Indian Film Production Giant Yash Raj Films Sues Triller for Copyright Infringement

In the last few years, amidst wider debate on how accountable intermediary platforms should be for the user content that they host, India has seen a considerable rise in copyright infringement claims against such platforms. This trend has continued even as many have voiced concerns that intermediary liability for infringement does not reflect the architecture of the internet. In the recent case of Yash Raj Films Private Limited v Triller Inc CS(COMM) 9/2023, one of India’s biggest film production and distribution companies, Yash Raj, lodged a suit against the US based short video platform, Triller, seeking an injunction as well as damages against the platform for copyright infringement.

The main grievance of the plaintiff is that “the platform of the defendant uses an extraction tool, which makes available the plaintiff’s copyright works to its users for uploading of audio-visual content/short video and creating new works embodying the plaintiff’s copyright works, without a valid license from the plaintiff.”

The court has issued notice to Triller in the suit as well as the application for interim relief. In its defence, Triller is likely to claim the statutory shield provided to intermediaries under India’s Information Technology Act 2000 (the “IT Act”). This article will take a wider view and analyse the law on intermediary liability in India in general.

Section 2(1)(w) of the IT Act defines an “intermediary” with respect to any particular electronic record, as any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record.

Section 79 of the IT Act makes intermediaries immune from legal liability for the content and communications that they host, provided that (i) they release the entire statutory burden of due diligence that they are required to, and (ii) they take down the unlawful content upon gaining actual knowledge of  the same. Intermediary jurisprudence is based on the reasoning that intermediaries should not be held responsible for the content that they host because they are passive carriers and do not play an active role in the generation, creation or curation of the content.

In order to claim a safe harbour under Section 79 of the IT Act, all intermediaries need to take the due diligence measures listed under Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (the “IT Rules” – as amended in 2022). These measures include publishing a privacy policy, rules and regulations, and a user agreement for access to or use of the intermediary’s computer resources by any person. Also, an intermediary is required to make “reasonable efforts” to prevent a user of its computer resources from hosting, displaying, uploading, modifying, publishing, transmitting, storing, updating or sharing any content that belongs to another person and to which the user does not have any right; which is obscene, pornographic etc; or which infringes any intellectual property or other proprietary rights.

The details regarding the features of the tool that Yash Raj object to are not clear, because detailed arguments have not yet taken place before the court and the order issuing the notice to Triller also lacks sufficient detail of Yash Raj’s claim; however, such cases tend to raise critical questions:

Features of an intermediary tool and the safeguards under which it is made available for use are and should be factored in. It remains to be seen how Triller will defends itself in this case, if it is found to be providing an infringement-facilitating tool with problematic features and terms of access as well as usage.

The rise in cases of alleged safe harbour misuse have led to general discussions around the kind of intermediary liability regime that should be put in place to achieve both tech innovation and optimum protection of the interests of content rights-holders.

A strict liability regime, in which platforms are liable for user misconduct even when there is no proof of any knowledge or fault on the part of the platform, would make it difficult for intermediaries to run a business; however, a rule giving blanket or even wide immunity also seems flawed at the core. Even though policy-makers and courts globally have reached the consensus that blanket immunity for intermediaries is not the correct approach, the pendulum of liability is still swinging. It remains to be seen where exactly it will come to rest.

Fault-based or knowledge-based liability are the two options being considered. Fault-based liability is imposed when the intermediary fails to meet specified “due diligence” requirements or fails to undertake the requisite duty of care. The knowledge-based approach imposes liability when intermediaries know about infringing content or become aware of it.

India has been following the knowledge-based approach since the Myspace pronouncement in 2007 in which the Delhi High Court held that Section 51(a)(ii) of the Indian Copyright Act, which pertains to contributory infringement contemplates “actual knowledge” and not general awareness. But the IT Rules (as amended in 2022) indicate that India is gradually moving towards a fault-based liability regime. In fact, India had proposed raising the due diligence burden to such an extent that all intermediaries would need to deploy automated tools to filter infringing content. But due to sharp criticism from stakeholders, and the argument of unreasonably high costs involved in complying, the provision was diluted. In the current IT Rules, only significant social intermediaries are required to deploy automated filters as an “endeavour.” This means the Rule has been enforced on a “best efforts” basis only; it is not mandatory. If any significant social media intermediary fails to deploy such tools, it would not lose safe harbour status.

Because of a lack of contextual understanding, automated filters may not be able to filter all unlawful content; defamatory remarks, for example, would be hard to remove automatically. However, copyright infringement is something which can be effectively fought using upload filters, because the fingerprinting technology can filter out infringing content without many false positives. While it potentially presents the problem of over-removal of fair use content, human moderators could be the solution – restoring lawful content and minimising collateral damage. Simply put, when it comes to the most suitable intermediary liability regime, a fault-based one with a field-specific, graded approach seems to be the answer. In addition to deploying tools for filtering infringing content; the platforms must not provide – without sufficient safeguards – access to any tools which have the capabilities to modify, curate, audio extract, merge, or copy content and thereby facilitate infringement.