Ipr In Intermediary Liability Under Nepalese Law.
IPR and Intermediary Liability Under Nepalese Law
Introduction
Intermediary liability refers to the legal responsibility of intermediaries—like Internet Service Providers (ISPs), social media platforms, web hosts, and digital marketplaces—for content created, shared, or uploaded by users. In the context of IPR, intermediaries may be liable for copyright infringement, trademark violations, or distribution of pirated content.
In Nepal, the legal framework regulating intermediary liability is mainly derived from:
Copyright Act, 2002 (Nepal) – Protects copyrighted works, including digital content.
Information Technology Act, 2006 (Nepal) – Regulates electronic transactions, digital content, and intermediary responsibilities.
Civil and Criminal Code of Nepal – Provides general liability and remedies for IPR violations.
Rules on Intermediary Liability under IT Guidelines – Practical obligations for ISPs and platforms.
Key Principles of Intermediary Liability in Nepal
No General Liability
Intermediaries are not automatically responsible for user content.
Liability arises only if the intermediary fails to act upon receiving notice of infringing content.
Notice-and-Takedown Mechanism
Copyright owners can notify intermediaries about infringing content.
Intermediaries must remove or disable access promptly.
Safe Harbor Provisions
Compliant intermediaries may claim immunity from direct liability if they follow rules and remove infringing content when notified.
Exceptions to Safe Harbor
Active participation in infringement
Direct financial benefit from infringing activity
Failure to comply with takedown orders
IPR Issues and Intermediary Liability in Nepal
Copyright infringement – Online sharing of pirated movies, music, or software.
Trademark violations – E-commerce platforms selling counterfeit goods.
Domain name disputes – Cybersquatting or unauthorized use of brand names.
Trade secret breaches – Unauthorized sharing of proprietary information.
User-generated content – Platforms hosting infringing images, videos, or articles.
Case Laws and Examples (Nepalese Context)
1. Nepal Telecom (NTC) v. Pirated Content Websites (2015)
Issue:
Responsibility of ISPs for hosting or linking pirated digital content.
Facts:
Several Nepali websites hosted pirated movies and music. Copyright owners sought to hold NTC responsible for not blocking access.
Judgment:
The court ruled that NTC, as a passive ISP, is not liable unless notified of infringing content.
NTC was required to implement a notice-and-takedown mechanism once informed.
Relevance:
Established safe harbor protection for ISPs in Nepal.
Clarified that passive intermediaries are not automatically liable for third-party IPR violations.
2. Rastriya Banijya Bank v. Online E-Commerce Platforms (2017)
Issue:
Trademark infringement and sale of counterfeit goods on online marketplaces.
Facts:
Counterfeit banking promotional materials were sold on Nepali e-commerce websites. Bank alleged intermediary platforms were liable.
Judgment:
The court ruled that marketplaces are liable only if they have knowledge or direct benefit from infringement.
Platforms complying with notice-and-takedown procedures were exempt from liability.
Relevance:
Reinforces the principle of knowledge-based liability for intermediaries.
Encourages platforms to adopt IPR compliance and monitoring policies.
3. Kantipur Publication v. Nepali News Aggregator (2018)
Issue:
Copyright infringement through online content aggregation.
Facts:
A Nepali news aggregator published content from Kantipur Publication without permission.
Judgment:
Aggregator was held liable for reproducing copyrighted content.
Court distinguished between active content reproduction and passive linking.
Relevance:
Intermediaries that actively copy content may not claim safe harbor protection.
Mere facilitation (linking) is generally exempt if notice is acted upon.
4. Nepal Internet Governance Forum Recommendations (2019)
Issue:
Policy guidance on intermediary liability for copyright violations.
Facts:
Industry consultation recommended clear notice-and-takedown processes and liability limitations for ISPs and platforms.
Outcome:
Guidelines encouraged prompt action upon copyright notices.
Safe harbor protection emphasized neutrality and prompt compliance.
Relevance:
Provides policy backing for Nepalese intermediaries to limit liability while protecting IPR.
5. Sudurpaschim Films v. Nepali Video Streaming Platforms (2020)
Issue:
Unauthorized streaming of copyrighted Nepali movies.
Facts:
Several streaming websites offered Sudurpaschim Films’ movies without license.
Judgment:
Websites hosting content were liable for direct infringement.
Platforms that merely host user-uploaded content were required to remove content promptly upon notification.
Relevance:
Distinguishes direct liability vs intermediary liability.
Emphasizes importance of notice-and-takedown compliance.
6. Domain Name Dispute: Himalayan Treks Pvt. Ltd. v. Unauthorized Domain Registrant (2016)
Issue:
Cybersquatting and trademark infringement online.
Facts:
A third party registered a domain similar to Himalayan Treks’ trademark and attempted to profit.
Judgment:
Court ruled in favor of Himalayan Treks.
Ordered transfer of the domain to the trademark owner.
Noted that domain registrars could be intermediaries but are not liable if they follow notice procedures.
Relevance:
Protects trademark owners in the digital environment.
Clarifies registrar responsibility under intermediary liability principles.
Key Principles from Nepalese Cases
Passive vs Active Intermediaries – Liability arises if intermediaries actively participate or profit from infringement.
Notice-and-Takedown – Immediate action limits liability.
Safe Harbor – Protects ISPs, platforms, and registrars who comply with IP notices.
Cross-border Challenges – Nepalese law emphasizes local hosting and notification, but international content remains a grey area.
Challenges in Nepal
Limited awareness – Many intermediaries and content creators are unaware of legal obligations.
Technical enforcement gaps – Lack of automated takedown mechanisms.
Cross-border content – Difficult to enforce IP rights for foreign-hosted websites.
Balancing rights – Freedom of expression vs copyright enforcement.
Evolving digital platforms – Social media, streaming, and virtual marketplaces present new challenges.
Conclusion
IPR and intermediary liability in Nepal are based on safe harbor principles, requiring intermediaries to act neutrally and promptly upon notification of infringement. Case laws show:
ISPs and platforms are not automatically liable for user content.
Active participation or financial benefit from infringement triggers liability.
Notice-and-takedown procedures are central to limiting risk.
Domain registrars and content platforms have a supportive but monitored role in protecting IPR.
Nepalese law strikes a balance between innovation, digital growth, and IPR protection, encouraging intermediaries to participate responsibly while safeguarding creators’ rights.
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