Friday, June 17, 2011

Online Copyright Infringement Liability Limitation Act Of US

The Online Copyright Infringement Liability Limitation Act (OCILLA) of United States (US) aims to amend the title 17, United States Code, to implement the World Intellectual Property Organisation (WIPO) Copyright Treaty and Performances and Phonograms Treaty, and for other purposes, as part of the Digital Millennium Copyright Act (DMCA).

The OCILLA is a US Federal Law that creates a “Conditional Safe Harbor” for Online Service Providers (OSP). These OSPs are also known as Internet Intermediaries or Intermediaries in some Countries and this category covers players like Internet Service Providers (ISPs), Search Engines, Blogging Platforms, E-Commerce Portals, Cyber Café, etc.

Safe Harbour protection is generally extended to Intermediaries from direct copyright infringement and potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 DMCA and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

The 1998 DMCA was the U.S. implementation of the 1996 WIPO Copyright Treaty (WCT) directive to “maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information” when updating copyright norms for the digital age. In the context of Intermediaries, OCILLA attempts to strike this balance by immunizing them for copyright liability stemming from their own acts of direct copyright infringement (as primary infringers of copyright), as well as from the acts of their users (as secondary infringers of copyright), provided that Intermediaries comply with two general requirements protecting the rights of authors.

First, the Intermediaries must “adopt and reasonably implement a policy” of addressing and terminating accounts of users who are found to be “repeat infringers.” Second, the Intermediaries must accommodate and not interfere with “standard technical measures.” Intermediaries may qualify for one or more of the Section 512 safe harbors under § 512(a)-(d), for immunity from copyright liability stemming from: transmitting, caching, storing, or linking to infringing material. An Intermediaries who complies with the requirements for a given Safe Harbor is not liable for money damages, but may still be ordered by a court to perform specific actions such as disabling access to infringing material.

In addition to the two general requirements listed above, all four safe harbors impose additional requirements for immunity. The safe harbor for storage of infringing material under § 512(c) is the most commonly encountered because it immunises Intermediaries that might inadvertently host infringing material uploaded by users.

Taken as a whole, OCILLA’s passage represented a victory for telecom and Internet related industry groups over powerful copyright interests who had wanted service providers to be held strictly liable for the acts of their users. However copyright owners also obtained concessions. In addition to the general and specific preconditions on the created immunity, OCILLA requires Intermediaries seeking an immunity to designate an agent to whom notices of copyright infringement can be sent, and to disclose information about those users who are allegedly infringers.

Section 512(c) applies to Intermediaries that store infringing material. In addition to the two general requirements that Intermediaries comply with standard technical measures and remove repeat infringers, § 512(c) also requires that the OSP: 1) not receive a financial benefit directly attributable to the infringing activity, 2) not be aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the purported infringing material.
Some have claimed that the DMCA-embedded concepts of direct financial benefit, interference with standard technical measures, and the legislative red flag test for identifying infringing material are significantly challenged by the explosion of user-generated content unleashed by Web 2.0 technologies.

The European Union's Electronic Commerce directive, Article 14, contains similar notice and takedown provisions. France's Digital Economy Law ("Loi relative à l'économie numérique") is an example of an implementation of this directive, as is Finland's "Laki tietoyhteiskunnan palvelujen tarjoamisesta." In Korea, the analogous law is Section 102 (Limitation of OSP Liabilities) and Section 103 (Takedown) of Copyright Law of Korea.

In the Indian context, the Indian Copyright Act 1957 along with the Information Technology Act 2000 deals with Cyber Law Due Diligence and Intermediaries Liability for Online Copyright Violation issues.