Liability of Internet Service Providers in the Context of Copyright Infringement in India- A Critical Analysis

Abstract

The ISPs present an attractive regulatory target in relation to online copyright infringement. The reasons for this are both pragmatic and principled. One – the ISPs by virtue of their mediating role are in a position to control third party actions. They can also be used in a compliance-focused way at the pre wrongdoing stage by relying on their monitoring/ surveillance potentials – thus reducing the amount of delinquent behaviour .... Two, primary wrongdoers are difficult to sue. By contrast, ISPs are likely to be locatable, fewer in number and with deeper pockets. However, holding ISPs liable for copyright infringement committed by their subscribers has its downside. Impracticability of monitoring the Internet is often cited as a defence by those who argue against imposing liability on ISPs. 

Concerns of impracticability (of monitoring) and unfairness notwithstanding, ISPs are being increasingly brought under the legal scanner by nations across the world. This is perhaps because ISPs are "the most important and obvious focal point of Internet control'.

Liability of ISPs initially rooted in common law doctrines has albeit, for quite sometime now, shifted to occupy centre stage in the regulatory framework that governs the Internet. The paper attempts to critically evaluate liability of ISPs under the Indian Copyright Act in the light of the amendments to the Act of 1957.