Dear Mr. Sibal,
It is unfortunate that in rejecting the motion to annul the Intermediary Guidelines, 2011, for reasons I can only assume relate to narrow political gains despite the loss of individual rights, you have also effectively shot down the opportunity to fix one of the many holes in the current copyright system in India.
When you stated in Parliament today that Rule 3(2) of the Guidelines, which prescribes 'due diligence' requirements for internet intermediaries, originates from Section 66A of the Information Technology Act, 2000, thus making them valid, you were either misinformed or just plain lying. The official gazette notification, available at the Ministry of Information & Technology website, reads as follows:
"— In exercise of the powers conferred by clause (zg) of subsection (2) of section 87 read with sub-section (2) of section 79 of the Information Technology Act, 2000 (21 of 2000), the Central Government hereby makes the following rules, namely.-
1. Short title and commencement — (1) These rules may be called the Information Technology (Intermediaries guidelines) Rules, 2011."
Section 66A itself contains several words that are problematic (for example - causing 'annoyance', 'inconvenience', 'danger' etc.) with no definition to specify the scope of these phrases, raising constitutional issues relating to permissible restrictions on free speech on the internet - but that isn't the point here.
The fact of the matter is that the Information Technology (Due diligence observed by Intermediaries Guidelines) Rules, 2011 not only prescribes due diligence requirements (essentially conditions that need to be met by intermediaries in order to qualify for immunities provided to internet intermediaries by S.79 of the IT Act) but also creates a notice and takedown system under Rule 3(4) of the Guidelines. This system applies irrespective of the type of content and the nature of the complaint involved - so it could be an allegation of defamation from Nirmal Baba, or it could be a copyright infringement claim from Saregama, but the rules that apply are the same.
Even if you were to argue on the lines of S.66A, I would like to point out that Reliance Communications and other ISP's have consistently relied on Section 79 of the IT Act to justify their actions of blocking entire websites on the grounds of preventing piracy. This, on the basis of highly dubious John Doe orders, that clearly bypass statutory mechanisms under law. They refer to notices and court orders under the Guidelines and the necessity to comply with these rules in order to claim immunity from liability. Thus, irrespective of what provision of law you believe the Rules flow from, the entities actually affected by the Rules, seem to be applying the Rules to themselves.
While the most compelling objections to the Rules as they currently stand stem from the fact that they are vague, unconstitutional, lack transparency, contain a presumption of illegality and permit government and private censorship, there are several issues concerning copyright law that also deserve mention:
Firstly, the period of 36-hours for the removal of content is simply impractical for certain websites to address copyright claims. 60 hours of video are uploaded to Youtube
everyday (edit: every minute)- that is an incredibly large number of videos, and therefore an incredibly large number of takedown notices to deal with on a daily basis. There needs to be greater discussion on the reasonable period for removal of content.
This brings me to the second issue - lack of differentiation between intermediaries in the Guidelines. As a lawyer yourself, you will understand that the underlying principle in the right to equality is that equals be treated equally and unequals, unequally. Youtube cannot be treated the same as Wikipedia, for reasons relating to differences in the nature and frequency of content being uploaded on each of these websites. Similarly, for reasons relating to scale of operations, a small start up with 6 employees working on a shoestring budget, should ideally not be held to the same standards as a large corporation like Youtube in honouring takedown requests especially when they relate to something relatively trivial like a single copyright claim.
Thirdly, you stated in Parliament today that the government need not interfere in such matters, and that the intermediary could work directly with the complainant after sending the notice. For such a system to be effective, there needs to be a complete and foolproof mechanism - a detailed takedown and notice system, with the rights and duties of each of the parties - the intermediary, the owner of copyrighted material and the third party user - being clearly stated. This does not exist under the current Rules and the rejection of this motion, thwarts the attempts already underway by the likes of the Centre for Internet and Society, to replace the discarded IT Rules with a more evolved and effective notice-counter notice-takedown mechanism.
Annulling the existing Intermediary Guidelines would have provided a fresh slate to work with, allowing the incorporation of the abovementioned details that the initial drafters seem to have complete ignored, but you dismissed it outright without considering these factors.
You have recently introduced some laudable changes to the Indian copyright regime, particularly to advance the rights of lyricists and composers and were successful in your efforts. I appreciate these effort greatly. However, there is a risk that the copyright related issues to the Intermediary Guidelines will be trivialised and side-stepped in the hullaballoo over political censorship.
That is not to say that censorship and copyright law are unrelated. I need hardly give you examples of situations where free speech and expression have been curtailed behind the veil of copyright laws. The recent protests in the United States of America relating to the Anti-counterfeiting Act (ACTA) and the Stop Online Piracy Act (SOPA), including a blackout by Wikipedia and supported by the likes of Google, should be more than sufficient. The movement developed from public recognition of the fact that inequitable, incomplete, vague and poorly thought out rules and legislations, provide the government with ample power to abuse the system and restrict access to information if it is in the government's interest to do so. And if they can, they will. And as a citizen of the globalised village we live in today, I know that what is true of the United States on an issue like this, could just as easily be true of India in the near future.
India seems to be headed towards the dark ages when it comes to internet censorship and our ministers, like yourself, seem unconcerned and unfazed. So let me speak a language that ministers understand - MONEY.
Think of the promising Indian start-ups in the technology field that are deterred by our unclear intermediary liability regime and resist from investing their time, effort and money in India. While you spend your time forcefully trying to design, build and market the world's cheapest tablet, there are several internet-based ideas, which given the right incubation and clarity on legal liability, could rake in millions in revenue, like no Aakash tablet can. I don't know how many Indian Youtubes and Vimeos could have been developed had the risk of legal liability been clarified. From my legal internships in firms and organisations advising internet start up companies, I can assure you that every due diligence report necessarily includes a point warning about the ambiguous and unfair intermediary liability regime in India, making specific references to the Intermediary Guidelines, 2011.
So to conclude, Mr. Sibal - don't fight for OUR right to freedom of speech and expression. Just fight for YOUR own right to collect taxes from internet intermediaries that invest in India on the basis of a clear and acceptable intermediary liability regime.