Introduction:

We all live in the age of technology, in this internet plays an important role in it. It is the medium of communication. Many materials can be transfer and access over the internet. But we can also call it as the largest copying machine, it download and copying the data and use it for unauthorized works. They also used the copyright works and the protected information. Therefore internet has both sides to it. Here the role of ISP (internet service provider) comes where we can held them liable for these types of infringement of copyright.

What is internet service provider?

The entity which connect the person to the internet, and provides the entire internet based services. Such as the web page building and the hosting, an ISP has the equipment and telecommunication line, which should have access of internet for that particular area to be served. There are various intermediateries in between providing the material online to the user and by uploading to online; they basic transmit the work of third party.

The two main services provided by the ISP are:

• Web site building and hosting: an entity to provide individual to management of individual and the business sites.

• Access providing: an entity that arrange for an individual and organizations to have internet access.

Therefore it is the medium to provide the passage of the information. Some of the internet service providers are- BSNL, MTNL, Bharti Airtel, reliance communications, Asianet Communication etc.

In simple terms we can say that ISP are companies that provide the internet access from anywhere i.e. from home, offices, or any place by any electronic gazette like phones, laptop etc

Types of ISP:

• Access provider: they provide internet through telephone lines, cables and fiber optics.

• Mailbox provider: they use to host the sevice.

• Hosting ISPs: they offer the services like sending mails, web hosting machines and virtual machines and clouds.

• Virtual ISPs: they provide internet services via the other ISP providers.

• Free ISP: they do not charge any amount for providing the internet service/

   Liability of internet service providers:

The liability of ISPs may arise in various fields like the copyright, trademark, criminal law, trade secret law, tort law etc.

Liability under copyright Act, 1957:

The copyright act does not mention the provision related to internet expressly even after the first amendment, however some provisions can be interpreted to have the liability of ISPs. The sections related with are section 51(a)(2), copyright in a work shall be deemed to be infringed.

This section says when the person without the license granted from the owner of the copyright or registrar of the copyright does anything in contravention of the act shall be held liable or anything against the condition imposed by the competent authority.

This section states two things that infringement done at any place or for the purpose of profit. Here the computer servers are located at different premises and come under the ambit of any place, and can infringe the activities of third party. Another thing is for the profits making to make them financially strong from the infringing activities. They take some amount for their services but could also make money by indirectly taken advertisements.

There are primary and secondary liabilities, in primary they are strictly liable and in secondary they should be mere distributors and organize of performance and some contribution in the infringement. But the copyright act does not specifically divide the liability into the two. In copyright, the secondary has liable because there is knowledge of infringement.

Liability under the information technology act, 2000:

In India, under this act, the internet service providers are called as network service provider. And defined under the explanation of section 79(a), it means an intermediary.

And the intermediary is defined under section 2(w) as any person who on behalf of other persons receive, store and transmit the any electronic messages and provide services with respect to them.

The section 79 states the exemption from the liability of these intermediaries.

It shall not be liable for the infringement of the third part data if-

• The function of intermediary is to access the communication system and the information is provided on it.

• The intermediary does not select the receiver and modify the information contained in the receiver.

• The intermediary observes the guidelines of central government and take due diligence while discharging their duty.

 The section 79(3) states that these are liable in the following conditions:

•   The intermediary has conspired and abetted the offences under this act; they threat another person or promise to do any act which is unlawful in nature.

• That the information, data, links are been shared for any unlawful act, or on receiving the information of this nature from the government, the intermediary doesn’t remove it or disable to access it.

The act states that which are not liable to be infringement, and widen the scope, that except these others things can be liable to infringement.

Criminal liability:

The criminal liability comes when he done the act of infringement or abets for doing the act of infringement of copyright or any other rights conferred on it.

In this situation the punishment may extend up to one year or with fine.

How can the ISPs be exempt from the liability?

• Lack of knowledge: he can escape from liability if he proves that he is unaware of the happenings that infringing materials is passing and stored through his server. But if a notice or information of these materials are given then they can not take the plea of lack of information  and has to take the proper action for removing these types of contents.

• Due diligence: it means he has to take all the precautions and there must be no negligence on the part of it. As there are millions of files in gigabyte passed through it, so its not possible to check all of it but if checks some particular suspicious files then it amount to due diligence. It means duty to take care and investigate any material which is unlawful and block it whenever you found it.

International perspectives of internet service providers:

USA- there is a Act know as Digital Millennium Copyright Act 1998, which provides the liability of ISPs for copyright infringement and internet sites. It provides the mechanism to remove the infringed materials from the websites. There must be an authorized agent and registered under the U.S. copyright office. They also impose that there should be the knowledge of infringed material on the part of the operator of the site for held liable.

Europe –they have two types of approaches: vertical approach means different liability regime apply to different areas of laws, as adopted in US. Another is vertical where the liability is same without the respect of the type of infringement. There are directives which provide the specific liability exemptions.

Australia- there is a concept of diffusion rights and for this the 3 elements must be satisfied-

• There should be the transmission of the work.

• The work should be transmitted to their subscribers.

• There should be the material of infringed materials.

These all 3 conditions came from the landmark case of the Australian court i.e. Telestra case. And the court took look at these points to determine the liability. After this case the Australia has adopted the Copyright Amendment ( Digital Agenda) Act, 2000.

Canada- they don’t have any specific laws. They have two types of infringement- direct and the indirect. Direct, when person does any act which is exclusively for copyright owner only. In indirect, the person knows that this is copyright infringement but carry on his work. The court decide the punishment on the basis of knowledge of infringement. But these laws appear to be flexible when deals with the internet laws.

Asian countries- like the Singapore, they have the enacted laws like the registry of trade mark and patents formed an electronic commerce committee in 1998 along with these are bills passed by the parliament as copyright (amendment bill)1999. under this, the network service provider makes an electronic copy of the copyright materials available on the network and it cannot be liable for infringement if:

• Made available in the course of providing connections.

• The storage and transmission is done at the direction of user.

• The content should not be deliberate modify by the network service provider.

Conclusion:

As we all know that nowadays the internet has become a part of life. so, here the key role of internet service providers came. The ISPs used to connect the people to the internet and provide the third party material. The liability may arise in the different field of law. But there are various Acts like the copyright Act, 1957 and the Information Technology Act, 2000 which states the clear ground to held to be liable. The government should makes some stringent laws regarding this because it contain large amount of data including the personal information also, so it’s necessary so save from any kind of infringement.