Notice, Takedown and Counter-Notice under Indian Copyright Law: Enforcing and Defending Business Content

Introduction : Digital Content has become an important commercial asset that can be copied, reposted, and monetized by others very easily. Businesses use photographs, promotional videos, website articles, and advertisements to establish their identity and attract customers. Copyright owners therefore rely on takedown notices to seek removal of infringing content. Conversely, businesses whose content is removed may need to establish that their use was authorised or legally permissible. The mechanism is efficient, but it risks over-enforcement, because takedowns are often acted upon before the claim is adjudicated. This may disrupt marketing campaigns and cause commercial losses. 

This blog examines the statutory basis for takedown notices in India, the particulars a notice must contain, the position of a person whose content is removed, and the risks of asserting a licence or fair dealing in response. It concludes with suggested reforms.

Legal Provisions

A. The Copyright Act, 1957

Section 51 defines infringement, and section 55 provides civil remedies, including injunctions and damages, subject to the applicable requirements. Section 52 specifies acts that do not constitute infringement in the circumstances covered by the provision. Section 52(1)(a) exempts fair dealing for specified purposes, including criticism or review and reporting of current events. 

Section 52(1)(c) exempts transient or incidental storage for providing electronic links, access or integration, unless the person responsible is aware, or has reasonable grounds to believe, that the stored copy is infringing. Its proviso requires that person, on receiving a written complaint from the copyright owner, to refrain from facilitating access for twenty-one days or until a court order is received; if no order arrives within that period, access may continue. Rule 75 of the Copyright Rules, 2013, prescribes the particulars and procedural requirements for complaints under this provision.

Section 60 allows a person aggrieved by a groundless threat of infringement proceedings to seek a declaration, an injunction and damages.

B. The Information Technology Act, 2000

Section 79 grants conditional safe harbor to qualifying intermediaries for third-party content, subject to due diligence and expeditious removal of unlawful material upon obtaining actual knowledge. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 require intermediaries to inform users not to host copyright-infringing content and to maintain a grievance redressal mechanism.

Legal Analysis

Ownership and specificity of the notice

If a business wants to pursue an infringement claim, it must be able to prove its ownership of the copyright. One of the main reasons for failure of copyright claims is inability to provide sufficient proof of ownership. This is especially important in cases of commissioned work. Under section 17, the author is the original owner unless there are some exceptions, for example, employment. Under section 19, the transfer must be signed by the assignor or their authorized representative. In Eastern Book Company v. D.B. Modak, the Supreme Court investigated the originality criterion for copyright protection and clarified that mere labour, or skill is insufficient for copyright protection. In Myspace Inc. v. Super Cassettes Industries Ltd. The Delhi High Court interpreted section 52(1)(c) of the Copyright Act in conjunction with section 79 of the IT Act and stated that knowledge of an intermediary must normally be actual knowledge of infringing material. Therefore, a generic allegation is not enough.

B. The absence of a statutory counter-notice

Unlike the United States, where section 512(g) of the Digital Millennium Copyright Act provides a counter-notice and restoration procedure, the Copyright Act does not establish an equivalent general procedure in the same terms. In practice, disputes are handled through platform policies and the grievance mechanism under the 2021 Rules, whose procedures and timelines vary. An uploader may therefore be left with an informal appeal while the content remains down. 

Shreya Singhal v. Union of India read down section 79(3)(b) so that actual knowledge meant a court order or government notification. The judgment is relevant to the intermediary framework, but it does not establish a comprehensive copyright counter-notice mechanism.

There is no general statutory counter-notice procedure, which raises concern for businesses whose lawful content is removed.

C. Licence and fair dealing as grounds of response

A business When responding to a takedown, the business needs to ascertain if it had the permission to carry out the action that it took. As per the law explained under section 30, there has to be a written license that is signed by the owner or an authorized representative of the owner, and it has to be clear regarding its scope, medium, territory, and duration. A licensee cannot typically give license rights pertaining to something that the licensee cannot legally provide or sell. 

Where no license exists, section 52 might cover a specific exception. Fair dealing according to section 52(1)(a) looks at the use made once again with respect to its own purpose. Indian courts have looked into the use assessment in terms of extent, purpose, and possible competition with the original as held in Blackwood & Sons Ltd. v. A.N. Parasuraman. Using the fair dealing clause has its contradictions because saying that one is using something because there is a process of fair dealing involved does not make criticism valid enough to act under a defense.

D. Legal Risk and wrongful takedowns

Unauthorized initiatives can lead to civil lawsuits and legal claims under Section 55. Moreover, it can harm one’s reputation if the website practices the repeated infringement policy. On the contrary, issuing an unsupported claim can create a danger of removing the legal content and harming the business as well. For instance, if the claim is unjustified, there can be remedies provided by Section 60, but it does not create automatic liability for every mistaken complaint.

Comparative authority offers another perspective. In Lenz v. Universal Music Corp., the United States Court of Appeals for the Ninth Circuit considered fair use under the US takedown framework. The case illustrates concerns about removing material without adequately considering lawful uses. Such a ruling is lacking in India, while we still need to understand whether a certain obligation can be inferred from the evidentiary requirements under Rule 75.

Relevant Case Laws

Eastern Book Company v. D.B. Modak: The Supreme Court considered the originality required for copyright protection. A business must prove originality and title before enforcing. The case is relevant to whether a claimed work qualifies for protection, although ownership must also be established.

Myspace Inc. v. Super Cassettes Industries Ltd: The Delhi High Court held that specific, URL-level notices can require intermediary action, and that no general pre-screening duty exists. The judgment is relevant to the identification of infringing content and the limits of intermediary obligations.

Shreya Singhal v. Union of India: The Supreme Court read down section 79(3)(b) of the Information Technology Act and examined intermediary liability under the Information Technology Act. The judgment provides context for actual knowledge but does not create a general copyright counter-notice procedure.

Practical Implications

Business outcomes depend on the enforcement outcome. Businesses should keep records of evidence of work performed, contracts with freelancers and other agencies, and terms of licensing for third-party assets. The notice must identify the work, provide proof of ownership, and include absolute URLs in accordance with rule 75. It must be approved first to ensure that the fair dealing rule is not violated and that permission has not been given to the company. Before a response is received, the scope of the license and the name of the licensor must be verified legally. One person must be in charge of notices due to the short period of 21 days. 

For policymakers, the issue is whether legislation is needed to create a counter-notice mechanism that clearly indicates the timeframes and penalties for sending misleading notices.

Conclusion

The notice-and-takedown process in India comes from a simple system of the law, which consists of section 52(1)(c), rule 75, and section 79 on safe harbours. The courts have interpreted the law in such a manner that specificity and proof of title are essential components of an effective notice. Nonetheless, the existing framework does not provide for a counter-notice or any specific solution to prevent misuse of notices, apart from section 60. Three changes should be considered: a statutory process for a counter-notice shortly upon receiving the notice, liability for issuing knowingly false notice, and comments on what particulars are required under rule 75. For now, businesses have to assume that both notice and response are formal notices which should be supported by the relevant documents.

Author: Janvi Gaurav 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