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Response to the Call from Federation of Indian Chambers of Commerce and Industry for Review of the Copyright Act
http://editors.cis-india.org/accessibility/blog/response-to-ficcis-call-for-review-of-the-copyright-act
<b>This blog entry contains a letter sent by Rahul Cherian of Indojuris and Nirmita Narsimhan of the Centre for Internet and Society in response to a call from the Federation of Indian Chambers of Commerce and Industry for review of the Copyright Act. </b>
<p>The Federation of Indian Chambers of Commerce and Industry (FICCI) has recently constituted a
Consultative Working Group to analyse various issues in the Copyright Act. This has been approved by the Department of Industrial Policy and
Promotion (DIPP). The group is to be chaired by Shri Amit Khare, Joint
Secretary,
Department of Higher Education, Ministry of Human Resource Development. The
purpose of the Consultative Working Group would be to look into the existing
provisions of the copyright law and the proposed amendments, as well as into the
international arrangements and suggestions. The Consultative Working Group
is expected to submit its report along with amendments or suggestion, as
required.</p>
<p>Rahul Cherian of Indojuris and Nirmita Narasimhan of CIS have submitted a report on
the provisions of the Copyright Act with respect to the limitations for
print disabled persons. This has been submitted in the form of a letter to Sheetal Chopra of FICCI; the letter is reproduced below.</p>
<p>-----</p>
<p style="text-align: justify;">Sheetal
Chopra</p>
<p style="text-align: justify;">Senior
Assistant Director and Head</p>
<p style="text-align: justify;">IPR
Division</p>
<p style="text-align: justify;">FICCI</p>
<p>Dear
Madam:</p>
<p style="text-align: justify;" class="SubjectLine"><strong>Subject:
Consultative Working Group on Copyright Issues – issues to be addressed by the
Consultative Working Group. </strong><strong></strong></p>
<p style="text-align: justify;">As
required by you we give below the issues to be addressed by the Consultative
Working Group. This document is prepared by Nirmita Narasimhan of the Centre for
Internet and Society, Bangalore, and Rahul Cherian Jacob of IndoJuris Law
Offices, Chennai. </p>
<p style="text-align: justify;"><strong>Scope -
Exceptions and Limitations for Print Impaired Persons <br /></strong></p>
<p style="text-align: justify;">The scope of the issues raised here are limited to
the exceptions and limitations under the Copyright Act that are required to
facilitate access of books by the visually impaired and other print impaired
persons.</p>
<p style="text-align: justify;"><strong>Problem faced by
Print Impaired Persons <br /></strong></p>
<p style="text-align: justify;">India has approximately 70 million Print Impaired
Persons (loosely defined as persons who are unable to access print as a result
of disability and include persons who are visually impaired, persons who have
learning disabilities such as dyslexia and persons who due to physical
disability are unable to hold a book or turn pages) who do not have access to
knowledge due to a lack of reading material in accessible formats. It is
estimated that even in developed countries not more than 5% of publications get
converted into accessible formats for the benefit of Print Impaired Persons. As
a result, Print Impaired Persons are excluded from the education system, are
unable to seek meaningful employment and are on the whole excluded from all
aspects of civil society.</p>
<p style="text-align: justify;">It is observed that publishers do not make available
books in formats accessible by Print Impaired Persons and the Copyright Act
does not provide exceptions and limitations to the rights of the copyright
owner for third parties to convert and make available books in accessible
formats for Print Impaired Persons. This has lead to a “book famine” from the
perspective of Print Impaired Persons.</p>
<p style="text-align: justify;"><strong>Technological
Advances and Accessible Formats <br /></strong></p>
<p style="text-align: justify;">Till a few years ago, Print Impaired Persons had to
rely on audio files and Braille (in the case of the persons who became visually
impaired at a young age) to enjoy printed matter. Each of these formats have
severe limitations. For example audio files have to be played serially and
navigation is severely limited. In the case of Braille, the printing costs are
expensive, reading a Braille book is up to 4 times slower than a normal book,
Braille is extremely difficult to learn if you loose sight at a later age, and
persons using Braille can communicate only with others who know Braille. However with the information technology
revolution and the creation of text-to-speech screen readers that read out
documents in electronic formats to Print Impaired Persons there are now
countless ways in which Print Impaired Persons can access books in any easy and
simple manner. Specialized electronic formats such as the DAISY Format not only
permit the visually impaired to “read” the material using screen readers but
also permit a digital file to be printed in Braille for the blind, in large
print for the partially sighted and also provide audio with inbuilt search and
indexation features for those Print Impaired Persons who have computers. The
key is that technological innovation now provides the much-needed flexibility
required by Print Impaired Persons to access material in formats they are most
comfortable with. However the availability of these technology solutions alone
does not solve the problem of dearth of books in formats that can be enjoyed by
Print Impaired Persons.</p>
<p style="text-align: justify;"><strong>Legal compulsions
for providing exceptions and limitations for the benefit of Print Impaired
Persons <br /></strong></p>
<p style="text-align: justify;">At present Indian copyright law
does not provide exceptions and limitations to the rights of copyright owners
for the benefit of Print Impaired Persons. The Indian Constitution expressly
provides for “equality” (Article 14), “non-discrimination” (Article 15),
“freedom of speech and expression” (Article 19), and “right to life” (Article
21). Indian courts have not yet had the opportunity to pronounce any judgment
on whether the Constitution requires copyright law to provide exceptions and
limitations for the benefit of Print Impaired Persons. However, Indian courts
have routinely upheld the rights of persons with disability and the Supreme
Court has specifically recognized that the “right to life” as enshrined in
Article 21 of the Constitution includes right to dignity including basic
necessities such as reading and writing. Right to education has also been
recognized as a fundamental right. For Print Impaired Persons to enjoy their
fundamental rights it is essential that they have access to material, including
but not limited to educational material, in accessible formats. As present, 70
million Indians cannot enjoy their fundamental rights due to the fact that the
Copyright Act does not provide exemptions and limitations for Print Impaired
Persons. It is to be noted that about 50 countries around the world already
provide copyright exceptions and limitations for the benefit of the visually
impaired/printed impaired.</p>
<p style="text-align: justify;">India has also
ratified the United Nations Convention on the Rights of Persons with
Disabilities and the objects of the aforesaid convention include providing
persons with disability, access, on an equal basis with others, to information
and communication. Indian courts have read into Indian law provisions of the
United Nations Convention on the Rights of Persons with Disabilities. It is
also to be noted that the Standing Committee on Copyright and Related Rights of
the World Intellectual Property Organisation is currently discussing the
proposed WIPO Treaty for Blind, Visually Impaired and Other Reading Disabled Persons.</p>
<p style="text-align: justify;">India has also
recognized the requirements of Print Impaired Persons and had circulated draft
amendments to the Copyright Act in _________ for feedback and comments from the
public. All the leading organisations representing visually impaired persons
has submitted their responses stating that the proposed amendments did not
adequately meet the requirements of visually impaired persons.</p>
<p style="text-align: justify;">In light of the above the question is not whether
exceptions and limitations for the benefit of Print Impaired Persons must be
provided (they must), but what form these exceptions and limitations must take.</p>
<p style="text-align: justify;"><strong>Exceptions and
Limitations – Issues to be considered <br /></strong></p>
<p style="text-align: justify;">Given below are the issues that must be considered
when providing exceptions and limitations for the benefit of Print Impaired
Persons.</p>
<ul><li><strong>Beneficiaries</strong> – The
beneficiaries of any amendment should include all persons with disability who,
due to that disability, need an accessible format to access a book to
substantially the same degree as a person without a disability. This definition
should be functional and not medical since medical definitions cannot be
exhaustive.</li></ul>
<ul><li><strong>Formats </strong>– Print Impaired
Persons should be able to enjoy the benefits of the information technology
revolution in the same way that non-disabled persons have been able to. Any
amendment should therefore take into account technological developments and
should be format neutral to give full flexibility and utility to Print Impaired
Persons. As mentioned above Braille as a format has limited application and a
majority of visually impaired persons are not able to use Braille. Moreover,
Braille cannot be used by persons with other print impairments such as dyslexia
or persons with physical disabilities.</li></ul>
<ul><li><strong>Permitted
Activities</strong> – The activities permitted by any amendment should include the making
of accessible formats of a work, supplying that accessible format, or copies of
that format, to Print Impaired Persons by any means, including by lending or by
electronic communication by wire or wireless means, and undertaking any
intermediate steps to achieve these objectives.</li></ul>
<ul><li><strong>Who can conduct
the Permitted Activities </strong>– It is noted that the cost of making an accessible
copy of a book is far higher than the cost of the book itself. It is observed
that non-profit organisations have been able to convert only a few thousands
books till date due to lack of funds. Print Impaired Persons, their families
and other members of their support group also convert books into accessible
formats at very high cost. The number of books converted by these persons is
also minimal. Keeping in mind the fact that publishers are not selling books in
accessible formats there appears to be complete market failure in this area.
The solution for this problem appears to be that, apart from non-profit
organisations, Print Impaired Persons and their support group being permitted
to conduct the Permitted Activities, volunteers and for-profit organisations
should also be able to conduct the Permitted Activities. If any of the
Permitted Activity is undertaken for profit, then the entity carrying out the
Permitted Activity must give notice to, and pay prescribed royalty to the
copyright owner. The quantum of royalty payable should be determined keeping in
mind the fact that the average income of Print Impaired Persons is far lower
than the income of non disabled persons. The possibility of creating a
collecting society for this purpose can also be explored.</li></ul>
<p style="text-align: justify;"><strong>Conclusion <br /></strong></p>
<p style="text-align: justify;">“Inclusiveness” is the
underlying theme of the Indian Constitution and “Inclusion” is a word used
liberally by the courts and politicians alike. The Universal Declaration of
Human Rights prohibits discrimination on the basis of disability. The United
Nations Convention on Rights of Persons of Disabilities aims to support the
full and effective participation of persons with disabilities in social life
and development; and to advance the rights and protect the dignity of persons
with disabilities and to promote equal access to employment, education,
information, goods and services.</p>
<p style="text-align: justify;">However, these concepts
mean nothing to Print Impaired Persons as long as their most basic fundamental
rights continue to be denied due to the fact that Indian copyright law does not
provide exceptions and limitations for the benefit of Print Impaired Persons.</p>
<p style="text-align: justify;">In light of the above,
appropriate amendments must be made to the Copyright Act as soon as possible to
remove the barriers placed before Print Impaired Persons that prevent their
exercise of fundamental rights. </p>
<p style="text-align: justify;">If
you require any additional information or any clarification regarding the above
please let us know. Thank you and best regards,</p>
Nirmita
Narasimhan and Rahul Cherian
<p style="text-align: justify;"> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/accessibility/blog/response-to-ficcis-call-for-review-of-the-copyright-act'>http://editors.cis-india.org/accessibility/blog/response-to-ficcis-call-for-review-of-the-copyright-act</a>
</p>
No publishersachiaIntellectual Property RightsAccessibility2011-08-17T08:51:23ZBlog EntryComments on the Draft Rules under the Information Technology Act
http://editors.cis-india.org/internet-governance/blog/comments-draft-rules
<b>The Centre for Internet and Society commissioned an advocate, Ananth Padmanabhan, to produce a comment on the Draft Rules that have been published by the government under the Information Technology Act. In his comments, Mr. Padmanabhan highlights the problems with each of the rules and presents specific recommendations on how they can be improved. These comments were sent to the Department of Information and Technology.</b>
<h2><em>Comments on the Draft Rules under the Information Technology Act as Amended by the Information Technology (Amendment) Act, 2008</em></h2>
<p><em><strong>Submitted by the Centre for Internet and Society, Bangalore</strong></em></p>
<p><em><strong>Prepared by Ananth Padmanabhan, Advocate in the Madras High Court</strong></em></p>
<h2>Interception, Monitoring and Decryption</h2>
<h3>Section 69</h3>
<p>The section says:</p>
<ol><li>Where the Central Government or a State Government or any of its officer specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource. </li><li>The procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed.</li><li>The subscriber or intermediary or any person in-charge of the computer resource shall, when called upon by any agency referred to in sub-section (1), extend all facilities and technical assistance to-</li></ol>
<p> (a) provide access to or secure access to the computer resource
generating transmitting, receiving or storing such information; or</p>
<p>
(b) intercept, monitor, or decrypt the information, as the case may be; or</p>
(c) provide information stored in computer resource.
<ol><li>The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine. <br /></li></ol>
<p><strong><br /></strong></p>
<p><strong>Recommendation #1</strong><br />Section 69(3) should be amended and the following proviso be inserted:</p>
<p class="callout">Provided that only those intermediaries with respect to any information or computer resource that is sought to be monitored, intercepted or decrypted, shall be subject to the obligations contained in this sub-section, who are, in the opinion of the appropriate authority, prima facie in control of such transmission of the information or computer resource. The nexus between the intermediary and the information or the computer resource that is sought to be intercepted, monitored or decrypted should be clearly indicated in the direction referred to in sub-section (1) of this section.</p>
<p><br /><strong>Reasons for the Recommendation </strong><br />In the case of any information or computer resource, there may be more than one intermediary who is associated with such information. This is because “intermediary” is defined in section 2(w) of the amended Act as,</p>
<p class="callout">“with respect to any electronic record means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record, including telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”. </p>
<p><br />The State or Central Government should not be given wide-ranging powers to enforce cooperation on the part of any such intermediary without there being a clear nexus between the information that is sought to be decrypted or monitored by the competent authority, and the control that any particular intermediary may have over such information.</p>
<p>To give an illustration, merely because some information may have been posted on an online portal, the computer resources in the office of the portal should not be monitored unless the portal has some concrete control over the nature of information posted in it. This has to be stipulated in the order of the Central or State Government which authorizes interception of the intermediary. </p>
<p><br /><strong>Recommendation #2</strong><br />Section 69(4) should be repealed.</p>
<p><br /><strong>Reasons for the Recommendation</strong><br />The closest parallels to Section 69 of the Act are the provisions in the Telegraph Rules which were brought in after the decision in PUCL v. Union of India, (1997) 1 SCC 301, famously known as the telephone tapping case.</p>
<p>Section 69(4) fixes tremendous liability on the intermediary for non-cooperation. This is violative of Article 14. Similar provisions in the Indian Penal Code and Code of Criminal Procedure, which demand cooperation from members of the public as regards production of documents, letters etc., and impose punishment for non-cooperation on their part, impose a maximum punishment of one month. It is bewildering why the punishment is 7 years imprisonment for an intermediary, when the only point of distinction between an intermediary under the IT Act and a member of the public under the IPC and CrPC is the difference in the media which contains the information.</p>
<p>Section 69(3) is akin to the duty cast upon members of the public to extend cooperation under Section 39 of the Code of Criminal Procedure by way of providing information as to commission of any offence, or the duty, when a summons is issued by the Court or the police, to produce documents under Sections 91 and 92 of the Code of Criminal Procedure. The maximum punishment for non-cooperation prescribed by the Indian Penal Code for omission to cooperate or wilful breach of summons is only a month under Sections 175 and 176 of the Indian Penal Code. Even the maximum punishment for furnishing false information to the police is only six months under Section 177 of the IPC. When this is the case with production of documents required for the purpose of trial or inquiry, it is wholly arbitrary to impose a punishment of six years in the case of intermediaries who do not extend cooperation for providing access to a computer resource which is merely apprehended as being a threat to national security etc. A mere apprehension, however reasonable it may be, should not be used to pin down a liability of such extreme nature on the intermediary.</p>
<p>This would also amount to a violation of Articles 19(1)(a) as well as 19(1)(g) of the Constitution, not to mention Article 20(3). To give an example, much of the information received from confidential sources by members of the press would be stored in computer resources. By coercing them, through the 7 year imprisonment threat, to allow access to this computer resource and thereby part with this information, the State is directly infringing on their right under Article 19(1)(a). Furthermore, if the “subscriber” is the accused, then section 69(4) goes against Article 20(3) by forcing the accused to bear witness against himself.</p>
<p> </p>
<h3>Draft Rules under Section 69 <br /></h3>
<p><strong>Rule 3</strong><br />Directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource under sub- section (2) of section 69 of the Information Technology (Amendment) Act, 2008 (hereinafter referred to as the said Act) shall not be issued except by an order made by the concerned competent authority who is Union Home Secretary in case of Government of India; the Secretary in-charge of Home Department in a State Government or Union Territory as the case may be. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or by an officer equivalent to rank of Joint Secretary to Government of India duly authorised by the Secretary in-charge of Home Department in the State Government or Union Territory, as the case may be:</p>
<p>Provided that in emergency cases – <br />(i) in remote areas, where obtaining of prior directions for interception or monitoring or decryption of information is not feasible; or <br />(ii) for operational reasons, where obtaining of prior directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource is not feasible;</p>
<p>the required interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource shall be carried out with the prior approval of the Head or the second senior most officer of the Security and Law Enforcement Agencies (hereinafter referred to as the said Security Agencies) at the Central Level and the officers authorised in this behalf, not below the rank of Inspector General of Police or an officer of equivalent rank, at the State and Union Territory level. The concerned competent authority, however, shall be informed of such interceptions or monitoring or decryption by the approving authority within three working days and that such interceptions or monitoring or decryption shall be got confirmed by the concerned competent authority within a period of seven working days. If the confirmation from the concerned competent authority is not received within the stipulated seven working days, such interception or monitoring or decryption shall cease and the same information shall not be intercepted or monitored or decrypted thereafter without the prior approval of the concerned competent authority, as the case may be. </p>
<p><br /><strong>Recommendation #3</strong><br />In Rule 3, the following proviso may be inserted:</p>
<p class="callout">“Provided that in the event of cooperation by any intermediary being required for the purpose of interception, monitoring or decryption of such information as is referred to in this Rule, prior permission from a Supervisory Committee headed by a retired Judge of the Supreme Court or the High Courts shall be obtained before seeking to enforce the Order mentioned in this Rule against such intermediary.”</p>
<p><strong><br /></strong></p>
<p><strong>Reasons for the Recommendation </strong><br />Section 69 and the draft rules suffer from absence of essential procedural safeguards. This has come in due to the blanket emulation of the Telegraph Rules. Additional safeguards should have been prescribed to ensure that the intermediary is put to minimum hardship when carrying on the monitoring or being granted access to a computer resource. Those are akin to a raid, in the sense that it can stop an online e-commerce portal from carrying out operations for a day or even more, thus affecting their revenue. It is therefore recommended that in any situation where cooperation from the intermediary is sought, prior judicial approval has to be taken. The Central or State Government cannot be the sole authority in such cases.</p>
<p>Furthermore, since access to the computer resource is required, an executive order should not suffice, and a search warrant or an equivalent which results from a judicial application of the mind (by the Supervisory Committee, for instance) should be required.</p>
<p><br /><strong>Recommendation #4</strong><br />The following should be inserted after the last line in Rule 22:</p>
<p class="callout">The Review Committee shall also have the power to award compensation to the intermediary in cases where the intermediary has suffered loss or damage due to the actions of the competent authority while implementing the order issued under Rule 3.</p>
<p><strong><br /></strong></p>
<p><strong>Reasons for the Recommendation</strong><br />The Review Committee should be given the power to award compensation to the loss suffered by the intermediary in cases where the police use equipment or software for monitoring/decryption that causes damage to the intermediary’s computer resources / networks. The Review Committee should also be given the power to award compensation in the case of monitoring directions which are later found to be frivolous or even worse, borne out of mala fide considerations. These provisions will act as a disincentive against the abuse of power contained in Section 69. </p>
<p> </p>
<h2>Blocking of Access to Information</h2>
<h3>Section 69A</h3>
<p>The section provides for blocking of websites if the government is satisfied that it is in the interests of the purposes enlisted in the section. It also provides for penalty of up to seven years for intermediaries who fail to comply with the directions under this section. <br />The rules under this section describe the procedure which have to be followed barring which the review committee may, after due examination of the procedural defects, order an unblocking of the website.</p>
<p> </p>
<p><strong>Section 69A(3)</strong><br />The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.</p>
<p> </p>
<p><strong>Recommendation #5</strong><br />The penalty for intermediaries must be lessened.</p>
<p> </p>
<p><strong>Reasons for Recommendations </strong><br />The penal provision in this section which prescribes up to seven years imprisonment and a fine on an intermediary who fails to comply with the directions so issued is also excessively harsh. Considering the fact that various mechanisms are available to escape the blocking of websites, the intermediaries must be given enough time and space to administer the block effectively and strict application of the penal provisions must be avoided in bona fide cases.</p>
<p>The criticism about Section 69 and the draft rules in so far as intermediary liability is concerned, will also apply mutatis mutandis to these rules as well as Section 69A.</p>
<p> </p>
<h3>Draft Rules under Section 69A</h3>
<p><strong>Rule 22: Review Committee</strong><br />The Review Committee shall meet at least once in two months and record its findings whether the directions issued under Rule (16) are in accordance with the provisions of sub-section (2) of section 69A of the Act. When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.</p>
<p><br /><strong>Recommendation #6</strong><br />A permanent Review Committee should be specially for the purposes of examining procedural lapses. </p>
<p><br /><strong>Reasons for Recommendation </strong><br />Rule 22 provides for a review committee which shall meet a minimum of once in every two months and order for the unblocking of a site of due procedures have not been followed. This would mean that if a site is blocked, there could take up to two months for a procedural lapse to be corrected and it to be unblocked. Even a writ filed against the policing agencies for unfair blocking would probably take around the same time. Also, it could well be the case that the review committee will be overborne by cases and may fall short of time to inquire into each. Therefore, it is recommended that a permanent Review Committee be set up which will monitor procedural lapses and ensure that there is no blocking in the first place before all the due procedural requirements are met. <br /><br /></p>
<h2>Monitoring and Collection of Traffic Data</h2>
<h3>Draft Rules under Section 69B</h3>
<p>The section provides for monitoring of computer networks or resources if the Central Government is satisfied that conditions so mentioned are satisfied.</p>
<p>The rules provide for the manner in which the monitoring will be done, the process by which the directions for the same will be issued and the liabilities of the intermediaries and monitoring officers with respect to confidentiality of the information so monitored.</p>
<p><br /><strong>Grounds for Monitoring </strong><br /><strong>Rule 4</strong><br />The competent authority may issue directions for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource for any or all of the following purposes related to cyber security:<br />(a) forecasting of imminent cyber incidents;<br />(b) monitoring network application with traffic data or information on computer resource;<br />(c) identification and determination of viruses/computer contaminant;<br />(d) tracking cyber security breaches or cyber security incidents;<br />(e) tracking computer resource breaching cyber security or spreading virus/computer contaminants;<br />(f) identifying or tracking of any person who has contravened, or is suspected of having contravened or being likely to contravene cyber security;<br />(g) undertaking forensic of the concerned computer resource as a part of investigation or internal audit of information security practices in the computer resource;<br />(h) accessing a stored information for enforcement of any provisions of the laws relating to cyber security for the time being in force;<br />(i) any other matter relating to cyber security.</p>
<p><br /><strong>Rule 6</strong><br />No direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule (4).</p>
<p><br /><strong>Recommendation #7</strong><br />Clauses (a), (b), (c), and (i) of Rule 4 must be repealed.</p>
<p><br /><strong>Reasons for Recommendations </strong><br />The term “cyber incident” has not been defined, and “cyber security” has been provided a circular definition. Rule 6 clearly states that no direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule 4. Therefore, it may prima facie appear that the government is trying to lay down clear and strict safeguards when it comes to monitoring at the expense of a citizens' privacy. However, Rule 4(i) allows the government to monitor if it is satisfied that it is “any matter related to cyber security”. This may well play as a ‘catch all’ clause to legalise any kind of monitoring and collection and therefore defeats the purported intention of Rule 6 of safeguarding citizen’s interests against arbitrary and groundless intrusion of privacy. Also, the question of degree of liability of the intermediaries or persons in charge of the computer resources for leak of secret and confidential information remains unanswered. <br /><br /><strong>Rule 24: Disclosure of monitored data </strong><br />Any monitoring or collection of traffic data or information in computer resource by the employee of an intermediary or person in-charge of computer resource or a person duly authorised by the intermediary, undertaken in course of his duty relating to the services provided by that intermediary, shall not be unlawful, if such activities are reasonably necessary for the discharge his duties as per the prevailing industry practices, in connection with :<br />(vi) Accessing or analysing information from a computer resource for the purpose of tracing a computer resource or any person who has contravened, or is suspected of having contravened or being likely to contravene, any provision of the Act that is likely to have an adverse impact on the services provided by the intermediary.</p>
<p><br /><strong>Recommendation #8</strong><br />Safeguards must be introduced with respect to exercise of powers conferred by Rule 24(vi). </p>
<p><br /><strong>Reasons for Recommendations </strong><br />Rule 24(vi) provides for access, collection and monitoring of information from a computer resource for the purposes of tracing another computer resource which has or is likely to contravened provisions of the Act and this is likely to have an adverse impact on the services provided by the intermediary. Analysis of a computer resource may reveal extremely confidential and important data, the compromise of which may cause losses worth millions. Therefore, the burden of proof for such an intrusion of privacy of the computer resource, which is first used to track another computer resource which is likely to contravene the Act, should be heavy. Also, this violation of privacy should be weighed against the benefits accruing to the intermediary. The framing of sub rules under this clearly specifying the same is recommended. </p>
<p><br />The disclosure of sensitive information by a monitoring agency for purposes of ‘general trends’ and ‘general analysis of cyber information’ is uncalled for as it dissipates information among lesser bodies that are not governed by sufficient safeguards and this could result in outright violation of citizen’s privacy.</p>
<p> </p>
<h2>Manner of Functioning of CERT-In</h2>
<h3>Draft Rules under Section 70B(5)</h3>
<p>Section 70B provides for an Indian Computer Emergency Response Team (CERT-In) which shall serve as a national agency for performing duties as prescribed by clause 4 of this section in accordance to the rules as prescribed.<br />The rules provide for CERT-In’s authority, composition of advisory committee, constituency, functions and responsibilities, services, stakeholders, policies and procedures, modus operandi, disclosure of information and measures to deal with non compliance of orders so issued. However, there are a few issues which need to be addressed as under:</p>
<p><br /><strong>Definitions</strong><br />In these Rules, unless the context otherwise requires, “Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/ disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.</p>
<p><br /><strong>Recommendation #9</strong><br />The words ‘or implied’’ must be excluded from rule 2(g) which defines ‘cyber security incident’, and the term ‘security policy’ must be qualified to state what security policy is being referred to.</p>
<p><br /><strong>Reasons for Recommendation</strong><br />“Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization. </p>
<p><br />Thus, the section defines any circumstance where an explicit or implied security policy is contravened as a ‘cyber security incident’. Without clearly stating what the security policy is, an inquiry into its contravention is against an individual’s civil rights. If an individual’s actions are to be restricted for reasons of security, then the restrictions must be expressly defined and such restrictions cannot be said to be implied.</p>
<p><br /><strong>Rule 13(4): Disclosure of Information </strong><br />Save as provided in sub-rules (1), (2), (3) of rule 13, it may be necessary or expedient to so to do, for CERT-In to disclose all relevant information to the stakeholders, in the interest of sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence relating to cognizable offence or enhancing cyber security in the country.</p>
<p><br /><strong>Recommendation #10</strong><br />Burden of necessity for disclosure of information should be made heavier. </p>
<p><br /><strong>Reasons for the Recommendation</strong><br />Rule 13(4) allows the disclosure of information by CERT-In in the interests of ‘enhancing cyber security’. This enhancement however needs to be weighed against the detriment caused to the individual and the burden of proof must be on the CERT-In to show that this was the only way of achieving the required. </p>
<p><br /><strong>Rule 19: Protection for actions taken in Good Faith </strong><br />All actions of CERT-In and its staff acting on behalf of CERT-In are taken in good faith in fulfillment of its mandated roles and functions, in pursuance of the provisions of the Act or any rule, regulations or orders made thereunder. CERT-In and its staff acting on behalf of CERT-In shall not be held responsible for any unintended fallout of their actions.</p>
<p><br /><strong>Recommendation #11</strong><br />CERT-In should be made liable for their negligent action and no presumption of good faith should be as such provided for. </p>
<p><br /><strong>Reasons for the Recommendation </strong><br />Rule 19 provides for the protection of CERT-In members for the actions taken in ‘good faith’. It defines such actions as ‘unintended fallouts’. Clearly, if information has been called for and the same is highly confidential, then this rule bars the remedy for any leak of the same due to the negligence of the CERT-In members. This is clearly not permissible as an agency that calls for delicate information should also be held responsible for mishandling the same, intentionally or negligently. Good faith can be established if the need arises, and no presumption as to good faith needs to be provided.</p>
<p> </p>
<h3>Draft Rules under Section 52</h3>
<p>These rules, entitled the “Cyber Appellate Tribunal (Salary, Allowances and Other Terms and Conditions of Service of Chairperson and Members) Rules, 2009” are meant to prescribe the framework for the independent and smooth functioning of the Cyber Appellate Tribunal. This is so because of the specific functions entrusted to this Appellate Tribunal. Under the IT Act, 2000 as amended by the IT (Amendment) Act, 2008, this Tribunal has the power to entertain appeals against orders passed by the adjudicating officer under Section 47.</p>
<p><br /><strong>Recommendation #12</strong><br />Amend qualifications Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, to require judicial training and experience.</p>
<p><br /><strong>Reasons for the Recommendation</strong><br />It is submitted that an examination of these rules governing the Appellate Tribunal cannot be made independent of the powers and qualifications of Adjudicating Officers who are the original authority to decide on contravention of provisions in the IT Act dealing with damage to computer system and failure to furnish information. Even as per the Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, persons who did not possess judicial experience and training, such as those holding the post of Director in the Central Government, were qualified to perform functions under Section 46 and decide whether there has been unauthorized access to a computer system. This involves appreciation of evidence and is not a merely administrative function that could be carried on by any person who has basic knowledge of information technology.</p>
<p>Viewed from this angle, the qualifications of the Cyber Appellate Tribunal members should have been made much tighter as per the new draft rules. The above rules when read with Section 50 of the IT Act, as amended in 2008, do not say anything about the qualification of the technical members apart from the fact that such person shall not be appointed as a Member, unless he is, or has been, in the service of the Central Government or a State Government, and has held the post of Additional Secretary or Joint Secretary or any equivalent post. Though special knowledge of, and professional experience in, information technology, telecommunication, industry, management or consumer affairs, has been prescribed in the Act as a requirement for any technical member.</p>
<p> </p>
<h3>Draft Rules under Section 54</h3>
<p>These Rules do not suffer any defect and provide for a fair and reasonable enquiry in so far as allegations made against the Chairperson or the members of the Cyber Appellate Tribunal are concerned.</p>
<p> </p>
<h2>Penal Provisions</h2>
<h3>Section 66A</h3>
<p>Any person who sends, by means of a computer resource or a communication device,<br /> (a) any information that is grossly offensive or has menacing character; or<br /> (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,<br /> (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,<br />shall be punishable with imprisonment for a term which may extend to three years and with fine.<br />Sec. 32 of the 2008 Act inserts Sec. 66A which provides for penal measures for mala fide use of electronic resources to send information detrimental to the receiver. For the section to be attracted the ‘information’ needs to be grossly offensive, menacing, etc. and the sender needs to have known it to be false.</p>
<p>While the intention of the section – to prevent activities such as spam-sending – might be sound and even desirable, there is still a strong argument to be made that words is submitted that the use of words such as ‘annoyance’ and ‘inconvenience’ (in s.66A(c)) are highly problematic. Further, something can be grossly offensive without touching upon any of the conditions laid down in Article 19(2). Without satisfying the conditions of Article 19(2), this provision would be ultra vires the Constitution.</p>
<p><br /><strong>Recommendation #13</strong><br />The section should be amended and words which lead to ambiguity must be excluded.</p>
<p><br /><strong>Reasons for the Recommendation </strong><br />A clearer phrasing as to what exactly could convey ‘ill will’ or cause annoyance in the electronic forms needs to be clarified. It is possible in some electronic forms for the receiver to know the content of the information. In such circumstances, if such a possibility is ignored and annoyance does occur, is the sender still liable? Keeping in mind the complexity of use of electronic modes of transmitting information, it can be said that several such conditions arise which the section has vaguely covered. Therefore, a stricter and more clinical approach is necessary. </p>
<p><br /><strong>Recommendation #14</strong><br />A proviso should be inserted to this section providing for specific exceptions to the offence contained in this section for reasons such as fair comment, truth, criticism of actions of public officials etc. </p>
<p> </p>
<p><strong>Reasons for the Recommendation </strong><br />The major problem with Section 66A lies in clause (c) as per which any electronic mail or electronic mail message sent with the purpose of causing annoyance or inconvenience is covered within the ambit of offensive messages. This does not pay heed to the fact that even a valid and true criticism of the actions of an individual, when brought to his notice, can amount to annoyance. Indeed, it may be brought to his attention with the sole purpose of causing annoyance to him. When interpreting the Information Technology Act, it is to be kept in mind that the offences created under this Act should not go beyond those prescribed in the Indian Penal Code except where there is a wholly new activity or conduct, such as hacking for instance, which is sought to be criminalized.</p>
<p>Offensive messages have been criminalized in the Indian Penal Code subject to the conditions specified in Chapter XXII being present. It is not an offence to verbally insult or annoy someone without anything more being done such as a threat to commit an offence, etc. When this is the case with verbal communications, there is no reason to make an exception for those made through the electronic medium and bring any electronic mail or message sent with the purpose of causing annoyance or inconvenience within the purview of an offensive message.</p>
<p> </p>
<h3>Section 66F</h3>
<p>The definition of cyber-terrorism under this provision is too wide and can cover several activities which are not actually of a “terrorist” character. <br />Section 66F(1)(B) is particularly harsh and goes much beyond acts of “terrorism” to include various other activities within its purview. As per this provision, <br />“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or is likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.”</p>
<p>This provision suffers from several defects and hence ought to be repealed. </p>
<p><br /><strong>Recommendation #15</strong><br />Section 66F(1)(B) has to be repealed or suitably amended to water down the excessively harsh operation of this provision. The restrictive nature of the information that is unauthorisedly accessed must be confined to those that are restricted on grounds of security of the State or foreign relations. The use to which such information may be put should again be confined to injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mere advantage to a foreign nation cannot render the act of unauthorized access one of cyber-terrorism as long as such advantage is not injurious or harmful in any manner to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mens rea requirement should also be introduced whereby mere knowledge that the information which is unauthorisedly accessed can be put to such uses as given in this provision should not suffice for the unauthorised access to amount to cyber-terrorism. The unauthorised access should be with the intention to put such information to this use. The amended provision would read as follows:</p>
<p class="callout">“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, with the intention that such information, data or computer database so obtained may be used to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, commits the offence of cyber terrorism.”</p>
<p class="callout"> </p>
<p><strong>Reasons for the Recommendation </strong><br />The ambit of this provision goes much beyond information, data or computer database which is restricted only on grounds of security of the State or foreign relations and extends to “any restricted information, data or computer database”. This expression covers any government file which is marked as confidential or saved in a computer used exclusively by the government. It also covers any file saved in a computer exclusively used by a private corporation or enterprise. Even the use to which such information can be put need not be confined to those that cause or are likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States. Information or data which is defamatory, amounting to contempt of court, or against decency / morality, are all covered within the scope of this provision. This goes way beyond the idea of a terrorist activity and poses serious questions. While there is no one globally accepted definition of cyberterrorism, it is tough to conceive of slander as a terrorist activity.</p>
<p>To give an illustration, if a journalist managed to unauthorisedly break into a restricted database, even one owned by a private corporation, and stumbled upon information that is defamatory in character, he would have committed an act of “cyber-terrorism.” Various kinds of information pertaining to corruption in the judiciary may be precluded from being unauthorisedly accessed on the ground that such information may be put to use for committing contempt of court. Any person who gains such access would again qualify as a cyber-terrorist. The factual situations are numerous where this provision can be put to gross misuse with the ulterior motive of muzzling dissent or freezing access to information that may be restricted in nature but nonetheless have a bearing on probity in public life etc. It is therefore imperative that this provision may be toned down as recommended above. <br /><br /></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/comments-draft-rules'>http://editors.cis-india.org/internet-governance/blog/comments-draft-rules</a>
</p>
No publisherpraneshIT ActEncryptionIntellectual Property RightsIntermediary LiabilityPublicationsCensorship2011-09-21T06:13:42ZBlog EntryEmerging Bit Torrent Trends in India
http://editors.cis-india.org/a2k/blogs/emerging-bit-torrrent-trends-in-india
<b>Internet has been a revelation ever since its introduction. The writer in this blog examines how the progress made by Internet based technologies could never be reversed.</b>
<h2>From Kazaa to The Pirate Bay</h2>
<p>Little did the world of the VHS era realize in its time where the future of pirate technologies were heading to. The world's favourite music and films were quickly transferred onto optical discs as magnetic tapes went obsolete a few years before the end of the last century. Internet was soon to become the nemesis of discs, which were bulky to store and scratched easily. The first tryst with peer to peer technologies on networks sent shivers down the spine of Jack Valenti and the Motion Pictures Association of America. The speed of dissemination and distribution of content over the Internet was something the world had never seen before. The lawsuits against peer to peer networks such as Kaaza and Limewire ran into millions of dollars. Websites were shut down, but time and progress of technology could never be reversed. BitTorrent soon became the most common protocol to transfer content over the Internet. BitTorrent metafiles themselves do not store copyrighted data. Hence, BitTorrent itself is not illegal. However, its use to make copies of copyrighted material that contravenes laws in many countries has created many controversies, including the now famous Pirate Bay Trial in Sweden. The popularity of torrents though
is not specific to the Western world. The strength of the Internet lies in its ability to generate content from any corner of the world
which is then spread across the world through a web of distribution reaching many computers and granting them access to the content simultaneously.<strong><br /></strong></p>
<h2><strong>Desi content on Torrent Networks</strong></h2>
<p><strong>Desi : A term derived from Sanskrit, meaning region, province or country. It now refers to the people and culture of South Asian Diaspora.</strong></p>
<p><strong>On the most popular BitTorrent search engines, <a href="http://torrentz.com/" target="_blank">torrentz.com</a>, Hindi and Hindi movies are permanent search tags. Often, one would even see the names of popular Bollywood releases such as Dev D, or at the time of writing this blog entry, Telegu Films, prominently displayed on the site. Bollywood and other content created in India and the rest of the subcontinent is driving the cyberspace. With a huge diaspora spread across every part of the world and increasing Internet penetration alongside rising broadband speeds in urban India, the demand for desi content on torrent networks is on the rise. Websites such as <a href="http://desitorrents.com/" target="_blank">desitorrents.com</a> and <a href="http://dctorrent.com/" target="_blank">dctorrent.com</a> are two torrent search engines that are popular amongst Internet users and cater exclusively to desi content. A closer look at the content on these sites reveal that the most popular content on these torrent networks are television shows, cricket matches, Bollywood movies, music and regional cinema. Torrent scenes such as aXXo are not unique to Hollywood uploads alone. Desi content has its own torrent scenes, responsible for uploading torrent trackers, as soon as the content is out in the public. Users identifying themselves as Jay, Captain Jack or Gunga Din are busy uploading these files on the desi networks.
</strong></p>
<p><strong>Online since January 2004 and an Internet traffic rank of 7,302, an average visitor spends 8.3 minutes on the Desi Torrents site everyday. Relative to the general Internet population, the website has the highest number of male visitors in the age group of 18 to 34.<br /></strong></p>
<p><strong>Most users are college graduates who prefer to access the website from home. In comparison, Desi Club Torrents, which is a free website has
a younger representative web demographic with males between 18 to 24 years of age being the most prominent visitors. According to the
data, it is also revealed that the website has a higher ratio of visitors who have not attended Graduate School but still have attended some college for education</strong></p>
<h2><strong>Impact on the Traditional Markets</strong></h2>
<strong>
</strong>
<p><strong>In most cases, the popularity of Bollywood films in cinema halls and
on torrent sites seems to be linked. For example, the most successful
Bollywood film of 2008, Ghajini, which ended up raking Rs. 200 crores
on the box office, is also one of the most downloaded films on Bit
Torrent Networks. However, for the Pirate selling DVD's of latest
films, this is not great news. A majority of their customers have migrated to
downloading films on the Internet using Peer to Peer technologies.
The upper middle-class niche film watching audiences, have been the
fastest to acquire computers and get on the Internet. Increasing
broadband speeds have ensured that this segment of consumer
transitions away from the traditional 'on the corner' pirate shop. </strong></p>
<p><strong> </strong></p>
<p><strong> </strong></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/emerging-bit-torrrent-trends-in-india'>http://editors.cis-india.org/a2k/blogs/emerging-bit-torrrent-trends-in-india</a>
</p>
No publishersiddharthCyberspaceinternet and societyPiracyIntellectual Property Rightscyberculturescyberspaces2011-08-04T04:44:48ZBlog EntryConsumers International IP Watch List 2009
http://editors.cis-india.org/a2k/blogs/consumers-international-ip-watch-list-2009
<b>In response to the US Special 301 report, Consumers International brought out an IP Watch List. CIS contributed the India Country Report for the Watch List.</b>
<p>Every year the Office of the United States Trade Representative (USTR) publishes a report known as the Special 301 Report, documenting IP regimes in various countries, and publishing a list of those countries which do not afford 'adequate and effective' protection for US intellectual property. This year <a class="external-link" href="http://www.consumersinternational.org">Consumers International</a>, which set up the <a class="external-link" href="http://a2knetwork.org">A2K Network</a>, published a counter-report, the <a class="external-link" href="http://a2knetwork.org/watchlist">IP Watch List 2009</a> for which the <a class="external-link" href="http://a2knetwork.org/reports2009/india">India report</a> [pdf <a href="http://editors.cis-india.org/../publications/cis-publications/pranesh/IP%20Watch%20List%20-%20India%20Report.pdf" class="internal-link" title="CI IP Watch List 2009 - India Report">here</a>] was prepared by the Centre for Internet and Society. While the Special 301 Report labels India a "Priority Watch List" country (meaning that it has an IP regime least conducive to the trade interests of the United States), the Consumers International report holds India to have the most consumer-friendly and balanced IP regulation amongst the sixteen countries surveyed. The CI report lambasts the USTR's attempts to make countries comply with unreasonable demands which go over and above the countries' international obligations. For instance, the WIPO Internet Treaties, which have been criticised by many, is sought to be imposed on countries like Israel, India, and Canada. <a class="external-link" href="http://www.michaelgeist.ca/content/view/62/128/">Prof. Michael Geist</a> of the University of Ottawa even notes that piracy levels and accession to the WCT and WPPT do not seem to be correlated: "In fact, only five countries that have ratified the WIPO Internet treaties have software piracy rates lower than Canada." Still, the USTR has placed both India, whose IP laws are being praised by Consumers International and Canada, which has low piracy rates even by the accounts of the <a class="external-link" href="http://www.economist.com/opinion/displaystory.cfm?story_id=3993427">notoriously propagandist BSA</a>, have both been placed in the Priority Watch List. The reasons for doing so are not all that unclear if we look at who really shapes the USTR's Special 301 report.</p>
<p>The India section of the <a class="external-link" href="http://www.ustr.gov/sites/default/files/Full%20Version%20of%20the%202009%20SPECIAL%20301%20REPORT.pdf">USTR Special 301 report [pdf]</a> (pp. 18-19) notes:<br /> "India will remain on the Priority Watch List in 2009. India has made progress on improving its IPR infrastructure, including through the modernization of its IP offices and the introduction of an e-filing system for trademark and patent applications. Further, the IP offices have started the process of digitization of intellectual property files. In addition, the Indian ministerial committee on IPR enforcement has supported the creation of specialized IPR police units. Customs enforcement has also improved through the implementation of the 2007 IPR (Imported Goods) Enforcement Rules as well as by seizures of unlicensed copyrighted goods intended for export. However, the United States remains concerned about weak IPR protection and enforcement in India. The United States continues to urge India to improve its IPR regime by providing stronger protection for copyrights and patents, as well as effective protection against unfair commercial use of undisclosed test and other data generated to obtain marketing approval for pharmaceutical and agrochemical products. The United States encourages India to enact legislation in the near term to strengthen its copyright laws and implement the provisions of the WIPO Internet Treaties. The United States also encourages India to improve its IPR enforcement system by enacting effective optical disc legislation to combat optical disc piracy. Piracy and counterfeiting, including of pharmaceuticals, remain a serious problem in India. India’s criminal IPR enforcement regime remains weak. Police action against those engaged in manufacturing, distributing, or selling pirated and counterfeit goods, and expeditious judicial dispositions for IPR infringement and imposition of deterrent-level sentences, is needed. As counterfeit medicines are a serious problem in India, the United States is encouraged by the recent passage of the Drugs and Cosmetics (Amendment) Act 2008 that will increase penalties for spurious and adulterated pharmaceuticals. The United States urges India to strengthen its IPR regime and stands ready to work with India on these issues during the coming year."</p>
<p>Large chunks of it seem to have been 'borrowed' from the <a class="external-link" href="http://www.iipa.com/rbc/2009/2009SPEC301INDIA.pdf">IIPA submissions</a>. The IIPA (International Intellectual Property Alliance), which is made up of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance, is a body that was created to lobby the USTR to impose trade sanctions on those countries which did not follow the path that IIPA thought best for those countries.<br />Interestingly, the IIPA submissions talk not of IIPA's concern about weak IPR protection and enforcement in India, but instead states: "the United States remains concerned about weak IPR protection and enforcement in India". This exact line even manages to finds itself in the USTR Special 301 report. Many IIPA complaints find themselves as USTR recommendations, including: a) fast-track judical dispositions of IP cases; b) special laws against optical disc piracy; c) ratification of the WCT and WPPT (the "WIPO Internet Treaties"); d) increased criminal enforcement of intellectual property.</p>
<p>Thus, the Special 301 report emerges as a <a class="external-link" href="http://www.zeropaid.com/news/86148/is-putting-canada-on-a-priority-watchlist-going-to-backfire/">discredited report</a> that the US's trade partners should not (and by <a class="external-link" href="http://www.michaelgeist.ca/content/view/3911/125/">many accounts</a> <a class="external-link" href="http://www.michaelgeist.ca/content/view/2870/125/">do not</a>) pay attention to. Measurement of IP balance and consumer-friendliness such as the Consumers International IP Watch List are more important, and should eventually lead to a <a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1021065">measurement index for Access to Knowledge</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/consumers-international-ip-watch-list-2009'>http://editors.cis-india.org/a2k/blogs/consumers-international-ip-watch-list-2009</a>
</p>
No publisherpraneshPiracyConsumer RightsIntellectual Property RightsFair Dealings2011-08-04T04:42:27ZBlog EntryLetter on South Africa's IPRs from Publicly Financed R&D Regulations
http://editors.cis-india.org/a2k/blogs/letter-on-south-africas-iprs-from-publicly-financed-r-d-regulations
<b>Being interested in legislations in developing nations styled after the United States' Bayh-Dole Act, CIS responded to the call issued by the South African Department of Science and Technology for comments to the Intellectual Property Rights from Publicly Financed Research and Development Regulations.</b>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/letter-on-south-africas-iprs-from-publicly-financed-r-d-regulations'>http://editors.cis-india.org/a2k/blogs/letter-on-south-africas-iprs-from-publicly-financed-r-d-regulations</a>
</p>
No publisherpraneshOpen StandardsBayh-DoleIntellectual Property RightsOpen AccessOpen Innovation2011-08-04T04:42:15ZBlog EntryWIPO Broadcast Treaty and Webcasting
http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-and-webcasting
<b>On Friday, 8 May 2009, at Shastri Bhavan, New Delhi, the Ministry of Information and Broadcasting held a stakeholders' briefing meeting on the Broadcast Treaty that has been on the table at the World Intellectual Property Organisation (WIPO). The purpose of that meeting was to inform the relevant stakeholders of the developments in Geneva, as well as to garner input from them regarding the stance to be adopted by India at the WIPO. Pranesh Prakash from the Centre for Internet and Society participated and made a presentation on webcasting, highlighting the differences between webcasting and broadcasting, and arguing that webcasting should not be part of the WIPO Broadcast Treaty.</b>
<p>First, we wish to applaud the Ministry of Information and Broadcasting for holding this stakeholders' meeting, which is a definite step towards greater transparency, and are grateful for having been invited to provide our input. The meeting was attended by representatives from various government offices and ministries, including the Ministry of Human Resource Development (which administers the Indian Copyright Act), broadcasters, broadcast associations, law firms, and civil society organisations. The Secretary of the Ministry of Information and Broadcasting inaugurated the session by talking of how the Broadcast Treaty involved the assessment and balancing of various interests while keeping 'public interest' foremost. This was followed by Mr. N. P. Nawani, Secretary General of the <a class="external-link" href="http://www.ibf-india.com/about_home.htm">Indian Broadcasting Foundation</a> (IBF), presenting on the concerns of the broadcasting industry. After this Prof. N. S. Gopalakrishnan, head of the School of Law, Cochin University of Science and Technology, spoke.<br /><br />Prof. Gopalakrishnan covered many areas of relevance: the concept of broadcasting and the legal rights involved; the scheme of legal protection over broadcast signals and over the content of the signals, and the difference between the two; gaps in the international law covering broadcasting; details of the proposed broadcast treaty; the implications of the broadcast treaty and concerns of the Indian government; and unresolved issues.<br /><br />Amongst the unresolved issues mentioned by Prof. Gopalakrishnan was that of webcasting and the problems related to that. The discussion below aims to shed some light on some of the problems created by the inclusion of webcasting in the broadcast treaty.<br /><br /></p>
<h2>Legal regimes for broadcasting</h2>
<p> </p>
<p>At the national level, the law governing broadcasting is the Indian Copyright Act, 1957. Broadcasting is covered by many sections of the Indian Copyright Act, including: ss. 2(dd) (definition of "broadcast"), 2(ff) (definition of "communication to the public"), 37 (the section granting a special "broadcast reproduction right"), and 39A (containing exceptions to s.37). At the international level, broadcasting is covered by the Rome Convention, 1960 (which India has signed, but hasn't ratified); the Brussels Convention, 1974 (only pre-broadcast satellite signals); the TRIPS Agreement, 1994 per Article 14 (which doesn't mandate that broadcasting rights be granted directly to the broadcasters); the WIPO Performances and Phonograms Treaty, 1996 (WPPT) in Articles 2(f) and 15; and the proposed WIPO Treaty on the Protection of Broadcasting Organizations ("Broadcast Treaty"). In May 2006, provisions for webcasting were brought back into the Broadcast Treaty as part of the non-mandatory Appendix after having been excised in 2004 owing to protests by many countries on their inclusion. The current draft (SCCR/15/2 rev.) was prepared in September 2006 as an attempt to put together an all-inclusive document (with alternative versions of proposed provisions present in the document), and a diplomatic conference was planned to push the treaty through. In August 2007, WIPO released a 'non-paper' (SCCR/S2/Paper1) and dropped plans for the diplomatic conference, as there was still significant disagreement about the treaty. In November 2008, the WIPO chair released an informal paper (SCCR/17/INF/1), which advocated technological neutrality, and hence, presumably, that webcasting to be covered by the treaty.<br /><br /></p>
<h2>Meaning of broadcasting and netcasting</h2>
<p> </p>
<p>Broadcasting is generally taken to be a point-to-multipoint transmission of audio-visual content. Hence, cable transmissions and Internet/Web transmissions (which are point-to-point) are usually not included when one uses the term "broadcasting". But there is no one common definition of "broadcasting". As things stand in the WIPO Broadcast Treaty, the definition of broadcasting (Art. 5(a)) does not cover cablecasting, which is separately defined in Art. 5(b), neither does it cover webcasting. However, the definition of "retransmission" as provided in the draft treaty is broad enough to cover Internet-based transmission, and hence could provide a backdoor via which webcasting is included. The rights covered by the all-inclusive draft WIPO Broadcast Treaty include the rights of and over: retransmission; communication to the public; fixation; reproduction; distribution; transmission following fixation; making available of fixed broadcasts; and pre-broadcast signals. The treaty also mandates legislative protection to systems of digital rights management (DRM) and technological protection measures (TPMs). This, coupled with post-fixation rights, grants broadcasters the rights to dictate what one can and cannot do with a broadcast, thus negating all fair dealing rights and possibly restricting the public domain as well. It may be noted that even content creators are not provided such rights in the vast majority of the world, and that fair dealing rights are much better safeguarded by copyright law. The latest proposal by the U.S. on the term "netcasting" is to be found in an <a class="external-link" href="http://www.wipo.int/edocs/mdocs/copyright/en/sccr_15/sccr_15_inf_2.doc">informal paper presented at SCCR 15</a> [MS Word document], and has been <a class="external-link" href="http://www.cptech.org/blogs/wipocastingtreaty/2006/09/how-restrictive-is-usptoloc-proposed.html">criticised as overly expansive</a> by civil society organisations such as Consumer Project on Technology (now Knowledge Ecology International).<br /><br /></p>
<h2>Non-justifications for webcasting's inclusion</h2>
<p> </p>
<p>Webcasting is sought to be included within the Broadcast Treaty for a number of reasons, all of which are problematic. Firstly, there is the argument of technology neutrality, which advocates say is to ensure that the treaty is relevant into the future as well. However, adopting technology neutrality as the basis for doing so amounts to wilful blindness to technological advancements, and the benefits that such advancement provides, including lowered costs of infrastructure. Secondly, advocates argue that thanks to media convergence, the same content (which is usually digital) can be delivered through various communication networks. This disregards the need to establish the requirement for a new right to be created, and simply assumes that just because the function that the two (broadcasters and webcasters) perform are similar means that they operate in similar economic and social environments. In fact, webcasters work in a very different environment from broadcasters. <br /><br />This is an environment where intense innovation and competition already exist, and don't need to be artificially created by means of a new property right in an international treaty. Furthermore, the United States, a country with extremely large and hugely profitable broadcasting networks, does not have a specific statute to protect broadcasters’ rights. Even it only has laws protecting the conditional-access regime. Second, much less investment is required to reach a set number of people through webcasting than through broadcasting -- and these people can be spread throughout the globe. Typically, a computer with a fast internet connection is all that is required. Given this, anyone can become a 'broadcasting organisation'. Additionally, IP addresses (in IPv6) are not limited, unless one considers 340 undecillion addresses to be 'limited'. This is a big difference from terrestrial broadcasting, where Hertzian frequencies are limited, and hence one has to pay a premium for them. Lastly, signal appropriation does not happen for sake of the signal, but for the content. Protection, thus has to be given to the content (and already is given, in the form of copyright law). Copyright owners who object to such appropriation, and who are often large multinational corporations, have proven more than willing to pursue those who appropriate their works – broadcasters are not necessarily in a better position to do so. This situation is aggravated with webcasting. Indeed, on the Web, something akin signal appropriation is not only not frowned upon, but often encouraged: embedding of audio and video from other servers on your own website is prevalent.<br /><br /></p>
<h2>Problems if webcasting is included</h2>
<p> </p>
<p>Apart from the lack of justifications for going ahead with the treaty, especially when it seeks to create a separate property right over signals instead of merely providing for signal protection and includes webcasting (at least upon 'retransmission'), there are many problems that the treaty creates. Firstly, transaction costs will increase vastly, leading to a tragedy of the anticommons where no one ends up using the content because clearing all the surrounding rights is too difficult. On top of clearing and making payment for rights from the copyright holders, a person wishing to use parts of any content that has been broadcast/webcast would have to get the rights cleared from the first broadcaster/webcaster as well. This is inevitable if property-like rights are bestowed upon the act of distributing signal in the form of a broadcast or hosting audio and visual content for webcasting.<br /><br />Secondly, materials in the public domain and openly-licensed content will become more difficult to gain access to, and the exercise of fair dealings with copyrighted content will be hampered. Since rights over signal are independent of rights over content, a copy of the public-domain work will have to be procured from an archive, which negates the very purpose of broadcasting and webcasting, which is to make content more easily accessible to a large number of people located over great distances. Additionally, limitations and exceptions are extremely difficult to negotiate and are of the 'ceiling' kind, limiting the limitations and exceptions that national legislatures can prescribe. Thus, the fair dealing rights over the signal will probably end up being more limited than the fair dealing rights over content. This makes the situation akin to anti-circumvention measures, which (in countries where they are legally recognised) have fewer limitations and exceptions than the content they protect.<br /><br />Thirdly, public benefit and access will seriously be harmed. It is conceivable that this treaty might hamper the Indian legislature's ability to pass statutes such as the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, which mandate sharing of certain kinds of signals. Lawyers will claim that such statutes go against India's international obligations.<br /><br /></p>
<h2>Differences between webcasting and broadcasting</h2>
<p> </p>
<p>To sum up, there are a large number of differences between broadcasting and webcasting.<br /><strong>Infrastructure</strong>: The expenditure required to establish the infrastructure for a webcasting unit is much less than that required for an equivalent (in terms of reach in terms of listeners). Even traditional broadcasting is not that expensive: fixed-frequency radio transmission kits have been known to cost as little as Rs. 50 (<http://news.bbc.co.uk/2/hi/south_asia/4735642.stm>. Thus, one of the biggest arguments for protection ('to recover investment') is taken away. The content producers' 'investment' is protected by copyright law.<br /><strong>Competition</strong>: Providing incentives to increase competition and hence public benefit is often a reason cited as a reason for introduction of a new property-like right. However, such incentives seem utterly redundant in the online market where becoming a webcasting organisation is trivial, and immense competition already exists.<br /><strong>Broadcasting vs. Uni- and Multicasting</strong>: The notion of 'broadcasting' does not exist in IPv6. The closest that a webcaster can come to broadcasting is 'multicasting' to a specific range of IP addresses. What one sees on the Web today is "unicasting", which is initiated by a request from the recipient and not by the webcaster.<br /><strong>Temporal limitations</strong>: Unlike traditional broadcasting (which does not include cable), content on demand is possible over the Web. By this, the temporal limitations faced by traditional broadcasting, which is ephemeral, are overcome. This opens up many possibilities that should not be hampered by creating an excessive legal regime (and that too a property regime) over webcasting.<br /><strong>Geographic limitations</strong>: While terrestrial broadcasting is limited in geographic scope (which satellite and cable-casting are less susceptible to), webcasting knows no geographic limitations. As long as an Internet connection is present, the content can be viewed anywhere. Additionally, granting a separate webcasting right will open up a jurisdicational can of worms.<br /><strong>Marginal costs of subscribers</strong>: While in terrestrial broadcasting, adding an additional receiver does not cost the broadcaster anything, in satellite television (direct-to-home), cable television and webcasting, each additional receiver means either additional infrastructure (cables and set-top boxes) or additional server load. In the case of webcasting, this marginal cost is small enough to ignore, especially given all the other reasons mentioned previously.<br /><br /></p>
<h2>Conclusion</h2>
<p> </p>
<p>There are still a number of uncertainties surrounding the inclusion of webcasting in the Broadcast Treaty. Michael Nelson of the Internet Society points out that questions such as who the broadcaster is in a download grid, in distributed gaming, for webcasts of surveillance videos, etc., are unanswered. As the example of the download grid (a situation where the 'casting' is multipoint-to-point) shows, many Internet-specific scenarios have not been contemplated by the treaty negotiators. Situations which might soon be reality, such as peer-to-peer relaying of webcasts are also not contemplated, and the treaty would become a policy document preventing such technological innovations. Whether IPTV would be included within webcasting is also unclear. The WIPO chair in his informal paper noted, 'Finally, if after consideration of the options above (A/B) and possible other options, it will not in the present situation be possible to decide on the establishment of a new treaty, the SCCR should end these discussions through an express decision in order to avoid further spending of time, energy and resources to no avail. Such a decision could include a timetable for later revisiting and reconsidering the matter.' (SCCR/15/2 rev) SCCR should end these discussions which have gone on for more than a decade without any progress.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-and-webcasting'>http://editors.cis-india.org/a2k/blogs/wipo-broadcast-treaty-and-webcasting</a>
</p>
No publisherpraneshIntellectual Property RightsBroadcastingWIPO2011-08-04T04:42:10ZBlog EntrySeminar on Exceptions and Limitations in Copyright
http://editors.cis-india.org/accessibility/blog/seminar-on-exceptions-and-limitations-in-copyright
<b>This is a report on a seminar organised by the Department of Higher Education, Ministry of Human Resource Development, and Government of India on 14 and 15 May 2009, in Kochi, Kerala, to look at exceptions and limitations in copyright. Programme Manager Nirmita Narsimhan, of the Centre for Internet and Society, attended the seminar. </b>
<p></p>
<p>CIS Programme Manager Nirmita Narsimhan attended a seminar on exceptions and limitations in copyright, organised by the
Department of Higher Education, Ministry of Human Resource Development, and
Government of India on 14 and 15 May 2009, in Kochi, Kerala. The seminar was intended to bring up key issues affecting access to knowledge, which are to be taken up by the
Standing Committee on Copyright and Related Rights (SCCR) at the World Intellectual Property Organisation (WIPO) later this
month. Resource persons identified for different topics were eminent
scholars, academicians and practitioners across India. The seminar covered eight
topics. On each topic, a paper was presented by a resource person with commentary by
an expert in the field, after which there was an open discussion.</p>
<p>The first day
featured, amongst others, a paper presented by Lawrence Liang, Distinguished Fellow,
CIS. He spoke at length on the exceptions and limitations for education.</p>
<p>The
second day featured a paper by Mr. Madhukar Sinha, former Registrar of Copyright.
Mr. Sinha presented on the topic<a name="OLE_LINK7"></a> 'Use of works by visually impaired and other
miscellaneous exceptions of use of works under Indian Copyright
Act: Section 52(1) (q), (r), (s), (t), (u), (v), and (x), (y), (z)'. His paper went into great length on
definitions of visual disability and tried to evolve an economic model to
support conversion of books into accessible formats for the visually
challenged. The paper drew parallels with existing laws and best practices in
different countries, made a detailed analysis of exceptions for the blind in
the light of the Berne three-step test and the TRIPS agreement, and concluded by
recommending that the Copyright Act should be amended to include exceptions and
limitations which would permit conversion of books into formats in certain
special cases. Mr. Sinha also recommended that India should look at solutions
which go beyond the limits of the Copyright Act to solve such problems.</p>
<p>The
response to this was prepared by Mr. Rahul Cherian of Indo Juris Law offices.
The response paper drew
attention to the fact that half of the total blind population of the world is
in India
and that amounts to a population of more than a crore. In the light of the economic and
logistic considerations of our country, the Copyright Act should</p>
<ol type="1" start="1"><li>Expressly
include a limitation to permit conversion of books into accessible formats
for visually challenged persons;</li><li>Permit
conversion by stakeholder organizations as well as interested family
members and friends of beneficiaries;</li><li>Adopt a
functional definition of disability and not a medical one as is currently
the case in the Persons with Disabilities Act 1995, and extend the benefit
of the exception to all persons, who by reason of any disability are
unable to access the work in its original format;and</li><li>Not restrict
conversion only to those formats which are exclusively for the use of
blind persons. Visually challenged persons should be able to make use of
available mainstream formats like PDFs or Word as well.</li></ol>
<p>The paper also dealt extensively with the
Treaty for Improved access for the Blind, Visually Impaired and Other Reading Disabled, which was proposed by the World Blind Union in WIPO last year and is
coming up again for discussion later this month.</p>
<p>Please <a href="http://editors.cis-india.org/accessibility/blog/uploads/Draft%20Comments.doc/at_download/file" class="external-link">click here</a> to see the complete
text of the paper.</p>
<p>The seminar was extremely productive because there was a strong recommendation and support for the inclusion
of a limitation for conversion into accessible formats for persons with
disabilities in the Indian Copyright Act. All the members present came to a
consensus that the Indian Government should take a supportive stand towards the
Treaty for the Blind proposed by the WBU at the SCCR this month. A
representative of a leading publishing house committed himself to working
towards providing books to certain organizations for the blind, if they could
assure him that those books would be circulated only to blind persons and not
to others.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/accessibility/blog/seminar-on-exceptions-and-limitations-in-copyright'>http://editors.cis-india.org/accessibility/blog/seminar-on-exceptions-and-limitations-in-copyright</a>
</p>
No publishersachiaIntellectual Property Rights2011-08-17T08:50:52ZBlog EntryThe Dark Fibre Files: 'Steal This Film' and the Pirate Bay Trial
http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial
<b>In this posting, the fifth blog entry on the making of the film 'Dark Fibre' by Jamie King and Peter Mann, Siddharth Chadha discusses the Swedish trial of the Pirate Bay, which brought up some of the debates on intellectual property rights and piracy that were highlighted in 'Steal This Film'. </b>
<p>In August 2006, Jamie King shot Part I of 'Steal This Film' in Sweden, combining found material, propoganda-like slogans and Vox Pops, along with accounts from members of the Pirate Bay, Piratbryan and the Pirate Party. The film critiques the alleged regulatory capture attempt performed by the Hollywood film lobby in order to leverage economic sanctions by the United States government on Sweden through the WTO. The film interviews the Pirate Bay Members Fredrik Neij, Gottfrid Svartholm, and Peter Sunde and Piratbryan members Rasmus Fleischer, Johan and Sara Anderson, who recount the search and seizure raid conducted by the Swedish police, with the purpose of disrupting the Pirate Bay's BitTorrent tracker. This raid, according to the Pirate Bay members, was against the Swedish law and conducted under pressure from the Motion Pictures Association of America. The documentary was officially released on filesharing networks on 28 December 2007 and, according to the filmmakers, downloaded 150,000 times in the first three days of distribution. The Pirate Bay encouraged the downloading of 'Steal This Film II', announcing the film's release on its blog. 'Steal This Film II' was also screened by the Pirate Cinema, Copenhagen, in January 2008.</p>
<p align="center"> </p>
<p>In the post-Napster era of peer to peer networks, the Pirate Bay case has been the media highlight on file sharing. After the police raided 12 different premises in May 2006, confiscating 186 servers and causing the torrent tracker to shut down for three days, the Pirate Bay re-opened to double the number of visitors, as its popularity got a shot in the arm with the extensive media coverage. While the MPAA termed the raids as extremely succesful, the Pirate Bay, which restored its servers in three days, thought otherwise. After a preliminary investigation and interrogation by the police, a four thousand page report was prepared by the prosecutor, in preperation of a trial. The Swedish prosecutors filled charges in January 2008 against four individuals they associated with The Pirate Bay for 'promoting other people's infringement of copyright laws'. <br /><br />The Swedish prosecution raised a furore in the world of Intellectual Property by suing The Pirate Bay. While the prosecutors contended that millions of people get access to copyrighted materials such as movies, songs, and software programs, which can be downloaded for free by going to The Pirate Bay site, the contentious issue lies in the fact that the Pirate Bay itself does not host any files. Just as Google is an index of links, The Pirate Bay is an index of where those files are located. The original files are located across millions of computers around the world, which may only have a small fragment of the original file, and which share these fragments using BitTorrent. According to CableLabs, an organisation of the North American cable industry, BitTorrent represents 18% of all Broadband traffic. Apart from suing The Pirate Bay, the major Hollywood studios have also tried pressure tactics to contain copyright infringement. HBO in 2005, for example, poisoned torrents of its 'Rome' TV show by providing bad chunks of data to clients. It also sent cease and desist letters to the Internet Service Providers of BitTorrent users. The increased pressure from the Hollywood lobby and persistent lawsuits have resulted in the shutdown of various BitTorrent indexing sites, such as the Supernova.org, Torrentspy, LokiTorrent, Demonoid, Oink.cd and EliteTorrents.org. <br /><br />The Pirate Bay Trial started on 16th Feburary 2009, with defense lawer Per E. Samuelson, arguing that it is legal to offer a service that can be used both legally and illegally, under the Swedish Law. He compared the Pirate Bay services to making cars that can be driven faster than the speed limit. On the second day of the trial, the prosecution dropped half of the charges against the Pirate Bay, due to shortcomings in evidence. Prosecutor Hakan Roswall dropped all charges related to 'assisting copyright infringement', leaving 'assisting making available' as the remaining charge. The next day of the trial saw an argument by the defense attorney Per Samuelson, which was latter dubbed as the King Kong defense, popularised by the blogs, file sharing news feeds and the media. The defense stated:<br /><br /><em>EU directive 2000/31/EC says that he who provides an information service is not responsible for the information that is being transferred. In order to be responsible, the service provider must initiate the transfer. But the admins of the Pirate Bay don’t initiate transfers. It’s the users that do and they are physically identifiable people. They call themselves names like King Kong... According to legal procedure, the accusations must be against an individual and there must be a close tie between the perpetrators of a crime and those who are assisting. This tie has not been shown. The prosecutor must show that Carl Lundström personally has interacted with the user King Kong, who may very well be found in the jungles of Cambodia...</em><br /><br />The remaining six days of the trial saw questioning of the accused, witness depositions by plaintiffs and conflicting academic research by experts, as the prosecution tried to show that the Pirate Bay was an immensely profitable business that made money by helping others infringe copyright laws. The four operators of the site, Fredrik Neij, Gottfrid Svartholm, Peter Sunde and Carl Lundstrom, were convicted by Stockholm district court on 17 April 2009 and sentenced to one year in jail each and a total of 30 million SEK (approximately 3.5 million USD, 2.7 million EUR) in fines and damages. In its verdict the court stated that 'responsibility for assistance can strike someone who has only insignificantly assisted in the principal crime'. <br /><br />Even while filming of 'Dark Fibre' was on here in Bangalore, Jamie and his crew were filming outside the courtroom in Stockholm, as the the subjects of 'Steal This Film' went on trial and were convicted. The convicted are now preparing to appeal against the sentence and the fine in the higher Swedish court. </p>
<p><img class="image-inline image-inline" src="uploads/copy_of_piratebay.gif/image_preview" alt="piratebay" height="400" width="363" /> <img class="image-inline image-inline" src="uploads/copy_of_prtbay.jpg/image_preview" alt="prtbay" height="315" width="284" /></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial'>http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-steal-this-film-and-the-pirate-bay-trial</a>
</p>
No publishersachiaPiracyIntellectual Property RightsCable TV2011-08-04T04:41:57ZBlog EntryThe 'Dark Fibre' Files: Cable TV Technology for Dummies
http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-cable-tv-technology-for-dummies
<b>In the fourth entry documenting the making of 'Dark Fibre', a film by Jamie King and Peter Mann, Siddharth Chadha simplifies cable TV technology for the uninitiated. </b>
<p> </p>
<p>Confused about the difference between an MSO and a COAX? Well, this will simplify cable TV for you.</p>
<p>The system of providing television to consumers using radio frequency signals transmitted to televisions using fixed optical fibers or co-axial cables is called cable television. This is different from the over-the-air method used in traditional television broadcasting (via radio waves) for which a television antenna is required. FM radio programming, high-speed internet, telephony, and similar non-television services may also be provided.</p>
<p>Still confused? It's simple.</p>
<p>Your local cablewallah is a Private Cable Operator, a private small cable company dealing/competing with the Multi System Operators (MSO), who is an operator of multiple cable systems. For example, Hathway, Siti Cable, In TV are MSOs who operate either directly or via small cablewallahs. When cable TV was first introduced in India, small entrepreneurs set up their private cable companies, providing anywhere between seven to twenty channels to their local neighborhoods. They put up their own cable dish to down-link the broadcast signals from the satellite. Up until 1997, this was the only way one could access cable television; but this changed with the entry of the Multi Service Operators, who used better technology to provide clearer pictures, better sound and up to a 100 channels.</p>
<p>The broadcaster up-links the signal to their channel via satellite. The MSO down-links this signal, using a control room or a rear end. Inside the control room would be a set of RF signal modulators. Scientific Atalanta is an industry standard in India that provides control room equipment to various MSOs. The MSOs, which started off with analog technology to transmit their signals, are now moving to digital cable, delivering cable television as digital data instead of an analog frequency.</p>
<p>Because many MSOs continue to use analog transmission for low-numbered channels, and digital transmission for higher channels, a typical digital cable box is also able to convert traditional analog cable signals. Despite the advance of cable-ready television sets, most users need a cable box to receive digital channels. However, customers who do not subscribe to any digital channels can go without; MSOs provide "basic cable" service within the analog range, avoiding the need for distributing a box. However, advanced carrier services such as pay per view and video on demand will require a box.</p>
<p>Digital television allows for a higher quality and quantity of cable TV signals. Digital transmission is compressed and allows a much greater capacity than analog signals it almost completely eliminates interference. Digital converters have the same purpose as analog ones but are able to receive digital cable signals. With more data than analog in the same bandwidth, the system delivers superior picture and sound quality.</p>
<p>The MSO further re-transmits the RF signal from to the cablewallah, via coaxial optical cables or simply known as COAX that in turn boosts this signal using amplifiers and provide it to various homes using a common type of optical cable called RG6. The term RG was initially used by the US Military as an abbreviation for Radio Guide, but the term is now obsolete. RG6, in common practice, refers to coaxial cables with an 18 AWG center conductor and 75 ohm characteristic impedance. It typically has a copper-coated steel center conductor and a combination aluminum foil/aluminum braid shield. They are usually fitted with F connector style, in each end.</p>
<p align="center"><img class="image-inline image-inline" src="uploads/submarineumbilicalcable259620.jpg/image_preview" alt="Submariine Umblical Cable" height="386" width="400" /></p>
<p>Once the signal reaches a cablewallah, the responsibility of the MSO ends, and it is up to the Cable Operator to maintain and distribute cable television from there onwards. Once the signal reaches the consumer's home, it is processed by a television converter box, popularly known as a set top box. A set top box is an electronic tunning device that transposes or converts any of the available channels from a cable television service to an analog RF signal on a single channel. The device enables televisions which are not cable ready to receive cable channels.</p>
<p align="center"><img class="image-inline image-inline" src="uploads/SetTopBox.jpg/image_preview" alt="Set Top Box" height="125" width="400" /></p>
<p>Modern set top boxes have a descrambling ability. The past three years have seen the entry of Direct to Home Pay TV operators, such as Tata Sky or Dish TV in the market, taking the technology to a new levels of sophistication, where the customers use a small cable dish to down-link the broadcasters signals which are processed with a set top box. In case of premium television, or paid channels, the broadcaster up-links an encrypted or a scrambled signal. When the signal reaches the home of the end user, it is reprocessed using a set top box, thus descrambling it and making it available for viewing on Television. A descrambler must be used with a cable converter box to be able to unencrypt all the premium and pay-per-view channels of a cable television system.</p>
<p align="center"><img class="image-inline image-inline" src="uploads/DTHDish.jpg/image_preview" alt="DTH DISH" height="388" width="400" /></p>
<p>Now, put on that television, forget the tech and get back to the latest IPL match!<em><br /></em></p>
<p><em>With inputs from MSOs, Local Cable Operators and Wikipedia for definitions of terms.</em></p>
<p> </p>
<p> </p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-cable-tv-technology-for-dummies'>http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-cable-tv-technology-for-dummies</a>
</p>
No publishersachiaPiracyIntellectual Property RightsCable TV2011-08-04T04:41:52ZBlog EntryThe 'Dark Fibre' Files: The Grey Market Deficit
http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-the-grey-market-deficit
<b>In this, the third entry in his series discussing the making of 'Dark Fibre' by Jamie King and Peter Mann, Siddharth Chadha gives an overview of piracy in the pay TV industry. </b>
<p> </p>
<p>Television emerged as one of the biggest gainers in a post-liberalisation India during the '90s. From 41 television sets and one channel in 1962, the country has come a long way, with over 130 million homes with televison. Cable TV has spurred an unprecedented revolution for the entertainment and advertising industry. As a country where more than half the population lives on a daily income of less than USD 1 but swears by its Indian Premier League, India has also emerged as the Asian giant in pay TV piracy. The Cable and Satellite Broadcasting Association of Asia, in a pan-Asia survey, pegged the net loss of revenue to the television industry due to pay TV piracy at USD 1.1 Billion in 2008. In its annual report published last year, it estimates that over 21.64 million cable TV homes went unreported, either on account of theft or leakage by local cable operators. This is almost one-fouth of the 8.5 million existing cable TV connections across the country. The report also suggests that 65 percent of the total loss of USD 1.76 Billion due to cable TV piracy in Asia comes from India alone, followed by Thailand at USD 180 Million.</p>
<p> </p>
<p>According to Shashi Kumar, the General Manager of Hathway Cable TV Private Limited, a Multi Service Operator, 'All cable operators report only 10-15 percent of their total subscriber base. Obviously, the piracy figures in this industry will be very high.' A cable operator in Bangalore, on the condition of being anonymous, discloses, 'We are providing cable TV connections to over 800 homes. But we declare only 250, because that is the minimum number of connections that the MSO wants. There are not enough margins in the business to sustain accurate reporting.' The average cost of setting up a cable operation now runs into crores of rupees and the business is not lucrative if it is entirely clean. The average price for a digital cable connection charged by an MSO to the local cablewallah is between Rs. 180-200, the charge to the end consumer is Rs. 250 per connection per month. This does not seem to spell profit for the cable operators. 'An amplifier alone costs Rs. 3500 per unit and serves about 20 homes. The cost of the RJ6 cable is Rs. 4300 a bundle. How can we be expected to do business on a profit margin of Rs. 50 per month? If the margins were higher, perhaps operators would not leak connections,' adds the cable operator.</p>
<p> </p>
<p>While Multi Service Operators seem to be fed up of the situation, there is not much they can do about it. 'There are already 5-6 national level MSOs. And then there are new entrants into the market every month. Despite knowing that the cable operators are under-reporting connections, we continue to work on minimum level subscriptions because the market is extremely competitive. If we take action against a cable operator, we would lose out on whatever business we have to a new player,' adds Shashi, while describing the operations of their company.</p>
<p> </p>
<p>The industry is now looking at growth in the number of Direct To Home subscribers as a deterrent to piracy. Estimates suggest that by 2015, over 40 percent of subscribers in the pay TV universe is likely to comprise DTH owners, up from the current five percent. Frightened of repeated instances of signal piracy on their networks, broadcasters are now investing in signal encryption technology, to ward of the pirates. However, till DTH television becomes the norm rather than the exception, one can expect more tussles between the broadcasters, Multi Service Operators, regulators and cablewallahs, in the world of pay TV piracy.</p>
<p> </p>
<p align="center"><img class="image-inline image-inline" src="uploads/thefutureishere.jpg/image_preview" alt="the future is here" height="260" width="400" /></p>
<p align="center"><img class="image-inline image-inline" src="uploads/TVServantLogo.png/image_preview" alt="tv servant logo" height="400" width="250" /></p>
<p> </p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-the-grey-market-deficit'>http://editors.cis-india.org/a2k/blogs/the-dark-fibre-files-the-grey-market-deficit</a>
</p>
No publishersachiaPiracyIntellectual Property RightsCable TV2011-08-04T04:41:47ZBlog EntryDoes India need its own Bayh-Dole?
http://editors.cis-india.org/news/does-india-need-its-own-bayh-dole
<b>Article by Pranesh Prakash, Programme Manager at Centre for Internet and Society in the Indian Express, 24 April 2009 </b>
<p>Across the world battlelines are being drawn in the normally quiet
areas of academia and research. The opposing sides: those in favour of
open and collaborative research and development as a means to promote
innovation, and those in favour of perpetuating the profits of big
pharma companies and academic publishers. Currently before a Select
Parliamentary Committee is a controversial law that will deny basic
healthcare to millions by making medicines much more expensive, lock up
academic knowledge, and help privatise publicly-funded research. The
law titled the Protection and Utilisation of Public Funded Intellectual
Property Bill 2008 (“PUPFIP Bill”, http://bit.ly/pupfip-bill) was
tabled last December in the Rajya Sabha by the Minister for Science and
Technology. It was created in utmost secrecy by the Department of
Science and Technology, without so much as a draft version having been
shared with the public for comments.</p>
<p>The PUPFIP Bill is an Indian version of a 1980 US legislation, the
Bayh-Dole Act, and as per its statement of objects and reasons, it
seeks to promote creativity and innovation to enable India “to compete
globally and for the public good”. It aims to do so by ensuring the
protection of all intellectual property (meaning copyright, patent,
trade mark, design, plant variety, etc.) that is the outcome of
government-funded research. The IP rights will be held by the grant
recipient, or by the government if the recipient does not choose to
protect the IP. This might seem like a good way to enable technology
transfer from research institutes to the industry, but that would be a
very myopic view, disregarding all evidence related to the failure of
the Bayh-Dole Act. Last year Prof. Anthony So of Duke University
co-authored an extensive analysis of the Bayh-Dole Act, and warned of
the consequences of such legislation in developing countries.</p>
<p>First, such a law will shift the focus of research.
Researchers will be inclined to to concentrate their efforts on issues
of interest to industry, and which can have immediate benefit. This
would force vital fundamental research into neglect since it cannot be
commercialised with ease. Research by Saul Lach and Mark Schankerman
shows that scientists are influenced by royalty rates, and will thus
tend to work on industrial research rather than fundamental research.
This creates, or at least exacerbates, what is popularly known as the
“90/10 gap”: the fact that ninety per cent of medical research money
goes into problems affecting ten per cent of the world’s population,
since that ten per cent is richer.</p>
<p>Secondly, this law will have chilling effects on scholarly
communications and promote secrecy. The Bill has requirements of
non-disclosure by the grantee and the researcher to enable the
commercialisation of the research, and requires researchers and
institutions to inform the government before all publication of
research. Such bureaucratisation of research publications will stultify
intellectual pursuits. Such secrecy and permission-raj culture is
anathema to intellectual and academic pursuits, where knowledge is
sought to be freely disseminated, to be criticised and further revised
by others. In South Africa, academics affected by the recent passage of
a PUPFIP-type legislation there are questioning its constitutionality
as it restrains freedom of speech.</p>
<p> Thirdly, this will lead to our pillars of learning and
research becoming like businesses. US universities like Columbia and
Duke have found themselves at the receiving end of criticism for their
brazen commercialism, encouraged by the Bayh-Dole Act. Instead of
promoting greater access to health for the poor, and spending money on
research, the universities were spending money on patent litigation in
court. The outcome of one of these cases was the rejection of Duke
University’s research exemption defence (universities are generally not
bound to observe patents when they wished to conduct research). The
court held that the university had “business interests” which the
research unmistakably furthered. This points at a fundamental divide
between universities as places of learning and as places of
profiteering. The Open Source Drug Discovery (OSSD) project that the
Council of Scientific and Industrial Research (CSIR) is currently
pursuing is a good attempt at promoting a culture of openness and
transparency and collaboration, and thus ensuring cheaper and more
efficient drug discovery. Even the US government is currently seeking
to clear the way for generic versions of biotech drugs. In such an
environment, it is counter-intuitive to bring in a regressive law, and
goes against innovative efforts such as the OSSD, and will harm the
generics industry.</p>
<p>Fourthly, the Bill assumes — erroneously, as an ever-growing
amount of research demonstrates (Boldrin & Levine, Bessen &
Meurer, etc.) — that intellectual property is the best and only way to
promote creativity and innovation. All forms of intellectual property
are state-granted monopolistic rights. At a basic level, competition
promotes innovations while monopoly retards it. Much of modern science
developed without the privilege of patents. Surely, Darwin and Newton
were not encouraged by patents. And even whole industries — like the
software industry — flourish without patent protection in most of the
world.</p>
<p> The commendable aim of ensuring knowledge transfer can be
accomplished much better if we refrain from giving away to private
corporations (whether pharmaceutical manufacturers or publishers)
exclusive rights to the product of publicly-funded research. Scientists
and researchers can be encouraged to be consultants to various
industrial projects, thereby ensuring that their expertise is tapped.
Importantly, open access publishing which helps to ensure wide
distribution and dissemination of knowledge is surely more desirable.
That is the trend being followed the world over currently. The US
president recently signed into law the Consolidated Appropriations Bill
which makes permanent the National Institutes of Health’s open access
policy. By doing so, he symbolically rejected calls (such as the
much-criticised Conyers Bill) to privatise publicly funded research
outputs. Thus, there are many ways by which the government can
encourage innovation and creativity, and further public interest. The
PUPFIP Bill, which will have deleterious unintended consequences if it
is passed, is not one of them.</p>
<p>-----</p>
<p>To read the article at the Indian Express website, <a class="external-link" href="http://www.indianexpress.com/story-print/450560/">click here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/news/does-india-need-its-own-bayh-dole'>http://editors.cis-india.org/news/does-india-need-its-own-bayh-dole</a>
</p>
No publishersachiaIntellectual Property Rights2011-04-02T15:58:46ZNews ItemAn Interview With Arjen Kamphuis
http://editors.cis-india.org/openness/blog-old/an-interview-with-arjen-kamphuis
<b>In an email interview with the Centre for Internet and Society, Dutch open source activist Arjen Kamphuis discussed his experience of successfully working with the government for a policy mandating open standards for all government IT in the Netherlands. </b>
<p><a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>In<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a> 2002 Arjen Kamphuis co-authored a <span class="moz-txt-citetags"></span>parliament motion to mandate open standards for all gov<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>e<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>rnment IT in the Netherlands. The motion was unanimously accepted and, in <span class="moz-txt-citetags"></span>2007, became policy. The Netherland<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>s thus became the first <span class="moz-txt-citetags"></span>western country to make the use of open standards in public sector IT <span class="moz-txt-citetags"></span>mandatory. Arjen is now workin<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>g t<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>o e<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a><a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>xport this set of policies to <span class="moz-txt-citetags"></span>other European countries with the help of local political parties and <span class="moz-txt-citetags"></span>business partners.</p>
<p>Arjen discussed his experience of lobbying for this policy change and some other questions related to<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a> his<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a> work as a consultant on IT strategy and the implications of nanotechnology and biotechnology in an email interview with the Centre for Internet and Society.<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a><br /><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags">
</span><strong>The Centre for Internet and Society: What is the Dutch government's policy on FOSS and Open <span class="moz-txt-citetags"></span>Standards specifically and intellectual property rights in general? Provide some history, name <span class="moz-txt-citetags"></span>the main lobbying factions in the Netherlands and their policy <span class="moz-txt-citetags"></span>positions. What was your role in the formulation of these policies?</strong></p>
<p><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"> </span><strong>Arjen Kamphuis:</strong> The national action plan 'The Netherlands in Open Connection' is the <span class="moz-txt-citetags"></span>government's answer to a unanimous vote in parliament in November <span class="moz-txt-citetags"></span>2002. The parliament stated that the market for desktop software was <span class="moz-txt-citetags"></span>not functioning as it should and that significant vendor lock-in <span class="moz-txt-citetags"></span>effects were harming both individual citizens and society as a whole. <span class="moz-txt-citetags"></span>It requested maximum efforts from the government to change this <span class="moz-txt-citetags"></span>situation. The suggested method for changing was mandating open <span class="moz-txt-citetags"></span>standards in all public sector IT and actively supporting the adoption <span class="moz-txt-citetags"></span>of open source software wherever functionally and <span class="moz-txt-citetags"></span>technically feasible. <a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a></p>
<p><span class="moz-txt-citetags"></span>I was one of the people who got this process started by contacting a <span class="moz-txt-citetags"></span>member of parliament from the Green Party. This was triggered by <span class="moz-txt-citetags"></span>my inability to access the website of the national railway on 1 January <span class="moz-txt-citetags"></span>2002. The website had been redesigned and only allowed access to <span class="moz-txt-citetags"></span>visiters with Internet Explorer. As a Linux user, I had previously had comparable <span class="moz-txt-citetags"></span>problems with local government websites and electronic tax forms <span class="moz-txt-citetags"></span>(usage of which was mandatory for small businesses like my consulting<span class="moz-txt-citetags"> </span>start-up).</p>
<p>After the unanimous vote in parliament, several people in the <span class="moz-txt-citetags"></span>Dutch open source community, including me, kept the pressure on the government by <span class="moz-txt-citetags"></span>monitoring major procurements and writing questions for the Members of the European Parliament (MEPs) to ask <span class="moz-txt-citetags"></span>the government. In 2004 this led to a breakthrough when the <span class="moz-txt-citetags"></span>Justice Ministry ra<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>n a project to procure 147 million euros' worth of <span class="moz-txt-citetags"></span>desktop software without going through a proper multi-vendor selection <span class="moz-txt-citetags"></span>process. They only talked to one vendor, and that is against European Union<span class="moz-txt-citetags"> </span>regulations. Since some of the civil servants working on this project <span class="moz-txt-citetags"></span>were gagged, we can conclude that some people were aware they were <span class="moz-txt-citetags"></span>breaking the law, yet went ahead anyway. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span>When the news broke we made sure the MEPs were armed with the proper <span class="moz-txt-citetags"></span>questions the next day, and the contract was dropped. In reply to <span class="moz-txt-citetags"></span>questions asked to the government by the MEPs, the responsible <span class="moz-txt-citetags"></span>ministers admitted that the government was very dependent on <span class="moz-txt-citetags"></span>Microsoft for basic functioning of its office environments; that <span class="moz-txt-citetags"></span>this was a problem; and that the government would take active <span class="moz-txt-citetags"></span>steps to remedy this situation by moving forward with <span class="moz-txt-citetags"></span>the requests <a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>made in 2002 by parliament.</p>
<p>Two-and-a-half years and an election later, a new under-Minister for <span class="moz-txt-citetags"></span>Economic Affairs, Frank Heemskerk, took up the challenge <span class="moz-txt-citetags"></span>and promised a comprehensive policy. I gave input for this plan in <span class="moz-txt-citetags"></span>mid-2007 and it was formally published and adopted later that year as <span class="moz-txt-citetags"></span>a national policy for all government and public-sector (i.e. tax <span class="moz-txt-citetags"></span>funded) organisations. <span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span>The policy has three objectives:</p>
<ul><li>improving interoperability between <span class="moz-txt-citetags"></span>public sector organisations;</li><li>lowering the vendor-dependence of the <span class="moz-txt-citetags"></span>public sector;</li><li> improving the functioning of the software market <span class="moz-txt-citetags"></span>and supporting the Dutch knowledge economy <a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a></li></ul>
<p><span class="moz-txt-citetags"> </span><span class="moz-txt-citetags"></span>Some of the practical measures are the mandating of the use of open <span class="moz-txt-citetags"></span>standards in all public sector organisations. Whenever software is <span class="moz-txt-citetags"></span>procured, open source should be considered <span class="moz-txt-citetags"></span>and preferred whenever functionally adequate. These two very basic <span class="moz-txt-citetags"></span>rules change the entire market for IT in the Dutch public sector (40% <span class="moz-txt-citetags"></span>of the entire market) and is having a profound effect on the way <span class="moz-txt-citetags"></span>software vendors offer their products as well as the negotiating power <span class="moz-txt-citetags"></span>of the client organisations. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>I continue to advise both the decision makers and the civil servants <span class="moz-txt-citetags"></span>overseeing the implementation of the policy. <span class="moz-txt-citetags"> </span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span><strong>CIS: What is the current status on the implementation of these<span class="moz-txt-citetags"> </span>policies?</strong></p>
<p><span class="moz-txt-citetags"> </span><strong>AK: </strong>After a slow start the government organisation that is responsable for <span class="moz-txt-citetags"></span>overseeing the implementation is now up and running. The basic problem <span class="moz-txt-citetags"></span>is lack of awareness about both the practical value that open <span class="moz-txt-citetags"></span>standards and open source software can contribute and the underlying <span class="moz-txt-citetags"></span>political reasons for making it the preferred option for government <span class="moz-txt-citetags"></span>information processing. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>Thus a lot of the work for the next few years will <span class="moz-txt-citetags"></span>be communicating these ideas to civil servants (be the<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>y IT <span class="moz-txt-citetags"></span>professionals or managers who have other jobs). The policy helps a lot <span class="moz-txt-citetags"></span>because it puts some serious weight behind the whole process. The fact <span class="moz-txt-citetags"></span>that government organisations have to support Open Document Format for <span class="moz-txt-citetags"></span>instance significantly heightens their interest in the technical <span class="moz-txt-citetags"></span>subject matter!<span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span>So the policy gives the drive needed to get things moving and now it <span class="moz-txt-citetags"></span>is up to us to communicate the how and the why in a way that is <span class="moz-txt-citetags"></span>understandable for people who are new to these concepts. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span>I have no doubt it will be a long process, we have over 20 years of <span class="moz-txt-citetags"></span>proprietary legacy built up in our public institutions. Replacing <span class="moz-txt-citetags"></span>those systems with open alternatives will take many years. All the <span class="moz-txt-citetags"></span>greater a reason to proceed with some urgency. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>The complete policy document has been translated into English and <span class="moz-txt-citetags"></span>released under Creative Commons Licence:<br /><span class="moz-txt-citetags"></span><a class="moz-txt-link-freetext" href="http://appz.ez.nl/publicaties/pdfs/07ET15.pdf">http://appz.ez.nl/publicaties/pdfs/07ET15.pdf</a> <span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span><br /><span class="moz-txt-citetags"></span>In December 2007 I gave a talk in Berlin. Here a summary, slides and <span class="moz-txt-citetags"></span>video are available:<br /><span class="moz-txt-citetags"></span><a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2387.en.html">http://events.ccc.de/congress/2007/Fahrplan/events/2387.en.html</a> <a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a><span class="moz-txt-citetags"></span></p>
<p> <strong>CIS: What can a country like India learn from the Dutch <span class="moz-txt-citetags"></span>government's e<span class="moz-txt-citetags"></span>xperience in eGovernance and ICT in Education?</strong></p>
<p><span class="moz-txt-citetags"> </span><strong>AK:</strong> I am not familiar with the Indian political process but these are some <span class="moz-txt-citetags"></span>of my lessons learned: </p>
<p>- The government will not do anything unless constant <span class="moz-txt-citetags"></span>and significant pressure is applied by citizens. Politicians and civil <span class="moz-txt-citetags"></span>servants only act if the pain of acting is less than the pain of not <span class="moz-txt-citetags"></span>acting. Change is achieved by citizens standing up and working on <span class="moz-txt-citetags"></span>these problems without guarantee of any reward or even achieving any <span class="moz-txt-citetags"></span>results (it took us five years to get from a unanimous vote <span class="moz-txt-citetags"></span>in parliament to an actual policy). <span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span><span class="moz-txt-citetags"></span>- Big IT companies may be your friend or your enemy. But even if they <span class="moz-txt-citetags"></span>are your friends they generally will not be at the forefront of <span class="moz-txt-citetags"></span>political action that could be seen as controversial. Once policies <span class="moz-txt-citetags"></span>are pushed beyond the co<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>ntroversial stage and have been adopted as <span class="moz-txt-citetags"></span>official policy some of them will support it. Others, with much to <span class="moz-txt-citetags"></span>lose, will fight you and the policy every step of the way. The more <span class="moz-txt-citetags"></span>money or loss of market share is involved the more radical the methods <span class="moz-txt-citetags"></span>that are employed. Massive lobbying, applying political pressure <span class="moz-txt-citetags"></span>through foreign governments, bribery and all kinds of other activities <span class="moz-txt-citetags"></span>are well-funded, well organised and very common. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span>- In moving forward with these policies it's the lack of knowledge and <span class="moz-txt-citetags"></span>vision with the the management of institutions that is by far the <span class="moz-txt-citetags"></span>biggest bottleneck. Without a clear policy from the top it is <span class="moz-txt-citetags"></span>impossible to get things moving in most organisations.<span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>- Another big problem in switching over local governments and other <span class="moz-txt-citetags"></span>smaller organisations is the fact that many of the advantages of such <span class="moz-txt-citetags"></span>a switch is national and/or macro-economic in nature while the initial <span class="moz-txt-citetags"></span>cost and risk is micro-economic in nature. Hence again the need for a <span class="moz-txt-citetags"></span>national policy. </p>
<p>- The funding required to make significant improvements is often not <span class="moz-txt-citetags"></span>that large compared to the existing operational budgets. Investing in <span class="moz-txt-citetags"></span>the smart use of IT in education for instance is something that can <span class="moz-txt-citetags"></span>pay for itself very quickly. This is generally also true for adoption <span class="moz-txt-citetags"></span>of open source and open standards in general. By just reducing the <span class="moz-txt-citetags"></span>yearly spend on software licences by 1% the entire government program <span class="moz-txt-citetags"></span>can be funded. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span>- Simply stopping the procurement of new licences (while continuing <span class="moz-txt-citetags"></span>the use of those already paid for) can often free up enough money to <span class="moz-txt-citetags"></span>finance a migration process. This has been the case in the city of <span class="moz-txt-citetags"></span>Amsterdam and the French Gendarmes. <span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span>- The actual value of better government services or education is hard <span class="moz-txt-citetags"></span>to quantify in monetary terms. H<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>ow do we value improved <span class="moz-txt-citetags"></span>responsiveness, transparency, national sovereignty in information <span class="moz-txt-citetags"></span>processing and supporting local service companies instead of foreign <span class="moz-txt-citetags"></span>software companies? <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span>- IT education should focus on understanding methods and principles, <span class="moz-txt-citetags"></span>not products. The product life-cycle is 18-36 months, the educational <span class="moz-txt-citetags"></span>process takes many years and the length of a career is decades. Any <span class="moz-txt-citetags"></span>education with a focus on products leads to knowledge that is <span class="moz-txt-citetags"></span>irrelevant by the time the degree is finished. Teach people to drive a <span class="moz-txt-citetags"></span>car, not just a Volkswagen or Tata. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>- The cost of physical books per student per year in the Netherlands <span class="moz-txt-citetags"></span>is now greater that the cost of a laptop. This is insane since the <span class="moz-txt-citetags"></span>content of those books is generally written by teachers who get paid <span class="moz-txt-citetags"></span>very little for it. Using the funds to pay those teachers instad of <span class="moz-txt-citetags"></span>the publishers and releasing the content under a free licence will <span class="moz-txt-citetags"></span>free up resources to develop better educational programs and provide <span class="moz-txt-citetags"></span>all students with computational tools to use them. All without <span class="moz-txt-citetags"></span>increasing the total cost compared to our current situation. The <span class="moz-txt-citetags"></span>financial numbers will be different for India but the <span class="moz-txt-citetags"></span>basic principle is the same and works even better given the larger <span class="moz-txt-citetags"></span>scale of India. The cost of producing and distributing electronic <span class="moz-txt-citetags"></span>educational content will drop practically to zero when compared to <span class="moz-txt-citetags"></span>physical on a per-student basis. Using funds to support teachers in <span class="moz-txt-citetags"></span>the use of e-learning with open content is the way forward. <span class="moz-txt-citetags"></span><a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a></p>
<p><span class="moz-txt-citetags"> </span> <strong>CIS: How can a local support environment for open technologies be <span class="moz-txt-citetags"></span>created? Can local SMEs ever substitute for the transnational <span class="moz-txt-citetags"></span>proprietary giants?</strong><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span><strong>AK: </strong>Whether SMEs can supplant multinationals depends on the product being <span class="moz-txt-citetags"></span>replaced. CPU manufacturing requires a very high upfront investment in <span class="moz-txt-citetags"></span>R&D and manufacturing capability. This is usually far beyond any but a <span class="moz-txt-citetags"></span>handful of companies. With software development and services things <span class="moz-txt-citetags"></span>are very different. Software development only requires a human with <span class="moz-txt-citetags"></span>programming skills, a good idea and a computer. The Free Software <span class="moz-txt-citetags"></span>Movement has shown clearly that distributed methods of software <span class="moz-txt-citetags"></span>development can lead to high quality products with excellent local <span class="moz-txt-citetags"></span>support systems. Local organisations (or communities that are not even <span class="moz-txt-citetags"></span>organisations) can often understand local needs and respond to local <span class="moz-txt-citetags"></span>changes much better, faster and cheaper than large, lumbering <span class="moz-txt-citetags"></span>corporations. If local organisations work together globally to share <span class="moz-txt-citetags"></span>knowledge (and code) for those parts they all need they can beat any <span class="moz-txt-citetags"></span>centralised system. <span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span>What many senior business and government leaders are struggling with <span class="moz-txt-citetags"></span>is the realisation that many of the 'truths' they have learned while <span class="moz-txt-citetags"></span>studying economics or business management or some such subject turn out to be <span class="moz-txt-citetags"></span>empirically incorrect. For example: it has become clear there is no <span class="moz-txt-citetags"></span>causal relationship between the cost of software and its quality or <span class="moz-txt-citetags"></span>utility. This must be a fact that is difficult to truly understand and <span class="moz-txt-citetags"></span>accept if you have been brought up believing the gospel of the <span class="moz-txt-citetags"></span>Anglo-Saxon economic worldview. The current economic crisis is a great <span class="moz-txt-citetags"></span>help in questioning some of those beliefs and opens up room for new <span class="moz-txt-citetags"></span>ideas about economic vs. societal value of technology and its <span class="moz-txt-citetags"></span>relationship to<a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a> businesses trying to earn a living. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span> <strong>CIS: Could you tell us about the Dutch government's rollback on <span class="moz-txt-citetags"></span>electronic voting machines? What is your opinion on the use<span class="moz-txt-citetags"> </span>of <span class="moz-txt-citetags"></span>electronic voting machines in the upcoming elections in <span class="moz-txt-citetags"></span>India?<span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></strong></p>
<p><strong>AK: </strong>From the mid '80s onward, voting computers were introduced in the <span class="moz-txt-citetags"></span>Netherlands. By 2006, the vast majority of all elections were being <span class="moz-txt-citetags"></span>performed by proprietary computer systems. Citizens would press a <span class="moz-txt-citetags"></span>button and then go home to watch TV. Some software that no-one could <span class="moz-txt-citetags"></span>control, monitor or properly audit would spit out a result and that <span class="moz-txt-citetags"></span>would be it -- new government. Only a handful of engineers (all working <span class="moz-txt-citetags"></span>for the companies that made the voting computers) actually knew what <span class="moz-txt-citetags"></span>the software did and could make the computer system say anything they <span class="moz-txt-citetags"></span>wanted. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>When the city of Amsterdam (the last holdout using paper ballots) <span class="moz-txt-citetags"></span>announced in 2006 that it was moving to voting computers, a group of <span class="moz-txt-citetags"></span>activists organised a campaign to ban voting computers. We felt that <span class="moz-txt-citetags"></span>the very nature of democracy was under attack by running the election <span class="moz-txt-citetags"></span>process in a way that makes it impossible for ordinary citizens to <span class="moz-txt-citetags"></span>check the validity of the election. It also makes fraud a lot harder <span class="moz-txt-citetags"></span>to detect. Detectability of fraud is the one of the primary properties <span class="moz-txt-citetags"></span>any election process should have. We all know election fraud is also <span class="moz-txt-citetags"></span>possible with non-electronic means but keeping it a secret is much <span class="moz-txt-citetags"></span>harder in such cases (as we saw in the US and Zimbabwean election over <span class="moz-txt-citetags"></span>the last years). There was a actual case of suspected voter fraud in a <span class="moz-txt-citetags"></span>Dutch municipal election and the judge concluded that while the fraud <span class="moz-txt-citetags"></span>seemed likely it could not be proven. Regrettably for the suspected <span class="moz-txt-citetags"></span>council member the fraud could also not be disproven. This <a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html"><span class="moz-txt-citetags"></span></a>shows very <span class="moz-txt-citetags"></span>clearly that such a method is wholly unsuitable for application in <span class="moz-txt-citetags"></span>real democratic processes. <span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span>Through lots of media attention, a few spectacular hacks showing the <span class="moz-txt-citetags"></span>technical insecurity of the systems, and legal pressure, we forced the <span class="moz-txt-citetags"></span>government in 2007 to reverse the approval of the voting computers and <span class="moz-txt-citetags"></span>go back to an all-paper balloting system. This reversal is part of a <span class="moz-txt-citetags"></span>global backlash against electronic voting systems. Comparable changes <span class="moz-txt-citetags"></span>have been going on in many US states and all over Europe. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>I think India should have voting process that can be understood and <span class="moz-txt-citetags"></span>monitored by its citizens. This understanding and monitoring should be <span class="moz-txt-citetags"></span>possible without requiring advanced degrees in computer science, <span class="moz-txt-citetags"></span>software engineering and electronics. The only way to have such a <span class="moz-txt-citetags"></span>process is when there is a paper ballot involved. Such a ballot could <span class="moz-txt-citetags"></span>be printed by a computer to increase the ease of use but <span class="moz-txt-citetags"></span>all-electronic solutions are ruled out by the basic demands of what a <span class="moz-txt-citetags"></span>democracy is. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>India should move to either all paper systems or voting computer <span class="moz-txt-citetags"></span>backed-up by a voter-verified paper trail. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>Are more extensive telling of the tale can be found here:<span class="moz-txt-citetags"> </span><a class="moz-txt-link-freetext" href="http://wijvertrouwenstemcomputersniet.nl/English">http://wijvertrouwenstemcomputersniet.nl/English</a> <span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span>This is a link to the Berlin CCC conference of Rop Gongrijp's 2007 <span class="moz-txt-citetags"></span>presentation (with video): <span class="moz-txt-citetags"></span><a class="moz-txt-link-freetext" href="http://events.ccc.de/congress/2007/Fahrplan/events/2342.en.html">http://event<span class="moz-txt-citetags"></span>s.ccc.de/congress/2007/Fahrplan/events/2342.en.html</a> <span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span><span class="moz-txt-citetags"></span><a class="moz-txt-link-freetext" href="http://www.blackboxvoting.org/">http://www.blackboxvoting.org</a> has a wealth of information on this subject. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"> </span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span><strong>CIS: What are the services provided by Gendo? Could you describe <span class="moz-txt-citetags"></span>some <span class="moz-txt-citetags"></span>of the projects that you have undertaken?</strong><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span><strong>AK:</strong> My company (gendo.nl) also provides consulting services in the area of <span class="moz-txt-citetags"></span>IT strategy, development of open IT architectures and implementing <span class="moz-txt-citetags"></span>those in mixed open source/proprietary environments. We are currently <span class="moz-txt-citetags"></span>advising both national and local government organisations in the <span class="moz-txt-citetags"></span>implementation of policies and plans to move to open standards and <span class="moz-txt-citetags"></span>open source software. We are also involved in projects where we do the <span class="moz-txt-citetags"></span>actual development and implementation of new systems to enable <span class="moz-txt-citetags"></span>innovation and lessen the dependance of our client on proprietary <span class="moz-txt-citetags"></span>systems. Currently we are involved with a healthcare organisation <span class="moz-txt-citetags"></span>where we are assisting in re-architecting their entire IT environment <span class="moz-txt-citetags"></span>to allow service innovation, lower cost and increase information <span class="moz-txt-citetags"></span>security. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>We have also been involved in information security work and other <span class="moz-txt-citetags"></span>auditing in the financial services and government sector. Here our <span class="moz-txt-citetags"></span>activities focus on the grey area between technology and process. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span>Outside the field of IT we also do other consulting work such as <span class="moz-txt-citetags"></span>scenario planning and strategic future studies, mostly for large <span class="moz-txt-citetags"></span>corporate clients. Most of the big Anglo-Dutch multinationals such as <span class="moz-txt-citetags"></span>Shell or Unilever are on our client list. We also have a large number <span class="moz-txt-citetags"></span>of clients in the financial services and insurance sector. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"> </span>For all of these clients we organise presentations and brainstorming <span class="moz-txt-citetags"></span>sessions, often preceded by research. This helps the leaders in those <span class="moz-txt-citetags"></span>organisations think about the nature of rapid, technology-driven <span class="moz-txt-citetags"></span>changes in their markets and the world in general. These insights are <span class="moz-txt-citetags"></span>then translated into new products, services and ways of delivering <span class="moz-txt-citetags"></span>them. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>Forgive me if this all sounds a bit vague but with many of these <span class="moz-txt-citetags"></span>clients there is some confidentiality agreement involved. <br /><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span><strong>CIS: Could you tell us more about yourself? Maybe you would like <span class="moz-txt-citetags"></span>to <span class="moz-txt-citetags"></span>share some formative experiences.</strong><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span></p>
<p><span class="moz-txt-citetags"></span><strong>AK:</strong> Writing my first paper on black holes at age 11 showed me that <span class="moz-txt-citetags"></span>grown-ups usually also don't know what is going on in the universe <span class="moz-txt-citetags"></span>either. Despite rumours to the contrary parents, teachers, senior <span class="moz-txt-citetags"></span>managers and politicians are not all-knowing and are stumbling about <span class="moz-txt-citetags"></span>just like most two-year-olds where complex issues are concerned. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"> </span>Over the last quarter century I've had this intuition reconfirmed <span class="moz-txt-citetags"></span>again and again. In a world that is changing faster and faster <span class="moz-txt-citetags"></span>experience becomes obsolete rather quickly and wisdom is no longer the <span class="moz-txt-citetags"></span>sole purview of older, m<span class="moz-txt-citetags"></span>ore senior, people. We need young smart-asses <span class="moz-txt-citetags"></span>who have not yet learned what is impossible, so they go out there and <span class="moz-txt-citetags"></span>do it. <span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"></span><span class="moz-txt-citetags"><br /></span></p>
<p><span class="moz-txt-citetags"></span>-----</p>
<span class="visualHighlight">Arjen Kamphuis (born 1972) studied Science & Policy at Utrecht University and worked for IBM as Unix specialist, Tivoli consultant and software instructor. As IT-strategy consultant at Twynstra Gudde he was involved in starting up Kennisnet, the Dutch educational network. Since 2001 he is operating as an independent adviser of companies and governments. He co-authored, in 2002, a motion in parliament that ultimately turned, in 2007, into a full-fledged policy of the Dutch government mandating the use of open source software in all government and public sector IT operations. <br /><br />Arjen at present divides his attention between IT-policy and the convergence of IT, biotechnology and nanotechnology and its social and economic implications. His customers include: Shell, Unilever, Pfizer, Stork, and various hospitals, governmental institutions and insurance companies. Arjen guest lectures on technology policy at various universities and colleges. <br /><br />When not consulting Arjen is actively involved in (digital) civil liberties, the open source movement and criticizing the war on terror.</span>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/blog-old/an-interview-with-arjen-kamphuis'>http://editors.cis-india.org/openness/blog-old/an-interview-with-arjen-kamphuis</a>
</p>
No publishersachiaInterviewOpen StandardsFLOSSIntellectual Property Rights2011-08-18T05:01:53ZBlog EntryThe 'Dark Fibre' Files: Interview with Jamie King and Peter Mann
http://editors.cis-india.org/a2k/blogs/dark-fibre-files
<b>Film-makers Jamie King (producer/director of the 'Steal This Film' series) and Peter Mann, in conversation with Siddharth Chadha, on 'Dark Fibre', their latest production, being filmed in Bangalore</b>
<p>'Dark Fibre' is a documentary/fiction hybrid by J. J. King, producer/director of the 'Steal This Film' series, which has already reached over six million people online and is working towards achieving international television distribution, and Peter Mann, a British film-maker whose most recent work is titled 'Sargy Mann'.</p>
<p>'Dark Fibre' is set amongst the cablewallahs of Bangalore, and uses the device of cabling to traverse different aspects of informational life in the city. It follows the lives of real cablewallahs and examines the political status of their activities.The fictional elements arrive in the form of a young apprentice cablewallah who attempts to unite the disparate home-brew networks in the city into a grassroots, horizontal 'people's network'. Some support the activity and some vehemently oppose it -- but what no one expects is the emergence of a seditious, unlicensed and anonymous new channel which begins to transform people's imaginations in the city. Our young cable apprentice is tasked with tracking down the channel, as powerful political forces array themselves against it. Not only the 'security' of the city, but his own wellbeing depend on whether he finds it, and whether it proves possible to stop its distribution. Meanwhile, mysterious elements from outside India -- possibly emissaries of a still-greater power -- are appearing on the scene. This quest for the unknown channel is reminiscent of a modern-day 'Moby Dick', with the city of Bangalore as the high seas and our cable apprentice a reluctant Ahab. The action is a combination of verite, improvisation and scripted action.</p>
<h3>In conversation with Jamie and Peter in Bangalore</h3>
<p><strong>Q: How did you get the idea to make Dark Fibre, a fiction film?</strong></p>
<strong></strong>
<p><strong>Peter: </strong></p>
<strong></strong>
<p>We first met through BritDoc--British Documentary--and they run Channel 4 which is a Film Foundation. They have been good to us. They funded both Steal This Film and 'Sargy Mann'--a film on my father who is a blind man. They organised a meeting of all the directors they had funded and we met there. We were both thinking about what to do next and felt frustrated because we were making documentaries but really wanted to make fiction. We both shared the same ideas, with regard to shooting something completely as it is but presenting it in a fictional context.</p>
<p><strong>Jamie:</strong></p>
<strong></strong>
<p>And furthermore, we agreed that documentaries are not really real life. Because at the end of the day, I will keep only what I like, make you look at the way I want you to, I would cut you out of the picture if I don't agree with you. This happens even with the most worthy of the films. And you can be more truthful in fiction because its always a subjective truth. Fiction allows things to remain more real. I don't need an argument in the film. If I can just say, here is one guy's story and this is his story, then you can see the city with no bullshit. The story would allow you to look at things as they are; it's partly that idea behind Dark Fibre.</p>
<strong>Peter:<br /><br /></strong>
<p>This is in some way related to the concept of the artistic truth. You use all the tools at your disposal to tell a story, not just literal facts. This is about presenting things within an atmosphere, presenting things in a context. This then adds up to someone understanding something about the world, and I think fiction serves that better than documentary.</p>
<p><strong>Q: What brings you to India to make Dark Fibre?</strong> </p>
<strong>Jamie:<br /><br /></strong>
<p>I think the cablewallah networks are unique. I have never seen anything like this anywhere else myself. India is also in a very, very interesting time and place. The idea of information as a commodity is alive here as it isn't in many other places. The value of information is very high here. There is a western imaginary of Bangalore which is immediately fascinating. It's the place where our information is processed. This is where our credit card and our phone data goes. And it enters a weird black market that we don't understand. This is the cliché. We already have cliché films about Bombay and call centers. We do not want to put a call center into the film because that is already the imagined cliché vision of Bangalore. It is obviously far more sophisticated than that. And in some ways it is far patchier than that. Who are these information workers? What are they doing and at which level are they doing it? Are they the street workers putting cables into walls or is it the guy at Infosys who is hiring people and teaching them to fake English accents? Which is the real information worker? That variegation of information life in Bangalore is interesting, not just to us, but, I think, to everybody. Information dexterity is perceived as the signature of Northern dominance. The ability to manipulate information, to move intellectual property, to transform an idea into a product, to transform someone else's idea into your property. That kind of dexterity is seen as the keynote of western dominance. And watching a developing country transform into an information dextrous economy, seeing information dextrous people is amazing. And then there is the patchiness of it--who gets left behind? Who gets included? Whats missed out and what is added in that vision? How is it manipulated in favor of big businesses? And all of this is fascinating not only from an orientalist's point of view but from a general economic-socio-political point of view.</p>
<p><strong>Q: What is the underlying concept that brought about Dark Fibre?</strong><br /><strong><br />Jamie:</strong><br /> <br />While making 'Steal This Film' we spent a year on a 36 minute film trying to make an argument that would be staunch, impactful, and radical. What we learned is that it's very difficult to set out to argue your way to the truth. It's relatively easier to let the world itself speak and in the meanwhile observe it in detail. The kind of issues we are engaging with in Dark Fibre are around people's relationships with information and their relationship with freedom. These are very, very hard to nail down and speak about in a radical way. These are things left to the Intellectual Property lawyers, it's already happening, it's already cliché. All the arguments are already written. And even after a year of Steal This Film, it's shown in liberal universities – Wait! Liberal universities? I was supposed to be an anarchist! We want to go further. We want to tell people things through an image.</p>
<strong></strong>
<p><strong>Peter:</strong></p>
<p>Our idea of relationships is exploring the parallel physical communications networks and the virtual networks. In a city like Bangalore you see it. The traffic here is chaotic but it works. How? There is no answer to that. But it provokes questions. Through Dark Fibre, we are trying to say that there is a potential network in the city (cablewallahs) which is currently being unused and asking what it would take to unlock that potential and where would it take us if that really happens.</p>
<p><strong>Q: Why the cablewallahs? What is so fascinating about them?</strong><br /> <br /><strong>Jamie: </strong><br /> <br />Yes, we are interested in the cablewallah network and I think it's quite perverse that it makes people from around here laugh. You see cablewallahs as a fact of life, probably a mundane fact of life. Westerners, Europeans, who are used to orderly deployments of information technology are completely blown away when you tell them that this is how it works in India. Ad hoc, grassroots, messy, out of control.</p>
<strong><br />Peter:<br /><br /></strong>
<p>To the West, it is just unthinkable that the government would allow something like these networks, which supply 24 hours television. To not have these under government control is unthinkable.</p>
<strong>Jamie:<br /><br /></strong>
<p>So, obviously, we are at a point of transition where it's unthinkable to the Global North and it would become unthinkable here too. We are in the middle of that shift and thats one of the things we are trying to document; the network form, which is horizontal, ad hoc and on the street, becomes not only regulated but seditious.</p>
<strong>Q: Why would you call it seditious?</strong><strong><br /><br />Jamie: <br /><br /></strong>
<p>Because it begins to be seen as almost dangerous. As the regulators move in, they take Direct to Home control of all the deployments of their intellectual properties. The older networks start to look not only like intellectual property right infringements, but their disorder is also seen to be terrorist.</p>
<strong>Q: What is the film trying to propose through linking these cablewallah networks?</strong>
<p> </p>
<strong>Jamie:<br /><br /></strong>
<p>Our proposal in this film is - "What if instead of just dying peacefully, someone had the idea of transforming these networks that used to deliver international and local content, by connecting them together, and turning them in to massive local media networks which are used for media sharing, file sharing, your own local channel?" There is a potential because the network is already there.</p>
<strong>Peter:<br /><br /></strong>
<p>In a way, if you think about the microcosm idea of the Internet as a whole, that essentially is what our plot is. On a certain level you would say that it's just a network but then the internet is the most important driving force of the world today.</p>
<p><strong>Jamie:</strong></p>
<strong></strong>
<p>The point is that once this idea is out, we can create the infrastructure to connect the entire city, infrastructure we can all use. Everyone starts to have a stake in it, be it the newspapers, TV channels, pirate markets (they will say, "No one is buying our shit anymore because they can share it over the network"), the computer manufacturers, the importer of Chinese routers, a gangster who thinks he can advertise on the network, the intellectual property lawyer... different people start getting the idea that they might have something to do with this network. Basically this is a chaos scenario, from which arises the plot. It is a fictional scenario but is set in the reality of information sharing here today.</p>
<p><strong>Q: What is the technique you use to make the plot hybrid fictional?</strong><br /> <br /><strong>Jamie:</strong><br /><br />The main character is played by an actor and he will be an embedded actor, working with the real cablewallah. Parts of it will be documentary, seeing how the cablewallah works and the viewer, through watching this actor, will understand how the network works. We have already spoken to some cablewallahs. And they have been very happy about all this. We see this as sort of embedded journalism, where the embedded actor takes the place of an interviewer. The film is not going to be historical. The characters will have a background and the film is going to have a background, but what we are trying to do is show the 'now'. We want to make it speak about the past and speak about the future. About our future.</p>
<p><strong>Q: 'Steal This Film' was a critique of the international intellectual property regimes. Would this film also be similarly advocative?</strong><br /> <br /><strong>Jamie:</strong><br /><br />We are going to the next level from 'Steal This Film', and this is more of my argument than Peter's -- that the conversation about Intellectual Propery is over or the film is the last word at all. But I personally need to go somewhere else to say more. I am interested in information in general. And how information affects what we can think, what we can dream, what we can be, how it forms all of us -- that is what we are working on in 'Dark Fibre' and the question of intellectual property is a subset of that question. We spend a lot of time talking about ideas and that's one of the things that connects us. We want to articulate a lot of the philosophical, abstract ideas in this film. And we will see if we can manage to do it in a new context. 'Steal This Film' interested a few people and this will be the next point of departure for discussion.</p>
<p><strong>Q: Peter, do you share Jamie's passion for Intellectual Property?</strong><br /> <br /><strong>Peter:</strong><br /><br />Not in the same way. I am very interested in the subject. Anybody who creates work is interested in it. In my last film, there is a constant commentary of a test match going on and as a result of it, it is almost impossible to sell it to television; people who own the rights to the cricket say that we have to pay them thousands of pounds! I am interested in documenting the world as it is and not what is cleaned up for TV. I am interested in the specifics. If you get on a bus in London, the ringtone everyone has on a mobile phone is not a ringtone but a particular song. But you can't put that on film because Mick Jagger, or whoever the artiste is, will want ten thousand pounds for it. The frustration that I face is that it is impossible to put the world that I see in front of me on film. I used to work with TV commercials and you would never see anything in commercials that is not the product being sold. I was once working on a Coca Cola commercial in New York and there was a person who was appointed by Coca Cola to go around the whole set to ensure that no one is drinking anything that is not made by Coca Cola, whether that is water or juice. Anything. And I think all that is about creating a creased world that we don't live in. I am interested in the world, through documentaries or fiction, that we live in. And it is bits of music, it is referenced films, we reference music, we reference sport. Just because people have rights over these, you never see them on film. That is my main area of interest, more than what is happening on the legal front.</p>
<p><img class="image-inline image-inline" src="uploads/stf.jpg/image_preview" alt="stf" height="400" width="284" /> <img class="image-inline image-inline" src="uploads/copy_of_steal_this_film_2.jpg/image_preview" alt="steal this film" height="400" width="280" /></p>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dark-fibre-files'>http://editors.cis-india.org/a2k/blogs/dark-fibre-files</a>
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No publishersiddharthhistories of internet in Indiainternet and societyDigital AccessIntellectual Property RightsYouTubeart and interventionPiracyOpen Accessinnovationdigital artists2011-08-04T04:41:31ZBlog EntryScreening of Pixel Pirate II: Attack of the Astro Elvis Video Clone
http://editors.cis-india.org/events/screening-of-pixel-pirate-ii-attack-of-the-astro-elvis-video-clone
<b>Artists Soda_Jerk will lead discussions after the screening of their narrative remix video Pixel Pirate II, a film that questions the current state of intellectual property laws (and is composed only of samples).</b>
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<div align="center"><img class="image-inline" src="../upload/PixelPirateII-02.jpg/image_preview" alt="Pixel Pirate II - Still 2" height="223" width="290" /></div>
<br />Soda_Jerk (Dan & Dominique Angeloro) are two Sydney-based artists working collaboratively in the areas of video, photomedia and installation. They work exclusively with found material, recombining fragments of film footage, audio samples and vintage image culture to create new works.</div>
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<p>Their hour-long narrative remix video "Pixel Pirate II: Attack of the Astro Elvis Video Clone" (2002-06) is a critique of intellectual property law that is constructed from samples pirated from over 300 film and music sources. Think of it as a sci-fi/ biblical epic/ romance/ action movie that stars Elvis Presley, Moses, the Hulk, Michael Jackson, Jesus, Batman and the Ghostbusters. Since its 2006 launch at the Art Gallery of New South Wales, Sydney it has screened internationally in the Czech Republic, Germany, Scotland, the Netherlands, Mexico and India.
Soda_Jerk will discuss the process and cultural context of their video remix practice and screen 'Pixel Pirate II' along with other excerpts from their work.</p>
For more information about Soda_Jerk, and about Pixel Pirate II, please visit: <a class="external-link" href="http://www.sodajerk.com.au">http://www.sodajerk.com.au</a> and <a class="external-link" href="http://www.pixelpirate2.com">http://www.pixelpirate2.com</a>.
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For more details visit <a href='http://editors.cis-india.org/events/screening-of-pixel-pirate-ii-attack-of-the-astro-elvis-video-clone'>http://editors.cis-india.org/events/screening-of-pixel-pirate-ii-attack-of-the-astro-elvis-video-clone</a>
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No publisherpraneshIntellectual Property Rights2011-04-05T04:41:30ZEventLecture by Eben Moglen and Mishi Choudhary
http://editors.cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary
<b>The Software Freedom Law Center, National Law School, and the Centre for Internet and Society organised a lecture by Mishi Choudhary and Eben Moglen for students of NLS on Saturday, December 13, 2008.</b>
<p>Saturday, December 13, 2008 had Mishi Choudhary and Eben Moglen of the New York-based Software Freedom Law Center speaking to the students of the National Law School of India University in Nagarbhavi, Bangalore, in a talk organized by CIS.<br /><br />Mishi Choudhary, who will head the Software Freedom Law Center in New Delhi, spoke on "Globalising Public Interest Law: The SFLC Model". She told the students about the importance of non-profit legal work as well as its viability as a career choice. She also laid out the background to the work that SFLC does, and traced a brief history of software patent cases <br /><br />Eben Moglen chose to speak on "Who Killed Intellectual Property and Why We Did It?". He started off by talking of the interconnections between law and societal change: how law can't keep pace with the changes we see around us, and how law actually sometimes changes in the reverse direction, while trying to maintain the status quo. <br /><br />This is not a new phenomenon, he noted, and that when law is responsive to anybody, it listens to the 'people of the past' more carefully than the 'people of the future'. This, he says, is compounded by the fact that the primary mode of change in the law is not legislation (since there is nothing legislators hate more than legislating), and that the better lawyers usually represent only those who can afford to pay them, hence resulting in systemic injustice. He emphasised that the clients of the SFLC, on the other hand, are people who create software worth billions of dollars, but who do not own it.<br /><br />On that point of creation for the purpose of sharing and not owning, a student raised the question of why proprietary rights shouldn't exist in creations of the intellect. In response Mr. Moglen pointed out that while his personal opinions might be different, the Software Freedom Law Center does not seek to bring into dispute the concept of property rights in software, nor the fundamentals of patent law: it is merely concerned with the scope of patent law, and seeks a literal enforcement of patent law as it exists in most jurisdictions.<br /><br />Another question that cropped up was on the economics of software creation and the anti-competitive nature of free software. To this, Mr. Moglen provided a brief summary of the tragedy of the anticommons by using land to be acquired for public works in the centre of a city as an example. In software, this problem is only exacerbated, he pointed out. Most physical creations over which patents are granted have something like 8 or 10 steps. Software code is different because it contains thousands of instructions. Even big companies face the anticommons problem; but they manage to evade it by cross-licensing agreements which results in efficient transactions for them since it involves no exchange of money whatsoever. Small companies are in a worse situation, since they don't have those kinds of patent portfolios to be able to enter into cross-licensing agreements, no matter how innovative they are. Thus, in effect, the system is rigged against them. This provides a partial answer to the antitrust question, he noted. Competition law is actual in favour of free software. The right to practise a trade or profession, and the right to speech get implicated in any case where a FLOSS-based company is hauled up before a court being accused of conspiring with other to take cost to zero.<br /><br />Mr. Moglen further explained that when it comes to software, the problem of patenting is very different. A 20-year monopoly is more reasonable from the viewpoint of physical creations. Patent law, however doesn't tailor the rights that are granted by a patent. The problem starts right from the process of granting a patent. The job of a patent office being to apply the tests of non-obviousness, novelty and utility, most patent offices can do a reasonable job in most fields of technological endeavour, since there is a large body of innovation with which the proposed patent can be compared. Software, however, is a recent field with a large number of applications coming in all at once. While the patents that are sought might include claims on ideas and applications that existed in software in 1956, those aren't easy for the patent offices to dig up, since the field of software patents and software itself have not existed for the same length of time.</p>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary'>http://editors.cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary</a>
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No publisherpraneshIntellectual Property RightsSoftware PatentsAccess to Knowledge2011-08-23T02:55:59ZBlog Entry