Many businesses were negatively impacted by the COVID-19 pandemic and the
resulting lockdowns. As a result, many of them have had to undergo changes to
stay afloat in these unusual times. Many businesses were forced to shift from
their conventional, physical mode of delivery to online mode which is most
suited for the time. While this did help ensure the continuation of business but
it brought its own complexities.
One such issue of considerable concern was that
of the increase in the unauthorized distribution of pirated content. The
newspaper industry is one of those industries which was impacted most due to
lockdown and then the practice of illegal e-newspaper distributions adds to
their misery. Due to the prevalence of the above issue, the Indian Newspaper
Society issued an advisory, advising its members to take strict legal action
against those who download, edit, and/or distribute these e-papers.
In May 2021, the Delhi High Court passed an interim order restraining WhatsApp
and Telegram from illegally circulating e-papers of the Times of India and its
sister-publication Navbharat times on their platform. The Court issued notice to
the two apps along with certain individuals who are administrators of groups on
their platforms while barring them from circulating e-papers for alleged
The contested decision raises interesting concerns about
the copyrights of publicly available e-papers, intermediary responsibility, and
the challenges that end-to-end encryption poses to the efficacy of such orders.
This article tries to address the issue by demonstrating how end-to-end
encryption has created a safe harbour for copyright infringers in an attempt to
argue for a change in the present stance on intermediary responsibility.
The question of copyrights concerning e-papers can be complicated due to
differences in how they are disseminated by various publishers. The issue is
less evident when the e-newspapers are delivered to paying subscribers or for
free to identifiable or anonymous individuals under user agreements. It is far
more evident when the same is supplied for free to anonymous users without user
The absence of a user agreement in such instances causes ambiguity
in terms of the ability of individuals to distribute e-copies on social media
platforms and of the aggrieved party's right to prosecute in situations of
alleged violations of copyright. In such circumstances, the "doctrine of implied
license" can be used to analyse if an implied authorization exists for such
The doctrine of the implicit license originates from contractual law. This
copyright doctrine is often utilized to allow licensees to use licensed goods
normally. While implementing this theory, it is also important to assess the
constraints on the usage of the goods under the implied license. A quintessence
test in this respect is to evaluate whether the act (in this case, the
circulation) is important if the agreement between parties is to be meaningful.
Aside from the scope of the agreement being used to determine the legality of
such circulations, the provisions of Section 52(1)(a)(ii) and (iii) of the
Copyright Act, 1957 also apply in such cases. As per the section, copying or
disseminating literary content for the purpose of critique, review, or reporting
on current events would not be considered a copyright violation. The common
occurrence of persons disseminating the whole e-newspaper for neither of these
permissible reasons nor taken the authorization of the copyright holders would
hence not be allowed under this law. The same also applies to the current case
hence making the said act an infringement of copyrights.
Intermediary Liability on the issues of Copy Rights
Under Section 79 of the Information Technology Act 2000, social Media platforms
being intermediaries, are protected from liability for user-generated content.
The same holds true if their sole participation in the matter was to provide a
communication system over which the material was communicated and they were not
responsible for the conception, transmission, or reception of the content. As
per the Section, intermediaries can only claim benefits under the clause if they
did not have actual knowledge of the disputed material.
In the case of Myspace v. Super Cassettes
, the Delhi High Court expanded
the application of section 79 to shield intermediaries from responsibility for
copyright infringement caused by user-generated material as long as the
intermediary's actual knowledge
could not be proven. According to the
decision, real knowledge may only be determined when the exact location of the
infringement is conveyed to the intermediaries.
Shree Krishna International v.
was another case that dealt with a similar aspect of intermediary
liability for copyright infringement by the circulation of third-party content,
where the court held the defendants (intermediary) liable because they did not
take down the content despite having "specific knowledge" of the copyrighted
End to end encryption: a double-edged sword
Another question that emerged from this discussion is the hurdles created by
end-to-end encryption for the implementation of court orders or statuary
provisions. Most of the famous social media sites feature end-to-end encryption
for the privacy of its user, but this creates problems if someone uses this mode
of transmission for sharing copyright contents. If intermediaries implement such
features that allow for decryption while implementing end-to-end encryption, the
same would defeat the purpose of end-to-end encryption.
One best way for the Court to overcome the problem created by end-to-end
encryption is to issue John Doe orders. A John Doe order is one in which an
injunction can be issued against someone whose identity is unknown at the time
the order is issued. It safeguards the copyright owner's rights in situations
where a copyright infringement by an unknown offender is imminent. This gives
copyright proprietors a way to pursue legal action against anonymous copyright
infringers without needing to know who the alleged infringers are.
These orders not only protect against claimed infringing actions by unknown
persons, but also prevent future infringements by forbidding all unknown classes
of people from engaging in the alleged infringing activity. The aggrieved party
(copyright holder) now simply needs to serve a copy of the order on the
infringing party instead of having to file a fresh suit for an injunction, which
greatly reduces the delays that typically occur in such situations and would
save the plaintiff a significant amount of time and money. As a result, the
delay is much reduced, and the harm caused by the infringement is greatly
One conceivable solution is to extend the applicability of the 'Inducement rule'
from the United States to India. The rule is a type of "secondary liability"
established by a US court in the MGM v. Grokster
case. According to the rule, an
intermediary can be held responsible for aiding or encouraging copyright
infringement indirectly. While implementing the same in its original form may
not be entirely possible, an adaptation of the same may be highly useful in
building a more effective and powerful copyrights security mechanism.
Copyright infringers have found safe refuge on social media sites that provide
end-to-end encryption as they exist now. This is partly because of the total
anonymity offered to users, and partly owing to the lack of responsibility of
the intermediaries who are, in effect, implicitly facilitating and permitting
While measures such as John Doe orders may assist to relieve the situation to
some extent, the present system has to be rethought to solve the issue of
anonymous piracy, particularly on platforms where even intermediaries are unable
to determine the people's identity. Given the rise in the dissemination of
copyrighted content on social media platforms, it's also crucial to re-examine
intermediary responsibility in end-to-end encryption. Unless action is done to
this effect, social media platforms like WhatsApp, Telegram, etc. remain safe
havens for copyright infringers, at the expense of copyright holders.
Award Winning Article Is Written By: Mr.Rishabh Dwivedi & Mr.Satyam Dwivedi
Authentication No: MR206787912158-08-0222