Abstract
In India, social media intermediaries (including YouTube, Facebook and Telegram) have become strong media interfaces for creating and publishing content. But they also create a host of new problems around copyright because they let people share content without permission of the creator. This piece traces the contours of intermediary liability in a country like India, based on the legal regime primarily comprising the Information Technology Act, 2000 and the Copyright Act, 1957, and discusses how, for example, safe-harbour protection is crafted and calibrated with the responsibility to protect creators whose works are exploited online. Judicial rulings, such as Shreya Singhal v. Union of India and MySpace v. Super Cassettes, have been instrumental in defining intermediary obligations. This post also includes a brief comparison between India’s approach with that of the U.S and EU to highlight possible reforms in view of emerging technologies like generative AI.
Introduction
Social media websites have changed the relationship between content creators and audience due to the immediate distribution of user generated content (UGC). This democratization has definitely empowered creators, but it’s also opened them up to the pollution of rampant bootleg copying and distribution of their work. Intermediaries – social media companies that have, or carry, the content – claim they cannot be held responsible for user breaches of copyright under safe-harbour protections. But courts and regulators in India have struggled to ascertain the scope of this immunity – even as copyright violations on social media have grown more sophisticated.
The problem is about more than just mass piracy. Day-to-day activities like reposting and remixing and meme-making blur the boundaries between infringement and fair use, leaving creators unsure about control over licensing and revenue. This tension confronts policymakers with the task of protecting both freedom of expression and creators’ rights, in which intermediaries play a central role in copyright law enforcement.
Safe-Harbour under Indian Law
Intermediary liability in India is based on Section 79 of the Information Technology Act, 2000, which provides a safe harbour from liability for third-party content when they act as a “mere conduit” of third-party content provided they observe due diligence and remove any egregious or content if they are provided “actual knowledge.” The Copyright Act, 1957 also provides relief to intermediaries for transient or incidental storage during electronic transmission under Section 52(1)(b).
This is why it has been so crucial that the courts have construed these clauses. The Supreme Court in Shreya Singhal v. Union of India (2015) has said that for knowledge to be “actual” it must come through a court order or government notification, not from user complaints. This ruling shielded intermediaries from capricious removal requests, but kept the copyright holder with a means of judicial redress. The Delhi High Court also stressed upon the point that intermediaries are not supposed to monitor the contents vigorously, but on receiving takedown notice, they should act promptly, drawing reference to MySpace Inc. v. Super Cassettes Industries Ltd.
Expanding Regulatory Framework: IT Rules, 2021
Responsibilities under Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 have been further fine-tuned by Government. These rules create the obligation for intermediaries, particularly “significant social media intermediaries” (those with over 5 million users) to appoint a grievance officer, trace the first originators of a message and to take down protected content within 36 hours of notice.
While the new measures will only expand copyright enforcement, there’s also a danger they will lead to excessive compliance and overly cautious censorship. For instance, both comics and journalists have pondered the constitutionality of certain provisions of the 2021 Rules, while the Bombay High Court, in Kunal Kamra v. Union of India, wondered if the government can be legally empowered to flag down content. Critics contend, however, that such regulatory moves will chill free speech and saddle platforms with onerous compliance burdens while claiming to protect creators’ rights.
Judicial Trends: Active vs. Passive Intermediaries
In the Indian jurisprudence, it is often said that intermediaries have the protection of safe-harbour only if they are “passive” intermediaries. If platforms are engaged in promoting or making money from content, then they are at risk of not having immunity. The distinction was also buttressed by the Court’s decision in Christian Louboutin v. Nakul Bajaj (2018) which while interpreting Trademarks, held that intermediaries who participate sufficiently actively could not seek safe harbour.
In copyright cases, the logic has been the same. For instance, in T-Series v. YouTube & Google (2013), Delhi High Court held that intermediaries are not responsible unless they fail to act on a valid takedown notice. Similarly, in Jagran Prakashan v. Telegram, the Court ordered taking down of whole Telegram channels that were infringing e-newspapers and also to reveal details of subscribers.
Indian courts are increasingly scrutinizing how intermediaries behave, and are now distinguishing between those that merely host content and those that help to disseminate infringing material. Safe-harbour’s not an absolute qualified-protection; it is a limited shield. The moment a platform hosts, organizes, or monetizes content that is not in line with the above, it does not get this protection, offering creators more robust protection of their rights.
Emerging Challenges: AI, Generative Content, and Global Lessons
Generative artificial intelligence (AI) has opened an entire new dimension for copyright enforcement. In January 2025, prominent Indian media outlets, such as NDTV and Indian Express, sued OpenAI over claims that their copyrighted articles were used to train AI models without any permission. This commotion raises two related concerns: the use of copyrighted materials in training data sets, and the risk of AIs to replicate or closely produce originals.
India’s copyright laws, laid down in the Copyright Act, 1957, were not formulated to account for machine learning or algorithms generating content and it is unclear if such practice constitutes infringement. Regulators are thinking now about what reforms need to be made to handle AI-specific risks.
Global experiences offer useful lessons. The notice-and-takedown approach of the U.S. DMCA stands in place whereas the EU Digital Services Act (DSA) extends the scope of transparency and accountability obligations on intermediaries. India perhaps will have to eventually follow a hybrid approach which safeguards creators’ interest in an AI-led era without curbing technological creativity.
Conclusion
India’s framework for intermediary liability has experienced some dramatic changes over the past decade. The statutory framework under Sections of the IT Act and the Copyright Act has underpinning certain judicial interventions including cases such as Shreya Singhal and MySpace to ensure balance position between liability and due diligence. The IT Rules, 2021, had further tightened the noose on platforms and made them more accountable. But their broad sweep also risks chilling free speech and imposing an untenable burden on intermediaries.
Nevertheless, challenges remain steep for creators. Unauthorized use is still rampant; the process of take-downs can be uneven – and AI has led to new methods of infringement.
Existing and new challenges can be met by India by developing a fair and open notice-and-take down process, greater transparency in practice of platform moderation and amending copyright laws in terms of handling AI based challenges in the future. The problem is making sure the intermediaries are responsible stewards of digital spaces without choking off creativity or stifling online freedom.
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WRITTEN BY Stuti Vineet
