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This post was reviewed and edited by Isha Suri and Nishant Shankar.

In December 2023, the Department of Telecommunications (DoT) issued instructions to internet service providers (ISPs) to maintain and share a list of “customer owned” IP addresses that host internet services through Indian ISPs so that they can be immediately traced in case “they are required to be blocked as per orders of [the court], etc”.

For the purposes of the notification, tracing customer-owned IP addresses implies identifying the network location of a subset of web services that possess their own IP addresses, as opposed to renting them from the ISP. These web services purchase IP Transit from Indian ISPs in order to connect their servers to the internet. In such cases, it is not immediately apparent which ISP routes to a particular IP address, requiring some amount of manual tracing to locate the host and immediately cut off access to the service. The order notes that “It has been observed that many times it is time consuming to trace location of such servers specially in case the IP address of servers is customer owned and not allocated by the Licensed Internet Service Provider”.

This indicates that, not only is the DoT blocking access to web services based on their IP addresses, but is doing so often enough for manual tracing of IP addresses to be a time consuming process for them.

While our legal framework allows courts and the government to issue content takedown orders, it is well documented that blocking web services based on their IP addresses is ineffectual and disruptive. An explainer on content blocking by the Internet Society notes, “Generally, IP blocking is a poor filtering technique that is not very effective, is difficult to maintain effectively, has a high level of unintended additional blockage, and is easily evaded by publishers who move content to new servers (with new IP addresses)”. The practice of virtual hosting is very common on the internet, which entails that a single web service can span multiple IP addresses and a single IP address can be shared by hundreds, or even thousands, of web services. Blocking access to a particular IP address can cause unrelated web services to fail in subtle and unpredictable ways, leading to collateral censorship. For example, a 2022 Austrian court order to block 11 IP addresses associated with 14 websites that engaged in copyright infringement rendered thousands of unrelated websites inaccessible.

The unintended effects of IP blocking have also been observed in practice in India. In 2021, US-based OneSignal Inc. approached the Delhi High Court challenging the blockage of one of its IP addresses by ISPs in India. With OneSignal being an online marketing company, there did not appear to be any legitimate reason for it to be blocked. In response to the petition the Government said that they had already issued unblocking orders for the IP address. There have also been numerous reports by internet users of inexplicable blocking of innocuous websites hosted on content delivery networks (which are known to often share IP addresses between customers).

We urge the ISPs, government departments and courts issuing and implementing website blocking orders to refrain from utilising overly broad censorship mechanisms like IP blocking which can lead to failure of unrelated services on the internet.

Working towards a binding international L&E instrument
Iran, Pakistan and Kenya highlighted their support toward the African proposal as well emphasized the need for an internationally binding treaty on L&E. Saudi Arabia mentioned the need for Limitations and Exceptions to benefit the preservation and sharing of cultural heritage, as well as for persons with disabilities. Iran emphasied on the need for adequate balance and copyright protection and a balance between different national legislations. Iran stated that there was a need to have an international legal instrument in order to harmonise national legislations, in the absence of which there would not be a free flow of information. Iran also emphasised on the need to look at the priorities of developing countries with respect to the Development Agenda. Pakistan also highlighted the issues that came to light during the pandemic, especially with regard to cross border use of information by educational institutions. In addition to this Pakistan stated that it looked forward to a binding instrument that was not too prescriptive. Kenya shed light on the concerns around the increasing knowledge gap between the developed and the developing countries, and the migration from analogue to digital environment.

WIPO SCCR 43: Notes from Day 4

Limitations and Exceptions and Cross Border Flow of Data
Nigeria, South Africa, Russia, Brazil, Argentina, Iran, Uganda and Algeria extended their support to the Work Programme on L&E by the African Group. Nigeria in their statement  expressed how L&E were essential for research, cultural exchange, and how it had the potential to help people around the world who still lack access to educational and research materials. Nigeria also highlighted that a legally binding international treaty would help harmonise and balance the copyright system with other instruments such as the TRIPS agreement and the WIPO internet treaties, and facilitate smooth transborder trade in both online and traditional media. Iran stated that the creation of L&E for online and crossborder use of data is imperative, especially for the benefit of online teaching and research as well as bridge the digital divide by facilitating access to knowledge and technology.

The European Union (EU)  and France however were not in support of a legally binding instrument.The  EU stated that they would prefer a non-binding instrument such as a toolkit, while France stated that the current international framework of copyright is sufficiently flexible to allow members to implement L&E in their national legislations, as well as to find appropriate tools to meet the needs of education, research and preservation. France expressed their reservation in moving towards a normative framework and stated that the states  could look at the exchange of best practice at national level and support in drafting national legislations. The United States stated that topics such as text and data mining and contract override were not issues that were fully discussed yet at the committee level.

Observations by the Chair

1. The Chair  noted that there continued to be a disagreement on whether to pursue international instruments for Limitations and Exceptions.
2. The Chair also noted that while there was a lot of support for the proposal, there still was no consensus on the proposal. The Chair suggested that the African Group work with the member states that highlighted their reservations and work together with the Chair to see if the proposal could be revised, or to look at portions of the proposal that enjoyed the support to be advanced.

Rights of broadcasters
Iran wanted clarifications about whether the rights granted to broadcasters under the treaty would be a negative right (right to prohibit) or a positive right (right to authorise). Iran also highlighted that there was a need to clarify definitions in the treaty, particularly with respect to user generated contents shared on websites such as Youtube, in comparison with traditional broadcasters.

The Chair clarified that the treaty provides two sets of rights, positive rights under Article 6 and 7 and negative rights under Article  8 and 9. The Chair also clarified that the treaty aimed to bridge the various  legal frameworks, based on copyright, under a rights based approach and a signal based approach. In the signal based approach, the positive right under Article 6 is based to protect only live signal and the protection ends at the point of fixation, hence there is no relation between the right of fixation Article 7 and the right to prohibit transmission and deferred transmission under article 8. The Chair further clarified that the positive right ends at fixation after which the right to prohibit comes into play. With respect to User Generated Content the Chair clarified that the current draft of the treaty focused protection to traditional broadcasters and not other service providers.

Terms of the Right The USA highlighted their concern over the possible perpetual term of fixation rights and requested that a revised text could have some explicit time limit. Singapore echoed USA’s concern over the absence of limitations on the duration of the rights of the broadcasters which could give broadcasters perpetual protection of a programme. Similarly Pakistan questioned the need for a right of fixation highlighting that piracy was an enforcement issue. With respect to the term of protection the Chair clarified that the treaty sought to provide  practical protection to broadcasters of their live signal, and not the content of the broadcast. Further clarifying that one of  the main aims of the treaty was the protection of simultaneous retransmission, and to provide protection in case there was a fixation of the signals.

Limitations and Exceptions
Iran and Brazil highlighted issues about limitations and exceptions. While Iran stated that the inclusion of the three step test in the treaty would water down the limitations and exceptions provisions, Brazil highlighted that the Article 11 of the treaty did not follow the text of the Marakesh convention or the  Beijing treaty regarding Limitations and Exceptions. Brazil highlighted that there was a need to clarify in the text of the treaty itself that the list provided under the Article is illustrative and not exhaustive. In addition to this they stated that the text of the treaty should also establish the presumption that all the examples listed have already fulfilled the three steps. Brazil also highlighted the question about the consequence of the proposal on works in the public domain that are not sufficiently clear. The draft should ensure that public domain content when broadcasted should not receive another layer of protection.

Communia, Knowledge Ecology International (KEI) and Innovarte also highlighted issues that might come up with broadcasting works that are in the public domain. Communia provided examples where the broadcasters might have the only good copy of historic events and reporting that have now become a part of the public domain, however the broadcasters could reappropriate these which are in the public domain with new exclusive rights through this treaty. Communia hence suggested a need for exclusion of public domain works in the treaty.  Innovarte highlighted Article 6 of the Berne convention which allows for exceptions related to public interest such as use of excerpts.

Agenda Item 6 and 7 - Limitations and Exceptions for Libraries and Archives, for Educational and Research Institutions and for Persons with Other disabilities

Working towards a binding international L&E instrument
The beginning of the discussion on Limitations and Exceptions began with the CEBS Group, Group B, the European Union and the USA emphasising  on the need to look at other avenues to implement L and E without going for a legally binding international instrument. Some of the solutions provided included strengthening existing national legislations, existing solutions within the framework of the existing international treaties, exchange of best practices, and capacity building for countries to implement L&E’s in their national legislations.

Ghana on behalf of the African Group stated that there was a need to provide mutual benefit between those who generate and those who use creative works. Ghana also highlighted the issues with cross border access and sharing of copyrighted materials which is becoming increasingly difficult for libraries, archives, museums and research institutions to access. Ghana highlighted the need for a strong support in development of a legal instrument on Limitations and Exceptions, for libraries, archives, museums and for persons with disabilities other than blindness. South Africa in their statement also highlighted the benefit L&E’s would provide to both creators and users, and the cross border transfer of data. And  extended their support to the statement of Ghana and work towards an international instrument whether model law, joint recommendation or a treaty.