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Recommendations for the Covid Vaccine Intelligence Network (Co-Win) platform
https://cis-india.org/internet-governance/blog/an-analysis-of-the-covid-vaccine-intelligence-network-co-win-platform
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<p style="text-align: justify;" dir="ltr"> </p>
<p style="text-align: justify;" dir="ltr">The first confirmed case of Covid-19 was recorded in India on January 30, 2020, and India’s vaccination drive started 12 months later on January 16, 2021; with the anxiety and hope that this signals the end of the pandemic. The first phase of the vaccination drive identified healthcare professionals and other frontline workers as beneficiaries. The second phase, which has been rolled out from March 1, covers specified sections of the general population; those above 60 years and those between 45 years and 60 with specific comorbid conditions. The first phase also saw the deployment of the Covid Vaccine Intelligence Network (Co-Win) platform to roll out and streamline the Covid 19 vaccination process. For the purpose of this blog post, the term CoWIn platform has been used to refer to the CoWin App and the CoWin webportal. </p>
<p style="text-align: justify;" dir="ltr">During the first phase, <a href="https://www.livemint.com/news/india/covid-vaccination-in-india-health-min-says-registering-with-cowin-is-mandatory-11610678273260.html">it was mandatory </a>for the identified beneficiaries to be registered on the Co-Win App prior to receiving the vaccine. The Central Government had earlier indicated that it would be mandatory for all the future beneficiaries to register on the Co-Win app; however, the Health Ministry hours before the roll out of the second phase <a href="https://www.livemint.com/news/india/cowin-app-not-for-vaccine-registration-visit-its-portal-instead-ministry-of-health-11614581076188.html">tweeted t</a>hat beneficiaries should use the Co-Win web portal (not the Co-Win app) to register themselves for the vaccine. The App which is currently available on the play store is only for administrators; it will not be available for the general public. Beneficiaries can now access the vaccination by; (i) registering on the CoWin website; or (ii) Certain vaccination (sites) have a walk-in-facility: On-site registration, appointment, verification, and vaccination will all be on-site the same day; or (iii) register and get an appointment for the vaccination through the Aarogya Setu app. </p>
<p style="text-align: justify;" dir="ltr">The scale and extent of the global pandemic and the Covid-19 vaccination programme differs significantly from the vaccination/immunisation programmes conducted by India previously, and therefore, the means adopted for conducting the vaccination programme will have to be modified accordingly. However, as<a href="https://www.firstpost.com/india/glitches-in-cowin-2-0-hold-up-vaccination-centre-must-upgrade-app-capacity-to-meet-demand-say-experts-9361051.html"> several newspaper reports</a> have indicated the roll out of the CoWin platform has not been smooth. There are<a href="https://www.indiatoday.in/cities/mumbai/story/technical-glitches-in-cowin-app-again-affects-vaccination-drive-at-vaccination-centres-1769410-2021-02-15"> several glitch</a>es; from the user data being incorrectly registered, to beneficiaries not receiving the one time password required to schedule the appointment. </p>
<p style="text-align: justify;" dir="ltr">An entirely offline or online method (internet penetration is at 40% ) to register for the vaccine is not feasible and a hybrid model (offline registration and online registration) should be considered. However, the specified platform should take into account the concerns which are currently emanating from the use of Co-Win and make the required modifications. <br /> </p>
<h3 style="text-align: justify;">Privacy Concerns </h3>
<p style="text-align: justify;" dir="ltr">When the beneficiary uses the Co-Win website to register, she is required to provide certain demographic details such as name, gender, date of birth, photo identity and mobile number. Though Aadhar has been identified as one of the documents that can be uploaded as a photo identity, the Health Ministry in a response to a RTI filed by the Internet Freedom Foundation (IFF) clarified that Aadhaar is nor mandatory for registration either through the Co-Win website or through Aarogya Setu. While, the Government has clarified that the App cannot be used by the general public to register for the vaccination, it still leaves open the question of the status of the personal data of the beneficiaries identified in the first phase of the process, who were registered on the App, and whose personal details were pre-populated on the App. In fact in certain instances,<a href="https://www.thenewsminute.com/article/teething-troubles-privacy-concerns-look-co-win-india-s-vaccine-portal-142015"> Aadhar details</a> were uploaded on the app as the identity proof, without the knowledge of the beneficiary. </p>
<p style="text-align: justify;" dir="ltr">These concerns are exacerbated in the absence of a robust data protection law and with the knowledge that the Co-Win platform (App and the website) does not have a dedicated independent privacy policy. While the Co-Win web portal does not provide any privacy policy, the <a href="https://play.google.com/store/apps/details?id=com.cowinapp.app">privacy policy</a> hyperlinked on the App directs the user to the Health Data Policy of the <a href="https://ndhm.gov.in/health_management_policy">National Health Data Management Policy, 2020.</a> The Central Government approved the Health Data Management Policy on December 14, 2020. It is an umbrella document for all entities operating under the digital health ecosystem. </p>
<p style="text-align: justify;" dir="ltr">An analysis of the Health Policy against the key internationally recognised privacy principles which are represented in most data protection frameworks in the world, including the Personal Data Protection Bill, 2019, highlights that the Health Policy does not provide any information on data retention, data sharing and the grievance redressal mechanism. It is important to note that the Health policy has also been framed in the absence of a robust data protection law; the Personal Data Protection Bill is still pending before Parliament. </p>
<p style="text-align: justify;" dir="ltr">The Co-WIn website does not provide any separate information on how long the data will be retained, whether the data will be shared and how many ministries/departments have access to the data. </p>
<p style="text-align: justify;" dir="ltr">A National Health Policy cannot and should not be used as a substitute for specific independent privacy policies of different apps that may be designed by the Government to collect and process the health data of users. Health Data is recognised as sensitive personal data under the proposed personal data protection bill and should be accorded the highest level of protection. This was also reiterated by the Karnataka High Court in its<a href="https://www.livelaw.in/news-updates/karnataka-high-court-privacy-article-21-constitution-aarogya-setu-app-168950"> recent interim order</a> on Aarogya Setu. It held that medical information or data is a category of data to which there is a reasonable expectation of privacy, and “the sharing of health data of a citizen without his/her consent will necessarily infringe his/her fundamental right of privacy under Article 21 of the Constitution of India.” <br /><br /></p>
<h3 style="text-align: justify;">Link with Aarogya Setu</h3>
<p style="text-align: justify;" dir="ltr"> A beneficiary registered on the Co-Win platform can use the Aarogya Setu App to download their vaccination certificate. Beneficiaries have now also been provided an option to register for vaccination through Aarogya Setu. However, the rationale for linking the two separate platforms is not clear, especially as Aaroya Setu has primarily been deployed as a contact tracing application. </p>
<p style="text-align: justify;" dir="ltr">There is no information on whether the data (and to what extent) that is stored in the Co-Win platform will be shared with Aarogya Setu. It is also not clear whether the consent of the beneficiary registered on the Co-Win platform will be obtained again prior to sharing the data or whether registration on the Co-Win platform will be regarded as general consent for sharing the data with Aarogya Setu. This is contrary to the principle of informed consent (i.e the consent has to be unambiguous, specific, informed and voluntary), which a data fiduciary has to comply with prior to obtaining personal data from the data principal. The privacy policy of Aarogya Setu has also not been amended to reflect this change in the purpose of the App.<br /> </p>
<h3 style="text-align: justify;">Co-Win registration as an entry to develop health IDs?</h3>
<p style="text-align: justify;" dir="ltr"> One of the objectives of the Health Data Management Policy is to develop a digital unique health ID for all the citizens. The National Health Data Management Policy states that participation in the National Health Data Ecosystem is voluntary; and the participants will, at any time, have the right to exit from the ecosystem. Currently, the policy has been rolled out on a pilot basis in 6 union territories, namely; Chandigarh, Dadra & Nagar Haveli, Daman & Diu, Puducherry, Ladakh and Lakshadweep. As Health is a state subject under the Indian Constitution, <a href="https://scroll.in/latest/972361/new-health-data-policy-may-be-misused-for-surveillance-chhattisgarh-minister-writes-to-vardhan">Chhattisgarh</a> has raised concerns about the viability and necessity of the policy, especially in the absence of a robust data protection legislation. </p>
<p style="text-align: justify;" dir="ltr"> Mr. R.S. Sharma, the Chairperson of the ‘Empowered Group on Technology and Data Management to combat Covid-19’ had in an <a href="https://www.indiatoday.in/coronavirus-outbreak/vaccine-updates/story/exclusive-besides-co-win-aarogya-setu-self-register-indi-vaccine-drive-1760833-2021-01-20">interview to India Today</a> stated “ “Not just for vaccinations, but the platform will be instrumental in becoming a digital health database for India”. This indicates that this is an initial step towards generating health ID for all the beneficiaries. It would also violate the<a href="https://www.accessnow.org/india-cowin-app/"> principle of purpose limitatio</a>n, that data collected for one purpose (for the vaccine) cannot be reused for another (for the creation of the Digital Health ID system) without an individual’s explicit consent and the option to opt-out.<br /><br /></p>
<h3 style="text-align: justify;">Conclusion</h3>
<p style="text-align: justify;" dir="ltr"> <a href="https://www.thehindu.com/opinion/editorial/injecting-confidence-the-hindu-editorial-on-indias-covid-19-vaccination-drive/article33595220.ece">Given India’s experience and reasonable success with childhood immunisation</a>, there is reasonable confidence that the country has the ability to scale up vaccination. However, the vaccination drive should not be used as a means to set aside the legitimate concerns of the citizens with regard to the mechanism deployed to get pet people to register for the vaccination drive. As a first step it is essential that Co-Win has a separate dedicated privacy policy which conforms to the internationally accepted privacy principles and enumerated in the Personal Data Protection Bill. It is also essential that Co-Win or any other app/digital platform should not be used as a backdoor entry for the government to create unique digital health IDs for the citizens, especially without their consent and in the absence of a robust data protection law. </p>
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For more details visit <a href='https://cis-india.org/internet-governance/blog/an-analysis-of-the-covid-vaccine-intelligence-network-co-win-platform'>https://cis-india.org/internet-governance/blog/an-analysis-of-the-covid-vaccine-intelligence-network-co-win-platform</a>
</p>
No publisherPallavi BediAarogya SetuHealth TechPiracyinternet governanceHealthcaree-Governance2021-03-25T13:14:46ZBlog EntryCan Judges Order ISPs to Block Websites for Copyright Infringement? (Part 2)
https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2
<b>In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the second part, he looks at the law laid down by the U.S. Supreme Court and the Delhi High Court on secondary and contributory copyright infringement, and finds that those wouldn't allow Indian courts to grant "John Doe" orders against ISPs.</b>
<p style="text-align: justify; ">In the second part of his study, Ananth Padmanabhan proceeds to examine applying a general theory of secondary or contributory copyright infringement against ISPs. He traces the basis for holding a third party liable as a contributory by closely examining the decisions of the U.S. Supreme Court in Sony Corp. v Universal City Studios<a href="#fn1" name="fr1">[1] </a>and MGM Studios, Inc. v Grokster, Ltd.<a href="#fn2" name="fr2">[2] </a>and concludes that this basis does not hold good in the case of a mere conduit intermediary such as an ISP.</p>
<p>[<a href="#fr1" name="fn1">1</a>]. 464 U.S. 417 (1984). Hereinafter referred to as <i>Betamax</i>.</p>
<p>[<a href="#fr2" name="fn2">2</a>]. 545 U.S. 913 (2005). Hereinafter referred to as <i>Grokster.</i></p>
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<h2>Primary and Secondary Infringement</h2>
<p style="text-align: justify; ">Liability for copyright infringement can either be primary or secondary in character. In the case of ISPs, liability as primary infringers does not arise at all, and it is in their capacity as conduit pipes facilitating the transmission of information that they could be held secondarily liable. Even in such cases, the contention of copyright owners is that once the ISP is notified of infringing content, it has the primary responsibility of preventing access to such content. This contention is essentially rooted in a theory of secondary infringement based on knowledge and awareness, and the means to prevent further infringement.</p>
<p style="text-align: justify; ">The controversy around a suitable model of secondary infringement is reflected in two judicial pronouncements – separated by a gap of more than two decades – delivered by the U.S. Supreme Court. In <i>Sony Corp. v Universal City Studios</i>,[<a href="#fr3" name="fn3">3</a>] the US Supreme Court held that the manufacturers of home video recording devices known in the market as Betamax would not be liable to copyright owners for secondary infringement since the technology was capable of substantially non-infringing and legitimate purposes. The U.S. Supreme Court even observed that these time-shifting devices would actually enhance television viewership and hence find favour with majority of the copyright holders too. The majority did concede that in an appropriate situation, liability for secondary infringement of copyright could well arise. In the words of the Court, “<i>vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another</i>”. However, if vicarious liability had to be imposed on the manufactures of the time-shifting devices, it had to rest on the fact that they sold equipment with constructive knowledge of the fact that their customers <i>may</i> use that equipment to make unauthorized copies of copyrighted material. In the view of the Court, there was no precedent in the law of copyright for the imposition of vicarious liability merely on the showing of such fact.</p>
<p style="text-align: justify; ">Notes of dissent were struck by Justice Blackmun, who wrote an opinion on behalf of himself and three other judges. The learned Judge noted that there was no private use exemption in favour of making of copies of a copyrighted work and hence, unauthorised time-shifting would amount to copyright infringement. He also concluded that there was no fair use in such activity that would exempt it from the purview of infringement. The dissent held the manufacturer liable as a contributory infringer and reasoned that the test for contributory infringement would only be whether the contributory infringer had <i>reason to know or believe </i>that infringement would take place and <i>not whether he actually knew of the same</i>. Off-the-air recording was not only a foreseeable use for the Betamax, but also its intended use, for which Sony would be liable for copyright infringement.</p>
<p style="text-align: justify; ">This dissent has considerably influenced the seemingly contrarian position taken by the majority in the subsequent decision, <i>MGM Studios, Inc. v Grokster, Ltd.</i><a href="#fn4" name="fr4">[4]</a> This case called into question the liability of websites that facilitated peer-to-peer (P2P) file-sharing. Re-formulating the test for copyright infringement, the US Supreme Court held that ‘<i>one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties</i>’. In re-drawing the boundaries of contributory infringement, the Court observed that contributory infringement is committed by any person who intentionally induces or encourages direct infringement, and vicarious infringement is committed by those who profit from direct infringement while declining to exercise their right to limit or stop it. When an article of commerce was good for nothing else but infringement, there was no legitimate public interest in its unlicensed availability and there would be no injustice in presuming or imputing intent to infringe in such cases. This doctrine would at the same time absolve the equivocal conduct of selling an item with substantial lawful as well as unlawful uses and would limit the liability to instances of more acute fault than the mere understanding that some of the products shall be misused, thus ensuring that innovation and commerce are not unreasonably hindered.</p>
<p style="text-align: justify; ">The Court distinguished the case at hand from <i>Betamax</i>, and noted that there was evidence here of active steps taken by the respondents to encourage direct copyright infringement, such as advertising an infringing use or instructing how to engage in an infringing use. This evidence revealed an affirmative intent that the product be used to infringe, and an <i>active </i>encouragement of infringement. Without reversing the decision in <i>Betamax</i>, but holding that it was misinterpreted by the lower court, the Court observed that <i>Betamax</i> was not an authority for the proposition that whenever a product was capable of substantial lawful use, the producer could never be held liable as a contributory for the use of such product for infringing activity by third parties.<i> </i>In the view of the Court, <i>Betamax </i>did not displace other theories of secondary liability.<i> </i>This other theory of secondary liability applicable to the case at hand was held to be the inducement rule, as per which any person who distributed a device with the object of promoting its use to infringe copyright, as evidenced by clear expression or other affirmative steps taken to foster infringement, would be liable for the resulting acts of infringement by third parties. However, the Court clarified that <i>mere knowledge of infringing potential or of actual infringing uses would not be enough</i> under this rule to subject a distributor to liability. Similarly, ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability etc. would not by themselves attract the operation of this rule. The inducement rule, instead, premised liability on <i>purposeful, culpable expression and conduct</i>, and thus did nothing to compromise <i>legitimate</i> commerce or discourage innovation having a <i>lawful</i> promise.</p>
<p style="text-align: justify; ">These seemingly divergent views on secondary infringement expressed by the U.S. Supreme Court are of significant relevance for India, due to the peculiar language used in the Indian Copyright Act, 1957.<a href="#fn4" name="fr4">[4]</a></p>
<p style="text-align: justify; ">Section 51 of the Act, which defines infringement, bifurcates the two types of infringement – ie. primary and secondary infringement – without indicating so in as many words. While Section 51(a)(i) speaks to primary infringers, 51(a)(ii) and 51(b) renders certain conduct to be secondary infringement. Even here, there is an important distinction between 51(a)(ii) and 51(b). The former exempts the alleged infringer from liability if he could establish that <i>he was not aware and had no reasonable ground for believing that </i>the communication to the public, facilitated through the use of his “place”, would amount to copyright infringement. The latter on the other hand permits no such exception. Thus, any person, who makes for sale or hire, or by way of trade displays or offers for sale or hire, or distributes for the purpose of trade, or publicly exhibits by way of trade, or imports into India, any infringing copies of a work, shall be liable for infringement, without any specific <i>mens rea</i> required to attract such liability. It is in the context of the former provision, ie. 51(a)(ii) that the liability of certain file-sharing websites for copyright infringement has arisen.<a href="#fn5" name="fr5">[5]</a></p>
<h3 style="text-align: justify; ">Mere Conduit ISPs – Secondary Infringement Absent</h3>
<p style="text-align: justify; ">In <i>MySpace</i>, the Delhi High Court examined the liability for secondary infringement on the part of a website that provides a platform for file-sharing. While holding the website liable, the Single Judge considered material certain facts such as the revenue model of the defendant, which depended largely on advertisements displayed on the webpages, and automatically generated advertisements that would come up for a few seconds before the infringing video clips started playing. Shockingly, the Court even considered relevant the fact that the defendant did provide for safeguards such as hash block filters, take down stay down functionality, and rights management tools operational through fingerprinting technology, to prevent or curb infringing activities being carried on in their website. This, in the view of the Court, made it evident that the defendant had a <i>reasonable apprehension or belief </i>that the acts which were being carried on in the website <i>could</i> infringe someone else’s copyright including that of the plaintiff. The logic employed by the Court to attribute liability for secondary infringement on file-sharing websites is befuddling and reveals complete disregard for the degree of regulatory authority available on the internet even where the space, i.e., the website, is supposedly “under the control” of a person. However, a critical examination of this decision is not relevant in understanding the liability of mere conduit ISPs. This is for the reason that none of the factual considerations relied on by the Single Judge to justify imposition of liability on a file-sharing website under Section 51(a)(ii) arise when the defendant is an ISP that only provides the path for content-neutral transmission of data.</p>
<p style="text-align: justify; ">This was completely ignored by the Madras High Court in <i>R.K.Productions v. B.S.N.L.</i>,<a href="#fn6" name="fr6">[6] </a>where the producers of the Tamil film “3”, which enjoyed considerable pre-release buzz due to its song “Kolaveri Di”, sought an omnibus order of injunction against all websites that host torrents or links facilitating access to, or download of, this film. Though this was worded as a John Doe plaint by branding the infringers as unknown administrators of different torrent sites and so on, the real idea was to look to the resources and wherewithal of the known defendants, ie. the ISPs, to block access to the content hosted by the unknown defendants.</p>
<p style="text-align: justify; ">This prompted the ISPs to file applications under Or. VII, Rule 11 of the Civil Procedure Code, seeking rejection of the plaint on the ground that the suit against them was barred by law. The Single Judge of the Madras High Court dismissed these applications for rejection of the plaint, after accepting the contention that the ISPs are necessary parties to the suit as the act of piracy occurs through the channel or network provided by them. The High Court heavily, and incorrectly, relied on MySpace without appreciating the distinction between a mere conduit ISP and a file-sharing website such as MySpace or YouTube, as regards their respective roles and responsibilities, the differing degrees of regulatory control over content enjoyed by them, and most importantly, the recognition and formalisation of these distinctions in the Copyright Act, 1957, vide the Copyright (Amendment) Act, 2012.</p>
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<p>[<a href="#fr3" name="fn3">3</a>]. 464 U.S. 417 (1984). Hereinafter referred to as Betamax.</p>
<p>[<a href="#fr4" name="fn4">4</a>]. 545 U.S. 913 (2005). Hereinafter referred to as Grokster.</p>
<p>[<a href="#fr5" name="fn5">5</a>]. Hereinafter the Act.</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. <i>Super Cassette Industries Ltd. v MySpace Inc.</i>, MIPR 2011 (2) 303 (hereinafter referred to as <i>MySpace</i>). This decision of the Delhi High Court has been rightly criticised. <i>See </i><a href="https://cis-india.org/a2k/blogs/super-cassettes-v-my-space">http://cis-india.org/a2k/blog/super-cassettes-v-my-space</a> (last accessed on 24.03.2013).</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2'>https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2</a>
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No publisherananthAccess to KnowledgeCopyrightPiracyFeaturedHomepage2014-03-06T16:48:18ZBlog EntryCan Judges Order ISPs to Block Websites for Copyright Infringement? (Part 1)
https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-1
<b>In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this part, he looks at the theory behind John Doe orders and finds that it would be wrong for Indian courts to grant "John Doe" orders against ISPs.</b>
<p style="text-align: justify; ">The Madras High Court, in its 2012 order in <a href="https://cis-india.org/internet-governance/resources/john-doe-order-r.k.-productions-v.-bsnl-mtnl-and-ors.-movie-3" class="external-link"><i>R.K.Productions v. B.S.N.L.</i></a>,<a href="#fn1" name="fr1">[1] </a>has affirmed the possibility of a suit against internet service providers (ISPs) to block access to certain webpages upon notification by the copyright owner. Though this appears to be a reasonable order at first glance, keeping in mind the fact that access to identified copyrighted works alone is targeted and not websites in their entirety, the legal basis for the same is highly questionable. In this two-part study, Ananth Padmanabhan explores the legal sanctity of these orders, especially post the coming into force of the Copyright Amendment, 2012. The first part of this study explores the genesis of <a class="external-link" href="http://lawmantra.co.in/recent-inclination-of-indian-judiciary-to-pass-john-doe-orders-a-critical-analysis-on-the-perspective-of-copyright-infringement-of-film-productions/">John Doe orders</a> and proceeds to examine the conceptual problems arising from tagging along website blocking orders within the broad sweep of John Doe action. This part concludes that website blocking orders against ISPs stand separately from, and cannot be justified in the same manner as, John Doe orders.</p>
<p>[<a href="#fr1" name="fn1">1</a>]. (2012) 5 LW 626. Hereinafter referred to as <i>R.K. Productions</i>.</p>
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<h2>John Doe Orders and their Conceptual Understanding</h2>
<p style="text-align: justify; ">The concept of <i>John Doe Orders</i> in <i>ex parte </i>proceedings for copyright infringement came in due to the peculiar character of copyright piracy. Orders of this nature were being passed in jurisdictions across the world till they were, probably for the first time, passed in India in 2003. Since then, such orders have become a somewhat regular feature. In short, such orders permit the plaintiff to enforce an injunction order against unidentified / unnamed defendants, ‘John Doe’ being a generic name for such defendants. To understand the nature and mechanism of such enforcement and the various guidelines governing such orders, exploring the genesis of these orders is imperative.</p>
<p style="text-align: justify; ">In <a class="external-link" href="http://www.leagle.com/decision/19801290499FSupp791_11189"><i>Billy Joel v Various John Does</i></a>,<a href="#fn2" name="fr2">[2]</a> one of the earliest instances of a <i>John Doe </i>order, the plaintiff who was a musician and a successful recording artist, found to his annoyance that his success had spawned an underground industry that capitalised on his popularity through the sale of merchandise, usually T-shirts bearing his picture and name. These sales were carried on by unauthorised persons who showed up at his concerts with the merchandise and sold them outside the concert halls where he was performing. The plaintiff had in fact granted his recording company the exclusive right to market such merchandise, and the company was doing so inside the concert halls. Obviously, the presence of the unauthorised vendors outside the concert halls hurt the company’s sales and the plaintiff’s revenue share. This compelled him to approach the district court in Wisconsin seeking injunctive relief against various <i>"</i>John Does" or unidentified defendants who were carrying on the unauthorised sale of merchandise. The order was specifically sought seeking an <i>ex parte</i> temporary restraining order prohibiting certain unnamed persons from selling merchandise bearing the plaintiff’s name or likeness outside the Milwaukee Arena where he was scheduled to perform on that day. Thus, the order sought was confined to one particular instance and the situation demanded expedient preventive action since the concert was on the very same day.</p>
<p style="text-align: justify; ">The district court, while finding the propriety of an order against unidentified defendants "troubling", still went ahead and passed the order sought for. The court felt that the problem of the defendants’ identities would be met if the copies of the summons, complaint, and restraining order itself were to be served on all persons from whom merchandise connected with the plaintiff was seized on the night of the concert. Additionally, the<i> </i>court clarified that all these parties would be entitled to have their names added as parties to the cause title and even otherwise, to contest the seizures. The plaintiff had also furnished a bond to cover damages that may arise due to the awarding of such relief. The court applied the principle of <i>ubi jus ibi remedium</i> – where there is a wrong done, there has to be a remedy in law – while granting this relief. This is clear from the last paragraph of the judgement where the Court says : "<i>Were the injunction to be denied, plaintiffs would be without any legal means to prevent what is clearly a blatant infringement of their valid property rights. While the proposed remedy is novel, that in itself should not weigh against its adoption by this court. A court of equity is free to fashion whatever remedies will adequately protect the rights of the parties before it.</i>"</p>
<p style="text-align: justify; ">Subsequently, various courts in the United States have granted such relief. However, most such instances of judicial intervention in cases of piracy have confined themselves to specific instances of piracy as opposed to orders of wider applicability extending to more than one instance of apprehended or real piracy. For instance, in <a class="external-link" href="http://www.leagle.com/decision/19821605551FSupp1054_11443"><i>Brockum Intern., Inc. v Various John Does</i></a>,<a href="#fn3" name="fr3">[3]</a> the plaintiff sought a nation-wide order prohibiting the same activity in other cities visited by the popular rock band, The Who, on its national tour. The court declined to do so.</p>
<h3 style="text-align: justify; ">The Metallica Order</h3>
<p style="text-align: justify; ">In New Zealand, the High Court has specifically applied the principle of <i>ubi jus ibi remedium </i>while justifying the issuance of <i>John Doe Orders</i>. In <a class="external-link" href="http://swarb.co.uk/tony-blain-pty-ltd-v-splain-1994/"><i>Tony Blain Pty.Limited v Splain and other Persons Unknown</i></a>,<a href="#fn4" name="fr4">[4]</a> the court likened this kind of relief sought against unidentified defendants, to an order in the nature of <i>Anton Piller </i>remedy. The court stated that both these orders involved a common feature, being an intrusion into the privacy of the defendants. However, such an intrusion would be justified applying the maxim of <i>ubi jus ibi remedium</i>. According to the court, "<i>in circumstances where it is plain that persons are infringing proprietary interests which the law recognises, or deceiving the public by way of trade in a manner which may indirectly affect the commercial interests of others, the law should, if it reasonably can, provide a remedy"</i>. Emphasising on the conduct-centric nature of these reliefs, the court held that John and Jane Does will be known by their works.</p>
<p style="text-align: justify; ">However, in its attempt to bring in some safeguards before passing such an order, the court held that it would be better in the future to bring such applications a little in advance so that amicus curiae could be appointed to represent the view point of the John and Jane Does. Further, the court observed that it was important to build into the procedure appropriate protections, including means of informing persons served with orders for injunction in clear language and simple terms what their remedies were. These remedies, in turn, would include a right to apply to the court within twenty four hours for a review of the order and a right to claim damages in an appropriate case, not merely on the basis of the usual undertaking to be given by plaintiffs, but also on the basis of the tort of misfeasance of public office. It will also be necessary for the plaintiff to file before the court, a full report verified by affidavit, of the process of execution of the particular orders.</p>
<p style="text-align: justify; ">It is thus seen that the High Court, though keen to do justice by providing a remedy that is effective enough to protect the plaintiff’s rights, also tried to mitigate the harshness of the measures proposed by bringing in some safeguards. This decision gave birth to the <i>Metallica Order</i> in New Zealand, the New Zealander’s equivalent of a <i>John Doe Order</i>. It has to be added that the nature of the order passed by the High Court in this case is very detailed and can be used as precedent, even for the requisite format, by all courts that pass similar orders.<a href="#fn5" name="fr5">[5] </a></p>
<h3 style="text-align: justify; ">John Doe Orders in India</h3>
<p style="text-align: justify; ">The decision in <a class="external-link" href="http://www.institute-ip-asia.org/articles/IndiaReport2004.pdf"><i>Tej Television Ltd. v Rajan Mandal</i></a>,<a href="#fn6" name="fr6">[6]</a> will have to find first mention since these kind of orders against unidentified defendants hit the shores of the Indian legal landscape through this decision. Here, the plaintiff owned the Ten Sports television channel and had procured the broadcasting rights to several important sporting events including the 2002 Football World Cup matches. Being a paid channel, the cable operators had to part with royalty to the plaintiff for airing the programs broadcasted on this channel. To the plaintiff’s consternation, many local cable operators were airing these sporting events without taking licenses from the plaintiff / its authorised marketing agency. This resulted in the channel approaching the Delhi High Court and seeking, for the first time, a John Doe order against unidentified defendants. The channel had some evidence of unauthorised broadcasting of the initial matches by certain cable operators and apprehended that this conduct by more operators would not only result in revenue loss but also cause the 1377 cable operators, who had taken licenses from the plaintiff, to re-think the very necessity of doing so when they could air the sporting events in an unauthorised manner without any fear of liability. Another concern was the ease with which those who carried on the practise of unauthorised transmission could destroy any evidence of such conduct. The prayer sought by the plaintiff was an <i>ex parte</i> order against six named cable operators and “John Doe” orders against a further fourteen unnamed persons who, the plaintiff claimed, were wrongfully transmitting the Ten Sports channel. The order against unidentified defendants was sought to be justified on two broad grounds: (i) Section 151 of the Code of Civil Procedure, 1908, which gives courts the inherent power to evolve a fair and reasonable procedure for meeting exigent situations, and (ii) international practise in the form of John Doe orders issued by courts in various countries including the United States, United Kingdom, Canada and Australia.</p>
<p style="text-align: justify; ">The High Court refused to grant a John Doe order on the facts and circumstances of this case but also clarified that in an appropriate situation, courts could well award a John Doe order even in India. The court granted relief to the plaintiff by appointing a Court Commissioner who was authorised to visit the premises of various cable operators, and search, make an inventory, and take into custody all equipment / wires used for the broadcast of the plaintiff’s channel. The court empowered the Commissioner to take the assistance of technical experts and police officials in carrying out this order, and directed him to prepare a report after gathering evidence of cable piracy in the form of video recordings and photographs. The court also considered itself at liberty, on the basis of this report, to issue notices to all alleged violators, and after the hearing, to initiate civil and criminal action against them in accordance with law. The Court Commissioner was also empowered to issue warnings to such prospective violators though there was no mention of any contempt proceedings against the violators for ignoring the warning given by the Commissioner. Upon close examination, this order was nothing but a mild modification of the power vested in the court under Order XXVI, Rule 9 of the CPC.</p>
<h3 style="text-align: justify; ">Final and Interim John Doe Orders</h3>
<p style="text-align: justify; ">The Delhi High Court has, in some subsequent decisions, considered the possibility of a John Doe order without expressly granting the same. In <i><a class="external-link" href="http://delhicourts.nic.in/Jan09/Ardath%20Tobacco%20Co.%20Ltd.%20Vs.%20Mr.%20Munna%20Bhai.pdf">Ardath Tobacco Co. Ltd. v Munna Bhai & Ors</a>.</i>,<a href="#fn7" name="fr7">[7] </a>the plaintiff was the proprietor of a tobacco brand, “State Express 555”. Aggrieved by the conduct of the defendants who were distributing <i>"</i>Peacock" cigarettes in packaging and trade dress that bore deceptive similarity to that of the plaintiff’s brand, the plaintiff sought a John Doe order against all such distributors including unidentified ones. From the report, it appears that an <i>ex parte </i>order appointing Court Commissioners, similar to the order in <i>Tej Television</i>,<i> </i>was awarded by the High Court initially. In the final order, the court was constrained to confine the order of permanent injunction to the named defendants since the plaintiff had failed to identify any John Does and add them to the array of parties for the purpose of securing injunctive relief. The same was again found to be the case in <i>3M Company v A. Patel</i>,<a href="#fn8" name="fr8">[8] </a>where the final order of injunction was granted only against the 2 identified defendants.</p>
<p style="text-align: justify; ">Thus, in these cases, a distinction seems to be made between the interim orders that may be passed against the unidentified defendants, and the final relief granted by the court. The principle that emerges from these decisions is that orders against unidentified defendants can only go to the extent of collecting evidence against them through search of their premises by the Court Commissioner, or with the assistance of the Station House Officer (S.H.O) as was directed in <i><a class="external-link" href="http://indiankanoon.org/docfragment/100370340/?formInput=espn%20software%20india%20%20doctypes%3A%20judgments">ESPN Software India Private Ltd. v Tudu Enterprises</a>.</i><a href="#fn9" name="fr9">[9]</a> No final relief can be granted against any person who is unnamed in the array of parties as a defendant. The purpose of an <i>Ashok Kumar </i>order (as such orders are branded in India) is only to bring such persons on record.</p>
<h3 style="text-align: justify; ">John Doe Orders – Procedure and Guidelines</h3>
<p style="text-align: justify; ">Recently, the Delhi High Court has enunciated, with sufficient clarity, the procedure to be followed while granting interim orders against unidentified defendants. In <i>Luxottica S.R.L v Mr. Munny & Ors.</i>,<a href="#fn10" name="fr10">[10]</a> the plaintiff which owned the popular trade mark "Ray Ban" in respect of sunglasses, sought John Doe orders from the Delhi High Court with the aim of tacking rampant piracy and counterfeiting of its products. Surprisingly, there was no exigent necessity cited by the plaintiff for justifying the grant of such an order, unlike in <i>Billy Joel</i>, <i>Metallica</i>, <i>Brockum,</i> or <i>Tej Television</i>. Piracy had been going on in the past, and it continues to occur – that was broadly the case of the plaintiff here. Despite this, the Delhi High Court went on to issue an order of <i>ex parte </i>injunction restraining third parties from carrying on such counterfeiting activities. Extending the powers of the Court Commissioner, the High Court held:</p>
<p style="text-align: justify; padding-left: 30px; "><i>The Commissioners are also authorized to visit any other premises/warehouse/store where they may have reason to suspect and/or information be received that counterfeit optical sunglasses bearing the Plaintiffs trademark RAY BAN are being stored/sold/offered for sale and thereafter. In respect of such Ashok Kumar Defendants, upon the seizure of any infringing/counterfeit products, the Commissioners shall forthwith serve such Ashok Kumar Defendants with a complete set of papers and a copy of the notice and summons. The Commissioners will seize and make an inventory of all the infringing goods including packaging material, cartons, stationery, literature, dyes, blocks, moulds, etc. bearing the impugned RAY BAN trademark and sign all books of accounts including ledgers, cash books, purchase and sale records etc., and return the seized goods on suprdari to such Ashok Kumar defendants and obtain undertakings from each of them that they will produce the seized goods as and when directed by the court.</i></p>
<p style="text-align: justify; ">The object behind this order seems to be the prevention of any destruction of the evidence. In consonance with this object, the High Court has even made provision for return of the seized material to the unnamed defendants during the pendency of this order, and given them the option of approaching the court and vacating the <i>ex parte </i>order of injunction issued against them. This Luxottica decision can be considered as India’s equivalent of the <i>Metallica Order</i>, as it gives a clear roadmap for courts that pass such orders in the future. Considering that John Doe orders have attracted criticism on the ground that they make serious inroads into the rights of the defendant, these safeguards specifically articulated by the Court do go some way in addressing these concerns and mitigating the hardship caused to the defendants.</p>
<h3 style="text-align: justify; ">Website Blocking Orders</h3>
<p style="text-align: justify; ">An extension of the John Doe orders discussed above is the recent spate of decisions from various High Courts blocking access to certain websites that upload, or permit the uploading of, copyrighted content such as sound recordings and cinematograph films, without authorisation from the copyright owner. The relief granted is either movie-specific but against unknown persons, or website-specific.</p>
<p style="text-align: justify; ">To give a sample of the movie-specific relief: <i>For the foregoing reasons, defendants and other unnamed and undisclosed persons, are restrained from copying, recording or allowing camcording or communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading, or exhibiting, or playing, and/or defraying the movie ‘DON2’ in any manner without a proper license from the plaintiff or in any other manner which would violate/infringe the plaintiff?s copyright in the said cinematograph film ‘DON2’ through different mediums like CD, DVD, Blue- ray disc, VCD, Cable TV, DTH, Internet services, MMS, Pen drives, Hard drives, Tapes, CAS or in any other like manner.</i><a href="#fn11" name="fr11">[11] </a></p>
<p style="text-align: justify; ">Similarly, in <i>R.K.Productions Pvt. Ltd. v B.S.N.L. & Ors.</i><a href="#fn12" name="fr12">[12]</a>an order of the above nature has been passed in respect of the Tamil film "3". There are a few more that have already been passed by the Delhi and Madras High Courts, indicating that these kind of protective orders under Or.XXXIX R.1 and 2, read with Section 151 of the Code of Civil Procedure, 1908 are well going to be the order of the day, especially when it comes to online piracy of copyrighted content.</p>
<p style="text-align: justify; ">The Indian Music Industry and a sound recording label have also approached the Calcutta High Court and obtained an order of the second kind, ie. a direction to the known defendants who are Internet Service Providers (ISPs), to block access to various websites listed in the Schedule to the Plaint, which are used exclusively for providing unauthorised access to copyrighted sound and video recordings. The order<a href="#fn13" name="fr13">[13]</a> is extracted below:</p>
<p style="padding-left: 30px; text-align: justify; "><i>This is an application by the plaintiffs in aid of a suit complaining of copyright infringement. The plaintiff no. 1 and the members of the plaintiff no. 2 are the copyright owners of Hindi film songs. It is argued that the website mentioned in the prayers are posting and playing the songs, without any copyright or licence. This application is made ex parte on the apprehension that if notice of this application was served on the website they would shift their service to a different website. </i></p>
<p style="padding-left: 30px; text-align: justify; "><i>In those circumstances, I pass an order of injunction in terms of prayer (a) of the Notice of Motion till further orders. I direct the respondent ISPs to indicate to the plaintiff the address of the website owner/operator referred to in the prayers.</i><i><br /><br />I also make it clear that the above order of blocking should be confined to the above website only and <span>should not otherwise interfere with internet service</span>.</i></p>
<p style="text-align: justify; ">The last part of the last sentence extracted above has been emphasised as this is precisely what is happening as a consequence of the dual kind of orders discussed in this section. Though the first kind of order is, on its own terms, confined to only the film that is the subject matter of the suit, ISPs have used it to block access to entire websites in contravention of all recognised principles of network neutrality. Even in the case of the second kind of orders, there is absolutely no transparency as to how ISPs have been interpreting the order, and what websites are being targeted by them under the garb of such an order.<a href="#fn14" name="fr14">[14]</a> It is a well-established maxim that courts and judicial orders cannot be used as a vehicle for oppression, harassment, or to perpetrate abuse of power. This is precisely what has been witnessed since the last year in relation to the website blocking, and film-access blocking, orders passed by different courts. It is felt that legislative intervention is absolutely necessary in this field without any further delay to lay down parameters for exercise of judicial power under Section 151 of the Code of Civil Procedure, which power can otherwise be construed in any manner by any Court with little checks and balances on the possibility of such exercise of power.<a href="#fn15" name="fr15">[15] </a></p>
<h3 style="text-align: justify; ">Conceptual Differences between John Doe and Website Blocking Orders</h3>
<p style="text-align: justify; ">The most crucial point of distinction between these two types of orders is that while <i>John Doe </i>orders speak to the primary infringer, website blocking orders impose onerous responsibility on the ISP. <i>John Doe</i> orders as used in India thus far have served the purpose of a blanket search and seize mandate to gather evidence of direct infringement. As seen above, the final relief in the suit is granted only against those John Does who are subsequently identified and arrayed as parties to the main suit.<a href="#fn16" name="fr16">[16]</a> Website blocking orders, on the other hand, amount to granting the final relief at the interim stage itself, as access is blocked to web links hosted by unknown persons by taking recourse to the ISP.</p>
<p style="text-align: justify; ">Moreover, there is a vital difference between holding primary infringers liable and making mere conduits, such as ISPs. parties to a civil suit. The maxim <i>ubi jus ibi remedium</i> is clearly applicable in the former case, because the remedy is fashioned to bring on board the primary infringer and then afford him an opportunity of hearing before confirming the <i>ex parte </i>order against him. In the case of website blocking orders, the court straightaway directs the ISP to block access to the content, and the third party infringer is really a non-entity in the whole process as the attempt is not to bring him on board or to gather evidence. Hence, it is impermissible for an Indian court to grant an <i>ex parte </i>order directing the denial of access to a website or webpage by taking umbrage under its power to grant a John Doe order. However, Indian courts have done so, and the recent decision of the Madras High Court in <i>R.K.Productions v. B.S.N.L.</i><a href="#fn17" name="fr17">[17] </a>has also affirmed the legality of such action. The court has judicially created a responsibility on ISPs that is akin to the take-down requirements thrust upon file-sharing websites, and which kicks in upon notice of infringing content given to the ISP by the copyright owner. This decision deserves serious critical evaluation, and an understanding of the different types of liability for copyright infringement is material for the same.</p>
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<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. 499 F.Supp. 791 (1980). Hereinafter referred to as <i>Billy Joel</i>.</p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. 551 F.Supp. 1054 (D.C.Wis.,1982). Hereinafter referred to as <i>Brockum</i>.</p>
<p style="text-align: justify; ">[<a href="#fr4" name="fn4">4</a>]. [1994] F.S.R. 497. Hereinafter referred to as <i>Metallica. </i>The plaintiff here was the exclusive authorised merchandiser for Metallica and Sir Paul McCartney, and the piracy alleged was similar to the one in Billy Joel’s case. Here too, the order was sought in respect of a specific concert to be held in Auckland within the next few days. The plaintiff innovatively sought an order by virtue of which certain solicitors named in the plaintiff’s application would, due to their status as officers of the court, be authorised to accost bootleggers at the concert venues and require them to provide their current addresses and evidence of identity, and these bootleggers would have to surrender up to these named solicitors all merchandise including T-shirts, head-bands, badges, or programmes in their possession or control.</p>
<p style="text-align: justify; ">[<a href="#fr5" name="fn5">5</a>]. <i>See <a class="external-link" href="http://www.5rb.com/case/Bloomsbury-Publishing-Group-Ltd-v-News-Group-Newspapers-Ltd-%28No.2%29">Bloomsbury Publishing Group Limited v News Group Newspapers Ltd</a>.</i> [2003] 3 All E.R. 736.</p>
<p style="text-align: justify; ">[<a href="#fr6" name="fn6">6</a>]. [2003] F.S.R. 22. Hereinafter referred to as <i>Tej Television</i>.</p>
<p style="text-align: justify; ">[<a href="#fr7" name="fn7">7</a>]. 2009 (39) PTC 208 (Del).</p>
<p style="text-align: justify; ">[<a href="#fr8" name="fn8">8</a>]. Order dated 15.01.2009 in C.S. (O.S.) 1771 / 2006, reported as MANU/DE/1991/2009.</p>
<p style="text-align: justify; ">[<a href="#fr9" name="fn9">9</a>]. MANU/DE/1061/2011.</p>
<p style="text-align: justify; ">[<a href="#fr10" name="fn10">10</a>]. Order dated 25.09.2009 in C.S. (O.S.) 1846 / 2009, available at <a href="http://courtnic.nic.in/dhcorder/dhcqrydisp_o.asp?pn=173895&yr=2009">http://courtnic.nic.in/dhcorder/dhcqrydisp_o.asp?pn=173895&yr=2009</a> (last accessed on 24.03.2013)</p>
<p style="text-align: justify; ">[<a href="#fr11" name="fn11">11</a>]. Order of the Delhi High Court dated 19.12.2011 in I.A. No.20510/2011 in C.S.(O.S.) No. 3207/2011 (<i>Reliance Big Entertainment Pvt Ltd v Multivision Network & Ors.</i>)<i>, </i>available<i> </i>at <a href="http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=269404&yr=2011">http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=269404&yr=2011</a> (last accessed on 24.03.2013)</p>
<p style="text-align: justify; ">[<a href="#fr12" name="fn12">12</a>]. Order of the Madras High Court dated 29.03.2012 in O.A.No. 230 of 2012 in C.S.No. 208 of 2012, the link to which is provided at <a href="http://spicyipindia.blogspot.in/search?q=madras+high+court+first+john+doe">http://spicyipindia.blogspot.in/search?q=madras+high+court+first+john+doe</a> (last accessed on 24.03.2013)</p>
<p style="text-align: justify; ">[<a href="#fr13" name="fn13">13</a>]. Order of the Calcutta High Court dated 27.01.2012 in GA No. 187 of 2012 in CS No. 23 of 2012 (<i>Sagarika Music Pvt. Ltd. & Ors. v Dishnet Wireless Ltd. & Ors.</i>), available at <a href="http://www.indiankanoon.org/doc/147345981/">http://www.indiankanoon.org/doc/147345981/</a> (last accessed on 24.03.2013)</p>
<p style="text-align: justify; ">[<a href="#fr14" name="fn14">14</a>]. The prayers sought in some of these civil suits are in complete contravention of the salutary principle in Or.VII, R.7 of the Code of Civil Procedure, 1908, that “<i>every plaint shall state specifically the relief which the plaintiff claims</i>”.</p>
<p style="text-align: justify; ">[<a href="#fr15" name="fn15">15</a>]. The website blocking order dated 29.01.2013 passed by a District Court in Dabra near Gwalior in respect of websites that posted content related to the Indian Institute of Planning and Management, a Business School, and the subsequent unblocking order by the same Court dated 28.02.2013 have again brought back the spotlight on the legality of such orders passed by the judiciary. <i>See </i><a href="http://economictimes.indiatimes.com/tech/internet/unblock-urls-about-iipm-court/articleshow/18743461.cms">http://economictimes.indiatimes.com/tech/internet/unblock-urls-about-iipm-court/articleshow/18743461.cms</a> (last accessed on 24.03.2013).</p>
<p style="text-align: justify; ">[<a href="#fr16" name="fn16">16</a>]. <i>Ardath Tobacco Co. Ltd. v Munna Bhai & Ors.</i>, 2009 (39) PTC 208 (Del); <i>3M Company v A. Patel</i>, MANU/DE/1991/2009.</p>
<p style="text-align: justify; ">[<a href="#fr17" name="fn17">17</a>]. (2012) 5 LW 626. Hereinafter referred to as <i>R.K.Productions</i>.</p>
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For more details visit <a href='https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-1'>https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-1</a>
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No publisherananthPiracyCopyrightAccess to Knowledge2014-01-31T06:00:47ZBlog EntryEntertainment industry and Internet piracy in focus
https://cis-india.org/news/www-the-hindu-sep-17-2012-krishnadas-rajagopal-entertainment-industry-and-internet-piracy-in-focus
<b>The first-of-its-kind initiative by the anti-piracy cell of the Kerala Police to register cases against 1,010 Internet users for uploading or downloading the Malayalam film Bachelor Party has sparked a debate between social media experts and legal puritans on what the law actually says.</b>
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<p class="body" style="text-align: justify; ">Krishnadas Rajagopal's article was <a class="external-link" href="http://www.thehindu.com/news/states/kerala/article3904909.ece">published</a> in the Hindu on September 17, 2012. Pranesh Prakash and Prashant Iyengar are quoted.</p>
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<p class="body" style="text-align: justify; ">Internet users and anti-monopoly advocates say the police action against movie downloaders is “questionable.” They argue how the Copyright Act, 1957, has given wide exception to those who disseminate copyright works for “personal and private use.”</p>
<p class="body" style="text-align: justify; ">Legal puritans, on the other hand, quote the same 1957 law and the Information Technology (IT) Act, 2000, to argue that the State police have not done anything wrong.</p>
<p class="body" style="text-align: justify; ">They say the act of uploading and downloading a copyrighted cinematographic work amounts to publishing and transmitting it, respectively.</p>
<p class="body" style="text-align: justify; ">They cite Section 66 of the IT Act, 2000, that says a “hacker,” if found guilty, can get three years’ imprisonment, a fine up to Rs.2 lakh, or even both.</p>
<p class="body" style="text-align: justify; ">That’s not all. Section 43 of the same statute prescribes that a “hacker” may have to cough up Rs.1 crore in compensation in case of “damage to the computer system.”</p>
<p><b>Middle line</b></p>
<p style="text-align: justify; ">Some others draw the middle line about the police’s drive. They say that though downloading is as illegal as buying a pirated CD from the market and “ignorance of law is no excuse to escape prosecution under an existing law,” the sheer magnitude of registering mass cases against downloaders, probably on a global scale, is impractical.</p>
<p style="text-align: justify; ">“It is questionable whether downloading for personal use by itself constitutes an offence under the Copyright Act, 1957. The Act has created a wide exception for personal and private use,” says Pranesh Prakash, programme manager for Access to Knowledge, Openness, Internet Governance and Freedom of Speech at The Centre for Internet and Society in Bangalore.</p>
<p style="text-align: justify; ">The usage “personal and private use” in the Act can be better understood in the contrast — that is, downloading without any intention to “disseminate the cinematographic work to a community you are not provisionally associated to.”</p>
<p><b>Legislative intent</b></p>
<p style="text-align: justify; ">Prashant Iyengar, Assistant Professor and Assistant Director, Centre for Intellectual Property Rights Studies, Jindal Global Law School, says the legislative intent behind the wide exceptions given to dissemination of work in the 1957 law is actually strengthening the public domain.</p>
<p style="text-align: justify; ">“In India under the Copyright Act, we have a robust regime of fair dealing rights to ensure that information cannot be monopolised at the expense of the public’s access to information,” he says.</p>
<p style="text-align: justify; ">He refers to Section 52 of the Act that allows reproduction of literary, artistic, musical, and dramatic works for research and private uses without any “quantitative restriction” on the amount that may be copied. “However, cinematographic works do not fall under this exception,” he says.</p>
<p style="text-align: justify; ">Under Section 51, a single copy of a cinematographic work could be “imported” to India for personal and domestic use. This would not amount to copyright infringement.</p>
<p style="text-align: justify; ">“But it is currently unsettled in law whether Section 51 would protect users downloading movies for their personal use. On the other hand, if you receive a copy of a movie CD by post, this section would clearly apply,” Mr. Iyengar says.</p>
<p style="text-align: justify; ">Pavan Duggal, senior Supreme Court lawyer specialising in cyber laws, differs in his opinion. As far as he is concerned, the law is clear against copyright infringement.</p>
<p style="text-align: justify; ">He says unauthorised downloading of movies also attracts action under the IT Act, 2000. “The legal perspective is that when you upload a pirated copy, you are doing an act of publishing and when you click the ‘download’ button, you are transmitting data in an electronic format for the purpose of diminishing the value of electronic information,” he says.</p>
<p style="text-align: justify; ">“The Kerala Police have not done anything fundamentally wrong by registering cases against uploaders and downloaders. When I am creating a film, I have copyright to both cinematic and electronic versions. In case of infringement, I can act by suing for damages, injunction, in addition to exposing the person to criminal liability under the Copyright Act,” Mr. Duggal says.</p>
<p style="text-align: justify; ">However, Mr. Iyengar vehemently counters the point. He asks a “pertinent” question — how the Kerala Police conducted their probe and how the Internet Protocol addresses were obtained when Internet service providers have strict privacy obligations against disclosure of any such details, except to government authorities.</p>
<p style="text-align: justify; ">“In this case, one hears that a private investigation firm called ‘Jadoo Infotech’ was involved in conducting ‘cyber-patrolling,’ which is not authorised by any law. They would be guilty of the digital equivalent offence of ‘lurking house trespass’,” Mr. Iyengar says.</p>
<p style="text-align: justify; ">But Nandagopal Rajan, an associate editor with a technology magazine in Delhi, has a simple logic grounded in law.</p>
<p>“Anybody who is downloading illegally cannot seek protection. You are actually doing something illegal. On the flip side, how many people can you prosecute?” he asked.</p>
<p>
For more details visit <a href='https://cis-india.org/news/www-the-hindu-sep-17-2012-krishnadas-rajagopal-entertainment-industry-and-internet-piracy-in-focus'>https://cis-india.org/news/www-the-hindu-sep-17-2012-krishnadas-rajagopal-entertainment-industry-and-internet-piracy-in-focus</a>
</p>
No publisherpraskrishnaPiracyCopyrightAccess to Knowledge2012-09-17T10:00:54ZNews ItemAnalysis of the Copyright (Amendment) Bill 2012
https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012
<b>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.</b>
<p>The <a class="external-link" href="http://164.100.24.219/BillsTexts/RSBillTexts/PassedRajyaSabha/copy-E.pdf">Copyright (Amendment) Bill 2012</a> 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’).</p>
<h2>Welcome Changes</h2>
<h3>Provisions for Persons with Disabilities</h3>
<p>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.</p>
<p>Given that the Delhi High Court has — wrongly and <a class="external-link" href="http://en.wikipedia.org/wiki/Per_incuriam">per incuriam</a>, 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.</p>
<h3>Extension of Fair Dealing to All Works</h3>
<p>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.</p>
<h3>Creative Commons, Open Licensing Get a Boost</h3>
<p>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.</p>
<h3>Physical Libraries Should Celebrate, Perhaps Virtual Libraries Too</h3>
<p>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:</p>
<p class="discreet">"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."</p>
<p>Even after this, the overwhelming majority of the ‘video lending libraries’ that you see in Indian cities and towns continue to remain illegal.</p>
<p>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 <a class="external-link" href="http://internetarchive.org/">Internet Archive</a>, or help spread the idea of the <a class="external-link" href="http://openlibrary.org/">Open Library</a> in India.</p>
<p>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.</p>
<h3>Limited Protection to Some Internet Intermediaries</h3>
<p>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'.</p>
<h3>Compulsory Licensing Now Applies to Foreign Works Also</h3>
<p>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.</p>
<h2>Worrisome Changes</h2>
<h3>Term of Copyright for Photographs Nearly Doubled</h3>
<p>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.</p>
<p>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.</p>
<p>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 <a href="http://deviantlight.blogspot.com">Bipin Aspatwar</a>, 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.</p>
<h3>Cover Versions Made More Difficult: Kolaveri Di Singers Remain Criminals</h3>
<p>The present amendments have brought about the following changes, which make it more difficult to produce cover versions:</p>
<ol>
<li> Time period after which a cover version can be made has increased from 2 years to 5 years.</li>
<li>Requirement of same medium as the original. So if the original is on a cassette, the cover cannot be released on a CD.</li>
<li>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.</li>
<li>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".</li>
<li>All cover versions must state that they are cover versions.</li>
<li>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.</li>
<li>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".</li>
</ol>
<p>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.</p>
<h3>Digital Locks Now Provided Legal Protection Without Accountability</h3>
<p>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), <a href="https://cis-india.org/a2k/blogs/tpm-copyright-amendment" class="external-link">in great detail earlier</a>, I won’t repeat the arguments at length. Very briefly:</p>
<ol>
<li>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.</li>
<li>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.</li>
</ol>
<h3>Removal of Parallel Importation</h3>
<p>In past blog posts I have covered <a href="https://cis-india.org/a2k/blogs/parallel-importation-of-books" class="external-link">why allowing parallel imports makes sense in India</a>. 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<a class="external-link" href="http://www.ncaer.org/"> NCAER</a> report he has commissioned (which will be out by August or September) recommends the introduction of parallel imports.</p>
<h3>Expansion of Moral Rights Without Safeguards</h3>
<p>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 <a class="external-link" href="http://en.wikipedia.org/wiki/Stephen_James_Joyce">Stephen Joyce</a>, 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:</p>
<p class="callout">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".</p>
<p>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.</p>
<h3>Backdoor Censorship</h3>
<p>As noted above, the provision that safeguard Internet intermediaries (like search engines) is very limited. However, that provision has an extensive removal provision:</p>
<p class="callout">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;</p>
<p>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.</p>
<h2>Missed Opportunities</h2>
<h3>Fair Dealing Guidelines, Criminal Provisions, Government Works, and Other Missed Opportunities</h3>
<p>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.</p>
<ul>
<li> 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.</li>
<li>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.</li>
<li>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.</li>
<li>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.</li>
<li>Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.</li>
<li>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.</li>
<li>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.</li>
</ul>
<h2>Amendments Not Examined</h2>
<p>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.</p>
<h2>A Note on the Parliamentary Process</h2>
<p>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.<br /><br />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.</p>
<p>Much of the discussion (in both <a class="external-link" href="http://164.100.47.5/newdebate/225/17052012/Fullday.pdf">the Rajya Sabha</a> and <a class="external-link" href="http://164.100.47.132/newdebate/15/10/22052012/Fullday.pdf">the Lok Sabha</a>) 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.</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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 <a class="external-link" href="http://williampatry.blogspot.in/2007/07/statute-of-anne-too-generous-by-half.html">are already</a> <a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2024588">too long</a>, and all increases in term are what economists refer to as <a class="external-link" href="http://en.wikipedia.org/wiki/Deadweight_loss">deadweight losses</a>. 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.</p>
<h2>Users and Smaller Creators Left Out of Discussions</h2>
<p>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 <a href="https://cis-india.org/a2k/publications/copyright-bill-submission" class="external-link">to the Standing Committee on behalf of 22 civil society organizations</a>, 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.</p>
<h2>Concluding Thoughts</h2>
<p>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.</p>
<p><a class="external-link" href="http://infojustice.org/archives/26243">This was reposted in infojustice.org on May 25, 2012</a></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012'>https://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012</a>
</p>
No publisherpraneshAccess to KnowledgeFair DealingsPiracyIntellectual Property RightsEconomicsIntermediary LiabilityFeaturedTechnological Protection Measures2013-11-12T14:13:04ZBlog EntryTwists and turns of the SOPA opera
https://cis-india.org/news/twists-and-turns-of-the-sopa-opera
<b>Proposed DNS filtering threatens the core protocol on which the Internet's universality depends, writes Deepa Kurup in this article published in the Hindu on 15 January 2012. Sunil Abraham is quoted in this.</b>
<p>As the debate over piracy and copyright infringement on the web hots up in the United States, with the Government seeking to clamp down on intellectual property rights violations online, Internet majors Reddit, Wikipedia and others are planning a complete “Internet blackout” of their services for 12 hours on January 18.</p>
<p>This is in protest against the Stop Online Piracy Act (SOPA), introduced in the House of Representatives last year, and a related legislation in the U.S. Senate, the Protect IP Act.</p>
<p>The way the debate is playing out pits the large media corporations — movie houses, record companies and other IP holders — against ‘Internet users', backed by powerful Internet intermediaries such as Google and Yahoo!, who also stand to lose in a clampdown on websites and services that host content that violates U.S. copyright laws. </p>
<h3>Global Relevance</h3>
<p>Significantly, the proposed law, backed by big business interests, equips the U.S. Government to act against any website hosting content that it believes infringes copyright, even if hosted overseas. This makes SOPA relevant, globally.</p>
<p>The proposed action could involve domain name system (DNS) filtering or blocking, directing advertisement providers and web payment services to stop doing business with the host and preventing search engines from linking to the site. Penalties for simply streaming copyrighted content, such as movies, personal recordings of television shows or even a clipping of your favourite pop song, could be up to five years.</p>
<p>On the technology side, experts have argued that the proposal to allow DNS filtering (or blocking) can potentially weaken and destabilise the Internet. DNS servers convert every request made in a human-friendly languageto an IP address that computers and networks understand. Now what SOPA proposes is that at this DNS server level, when a request is made for “rogue sites”, it is redirected.</p>
<p>Technically, experts believe that this will have huge implications of the stability of the internet. A whitepaper titled ‘Technical concerns raised by DNS filtering requirements', authored by technology experts, claims that while this will promote more techniques to circumvent the DNS, it threatens “the ability of DNS to provide universal naming, a primary source of the Internet's values as a single, unified, global communications network.”</p>
<p>The DNS is a protocol that allows for universality, which lies at the core of the internet, enabling it to grow and become the important, borderless medium it is today. Further, such blocking would make it tough to distinguish between a resolution failure and a request from a hacked server, creating security concerns. It would also be counterproductive to existing Internet security protocols. </p>
<h3>A Firewall</h3>
<p>While opponents of the Bill have attacked it as an attempt to create a “firewall” — akin to or even worse than the infamous one that China has for its citizens — they point out that it is at stark odds with the oft-repeated stance of the U.S. on “Internet openness”. </p>
<p>Companies in the business of providing web services are, understandably, against the law as it allows the Government to block access to any intermediaries that facilitate or host any material that infringe on copyrights. This affects every service that hosts user-generated content.</p>
<p>In an advertisement published in The New York Times, nine internet majors including eBay, Google, Yahoo! And LinkedIn, urged the Government to find “targeted ways” to combat “foreign rogue websites” while preserving “the innovation and dynamism” that make the internet a driver of “growth and job creation”. Ironically, the Government too seeks to address protection of jobs and economic interests through this legislation.</p>
<h3>Politics of the Internet</h3>
<p>In terms of infrastructure, the U.S. controls critical web resources. Contrasting this to the Chinese firewall that blocks content for users within its jurisdiction, the U.S. decision to redirect a link can act as a “global block”, explains Sunil Abraham, director of the Centre for Internet and Society. Physically, seven of 13 root servers (or clusters) that run the DNS system, are located in the U.S., he points out. So, for an Indian citizen who chooses to record the latest episode of Dexter and stream it online, it means that both his site and the intermediary could be blacked out, in a post-SOPA world. Currently, the IP holder would have to take the trouble of reporting or challenging this in an Indian court, Mr. Abraham explains.</p>
<p>In recent years, countries led by Brazil, India and China have been lobbying for a greater role for multilateral bodies in controlling the Internet. In 2010, the U.S. Government “liberated” the ICANN (Internet Corporation for Assigned Names and Numbers) from its direct control. But, bringing a law that allows it to come down heavily on “rogues” unilaterally, is being viewed as a step backwards.</p>
<p>For now, all eyes in the tech community are on the legislation, and the many debates surrounding it, which promise to be among the most controversial and interesting ones in technology in recent times.</p>
<p><a class="external-link" href="http://www.thehindu.com/sci-tech/article2801676.ece">Read the original published in the Hindu</a></p>
<p>
For more details visit <a href='https://cis-india.org/news/twists-and-turns-of-the-sopa-opera'>https://cis-india.org/news/twists-and-turns-of-the-sopa-opera</a>
</p>
No publisherpraskrishnaPiracyIntellectual Property Rights2012-01-16T09:48:02ZNews ItemComment by CIS at ACE on Presentation on French Charter on the Fight against Cyber-Counterfeiting
https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment
<b>The seventh session of the World Intellectual Property Organization's Advisory Committee on Enforcement is being held in Geneva on November 30 and December 1, 2011. Pranesh Prakash responded to a presentation by Prof. Pierre Sirinelli of the École de droit de la Sorbonne, Université Paris 1 on 'The French Charter on the Fight against Cyber-Counterfeiting of December 16, 2009' with this comment.</b>
<p> </p>
<p>Thank you, Chair. I speak on behalf of the Centre for Internet and Society. First, I would like to congratulate you on your re-election.<br /><br />And I would like to congratulate Prof. Sirenelli on his excellent presentation.<br /><br />I would like to flag a few points, though:</p>
<ol><li>One of the benefits of normal laws, as opposed to the soft/plastic laws, which he champions, is that normal laws are bound by procedures established by law, due process requirements, and principles of natural justice. Unfortunately, the soft/plastic laws, which in essence are private agreements, are not.</li><li>The report of the UN Special Rapporteur on the Freedom of Expression and Opinion made it clear in his report to the UN Human Rights Council that the Internet is now an intergral part of citizens exercising their right of freedom of speech under national constitutions and under the Universal Declaration of Human Rights. That report highlights that many initiatives on copyright infringement, including that of the French government with HADOPI and the UK, actually contravene the Universal Declaration of Human Rights</li><li>The right of privacy is also flagged by many as something that will have to be compromised if such private enforcement of copyright is encouraged.<br /></li></ol>
<p>I'd like to know Prof. Sirinelli's views on these three issues: due process, right of freedom of speech, and the right to privacy.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment'>https://cis-india.org/a2k/blogs/ace-7-french-charter-cis-comment</a>
</p>
No publisherpraneshAccess to KnowledgeCopyrightPrivacyFreedom of Speech and ExpressionIntellectual Property RightsPiracyCensorshipWIPO2011-12-01T11:59:45ZBlog EntryCalling Out the BSA on Its BS
https://cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs
<b>The Business Software Alliance (BSA) is trying to pull wool over government officials' eyes by equating software piracy with tax losses. Pranesh Prakash points out how that argument lacks cogency, and that tax losses would be better averted if BSA's constituent companies just decided to pay full taxes in India.</b>
<p>In the past we have covered the Business Software Alliance's <a href="http://cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">lack of rigour</a> <a href="http://arstechnica.com/old/content/2005/06/4993.ars">in their piracy</a> <a href="http://www.economist.com/node/3993427">statistics</a>, and disconnect from their constituent members when it comes to <a href="http://www.cis-india.org/a2k/blog/2010-special-301">opposing free and open source software</a>. In reaction to the criticism they have received over the years, BSA has finally stopped equating lack of sales with losses. But now, they have started equating software piracy with tax losses.</p>
<h2>How IDC thinks tax works</h2>
<p>In a report prepared by International Data Corporation (IDC) for the Business Software Alliance (BSA), they note:</p>
<blockquote>
<p>Substantial value in form of potential industry and tax revenues is lost to software piracy: The situation in India is not healthy with a software piracy rate of 65% in 2009 (more than six out of ten PC software programs installed in 2009 were not paid for). Only one-third of the overall PC software revenues are captured by the industry incumbents and the rest are lost to software piracy. Most of the unlicensed software use occurs in otherwise legal businesses installing the programs on more PCs than allowed by the licenses they have paid for. Consequently, in 2009, the state exchequer tax receipts loss was roughly US$866 million at the current piracy and employment levels, as the industry lost its otherwise legitimate share of revenues to piracy.</p>
</blockquote>
<p>For this to be true, there must be two assumptions that are satisfied. First, those who are pirating software must not spend the money that they save by doing so on any other taxable activity. Second, the companies that would get the money if the software weren't pirated must pay the Indian government taxes. As we'll see, neither of these two assumptions are warranted.</p>
<p>The BSA-IDC report reasons as follows: Pirates don't pay taxes on the illegal software that they sell, so that is tax evasion and consequently a tax loss. It states:</p>
<blockquote>
<p>Higher demand for legal software will result in higher flow of license volume through the supply chain, resulting in increase in volume of business transactions. Each transaction adds a certain percentage of the deal or value added to the state exchequer's coffers in the form of indirect tax revenue[...] Increase in demand will also result in increased employment. Consequently, revenues from direct taxes will be increased for the government, as employees join newly created high-paying jobs.</p>
</blockquote>
<h2>How tax actually works</h2>
<p>That reasoning is flawed. The majority of software piracy in India happens through two methods: violation of software licence terms by using the software on more computers than it is licensed for; and pre-loading of illegal software by computer sellers. Those 'computer seller' pirates do not sell the software separately, but bundle it with the computer as an additional service. In other words, they don't charge for it in the first place. So, quite clearly, there is no tax evasion.</p>
<p>Despite there being no tax evasion, there is the possibility of tax loss for the state. That would happen when instead of doing taxable activity A with with their money, they do non-taxable activity B. Putting money in special government bonds instead of spending it on software, for instance, is one such instance. However, that is a strange, unwarranted assumption. People don't always put the money that they don't spend on software into government bonds. It is a much more reasonable assumption that people would spend that money on other consumables, like food or other such tangible commodities.</p>
<p>Lastly, there is the unwarranted assumption that increase in demand for legal software increases employment. In fact, it is a much more reasonable assumption that increase in piracy increases employment in case of developing countries. Printing ("DTP") shops use pirated versions of Photoshop, CorelDraw and InDesign, computer education centres use pirated versions of Microsoft Windows, offices use pirated versions of Microsoft Word and Excel. If these didn't teach their employees the use of pirated software, millions of people would lose their jobs. All of these employees pay direct taxes. There is no analysis in the BSA-IDC report that accounts for this, treating all these millions of people as non-existent for purposes of their analysis.</p>
<h2>Increasing tax: Make MNC software companies pay full taxes</h2>
<p>Thus, there is no real tax loss to the government if the money that would have been spent on commercial software was instead spent on some other commodity. Indeed, there might even be an increase in tax collection because software companies, including leading ones such as Microsoft, are much more likely to avoid taxes than companies that deal in tangible commodities. There are well-known routes of decreasing tax liability for intangible goods such as software. Software companies normally state that they license software instead of selling it (as this suits them on issues such as customs duties), but when it comes to income tax, they try to paint the transaction as a sale of a product. (Microsoft, for instance claims that its earnings in India are 'business income' and not 'royalties' and hence is exempt under the Double Taxation Avoidance Agreement between India and the USA.) A company that deals with tangible commodities has no such 'licensing vs. sale' loop-hole that they can try to exploit. Further, many software companies are located in special economic zones that are "software exporting zones", and hence get large tax deductions.</p>
<p>In India, for instance, Microsoft is resisting payment of income tax for by routing all licensing to distributors in India through a shell company in Singapore and holding that Microsoft India had no income tax liabilities. <a href="http://articles.timesofindia.indiatimes.com/2011-07-28/software-services/29824411_1_customs-duty-importer-ravi-venkatesan">Microsoft has been fined Rs. 2 crore</a> because it tried to separate the importing of software into India from the (more valuable) granting of licences to customers and pay only nominal customs duties on the former and under-declaring the value of the latter as zero. From nine Microsoft dealers a total of Rs 255 crore was collected as tax. Of the roughly Rs. 4000 crores loss that the BSA-IDC report claims, around 6% is realizable from just a single tax (customs duties) from 9 companies dealing in the products of one company. If we multiply this by all taxes (income tax included) amongst all the dealers of all the constituent companies of BSA, then the Indian government might recover more from taxes than is supposedly lost to piracy!</p>
<p>Elsewhere around the globe, the <a href="https://secure.wikimedia.org/wikipedia/en/wiki/Double_Irish_Arrangement">'Double Irish' arrangement</a>, the <a href="http://www.msnbc.msn.com/id/39784907/ns/business-bloomberg_businessweek/">'Dutch Sandwich' route</a> and other such are used by MNC software companies to evade taxes. Just as there are tax havens, there are some IPR havens that cater to companies selling/licensing software and other such intangible commodities.</p>
<p>If only these software companies were to stop evading taxes in the countries in which they sell software, then the government's tax collections would automatically increase.</p>
<h2>Final idiocies, and conclusion</h2>
<p>In the BSA-IDC report, they write: "Assessing the relationship between software piracy rates and UN Human Development Index (a measure of average achievements in a country in three basic dimensions of human development) suggests that countries with greater rates of software piracy tend to have lower levels of economic development. This further strengthens the hypothesis that IP rights (IPR) enforcement increases economic activity.".</p>
<p>This is as sensible as saying "countries with greater rates of industrial espionage (such as France, Germany, and USA) tend to have higher levels of economic development" strengthens the hypothesis that industrial espionage increases economic development. While it is empirically true that most countries with greater rates of software piracy have lower levels of economic development, it is equally true that countries with lower levels of economic development (being countries with poorer populations) have more software piracy. It is equally true that software piracy decreases if the cost of software decreases, as shown by the more carefully-conducted analysis in the Media Piracy in Emerging Economies report.<br />
</p>
<p>To use greater software piracy and lower economic development as evidence of the causal link between IPR enforcement and economic activity is to betray absolute ignorance about both economics and logic.</p>
<p>The startlingly poor level of analysis of the BSA-IDC report leaves no question that the conclusions were arrived at independently of the analysis. Such misleading analysis is worse than trash: it is downright dangerous as an instrument of policy setting.</p>
<p>To increase tax receipts, the government may as well start by making BSA's constituent companies pay all the taxes they owe.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs'>https://cis-india.org/a2k/blogs/calling-out-the-bsa-on-bs</a>
</p>
No publisherpraneshPiracyIntellectual Property RightsAccess to Knowledge2011-09-14T18:16:51ZBlog EntryThe 2010 Special 301 Report Is More of the Same, Slightly Less Shrill
https://cis-india.org/a2k/blogs/2010-special-301
<b>Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.</b>
<h1>Special 301 Report: Unbalanced Hypocrisy</h1>
<p>The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:</p>
<blockquote>
<p>[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.</p>
</blockquote>
<p>More the report changes, <a href="http://cis-india.org/advocacy/ipr/blog/consumers-international-ip-watch-list-2009">the more it stays the same</a>. <a href="http://www.michaelgeist.ca/content/view/4684/195/">Despite having wider consultations</a> than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.</p>
<h1>India and the 2010 Special 301 Report</h1>
<p>The Special 301 report for 2010 contains the following assessment of India:</p>
<blockquote>
<p>India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year. </p>
</blockquote>
<p>This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.</p>
<h2>On Copyrights</h2>
<ol>
<li>
<p>The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely <em>how</em> India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">proven to be wrong</a>:</p>
</li>
<li>
<p>Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1433848">states</a>:</p>
</li>
</ol>
<blockquote>
<p>Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.</p>
</blockquote>
<ol>
<li>
<p>Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid <a href="https://sites.google.com/site/iipenforcement/bibliography">and others</a>, who argue that <a href="http://www.altlawforum.org/intellectual-property/publications/articles-on-the-social-life-of-media-piracy/reconsidering-the-pirate-nation">lax enforcement has enabled access to knowledge and promotion of innovation</a>. In a panel on 'Access to Knowledge' at the Internet Governance Forum, <a href="http://a2knetwork.org/access-knowledge-internet-governance-forum">Lea Shaver, Jeremy Malcolm and others</a> who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).</p>
</li>
<li>
<p>The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.</p>
</li>
<li>
<p>The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.</p>
</li>
</ol>
<h2>On Patents</h2>
<p>Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.</p>
<p>The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An <a href="http://supreme.justia.com/us/447/303/case.html">American judgment</a> even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.</p>
<h2>Miscellanea</h2>
<p>The harms of counterfeit medicine, as <a href="http://www.cis-india.org/a2k/blog/fallacies-lies-and-video-pirates">we have noted earlier</a>, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.</p>
<p>Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.</p>
<h2>Conclusion</h2>
<p>Michael Geist, professor at University of Ottowa <a href="http://www.michaelgeist.ca/content/view/4997/125">astutely notes</a>:</p>
<blockquote>
<p>Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain.
In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country. </p>
</blockquote>
<p>His comments apply equally well for India as well.</p>
<h1>IIPA's Recommendation for the Special 301 Report</h1>
<p>Thankfully, this year <a href="http://www.iipa.com/rbc/2010/2010SPEC301INDIA.pdf">IIPA's recommendations</a> have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:</p>
<blockquote>
<p>The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.</p>
</blockquote>
<p>Breaking that into two bit:</p>
<h2>Open Source</h2>
<p>Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. <a href="http://hp.sourceforge.net/">HP</a> and <a href="http://www-03.ibm.com/linux/ossstds/">IBM</a> have been huge supporters of open source software. Even <a href="http://www.microsoft.com/opensource/">Microsoft has an open source software division</a>. [Intel][intel], <a href="http://www.sap.com/usa/about/newsroom/press.epx?pressid=11410">SAP</a>, <a href="http://www.cisco.com/web/about/doing_business/open_source/index.html">Cisco</a>, <a href="http://linux.dell.com/projects.shtml">Dell</a>, <a href="http://www.sybase.com/developer/opensource">Sybase</a>, <a href="http://www.entrust.com/news/index.php?s=43&item=702">Entrust</a>, <a href="http://about.intuit.com/about_intuit/press_room/press_release/articles/2009/IntuitPartnerPlatformAddsOpenSourceCommunity.html">Intuit</a>, <a href="http://www.synopsys.com/community/interoperability/pages/libertylibmodel.aspx">Synopsys</a>, <a href="http://www.apple.com/opensource/">Apple</a>, <a href="http://www.theregister.co.uk/2005/04/22/jbuilder_eclipse/">Borland</a>, <a href="http://w2.cadence.com/webforms/squeak/">Cadence</a>, <a href="http://usa.autodesk.com/adsk/servlet/item?siteID=123112&id=6153839">Autodesk</a>, and <a href="http://news.cnet.com/8301-13505_3-9967593-16.html">Siemens</a> are all members of BSA which support open source software / produce at least some open source software. And <em>all</em> BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to <a href="http://news.bbc.co.uk/2/hi/7841486.stm">look at FOSS very seriously</a> and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.</p>
<h2>Domestic Software</h2>
<p>As <a href="http://arstechnica.com/tech-policy/news/2010/04/indias-copyright-proposals-are-un-american-and-thats-bad.ars">this insightful article by Nate Anderson in Ars Technica</a> notes:</p>
<blockquote>
<p>Open source is bad enough, but a "buy Indian" law? That would be <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/buyamerica.aspx?lang=eng">an outrage</a> and surely something the US government would not itself engage in <a href="http://www.canadainternational.gc.ca/sell2usgov-vendreaugouvusa/procurement-marches/ARRA.aspx?lang=eng">as recently as last year</a>. Err, right?</p>
</blockquote>
<p>Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.<br />
</p>
<h2>WCT, WPPT, Camcording, and Statutory Damages</h2>
<p>The IIPA submission also wish that India would:</p>
<ol>
<li>Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;</li>
<li>Adopt an optical disc law;</li>
<li>Enact Copyright Law amendments consistent with the WCT and WPPT;</li>
<li>Adopt an anti-camcording criminal provision.</li>
</ol>
<p>Quick counters:</p>
<ol>
<li>Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case <a href="http://arstechnica.com/tech-policy/news/2010/01/judge-slashes-monstrous-jammie-thomas-p2p-award-by-35x.ars">called the damage award</a> "monstrous and shocking" and said that veered into "the realm of gross injustice."</li>
<li>The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.</li>
<li>India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.</li>
<li>Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.</li>
</ol>
<h2>Further conclusions</h2>
<p><a href="http://spicyipindia.blogspot.com/2010/05/us-special-301-report-and-not-so.html">Shamnad Basheer</a>, an IP professor at NUJS, offer the following as a response:</p>
<blockquote>
<p>"Dear USA,</p>
<p>India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest!
More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.</p>
<p>Yours sincerely,</p>
<p>India."</p>
</blockquote>
<p>Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/2010-special-301'>https://cis-india.org/a2k/blogs/2010-special-301</a>
</p>
No publisherpraneshDevelopmentConsumer RightsAccess to KnowledgeCopyrightPiracyAccess to MedicineIntellectual Property RightsData ProtectionFLOSSTechnological Protection MeasuresPublications2011-10-03T05:37:27ZBlog EntryPiracy Studies in India
https://cis-india.org/a2k/blogs/piracy-studies-india
<b>The word ‘piracy’ assumes negative connotations. In the imagination of an ordinary middle class urban Indian it is linked directly to the informal economy, crime and even terrorism. But the ‘pirated good’, that is, the ‘optical disc’ is not seen with a similar perception. The ‘CD’ is the access key to the cultural wealth of music, cinema and software contained inside. This paradox is created in the sphere of information and knowledge that is created by anti-piracy agencies using extensive reports and statistics that are published every year. These statistics often have a tendency to create a feeling of ‘shock and awe’ for the readers that see these numbers splashed across headlines of news and media reports. Till 2004, the creation of numbers conjuring losses up to millions was mostly the domain of the International Intellectual Property Alliance (IIPA), which is now supplemented by reports commissioned to consultancy groups like McKinsey, PWC, and Ernst & Young. This article by Siddharth Chadha traces a few reports that have come to become popular benchmarks of piracy in the past few years. </b>
<h3>Special ‘301’ Reports</h3>
<p>The ‘Special 301 Reports’ are published annually by the office of the <a class="external-link" href="http://www.ustr.gov/">United States Trade Representative</a> (USTR) to examine ‘in detail the adequacy and effectiveness of intellectual property rights protection’ in countries around the globe. Sections 301-310 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988, empower the USTR ‘to identify foreign countries that deny adequate and effective protection of intellectual property rights or fair and equitable market access for U.S. persons that rely on intellectual property protection.’ </p>
<p>India has faced considerable pressure to amend and enforce its copyright laws, more to the needs of the United States rather than reflecting the needs of its population, businesses and innovation. The 301 reports over the last decade have been largely concerned with the general problems of counterfeit and piracy in India, unlike China where specific laws adopted and enforced by the state have been critiqued. Over the course of the decade, according to the reports, the United States has been concerned with a large number of subjects including the backlog and inadequacy of India’s legal system, lack of enforcement of IP protections for media oriented products like ‘motion pictures, music, software, books and video games’, need for stronger protection of copyrights, trademarks and patents, optical media and procedural inadequacies. In 2004 the USTR reported, ‘copyright piracy is rampant, and the U.S. copyright industry estimates that lost sales resulting from piracy in India of U.S. motion pictures, sound recordings, musical compositions, computer programmes, and books totaled approximately $500 million in 2004.’</p>
<p>The United States articulates the reasons for concern in India – the challenge posed by Indian pirated and counterfeit goods entering American markets. It expresses its concern for lack of piracy enforcement as ‘‘growing concern for U.S. copyright industries, especially given the <a class="external-link" href="http://ustraderep.gov/assets/Document_Library/Reports_Publications/2002/2002_Special_301_Report/asset_upload_file567_6367.pdf">pirated imports are entering the market from Southeast Asia</a>.</p>
<p>Over the past few years, it has also included suggestions of taking criminal action against those engaging in copyright infringement. India’s supposed ‘weak’ criminal system is mentioned in the 2008 reports, focused specifically on the need for a greater police presence enforcing <a class="external-link" href="http://www.ustr.gov/sites/default/files/asset_upload_file553_14869.pdf">IPR infringements</a> through criminal means and ‘stronger’ border control.</p>
<h3>The Effects of Counterfeiting and Piracy on India’s Entertainment Industry</h3>
<p>Published in March 2009 by <a class="external-link" href="http://www.usibc.com/usibc/default">United States-India Business Council</a> (USIBC) and prepared by Ernst and Young India, claims that as much as Rs.16, 000 crores are lost due to piracy. Alongside, as many as 80,000 jobs are lost directly as a result of theft and piracy, afflicting India’s entertainment industry. This report was commissioned as a part of the USIBC–FICCI Bollywood–Hollywood initiative and covered film, music, television and video games. It was funded by the <a class="external-link" href="http://www.theglobalipcenter.com/">Global Intellectual Property Center of the U.S. Chamber of Commerce</a>. The spectacular press launch meeting was organized in Mumbai and also attended by Yash Chopra, chairman of <a class="external-link" href="http://www.ficci-frames.com/">FICCI Frames</a> and Ramesh Sippy, the famed director who commented on the occasion, “I know first hand the importance of fighting piracy to support the growth of Bollywood. I commend the USIBC–FICCI initiative for enlisting all elements of the entertainment industry against piracy.” The President of USIBC, Ron Summers used the opportunity to suggest stronger legal means to tackle piracy. He said, “We strongly support passage by India of optical disc legislation that will thwart piracy in this important industry. We are pleased to stand shoulder to shoulder with counterparts in India to help protect jobs and revenues that are now being needlessly lost to piracy.”</p>
<h3>Sixth Annual BSA and IDC Global Software Piracy Study</h3>
<p>Business Software Alliance, in partnership with a market analysis firm IDC, published their annual study on global trends in software piracy in May 2009. Sixth in its annual series, the report critically blames the Asia Pacific region, especially India and China, for the growing levels in piracy, despite countries bringing down their piracy rates. The report says, ‘In 2008, the rate of PC software piracy dropped in slightly more than half (57) of the 110 countries studied, remained the same in nearly one third (36), and rose in just 16. However, the worldwide PC software piracy rate rose for the second year in a row, from 38 per cent to 41 per cent, mainly because <a class="external-link" href="http://global.bsa.org/globalpiracy2008/pr/pr_asia.pdf">PC shipments grew fastest in high-piracy countries such as China and India, overwhelming progress in these and other countries</a>.’</p>
<p>In addition, it also makes an India specific point by highlighting India’s piracy trends,<br /><br />‘India’s rate has dropped six points in five years, despite its sprawling PC market, of which consumers and small businesses account for 65 per cent. <a class="external-link" href="http://global.bsa.org/globalpiracy2008/pr/pr_asia.pdf">While consumer PC shipments grew more than 10 per cent last year, shipments to other categories dropped 7 per cent</a>.’</p>
<h3>Motion Pictures Distributors Association’s Internet Piracy Studies</h3>
<p>Earlier this month, the MPA Office in India named Motion Pictures Distributors Association, along with a DtecNet a global anti-piracy company, released a study on the Internet piracy trends in India. This report places India as the fourth largest global hub of online film piracy, behind United States, Britain and Canada, with Delhi, Bangalore and Mumbai accounting for the major share of illegal downloads. It estimates that Vishal Bhardwaj’s Kaminey, was downloaded 350, 000 times on Bit Torrent with about 2/3rds of downloaders being from India. MPDA also links this study to another consultancy, Envisional’s similar suggestions, while MPDA’s managing director, Rajiv Dalal pushed for strong laws to support copyright, strong enforcement and stiff sentences for people who violate laws, on the basis of these <a class="external-link" href="http://www.dtecnet.com/EN/Press.aspx">reports</a>.</p>
<p>Despite the availability of a large number of critiques available in the academic world, the media – both broadcast and print, reports shock inducing statistics verbatim, treating them as expert evidence without engaging in any analysis of the published material. Most of the piracy studies are quantitative in nature and do not provide any social class or demographic break up either of those who engage in piracy or those who buy pirated goods. It has also been pointed out by scholars like Shujen Wang that it is unreasonable to assume that every pirated copy could be counted as a lost sale, and thus a loss. In absence of research on the cultural aspects of piracy and the subsequent circulation, these reports have been successful in creating a fear psychosis in the civil society.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/piracy-studies-india'>https://cis-india.org/a2k/blogs/piracy-studies-india</a>
</p>
No publisherpraskrishnaPiracyIntellectual Property Rights2011-08-04T04:35:42ZBlog EntryEnforcement of Anti-piracy Laws by the Indian Entertainment Industry
https://cis-india.org/a2k/blogs/piracy-and-enforcement
<b>This brief note by Siddharth Chadha seeks to map out the key actors in enforcement of copyright laws. These bodies not only investigate cases of infringement and piracy relating to the entertainment industry, but tie up with the police and IP law firms to pursue actions against the offenders through raids (many of them illegal) and court cases. Siddharth notes that the discourse on informal networks and circuits of distribution of cultural goods remains hijacked with efforts to contain piracy as the only rhetoric which safeguards the business interests of big, mostly multinational, media corporations.</b>
<h3>International Intellectual Property Alliance<br /></h3>
<p>The <a class="external-link" href="http://www.iipa.com/">International Intellectual Property Alliance</a> (IIPA) is an international lobby group of US media industries with close ties to the <a class="external-link" href="http://www.ustr.gov/">United States Trade Representative</a>. It has in its reports consistently expressed dissatisfaction with Indian efforts to deal with piracy. IIPA works in close cooperation the other US lobby groups like the MPAA (Motion Picture Association of America) and the BSA (Business Software Alliance). The IIPA reports, which place India in a 'danger zone', significantly influence regional and international discourses on piracy. Interestingly, the IIPA in India has been very successful in regionalizing and nationalizing a global discourse. Thus, in the past few years, local industry associations in India in cinema, music and software have independently run highly emotional campaigns against piracy, reminiscent of IIPA's own campaigns. </p>
<h3>Motion Pictures Association</h3>
<p>The <a class="external-link" href="http://www.mpaa.org/AboutUs.asp">Motion Picture Association of America</a> (MPAA) through its international counterpart, Motion Pictures Association (MPA), has been unofficially operational in India for the last 15 years. Its member companies are <a class="external-link" href="http://corporate.disney.go.com/">Walt Disney</a>, <a class="external-link" href="http://www.paramount.com/">Paramount</a>, <a class="external-link" href="http://www.sonypictures.in/">Sony Entertainment</a>, <a class="external-link" href="http://www.foxmovies.com/">Twentieth Century Fox</a>, <a class="external-link" href="http://www.patents.com/Universal-City-Studios-LLLP/Universal-City/CA/90328/company/">Universal Studios</a>, and <a class="external-link" href="http://www.warnerbros.com/">Warner Bros.</a> The MPA's work in India was mostly non-obtrusive till 1994 when MPA Asia-Pacific, based in Singapore, started being represented by the high profile legal firm Lall & Sethi Advocates.</p>
<p>They have collectively worked on forming enforcement teams for coordinated raids in Mumbai and Delhi since 1995. Earlier this year, MPA announced its first India office to be set up in Mumbai, called the <a class="external-link" href="http://www.mpda.in/hollywoodinvestment.html">Motion Picture Distributor's Association India (Pvt.) Limited</a> (MPDA), under the directorship of Rajiv Dalal. Mr. Dalal had previously directed strategic initiatives from the MPAA's Los Angeles office. The MPDA will engage itself in working jointly with local Indian film industries and the Indian government to promote the protection of motion pictures and television rights. </p>
<p>According to the organization's own assertion, in 2006 the <a class="external-link" href="http://www.filmpiracy.com/">MPA's Asia-Pacific operation</a> investigated more than 30,000 cases of piracy and assisted law enforcement officials in conducting nearly 12,400 raids. These activities resulted in the seizure of more than 35 million illegal optical discs, 50 factory optical disc production lines and 4,482 optical disc burners, as well as the initiation of more than 11,000 legal actions.</p>
<h3>Indian Music Industry</h3>
<p>The world's second-oldest music companies' association, <a class="external-link" href="http://www.indianmi.org/index.htm">Indian Music Industry</a> (IMI), was first established as Indian Phonographic Industry in 1936. It was re-formed in its present avatar in 1994, as a non-commercial and non-profit organization affiliated to the <a class="external-link" href="http://www.ifpi.org/">International Federation of Phonographic Industry</a> (IFPI) and is registered as a society in West Bengal. IMI members includes major record companies like <a class="external-link" href="http://www.saregama.com/">Saregama</a>, HMV, <a class="external-link" href="http://www.umusicindia.com/">Universal Music (India)</a>, <a class="external-link" href="http://www.tips.in/landing/">Tips</a>, <a class="external-link" href="http://www.venusgroup.org/newaudio/about_us.html">Venus</a>, <a class="external-link" href="http://www.sonybmg.co.in/">Sony BMG (India)</a>, Crescendo, Virgin Records, <a class="external-link" href="http://www.music-from-india.com/">Magnasound</a>, Milestone, <a class="external-link" href="http://www.timesmusic.com/">Times Music</a> and several other prominent national and regional labels that represent over 75 per cent of the output in corporate recordings.</p>
<p>It was one of the first organizations in the country to start the trend of hiring ex-police officers to lead anti-piracy operations. In 1996, IMI hired Julio Ribeiro (a former Commissioner of Police, Mumbai; Director General of Police, Punjab; and Indian Ambassador to Romania) to head its anti-piracy operations. Their anti-piracy work is split into three specific regions, North and North Eastern, Western and Southern and East, each zone headed by a former senior police officer. IMI operates through offices in Kolkata, Mumbai, New Delhi, Chennai, Bangalore and several other cities and towns across India, focusing on surveillance, law enforcement, and gathering intelligence through an 80 member team hired to tackle piracy. During 2001 to 2004, IMI registered over 5500 cases, seized over 10 lakh music cassettes, and around 25 lakh CDs.</p>
<h3>Business Software Alliance</h3>
<p>Headquartered in Washington DC, <a class="external-link" href="http://www.bsa.org/country.aspx?sc_lang=hi-IN">the Business Software Alliance has a regional office in Delhi</a>, and has been instrumental in conducting anti-piracy operations across the country. According to the <a class="external-link" href="http://www.bsa.org/country.aspx?sc_lang=hi-IN">BSA</a>, India ranks 20 in global software piracy rankings, with a rate of 73 per cent while the Asia Pacific average is 53 per cent. China ranks second with a rate of 92 per cent and annual losses of $3,823 million while Pakistan ranks nine with 83 per cent piracy rate. They have engaged the general public in providing them with information on pirated software through an anti-piracy initiative – The Rewards Programme. Launched in 2005, reward amount up to Rs.50, 000, would be provided for information leading to successful legal action against companies using unlicensed software. The reward program was aimed to encourage people to <a class="external-link" href="http://www.siliconindia.com/shownews/BSA_Nasscom_launch_initiative_to_curb_software_piracy-nid-27871.html">support the fight against piracy and to report software piracy to the NASSCOM-BSA Anti-Piracy Software Hotline</a>.</p>
<p>In 2006, <a class="external-link" href="http://www.bsa.org/country.aspx?sc_lang=hi-IN">BSA</a> and <a class="external-link" href="http://www.nasscom.org/">NASSCOM</a> got a shot in their arms by <a class="external-link" href="http://www.indianmba.com/Faculty_Column/FC39/fc39.html">winning the largest settlement amount for a copyright case in India</a>, with <a class="external-link" href="http://www.netlinxindia.com/">Netlinx India Pvt. Ltd</a>. The case had emerged after a civil raid was conducted at the premises of <a class="external-link" href="http://www.netlinxindia.com/">Netlinx</a> in December 2000, leading to inspection and impounding of 40 PCs, carrying illegal unlicensed software. The settlement includes damages of US$ 30,000, complete legalization of software used by them, removal of all unlicensed/pirated software and submission to an unannounced audit of computer systems during next 12 months.</p>
<h3>Industry Enforcers</h3>
<p>Bollywood Film and Music companies, such as <a class="external-link" href="http://www.tseries.com/">T-Series</a> and <a class="external-link" href="http://www.yashrajfilms.com/">Yashraj Films</a>, have established anti-piracy arms to combat piracy in specific markets. <a class="external-link" href="http://www.tseries.com/">T-Series</a> has been in the industry for over 15 years, as a brand of Gulshan Kumar founded Super Cassettes Industries Limited, and has often been at the forefront for conducting raids along with police officials to check piracy of its copyrighted content. In its latest announcement earlier this year, <a class="external-link" href="http://www.tseries.com/">T-Series</a> launched an<a class="external-link" href="http://www.thaindian.com/newsportal/entertainment/t-series-to-nab-digital-content-pirates-on-own_100200953.html"> anti-piracy campaign</a> against those stealing digital content. The announcement came after they filed a complaint on June 1 with a police station in Mangalore against Classic Video shop for infringement of its copyright works like <em>Billu</em>, <em>Ghajini</em>, <em>Aap Ka Suroor</em>, <em>Apne</em>, <em>Fashion</em> and <em>Karz</em> that had been illegally downloaded and copied onto multiple discs, card readers and pen-drives.</p>
<p><a class="external-link" href="http://www.yashrajfilms.com/">Yashraj Films</a>, a leading film studio, has long been a part of enforcement activities against piracy, both in the Indian market and internationally. Most recently, it was a key member in the formation of the United Producers and Distributors Forum, which also included chairman Mahesh Bhatt, Ramesh Sippy, Ronnie Screwalla of <a class="external-link" href="http://www.utvnet.com/">UTV</a>, Shah Rukh Khan, Aamir Khan and <a class="external-link" href="http://www.erosplc.com/">Eros International</a>. This organization is now trying to enforce anti-piracy laws by conducting raids across the country with the help of another ex-cop from Mumbai, A.A. Khan. <a class="external-link" href="http://www.yashrajfilms.com/">Yashraj Films</a> has also established anti-piracy offices in the United Kingdom and the United States to curb piracy in those markets, as overseas returns of its films, watched by the desi diaspora is one of its largest revenue earning sources. The website of <a class="external-link" href="http://www.yashrajfilms.com/">Yashraj Films</a> lists news reports from across US and Europe of instances of crackdown on pirates. </p>
<p>In the context of intellectual property in the creative industries, these anti-piracy agents have successfully created the halo of illegality around the subject of piracy. The discourse on informal networks and circuits of distribution of cultural goods remains hijacked with efforts to contain piracy as the only rhetoric which safeguards the business interests of big media companies and multinational corporations.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/piracy-and-enforcement'>https://cis-india.org/a2k/blogs/piracy-and-enforcement</a>
</p>
No publisherpraskrishnaPiracyIntellectual Property RightsAccess to Knowledge2011-08-04T04:35:48ZBlog EntryAt the end of the niche optical pirate
https://cis-india.org/a2k/blogs/at-the-end-of-the-niche-optical-pirate
<b>In this blog post, Siddharth Chaddha goes enquiring into the modus operandi of a video pirate / film lover / businessman in Bangalore's famed National Market.</b>
<h3><strong>Getting to the National Market</strong></h3>
<p>Wading through Majestic Bus Stand,
Flea Markets, Private Bus Stops and vehicles going around in circles,
you could almost miss this board outside one of the shopping plazas.
NATIONAL MARKET, the famed "pirate market" at the heart of
the city. Most of the business here is illegal and the local police
raid the thirty odd shops selling goods, which within the purview of
any multilateral agreement under WIPO or TRIPS regime would be an
infringement of copyright, at least once a
month. The shops run shutter to shutter, each one five by four feet.
Crowded with sellers and customers, all pirate markets typically
smell the same. Pirated DVDs, DVD players, Chinese mobile phones and
PDAs, even VHS players of the yore, smuggled MP3 music systems, fake
Ray-Bans and Police sunglasses, gaming consoles. You name it, and
National Market has it.</p>
<h3>Meet the Pirate</h3>
<p>Tall and sporting a stubble, Sooraj
(name changed) is a Malayali who has been in the trade for over 8
years. "Earlier, I used to have the best English Movie
collection ever. But now, its all going away. Most people have
shifted from DVD's to Digital Storage and Bit Torrents", says
Sooraj. A family comes across the counter. A middle aged man
accompanied by two women in a burqua, one of them carrying a young
baby boy in their hand. "Tom and Jerry!", says the man and
Sooraj's helper brings out a carton full of animated Hollywood films.
Finding Nemo, The Lion King, Madagascar, its all there. "No Tom
and Jerry. This doesn't have Tom and Jerry", growls the stout
customer. Sooraj jumps into the action, hunts out a DVD from a stack
and puts it on the table. "Tom and Jerry Tales - 13 episodes",
reads the the outside with a classic Tom chasing Jerry picture on the
cover. Satisfied, the family puts it aside and goes on to explore
other popular cartoon series. In the end, the man calls for
Maharathi, a recent Bollywood flick. He looks at the cover
intriguingly and I decide to butt in, "Amazing movie. Just saw
it last week. Great plot." The deal is seized and after a bout
of bargaining over the price. As the family dissolves into the market,
Sooraj turns back and says to me, "A lot of customers bargain. I
get a headache. And my shop is the first one in the market, inside
people operate on margins of 5-10 rupees. That just ruins everything
for us. They don't think of the amount of the risk involved."</p>
<h3>The Business of Piracy<strong><br /></strong></h3>
<p>Sooraj explains to me how Chennai is the biggest market of
the South. "Chennai is a sea. You will get everything there.
Once you take a dive in that ocean, it's all there." When I ask
him of the chain of distribution, he says, "No one will say that
I print the covers of fake DVDs or I copy prints. For me, I just
call my distributor and everything comes from Chennai. I don't ask
beyond that. The stock comes in the price range of 25-35-40 Rupees.
Now, there is only one quality of stock. The market is dying. No one
has good stock. Earlier, we used to sell DVDs for Rs.70-80. Now,
there is no demand. Even the wholesale business is at a low.'' I ask
him, "So what are you going to do, now that soon DVDs will be
gone?" Sooraj is not flustered. "We will shut this and start
a new business," he says. I quietly step back, as another
customer comes asking for audio CDs. He doesn't deal in those.</p>
<h3>Enforcement Threat<strong><br /></strong></h3>
<p>When the customer is gone, I ask him,
"How often does the police raid this market?" He smiles and
replies, "Not often anymore. The business is almost dead. But
yes, they come sometimes. Then you are taken away and a case ensues."
I decide to ask him candidly, "How many times have you been
booked?" He smiles again. "5-7 times. I have a few cases
pending, dates that I have to go and visit the court. They arrest you
for a day but that's all they can do. After all this is not a big
crime." He continues dealing with customers who have various
demands for music and films. Some he sells to, he guides others to
the inside shops. "I sell about a 1000 DVDs everyday. Earlier,
the figure used to be much higher. Mostly English. Hindi, Tamil and
Telugu too. No Kannada," he volunteers. I probe further, "Why
no Kannada?" He says that that he supports protection for their
own industry. "And the market price for Kannada films is
appropriate. Some are Rupees 60, 90, 110. That's reasonable. We do not
need to pirate it."</p>
I ask him for Tamil titles. He asked if
I wanted <em>Ghajani</em>. “I saw it when it released. Give me something
that's worth watching.” He picks out two. <em>Saroja</em> and <em>Subramaniya
Puram</em>. He doesn't make a profit in this deal but something tells me
that he is happy to spread the love of good films. "Can I click
a picture?" He refuses, saying it would not be a good idea. I
shake his hand. Until next time.
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/at-the-end-of-the-niche-optical-pirate'>https://cis-india.org/a2k/blogs/at-the-end-of-the-niche-optical-pirate</a>
</p>
No publishersiddharthIT ActConsumer RightsPiracyIntellectual Property Rightsinternet and society2011-08-04T04:44:58ZBlog EntryEmerging Bit Torrent Trends in India
https://cis-india.org/a2k/blogs/emerging-bit-torrrent-trends-in-india
<b>Internet has been a revelation ever since its introduction. The writer in this blog examines how the progress made by Internet based technologies could never be reversed.</b>
<h2>From Kazaa to The Pirate Bay</h2>
<p>Little did the world of the VHS era realize in its time where the future of pirate technologies were heading to. The world's favourite music and films were quickly transferred onto optical discs as magnetic tapes went obsolete a few years before the end of the last century. Internet was soon to become the nemesis of discs, which were bulky to store and scratched easily. The first tryst with peer to peer technologies on networks sent shivers down the spine of Jack Valenti and the Motion Pictures Association of America. The speed of dissemination and distribution of content over the Internet was something the world had never seen before. The lawsuits against peer to peer networks such as Kaaza and Limewire ran into millions of dollars. Websites were shut down, but time and progress of technology could never be reversed. BitTorrent soon became the most common protocol to transfer content over the Internet. BitTorrent metafiles themselves do not store copyrighted data. Hence, BitTorrent itself is not illegal. However, its use to make copies of copyrighted material that contravenes laws in many countries has created many controversies, including the now famous Pirate Bay Trial in Sweden. The popularity of torrents though
is not specific to the Western world. The strength of the Internet lies in its ability to generate content from any corner of the world
which is then spread across the world through a web of distribution reaching many computers and granting them access to the content simultaneously.<strong><br /></strong></p>
<h2><strong>Desi content on Torrent Networks</strong></h2>
<p><strong>Desi : A term derived from Sanskrit, meaning region, province or country. It now refers to the people and culture of South Asian Diaspora.</strong></p>
<p><strong>On the most popular BitTorrent search engines, <a href="http://torrentz.com/" target="_blank">torrentz.com</a>, Hindi and Hindi movies are permanent search tags. Often, one would even see the names of popular Bollywood releases such as Dev D, or at the time of writing this blog entry, Telegu Films, prominently displayed on the site. Bollywood and other content created in India and the rest of the subcontinent is driving the cyberspace. With a huge diaspora spread across every part of the world and increasing Internet penetration alongside rising broadband speeds in urban India, the demand for desi content on torrent networks is on the rise. Websites such as <a href="http://desitorrents.com/" target="_blank">desitorrents.com</a> and <a href="http://dctorrent.com/" target="_blank">dctorrent.com</a> are two torrent search engines that are popular amongst Internet users and cater exclusively to desi content. A closer look at the content on these sites reveal that the most popular content on these torrent networks are television shows, cricket matches, Bollywood movies, music and regional cinema. Torrent scenes such as aXXo are not unique to Hollywood uploads alone. Desi content has its own torrent scenes, responsible for uploading torrent trackers, as soon as the content is out in the public. Users identifying themselves as Jay, Captain Jack or Gunga Din are busy uploading these files on the desi networks.
</strong></p>
<p><strong>Online since January 2004 and an Internet traffic rank of 7,302, an average visitor spends 8.3 minutes on the Desi Torrents site everyday. Relative to the general Internet population, the website has the highest number of male visitors in the age group of 18 to 34.<br /></strong></p>
<p><strong>Most users are college graduates who prefer to access the website from home. In comparison, Desi Club Torrents, which is a free website has
a younger representative web demographic with males between 18 to 24 years of age being the most prominent visitors. According to the
data, it is also revealed that the website has a higher ratio of visitors who have not attended Graduate School but still have attended some college for education</strong></p>
<h2><strong>Impact on the Traditional Markets</strong></h2>
<strong>
</strong>
<p><strong>In most cases, the popularity of Bollywood films in cinema halls and
on torrent sites seems to be linked. For example, the most successful
Bollywood film of 2008, Ghajini, which ended up raking Rs. 200 crores
on the box office, is also one of the most downloaded films on Bit
Torrent Networks. However, for the Pirate selling DVD's of latest
films, this is not great news. A majority of their customers have migrated to
downloading films on the Internet using Peer to Peer technologies.
The upper middle-class niche film watching audiences, have been the
fastest to acquire computers and get on the Internet. Increasing
broadband speeds have ensured that this segment of consumer
transitions away from the traditional 'on the corner' pirate shop. </strong></p>
<p><strong> </strong></p>
<p><strong> </strong></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/emerging-bit-torrrent-trends-in-india'>https://cis-india.org/a2k/blogs/emerging-bit-torrrent-trends-in-india</a>
</p>
No publishersiddharthCyberspaceinternet and societyPiracyIntellectual Property Rightscyberculturescyberspaces2011-08-04T04:44:48ZBlog EntryConsumers International IP Watch List 2009
https://cis-india.org/a2k/blogs/consumers-international-ip-watch-list-2009
<b>In response to the US Special 301 report, Consumers International brought out an IP Watch List. CIS contributed the India Country Report for the Watch List.</b>
<p>Every year the Office of the United States Trade Representative (USTR) publishes a report known as the Special 301 Report, documenting IP regimes in various countries, and publishing a list of those countries which do not afford 'adequate and effective' protection for US intellectual property. This year <a class="external-link" href="http://www.consumersinternational.org">Consumers International</a>, which set up the <a class="external-link" href="http://a2knetwork.org">A2K Network</a>, published a counter-report, the <a class="external-link" href="http://a2knetwork.org/watchlist">IP Watch List 2009</a> for which the <a class="external-link" href="http://a2knetwork.org/reports2009/india">India report</a> [pdf <a href="https://cis-india.org/../publications/cis-publications/pranesh/IP%20Watch%20List%20-%20India%20Report.pdf" class="internal-link" title="CI IP Watch List 2009 - India Report">here</a>] was prepared by the Centre for Internet and Society. While the Special 301 Report labels India a "Priority Watch List" country (meaning that it has an IP regime least conducive to the trade interests of the United States), the Consumers International report holds India to have the most consumer-friendly and balanced IP regulation amongst the sixteen countries surveyed. The CI report lambasts the USTR's attempts to make countries comply with unreasonable demands which go over and above the countries' international obligations. For instance, the WIPO Internet Treaties, which have been criticised by many, is sought to be imposed on countries like Israel, India, and Canada. <a class="external-link" href="http://www.michaelgeist.ca/content/view/62/128/">Prof. Michael Geist</a> of the University of Ottawa even notes that piracy levels and accession to the WCT and WPPT do not seem to be correlated: "In fact, only five countries that have ratified the WIPO Internet treaties have software piracy rates lower than Canada." Still, the USTR has placed both India, whose IP laws are being praised by Consumers International and Canada, which has low piracy rates even by the accounts of the <a class="external-link" href="http://www.economist.com/opinion/displaystory.cfm?story_id=3993427">notoriously propagandist BSA</a>, have both been placed in the Priority Watch List. The reasons for doing so are not all that unclear if we look at who really shapes the USTR's Special 301 report.</p>
<p>The India section of the <a class="external-link" href="http://www.ustr.gov/sites/default/files/Full%20Version%20of%20the%202009%20SPECIAL%20301%20REPORT.pdf">USTR Special 301 report [pdf]</a> (pp. 18-19) notes:<br /> "India will remain on the Priority Watch List in 2009. India has made progress on improving its IPR infrastructure, including through the modernization of its IP offices and the introduction of an e-filing system for trademark and patent applications. Further, the IP offices have started the process of digitization of intellectual property files. In addition, the Indian ministerial committee on IPR enforcement has supported the creation of specialized IPR police units. Customs enforcement has also improved through the implementation of the 2007 IPR (Imported Goods) Enforcement Rules as well as by seizures of unlicensed copyrighted goods intended for export. However, the United States remains concerned about weak IPR protection and enforcement in India. The United States continues to urge India to improve its IPR regime by providing stronger protection for copyrights and patents, as well as effective protection against unfair commercial use of undisclosed test and other data generated to obtain marketing approval for pharmaceutical and agrochemical products. The United States encourages India to enact legislation in the near term to strengthen its copyright laws and implement the provisions of the WIPO Internet Treaties. The United States also encourages India to improve its IPR enforcement system by enacting effective optical disc legislation to combat optical disc piracy. Piracy and counterfeiting, including of pharmaceuticals, remain a serious problem in India. India’s criminal IPR enforcement regime remains weak. Police action against those engaged in manufacturing, distributing, or selling pirated and counterfeit goods, and expeditious judicial dispositions for IPR infringement and imposition of deterrent-level sentences, is needed. As counterfeit medicines are a serious problem in India, the United States is encouraged by the recent passage of the Drugs and Cosmetics (Amendment) Act 2008 that will increase penalties for spurious and adulterated pharmaceuticals. The United States urges India to strengthen its IPR regime and stands ready to work with India on these issues during the coming year."</p>
<p>Large chunks of it seem to have been 'borrowed' from the <a class="external-link" href="http://www.iipa.com/rbc/2009/2009SPEC301INDIA.pdf">IIPA submissions</a>. The IIPA (International Intellectual Property Alliance), which is made up of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance, is a body that was created to lobby the USTR to impose trade sanctions on those countries which did not follow the path that IIPA thought best for those countries.<br />Interestingly, the IIPA submissions talk not of IIPA's concern about weak IPR protection and enforcement in India, but instead states: "the United States remains concerned about weak IPR protection and enforcement in India". This exact line even manages to finds itself in the USTR Special 301 report. Many IIPA complaints find themselves as USTR recommendations, including: a) fast-track judical dispositions of IP cases; b) special laws against optical disc piracy; c) ratification of the WCT and WPPT (the "WIPO Internet Treaties"); d) increased criminal enforcement of intellectual property.</p>
<p>Thus, the Special 301 report emerges as a <a class="external-link" href="http://www.zeropaid.com/news/86148/is-putting-canada-on-a-priority-watchlist-going-to-backfire/">discredited report</a> that the US's trade partners should not (and by <a class="external-link" href="http://www.michaelgeist.ca/content/view/3911/125/">many accounts</a> <a class="external-link" href="http://www.michaelgeist.ca/content/view/2870/125/">do not</a>) pay attention to. Measurement of IP balance and consumer-friendliness such as the Consumers International IP Watch List are more important, and should eventually lead to a <a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1021065">measurement index for Access to Knowledge</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/consumers-international-ip-watch-list-2009'>https://cis-india.org/a2k/blogs/consumers-international-ip-watch-list-2009</a>
</p>
No publisherpraneshPiracyConsumer RightsIntellectual Property RightsFair Dealings2011-08-04T04:42:27ZBlog EntryThe Dark Fibre Files: 'Steal This Film' and the Pirate Bay Trial
https://cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial
<b>In this posting, the fifth blog entry on the making of the film 'Dark Fibre' by Jamie King and Peter Mann, Siddharth Chadha discusses the Swedish trial of the Pirate Bay, which brought up some of the debates on intellectual property rights and piracy that were highlighted in 'Steal This Film'. </b>
<p>In August 2006, Jamie King shot Part I of 'Steal This Film' in Sweden, combining found material, propoganda-like slogans and Vox Pops, along with accounts from members of the Pirate Bay, Piratbryan and the Pirate Party. The film critiques the alleged regulatory capture attempt performed by the Hollywood film lobby in order to leverage economic sanctions by the United States government on Sweden through the WTO. The film interviews the Pirate Bay Members Fredrik Neij, Gottfrid Svartholm, and Peter Sunde and Piratbryan members Rasmus Fleischer, Johan and Sara Anderson, who recount the search and seizure raid conducted by the Swedish police, with the purpose of disrupting the Pirate Bay's BitTorrent tracker. This raid, according to the Pirate Bay members, was against the Swedish law and conducted under pressure from the Motion Pictures Association of America. The documentary was officially released on filesharing networks on 28 December 2007 and, according to the filmmakers, downloaded 150,000 times in the first three days of distribution. The Pirate Bay encouraged the downloading of 'Steal This Film II', announcing the film's release on its blog. 'Steal This Film II' was also screened by the Pirate Cinema, Copenhagen, in January 2008.</p>
<p align="center"> </p>
<p>In the post-Napster era of peer to peer networks, the Pirate Bay case has been the media highlight on file sharing. After the police raided 12 different premises in May 2006, confiscating 186 servers and causing the torrent tracker to shut down for three days, the Pirate Bay re-opened to double the number of visitors, as its popularity got a shot in the arm with the extensive media coverage. While the MPAA termed the raids as extremely succesful, the Pirate Bay, which restored its servers in three days, thought otherwise. After a preliminary investigation and interrogation by the police, a four thousand page report was prepared by the prosecutor, in preperation of a trial. The Swedish prosecutors filled charges in January 2008 against four individuals they associated with The Pirate Bay for 'promoting other people's infringement of copyright laws'. <br /><br />The Swedish prosecution raised a furore in the world of Intellectual Property by suing The Pirate Bay. While the prosecutors contended that millions of people get access to copyrighted materials such as movies, songs, and software programs, which can be downloaded for free by going to The Pirate Bay site, the contentious issue lies in the fact that the Pirate Bay itself does not host any files. Just as Google is an index of links, The Pirate Bay is an index of where those files are located. The original files are located across millions of computers around the world, which may only have a small fragment of the original file, and which share these fragments using BitTorrent. According to CableLabs, an organisation of the North American cable industry, BitTorrent represents 18% of all Broadband traffic. Apart from suing The Pirate Bay, the major Hollywood studios have also tried pressure tactics to contain copyright infringement. HBO in 2005, for example, poisoned torrents of its 'Rome' TV show by providing bad chunks of data to clients. It also sent cease and desist letters to the Internet Service Providers of BitTorrent users. The increased pressure from the Hollywood lobby and persistent lawsuits have resulted in the shutdown of various BitTorrent indexing sites, such as the Supernova.org, Torrentspy, LokiTorrent, Demonoid, Oink.cd and EliteTorrents.org. <br /><br />The Pirate Bay Trial started on 16th Feburary 2009, with defense lawer Per E. Samuelson, arguing that it is legal to offer a service that can be used both legally and illegally, under the Swedish Law. He compared the Pirate Bay services to making cars that can be driven faster than the speed limit. On the second day of the trial, the prosecution dropped half of the charges against the Pirate Bay, due to shortcomings in evidence. Prosecutor Hakan Roswall dropped all charges related to 'assisting copyright infringement', leaving 'assisting making available' as the remaining charge. The next day of the trial saw an argument by the defense attorney Per Samuelson, which was latter dubbed as the King Kong defense, popularised by the blogs, file sharing news feeds and the media. The defense stated:<br /><br /><em>EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of the Pirate Bay don’t initiate transfers. It’s the users that do and they are physically identifiable people. They call themselves names like King Kong... According to legal procedure, the accusations must be against an individual and there must be a close tie between the perpetrators of a crime and those who are assisting. This tie has not been shown. The prosecutor must show that Carl Lundström personally has interacted with the user King Kong, who may very well be found in the jungles of Cambodia...</em><br /><br />The remaining six days of the trial saw questioning of the accused, witness depositions by plaintiffs and conflicting academic research by experts, as the prosecution tried to show that the Pirate Bay was an immensely profitable business that made money by helping others infringe copyright laws. The four operators of the site, Fredrik Neij, Gottfrid Svartholm, Peter Sunde and Carl Lundstrom, were convicted by Stockholm district court on 17 April 2009 and sentenced to one year in jail each and a total of 30 million SEK (approximately 3.5 million USD, 2.7 million EUR) in fines and damages. In its verdict the court stated that 'responsibility for assistance can strike someone who has only insignificantly assisted in the principal crime'. <br /><br />Even while filming of 'Dark Fibre' was on here in Bangalore, Jamie and his crew were filming outside the courtroom in Stockholm, as the the subjects of 'Steal This Film' went on trial and were convicted. The convicted are now preparing to appeal against the sentence and the fine in the higher Swedish court. </p>
<p><img class="image-inline image-inline" src="uploads/copy_of_piratebay.gif/image_preview" alt="piratebay" height="400" width="363" /> <img class="image-inline image-inline" src="uploads/copy_of_prtbay.jpg/image_preview" alt="prtbay" height="315" width="284" /></p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial'>https://cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial</a>
</p>
No publishersachiaPiracyIntellectual Property RightsCable TV2011-08-04T04:41:57ZBlog Entry