It is indeed unfortunate that India’s intermediary liability regulations are set up in a way that has created a trade-off between protection of copyright and the free flow of speech. This is not because stakeholders are using copyright laws to stifle legitimate speech in India (like in some other countries), but more from the folly of using the same regulation to control both copyright infringement and ’objectionable’ content on the internet. Compare this to the U.S. system where the DMCA is restricted to protecting copyright (and providing immunities to intermediaries against infringement claims), while the CommunicationsDecency Act regulates ‘indecent’ content (and similarly provides immunities under S.230).
Copyright & Free Speech in the Guidelines
Essentially, Rule 3(4) of the Intermediary Guidelines prescribes due diligence requirements – conditions that Indian internet intermediaries (such as Google and Facebook) need to comply with to avoid liability for unlawful content on their websites. However, the problem is that the notice and takedown conditions contained therein is applicable 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 - the rules and standards that apply are the same.
While this might appear to be a reasonable proposition on the face of it, we have repeatedly seen the Indian government use Rule 3(4) to facilitate government censorship. Take for instance the Google Transparency Report (2011) that indicated the single largest category of request for content removal was ‘government criticism’. There is also the current litigation involving Google, Facebook and other intermediaries (now reduced from the initial 22). And how can anyone forget the Aseem Trivedi fiasco. While the IPC is also sometimes relevant, the provision that is used to actually effectuate the take down of such allegedly ‘objectionable’ content is Rule 3(4) of the Guidelines that requires intermediaries to take down such content within 36 hours of being informed. The chilling effects of the Intermediary Guidelines on free speech have also been demonstrated in a study conducted by the Centre for Internet & Society earlier this year.
This made it absolutely crucial to completely re-work the Guidelines so that free speech rights of Indian citizens were not trammelled, whilst providing copyright owners with effective means to police their content on the internet.
Possible Solutions Thwarted
There were two possible solutions to the problem – (1) a motion to annul the Guidelines as introduced in the Rajya Sabha, which unfortunately was rejected (and in response to which I wrote a curt letter to Mr. Kapil Sibal, then HRD Minister); and (2) a writ petition filed by Shojan Jacob, an advocate from Kerala, challenging the constitutional validity of Rules 8 and 16 of the Information Technology (Procedure and Safeguard for Blocking for Access of Information by Public) Rules, 2009 and Rules 3 (2) and 3(4) of the ‘Information Technology (Intermediaries Guidelines) Rules, 2011.
Either option would, as I have earlier argued, provided a clean slate to work with – so that ambiguous phrases in the Rules may be removed, intermediaries can be differentiated based on scale and function, the 36 hour takedown deadline can be made flexible within reasonable limits, a counter notice system can be evolved etc. Worrying however is the position of the Indian music industry (as presumably represented by the IMI) in this regard.
IMI’s intervention in the Writ Petition Challenging the Intermediary Guidelines
As things turn out, the Indian Music Industry has now come out in support of the Guidelines and in particular Rule 3(4) by fling an application to be impleaded (can be accessed here, via Internet Freedom India) and arguing that the Guidelines help protect copyright and prevent piracy. In particular, their submission to court emphasises their ability to block the websites hosting pirated content. This is a reference to the Kolkatta High Court, directing Indian ISPs to block 104 websites for allegedly hosting copyrighted content.
Whether conscious or not, in trying to intervene in this matter, the IMI is also endorsing the specific provision that defines unlawful content as anything ‘grossly harmful, harassing, obscene, pornographic, paedophilic, libellous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging’. It doesn't take a constitutional expert to realise the ambiguity in these phrases and possible conflicts with established constitutional free speech principles. Nor does it take a Sherlock Holmes to identify the scope for abuse by the government to clamp down on any ‘criticism’ of its functioning using these broadly defined words and phrases.
Blocking of Websites v. Controlling Piracy
I have in another post, discussed the legal and philosophical objections to blocking an entire website on the basis of few infringing links. While I absolutely agree that certain websites that are in the practice of wholesale hosting of illegal content must be dealt with severely, a remedy that seeks to block complete access to the website without notice or opportunity for a fair hearing (administrators of many of these websites do not live in India) is against the very basic tenets of rule of law.
Some Unsolicited Advice to IMI
It is for all these reasons that I think IMI’s unqualified support for the Guidelines is unwarranted, surprising and in my opinion, damaging to the reputation of the Indian music industry (there will undoubtedly be comparisons with the RIAA).
At a time when the Indian music industry is taking great strides to adapt to the changing environment for multimedia consumption in the internet age (slowly but successfully in my opinion), it is unfortunate that they are clinging to regulations that are prima facie unlawful and ineffective. I have listed out some of these reasons here.
The move towards making licensed and legal music tracks available for download (see Flyte) and free online streaming (see Gaana.com) is gaining traction and if I may speak on behalf of the ‘youth’ for a second, it is only a question of time before young Indians realise the value and convenience of a quick legal purchase from a Flytle-like website (similar to the iTunes store experience that is so popular in the U.S) or the thrill of discovering new music on an online radio streaming service like Gaana (similar to Spotify in the U.S.). But they must be wary of angering those individuals who are evidently concerned about free speech issues and willing to fight for it.
To conclude, I only wish the IMI exercises good judgement, re-considers this intervention petition and decides to re-focus on formulating new models of media consumption in the web 2.0 world instead of trying to tackle piracy through such outmoded intermediary liability regulations.
I just bought Rs.700 worth of digital tracks this afternoon (the only available legal download of Thermal and a Quarter’s new album is available on Flyte - it's now only Rs. 140 for 28 songs!), but with policy decisions like this, IMI is not only begging for some negative publicity, but also risks alienating a good chunk of the young Indian populace that is finally warming up to the idea of legal downloads.