An Open Letter to Kapil Sibal on Copyright and Free Speech

Dear Mr. Sibal,
It is unfortunate that in rejecting the motion to annul the Intermediary Guidelines, for reasons I can only assume relate to narrow political gains, you also shot down an opportunity to plug the copyright system and its impact on individual liberties.
When you stated in Parliament that Rule 3(2) prescribes due diligence requirements for internet companies based on powers under Section 66A of the IT Act, you were either misinformed or lying. The official notification, available on the website of the Ministry of Information & Technology, only mentions Section 87(2)(zg) and 79(2).
Section 66A, as you may be aware, has proven to be an effective censorship tool with several problematic words such as ‘annoyance’, ‘inconvenience’, ‘danger’ and no prescribed definition to specify their scope. This, of course, raises issues of constitutionality, but we’ll leave that for another time.
The current rules not only prescribe ‘due diligence requirements for intermediaries’ (conditions that must be met by internet companies to qualify for legal immunity) but also introduces a mandatory content removal system under Rule 3(4). This system applies irrespective of the nature of the complaint, ranging from an allegation of defamation from Nirmal Baba to a copyright infringement claim from Saregama.
Even if you were to argue along the lines of Section 66A, you will notice that Reliance and other internet service providers have relied on Section 79 to justify blocking entire websites under the guise of preventing piracy, on the basis of highly dubious John Doe orders that bypass existing mechanisms under law. These intermediaries consistently refer to notices and court orders under these rules and the need to comply with them to quality for immunity. Thus, irrespective of what provision of law you believe the rules flow from, internet companies have been applying the conditions to themselves.
The primary objections to the current rules are based on the fact that they are vague, unconstitutional, opaque and presume illegality, which paves the way for private censorship, in some cases under government direction. But they also raise serious issues concerning copyright:
First, the rules grant thirty six hours to comply with notices, which is simply impractical for certain websites especially those dealing with copyright claims (for some context: sixty hours of video is uploaded to YouTube every minute). This results in a large number of removal requests on a daily basis. There needs to be greater discussion on the reasonable period for the removal of content. 
Secondly, there is no differentiation between intermediaries despite the numerous categories of online service providers today: e-mail services, social networking websites, video sharing platforms with user generated content, hosting services etc. Being a lawyer yourself, you will appreciate that the right to equality creates a corollary – unequals should be treated differently. As such, YouTube cannot be treated on par with Wikipedia. They are entirely different services, with respect to the nature of content and the frequency at which content is generated or uploaded. Similarly, for reasons related to the scale of the entity, a start up with six employees is rendered distinct from a large corporation like YouTube, and the deadline to comply with requests should be a function of this difference.
Third, you stated in Parliament that the government need not interfere in such matters; that intermediaries could work directly with users and resolve complaints. But for such a system to be effective, we require a mechanism that is foolproof and sufficiently detailed so that the rights and duties of all parties are clearly stated. This does not exist under the current rules. Unfortunately, the rejection of the motion today thwarts all attempts to discard the current rules and start afresh (you may refer to the study by the Centre for Internet and Society to evolve a counternotice mechanism).
You have introduced some laudable changes to the Indian copyright regime to advance the rights of lyricists and composers, and were successful in your efforts. I appreciate that greatly. However, there is a risk that other issues related to copyright may be side-stepped in the hullaballoo over government censorship.
Not to say that censorship and copyright is unrelated. I need hardly give you examples where free speech has been curtailed under the guise of copyright law. The recent protests in the United States relating to the ACTA and SOPA, which included a blackout by Wikipedia and support from Google should be sufficient. The movement developed from the realisation that discriminatory, short-sighted, vague and poorly thought out rules vest governments with power to abuse the system.
In today’s globalised world, what is true of the US could easily be true for India. India seems to be headed towards the dark ages on issues of internet censorship and India’s politicians seem the least bit concerned.
Perhaps I should speak a language you are more with: Think of the promising technology start ups in India that are deterred by the unclear liability regime for internet companies. While you spend your time trying to build the world’s cheapest tablet, there are several ideas that could rake in millions in revenue (and result in more taxes). Most due diligence reports on Indian internet laws today caution against the ambiguous and discriminatory intermediary liability regime in India, including the law you perpetuated today.
To conclude, don’t fight for our right to freedom of speech and expression. Fight for your right to collect taxes from us.
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