Centre for Internet and Society

Counter-proposal by the Centre for Internet and Society: Draft Information Technology (Intermediary Due Diligence and Information Removal) Rules, 2012

pranesh — 2016-04-24T11:48:49Z

Any restriction on freedom of speech should embody and be guided by the following principles, as identified by the UN Special Rapporteur on Freedom of Opinion and Expression

For more details visit https://cis-india.org/internet-governance/counter-proposal-by-cis-draft-it-intermediary-due-diligence-and-information-removal-rules-2012.pdf

Counter-proposal by the Centre for Internet and Society: Draft Information Technology (Intermediary Due Diligence and Information Removal) Rules, 2012

pranesh — 2016-04-24T11:56:49Z

Any restriction on freedom of speech should embody and be guided by the following principles, as identified by the UN Special Rapporteur on Freedom of Opinion and Expression.

For more details visit https://cis-india.org/internet-governance/counter-proposal-by-cis-draft-it-intermediary-due-diligence-and-information-removal-rules-2012.odt

Analysing Latest List of Blocked Sites (Communalism & Rioting Edition)

pranesh — 2012-09-06T11:52:47Z

Pranesh Prakash does preliminary analysis on a leaked list of the websites blocked from August 18, 2012 till August 21, 2012 by the Indian government.

Note: This post will be updated as more analysis is done. Last update: 23:59 on August 22, 2012. This is being shared under a Creative Commons Attribution-NonCommercial licence.

How many items have been blocked?

There are a total of 309 specific items (those being URLs, Twitter accounts, img tags, blog posts, blogs, and a handful of websites) that have been blocked. This number is meaningless at one level, given that it doesn't differentiate between the blocking of an entire website (with dozens or hundreds of web pages) from the blocking of a single webpage. However, given that very few websites have been blocked at the domain-level, that number is still reasonably useful.

Please also note, we currently only have information related to what telecom companies and Internet Service Providers (ISPs) were asked to block till August 21, 2012. We do not have information on what individual web services have been asked to remove. That might take the total count much higher.

Why have these been blocked?

As far as I could determine, all of the blocked items have content (mostly videos and images have been targeted, but also some writings) that are related to communal issues and rioting. (Please note: I am not calling the content itself "communal" or "incitement to rioting", just that the content relates to communal issues and rioting.) This has been done in the context of the recent riots in Assam, Mumbai, UP, and the mass movement of people from Bangalore.

There were reports of parody Twitter accounts having been blocked. Preliminary analysis on the basis of available data show that parody Twitter accounts and satire sites have not been targetted solely for being satirical. For instance, very popular parody Twitter accounts, such as @DrYumYumSingh are not on any of the four orders circulated by the Department of Telecom. (I have no information on whether such parody accounts are being taken up directly with Twitter or not: just that they aren't being blocked at the ISP-level. Media reports indicate six accounts have been taken up with Twitter for being similar to the Prime Minister's Office's account.)

Are the blocks legitimate?

The goodness of the government's intentions seem, quite clearly in my estimation, to be unquestionable. Yet, even with the best intentions, there might be procedural illegalities and over-censorship.

There are circumstances in which freedom of speech and expression may legitimately be limited. The circumstances that existed in Bangalore could justifiably result in legitimate limitations on freedom of speech. For instance, I believe that temporary curbs — such as temporarily limiting SMSes & MMSes to a maximum of five each fifteen minutes for a period of two days — would have been helpful.

However it is unclear whether the government has exercised its powers responsibly in this circumstance. The blocking of many of the items on that list are legally questionable and morally indefensible, even while a some of the items ought, in my estimation, to be removed.

If the government has blocked these sites under s.69A of the Information Technology Act ("Power to Issue Directions for Blocking for Public Access of Any Information through any Computer Resource"), the persons and intermediaries hosting the content should have been notified provided 48 hours to respond (under Rule 8 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules 2009). Even if the emergency provision (Rule 9) was used, the block issued on August 18, 2012, should have been introduced before the "Committee for Examination of Request" by August 20, 2012 (i.e., within 48 hours), and that committee should have notified the persons and intermediaries hosting the content.

Importantly, even though many of the items on that list are repugnant and do deserve (in my opinion) to be removed, ordering ISPs to block them is largely ineffectual. The people and companies hosting the material should have been asked to remove it, instead of ordering Internet service providers (ISPs) to block them. All larger sites have clear content removal policies, and encouraging communal tensions and hate speech generally wouldn't be tolerated. That this can be done without resort to the dreadful Intermediary Guidelines Rules (which were passed last year) shows that those Rules are unnecessary. It is our belief that those Rules are also unconstitutional.

Are there any egregious mistakes?

Yes, there are numerous such examples of egregious mistakes.

Most importantly, some even people and posts debunking rumours have been blocked.
Some of the Twitter accounts are of prominent people who write for the mainstream media, and who have written similar content offline. If their online content is being complained about, their offline content should be complained about too.
Quite a number of the links include articles published and reports broadcast in the mainstream media (including a Times Now report, a Telegraph picture gallery, etc.), and in print, making the blocks suspect. Only the online content seems to have been targeted for censorship.

There are numerous mistakes and inconsistencies that make blocking pointless and ineffectual.

Some of the items are not even web addresses (e.g., a few HTML img tags were included).
Some of the items they have tried to block do not even exist (e.g., one of the Wikipedia URLs).
An entire domain was blocked on Sunday, and a single post on that domain was blocked on Monday.
For some Facebook pages, the secure version (https://facebook.com/...) is listed, for others the non-secure version (http://facebook.com/...) is listed.
For some YouTube videos, the 'base' URL of YouTube videos is blocked, but for other the URL with various parameters (like the "&related=" parameter) is blocked. That means that even nominally 'blocked' videos will be freely accessible.

All in all, it is clear that the list was not compiled with sufficient care.

Despite a clear warning by the DIT that "above URLs only" should be blocked, and not "the main websites like www.facebook.com, www.youtube.com, www.twitter.com, etc.", it has been seen that some ISPs (like Airtel) have gone overboard in their blocking.

Why haven't you put up the whole list?

Given the sensitivity of the issue, we felt it would be premature to share the whole list. However, we strongly believe that transparency should be an integral part of all censorship. Hence, this analysis is an attempt to provide some much-needed transparency. We intend to make the entire list public soon, though. (Given how porous such information is, it is likely that someone else will procure the list, and release it sooner than us.)

Why can I still access many items that are supposed to be blocked?

One must keep in mind that fresh orders have been issued on a day-by-day basis, that there are numerous mistakes in the list making it difficult to apply (some of these mistakes have been mentioned above), and the fact that that this order has to be implemented by hundreds of ISPs.

Your ISP probably has not have got around to enforcing the blocks yet. At the time of this writing, most ISPs don't seem to be blocking yet. This analysis is based on the orders sent around to ISPs, and not on the basis of actual testing of how many of these have actually been blocked by Airtel, BSNL, Tata, etc.

Additionally, if you are using Twitter through a client (on your desktop, mobile, etc.) instead of the web interface, you will not notice any of the Twitter-related blocks.

So you are fine with censorship?

No. I believe that in some cases, the government has the legal authority to censor. Yet, exercising that legal authority is usually not productive, and in fact there are other, better ways of limiting the harms caused by speech and information than censorship. Limiting speech might even prove harmful in situations like these, if it ends up restricting people's ability to debunk false rumours. In a separate blog post (to be put up soon), I am examining how all of the government's responses have been flawed both legally and from the perspective of achieving the desired end.

So what should the government have done?

Given that the majority of the information it is targeting is on Facebook, Youtube, and Twitter, the government could have chosen to fight alongside those services to get content removed expeditiously, rather than fight against them. (There are some indications that the government might be working with these services, but it certainly isn't doing enough.)

For instance, it could have asked all of them to expedite their complaints mechanism for a few days, by ensuring that the complaints mechanism is run 24x7 and that they respond quickly to any complaint submitted about communal incitement, spreading of panic, etc. This does not need the passing of an order under any law, but requires good public relations skills and a desire not to treat internet services as enemies. The government could have encouraged regular users to flag false rumours and hate speech on these sites. On such occasions, social networking sites should step up and provide all lawful assistance that the government may require. They should also be more communicative in terms of the help they are providing to the government to curtail panic-inducing rumours and hate speech. (Such measures should largely be reactive, not proactive, to ensure legitimate speech doesn't get curtailed.)

The best antidote for the rumours that spread far and wide and caused a mass movement of people from Bangalore to the North-Eastern states would have been clear debunking of those rumours. Mass outreach to people in the North-East (very often the worried parents) and in Bangalore using SMSes and social media, debunking the very specific allegations and rumours that were floating around, would have been welcome. However, almost no government officials actually used social media platforms to reach out to people to debunk false information and reassure them. Even a Canadian interning in our organization got a reassuring SMS from the Canadian government.

It is indeed a pity that the government notified a social media engagement policy today, when the need for it was so very apparent all of the past week.

And what of all this talk of cybersecurity failure and cyber-wars?

Cybersecurity is indeed a cause of concern for India, but only charlatans and the ignorant would make any connection between India's cybersecurity and recent events. The role of Pakistan deserves a few words. Not many Pakistani websites / webpages have been blocked by the Indian government. Two of the Pakistani webpages that have been blocked are actually pages that debunk the fake images that have been doing the rounds in Pakistan for at least the past month. Even Indian websites like Kafila have noted these fake images long ago, and Ayesha Siddiqa wrote about this on August 5, 2012, and Yousuf Saeed wrote about it on August 13, 2012. Even while material that may have been uploaded from Pakistan, it seems highly unlikely they were targeted at an Indian audience, rather than a Pakistani or global one.

Domain	Total Number of Entries	Tuesday, August 21, 2012	Monday, August 20, 2012	Sunday, August 19, 2012	Saturday, August 18, 2012
ABC.net.au	1				1
AlJazeera.com	4		4
AllVoices.com	1				1
WN.com	1				1
AtjehCyber.net	1				1
BDCBurma.org	1	1
Bhaskar.com	1			1
Blogspot.com	4			3	1
Blogspot.in	7	1	3		3
Catholic.org	1			1
CentreRight.in	2	2
ColumnPK.com	1			1
Defence.pk	4		2	1	1
EthioMuslimsMedia.com	1				1
Facebook.com (HTTP)	75	36	7	18	14
Facebook.com (HTTPS)	27		3	23	1
Farazahmed.com	5	1			4
Firstpost.com	2		1	1
HaindavaKerelam.com	1			1
HiddenHarmonies.org	1		1
HinduJagruti.org	2		1	1
Hotklix.com	1			1
HumanRights-Iran.ir	2				2
Intichat.com	1	1
Irrawady.org	1			1
IslamabadTimesOnline.com	1				1
Issuu.com	1				1
JafriaNews.com	1				1
JihadWatch.org	2		2
KavkazCenter	1			1
MwmJawan.com	1				1
My.Opera.com	1	1
Njuice.com	1		1
OnIslam.net	1				1
PakAlertPress.com	1	1
Plus.Google.com	4				4
Reddit.com	1		1
Rina.in	1				1
SandeepWeb.com	1		1
SEAYouthSaySo.com	1				1
Sheikyermami.com	1				1
StormFront.org	1				1
Telegraph.co.uk	1				1
TheDailyNewsEgypt.com	1				1
TheFaultLines.com	1				1
ThePetitionSite.com	1	1
TheUnity.org	1				1
TimesofIndia.Indiatimes.com	1		1
TimesOfUmmah.com	1				1
Tribune.com.pk	1	1
Twitter.com (HTTP)	1			1
Twitter.com (HTTPS)	11			1	10
Twitter account	18		16	2
TwoCircles.net	2			2
Typepad.com	1		1
Vidiov.info	1		1
Wikipedia.org	3			3
Wordpress.com	8	1	3	2	2
YouTube.com	85	18	39	14	14
YouTu.be	1			1
Totals	309	65	88	80	75

The analysis has been cross-posted/quoted in the following places:

LiveMint (September 4, 2012)
The Hindu (August 26, 2012)
Wall Street Journal (August 25, 2012)
tech 2 (August 25, 2012)
China Post (August 25, 2012)
The Hindu (August 24, 2012)
LiveMint (August 24, 2012)
Global Voices (August 24, 2012)
Reuters (August 24, 2012)
Outlook (August 23, 2012)
FirstPost.India (August 23, 2012)
IBN Live (August 23, 2012)
News Click (August 23, 2012)
Medianama (August 23, 2012)
KAFILA (August 23, 2012)
CIOL (August 23, 2012)

For more details visit https://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism

Consumers International IP Watchlist 2012 — India Report

pranesh — 2012-08-16T10:23:36Z

Pranesh Prakash prepared the India Report for Consumers International IP Watchlist 2012. The report was published on the A2K Network website.

Summary

India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist. India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist.

It is unfortunate that the larger public interest in copyright-related issues are never foregrounded in India. For instance, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings without calling a single consumer rights organization, and without seeking any civil society engagement, except for the issue of access for persons with disabilities. This was despite a number of civil society organizations, including consumer rights organizations, sending in a written submission to the Standing Committee.

This lopsidedness in terms of policy influence is resulting in greater imbalance in the law, as evidenced by the government's capitulation to a handful of influential multinational book publishers on the question of allowing parallel importation of copyrighted works. Furthermore, pressure from the United States and the European Union, in the form of the Special 301 report and the India-EU free trade agreement that is being negotiated are leading to numerous negative changes being introduced into Indian law, despite us not having any legal obligation under any treaties. Such influence only works in one direction: to increase the rights granted to rightsholders, and has so far never included any increase in user rights.

It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Visually impaired persons, for instance, have no option but to disobey the law that does not grant them equal access to copyrighted works. Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works.

Source URL: http://bit.ly/QEJf5l
Click to download the report [PDF, 201 Kb]

For more details visit https://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012

Data-Driven Journalism, Data Literacy & Open Government — Talk at CIS

pranesh — 2012-07-31T06:08:55Z

The Open Knowledge Foundation and the Centre for Internet and Society invite you to an informal talk by Lucy Chambers and Laura Newman on 'Data-Driven Journalism, Data Literacy, and Open Government'.

The Government of India recently passed a policy that requires all departments to start opening up data to the public, and NIC is working towards consolidating this on a single website. This workshop would focus on exchanging information on how such data are used by journalists elsewhere, and what can be done in India to drive journalism using data.

Details

The Open Knowledge Foundation is an international not-for-profit with a mission to open up the world's data, build data-literacy and promote evidence-based policy making. Working in 3 broad fields open-government, open research and open cultural heritage the activities of the foundation are focused around projects, working groups and local meetups.

The talk will be very informal, and focus on Data Journalism (datajournalismhandbook.org), but will also touch on data management for governments (ckan.org), the teaching of data literacy (schoolofdata.org) and explaining the meaning of the numbers behind government expenditure (openspending.org).

More Details

The Data Journalism Handbook was born at a 48-hour workshop at MozFest 2011 in London. It subsequently spilled over into an international, collaborative effort involving dozens of data journalism's leading advocates and best practitioners including from the Australian Broadcasting Corporation, the BBC, the Chicago Tribune, Deutsche Welle, the Guardian, the Financial Times, Helsingin Sanomat, La Nacion, the New York Times, ProPublica, the Washington Post, the Texas Tribune, Verdens Gang, Wales Online, Zeit Online and many others. Ms. Chambers was one of the
editors of the book.

Additional Links

Data Journalism Handbook - Online Version:http://bit.ly/Istv8c

Examples of data-driven journalism:http://bit.ly/8KwHR

Data-Driven Journalism mailing list: http://bit.ly/hUOQX3

For more details visit https://cis-india.org/openness/data-driven-journalism-data-literacy-and-open-govt

CIS's Statement at SCCR 24 on Exceptions & Limitations for Libraries and Archives

pranesh — 2012-07-25T10:54:38Z

This was the statement delivered by Pranesh Prakash on Wednesday, July 25, 2012, at the 24th session of the WIPO Standing Committee on Copyrights and Related Rights on the issue of exceptions and limitations for libraries and archives.

Thank you, Mr. Chair.

We would like to associate ourselves with the statements made by International Federation of Library Associations, Electronic Information for Libraries, Knowledge Ecology International, Conseil International des Archives, Library Copyright Alliance, Computer and Communications Industry Association, and the Canadian Library Association.

The Centre for Internet and Society would like to commend this house for adopting SCCR/23/8 as a working document on the issue of exceptions and limitations on libraries and archives. This issue is of paramount interest the world over, and particularly in developing countries. I would like to limit my oral intervention to three quick points, and will send a longer statement in via e-mail.

First, we feel that this committee should pay special attention to ensuring that digital works and online libraries and archives such as the Internet Archive, also receive the same protection as brick-and-mortar libraries.

Second, we are concerned that we have been seeing some delegations advancing a very narrow interpretation of the three-step test. Such a narrow interpretation is not supported by leading academics, nor by practices of member states. A narrow interpretation of the three-step test must be squarely rejected. In particular, I would like to associate CIS with the strong statements by IFLA and KEI to maintain flexibilities within exceptions and limitations, instead of overly prescriptive provisions encumbered by weighty procedures and specifications.

We have comments about parallel trade as well, drawing from our experience and research in India, and will send those in writing.

Libraries and archive enhance the value of the copyrighted works that they preserve and provide to the general public. They do not erode it. Exceptions and limitations that help them actually help copyright holders. The sooner copyright holders try not to muzzle libraries, especially when it comes to out-of-commerce works, electronic copies of works, and in developing countries, the better it will be for them, their commercial interests, as well as the global public interest.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-libraries-archives

Transcripts of Discussions at WIPO SCCR 24

pranesh — 2012-07-31T12:35:43Z

We are providing archival copies of the transcripts of the 24th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from July 16 to 25, 2012.

This is an unedited rough transcript of the discussions at SCCR 24, which is live-streamed and made available by WIPO at http://www.streamtext.net/player?event=WIPO. We are hosting the live-streamed text for archival purposes:

WIPO SCCR 24 Pre-lunch Text (July 19, 2012)
WIPO SCCR 24 Post-lunch Text (July 19, 2012)
WIPO SCCR 24 Pre-lunch Text (July 20, 2012)
WIPO SCCR 24 Post-lunch Text (July 20, 2012)
WIPO SCCR 24 Pre-lunch Text (July 23, 2012)
(There was no post-lunch plenary session on July 23, 2012)
WIPO SCCR 24 Pre-lunch Text (July 24, 2012)
WIPO SCCR 24 Post-lunch Text (July 24, 2012)
WIPO SCCR 24 Pre-lunch Text (July 25, 2012)
WIPO SCCR 24 Post-lunch Text (July 25, 2012)

For more details visit https://cis-india.org/a2k/wipo-sccr24-discussions-transcripts

CIS's Statement at SCCR 24 on the WIPO Broadcast Treaty

pranesh — 2012-07-23T15:02:11Z

This was the statement read out by Pranesh Prakash at the 24th meeting of the WIPO Standing Committee for Copyright and Related Rights in Geneva, on Monday, July 23, 2012, specifically on the Chair's Non Paper on the Protection of Broadcasters which was released this morning.

Thank you, Madam Chair.

The Centre for Internet and Society would like to thank the Japanese, South African and Mexican delegations, as well as the Chair for their hard work on this text before us.

We wish to reiterate the statement on principles provided in the 22nd SCCR by many civil society non-governmental organizations, cable casters and technology companies opposing a rights-based Broadcast Treaty, and would like to associate ourselves with the statements made today by the CCIA, EFF, IFLA, LCA, eIFL, KEI, and the Internet Society.

I have a longer statement, which I will mail in later, but will read a shorter version now.

Why Do We Need Protection for Broadcasters?

Broadcasters make three kinds of investments for which they are protected. They invest in broadcasting infrastructure, they invest in licensing copyrighted works, and they at times invest in creating copyrighted works. The first investment is protected by 'broadcast rights', and the latter two investments are already protected by copyright law. So it is probably the first investment alone that needs to be protected, but the Rome Convention already does precisely that.

Broadcasters Already Protected Online

Importantly, the investments to be made in infrastructure for Internet-based transmission is insignificant, and hence Internet-based transmission should not be covered by this treaty, even if it is retransmission over the Internet, and even if it is traditional broadcaster which is transmitting over the Internet. Technology-neutrality should not be taken to such an extent as to forget why we are granting additional protection to broadcasters, which is to protect their investments.

Broadcasters Can Already Sue for Copyright Violation

The Motion Pictures Association in its statement just now mentioned "cause of action" as something that this treaty seeks to protect: that is, to allow broadcasters to have a standing to sue for copyright violation. The fact is that most, if not all, legal systems already allow for licensees — like broadcasters — to have cause of action for infringement. A global treaty is not needed for that.

Inconsistencies in Chair's Non Paper

Lastly, there are many inconsistencies in the Chair's non-paper: while it proclaims that it only extends protection to broadcast signals, and not the subject matter carried by such signals, the rest of the document does not follow that principle. Fixation cannot be covered in a signals-based treaty, nor does it make any logical sense to provide 20 years of protection for a signal that lasts for milliseconds. As the delegates would recall, the General Assembly's mandate was for a signals-based approach, and not for a rights-based approach.

Thank you, Madam Chair.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-broadcast-treaty

India's Opening Statement on the Treaty for the Visually Impaired at SCCR 24

pranesh — 2012-07-23T15:24:26Z

This was the opening statement of the Indian delegation, delivered by G.R. Raghavender, on Thursday, July 19, 2012, at the 24th meeting of the SCCR at WIPO in Geneva. The statement called upon all countries to conclude textual work on the treaty and call for a Diplomatic Conference to finalize it. This statement received applause, which is highly unusual at the SCCR.

Thank you, Mr. Chairman.

The Indian delegation is a little bit disappointed about the way we have started this topic of the Treaty for the Visually Impaired. Forgive me, Mr. Chairman, we have confidence in your abilities, but unfortunately we have already lost one hour in this afternoon session. We have only two hours left, unless and until we decide to work beyond 6:00 P.M.

We have a document, SCCR/23/7, on the table. Everybody has this document. We all decided in the last SCCR that we will work on this document and move towards a meaningful treaty. We said, in this very 24th SCCR, we will be ready for that. We should have started article-by-article discussions by now. And as we are involved in the general statements in our agenda, I can go on reading a statement for another 20 minutes as I have about five pages written out. But given our support for the treaty, I won't.

I'm sorry, I respect all the distinguished delegations: they have their own concerns, but Mr. Chairman, under your leadership we should have started article-by-article discussions by now. Yesterday, in the evening at the Chairman plus group leaders plus 3, we all requested that. Whatever happened during the 14, 15 intersessional meetings, we have no objection to that, but people raise the issue of transparency and availability of the document. Whatever changes have been made to the document must be public. If no one is ready to post that document either during the informal discussions, or here in the plenary, they can always come out with the changes made to particular articles, or para in the preamble, when the discussion starts.

We should be ready to work towards finalizing this treaty. We are even open to working on Saturday and Sunday, Mr. Chairman.

If we don't finalize in this SCCR, we cannot go to the General Assembly in the first week of the month of October. If we lose that time, we will have to wait until the next General Assembly, because we cannot have a General Assembly in between.

So we will be simply wasting our time in the November SCCR and again next July SCCR, waiting for the next General Assembly.

So kindly guide us to start text-based article-by-article discussions, so that we won't go back empty-handed. The Indian delegation won't go back empty-handed, facing the 15 million blind people in India, which is almost 50 percent of the world blind population, that is 37 million.

Thank you.

For more details visit https://cis-india.org/a2k/india-opening-statement-sccr24-tvi

CIS's Statement at SCCR 24 on the Treaty for the Visually Impaired

pranesh — 2012-07-22T12:01:28Z

This was the statement read out by Pranesh Prakash at the 24th meeting of the WIPO Standing Committee for Copyright and Related Rights in Geneva, on Friday, July 20, 2012.

Thank you, Mr. Chairman.

I would like to associate CIS with the statements made by the WBU, eIFL, IFLA, KEI, ISOC, and CLA.

We NGOs been making statements at SCCR on this the topic of a treaty for the reading-disabled since 2009 now.

In this room there are a number of organizations that work with and for persons with disabilities which come here to Geneva, SCCR after SCCR. They do not come here to watch the enactment of an elaborate ritual, but to seek solutions for the very real knowledge drought that is being faced by the reading-disabled everywhere, and particularly in developing countries.

The way work on this treaty — or rather this binding-or-non-binding international instrument — has been stalled by some member states is a matter of shame. In India our Parliament recently passed an amendment to our copyright law that grants persons with disabilities, and those who are working for them, a strong yet simply-worded right to have equal access to copyrighted works as sighted persons.

An instrument that lays down detailed guidelines on rules and procedures to be followed by authorized entities will not work. An instrument that subjects the enjoyment of fundamental freedoms by persons with visual impairments to market forces and bureaucratic practices will not work.

Importantly, an instrument that ignores realities of the world: that the vast majority of persons with visual impairment live in developing countries just will not work.

I implore the delegations here to keep up the constructive spirit I have seen most of them display in the past two days, and ensure that the 2012 General Assembly convenes a Diplomatic Conference on this topic.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-sccr24-treaty-visually-impaired

Open Government Data

pranesh — 2012-07-16T12:42:33Z

The Transparency & Accountability Initiative published a book titled “Opening Government: A Guide to Best Practice in Transparency, Accountability and Civic Engagement across the Public Sector”. The Centre for Internet & Society contributed a chapter on Open Government Data.

Openness in relation to information on governmental functioning is a crucial component of democratic governance. There are few things more abhorrent to democracies than a lack of transparency in their functioning, and secrecy in public affairs is generally a sign of autocratic rule. Such transparency is the foundation for the seeking of accountability from those who exercise power over public policy issues and governmental functioning, including not only governments but also large corporations, trade unions, civil society organisations (CSOs), funding agencies and special interest groups. This information would also include all information on private bodies that can be accessed by public authorities.

Transparency helps citizens to independently evaluate governmental functioning and thus hold accountable any instances of corruption or mismanagement, whether at the level of policy formulation or at the level of implementation. Thus, the freedom of speech and expression and the right to receive information, which are seen as two sides of the same right under most international covenants, are both vitally important in ensuring transparent and accountable governance.

Making public information that is produced by the government is slightly different from merely making public information on governmental functioning. While many instances of the former are subsumed within the latter (e.g. information collected by the government), there are also areas where the two categories do not overlap. Openness with respect to government-produced information is part of the right of the public to access any output of taxpayer funding. Thus the category of ‘governmental information’ or ‘governmental data’ can be taken to include information about the government and governmental functioning, as well as information collected and produced by the government.

In addition, there can be two related but independent grounds on which the right of the public to governmental information is often founded. The ‘open government data’ movement – it is now a demand cutting across multiple nations and deserves to be so called – is predicated upon there being a certain degree of transparency in public functioning, notably through the existence of ‘right to information’ or ‘freedom of information’ statutes. Specifically, the open data movement generally understands the public’s right to information to include (1) the proactive disclosure of information; (2) the internet being the primary medium for such disclosure; (3) information being made available for access and for re-use free of charge and; (4) information being made available in a machine-readable format to enable computer-based re-use.

As it would be meaningless to demand the additional components that go to make ‘open government data’ in an environment where the basic right to information does not exist, all recommendations here (including initial steps) presume that such a right exists.

Initial steps

Goal
A commitment by the government to provide proactive disclosure of existing digital data on the web.

Justification
Most governments already rely on computers at least for information storage at most levels even if they often perform information processing and sharing (i.e. conduct governmental transactions whether government-government, government business, or government-civil society) offline. This information that already exists in a digital form – quite often in the form of text documents and spread sheets – can and should be made public, based on a narrow negative blacklist. This blacklist should have a list of categories of information that should not be made available because of a narrow set of concerns such as privacy and properly classified state secrets. While this will undoubtedly result in the haphazard release of files that may be difficult to comprehend or use effectively, this is not a reason for keeping data offline and out of public reach. Once a process has been initiated of continually putting data up online, the data and the process can themselves be bettered through more elaborate technological and process-related improvements. Proactive disclosure steps can and should be taken even without the implementation of a robust procedural back-end
for information gathering, processing and sharing along with the technology that enables it. While such robust information architecture and back-end infrastructure is certainly desirable, it is not necessary for the immediate online release of files that are already in digital format.

Recommendations

The government should create a minimal front-facing infrastructure, in terms of both technology (namely, a website) and human resources (people who are tasked with the responsibility of uploading governmental records, documents, reports and other information).
A negative list of information that may not be shared should be drawn up by each public authority so that all other material can be made publicly available immediately, keeping in mind the more general guidelines that exist in national and sub-national policies and laws on the right to information.
A timeline should be put in place to ensure that proactive disclosure of existing government information continues to happen on a regular basis, until more rigorous steps are taken towards open government data.

More substantial steps

Goal
All government data is made available, in a form that ensures ease of use and reuse.

Justification
Making government data available online is just the first basic step. All information released requires a proper underpinning in informational policy and technological support to realise full transparency, citizen participation and full social and economic value. Governments should use smarter technologies to ensure that the policy commitment to open government data can be realised in practice. In particular, searchability in the system greatly helps to ensure accessibility for persons with disabilities. Such searchability is often easy when it comes to text, but ends up being more complicated in other areas. For this reason, some of the suggestions on this have been kept for the next section (on proposals for most ambitious steps).

Recommendations

Policy and process

An information policy should be formulated that deals comprehensively with best practices with regard to information collection, storage, retrieval and management at the national level, and that allows for the adoption of that policy either with modification or directly by sub-national governments.
- Part of this policy must ensure that most new information is either created in a digital form, or is digitised from paper as soon as is practicable, and that later transactions of this information happen, as far as possible, over electronic modes of communication.
- This policy must also ensure that as much as electronic receipt of governmental information is seen as a right of citizens, so is non-electronic receipt.
A technological policy should be formulated that mandates the use of open standards in all e-governance to promote interoperability and prevent vendor lock-in, with only temporary and limited exceptions.
- This must be accompanied by a document on technological architecture (whether called an e-governance interoperability framework (e-GIF) policy, or a national enterprise architecture (NEA)) that lays down the broad parameters of the technology framework to enable the information architecture policy, including the metadata standards.
The ability to reuse the published data must be guaranteed as part of a public sector information/open government data policy. This is crucial to enable journalists, CSOs and others.
All information must be provided free of cost at least in cases where:
- The government is not monetising the data, nor has plans to do so; or
- The data is for use by individuals and small and medium enterprises; or
- The data is available without any special fees under right to information/freedom of information statutes.

Technology

All public authorities must be made to ensure that they use open standards, such as Unicode, prescribed in the e-GIF/ NEA. In addition, their data processing and publishing processes must comply with those laid out in these architectural documents.
Sector-specific and use-specific metadata must be included in all files and objects made available to the public, so that when they use the services to retrieve objects they can make sense of the objects and manipulate them appropriately.
This metadata must be standardised, as this is a crucial requirement to enable easy categorisation and searching of information. An important part of searching through the data is also searching through the full contents of the datasets.

Most ambitious steps

Goal
To translate the publishing of open governmental data into better data via input from the public.

Justification
Public outreach and citizen-oriented tools are crucial to ensuring a vibrant online and offline public sphere where government data are used and discussed and a feedback loop is created, rather than this being a mere data dump. Using service-oriented architecture will help in ensuring platform independence, better scalability, greater code reuse, higher availability of services, parallel development of different components and many other benefits in terms of provision of data for governments. A robust service-oriented architecture will enable citizens to be treated as yet another client asking for information, and will enable useful application programming interfaces (APIs) to be built that will allow for easy access for power users to the data.

Integration with social media is a must, because it allows governments to reach vast networks of people at once and defray costs. Such integration will allow governments to go where many citizens are, rather than trying to get the citizens to come to them. However, care must be taken to ensure that such integration is done with adequate safeguards for privacy, long-term archival capability and data portability.

Recommendations

Policy and process

The pro-elite bias that is often inherent in online technologies must be actively neutralised through policy. Such a policy must be designed to ensure that there is no elitist capture of the benefits of open government data, and that there is active promotion of ‘offline translation’ of data, especially in technologically divided countries where the gap between those who have access to technology and those who do not is wide.
Governments must allow for correction of data by the public.
Offline translation of data must be facilitated, especially in technologically poorer countries.

Technology

Documents should be structured with semantic mark-up, which allows for intelligent querying of the content of the document itself. Before settling upon a domestic usagespecific semantic mark-up schema, well-established XML schemas should be examined for their suitability and should be used wherever appropriate.
Multiple forms of access must be provided to the data, and it must be made available interactively through the web for non-technical users. For more advanced users, the data must be available for bulk downloads, and it should also be accessible through well-documented open APIs.
There should be a single-point portal (similar to the UK’s Data.gov.uk) to provide access to different public authorities’ data.
All data should be Cloud-based to the extent that it ensures lower overheads for the government.

Download the full report (PDF, 440 Kb)

For more details visit https://cis-india.org/openness/open-government-data-commitments-best-practices

The Web of Our Strife

pranesh — 2012-06-04T05:45:34Z

At the 66th session of the UN General Assembly, India proposed the formation of a Committee on Internet-Related Policies (CIRP) to address what it sees as a policy vacuum in internet governance.

Pranesh Prakash's article was published in the Times of India on June 2, 2012.

This CIRP will, in the view of India's government, address the US domination of internet policymaking, and make it more democratic and 'multistakeholder'. As an example of this domination, our government cites the oversight role that the US government exercises over ICANN, the non-profit corporation that controls the net's domain name system, as well as the control it exerts over DNS root servers (with all changes needing to go through the US Department of Commerce).

But many civil society organisations, technology companies, and even a few Indian politicians (notably Rajeev Chandrashekar and P Rajeeve), oppose the CIRP as being a proposal for the UN takeover of internet governance. The role of nation-states in governing the internet has been minimal so far. Many attribute the success of the internet to this lack of interference from governments. They ask why we need to fix something that is not broken? In effect, why regulate something that clearly works without such regulation?

It is clear that this status quo will not suffice for many governments. Various countries - like the US, with its Stop Online Piracy and Cyber Intelligence Sharing and Protection acts, and India, with our Information Technology Act and recent Intermediary Guidelines Rules - look to actively regulate the net. ICANN, supposedly a purely technical organisation, has got embroiled in policy issues too. This was seen in the. xxx top-level domain name debacle, where governments tried to intervene, but ultimately failed. Many such purely domestic regulations, like SOPA, have international implications. Even India's Intermediary Guidelines Rules, for instance, require compliance from internet companies across the world. The US government has seized domain names of Spanish file-sharing websites that are hosted in Spain, even though they have been held to be legal there.

So while international forums exist for internetrelated policy discussions, including the Internet Governance Forum (IGF), they are limited by a lack of actual power to even so much as recommend policy positions. Hence there are forums for discussions, but none for resolving problems. The proposed CIRP seeks to be such a body, "with a view to ensuring coordination and coherence in crosscutting internet-related global issues".

Besides, apart from domestic legislation starting to encroach upon the international nature of the internet, there's another issue: that of countries like Russia and China pushing for a less 'multistakeholder' approach to internet governance. So the status quo is unsatisfactory, the alternatives are worrisome, and attempts at 'enhanced cooperation' within existing frameworks (for instance, through India's proposal for IGF reforms) have failed to find enough backers. Given this, a CIRP-like mechanism might well be the preferred option. Importantly, a singular body within the UN system for internet policy could help ensure that other UN agencies which are even less 'multistakeholder' don't overstep their mandates and start making regulations all by themselves.

However, the current CIRP proposal lacks many safeguards that would allay the fears expressed by those who oppose it as 'government control of the internet'. First, while the Indian government has, in its proposal, laid out the CIRP's mandate, it has not laid out the limits of its powers in carrying out that mandate. Second, the CIRP is currently a government body that is merely 'advised' by various stakeholders, with nothing to indicate that this advice will be heeded. This is unsatisfactory, given the internet policy transgressions that are committed by various national governments, as seen, say, in Iran or China. Arguments that the UN system is nation-state-centric do not suffice, since processes that aren't nation-state-centric, such as the Internet Governance Forum, are also being spearheaded by the UN.

If such criticism is addressed, then the CIRP should indeed be welcomed. But we should also be realistic. Governments are effectively being asked to cede certain aspects of sovereignty by being told that the internet is a phenomenon that traditional approaches to policymaking just cannot address. They will not do so easily.

Further, the reality of international realpolitik must be acknowledged - about governments actually following the CIRP. The US, for instance, regularly ignores rulings by the ICJ and the WTO with impunity.

More importantly, and as some cyberlibertarians like Milton Mueller and Adam Thierer remind us, 'multistakeholderism' is only a process (involving multiple stakeholders), and does not provide substantive principles for internet governance (when may websites be blocked, for instance;or who should control the domain name system). Such sobering realpolitik, Mueller believes, is reason enough to be sceptical of the CIRP proposal as it currently stands. He may well be right.

But given the current trend of states individually wielding excessive powers over various aspects of how their citizens access and use the internet, a CIRP-like body may well be what is needed to safeguard democratic principles and innovation on the internet.

For more details visit https://cis-india.org/internet-governance/the-web-of-our-strife

pranesh — 2013-11-12T14:13:04Z

There are some welcome provisions in the Copyright (Amendment) Bill 2012, and some worrisome provisions. Pranesh Prakash examines five positive changes, four negative ones, and notes the several missed opportunities. The larger concern, though, is that many important issues have not been addressed by these amendments, and how copyright policy is made without evidence and often out of touch with contemporary realities of the digital era.

The Copyright (Amendment) Bill 2012 has been passed by both Houses of Parliament, and will become law as soon as the President gives her assent and it is published in the Gazette of India. While we celebrate the passage of some progressive amendments to the Copyright Act, 1957 — including an excellent exception for persons with disabilities — we must keep in mind that there are some regressive amendments as well. In this blog post, I will try to highlight those provisions of the amendment that have not received much public attention (unlike the issue of lyricists’ and composers’ ‘right to royalty’).

Welcome Changes

Provisions for Persons with Disabilities

India now has amongst the most progressive exception for persons with disabilities, alongside countries like Chile. Under the amendments, sections 51(1)(zb) and 31B carve out exceptions and limitations for persons with disabilities. Earlier s.52(1)(zb) dealt only with formats that were “special designed only for the use of persons suffering from visual, aural, or other disabilities”. Thanks to a campaign mounted by disability rights groups and public interest groups such as CIS, it now covers “any accessible format”. Section 52(1)(zb) allows any person to facilitate access by persons with disabilities to copyrighted works without any payment of compensation to the copyright holder, and any organization working the benefit of persons with disabilities to do so as long as it is done on a non-profit basis and with reasonable steps being taken to prevent entry of reproductions of the copyrighted work into the mainstream. Even for-profit businesses are allowed to do so if they obtain a compulsory licence on a work-by-work basis, and pay the royalties fixed by the Copyright Board. The onerousness of this provision puts its utility into question, and this won’t disappear unless the expression “work” in s.31B is read to include a class of works.

Given that the Delhi High Court has — wrongly and per incuriam, since it did not refer to s.14(a)(ii) as it was amended in 1994 — held parallel importation to be barred by the Copyright Act, it was important for Parliament to clarify that the Copyright Act in fact follows international exhaustion. Without this, even if any person can facilitate access for persons with disabilities to copyrighted works, those works are restricted to those that are circulated in India. Given that not many books are converted into accessible formats in India (not to mention the costs of doing so), and given the much larger budgets for book conversion in the developed world, this is truly restrictive.

Extension of Fair Dealing to All Works

The law earlier dealt with fair dealing rights with regard to “literary, dramatic, musical or artistic works”. Now it covers all works (except software), in effect covering sound recordings and video as well. This will help make personal copies of songs and films, to make copies for research, to use film clips in classrooms, etc.

Creative Commons, Open Licensing Get a Boost

The little-known s.21 of the Copyright Act, which deals with the right of authors to relinquish copyright, has been amended. While earlier one could only relinquish parts of one’s copyright by submitting a form to the Registrar of Copyrights, now a simple public notice suffices. Additionally, s.30 of the Act, which required licences to be in writing and signed, now only requires it to be in writing. This puts Creative Commons, the GNU Public Licence, and other open licensing models, on a much surer footing in India.

Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too

Everywhere that the word “hire” occurs (except s.51, curiously), the word “commercial rental” has been substituted. This has been done, seemingly, to bring India in conformance with the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT). The welcome side-effect of this is that the legality of lending by non-profit public libraries has been clarified. The amendment states:

"2(1)(fa) “commercial rental” does not include the rental, lease or lending of a lawfully acquired copy of a computer programme, sound recording, visual recording or cinematograph film for non-profit purposes by a non-profit library or non-profit educational institution."

Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.

Another welcome provision is the amended s.52(1)(n), which now allows “non-commercial public libraries” to store an electronic copy of a work if it already has a physical copy of the work. However, given that this provision says that the storage shall be “for preservation”, it seems limited. However, libraries might be able to use this — in conjunction with the fact that under s.14 of the Copyright Act lending rights of authors is limited to “commercial rental” and s.51(b) only covers lending of “infringing copies” — to argue that they can legally scan and lend electronic copies of works in the same manner that they lend physical copies. Whether this argument would succeed is unclear. Thus, India has not boldly gone where the European Commission is treading with talks of a European Digital Library Project, or where scholars in the US are headed with the Digital Public Library of America. But we might have gone there quietly. Thus, this amendment might help foster an Indian Internet Archive, or help spread the idea of the Open Library in India.

On a final note, different phrases are used to refer to libraries in the amendment. In s.2(1)(fa), it talks about "non-profit library"; in s.52(1)(n) and (o), it refers to "non-commercial public library"; and in s.52(1)(zb), it talks of "library or archives", but s.52(1)(zb) also requires that the works be made available on a "non-profit basis". The differentiation, if any, that is sought to be drawn between these is unclear.

Limited Protection to Some Internet Intermediaries

There are two new provisions, s.52(1)(b) and 52(1)(c), which provide some degree of protection to 'transient or incidental' storage of a work or performance. Section 52(1)(b) allows for "the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public", hence applying primarily to Internet Service Providers (ISPs), VPN providers, etc. Section 52(1)(c) allows for "transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy". This seems to make it applicable primarily to search engines, with other kinds of online services being covered or not covered depending on one’s interpretation of the word 'incidental'.

Compulsory Licensing Now Applies to Foreign Works Also

Sections 31 ("compulsory licence in works withheld from public") and 31A ("compulsory licence in unpublished Indian works") used to apply to Indian works. Now they apply to all works, whether Indian or not (and now s.31A is about "compulsory licence in unpublished or published works", mainly orphan works). This is a welcome amendment, making foreign works capable of being licensed compulsorily in case it is published elsewhere but withheld in India. Given how onerous our compulsory licensing sections are, especially sections 32 and 32A (which deal with translations, and with literary, scientific or artistic works), it is not a surprise that they have not been used even once. However, given the modifications to s.31 and s.31A, we might just see those starting to be used by publishers, and not just radio broadcasters.

Worrisome Changes

Term of Copyright for Photographs Nearly Doubled

The term of copyright for photographs has now gone from sixty years from publication to sixty years from the death of the photographer. This would mean that copyright in a photograph clicked today (2012) by a 20 year old who dies at the 80 will only expire on January 1, 2133. This applies not only to artistic photographs, to all photographs because copyright is an opt-out system, not an opt-in system. Quite obviously, most photoshopping is illegal under copyright law.

This has two problems. First, there was no case made out for why this term needed to be increased. No socio-economic report was commissioned on the effects of such a term increase. This clause was not even examined by the Parliamentary Standing Committee. While the WCT requires a ‘life + 50′ years term for photographs, we are not signatories to the WCT, and hence have no obligation to enforce this. We are signatories to the Berne Convention and the TRIPS Agreement, which require a copyright term of 25 years for photographs. Instead, we have gone even above the WCT requirement and provide a life + 60 years term.

The second problem is that it is easier to say when a photograph was published than to say who the photographer was and when that photographer died. Even when you are the subject of a photograph, the copyright in the photograph belongs to the photographer. Unless a photograph was made under commission or the photographer assigned copyright to you, you do not own the copyright in the photographs. (Thanks to Bipin Aspatwar, for pointing out a mistake in an earlier version, with "employment" and "commission" being treated differently.) This will most definitely harm projects like Wikipedia, and other projects that aim at archiving and making historical photographs available publicly, since it is difficult to say whether the copyright in a photograph still persists.

Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals

The present amendments have brought about the following changes, which make it more difficult to produce cover versions:

Time period after which a cover version can be made has increased from 2 years to 5 years.
Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.
Payment has to be made in advance, and for a minimum of 50000 copies. This can be lowered by Copyright Board having regard to unpopular dialects.
While earlier it was prohibited to mislead the public (i.e., pretend the cover was the original, or endorsed by the original artists), now cover versions are not allowed to "contain the name or depict in any way any performer of an earlier sound recording of the same work or any cinematograph film in which such sound recording was incorporated".
All cover versions must state that they are cover versions.
No alterations are allowed from the original song, and alteration is qualified as ‘alteration in the literary or musical work’. So no imaginative covers in which the lyrics are changed or in which the music is reworked are allowed without the copyright owners’ permission. Only note-for-note and word-for-word covers are allowed.
Alterations were allowed if they were "reasonably necessary for the adaptation of the work" now they are only allowed if it is "technically necessary for the purpose of making of the sound recording".

This ignores present-day realities. Kolaveri Di was covered numerous times without permission, and each one of those illegal acts helped spread its popularity. The singers and producers of those unlicensed versions could be jailed under the current India Copyright Act, which allows even non-commercial copyright infringers to be put behind bars. Film producers and music companies want both the audience reach that comes from less stringent copyright laws (and things like cover versions), as well as the ability to prosecute that same behaviour at will. It is indeed ironic that T-Series, the company that broke HMV’s stranglehold over the Indian recording market thanks to cover versions, is itself one of the main movers behind ever-more stringent copyright laws.

Digital Locks Now Provided Legal Protection Without Accountability

As I have covered the issue of Technological Protection Measures (TPM) and Rights Management Information (RMI), which are ‘digital locks’ also known as Digital Rights Management (DRM), in great detail earlier, I won’t repeat the arguments at length. Very briefly:

It is unclear that anyone has been demanding the grant of legal protection to DRMs in India, and We have no obligation under any international treaties to do so. It is not clear how DRM will help authors and artists, but it is clear how it will harm users.
While the TPM and RMI provisions are much more balanced than the equivalent provisions in laws like the US’s Digital Millennium Copyright Act (DMC), that isn’t saying much. Importantly, while users are given certain rights to break the digital locks, they are helpless if they aren’t also provided the technological means of doing so. Simply put: music and movie companies have rights to place digital locks, and under some limited circumstances users have the right to break them. But if the locks are difficult to break, the users have no choice but to live with the lock, despite having a legal right.

Removal of Parallel Importation

In past blog posts I have covered why allowing parallel imports makes sense in India. And as explained above, the Delhi High Court acted per incuriam when holding that the Copyright Act does not allow parallel importation. The Copyright Act only prohibits import of infringing copies of a work, and a copy of a book that has been legally sold in a foreign country is not an “infringing copy”. The government was set to introduce a provision making it clear that parallel importation was allowed. The Parliamentary Standing Committee heard objections to this proposal from a foreign publishers’ association, but decided to recommend the retention of the clause. Still, due to pressure from a few publishing companies whose business relies on monopolies over importation of works into India, the government has decided to delete the provision. However, thankfully, the HRD Minister, Kapil Sibal, has assured both houses of Parliament that he will move a further amendment if an NCAER report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.

Expansion of Moral Rights Without Safeguards

Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without adequate safeguards. The changes might allow the legal heir of an author, artist, etc., to object to ‘distortion, mutilation, modification, or other act’ of her ancestors work even when the ancestor might not have. By this amendment, this right continues in perpetuity, even after the original creator dies and even after the work enters into the public domain. It seems Indian policymakers had not heard of Stephen Joyce, the grandson of James Joyce, who has “brought numerous lawsuits or threats of legal action against scholars, biographers and artists attempting to quote from Joyce’s literary work or personal correspondence”. Quoting from his Wikipedia page:

In 2004, Stephen threatened legal action against the Irish government when the Rejoyce Dublin 2004 festival proposed public reading of excerpts of Ulysses on Bloomsday. In 1988 Stephen Joyce burnt a collection of letters written by Lucia Joyce, his aunt. In 1989 he forced Brenda Maddox to delete a postscript concerning Lucia from her biography Nora: The Real Life of Molly Bloom. After 1995 Stephen announced no permissions would be granted to quote from his grandfather’s work. Libraries holding letters by Joyce were unable to show them without permission. Versions of his work online were disallowed. Stephen claimed to be protecting his grandfather’s and families reputation, but would sometimes grant permission to use material in exchange for fees that were often "extortionate".

Because in countries like the UK and Canada the works of James Joyce are now in the public domain, Stephen Joyce can no longer restrict apply such conditions. However now, in India, despite James Joyce’s works being in the public domain, Stephen Joyce’s indefensible demands may well carry legal weight.

Backdoor Censorship

As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:

Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;

There are two things to be noted here. First, that without proof (or negative consequences for false complaints) the service provider is mandated to prevent access to the copy for 21 day. Second, after the elapsing of 21 days, the service provider may 'put back' the content, but is not mandated to do so. This would allow people to file multiple frivolous complaints against any kind of material, even falsely (since there is no penalty for false compalaints), and keep some material permanently censored.

Missed Opportunities

Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities

The following important changes should have been made by the government, but haven’t. While on some issues the Standing Committee has gone beyond the proposed amendments, it has not touched upon any of the following, which we believe are very important changes that are required to be made.

Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.
Fair dealing guidelines: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions, but would act as a more general framework for those cases which are not covered by the specific exceptions.
Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection could simply allow for “the reproduction, communication to the public, or publication of any government work” as being non-infringing uses.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled. Importantly, after the terrible judgment passed by Justice Manmohan Singh of the Delhi High Court in the Super Cassettes v. Myspace case, any website hosting user-generated content is vulnerable to payment of hefty damages even if it removes content speedily on the basis of complaints.

Amendments Not Examined

For the sake of brevity, I have not examined the major changes that have been made with regard to copyright societies, lyricists and composers, and statutory licensing for broadcasters, all of which have received considerable attention by copyright experts elsewhere, nor have I examined many minor amendments.

A Note on the Parliamentary Process

Much of the discussions around the Copyright Act have been around the rights of composers and lyricists vis-à-vis producers. As this has been covered elsewhere, I won’t comment much on it, other than to say that it is quite unfortunate that the trees are lost for the forest. It is indeed a good thing that lyricists and composers are being provided additional protection against producers who are usually in a more advantageous bargaining position. This fact came out well in both houses of Parliament during the debate on the Copyright Bill.

However, the mechanism of providing this protection — by preventing assignment of “the right to receive royalties”, though the “right to receive royalties” is never mentioned as a separate right anywhere else in the Copyright Act — was not critically examined by any of the MPs who spoke. What about the unintended consequences of such an amendment? Might this not lead to new contracts where instead of lump-sums, lyricists and music composers might instead be asked to bear the risk of not earning anything at all unless the film is profitable? What about a situation where a producer asks a lyricist to first assign all rights (including royalty rights) to her heirs and then enters into a contract with those heirs? The law, unfortunately at times, revolves around words used by the legislature and not just the intent of the legislature. While one cannot predict which way the amendment will go, one would have expected better discussions around this in Parliament.

Much of the discussion (in both the Rajya Sabha and the Lok Sabha) was rhetoric about the wonders of famous Indian songwriters and music composers and the abject penury in which some not-so-famous ones live, and there was very little discussion about the actual merits of the content of the Bill in terms of how this problem will be overcome. A few MPs did deal with issues of substance. Some asked the HRD Minister tough questions about the Statement of Objects and Reasons noting that amendments have been brought about to comply with the WCT and WPPT which were “adopted … by consensus”, even though this is false as India is not a signatory to the WCT and WPPT. MP P. Rajeeve further raised the issue of parallel imports and that of there being no public demand for including TPM in the Act, but that being a reaction to the US’s flawed Special 301 reports. Many, however, spoke about issues such as the non-award of the Bharat Ratna to Bhupen Hazarika, about the need to tackle plagiarism, and how the real wealth of a country is not material wealth but intellectual wealth.

This preponderance of rhetoric over content is not new when it comes to copyright policy in India. In 1991, when an amendment was presented to increase term of copyright in all works by ten years (from expiring 50 years from the author’s death to 60 years post-mortem), the vast majority of the Parliamentarians who stood up to speak on the issue waxed eloquent about the greatness of Rabindranath Tagore (whose works were about to lapse into the public domain), and how we must protect his works. Little did they reflect that extending copyright — for all works, whether by Tagore or not — will not help ‘protect’ the great Bengali artist, but would only make his (and all) works costlier for 10 additional years. Good-quality and cheaper editions of Tagore’s works are more easily available post-2001 (when his copyright finally lapsed) than before, since companies like Rupa could produce cheap editions without seeking a licence from Visva Bharati. And last I checked Tagore’s works have not been sullied by them having passed into the public domain in 2001.

Further, one could find outright mistakes in the assertions of Parliamentarians. In both Houses, DMK MPs raised objections with regard to parallel importation being allowed in the Bill — only in the version of the Bill they were debating, parallel importation was not being allowed. One MP stated that “statutory licensing provisions like these are not found anywhere else in the world”. This is incorrect, given that there are extensive statutory licensing provision in countries like the United States, covering a variety of situations, from transmission of sound recordings over Internet radio to secondary transmission of the over-the-air programming.

Unfortunately, though that MP did not raise this issue, there is a larger problem that underlies copyright policymaking in India, and that is the fact that there is no impartial evidence gathered and no proper studies that are done before making of policies. We have no equivalent of the Hargreaves Report or the Gowers Report, or the studies by the Productivity Council in Australia or the New Zealand government study of parallel importation.

There was no economic analysis conducted of the effect of the increase in copyright term for photographs. We have evidence from elsewhere that copyright terms are already too long, and all increases in term are what economists refer to as deadweight losses. There is no justification whatsoever for increasing term of copyright for photographs, since India is not even a signatory to the WCT (which requires this term increase). In fact, we have lost precious negotiation space internationally since in bilateral trade agreements we have been asked to bring our laws in compliance with the WCT, and we have asked for other conditions in return. By unilaterally bringing ourselves in compliance with WCT, we have lost important bargaining power.

Users and Smaller Creators Left Out of Discussions

Thankfully, the Parliamentary Standing Committee went into these minutiae in greater detail. Though, as I have noted elsewhere, the Parliamentary Standing Committee did not invite any non-industry groups for deposition before it, other than the disability rights groups which had campaigned really hard. So while changes that would affect libraries were included, not a single librarian was called by the Standing Committee. Despite comments having been submitted to the Standing Committee on behalf of 22 civil society organizations, none of those organizations were asked to depose. Importantly, non-industry users of copyrighted materials — consumers, historians, teachers, students, documentary film-makers, RTI activists, independent publishers, and people like you and I — are not seen as legitimate interested parties in the copyright debate. This is amply clear from the the fact that only one MP each in the two houses of Parliament raised the issue of users’ rights at all.

Concluding Thoughts

What stands out most from this process of amendment of the copyright law, which has been going on since 2006, is how out-of-touch the law is with current cultural practices. Most instances of photoshopping are illegal. Goodbye Lolcats. Cover versions (for which payments have to be made) have to wait for five years. Goodbye Kolaveri Di. Do you own the jokes you e-mail to others, and have you taken licences for quoting older e-mails in your replies? Goodbye e-mail. The strict laws of copyright, with a limited set of exceptions, just do not fit the digital era where everything digital transaction results in a bytes being copied. We need to take a much more thoughtful approach to rationalizing copyright: introduction of general fair dealing guidelines, reduction of copyright term, decriminalization of non-commercial infringement, and other such measures. If we don’t take such measures soon, we will all have to be prepared to be treated as criminals for all our lives. Breaking copyright law shouldn’t be as easy as breathing, yet thanks to outdated laws, it is.

This was reposted in infojustice.org on May 25, 2012

For more details visit https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

India's Broken Internet Laws Need a Shot of Multi-stakeholderism

pranesh — 2012-04-26T13:45:25Z

Cyber-laws in India are severely flawed, with neither lawyers nor technologists being able to understand them, and the Cyber-Law Group in DEIT being incapable of framing fair, just, and informed laws and policies. Pranesh Prakash suggests they learn from the DEIT's Internet Governance Division, and Brazil, and adopt multi-stakeholderism as a core principle of Internet policy-making.

(An edited version of this article was published in the Indian Express as "Practise what you preach" on Thursday, April 26, 2012.)

The laws in India relating to the Internet are greatly flawed, and the only way to fix them would be to fix the way they are made. The Cyber-Laws & E-Security Group in the Department of Electronics and Information Technology (DEIT, who refer to themselves as 'DeitY' on their website!) has proven itself incapable of making fair, balanced, just, and informed laws and policies. The Information Technology (IT) Act is filled with provisions that neither lawyers nor technologists understand (not to mention judges). (The definition of "computer source code" in s.65 of the IT Act is a great example of that.)

The Rules drafted under s.43A of the IT Act (on 'reasonable security practices' to be followed by corporations) were so badly formulated that the government was forced to issue a clarification through a press release, even though the clarification was in reality an amendment and amendments cannot be carried out through press releases. Despite the clarification, it is unclear to IT lawyers whether the Rules are mandatory or not, since s.43A (i.e., the parent provision) seems to suggest that it is sufficient if the parties enter into an agreement specifying reasonable security practices and procedures. Similarly, the "Intermediary Guidelines" Rules (better referred to as the Internet Censorship Rules) drafted under s.79 of the Act have been called "arbitrary and unconstitutional" by many, including MP P. Rajeev, who has introduced a motion in the Rajya Sabha to repeal the Rules ("Caught in a net", Indian Express, April 24, 2012). These Rules give the power of censorship to every citizen and allow them to remove any kind of material off the Internet within 36 hours without anybody finding out. Last year, we at the Centre for Internet and Society used this law to get thousands of innocuous links removed from four major search engines without any public notice. In none of the cases (including one where an online news website removed more material than the perfectly legal material we had complained about) were the content-owners notified about our complaint, much less given a chance to defend themselves.

Laws framed by the Cyber-Law Group are so poorly drafted that they are misused more often than used. There are too many criminal provisions in the IT Act, and their penalties are greatly more than that of comparable crimes in the IPC. Section 66A of the IT Act, which criminalizes "causing annoyance or inconvenience" electronically, has a penalty of 3 years (greater than that for causing death by negligence), and does not require a warrant for arrest. This section has been used in the Mamata Banerjee cartoon case, for arresting M. Karthik, a Hyderabad-based student who made atheistic statements on Facebook, and against former Karnataka Lokayukta Santosh Hegde. Section 66A, I believe, imperils freedom of speech more than is allowable under Art. 19(2) of the Constitution, and is hence unconstitutional.

While s.5 of the Telegraph Act only allows interception of telephone conversations on the occurrence of a public emergency, or in the interest of the public safety, the IT Act does not have any such threshold conditions, and greatly broadens the State's interception abilities. Section 69 allows the government to force a person to decrypt information, and might clash with Art.20(3) of the Constitution, which provides a right against self-incrimination. One can't find any publicly-available governmental which suggests that the constitutionality of provisions such as s.66A or s.69 was examined.

Omissions by the Cyber-Law Group are also numerous. The Indian Computer Emergency Response Team (CERT-In) has been granted very broad functions under the IT Act, but without any clarity on the extent of its powers. Some have been concerned, for instance, that the broad power granted to CERT-In to "give directions" relating to "emergency measures for handling cyber security incidents" includes the powers of an "Internet kill switch" of the kind that Egypt exercised in January 2011. Yet, they have failed to frame Rules for the functioning of CERT-In. The licences that the Department of Telecom enters into with Internet Service Providers requires them to restrict usage of encryption by individuals, groups or organisations to a key length of only 40 bits in symmetric key algorithms (i.e., weak encryption). The RBI mandates a minimum of 128-bit SSL encryption for all bank transactions. Rules framed by the DEIT under s.84A of the IT Act were to resolve this conflict, but those Rules haven't yet been framed.

All of this paints a very sorry picture. Section 88 of the IT Act requires the government, "soon after the commencement of the Act", to form a "Cyber Regulations Advisory Committee" consisting of "the interests principally affected or having special knowledge of the subject-matter" to advise the government on the framing of Rules, or for any other purpose connected with the IT Act. This body still has not been formed, despite the lag of more than two and a half years since the IT Act came into force. Justice Markandey Katju’s recent letter to Ambika Soni about social media and defamation should ideally have been addressed to this body.

The only way out of this quagmire is to practise at home that which we preach abroad on matters of Internet governance: multi-stakeholderism. Multi-stakeholderism refers to the need to recognize that when it comes to Internet governance there are multiple stakeholders: government, industry, academia, and civil society, and not just the governments of the world. This idea has gained prominence since it was placed at the core of the "Declaration of Principles" from the first World Summit on Information Society in Geneva in 2003, and has also been at the heart of India's pronouncements at forums like the Internet Governance Forum. Brazil has an "Internet Steering Committee" which is an excellent model that practices multi-stakeholderism as a means of framing and working national Internet-related policies. DEIT's Internet Governance Division, which formulates India's international stance on Internet governance, has long recognized that governance of the Internet must be done in an open and collaborative manner. It is time the DEIT's Cyber-Law and E-Security Group, which formulates our national stance on Internet governance, realizes the same.

For more details visit https://cis-india.org/internet-governance/blog/india-broken-internet-law-multistakeholderism

Comparative Analysis of Comments Submitted on Draft IT Rules

pranesh — 2012-04-23T05:47:43Z

An RTI was filed asking the DIT to provide all the feedback received on its call for comments on the Draft Information Technology Rules. The feedback on the Due Diligence Rules / Intermediary Guidelines Rules have been compiled in this comparative table.

For more details visit https://cis-india.org/internet-governance/resources/comparative-analysis-draft-it-rules-comments

Centre for Internet and Society

Counter-proposal by the Centre for Internet and Society: Draft Information Technology (Intermediary Due Diligence and Information Removal) Rules, 2012

Counter-proposal by the Centre for Internet and Society: Draft Information Technology (Intermediary Due Diligence and Information Removal) Rules, 2012

Analysing Latest List of Blocked Sites (Communalism & Rioting Edition)

How many items have been blocked?

Why have these been blocked?

Are the blocks legitimate?

Are there any egregious mistakes?

Why haven't you put up the whole list?

Why can I still access many items that are supposed to be blocked?

So you are fine with censorship?

So what should the government have done?

And what of all this talk of cybersecurity failure and cyber-wars?

Consumers International IP Watchlist 2012 — India Report

Summary

Data-Driven Journalism, Data Literacy & Open Government — Talk at CIS

Details

More Details

Additional Links

CIS's Statement at SCCR 24 on Exceptions & Limitations for Libraries and Archives

Transcripts of Discussions at WIPO SCCR 24

CIS's Statement at SCCR 24 on the WIPO Broadcast Treaty

Why Do We Need Protection for Broadcasters?

Broadcasters Already Protected Online

Broadcasters Can Already Sue for Copyright Violation

Inconsistencies in Chair's Non Paper

India's Opening Statement on the Treaty for the Visually Impaired at SCCR 24

CIS's Statement at SCCR 24 on the Treaty for the Visually Impaired

Open Government Data

Initial steps

Recommendations

More substantial steps

Recommendations

Technology

Most ambitious steps

Recommendations

The Web of Our Strife

Analysis of the Copyright (Amendment) Bill 2012

Welcome Changes

Provisions for Persons with Disabilities

Extension of Fair Dealing to All Works

Creative Commons, Open Licensing Get a Boost

Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too

Limited Protection to Some Internet Intermediaries

Compulsory Licensing Now Applies to Foreign Works Also

Worrisome Changes

Term of Copyright for Photographs Nearly Doubled

Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals

Digital Locks Now Provided Legal Protection Without Accountability

Removal of Parallel Importation

Expansion of Moral Rights Without Safeguards

Backdoor Censorship

Missed Opportunities

Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities

Amendments Not Examined

A Note on the Parliamentary Process

Users and Smaller Creators Left Out of Discussions

Concluding Thoughts

India's Broken Internet Laws Need a Shot of Multi-stakeholderism

Comparative Analysis of Comments Submitted on Draft IT Rules