[This piece has been authored by Sanidhya Bajpai, a student at Dr. Ram Manohar Lohia National Law University, Lucknow.]

Introduction

The age of social media and YouTube has also created a community of content creators by default. The act of creating and sharing content on the internet has become common parlance. The advent of social media platforms and the likes of YouTube have provided people with Platforms to create and upload their own content, which is known as User Generated Content. However, this content sometimes contains material that is the intellectual property of someone else. In this blog, I will be dwelling on the question of intermediary liability of User Generated Content (UGC) with a special reference to YouTube.

The extent of Intermediary Liability

The bare reading of the copyright act shows that the intermediaries can be held liable for copyright infringement for the User Generated Content which uses copyrighted content. Section 79 of the IT act serves as a safeguard for the intermediaries from any liability with respect to third-party actions. However, section 81 of the IT act gives overriding powers to the Copyright Act which begets the conundrum of the intermediary liability for user-generated content.

The same question was highlighted in Myspace v. Super Cassettes, where the division bench while clarifying the position laid out that intermediaries can be held liable if they post copyrighted content themselves but otherwise intermediaries can seek shelter under the safe harbour provision in case of User Generated Content, given they follow the condition in section 79 and the intermediary guidelines.

UGC and Profiteering by intermediaries

The Delhi high court decision in the Myspace case brought some clarity, however, the question of intermediary liability for User Generated Content is still far from being solved. Social media and other intermediaries use algorithms to show people content that they will like and in the process, the UGC which has copyrighted content also gets promoted to likely viewers for more views which makes the intermediaries liable under 51(b) of the Copyright Act. The intermediaries can shrug off the liability under the safe harbour provision, however, the fact that they are profiting from that copyrighted content by virtue of views, data, and promotional advertisements is not novel to people.

In a judgment by Austrian Commercial Court, the court observed that YouTube in an attempt to give tailor-made suggestions by filtering and analysing people’s browsing habits does not play the role of a neutral intermediary. The Austrian court’s decision was on the lines that since YouTube capitalises on copyrighted content it should be held liable.

YouTube has created a mechanism namely “content ID” where copyright holders can upload their content and it will go through videos across YouTube in search of copyright violations. The pay-outs through this have already gone past $3 billion. However this has mostly been in favour of big copyright owners, studios and labels as recently a US federal court denied Youtube’s request to dismiss a case where it is alleged that YouTube only protects the interests of big copyright owners as they have a lot of mechanisms to find and block their content but small copyright holders are left on their own.

Reconsidering Youtube’s liability

In this battle between the copyright owner and infringer, YouTube stands aloof in the safety net of the safe harbour provision. Even though it is not the originator or active promoter of the copyrighted content it still stands to gain a lot from them in terms of data and money. It is practically impossible for YouTube to analyse all the videos for copyrighted content but the point here is that after the copyrighted video is blocked the content creator loses all and YouTube even though it gains a lot loses nothing.

YouTube escapes from liability under section 79 of the IT and other intermediary guidelines which exonerates YouTube from third-party actions. But even if YouTube doesn’t make the copyrighted content and removes it on the notification of the copyright holder it still gains financially from such material and such an unjust enrichment shouldn’t go unhinged.

Safe Harbour and setting Intermediary liability

Safer Harbour provision protects social media and other intermediaries from liabilities, however, the “one size fits all” approach can’t stand a long way in the digital era. In instances where the intermediary stands to gain financially directly from a third party act cannot be exonerated when that same act becomes infringing.

It is an arduous task to decide the intermediary liability as imposing direct liability for hosting infringing material will send a chilling effect across the internet platforms. It will have a direct impact on freedom of speech as intermediaries in an attempt to be safe will stop hosting any borderline infringing material.

So, while setting the liability it needs to be taken into consideration that liability is for and to the extent of financial gain of the intermediary and not for hosting the content. The liability in the case would be of limited nature as in this way the small content creator who infringed the copyrighted material wouldn’t have to carry all the burden as the burden of liability will be limitedly shared by the intermediary as well. The liability on intermediaries should not be primary as in an attempt to escape liability the intermediaries will curb the freedom of speech of the content creators.

Conclusion

The intermediaries stand to earn from copyrighted material and it is more in the case of YouTube and it will be unjust to only make a user who generated content liable when the intermediary passively promoted it and made financial gains. The act of setting liability on an intermediary, especially YouTube will make it respect the small copyright owner on the same tangent as big record labels and studios, as it would be held liable for infringement of anyone’s copyrighted content and, it will end the discrepancy with which intermediaries treat small copyright owners. In this digital era where all the big tech firms are in a run to capture it all at any cost, it needs to be taken care that this capitalist rapacity doesn’t run amok and the unjust financial enrichment of the intermediaries is accounted for.