COPYRIGHT INFRINGEMENT IN CYBERSPACE

Project Report submitted to:

Ms. KUHU TIWARI
(Faculty: IPR COPYRIGHT(Hons))

Submitted by:
SIDDHARTH.M
Roll no. 125
SEMESTER NINE
Section B
SUBMITTED ON- 10/10/2014

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, C.G.

ACKNOWLEDGEMENTS

I would like to express my heartfelt gratitude to my teacher, Ms. Kuhu Tiwari for her unstinted support.
The topic given to me for my project is one that is very close to my heart and I hope I have done justice to
it.
Thank you, jurists, masters of law and various governmental departments for the expression of your ideas,
thoughts and immense amount of knowledge in the form of the various books, articles and opinions.
Without all of this, it would have been impossible for me to complete my project.
My gratitude also goes out to the staff and administration of HNLU for the infrastructure in the form of
our library and IT Lab which was a source of great help for the completion of this project.
Siddharth.M
Semester IX

CONTENTS
Objective.....................................................................................................................4
Research Methodology.............................................................................................. 5
Introduction............................................................................................................... 6
Age of cyberspace......................................................................................................7
Copyright law as extended to the web...............................7
Mechanism of a search engine..........................................................10
Global scenario.....................................................................................11
Position of Indian law. ........................................................18
Copyright (Amendment) Act, 2012.........................................................................22
Conclusion..23
References...............................................................................................................25

OBJECTIVE

The main objective of this paper is to find out the applicability of copyright laws in
cyberspace and by going indepth and analyzing the nature, objective and scope of a
search engine and find out whether they can be held liable for infringement. Efforts
have been made to look in a clear and simple manner into the provisions involved in
the case and talk about their pros and cons when it comes to their practical
application in the courts of law.

RESEARCH METHODOLOGY

This project report is based on analytical and descriptive Research Methodology. Secondary and
Electronic resources have been largely used to gather information and data about the topic. Main
emphasis has been laid down on the Indian Copyright Act, 1957.
Books and other reference as guided by Faculty have been primarily helpful in giving this project a firm
structure. Websites, dictionaries and articles have also been referred

INTRODUCTION
The evolution of search engines over the past few years to their present level of sophistication
have left the users in awe of the technological advances. With most human minds prone to
accessing Google, Yahoo!, MSM etc, the moment they click upon their browsers, there is no
denying that search engines are one of the most valuable components on the basis of which the
Internet functions. However, when the paths of the Web and Intellectual Property Law intersect,
the Search Engines often end up infringing the Copyright especially with respect to end users.
This has given rise to a number of issues with regard to online copyright infringement which
have now and then stumped the Indian judicial system. This paper attempts to focus on the
copyright infringement liability of search engines by analyzing such issues along with case
studies. This background is followed by core discussion on global adjudication issues relating to
copyright infringement by search engines dealing in detail with landmark judgments which led to
a paradigm shift in the manner of adjudicating copyright infringement claims by and against
search engines. Subsequently, the paper discusses the Indian perspective of online copyright
infringement by focusing on the provisions of the Copyright Act, 1957 and the Information
Technology Act, 2000 which are covered under the intellectual property regime. Further, the
paper briefly highlights the important concept of rights management information introduced by
WCT and WPPT and the relevant provisions of the Copyright (Amendment) Act, 2012. The
paper in the end lays down, as a futuristic perspective, the right mode of action for authors and

the plausible inferences that can be drawn regarding the search engines liability in online
copyright infringement from the present standpoint of law, technology and body corporates.

The Age of Cyberspace

Law and technology have always been involved in an inevitable tussle wherein the technology
being dynamic always developed with momentum while the law though not stagnant always took
its time on the path of development. One of the most significant breakthroughs in the field of
technology has been the emergence of Internet or more specifically put the World Wide Web and
the advent of search engines, allowing proliferation and exchange of information like never
before and immediately leading to growth of Internet-related businesses thereby posing new
challenges in the field of law to deal with issues arising out of distribution and dissemination of
information. The principle legal issues for the search engines arise out of the increasingly
recurring conflict between Intellectual Property Rights on the one hand and the dazzling capacity
of the Internet Technology to assemble, organize, store, access and display intellectual property
content on the other hand.1 This paper seeks to address this conflict in terms of online copyright
infringement by search engines and the challenges and dilemmas faced by the Indian Judiciary in
deciding the rights and liabilities under the existing Copyright Law regime.
Copyright Law as extended to the Web
Before delving into the core discussion on issues regarding online copyright infringement, it is
necessary to deliberate upon the basic concept of Copyright and the liabilities imposed on
infringement of the same. Different countries have their own specific domestic legislations
1 Perfect 10 v. Google Inc. F.Supp. 2d 828, 832 (C.D. Cal. 2006).

governing copyright issues which basically rely on the same premise viz. protection of rights of
the original owner of creative material.
In accordance with the understanding gathered from laws of various countries it can be inferred
that Copyright is an exclusive statutory right of literary (authors, playwrights, poets), musical
(composers, musicians), visual (painters, photographers, sculptors), and other artists to control
the usage, reproduction and dissemination of their work.
These rights are the exclusive rights held by a copyright owner and they operate as granted and
limited by the Copyright Act of the land. With respect to India, as is discussed under the
subsequent headings of this paper, the concerned Act is the Copyright Act, 1957. Hence, anyone
who without the authorization of the rightful holder of copyright exercises any of his exclusive
rights, then he is considered to have infringed the copyright. It is important to note here that
determination of Copyright Infringement does not depend on the intent of infringement on part
of the infringer i.e. even innocent infringement is given the same treatment as that of
infringement done with intent. To cope with such acts of infringement several liabilities are
imposed which deter potential infringers from circumventing the exclusive rights of the
Copyright Owner and if they do then the Copyright Owner or the plaintiff is entitled to file a
claim for the specific type of alleged infringement.
To better facilitate the understanding of the liability imposed on search engines for copyright
infringement discussed subsequently, the aforementioned liabilities2 vis--vis the specific type of
infringement can be categorized and understood as follows-

2 Aditya Gupta, The Scope of Online Service Providers Laibility for Copyright Infringing Third Party
Content under the Indian Laws- The Road Ahead, JIPR 15(1) 35-45.

Direct Liability :
Direct Infringement consists of performance or adaptation made without prior
authorization of the Copyright Owner. A plaintiff has to prove the following in order to
succeed in a claim for direct infringementa. He is the rightful owner of the copyrighted material and
b. The defendant has violated one of the exclusive rights granted to him under the
Copyright Law of the Land.

Contributory Liability
This liability, finding its roots in enterprise liability, will attach to a person when he has
full or considerable knowledge of the infringing conduct of the other and yet contributes
to such a conduct.3 The U.S Supreme Court in a landmark judgement differed from the
general view and held that Contributory liability can be imposed When one infringes
contributorily by intentionally inducing or encouraging direct infringement.4 However,
ordinarily the following elements are required to be proved in order to attach contributory
liability5a. A person with knowledge of the infringing act
b. Causes, induces or materially contributes to the conduct of another.

Vicarious LiabilityThe general understanding of the concept of vicarious liability is applicable here too i.e.
the principal party can be held liable for infringing acts carried out by the agent if the
following conditions are fulfilleda. The parties receive a direct financial benefit from the alleged infringement
b. They have the right and ability to control the infringement.

3 With respect Cyberspace- Contributory liability will attach itself if a party knows, or reasonably
should know, of infringing activities occurring on the partys website and the party materially contributes
to the infringement.
4 MGM v Gorkster. 125 S Ct 2764(2005).
5 Sneha Jha and Samar Jha, An Analysis of the Throry of Contributory Infringement, JIPR 11(5) 318-325.

Mechanism of a Search Engine

After having discussed different types of copyright infringement and the attached liabilities it is
now proceed to understand how generally, a typical web search engine ends up infringing the
aforementioned intangible rights.
From the very first search engine Aliweb launched in November 1993 to Google and MSN
search engines have proved to be vital for web users to filter out the information according to
their need. They are maintained by human editors and operate algorithmically on initiation by
human input. They not only act like virtual catalogs but also store information about the web
pages. The web-crawler after locating the desired information stores them in a database called
Index Database. When a user enters a search text, the search engine matches its cache and
cross checks with the index database to provide the best matching web pages along with a short
summary about the web page.

Copyright infringement & Search Engine: Global Scenario

In the past few decades several cases of copyright infringement via internet have come to light,
sometimes leaving the judiciary stumped while other times signaling a change in attitude of
courts towards all kinds of online intellectual property infringement. The most legendary of these
decisions which substantially extended the purview of copyright infringement to include within
itself the P2P network are the Napster6 and the Grokster7 cases. Moving ahead, it has also been
held that mere warnings against the sharing of copyright files and end user license agreement

6 A& M Records Inc. v. Napster Inc., 237 F 3d 1004.

7 Supra note 4.

10

cannot effectively prevent or even substantially curtail, copyright infringement by users. 8 Even
though these cases did not specifically discuss copyright infringement liability of the search
engines, they gave a new direction to the judicial approach and encouraged copyright owners to
set precedents in cases of liability of search engines for copyright infringement.
The copyright owners, having received the right to target companies instead of prosecuting
individuals brought several litigations wherein online service provider was sued for online
copyright infringement. Since, the search engines were the key players in online sale and revenue
generation they were targeted the most.
The case of Blake A. Field v. Google, Inc.9 marked a specific position for itself in this era. As
pointed out earlier exclusive rights ownership and violation of such exclusive rights are required
to be proved by the plaintiff effectively prove copyright infringement. In the stated case, Google
was sued for by Field for permitting the Internet users to access 51 of his copyrighted works
initially stored by it in an online repository. The important issues as discussed by the Court are as
follows

Google cannot be held liable for direct copyright infringement because the cached link
which displayed Fields works was an automated and non-volitional act in response to

users request. Hence it was the user who was creating copies and not Google.
The reasonable interpretation of Fields conduct indicated that Google held an implied

license to display his work though its cached link.

Google adopts standard industry procedures to ensure that it does not display cached
links if the owner of that specific web page does not want them to appear and additionally

8 Universal Music Australia Pvt. Limited v. Sharman License Holdings Limited [2005] FCA 1242.
9 Blake A. Field v. Google, Inc. 412F . Supp 2d. 1106 (D. Nev. 2006).

11

provides an explanation as to how a web page owner can request non-display of cached
links thereby fulfilling all the essential of fair use. Further, as soon as Google learnt that

Field had filed a suit, it removed all the cached links to his copyrighted works.
The DMCA in its provision10 states that a service provider will not be liable for copyright
infringement by reason of intermediate and temporary storage of material on a system
operated or controlled by the service provider if certain conditions are fulfilled. The
Court held that Googles 14-20 day storage will be well within the purview of
intermediate and temporary and hence will be entitled to the protection of safe harbor
within the meaning of DMCA.
Stating so, the Court dismissed Fields copyright claims.

In Gordon Roy Parker v. Google, Inc.11, the plaintiff, who posted writings on his website and
Usenet, Googles community of electronic boards, filed a complaint against Google and 50,000
John Does alleging direct and secondary copyright infringement owing to Googles automatic
archiving of Usenet postings, hyperlink creation in response to queries and excerpting of his web
site. The US District Court dismissed the plaintiffs claims stating that the alleged copying is a
by-product of the automated operation of Googles search engine and related technologies which
indicates that Google has not engaged in the required volitional conduct necessary to be held
liable for direct copyright infringement. Googles acts are similar to a users use of it ISP to
transmit infringing material to a third party, which does not give him a right file a direct
infringement claim against the ISP. On appeal, the Third Circuit Court opined that Googles act
lacked requisite volitional conduct thereby affirming District Courts dismissal of plaintiffs direct
infringement claims. Further, as the plaintiff has failed to plead primary infringement on part of
10 Section 512(b), Digital Millennium Copyright Act, 1998.
11 Gordon Roy Parker v. Google., Inc. 422F. Supp 2d 492 (2006. E.D PA)

12

Google as well as any financial benefit gained by Google, the Court dismissed plaintiffs
contributory infringement claim also.
In the landmark case of Perfect 10 v. Google12, the facts were as followsPerfect 10, Inc., the copyright holder of high-quality photographs of certain nude models, had
invested roughly $12 million to photograph more than 800 individuals. 13 Over 2,700
photographed images were published in its adult magazine Perfect 10, which sold for $7.99 per
issue, and roughly 3,300 images were displayed in a members area of its web-site, which was
accessible only by subscribers who obtained a password upon $25.50 monthly payments. Perfect
10 had also granted a license to a third party- Phonestarz Media Limited- permitting its worldwide sale and distribution of reduced size versions of Perfect 10s copyrighted images, where the
images would be available for download to and display on a purchasers cell phone. Although
Perfect 10 generated most of its revenue from its magazine sales and web-site subscriptions,
growing success by Phonestarz was illustrated by sales of approximately 6000 image downloads
per month in the United Kingdom alone. No other licenses permitting distribution or display of
Perfect 10s copyrighted images had been granted.
Google, Inc. owns computers to operate an internet search engine, which permits internet users
to freely access its web-page in order to search for desired information, documents, and images
that are hosted on third party web- sites. 14 These third-party web-sites are composed of a
combination of text interspersed with instructions written in Hypertext Markup Language

12 Perfect 10, Inc. v. Google, Inc., 416 F.Supp.2d 828, 832 (C.D. Cal. 2006).
13 Ibid.

14 Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146 (9th Cir. 2007)

13

(HTML). Images, such as the photographs in the members only area of the Perfect 10 web
page, are not stored on the web-page itself and instead, the HTML instructions on the hosts web
page direct the users browser to an address where the image is stored, which is generally within
the hosts own computer.
The Google search engines functions by having its software automatically survey existing websites on the internet, and that information is then indexed and stored on Googles computer.
When an internet user accesses the Google web-page and enters key words to search for specific
information, Google software searches its database for relevant content and displays the search
results in the form of reduced size images or thumbnails- having a lower resolution than the
original image on the hosts web site and which also contain HTML instructions to indicate the
address of the actual full size image on the hosts computer. Unlike the full-size image, the
thumbnails a term objected to by Perfect 10 as a misnomer since those images could be eight
times larger than a persons actual thumbnail size-15 are stored on Googles servers.16
Once the user selects an image to be viewed by clicking on the thumbnail, HTML instructions
cause the viewing area on the users screen to split into two windows, where the upper window
displays Googles annotated information regarding the full-size image which is then displayed in
or framed by the lower window, having been stored on and retrieved from the computer of the
underlying host web-site. This process, in which a web-page commands the users browser to
display information from two different computers, is referred to as in-line linking and
framing is the process whereby information from one computer appears to frame and annotate
the in-line linked content from another computer.
15 Supra note 12.
16 Supra note 14.

14

Perfect 10s copyrighted full-size images were re-published without authorization on other websites, a and Googles automated indexing process subsequently enabled internet users doing a
search to view those infringing web-sites via Googles in-line linking.
The plaintiff Perfect 10 filed a suit against Google and Amazon claiming direct copyright
infringement and vicarious and contributory infringement for Googles display of full images
through its frames as well as for use of thumbnails which it had not permitted. The salient issues
can be analyzed as follows Perfect 10 claimed that it held the exclusive right to display publicly and distribute its
copyrighted image and Googles act amounted to direct copyright infringement. To
decide this issue the court applied the Server test which states that the act of serving
content over the web is called as display. It was found that Google has not stored or
served the full size images as such images appeared on its site on through in-line linking
wherein images are stored and displayed on their original sites and not on Googles site
thereby indicating that Google had not copied, displayed or distributed these images
which are essential to be held in violation of copyright. However, the use of thumbnail

images was not adjudged as fair and was held to be an infringing act.
Local storage, in issue here is a non-commercial automatic process which is likely

categorized ad fair use.

It was also found that providing an audience for such infringing websites and advertising
the same does not amount to active encouragement to the public to visit such sites.
Hence, search engines cannot be held liable for secondary and contributory infringement.

On the basis of the above reasoning the California Federal court granted Perfect 10s motion for
preliminary injunction against Google.

15

However, the life of this injunction was short-lived as in Perfect 10 Inc. v. Amazon.com 17 the 9th
circuit uplifted the preliminary injunction of the district court over Google thereby reversing the
above judgement. It was found that Googles superseding and commercial use of thumbnails is
outweighed by the transformative nature of its search engine, specifically in light of its public
benefit. Google merely provided HTML instructions which cannot be equalized with showing a
copy of full size images that the users can reproduce. Hence, because it facilitates internet users
access, at most it can be held liable for contributory liability but the assistance that it provides
does not amount to direct infringement of the plaintiffs exclusive display rights.

The Copyright owners finally won their battle against the search engines in the case of
Universal International Music B.V EMI (Taiwan) Ltd v. Beijing Alibaba Information
Technology Co. Ltd18. In this case, the Universal Music Group, Warner Music Group, EMI
Music Group and Sony BMG Music Entertainment Inc and others jointly sued Beijing Alibaba
Information Technology Co. Ltd., the owner of Yahoo! China, for infringement of copyright in
two hundred and twenty nine audiovisual works. Initially, the Beijing Second Intermediate
Peoples Court took the following view

The Defendant merely provided links without the music content which should not be
construed as direct dissemination of songs through the network. Stating so, the court
rejected plaintiffs contention that Yahoo! Chinas conduct amounted to direct
dissemination of the infringing music.

17 Supra note 17.

18 Universal International Music B.V EMI (Taiwan) Ltd v. Beijing Alibaba Information Technology Co.
Ltd [2005] FCA 1242.

16

After receiving the take-down notices, the defendant only removed the links in the
plaintiffs samples thereby allowing third party infringing websites to access the same
thereby failing to fulfill its obligation of removing all links to unauthorized music. The
Court found this act to be in violation of Article 23 of Regulation on the Protection of
the Right to Network Dissemination of Information19

The Defendant appealed to the Beijing Peoples High Court which held that Yahoo! China had
taken an indifferent attitude towards the occurrence of infringement and its conduct amounted to
assisting others to carry out infringement through a network. It was further held that the act of
Yahoo! China was subject to joint liability for assisting others to infringe the right of information
network dissemination.
Position of Indian Law
Indias Copyright protection regime came into force with the passing of Copyrights Act, 1957
(amended recently in 2012) along with Copyright Rules of 1999. Section 51 of the Act provides
for activities which amount to copyright infringement while Section 52 provides for acts not
amounting to infringement. Section 5120 generally provides against unauthorized copying,
change, distribution, performance, broadcast etc.
Section 51: When copyright infringed. -Copyright in a work shall be deemed to be infringed-

19 Article 23 provides that- Where a network service provider provides any searching or linking service cuts off
the link to any infringing work, performance, or audio-visual product after receiving a notice from the right owner
according to the provisions of the present Regulation, it is not required to assume the liability to make
compensation. However, when anyone is fully aware or should have known that any of the works, performance or
audio-visual products it has linked to constitutes an infringement, it shall be subject to the liability of joint
infringement.

20 Section 51, Copyright Act, 1957.

17

(a) when any person, without a license granted by the owner of the copyright or the Registrar of
Copyrights under this Act or in contravention of the conditions of a license so granted or of any
condition imposed by a competent authority under this Act(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the
copyright, or
(ii) permits for profit any place to be used for the communication of the work to the public where
such communication constitutes an infringement of the copyright in the work, unless he was not
aware and had no reasonable ground for believing that such communication to the public would
be an infringement of copyright; or Analyzing the above section one can come to the conclusion
that the liability of the Search Engine depends upon the interpretation of the term
communication of the work to public
Section 2 (ff)21 lays down that"Communication to the public" means making any work available for being seen or heard or
otherwise enjoyed by the public directly or by any means of display or diffusion other than by
issuing copies of such work regardless of whether any member of the public actually sees, hears
or otherwise enjoys the work so made available.
Explanation. - For the purposes of this clause, communication through satellite or cable or any
other means of simultaneous communication to more than one household or place of residence
including residential rooms of any hotel or hostel shall be deemed to be communication to the
public

21 Section 2(ff), Copyright Act, 1957.

18

A search engine in India cannot be held liable for direct copyright infringement. In order to
answer this question, it needs to be ascertained if search engine by directing the users to the
specific web pages makes it available to the user; can the same be brought within the ambit of
communication to the public as provided under S 2 (ff) of the Copyright Act 1957.The answer
to the question is definitely in the negative. In spite of there being no Indian precedents, the
rationale employed in Perfect10 V. Amazon.Com22 can be looked up to. HTML instructions do
not themselves cause infringing images to appear on the users computer screen. The HTML
merely gives the address of the image to the users browser. The browser then interacts with the
computer that stores the infringing image. It is this interaction that causes an infringing image to
appear of the users computer screen. The reasoning hence exempts search engines from any type
of
Further, under Section 51 (a) (ii) the Search Engines can provoke defense that they were
unaware and had no reasonable ground for believing that such communication to the public
would be an infringement of copyright. However where it is proved that the Search Engines
were made known of the infringing act they can be held liable under contributory liability and
injunctive orders can be passed against them.
Under the Information Technology Act, 2000, Section 43(b) deals with the copying of the data,
computer database or information over a computer, computer system or computer network.
Section 79 absolves Network Service Provider from certain liabilities. Both of the Sections are
not potent enough to bring Search Engines under its ambit.

22 Supra Note 17.

19

In Super Cassettes Industries Ltd. V Yahoo Inc. &Anr 23 a suit was filed by Super Cassettes
Industries Limited (SCIL) owner of the largest Indian music label "T-Series" against Yahoo Inc.
& Anr and its Indian subsidiary Yahoo Web Services (India) Pvt .Ltd for infringement of their
copyright caused by unlicensed streaming of SCIL's copyright works on Yahoo's portal
video.yahoo.com.
The plaintiff manages the business of manufacturing and marketing audio cassettes, video
cassettes, CDs, televisions, etc. It is involved in building state of the art facilities for recording
music as well as for making cassettes and CDs. Further, it is the owner of the T-SERIES brand of
Music Cassettes and takes the credit of maintaining a collection of cinematographic films and
sound recordings to the tune of over 20,000 Hindi film and non-film songs and around 50,000
songs in regional languages. Running an active copyright licensing programme under its TPPL
Scheme, it routinely grants licenses to frequent exploiters of music like that of restaurants,
hotels, resorts, shopping malls, retail outlets etc. for the use of works of which it is the rightful
copyright owner.
In due course of time, the plaintiff found that the defendants are infringing the copyright of the
plaintiff by hosting and streaming the songs, mainly partial and full video clips of audio-visual
songs in which the plaintiff owns the copyright, on its website, www.video.yahoo.com as a
consequence of which it filed a suit for permanent injunction to restrain the stated infringement
of copyright.
Acting upon the stated suit, the Honorable High Court of Delhi issued legal notices to the
defendants but it was found that the copyrighted works were not removed by the company.
23 CS (OS) No. 1124 of 2008.

20

Thereby the court passed an order which retrained the defendants or /and its agents and
representatives from reproducing, adapting, distributing or transmitting in any manner on their
website www.video.yahoo.com or otherwise infringing the cinematograph films, sound
recordings and/or the underlying literary or musical works of the plaintiff in which the plaintiff
claims copyright, without obtaining the suitable license from the plaintiff.
Similar case was filed against Youtube.Com by the plaintiff and injunctive orders were issued by
the court.
Copyright (Amendment) Act, 2012
The Indian Parliament in May 2012 significantly amended the Copyright Act, 1957 by passing
the Copyright (Amendment) Act, 2012. The 2012 amendment make the Indian Copyright law
compliant with the Internet treaties viz. the WIPO Copyright Treaty (WCT) and WIPO
Performances and Phonograms Treaty (WPPT).
One of the significant changes incorporated is the concept of Digital Rights Management
Information (DRMI). This concept was introduced in WCT and WPPT along with protection of
technological measures to prevent infringement of copyright in digital environment. Adapting the
same, Section 65B has been introduced in the said Act to protect rights management information
which has been duly defined under clause (xa) of section 2.
This provision is intended to prevent the removal of the rights management information without
authority and distributing any work, fixed performance or phonogram, after removal of rights
management information. Consequently, any unauthorized and intentional removal or alteration
of any rights management information is a criminal offence punishable with imprisonment,
which may extend to two years and fine. The rationale of the protection emanates from the
21

practice in the digital world of managing the rights through online contracts governing the terms
and conditions of use.24

Conclusion
Internet changed the way by which the information was disseminated. Digitalization on one hand
reduced the cost of making perfect reproductions on the other hand Internet made its
dissemination quick, easy and cheap. While several countries have specific laws regarding the
Digital Copyright, India still lacks the same.

Although in recent years there had been cases in which the Search Engines were held to be liable
for copyright infringement yet it is one of the toughest job to survive ones own suit against the
defenses available to them. Defenses like Fair Use, Implied License, Estoppel, Volitional
Conduct & Safe Harbor are still an open challenge for copyright owners to overpower.

Not only legally but also technically it is cumbersome to persuade against such infringement
when it comes with reference to search engines. Search engines have massive repositories of
information. The cost of filtering search results to eliminate copyrighted material, while low in
individual instance, could have the net effect of compromising the integrity of the search engine
itself.25
24 Abhai Pandey, Inside Views: Development in Indian IPLaw: The Copyright (Amendment) Act 2012,
www.ip-watch.org/2013/01/22/development-in-indian-ip-law-the-copyright-amendment-act-2012/
available at (last visited March 2, 2014).
25 Supra Note 17.

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It is further to be noted that in both the cases where injunctive orders were passed either in
Yahoo! China case or in Super Cassettes Industries Limited case such orders were passed only
when it was proved that the legal notices were served to the Search Engines and they didnt take
any action or the action taken were not sufficient to minimize the copyright infringement. Hence,
it can be inferred that indifferent attitude of the search engines was more of a reason for the grant
of these injunctions. Both these decisions, in spite of opening new fronts for the war against
copyright infringement, are neither conclusive nor backed with the arguments which can face the
defenses available to the Search Engines.

However, this does not imply that it is a lost cause for the authors of original works to try and
enforce their exclusive rights. Technological improvements in the digital rights management of
copyrighted material may enable copyright holders to control the distribution of their material.
The approaches of the court till now is on the basis that the digital communication is still a
neophyte therefore mere contributory infringement liability can be imposed over them so that
their growth cannot be fettered. But where the copyright owner proves that the Search Engines
specifically targeted them or induced infringement and generated profit from it the court will
definitely come with decisions similar to Yahoo! China & Super Cassettes Industries Limited
Cases. Ultimately the courts will have to address the similar issues in the upcoming future
therefore in India context The Information Technology Act, 2000 requires a new outlook and
orientation, which can be effectively used to meet the challenges posed by such issues of
Copyright Infringement over the Internet. The Act shall provide for a clear category under which

23

these Search Engines can be clubbed & held liable. The law in its majestic equality shall provide
for both innovation and protection.

References

Articles referred-

1. Jha Sneha & Jha Sameer, An Analysis of the Theory of Contributory Infringement,
Journal of Intellectual Property Rights, Sep 2006.
Available at:- http://nopr.niscair.res.in/bitstream/123456789/3591/1/JIPR 11(5) 318325.pdf L.A-21/03/2014. ( last accessed March 22, 2014).

2. Anand S.Aarthi, Copyright challenges in the digital era, The Hindu, Dec 29, 2008
Available at: - http://www.thehindu.com/2008/12/29/stories/2008122955250800.htm L.A.
- 19/03/2014. ( last accessed March 22, 2014).

3. Hamdani, Whos liable for cyber wrongs, Cornell Law Review, 87 (2002) 901-957.

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4. Mishra and Dutta, Striking a Balance between liability of Internet Service Providers and
Protection of Copyright over the Internet: The Need of the Hour, Journal of Intellectual
Property Rights, 14(4) (2009) 321-329.

5. Gupta Aditya, The Scope of Online Service Provisers Liability for copyright Infringing
Third Party Content under the Indian Laws The Road Ahead, Journal of Intellectual
Property Rights, Vol. 15, January 2010, pp 35-45.
6. Thomas Zakir, Digital technologies and emerging copyright scenario, Journal of
Intellectual Property Rights, 8 (4) (2003) 276-301.
7. Bongiorno James, Fair Use of Copyrighted Images After Perfect 10 v. Amazon: Diverging
from Constitutional Principles & United States Treaty Obligations,
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