Introduction and recap

Last week, we discussed the transfer of copyright, delving deeper into the methods of transmission of copyright such as assignment, licensing and testamentary disposition. Read more here. This week we shall be discussing the applicability of copyright to internet service providers (ISPs): their obligations under the law as well as the protection granted to them against claims of copyright infringement. 

Copyright law, traditionally designed to regulate the use of creative works in physical formats, now applies to the digital environment. Internet Service Providers (ISPs) play a central role in the online ecosystem as intermediaries that provide infrastructure, storage, and access to copyrighted materials. Their legal responsibilities in relation to copyright infringement are a key issue globally.

The Copyright Act defines an internet service provider (ISP) as a person providing information system services. These may include social media platforms, online service portals, websites and blogs. An ISP may also be an access software that provides or enables computer access by multiple users to a computer server, including connections for the transmission or routing of data.

Obligation of an internet service provider

The Act obliges an ISP to:

• Comply with the copyright conditions in relation to the access and distribution of the copyright material;
• Refrain from involvement in content selection, modification or promotion during transmission;
• Restrict access to copyright-infringing content accessed under their platform;
• Take down any copyright content within forty-eight (48) hours upon receipt of a takedown notice from a copyright holder;
• Provide information to investigative agencies on the identity of copyright-infringing subscribers;
• Designate an agent or electronic address for the receipt of take-down notices; and
• Comply with the rules regarding updating of cache in conformity with generally accepted standards within the service sector.

An ISP, however, has no obligation to monitor the material transmitted, stored or linked. They are also not under an obligation to actively seek facts or circumstances indicative of infringing activity within their services.

Protection of ISPs from copyright infringement.

Section 35A of the Act provides for the limitation of liability of ISPs from copyright infringement claims. These limitations, often referred to as harbour provisions, can be relied upon by an ISP provided the ISP:

• Does not initiate transmission of the content;
• Does not select the addressee;
• Performs its functions in an automatic, technical manner without selection of the material;
• Does not modify the material contained in the transmission;
• Does not in any way promote the content or material being transmitted.
• Complies with the conditions on access to the material;
• Complies with rules regarding updating the cache in conformity with generally accepted standards within the service sector;
• Removes or disables access once it receives a takedown notice or a court order authorizing such removal or deletion. Such removal or disablement of access must also have been one once the ISP becomes aware of the lawfulness of such stored content.
• Does not have actual knowledge that the content or activity related to the material is infringing the rights of a third party;
• Is not aware of the facts or circumstances of the allegedly infringing activity unless the infringing nature of the material is apparent.

The above exceptions also apply where a person incurs damages after an ISP refers or links users to a webpage containing infringing material or facilitates infringing activity, by using information location tools, including a directory, index, reference, pointer or hyperlink. They do not, however, apply if the recipient of the service is acting under the authority of the ISP.

Conclusion

The application of copyright to ISPs represents a balance between protecting creators’ rights and ensuring freedom of expression, innovation, and access to information. While safe harbor provisions shield ISPs from direct liability, they also have a statutory obligation to, among others, comply with the copyright conditions in relation to the access and distribution of the copyright material and cooperate with investigative agencies on copyright infringement-related investigations.

Having mentioned that one of the obligations of ISPs is to comply with take-down notices, in our next issue, we delve deeper into the concept of takedown notices, the content and circumstances in which they may be issued.