Preventive Detention in ‘God’s own Country’ for ‘Copyright & Digital Pirates’

Over the last several months we’ve blogged about several draconian preventive detention legislations aimed at combating video piracy and how these legislations may be unconstitutional.

Photo: Munnar, Kerala – photo credit: Bimal KC.

As of now we have confirmed news that the states of Tamil Nadu and Maharasthra have already amended their Goonda Acts to include copyright infringement of videos in the list of offences that could lead to preventive detention of the suspects (not convicts). An attempt to introduce an equivalent legislation in the State of Karnataka failed as the Governor of that state refused to give assent to the Bill since he was of the opinion that copyright law fell solely within the domain of the Union Government and not the State Government.

It has however recently came to my notice that Kerala, which is often referred to as ‘God’s own Country‘, has passed one of the most ‘deadly’, broadly worded preventive detention legislations aimed at combating all forms of copyright infringement. This legislation allows for detaining suspected offenders for a 6 month period without even conducting a trial to establish the guilt of the accused. The essence of this legislation – The Kerala Anti-Social Activities (Prevention) Act, 2007 – is as follows:

Section 2(h): ”digital data and copyright pirate” means any person who knowingly and deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific work and includes any person who illegally enters through the identity of the user and illegally uses any computer or digital network for any illegal personal profit by deceiving any person or any computer system;

Section 2(a) – states that anybody indulging in an activity defined in Section 2(h) is in effect indulging in an ‘anti-social activity’.

Section 2(j) includes a ‘digital data and copyright pirate’ within the broader definition of ‘goonda’.

A ‘Goonda’ once notified under the Act can be detained for a maximum period of 6 months. As usual the ‘Goonda’ has no right to legal representation before the Advisory Board.

The definition of the “digital data and copyright pirate” in the Kerala legislation is significantly wider than the definition in the Tamil Nadu or Maharashtra legislations since those definitions are limited to ‘video pirates’ and cinematograph works. Kerala however has broadened the definition to make even the copyright infringement of any book, music, film, software, artistic or scientific work as an offence leading to preventive detention.

The second limb of the definition relating to ‘digital data pirate’ has no parallel in any other legislation in the country. It makes online ‘identity theft’, ‘hacking’ and ‘illegally using’ a computer or a digital network as an offence punishable under the Act. Given the lack of precision in these definitions there is an abundant scope for blatant abuse of these laws.

More dangerously however the Kerala legislation punishes even first time offenders. The Tamil Nadu and Maharashtra legislations require the person to have been charged at least twice under the Copyright Act, 1957 before he can be detained under a preventive detention legislation.

The efficacy of these ‘preventive detention’ legislations in combating copyright infringement is in serious doubt. A recent story in a South Indian newspaper has pointed out that the Tamil Nadu Goonda Act has hardly been effective in cutting down on piracy in the state. Why then do we have these legislations?