Intermediary Liability for Copyright Infringement

Introduction : Online platforms frequently make content available without storing the relevant file on their own servers. A website may embed a video hosted elsewhere, display an image through an external URL, provide a hyperlink to an infringing page or redirect users to a third-party site. These technical arrangements complicate copyright liability because the platform may facilitate access without making a conventional copy of the work.

The legal issue is whether such facilitation makes the platform liable for the third party’s infringement. Indian law addresses this question through two connected frameworks. Section 51(a)(ii) of the Copyright Act 1957 deals with liability where an infringing copy is communicated to the public through a place or business under the control of a person who has permitted the communication. Section 79 of the Information Technology Act 2000 provides conditional safe harbour to intermediaries for third-party information, data or communication links made available through their systems. 

The central limitation on platform liability is the actual-knowledge test. A platform is not generally liable merely because infringing material exists somewhere on its service or because it could theoretically have discovered it. The stronger legal question is whether the intermediary received specific knowledge of particular infringing material and failed to take appropriate action, while also maintaining the passive role and due diligence required for safe harbour.

The Delhi High Court’s decision in MySpace Inc v. Super Cassettes Industries Ltd is the principal Indian authority on this issue. It examined copyright infringement on a user-generated platform and clarified that general awareness of possible infringement is different from actual knowledge of identified infringing content. The case is especially relevant to embedded links and external hosting because it focused on the distinction between providing a technological facility and actively authorising or participating in infringement.

The Statutory Structure

Section 14 of the Copyright Act grants copyright owners exclusive rights, including reproduction, issuing copies, communication to the public, adaptation and other forms of exploitation depending on the category of work. Section 51 identifies circumstances in which copyright is infringed. 

Section 51(a)(ii) provides that copyright is infringed when a person permits the place of public entertainment or business to be used for communicating the work to the public where the communication constitutes infringement, unless the person was not aware and had no reasonable ground for believing that the communication would be an infringement. 

This provision is important because it does not impose automatic liability merely because infringing material appears in a place controlled by the defendant. It contains a knowledge-related limitation. The platform must have awareness, or reasonable grounds for belief, that the communication is infringing. The language therefore requires an analysis of the platform’s role, the nature of the facility and the information available to it.

Section 79(1) of the Information Technology Act provides that an intermediary is not liable for third-party information, data or communication links made available or hosted by it, subject to the conditions in the provision. Section 79(2) applies the protection where the intermediary’s function is limited to providing access to a communication system through which third-party information is transmitted, temporarily stored or hosted, or where the intermediary does not initiate the transmission, select the receiver or select or modify the information.

The safe harbour is conditional. Under Section 79(3), protection does not apply where the intermediary has conspired, abetted or aided the unlawful act, or where it fails to expeditiously remove or disable access to the unlawful material after receiving actual knowledge or notification from the appropriate government or its agency. 

The statutory design therefore balances two concerns. It protects neutral intermediaries from being treated as publishers of every user communication, but it does not protect a platform that participates in infringement, exercises substantial control over the unlawful material or ignores a legally sufficient notice.

What Is an Intermediary?

The Information Technology Act defines an intermediary broadly to include a person who receives, stores or transmits electronic records on behalf of another person, or provides services in relation to those records. The definition covers internet service providers, search engines, online marketplaces, web-hosting services, social-media platforms, payment intermediaries and similar entities. 

The label is not decisive. A platform may describe itself as a neutral host, but the court will examine what it actually does. Relevant questions include:

• Who uploads or selects the content?

• Does the platform edit, curate or promote it?

• Does it control the way the content is displayed?

• Does it generate the link or merely transmit a user-provided link?

• Does it receive revenue connected to the infringing material?

• Does it have the ability to remove or disable access?

• Does it actively encourage users to upload or share particular works?

• Does it make editorial decisions that transform it into a content provider?

A platform’s liability risk increases when it moves beyond passive facilitation. It may still qualify for safe harbour while offering technical functions such as indexing, searching or embedding, but the more it selects, modifies, promotes or commercially exploits the content, the more difficult it becomes to characterise its role as neutral.

Embedding, Linking and Redirecting

Embedding involves displaying content on one website through a technical reference to content stored on another server. The user may see the work within the platform’s interface even though the platform does not possess a permanent copy of the file.

A hyperlink generally directs the user to another location. A redirect automatically sends the user from one website or URL to another. These practices differ technically, but copyright law should focus on their commercial and functional effect rather than on terminology alone.

The first question is whether the platform has itself communicated the work to the public. A platform may argue that it merely provided a link and did not transmit, store or reproduce the underlying content. The copyright owner may respond that the platform deliberately made the work available to users and integrated it into its service.

The second question is whether the platform knew that the linked content was infringing. A general link to a large internet domain does not necessarily establish knowledge. A link that specifically directs users to an identified unauthorised copy, after the platform receives a detailed notice, presents a stronger case.

The third question is whether the platform materially contributed to the infringement. A search engine that automatically indexes pages may have a different legal position from a platform that selects infringing streams, labels them attractively, embeds them into its own service and earns advertising revenue from the resulting traffic.

The fourth question is control. If the platform can remove the link or disable the embed quickly, continued availability after specific notice may affect safe-harbour protection. If the platform has no control over the external host, the appropriate response may be to remove the link from its own service rather than to delete the underlying material.

The Actual-Knowledge Test

Actual knowledge requires more than suspicion or general awareness. In copyright cases, the platform should ordinarily receive information identifying the specific work, the specific location of the allegedly infringing content and the basis on which the complainant claims ownership.

A valid notice should ideally include - The identity and contact details of the copyright owner, evidence of ownership or authority to act, identification of the copyrighted work, the exact URL, embed, link or content identifier, an explanation of why the use is unauthorized, a declaration of good faith and accuracy, details of the requested action.

This specificity matters because platforms may host enormous amounts of content. A notice stating that “many videos infringe our catalogue” does not identify which items must be removed. Requiring platforms to investigate an entire category of content would effectively turn them into general monitors and may encourage excessive removal.

The Supreme Court’s judgment in Shreya Singhal v. Union of India interpreted the phrase “actual knowledge” in Section 79(3)(b) narrowly. It held that the intermediary’s obligation to remove content should arise from a court order or a notification by the appropriate government or its agency, rather than from private complaints requiring the platform to decide legality on its own.

Copyright disputes have produced a more nuanced application. In MySpace, the Delhi High Court treated Section 51(a)(ii) as requiring actual knowledge of specific infringing content and distinguished such knowledge from general awareness that infringement may occur on a platform. The judgment also recognised that copyright owners can provide specific notices identifying individual works and URLs, after which the intermediary must act within the applicable framework. 

The practical result is a layered test. A private copyright notice may be highly relevant to whether the platform knew of specific infringement, particularly under Section 51(a)(ii) and the platform’s contractual or due-diligence duties. But the constitutional interpretation of Section 79 means that safe-harbour removal obligations cannot be read as requiring intermediaries to adjudicate every private allegation without sufficient legal basis.

The Role of Due Diligence

Safe harbour under Section 79 also depends on compliance with the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021. The Rules require intermediaries to publish rules and regulations, privacy policies and user agreements, and to observe specified grievance-handling and content-removal procedures. 

Due diligence is not the same as universal pre-screening. An intermediary may be expected to maintain a notice system, designate responsible officers, preserve records, act within prescribed timelines and communicate decisions to affected users. The specific obligations depend on the intermediary’s category and the applicable version of the Rules.

For copyright platforms, due diligence should include - functioning rights-holder notice mechanism, procedures for identifying repeated uploads, a system for disabling specific links, embeds or redirects, records of notices and actions taken, counter-notice or restoration procedures where appropriate, policies against repeat infringement, clear allocation of responsibility between the platform and external hosts.

The platform should also avoid making misleading claims that it has independently verified all content. A service that presents itself as a curated legal catalogue may face a different analysis from one that transparently provides user-generated links.

When Safe Harbour May Be Lost

An intermediary may lose safe harbour where it actively contributes to the infringement or fails to comply with statutory conditions. In circumstances, such as, the platform creates or uploads the infringing content itself, it materially edits or modifies the content, it selects infringing links for commercial promotion, receives a specific notice and retains the identified content without adequate reason, refuses to implement its own removal procedure, ignores repeated notices concerning the same content or user, exercises editorial control inconsistent with a neutral intermediary role, has a direct contractual or operational relationship with the infringing activity.

Revenue alone is not necessarily sufficient to establish liability. Many legitimate platforms earn advertising or subscription income while hosting third-party content. The stronger question is whether the revenue model is combined with active participation, knowledge and control.

Conclusion

Indian law does not impose automatic copyright liability on a platform merely because infringing content can be accessed through an embedded link, hyperlink or redirect. Section 79 of the IT Act provides conditional safe harbour where the intermediary remains sufficiently passive, observes due diligence and responds appropriately to legally sufficient knowledge.

The actual-knowledge test requires more than general awareness that infringement occurs online. The platform should ordinarily receive specific information identifying the copyrighted work and the particular link, embed or location where the alleged infringement appears. Shreya Singhal restricts the scope of compelled takedown obligations under Section 79, while MySpace applies a specific-knowledge approach to copyright infringement and rejects liability based merely on general awareness.

The legal position is ultimately based on role, knowledge, control and response. A platform that merely provides neutral technical access is more likely to retain safe harbour. A platform that selects, promotes, modifies or knowingly retains identified infringing content faces greater risk. For copyright owners, detailed notices are essential. For intermediaries, transparent procedures, rapid response systems and careful separation between hosting, linking and editorial participation are central to maintaining protection.

Author: Amrita Pradhan in case of any queries please contact/write back to us via email to content@khuranaandkhurana.com or at  Khurana & Khurana, Advocates and IP Attorney.

References

1. Information Technology Act, 2000, Section 79.

2. Copyright Act, 1957, Section 51.

3. MySpace Inc v. Super Cassettes Industries Ltd., 2016 SCC OnLine Del 6382.

4. Copyright Act, 1957, Section 14.

5. Information Technology Act, 2000, Section 2(1)(w).

6. Shreya Singhal v. Union of India, (2015) 5 SCC 1.

7. Super Cassettes Industries Ltd v MySpace Inc., 2011 SCC OnLine Del 4712.

8. Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021.

9. Kent RO Systems Ltd v. Amit Kotak, 2017 SCC OnLine Del 7201.

10. Christian Louboutin SAS v. Nakul Bajaj, 2018 SCC OnLine Del 12215.