Centre for Internet and Society

Creative Commons comes to India

subha — 2013-07-17T06:49:55Z

Creative Commons team visited four Indian cities to spread the word about CC free licenses and CC affiliate program. Wikimedia India chapter was approached to join hands with Creative Commons for research and community building.

Jessica Coates, Global Network Manager and Jane Hornibrook, Regional Coordinator, Asia-Pacific, Creative Commons recently visited India. The Access to Knowledge team from the Centre for Internet and Society got a chance to join them for three of their meetings: one in Pune and two in Bengaluru.

Ceative Commons is a not-for-profit organization and the base for the free licenses. More than 400 million work in the world are in Creative Commons license as of today. The foundation is looking to expand its wing of voluntary affiliates in India who would support for more outreach, community building and research. "We are excited to see the wikipedians in India and their passion to contribute to Wikipedia and other Wikimedia projects. Wikimedia Commons is the largest Creative Commons license use and we are looking for joining hands with the Indian wikipedians and the Wikimedia India chapter", says Jessica Coats.


Jessica Coates and Jane Hornibrook from Creative Commons at Centre of Internet and Society, Bengaluru

Jane Hornibook, who looks after Creative Common's operation in Asia-Pacific said, "Creative Commons has many users in India. It would be exciting for us to collaborate with more academicians, wikipedians and organizations like Wikimedia India Chapter and CIS for peer research and outreach and grow our affiliate network in India.

Video

Note: This blog post is a combination of events organized in Pune by Pune Linux/Unix User Group and Symbiosis Institute of Computer Studies & Research, and CIS and the Wikimedia India Chapter in Bangalore.

For more details visit https://cis-india.org/openness/blog-old/creative-commons-comes-to-india

Creating Free Software Environment at Andhra Loyola College

rahim — 2015-05-27T00:54:42Z

Andhra Loyola college has signed an MoU with CIS-A2K and as part of it CIS-A2K team has provided a free and open software environment at Andhra Lyola College's Computer Center. Thirty machines have been installed with free software Operating system and some useful applications such as GIMP, Inkscape, firefox, libreoffice, etc.

Principal, Vice-principal, management and faculty at Andhra Loyola College expressed interest in upgrading their lab computers to latest software without having the glitches of piracy issues. The obvious solution to this was to install Linux based free OS like Ubuntu/Debian

Program Director of CIS-A2K advised to have this process done in a pilot manner instead of forced imposition on faculty and students to use a totally new working environment. So, 30 machines from PG lab were selected for this purpose.

These machines were installed with Ubuntu 12.04 LTS edition. In addition to the default available Libre office, firefox and terminal, Tools like Gimp, inkscape, apache web server were also installed.

Each of the faculty and students present at the installation time were evangelized about Free Software and its wise uses in the long term.

For more details visit https://cis-india.org/openness/blog-old/creating-free-software-environment-at-alc

Course Packs for Education Ruled Legal in India

sinha — 2017-07-14T04:05:00Z

On 9 May 2017, a five year court battle between publishers and universities finally came to an end when the Supreme Court of India dismissed an appeal by the Indian Reprographic Rights Organization (IRRO) challenging an earlier judgment of Delhi High Court that ruled course packs in India legal for educational purposes.

The article was published by EIFL on July 12, 2017.

In a case that gained wide international attention, issues such as the cost of textbooks in India were raised, students agitated for fair access to educational materials, and the jurisprudence on copyright in India has taken a leap forward. In this guest blog, Anubha Sinha, Programme Officer on Openness and Access to Knowledge at the Centre for Internet and Society India, discusses the judgment in the case known as the ‘Delhi University photocopy’ case, and what it means for access to educational materials in India.

The facts of the case

In 2012, three academic publishers, Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis, sued the University of Delhi (DU) and Rameshwari Photocopy Service (based at the university) for copyright infringement for photocopying parts of their textbooks and distributing them in course packs - collections of assigned reading materials – exclusively to students for a fee.

The publishers sought to compel Delhi University to enter into a licensing agreement with the Indian Reprographic Rights Organization (IRRO), that manages certain rights on behalf publishers and other rightsholders in India.

The course packs in question comprised excerpts from textbooks on course syllabi at Delhi School of Economics (part of the University of Delhi). The court analyzed the content of four packs that included works such as Transforming India: Social and Political Dynamics of Democracy (OUP), New Cambridge History of India (CUP) and Political Philosophy (Routledge/Taylor & Francis).

The court found that on average 8.8% of the textbooks, that each cost on average 39 USD (2,500 INR), were used in the course packs. Students and faculty were charged a nominal fee of one US cent (40 paise) per page to buy the course pack.

The court’s judgment – no infringement, no licence required

In an interim order in 2012, the court issued a temporary injunction restraining the sale of course packs by Rameshwari. However, the order was overturned when in subsequent judgments (in September 2016 and an appeal judgment in December 2016) the court ruled in favour of the University.

On whether the making of the course packs was a copyright infringement, the court found no infringement because the activities fell under the education exception in Indian copyright law (specifically section 52(1)(i)).

Section 52(1)(i) of the Indian Copyright Act (1957) allows any work to be reproduced by a teacher or pupil for the purposes of instruction. In a liberal interpretation of the provision, the court held that the reproduction of a work is not limited to reproduction by an individual teacher or pupil, it also extends to the action of multiple teachers and students. Further, the court held that the phrase ‘course of instruction’ embraces any instruction for the duration of an entire course or teaching programme, it is not limited only to teaching in the classroom.

On whether the university must obtain a licence to photocopy from IRRO, the court held that no licence is required because the activities are covered by Section 52(1)(i).

The court also found there to be no commercial exploitation of copyright in the works.

During the case, the publishers tried to impute a profit motive on the part of the defendants. They argued that by selling chapters of the books, the defendants were in direct competition with publishers thereby creating an adverse effect on the publishers’ market.

The court rejected the argument holding that students are hardly potential customers for multiple books used in the course packs. For example, post-graduate students might have 35-40 reading assignments per subject.

Without the course packs, students would simply look elsewhere for the material, including the university library. In fact, the court noted that increased access to education has the potential to expand the customer base for such books in the future.

Primacy of purpose

Importantly, the court said fairness of use is to be judged only by its intended purpose i.e. education, and not from any qualitative or quantitative uses (such as which parts of the text are used or the number of copies made).

The court’s judgment on appeal, that references case law from Canada, the USA the UK and New Zealand, emphasizes that the determination of ‘fairness’ of a use rests solely on the “touchstone of the purpose of the use and/or other limitations expressly built in each of these clauses”. Thus there is no requirement to introduce other tests or factors when applying Section 52(1)(i) and so a general fair use principle is to be read into all such provisions in the law.

The case concludes

The High Court remained undecided on two points of fact: whether the works included in the course packs were necessary for educational instruction, and whether the photocopying of entire books is allowed under Indian law. It decided to refer these issues for determination to a trial court.

However, the trial court hearing never proceeded because in March 2017 the publishers decided to withdraw from the case, in a move that surprised observers. A joint statement issued by OUP, CUP and Taylor & Francis acknowledged the important role that course packs play in education, and looked forward to working “even more closely with academic institutions, teachers and students to understand and address their needs”.

In a further twist in April 2017, the Indian Reprographic Rights Organization (IRRO) filed an appeal to the Supreme Court challenging the High Court’s judgment.

On 9 May 2017, the Supreme Court summarily dismissed IRRO’s appeal.

Impact of the Delhi University case

The ruling in the Delhi University case is a huge triumph for access to educational materials in India over the interests of private copyright holders.

The case shone a light on the socio-economic context of university level education in India, in particular the cost of textbooks. Students became advocates for access to knowledge, and the law on access to educational materials in India has been advanced.

Book prices in India are an issue

A study submitted to the court showed that consumers in the global South often have to commit significantly higher proportions of their income to buy books because absolute book prices are far higher than in the global North. For example, if consumers in the US had to pay the same proportion of their income to purchase the Oxford English Dictionary, it would cost a ludicrous 941.20 USD!

Not even university libraries can afford these prices. While libraries do purchase multiple copies of textbooks, they cannot cater for the entire student population that can ran into hundreds of students enrolled on an individual course.

In addition, the latest editions are not always available to purchase in India. So the absence of course packs would seriously compromise access to education.

“While foreign publishers claim that almost all educational titles have lower priced Indian editions, our empirical research shows this to be false. The vast majority of legal and social science titles that we surveyed had no equivalent Indian editions, and had to be purchased at prices equivalent to or higher than in the West. The lower priced Indian editions were often older and outdated.” - Shamnad Basheer, writing in SpicyIP, one of India’s leading blogs/repositories on intellectual property (IP) and innovation law/policy.

Students, faculty and authors mobilized

The case resonated strongly with the student and academic communities. Two new groups were formed, the Association of Students for Equitable Access to Knowledge (ASEAK) and the Society for Promotion of Equitable Access to Knowledge (SPEAK). Both groups were admitted as interveners in the case in support of the defendants.

Student engagement has continued, increasing awareness among the next generation for fair access to knowledge.

In addition, over three hundred academics from all over the world, including 33 authors whose works were listed in court documents as being included in the course packs, wrote to the three publishers asking them to withdraw the lawsuit. The letter was submitted to the court in pleadings by the defendant.

Copyright jurisprudence advanced

The case has advanced copyright jurisprudence in India.

The making of course packs for educational purposes is allowed by law.

The court’s reasoning in the judgments was based on the socio-economic context of India, the realities of the education system, and the progress afforded by modern technology. These are welcome developments that will enable the law to adapt to new situations and current needs of Indian society.

Timeline

August 2012: Oxford University Press (OUP), Cambridge University Press (CUP) and Taylor & Francis issue legal proceedings against Delhi University and Rameshwari Photocopy Service

October 2012: Interim injunction issued against Rameshwari Photocopy Service restraining sale of course packs.

March 2013: 33 authors of works cited in court documents write to publishers asking them to withdraw the case.

September 2016: judgment issued by Justice Rajiv Sahai Endlaw, Delhi High Court; injunction on Rameshwari Photocopy Service lifted.

October 2016: Publishers file appeal against Justice Endlaw’s decision.

December 2016: Appeal rejected by Delhi High Court Division Bench Justices Pradeep Nandrajog and Yogesh Khanna.

January 2017: Oxford students and academics urge OUP not to appeal to the Supreme Court.

March 2017: Publishers announce their withdrawal from the case.

April 2017: Indian Reprographic Rights Organization (IRRO) (that intervened in the lower case) files appeal to the Supreme Court.

May 2017: IRRO appeal dismissed by the Supreme Court.

For more details visit https://cis-india.org/a2k/blogs/eifl-anubha-sinha-july-12-2017-course-packs-for-education-ruled-legal-in-india

Countering US pressures on India’s IP regime

praskrishna — 2014-12-07T12:20:36Z

Anubha Sinha attended a meeting organized by Lawyer's Collective on "Countering US pressures on India’s IP regime" on November 16, 2014.

Medecins Sans Frontieres, Third World Network, Zakir Thomas, Mira Shiva and a few others also participated. One of the action points was responding to the call for comments issued by the DIPP on formulating a National IPR Policy. All Civil Society members present agreed to make submissions based on their sectoral area of expertise. CIS will also make a submission in this regard.

The tentative date for the next meeting is December 6, 2014. Minutes of the meeting can be downloaded here.

For more details visit https://cis-india.org/a2k/news/countering-us-pressure-on-indias-ip-regime

Copyrights and Copywrongs Why the Government Should Embrace the Public Domain

pranesh — 2013-09-06T04:56:42Z

Each of you reading this article is a criminal and should be jailed for up to three years. Yes, you. "Why?," you may ask.

This article by Pranesh Prakash was published in Yojana, Issue: August 2013.

Have you ever whistled a tune or sung a film song aloud? Have you ever retold a joke? Have you replied to an e-mail without deleting the copy of that e-mail that automatically added to the reply? Or photocopied pages from a book? Have you ever used an image from the Internet in presentation? Have you ever surfed the Internet at work, used the the 'share' button on a website, or retweeted anything on Twitter? And before 2012, did you ever use a search engine?

If you have done any of the above without the permission of the copyright holder, you might well have been in violation of the Indian Copyright Act, since in each of those examples you're creating a copy or are otherwise infringing the rights of the copyright holder. Interestingly, it was only through an amendment in 2012 that search engines (like Google and Yahoo) were legalized.

Traditional Justifications for Copyright

Copyright is one among the many forms of intellectual property rights. Across differing theories of copyright, two broad categories may be made. The first category would be those countries where copyright is intended to benefit society, the other where it is intended to benefit the author. Within the second category, there can again be two subcategories: those that see the need to benefit the author due to notions of natural justice and those that see the need to provide incentives for authors to create. Incentives to create are necessary only when the act of creation itself is valuable (and more so than the creator). The act of creation is valued highly as it directly benefits society. Thus, it is seen that the second sub-category is closer to the societal benefit theory than the natural justice sub-category. In the United States, the wording of the Progress Clause makes things clear that copyright is for the benefit of the public, and the author is only given secondary consideration. It is in light of this that the U.S. Supreme Court said,
"The monopoly privileges that Congress may authorize are neither unlimited nor primarily designed to provide a special private benefit. Rather, the limited grant is a means by which an important public purpose may be achieved. It is intended to motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired."

Economic theories of copyright see copyright as an incentive mechanism, designed to encourage creators to produce material because they would be able to recover costs and make a profit due to the exclusionary rights that copyright law grants. Thus, the ideal period of copyright for any material, under the economic theory would be the minimum period required for a person to recoup the costs that go into the production of that material. Allowing for the great-grandchildren of the author to benefit from the author’s work would actually go against the incentive mechanism. Even if the author is motivated enough to put in even more hard work to provide for her great-grandchildren, her children, grandchildren, and great-grandchildren wouldn’t have any incentive to create for themselves (as the incentive is seen purely in terms of economics, and not in terms of creative urge, etc.), as they are already provided for by copyright. Thus, in a sense, the shift towards longer periods of copyright terms that we are seeing today can be seen as a shift from the incentive-based model to a rewards-based model of copyright.

The other standard theory of copyright justification is the natural rights theory, which deems intellectual property the fruit of the author’s labour, thus entitling them to complete control over that fruit. This brings us to the conception of property itself, and the Lockean and Hegelian justifications for personal property is what is most often used to back such an argument up.

There are many problems with the natural rights theory of intellectual property. If that theory were to hold water, copyright law would accord greater precedence to authors than to publishers. Yet, we see that it is publishers primarily, and not authors, who get benefit of copyright. The "work for hire" doctrine, embodied in Section 17 of the Copyright Act, holds that it is the employer who is treated as the owner of copyright, not the author. This plainly contradicts that natural rights theory. And it also raises the question of why we should protect certain kinds of knowledge investments in the first place. Publishing is a business, and all risks inherent with other businesses should come along with publishing. There is no reason that the State should safeguard their investment by vesting in them a right while safeguarding the investments of any other business only occasionally, and that too as an act of munificence. This problem arises because of the free transferability of copyright. This leads us to the larger problem, which is of course that of treating knowledge as a form of property. Property, as we have traditionally understood it, has a few features like excludability. Knowledge, however, does not share that feature with property. Once you know something that I created, I can’t exclude you from that knowledge that (unlike my ability to take back an apple you have stolen from me). This analysis also has the pernicious effect of excluding free speech analysis of copyright laws. An incorrect analogy is often drawn to explain why free speech analysis doesn’t work on property: you may wish to exercise your right to free speech on my front lawn, yet the State may decree that I am in full right to throw you off my property, without being accused of abridging your right to freedom of speech. So, the argument goes, enforcement of property rights is not an affront to freedom of speech. The problems with this analogy are obvious enough: the two forms of “property” cannot be equated. If you take the location of speech away, I can still speak. If, on the other hand, you restrict my ideas/expression, then I can no longer be said to have the freedom of expression.

One Size Doesn't Fit All

It is easy to see that copyright is an ill-fit for all the things that it now covers. Copyright in its present form is a historical accident, which evolved into the state it is in a very haphazard fashion. It is a colonial imposition on developing countries. It does not value that which we often value in Indian culture: tradition. Instead, copyright law values modernity and newness. It can also be seen as a trade issue imposed on us through the Trade-Related Intellectual Property Agreement (TRIPS Agreements) as part of the World Trade Organization.

Importantly, copyright is not a single well-planned scheme. In some cases — for literature, visual art works, lyrics, musical tunes, etc. — it provides rights to the artist, while in other cases — for recordings of those musical tunes, and for films — it provides rights to the producers. What are the legal reasons for this distinction? There aren't any; the distinction is a historical one (with sound recordings and films getting copyright protection after literature, etc.). At one point of time only exact copies were governed by copyright law. Hence, translations of a work were considered not to be infringement of that work (or a "derivative work"), but new independent works, since after all it takes considerable artistic effort to create a good translation of a work. However now even creating an encyclopedia based on Harry Potter (as the Harry Potter Lexicon was), is covered as infringement of the exclusive rights of the author. At one point of time photographs were not provided any copyright, being as they are, 'mere' mechanical reproductions. They were seen as not being 'creative' enough. However, around the turn of the twentieth century, that position changed, and hence every photograph you've taken of your dog is now copyrighted. According to a recent Supreme Court decision, merely adding paragraph numbering to court judgments is considered to be 'creative' enough to merit copyright protection! At one point of time, copyright existed for 14 years. Now, with the international minimum being "fifty years after the death of the author", it lasts for an average of more than a century! Once upon a time, copyright was only granted to those who wanted it and applied for it. That has now changed, and you have copyright over every single original thing that you have ever written, recorded, or otherwise affixed to a medium.

Copyright in the Digital Era

All digital activities violate copyright, since automatically copies are created on the computer's RAM, cache, etc. Because now everything is copyrighted, and copyrighted seemingly forever, each one of us violates copyright on a day-to-day basis. It is a mockery of the law when everyone is a criminal. The US President Barack Obama violated copyright law when he presented UK's Queen Elizabeth II an iPod filled with 40 songs from popular musicals like West Side Story and the King and I. When even presidents, with legal advisers cannot navigate copyright law successfully, what hopes have we ordinary people?

There is no shortage of similar examples to show that copyright law has gone out of control.

Take extradition, for instance. Augusto Pinochet was extradited, Charles Shobraj was sought to be extradited. Added to their ranks is the pimply teenager who runs TVShark, who British courts have cleared for extradition to the USA for potential violation of copyright law. The extreme injustice of copyright is easily observable if one sees the contorted map depicting net royalty inflows available on Worldmapper.org: there are a sum total of less than a dozen countries which are net exporters of IP; all other countries, including India, are net importers of IP. IP law is one area where both those who talk about social justice and those who talk about individual liberties find common ground in the monopolistic or exclusionary rights granted under copyright law. Copyright acts as a barrier to free trade, thus allowing Nelson Mandela's autobiography to be more expensive in South Africa than the United Kingdom because South Africa is prohibited by the UK publisher from importing the book from India. Mark Getty, the heir to the Getty Images fortune, once presciently observed that "IP is the oil of the 21st century".

Government Copyright

In the ivory towers of academia, there has in recent times been a clarion call that's resounding strongly: the call for open access. As the Public Library of Science states, "open access is a stands for unrestricted access and unrestricted reuse". Why is it important? "Most publishers own the rights to the articles in their journals. Anyone who wants to read the articles must pay to access them. Anyone who wants to use the articles in any way must obtain permission from the publisher and is often required to pay an additional fee. Although many researchers can access the journals they need via their institution and think that their access is free, in reality it is not. The institution has often been involved in lengthy negotiations around the price of their site license, and re-use of this content is limited." Importantly, the writers of articles (scholars) do not get paid by the publishers for their articles, and most developing countries are not able to afford the costs imposed by these scholarly publishers. Even India's premier scientific research agency, the Council for Scientific and Industrial Research, recently declared that the costs of scientific journals was beyond its means.

Why is this important? Because apart from establishing the idea of informational equity and justice, it also establishes the idea that taxpayer-funded research (as most scientific and much of academic research is) ought to belong to the public domain, and be available freely. This principle, seemingly uncontroversial, is very unfortunately not embodied in the Indian Copyright Act. Most public servants do not realize that that which they create may not be freely used by the public whom they serve.

Under the Indian Copyright Act, all creations of the government, whether by the executive, judiciary, or legislature, is by default copyrighted. This does not make sense under either of the two theories of copyright that we examined above. The government is not an 'author' who can have any form of 'natural rights' over its labour. Nor is the government incentivised to create more works if it has copyright over them. Most of the copyrighted works, such as various reports, the Gazette of India, etc., that the government creates are required to be created, and the cultural works it creates are for cultural promotion and not for commercial exploitation. Hence it makes absolutely no sense to continue with the colonial regime of 'crown copyright', when countries like the USA have suffered no ill effects by legally placing all government works in the public domain.

While there are a limited set of exceptions to government copyright provided for in the law, those are very minimal. This means that even though you are legally allowed to get a document through the Right to Information Act, publicising that document on the Internet could potentially get you jailed under the Copyright Act. This is obviously not what any government official would want. If instead of the four sub-sections that form the exception, the exception was merely one line and allowed for "the reproduction, communication to the public, or publication of any government work", then that itself would elegantly take care of the problem. This would also remove the ambiguities inherent currently in the Data.gov.in, where the central government is publishing information that it wants civil society, entrepreneurs, and other government departments to use, however there is no clarity on whether they are legally allowed to do so.

Recently, the member states of the World Intellectual Property Organization passed a treaty that would facilitate blind persons' access to books. On that occasion, at Marrakesh, I noted that intellectual property must not be seen as a good in itself, but as an instrumentalist tool which may be selectively deployed to achieve societally desirable objectives. I said: It is historic that today WIPO and its members have collectively recognized in a treaty that copyright isn't just an "engine of free expression" but can pose a significant barrier to access to knowledge. Today we recognize that blind writers are currently curtailed more by copyright law than protected by it. Today we recognize that copyright not only may be curtailed in some circumstances, but that it must be curtailed in some circumstances, even beyond the few that have been listed in the Berne Convention. One of the original framers of the Berne Convention, Swiss jurist and president, Numa Droz, recognized this in 1884 when he emphasized that "limits to absolute protection are rightly set by the public interest". And as Debabrata Saha, India's delegate to WIPO during the adoption of the WIPO Development Agenda noted, "intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing. Marrakesh was the city in which, as Debabrata Saha noted, "the damage [of] TRIPS [was] wrought on developing countries". Now it has redeemed itself through this treaty.

The Indian government needs to similarly redeem itself by freeing governmental works, including the scientific research it funds, the archives of All India Radio, the movies that it produces through Prasar Bharati, and all other tax-payer funded works, and by returning them to the public domain, where they belong.

For more details visit https://cis-india.org/a2k/blogs/yojana-august-2013-pranesh-prakash-copyrights-and-copywrongs-why-the-govt-should-embrace-the-public-domain

Copyrights Amendment Bill to Be Tabled in Indian Parliament – Parallel Import provisions have Been Removed

praskrishna — 2011-09-14T11:47:37Z

This week, the Indian government’s Rajya Sabha (the upper house of Parliament) will debate the Copyright Amendments Act.

The Centre for Internet and Society has raised a number of concerns – including the removal of parallel import provisions that would allowed universities and libraries to access foreign works more cheaply, the extension of copyright terms beyond those required by the TRIPS Agreement, and the introduction of technological protection measures (with stiff penalties for circumventing them).

CIS describes other provisions in the bill: Fair dealing exceptions have been extended “to all works except computer programs;” the “scope of compulsory licensing under sec 31 has been expanded from ‘any Indian work’ to ‘any work’;” and two provisions have been introduced to allow for the conversion, reproduction, and distribution of works for people with disabilities.

According to Prashant Reddy from the National University of Juridical Sciences in Kolkata, the Parliamentary Standing Committee on that reviewed the original legislation had strongly supported parallel imports of books. In a blog post on Spicy IP, he noted that “publishers routinely introduce old versions of books in India,” and that parallel imports would allow students to obtain newer copies at reasonable prices.

However, a news story in Live Mint reports that the publishing industry “had strongly opposed the amendments.”

This article by Mike Palmedo was published in infojustice.org on September 5, 2011. Read the original story here

For more details visit https://cis-india.org/news/copyright-amendment-bill-in-indian-parliament

Copyright Madness

Lawrence Liang and Achal Prabhala — 2012-05-30T03:46:24Z

Prompted by courts and piracy-fearing businesses, Indian ISPs have taken down popular, legitimate websites. This Op-ed by Lawrence Liang and Achal Prabhala was published in the Indian Express on May 22, 2012.

The funniest thing about the “ban” on torrent sites and video-sharing sites by a Madras high court order of March 29 is that it doesn’t work. Naturally: we’re talking about the Internet, whose users and makers have fended off twisted judgments, corporate takeovers, undue state control and outrageous censorship since its inception. So if you currently live in India and want to read the new Paulo Coelho bestseller on his preferred distribution service — otherwise known as The Pirate Bay — or want to watch your own wedding video on Vimeo, the platform of choice for independent filmmakers, then all you have to do is go through one of the many hundreds of virtual private networks that provide a workaround, most of which are free and take about two seconds to execute.

Sadly, this is where the fun ends. As you read this, Internet Service Providers (ISPs) across the country will have put in place an overreaching, wildly imaginative and totally ludicrous ban on just about everything the Internet facilitates human beings to excel at — learning, sharing and growing. The real danger is not the effect of the court order or its interpretation, but the fact that it is a part of a disturbing trend in which copyright owners presume that it is piracy that results in the failure of their films. This, coming from an industry that regularly churns out facsimiles of Hollywood hits and renders them original works worthy of copyright protection. Let’s get this clear: films fail when they are bad. Films that hit the box office jackpot do so in spite of piracy simply because they are good.

A quick recap of the facts. Earlier this year, a Chennai firm called Copyright Labs, acting on behalf of its client R.K. Productions, applied to the Madras High Court to protect the Tamil film 3 — starring Dhanush and Shruti Haasan and directed by Rajnikanth’s daughter, Aishwarya — from copyright infringement on the Internet. The petition was filed even before the film’s release; the protection sought was pre-emptive. The Madras high court passed a “John Doe” order, which is, in essence, a sweeping set of protections granted against unknown potential offenders in the future, without giving any other interested party the chance to be heard. Any order that does not give the other side a chance to be heard — without even knowing who the other side is — has to be exercised judiciously; if every new film produced in India released with an ex parte order every Friday, principles of natural justice would be diluted, to the larger detriment of the legal system itself.

This is not the first John Doe order pertaining to copyright that has been issued in India, but it is certainly the most consequential. Previous orders (in relation to copyright) are relatively recent, and have been passed over the last few years in relation to a single motion picture and to music at large — but their effects have been relatively contained. The problem with John Doe orders is that by their overly broad and sweeping nature, they extend to a range of non-infringing activities as well, thus catching a whole range of legal acts in their net. And speaking of legal acts, the ultimate irony here is that the first we heard of this film was through the viral hit song Kolaveri Di — distributed at will with the blessings of the filmmakers — which created massive pre-release publicity for 3. Consider then that this order is not quite the slaying of the golden goose, but a gag order on the animal kingdom since there could be a wild animal lurking amidst the geese.

Reading through the list of websites that ISPs have banned — as Nikhil Pahwa carefully details on Medianama — is an eye-popping exercise. The Pirate Bay, everyone’s favourite hallucination, is on it. So are Isohunt, and a few others. Two video-sharing sites are named, Vimeo and DailyMotion. (Never mind that all these websites house a sizeable percentage of perfectly legitimate content that is user-generated and user-uploaded and distributed with the full permission of the copyright owner.) Inexplicably, the ISPs — or some mysterious intermediaries between the Madras high court and them — in their wisdom, march forth and ban a website that allows the sharing of bookmarks (Xmarks), and another that primarily exists for Twitter users who want to exceed their 140 character limit (Pastebin), regardless of their complete inapplicability in this situation.

India’s copyright act allows owners of content the right to prevent infringement through the use of injunctions, but these injunctions have to be narrowly construed and applied only to specific instances of infringement. Which is to say, take down the infringing video, not the whole website, and don’t intimidate the host. When injunctions threaten freedom of speech and expression, then free speech should necessarily trump copyright claims — and the courts cannot be used as convenient shopping forums for maladies that don’t exist. The real issue here is that copyright industries have to come up with better business models that take cognisance of technologies that allow people to exchange information. The course we are currently on will only result in strangling technology and stifling innovation and creativity.

Read the original published by the Indian Express here

For more details visit https://cis-india.org/a2k/copyright-madness

Copyright Limitations and Exceptions for Libraries and Archives

praskrishna — 2016-03-31T16:28:22Z

A two day workshop on Copyright Limitations and Exceptions for Libraries and Archives was organized by MHRD Chair on Intellectual Property Rights, Centre for Intellectual Property Rights and Advocacy, and National Law School of India University in Bangalore on March 4 and 5, 2016. Nehaa Chaudhari spoke in 2 sessions: Exception & Limitations to Copyrighted Works and WIPO Initiatives.

Click to download programme schedule

Nehaa Chaudhari presentations can be accessed here: The Library Exception: Fair Dealing for Libraries and WIPO Initiatives.

For more details visit https://cis-india.org/a2k/news/copyright-limitations-and-exceptions-for-libraries-and-archives

Copyright Law: More Than A Moral Obligation

praskrishna — 2012-08-13T03:59:47Z

It was a cozy and warm atmosphere in a bookstore in South Delhi — with plenty of cushions thrown on the floor — that I attended a delightful book launch for children. The book was displayed prominently, along with some fabulous original illustrations done by the author, from which the book illustrator had been “inspired”. I clicked some photographs with my smartphone. The publishers, based in another city, couldn't attend the event. So, I thought why not mail it to them, they are fraternity. Soon, a newsletter popped into my mailbox from the same publisher, with a lovely write-up of the book launch accompanied by my photographs, but with no acknowledgement given to me. I was disappointed.

This column by Jaya Bhattacharji Rose was published in Business World on August 9, 2012. Pranesh Prakash is quoted.

After pondering over it, I decided to bring it to the publisher’s notice. To me, it was the principle of recognising the IPR (intellectual property rights) of the creator and giving due credit that I felt was at stake here. This was the reply I received, “So sorry. It was a slip up as I had said that you should be acknowledged. But since that is not the usual practice — simply because no one had asked — it was overlooked.” An apology received and accepted. I did not stop at that. I requested that in the next newsletter it should be rectified and on the blog, the photographs uploaded should go with credits.

To explore larger issues surrounding copyright, and for publishers in general, management of copyright is a very important part of their business. In May 2012, the Indian Parliament passed a few amendments to the Copyright Act. (It is still a bill, at the time of writing this column.) A victory to a large extent for the music industry, but it has made very little difference, so far, to the publishing industry. Plus, the debate surrounding Clause 2(m) of the Indian Copyright Act is still an open chapter. As per the clause, a book published in any part of the world can easily be sold here. Thus, diluting the significance or infringing upon an exclusive Indian edition. The Parliament Standing Committee investigating the pros and cons of Clause 2(m), made a “forceful recommendation” for its amendment, but it was not included in the bill. So the HRD Minister has referred it to an NCAER expert committee constituted.

However, another amendment relevant to the publishing industry has been the increase in copyright term for photographs. “This will make using older photographs impossible without hunting down the original photographer,” says Pranesh Prakash, a lawyer and copyright expert and programme manager at Centre for Internet and Society. “So far, things have worked well because sepia-tinted photographs have generally become part of the public domain. But now, only photographs by photographers who died before 1951 are part of the public domain. This has shrivelled up the public domain in photographs since it is even more difficult to trace the photographer (and date of death) than to estimate the age of a photograph, determining whether a photograph is in the public domain is laden with uncertainty. The use of historical photos in books (and Wikipedia) will be badly affected.”

Having been a publisher for years, I tend to be very careful about issues involving copyright. Dig deep and you will find anecdotes that illustrate the crying need for understanding copyright issues. For example, an illustrator submitting files to a reputed art director could be told that the illustrations are not up to mark. Unfortunately, when the book is published, the ‘new’ illustrations are pale imitations of the original line drawings submitted by the illustrator.

Or for that matter, a playwright being asked to create a script, but is never acknowledged or even paid the royalty due since the director believes that the core idea for the play is hers. ‘The playwright merely gave it a form’ is a common retort. Or, a couple of editors discovering their original research (and highly acclaimed globally) has been blatantly plagiarised by a well-known writer and published by an equally prominent publisher. Despite having marshalled all the necessary evidence, the editors are unable to file a case, since the court fee is a percentage of the damages sought and is beyond their reach. So, these cases stagnate with no redressal and the creators are left frustrated and angry.

The core issue is, how many professionals in the publishing eco-system actually know what is copyright or how to exercise their rights? After all, it is only a concept, albeit a legal one, which gives the creator of an original work exclusive right(s) to it for a limited period of time. Establishing and verifying the ownership to copyright is a sensitive issue. A good example of how an organisation can facilitate, disseminate, inform and empower a literary community on IPR and related topics is the Irish Writers Union.

According to their website, it is “the representative organisation for one of the major stakeholders in any discussion about copyright: Irish authors. While we understand that copyright legislation might be a barrier to innovation in certain industries, the IWU believes that any change to copyright law must be managed in such a way as to ensure that no damage is done to Ireland’s literary activity. ...literature earns hard cash for Ireland. Both in the form of its contribution to the €2bn annual gain from cultural tourism and in the considerable revenues deriving from the success of sales of Irish works, Irish publishing and writing is an activity that should not be jeopardised by any legal change that weakens the value of copyright ownership to the creators of original literary works. ...We note that if anything, copyright law in regard to literature should be strengthened to protect rights holders.”

As Shauna Singh Baldwin, a Canadian-American novelist of Indian descent, comments upon the significance of copyright in an e-mail conversation with me, “The breath of the individual creator, his/her imagination and speculation gives life to a work of art. To create something new, you take ideas from many sources, recontextualise them, find unexpected connections between them, and create something new — and beautiful. If we continue to be ashamed of our own imaginations and so fearful of mistakes that we must copy the tried and true, we will never create, only innovate.”

As for the rejoinder and photo credits I had requested for my photographs, the publisher implemented it immediately. And I was glad.

Jaya Bhattacharji Rose is an international publishing consultant and columnist.

For more details visit https://cis-india.org/news/www-businessworld-in-jaya-bhattacharji-rose-august-9-copyright-law

Copyright Amendment: Bad, but Could Have Been Much Worse

sunil — 2012-06-15T12:29:39Z

The changes to the Copyright Act protect the disabled - but are restrictive about cover versions and web freedom, writes Sunil Abraham in this article published in the Business Standard on June 10, 2012.

When the Copyright (Amendment) Act, 2012, was passed unanimously by the Lok Sabha on May 22, it meant that there was little reason for celebration, some not-so-great news, and a lot of pretty bad news.

The only real reason for unqualified celebration is the amendment’s introduction of a robust exception for the disabled. It is bleeding-edge policy formulation, as it is right up there alongside the Treaty for the Visually Impaired currently being negotiated at the World Intellectual Property Organisation (WIPO). The Indian exception is more robust: first, it is disability-neutral, unlike the treaty which only addresses the needs of the print-impaired; and second, it is works-neutral, unlike the treaty which only addresses books and printed works. In brief, given the very limited circulation of copyrighted works amongst the disabled, they now can convert inaccessible works to accessible formats and share them with each other on a non-profit basis. No royalty needs to be paid to the rights-holders for this conversion and the resultant access. Other reasons to celebrate include the newly introduced exception for non-commercial lending and the extension of fair dealing (or fair use) to all works.

Now for some middling news. The Digital Rights Management provision makes it an offence punishable with a fine and a two-year jail term to circumvent “effective technological measures” (also called Technological Protection Measures) and remove “rights management information” (RMI). The provision protects public interest since it does not allow rights-holders to claim rights unavailable under copyright law, and does not prevent consumers and citizens from benefiting from the various fair dealing (or fair use) exceptions and limitations.

Unfortunately, the provision mandates onerous record-keeping for those providing circumvention technologies, and also does not insist that the rights-holder provide the means for circumvent when the consumer or citizen legitimately needs to do so.

The first piece of bad news is that an inadequate “safe harbour” provision has been introduced for Internet intermediaries. Like the Information Technology Act, the Copyright Act has also gotten the configuration of the intermediary liability regime wrong. This was the opportunity to finally protect common carriers, platforms for social media and commons-based peer-production (such as free software and open content). In short, search engines are finally legal in India, and so are ISPs, virtual private network providers and content delivery networks.

But unfortunately, social media platforms such as Facebook and peer-production platforms like Wikipedia are not afforded sufficient immunity to thrive as real-time participatory platforms. The take-down procedure is designed to provide instant relief to rights-holders, as intermediaries are supposed to remove content immediately. They have the option of reinstating content if the take-down notice is not followed within three weeks by a court order. This mechanism will have a chilling effect on free speech — given that Indian internet service providers very obviously privilege the interests of intellectual property rights-holders over those of the ISPs’ customers — as most recently illustrated by their over-compliance with certain John Doe court orders emerging from the Madras High Court.

The second piece of bad news is the extension of the term of protection for photographs. It has gone from being “sixty years after publication” to “sixty years after the death of the photographer”. Sixty years from publication was already in excess of the Agreement on Trade-Related aspects of Intellectual Property Rights (the TRIPS Agreement). Now we are in excess of WIPO Copyright Treaty requirements, even though India is not a signatory. The possibility of grandchildren earning royalties does not serve as an incentive for shutterbugs to take more photos or better photos. It is not even clear if one can monetise the average photo after the first decade. Therefore, the global public domain has been substantially impoverished, without any evidence that this will make the photographers reciprocally wealthier.

It does not stop there. In the age of hip-hop, trance, jhankar beats and turntables, one would have hoped that our law-makers would at least get the provision for “cover versions” or “remixes” right. Cover versions in India are doubly useful both in terms of aesthetics and profits — and yet the relevant provision can only be described as mediaeval. Cover versions can be produced only after a gap of five years; they have to be restricted to the same medium as the original; payment from them must be made in advance for 5,000 copies (should all those who sang commercially viable cover violations of “Kolaveri Di” be considered lawbreakers?); and there are strict limits on what are acceptable alterations to the original. The “alterations” have to be “reasonable” and “technically necessary”. Today, affordable yet sophisticated multimedia technologies allow teenagers to build professional sound recording studios in their bedrooms — and our government is seeking to restrict them to boring word-for-word and note-for-note covers.

And it gets worse. Bowing to pressure from foreign publishers’ associations, the government deleted the “parallel importation” provision at the last minute. The inclusion of this provision would have made it clear that works reproduced with the rights-holders’ permission in other countries could be imported into India. Foreign publishers and their lobbyists went all-out with a propaganda campaign predicting a dystopia filled with pirated books, surplus books dumped from overseas and starving, uncompensated authors. Had our government not caved, this clarification in law would have gone a long way in dismantling distribution monopolies and made the market much more competitive. The resultant increase in choice and reduction in cost would have benefited everyone. Human Resources Development Minister Sibal promised both Houses during the passage of the amendment that he would revisit this, and let’s hope he does so — especially for our libraries and our second-hand book stores, and for the students and disabled amongst us.

The writer is at the Centre for Internet and Society, Bangalore. sunil@cis-india.org

Click to read the original published by Business Standard.

For more details visit https://cis-india.org/a2k/copyright-amendment

Copyright Amendment Bill in Parliament

nirmita — 2011-08-30T09:26:44Z

The Copyright Amendment Bill is expected to be presented in the Rajya Sabha by the Minister for Human Resource and Development, Kapil Sibal today afternoon. The much awaited Bill (since it has been in the offing since 2006) has undergone significant changes since its initial appearance.

Given below is a very quick first cut highlight of the Bill from a public interest perspective. A more detailed analysis will follow after the session discussions.

Parallel imports: The parallel imports clause which had been put in as sec 2(m) has now been dropped from the present draft. This is a big setback because educational institutions, libraries and archives, second hand book, etc., were looking to this provision to bring down the prices and hasten the availability of books. This also affects persons with disabilities since they will be unable to import books in accessible formats.
Persons with disabilities: There are two provisions relating to persons with disabilities which have been introduced. Section 52 (1) (zb) relates to the conversion, reproduction, issues of copies or communication to the public of any work in any accessible format, provided that these activities are meant to enable access to persons with disabilities and sufficient safeguards are taken to ensure that these materials do not enter the mainstream market. This section in a sense is broader and more encompassing than some provisions found in other countries, which relate exclusively to the blind or visually impaired. This section would adequately cover persons with other disabilities who cannot read print. A new section 31B also provides for compulsory licensing for profit entities wishing to convert and distribute works in accessible formats, provided that they are primarily working for persons with disabilities and are registered under sec 12A of the Income Tax Act or under chapter X of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
Many exceptions under 52 (1) (i) relating to fair dealing have been extended to all works except computer programmes. New sections 52 (1) (b) and (c) protect transient and incidental storage from being classified as infringing copies, which offers protection to entities such as online intermediaries.
The scope of compulsory licensing under sec 31 has been expanded from ‘any Indian work’ to ‘any work’. Three new sections 31 B, 31C and 31 D have been introduced. Section 31 B has already been described in the paragraph on persons with disabilities. Section 31 C lays down strict measures relating to statutory licensing in case of cover version, being a sound recording of a literary, dramatic or musical work. Section 31 D relates to statutory licenses for broadcasting organizations wishing to broadcast a literary or musical work or sound recording.
Non commercial public libraries can now store electronic copies of any non digital works they own (52(n)).
The new Bill introduces Technological protection measures (65A and 65B) and makes circumvention and distribution of works in which rights managements systems have been removed an offence which is punishable with imprisonment upto two years as well as fine. In addition the copyright owner can also avail of civil remedies. As such India is not really required to have these provisions in the copyright legislation since we are not yet a signatory to the WCT or the WPPT and such provisions will hamper consumer interests.
Terms of copyright have been increased significantly without reason, thus preventing works from falling into the public domain. For instance, the term of photographs has been increased from 60 years to life of the photographer plus 60 years. This is far in excess of the minimum term stipulated by international treaties.

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

Converting from nonUnicode (Nudi, Baraha, ...) font encoding to Unicode Kannada

pavanaja — 2016-10-23T15:36:25Z

People have been using computers for typing and printing Kannada text for more than 25 years. Most of the usage of Kannada on computers was limited to the DTP arena.

People made use of packages like PageMaker (Version 6.5 or 7) to type and compose pages. Even now, many people still use these packages for Kannada DTP work. The text entered into these packages is stored as font glyph codes rather than character encodings. Non-Unicode truetype fonts like Nudi, Baraha, ShreeLipi, Akruti, etc, are some of the most popular fonts being used.

The system does not understand these characters as Kannada characters. Any text based operations like search, replace, sorting, spell-check, text-to-speech, etc, are not possible with this kind of text. Employing Unicode for all digitisation works of Kannada text solves this problem. Usage of Unicode for Kannada has become prominent only recently. All websites like Facebook, Twitter, Wikipedia, Wikisource, etc, want the text only in Unicode. There is still a large amount of text entered and stored with old non-Unicode font based encodings. These are mostly present in the form of PageMaker files. This blog post explains the process of converting the text present in PageMaker into Kannada Unicode text.

The Kannada and Culture Department of the Government of Karnataka have released Unicode complaint open-type fonts and Unicode based software for Kannada under GPL. These are available for free download on their website (http://kannadasiri.co.in/index/software). Download and
install “Ascii to Unicode Kannada Converter” from this page. This software works only in Windows. Now you are ready to convert the text from PageMaker file into Unicode.

Open the PageMaker file. Select the Text tool depicted by a big “T” shaped icon. Click anywhere in the text area. Select the entire text (Ctrl-A followed by Ctrl-C). Now open Notepad and paste this text into that (press Ctrl-V). The text will appear gibberish in Notepad. Don’t worry about it. Save the file as plain text file (.TXT file). Remember where you have saved the file.

Now run the “Kannada ASCII Unicode Converter” software. In the first textbox enter the name of the ASCII file to be converted (the file you just saved from Notepad). In the bottom textbox enter a filename for the Unicode text file that will be created by the software. Select the default “GOK (Kuvempu Nudi Baraha)”, or other encoding as the case may be, as the encoding from which the text has to be converted. Click on the button written “ಪರಿವರ್ತಿಸಿ”. It will show the progress of conversion.

Once the conversion is complete, it will display an appropriate message to indicate completion of the conversion. If you open the text file created by the software, it will have the text converted into Unicode. This text can be used in Wikisource, Wikipedia, etc.

For more details visit https://cis-india.org/openness/blog-old/converting-from-non-unicode-nudi-baraha-font-encoding-to-unicode-kannada

Continuing community engagement: Communities of interest and Quarrying

Manasa Rao — 2017-05-19T15:23:28Z

In telling the stories of Indian Wikipedians, we bring to you the story of Dr. Diptanshu Das, a doctor and avid Wikipedian, working with WikiProject Medicine who recently approached CIS-A2K with a technical request.

CIS-A2K has always believed in continuing our engagement with the communities and individuals we work with. This year in particular has been special to us thanks to our Train The Trainer alumni steadily achieving the goals they set out to achieve and continuing their Wiki journeys with more vigour. It is especially significant to us when our alumni come back to our resource and idea exchange platform to help develop their pet projects. For the first time, one such alumnus, Dr. Diptanshu Das, a doctor by profession and avid Wikipedian approached us in April 2017 with a request to our technical team. He wanted to know the number of articles that were tagged in both Category:WikiProject Pharmacology and Category:All WikiProject Medicine.

To provide some context, WikiProjects are generally article development projects undertaken by groups of editors on Wikipedia whose aim it is to achieve goals on specific topics and subjects on Wikipedia. For example, WikiProject Medicine manages and helps curate medical articles on Wikipedia. Similarly, WikiProject Pharmacology states that it "coordinates the development of Wikipedia articles and lists relating to the pharmacology and science of medications and other pharmacology-related topics." Working to define clearer guidelines for WikiProject Medicine of which he is a member, Dr. Das intended to find out how many articles were listed under WikiProject Pharmacology that were also tagged under WikiProject Medicine. As these two are closely related topics, the former being a sub-specialty of the latter, he felt it could cause an overlap which would mean that most of the sub-specialty articles would get lost in the "parent" category i.e. WikiProject Medicine.

CIS-A2K ran Dr. Das' request on Quarry, a public querying interface that lets one raise queries regarding databases in addition to managing them as an SQL(Structured Query Language) software would. Dr. Das had begun discussions with fellow Wikipedians to get their thoughts on the matter and wanted to provide data-specific points but was unable to gather consensus on developing a guideline. However, when CIS-A2K reported back to him, he realized that the overlap was not as significant as he had feared. WikiProject Medicine had 34,475 articles, WikiProject Pharmacology had 10,721 articles; only 2002 of these were tagged in both. Dr. Das, while relieved, believes that sub-specialty tagging would go a long way in helping improve articles such as those of WikiProject Pharmacology, many of which are still in Start and Stub classes.

"While collaborating on wiki is always good, it is important that an organization like CIS contributes its expertize," he says. CIS-A2K's presence as an idea exchange platform hopes to generate debate and discussions in addition to the physical resources and support we provide to communities. Dr. Das is also of the opinion that domain knowledge experts could make a real difference to Wikipedia by engaging with or creating WikiProjects that are specific to their interests and collaborate with other free knowledge champions around the world. CIS-A2K has attempted to encourage such communities of interest in the past so as to find an easier way to engage members of the general public and educational institutions as they are more likely to edit Wikipedia articles based on their personal hobbies and interests.

If you have requests for us please post them here or email Tito Dutta at tito@cis-india.org.

For more details visit https://cis-india.org/a2k/blogs/continuing-community-engagement-communities-of-interest-and-quarrying

Contestations of Data, ECJ Safe Harbor Ruling and Lessons for India

jyoti — 2015-10-14T14:40:08Z

The European Court of Justice has invalidated a European Commission decision, which had previously concluded that the 'Safe Harbour Privacy Principles' provide adequate protections for European citizens’ privacy rights for the transfer of personal data between European Union and United States. The inadequacies of the framework is not news for the European Commission and action by ECJ has been a long time coming. The ruling raises important questions about how the claims of citizenship are being negotiated in the context of the internet, and how increasingly the contestations of personal data are being employed in the discourse.

The European Court of Justice (ECJ) has invalidated a European Commission (EC) decision¹ which had previously concluded that the 'Safe Harbor Privacy Principles'² provide adequate protections for European citizens’ privacy rights³ for the transfer of personal data between European Union and United States. This challenge stems from the claim that public law enforcement authorities in America obtain personal data from organisations in safe harbour for incompatible and disproportionate purposes in violation of the Safe Harbour Privacy Principles. The court's judgment follows the advice of the Advocate General of the Court of Justice of the European Union (CJEU) who recently opined⁴ that US practices allow for large-scale collection and transfer of personal data belonging to EU citizens without them benefiting from or having access to judicial protection under US privacy laws. The inadequacies of the framework is not news for the Commission and action by ECJ has been a long time coming. The ruling raises important questions about how increasingly the contestations of personal data are being employed in asserting claims of citizenship in context of the internet.

As the highest court in Europe, the ECJ's decisions are binding on all member states. With this ruling the ECJ has effectively restrained US firms from indiscriminate collection and sharing of European citizens’ data on American soil. The implications of the decision are significant, because it shifts the onus of evaluating protections of personal data for EU citizens from the 4,400 companies⁵ subscribing to the system onto EU privacy watchdogs. Most significantly, in addressing the rights of a citizen against an established global brand, the judgement goes beyond political and legal opinion to challenge the power imbalance that exists with reference to US based firms.

Today, the free movement of data across borders is a critical factor in facilitating trade, financial services, governance, manufacturing, health and development. However, to consider the ruling as merely a clarification of transatlantic mechanisms for data flows misstates the real issue. At the heart of the judgment is the assessment whether US firms apply the tests of ‘necessity and proportionality’ in the collection and surveillance of data for national security purposes. Application of necessity and proportionality test to national security exceptions under safe harbor has been a sticking point that has stalled the renegotiation of the agreement that has been underway between the Commission and the American data protection authorities.⁶

For EU citizens the stake in the case are even higher, as while their right to privacy is enshrined under EU law, they have no administrative or judicial means of redress, if their data is used for reasons they did not intend. In the EU, citizens accessing and agreeing to use of US based firms are presented with a false choice between accessing benefits and giving up on their fundamental right to privacy. In other words, by seeking that governments and private companies provide better data protection for the EU citizens and in restricting collection of personal data on a generalised basis without objective criteria, the ruling is effectively an assertion of ‘data sovereignty’. The term ‘data sovereignty’, while lacking a firm definition, refers to a spectrum of approaches adopted by different states to control data generated in or passing through national internet infrastructure.⁷ Underlying the ruling is the growing policy divide between the US and EU privacy and data protection standards, which may lead to what is referred to as the balkanization⁸ of the internet in the future.

US-EU Data Protection Regime

The safe harbor pact between the EU and US was negotiated in the late 1990s as an attempt to bridge the different approaches to online privacy. Privacy is addressed in the EU as a fundamental human right while in the US it is defined under terms of consumer protection, which allow trade-offs and exceptions when national security seems to be under threat. In order to address the lower standards of data protection prevalent in the US, the pact facilitates data transfers from EU to US by establishing certain safeguards equivalent to the requirements of the EU data protection directive. The safe harbor provisions include firms undertaking not to pass personal information to third parties if the EU data protection standards are not met and giving users right to opt out of data collection.⁹

The agreement was due to be renewed by May 2015¹⁰ and while negotiations have been ongoing for two years, EU discontent on safe harbour came to the fore following the Edward Snowden revelations of collection and monitoring facilitated by large private companies for the PRISM program and after the announcement of the TransAtlantic Trade and Investment Partnership (TTIP).¹¹ EU member states have mostly stayed silent as they run their own surveillance programs often times, in cooperation with the NSA. EU institutions cannot intervene in matters of national security however, they do have authority on data protection matters. European Union officials and Members of Parliament have expressed shock and outrage at the surveillance programs unveiled by Snowden's 2013 revelations. Most recently, following the CJEU Advocate General’s opinion, 50 Members of European Parliament (MEP) sent a strongly worded letter the US Congress hitting back on claims of ‘digital protectionism’ emanating from the US¹². In no uncertain terms the letter clarified that the EU has different ideas on privacy, platforms, net neutrality, encryption, Bitcoin, zero-days, or copyright and will seek to improve and change any proposal from the EC in the interest of our citizens and of all people.

Towards Harmonization

In November 2013, as an attempt to minimize the loss of trust following the Snowden revelations, the European Commission (EC) published recommendations in its report on 'Rebuilding Trust is EU-US Data Flows'.¹³ The recommendations revealed two critical initiatives at the EU level—first was the revision of the EU-US safe harbor agreement¹⁴ and second the adoption of the 'EU-US Umbrella Agreement¹⁵'—a framework for data transfer for the purpose of investigating, detecting, or prosecuting a crime, including terrorism. The Umbrella Agreement was recently initialed by EU and US negotiators and it only addresses the exchange of personal data between law enforcement agencies.¹⁶ The Agreement has gained momentum in the wake of recent cases around issues of territorial duties of providers, enforcement jurisdictions and data localisation.¹⁷ However, the adoption of the Umbrella Act depends on US Congress adoption of the Judicial Redress Act (JRA) as law.¹⁸

Judicial Redress Act

The JRA is a key reform that the EC is pushing for in an attempt to address the gap between privacy rights and remedies available to US citizens and those extended to EU citizens, including allowing EU citizens to sue in American courts. The JRA seeks to extend certain protections under the Privacy Act to records shared by EU and other designated countries with US law enforcement agencies for the purpose of investigating, detecting, or prosecuting criminal offenses. The JRA protections would extend to records shared under the Umbrella Agreement and while it does include civil remedies for violation of data protection, as noted by the Center for Democracy and Technology, the present framework does not provide citizens of EU countries with redress that is at par with that which US persons enjoy under the Privacy Act.¹⁹

For example, the measures outlined under the JRA would only be applicable to countries that have outlined appropriate privacy protections agreements for data sharing for investigations and ‘efficiently share’ such information with the US. Countries that do not have agreements with US cannot seek these protections leaving the personal data of their citizens open for collection and misuse by US agencies. Further, the arrangement leaves determination of 'efficiently sharing' in the hands of US authorities and countries could lose protection if they do not comply with information sharing requests promptly. Finally, JRA protections do not apply to non-US persons nor to records shared for purposes other than law enforcement such as intelligence gathering. JRA is also weakened by allowing heads of agencies to exercise their discretion to seek exemption from the Act and opt out of compliance.

Taken together the JRA, the Umbrella Act and the renegotiation of the Safe Harbor Agreement need considerable improvements. It is worth noting that EU’s acceptance of the redundancy of existing agreements and in establishing the independence of national data protection authorities in investigating and enforcing national laws as demonstrated in the Schrems and in the Weltimmo²⁰ case point to accelerated developments in the broader EU privacy landscape.

Consequences

The ECJ Safe Harbor ruling will have far-reaching consequences for the online industry. Often, costly government rulings solidify the market dominance of big companies. As high regulatory costs restrict the entrance of small and medium businesses the market, competition is gradually wiped out. Further, complying with high standards of data protection means that US firms handling European data will need to consider alternative legal means of transfer of personal data. This could include evolving 'model contracts' binding them to EU data protection standards. As Schrems points out, “Big companies don’t only rely on safe harbour: they also rely on binding corporate rules and standard contractual clauses.”²¹

The ruling is good news for European consumers, who can now approach a national regulator to investigate suspicions of data mishandling. EU data protection regulators may be be inundated with requests from companies seeking authorization of new contracts and with consumer complaints. Some are concerned that the ruling puts a dent in the globalized flow of data²², effectively requiring data localization in Europe.²³ Others have pointed out that it is unclear how this decision sits with other trade treaties such as the TPP that ban data localisation.²⁴ While the implications of the decision will take some time in playing out, what is certain is that US companies will be have to restructure management, storage and use of data. The ruling has created the impetus for India to push for reforms to protect its citizens from harms by US firms and improve trade relations with EU.

The Opportunity for India

Multiple data flows taking place over the internet simultaneously and that has led to ubiquity of data transfers o ver the Internet, exposing individuals to privacy risks. There has also been an enhanced economic importance of data processing as businesses collect and correlate data using analytic tools to create new demands, establish relationships and generate revenue for their services. The primary concern of the Schrems case may be the protection of the rights of EU citizens but by seeking to extend these rights and ensure compliance in other jurisdictions, the case touches upon many underlying contestations around data and sovereignty.

Last year, Mr Ram Narain, India Head of Delegation to the Working Group Plenary at ITU had stressed, “respecting the principle of sovereignty of information through network functionality and global norms will go a long way in increasing the trust and confidence in use of ICT.”²⁵ In the absence of the recognition of privacy as a right and empowering citizens through measures or avenues to seek redressal against misuse of data, the demand of data sovereignty rings empty. The kind of framework which empowered an ordinary citizen in the EU to approach the highest court seeking redressal based on presumed overreach of a foreign government and from harms abetted by private corporations simply does not exist in India. Securing citizen’s data in other jurisdictions and from other governments begins with establishing protection regimes within the country.

The Indian government has also stepped up efforts to restrict transfer of data from India including pushing for private companies to open data centers in India.²⁶ Negotiating data localisation does not restrict the power of private corporations from using data in a broad ways including tailoring ads and promoting products. Also, data transfers impact any organisation with international operations for example, global multinationals who need to coordinate employee data and information. Companies like Facebook, Google and Microsoft transfer and store data belonging to Indian citizens and it is worth remembering that the National Security Agency (NSA) would have access to this data through servers of such private companies. With no existing measures to restrict such indiscriminate access, the ruling purports to the need for India to evolve strong protection mechanisms. Finally, the lack of such measures also have an economic impact, as reported in a recent Nasscom-Data Security Council of India (DSCI) survey²⁷ that pegs revenue losses incurred by the Indian IT-BPO industry at $2-2.5 billion for a sample size of 15 companies. DSCI has further estimated that outsourcing business can further grow by $50 billion per annum once India is granted a “data secure” status by the EU.²⁸ EU’s refusal to grant such a status is understandable given the high standard of privacy as incorporated under the European Union Data Protection Directive a standard to which India does not match up, yet. The lack of this status prevents the flow of data which is vital for Digital India vision and also affects the service industry by restricting the flow of sensitive information to India such as information about patient records.

Data and information structures are controlled and owned by private corporations and networks transcend national borders, therefore the foremost emphasis needs to be on improving national frameworks. While, enforcement mechanisms such as the Mutual Legal Assistance Treaty (MLAT) process or other methods of international cooperation may seem respectful of international borders and principles of sovereignty,²⁹ for users that live in undemocratic or oppressive regimes such agreements are a considerable risk. Data is also increasingly being stored across multiple jurisdictions and therefore merely applying data location lens to protection measures may be too narrow. Further it should be noted that when companies begin taking data storage decisions based on legal considerations it will impact the speed and reliability of services.³⁰ Any future regime must reflect the challenges of data transfers taking place in legal and economic spaces that are not identical and may be in opposition. Fundamentally, the protection of privacy will always act as a barrier to the free flow of information even so, as the Schrems case ruling points out not having adequate privacy protections could also restrict flow of data, as has been the case for India.

The time is right for India to appoint a data controller and put in place national frameworks, based on nuanced understanding of issues of applying jurisdiction to govern users and their data. Establishing better protection measures will not only establish trust and enhance the ability of users to control data about themselves it is also essential for sustaining economic and social value generated from data generation and collection. Suggestions for such frameworks have been considered previously by the Group of Experts on Privacy constituted by the Planning Commission.³¹ By incorporating transparency in mechanisms for data and access requests and premising requests on established necessity and proportionality Indian government can lead the way in data protection standards. This will give the Indian government more teeth to challenge and address both the dangers of theft of data stored on servers located outside of India and restrain indiscriminate access arising from terms and conditions of businesses that grant such rights to third parties.

1 Commission Decision of 26 July 2000 pursuant to Directive 95/46/EC of the European Parliament and of the Council on the adequacy of the protection provided by the safe harbour privacy principles and related frequently asked questions issued by the US Department of Commerce (notified under document number C(2000) 2441) (Text with EEA relevance.) Official Journal L 215 , 25/08/2000 P. 0007 -0047 2000/520/EC: http ://eur -lex .europa .eu /LexUriServ /LexUriServ .do ?uri =CELEX :32000 D 0520:EN :HTML

2 Safe Harbour Privacy Principles Issued by the U.S. Department of Commerce on July 21, 2000 http ://www .export .gov /safeharbor /eu /eg _main _018475.asp

3 Megan Graham, Adding Some Nuance on the European Court ’s Safe Harbor Decision , Just security

https ://www .justsecurity .org /26651/adding -nuance -ecj -safe -harbor -decision /

4 Advocate General’s Opinion in Case C-362/14 Maximillian Schrems v Data Protection Commissioner Court of Justice of the European Union, Press Release, No 106/15 Luxembourg, 23 September 2015 http ://curia .europa .eu /jcms /upload /docs /application /pdf /2015-09/cp 150106 en .pdf

5 Jennifer Baker, ‘EU desperately pushes just-as-dodgy safe harbour alternatives’, The Register, October 7, 2015 http ://www .theregister .co .uk /2015/10/07/eu _pushes _safe _harbour _alternatives /

6 Draft Report, General Data Protection Regulation, Committee on Civil Liberties, Justice and Home Affairs, European Parliament, 2009-2014 http ://www .europarl .europa .eu /meetdocs /2009_2014/documents /libe /pr /922/922387/922387 en .pdf

7 Dana Polatin-Reuben, Joss Wright, ‘An Internet with BRICS Characteristics: Data Sovereignty and the Balkanisation of the Internet’, University of Oxford, July 7, 2014 https ://www .usenix .org /system /files /conference /foci 14/foci 14-polatin -reuben .pdf

8 Sasha Meinrath, The Future of the Internet: Balkanization and Borders, Time, October 2013 http ://ideas .time .com /2013/10/11/the -future -of -the -internet -balkanization -and -borders /

9 Safe Harbour Privacy Principles, Issued by the U.S. Department of Commerce, July 2001 http ://www .export .gov /safeharbor /eu /eg _main _018475.asp

10 Facebook case may force European firms to change data storage practices, The Guardian, September 23, 2015 http ://www .theguardian .com /us -news /2015/sep /23/us -intelligence -services -surveillance -privacy

11 Privacy Tracker, US-EU Safe Harbor Under Pressure, August 2, 2013 https ://iapp .org /news /a /us -eu -safe -harbor -under -pressure

12 Kieren McCarthy, Privacy, net neutrality, security, encryption ... Europe tells Obama, US Congress to back off, The Register, 23 September, 2015 http ://www .theregister .co .uk /2015/09/23/european _politicians _to _congress _back _off /

13 Communication from the Commission to the European Parliament and the Council, Rebuilding Trust in EU-US Data Flows, European Commission, November 2013 http ://ec .europa .eu /justice /data -protection /files /com _2013_846_en .pdf

14 Safe Harbor on trial in the European Union, Access Blog, September 2014 https ://www .accessnow .org /blog /2014/11/13/safe -harbor -on -trial -in -the -european -union

15 European Commission - Fact Sheet Questions and Answers on the EU-US data protection "Umbrella agreement", September 8, 2015 http ://europa .eu /rapid /press -release _MEMO -15-5612_en .htm

16 McGuire Woods, ‘EU and U.S. reach “Umbrella Agreement” on data transfers’, Lexology, September 14, 2015 http ://www .lexology .com /library /detail .aspx ?g =422 bca 41-2 d 54-4648-ae 57-00 d 678515 e 1 f

17 Andrew Woods, Lowering the Temperature on the Microsoft-Ireland Case, Lawfare September, 2015 https ://www .lawfareblog .com /lowering -temperature -microsoft -ireland -case

18 Jens-Henrik Jeppesen, Greg Nojeim, ‘The EU-US Umbrella Agreement and the Judicial Redress Act: Small Steps Forward for EU Citizens’ Privacy Rights’, October 5, 2015 https ://cdt .org /blog /the -eu -us -umbrella -agreement -and -the -judicial -redress -act -small -steps -forward -for -eu -citizens -privacy -rights /

19 Ibid 18.

20 Landmark ECJ data protection ruling could impact Facebook and Google, The Guardian, 2 October, 2015 http ://www .theguardian .com /technology /2015/oct /02/landmark -ecj -data -protection -ruling -facebook -google -weltimmo

21 Julia Powles, Tech companies like Facebook not above the law, says Max Schrems, The Guardian, Octover 9, 2015 http ://www .theguardian .com /technology /2015/oct /09/facebook -data -privacy -max -schrems -european -court -of -justice

22 Adam Thierer, Unintended Consequences of the EU Safe Harbor Ruling, The Technology Liberation Front, October 6, 2015 http ://techliberation .com /2015/10/06/unintended -consequenses -of -the -eu -safe -harbor -ruling /#more -75831

23 Anupam Chander, Tweeted ECJ #schrems ruling may effectively require data localization within Europe, https ://twitter .com /AnupamChander /status /651369730754801665

24 Lokman Tsui, Tweeted, “If the TPP bans data localization, but the ECJ ruling effectively mandates it, what does that mean for the internet?” https ://twitter .com /lokmantsui /status /651393867376275456

25 Statement from Indian Head of Delegation, Mr Ram Narain for WGPL, Indian statement on ITU and Internet at the Working Group Plenary November 4, 2014 https ://ccgnludelhi .wordpress .com /author /asukum 87/page /2/

26 Sounak Mitra, Xiaomi bets big on India despite problems, Business Standard, December 2014 http ://www .business -standard .com /article /companies /xiaomi -bets -big -on -india -despite -problems -114122201023_1.html

27 Neha Alawadi, Ruling on data flow between EU & US may impact India’s IT sector, Economic Times,October 7, 2015 http ://economictimes .indiatimes .com /articleshow /49250738.cms ?utm _source =contentofinterest &utm _medium =text &utm _campaign =cppst

28 Pranav Menon, Data Protection Laws in India and Data Security- Impact on India and Data Security-Impact on India - EU Free Trade Agreement, CIS Access to Knowledge, 2011 http ://cis -india .org /a 2 k /blogs /data -security -laws -india .pdf

29 Surendra Kumar Sinha, India wants Mutual Legal Assistance treaty with Bangladesh, Economic Times, October 7, 2015 http ://economictimes .indiatimes .com /articleshow /49262294.cms ?utm _source =contentofinterest &utm _medium =text &utm _campaign =cppst

30 Pablo Chavez, Director, Public Policy and Government Affairs, Testifying before the U.S. Senate on transparency legislation, November 3, 2013 http ://googlepublicpolicy .blogspot .in /2013/11/testifying -before -us -senate -on .htm

31 Report of the Group of Experts on Privacy (Chaired by Justice A P Shah, Former Chief Justice, Delhi High Court), Planning Commission, October 2012 http ://planningcommission .nic .in /reports /genrep /rep _privacy .pdf

For more details visit https://cis-india.org/internet-governance/blog/contestations-of-data-ecj-safe-harbor-ruling-and-lessons-for-india

Content Donation Sessions with Authors

subodh — 2019-04-10T01:28:21Z

CIS-A2K has adopted an integrated approach towards knowledge generation in Marathi language. With the involvement of various stakeholders in different programmes, CIS-A2K facilitated a comprehensive workshop for publishers, printers, designers and writers on 7 September 2018.

The State Govt. Language department, All India Marathi Literary Body & All India Marathi Publishers Consortium took the lead to organize this workshop. In this workshop, noted authors Sunilkumar Lawate and Laxmikant Deshmukh expressed their willingness to donate their books to Wikimedia projects. The awareness about content donation was spread among the writers' community through this workshop.

Objectives

To promote the concept of content donation in Wikimedia projects
To develop repository of reference books on Commons & Wikisource
To facilitate organizations working in developmental sector for developing open knowledge on internet

Report

To promote Marathi language, Marathi language fortnight (1-15 January) and Marathi Day (27 February) was celebrated in Maharashtra. CIS-A2K organized various events on this occasion with state government, publishers, writers and other stakeholders in knowledge business. Some of the authors responded to the appeal to donate their literature in public domain. The following content donations were received in February and March 2019.

Book on Home Composting

Kaustubh Tamhankar, an active citizen from Thane is promoting innovative home composting methods for zero garbage. He has produced some manuals and videos on the process. As the awareness about environment friendly lifestyle is increasing, the author thought of releasing the first manual on Commons. CIS-A2K community advocate (CA) trained him in basics of Wikipedia and Commons. He completed the OTRS process and uploaded the book on zero garbage. He has planned to upload some more manuals and videos in future.

Books by Sunilkumar Lawate

Pictured above: Cover page of the book 'V. S. Khandekar Biography' by Sunilkumar Lawate

Prof. Sunilkumar Lawate is an educationist, social activist and writer in Maharashtra. He participated in the FOSS & Wikimedia workshop conducted in September 2018. He approached CIS-A2K for release of his books in CC-BY-SA on the occasion of Marathi Day on 27 February. CA trained the author in copyrights, Commons upload process and OTRS process in the session held at Kolhapur on 27 February. Prof. Lawate uploaded his 21 books on Commons. These are reference value books on education, child rights, literature, autobiographies, social issues and classic literature. The newspapers covered this event as feature of Marathi day. Because of good media coverage, many responses from other authors in Maharashtra have been received for content donation.

Books by Lek Ladaki Abhiyan

We all know that vast amount of training materials and case studies are produced in development sector. But it is not available to society at large. It is restricted to NGOs, funding agencies, etc. for project period. If it is brought in Wikimedia, it will be searchable for all and will be linked to various articles also as reference resource. CIS-A2K is approaching several such organizations for content donations. CIS-A2K received positive response from Adv. Varsha Deshpande, President of Lek Ladaki Abhiyan, Satara about bridging gender gap activities on Wikimedia projects. Lek Ladaki Abhiyan (LLA) is one of the most active organizations working on Women's issues in Maharashtra. The activities cover wide range of issues viz. stopping child marriages, counselling workshops for adolescents, pre-marriage counselling, child labour issues, legal aid to women facing violence, sting operations for exposing cases of female foeticide, hostel for girls etc.

LLA organization is involved in content generation on women's issues for the last two years with the support of CIS-A2K. The process proved useful for the members and other participants. On the occasion of Women's day on 9th March, LLA re-licensed 8 books and uploaded on Commons. The convener Adv. Varsha Deshpande has authored 6 books. She has taken this noble initiative. The content is spreading across beneficiaries and getting good feedback also. The books cover all the issues mentioned above. The articles created in women's day workshop and books donated by this organization have contributed to reduction in gender gap. LLA would like to lead the movement with other like-minded organizations in urban, rural, tribal areas to facilitate the open knowledge generation on women's issues.

Books by Laxmikant Deshmukh

Laxmikant Deshmukh is former IAS and writer in Maharashtra. He was president of All India Marathi Literary Festival in 2017 at Badoda. He was co-organizer for the FOSS & Wikimedia workshop conducted in September 2018. From that event, he has been promoting open knowledge concept and Wikimedia projects. The training session at Pune was held on 16 March for re-licensing his 4 works. The books are on socio-economic issues of Maharashtra.

Link to the Wikipedia page report here

For more details visit https://cis-india.org/a2k/blogs/content-donation-sessions-with-authors