The Copyright (Amendment) Act, 2012 has introduced fair use provisions to exempt intermediaries from liability in certain specific situations and provides them an opportunity to take down infringing content when brought to their notice. Lawmakers in India have certainly taken a positive step forward, and the above provisions on a plain reading, seem to protect and nurture a file-sharing business model that offers immense possibilities for the future, even at this nascent stage. However, the judicial response to this Parliamentary intent is a matter of serious concern, considering the recent pronouncements of the Delhi High Court in the Myspace case and the decision of the Madras High Court in the R.K. Productions case. The amendments also have to be viewed in light of the widely worded John Doe orders issued by Indian Courts, which pose a potential risk to the growth of the file-sharing industry and the possibility of a chilling effect on free expression and dissemination of information.
In this paper, the author examines the content of the amendment and the nuances in its language, the manner in which it could be interpreted by Courts and the extent to which this amendment could foster the growth of the filesharing and streaming industry. To do this, the issue of intermediary liability in Indian law prior to the amendment has been examined. The paper also briefly studies the legal position on intermediary liability in the United Kingdom as discussed in the Newzbin2 case and examines whether the post-amendment provisions in India are open to similar interpretation and application.