LAW RESOURCE INDIA

Posted in CENSORSHIP LAW, FUNDAMENTAL RIGHTS by NNLRJ INDIA on January 20, 2012

SUNIL ABRAHAM IN THE INDIAN EXPRESS

The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) bills, at the US House of Representatives and Senate, respectively, appear to enforce property rights, but are, in fact, trade bills. In developed countries like the US, intellectual property (IP) plays a dominant role in the economy, unlike in economies like India. Countries that have significant IP are keen to increase global and national enforcement activities, while countries with little domestic IP are keen to reduce outgoing royalties in the balance of payments and therefore, keen to expand alternatives, limitations and exceptions like copyleft licensing, compulsory/statutory licensing and fair dealing.

The loss of generic medicines, hardware based on open standards, public domain content, free and open source software, open access journal articles, etc will equally impoverish consumers in the US and in India. SOPA and PIPA, therefore, do not represent the will of the average American but rather the interests of the IP sector, which has tremendous influence in the Hill. There is one more layer of complication for policy-makers to consider as they work towards a compromise of interests in Internet governance — the tension between the old and the new. The incumbents — corporations with business models that have been rendered obsolete by technological developments — versus emerging actors who provide competing products and services, often with greater technological sophistication, higher quality, at a lower cost.

The US, in terms of policy and infrastructure, still controls the global Domain Name System (DNS) and consequently, post-SOPA/PIPA, can take unilateral trade action without worrying about national variations enabled by international law. These bills directly undermine the business models of many Indian companies — generic drug manufacturers like Ranbaxy, software service providers like Infosys, electronics manufacturers like Spice and players in many other sectors dominated by IP rights. So it is baffling that they have not added their voices to the global outcry.

SOPA and PIPA, if passed, will enable the US administration to take three-pronged action against IP infringers — seizure of domain names and DNS filtering, blocking of transactions by financial intermediaries and revocation of hosting by ISPs. While circumvention may still be possible, it will get increasingly laborious — something like the Great Firewall of China, but worse. Unfortunately, the implementation of these blunt policy instruments will require more and more public-funded surveillance and censorship.

The censorship potential of efforts like SOPA and PIPA may appeal to others, as autocratic and democratic regimes across the world have been keen to try technology-mediated social engineering — these efforts have been multiplied in the post-Arab Spring and Occupy Wall Street world. Organised religion, social conservatives and those who have been at the receiving end of free speech would all want to shut down platforms like WikiLeaks and political movements like Anonymous and the Pirate Party.

These are equally dismal times for Internet governance in India. Google, Facebook and 20-odd other intermediaries are trying to avoid jail time at the hands of a Delhi court. However, ever since the IT Act amendments were put in place three years back, digital activists have been requesting intermediaries to register their protests early and often, regarding draconian provisions in the statute and in the associated rules. Their silence is going to be very expensive for all of us. We cannot depend on the private sector alone to defend our constitutional rights. As yet unpublished research from CIS demonstrates that private intermediaries only bother with defending freedom of expression when it undermines their business interests. Working with an independent researcher, we conducted a policy sting operation — faulty take-down notices were served to seven intermediaries asking for legitimate content to be taken down. In six of those cases, the intermediaries over-complied, in one case deleting all comments on a news article instead of just those comments identified in the notice. The only take-down that was resisted was one claiming that sale of diapers was “harmful to minors” under the Indian IT Act (because they caused nappy rash). It is clear that the IT Act and its associated rules have already had a chilling effect on online participation by Indians.

Fortunately for us, during the previous parliamentary session — Jayant Chaudhary, Lok Sabha MP from the Rashtriya Lok Dal, asked for the revision of rules concerning intermediaries, cyber-cafes and reasonable security practices. The next Parliament session is the last opportunity for the House to reject these rules and intervene for a free Internet.

 The writer is executive director of the Bangalore-based Centre for Internet and Society

http://www.indianexpress.com/news/sense-and-censorship/901686/0

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