From pranesh at cis-india.org Fri Feb 4 14:16:59 2011 From: pranesh at cis-india.org (Pranesh Prakash) Date: Fri, 04 Feb 2011 14:16:59 +0530 Subject: [Commons-Law] Why Parallel Importation of Books Should Be Allowed In India Message-ID: <4D4BBD03.20001@cis-india.org> For the web version, see: http://goo.gl/ZXCaG [Updated Wednesday, February 2, 2011, to respond to [Thomas Abraham's extensive and thoughtful rebuttal][] of the earlier version this post.] First off, here is the controversial clause, with the proposed amendment (the insertion of a "proviso", in legalese) being emphasised in bold font-face: ## The amendment > 2(m) "infringing copy" means,— > > (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film; > > (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means; > > (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means; > > (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act; > > **Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country shall not be deemed to be an infringing copy.** Some claim that this amendment to s.2(m) ("provided that... copy") has the potential to destroy the publishing industry. The most lucid explanation of this was in a recent op-ed by Thomas Abraham in the Hindustan Times, very ominously titled [The Death of Books][]. However it seems to us that the publishing industry—especially foreign publishers with distributorships in India—don't want to open themselves up to competition in the distribution market, and are opposing this most commendable move. ## What is parallel importation? Before getting into explanations of why allowing for parallel importation is good, and how the arguments otherwise fall short, we should examine what parallel importation is. > "Parallel import, insofar as copyright is concerned, involves an “original” copyright product (i.e. produced by or with the permission of the copyright owner in the manufacturing country) placed on the market of one country, which is subsequently imported into a second country without the permission of the copyright owner in the second country. For instance, the copyright owner of a book produced in India places the book on the market in India. A trader buys 100 copies of the book from India and imports them to China without the permission of the copyright owner of the book in China. This act of the trader bringing the books into China is called parallel import, the legality of which depends on the copyright law of the importing country (namely China in this example)." (Consumers International, *Copyright and Access to Knowledge: Policy Recommendations on Flexibilities in Copyright Laws* 23 (2006).) Some fear-mongers try to equate parallel importation with 'anarchy' in markets, and some confusedly claim that this amendment would allow *infringing* copies of books would be permitted. That is simply not true. For parallel importation to be said to happen, the sale must itself be legal. If it is an an illegally sold copy (a pirated copy of a book, for instance) that is imported, then it will count as a black market import—not as a parallel import. Allowing for parallel imports will only dismantle monopolies over importation, and the amendment makes that amply clear. ## Benefits of parallel importation ### Dismantling distribution monopolies The benefits that will accrue from allowing for parallel importations are huge. Currently a large percentage of educational books in India are imported, but with different companies having monopolies in importation of different books. If this was opened up to competition, the prices of books would drop, since one would not need to get an authorization to import books—the licence raj that currently exists would be dismantled—and Indian students will benefit. This is especially important for students and for libraries because even when low-priced editions are available, they are often of older editions. Allowing people to import goods without permissions (with appropriate duties) is taken for granted in all other areas, so why not copyrighted works? After all, it is not the act of publication that gets affected, but the right of exclusive distribution. And if that goes away after first sale internationally, that's not a bad thing at all. ### Helping book publishers Book publishers will be benefited by parallel importation, just as they are benefited by the existence of libraries and second-hand book stores. Libraries and second-hand book stores help with market segmentation, providing access to people who can't afford expensive books at much lower rates, often free. However, the existence of second-hand book stores in almost every city in India—I have personally bought second-hand books everywhere from Jhansi (Leo Tolstoy's *War and Peace*) to Delhi's Darya Ganj market (Edmund Wilson's *Letters on Literature and Politics*)—does not prevent me from buying books first hand. Indeed, Wilson's *Letters* is out of print, and cannot be bought in a store like Crosswords or Gangaram's. Why do I emphasise second-hand books and libraries? They are artefacts of something variously known as the "first sale doctrine" or the "doctrine of exhaustion" in copyright law: After the first sale of a book, subsequent sales, rentals, etc., cannot be controlled by the copyright owner. Parallel importation is simply a matter of applying this doctrine to the first sale of the book internationally rather than its first sale in India. Thus we see that the existence of second-hand books, libraries, and parallel imports, are all dependent on the same rule of copyright law: the first sale doctrine. This doctrine is enshrined in s.14(b)(iv) of the Indian Copyright Act, and has been interpreted by the Delhi High Court to mean first sale in India. The present amendment changes that to mean first sale internationally. The introduction of the modern "public library" in the mid-19th century led to a surge in literacy, readership, and book sales, and not a decline. Similarly, there is no reason to suppose that allowing parallel importations will lead to a decline in book sales. ### Helping libraries and the print-disabled Even currently, many people buy books directly from abroad and have them shipped to India. This is especially necessary for libraries whose patrons—scholars and students—very often need access to the latest books. Currently, libraries often buy books from abroad from Amazon, Alibris, etc. Such acts, within a strict reading of the law, are not legal, since they fall afoul of s.51(b)(iv), since the import is not for the "private and domestic use" of the libraries. This is also of especial concern for organizations working with print-disabled individuals, since the number of books legally available domestically in formats accessible by the print-disabled is very small, and often need to be imported. ### Helping all consumers An excellent report was prepared in [2006 by Consumers International][], in which they studied the costs of textbooks in eleven countries, including India, by average purchasing power of each country's citizens, instead of absolute cost. Based on that study, and a detailed investigation of international treaties on copyright and the flexibilities allowed in them, Consumers International recommended that India should amend our law to make it clear that parallel importation of copyrighted works is legal (on page 51 of the report). ## Rebutting objections I will address a few specific objections raised by Mr. Abraham, Nandita Saikia, and others. ### 1. Authors' losing out on royalties Authors do not lose out on royalties because of parallel importation, just as they do not lose out on royalties because of libraries, nor because of second-hand book stores. For parallel importation to take place, the books have to be purchased legally, and that first sale itself ensures that authors are paid royalties. Of course, publishing contracts often have a clause that unsold books will not garner royalties. But in that case, the problem is not parallel importation, but the overstocking and remaindering of books. The authors wouldn't be paid even if the books weren't imported into India. Parallel importation does not in any way encourage any of those. ### 2. Remaindered books India has amongst the cheapest book prices in the world. Then why would book publishers be wary of even cheaper books overrunning the Indian market? The reason, Mr. Abraham tells us, is [remaindered books][]. He believes that remaindered books have the potential to destroy the Indian book market. Remaindering of books has been happening for decades, mostly due to stocking conditions. If remaindered books haven't already destroyed all book markets worldwide, then it is unlikely that they will do so suddenly just because parallel importation of books is permitted in India. Furthermore, what happens with excess stock is controlled by the publishers. They can choose to pulp them, burn them, push them into the discrete channels that Mr. Abraham points out exist in mature, frontline markets where remaindering happens: > And the reason why they have not destroyed book markets worldwide is because the mature markets exist with multiple strands (chains and high street stores, independents, direct sellers, online sellers, and supermarkets)—so a direct seller will sell the same book a high street store is selling at a much reduced price without it affecting the business of each strand. Each strand is discrete and price sensitivity does not matter the same way. Since those multiple strands of commerce exist, each of which would enable the seller to get a better profit (being in a developed country) than in India, there is no reason to fear overrunning of the market with remainders. ### 3. Dumping of books An extension of the remaindered books concern is that of India becoming a land where all books will be dumped. This hasn't happened in case of countries like New Zealand, Mexico, Chile, Egypt, Cameroon, Pakistan, Argentina, Israel, Vietnam, South Korea, Japan, and a host of other countries, all of which allow for parallel importation of books. Even assuming that this fear is well-founded, copyright law is not the best way to deal with the problem. Dumping of books should be regulated by dumping laws. Using copyright law to regulate apprehended book dumping practices (which might not happen) is like using a trawler hoping to catch only shrimp: it is naive to think that there won't be unintended [bycatch][], and the consequences can be disastrous for the knowledge environment in case of books. It would also be helpful to keep in mind the experience in some other countries. In a 1998 judgment, the United States Supreme Court, [some parallel imports of copyrighted goods were legal][]. That ruling did not cause the downfall of the US book market, despite cheaper books being available outside the US. ### 4. Non-printing of low-priced editions for India because of "unsecure" market Parallel importation, which is what the amendment to s.2(m) allows for, affects only importation. It does not in any way affect publication in India or exports. Exporting low-priced Indian editions to countries which allow for parallel importation of books, is currently of doubtful legality. [Update: Earlier an incorrect claim was made that such export was legal. The legal status is not that clear. While there is a Delhi High Court case that makes exports of low-priced editions illegal in the context of sale to the United States, it specifically states that the decision [does not depend on whether India allows for parallel importation or not][].] The amendment does not change that position, for reasons explained at greater length [in a separate post][does not depend on whether India allows for parallel importation or not]. The incentives to print low-priced editions hence does not decrease. If anything it will increase because currently books that are not available as low-priced editions cannot be imported without exclusive licensing, and with a change in this position, the incentive to compete in the form of low-priced editions will increase. ### 5. Rhetoric flourish and the law: Open and closed markets Mr. Abraham asks how many authors one can name from open markets like Malaysia, Singapore, and Hong Kong, as a sign of the 'history of creativity' in each of these countries and territories. It might be just as well to ask how many authors he can name from closed markets like Bhutan, Kazakhstan, Cambodia, Papua New Guinea, Indonesia, Jordan, and Ukraine. One's ability to name authors from a country has less to do with the open/closed nature of its market and more to do with one's general knowledge. Additionally, the 'mature' markets which he wishes India to emulate—United States, the United Kingdom, and Australia—are more ambiguous on parallel importation than he would have us believe. In the United States, the legality of a segment of parallel importation of copyrighted goods reached the United States Supreme Court in *[Quality King v. L'anza][some parallel imports of copyrighted goods were legal]* in 1998, in which the court held in favour of the importer. The question reached the US Supreme Court again last year in [*Costco v. Omega*][], but the court split on it 4-4, and [did not deliver a binding precedent on parallel importation][]. In the United Kingdom, as per European Union law, [parallel importation is permitted from anywhere within the EU][]. And in Australia, in contrast with neighbouring New Zealand, parallel importation of parallel goods is allowed, with [an exception being made for books on the following of strict conditions][]. Most importantly, none of the markets held up as role models are developing countries. India is. This makes all the difference, as the Consumers International report underscores. ## Standing Committee consultations ### Lack of wide consultation On one point we are in complete agreement with Mr. Abraham, which is his point regarding lack of adequate consultation. While there was a good amount of consultation during the drafting stage, when a wide-ranging public consultation was held in 2006, this was not repeated in 2010 by the Standing Committee. Further, the Standing Committee only gave fifteen days for responses to its call for comments. ### Publishers were represented While Mr. Abraham states that only the Authors Guild was represented before the Standing Committee, by going through the report prepared by it, we see that the Federation of Indian Publishers and the Association of Publishers in India were also called to testify before the Standing Committee. ### Libraries, students, consumers were not represented However, while the authors supported it, and the publishers opposed it, no one got to hear the voice of the readers, the students, the libraries, the book buyers. For instance, not a single consumer rights organization or library association was called before the Standing Committee. Internationally, organizations like Consumers International, the International Federation of Library Associations, and EIFL (an international library organization) are invited to meetings of the World Intellectual Property Organization and their views are taken with seriousness as they are a very important part of the copyright environment. ### Department's and Standing Committee's reasoning We reproduce below four paragraphs from the Standing Committee's report, which elucidate many of the reasons for going in for this particular amendment. > 7.10 > All the reservations/objections raised by the various stakeholders [including the Federation of Indian Publishers and the Association of Publishers in India, whose objections are quoted in an earlier paragraph of the report -ed.] were taken up by the Committee with the Department with the intent of having full understanding of the background necessitating the proposed amendment and its exact impact on the various stakeholders. As clarified by the Department, the main purpose of this amendment was to allow for imports of copyright materials (e.g. books) from other countries. It was in accordance with Article 6 of the TRIPS Agreement relating to exhaustion of rights whereunder developing countries could facilitate access to copyright works at affordable cost. Exhaustion of rights (popularly called as parallel import) was a legal mechanism used to regulate prices of IPR protected materials. This was viable only if the price of the same works in the Indian market was very high when compared to the price in other countries from where it was imported to India. > 7.11 > Committee's attention was drawn to the fact that majority of educational books used in India were imported from other countries particularly from US and EU. There was an increasing tendency by publishers to give territorial licence to publish the books at very high rates. The low price editions were invariably the old editions than the latest ones. This provision would compel the Indian publishers to price the works reasonably so that it would not be viable for a distributor to import same works to India from other countries. This would also save India foreign exchange on the payment of royalties (licence fee) by the Indian publishers to foreigners. > 7.12 > Committee was also given to understand by the representatives of the publishing industry that Scheme of the Copyright Law was entirely different from the Trade Marks Act, 1999 and the Patent Act, 1970. The application of the standards and principles of these two laws through the proposed amendment of section 2(m) would completely dismantle the business model currently employed, rendering several industries unviable. On a specific query in this regard the Department informed that the concept of international exhaustion provided in section 107 A of the Patent Act, 1971 and in section 30 (3) of the Trademarks Act, 1999 and in section 2 (m) of the copyright law were similar. This provision was in tune with the national policy on exhaustion of rights. > 7.13 > After analysing the viewpoints of all the stakeholders along with the clarifications given thereupon by the Department, the Committee is of the view that proposed inclusion of the proviso in the definition of the term 'infringing copy' seems to be a step in the right direction, specially in the prevailing situation at the ground level. **The present practice of publishers publishing books under a territorial license, resulting in sale of books at very high rates cannot be considered a healthy practice.** [Emphasis added.] The Committee also notes that availability of low priced books under the present regime is invariably confined to old editions. It has been clearly specified that only those works published outside India with the permission of the author and imported into india will not be considered an infringed copy. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. **Thus, apprehensions a bout the flooding of the primary market with low priced editions, may be mis-founded as such a situation would be tackled by that country's law.** [emphasis added.] The Committee would, however, like to put a note of caution to Government to ensure that the purpose for which the amendment is proposed, i.e., to protect the interest of the students is not lost sight of. ## Conclusion It is clear that allowing for parallel imports is not likely to hurt publishers, but will result in an expansion of the reading market. It is mainly foreign publisher's monopolies over distribution which will be harmed by this amendment, while Indian publishers, Indian authors, and Indian readers, especially students, will stand to gain. [Thomas Abraham's extensive and thoughtful rebuttal]: http://dearddsez.blogspot.com/2011/01/thomas-abrahams-rebuttal-to-why.html [The Death of Books]: http://www.hindustantimes.com/StoryPage/Print/652735.aspx [2006 by Consumers International]: http://www.consumersinternational.org/news-and-media/publications/copyright-and-access-to-knowledge [remaindered books]: https://secure.wikimedia.org/wikipedia/en/wiki/Remaindered_book [bycatch]: https://secure.wikimedia.org/wikipedia/en/wiki/Bycatch [some parallel imports of copyrighted goods were legal]: https://secure.wikimedia.org/wikipedia/en/wiki/Quality_King_v._L'anza [does not depend on whether India allows for parallel importation or not]: indian-law-and-parallel-exports [*Costco v. Omega*]: http://www.scotusblog.com/case-files/cases/costco-v-omega/ [did not deliver a binding precedent on parallel importation]: http://copyright.columbia.edu/copyright/2010/12/16/costco-omega-libraries-and-copyright/ [parallel importation is permitted from anywhere within the EU]: http://a2knetwork.org/reports2010/uk [an exception being made for books on the following of strict conditions]: http://a2knetwork.org/reports2010/australia -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From artresourcesteaching at gmail.com Tue Feb 1 10:28:52 2011 From: artresourcesteaching at gmail.com (Art, Resources & Teaching Bangalore) Date: Tue, 1 Feb 2011 10:28:52 +0530 Subject: [Commons-Law] Book Release: Bhimayana Experiences of Untouchability Message-ID: Download: Bhimayan Release Bangalore -- Art, Resources & Teaching Trust (A.R.T.) Casa Andree II, First Floor, No.8 B 1 Andree Road, Shanti Nagar Bangalore 560 027 +91.80.4112.4556 info at artscapeindia.org www.artscapeindia.org -------------- next part -------------- An HTML attachment was scrubbed... URL: From pranesh at cis-india.org Tue Feb 15 20:40:47 2011 From: pranesh at cis-india.org (Pranesh Prakash) Date: Tue, 15 Feb 2011 20:40:47 +0530 Subject: [Commons-Law] Would the Bard Have Survived the Web? Message-ID: <4D5A9777.5030205@cis-india.org> http://www.nytimes.com/2011/02/15/opinion/15turow.html?_r=3&ref=global-home&pagewanted=print February 14, 2011 Would the Bard Have Survived the Web? By SCOTT TUROW, PAUL AIKEN and JAMES SHAPIRO ARCHAEOLOGISTS finished a remarkable dig last summer in East London. Among their finds were seven earthenware knobs, physical evidence of a near perfect 16th-century experiment into the link between commerce and culture. When William Shakespeare was growing up in rural Stratford-upon-Avon, carpenters at that East London site were erecting the walls of what some consider the first theater built in Europe since antiquity. Other playhouses soon rose around the city. Those who paid could enter and see the play; those who didn’t, couldn’t. By the time Shakespeare turned to writing, these “cultural paywalls” were abundant in London: workers holding moneyboxes (bearing the distinctive knobs found by the archaeologists) stood at the entrances of a growing number of outdoor playhouses, collecting a penny for admission. At day’s end, actors and theater owners smashed open the earthenware moneyboxes and divided the daily take. From those proceeds dramatists were paid to write new plays. For the first time ever, it was possible to earn a living writing for the public. Money changed everything. Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft. The stark findings of this experiment? As with much else, literary talent often remains undeveloped unless markets reward it. At the height of the Enlightenment, the cultural paywall went virtual, when British authors gained the right to create legally protected markets for their works. In 1709, expressly to combat book piracy and “for the encouragement of learned men to compose and write useful books,” Britain enacted the world’s first copyright law. Eighty years later, America’s founders expanded on this, giving Congress the authority to enact copyright laws “to promote the progress of science and useful arts.” Copyright, now powerfully linking authors, the printing press (and later technologies) and the market, would prove to be one of history’s great public policy successes. Books would attract investment of authors’ labor and publishers’ capital on a colossal scale, and our libraries and bookstores would fill with works that educated and entertained a thriving nation. Our poets, playwrights, novelists, historians, biographers and musicians were all underwritten by copyright’s markets. Yet today, these markets are unraveling. Piracy is a lucrative, innovative, global enterprise. Clusters of overseas servers can undermine much of the commercial basis for creative work around the world, offering users the speedy, secret transmission of stolen goods. The Senate Judiciary Committee is holding a hearing on Wednesday on “targeting Web sites dedicated to stealing American intellectual property,” and the White House has pledged to propose a new law to address rampant piracy within the year. But writers and other creative workers should still be worried. The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt. They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work. Certainly there’s a place for free creative work online, but that cannot be the end of it. A rich culture demands contributions from authors and artists who devote thousands of hours to a work and a lifetime to their craft. Since the Enlightenment, Western societies have been lulled into a belief that progress is inevitable. It never has been. It’s the result of abiding by rules that were carefully constructed and practices that were begun by people living in the long shadow of the Dark Ages. We tamper with those rules at our peril. Last July, a small audience gathered at that London archaeological dig to hear two actors read from “A Midsummer Night’s Dream” at the place of its debut, where theater’s most valuable walls once stood. While the foundations of the Theater (as it was known) remained, the walls themselves did not. When Shakespeare’s company lost its lease, the members dismantled the Theater’s timber frame and moved the walls to a new site across the Thames, naming their new playhouse the Globe. Shakespeare’s paywall traveled with him. The Globe would later burn down (a cannon fired during a performance of “Henry VIII” touched off the blaze) and was quickly rebuilt. Its final end came in the mid-17th century, at the outset of a bloody civil war, when authorities ordered the walls pulled down. The regime wasn’t motivated by ideals of open access or illusions of speeding progress. They simply wanted to silence the dramatists, who expressed a wide range of unsettling thoughts to paying audiences within. The experiment was over. Dramatists’ ties to commerce were severed, and the greatest explosion of playwriting talent the modern world has ever seen ended. Just like that. Scott Turow, a novelist, is the president of the Authors Guild. Paul Aiken is its executive director. James Shapiro, a member of the guild’s board, teaches Shakespeare at Columbia. -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From rahulcherian at hotmail.com Wed Feb 16 11:59:05 2011 From: rahulcherian at hotmail.com (Rahul Cherian) Date: Wed, 16 Feb 2011 06:29:05 +0000 Subject: [Commons-Law] Would the Bard Have Survived the Web? In-Reply-To: <4D5A9777.5030205@cis-india.org> References: <4D5A9777.5030205@cis-india.org> Message-ID: response to this article: http://www.huffingtonpost.com/2011/02/15/argument-for-copyright-shakespeare_n_823820.html Rahul Cherian Jacob Mobile: 98403 57991 Date: Tue, 15 Feb 2011 20:40:47 +0530 From: pranesh at cis-india.org To: commons-law at sarai.net; nls-ip at googlegroups.com Subject: [Commons-Law] Would the Bard Have Survived the Web? http://www.nytimes.com/2011/02/15/opinion/15turow.html?_r=3&ref=global-home&pagewanted=print February 14, 2011 Would the Bard Have Survived the Web? By SCOTT TUROW, PAUL AIKEN and JAMES SHAPIRO ARCHAEOLOGISTS finished a remarkable dig last summer in East London. Among their finds were seven earthenware knobs, physical evidence of a near perfect 16th-century experiment into the link between commerce and culture. When William Shakespeare was growing up in rural Stratford-upon-Avon, carpenters at that East London site were erecting the walls of what some consider the first theater built in Europe since antiquity. Other playhouses soon rose around the city. Those who paid could enter and see the play; those who didn’t, couldn’t. By the time Shakespeare turned to writing, these “cultural paywalls” were abundant in London: workers holding moneyboxes (bearing the distinctive knobs found by the archaeologists) stood at the entrances of a growing number of outdoor playhouses, collecting a penny for admission. At day’s end, actors and theater owners smashed open the earthenware moneyboxes and divided the daily take. From those proceeds dramatists were paid to write new plays. For the first time ever, it was possible to earn a living writing for the public. Money changed everything. Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft. The stark findings of this experiment? As with much else, literary talent often remains undeveloped unless markets reward it. At the height of the Enlightenment, the cultural paywall went virtual, when British authors gained the right to create legally protected markets for their works. In 1709, expressly to combat book piracy and “for the encouragement of learned men to compose and write useful books,” Britain enacted the world’s first copyright law. Eighty years later, America’s founders expanded on this, giving Congress the authority to enact copyright laws “to promote the progress of science and useful arts.” Copyright, now powerfully linking authors, the printing press (and later technologies) and the market, would prove to be one of history’s great public policy successes. Books would attract investment of authors’ labor and publishers’ capital on a colossal scale, and our libraries and bookstores would fill with works that educated and entertained a thriving nation. Our poets, playwrights, novelists, historians, biographers and musicians were all underwritten by copyright’s markets. Yet today, these markets are unraveling. Piracy is a lucrative, innovative, global enterprise. Clusters of overseas servers can undermine much of the commercial basis for creative work around the world, offering users the speedy, secret transmission of stolen goods. The Senate Judiciary Committee is holding a hearing on Wednesday on “targeting Web sites dedicated to stealing American intellectual property,” and the White House has pledged to propose a new law to address rampant piracy within the year. But writers and other creative workers should still be worried. The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt. They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work. Certainly there’s a place for free creative work online, but that cannot be the end of it. A rich culture demands contributions from authors and artists who devote thousands of hours to a work and a lifetime to their craft. Since the Enlightenment, Western societies have been lulled into a belief that progress is inevitable. It never has been. It’s the result of abiding by rules that were carefully constructed and practices that were begun by people living in the long shadow of the Dark Ages. We tamper with those rules at our peril. Last July, a small audience gathered at that London archaeological dig to hear two actors read from “A Midsummer Night’s Dream” at the place of its debut, where theater’s most valuable walls once stood. While the foundations of the Theater (as it was known) remained, the walls themselves did not. When Shakespeare’s company lost its lease, the members dismantled the Theater’s timber frame and moved the walls to a new site across the Thames, naming their new playhouse the Globe. Shakespeare’s paywall traveled with him. The Globe would later burn down (a cannon fired during a performance of “Henry VIII” touched off the blaze) and was quickly rebuilt. Its final end came in the mid-17th century, at the outset of a bloody civil war, when authorities ordered the walls pulled down. The regime wasn’t motivated by ideals of open access or illusions of speeding progress. They simply wanted to silence the dramatists, who expressed a wide range of unsettling thoughts to paying audiences within. The experiment was over. Dramatists’ ties to commerce were severed, and the greatest explosion of playwriting talent the modern world has ever seen ended. Just like that. Scott Turow, a novelist, is the president of the Authors Guild. Paul Aiken is its executive director. James Shapiro, a member of the guild’s board, teaches Shakespeare at Columbia. -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 _______________________________________________ commons-law mailing list commons-law at sarai.net http://mail.sarai.net/mailman/listinfo/commons-law -------------- next part -------------- An HTML attachment was scrubbed... URL: From vinodraina at gmail.com Tue Feb 15 19:16:57 2011 From: vinodraina at gmail.com (Vinod Raina) Date: Tue, 15 Feb 2011 19:16:57 +0530 Subject: [Commons-Law] [Arkitect India] Social Movements Declaration at World Social Forum, Dakar Message-ID: *Declaration of the Social Movements Assembly* *WSF 2011, February 10th, Dakar (Senegal)* As the Social Movements Assembly of the World Social Forum of Dakar, 2011, we are gathered here to affirm the fundamental contribution of Africa and its peoples in the construction of human civilisation. Together, the peoples of all the continents are struggling mightily to oppose the domination of capital, hidden behind illusory promises of economic progress and political stability. Complete decolonization for oppressed peoples remains for us, the social movements of the world, a challenge of the greatest importance. We affirm our support for and our active solidarity with the people of Tunisia, Egypt and the Arab world who have risen up to demand a true democracy and build the people´s power. Their struggles are lighting the path to another world, free from oppression and exploitation. We strongly affirm our support for the Ivory Coast, African and world peoples in their struggles for sovereign and participatory democracy. We defend the right to self-determination for all peoples. Through the WSF process, the Social Movements Assembly is the place where we come together through our diversity, in order to forge common struggles and a collective agenda to fight against capitalism, patriarchy, racism and all forms of discrimination. We are celebrating the tenth anniversary of the Social Forum, which was first held in Porto Alegre in 2001. Since that time, we have built a common history of work which led to some progress, particularly in Latin America, where we have been able to intervene in neoliberal alliances and to create several alternatives for just development that truly honor nature. In these ten years, we have also witnessed the eruption of a systemic crisis that has expanded into a food crisis, an environmental crisis, and financial and economic crises, and has led to an increase in migrations and forced displacement, exploitation, debt levels and social inequities. We denounce the part played by the main actors in the system (banks, transnational companies, the mass media, international institutions, …) who, in their constant quest for maximum profits, continue with their interventionist politics of war, military occupation, so-called humanitarian missions, new military bases, plundering natural resources, exploitation of entire peoples, and ideological manipulation. We also denounce their attempts to co-opt our movements through their funding of social sectors that serve their interests, and we reject their methods of assistance which generate dependence. Capitalism´s destructive force impacts every aspect of life itself, for all the peoples of the world. Yet each day we see new movements rise, struggling to reverse the ravages of colonialism and to achieve well-being and dignity for all. We declare that we, the people, will no longer bear the costs of their crisis and that, within capitalism, there is no escape from this crisis. This only reaffirms the need for us, as social movements, to come together to forge a common strategy to guide our struggles against capitalism. We fight against transnational corporations because they support the capitalist system, privatize life, public services and common goods such as water, air, land, seeds and mineral resources. Transnational corporations promote wars through their contracts with private corporations and mercenaries ; their extractionist practices endanger life and nature, expropriating our land and developing genetically modified seeds and food, taking away the peoples’ right to food and destroying biodiversity. We demand that all people should enjoy full soverignty in choosing their way of life. We demand the implementation of policies to protect local production, to give dignity to agricultural work and to protect the ancestral values of life. We denounce neoliberal free-trade treaties and demand freedom of movement for all the human beings. We will continue to mobilize to ask for the unconditional abolition of public debt in all the countries in the South. We also denounce, in the countries of the North, the use of public debt to impose to unfair policies that degrade the social welfare state. When the G8 and G20 hold their meetings, let us mobilize across the world to tell them, No ! We are not commodities! We will not be traded ! We fight for climate justice and food sovereignty. Global climate change is a product of the capitalist system of production, distribution and consumption. Transnational corporations, international financial institutions and governments serving them do not want to reduce greenhouse gases. We denounce ¨green capitalism ¨ and refuse false solutions to the climate crisis such as biofuels, genetically modified organisms and mechanisms of the carbon market like REDD, which ensnare impoverished peoples with false promises of progress while privatizing and commodifying the forests and territories where these peoples have been living for thousands of years. We defend the food sovereignty and the agreement reached during the Peoples’ Summit against Climate Change, held in Cochabamba, where true alternatives to face the climate crisis were built with the social movements and organisations from worldwide. Let’s mobilize, all of us, especially on the African continent, during the COP 17 in Durban in South Africa and in « Rio +20 » in 2012, to reassert the peoples’ and nature’s rights and block the illegitimate Cancun Agreement. We support sustainable peasant agriculture ; it is the true solution to the food and climate crises and includes access to land for all who work on it. Because of this, we call for a mass mobilisation to stop the landgrab and support local peasants struggles. ´ We fight against violence against women, often conducted in militarily occupied territories, but also violence affecting women who are criminalized for taking part in social struggles. We fight against domestic and sexual violence perpetrated on women because they are considered objects or goods, because the sovereignty of their bodies and minds is not acknowledged. We fight against the trade in women, girls and boys. We call on everyone to mobilize together, everywhere in the world, against violence against women. We defend sexual diversity, the right to gender self-determination and we oppose all homophobia and sexist violence. We fight for peace and against war, colonialism, occupations and the militarization of our lands. The imperialist powers use military bases to trigger conflicts, control and plunder natural resources, and support anti-democratic initiatives, as they did with the coup in Honduras and the military occupation of Haiti. They promote wars and conflicts as in Afghanistan, Iraq, the Democratic Republic of the Congo and many others. We must intensify the fight against repression and the criminalisation of the people’s struggles and strengthen the solidarity and initiatives between peoples, such as the Global Boycott Disinvestment and Sanctions Movement against Israel. Our struggle also aims at NATO and to ban all nuclear weapons. Each of these struggles implies a battle of ideas in which we cannot progress without democraticizing communication. We affirm that it is possible to build another kind of globalization, made from and by the people, and with the essential participation of the youth, the women, the peasants and indigenous peoples. The Assembly of the Social Movements calls the forces and popular actors from all countries to develop two major mobilisations, coordinated on the international level, to participate in the emancipation and selfdetermination of the people and strengthen the struggle against capitalism. Inspired by the struggles of the peoples of Tunisia and Egypt, we call for March 20th to be made a day of international solidarity with the uprisingsof the Arab and African people, whose every advance supports the struggles of all peoples: the resistance of the Palestinian and Saharian peoples ; European, Asian and African mobilisations against debt and structural adjusment plans ; and all the processes of change underway in Latin America. We also call for a Global Day of Action Against Capitalism on October 12th, when we express in myriad ways our rejection of a system that is destroying everything in its path. Social movements of the world, let us advance towards a global unity to shatter the capitalist system ! We shall prevail! -------------- next part -------------- An HTML attachment was scrubbed... URL: From krishnagreen at gmail.com Wed Feb 16 16:51:02 2011 From: krishnagreen at gmail.com (Gopal Krishna) Date: Wed, 16 Feb 2011 16:51:02 +0530 Subject: [Commons-Law] [Arkitect India] Press Release: Surveillance Architecture, Radio Collar, RFID, PII & UID Number/Aadhaar Message-ID: *Press Release* * * *Surveillance A**rchitecture, **Radio Collar, RFID, PII & UID Number/Aadhaar * * * *A Raja, Nandan Nilekani & Sam Pitroda Undermine Parliament & Citizens Rights* * * *States, Citizens, Constitution Not Consulted* New Delhi, 16/2/2011: If tagging of Indian students with Radio Collar in US is deemed an assault on human rights and is deemed offensive, which it indeed it is, how are proposals of Sam Pitroda, Adviser to the Prime Minister on Public Information Infrastructure & Innovations and Nandan Nilekani's UID Number/Aadhaar project that intends to tag all Indian residents acceptable? Both Pitroda and Nilekani work from the premises of Planning Commission of India. In a statement on the matter of Tri-Valley University scam released to media dated 12th February, S.M. Krishna, Union External Affairs Minister, Government of India said, "You will be happy to know that radio tagging has been removed from some students and other cases are being actively pursued." The statement issued in New York is available at http://meaindia.nic.in/mystart.php?id=550317170 It reveals that Government of India through its Embassy in Washington and Consulates in America has been working closely with the US Department of Homeland Security and the State Department to get "fair and humanitarian outcome" for the students who were tagged with radio collars. The fact remains that some of other students remain tagged with Radio collars in US. It is germane to note that in the US, there is a UID like project called radio frequency identification (RFID) project which is being opposed by the citizen groups there. The technology, RFID, is rapidly moving into the real world through a wide variety of applications: Washington state driver’s licenses, U.S. passports, clothing, payment cards, car keys and more. Their objective is to create a future world where RFID is everywhere and figure out problems. RFID has been used primarily to track goods in supply chains, and the RFID Ecosystem works as a kind of human warehouse. The system can show when people leave the office, when they return, how often they take breaks, where they go and who’s meeting with whom. The latest RFID tags contain a 96-bit code meant to uniquely identify an object or person. The RFID is an invisible tag. US. Department of Homeland Security required states to use an RFID chip that is readable from a distance to be compatible with its REAL ID initiative. It has failed to take off because of opposition of US States and citizens. It is common knowledge that large telecommunications companies are in the middle of a bitter dispute over their role assisting in government wiretapping, and whether they can be sued or be given legal immunity. By the time, citizens will know that such technologies have become quite widespread, it might be hard to change. A global technology based control regime is emerging. It will be great if citizens groups cooperated against the emerging universal identification architecture to combat threats to civil liberties and natural resources. There is a need for more studies to reveal the dehumanizing ramifications of such technological interference in human life. But Pitroda says, “Once you tag people, places, and programs, then it is easier to really organise information for delivering public services. Hopefully, with new focus on PII (Public Information Infrastructure & Innovations), where we could essentially tag people, tag places, tag programs, we will be able to structure delivery systems to get lot better productivity, efficiency, reduced cost. The starting point for this nationwide network of fiber optics, wireless systems to connect 2, 50, 000 Panchayats all over the country especially in rural areas where ultimately information data gathering would begin. This is where beneficiaries are.” All this information will be in the hands of a few ‘trustworthy' people in the government and few select companies. Office of the Adviser to help create Public Information Infrastructure that includes "Roadmap for establishment of Common, Secure and Unified Cyber Space for the Government and Public Services, Framework for efficient delivery of services under Social Sector Programmes, Blueprint and action plan for Broadband connectivity to rural/urban areas, GIS mapping of Places and Government Programmes in the country, E-governance, Applications for services at Panchayats and Consultation with Stakeholders including UID". The Unique Identification (UID) programme intends to document every Indian resident and give them a unique identification (UID) number, which is an important part of the public information infrastructure. Such a situation is fraught with both unintended and intended consequences impacting monetary, non-monetary aspects of citizens' life and their civil liberties. As an Adviser to the Prime Minister Sam Pitroda has been appointed in the rank of Cabinet Minister, is he accountable to the Parliament? Does the Parliament know about it? Has any concerned Committee of Parliament discussed the ramifications of such unprecedented convergence?. Has there been any consultation with citizens and states? It is claimed that "PII will improve governance and public service delivery by providing a national repository of information about: People:Citizens, Residents, Households, Places: Villages, Towns, Streets, Schools, Hospitals, Government Offices, Factories, Offices, Residence, Stations, mines, minerals, dams, plants, rivers, parks, forests, farms etc and Programmes:NREGS, Pensions (Old age, Widows), Disability, Scholarships, Backward, Girl Child Benefit Schemes, e-Judiciary, E-Office, Public Distribution System, Police & Prisons, Treasuries, Land Records, Sarva Shiksha Abhiyan, National Rural Health Mission. Report of the Nilekani headed Technology Advisory Group (TAGUP) for Unique Projects dated January 31, 2011 presented to Union Ministry of Finance recommends setting up of National Information Utilities (NIU) to deal with complex Information Technology (IT) systems and projects like Goods and Services Tax (GST), Tax Information Network (TIN), Expenditure Information Network (EIN), National Treasury Management Agency (NTMA) and New Pension System (NPS). It proposes NIUs as "private companies with a public purpose:profit-making, but not profit maximizing." The report discusses the possibility of setting up NIUs as NGOs under Societies Registration Act, 1860 but recommends that the NIU should be structured as a company with limited liability and be subject to sound corporate governance norms, such as those required for listed companies. The TAGUP Report is available at http://www.finmin.nic.in/reports/TAGUP_Report.pdf The TAGUP report refers to UIDAI Strategy Overview document published by UIDAI and mentions that "The recent acceptance of Aadhaar (UID Number) for satisfying proof of identity and address for all telecom connections by Department of Telecommunications will also ensure greater telecom inclusion" even as the Parliamentary Standing Committee on Finance is seized with National Identification Bill (NIAI), 2010. The Bill's Section 58 shows the hollowness of UIDAI's basis. The Bill reads, "Anything done or any action taken by the Central Government Savings under the Resolution of the Government of India, Planning Commission bearing notification number A-43011/02/2009-Admin.I, dated the 28th January, 2009, shall be deemed to have been done or taken under the corresponding provisions of this Act." The UIDAI is attempting to second guess legislative intent and takes it consent for granted as if our Parliament is a rubber stamp. The TAGUP report refers to Biometric data standards and how "the UIDAI published standards for the collection and storage of biometric data in the Report on Biometrics Design Standards for UID Applications, under the chairmanship of Dr. Gairolab." It must be noted that the uncertainties about biometrics in relation to a large a population as 1.2 billion remain. According to this very Report of the Biometrics Committee of the UIDAI, so far, the maximum number covered has been 50 million people. In fact, even this Committee of UIDAI looked unsure of it in the final analysis, stating: “First, retaining efficacy while scaling the database size from fifty million to a billion has not been adequately analysed. Second, fingerprint quality, the most important variable for determining de-duplication accuracy, has not been studied in depth in the Indian context.” It must be noted that the Cabinet Committee on Unique Identification Authority of India (UIDAI) related issues which was constituted by Government of India on 22 October 2009 comprised of the then Union Minister of Communications and Information Technology, A. Raja and its functions included "All issues relating to the Unique identification Authority of India including its organisation, plans, policies, programmes, schemes, funding and methodology to be adopted for achieving the objectives of that Authority." The decisions of this Committee, the extent to which it was influenced by Raja's presence along with the MoUs signed by the UIDAI merit parliamentary scrutiny until the same is complete the UID Number project should be put on hold. A National Seminar on Unique Identification Number Project is scheduled to held at A N Sinha Institute, Patna on 21st February, 2011 to respond to the National Identification Authority of Bill, 2010, the World Bank eTransform Initiative (ETI) and to examine its short-term and long term impacts. Bihar Government and other state governments have been kept in dark about the entire “solutions architecture” mentioned in the TAGUP report which is unfolding to the detriment of the federal structure of the country. The Seminar is being organised by A N Sinha Institute of Social Studies, Patna, INSAF, New Delhi and Citizens Forum for Civil Liberties (CFCL). * * *For Details*: Gopal Krishna, Member, Citizens Forum for Civil Liberties, Mb: 09818089660, 07739308480, E-mail:krishna2777 at gmail.com P.S: Fellow citizens and residents are requested to endorse the statement of concern on UID Number 17 eminent persons available at http://www.petitiononline.com/NO2UID/petition.html -------------- next part -------------- An HTML attachment was scrubbed... URL: From pranesh at cis-india.org Thu Feb 17 18:09:05 2011 From: pranesh at cis-india.org (Pranesh Prakash) Date: Thu, 17 Feb 2011 18:09:05 +0530 Subject: [Commons-Law] Would the Bard Have Survived the Web? In-Reply-To: References: <4D5A9777.5030205@cis-india.org> Message-ID: <4D5D16E9.30706@cis-india.org> Dear Rahul, I feel these two articles doing an even better job of countering Turow et al: Mike Masnick in Techdirt: http://goo.gl/Gozne > Of course, it's difficult to think of a worse example than Shakespeare for this argument (and sort of bizarre that Shapiro would sign off on an op-ed that so thoroughly misrepresents Shakespeare). Of course, as most of you know, an awful lot of Shakespeare's works are copies (sometimes directly) of earlier works. Sometimes they're derivative, but other times, he copied wholesale from others. So the bigger question might not be if Shakespeare could survive all the file sharing going on today, but whether or not he'd be able to produce any of his classic works, since they'd all be tied up in lawsuits over copyright infringement. > > Furthermore, the reason Shakespeare was able to make money by selling tickets was because seats in a theater are a real scarcity, and selling real -- not artificial -- scarcities is still a damn good business model today. Shakespeare could still make a killing on Broadway. Or he could go into the movie business and sell tickets to seats in theaters. There are plenty of real scarcities he could focus on. Jumping from real scarcities to artificial scarcities such as copyright, suggests that Turow and the others at the Authors Guild still don't even quite understand what they're arguing for. > > Separately, it's disheartening to see Turow -- who really should be seeking out actual evidence -- dismiss anyone who has that evidence by writing them off as "a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress." First of all, it's not just "a handful," and these folks aren't just coming up with "counterintuitive theories," they're often looking at what the actual data says -- something Turow apparently refuses to do. And then there's Peter Friedman (a law prof) presents an excellent counter to the article (http://goo.gl/XObqE). In the article he notes the irony that Alex Kozinski's classic judgment in White v. Sumsung actually references Scott Turow: > Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of. > > Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains. > > So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . . > > But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy. Regards, Pranesh On Wednesday 16 February 2011 11:59 AM, Rahul Cherian wrote: > > response to this article: > http://www.huffingtonpost.com/2011/02/15/argument-for-copyright-shakespeare_n_823820.html > > Rahul Cherian Jacob > > Mobile: 98403 57991 > > > > > Date: Tue, 15 Feb 2011 20:40:47 +0530 > From: pranesh at cis-india.org > To: commons-law at sarai.net; nls-ip at googlegroups.com > Subject: [Commons-Law] Would the Bard Have Survived the Web? > > http://www.nytimes.com/2011/02/15/opinion/15turow.html?_r=3&ref=global-home&pagewanted=print > > February 14, 2011 > Would the Bard Have Survived the Web? > > By SCOTT TUROW, PAUL AIKEN and JAMES SHAPIRO > > ARCHAEOLOGISTS finished a remarkable dig last summer in East London. > Among their finds were seven earthenware knobs, physical evidence of a > near perfect 16th-century experiment into the link between commerce and > culture. > > When William Shakespeare was growing up in rural Stratford-upon-Avon, > carpenters at that East London site were erecting the walls of what some > consider the first theater built in Europe since antiquity. Other > playhouses soon rose around the city. Those who paid could enter and see > the play; those who didn’t, couldn’t. > > By the time Shakespeare turned to writing, these “cultural paywalls” > were abundant in London: workers holding moneyboxes (bearing the > distinctive knobs found by the archaeologists) stood at the entrances of > a growing number of outdoor playhouses, collecting a penny for admission. > > At day’s end, actors and theater owners smashed open the earthenware > moneyboxes and divided the daily take. From those proceeds dramatists > were paid to write new plays. For the first time ever, it was possible > to earn a living writing for the public. > > Money changed everything. Almost overnight, a wave of brilliant > dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben > Jonson and Shakespeare. These talents and many comparable and lesser > lights had found the opportunity, the conditions and the money to pursue > their craft. > > The stark findings of this experiment? As with much else, literary > talent often remains undeveloped unless markets reward it. > > At the height of the Enlightenment, the cultural paywall went virtual, > when British authors gained the right to create legally protected > markets for their works. In 1709, expressly to combat book piracy and > “for the encouragement of learned men to compose and write useful > books,” Britain enacted the world’s first copyright law. Eighty years > later, America’s founders expanded on this, giving Congress the > authority to enact copyright laws “to promote the progress of science > and useful arts.” > > Copyright, now powerfully linking authors, the printing press (and later > technologies) and the market, would prove to be one of history’s great > public policy successes. Books would attract investment of authors’ > labor and publishers’ capital on a colossal scale, and our libraries and > bookstores would fill with works that educated and entertained a > thriving nation. Our poets, playwrights, novelists, historians, > biographers and musicians were all underwritten by copyright’s markets. > > Yet today, these markets are unraveling. Piracy is a lucrative, > innovative, global enterprise. Clusters of overseas servers can > undermine much of the commercial basis for creative work around the > world, offering users the speedy, secret transmission of stolen goods. > > The Senate Judiciary Committee is holding a hearing on Wednesday on > “targeting Web sites dedicated to stealing American intellectual > property,” and the White House has pledged to propose a new law to > address rampant piracy within the year. But writers and other creative > workers should still be worried. > > The rise of the Internet has led to a view among many users and Web > companies that copyright is a relic, suited only to the needs of > out-of-step corporate behemoths. Just consider the dedicated > “file-sharers” — actually, traffickers in stolen music movies and, > increasingly, books — who transmit and receive copyrighted material > without the slightest guilt. > > They are abetted by a handful of law professors and other experts who > have made careers of fashioning counterintuitive arguments holding that > copyright impedes creativity and progress. Their theory is that if we > severely weaken copyright protections, innovation will truly flourish. > It’s a seductive thought, but it ignores centuries of scientific and > technological progress based on the principle that a creative person > should have some assurance of being rewarded for his innovative work. > > Certainly there’s a place for free creative work online, but that cannot > be the end of it. A rich culture demands contributions from authors and > artists who devote thousands of hours to a work and a lifetime to their > craft. Since the Enlightenment, Western societies have been lulled into > a belief that progress is inevitable. It never has been. It’s the result > of abiding by rules that were carefully constructed and practices that > were begun by people living in the long shadow of the Dark Ages. We > tamper with those rules at our peril. > > Last July, a small audience gathered at that London archaeological dig > to hear two actors read from “A Midsummer Night’s Dream” at the place of > its debut, where theater’s most valuable walls once stood. While the > foundations of the Theater (as it was known) remained, the walls > themselves did not. When Shakespeare’s company lost its lease, the > members dismantled the Theater’s timber frame and moved the walls to a > new site across the Thames, naming their new playhouse the Globe. > Shakespeare’s paywall traveled with him. > > The Globe would later burn down (a cannon fired during a performance of > “Henry VIII” touched off the blaze) and was quickly rebuilt. Its final > end came in the mid-17th century, at the outset of a bloody civil war, > when authorities ordered the walls pulled down. The regime wasn’t > motivated by ideals of open access or illusions of speeding progress. > They simply wanted to silence the dramatists, who expressed a wide range > of unsettling thoughts to paying audiences within. > > The experiment was over. Dramatists’ ties to commerce were severed, and > the greatest explosion of playwriting talent the modern world has ever > seen ended. Just like that. > > Scott Turow, a novelist, is the president of the Authors Guild. Paul > Aiken is its executive director. James Shapiro, a member of the guild’s > board, teaches Shakespeare at Columbia. > > -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From pranesh at cis-india.org Fri Feb 18 18:45:37 2011 From: pranesh at cis-india.org (Pranesh Prakash) Date: Fri, 18 Feb 2011 18:45:37 +0530 Subject: [Commons-Law] [NLS IP] Would the Bard Have Survived the Web? In-Reply-To: <4D5A9777.5030205@cis-india.org> References: <4D5A9777.5030205@cis-india.org> Message-ID: <4D5E70F9.4030404@cis-india.org> This article has some good points and many flaws. The most fundamental flaw, I feel, is that of attacking copyright reformists as people who are against payments to artists (which is what the moneyboxes really are). Copyright != monetary compensation. So protesting against copyright maximalism is not the same as attacking money being paid to artists by people, which Turow et al seem to think it is. Unauthorized reproduction, lending, translation, transmogrification, are very often done without harming the copyright owner and even to the benefit of the owner. In fact, the doctrine of first sale (which, for instance, allows libraries to lend books without asking for the copyright owner's permission) is not a natural outgrowth of copyright law, but something that American judges had to read into the law (out of necessity) in the beginning of the 20th century. Various new technologies (including gramophones, photocopiers, VCRs, etc.) have been opposed on grounds of enabling people to take control away from authors, musicians, and publishers. By not exploring such stories, the authors are telling a half-truth when they say that copyright law has been colossal public policy success. Copyright maximalism definitely has not been a success as it has been painted, as the fact of these struggles shows. Indeed, if the trends of today's copyright laws had been present in the 19th century, then it is not unimaginable that libraries would have been declared viles sites of heinous illegality where there occurs free appropriation of an author's royalties. The essay "The Ecstasy of Influence: A Plagiarism" by Jonathan Lethem (which I have sent across to these lists, and often quote) has two bits where he mentions Shakespeare: http://goo.gl/JWFr3 "... then consider the remarkable series of “plagiarisms” that links Ovid's “Pyramus and Thisbe” with Shakespeare's Romeo and Juliet and Leonard Bernstein's West Side Story, or Shakespeare's description of Cleopatra, copied nearly verbatim from Plutarch's life of Mark Antony and also later nicked by T. S. Eliot for The Waste Land. If these are examples of plagiarism, then we want more plagiarism." and "The Walt Disney Company has drawn an astonishing catalogue from the work of others: Snow White and the Seven Dwarfs, Fantasia, Pinocchio, Dumbo, Bambi, Song of the South, Cinderella, Alice in Wonderland, Robin Hood, Peter Pan, Lady and the Tramp, Mulan, Sleeping Beauty, The Sword in the Stone, The Jungle Book, and, alas, Treasure Planet, a legacy of cultural sampling that Shakespeare, or De La Soul, could get behind. Yet Disney's protectorate of lobbyists has policed the resulting cache of cultural materials as vigilantly as if it were Fort Knox—threatening legal action, for instance, against the artist Dennis Oppenheim for the use of Disney characters in a sculpture, and prohibiting the scholar Holly Crawford from using any Disney-related images—including artwork by Lichtenstein, Warhol, Oldenburg, and others—in her monograph Attached to the Mouse: Disney and Contemporary Art." On Tuesday 15 February 2011 08:40 PM, Pranesh Prakash wrote: > http://www.nytimes.com/2011/02/15/opinion/15turow.html?_r=3&ref=global-home&pagewanted=print > > > February 14, 2011 > Would the Bard Have Survived the Web? > > By SCOTT TUROW, PAUL AIKEN and JAMES SHAPIRO > > ARCHAEOLOGISTS finished a remarkable dig last summer in East London. > Among their finds were seven earthenware knobs, physical evidence of a > near perfect 16th-century experiment into the link between commerce and > culture. > > When William Shakespeare was growing up in rural Stratford-upon-Avon, > carpenters at that East London site were erecting the walls of what some > consider the first theater built in Europe since antiquity. Other > playhouses soon rose around the city. Those who paid could enter and see > the play; those who didn’t, couldn’t. > > By the time Shakespeare turned to writing, these “cultural paywalls” > were abundant in London: workers holding moneyboxes (bearing the > distinctive knobs found by the archaeologists) stood at the entrances of > a growing number of outdoor playhouses, collecting a penny for admission. > > At day’s end, actors and theater owners smashed open the earthenware > moneyboxes and divided the daily take. From those proceeds dramatists > were paid to write new plays. For the first time ever, it was possible > to earn a living writing for the public. > > Money changed everything. Almost overnight, a wave of brilliant > dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben > Jonson and Shakespeare. These talents and many comparable and lesser > lights had found the opportunity, the conditions and the money to pursue > their craft. > > The stark findings of this experiment? As with much else, literary > talent often remains undeveloped unless markets reward it. > > At the height of the Enlightenment, the cultural paywall went virtual, > when British authors gained the right to create legally protected > markets for their works. In 1709, expressly to combat book piracy and > “for the encouragement of learned men to compose and write useful > books,” Britain enacted the world’s first copyright law. Eighty years > later, America’s founders expanded on this, giving Congress the > authority to enact copyright laws “to promote the progress of science > and useful arts.” > > Copyright, now powerfully linking authors, the printing press (and later > technologies) and the market, would prove to be one of history’s great > public policy successes. Books would attract investment of authors’ > labor and publishers’ capital on a colossal scale, and our libraries and > bookstores would fill with works that educated and entertained a > thriving nation. Our poets, playwrights, novelists, historians, > biographers and musicians were all underwritten by copyright’s markets. > > Yet today, these markets are unraveling. Piracy is a lucrative, > innovative, global enterprise. Clusters of overseas servers can > undermine much of the commercial basis for creative work around the > world, offering users the speedy, secret transmission of stolen goods. > > The Senate Judiciary Committee is holding a hearing on Wednesday on > “targeting Web sites dedicated to stealing American intellectual > property,” and the White House has pledged to propose a new law to > address rampant piracy within the year. But writers and other creative > workers should still be worried. > > The rise of the Internet has led to a view among many users and Web > companies that copyright is a relic, suited only to the needs of > out-of-step corporate behemoths. Just consider the dedicated > “file-sharers” — actually, traffickers in stolen music movies and, > increasingly, books — who transmit and receive copyrighted material > without the slightest guilt. > > They are abetted by a handful of law professors and other experts who > have made careers of fashioning counterintuitive arguments holding that > copyright impedes creativity and progress. Their theory is that if we > severely weaken copyright protections, innovation will truly flourish. > It’s a seductive thought, but it ignores centuries of scientific and > technological progress based on the principle that a creative person > should have some assurance of being rewarded for his innovative work. > > Certainly there’s a place for free creative work online, but that cannot > be the end of it. A rich culture demands contributions from authors and > artists who devote thousands of hours to a work and a lifetime to their > craft. Since the Enlightenment, Western societies have been lulled into > a belief that progress is inevitable. It never has been. It’s the result > of abiding by rules that were carefully constructed and practices that > were begun by people living in the long shadow of the Dark Ages. We > tamper with those rules at our peril. > > Last July, a small audience gathered at that London archaeological dig > to hear two actors read from “A Midsummer Night’s Dream” at the place of > its debut, where theater’s most valuable walls once stood. While the > foundations of the Theater (as it was known) remained, the walls > themselves did not. When Shakespeare’s company lost its lease, the > members dismantled the Theater’s timber frame and moved the walls to a > new site across the Thames, naming their new playhouse the Globe. > Shakespeare’s paywall traveled with him. > > The Globe would later burn down (a cannon fired during a performance of > “Henry VIII” touched off the blaze) and was quickly rebuilt. Its final > end came in the mid-17th century, at the outset of a bloody civil war, > when authorities ordered the walls pulled down. The regime wasn’t > motivated by ideals of open access or illusions of speeding progress. > They simply wanted to silence the dramatists, who expressed a wide range > of unsettling thoughts to paying audiences within. > > The experiment was over. Dramatists’ ties to commerce were severed, and > the greatest explosion of playwriting talent the modern world has ever > seen ended. Just like that. > > Scott Turow, a novelist, is the president of the Authors Guild. Paul > Aiken is its executive director. James Shapiro, a member of the guild’s > board, teaches Shakespeare at Columbia. > > -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From pranesh at cis-india.org Fri Feb 25 13:06:40 2011 From: pranesh at cis-india.org (Pranesh Prakash) Date: Fri, 25 Feb 2011 13:06:40 +0530 Subject: [Commons-Law] IT Act Draft Rules and Encryption Message-ID: <4D675C08.6000106@cis-india.org> Dear all, Today is the last date for comments on: The draft rule under s.43A : Reasonable security practices and procedures and sensitive personal information The draft rule under s.79 : Due diligence observed by intermediaries guidelines The draft rule under s.79 : Guidelines for cybercafes They are all very worrisome and disturbing. Importantly, there is a good case to say that they exceed the authority granted by the IT Act. Many of the provisions in the rules on intermediaries and cybercafes, for instance, have no nexus with s.79(2) under which they are drafted. They text of the draft rules be downloaded from the DIT website: http://goo.gl/qWZ8L Comments need to be sent to Gulshan Rai: grai at mit.gov.in And there's this op-ed in today's Hindu: http://goo.gl/Yp9pu The battle lines over encryption APARNA VISWANATHAN The draft Information Technology Rules provide the key to the back door sought by the government, and leave no doubt that security concerns will prevail over privacy. The draft “Information Technology (Due Diligence observed by intermediaries guidelines) Rules, 2011 circulated by the Ministry of Communications and Information Technology on February 10, 2011, address the issue of the liability of internet service providers (ISPs) and other intermediaries, an issue which achieved public notoriety through the Baazee.com case in 2004. In one master stroke, the Draft Rules settle the dispute raging over the last year, regarding the use of encryption techniques by the customers of BlackBerry, Google, Skype and MSN. Yet, while doing so, the Draft Rules also reveal the fundamental shortcomings of the IT Act even after the 2008 amendments. The case, Avnish Bajaj v State arose out of the sale of a video clip on the website of Baazee.com, shot on a mobile phone in MMS form, depicting two schoolchildren indulging in an explicit sexual act. Although the Bazee.com case was ultimately decided under the provisions of the Indian Penal Code, the critical legal issue in civil law is to what extent ISPs can be held liable for the content transmitted through their network. The question, which was initially addressed by California courts in the mid-1990s, was whether ISPs should be treated in the same manner as newspapers or magazines publishing content and, therefore, made potentially liable for copyright infringement, defamation, obscenity and other civil/criminal liability, or as telephone companies which are not liable for the content of the communications they transmit. Since the seminal 1995 judgment of the District Court of Northern California in the Netcom case, the view in the U.S. has been that an ISP is a passive service provider much like a telephone company and cannot be held liable for the content transmitted through its server. This legal position changed in the U.S. with the passage of the Digital Millenium Copyright Act (DMCA), which provided a “safe harbour” for ISPs, conferring exemption from copyright liability. However, the exemption is subject to the ISP meeting certain conditions. The ISP must not have the actual knowledge that the material is infringing, must not be aware of the facts and circumstances from which the infringing activity is apparent and, in the event of having such knowledge, must act expeditiously to disable such material. In order to avail himself of the exemption from liability, the service provider must also not receive a financial benefit directly attributable to the infringing activity. The legal position in India is similar to the DMCA in that the exemption from liability is not absolute but is subject to meeting certain conditions. Following the 2008 amendments, Section 79 of the IT Act, 2000 provides that an intermediary will not be held liable for any third party information, data or communication link made available or hosted by him. However, this exemption will apply only if the following conditions are met. First, the function of the intermediary must be limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted. Second, the intermediary does not initiate the transmission, select the receiver or select/modify the information contained in the transmission. In other words, the ISP acts like a telephone company and not like a newspaper editor who can select or edit the information provided. The exemption will also not be applicable if the ISP has conspired, aided, abetted or induced the commission of the unlawful act; or upon receiving actual knowledge that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material. The last two conditions are similar to those imposed under the DMCA in the U.S. Furthermore, in order to avail himself of the exemption under Section 79, the intermediary must “observe due diligence” while discharging his duties under the IT Act, 2000 and also observe other guidelines which the Central government may prescribe in this behalf. For the first time, since the 2008 amendments came into force, on February 10, 2011, the Ministry of Communications and Information Technology circulated draft rules regarding due diligence by intermediaries (the “Draft Rules”). Sub-rule (2) of the Draft Rules lists the types of infringing information which should not be transmitted by the intermediary, including information which is 1) abusive, blasphemous, obscene, vulgar etc., 2) infringing of IPRs, 3) sensitive personal information, and 4) information which threatens the unity, security or sovereignty of India. However, sub-rule (2) then tries to add in the offences which are the instruments of modern cyber crime. The list includes any information which impersonates another person, that is, identity theft and deceiving or misleading the addressee about the origin of electronic messages more commonly known as phishing. However, this list comprising identity theft and phishing is entirely inadequate as these are only a few methods of modern cyber crime/war. The list ignores, for example, the installation of a program which allows an attacker to remotely control the targeted computer otherwise known as “BOTNETS.” Another common tool of cyber crime is the use of a software program or a device designed to secretly monitor and log all keystrokes otherwise known as “keyloggers.” However, neither the remote access of a computer nor the secret monitoring of a computer resource is mentioned in sub-rule (2). The Draft Rules also introduce a definition of “cyber security incident” as any real or suspected adverse event in relation to cyber security that violates an explicitly or implicitly applicable security policy resulting in unauthorised access, denial of service or disruption, unauthorised use of a computer resource for processing or storage of information or changes to data, information without authorisation. In fact, the need to include the concepts of modern cyber crime and a definition as basic and critical as “cyber security incident” in Draft Rules on due diligence by intermediaries shows that there is a fundamental lacuna in the IT Act itself, namely, that it ignores the concepts of modern cyber war altogether and is limited to the outdated concerns of theft of software code through hacking. The partial attempt to bring in the concepts of modern cyber crime under the purview of the IT Act distracts attention from what is perhaps the main objective of the Draft Rules, that is, to codify the government's position towards service providers such as BlackBerry, Google, Skype, and MSN Hotmail which has recently attracted much attention. Research in Motion (RIM), the Canadian company, which operates BlackBerry, provides its customers with their own encryption key and does not possess a master key. According to RIM, in its system, there is no “back door” through which either RIM or any third party can gain access to the key or the customer's data. However, the Indian government was concerned that this level of encryption makes it impossible to monitor BlackBerry messages for national security purposes and that BlackBerrry's strong encryption technology could be used for terrorist or criminal activity. As per newspaper reports, on August 31, 2010, the Government of India accepted RIM's proposal for “lawful access by law enforcement agencies” of encrypted BlackBerry data. In December 2010, RIM reportedly provided the government a cloud computing-based system which would enable security agencies to lawfully intercept BlackBerry Messenger (BBM) messages in a comprehensible format but not BlackBerry Enterprise Service, that is, corporate emails. The Draft Rules incorporate the government's stand vis-à-vis BlackBerry into law because they require an intermediary to provide information to government agencies, which are lawfully authorised for investigative, protective, cyber security or intelligence activity. In sum, the Draft Rules provide the key to the back door long sought after by the government and leave no doubt that security concerns will prevail in law over the interest in privacy through use of encryption by civil society. -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From pranesh at cis-india.org Fri Feb 25 19:26:03 2011 From: pranesh at cis-india.org (Pranesh Prakash) Date: Fri, 25 Feb 2011 19:26:03 +0530 Subject: [Commons-Law] [india-gii] IT Act Draft Rules and Encryption In-Reply-To: References: <4D675C08.6000106@cis-india.org> Message-ID: <4D67B4F3.8020803@cis-india.org> Dear Tarun and all, Thanks so much for pointing out the final date is 28th, and not as I'd mentioned. We don't have to work overtime tonight to wrap up our comments. :) I would strongly urge everyone go through all three of these and send in comments. One general idea you might all want to keep in mind is to see if there is a nexus between each sub-rule and the parent section. For instance, most of the cybercafe regulations and a lot of the gen. intermediary guidelines regulation has nothing to do at all with whether they should or should not be held liable for user actions (which is what s.79(2), under which they are made is about). Regards, Pranesh On Friday 25 February 2011 06:35 PM, Tarun Dua wrote: > Draft Rules under Section 43A& Section 79 of IT Act for public comments > > * The Draft rule under section 43A- Reasonable security practices > and procedures and sensitive personal information > * The Draft rule under section 79-Due diligence observed by > intermediaries guidelines > * The Draft rule under section 79-Guidelines for Cyber Cafe > > Comments are invited till 28.02.2011 which can be sent by email to: > grai AT mit.gov.in > > From the website. > > The intermediaries guidelines are especially worrisome. Having dealth > first hand with the bureaucracy at CERT. It has implications for the > nascent webhosting/hosted datacenter industry of which we are a part. > > -Tarun > > On Fri, Feb 25, 2011 at 1:06 PM, Pranesh Prakash wrote: >> Dear all, >> Today is the last date for comments on: >> >> The draft rule under s.43A : Reasonable security practices and >> procedures and sensitive personal information >> The draft rule under s.79 : Due diligence observed by intermediaries >> guidelines >> The draft rule under s.79 : Guidelines for cybercafes >> >> They are all very worrisome and disturbing. Importantly, there is a good >> case to say that they exceed the authority granted by the IT Act. Many of >> the provisions in the rules on intermediaries and cybercafes, for instance, >> have no nexus with s.79(2) under which they are drafted. >> >> They text of the draft rules be downloaded from the DIT website: >> http://goo.gl/qWZ8L >> >> Comments need to be sent to Gulshan Rai: grai at mit.gov.in >> >> And there's this op-ed in today's Hindu: >> >> http://goo.gl/Yp9pu >> >> The battle lines over encryption >> >> APARNA VISWANATHAN >> >> The draft Information Technology Rules provide the key to the back door >> sought by the government, and leave no doubt that security concerns will >> prevail over privacy. >> >> The draft “Information Technology (Due Diligence observed by intermediaries >> guidelines) Rules, 2011 circulated by the Ministry of Communications and >> Information Technology on February 10, 2011, address the issue of the >> liability of internet service providers (ISPs) and other intermediaries, an >> issue which achieved public notoriety through the Baazee.com case in 2004. >> In one master stroke, the Draft Rules settle the dispute raging over the >> last year, regarding the use of encryption techniques by the customers of >> BlackBerry, Google, Skype and MSN. Yet, while doing so, the Draft Rules also >> reveal the fundamental shortcomings of the IT Act even after the 2008 >> amendments. >> >> The case, Avnish Bajaj v State arose out of the sale of a video clip on the >> website of Baazee.com, shot on a mobile phone in MMS form, depicting two >> schoolchildren indulging in an explicit sexual act. Although the Bazee.com >> case was ultimately decided under the provisions of the Indian Penal Code, >> the critical legal issue in civil law is to what extent ISPs can be held >> liable for the content transmitted through their network. The question, >> which was initially addressed by California courts in the mid-1990s, was >> whether ISPs should be treated in the same manner as newspapers or magazines >> publishing content and, therefore, made potentially liable for copyright >> infringement, defamation, obscenity and other civil/criminal liability, or >> as telephone companies which are not liable for the content of the >> communications they transmit. >> >> Since the seminal 1995 judgment of the District Court of Northern California >> in the Netcom case, the view in the U.S. has been that an ISP is a passive >> service provider much like a telephone company and cannot be held liable for >> the content transmitted through its server. This legal position changed in >> the U.S. with the passage of the Digital Millenium Copyright Act (DMCA), >> which provided a “safe harbour” for ISPs, conferring exemption from >> copyright liability. However, the exemption is subject to the ISP meeting >> certain conditions. The ISP must not have the actual knowledge that the >> material is infringing, must not be aware of the facts and circumstances >> from which the infringing activity is apparent and, in the event of having >> such knowledge, must act expeditiously to disable such material. In order to >> avail himself of the exemption from liability, the service provider must >> also not receive a financial benefit directly attributable to the infringing >> activity. >> >> The legal position in India is similar to the DMCA in that the exemption >> from liability is not absolute but is subject to meeting certain conditions. >> Following the 2008 amendments, Section 79 of the IT Act, 2000 provides that >> an intermediary will not be held liable for any third party information, >> data or communication link made available or hosted by him. However, this >> exemption will apply only if the following conditions are met. >> >> First, the function of the intermediary must be limited to providing access >> to a communication system over which information made available by third >> parties is transmitted or temporarily stored or hosted. Second, the >> intermediary does not initiate the transmission, select the receiver or >> select/modify the information contained in the transmission. In other words, >> the ISP acts like a telephone company and not like a newspaper editor who >> can select or edit the information provided. The exemption will also not be >> applicable if the ISP has conspired, aided, abetted or induced the >> commission of the unlawful act; or upon receiving actual knowledge that any >> information, data or communication link residing in or connected to a >> computer resource controlled by the intermediary is being used to commit the >> unlawful act, the intermediary fails to expeditiously remove or disable >> access to that material. The last two conditions are similar to those >> imposed under the DMCA in the U.S. >> >> Furthermore, in order to avail himself of the exemption under Section 79, >> the intermediary must “observe due diligence” while discharging his duties >> under the IT Act, 2000 and also observe other guidelines which the Central >> government may prescribe in this behalf. For the first time, since the 2008 >> amendments came into force, on February 10, 2011, the Ministry of >> Communications and Information Technology circulated draft rules regarding >> due diligence by intermediaries (the “Draft Rules”). >> >> Sub-rule (2) of the Draft Rules lists the types of infringing information >> which should not be transmitted by the intermediary, including information >> which is 1) abusive, blasphemous, obscene, vulgar etc., 2) infringing of >> IPRs, 3) sensitive personal information, and 4) information which threatens >> the unity, security or sovereignty of India. However, sub-rule (2) then >> tries to add in the offences which are the instruments of modern cyber >> crime. The list includes any information which impersonates another person, >> that is, identity theft and deceiving or misleading the addressee about the >> origin of electronic messages more commonly known as phishing. However, this >> list comprising identity theft and phishing is entirely inadequate as these >> are only a few methods of modern cyber crime/war. The list ignores, for >> example, the installation of a program which allows an attacker to remotely >> control the targeted computer otherwise known as “BOTNETS.” Another common >> tool of cyber crime is the use of a software program or a device designed to >> secretly monitor and log all keystrokes otherwise known as “keyloggers.” >> However, neither the remote access of a computer nor the secret monitoring >> of a computer resource is mentioned in sub-rule (2). >> >> The Draft Rules also introduce a definition of “cyber security incident” as >> any real or suspected adverse event in relation to cyber security that >> violates an explicitly or implicitly applicable security policy resulting in >> unauthorised access, denial of service or disruption, unauthorised use of a >> computer resource for processing or storage of information or changes to >> data, information without authorisation. In fact, the need to include the >> concepts of modern cyber crime and a definition as basic and critical as >> “cyber security incident” in Draft Rules on due diligence by intermediaries >> shows that there is a fundamental lacuna in the IT Act itself, namely, that >> it ignores the concepts of modern cyber war altogether and is limited to the >> outdated concerns of theft of software code through hacking. >> >> The partial attempt to bring in the concepts of modern cyber crime under the >> purview of the IT Act distracts attention from what is perhaps the main >> objective of the Draft Rules, that is, to codify the government's position >> towards service providers such as BlackBerry, Google, Skype, and MSN Hotmail >> which has recently attracted much attention. Research in Motion (RIM), the >> Canadian company, which operates BlackBerry, provides its customers with >> their own encryption key and does not possess a master key. According to >> RIM, in its system, there is no “back door” through which either RIM or any >> third party can gain access to the key or the customer's data. >> >> However, the Indian government was concerned that this level of encryption >> makes it impossible to monitor BlackBerry messages for national security >> purposes and that BlackBerrry's strong encryption technology could be used >> for terrorist or criminal activity. As per newspaper reports, on August 31, >> 2010, the Government of India accepted RIM's proposal for “lawful access by >> law enforcement agencies” of encrypted BlackBerry data. In December 2010, >> RIM reportedly provided the government a cloud computing-based system which >> would enable security agencies to lawfully intercept BlackBerry Messenger >> (BBM) messages in a comprehensible format but not BlackBerry Enterprise >> Service, that is, corporate emails. >> >> The Draft Rules incorporate the government's stand vis-à-vis BlackBerry into >> law because they require an intermediary to provide information to >> government agencies, which are lawfully authorised for investigative, >> protective, cyber security or intelligence activity. In sum, the Draft Rules >> provide the key to the back door long sought after by the government and >> leave no doubt that security concerns will prevail in law over the interest >> in privacy through use of encryption by civil society. >> >> -- >> Pranesh Prakash >> Programme Manager >> Centre for Internet and Society >> W: http://cis-india.org | T: +91 80 40926283 >> >> -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From pranesh at cis-india.org Fri Feb 25 19:50:21 2011 From: pranesh at cis-india.org (Pranesh Prakash) Date: Fri, 25 Feb 2011 19:50:21 +0530 Subject: [Commons-Law] [india-gii] IT Act Draft Rules and Encryption In-Reply-To: <4D67B4F3.8020803@cis-india.org> References: <4D675C08.6000106@cis-india.org> <4D67B4F3.8020803@cis-india.org> Message-ID: <4D67BAA5.1080605@cis-india.org> The link says: "Draft Rules under Section 43A & Section 79 of IT Act - Public Comments Invited by February 25, 2011" while the text on the page says "28.02.2011" Hence the confusion. On Friday 25 February 2011 07:26 PM, Pranesh Prakash wrote: > Dear Tarun and all, > Thanks so much for pointing out the final date is 28th, and not as I'd > mentioned. We don't have to work overtime tonight to wrap up our > comments. :) > > I would strongly urge everyone go through all three of these and send in > comments. > > One general idea you might all want to keep in mind is to see if there > is a nexus between each sub-rule and the parent section. For instance, > most of the cybercafe regulations and a lot of the gen. intermediary > guidelines regulation has nothing to do at all with whether they should > or should not be held liable for user actions (which is what s.79(2), > under which they are made is about). > > Regards, > Pranesh > > On Friday 25 February 2011 06:35 PM, Tarun Dua wrote: >> Draft Rules under Section 43A& Section 79 of IT Act for public comments >> >> * The Draft rule under section 43A- Reasonable security practices >> and procedures and sensitive personal information >> * The Draft rule under section 79-Due diligence observed by >> intermediaries guidelines >> * The Draft rule under section 79-Guidelines for Cyber Cafe >> >> Comments are invited till 28.02.2011 which can be sent by email to: >> grai AT mit.gov.in >> >> From the website. >> >> The intermediaries guidelines are especially worrisome. Having dealth >> first hand with the bureaucracy at CERT. It has implications for the >> nascent webhosting/hosted datacenter industry of which we are a part. >> >> -Tarun >> >> On Fri, Feb 25, 2011 at 1:06 PM, Pranesh >> Prakash wrote: >>> Dear all, >>> Today is the last date for comments on: >>> >>> The draft rule under s.43A : Reasonable security practices and >>> procedures and sensitive personal information >>> The draft rule under s.79 : Due diligence observed by intermediaries >>> guidelines >>> The draft rule under s.79 : Guidelines for cybercafes >>> >>> They are all very worrisome and disturbing. Importantly, there is a good >>> case to say that they exceed the authority granted by the IT Act. >>> Many of >>> the provisions in the rules on intermediaries and cybercafes, for >>> instance, >>> have no nexus with s.79(2) under which they are drafted. >>> >>> They text of the draft rules be downloaded from the DIT website: >>> http://goo.gl/qWZ8L >>> >>> Comments need to be sent to Gulshan Rai: grai at mit.gov.in >>> >>> And there's this op-ed in today's Hindu: >>> >>> http://goo.gl/Yp9pu >>> >>> The battle lines over encryption >>> >>> APARNA VISWANATHAN >>> >>> The draft Information Technology Rules provide the key to the back door >>> sought by the government, and leave no doubt that security concerns will >>> prevail over privacy. >>> >>> The draft “Information Technology (Due Diligence observed by >>> intermediaries >>> guidelines) Rules, 2011 circulated by the Ministry of Communications and >>> Information Technology on February 10, 2011, address the issue of the >>> liability of internet service providers (ISPs) and other >>> intermediaries, an >>> issue which achieved public notoriety through the Baazee.com case in >>> 2004. >>> In one master stroke, the Draft Rules settle the dispute raging over the >>> last year, regarding the use of encryption techniques by the >>> customers of >>> BlackBerry, Google, Skype and MSN. Yet, while doing so, the Draft >>> Rules also >>> reveal the fundamental shortcomings of the IT Act even after the 2008 >>> amendments. >>> >>> The case, Avnish Bajaj v State arose out of the sale of a video clip >>> on the >>> website of Baazee.com, shot on a mobile phone in MMS form, depicting two >>> schoolchildren indulging in an explicit sexual act. Although the >>> Bazee.com >>> case was ultimately decided under the provisions of the Indian Penal >>> Code, >>> the critical legal issue in civil law is to what extent ISPs can be held >>> liable for the content transmitted through their network. The question, >>> which was initially addressed by California courts in the mid-1990s, was >>> whether ISPs should be treated in the same manner as newspapers or >>> magazines >>> publishing content and, therefore, made potentially liable for copyright >>> infringement, defamation, obscenity and other civil/criminal >>> liability, or >>> as telephone companies which are not liable for the content of the >>> communications they transmit. >>> >>> Since the seminal 1995 judgment of the District Court of Northern >>> California >>> in the Netcom case, the view in the U.S. has been that an ISP is a >>> passive >>> service provider much like a telephone company and cannot be held >>> liable for >>> the content transmitted through its server. This legal position >>> changed in >>> the U.S. with the passage of the Digital Millenium Copyright Act (DMCA), >>> which provided a “safe harbour” for ISPs, conferring exemption from >>> copyright liability. However, the exemption is subject to the ISP >>> meeting >>> certain conditions. The ISP must not have the actual knowledge that the >>> material is infringing, must not be aware of the facts and circumstances >>> from which the infringing activity is apparent and, in the event of >>> having >>> such knowledge, must act expeditiously to disable such material. In >>> order to >>> avail himself of the exemption from liability, the service provider must >>> also not receive a financial benefit directly attributable to the >>> infringing >>> activity. >>> >>> The legal position in India is similar to the DMCA in that the exemption >>> from liability is not absolute but is subject to meeting certain >>> conditions. >>> Following the 2008 amendments, Section 79 of the IT Act, 2000 >>> provides that >>> an intermediary will not be held liable for any third party information, >>> data or communication link made available or hosted by him. However, >>> this >>> exemption will apply only if the following conditions are met. >>> >>> First, the function of the intermediary must be limited to providing >>> access >>> to a communication system over which information made available by third >>> parties is transmitted or temporarily stored or hosted. Second, the >>> intermediary does not initiate the transmission, select the receiver or >>> select/modify the information contained in the transmission. In other >>> words, >>> the ISP acts like a telephone company and not like a newspaper editor >>> who >>> can select or edit the information provided. The exemption will also >>> not be >>> applicable if the ISP has conspired, aided, abetted or induced the >>> commission of the unlawful act; or upon receiving actual knowledge >>> that any >>> information, data or communication link residing in or connected to a >>> computer resource controlled by the intermediary is being used to >>> commit the >>> unlawful act, the intermediary fails to expeditiously remove or disable >>> access to that material. The last two conditions are similar to those >>> imposed under the DMCA in the U.S. >>> >>> Furthermore, in order to avail himself of the exemption under Section >>> 79, >>> the intermediary must “observe due diligence” while discharging his >>> duties >>> under the IT Act, 2000 and also observe other guidelines which the >>> Central >>> government may prescribe in this behalf. For the first time, since >>> the 2008 >>> amendments came into force, on February 10, 2011, the Ministry of >>> Communications and Information Technology circulated draft rules >>> regarding >>> due diligence by intermediaries (the “Draft Rules”). >>> >>> Sub-rule (2) of the Draft Rules lists the types of infringing >>> information >>> which should not be transmitted by the intermediary, including >>> information >>> which is 1) abusive, blasphemous, obscene, vulgar etc., 2) infringing of >>> IPRs, 3) sensitive personal information, and 4) information which >>> threatens >>> the unity, security or sovereignty of India. However, sub-rule (2) then >>> tries to add in the offences which are the instruments of modern cyber >>> crime. The list includes any information which impersonates another >>> person, >>> that is, identity theft and deceiving or misleading the addressee >>> about the >>> origin of electronic messages more commonly known as phishing. >>> However, this >>> list comprising identity theft and phishing is entirely inadequate as >>> these >>> are only a few methods of modern cyber crime/war. The list ignores, for >>> example, the installation of a program which allows an attacker to >>> remotely >>> control the targeted computer otherwise known as “BOTNETS.” Another >>> common >>> tool of cyber crime is the use of a software program or a device >>> designed to >>> secretly monitor and log all keystrokes otherwise known as “keyloggers.” >>> However, neither the remote access of a computer nor the secret >>> monitoring >>> of a computer resource is mentioned in sub-rule (2). >>> >>> The Draft Rules also introduce a definition of “cyber security >>> incident” as >>> any real or suspected adverse event in relation to cyber security that >>> violates an explicitly or implicitly applicable security policy >>> resulting in >>> unauthorised access, denial of service or disruption, unauthorised >>> use of a >>> computer resource for processing or storage of information or changes to >>> data, information without authorisation. In fact, the need to include >>> the >>> concepts of modern cyber crime and a definition as basic and critical as >>> “cyber security incident” in Draft Rules on due diligence by >>> intermediaries >>> shows that there is a fundamental lacuna in the IT Act itself, >>> namely, that >>> it ignores the concepts of modern cyber war altogether and is limited >>> to the >>> outdated concerns of theft of software code through hacking. >>> >>> The partial attempt to bring in the concepts of modern cyber crime >>> under the >>> purview of the IT Act distracts attention from what is perhaps the main >>> objective of the Draft Rules, that is, to codify the government's >>> position >>> towards service providers such as BlackBerry, Google, Skype, and MSN >>> Hotmail >>> which has recently attracted much attention. Research in Motion >>> (RIM), the >>> Canadian company, which operates BlackBerry, provides its customers with >>> their own encryption key and does not possess a master key. According to >>> RIM, in its system, there is no “back door” through which either RIM >>> or any >>> third party can gain access to the key or the customer's data. >>> >>> However, the Indian government was concerned that this level of >>> encryption >>> makes it impossible to monitor BlackBerry messages for national security >>> purposes and that BlackBerrry's strong encryption technology could be >>> used >>> for terrorist or criminal activity. As per newspaper reports, on >>> August 31, >>> 2010, the Government of India accepted RIM's proposal for “lawful >>> access by >>> law enforcement agencies” of encrypted BlackBerry data. In December >>> 2010, >>> RIM reportedly provided the government a cloud computing-based system >>> which >>> would enable security agencies to lawfully intercept BlackBerry >>> Messenger >>> (BBM) messages in a comprehensible format but not BlackBerry Enterprise >>> Service, that is, corporate emails. >>> >>> The Draft Rules incorporate the government's stand vis-à-vis >>> BlackBerry into >>> law because they require an intermediary to provide information to >>> government agencies, which are lawfully authorised for investigative, >>> protective, cyber security or intelligence activity. In sum, the >>> Draft Rules >>> provide the key to the back door long sought after by the government and >>> leave no doubt that security concerns will prevail in law over the >>> interest >>> in privacy through use of encryption by civil society. >>> >>> -- >>> Pranesh Prakash >>> Programme Manager >>> Centre for Internet and Society >>> W: http://cis-india.org | T: +91 80 40926283 >>> >>> > -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: From pranesh at cis-india.org Mon Feb 28 00:53:59 2011 From: pranesh at cis-india.org (Pranesh Prakash) Date: Mon, 28 Feb 2011 00:53:59 +0530 Subject: [Commons-Law] WIPO Director General Addresses the Future of Copyright Message-ID: <4D6AA4CF.5080404@cis-india.org> http://www.wipo.int/pressroom/en/articles/2011/article_0005.html WIPO Director General Addresses the Future of Copyright Geneva, February 24, 2011 PR/2011/679 WIPO Director General Francis Gurry today said that copyright needs to evolve to current technological realities or risk becoming irrelevant. Speaking at a conference hosted by Australia’s Faculty of Law of the Queensland University of Technology (QUT) on the future of copyright, Mr. Gurry said there is no “single magical answer” to the development of a successful policy response to the challenges facing copyright in the digital age, but a combination of “law, infrastructure, cultural change, institutional collaboration and better business models.” Mr. Gurry said the central question facing the evolution of copyright policy is how to maintain a balance between availability of cultural works at affordable prices while assuring a dignified economic existence for creators and performers. Digital technology is having a radical impact on those balances. “Rather than resist it, we need to accept the inevitability of technological change and to seek an intelligent engagement with it,” he said. “There is, in any case, no other choice – either the copyright system adapts to the natural advantage that has evolved or it will perish.” The Director General said there are three main principles that should guide the development of a successful policy response. The first is “neutrality to technology and to the business models developed in response to technology.” He said the purpose of copyright is not to influence technological possibilities for creative expression or the business models built on those technological possibilities, nor to preserve business models established under obsolete technologies. “Its purpose is…to work with any and all technologies for the production and distribution of cultural works and to extract some value from the cultural exchanges made possible by those technologies to return to creators and performers and the business associates engaged by them to facilitate the cultural exchanges through the use of the technologies. Copyright should be about promoting cultural dynamism, not preserving or promoting vested business interests.” A second principle, he said is “comprehensiveness and coherence in the policy response.” Mr. Gurry recognized the limitation of law to provide a comprehensive answer and said that “infrastructure is as important a part of the solution as law.” In this respect, he said collective management societies “need to re-shape and to evolve“ as their present infrastructure is out-dated as “it represents a world of separate territories and a world where right-holders expressed themselves in different media, not the multi-jurisdictional world of the Internet or the convergence of expression in digital technology.” “We need a global infrastructure that permits simple, global licensing, one that makes the task of licensing cultural works legally on the Internet as easy as it is to obtain such works there illegally,” he said. In this respect, Mr. Gurry said “an international music registry -- a global repertoire database -- would be a very valuable and needed step in the direction of establishing the infrastructure for global licensing. And, secondly, in order to be successful, future global infrastructure must work with the existing collecting societies and not seek to replace them.” The culture of the Internet also needs to be taken into consideration. Referring to the high rates of illegal downloading, Mr. Gurry said “In order to effect a change in attitude, I believe that we need to re-formulate the question that most people see or hear about copyright and the Internet. People do not respond to being called pirates…They would respond, I believe, to a challenge to sharing responsibility for cultural policy. We need to speak less in terms of piracy and more in terms of the threat to the financial viability of culture in the 21st Century, because it is this which is at risk if we do not have an effective, properly balanced copyright policy.” The third guiding principle for a successful response to the digital challenge is the need more simplicity in copyright. Mr. Gurry said “Copyright is complicated and complex, reflecting the successive waves of technological development in the media of creative expression from printing through to digital technology, and the business responses to those different media, “ warning “We risk losing our audience and public support if we cannot make understanding of the system more accessible.” For further information, please contact the Media Relations Section at WIPO: Tel: (+41 22) - 338 81 61 or 338 95 47 Fax: (+41 22) - 338 82 80 -- Pranesh Prakash Programme Manager Centre for Internet and Society W: http://cis-india.org | T: +91 80 40926283 -------------- next part -------------- A non-text attachment was scrubbed... Name: signature.asc Type: application/pgp-signature Size: 262 bytes Desc: OpenPGP digital signature URL: