Centre for Internet and Society

Non Unicode ISCII Text Can be Converted to Unicode Now!

subha — 2012-12-21T09:59:18Z

Odia Wikipedian Manoj Sahukar has designed a new tool which can convert non Unicode ISCII text to Odia Unicode text. A majority of the digitized text and web content of newspapers and books are in non unicode text which now could be used for Wikipedia and other Odia Wiki projects. This opens a new arena for digitized free license books in Odia language.

Akruti Sarala is a known name in Odisha. Every single DTP operator who knows typing uses this font. Until now thousands of books have been created using this font. Even today many mainstream newspapers and magazines use this font for typing. Sadly, no one ever realized the content they are creating would be useless when it comes to sharing and reusing, especially on internet. Because, internet accepts a universal standard called "Unicode" for all the languages. When a book is limited only for printing purpose then use of non Unicode font is absolutely of no problem. But, when one copies text from an e-book created using non Unicode fonts (e.g. Sarala) and pastes it elsewhere strange characters gets displayed instead of Odia characters. This is the same situation for all other non-Latin languages.

Why this happens?

Non Unicode fonts use a funny technique. English/Roman characters are removed and Indian (or any other Non-Latin language) language characters are inserted instead of English characters. So, when you type any key from your keyboard the corresponding Indian language character displays instead of the English character. When you have a particular non Unicode font installed this technique works effectively. But, imagine when you don't have the font in your computer! By default it will show the English characters.

How Unicode fonts work?

Unicode fonts contain Indian language characters along with English characters. There is no character/glyph displacement. It is a global standard and fixed by The Unicode Consortium for all the languages. When one text is typed in an Indian language it displays the same character on Ubuntu, Windows or Mac operating system. As most of the operating systems come with Unicode fonts included there is nothing to be worried for installing them again.

How it got started?

Manoj Sahukar, a third year mechanical engineering student who is very enthusiast about the Odia science articles found Odia Wikipedia and realized that the volunteers are working so hard to write content which could actually be simplified rather than merely writing the same content. There are many science articles which he wanted to read on Wikipedia were not there. Then he realized the gap of the the non availability of Unicode content. This is also one more reason Google doesn't have a button for Odia unlike some of the other Indian languages. "Nothing could be such open and great platform like Odia Wikiepdia if one is searching content in Odia language. My tool is dedicated to the Odia Wikipedians who have been working hard for my language", expressed Manoj in the release note. He shared his interest and ideas with Odia Wikipedian Jnanaranjan Sahu and started working on building a tool which could convert the available science articles of Bigyana Diganta (a sciene magazine published in Odia language by Orissa Bigyana Academy) into Unicode. There are many articles which could be used for reference and some of the free content for WikiSource or WikiBooks. Finally he released his tool on internet on 12.12.12, the last one of the repeating dates of this century. It is still in its beta stage and Manoj is working on making it more user friendly. He is also keen on organizing technical events which will bring more individuals to create such open source tools. "My next target is developing OCR (Optical character recognition) software in Odia", says an excited Manoj.

What this tool does?

This tool could be used to convert text typed in non Unicode ISCII fonts to Odia Unicode text. The detailed procedure for using this tool and Unicode conversion is explained in a tutorial on Odia Wikipedia. The tool is released under GFDL license and is available for download on SourceForge.

Non Unicode text being copied from a PDF

Unicode font after conversion

Quick links:

Download from here
Project page on SourceForge: https://sourceforge.net/p/odiaconverter
Tutorial and technical description on Odia Wikipedia: http://or.wikipedia.org/s/cvm
Odia Unicode standard: Odia Unicode code chart

Manoj Sahukar talks about his ideas about the usability of Odia Unicode Converter tool

For more details visit https://cis-india.org/openness/blog-old/non-unicode-iscii-text-can-be-converted-to-unicode

Not Just Fancy Television

nishant — 2015-04-24T11:45:14Z

Nishant Shah reviews Ben Hammersley's book "64 Things You Need to Know for Then: How to Face the Digital Future Without Fear ", published by Hodder & Stoughton

The review was published in the Indian Express on December 8, 2012.

Let us begin by acknowledging that when the world was learning how to drive on the information highway, Ben Hammersley was out there, instructing us how to do it best. So it doesn’t surprise that 64 Things You Need to Know for Then: How to Face the Digital Future Without Fear, despite its untweetable title, is quite spot-on when it comes to describing our digital pasts, demystifying our interweb presents and preparing us for technosocial futures. Well-written, interspersed with illustrative anecdotes, reflective experiences and speculative ideas, the book looks at the good, the bad and the downright bizarre that the digital turn has introduced in our lives. Working through moments of nostalgia for things that have already become obsolete, and through experiences that morph even before we can comprehend them, Hammersley writes (or, as he suggests in his introduction — co-writes with hundreds of anonymous contributors) a book that is readable, for those seeking to understand how the digital world moves and those who want to remember their own role in shaping forgotten trends.

The book also attempts to answer some of the troublesome tensions in our understanding of our contemporary digital lives. Hammersley’s basic intention in writing the book is to show how technological shifts are not merely about changing usage patterns. It radically (and often dramatically) restructures our domains of life, language and labour. Older structures have become redundant and the new ones have not yet found their feet. There are many who attempt to think of the internet as a mere extension of older media practices. But as he says, “The internet is absolutely not just fancy television.” It is a technology that is reshaping everything we had understood about who we are and how we relate to the world around us.

However, Hammersley suggests, the ways in which the internet is rapidly transforming the world leads to a clear divide around technology literacy. The “technologically literate” are shaping the digital turn, experimenting and exploring the possibilities, but unable to fall back upon older structures of assurance to know whether the choices they are making are sustainable. At the same time, the “technologically illiterate” are still responsible for shaping a world that they are quickly losing track of.

This book clearly explains the technological, legal, cultural, social and economic shifts of the last 20 years, and how they foretell our futures, without complicating it with geeky discourses on code or theoretical bluster.

Hammersley also ensures that the book is not merely a glossary of terms. He has the most interesting anecdotes from around the world like Harry Potter fan-fiction and crowdsourced translations in Germany challenging intellectual property rights regimes, the Human Flesh Search Engines in China, which threaten to reinforce regressive mob politics while also enabling cultural vigilantes in our societies. He also goes beyond individual concerns and reflects on the larger political concerns of censorship, control and freedom, discussing with great lucidity, the complicated nuances of hacker groups like Anonymous, political effects of collectives like WikiLeaks, etc. It is an exciting mash-up of events that will make you smile at the audacity and irreverence of the players in the digital playground, but will also make you shiver as it lays bare the new authoritarian and violent regimes that emerge with digital technologies.

Instead of taking partisan positions about something as necessarily good or bad, Hammersley documents some of the practices, effects and affects of technology, to show how our world has changed. There is no explanation of why the list stops at 64 things. But it is a well curated list of social, cultural, economic and political concerns and provides a conversational account of the present and future, speculating, like an old friend on the living room couch on a Sunday afternoon.

The only criticism against Hammersley is that he is too dependent on the rules of the internet to explain the internet. The different laws that have evolved in computing and network theory, in the sociology of the Web and the economic analysis of information societies, are accepted too easily, and used as self-evident explanatory frameworks. But then, this is not a book pretending to argue for a new conceptual framework. It is a book that has set out to educate and entertain, slowly unfolding the fractured narratives of the Web from its military origins to its Arab Spring manifestations. Of the many books that are already flooding the market, trying to decode the Web, Hammersley’s list of 64 things is going to be at the top.

The writer is Director (Research), Centre for Internet and Society, Bangalore

For more details visit https://cis-india.org/digital-natives/blog/indian-express-december-8-2012-nishant-shah-not-just-fancy-television

Breaking Down Section 66A of the IT Act

pranesh — 2012-12-14T09:51:17Z

Section 66A of the Information Technology Act, which prescribes 'punishment for sending offensive messages through communication service, etc.' is widely held by lawyers and legal academics to be unconstitutional. In this post Pranesh Prakash explores why that section is unconstitutional, how it came to be, the state of the law elsewhere, and how we can move forward.

Back in February 2009 (after the IT Amendment Act, 2008 was hurriedly passed on December 22, 2008 by the Lok Sabha, and a day after by the Rajya Sabha[1] but before it was notified on October 27, 2009) I had written that s.66A is "patently in violation of Art. 19(1)(a) of the Constitution of India":

Section 66A which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution. The fact that some information is "grossly offensive" (s.66A(a)) or that it causes "annoyance" or "inconvenience" while being known to be false (s.66A(c)) cannot be a reason for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). It must be stated here that many argue that John Stuart Mill's harm principle provides a better framework for freedom of expression than Joel Feinberg's offence principle. The latter part of s.66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required. Additionally, it would be beneficial if an explanation could be added to s.66A(c) to make clear what "origin" means in that section. Because depending on the construction of that word s.66A(c) can, for instance, unintentionally prevent organisations from using proxy servers, and may prevent a person from using a sender envelope different from the "from" address in an e-mail (a feature that many e-mail providers like Gmail implement to allow people to send mails from their work account while being logged in to their personal account). Furthermore, it may also prevent remailers, tunnelling, and other forms of ensuring anonymity online. This doesn't seem to be what is intended by the legislature, but the section might end up having that effect. This should hence be clarified.

I stand by that analysis. But given that it is quite sparse, in this post I will examine s.66A in detail.

Here's what s. 66A of the IT (Amendment) Act, 2008 states:

66A. Punishment for sending offensive messages through communication service, etc.,
Any person who sends, by means of a computer resource or a communication device,—
(a) any information that is grossly offensive or has menacing character;
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred, or ill will, persistently by making use of such computer resource or a communication device,
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages

shall be punishable with imprisonment for a term which may extend to three years and with fine.

Explanation: For the purposes of this section, terms "electronic mail" and "electronic mail message" means a message or information created or transmitted or received on a computer, computer system, computer resource or communication device including attachments in text, images, audio, video and any other electronic record, which may be transmitted with the message.[2]

A large part of s.66A can be traced back to s.10(2) of the UK's Post Office (Amendment) Act, 1935:

If any person —
(a) sends any message by telephone which is grossly offensive or of an indecent, obscene, or menacing character; or
(b) sends any message by telephone, or any telegram, which he knows to be false, for the purpose of causing annoyance, inconvenience, or needless anxiety to any other person; or
(c) persistently makes telephone calls without reasonable cause and for any such purposes as aforesaid;
he shall be liable upon summary conviction to a fine not exceeding ten pounds, or to imprisonment for a term not exceeding one month, or to both such fine and imprisonment.

Section 66A bears a striking resemblance to the three parts of this law from 1935, with clauses (b) and (c) being merged in the Indian law into a single clause (b) of s.66A, with a whole bunch of new "purposes" added. Interestingly, the Indian Post Office Act, 1898, was never amended to add this provision.

The differences between the two are worth exploring.

Term of Punishment

The first major difference is that the maximum term of imprisonment in the 1935 Act is only one month, compared to three years in s.66A of the IT Act. It seems the Indian government decided to subject the prison term to hyper-inflation to cover for the time. If this had happened for the punishment for, say, criminal defamation, then that would have a jail term of up to 72 years! The current equivalent laws in the UK are the Communications Act, 2003 (s. 127) and the Malicious Communications Act 1988 (s.1) for both of which the penalty is up to 6 months' imprisonment or to a maximum fine of £5000 or both. What's surprising is that in the Information Technology (Amendment) Bill of 2006, the penalty for section 66A was up to 2 years, and it was changed on December 16, 2008 through an amendment moved by Mr. A. Raja (the erstwhile Minister of Communications and IT) to 3 years. Given that parts of s.66A(c) resemble nuisance, it is instructive to note the term of punishment in the Indian Penal Code (IPC) for criminal nuisance: a fine of Rs. 200 with no prison term.

"Sending" vs. "Publishing"

J. Sai Deepak, a lawyer, has made an interesting point that the IT Act uses "send" as part of its wording, and not "publish". Given that, only messages specifically directed at another would be included. While this is an interesting proposition, it cannot be accepted because: (1) even blog posts are "sent", albeit to the blog servers — s.66A doesn't say who it has to be sent to; (2) in the UK the Communications Act 2003 uses similar language and that, unlike the Malicious Communication Act 1988 which says "sends to another person", has been applied to public posts to Twitter, etc.; (3) The explanation to s.66A(c) explicitly uses the word "transmitted", which is far broader than "send", and it would be difficult to reconcile them unless "send" can encompass sending to the publishing intermediary like Twitter.

Part of the narrowing down of s.66A should definitely focus on making it applicable only to directed communication (as is the case with telephones, and with the UK's Malicious Communication Act), and not be applicable to publishing.

Section 66A(c)

Section 66A(c) was also inserted through an amendment moved by Mr. Raja on December 16, 2008, which was passed by the Lok Sabha on December 22, 2008, and a day after by the Rajya Sabha. (The version introduced in Parliament in 2006 had only 66A(a) and (b).) This was done in response to the observation by the Standing Committee on Information Technology that there was no provision for spam. Hence it is clear that this is meant as an anti-spam provision. However, the careless phrasing makes it anything but an anti-spam provision. If instead of "for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages" it was "for the purpose of causing annoyance and inconvenience and to deceive and to mislead the addressee or recipient about the origin of such messages", it would have been slightly closer to an anti-spam provision, but even then doesn't have the two core characteristics of spam: that it be unsolicited and that it be sent in bulk. (Whether only commercial messages should be regarded as spam is an open question.) That it arise from a duplicitous origin is not a requirement of spam (and in the UK, for instance, that is only an aggravating factor for what is already a fine-able activity).

Curiously, the definitional problems do not stop there, but extend to the definitions of "electronic mail" and "electronic mail message" in the 'explanation' as well. Those are so vast that more or less anything communicated electronically is counted as an e-mail, including forms of communication that aren't aimed at particular recipients the way e-mail is.

Hence, the anti-spam provision does not cover spam, but covers everything else. This provision is certainly unconstitutional.

Section 66A(b)

Section 66A(b) has three main elements: (1) that the communication be known to be false; (2) that it be for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will; (3) that it be communicated persistently. The main problem here is, of course, (2). "Annoyance" and "inconvenience", "insult", "ill will" and "hatred" are very different from "injury", "danger", and "criminal intimidation". That a lawmaker could feel that punishment for purposes this disparate belonged together in a single clause is quite astounding and without parallel (except in the rest of the IT Act). That's akin to having a single provision providing equal punishment for calling someone a moron ("insult") and threatening to kill someone ("criminal intimidation"). While persistent false communications for the purpose of annoying, insulting, inconveniencing, or causing ill will should not be criminalised (if need be, having it as a civil offence would more than suffice), doing so for the purpose of causing danger or criminal intimidation should. However, the question arises whether you need a separate provision in the IT Act for that. Criminal intimidation is already covered by ss. 503 and 506 of the IPC. Similarly, different kinds of causing danger are taken care of in ss.188, 268, 283, 285, 289, and other provisions. Similarly with the other "purposes" listed there, if, for instance, a provision is needed to penalise hoax bomb threats, then the provision clearly should not be mentioning words like "annoyance", and should not be made "persistent". (At any rate, s. 505(1) of the IPC suffices for hoax bomb threats, so you don't need a separate provision in the IT Act).

I would argue that in its current form this provision is unconstitutional, since there is no countervailing interest in criminalising false and persistent "insults", etc., that will allow those parts of this provision to survive the test of 'reasonableness' under Art.19(2). Furthermore, even bits that survive are largely redundant. While this unconstitutionality could be cured by better, narrower wording, even then one would need to ensure that there is no redundancy due to other provisions in other laws.

Section 66A(a)

In s.66A(a), the question immediately arises whether the information that is "grossly offensive" or "menacing" need to be addressed at someone specific and be seen as "grossly offensive" or "menacing" by that person, or be seen by a 'reasonable man' test.

Additionally, the term "grossly offensive" will have to be read in such a heightened manner as to not include merely causing offence. The one other place where this phrase is used in Indian law is in s.20(b) of the Indian Post Office Act (prohibiting the sending by post of materials of an indecent, obscene, seditious, scurrilous, threatening, or grossly offensive character). The big difference between s.20(b) of the IPO Act and s.66A of the IT Act is that the former is clearly restricted to one-to-one communication (the way the UK's Malicious Communication Act 1988 is). Reducing the scope of s.66A to direct communications would make it less prone to challenge.

Additionally, in order to ensure constitutionality, courts will have to ensure that "grossly offensive" does not simply end up meaning "offensive", and that the maximum punishment is not disproportionately high as it currently is. Even laws specifically aimed at online bullying, such as the UK's Protection from Harassment Act 1997, can have unintended effects. As George Monbiot notes, the "first three people to be prosecuted under [the Protection from Harassment Act] were all peaceful protesters".

Constitutional Arguments in Importing Laws from the UK

The plain fact is that the Indian Constitution is stronger on free speech grounds than the (unwritten) UK Constitution, and the judiciary has wide powers of judicial review of statutes (i.e., the ability of a court to strike down a law passed by Parliament as 'unconstitutional'). Judicial review of statutes does not exist in the UK (with review under its EU obligations being the exception) as they believe that Parliament is supreme, unlike India. Putting those two aspects together, a law that is valid in the UK might well be unconstitutional in India for failing to fall within the eight octagonal walls of the reasonable restrictions allowed under Art.19(2). That raises the question of how they deal with such broad wording in the UK.

Genealogy of UK Law on Sending 'Indecent', 'Menacing', 'Grossly Offensive' Messages

Quoting from the case of DPP v. Collins [2006] UKHL 40 [6]:

The genealogy of [s. 127(1) of the Communication Act] may be traced back to s.10(2)(a) of the Post Office (Amendment) Act, 1935, which made it an offence to send any message by telephone which is grossly offensive or of an indecent, obscene or menacing character. That subsection was reproduced with no change save of punctuation in s.66(a) of the Post Office Act 1953. It was again reproduced in s.78 of the Post Office Act 1969, save that "by means of a public telecommunication service" was substituted for "by telephone" and "any message" was changed to "a message or other matter". Section 78 was elaborated but substantially repeated in s.49(1)(a) of the British Telecommunications Act 1981 and was re-enacted (save for the substitution of "system" for "service") in s.43(1)(a) of the Telecommunications Act 1984. Section 43(1)(a) was in the same terms as s.127(1)(a) of the 2003 Act, save that it referred to "a public telecommunication system" and not (as in s.127(1)(a)) to a "public electronic communications network". Sections 11(1)(b) of the Post Office Act 1953 and 85(3) of the Postal Services Act 2000 made it an offence to send certain proscribed articles by post.

While the above quotation talks about s.127(1) it is equally true about s.127(2) as well. In addition to that, in 1988, the Malicious Communications Act (s.1) was passed to prohibit one-to-one harassment along similar lines.

The UK's Post Office Act was eclipsed by the Telecommunications Act in 1984, which in turn was replaced in 2003 by the Communications Act. (By contrast, we still stick on to the colonial Indian Post Office Act, 1898.) Provisions from the 1935 Post Office Act were carried forward into the Telecommunications Act (s.43 on the "improper use of public telecommunication system"), and subsequently into s.127 of the Communications Act ("improper use of public electronic communications network"). Section 127 of the Communications Act states:

127. Improper use of public electronic communications network
(1) A person is guilty of an offence if he —
(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he —
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

Currently in the UK there are calls for repeal of s.127. In a separate blog post I will look at how the UK courts have 'read down' the provisions of s.127 and other similar laws in order to be compliant with the European Convention on Human Rights.

Comparison between S. 66A and Other Statutes

Section 144, IPC, 1860

Power to issue order in urgent cases of nuisance or apprehended danger

...obstruction, annoyance or injury to any person lawfully employed, or danger to human life, health or safety, or a disturbance of the public tranquillity

Babulal Parate v. State of Maharastra and Ors. [1961 AIR SC 884] (Magistrates order under s. 144 of the Cr. PC, 1973 was in violation of Art.19(1)(a) of the Constitution).

A special thanks is due to Snehashish Ghosh for compiling the below table.

Section	Term(s)/phrase(s) used in 66A	Term(s)/ phrase(s) used in similar sections
Section 66A (heading)	Punishment for sending offensive messages through communication service, etc	Section 127, CA, 2003, "Improper use of public electronic communications network"
Section 66A(a)	Any person who sends, by means of a computer resource or a communication device	Section 1(1), MCA 1988, "Any person who sends to another person..."
Section 66A(a)	Grossly offensive	Section 1(1)(a)(i), MCA 1988; Section 127(1)(a),CA, 2003; Section 10(2)(a), Post Office (Amendment) Act, 1935; Section 43(1)(a), Telecommunications Act 1984; Section 20, India Post Act 1898
Section 66A(a)	Menacing character	Section127(1)(a),CA, 2003
Section 66A(b)	Any information which he knows to be false	Section 1(1)(a)(iii), MCA 1988 "information which is false and known or believed to be false by the sender"; Section 127(2)(a), CA, 2003, "a message that he knows to be false"
Section 66A(b) “purpose of...”	Causing annoyance	Section127(2), CA, 2003
	Inconvenience	Section 127 (2), CA, 2003
	Danger
	Insult	Section 504, IPC, 1860
	Injury	Section 44 IPC, 1860, "The word 'injury' denotes any harm whatever illegally caused to any person, in body, mind, reputation or property."
	Criminal intimidation	Sections 503 and 505 (2), IPC, 1860
	Enmity, hatred or ill-will	Section 153A(1)(a), IPC, 1860
	Persistently by making use of such computer resource or a communication device	Section 127(2)(c), CA, 2003, "persistently makes use of a public electronic communications network."
Section 66A(c)	Deceive or to mislead	-

Notes
MCA 1988: Malicious Communications Act (s.1)
CA: Communications Act 2003 (s.127)
*Replaced by Communications Act 2003

[1]. The Information Technology (Amendment) Bill, 2008, was one amongst the eight bills that were passed in fifteen minutes on December 16, 2008.
[2]. Inserted vide Information Technology Amendment Act, 2008.

This was re-posted in Outlook (November 28, 2012)

For more details visit https://cis-india.org/internet-governance/blog/breaking-down-section-66-a-of-the-it-act

Pervasive Mobile Technologies: Meet Our Mobile Devices!

jdine — 2012-12-21T07:48:40Z

As a part of the Pervasive Technologies: Access to Knowledge in the Marketplace research project, the Centre for Internet & Society (CIS) is researching 12 mobile phone devices to generate a better understanding of the intellectual property (IP) implications of pervasive mobile technologies available in the Indian market. This post is an introduction to our 12 mobile phones.

As detailed in my introductory blog on Pervasive Technologies: Access to Knowledge in the Marketplace Research Initiative, CIS will be conducting research on mobile technologies as a small off-shoot of the overall project. Pervasive technologies that can be purchased for less than USD 100 play an integral role in bringing access to knowledge to those that routinely face barriers to the consumption of information. However, their legality, particularly in terms of their use of IP, is unclear. In order to better understand the legal environment in which these technologies exist, CIS purchased 12 mobile phones to study the patent implications of their hardware, software and content.

Through examination, research, interviews and consultancies, we hope to create an in-depth documentation of each device, an extensive database or account of the patents implicated, and a number of narrower research avenues on topics related to IP, patents, and mobile technologies.

This blog post will serve as a brief introduction to our mobile devices. The information that I have compiled was discovered through shallow interaction with the phones — turning a device on and exploring the interface and content — which is why the documentation is not particularly extensive at this point. I have had difficulty identifying certain features of some of the phones, like which media formats they support or whether or not they are EDGE[2] — enable, but I am confident that I will be able to ascertain these specifications in the near future; however, certain features, like what OS (operating system) they run on and what chip set they are using, will require collaboration with experts to identify. The exploration is on-going, and more information will be posted as it is discovered.

Aside from all of the usual functions of a mobile phone (making calls, receiving calls, saving numbers, etc.), each of our mobiles devices possess what I have termed the "basics": dual GSM SIM capabilities with dual standby, the ability to connect to 2G networks, GPRS, a WAP browser (except device 011), bluetooth capabilities, a microSD slot, a dual camera (a camera that takes still photos and records video), an FM radio receiver and the ability to play .mp3 audio files and .mp4 video files, record audio and view .jpg images. Each phone also has a handful of various "utilities" and "extras" applications (such as an alarm, a calculator, a calendar, etc.) as well as at least one game. The full specifications of each phone will be provided in the near future, along with further pictures of each device.

As much of the research in this project pertains to the IP implications of the devices, we have decided to withhold the make and model of each device to shield the producers from any negative repercussions that could be the result of our research inquiries. They have been assigned the numeric code names 001 to 012.

Without further ado, I'd like to introduce you to our mobile phones:

001 - The Classroom in a Box

Price: Rs. 6,300.00 / $113.00

KEY FEATURES

Pico-Projector
Analog TV Receiver
MS Office Document Viewer


This bar-design feature phone has all of the basics with a few added bonuses: an analog TV receiver, viewer, and a built-in pico-projector that projects the mobile's screen onto any surface. Though this phone does not technically fall into our definition of pervasive technologies because of its price, it was the first mobile phone with a built-in pico-projector as well as an analog TV receiver available on the Indian market for less than Rs. 10,000 when it was purchased more than a year ago. Since then, other sub-USD100 pico-projector mobile devices have made an appearance on the Indian market, but each of those devices appear to have been discontinued and 001 continues to be the cheapest pico-projector mobile phone available for purchase.

002 - The Supercharger

Price: Rs. 2,499.00 / $45.00

KEY FEATURES

Solar Panel
Hindi Keyboard

	002 is a sleek candybar feature phone with a particularly interesting innovation. While it uses a standard lithium-ion battery that can be recharged via connection to a wall socket or electrical device (such as a laptop), it also has a built-in solar panel that can generate some charge as well. The solar panel technology is not yet very efficient—the panel would have to be placed in direct sunlight for multiple hours to fully charge the battery—but it represents an important step towards untethering mobile phones and mobile phone users from costly electricity infrastructure, a development that would have significant implications for rural populations who have unreliable access to electricity.

003 - The Networker

Price: Rs. 1,250.00 / $22.00

KEY FEATURES

Wi-Fi
Optical Trackpad
Secondary Forward-facing Camera
Support for 8 Languages


With a boxy, QWERTY-keyboard design and relatively small screen, 003 does not appear, at first glance, to be anymore than an average feature phone — but appearances can be deceiving. With a highly responsive optical trackpad, an analog TV receiver, BlackBerry-esque interface and WiFi capabilities, this mobile device packs some sophisticated technologies and features. Further, it is the only phone in our collection that can connect to the internet using WLAN networks. Considering that some of the other devices are much more complex — and expensive — than 003, the wide-spread exclusion of WiFi capabilities in our collection is intriguing. Is the choice to include or exclude mobile technology a matter of economics? Are cellular WiFi components expensive, and producers are choosing to exclude WiFi as a method of cutting costs? Is it simply a response to patterns of consumer demand? The WiFi questions will be explored in more depth in up-coming blog posts.

004 - The Linguist

Price: Rs. 2,250.00 / $40.00

KEY FEATURES

Android-like OS
Support for 14 Languages
Secondary Forward-facing Camera
Large Number of Pre-loaded Apps


Though it may be hard to believe at first glance, this mobile device was purchased for less than Rs. 2500. With its large internal memory, support for 14 different languages (including Tamil, Bengali and Hindi), and its large array of pre-loaded games and social media applications already set it apart from the less sophisticated mobiles in our collection, 004 also runs on a mysterious Android-like operating system similar to the popular MIUI Android ROM developed by the Chinese-based company Xiaomi Tech. This give it a very sophisticated interface with the look and feel of a smartphone, though the device itself lacks many of the capabilities that are often considered as smartphone criteria (GPS, high-speed internet access, push/pull email, Wi-Fi, an app store, etc.). Because this device, and others like it in our collection, have more sophisticated hardware, software and content than a generic feature phone, but are not as capable as a smartphone, I have taken to calling these devices "semi-smart".

005 - TV on the Go

Price: Rs. 1,450.00 / $26.00

KEY FEATURES

Analog TV receiver
Arabic Keyboard
Secondary Forward-facing Camera


Though it doesn't have any particular innovation that sets it apart from the other devices, 005 is a hardy QWERTY-design feature phone with all of the basics as well as a good collection of social media applications and an analog TV receiver. Though its keyboard can be programmed to write in English, Tamil, Arabic and Hindi script, the buttons have the Arabic abjad on them, which brings up the question of which market this mobile was originally designed for.

006 - The Spy

Price: Rs. 1,680.00 / $30.00

KEY FEATURES:

Secondary “Spy” Camera
Ability to behave as a modem via USB connection

	006 is an interesting candy bar feature phone. On initial examination, this mobile appears to be a completely generic feature phones with all of the basics, but nothing auxiliary. However, a more careful inspection will reveal a secondary camera with an unusual placement — instead of being place at the top of the screen like all of the other secondary cameras found on our devices, this camera is situated on the right hand side of the phone.

The manufacturer of this device actually refers to this secondary camera as a "spy" camera, and it is truly an appropriate name; from a distance, it looks more like a headphone jack than a camera, and its placement allows for photo and video to be taken without any suspicious movement or positioning by the user. The secondary camera has 1.3 megapixels and can take relatively high resolution photos and videos.

007 - The Semi-Smartphone

Price: Rs. 2,150.00 / $39.00

KEY FEATURES

Android-like OS (maybe MIUI)
USB Tethering
Push Email


Device 007 is a semi-smart touchscreen phone, and by far the most sophisticated device in our collection. We believe that it uses MIUI OS, which gives it a very similar look to Android and a functionality that is reminiscent of iOSx. While it doesn't have an app store, 007 is jam-packed with pre-loaded applications and can support a wide variety of file formats. Further, while the phone cannot connect to WLAN networks on its own; it can connect to WiFi by tethering to a networked device via USB connection.

008 - The Trendy

Price: Rs. 2,350.00 / $42.00

KEY FEATURES

Android-like OS
Support for 9 languages


Another mainstream look-alike, 008 runs the same unidentified OS as device 004 and has similar capabilities. Its plastic casing is a bit flimsy, but its "back", "home" and "list" buttons are touch sensitive. Its sophisticated OS and pre-loaded applications make it a semi-smart device.

009 - The Boombox

Price: Rs. 1,420.00 / $26.00

KEY FEATURES

Huge built-in speaker
Android-like OS

	Though it is less recognizable than some of the other devices, this mobile may have one of the significant smartphone qualifiers that our other devices lack: an app store — or what appears to be an app store. The app store icon itself is actually the icon for the Android app store, but the interface is completely different, and the only thing available for download is a handful of games. Interestingly enough, many of these games also make appearances on some of the other mobile devices (like fishing joy and tear clothes). Further, I would not call this phone semi-smart, as its interface is not particularly any more sophisticated than some of the other feature phones in our collection.

009 also features a large built-in speaker, the Opera Mini mobile browser and an Android-like OS, though this OS is less sophisticated than that of 004 and 008.

010 - 3D

Price: Rs. 1,440.00 / $26.00

KEY FEATURES

Android-like OS
Pre-loaded Stereoscopic (3D) videos
Support for 13 languages


This semi-smart touchscreen phone also has an Android-like operating system. Though it lacks an app store and push-email, it comes pre-loaded with a veritable smorgasbord of games and social media applications and supports 13 different languages. It also comes with a pair of 3D glasses and two short, very basic pre-loaded stereoscopic videos.

011 - The Mighty Mini

Price: Rs. 750.00 / $14.00

KEY FEATURES

Dual GSM SIM support
Best bang-for-your-buck for a basic mobile phone


At Rs. 750, this little feature phone was the least expensive phone we could find that still had almost all of the basics. Even without any extra features, it is still almost Rs. 200 cheaper than the majority of the most basic GSM dual SIM mobiles available on the formal Indian market[3]— and, in most cases, 011 has more capabilities than most of those devices. With .mp3 and .mp4 file playback, a dual camera, colour display, a WAP browser, MMS messaging support, two charging ports and Urdu and Hindi language support, this mobile phone personifies affordable accessibility to knowledge and media.

012 - The Pianist

Price: Rs. 1,550.00 / $28.00

KEY FEATURES

Touch piano
Two charging ports
Support for a multitude of audio, video and image formats

	012 is a basic candy bar feature phone with a particularly novel innovation: a touch piano. It is quite sensitive to touch and has a one octave range.

013 - The Indian Experience

Price: Rs. 2,100.00 / $38.00

KEY FEATURES

India specific content
Proprietary App Store

	This little touchscreen mobile is chockfull of “Indian-specific” content, including an application that links directly to an online portal where consumers can download “Hungama” videos, music and movies onto the phone—for a price. Many of the games also charge a monthly user fee, though interestingly enough, Angry Birds and Talking Tom Cat are pre-loaded and free to play. This phone also has a proprietary app store with a limited amount of mBounce4] applications and games available for purchase. I am not yet sure if this app store can be remotely updated with new apps, but the device can receive data vis USB connection, so it is possible that new applications can be added through direct file transfer. It also has keyboard support for English, Hindi and Tamil, but the interface cannot be set it appear in anything other than English.

[2]. Enhanced Data rates for GSM Evolution, also known as Enchanced GPRS (EGPRS) is a mobile phone technology that also improved data transmission on GSM networks. It is considered a pre-3G radio technology. Read more about it here: https://en.wikipedia.org/wiki/Enhanced_Data_Rates_for_GSM_Evolution
[3]. Information retrieved from www.flipkart.com. The prices shown here have been verified as being the same or very similar (though never more expensive) to the prices offered by each brand's official distributors. See Flipkart search links:

Mircomax: http://bit.ly/UW3q0U

Spice Mobility: http://bit.ly/V0DK9i

Karbonn: http://bit.ly/10DKKbz

Lava: http://bit.ly/TSxUzQ

[4] mBounce Ltd is a Hong Kong-based company that performs a variety of mobile phone application support services like proprietary in-house billing infrastructure for app stores, the pre-loading of applications and app stores, and application creation. They are MediaTek-nominated key partner in providing MRE (Maui Runtime Environment) App Store Solutions, but mBounce applications and software can also be placed on other mobile operating systems. You can read more about mBounce here: http://www.mbounce.com/?lang=eng&module=ltrbox&menu=m1&content=home and here: http://developer.mediatek.com/mre/en/partner/335

For more details visit https://cis-india.org/a2k/blogs/pervasive-mobile-technologies-meet-our-grey-market-devices

Arbitrary Arrests for Comment on Bal Thackeray's Death

pranesh — 2013-01-02T03:42:37Z

Two girls have been arbitrarily and unlawfully arrested for making comments about the late Shiv Sena supremo Bal Thackeray's death. Pranesh Prakash explores the legal angles to the arrests.

Facts of the case

This morning, there was a short report in the Mumbai Mirror about two girls having been arrested for comments one of them made, and the other 'liked', on Facebook about Bal Thackeray:

Police on Sunday arrested a 21-year-old girl for questioning the total shutdown in the city for Bal Thackeray’s funeral on her Facebook account. Another girl who ‘liked’ the comment was also arrested.

The duo were booked under Section 295 (a) of the IPC (for hurting religious sentiments) and Section 64 (a) of the Information Technology Act, 2000. Though the girl withdrew her comment and apologised, a mob of some 2,000 Shiv Sena workers attacked and ransacked her uncle’s orthopaedic clinic at Palghar.

“Her comment said people like Thackeray are born and die daily and one should not observe a bandh for that,” said PI Uttam Sonawane.

What provisions of law were used?

There's a small mistake in Mumbai Mirror's reportage as there is no section "64(a)"¹ in the Information Technology (IT) Act, nor a section "295(a)" in the Indian Penal Code (IPC). They must have meant section 295A of the IPC ("outraging religious feelings of any class") and section 66A of the IT Act ("sending offensive messages through communication service, etc."). (Update: The Wall Street Journal's Shreya Shah has confirmed that the second provision was section 66A of the IT Act.)

Section 295A of the IPC is cognizable and non-bailable, and hence the police have the powers to arrest a person accused of this without a warrant.² Section 66A of the IT Act is cognizable and bailable.

Update: Some news sources claim that section 505(2) of the IPC ("Statements creating or promoting enmity, hatred or ill-will between classes") has also been invoked.

Was the law misapplied?

This is clearly a case of misapplication of s.295A of the IPC.³ This provision has been frivolously used numerous times in Maharashtra. Even the banning of James Laine's book Shivaji: Hindu King in Islamic India happened under s.295A, and the ban was subsequently held to have been unlawful by both the Bombay High Court as well as the Supreme Court. Indeed, s.295A has not been applied in cases where it is more apparent, making this seem like a parody news report.

Interestingly, the question arises of the law under which the friend who 'liked' the Facebook status update was arrested. It would take a highly clever lawyer and a highly credulous judge to make 'liking' of a Facebook status update an act capable of being charged with electronically "sending ... any information that is grossly offensive or has menacing character" or "causing annoyance or inconvenience", or under any other provision of the IT Act (or, for that matter, the IPC).⁴ That 'liking' is protected speech under Article 19(1)(a) is not under question in India (unlike in the USA where that issue had to be adjudicated by a court), since unlike the wording present in the American Constitution, the Indian Constitution clearly protects the 'freedom of speech and expression', so even non-verbal expression is protection.

Role of bad law and the police

In this case the blame has to be shared between bad law (s.66A of the IT Act) and an abuse of powers by police. The police were derelict in their duty, as they failed to provide protection to the Dhada Orthopaedic Hospital, run by the uncle of the girl who made the Facebook posting. Then they added insult to injury by arresting Shaheen Dhada and the friend who 'liked' her post. This should not be written off as a harmless case of the police goofing up. Justice Katju is absolutely correct in demanding that such police officers should be punished.

Rule of law

Rule of law demands that laws are not applied in an arbitrary manner. When tens of thousands were making similar comments in print (Justice Katju's article in the Hindu, for instance), over the Internet (countless comments on Facebook, Rediff, Orkut, Twitter, etc.), and in person, how did the police single out Shaheen Dhada and her friend for arrest?⁵

This should not be seen merely as "social media regulation", but as a restriction on freedom of speech and expression by both the law and the police. Section 66A makes certain kinds of speech-activities ("causing annoyance") illegal if communicated online, but legal if that same speech-activity is published in a newspaper. Finally, this is similar to the Aseem Trivedi case where the police wrongly decided to press charges and to arrest.

This distinction is important as it being a Facebook status update should not grant Shaheen Dhada any special immunity; the fact of that particular update not being punishable under s.295 or s.66A (or any other law) should.

Section 64 of the IT Act is about "recovery of penalty" and the ability to suspend one's digital signature if one doesn't pay up a penalty that's been imposed.↩
The police generally cannot, without a warrant, arrest a person accused of a bailable offence unless it is a cognizable offence. A non-bailable offence is one for which a judicial magistrate needs to grant bail, and it isn't an automatic right to be enjoyed by paying a bond-surety amount set by the police.↩
Section 295A of the IPC has been held not to be unconstitutional. The first case to challenge the constitutionality of section 66A of the IT Act was filed recently in front of the Madurai bench the Madras High Court.)↩
One can imagine an exceptional case where such an act could potentially be defamatory, but that is clearly exceptional.↩
This is entirely apart from the question of how the Shiv Sena singled in on Shaheen Dhada's Facebook comment.↩

This blog entry has been re-posted in the following places

Outlook (November 19, 2012).
KAFILA (November 19, 2012).

For more details visit https://cis-india.org/internet-governance/blog/bal-thackeray-comment-arbitrary-arrest-295A-66A

Alt needs to Shift

nishant — 2012-12-14T10:03:30Z

People maybe talking more online, but they all seem to be talking about the same kind of thing.

Nishant Shah's column was published in the Indian Express on November 18, 2012.

If you were to recount what has happened in the world, based entirely on your tweetosphere and Facebook timelines, you might realise that everything important seems to have happened elsewhere. It is true that we live in a widely connected viral world, where if the USA sneezes, India gets a flu, but it seems as if lately, the things that I hear and read about are generally things that happen only at a global level. More surprisingly, most of the news that trends on Twitter, gets promoted on Facebook, and discussed on Google Plus, is in sync with what is being reported in mainstream media.

Of course, the voices are different. People have found a space for their opinions. There are strong critiques and alternative viewpoints around these events which are finding space in the public domain.

Much like the salons and cafes of the 18th century, which saw a whole range of new educated classes coming into the public to discuss and shape the society they lived in, the digital commons have created new public spaces of expression and discussion. This has been, indeed, one of the visions of the social web and we have reached a point where, at least for digital natives who have grown up within digital ecosystems, there is space to produce alternative opinions in their immediate environments.

At the turn of the millennium, when the social Web was being shaped, this was one of the biggest excitements — the possibility that voices from outside of mainstream and traditional media, which often get curtailed, would find contestations and alternative visions from people’s everyday experiences. And in many ways, it looks like we have achieved this dream, and found channels, communities and information strategies, which allow for conflicting views to co-exist in our knowledge spectrum. It is fascinating to realise that just a decade ago, the ways in which we talked about the key questions of our life, was so different, and was largely controlled by those in positions of power who identified only certain things as “newsworthy”.

Traditional media has also changed dramatically, with citizen reporters contributing to the content, crowdfunded information shaping news, and ordinary people being the first to witness globally significant events before the larger media complexes arrived. And now that we are well on our way to harnessing the power of this social web, there is something else that needs to be addressed.

It is the concern that increasingly people are talking more, but they seem to be talking about the same kind of thing! Sure, there are many different voices, but their focus of attention is the same. We see a whole range of alternative opinions emerging, but they are still clustered around the things that traditional media is also covering.

In the age of information overload, with so many different information streams, it feels like there is a homogenisation of information where increasingly only that which can be easily understood, easily read, easily captured to create spectacles gets to be at the centre of the attention economies. Which is why, news which is local, things which do not have global interest, and events which cannot be captured in videos on YouTube and hashtags on Twitter, do not feature in the alternative worlds of the social web. And when these locally relevant and significant things get mentioned, they have to work so much harder, to overcome the visibility threshold to get attention from the local publics.

We have found the alternative to the mainstream, but maybe it is now time to find the alternative to the alternative. We need to think of localisation of our social web. A lot of effort is made towards being on the global information highway, but we now also need to start investing energy into rendering our local contexts more accessible and intelligible, not only to the larger worlds but also to ourselves. Maybe it is time to reflect on how much we posted, read and consumed of the recent presidential elections in the USA, and try to recollect what else happened in the world. Maybe it is time to step out of our silos where we have replaced multiplicity of things with diversity of opinions about a narrow range of things. The next time you see something trending or popular, it might be a good idea to reflect on what else might be hiding behind the virality of that digital object.

This column was informed by conversations from a thought exploration on ‘Habits of Living’ supported by Brown University and Centre for Internet and Society Bangalore

For more details visit https://cis-india.org/raw/digital-humanities/indian-express-nov-18-2012-nishant-shah-alt-needs-to-shift

Super Cassettes v. MySpace

ujwala — 2012-10-31T10:27:36Z

The Delhi High Court’s judgment in Super Cassettes v. MySpace last July is worrying for a number of reasons. The court failed to appreciate the working of intermediaries online and disregard all pragmatic considerations involved. The consequences for free expression and particularly for file sharing by users of services online are especially unfavourable.

The judgment[*]is extremely worrying since it holds MySpace liable for copyright infringement, despite it having shown that it did not know, and could not have known, about each instance of infringement; that it removed each instance of alleged infringement upon mere complaint; that it asked Super Cassettes to submit their songs to their song identification database and Super Cassettes didn't.

This, in essence, means, that all 'social media services' in which there is even a potential for copyright infringement (such as YouTube, Facebook, Twitter, etc.) are now faced with a choice of either braving lawsuits for activities of their users that they have no control over — they can at best respond to takedown requests after the infringing material has already been put up — or to wind down their operations in India.

The Facts

Aside from social networking, MySpace facilitates the sharing of content between its users. This case concerns content (whose copyright vested in T-Series) was uploaded by users to MySpace’s website. It appears that tensions between MySpace and T-Series arose in 2007, when T-Series entered into talks with MySpace to grant it licenses in its copyrighted content, while MySpace asked instead that T-Series register with its rights management programme. Neither the license nor the registration came about, and the infringing material continued to be available on the MySpace website.

Specifically, T-Series alleged that cases for primary infringement under section 51(a)(i) of the Copyright Act as well as secondary infringement under section 51 (a) (ii) could be made out. Alleging that MySpace had infringed its copyrights and so affected its earnings in royalties, T-Series approached the Delhi High Court and filed a suit seeking injunctive relief and damages. In proceedings for interim relief while the suit was pending, the court granted an injunction, but, in an appeal by MySpace, added the qualification that the content would have to be taken down only on receipt of a specific catalogue of infringing works available on MySpace, rather than a general list of works in which T-Series held a copyright.

The Defence

While other arguments such as one around the jurisdiction of the court were also raised, the central issues are listed below:

Non-Specificity of Prayer
T-Series’ claim in the suit is for a blanket injunction on copyrighted content on the MySpace website. This imposes a clearly untenable, even impossible, burden for intermediaries to comply with.
Knowledge
MySpace argued that no liability could accrue to it on two counts. The first was that it had no actual or direct knowledge or role in the selection of the content, while the second was that no control was exercised, or was exercisable over the uploading of the content. Additionally, there was no possible means by which it could have identified the offending content and segregated it from lawful content, or monitored all of the content that it serves as a platform for.
Intermediary status and Safe Harbour Protection
In relation to its status as an intermediary, MySpace raised several arguments. First, it argued that it had immunity under section 79 of the IT Act and under the US Digital Millennium Copyright Act (US DMCA). Another argument restated what is arguably the most basic tenet of intermediary liability that merely providing the platform by which infringement could occur cannot amount to infringement. In other words, the mere act of facilitating expression over internet does not amount to infringement. It then made reference to its terms of use and its institution of safeguards (in the form of a hash filter, a rights management tool and a system of take-down–stay-down), which it argued clearly reflect an intention to discourage or else address cases of infringement as they arise. MySpace also emphasized that a US DMCA compliant procedure was in place, although T-Series countered that the notice and take down system would not mitigate the infringement.
Relationship between MySpace and its Users
Taking from previous arguments about a lack of control and its status as an intermediary, MySpace argued that it was simply a licensee of users who uploaded content. The license is limited, in that MySpace is only allowed to alter user-generated content so as to make it viewable.

Outcomes

Infringement by Facilitation
The court concluded that infringement in terms of section 51 (a) (ii) had occurred in this case, since web space is a “place” in the terms required by the section and there were monetary gains in the form of ad revenue. The argument as to a lack of knowledge of infringement was also rejected on the ground that MySpace’s provision for safeguards against infringement clearly established a reason to believe that infringement will occur. Also referenced as evidence of knowledge, or at least a reason to believe infringement would occur, is the fact that MySpace modifies the format of the content before making it available on its website. It also tested for infringement by authorization in terms of section 14 read with section 51 (a) (i), but concluded that this did not arise here.
Reading away section 79?
The court accepted the argument made by T-Series to the effect that sections 79 and 81 of the IT Act must be read together. Since section 79 would be overridden by section 81’s non-obstante, the effect would be that rights holders’ interests under the Copyright Act will erode intermediaries’ immunity under section 79.
Due Diligence
The court rejected the argument that the provision of due diligence or curative measures post-infringement would be sufficient. Specifically, the contention that the quantum of content being uploaded precludes close scrutiny, given the amount of labour that would be involved, was rejected. Content should not immediately be made available but must be subject to enquiries as to its title or to authentication of its proprietor before it is made available. In fact, it holds that, “there is no reason to axiomatically make each and every work available to the public solely because user has supplied them unless the defendants are so sure that it is not infringement.” (Paragraph 88).

There is also an attempt to distinguish the Indian framework from the DMCA. While that law calls for post-infringement measures, it is argued that in India, on reading section 51 with section 55, the focus is on preventing infringement at the threshold. In response to the case that it would be impossible to do so, the court held that since the process here requires MySpace to modify the format of content uploaded to it to make it viewable, it will have a reasonable opportunity to test for infringement.

Analysis

Accounting for the Medium of Communication

The court’s analysis of the issues begins with a predictable emphasis on how the law of copyright would operate in the context of what is termed “internet computing”, peppered with trite statements about “the virtual world of internet” creating “complexit[ies]” for copyright law. The court appears to have entered into this discussion to establish that the notion of place in section 51 (a) (ii) should extend to “web space” but the statements made here only serve to contrast starkly against its subsequent failure to account for the peculiarities of form and function of intermediaries online. Had this line of argument been taken to its logical conclusion, after the character of the medium had been appreciated, the court’s final conclusion, that MySpace is liable for copyright infringement, would have been an impossible one to arrive at.

And What of Free Speech?

As it had argued before the court, intermediaries such as MySpace have no means by which to determine whether content is illegal (whether by reason of amounting to a violation of copyright, or otherwise) until content is uploaded. In other words, there is no existing mechanism by which this determination can be made at the threshold, before posting.

The court does not engage with the larger consequences for such a scheme of penalizing intermediaries. Censoring patent illegalities at the threshold, even if that were possible is one thing. The precedent that the court creates here is quite another. Given the general difficulty in conclusively establishing whether there is an infringement at all due to the complexities in applying the exceptions contained under section 52, it should not be for ordinary private or commercial interests such as intermediaries to sit in judgment over whether content is or is not published at all. In order to minimize its own liability, the likelihood of legitimate content being censored by the intermediary prior to posting is high.

The consequences for civil liberties, and free speech and expression online in particular, appear to have been completely ignored in favour of rights holders’ commercial interests.

Consequences for Intermediary Liability and Safe Harbour Protection

Even if every instance in question did amount to an infringement of copyright and a mechanism did exist allowing for removal of content, the effect of this judgment is to create a strict liability regime for intermediaries.

In other words, the court’s ruling will have the effect that courts’ determination of intermediaries’ liability will become detached from whether or not any fault can be attributed to them. MySpace did make this argument, even going as far as to suggest that doing so would impose strict liability on intermediaries. This would lead to an unprecedented and entirely unjustifiable result. In spite the fact that a given intermediary did apply all available means to prevent the publication of potentially infringing content, it would remain potentially liable for any illegality in the content, even though the illegality could not have been detected or addressed.

What is perhaps even more worrying is that MySpace’s attempt at proactively and in good faith preventing copyright infringement through its terms of use and in addressing them through its post-infringement measures was explicitly cited as evidence of knowledge of and control over the uploading of copyrighted material, at the threshold rather than ex post. This creates perverse incentives for the intermediary to ignore infringement, to the detriment of rights holders, rather than act proactively to minimize its incidence.

A final observation is that the court’s use, while pronouncing on relief, of the fact that MySpace makes a “copy” of the uploaded content by converting it into a format that could subsequently be hosted on the site and made accessible to show evidence of infringement and impose liability upon MySpace in itself is a glaring instance of the disingenuous reasoning the court employs throughout the case. There is another problem with the amended section 79, which waives immunity where the intermediary “modifies” material. That term is vague and overreaches, as it does here: altering formats to make content compatible with a given platform is not comparable to choices as to the content of speech or expression, but the reading is tenable under section 79 as it stands.

The result of all of this is to dislodge the section 79 immunity that accrues to intermediaries and replace that with a presumption that they are liable, rather than not, for any illegality in the content that they passively host.

Effect of the Copyright (Amendment) Act, 2012

Since the judgment in the MySpace case, the Copyright Act has been amended to include some provisions that would bear on online service providers and on intermediaries’ liability for hosting infringing content, in particular. Section 52 (1) (b) of the amended Act provides that “transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public” would not infringe copyright. The other material provision is section 52 (1) (c) which provides that “transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy” will not constitute an infringement of copyright. The latter provision appears to institute a rather rudimentary, and very arguably incomplete, system of notice and takedown by way of a proviso. This requires intermediaries to takedown content on written complaint from copyright owners for a period of 21 days or until a competent rules on the matter whichever is sooner, and restore access to the content once that time period lapses, if there is no court order to sustain it beyond that period.

This post does not account for the effect that these provisions could have had on the case, but it is already clear, from the sloppy drafting of section 52 (1) (c) and its proviso that they are not entirely salutary even at the outset. At any rate, there appears to be nothing that *determinatively* affects intermediaries’ secondary liability, i.e., their liability for users’ infringing acts.

Disclosure: CIS is now a party to these proceedings at the Delhi High Court. This is a purely academic critique, and should not be seen to have any prejudice to the arguments we will make there.

[*]. Super Cassettes Industries Ltd. v. MySpace Inc. and Another, on 29 July, 2011, Indian Kanoon - Search engine for Indian Law. See http://bit.ly/quj6JW, last accessed on October 31, 2012.

For more details visit https://cis-india.org/a2k/blogs/super-cassettes-v-my-space

The Supreme Court Delivers

Shyam Ponappa — 2012-12-21T09:57:57Z

Now, the spectrum and licence issues need resolution. On September 27, 2012, the Supreme Court of India delivered the opinion of a bench comprising five Judges on the Presidential Reference regarding the auction of 2G spectrum.

Published in Organizing India Blogspot on October 11, 2012 and in Business Standard on October 4, 2012.

The Supreme Court’s opinion on the Presidential reference[*]dismissed two preposterous claims. One is that it is beyond the ambit of Parliament and the government to formulate economic policies. The second is that the government must allocate resources only through auctions. It’s like the end of a self-destructive nightmare. True, our heedless kleptocracy as a society of rogue politicians, bureaucrats, defence personnel, and complicit citizens, led to this pass. Even so, the anarchic “destructionism” of these claims is as reprehensible as the kleptocracy they seek to tear down. Fortunately, the Supreme Court opinion rose above the populist clamour.

There’s still a mess to clear. The big picture is that the Supreme Court left its decision on spectrum auctions unaddressed. In matters of detail, some points need resolution based on facts. These are discussed below to dispel prevalent myths.

Myth 1: Auctions maximise govt revenues

"Auctions may be the best way of maximising revenue…": paragraph 116 of the opinion. This contravenes the evidence after the National Telecom Policy -99, that revenue-sharing maximises government revenues as well as public benefits. It also ignores the many auction failures.

Consider the evidence: auction revenues foregone were estimated at under Rs 20,000 crore for 1999-2007, because the sector was mired in losses and was unable to provide services effectively or pay those dues. By comparison, actual collections from revenue-sharing by March 2007 were more than double, at Rs 40,000 crore. Collections by March 2010 were Rs 80,000 crore. Current annual contributions to government revenues may be about Rs 18,000 crore on Adjusted Gross Revenues estimated at Rs 1,40,000 crore, plus taxes, amounting to perhaps Rs 36,000 crore.

Re public benefits, access to telephony grew from a few million users in 1999 to about 700 million today (excluding around 250 million shadow subscriptions).

An ameliorating caveat in paragraph 12 states: "…if the State arrives at the conclusion … that maximum revenue would be earned by auction of the natural resource in question, then that alone would be the process", and this is expanded in paragraph 119:

"Where revenue maximisation is not the object of a policy of distribution, the question of auction would not arise. Revenue considerations may assume secondary consideration to developmental considerations."

This has not prevented erroneous conclusions in the press that auctions are the only valid process, notwithstanding that the conditions stipulated in the order, eg, that government’s actions be “fair, reasonable, non-discriminatory”, were always operative, if not adhered to in instances of abuse, as in the 2G scam.

Myth 2: Maximum govt collections are in the public interest

Government collections as the public interest criterion may work for colonial powers extorting revenues from subject states, or possibly for utopias whose political economy is so balanced that such cross-subsidisation works. Developing economies like India presumably can and should seek the welfare of their people. The same populists crusading for maximum government collections accuse governments of corruption and waste. This doesn’t provide a coherent approach to infrastructure, where each capital-intensive sector is configured to deliver a specific service. For instance, the energy sector has to deliver power, while telecommunications must deliver communications services. Neither can be expected to deliver toilets or water. Yet, many well-intentioned people seem to nurture such irrational expectations.

The spectrum and broadband link

The first prerequisite for broadband is high-speed connectivity. The second is reasonably priced services. Our objectives are, therefore: (a) a broadband network, (b) available anywhere (c) at reasonable prices. Our networks are deficient, however, particularly in rural and semi-urban areas. A host of factors are responsible, ranging from limited public sector network rollout, combined with a private sector focus on the most lucrative urban centres, with incentives skewed to voice telephony. Applications need connectivity based on networks that require spectrum.

Problems and solutions

Consider an application like distance education. The need is for networks and services of high quality (followed by the additional requirement of content). What is apparent is that such applications cannot be effective without the connectivity. So we’re back to the need for networks, of fibre where feasible, and wireless elsewhere. This brings us back to the need for spectrum.

Reviewing facts

As regards the facts relating to the 2G judgment deserving review:
The solution the Supreme Court has not considered is that operators need only to use spectrum, for which they can be charged a fee. The evidence of widely available Wi-fi shows that innovation and usage thrive if spectrum is available. The Supreme Court, the government, and the public need to recognise that allocating spectrum to operators is only one way to use spectrum.

There need be no alienation of spectrum at all, if policies allow open access and charge fees. Then, spectrum could be used like any infrastructure network, eg, airports, highways, or rail, on payment of usage charges. The sharing could be in at least two ways. Operators could pool spectrum for collective use. For this, (i) regulations must allow pooling/active facilities sharing, and (ii) operators must agree on terms and procedures. Another way is for mandatory spectrum sharing using the database-driven systems being implemented in the US by Spectrum Bridge and Telcordia. Similar deployments are planned in the UK, the European Union, and in Singapore. The TV white space is shared because this range is available for sharing, and not because other bands cannot be shared.

There are immense societal costs of duplication in capital investments in multiple networks, including the last-mile spectrum access, of operators using dedicated networks with limited passive facilities sharing (such as towers), compared with the benefits of open-access to common networks, if policies changed. These would employ active facilities sharing (equipment, and not just construction) to reduce capital equipment, construction costs, energy for towers, carbon emissions from a more limited physical network, possibly reduced radiation from a rationalised network with small cells with lower-powered equipment, and the multiplier effect on the finite available spectrum.

Enormous productivity benefits could accrue through ICT applications in infrastructure such as smart grids for energy, transportation, education, healthcare, and government services, as well as many commercial applications.

The Supreme Court could also uphold contractual obligations, by discriminating against actual transgressors in the 2G spectrum allocation, while rehabilitating those who operated within the law.

[*].http://supremecourtofindia.nic.in/outtoday/op27092012.pdf

For more details visit https://cis-india.org/telecom/blog/organizing-india-blogspot-october-11-2012-shyam-ponappa-the-supreme-court-delivers

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

pranesh — 2012-09-06T11:52:47Z

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

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

How many items have been blocked?

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

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

Why have these been blocked?

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

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

Are the blocks legitimate?

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

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

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

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

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

Are there any egregious mistakes?

Yes, there are numerous such examples of egregious mistakes.

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

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

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

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

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

Why haven't you put up the whole list?

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

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

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

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

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

So you are fine with censorship?

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

So what should the government have done?

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

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

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

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

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

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

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

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

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

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

Deconstructing Digital Natives: Young People, Technology and the New Literacies

nishant — 2015-04-24T11:51:06Z

Nishant Shah was invited to do a book review of a new anthology 'Deconstructing Digital Natives', edited by Michael Thomas. The review was published in Routledge's Journal of Children and Media on July 18, 2012.

Deconstructing Digital Natives: Young People, Technology and the New Literacies is an anthology that revisits the debates and scholarship that have arisen around youth and technology in the last decade or so. It is a timely intervention that invites some of the most influential scholars who have contributed to and shaped the discourse around “digital natives” to come and revisit their original ideas from the last decade. The term “digital native” probably bears witness to the strident discourses that, more often than not, fall into the trap of exotically glorifying or despairingly vilifying young peoples’ engagement with digital technologies. As Buckingham points out in his foreword to the book, these conversations either take up the language of a “generation gap [that] entails a narrative of transformation and even of rupture, in which fundamental continuities between the past and the future have been destroyed” or they guise themselves in an “almost utopian view of technology—a fabulous story about technology liberating and empowering young people, enabling them to become global citizens, and to learn and communicate and create in free and unfettered ways” (p. ix). The essays seek a point of departure from these tried and tested arguments in order to provide a “balanced view” on the topic. And so we have a distinguished author list from the world of digital natives scholarship, coming together not only to ponder on their own contributions to the field and how those ideas need to be upgraded, but also to provide new contexts, concepts, and frameworks to understand who, or indeed, what, is a “digital native,” often in tension with their earlier work.

In its ambition of revisiting existing debates and providing a “research-based approach by presenting empirical evidence and argument from international researchers in the field,” the book succeeds unevenly (p. xi). Despite its efforts to chart a point of departure, some of the essays end up falling into some usual traps. For example, despite the fact that the oldest digital natives are probably in their thirties, they are thought of as being young. They are defined only as “students” within formal learning institutions without looking at the radical potential of learning outside organized education, embedded in their everyday practices. The digital natives remain an object of research and the peer-to-peer structures that are supposed to shape them, but do not feature in the methodologies of researching them. This notwithstanding, the essays still offer a historical and social perspective on the debates around digital natives in certain developed pockets of the world.

In the first section, “Reflecting on the Myth,” Thomas’ essay “Technology, Education and the Discourse of the Digital Native” introduces a tension between the techno-euphorists and the “digital luddites,” which replays itself through the rest of the contributions. While Thomas places himself between “technoevangelism” and “technoskepticism,” Prensky, who coined the term “Digital Natives” in 2001, then introduces to us a new binary of “digitally wise” and “digitally dumb” (p. 4). Prensky reviews the responses that his opposition of “digital natives” and “digital immigrants” have produced over the last decade and emphasizes that his coinage was at the level of a metaphor, and was not to be taken seriously. Prensky agrees that the earlier opposition might be discarded because it evokes too many simple responses based on skills with technology. Digital wisdom, for Prensky, is in the ways in which digital technologies enhance the human brain “to anticipate second- and third-order effects to which the unaided mind may be blind” as the world becomes too complex for the “unenhanced human brain” to cope with it (p. 23). Typically, Prensky’s argument creates a dichotomy of those who can (and will) and those who will be outside of this web of digital enhancements. His analysis tries to complicate the idea of human wisdom by looking at questions of ethics and agency, but the final formulations appear cliche´d, merely re-creating the older tensions rather than thinking through them. Jones’ following essay on the “Net Generation” is more persuasive, where he argues for dismissing the idea that “nature of certain technologies . . . has affected the outlook of an entire age cohort in advanced economies” and instead should unpack how “new technologies emerging with this generation have particular characteristics that afford certain types of social engagement” (p.42).

In the second section, titled “Perspectives,” the essays take up two different tones.The first is about looking at digital literacy, skill, and fluency in everyday practices of digital natives, and how they shape our contemporary and future sociopolitical and cultural landscapes. Banaji, in exploring the EU Civic Web Project, echoes Jones’ ideas. The presumptions within education about an entire generation as “born with technologies” has consequences in the field of civic action, where programs for citizen action are designed with expectations that the young people will have core digital competencies and literacy. She does not push that argument further, but in her study of the two Scottish e-initiatives, one can see the promise of a radical reconstruction of civic engagement movements, where the young participants are not going to be satisfied as mere participators, and will demand a space for their voice to be heard.

Takahashi’s essay on the oyaubibunka (“thumb culture”) mobile generations in Japan stands alone in its analysis of an Asian context—though many might argue that Japan, with its developed economy, can hardly be counted as a typically “Asian” perspective. Takahashi is rooted, both in practice and discourse, in youth and technology in Japan, where the youth often experience close-knit community experiences through mobile interfaces, in their otherwise alienated modern habitats. Almost as a response to Turkle’s Alone Together (2011), Takahashi shows how collaborative and cocreation cultures ranging from the mobile novels on Mixi to everyday interaction on Social Networking Systems is bringing in new kinds of social spaces of belonging. The essay, however, resists simply celebrating this space and works in complex ideas of freedom, control, risks, and the tensions between traditionalization and modernity in Japan.

Zimic and Dalin, writing from a similar heavily connected Nordic region, pose a different set of questions in their essay, “Actual and Perceived Online Participation Among Young People in Sweden.” For Zimic and Dalin, in a space where connectivity can be taken for granted, the further question to ask is not whether digital natives participate online or not, but whether they participate in ways that are expected of “a digital citizen in the information age” (p. 137). Through empirical data and case studies, the essay shows the different kinds of activities that youth engage with and also concludes that though engaging in civic issues is important to the young people’s sense of belonging to participatory cultures, using the Internet does not provide an “automatic guarantee” toward participation, and “assistance is required in order to engage them in relevant activities” (p. 148).

The second set of essays in this section all cluster around the digital native as a student. Locating the digital native within educational institutions, they look at the ways in which the ideas of learning, pedagogy and engagement with the text are changing with the rise of digital technologies. Levy and Michael look at two case studies involving students in Australian high schools, to “facilitate a deeper understanding of products and processes in multimodal text construction,” which they think is core to interactive communication technology literacy skills (p. 85). The data is rigorous and rich, but the conclusions are a bit of a disappointment: digital natives need to better manage their time and resources and they need to learn traditional skills in order to cope with their educational environment.

The trend of an exciting hypothesis and conclusion, which do not necessarily leave you with anything more than what you already knew, continues in this section. Erstad sets out on a journey to see how digital literacy posits challenges to educating the digital generation and ends by suggesting that the digital divide should address questions of “how to navigate in the information jungle on the Internet, to create, to communicate, and so forth” (p. 114). Similarly, Kennedy and Judd want to unravel the mystery of why “students, who are so clearly familiar and apparently adept with Internet tools, are at times so poor at using the Internet academically” (p. 119). Through empirical research and interaction with students, they end up making an argument against the Googlization of everything (Vaidhyanathan, 2011), suggesting that “satisficing strategies” of information search, defined by a need for instant gratification and not looking beyond the first information sets, has produced “a generation of students that has grown up with Google [who] may over-value expediency when locating and selecting appropriate scholarly information” (p. 132). On similar trends, Levy proposes to question the assumption of whether all “young children are inherently ‘native’ users of digital technology” for implications on our future pedagogy within the new textual landscape (p. 152). The case studies and the frameworks built are interesting, but they reveal nothing more than the claim that the essay begins with by Marsh et al. (2005) and Bearne et al. (2007) that “young children are immersed in ‘digital practices’ from an early age and that they often develop skills in handling screen texts even when they are not exposed directly to computers at their own homes” (Levy, 2011, p. 163). The implication is clear: change our schools to accommodate for these new textual practices and help children capitalize on their digital competence and develop “digital wisdom.” But it is a recommendation that has been around for at least a decade, if not more.

The third and concluding section of the book, “Beyond Digital Natives,” is possibly the most promising part of the book. Bennett and Maton seek to look beyond “nuanced versions of the idea” and move the debate on to firmer grounds of how the rise of the digital natives is going to affect the policies around educational technology” (p. 169). They engage with a body of work that is specifically oriented toward building empirical evidence-based frameworks for understanding the potential role of technology in education. With a fine conceptual tool that makes distinctions between access and usage, they systemically dismiss the “academic moral panic” that characterizes conversations around youth-technology-change.

For Bennett and Maton, the object of inquiry is not the digital native but the body of discourse that surrounds this particular entity—and they make a plea for research rather than imaginings, showing how the influential work in the area has been plagued by unsupported claims, unevidenced observations, and futuristic imaginations, which paint a poetic picture of digital natives but offer very little in terms of furthering the argument. It is also noteworthy that they do not flinch from critiquing the colleagues who also feature in the same book, as an idealizing and homogenizing group that has shown “diversity rather than conformity” (p. 181).

Palfrey and Gasser, whose Born Digital (2008) has been the guide for lay readers to understand the nuances and complexities of the area, in their essay, begin by acknowledging that “digital natives” is an awkward term. However, they argue, it is still a term that resonates deeply with parents and educators, and that this resonance should not be taken lightly by researchers. Their decision was to use this term, albeit with caution and discretion, strategically to refer to a small subset of young people and the gamut of relationships and engagements they have with digital technologies. The suggestion is to use the term and in every usage, look at the unevennesses and awkwardness it creates, thus actually unpacking an otherwise opaque relationship which is reduced to “usage” or “access.” Their concerns are more about the quality of information and access, infrastructure for critical literacy and digital fluency, and making legible these everyday practices to larger implications for a future that they posit is bright and hopeful.

Deconstructing Digital Natives is an interesting revisit of a term that has grown in different ways through the first decade of the new millennium. However, the book still remains located in the same geopolitics in which the early discourse of digital natives were grounded—developed, privileged locations where connectivity, affordability, and ubiquitous digital literacy are taken for granted—reminiscent of the frantic cries one hears in piracy markets in Bangkok, “same, same, but different.” The revisiting does not seem to feel the need to explore other contexts. A few essays talk about factoring in local and contextual information in understanding digital natives, but the scholarship reinforces the idea of how technologies shape and are shaped by identities in some parts of the world, and that these identities can be heralded as universally viable, with a little nuancing.

The questions that have emerged in this discourse in the recent years, remain ignored. What does a digital native look like in the Global South? Can we have new concepts and frameworks which emerge from these contexts? Is it possible to produce accounts in languages and ideas that are embedded in everyday practices rather than forcing them to become legible in existing vocabularies? One would hope that the next book that deconstructs digital natives would also deconstruct the prejudices, presumptions, and methodological processes that are embedded in this field.

References

Bearne, E., Clark, C., Johnson, A., Manford, P., Motteram, M., & Wolsencroft, H. (2007). Reading on screen. Leicester: UKLA.
Marsh, J., Brookes, G., Hughes, J., Ritchie, L, Roberts, S., & Wright, K. (2005). Digital beginnings: Young children’s use of popular culture, media and new technologies. Sheffield: Literacy Research Centre, University of Sheffield.
Palfrey, J., & Gasser, U. (2008). Born digital. New York, NY: Basic Books.
Turkle, S. (2011). Alone together: Why we expect more from technology and less from each other, NY. New York: Basic Books.
Vaidhyanthan, S. (2011). The Googlization of everything: (And why we should worry). Berkeley, CA: University of California Press.

Nishant Shah is the Director-Research at the Bangalore-based Centre for Internet and Society. He is the principal researcher for a Global South inquiry into digital natives and sociopolitical change, and recently edited four-volume book, Digital AlterNatives with a Cause?, which is available as a free download at http://cis-india.org/digital-natives/blog/dnbook. Correspondence to: Nishant Shah, Centre for Internet and Society, Bangalore, India. E-mail: nishant@cis-india.org

Download the file (originally published by Taylor & Francis) here [PDF, 66 Kb]

Read the original published by Taylor & Francis here

For more details visit https://cis-india.org/digital-natives/young-people-technology-new-literacies

Citizen Activism the Past Decade

Nilofar Ansher — 2015-04-24T11:52:44Z

Call for Contributions to the ‘Digital Natives with a Cause?’ newsletter, ‘Citizen Activism the Past Decade’. Deadline: August 15, 2012.

The past decade (2001 – 2011) has been marked by unprecedented democratic protests across the globe. Not only have citizens risen against autocratic regimes or systemic corruption, which is not unprecedented in itself, but also, a spark in one region inflamed solidarity among neighbouring nations to pick up the placards and march for change. Plenty has been written about the strategic deployment of social media, Web 2.0 platforms and Smart-gadgets by the digital natives (the youth and the old alike) to rewrite the rules of citizen activism.

In this issue of the newsletter, we explore the mechanics of activism aided by media: web, social, digital, and traditional. What do we understand by a cause and how does it find resonance at the local and global platforms? Is the digital native a community player or a global citizen? How do digital natives connect, collaborate, mobilize and bring about their visions of change? The aim is to not establish or reinforce these dichotomies, if indeed they exist, but to understand the dimensions of the stage the digital natives operate on and if that stage is a synecdoche for global youth-led civic action. A case in point: ‘Slut Walk’ moved from being a one-off march in Toronto to becoming a global movement and came full circle when small towns and cities across the world organized protest marches with a local ‘twist’.

Topics that contributors can explore:

What do we understand by citizen activism? How has citizen activism changed over the last 10 years with the advent of new media tools?
Youth as 'change agents'. Are protest movements youth oriented today? How are civil rights movements of the past decade different from the wave of movements that marked the 60s? (women's lib, LGBT rights, civil rights, disability rights). Explore the mechanics of organizing, mobilizing and measuring the success of a campaign in both the cases.
Participatory Politics and Web 2.0 | Value and power of the Network in effecting change | Mobilizing support and consensus within the network |studies on politically active youth using social media | digital natives as apathetic citizens | Is Slacktivism still a misunderstood term?
Kony 2012 video campaign | interviews | what went wrong and what did they do right? | Rise of DIY activism | mechanics of digital activism | resources, tools and strategies
Rise of the ‘Glocal’ (global with local resonance) cause | Slut Walk and Co – global protests inspiring local campaigns | Children of globalization with global stakes supporting local causes – how does this work?
Role of new media as a vehicle for civic engagement | Are new media and traditional media mutually exclusive in influencing citizen action? | How are new media strategies deployed by citizens in comparison with traditional media engagement?
Learning from past campaigns: citizen activism initiates and strategies in history that inspire modern campaigns (The ‘Walk to Work’ protest in Uganda protesting against fuel price hike and removal of subsidies is similar to Mahatma Gandhi’s Dandi March in pre-independence India to protest against Salt Tax).
Finding commonalities in citizen activism across Asia, Africa and Middle East | Explore the citizen action campaigns that have shaped political discourse in the past decade | Explore some of the most successful youth action campaigns of the past decade
How do we measure value, quality and success of campaigns? When does a protest officially end? Studies that explore the life-cycle of a protest or movement
The future of activism: new technologies, new demography, new forms of engagement | art and activism | Gamification
Role of non-governmental organizations and civil society networks in fostering political change | collaboration between NGOs and social media activists / independent protesters
State and the empowered citizen | State response to protest | surveillance and censorship
Technologies of protest
Studying citizen activism | digital native research methodology to study citizen activism

To know more about the topics you can write about, please write to: nilofar.ansh@gmail.com (Nilofar Ansher, Community Manager). Contributions can be in the form of essays, notes, commentaries, reviews (book or paper), dialogues and chat transcript, poems, sketches / graphics. Essay word count between 800-1,600 words. Send your entries along with a brief bio and a profile picture by August 15, 2012.

View previous issues of the 'Digital Natives with a Cause?' newsletter here: http://cis-india.org/digital-natives/newsletter

For more details visit https://cis-india.org/digital-natives/citizen-activism-the-past-decade

Overview and Concerns Regarding the Indian Draft DNA Profiling Act

GeneWatch UK & the Council for Responsible Genetics, US — 2012-07-11T11:30:38Z

The Indian Code of Criminal Procedure was amended in 2005 to enable the collection of a host of medical details from accused persons upon their arrest. Section 53 of the Cr.PC provides that upon arrest, an accused person may be subjected to a medical examination if there are “reasonable grounds for believing” that such examination will afford evidence as to the crime.

The scope of this examination was expanded in 2005 to include “the examination of blood, blood-stains, semen, swabs in case of sexual offences, sputum and sweat, hair samples and finger nail clippings by the use of modern and scientific techniques including DNA profiling and such other tests which the registered medical practitioner thinks necessary in a particular case.”

In Thogorani Alias K. Damayanti v. State of Orissa and Ors, 2004 Cri. LJ 4003 (Ori), the Orissa High Court affirmed the legality of ordering a DNA test in criminal cases to ascertain the involvement of persons accused. Refusal to cooperate would result in an adverse inference drawn against the accused.

After weighing the privacy concerns involved, the court laid down the following considerations as relevant before the DNA test could be ordered: “(i) the extent to which the accused may have participated in the commission of the crime; (ii) the gravity of the offence and the circumstances in which it is committed; (iii) age, physical and mental health of the accused to the extent they are known; (iv) whether there are less intrusive and practical ways of collecting evidence tending to confirm or disprove the involvement of the accused in the crime; (v) the reasons, if any, for the accused for refusing consent.” Id.

In brief, the 2007 draft DNA Profiling Bill (hereinafter “Bill”) pending before parliament attempts to create an ambitious centralized DNA bank that would store DNA records of virtually anyone who comes within any proximity to the criminal justice system. Specifically, records are maintained of suspects, offenders, missing persons and “volunteers.” The schedule to the Bill contains an expansive list of both civil and criminal cases where DNA data can be collected including cases of abortion, paternity suits and organ transplant. In all fairness, the Bill contains provisions limiting access to and use of information contained in the database, and provides for the deletion of a person’s DNA profile upon their acquittal.

2007 Draft DNA Profiling Bill

Preamble (§ 1)

Section 1 of the Bill sets out the broad policy objectives of its drafters. The most telling portion of § 1 states: “[DNA analysis] makes it possible to determine whether the source of origin of one body substance is identical to that of another, and further to establish the biological relationship, if any, between two individuals, living or dead without any doubt.” Bill, § 1 (emphasis added). Although it later makes mention of potential harms resulting from governmental misuse of genetic information technology, it is evident that the policy animating the Bill presupposes the objective infallibility of genetic analysis. This patent mistruth underpins the policy rationale for the Bill, and as such casts a long shadow over its substantive provisions. At the very least, it tells the reader (and perhaps one day the court) to broadly interpret the Bill’s language to favor DNA analysis as the privileged solution to investigational and prosecutorial needs.

Definitions (§ 2)

A number of the Bill’s definitions are overbroad, further expanding the scope of its later provisions. The “crime scene index” is defined to include “DNA profiles from forensic material found . . . on or within the body of any person, on anything, or at any place, associated with the commission of a specified offence.” Id., § 2(1)(vii) et seq. A “specified offence” is defined as any of a number of more serious crimes, “or any other offence specified in the Schedule [to the Bill].” The so-called “Schedule,” tucked neatly on page 34 of the Bill’s 35 pages, lists a hodgepodge of various crimes from rape, to “offences relating to dowry,” defamation, and “unnatural 3 offenses.”[1] Taken together, the government is empowered to conduct genetic testing on almost anyone in any way connected with even minor infractions of the criminal law.

Furthermore, the crucial term “suspect” is defined as anyone “suspected of having committed an offence.” Id., § 2(1)(xxxvi). By intentionally leaving out the qualifier “specified,” the drafters’ intent is plain: to sweep within the Bill’s breadth all persons suspected of any crime whatsoever. And, accordingly, the Bill defines the “suspects index” to include “DNA profiles derived from forensic material lawfully taken from suspects.” Id., § 2(1)(xxxvix). It is hard to imagine anybody of subsequent regulation that could adequately circumscribe this manifest affront to personal privacy and bodily integrity.

DNA Profiling Board (§§3 to 13)

The DNA Profiling Board (hereinafter “Board”) is responsible for administering and overseeing the Indian DNA database. §3 et seq. Among its several enumerated powers, the Board is charged with “recommend[ing] privacy protection statutes, regulations and practices relating to access to, or use of stored DNA samples or DNA analyses,” as well as “mak[ing] specific recommendations to . . . ensure the appropriate use and dissemination of DNA information [and] take any other necessary steps require to be taken to protect privacy.” §13(1)(xv) to (xvi). This provision is in lieu of any substantive principle limiting the scope of the legislation, which the bill otherwise lacks.

This is a significant omission. As expressed in the preamble, the stated purpose of the Bill is “to enhance protection of people in the society and [the] administration of justice.” §1. Taken alone, this expresses only the government’s interest in the legislation, suggesting an ambiguously wide scope for its provisions. A substantive concept of individual privacy is required to counterbalance the interests of the government and provide protections for the equally vital privacy interests of the individual. As such, a limiting privacy principle should be included alongside the expressing in §1 of the government’s security interest. Without it, the Board will effectively have carte blanche with regard to what privacy protections are—or are not—adopted.

Approval of Laboratories (§§14 to 18)

Sections 14 to 18 provide for the approval by the DNA Profiling Board of DNA laboratories that will process and analyze genetic material for eventual inclusion on the DNA database. Under §14, all laboratories must be approved in writing prior to processing or analyzing any genetic material. However, a conflicting provision appears in the next section, §15(2), which permits DNA laboratories in existence at the time the legislation is enacted to process or analyze DNA samples immediately, without first obtaining approval.

Either an oversight on the part of the drafters, or the product of overly-vague language, the result is that established genetic laboratories—including whatever genetic material or profiles they may already have for whatever reason—are in effect “grandfathered” into the system. The only review of these laboratories is the post hoc approval of the laboratory by the DNA profiling board. The potential for abuse and error that this conflict of provisions would be best addressed in keeping with the rule articulated in §14, i.e. correcting the language of §15(2) that allows for laboratories to be “grandfathered” into the system.

Standards, Obligations of DNA Laboratory (§§19 to 28)

Chapter V, which concerns the obligations of and the standards to be observed by approved DNA laboratories, lacks adequate administrative provisions. For example, §22 requires that labs ensure “adequate security” to minimize contamination without providing for accountability in the event of contamination. Similarly, §28 provides for audits of DNA laboratories only, withholding from similar scrutiny of the DNA Profiling Board itself.

National DNA Database (§§33 to 37)

In addition on one national DNA database, the Bill sanctions the several Indian states to maintain their own DNA databases, provided these state-level databases forward copies of their content to the national database. Id., § 33(3). The national database is envisioned to comprise several sub-databases, each to contain the genetic information of a subset of persons/samples, namely: (1) unidentified crime scene samples, (2) samples taken from suspects, (3) samples taken from persons convicted or currently subject to prosecution for “subject offences,” (4) samples associated with missing persons, (5) samples taken from unidentified bodies, (6) samples taken from “volunteers,”[3] and finally (7) samples taken for reasons “as may be specified by regulations. Id., § 33(4) et seq. Putting to one side the breadth of persons subject to inclusion under subcategories (1) through (6), subsection (7) appears on its face to be a “catch all” provision, leaving one only to guess at the circumstances under which its specificities may be promulgated. Id.

A close reading of § 33(6) strongly suggests that the agency [4]conducting conducting the forensic analyses and populating the DNA database shall retain the DNA samples thereafter. This section reads in relevant part:

The DNA Data Bank shall contain . . . the following information, namely: (i) in the case of a profile in the offenders index, the identity of the person from whose body substance or body substances the profile was derived, and (ii) in case of all other profiles, the case reference number of the investigation associated with the body substance or body substances from which the profile was derived. Id., § 33(6).

Rather than choose to link the DNA profile data to a specific offender or case, the drafters of the Bill instead like the “body substance or body substances” with that specific offender or case. Whether sloppy drafting or clever nuance, this provision elides the DNA profile with the DNA sample, injecting unneeded—and potentially harmful—ambiguity into the proposed law.

Confidentiality, Access to DNA Profiles, Samples, and Records (§§ 38-44)

Further compounding this ambiguity, § 36 entitled “Access to Information” opens the door to much more than DNA profiles alone being kept on the government database. In all three of its subsections it purports to govern access to “the information” contained in the database, not “the DNA profiles” contained in the database. Id., § 36(1) et seq. Subsection 2 employs even broader language, covering “the information in the offenders’ index pertaining to a convict.” Id. Taken at face value, this provision of the Bill suggests that any and all sort of “information . . . pertaining to a convict” that might be derived from his or her DNA can be stored on the database. Even if prudential oversight provisions elsewhere in the Bill suggests a tightly-controlled techno-forensic apparatus, the overbroad construction of provisions such as §§ 33 and 36 raise significant questions about the wisdom of enacting the text in this form.

Two further provisions regarding access to the database warrant close scrutiny. First, §§ 39 and 40 purport to confer upon the police direct access to all of the information contained in the national DNA database. While administratively expedient, this arrangement opens up the possibility for misuse. A more prudent system would place the Board (or some administrative subordinate portion thereof) between the police and the content of the DNA database, with the latter having to make specific and particular requests to the former. This would minimize the risks inherent in the more expansive model of database access the bill currently envisions.

Second, and more concerning, § 41 permits the Data Bank Manager to grant access to the database to “any person or class of persons that the Data Bank Manager considers appropriate.” This is a sweeping provision. It vests in one individual the ability to permit almost anyone access to the DNA database—without administrative review or oversight of any kind. Taken together with the general lack of administrative safeguards in the bill, § 41 again places the government’s interest in investigating crime far above individual privacy rights.

Omissions

Most notably, the bill specifically excludes a private cause of action for the unlawful collection of DNA, or for the unlawful storage of private information on the national DNA database. Nor does the bill grant an individual right to review one’s personal data contained on the database. Without these two key features, there is effectively no check against the unlawful collection, analysis, and storage of private genetic information on the database.

Best Practices Analysis

Collection of DNA

With consent: only for a specific investigation (e.g. from a victim or for elimination purposes). Volunteers should not have information entered on a database	No provision
Without consent: only from persons suspected of a crime for which DNA evidence is directly relevant i.e. a crime scene sample exists or is likely to exist. Or, broader categories?	No provision
Requirement for an order by a court? Or allowed in other circumstances?	No provision
Samples collected by police officers, or only medical professionals? Must take place in a secure location i.e. not on the street etc.	No provision
Provision of information for all persons from whom DNA is taken	No provision
Crime scenes should be promptly examined if DNA evidence is likely to be relevant, and quality assurance procedures must protect against contamination of evidence	No provision; regulated at discretion of DNA Profiling Board

Analysis of DNA

Should take place only in laboratories with quality assurance	Regulated at discretion of DNA Profiling Board
Laboratories should be independent of police	No provision; regulated at discretion of DNA Profiling Board
Profiling standards must be sufficient to minimise false matches occurring by chance. This must take account of increased likelihood of false matches in transboundary searches, and with relatives.	No provision; regulated at discretion of DNA Profiling Board

Storage of DNA

Data from convicted persons should be separate from others e.g. missing persons’ databases	Unclear
Access to databases and samples must be restricted and there must be an independent and transparent system of governance, with regular information published e.g. annual reports, minutes of oversight meetings	Access to database at discretion of DNA Data Bank Manager
Personal identification information should not be sent with samples to laboratories	No provision; regulated at discretion of DNA Profiling Board
Any transfer of data e.g. from police station to lab or database, must be secure	No provision; regulated at discretion of DNA Profiling Board

User Samples and Data

Research uses should be restricted to anonymised verification of database performance (e.g. checking false matches etc.). Third party access to data for such purposes should be allowed, provided public information on research projects is published. There should be an ethics board.	No provision
Research uses for other purposes e.g. health research, behavioural research should not be allowed.	No provision
Uses should be restricted by law to solving crimes or identifying dead bodies/body parts. Identification of a person is not an acceptable use. Missing persons databases (if they exist) should be separate from police databases.	Ambiguous provisions suggest much wider scope
Familial searching should be restricted e.g. ordered by a court? Or not used? Or regulated for use in special cases?	No provision

Destruction of DNA and Linked Datas

DNA samples should be destroyed once the DNA profiles needed for identification purposes have been obtained from them, allowing for sufficient time for quality assurance, e.g. six months	DNA samples are retained
An automatic removals process is required for deletion of data from innocent persons. This must take place within a reasonable time of acquittal etc.	No provision
There should be limits on retention of DNA profiles from persons convicted of minor crimes	No provision
There should be an appeals process against retention of data	No provision
Linked data on other databases (e.g. police record of arrest, fingerprints) should be deleted at the same time as DNA database records	No provision
Crime scene DNA evidence should be retained for as long as a reinvestigation might be needed (including to address miscarriages of justice)	DNA evidence permitted to be retained indefinitely

Use in Court

Individuals must have a right to have a second sample taken from them and reanalysed as a check	No provision
Individuals must have a right to obtain re-analysis of crime scene forensic evidence in the event of appeal	No provision
Expert evidence and statistics must not misrepresent the role and value of the DNA evidence in relation to the crime	No provision

Other

Relevant safeguards must be proscribed by law and there should be appropriate penalties for abuse	No provision
Impacts on children and other vulnerable persons (e.g. mentally ill) must be considered	No provision
Potential for racial bias must be minimised	No provision

[1]. No examples are given as to which unnatural offences are intended, leaving the reader wondering. Perhaps a DNA test of witchcraft?
[2]. Section 15(2) does mandate that such laboratories petition the DNA Profiling Board for approval within six months after the legislation is enacted.
[3].Per § (2)(1)(xxxxiii) of the Definitions, a “volunteer” is “a person who volunteers to undergo a DNA procedure.” The definition does not require that the “volunteer” be informed of the nature, purpose, or possible consequences of his generosity; nor is any such requirement specified elsewhere in the Bill.
[4].Or, as is laid out in great detail in §§ 14-32, at the privately-contracted forensics laboratory.

Note: § is a symbol for 'section'.

For more details visit https://cis-india.org/internet-governance/indian-draft-dna-profiling-act

The Bots That Got Some Votes Home

Nilofar Ansher — 2015-04-24T11:56:10Z

Nilofar Ansher gives us some startling updates on the "Digital Natives Video Contest" voting results declared in May 2012, in this blog post.

It was a hint of suspicion raised by one of our colleagues at the Centre for Internet & Society that spurred our Web Analytics team to check into the voting activity of the contest that was all about the ‘Everyday Digital Native’. And while we acknowledged and celebrated the ‘digital’ in the native (users of technology), we forgot the human part that the digital has to engage with. Following weeks of deliberations, we now have conclusive evidence that points to irregularities in voting numbers of the Top 10 contestants. We are now staring at the elephant in the room: those innocuous little automated scripts we sweetly nicknamed, ‘bots’.

Internet bots, also known as web robots or simply bots, are software applications that run automated tasks over the Internet. Typically, bots perform tasks that are both simple and structurally repetitive, at a much higher rate than would be possible for a human alone. The largest use of bots is in web spidering, in which an automated script fetches, analyzes and files information from web servers at many times the speed of a human. Each server can have a file called robots.txt, containing rules for the spidering of that server that the bot is supposed to obey. In addition to their uses outlined above, bots may also be implemented where a response speed faster than that of humans is required (e.g., gaming bots and auction-site robots) or less commonly in situations where the emulation of human activity is required, for example chat bots (Source: Wikipedia).

What irregularities?

You would see how a script or bot would have played a role in ‘automating’ the votes for a video. The Top 10 videos received a combined voting number of 20,000+. The discrepancy occurs at the juncture where the votes polled on the front end (the webpage where the contestant video was visible to the public) did not match with the number of hits the page received on the backend (this is the analytics part). For instance, the top polled video has some few thousand votes more than the number of people who actually visited our CIS website in the same duration. This prompted a review of the logs and the possible “hand” of a nonhuman agent acting on its human creator’s command to drive up the votes.

How was this done? The Technicalities

The following graph shows the extremely high level of voting requests just before the closing date (March 31, 2012). This would not be extraordinary except for the fact that two or three entries had an exceptionally higher vote count relative to their page views as per the analytics statistics.

Analysis of the voting against the http requests for the voting link against page views

Entry	Actual Votes Recorded (1)	Direct http requests to votes (2)	http requests for normal page view access (3)	Recommended adjusted vote count (4)
Digital Dance	268	448	198	198
Big Stories, Small Town	3	10	112	3
Connecting Souls, Bridging Dreams	1113	2018	1685	1113
Deployed	191	479	195	191
From The Wild Into The Digital World	10317	11880	810	810
I Am A Ghetto Digital Native	321	365	844	321
Life in the City Slums	13	18	94	13
Digital Natives	111	328	102	102
With No Distinction	369	557	1232	369
Digital Coverage in a Digital World	9622	13650	181	181

These are the public votes displayed on the contestant’s page through the thumbs up icon
These are http requests to the voting link against each video when the user clicked on the thumbs up icon.
These are http requests which are collectively related to the video page (page view). A normal human user would browse through a page first, which downloads some other urls, such as the HTML for the page, JavaScript, images, and so on. A normal vote request would be included collectively. A direct http request to the voting link on the other hand does not do this, and only makes a specific request to vote without downloading the other parts that make up the page.
A normal human vote count should be the same or less than the number of page views. Only three videos highlighted show abnormal behaviour and it is recommended these be adjusted to the page view counts.

Are you saying contestants cheated?

While the use of programming scripts to accrue votes is no new tactic and we should, in fact, have a more robust mechanism to monitor such activity during a contest, we cannot prove the culpability of the human agents. The contestants might be innocent actors with overzealous friends or colleagues who ran the voting scripts. As of now, since there is no way to ascertain their part in this irregularity, it’s best we give them the benefit of the doubt. What comes through loud and clear is that once you do away with the scripted votes, four contestants still manage to have enough votes to maintain their positions in the final five. In the fifth position, we now have a contestant from the top ten finalists, who has secured the requisite votes (after vote adjustment) to propel him into the final five.

Recommendation

‘Digital Dance’ (Cijo Abraham), ‘From the Wild into the Digital World’ (John Musila) and ‘Digital Coverage in a Digital World’ (T.J. Burks) had additional vote url counts than page views. It is recommended that the total votes for these videos be adjusted to the page view counts, and not the actual vote counts as displayed on their individual web pages (thumbs up icon) during the voting period.

The rankings of the adjusted voting would now read as:

Connecting Souls, Bridging Dreams – Marie Jude Bendiola (1113)
From The Wild Into The Digital World - John Musila (810)
With No Distinction - T.J. K. M. (369)
I Am A Ghetto Digital Native – MJ (321)
Digital Dance – Cijo Abraham (198)

Transparency at CIS

‘The Digital Natives with a Cause?’ research inquiry is shaped around concerns of transparency, equity and community accountability. In our research methods as well as in outputs of the different activities, we have always maintained a complete transparency of decision making processes as well as in depending upon the incredible people we work with to help us learn, grow and reflect openly on the concerns that we have been engaged with. We strive to follow this method and in publishing these statistics, we want to ensure that there is complete transparency about the votes that were accrued and how the final winners were selected. We also take this opportunity as a learning experience to re-think the question of the non-human actors in our networks and further about the nature of participation and reputation online. We hope that the publishing of these results will help answer any inquiries on how the process unfolded.

View Logs and Source Code

All logs from the web server for this period (24.7MB) Identical IPs are from caching server.
R script to evaluate data for table

What next?

Since we spotted the error in time, we haven’t disbursed the prize money of EUR 500 to each of the Top 5 contestants. They will now receive the prize along with a chance to participate in the Digital Native workshop-cum-Webinar, slated to be held in July 2012. The top 10 videos will be showcased in this event.

For more details visit https://cis-india.org/digital-natives/bots-got-some-votes-home

Hyper-connected, Hyper-lonely?

Nilofar Ansher — 2015-04-24T11:57:46Z

The Digital Natives newsletter, part of the 'Digital Natives with a Cause?' project, invites contributions to its April-May 2012 double issue.

The April issue puts the spotlight on an emerging trope in society and media: the more connected we are to our gadgets, peer network and social media, the lonelier we feel. The debate, which traces its opening volley to Sherry Turkle's book 'Alone Together', will look at the recurrent media commentary that points to pop-surveys, anecdotes from psychologists, and conscientious academics who talk about increasing isolation among heavy gadget users. Since our gadgets are more often than not net enabled, it doesn't take a giant leap to infer that people who spend a lot of time online count themselves as part of the Lonely Hearts Club. Is loneliness a peculiarly modern phenomenon?
Editor: Shobha Vadrevu

In the May issue, we look at a technology that was considered sci-fi a decade ago, but is now the next best thing since our Smartphones: Augmented Reality. How do scientists and geeks go about augmenting our reality? How inspirational have movies (remember Minority Report) been in engaging imagination with what is commonplace and common sense? Does Google Glass excite you or scare you senseless? Would you still make distinctions between the virtual world and the real one?
Editor: Nilofar Ansher

We invite short pieces, lengthy reflections, haikus and verses, cartoons, graphics, videos, and other forms of creative expressions for both the issues. Deadline: June 21, 2012. For more information, email: nilofar.ansh@gmail.com

For more details visit https://cis-india.org/digital-natives/hyper-connected-hyper-lonely

pranesh — 2013-11-12T14:13:04Z

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

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

Welcome Changes

Provisions for Persons with Disabilities

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

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

Extension of Fair Dealing to All Works

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

Creative Commons, Open Licensing Get a Boost

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

Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too

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

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

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

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

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

Limited Protection to Some Internet Intermediaries

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

Compulsory Licensing Now Applies to Foreign Works Also

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

Worrisome Changes

Term of Copyright for Photographs Nearly Doubled

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

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

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

Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals

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

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

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

Digital Locks Now Provided Legal Protection Without Accountability

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

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

Removal of Parallel Importation

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

Expansion of Moral Rights Without Safeguards

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

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

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

Backdoor Censorship

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

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

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

Missed Opportunities

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

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

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

Amendments Not Examined

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

A Note on the Parliamentary Process

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

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

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

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

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

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

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

Users and Smaller Creators Left Out of Discussions

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

Concluding Thoughts

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

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

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

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