The transgenders are one of the marginalized sections of society and they face much discrimination in all forms whether social, economical and political. To save them from these atrocities, the ministry of Social Justice and Empowerment on 26 Nov passed the transgender persons (protection of rights )Act 2019 and the president gave assents on 5 Dec 2019 and finally enforced from 10 Jan 2020.

But in April 2020, the Ministry of Social Justice and Empowerment proposed the Transgender Person (Protection of Rights) Rules 2020, for accompany and clarification of the 2019 Act.

Problems faced by Transgender-

1. Societal Norms– if the child is behaving in an inappropriate way or like opposite genders, then they not accept him or even scold and start threatening him.

2. Economic injustice– they are usually not so much educated due to various reasons and one of them is most of the school and colleges do not accept their admission. There is no reservation in schools and colleges. Even in jobs they have very limited employment opportunity. Sometimes they become the victim of Human Trafficking, involved in begging and dancing to just feed themselves.

3. Personal laws– there is no specific laws regarding same sex marriage and issues involved in it. There is no properly mentioned in property law that how that how a transgender claims their property rights. They also faced difficulty in adoption of child.

4. Healthcare system– there is no proper public toilet or places to be used by them. In hospital there are no transgender wards, so they admitted to males wards and faced humiliations. Some people even deny their medical services. There is no proper hygiene facility for them.

5. Political injustice- according to article 326 of constitution all citizens have right to vote but in 1994, the transgender persons got right to vote. But during issue of voter card they caught in question of male and female, similarly in many government documents they have to face a similar situation.

History of evolution of laws for the welfare of Transgender:

This all was started on 15 April 2014, when the SC pronounced the judgment in national legal service authorities of India v/s.UOI2, in this the court recognize the rights of transgender person and prohibit the discrimination against them and also to make welfare policies and reservations in jobs.

The main thing in this, it upheld the right of self perceived gender for them. The judgment also got its confirmation in Justice K.S.Puttaswamy & UOI (2017)3 and Navtej singh johar v/s. UOI (2018)4.

But in Jan 2014 i.e. before the NALSA judgment, the expert committee report was published after consultation with ministry of Social Justice and Empowerment.

Meanwhile, a private member bill i.e. right of Transgender person bill 2014was introduced in Rajya Sabha by DMK party. The government asked to withdraw bill. But as they have majority in house, it passed. But Transgender called that they are haven’t involved in any process. So, after receiving the comments from transgender, bill sent to Ministry of Law and Justice. Then known as Transgender Person bill, 2015. The bill was again introduced in Lok Sabha in 2016 and debated but 2014 bill was passed by Rajya Sabha and still pending and government gave Transgender Person (Protection of rights) bill 2016.

The bill was severely critized by the Transgender community then it send to the standing committee. The committee sends report in 2018. The government made 27 amendments but not follow committee report and Transgender comments and Loksabha dissolved.

In 2019, the Lok Shaba reconstituted and bill again reintroduced and passed in Lok Sabha on 5 Aug 2019, the day of scrapping art.370 of constitution. Rajya Sabha passed on 26 Nov 2019 and then Act comes in effect from 10 Jan 2020, after the notice by ministry Social Justice and Empowerment in official gazette.

Transgender Person (Protection of rights) Act of 2019    

“Person whose gender does not match with the gender assigned to that person at birth and include trans-man or trans-women, person with intersex variations, genderqueer and person having such socio-cultural identities as kinner, hijra. Aravani and jogta”5

The Act deals with the 9 chapters:

Chapter 1- preliminary (sec 1-2)

Chapter 2-prohibition against discrimination (sec 3)

Chapter 3- recognition of identity of transgender person (sec 4-7)

Chapter 4- welfare measures by government (sec 8)

Chapter 5- obligation of established and other person (sec 9-12)

Chapter 6- education, social security, and health of transgender person (sec 13-15)

Chapter 7- National council for transgender person (sec 16-17)

Chapter 8- offence and penalty (sec 18)

Chapter 9- miscellaneous (sec 19-22)

 But this Act was protested on the following reasons:

• They have problem with the name of Act because they used the word “transgender” and they rejected this word as nomenclature.

• The mandate certificate from D.M. is against the principle of self determination. One of the principle in Human Right (ICCPR 1977).

• The Act doesn’t talk about health care needs.

• The Act doesn’t talk about re-assignment surgery, free of cost or on subsidized amount.

• The sexual abuse is punishable for 2 years only.

• It doesn’t provide reservation in education and jobs, as this is against Article 16(2) as discriminate on the basis of sex and in Art.16 (4) state is bound to take action.

• The Bill not give civil rights such as marriages, adoption ,social security, pension etc.6

Transgender Person (Protection of Rights) Rules of 2020 –

The key features of these rules-

• It contains the specific process and manner that how the certificate will be issued to them.

• Along with affidavit, they also have to submit the psychologist report.

• The D.M. gave certificate only to those who are residence under their jurisdiction for period of one year.

On 16 April 2020, the government circulated the draft of rules for the public feedback.

Comparison between the provision of  2019 Act and 2020 rules.

Key issues related to transgender rules 2020

1. The certification of identity, the requirement of psychologist’s report-    the transgender has the right to self perceive their identity and identity card to be issued by the D.M. to confer the rights and benefits of the Act.

The purposes of the psychologist report are not clear and thus violate the principle of self determination.     It is not specified that what the contents of the psychologist report are because already the affidavit is provided by the transgender.

               Post of clinical psychologist  are not sufficient; According to NHRC 2019 report there are only 898 psychologist whereas demand is for 20,25

2.) Before summiting application, has to be resident for one year under D.M jurisdiction. This has increased the burden upon transgender because they have no proper       employment and homelessness.

3.)Purpose for collecting and sharing data is not properly specify: that whom the information is given and for what purpose whether it is for security purpose , send to state government or central government or elsewhere.

  Why peoples are objecting against transgender person (protection of rights) rules 2020:

1. These rules come in April 2020 i.e. in lockdown period, where people are anble to meet and discuss the issues regarding it.

2. The timeline to give objections was from 18 April to 30 April in lockdown period where as in normal bill time period of 30 days is given. When the lockdown 2 starts they also extends the date up to 18 May which is unacceptable to many peoples8.

3. The rules are only provided in the English language and become problematic for many people to understand it.

4. Many activists say that during this time the they are struggling for food and shelter.

5. The punishment for sexual abuse in IPC is not less than 7 years whereas in this Act is only 2 years.

6. These rules does not contain the penalty and punishment for the violation of these rules and incite the practice for discrimination.

7. There is arbitrary power on District Magistrate to reject the application and no provision of appeal, that who is the appellant authority and in what time period they have to close the appeal.

8. It also violates the right of self identity as there is no need of psychologist report.

Conclusion:

The transgender person (protection of rules) 2020 are to justify the Act of 2019 and for the broad view of it .To clarify the provisions like the manner of issue of identity card and other welfare policies. But the people are protesting against it because it works like a toothless tiger as this Act doesn’t marked upon the expectation of peoples and having various anomalous as its contain less punishment than prescribed in IPC etc. But these types of Acts should be encouraged for the protection of the disadvantaged and minorities’ peoples like transgender to save them for the discriminations and other social stigmas. As in article 14,15,16 in constitution of India clearly saves the person from all forms of discriminations. So, state should make the Acts to preserve their fundamental rights.

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1. Twelve five year plan(2012-2017):faster more exclusive and sustainable growth, vol.1 foreword page no.6  

2. NALSA v. UOI AIR (2014) SC1863

3. K.S.puttaswamy v. UOI AIR (2019) 10 SCC 1

4. Navtej singh johar v. UOI AIR (2018)SC 4321

5. Transgender Person (Protection of Right) Act 2019 sec 2(k)

6. Ramaya Kannan, what are the objections to the Transgender Person Bill Dec  01, 2019 (13:27) IST https://www.thehindu.com/news/national/why-are-there-objections-to-the-transgender-persons-bill/article30125894.e

7. https://www.prsindia.org/billtrack/draft-transgender-persons-protection-rights-rules-2020               

8 G.Ram Mohan, half implementation of trans act 201: activist (5 June 2020).   https://thewire.in/lgbtqia/trans-act-2019-rules-feedback-activists__   

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What is social media?

It is the web of peoples and communities to interact with each other. They also use to interchange their contents between the like minded users and can be used with the help of PC, laptop, and mobile phones. On these platforms people used to collaborate and create the awareness among the people and raise their voices on different issues.

Individual interaction is also important and it’s not easy to visit the person daily but because of these platforms we can remain in touch with them. This is also helpful in sharing their opinion and collecting feedbacks.

Types of social media:

This classification is done by the Kalpan and the Haenlein in 2010 used by the people and the government across the world.

1. Social networking – it is the most common platform to be used by the maximum number of people. It has the facility of chat i.e. sending and receiving the messages, sharing, photos as well as files. It includes the Facebook having 800 million users, WhatsAap, Instagram etc.

2. Blogs- these are created and maintained by the user and they can also write a descriptive content. The main feature of blogs is that the readers can comment on the above description and the comment trail can be followed. It is generally used to form the public opinion and get the feedback from them.

3. Microblogs – in this type there is a restriction that the content should be within the word limit of 140 words. In this the reader can read and comment on it ex- text messages and the twitter.

4. Vlogs and YouTube- in this the videos are uploaded and share among the peoples. Viewers can also leave the comment on it. They can also see the live videos. As a vedio speaks the thousand words, it can also act as a report of progress.

5. Wikis- this allow the user to create and update the page related to any information and may contains the link of various other sources, ex- Wikipedia, the most popular web page to be visited by the peoples .

Indian laws regarding social media-

• Constitution of  India-  under article 19, it says about the freedom of speech and expression guaranteed to all citizen and state cannot curb them by making laws against them, but these freedoms are under the ambit of some reasonable restriction as mentioned in article16(2). So, any person can read, write, comment on any issue but these does not come under the reasonable restrictions, which the state impose in interest of citizens and the country as well.

• Information technology Act- section 66A of the IT Act is focused completely on the social media contents and regulates it. It prohibits the any offensive video, audio, or text message or any recorded content to be transmitted. This also prohibits the information or any electronic mail which knows to be false but sent with the purpose of causing the annoyance, injury or insulting the others. This is done with the criminal intension and the spreading the hatred among the people. It may also mislead the person.  

but in 2015, the landmark judgment of Shreya Singal v. UOI2, the supreme court struck down the section 66A of the IT Act and uphold the right to free speech in the recent times.

• Indian penal code – any person violative of the above laws should be dealt with the provisions of IPC. like- section- 295A: intentionally insulting religion or religious beliefs. Section- 153A: promoting enmity between groups on ground of religion, race etc. section-499: defamation, section- 505: statement conducing of public mischief. Section-509: insulting the modesty of women. Section-506: criminal intimidation and section-124A: sedition etc. the main laws to protect the person from the social media abuse is section-499 and  section-500. This states that any person to publish any defamatory statement whether oral or write with the intention to harm the character is punishable with these laws.

• Indecent representation of women ( prohibition )Act, 1998: the section 3 and 4 of these Acts protect the women from indulging in the act of pornography and also punish the  people from circulating the obscene material. Sections 292-293 of the IPC also gave punishment in obscenity (including the pornography)1.

Guidelines for using social media by government organization:

The government organization used these platforms to contact the stakeholders and the concern of the people and their voices. This is also done to ensure the public participation and formation of the public policy.

• Objective: this means that what is the reason behind using the social media for that

Organization. This may be for public interaction, promotion of policy, increasing goodwill of the brand or just for creating the awareness.

• Platform: it may be social bookmarking site like Amazon or the self publishing media like the YouTube. It is depend upon the time period for the interaction and what is the suitable way for it. Whether it is open to public or only for particular experts i.e. stakeholders and whether the law permit to use or not.

• Governance: there must be an online identity of that organization by providing a particular login IDs and the passwords. How the information will update and what is the manner of it. And how the reply to each individual will be sent and what is the response format, and who will handle which task.

• Communication strategy: what type of content should be used to post. Avoid posting the unverified facts to spread the rumors and any fake information.

• Creating the pilot: when you are using a new social media then before open to public we should take a demo to understand the efficiency and whether it is effective for the above mentioned purpose of the organization.

• Institutionalized the social media: this is the final step in which rule may be stabilize in policy making, all important occasions and the updates from the websites3.

International laws regarding social media:

Germany – they came up with a law called Germany’s NetzDG in which they set up a procedure to review the contents, and if any illegal material is uploaded then they have to remove it within 24 hours and have to give updates about their happenings. If they do not remove the content they have to pay the fine of 5 million euro at individual level and company of 50 million euro. They also fined face-book in July 2019.

European union- They mainly emphasis on the terror video and if content is not delete within an hour then they have to face the huge fines. EU also introduced the General Data Protection Regulations which set rules on how the companies and social media platforms have to use the people’s data. Member states have to implements these rules until 2021 into their domestic laws.

Australia- it passed the sharing of abhorrent violent material Act in 2019, in which there are criminal penalties i.e. jail sentences up to 3 years. And 10% of company’s global turn over as penalty.

In 2015, the enhancing Online Safety Act was created so that the social media companies remove the harassing and the abusive post, otherwise fine up to 525,000 Australian Dollar for companies and A$ 105,000 for individual.

Russia – it make a law in Nov. 2019 to switch off the connections to World Wide Web as an emergency situation. And according to their data law they should they store data of Russians within their country only. They also blocked the LinkedIn and fined Facebook because they didn’t comply with these rules and didn’t disclose about their further plan to comply with this.

China- they have blocked the sites like the twitter, Google, and whatsaap. They provide services by other apps called as weibo, baidu, and wechat. The Cyberspace Administration of china announced at the end of January 2019 that they have closed 733 websites, 9,382 mobile apps. They have Cyber police which monitors the social media platforms and see the messages which are politically sensitive4.

Committee reports regarding social media:

Adhoc Committee of the Rajya Sabha: this was chaired by the Mr. Jairam Ramesh to study the issue of pornography on social media and its effect on children and society.

The committee recommends to widen the scope of the POCSO act to save child from pornography. And it should include the written materials and audio recordings also. To protect the children from these social media there should be an age restriction, no content related to child exploitation and information regarding multiple languages. There must be awareness campaign and trainings of people to stop the cyber bulling.

There should be National Commission on Protection of child Rights as designated authority along with State Commission on Protection of Child Rights. And NCRB to record and share all cases of child pornography5.

Rajiv Gauba committee (a union home secretary):  they gave the report on the mob-lynching which happen due to various fake post in the social media platforms. In which 20 people die due to the fake rumors.

The committee recommends blocking the malicious posts on these social media handles. And if these sites doesn’t block then FIR could be lodged against them. There are various laws but lack of law enforcement agencies. To make the national portal where such videos and content to be forwarded to National Crime Records Bureau and to state concerned.

The centre asked states and union territories to set up a special task force to closely monitor the content of social media and to prevent the fake news6.

The latest social media controversy: banning of Tik Tok.

It was all started when in April, 2019 the madras High court passed the order on directing the state government to prohibit the downloading of the Tik Tok App, and call it dangerous for children. The Government of India ban it on 29 June 2020 calling it to be prejudicial to sovereignty and integrity of India, security of state and public order. This act of banning has been done under the section 69A of the information technology act read with the provisions of  Information Technology (Procedure and Safegaurds for blocking of access of Information by Public)Rules 2009.

The ministry of electronics and IT has received complaints from various sources that it is stealing data of users in unauthorized manner and sent it to outside of the India. The Indian cyber Crime Coordination Centre, (home ministry) also gave the recommendations for blocking of the malicious Apps.

Conclusion:

According to the social media statistics there are 3.725 billion active social media user and on average they spend 142 minutes a day on this platform. There is also a drastic growth of 328 million users between 2018-20197. By this we can say that social media has become a major part of our life. There are also some social media movements, example-  #Metoo movement which is very famous and all people even the celebrities took part and share their stories, this become so massive movement that many people are convicted by law of land. Another movement is #bringbackRolacola, the candy product made by Parle Company. We can see that social media is both boon and bane, they help people to connect with their dear ones while on other hand the people are becoming  victim of cyber bulling etc. so, to stop the misuse the government should impose the stringent laws regarding this mater, along with making law there should also the effective law enforcement agency.

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1).Debmalya malik, legal implications regarding offensive messages, social media and SMS  

https://blog.ipleaders.in/social-media

offence/#:~:text=Section%2066A%20of%20the%20IT,can%20be%20offensive%20or%20unwarranted.

2.)  section 66A has been struck down by SC order dated 24 march, 2015 in shreya singhal v. UOI AIR 2015, SC 1523.

3.) framework and guidelines for use of social media for  govt. org. by department of electronics &IT http://meity.gov.in/writereaddata/files/Approved%20Social%20Media%20Framework%20and%20Guidelines%20_2_.pdf

4.) by reality check team, BBC news( 12 Feb.20)  https://www.bbc.com/news/technology-47135058

5.) In Rajya S. https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/71/140/0_2020_2_16.pdf

6.) Vijaita singh, anti lynching measures: social media sites to be held responsible (29 aug 2018) https://www.thehindu.com/news/national/anti-lynching-measures-panel-submits-report-to-rajnath-singh-led-group-of-ministers/article24812462.ece

7.) 126 amazing social media statistics and facts by brandwatch (30  Dec 2019) https://www.brandwatch.com/blog/amazing-social-media-statistics-and-facts/

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According to Sec 2(xx), Sound recordings are the recordings of sounds from which the sounds may be produced regardless of the medium on which such recording is made. Ex- the phonographs and the CD-ROM. Sound recordings are process involving the electrical, mechanical and the digital inscription to recreate the sound waves. The sound recording producers are the one who records the sound and refine them. They used to gather the lyrics and merge them, they used to rewrite and play instruments. There are laws under which these sound recordings can be saved to protect the Intellectual Property Rights. As earlier there are no laws so these could easily be taken by another person.

HISTORY:

The sound recording began in the 1877 when the Thomas Alva Edison invented the phonograph. It is a sheet of tin which is rolled in the cylindrical drum. After 10 years the Alexander Graham Bell and the Charles Tainter developed the wax cylinder phonograph. Here the hard wax surface will replace the tin foil. Then the Emil Berliner make some changes and put the disc in place of the cylinder, and when the recording was done it was put in the acid bath. He discovered the copies both in the negative and the positive versions. Then the period of the industrialization came and the first version to be recorded is the operas of the Puccini. After this the vocal and the operas record changed these classical recording techniques. The technology of the Jazz also invented. After this as the companies grow and the recordings were done behind the cameras then to maintain the privacy and the secrecy they demanded to legislate a law, then the people used to adopt the different approaches live recordings and the tape recordings2.

LAWS TO PROTECT THE SOUND RECORDING:

The copyright Act is one of the intellectual properties which protect the sound recordings. The copyright is the form of the intellectual property right which gave the ownership to author and the composer of the original work and if anybody tries to infringe their copyright then they will be liable under this Act. This an exclusive rights and According to the section 13 of Copyright Act it is applicable on the following classes of the people-

1. Original literacy, dramatic , musical and the Artistic work

2. Cinematography Films

3. Sound recordings

This sound recording provision was added by the amendment Act of the Parliament no. 38 of 1994 and comes in effect from the 10/5/1995.

According to the section 14(e) 3 of the Copyright Act: the meaning of copyright in case of the sound recordings are-

1. Making of sound recordings and including the storing it any medium whether electronics or not.

2. To sell or to make any offer of sale of any copy of the sound recording.

3. To communicate the sound recording to the public.

According to the section 2(d) the author should be the first owner and for sound recordings the producers are considered as their authors. There is a difference between the music and the music recordings, the copyright of the music vests in the composer whereas the copyright of the music recordings are vested in the producers. And if he the same person to compose and make the recordings then he have the 2 copyrights simultaneously.

In the case of the Music broadcast private limited vs. Indian performing right society (AIR 2011)

“The court upheld the rights of the music companies over sound recordings, to the exclusion of the lyricists and the composers whose work were the underlying materials for the sound recordings.”

RIGHTS CONFERED BY THE COPYRIGHT:

1. Statutory rights: The copyright is the derived from the statues and the rights are clearly mentioned in the section 14 of copyright and its clause (e) specifically for the sound recordings.

2. Negative rights: This stops the others from exploiting the rights of the author for their own benefits without taking the prior consent and the license from the owner.

3. Multiple rights: If a person is engaged in 2 or more types of work under the subject matter of the copyright then the author have the multiples rights under the copyright like the sound recording and the cinematographic films.

4. Economics rights: The section 14 clearly states that the author has done some work to gain the economic benefits and if the anyone wants to use, they have to take the prior permission of the author as well as pay the royalty and the other lump-sum amount.

According to the section 274 of the Copyright Act, it provides for the term of the copyright in sound recording is the sixty years from the beginning of the next calendar year from the year in which the work was first to be published.

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3. The copyright amendment Act 1957, Act no. 14 of the 1957, Act of Parliament 1957,(India).

4. ibid 3.

Section 31-D of the copyright Act provides the statutory license for broadcasting of the literary and musical works and sound recordings.

In this section if any broadcasting organization want to communicate the public about these works then they have to follow a procedure-

1. They have to give the prior notice to the organization and stating that what are the time duration and the territorial coverage. They also have to pay the royalties as fixed by the Appellant Board.

2. The rates to broadcast from the radio and television shall be different.

3. On fixing the above rates the broadcasting organization have to pay the owner in advance.

4. The name of the authors and the principal performers shall be announced with the broadcasting members.

5. The broadcasting organization have to make such records and books and render the owner to inspects them all the books related to the broadcast.

INFRINGMENT OF THE SOUND RECORDING:

The home taping is the most common form of the infringement in sound recording. Since it is done by the people from their homes, so, it’s become so difficult to take action against them. But there are some exceptions to infringement of the sound recording.

Section 52(1) (k) it provides the 2 cases where the infringement is not said to be done:

1. Where the recording has been played in the enclosed room or hall which is used as a resident purpose. But it should not be used for any commercial purpose or any commercial resident.

2. Used by a club or a similar organization, where this is not done in order to gain the monetary benefit.

REMEDIES IN CASE OF INFRINGEMENT:

There are three kinds of the remedies against the infringement of the copyright:

1. Civil Remedies: It includes the Injunction, damages or account of profit, delivery of infringing copies and damages for conversion.

2. Criminal remedies: here both the imprisonment and the fine to be filed by the accused, according to the Act the minimum imprisonment are of 6 months and the maximum is of 3 years. And the fine varies from the Rs.50, 000/- to the 2 lakh. And the proceedings should be initiated with no court inferior to that of the Magistrate of the 1 class.

3. Administrative Remedies:  This includes the complaining to the registrar of the copyright to ban the import of the copies in the India. And by any other means as the registrar may deem fit, or to bring back all the copies to the owner of the copyright5.

CONCLUSION:

Nowadays, the sound recordings and their production are increasing day by day and the infringements by making their duplicates and copying by using different techniques. As the copyright provides both the right and the remedies but it is a growing field for which new legislation should be made which provides all the rights, procedure and the remedies in the detail.

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1. 5. Dr. B.L.Wadhera, Law Relating to the Intellectual Property Rights, pg. no.342, universal, lexis nexis 2018.

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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.

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