Centre for Internet and Society

IPR Chapter of India-EU FTA (July 2010)

pranesh — 2011-01-12T08:17:38Z

IPR Chapter of India-EU FTA (July 2010)

For more details visit https://cis-india.org/a2k/publications/india-eu-fta-ipr-july-2010

Invisible Censorship: How the Government Censors Without Being Seen

pranesh — 2012-01-04T08:59:14Z

The Indian government wants to censor the Internet without being seen to be censoring the Internet. This article by Pranesh Prakash shows how the government has been able to achieve this through the Information Technology Act and the Intermediary Guidelines Rules it passed in April 2011. It now wants methods of censorship that leave even fewer traces, which is why Mr. Kapil Sibal, Union Minister for Communications and Information Technology talks of Internet 'self-regulation', and has brought about an amendment of the Copyright Act that requires instant removal of content.

Power of the Internet and Freedom of Expression

The Internet, as anyone who has ever experienced the wonder of going online would know, is a very different communications platform from any that has existed before. It is the one medium where anybody can directly share their thoughts with billions of other people in an instant. People who would never have any chance of being published in a newspaper now have the opportunity to have a blog and provide their thoughts to the world. This also means that thoughts that many newspapers would decide not to publish can be published online since the Web does not, and more importantly cannot, have any editors to filter content. For many dictatorships, the right of people to freely express their thoughts is something that must be heavily regulated. Unfortunately, we are now faced with the situation where some democratic countries are also trying to do so by censoring the Internet.

Intermediary Guidelines Rules

In India, the new 'Intermediary Guidelines' Rules and the Cyber Cafe Rules that have been in effect since April 2011 give not only the government, but all citizens of India, great powers to censor the Internet. These rules, which were made by the Department of Information Technology and not by the Parliament, require that all intermediaries remove content that is 'disparaging', 'relating to... gambling', 'harm minors in any way', to which the user 'does not have rights'. When was the last time you checked wither you had 'rights' to a joke before forwarding it? Did you share a Twitter message containing the term "#IdiotKapilSibal", as thousands of people did a few days ago? Well, that is 'disparaging', and Twitter is required by the new law to block all such content. The government of Sikkim can run advertisements for its PlayWin lottery in newspapers, but under the new law it cannot do so online. As you can see, through these ridiculous examples, the Intermediary Guidelines are very badly thought-out and their drafting is even worse. Worst of all, they are unconstitutional, as they put limits on freedom of speech that contravene Article 19(1)(a) and 19(2) of the Constitution, and do so in a manner that lacks any semblance of due process and fairness.

Excessive Censoring by Internet Companies

We, at the Centre for Internet and Society in Bangalore, decided to test the censorship powers of the new rules by sending frivolous complaints to a number of intermediaries. Six out of seven intermediaries removed content, including search results listings, on the basis of the most ridiculous complaints. The people whose content was removed were not told, nor was the general public informed that the content was removed. If we hadn't kept track, it would be as though that content never existed. Such censorship existed during Stalin's rule in the Soviet Union. Not even during the Emergency has such censorship ever existed in India. Yet, not only was what the Internet companies did legal under the Intermediary Guideline Rules, but if they had not, they could have been punished for content put up by someone else. That is like punishing the post office for the harmful letters that people may send over post.

Government Has Powers to Censor and Already Censors

Currently, the government can either block content by using section 69A of the Information Technology Act (which can be revealed using RTI), or it has to send requests to the Internet companies to get content removed. Google has released statistics of government request for content removal as part of its Transparency Report. While Mr. Sibal uses the examples of communally sensitive material as a reason to force censorship of the Internet, out of the 358 items requested to be removed from January 2011 to June 2011 from Google service by the Indian government (including state governments), only 8 were for hate speech and only 1 was for national security. Instead, 255 items (71 per cent of all requests) were asked to be removed for 'government criticism'. Google, despite the government in India not having the powers to ban government criticism due to the Constitution, complied in 51 per cent of all requests. That means they removed many instances of government criticism as well.

'Self-Regulation': Undetectable Censorship

Mr. Sibal's more recent efforts at forcing major Internet companies such as Indiatimes, Facebook, Google, Yahoo, and Microsoft, to 'self-regulate' reveals a desire to gain ever greater powers to bypass the IT Act when censoring Internet content that is 'objectionable' (to the government). Mr. Sibal also wants to avoid embarrassing statistics such as that revealed by Google's Transparency Report. He wants Internet companies to 'self-regulate' user-uploaded content, so that the government would never have to send these requests for removal in the first place, nor block sites officially using the IT Act. If the government was indeed sincere about its motives, it would not be talking about 'transparency' and 'dialogue' only after it was exposed in the press that the Department of Information Technology was holding secret talks with Internet companies. Given the clandestine manner in which it sought to bring about these new censorship measures, the motives of the government are suspect. Yet, both Mr. Sibal and Mr. Sachin Pilot have been insisting that the government has no plans of Internet censorship, and Mr. Pilot has made that statement officially in the Lok Sabha. This, thus seems to be an instance of censoring without censorship.

Backdoor Censorship through Copyright Act

Further, since the government cannot bring about censorship laws in a straightforward manner, they are trying to do so surreptitiously, through the back door. Mr. Sibal's latest proposed amendment to the Copyright Act, which is before the Rajya Sabha right now, has a provision called section 52(1)(c) by which anyone can send a notice complaining about infringement of his copyright. The Internet company will have to remove the content immediately without question, even if the notice is false or malicious. The sender of false or malicious notices is not penalized. But the Internet company will be penalized if it doesn't remove the content that has been complained about. The complaint need not even be shown to be true before the content is removed. Indeed, anyone can complain about any content, without even having to show that they own the rights to that content. The government seems to be keen to have the power to remove content from the Internet without following any 'due process' or fair procedure. Indeed, it not only wants to give itself this power, but it is keen on giving all individuals this power.

It's ultimate effect will be the death of the Internet as we know it. Bid adieu to it while there is still time.

The article was translated to Marathi and featured in Lokmat

For more details visit https://cis-india.org/internet-governance/invisible-censorship

Internet Rights and Wrongs

pranesh — 2016-09-22T23:36:14Z

With a rise in PIL's for unwarranted censorship, do we need to step back and inspect if it's about time unreasonable trends are checked?

The article was published in India Today on September 1, 2016. The original piece can be read here.

Over the last few weeks, there have been a number of cases of egregious censorship of websites in India. Many people started seeing notices that (incorrectly) gave an impression that they may end up in jail if they visited certain websites. However, these notices weren't an isolated phenomenon, nor one that is new. Worryingly, the higher judiciary has been drawn into these questionable moves to block websites as well.

Since 2011, numerous torrent search engines and communities have been blocked by Indian internet service providers (ISPs). Torrent search engines provide the same functionality for torrents that Google provides for websites. Are copyright infringing materials indexed and made searchable by Google? Yes. Do we shut down Google for this reason? No. However, that is precisely what private entertainment companies have done over the past five years in India. Companies hired by the producers of Tamil movies Singham and 3 managed to get video-sharing websites like Vimeo, Dailymotion and numerous torrent search engines blocked even before the movies released, without showing even a single case of copyright infringement existed on any of them. During the FIFA World Cup, Sony even managed to get Google Docs blocked. In some cases, these entertainment companies have abused 'John Doe' orders (generic orders that allow copyright enforcement against unnamed persons) and have asked ISPs to block websites. The ISPs, instead of ignoring such requests as instances of private censorship, have also complied. In other cases (like Sony's FIFA World Cup case), courts have ordered ISPs to block hundreds of websites without any copyright infringement proven against them. High court judges haven't even developed a coherent theory on whether or how Indian law allows them to block websites for alleged copyright infringement. Still they have gone ahead and blocked.

In 2012, hackers got into Reliance Communications servers and released a list of websites blocked by them. The list contained multiple links that sought to connect Satish Seth-a group MD in Reliance ADA Group-to the 2G scam: a clear case of secretive private censorship by RCom. Further, visiting some of the YouTube links which pertained to Satish Seth showed that they had been removed by YouTube due to dubious copyright infringement complaints filed by Reliance BIG Entertainment. Did the department of telecom, whose licences forbid ISPs from engaging in private censorship, take any action against RCom? No. Earlier this year, Tata Sky filed a complaint against YouTube in the Delhi High Court, noting that there were videos on it that taught people how to tweak their set-top boxes to get around the technological locks that Tata Sky had placed. The Delhi HC ordered YouTube "not to host content that violates any law for the time being in force", presuming that the videos in question did in fact violate Indian law. They cite two sections: Section 65A of the Copyright Act and Section 66 of the Information Technology Act. The first explicitly allows a user to break technological locks of the kind that Tata Sky has placed for dozens of reasons (and allows a person to teach others how to engage in such breaking), whereas the second requires finding of "dishonesty" or "fraud" along with "damage to a computer system, etc", and an intention to violate the law-none of which were found. The court effectively blocked videos on YouTube without any finding of illegality, thus once again siding with censorial corporations.

In 2013, Indore-based lawyer Kamlesh Vaswani filed a PIL in the Supreme Court calling for the government to undertake proactive blocking of all online pornography. Normally, a PIL is only admittable under Article 32 of the Constitution, on the basis of a violation of a fundamental right (which are listed in Part III of our Constitution). Vaswani's petition-which I have had the misfortune of having read carefully-does not at any point complain that the state is violating a fundamental right by not blocking pornography. Yet the petition wants to curb the fundamental right to freedom of expression, since the government is by no means in a position to determine what constitutes illegal pornography and what doesn't.

The larger problem extends to the now-discredited censor board (headed by the notorious Pahlaj Nihalani), as also the self-censorship practised on TV by the private Indian Broadcasters Federation (which even bleeps out words and phrases like 'Jesus', 'period', 'breast cancer' and 'beef'). 'Swachh Bharat' should not mean sanitising all media to be unobjectionable to the person with the lowest outrage threshold. So who will file a PIL against excessive censorship?

For more details visit https://cis-india.org/internet-governance/blog/india-today-september-1-2016-pranesh-prakash-internet-rights-and-wrongs

Internet Censorship Officials' Contact Details

pranesh — 2012-04-17T10:00:09Z

Contact details of officials from the Ministry of Communications & Information Technology

Kapil Sibal
Minister for Communications and Information Technology
Phone: 011-24369191

Murli Deora
Minister of State for Communications and Information Technology
Phone: 011-23372246/47

Sachin Pilot
Minister of State for Communications and Information Technology
Phone: 011-24368757/58

J. Satyanarayana
Secretary
Ministry for Communications and Information Technology
Phone: 011-24363097

Gulshan Rai
Group Coordinator
Cyberlaw Group
Ministry for Communications and Information Technology
Phone: 011-24368544

For more details visit https://cis-india.org/internet-governance/resources/censorship-officials-contact-details

Information Technology Act

pranesh — 2009-06-15T12:12:00Z

The Information Technology Act, 2000 (amended in 2008) is the main statute that governs online behaviour in India, from e-commerce to cybercrimes, Internet surveillance, and intermediary liability. Thus, understanding that statute is of paramount interest to all Indian 'netizens'.

For more details visit https://cis-india.org/internet-governance/publications/it-act

Information Technology (Intermediaries Guidelines) Rules, 2011

pranesh — 2012-01-26T17:33:38Z

The Information Technology (Intermediaries Guidelines) Rules, 2011, as notified on April 11, 2011. All errors are in the original notification.

THE GAZETTE OF INDIA : EXTRAORDINARY
[ PART II-SEC. 3(i)]
NOTIFICATION
New Delhi, the 11th April, 2011

G.S.R. 314(E).— In exercise of the powers conferred by clause (zg) of subsection (2) of section 87 read with sub-section (2) of section 79 of the Information Technology Act, 2000 (21 of 2000), the Central Government hereby makes the following rules, namely.-

1. Short title and commencement —

(1) These rules may be called the Information Technology (Intermediaries guidelines) Rules, 2011.

(2) They shall come into force on the date of their publication in the Official Gazette

2. Definitions —
        (1) In these rules, unless the context otherwise requires,--
                (a) "Act" means the Information Technology Act, 2000 (21 of 2000);
                (b) "Communication link” means a connection between a hyperlink or graphical element (button, drawing, image) and one or more such items in the same or different electronic document wherein upon clicking on a hyperlinked item, the user is automatically transferred to the other end of the hyperlink which could be another document website or graphical element.
                (c) "Computer resource” means computer resources as defined in clause (k) of sub-section (1) of section 2 of the Act;
                (d) "Cyber security incidnt” means any real or suspected adverse event in relation to cybersecurity that violates an explicity or implicity applicable security policy resulting in unauthotrised access, denial of service or disruption, unauthorised use of a computer resource for processing or storage of information or changes to data, information without authorisation;
                (e) "Data" means data as defined in clause (o) of sub-section (1) of section 2 of the Act;
                (f) "Electronic Signature" means electronic signature as defined in clause (ta) of sub-section (1) of section 2 of the Act;
                (g) "Indian Computer Emergency Response Team” means the Indian Computer Emergency Response Team appointed under sub section (1) section 70 (B) of the Act;
                (h) “Information” means information as defined in clause (v) of sub-section (1) of section 2 of the Act;
                (i) “Intermediary” means an intermediary as defined in clause (w) of sub-section (1) of section 2 of the Act;
                (j) "User" means any person who access or avail any computer resource of intermediary for the purpose of hosting, publishing, sharing, transacting, displaying or uploading information or views and includes other persons jointly participating in using the computer resource of an intermediary.

(2) Ail other words and expressions used and not defined in these rules but defined in the Act shall have the meanings respectively assigned to them in the Act.

3. Due diligence to he observed by intermediary —
The intermediary shall observe following due diligence while discharging his duties, namely : —

(1) The intermediary shall publish the rules and regulations, privacy policy and user agreement for access-or usage of the intermediary's computer resource by any person.

(2) Such rules and regulations, terms and conditions or user agreement shall inform the users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —
(a) belongs to another person and to which the user does not have any right to;

(b) is grossly harmful, harassing, blasphemous defamatory, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(g) impersonate another person;

(h) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(i) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting any other nation.

(3) The intermediary shall not knowingly host or publish any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2):
provided that the following actions by an intermediary shall not amount to hosing, publishing, editing or storing of any such information as specified in sub-rule: (2) —

(a) temporary or transient or intermediate storage of information automatically within the computer resource as an intrinsic feature of such computer resource, involving no exercise of any human editorial control, for onward transmission or communication to another computer resource;
(b) removal of access to any information, data or communication link by an intermediary after such information, data or communication link comes to the actual knowledge of a person authorised by the intermediary pursuant to any order or direction as per the provisions of the Act;

(4) The intermediary, on whose computer system the information is stored or hosted or published, upon obtaining knowledge by itself or been brought to actual knowledge by an affected person in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act within thirty six hours and where applicable, work with user or owner of such information to disable such information that is in contravention of sub-rule (2). Further the intermediary shall preserve such information and associated records for at least ninety days for investigation purposes,

(5) The Intermediary shall inform its users that in case of non-compliance with rules and regulations, user agreement and privacy policy for access or usage of intermediary computer resource, the Intermediary has the right to immediately terminate the access or usage lights of the users to the computer resource of Intermediary and remove non-compliant information.

(6) The intermediary shall strictly follow the provisions of the Act or any other laws for the time being in force.

(7) When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The information or any such assistance shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a request in writing staling clearly the purpose of seeking such information or any such assistance.

(8) The intermediary shall take all reasonable measures to secure its computer resource and information contained therein following the reasonable security practices and procedures as prescribed in the Information Technology (Reasonable security practices and procedures and sensitive personal Information) Rules, 2011.

(9) The intermediary shall report cyber security incidents and also share cyber security incidents related information with the Indian Computer Emergency Response Team.

(10) The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resource or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to "perform thereby circumventing any law for the time being in force:
provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource and information contained therein.

(11) The intermediary shall publish on its website the name of the Grievance Officer and his contact details as well as mechanism by which users or any victim who suffers as a result of access or usage of computer resource by any person in violation of rule 3 can notify their complaints against such access or usage of computer resource of the intermediary or other matters pertaining to the computer resources made available by it. The Grievance Officer shall redress the complaints within one month from the date of receipt of complaint.

[F. No. 11(3)/2011-CLFE]
N. RAVI SHANKER, Jt. Secy.

For more details visit https://cis-india.org/internet-governance/resources/intermediary-guidelines-rules

Indian surveillance laws & practices far worse than US

pranesh — 2013-07-12T11:09:39Z

Explosive would be just the word to describe the revelations by National Security Agency (NSA) whistleblower Edward Snowden.

Pranesh Prakash's column was published in the Economic Times on June 13, 2013. This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC.

Now, with the American Civil Liberties Union suing the Obama administration over the NSA surveillance programme, more fireworks could be in store. Snowden's expose provides proof of what many working in the field of privacy have long known. The leaks show the NSA (through the FBI) has got a secret court order requiring telecom provider Verizon to hand over "metadata", i.e., non-content data like phone numbers and call durations, relating to millions of US customers (known as dragnet or mass surveillance); that the NSA has a tool called Prism through which it queries at least nine American companies (including Google and Facebook); and that it also has a tool called Boundless Informant (a screenshot of which revealed that, in February 2013, the NSA collected 12.61 billion pieces of metadata from India).

Nothing Quite Private

The outrage in the US has to do with the fact that much of the data the NSA has been granted access to by the court relates to communications between US citizens, something the NSA is not authorised to gain access to. What should be of concern to Indians is that the US government refuses to acknowledge non-Americans as people who also have a fundamental right to privacy, if not under US law, then at least under international laws like the Universal Declaration of Human Rights and the ICCPR.

US companies such as Facebook and Google have had a deleterious effect on privacy. In 2004, there was a public outcry when Gmail announced it was using an algorithm to read through your emails to serve you advertisements. Facebook and Google collect massive amounts of data about you and websites you visit, and by doing so, they make themselves targets for governments wishing to snoop on you, legally or not.

Worse, Indian-Style

That said, Google and Twitter have at least challenged a few of the secretive National Security Letters requiring them to hand over data to the FBI, and have won. Yahoo India has challenged the authority of the Controller of Certifying Authorities, a technical functionary under the IT Act, to ask for user data, and the case is still going on.

To the best of my knowledge, no Indian web company has ever challenged the government in court over a privacy-related matter. Actually, Indian law is far worse than American law on these matters. In the US, the NSA needed a court order to get the Verizon data. In India, the licences under which telecom companies operate require them to provide this. No need for messy court processes.

The law we currently have â€” sections 69 and 69B of the Information Technology Act â€” is far worse than the surveillance law the British imposed on us. Even that lax law has not been followed by our intelligence agencies.

Keeping it Safe

Recent reports reveal India's secretive National Technical Research Organisation (NTRO) â€” created under an executive order and not accountable to Parliament â€” often goes beyond its mandate and, in 2006-07, tried to crack into Google and Skype servers, but failed. It succeeded in cracking Rediffmail and Sify servers, and more recently was accused by the Department of Electronics and IT in a report on unauthorised access to government officials' mails.

While the government argues systems like the Telephone Call Interception System (TCIS), the Central Monitoring System (CMS) and the National Intelligence Grid (Natgrid) will introduce restrictions on misuse of surveillance data, it is a flawed claim. Mass surveillance only increases the size of the haystack, which doesn't help in finding the needle. Targeted surveillance, when necessary and proportional, is required. And no such systems should be introduced without public debate and a legal regime in place for public and parliamentary accountability.

The government should also encourage the usage of end-to-end encryption, ensuring Indian citizens' data remains safe even if stored on foreign servers. Merely requiring those servers to be located in India will not help, since that information is still accessible to American agencies if it is not encrypted. Also, the currently lax Indian laws will also apply, degrading users' privacy even more.

Indians need to be aware they have virtually no privacy when communicating online unless they take proactive measures. Free or open-source software and technologies like Open-PGP can make emails secure, Off-The-Record can secure instant messages, TextSecure for SMSes, and Tor can anonymise internet traffic.

http://cis-india.org/internet-governance/blog/economic-times-june-13-2013-pranesh-prakash-indian-surveillance-laws-and-practices-far-worse-than-us

For more details visit https://cis-india.org/internet-governance/blog/economic-times-june-13-2013-pranesh-prakash-indian-surveillance-laws-and-practices-far-worse-than-us

Indian Porn Ban is Partially Lifted But Sites Remain Blocked

pranesh — 2015-09-13T09:00:03Z

The Indian government made a quick about-face on its order to block hundreds of pornography websites on Tuesday, partially lifting the ban after political backlash against the moral policing.

The article was published in Wall Street Journal on August 5, 2015. Pranesh Prakash gave his inputs.

But the websites remained blocked because Internet service providers were afraid of legal trouble.

The new order from the Department of Telecommunications said that Internet service providers could unblock any of the 857 websites, so long as they don’t contain child pornography. However, the websites remain blocked because service providers say they have no way of knowing whether they contain child porn, and no control over whether they will in the future.

Ravi Shankar Prasad, the IT minister, said Tuesday night that the government would trim down the list of banned sites, to focus only on those that contain child porn.

“A new notification will be issued shortly. The ban will be partially withdrawn. Sites that do not promote child porn will be unbanned,” said Mr. Prasad on the TV news channel India Today.

The wording of the new order created confusion, because it appears to put the responsibility for policing the Internet for child pornography on service providers.

“How can we go ahead? What if something comes up tomorrow [on one of these sites], which has child porn, or something else?,” said an executive at an Indian service provider who asked not to be named.

“The onus cannot be put on the service providers. What the government is doing is inherently unfair, it is not what the law requires,” said Pranesh Prakash, policy director at the Centre for Internet and Society, a Bangalore-based civil liberties advocacy group. It is the government’s job to determine what violates the law, not private companies, Mr. Prakash said.

For more details visit https://cis-india.org/internet-governance/news/the-wall-street-journal-august-5-2015-sean-mclain-indian-porn-ban-is-partially-lifted-but-sites-remain-blocked

Indian Law and "Parallel Exports"

pranesh — 2011-08-04T04:47:07Z

Recently, a lawyer for the publishing industry made the claim that allowing for parallel importation would legally allow for the exports of low-priced edition. Here we present a legal rebuttal of that claim.

Recently, on publisher/editor/writer Divya Dubey's blog, Saikrishna Rajagopal, a highly respected copyright lawyer and founding partner of Saikrishna & Associates, claimed that we had misconstrued the law with regard to export of books from India, and that allowing for parallel importation would harm that.

Mr Rajagopal writes:

The fundamental legal infirmity that I find in Mr. Prakash’s argument are twofold:
1. That current Indian Law allows export of low priced editions;
2. That the proposed proviso would not include within its scope 'exports'.

1. As regards the argument that current Indian Law allows export of low priced editions, the two John Wiley cases of the Delhi High Court of May 2010, make it abundantly clear that current Indian Copyright Law precludes export of low priced editions. Pertinently, an appeal was preferred in one of the Wiley cases and was dismissed. These judgments are therefore final now and therefore authoritatively, interpret Indian Copyright Law as it stands today.

I was wrong regarding the question of export of low-priced editions. There are are two Delhi High Court judgments which came out in May 2010 on export of books, holding that export of Low-Priced Editions meant for India to countries outside is unlawful (John Wiley & Sons Inc. & Ors v. Prabhat Chander Kumar Jain & Ors and John Wiley & Sons Inc. & Ors v. International Book Store & Anr). However, in the first judgment Justice Manmohan Singh clearly held that it would be unlawful to export without permission of the rights owner regardless of whether we followed the doctrine of national exhaustion (disallowed parallel importation) or the doctrine of international exhaustion (allowed parallel importation), and the "the question of exhaustion of rights of owner in copyright does not arise at all".[1] Thus Mr. Rajagopals's fears are, thankfully, unfounded.

Mr. Rajagopal continues:

2. As regards Pranesh’s argument that the proposed amendment does not cover ‘exports’, this argument is completely specious. In order to determine at what stage a copyright owner loses its right to control further sale and distribution of a copyrighted product, the statute itself needs to be looked into to determine what standard of exhaustion of rights has been contemplated. If the proposed proviso becomes law, it would be a clear indicator to a Court that Indian Copyright Law follows international exhaustion, namely, that once a product is legitimately sold anywhere in the world market, the copyright owner loses/exhausts the right to control further distribution and sale, including export and import. It is because the copyright owner exhausts rights globally that the proposed amendment is allowing for genuine copies of books sold in the international market, to be legally imported into India. This being the case, there is almost unanimity amongst IP Lawyers that export of low priced editions would also be considered legal, in view of the proposed amendment. This is not just our Indian view, but also the view of other international IP experts who have had an opportunity to look at the implications of this proviso.

The copyright owner, under a proper appreciation of the Indian law, never has the right to control "further sale and distribution" (as per s.14(a)(ii) of the Copyright Act), contrary to Mr. Rajagopal's assertion. Once a copy is in circulation (e.g., is sold), the copyright owner no longer has the exclusive right to put that copy into circulation, nor to control its further sale / distribution in any manner. This is the limitation on the owner's right that allows libraries exist. This is how second-hand book shops exist. If this limitation of the copyright owner's right did not exist, libraries and second-hand book shops would need to take permissions from the owner for each copy of each book that they lend or sell.

Imports and exports are two distinct things. India's following of the principle of "international exhaustion" means that the right to first sale is exhausted in India, when the work is legally published anywhere internationally (i.e., regardless of where that copyrighted work is legally published). The principle of international exhaustion doesn't not exhaust the right of first sale internationally—the word "international" is used to indicate where the publication has to take place for exhaustion to occur, and not where the exhaustion takes place. After all, Indian law on a matter cannot determine whether a book can or cannot be sold anywhere else in the world (which is precisely what it would do if it is to hold that rights are exhausted internationally by virtue of a book being printed in India).

Having done research on this point for the past week, I have not been able to come up with any legal articles or cases to directly oppose Mr. Rajagopal's claim that the legality of book exports from a country can depend on whether it follows national or international exhaustion. It is such a novel claim that no one has made it so far, and so no one has thought to oppose it. I know of no other IP lawyers in India or internationally who agree with Mr. Rajagopal's claim that allowing for parallel importation in India will have an impact on the exports of low-priced editions from India.

Most pertinently, when the Wiley judgments which related to export of low priced editions, were being pronounced in Court, the Hon’ble Judge casually remarked that the law laid down in cases may soon become redundant if the proposed legislation comes into force.

As noted above, the judge specifically stated in the written judgment itself that as per the court's reasoning, the question of whether the export of low-priced editions is legal is not related to the question of exhaustion of rights of the owner: ". . . as the express provision for international exhaustion is absent in our Indian law, it would be appropriate to confine the applicability of the same to regional exhaustion. Be that as it may, in the present case, the circumstances do not even otherwise warrant this discussion . . . the question of exhaustion of rights of owner in the copyright does not arise at all".

To get a little bit more technical, Justice Singh rules that there is a difference between first sale (exhaustion) vis-a-vis the owner and first sale vis-a-vis the licensee. He states that only rights of the licensee have been exhausted, and that the rights of the owner being exhausted do not even arise. But he is quite clear that this difference would apply regardless of whether we follow international exhaustion or national exhaustion.

Update (2011-02-15): For the tabularly inclined, here's a summary of what it means for a country to follow "national exhaustion" or "international exhaustion":

Where copyrighted work is first circulated	Where right of circulation is exhausted	What this is termed
	What "Exhaustion" Means
In any country	In all countries	[- Not possible. - Law in one country can't dictate law in another. - Exhaustion of right of circulation "in all countries" can only be declared so through an international treaty (e.g., the way TRIPS makes a book copyrighted in all countries if it is copyrighted in any country) - Art. 6 of TRIPS doesn't allow for this interpretation.]
In any country	Domestic territory	International exhaustion
Domestic territory	In all countries	[- Not possible. - Law in one country can't affect law in another. - Exhaustion of right of circulation "in all countries" can only be declared so through an international treaty (e.g., the way TRIPS makes a book copyrighted in all countries if it is copyrighted in any country) - Art. 6 of TRIPS doesn't allow for this interpretation.]
Domestic territory	Domestic territory	National exhaustion

Thus it is seen that the "national" or "international" exhaustion only determines the question of where the book has to be first circulated for exhaustion to happen. It can never change where the right of first circulation is exhausted (which in either case can only happen at a territorial level).

The implication of the right of circulation being exhausted world-wide is that no country can by law prevent parallel importation. The TRIPS Agreement, via Article 6, decided to give each country the right to choose to allow or disallow parallel importation. This was despite a great effort by developing countries to get international exhaustion codified as the worldwide norm.

To make this even more clear, I propose the following thought experiment.

X - national of New Zealand, which follows international exhaustion.
Country 1 - a country that follows national exhaustion / doesn't allow parallel imports
Country 2 - a country that follows national exhaustion / doesn't allow parallel imports
Country 3 - a country that follows international exhaustion / allows for parallel imports

Example 1: If X buys a book from Country 1 and sells that book in Country 2, he is in violation of Country 2's laws, regardless of the laws in New Zealand and Country 1.
Example 2: If X buys a book from Country 1 and sells that book in Country 3, he is not in violation of the law (either in New Zealand or in Country 3).
Example 3: If X buys a book in New Zealand and sells that book in Country 2, he is in violation of Country 2's laws, regardless of the laws in New Zealand.
Example 4: If X buys a book in New Zealand and sells that book in Country 3, he is not in violation of the law (either in New Zealand or in Country 3).

If one takes "international exhaustion" to mean that the right is exhausted in every country, then Example 3 would be wrong. But that would be absurd, since we know from experience that it is correct: Buying a book in New Zealand and selling it in the United Kingdom (which follows national/regional exhaustion) is unlawful. So obviously "international exhaustion" doesn't mean that.

Similarly, if one takes "national exhaustion" to mean that after sale a book cannot be exported, that would imply that Example 2 is faulty. But we know from experience that this is not so: Buying a book in the United Kingdom and selling it in New Zealand is lawful. So obviously "national exhaustion" doesn't mean that.

Thus, it is only the act of import that is ever affected by the question of national vs. international exhaustion, and never exports.

Notes

[1]: Justice Manmohan Singh writes: "As per my opinion, as the express provision for international exhaustion is absent in our Indian law, it would be appropriate to confine the applicability of the same to regional exhaustion. Be that as it may, in the present case, the circumstances do not even otherwise warrant this discussion as the rights if at all are exhausted are to the extent to which they are available with the licensees as the books are purchased from the exclusive licensees who have limited rights and not from the owner. In these circumstances, the question of exhaustion of rights of owner in the copyright does not arise at all." (Para 104).

For more details visit https://cis-india.org/a2k/blogs/indian-law-and-parallel-exports

Indian Government's Submission to ITU

pranesh — 2012-12-09T00:48:10Z

The following is the text of the submission made by the Government of India to the World Conference of International Telecommunications, Dubai on November 3, 2012. This is the final version of a draft that was circulated earlier.

Read the detailed comments on India's draft proposal on the Proposed Amendments to the ITU’s ITR’s – November 3, 2012

World Conference on International Telecommunications (WCIT-12) Dubai, 3-14 December 2012
PLENARY MEETING														Document 21-E 3 November 2012 Original: English

India (Republic of)

PROPOSALS FOR THE WORK OF THE CONFERENCE

Introduction

We recognise and appreciate the efforts of International Telecommunication Union in preparing the Draft on proposed ITRs for WCIT 2012.

The attached proposal is developed through a consultation process involving various stakeholder groups, both, in Indian Public and Private sectors. Due consideration has been given to the existing legislations and government policies in the preparation of this proposal. We acknowledge that since 1988, there have been significant changes and challenges in Telecommunications / ICTs in terms of Technological breakthroughs, New Services and Market Structure. Acknowledging this fact, India’s proposal is offered in the form of addition (ADD) or modification (MOD) only on some of the relevant proposals, by giving reference to the appropriate CWG/4/XXX number mentioned in the Annex 2 of the ITU Document 4(Add.2)-E. Considering the magnitude of issues in International Telecommunications, India may take appropriate stand on other provisions of the draft ITR document during the WCIT discussions.

Further, the proposals from different regions to the conference as well as its preparatory process were carefully studied. In order to help the conference achieve a consensus on the various issues being discussed, the content of this proposal has been largely drawn from the output of the Council Working Group on WCIT (WCIT/4 Add.2 ” Draft of the future ITRs”).

A new proposal on 5A: Confidence and Security of Telecommunications/ICTs is also included as India believes that an international framework on Security is of importance in today’s connected world.

INTERNATIONAL TELECOMMUNICATION
REGULATIONS
PREAMBLE

MOD	IND/21/1

1 While the sovereign right of each Member State to regulate its telecommunications is fully recognized, the provisions of the present International Telecommunication Regulations (hereinafter “Regulations”) complement the Constitution and Convention of the International Telecommunication Union, with a view to attaining the purposes of the International Telecommunication Union in promoting the development of telecommunication services and their most efficient operation while harmonizing the development of facilities for world-wide telecommunications.

Reasons: This Proposal is based on CWG /4 A 2/3.

Article 1

Purpose and Scope of the Regulations

ADD IND/21/2

3A c) These Regulations recognize that Member States should endeavour to take the necessary measures to prevent interruptions of services and ensure that no harm is caused by their operating agencies to the operating agencies of other Member States which are operating in accordance with the provisions of these Regulations.

Reasons: This Proposal is based on CWG /4 A 2/12.

ADD IND/21/3

3B d) These Regulations recognize the absolute priority for safety of life telecommunications, including distress telecommunications, emergency telecommunications services and telecommunications for disaster relief as provided in Article.

Reasons: This Proposal is based on CWG /4 A 2/14.

Article 2

Definitions

ADD IND/21/4

14A 2.1A Telecommunication/ICT: Any transmission, emission or reception, including processing, of signs, signals, writing, images and sounds or intelligence of any nature by wire, radio, optical or other electromagnetic systems, having a bearing on Telecommunication Technologies and Services.

Reasons: This Proposal is based on CWG /4 A 2/48.

ADD IND/21/5

27A 2.11 Transit rate: a rate set by the point of transit in a third country (indirect relation).

Reasons: This Proposal is based on CWG /4 A 2/74.

ADD IND/21/6

27C 2.13 Spam: information transmitted over telecommunication networks as text, sound, image, tangible data used in a man-machine interface bearing advertizing nature or having no meaningful message, simultaneously or during a short period of time, to a large number of particular addressees without prior consent of the addressee (recipient) to receive this information or information of this nature.

Reasons: This Proposal is based on CWG /4 A 2/78.

ADD IND/21/7

27D 2.14 Hub: a transit center (or network operator) that offers to other operators a telecommunication traffic termination service to nominated destinations contained in the offer.

Reasons: This Proposal is based on CWG /4 A 2/80.

ADD IND/21/8

27E 2.15 Hubbing: the routing of telecommunication traffic in hubbing mode consists in the use of hub facilities to terminate telecommunication traffic to other destinations.

Reasons: This Proposal is based on CWG /4 A 2/82.

ADD IND/21/9

27F 2.16 Network fraud: (fraud on international telecommunication networks): The causing of harm to operating agencies or to the public, the wrongful obtaining of gain in the provision of international telecommunication services through abuse of trust or deception, including through inappropriate use of numbering resources.

Reasons: This Proposal is based on CWG /4 A 2/87.

ADD IND/21/10

27G 2.17 Global telecommunication service (GTS): A service which enables communication to be established through a global number between subscribers whose physical location and national jurisdiction have no bearing on the tariff to be set for the service’s use; which satisfies and complies with recognized and accepted international standards; and which is provided over the public telecommunication network by operating agencies having obtained the relevant numbering resources from ITU-T.

Reasons: This Proposal is based on CWG /4 A 2/89.

ADD IND/21/11

27H 2.21 Originating Identification: The Originating Identification is the service by which the terminating party shall receive the identity information in order to identify the origin of the communication.

Reasons: This Proposal is based on CWG /4 A 2/81.

ADD IND/21/12

27L 2.25 Stability of the international telecommunication network: The capability of the international telecommunication network to carry international traffic in the event of failure of telecommunication nodes or links and also in the face of internal and external destructive actions and to return to its original state.

Reasons: This Proposal is based on CWG /4 A 2/99.

ADD IND/21/13

27M 2.26 Security of the international telecommunication network: The capability of the international telecommunication network to withstand internal and external destabilizing actions liable to compromise its functioning.

Reasons: This Proposal is based on CWG /4 A 2/101.

ADD IND/21/14

27N 2.27 International Roaming: Provision to the subscriber of the opportunity to use telecommunication services offered by other operating agencies of other member states, with which the subscriber has not concluded an agreement.

Reasons: This Proposal is based on CWG /4 A 2/103.

ADD IND/21/15

27O 2.28 IP interconnection: IP interconnection refers to means and rules employed to ensure the delivery of IP traffic through different networks.

Reasons: This Proposal is based on CWG /4 A 2/105.

ADD IND/21/16

27P 2.29 End to end quality of service delivery and best effort delivery: End to End quality of service delivery refers to the delivery of PDU (Packet Data Unit) with predefined end-to-end performance objectives; Best-effort delivery refers delivery to of a PDU without predefined performance targets.

Reasons: This Proposal is based on CWG /4 A 2/107.

Article 3

International Network

ADD IND/21/17

31A 3.5 Member States shall ensure that international naming, numbering, addressing and identification resources are used only by the assignees and only for the purposes for which they were assigned; and that unassigned resources are not used. The provisions of the relevant ITU-T Recommendations shall be applied.

Reasons: This Proposal is based on CWG /4 A 2/134.

ADD IND/21/18

31B 3.6 International calling party number delivery shall be provided in accordance with relevant ITU-T Recommendations.

Reasons: This Proposal is based on CWG /4 A 2/142.

Article 4

International Telecommunication Services

MOD IND/21/19

34 4.3 Subject to national law, Member States shall endeavour to ensure that operating agencies provide and maintain, to the greatest extent practicable, a satisfactory quality of service corresponding to the relevant ITU-T Recommendations with respect to:

Reasons: This Proposal is based on CWG /4 A 2/168.

MOD IND/21/20

35 a) access to the international network by users using terminals which are permitted to be connected to the network and which do not cause harm or diminish the level of safety and security of technical facilities and personnel;

Reasons: This Proposal is based on CWG /4 A 2/174.

MOD IND/21/21

36 b) international telecommunication facilities and services available to customers for their use;

Reasons: This Proposal is based on CWG /4 A 2/176.

MOD IND/21/22

37 c) at least a form of telecommunication service which is reasonably accessible to the public, including those who may not be subscribers to a specific telecommunication service; and

Reasons: This Proposal is based on CWG /4 A 2/179.

MOD IND/21/23

38 d) a capability for interworking between different services, as appropriate, to facilitate international telecommunication services.

Reasons: This Proposal is based on CWG /4 A 2/181.

ADD IND/21/24

38A 4.4 Member States shall ensure that operating agencies providing international telecommunication services, including roaming, make available to subscribers information on tariffs and taxes. Each subscriber should be able to have access to such information and receive it in a timely manner and free of charge when roaming (entering into roaming), except where the subscriber has previously declined to receive such information.

Reasons: This Proposal is based on CWG /4 A 2/188.

ADD IND/21/25

38B 4.5 Given the particular characteristics of GTS, which allows subscribers to have a worldwide number, implement GTSs in accordance with the National regulations.

Reasons: This Proposal is based on CWG /4 A 2/195.

ADD IND/21/26

38E 4.8 Member States, subject to national security requirements, may foster the establishment of mutual agreements on mobile services accessed within a predetermined border zone in order to prevent or mitigate inadvertent roaming charges.

Reasons: This Proposal is based on CWG /4 A 2/201.

Article 5

Safety of Life and Priority of Telecommunications

MOD IND/21/27

39 5.1 Safety of life telecommunications, including distress telecommunications, emergency telecommunication services and telecommunications for disaster relief, shall be entitled to transmission as of right and shall, where technically practicable, have absolute priority over all other telecommunications, in accordance with the relevant Articles of the Constitution, Convention and relevant ITU-T Resolutions and Recommendations.

Reasons: This Proposal is based on CWG /4 A 2/204.

ADD IND/21/28

41B 5.5 Member States should cooperate to introduce in addition to their existing national emergency numbers, a global number for calls to the emergency services globally.

Reasons: This Proposal is based on CWG /4 A 2/217.

ADD IND/21/29

41C 5.6 Member States shall ensure that operating agencies inform every roaming subscriber of the number to be used for calls to the emergency services, while entering into roaming, free of charge.

Reasons: This Proposal is based on CWG /4 A 2/219.

ADD IND/21/30

Article 5A

Confidence and security of telecommunications/ICTs

Reasons: This Proposal is based on CWG /4 A 2/221.

ADD IND/21/31

41D 5A1. Member‐States shall have the right to take appropriate measures to protect and Secure the ICT Network infrastructure and data contained in or flowing through the Network and also to prevent the misuse of ICT network and services within their state.

5A2. The Member States should endeavour to take appropriate measures, individually or in cooperation with other Member states, to ensure Security of the ICT Network and information, including user information, contained in or flowing through the ICT network within their jurisdiction.

5A3. Member‐States should endeavour to oversee that Operating Agencies in their territory do not engage in activities which impinge on the security and integrity of ICT network such as denial of service attack, unsolicited electronic communication (spam), unsolicited access to network elements and devices etc., to enable effective functioning of ICTs in secure and trustworthy conditions.

5A4. Member States should endeavour to cooperate to harmonize national laws, jurisdictions, and practices in the relevant areas.

Reasons: Combined proposal on clauses proposed from CWG /4 A 2/222 to 232 in 5A and 5B.

Article 6

Charging and Accounting

ADD IND/21/32

43A 6.1.1A Cost of International Roaming Services

a) Member States shall encourage competition in the international roaming market;

b) Member States are encouraged to cooperate to develop policies for reducing charges on international roaming services.

Reasons: This Proposal is based on CWG /4 A 2/243.

MOD IND/21/33

45 6.1.3 Member States are free to levy fiscal taxes on international telecommunication services in accordance with their national laws; however, the Member States should endeavour to avoid international double taxation on such services.

Reasons: This Proposal is based on CWG /4 A 2/249.

ADD IND/21/34

54E 6.10 Subject to national law, Member States shall ensure that Operating Agencies collaborate in preventing and controlling fraud in international telecommunications by:

– Identifying and transmitting to the transit and destination Operating Agencies the pertinent information required for the purposes of payment for the routing of international traffic, in particular the originating Country Code, National Destination Code and the Calling Party Number.

– Following up requests of other Member States or their Operating Agencies to investigate calls that cannot be billed, and helping to resolve outstanding accounts.

– Following up requests of other Member States or their Operating Agencies to identify the source of calls originated from their territories exerting potential fraudulent activity.

Reasons: This Proposal is based on CWG /4 A 2/287.

ADD IND/21/35

54F 6.11 The ITU Standardization Sector shall be responsible for disseminating the regulatory frameworks in place in administrations having an impact on matters related to fraud.

Reasons: This Proposal is based on CWG /4 A 2/289.

ADD IND/21/36

54H 6.12A Member States shall foster the establishment of international roaming mobile services prices based on principles of reasonability, competitiveness and non-discrimination relative to prices applied to local users of the visited country.

Reasons: This Proposal is based on CWG /4 A 2/293.

ADD IND/21/37

54K 6.14 Member States should foster continued investment in high-bandwidth infrastructures.

Reasons: This Proposal is based on CWG /4 A 2/299.

ADD IND/21/38

54L 6.15 Member States shall promote cost-oriented pricing. Regulatory measures may be imposed to the extent that this cannot be achieved through market mechanisms and to the extent that such measures do not hinder competition.

Reasons: This Proposal is based on CWG /4 A 2/301.

ADD IND/21/39

54N 6.17 Member States shall promote transparency of end-user prices, in particular to avoid surprising bills for international services (e.g mobile roaming and data roaming).

Reasons: This Proposal is based on CWG /4 A 2/305.

ADD IND/21/40

54S 6.D Member States should endeavour to take measures to ensure that an adequate return is provided on investments in network infrastructures in identified areas. If this cannot be achieved through market mechanisms, then other mechanisms may be used.

Reasons: This Proposal is based on CWG /4 A 2/315.

ADD IND/21/41

54O 6.18 Member States should consider measures to favour special interconnection rates for landlocked countries.

Reasons: This Proposal is based on CWG /4 A 2/307.

ADD IND/21/42

54P 6.18A Member States should endeavour that Recognized Operating Agencies establish charging units and parameters that bill telecommunication service consumers according to what is effectively consumed.

Reasons: This Proposal is based on CWG /4 A 2/309.

ADD IND/21/43

54R 6.20 Rendering and Settlement of Accounts

6.20.1 The settlement of international accounts shall be regarded as current transactions and shall be effected in accordance with the current international obligations of the Member States and Sector Members concerned in those cases where their governments have concluded arrangements on this subject. Where no such arrangements have been concluded, and in the absence of special agreements made under Article 42 of the Constitution, these settlements shall be effected in accordance with the Administrative Regulations.

6.20.2 Administrations of Member States and Sector Members which operate international telecommunication services shall come to an agreement with regard to the amount of their debits and credits.

6.20.3 The statement of accounts with respect to debits and credits referred to in No. 498 above shall be drawn up in accordance with the provisions of the Administrative Regulations, unless special arrangements have been concluded between the parties concerned.

Reasons: The text is taken from CV 497, 498 and 499. This proposal is based on CWG /4 A 2/313.

ADD IND/21/44

57B Member States shall encourage the provision of global services based on international standards that ensure accessible telecommunications and ICT services to persons with disabilities.

Reasons: This Proposal is based on HNG /5/2.

For more details visit https://cis-india.org/internet-governance/blog/indian-govts-submission-to-itu

Indian government orders ISPs to block 857 porn websites

pranesh — 2015-09-13T08:18:33Z

The Indian government has ordered a large number of porn websites to be blocked, creating an uproar among users and civil rights groups in the country.

The blog post by John Ribeiro was originally published by IDG News Service and mirrored on PC World website on August 2, 2015.

The Department of Telecommunications has issued orders for the blocking of 857 websites serving pornography, said two persons familiar with the matter, who declined to be named.

Section 69 (A) of India’s Information Technology Act allows the government to order blocking of public access to websites and other information through computer resources, though this section appears to be designed to be invoked when a threat is perceived to the sovereignty and integrity of India, security of the state, friendly relations with foreign states or public order.

“The government cannot on its own block private access to pornography under current statutes,” said Pranesh Prakash, policy director of the Centre for Internet and Society in Bangalore. “Parliament has not authorized the government to ban porn on its own.”

“However, courts have in the past ordered specific websites to be blocked for specific offences such as defamation, though as far as I know not for obscenity,” Prakash added.

Viewing pornography privately is not a crime in the country, though its sale and distribution is an offense.

Some porn websites were still accessible through certain Internet service providers on Monday, as some ISPs took some time to implement the order. “All the 857 websites will be blocked by all ISPs today,” said a source in the ISP industry, who requested anonymity. “As licensees we have to follow the orders.”

The government could not be immediately reached for comment.

Reports of the blocks created a furore among Internet users in the country, who criticized the move on Reddit, Twitter and other social media.

India’s Supreme Court struck down in March as unconstitutional an Internet law that provided for the arrest of people sending online messages considered offensive or menacing. But it upheld Section 69 (A) in that same ruling, which it described as a “narrowly drawn provision” limited to a few subjects.

In a public interest lawsuit on the blocking of pornography, the Supreme Court last month declined to issue an interim order that would block porn websites at the request of the private litigant, according to a report.

For more details visit https://cis-india.org/internet-governance/news/idg-news-service-august-2-2015-indian-govt-orders-isps-to-block-857-porn-websites

pranesh — 2011-08-22T13:28:42Z

This is a version of the Indian Copyright Act, 1957, as it would appear if the Copyright (Amendment) Bill, 2010, were adopted in toto. This has been produced to aid commentators, and is not meant to serve any other purpose. Errors may remain in it, despite my best efforts. If you find any, please e-mail . (Version 0.96 / Last updated: Friday, May 28, 2010)

For more details visit https://cis-india.org/a2k/publications/amended-copyright-act

admin — 2011-08-24T06:58:10Z

For more details visit https://cis-india.org/a2k/publications/amended-copyright-act.html

pranesh — 2010-04-27T13:33:48Z

For more details visit https://cis-india.org/a2k/publications/copyright-act-amendediframes

India's Statement Proposing UN Committee for Internet-Related Policy

pranesh — 2011-10-31T15:28:04Z

This is the statement made by India at the 66th session of the United Nations General Assembly, in which its proposal for the UN Committee for Internet-Related Policy was presented.

66th Session of the UN General Assembly

New York. October 26, 2011.

Agenda Item 16: Information and Communications

Technologies for Development (ICT): Global Internet Governance

Statement by India

Mr. Chairman,

We thank the Secretary-General for his report on enhanced cooperation on public policy issues pertaining to the Internet, contained in document A/66/77, which provides a useful introduction to the discussions under this agenda item.

As a multi-ethnic, multi-cultural and democratic society with an open economy and an abiding culture of pluralism, India emphasizes the importance that we attach to the strengthening of the Internet as a vehicle for openness, democracy, freedom of expression, human rights, diversity, inclusiveness, creativity, free and unhindered access to information and knowledge, global connectivity, innovation and socio-economic growth.

We believe that the governance of such an unprecedented global medium that embodies the values of democracy, pluralism, inclusion, openness and transparency should also be similarly inclusive, democratic, participatory, multilateral and transparent in nature.

Indeed, this was already recognized and mandated by the Tunis Agenda in 2005, as reflected in paragraphs 34, 35, 56, 58, 59, 60, 61 and 69 of the Agenda. Regrettably, in the six long years that have gone by, no substantial initiative has been taken by the global community to give effect to this mandate.

Meanwhile, the internet has grown exponentially in its reach and scope, throwing up several new and rapidly emerging challenges in the area of global internet governance that continue to remain inadequately addressed. It is becoming increasingly evident that the Internet as a rapidly-evolving and inherently global medium, needs quick-footed and timely global solutions and policies, not divergent and fragmented national policies.

The range and criticality of these pressing global digital issues that continue to remain unaddressed, are growing rapidly with each passing day. It is, therefore, urgent and imperative that a multilateral, democratic participative and transparent global policy-making mechanism be urgently instituted, as mandated by the Tunis Agenda under the process of ‘Enhanced Co-operation’, to enable coherent and integrated global policy-making on all aspects of global Internet governance.

Operationalizing the Tunis mandate in this regard should not be viewed as an attempt by governments to “take over” or “regulate and circumscribe” the internet. Indeed, any such misguided attempt would be antithetical not only to the internet, but also to human welfare. As a democratic and open society that has historically welcomed outside influences and believes in openness to all views and ideas and is wedded to free dialogue, pluralism and diversity, India attaches great importance to the preservation of the Internet as an unrestricted, open and free global medium that flourishes through private innovation and individual creativity and serves as a vehicle for open communication, access to culture, knowledge, democratization and development.

India recognizes the role played by various actors and stakeholders in the development and continued enrichment of the internet, and is firmly committed to multi-stakeholderism in internet governance, both at the national and global level. India believes that global internet governance can only be functional, effective and credible if all relevant stake-holders contribute to, and are consulted in, the process.

Bearing in mind the need for a transparent, democratic, and multilateral mechanism that enables all stakeholders to participate in their respective roles, to address the many cross-cutting international public policy issues that require attention and are not adequately addressed by current mechanisms and the need for enhanced cooperation to enable governments, on an equal footing, to carry out their roles and responsibilities in international public policy issues pertaining to the Internet, India proposes the establishment of a new institutional mechanism in the United Nations for global internet-related policies, to be called the United Nations Committee for Internet-Related Policies (CIRP). The intent behind proposing a multilateral and multi-stakeholder mechanism is not to “control the internet’’ or allow Governments to have the last word in regulating the internet, but to make sure that the Internet is governed not unilaterally, but in an open, democratic, inclusive and participatory manner, with the participation of all stakeholders, so as to evolve universally acceptable, and globally harmonized policies in important areas and pave the way for a credible, constantly evolving, stable and well-functioning Internet that plays its due role in improving the quality of peoples’ lives everywhere.

The CIRP shall be mandated to undertake the following tasks:

Develop and establish international public policies with a view to ensuring coordination and coherence in cross-cutting Internet-related global issues;
Coordinate and oversee the bodies responsible for technical and operational functioning of the Internet, including global standards setting;
Facilitate negotiation of treaties, conventions and agreements on Internet-related public policies;
Address developmental issues related to the internet;
Promote the promotion and protection of all human rights, namely, civil, political, social, economic and cultural rights, including the Right to Development;
Undertake arbitration and dispute resolution, where necessary; and,
Crisis management in relation to the Internet.

The main features of CIRP are provided in the annex to this statement. In brief, the CIRP will comprise 50 Member States chosen on the basis of equitable geographical representation, and will meet annually for two working weeks in Geneva. It will ensure the participation of all relevant stakeholders by establishing four Advisory Groups, one each for civil society, the private sector, inter-governmental and international organizations, and the technical and academic community. The Advisory Groups will provide their inputs and recommendations to the CIRP. The meetings of CIRP and the advisory groups will be serviced by the UNCTAD Secretariat that also services the meetings of the Commission on Science and Technology for Development. The Internet Governance Forum will provide inputs to CIRP in the spirit of complementarity between the two. CIRP will report directly to the General Assembly and present recommendations for consideration, adoption and dissemination among all relevant inter-governmental bodies and international organizations. CIRP will be supported by the regular budget of the United Nations; a separate Fund would be set up by drawing from the domain registration fees collected by various bodies, in order to mainly finance the Research Wing to be established by CIRP to support its activities.

Those familiar with the discourse on global internet governance since the beginning of the WSIS process at the turn of the millennium, will recognize that neither the mandated tasks of the CIRP, nor its proposed modalities, are new. The Working Group on Internet Governance (WGIG) set up by the UN Secretary- General had explicitly recognized the institutional gaps in global internet governance and had proposed four institutional models in its report to the UN General Assembly in 2005. The contours of the CIRP, as proposed above, reflect the common elements in the four WGIG institutional models. While the excellent report of the WGIG was much discussed and deliberated in 2005, unfortunately, no concrete follow-up action was taken to give effect to its recommendations on the institutional front. We hope that this anomaly will be redressed at least six years later, with the timely establishment of the CIRP.

In order to operationalize this proposal, India calls for the establishment of an open-ended working group under the Commission on Science and Technology for Development for drawing up the detailed terms of reference for CIRP, with a view to actualizing it within the next 18 months. We are open to the views and suggestions of all Member States, and stand ready to work with other delegations to carry forward this proposal, and thus seek to fill the serious gap in the implementation of the Tunis Agenda, by providing substance and content to the concept of Enhanced Co-operation enshrined in the Tunis Agenda.

Thank you, Mr. Chairman.

***

Annex

The United Nations Committee for Internet-Related Policies (CIRP)

The United Nations Committee for Internet-Related Policies (CIRP) will have the following features:

Membership: The CIRP will consist of 50 Member States of the United Nations, chosen/elected on the basis of equitable geographical representation. It will provide for equitable representation of all UN Member States, in accordance with established UN principles and practices. It will have a Bureau consisting of one Chair, three Vice-Chairs and a Rapporteur.

Meetings: The CIRP will meet annually for two working weeks in Geneva, preferably in May/June, and convene additional meetings, as and when required. The UNCTAD Secretariat will provide substantive and logistical support to the CIRP by servicing these meetings.

Multi-stakeholder participation: Recognizing the need to involve all stakeholders in Global Internet Governance in their respective roles, the CIRP shall ensure the participation of all stakeholders recognized in the Tunis Agenda. Four Advisory Groups – one each for Civil Society, the Private Sector, Inter-Governmental and International Organisations, and the Technical and Academic Community - will be established, to assist and advise the CIRP. These Groups would be self-organized, as per agreed principles, to ensure transparency, representativity and inclusiveness. The Advisory Groups will meet annually in Geneva and in conjunction with any additional meetings of the CIRP. Their meetings will be held back-to- back with the meetings of the CIRP, so that they are able to provide their inputs and recommendations in a timely manner, to the CIRP.

Reporting: The CIRP will report directly to the UN General Assembly annually, on its meetings and present recommendations in the areas of policy and implementation for consideration, adoption and dissemination to all relevant inter-governmental bodies and international organizations. .

Research Wing: The Internet is a rapidly-evolving and dynamic medium that throws up urgent and rapidly-evolving challenges that need timely solutions. In order to deal effectively and prudently with these emerging issues in a timely manner, it would be vital to have a well-resourced Research Wing attached to the CIRP to provide ready and comprehensive background material, analysis and inputs to the CIRP, as required.

Links with the IGF: Recognizing the value of the Internet Governance Forum as an open, unique forum for multi-stakeholder policy dialogue on Internet issues, the deliberations in the IGF along with any inputs, background information and analysis it may provide, will be taken as inputs for consideration of the CIRP. An improved and strengthened IGF that can serve as a purposeful body for policy consultations and provide meaningful policy inputs to the CIRP, will ensure a stronger and more effective complementarity between the CIRP and the IGF.

Budget: Like other UN bodies, the CIRP should be supported by the regular budget of the United Nations. In addition, keeping in view its unique multi-stakeholder format for inclusive participation, and the need for a well-resourced Research Wing and regular meetings, a separate Fund should also be set up drawing from the domain registration fees collected by various bodies involved in the technical functioning of the Internet, especially in terms of names and addresses.

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Excerpts from the Tunis Agenda

Paragraph 34 of the Tunis Agenda defines Internet Governance as “the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet”.

Paragraph 35 reaffirms the respective roles of stakeholders as follows: “(a) Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues”. (b) The private sector has had, and should continue to have, an important role in the development of the Internet, both in the technical an economic fields. (c) Civil society has also played an important role on Internet matters, especially at community level, and should continue to play such a role. (d) Intergovernmental organizations have had, and should continue to have, a facilitating role in the coordination of Internet-related public policy issues. (e) International organizations have also had and should continue to have an important role in the development of Internet-related technical standards and relevant policies.”

While delineating the respective roles of stakeholders, Paragraph 56 recognizes the need for an inclusive, multi-stakeholder approach by affirming that “The Internet remains a highly dynamic medium and therefore any framework and mechanisms designed to deal with Internet governance should be inclusive and responsive to the exponential growth and fast evolution of the Internet as a common platform for the development of multiple applications”.

Paragraph 58 recognizes “that Internet governance includes more than Internet naming and addressing. It also includes other significant public policy issues such as, inter alia, critical Internet resources, the security and safety of the Internet, and developmental aspects and issues pertaining to the use of the Internet”.

Paragraph 59 further recognizes that “Internet governance includes social, economic and technical issues including affordability, reliability and quality of service”. Paragraph 60 further recognizes that “there are many cross-cutting international public policy issues that require attention and are not adequately addressed by the current mechanisms”.

Paragraph 61 of the Tunis Agenda therefore concludes that “We are convinced that there is a need to initiate, and reinforce, as appropriate, a transparent, democratic, and multilateral process, with the participation of governments, private sector, civil society and international organisations, in their respective roles. This process could envisage creation of a suitable framework or mechanisms, where justified, thus spurring the ongoing and active evolution of the current arrangements in order to synergize the efforts in this regard”.

Paragraph 69 further recognizes “the need for enhanced cooperation in the future, to enable governments, on an equal footing, to carry out their roles and responsibilities, in international public policy issues pertaining to the Internet, but not in the day-to-day technical and operational matters, that do not impact on international public policy issues”.

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For more details visit https://cis-india.org/internet-governance/blog/india-statement-un-cirp