessitating continuous monitoring and action. This is especially true for websites hosting pirated movies and films.
- Resource Constraints: Monitoring the vast online space and pursuing takedowns can be expensive and time-consuming for IP rights holders in India, particularly smaller entities.
- Implementation Variations: The interpretation and implementation of takedown procedures can vary among different intermediaries, leading to inconsistencies in effectiveness.
EVOLVING STRATEGIES AND TECHNOLOGICAL SOLUTIONS IN INDIA
Indian IP rights holders and enforcement agencies are increasingly adopting advanced strategies and technologies to enhance the effectiveness of website takedowns:
- Automated Content Monitoring: Utilizing AI-powered tools to scan the internet for infringing content, including visual and textual matches.
- Digital Watermarking and Fingerprinting: Employing technologies to embed unique identifiers in digital content, facilitating the detection of unauthorized copies.
- Collaboration with Industry Associations: Working collectively through industry bodies to identify and report large-scale online infringement.
- Engaging with Social Media Platforms: Utilizing platform-specific reporting mechanisms to address IP infringements on social media and user-generated content sites.
- Judicial Interventions: Seeking court orders, including John Doe orders, or Ashok Kumar orders as they are referred to in India, to compel ISPs to block access to entire websites known for hosting infringing content.
CONCLUSION
Website takedown actions are a critical component of India’s strategy to combat online intellectual property infringement. While the Copyright Act and the IT Act provide the foundational legal framework, effective implementation requires addressing jurisdictional challenges, ensuring intermediary cooperation, and leveraging technological advancements. As India’s digital landscape continues to expand, a proactive and multi-faceted approach that combines robust legal enforcement with technological solutions and industry collaboration will be essential to safeguard the intellectual property rights of creators and businesses in the digital age. Strengthening international cooperation and refining domestic legal procedures will be crucial in creating a more secure and equitable online environment for IP rights holders in India.
Written by Varshika, Legal Intern at Intepat IP
