MJM-025 Media Ethics & Laws
Indira Gandhi National Open University School of Journalism and New Media Studies
Block 3 LAWS ON INFORMATION UNIT 9 Intellectual Property Rights 7 UNIT 10 Copyright Law 20 UNIT 11 Cyber Law 32 UNIT 12 Right to Information 44 EXPERTS COMMITTEE Prof. B.P.Sanjay Prof. J.S. Yadav Prof. B.K. Kuthiala Former VC, CUTN; PVC, Former Director, IIMC Former VC, MLCRPV Univ. of Hyderabad, Hyderabad New Delhi Bhopal Prof. G. Ravindran Prof. Kiran Thakur Prof. Usha Raman Head, Department of Former Head, Deptt. of S. N. School of Arts & Communication, University of Communication & Journalism, Communication, University of Madras, Chennai Savitribai Phule Pune University Hyderabad, Hyderabad Mr. Shastri Ramachandran Prof. Iftekhar Ahmed Prof. Jaishri Jethwaney Editor and Columnist Director, MCRC, Jamia Milia Former Head, ADPR, IIMC, New Delhi Islamia, New Delhi New Delhi Prof. Usha Rani Ms Sevanti Ninan Ms Pamela Philipose Former Head, Deptt. of Comm.& Senior Journalist & Founder Senior Journalist and Author, Journalism, Mysore University Editor, The Hoot, New Delhi New Delhi Ms Mahalakshmi Jayaram Prof. Biswajit Das Prof. Gita Bamezai Senior Dy. Editor Director, CCMG, Jamia Milia Head Dept. of Comm. The Hindu, Chennai Islamia, New Delhi Research, IIMC New Delhi Dr. Vipul Mudgal Prof. Madhu Parhar Mr. K. Ravikanth Senior Journalist and Author, Director, STRIDE Director, EMPC New Delhi IGNOU IGNOU Prof. Subhash Dhuliya Prof. Shambhu Nath Singh, Dr. O. P. Dewal Former Director, SOJNMS, Former Director, SOJNMS, Associate Professor IGNOU IGNOU SOJNMS, IGNOU Dr. Kiron Bansal, Associate Dr. K.S. Arul Selvan, Associate Dr. Ramesh Yadav, Assistant Professor, SOJNMS, IGNOU Professor, SOJNMS, IGNOU Professor, SOJNMS, IGNOU Dr. Shikha Rai, Assistant Dr. Amit Kumar, Assistant Ms. Padmini Jain, Assistant Professor, SOJNMS, IGNOU Professor, SOJNMS, IGNOU Professor, SOJNMS, IGNOU
PROGRAMME COORDINATORS: DR. KIRON BANSAL, MA(JMC) DR. SHIKHA RAI (PGJMC)
COURSE COORDINATOR: DR. KIRON BANSAL BLOCK PREPARATION TEAM Unit 9, Dr. Sukriti Singh Content Editor 10&12 CAO, Live Law.in Prof. Santosh Kumar Tewari (Retd.) School of Jabalpur Mass Communication and Media Technologies Central University of Jharkhand, Ranchi Unit 11 Dr. Gurmeet Kaur Assistant Professor Block Editor School of Law Dr. Kiron Bansal IGNOU, New Delhi Associate Professor SOJNMS, IGNOU PRODUCTION TEAM Mr. K.N. Mohanan Mr. Sumati Nair Asst. Registrar (Publication) Section Officer (Publication) MPDD, IGNOU, New Delhi MPDD, IGNOU, New Delhi January, 2020 Indira Gandhi National Open University, 2020 ISBN: All rights reserved. No part of this work may be reproduced in any form, by mimeograph or any other means, without permission in writing from the Indira Gandhi National Open University. Further information on the Indira Gandhi National Open University courses may be obtained from the University's office at Maidan Garhi, New Delhi. Printed and published on behalf of the Indira Gandhi National Open University, New Delhi by the Registrar, MPDD, IGNOU, New Delhi. Laser Typeset by Tessa Media & Computers, C-206, A.F.E.-II, Okhla, New Delhi. Printed at: BLOCK INTRODUCTION: LAWS ON INFORMATION
Block 3 of the Course MJM-025 Media Ethics and Laws deals with four important laws on information - Intellectual Property Rights, Copyright Law, Cyber Law and the Right to Information. Some of these laws have been touched upon elsewhere in this course; this Block explains each law in detail highlighting their need, importance and significance in the present media context. In an increasingly globalised world, a good understanding of these laws of information is imperative for the students of journalism and mass communication.
Unit 9: Intellectual Property Rights provides an overview of various aspects of Intellectual Property Rights (IPR). It describes the evolution and growth of IPR; explains the important components under the IPR regime and enumerates the various legislations for IPR.
Unit 10: Copyright Law defines copyright and describes its basic features. It explains the procedure for registration of copyright and discusses the term of copyright for different subject matters. The unit outlines the acts which constitute infringement and analyses the remedies against the infringement of copyright.
Unit 11: Cyber Law acquaints you with the law regulating cyberspace in India. It explains the concept of cyberspace and discusses the need for regulation of cyberspace. Further, it outlines various issues pertaining to cyberspace; cyber crimes and offences under the Information Technology Act.
Unit 12: Right to Information describes the historical evolution of the Right to Information in India and explains various provisions of the Act in detail. It analyses the impact of RTI and examines the issues related to the implementation of RTI in India.
We hope that after studying this Block you will have a good understanding of various aspects of intellectual property rights, copyright, cyber law and the right to information. If you find these laws slightly complex, you may go back and refer to the units for a better understanding of the subject. 4 UNIT 9 INTELLECTUAL PROPERTY RIGHTS
Structure 9.0 Introduction 9.1 Learning Outcomes 9.2 Concept, Nature and Scope of IPR 9.2.1 Definition of IPR 9.2.2 Importance of IPR 9.2.3 Scope of IPR 9.3 Evolution and Growth of IPR 9.3.1 Paris Convention 9.3.2 Berne Convention 9.3.3 General Agreement on Tariffs and Trade (GATT) 9.3.4 Rome Convention 9.4 World IP Organisation 9.4.1 Objectives of WIPO 9.4.2 Programmes and Activities of WIPO 9.5 Emergence of New Trading System 9.5.1 WTO 9.5.2 TRIPS 9.6 Components of IPR 9.6.1 Patent 9.6.2 Trade Mark 9.6.3 Copyright 9.3.4 Geographical Indication 9.6.5 Industrial Designs 9.7 Let Us Sum Up 9.8 Further Readings 9.9 Check Your Progress: Possible Answers 9.0 INTRODUCTION
We are living in an era of rapid technological advancements. Today development and growth have been made possible by the outcomes of the human intellect which need legal protection, worldwide. Such statutory protections provide economic and financial rights to the originator in his or her intellectual creations. They also promote creativity and encourage fair trading which contribute to the economic and social development of the society as a whole.
We have briefly discussed IPR in previous units. In this unit we shall give you a detailed overview of various aspects of Intellectual Property Rights (IPR). In the increasingly globalised world, it is important for you to be aware of this very important law.
5 9.1 LEARNING OUTCOMES After reading through this unit, you should be able to: • discuss the concept, nature and the scope of IPR; • describe the evolution and growth of IPR; • acquaint yourself with WIPO and new trading system; • explain the important components under the IPR regime; and • enumerate the various legislations available for IPR. 9.2 CONCEPT, NATURE AND SCOPE OF IPR
Intellectual Property (IP) very broadly means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. IP refers to the ownership of an idea or design by the person who came up with it. It is a term used in property law. It gives a person certain exclusive rights to a distinct type of creative design, meaning that nobody else can copy or reuse that creation without the owner’s permission. It can be applied to musical, literary and artistic works, discoveries and inventions. Common types of intellectual property rights include copyrights, trademarks, patents, industrial design rights and trade secrets.
According to the World IP Organisation (WIPO), IPR refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce. 9.2.1 Definition of IPR The concept of property has existed from time immemorial. Various scholars have underlined the importance of the concept of property which directly or indirectly includes IP. According to world famous jurist Salmond, “The immaterial product of a man’s brains may be as valuable as his lands or his goods. The Law therefore gives him a proprietary right in it.”
Encyclopedia Britannica defines the term intellectual property as: ‘A property that derives from the work of an individual’s mind or intellect’. Since IPR is a right over an idea so it also covers everything under the idea. If an idea which is the subject matter of an IPR finds its application in a tangible thing, the latter is also covered by that IPR.
Over a period of time and particularly in contemporary corporate paradigm, ideas and knowledge have become increasingly important parts of trade. Most of the value of high technology products and new medicines lies in the amount of invention, innovation, research, design and testing. Films, music recordings, books, computer software and on-line services are bought and sold because of the information and creativity they contain, and not simply because of the plastic, metal or paper used to make them.
Some products that were earlier used to be traded as low-technology goods are now products of a higher proportion of invention, innovation and design in their value, for example, new varieties of seeds, plants, etc. Therefore the rights to restrict others from using their inventions, designs or other creations are provided by IPR. 6 9.2.2 Importance of IPR The protection of IP rights is an essential component of a country’s financial policy. It can stimulate research, creativity and technological innovations by giving freedom to individual inventors and companies to gain the benefits of their creative efforts. The importance of IP rights can be summarised as:
• IPR are vital for the economic growth. The WIPO IP Handbook gives two reasons for IP laws: One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public for accessing to those creations. Second is to stimulate, as a deliberate act of government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.
• IPR allow owners of IP to derive financial benefits from the property they have created.
• IP helps in the generation of Breakthrough Solutions to some major global problems: For example: Nearly all of the 300 products on the World Health Organisation’s Essential Drug List, which are critical to saving or improving people’s lives around the globe, came from the R&D intensive pharmaceutical industry that depends on patent protections. Innovative agricultural companies are creating new products to help farmers produce more and better products for the world’s population while reducing the environmental impact of agriculture. IP-driven discoveries in alternative energy and green technologies may help improve energy security and address the problem of climate change.
• IPR encourage innovation and reward entrepreneurs. Risk and occasional failure are the lifeblood of the innovation economy. IP rights are a sort of encouragement to entrepreneurs to keep pushing for new advances in the face of adversity. 9.2.3 Scope of IPR The convention establishing World IP Organisation (WIPO) has described a detailed definition of IPR.
According to which IPR shall include the rights relating to: a) Literary, artistic and scientific work; b) Performances of performing artists, phonograms and broadcasts; c) Inventions in all fields of human endeavour; d) Scientific discoveries; e) Industrial Designs; f) Trade Marks, service marks and commercial names and designations; g) Protection against unfair competition and; all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
7 Check Your Progress: 1 Note: 1) Use the space below for your answers 2) Compare your answers with those given at the end of the Unit 1) Define Intellectual Property Rights......
2) Does IPR cover tangible things? ...... 3) State how IPR helps in maintaining economic growth? ......
9.3 EVOLUTION AND GROWTH OF IPR
The growth of IPR can be seen in the light of two major conventions for the protection of IPR: Paris convention for the Protection of Industrial Property, 1883 and Berne Convention for the protection of Literary and Artistic Works, 1886. These two conventions have undergone various changes since then and have been brought under the supervision of World IP Organisation (WIPO) which was constituted in 1967 as a result of a treaty signed in Stockholm on July 14, 1967. WIPO is one of the 15 specialised agencies of the United Nations.
In 1947, General Agreement on Tariffs and Trade (GATT) was formed. After that, due to the insistence of America, new rounds of negotiations were held, and ultimately TRIPS came into existence and became effective from January 1995. 8 The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the World Trade Organisation (WTO). It sets down minimum standards for the regulation by national governments of many forms of Intellectual Property (IP) as applied to nationals of other WTO member nations.
TRIPs is especially important for its detailed provision for enforcement of IPR’s which had been hitherto in the jurisdiction of the national laws only. Within couple of years, WIPO supervised two more treaties for the protection of IPR: the WIPO Copyright Treaty, 1996 and the WIPO Performers and Phonograms Treaty, 1996. They together are termed as WIPO “internet treaties”.
Thus we can see that the evolution of IP began with the Paris Convention for Protection of Industrial Property (1883) and attained perfection in the establishment of World Trade Organisation (WTO) in 1995 and signing of the Agreement on Trade Related Aspects of IP Rights (1993). The efforts made at Berne Convention on Literary and Artistic Rights (1886) and at Rome Convention (1961) for Musical and Performing Arts are important milestones in the history of evolution of IP. They ultimately led to secure protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organisations. 9.3.1 Paris Convention The Paris Convention 1883 applies to industrial property in the widest sense, including patents, trade marks, industrial designs, utility models (a kind of “small- scale patent” provided for by the laws of some countries), service marks, trade names (designations under which an industrial or commercial activity are carried out), geographical indications (indications of source and appellations of origin) and the promotion of fair competition.
The substantive provisions of the Convention fall into three main categories: national treatment, right of priority and common rules.
Under the provisions on national treatment, the Convention provides that, each Contracting State must grant the same protection to nationals of other Contracting States that it grants to its own nationals. The term ‘Contracting state’ implies to those countries who have signed the treaty or convention. Nationals of non- Contracting States are also entitled to national treatment under the Convention if they are domiciled or have a real and effective industrial or commercial establishment in a Contracting State.
The Convention provides for the right of priority in the case of patents (and utility models where they exist), marks and industrial designs. This right means that, on the basis of a regular first application filed in one of the Contracting States, the applicant may, within a certain period of time (12 months for patents and utility models; 6 months for industrial designs and marks), apply for protection in any of the other Contracting States. These subsequent applications will be regarded as if they had been filed on the same day as the first application.
The Convention lays down a few common rules that all Contracting States must follow. The most important are:
9 a) Patents
• Patents granted in different Contracting States for the same invention are independent of each other: the granting of a patent in one Contracting State does not oblige other Contracting States to grant a patent; a patent cannot be refused, annulled or terminated in any Contracting State on the ground that it has been refused or annulled or has been terminated in any other Contracting State.
• The inventor has the right to be named as such in the patent.
• The grant of a patent may not be refused or be invalidated, on the ground that the sale of the patented product, or of a product obtained by means of the patented process, is subject to restrictions or limitations resulting from the domestic law.
• Each Contracting State that takes legislative measures providing for the grant of compulsory licenses to prevent the abuses which might result from the exclusive rights conferred by a patent may do so only under certain limited conditions.
b) Marks • The Paris Convention does not regulate the conditions for the filing and registration of marks which are determined in each Contracting State by domestic law. The registration of a mark obtained in one Contracting State is independent of its possible registration in any other country, including the country of origin.
• Where a mark has been duly registered in the country of origin, it must, on request, be accepted for filing and protected in its original form in the other Contracting States.
• Each Contracting State must refuse registration and prohibit the use of marks that constitute a reproduction, imitation or translation, liable to create confusion, of a mark used for identical and similar goods.
• Each Contracting State must likewise refuse registration and prohibit the use of marks that consist of or contain, without authorisation, State emblems and official signs and hallmarks of Contracting States, provided they have been communicated through the International Bureau of WIPO. The same provisions apply to flags, other emblems, abbreviations and names of certain inter-governmental organisations.
c) Industrial Designs: Industrial designs must be protected in each Contracting State, and protection may not be forfeited on the ground that articles incorporating the design are not manufactured in that State.
d) Trade Names: Protection must be granted to trade names in each Contracting State without there being an obligation to file or register the names.
e) Indications of Source: Measures must be taken by each Contracting State against direct or indirect use of a false indication of the source of goods or the identity of their producer, manufacturer or trader. 10 f) Unfair competition: Each Contracting State must provide for effective protection against unfair competition.
The Paris Convention, concluded in 1883, was revised at Brussels in 1900, at Washington in 1911, at The Hague in 1925, at London in 1934, at Lisbon in 1958 and at Stockholm in 1967, and was amended in 1979.The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO. 9.3.2 Berne Convention The Berne Convention deals with the protection of works and the rights of their authors. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them.
1) The three basic principles are as follows:
a) Works originating in one of the Contracting States must be given the same protection in each of the other Contracting States as the latter grants to the works of its own nationals (principle of “national treatment”).
b) Protection must not be conditional upon compliance with any formality (principle of “automatic” protection).
c) Protection is independent of the existence of protection in the country of origin of the work (principle of “independence” of protection). If, however, a Contracting State provides for a longer term of protection than the minimum prescribed by the Convention and the work ceases to be protected in the country of origin, protection may be denied once protection in the country of origin ceases.
2) The minimum standards of protection relate to the works and rights to be protected, and to the duration of protection:
a) As to works, protection must include “every production in the literary, scientific and artistic domain, whatever the mode or form of its expression.”
b) Subject to certain allowed reservations, limitations or exceptions, the following are among the rights that must be recognised as exclusive rights of authorisation: • the right to translate, • the right to make adaptations and arrangements of the work, • the right to perform in public dramatic, dramatic-musical and musical works, • the right to recite literary works in public, • the right to communicate to the public the performance of such works, • the right to broadcast (with the possibility that a Contracting State may provide for a mere right to equitable remuneration instead of a right of authorisation), 11 • the right to make reproductions in any manner or form (with the possibility that a Contracting State may permit, in certain special cases, reproduction without authorisation • the right to use the work as a basis for an audiovisual work, and the right to reproduce, distribute, perform in public or communicate to the public that audiovisual work . c) As to the duration of protection, the general rule is that protection must be granted until the expiration of the 50th year after the author’s death. In the case of audiovisual (cinematographic) works, the minimum term of protection is 50 years after the making available of the work to the public (“release”) or – failing such an event – from the creation of the work. In the case of works of applied art and photographic works, the minimum term is 25 years from the creation of the work.
3) The Berne Convention allows certain limitations and exceptions on economic rights, that is, cases in which protected works may be used without the authorisation of the owner of the copyright, and without payment of compensation.
The Berne Convention, concluded in 1886, was revised at Paris in 1896 and at Berlin in 1908, completed at Berne in 1914, revised at Rome in 1928, at Brussels in 1948, at Stockholm in 1967 and at Paris in 1971, and was amended in 1979. The Convention is open to all States. Instruments of ratification or accession must be deposited with the Director General of WIPO. 9.3.3 General Agreement on Tariffs and Trade (GATT) GATT is the product of growing realisation by the member nations that their relations in the field of trade and commerce should be conducted to raise standards of living, ensure full employment, develop the full use of the resources of the world and expand the production and exchange of goods. It aims to achieve these objectives by providing reciprocal and mutually advantageous arrangements directed to the substantial reduction of tariffs and other barriers to trade and to the elimination of discriminatory treatment in international commerce. 9.3.4 Rome Convention The Rome Convention secures protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organisations.
1) Performers (actors, singers, musicians, dancers and those who perform literary or artistic works) are protected against certain acts to which they have not consented, such as the broadcasting and communication to the public of a live performance; the fixation of the live performance; the reproduction of the fixation if the original fixation was made without the performer’s consent or if the reproduction was made for purposes different from those for which consent was given.
2) Producers of phonograms have the right to authorise or prohibit the direct or indirect reproduction of their phonograms. Where a phonogram published for commercial purposes gives rise to secondary uses (such as broadcasting 12 or communication to the public in any form), a single equitable remuneration must be paid by the user to the performers, to the producers of the phonograms, or to both.
3) Broadcasting organisations have the right to authorise or prohibit certain acts, namely the rebroadcasting of their broadcasts; the fixation of their broadcasts; the reproduction of such fixations; the communication to the public of their television broadcasts if such communication is made in places accessible to the public against payment of an entrance fee.
The Rome Convention allows for limitations and exceptions to the above- mentioned rights in national laws as regards to private use, use of short excerpts in connection with reporting current events, ephemeral fixation by a broadcasting organisation by means of its own facilities and for its own broadcasts, use solely for the purpose of teaching or scientific research and in any other cases where national law provides exceptions to copyright in literary and artistic works.
As to duration, protection must last at least until the end of a 20-year period computed from the end of the year in which • the fixation was made for phonograms and for performances incorporated therein; • the performance took place, for performances not incorporated in phonograms; • the broadcast took place. However, national laws increasingly provide for a 50-year term of protection, at least for phonograms and performances. WIPO is responsible, jointly with the International Labour Organisation (ILO) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO), for the administration of the Rome Convention. These three organisations constitute the Secretariat of the Inter-governmental Committee set up under the Convention consisting of the representatives of 12 Contracting States. Check Your Progress: 2 Note: 1) Use the space below for your answers 2) Compare your answers with those given at the end of the Unit. 1) What is dealt with by Berne Convention? ...... 13 2) What is protected by Rome Convention? ......
3) Who are responsible for the administration of Rome Convention? ......
9.4 WORLD IP ORGANISATION
Establishment of WIPO is a landmark event in the history of promotion and protection of IP rights at global level. The convention establishing the WIPO was signed at Stockholm on July 14, 1967. The WIPO has been designated as specialised body at United Nations and it also acts as complimentary body with WTO in so far as promotion and protection of IPR are concerned. The headquarters of WIPO is located at Geneva. The membership of WIPO is open to all member countries of United Nations or other specialised agencies. The membership has risen more than 175 countries. 9.4.1 Objectives of WIPO The objectives of WIPO can be summarised as under: • To promote the protection of IP throughout the world through co-operation among states and where appropriate in collaboration with any international organisation; • To harmonise national IP legislation and procedures; • To provide services for international applications for IP rights; • To exchange information on IP; • To provide legal and technical assistance to developing and other countries; • To facilitate resolution of private IP disputes; • To systematise information technology as a tool for storing, accessing and using valuable IP information. WIPO performs its functions and programmes through four organs: General Assembly; Conference; Coordination Committee and International Bureau. 14 9.4.2 Programmes and Activities of WIPO • Advice and expertise in the revision of national legislation particularly important for WIPO member states with obligations under the TRIP’s Agreement;
• Comprehensive education and training programmes at national and regional levels for officials dealing with IP, concerned with enforcement and; for traditional and new groups of users;
• Extensive computerisation assistance to help developing countries acquire the information technology resources to streamline administrative procedures for managing and administering their own IP resources, and to participate in WIPO, global information network;
• Financial assistance to facilitate participation in WIPO activities and meetings, especially those concerned with the progressive development of new international norms and practices.
9.5 EMERGENCE OF NEW TRADING SYSTEM
The successful conclusion of the Uruguay Round of trade negotiations paved the way for a new era of profound significance for the emerging trading system. The Uruguay Round Negotiations formally began in 1986 and it took seven years for its conclusion on December 15, 1993 and thereupon the Final Act was signed on April 15, 1994 at Marrakesh (Morocco). As a result, World Trade Organisation (WTO) replaced GATT on January 1, 1995. 9.5.1 World Trade Organisation The establishment of WTO is considered as a landmark in the history of multilateral trading system. Although there are many disturbing features as regards economic interests of developing countries vis-à-vis developed countries especially in the field of labour, environmental subsidies and IPR, yet this compromising deal has come to stay. One of the major agreements having far reaching impact on IPR is the agreement on trade related aspects of IPR. 9.5.2 TRIPS TRIPS is an international legal agreement which reflects the concern of the members regarding the need to promote effective and adequate protection of IP rights. It ensures that measures and procedures to enforce IPR do not themselves become barriers to legitimate trade. It presents model provisions for adequate standard and principles concerning the availability, scope and use of trade- related IPR; effective means for their enforcement; and settlement of disputes between governments.
TRIPS asserts that IPRs are private rights; and takes note of underlying policy objectives of different national systems for the protection of IPR, including developmental and technological objectives. It also aims at establishing what it terms as a mutually supportive relationship between the WTO and WIPO.
The Agreement makes a fine balance between evolving new mechanisms and honouring old commitments in the field of creation, protection and exploitation 15 of IP rights; and also presents a blue-print for the future. It hints at certain basic principles which the members are supposed to follow with a view to ensure that they not only provide and seek protection for the IPR created by their own nationals but also extend the same favour to the nationals of other members. TRIPS set standards which members are obliged to maintain. It also suggests solutions in case of non-compliance by any member and refers to dispute resolution mechanism.
9.6 COMPONENTS OF IPR
The components of IPR, as envisaged by WIPO and TRIPS, have specified aims and objects. A brief explanation of the components iss as follows: 9.6.1 Patent John of Utynam is the recipient of the first known English patent, granted in 1449 by King Henry VI. John came to England to make the windows for Eton College. The patent granted him a 20-year monopoly on the making of coloured glass.
Patent is granted for inventions which have industrial and commercial value. Any person, whose invention has, novelty, involving inventive steps and is of industrial application, can be granted a monopoly right for a specified period to commercially exploit the invention and earn profit out of the invention. Novartis v. Union of India decided by the Supreme Court of India in 2013 is a leading case regarding patent rights. 9.6.2 Trademark A trademark, as you are aware, is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company. Its origin dates back to ancient times when craftsmen produced their signatures, or “marks”, on their artistic works or products of a functional or practical nature. The system helps consumers to identify and purchase a product or service based on whether its specific characteristics and quality as indicated by its unique trademark meet their needs. Trademark protection ensures that the owners of marks have the exclusive right to use them to identify goods or services, or to authorise others to use them in return for payment. The period of protection varies, but a trademark can be renewed indefinitely upon payment of the corresponding fees. Trademark protection can be legally enforced by courts.
For Example, in the case of Pidilite Industries Ltdv SM Associates, decided by the Bombay High Court in 2003, the plaintiff was registered proprietor of trademark “M-SEAL”. The defendant adapted and used mark “SM SEAL”, with all essential characters of trademark “M- SEAL”. The Bombay High Court ruled that defendant’s use of impugned mark was causing confusion and deception and restrained the defendants from using the mark. 9.6.3 Copyright The subject matters of copyright are the literary, artistic, dramatic, musical, cinematographic films, sound recording. Literary works now also include computer programmes, tables, compilation including computer database. Mere idea without tangible expression is not granted legal protection. It is a right granted 16 to author or originator of certain literary or artistic production. A copyright owner has sole and exclusive right of multiplying copies of the original work and publishing and selling them for a specified period. For example, downloading and sharing files of music, videos and games without permission of the copyright owner amounts to copyright infringement. Another example is the case of Celador Production Ltd v Gaurav Mehrotra, decided by the Delhi High Court in 2002. The High Court found that the defendant’s website using domain name “CrorepatiKaun.com” with logos and names and identical photographs of plaintiff’s TV show Kaun Banega Crorepat was an act of infringement of plaintiff’s copyright. 9.6.4 Geographical Indication An indication which identifies goods, such as agricultural goods, natural goods or manufactured goods as originating in the territory of a country, or its region are called as geographical indications. These indications denote quality, reputation or other characteristics of such goods essentially attributable to its geographical origin. The right conferred on geographical indication prevents competition from commercially exploiting the respective rights to the detriment of the owner of that property. 9.6.5 Industrial Designs Industrial designs mean only the features of shape, configuration, pattern, ornament or composition of lines or colour applied to any article whether in two dimensional or three dimensional or both. It may be by any industrial process or means whether manual, mechanical or chemical, separate or combined which in the finished article appeal to and are judged solely by the eye but does not include any trade mark. In the case of industrial designs the property consists in the exclusive right to apply the design registered under the statute.
Legislations for IPR In India India being the signatory member to all the major conventions related to IPR has legislated certain acts and statutes to show its commitment towards IPR protection. Some of the major legislations for the protection of IPR are listed as follows: • The Patents Act, 1970 • The Patents (Amendment) Act, 1999 • The Patents (Amendment) Act, 2002 • The Patents (Amendment) Act, 2005 • The Trade Marks Act, 1999 • The Trade Marks (Amendment) Act, 2010 • The Competition Act, 2002 • The Competition (Amendment) Act, 2007 • The Competition (Amendment) Act, 2009 • The Semiconductor Integrated Circuits Layout-Design Act, 2000 • The Geographical Indications of Goods (Registration and Protection) Act, 1999
17 • The Protection of Plant Varieties and Farmers’ Rights Act, 2001 • The Designs Act, 2000 • The Copyright Act, 1957 • The Copyright (Amendment) Act, 1994 • The Copyright (Amendment) Act, 1999 • The Copyright (Amendment) Act, 2012 Check Your Progress: 3 Note: 1) Use the space below for your answers 2) Compare your answers with those given at the end of the Unit. 1) Outline the objective of TRIPS Agreement......
2) What are the subject matters of copyright? ......
9.7 LET US SUM UP
In this unit it was explained that Intellectual property (IP) broadly means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. IP is a term used in property law and refers to the ownership of an idea or design by the person who came up with it. It gives a person certain exclusive rights to a distinct type of creative design, meaning that nobody else can copy or reuse that creation without the owner’s permission.
Considering IP is the major contributor in the developmental process, various conventions have been organised globally to establish a formal outline of the laws for protecting IP. Conventions like Paris and Berne and Organisations like WIPO have not only set forth the guiding principles for the establishment of IPR regime, but also drawn the regulations which bind the signatory nations to effectively implement the laws relating to IPR in their countries. In India, following the guiding principles of these conventions several landmark laws and legislations have been enacted to protect the major components of IPR. 18 9.8 FURTHER READINGS An Introduction to IP Rights, JP Mishra, Central Law Publication, third Edition (2012) Law relating to IP Rights, V.K Ahuja, Lexis Nexis; 2nd edition (2013) Law Relating to IP, B.L.Wadhera, Universal Law Publishing - An imprint of LexisNexis; Fifth edition (2016) Intellectual Property, Elizabeth Verkey, Eastern Book Company, Lucknow (2015) 9.9 CHECK YOUR PROGRESS: POSSIBLE ANSWERS Check Your Progress: 1 1) Intellectual Property (IP) are the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. IP refers to the ownership of an idea or design by the person who came up with it. It gives a person certain exclusive rights to a distinct type of creative design, meaning that nobody else can copy or reuse that creation without the owner’s permission.
2) Since IPR is a right over an idea so it also covers everything under the idea. If an idea which is the subject matter of an IPR finds its application in a tangible thing, the latter is also covered by that IPR.
3) IPR help in maintaining economic growth by giving statutory expression to the moral and economic rights of creators in their creations and the rights of the public for accessing those creations. As act of government policy, IPR promote creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development. Check Your Progress: 2 1) The Berne Convention deals with the protection of works and the rights of their authors. It is based on three basic principles and contains a series of provisions determining the minimum protection to be granted, as well as special provisions available to developing countries that want to make use of them.
2) The Rome Convention secures protection in performances for performers, in phonograms for producers of phonograms and in broadcasts for broadcasting organisations.
3) WIPO is responsible, jointly with the International Labour Organisation (ILO) and the United Nations Educational, Scientific and Cultural Organisation (UNESCO), for the administration of the Rome Convention. These three organisations constitute the Secretariat of the Intergovernmental Committee set up under the Convention.
19 Check Your Progress: 3 1) The objective of TRIPS Agreement is to present model provisions for adequate standard and principles concerning the availability, scope and use of trade-related IPR; effective means for their enforcement; settlement of disputes between governments; and transitional arrangements aiming at the fullest participation in the results of the negotiations.
2) The subject matters of copyright are the literary, artistic, dramatic, musical, cinematographic films, sound recording. Literary works now also include computer programmes, tables, compilation including computer database. Mere idea without tangible expression is not granted legal protection.
20 UNIT 10 COPYRIGHT LAW
Structure 10.0 Introduction 10.1 Learning Outcomes 10.2 Definition of Copyright 10.3 Main Features of Copyright 10.3.1 Determination of ownership 10.3.2 Rights of copyright owner 10.4 Registration and Assignment of Copyright 10.4.1 Rectification of registration 10.4.2 Publication and term of copyright 10.4.3 Assignment of copyright 10.4.4 Mode of assignment 10.5 Licensing of Copyright 10.5.1 Licences by owners of copyright 10.5.2 Licence in works withheld from public 10.6 Infringement of Copyright 10.6.1 Guidelines for measuring infringement 10.6.2 Acts which do not constitute infringement 10.6.3 Remedies against Copyright infringement 10.7 Let Us Sum Up 10.8 Further Readings 10.9 Check Your Progress: Possible Answers 10.0 INTRODUCTION
You have read in the previous unit that artistic creation and literary compositions are the outcomes of the human intellect. To protect the interests of the creator and advancement of knowledge and learning, copyright legislations have been enacted worldwide. From Berne convention to TRIPS agreement the international law on copyright has been crystallised on sound footings. India being the signatory member of TRIPS and other international agreements has comprehensively enacted Copyright Act, 1957 and done several amendments from time to time to meet the needs of changing times.
The first enactment on copyright in India was the Indian Copyright Act 1914. After independence, to meet the aspirations of the free nation and also to address the changes brought about by advances in technology and reproduction, the Copyright Act 1957 was enacted. This Act has been amended several times since then.
This Unit aims to provide an overview of various provisions of Copyright Act in India including registration, licensing and the remedies against the infringement of copyright.
21 10.1 LEARNING OUTCOMES After reading through this Unit, you should be able to: • define copyright and discuss its development; • describe the basic features of copyright; • explain the procedure for registration of copyright; • discuss the term of copyright for different subject matters; • outline the acts which constitute infringement; and • describe the remedies against the infringement of copyright. 10.2 DEFINITION OF COPYRIGHT
Copyright is a set of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings. The precise definition of Copyright act has been given in Section 14 of the Copyright Act, 1957 which states: Copyright means the exclusive right, subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely:-
In the case of a literary, dramatic or musical work, not being a computer programme: • to reproduce the work in any material form including the storing of it in any medium by electronic means; • to issue copies of the work to the public not being already in circulation; • to perform the work in public, or communicate it to the public; • to make any cinematograph film or sound recording in respect of the work; • to make any translation or adaptation of the work; In the case of a computer programme: • to do any of the acts specified above; • to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programme: In the case of an artistic work: • to reproduce the work in any material form including — i) the storing of it in any medium by electronic or other means; or ii) depiction in three dimensions of a two-dimensional work; or iii) depiction in two dimensions of a three-dimensional work; • to communicate the work to the public; • to issue copies of the work to the public; • to include the work in any cinematograph film; • to make any adaptation of the work; In the case of cinematograph film: • to make a copy of the film, including a photograph of any image forming 22 part the film; • to sell or hire any copy of the film, • to communicate the film to the public; In the case of sound recording: • to make any other sound recording embodying it including storing of it in any medium by electronic or other means; • to sell or give on commercial rental any copy of the sound recording; • to communicate the sound recording to the public. Thus Copyright in a work is not a single right, it has several rights together. For example, copyright in a book is not merely the right to bring it out in varied edition, but also the right to serialise in media, translation, adaptation, etc. Check Your Progress: 1 Note: 1) Use the space below for your answers 2) Compare your answers with those given at the end of the Unit. 1) What is copyright? ......
2) Copyright in a work is not a single right’. Explain......
10.3 MAIN FEATURES OF COPYRIGHT
The main features of copyright are creation of a statue, form of intellectual property, and monopoly rights as discussed below:
Creation of a statute- Copyright has emerged from a statute. Therefore it is statutory right, not a natural right or common law right.
Form of intellectual property- Copyright is a form of intellectual property since the product over which the right is granted is the result of utilisation and investment of intellect. 23 Monopoly right- Copyright is a monopoly right restraining the others from exercising that right which has been conferred on the owner of copyright. Some also say it is negative meaning thereby that it is prohibitory in nature. In the case of Fateh Singh Mehta vs OP Singhal and others, Rajasthan High Court in 1989 granted interim injunction against the use of material by guide from the Ph.D. thesis of his student. 10.3.1 Determination of Ownership The author of the work shall be the owner of the copyright. The author means: a) in the case of literary or dramatic work, the author of the work; b) in relation to a musical work, the composer; c) in relation to an artistic work other than a photograph, the artist; d) in the case of a photograph, the person taking the photograph; e) in relation to a cinematograph film or sound recording, the producer and the principal director; f) in relation to a sound recording, the producer; and g) in relation to any literary, dramatic, musical or artistic work which is computer generated, the person who causes the work to be created; According to Section 17 of the Act:
1) Work done or photographs taken or films made during the course of employment, the employer shall be first owner of the work, unless there is an agreement to the contrary.
2) In case of photographs, paintings, portraits, engravings or cinematographic film the person at whose instance the photograph was taken shall be the first owner, unless there is an agreement to the contrary.
3) The Government shall be the first owner of copyright in a Government work unless there is an agreement to the contrary;
4) In case of a work to which, Section 41 is applicable; the international organisation concerned shall be the first owner of the copyright.
5) In case of a work made or published under the direction and control of a public undertaking shall be the first owner of the copyright; and
6) In case of any address or speech delivered in public, the person who makes the speech shall be the first owner of the copyright.
For example, a teacher in school writes a book on the subject s/he teaches or makes notes for teaching; s/he is the author and owner of the copyright. 10.3.2 Rights of Copyright Owner According to the provisions of the Copyright Act the following rights are possessed by the owner:
1) To reproduce the work in any material form including storage through electronic means; 24 2) Issue copies of work in public;
3) To perform the work in public or communicate it to the public;
4) To make translation, adaptation or cinematograph film of the work;
5) In case of computer programmes, to do any or all works stated above in (1) to (4) and also to sell or give on commercial rental or offer for sale or rental any copy of the programme.
6) In case of an artistic work, all or any rights enumerated in (1) to (4), besides the right to include whole or part of the work in a cinematographic film;
7) In case of a cinematographic film, to make a copy of the film, to sell or hire it and to communicate the film to the public;
8) In case of sound recording, to make any other sound recording embodying it, to sell or give on hire or to offer for sale or hire embodying it, as well as to communicate the sound recording to the public;
9) To assign, transmit and relinquish the copyright;
10) To grant any interest in the right by licence;
11) To claim the recovery of infringed copies, by instituting necessary proceedings; and Check Your Progress: 2 Note: 1) Use the space below for your answers 2) Compare your answers with those given at the end of the Unit. 1) Describe the term ‘author’ in relation to cinematograph film or sound recording? ......
2) In case of Government work who is the first owner of copyright? ...... 25 10.4 REGISTRATION AND ASSIGNMENT OF COPYRIGHT
The registration of copyright has been given under sections 44 to 50 of the Indian Copyright Act, 1957. Section 45 read with rule 16 of Copyright rules prescribes detailed procedure for registration:
1) The person interested in the copyright may make an application in the prescribed form accompanied by prescribed fee to the Registrar of Copyright for entering particulars of the work in the Register of Copyright. However, in respect of artistic work capable of being used as trade mark, the application shall also require a certificate from Registrar of Trade Marks.
2) The persons applying for a copyright has to give notice of his application to every person who claims or has any interest in the subject matter of the copyright or disputes the rights of the applicant.
3) If no objection to such registration is received by the Registrar of Copyright within thirty days and he is satisfied by the correctness of the particulars, enter the particulars in the Register of Copyrights.
4) If the registrar of Copyright receives any objection to such registration within the time of thirty days, s/he may, after holding such inquiry as s/he deems fit, enter such particulars of the work in the Register of Copyrights.
5) The Registrar of Copyrights shall, as soon as s/he may be, send wherever practicable, a copy of the entries made in the Register to the parties concerned.
6) The appeal against the decision of registrar may be filed to the Copyright Board within three months. 10.4.1 Rectification of Register The Copyright Board, on application of the Registrar of Copyrights or of any person aggrieved, shall order the rectification of the Register of Copyrights by — a) the making of any entry wrongly omitted, or b) the expunging of any entry wrongly made in, or c) the correction of any error or defect in the register. 10.4.2 Publication and Term of Copyright The Copyright Act provides privileges to the owners regarding their original creation but the privileges conferred to them are not absolute. The term of copyright has been fixed according to the subject matter. As soon as copyright expires it is available in public domain. Sections 22 to 29 of the Copyright Act define different terms for different categories of work.
• In published literary, dramatic, musical and artistic works – During the life of author and sixty years after his death. In the case of a work of joint authorship; be construed as a reference to the author who dies last.
• In anonymous and pseudonymous works - During the life of author and sixty years after his death. 26 • In the posthumous work- Till sixty years after the death of the author.
• In cinematograph films/ sound recording - In the case of a cinematograph film/ sound recording , copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the film/ sound recording is published.
• In Government work: In the case of Government work, where Government is the first owner, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published.
• In works of public undertakings: In the case of public undertaking, where the public undertaking is the first owner, copyright shall until sixty years from the beginning of the calendar year next following the year in which the work is first published.
• In works of international organisations: In the case of a work of an international organisation to which the provisions of section 41 apply, copyright shall subsist until sixty years from the beginning of the calendar year next following the year in which the work is first published. 10.4.3 Assignment of Copyright The owner of the copyright in an existing work or the prospective owner of the copyright in future work may assign to any person the copyright either wholly or partially. The expression “assignee” as respects the assignment of the copyright in any future work includes the legal representatives of the assignee, if the assignee dies before the work comes into existence.
The case of Saregama India Pvt Ltd v Puneet Prakash Mehra & others decided by the Calcutta High Court is of some relevance here. In this case Mehra assigned to Saregama rights in the sound track of a film in 1981. On 11th of February 2010, Saregama entered into an agreement with super cassettes and another whereby allowed them the exploitation of a song from the 1981 film in their film “Housefull”. The court held the exploitation unjust because under 1981 agreement Saregama had been assigned rights in the soundtrack only in respect of the producer’s 1981 film, and had no right to exploit it in any other film. 10.4.4 Mode of Assignment • The assignment of the copyright in any work shall be in writing and signed by the assignor or by his duly authorised agent.
• The assignment of copyright in any work shall identify such work, and specify the rights assigned and the duration and territorial extent of such assignment.
• The assignment of copyright in any work shall also specify the amount of royalty and any other consideration payable, to the author or his legal heirs during the currency of the assignment and the assignment shall be subject to revision, extension or termination on terms mutually agreed upon by the parties.
• Where the assignee does not exercise the rights assigned to him within a period of one year from the date of assignment, the assignment in respect of 27 such rights shall be deemed to have lapsed after the expiry of the said period unless otherwise specified in the assignment.
• If the period of assignment is not stated, it shall be deemed to be five years from the date of assignment.
• If the territorial extent of assignment of the rights is not specified, it shall be presumed to extend within India.
• No assignment of copyright in any work to make a cinematograph film or sound recording shall affect the right of the author of the work to claim royalties or any other consideration payable in case of utilisation of the work in any form other than as part of the cinematograph film or sound recording. Check Your Progress: 3 Note: 1) Use the space below for your answers 2) Compare your answers with those given at the end of the Unit. 1) Where appeal against the decision of the Registrar of Copyright can be made? ......
2) If a work is published after the death of the author; how long his legal heirs could hold their copyright over it? ......
10.5 LICENSING OF COPYRIGHT
The owner has the right to grant license to do any act which is exclusively granted to the owner. The licences may be grouped into two categories: • Licences by owners of copyright • Licence in works withheld from public 28 10.5.1 Licences by owners of copyright The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing by him or by his duly authorised agent. In the case of a licence relating to copyright in any future work, the licence shall take effect only when the work comes into existence. 10.5.2 Licence in works withheld from public If at any time during the term of copyright in any Indian work which has been published or performed in public, a complaint is made to the Copyright Board that the owner of copyright in the work — a) has refused to republish or allow the republication of the work or has refused to allow the performance in public of the work, and by reason of such refusal the work is withheld from the public; or b) has refused to allow communication to the public by broadcast, of such work or in the case of sound recording the work recorded in such sound recording, on terms which the complainant considers reasonable;
The Copyright Board, after giving a reasonable opportunity of being heard and after holding such inquiry as it may deem necessary, may, if it is satisfied, direct the Registrar of Copyrights to grant to the complainant a licence to republish the work, perform the work in public or communicate the work to the public by broadcast, as the case may be, subject to payment to the owner of the copyright of such compensation and subject to such other terms and conditions as the Copyright Board may determine.
Compulsory licence in unpublished or published works Where, in the case of any unpublished work or any work published or communicated to the public and the work is withheld from the public in India, the author is dead or unknown or cannot be traced, or the owner of the copyright in such work cannot be found, any person may apply to the Copyright Board for a licence to publish or communicate to the public such work or a translation thereof in any language.
Statutory licence for radio broadcasting of literary and musical works and sound recordings Any broadcasting organisation desirous of communicating to the public by way of a broadcast or by way of performance of a literary or musical work and sound recording which has already been published shall acquire statutory license before publishing, performing or broadcasting such works:
The organisation shall give prior notice, in prescribed manner, of its intention to broadcast the work stating the duration and territorial coverage of the broadcast, and shall pay to the owner of rights in each work royalties at the rate fixed by the Copyright Board.
No fresh alteration to any literary or musical work, which is not technically necessary for the purpose of broadcasting, other than shortening the work for convenience of broadcast, shall be made without the consent of the owners of rights. 29 The broadcasting organisation shall —
a) Maintain such records and books of account, and render to the owner of rights such reports and accounts; and,
b) Allow the owner of rights or his duly authorised agent or representative to inspect all records and books of account relating to such broadcast. in such manner as may be prescribed
Licence to produce and publish translations Any person may apply to the Copyright Board for a licence to produce and publish a translation of a literary or dramatic work in any language after a period of seven years from the first publication of the work.
Termination of Licence: The licence granted for reproduction and translation may be terminated by Copyright Board if subsequent to grant of licence the owner himself has republished the work or has made translations of the work or has made translation of the work at a reasonable price. However, the termination will not take effect until after the expiry of three months from the date of service of notice. Check Your Progress: 4 Note: 1) Use the space below for your answers 2) Compare your answers with those given at the end of the Unit 1) What is ‘licences by owners of copyright’? ......
2) How can a licence for reproduction or translation be terminated? ......
10.6 INFRINGEMENT OF COPYRIGHT
The monopoly of the copyright vests with the owner who uses it for commercial gains in multifarious ways. If any person other than the owner exploits his work in a manner such as reproduction in any material form, performing the work in public and communication of the work to the public to gain monetary benefit is said to commit infringement of copyright. 30 Copyright in a work shall be deemed to be infringed — a) when any person, without a licence granted by the owner or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act —
i) does anything, which is the exclusive right conferred by Copyright Act upon the owner of the copyright, or
ii) does any work or communicate the work to the public for profit, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; b) when any person makes for sale or hire, or distributes or exhibits in public either for the purpose of trade, or that person’s acts adversely affect the owner of the copyright. For example, in the case of Zee Telefilms Ltd. v Sundial Communications Pvt. Ltd, Sundial developed the idea of a TV series called Krish Kanhaiy and approached the Managing Director of Zee and shared a concept note where the basic plot and the character sketches were outlined in confidence. Later, it was found that a TV series called Kanhaiya was telecast on Zee TV and this series was substantially similar in nature to the idea that Sundial had communicated to Zee. Sundial filed a suit against Zee and sought for injunction. At the interim stage, a single Judge bench of Bombay High Court granted an injunction. In an appeal against this injunction by Zee, the Bombay High Court opined, in the year 2003, that an average person would definitely conclude that Zee’s film was based on Sundial’s script and hence upheld the injunction against Zee as Sundial’s business prospect and goodwill would seriously suffer if the confidential information of this kind was allowed to be used. 10.6.1 Guidelines for measuring infringement In 1978 in a landmark case of R.G Anand vs Delux Films, the Supreme Court of India laid down guidelines for measuring infringement, as follows: a) There can be no copyright in an idea, subject- matter, themes, plots or historical or legendary facts, and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work. b) Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. c) When a spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original, it clearly appears to be the violation of the copyright. d) Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, there is no violation. e) As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law. 31 10.6.2 Acts which do not constitute infringement You also need to be aware of some acts which do not constitute infringement, as listed below: • A fair dealing with any work not being a computer programme. • The transient and incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public; • Transient and incidental storage for the purpose of providing electronic links, access or integration.
• The reproduction of any work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding.
• The reproduction or publication of any work prepared by the Secretariat of a Legislature.
• The reproduction of any work in a certified copy made or supplied in accordance with any law for the time being in force.
• The reading or recitation in public of reasonable extracts from a published literary or dramatic work.
• The publication in a collection mainly composed of non-copyright matter.
• The reproduction of any work - by a teacher or a pupil in the course of instruction; or as part of the questions to be answered in an examination.
• The performance, in the course of the activities of an educational institution, of a literary, dramatic or musical work by the staff and students of the institution.
• The causing of a recording to be heard in public by utilising it, in an enclosed room or hall meant for the common use of residents in any residential premises or as part of the activities of a club or similar organisation.
• The performance of a literary, dramatic or musical work by an amateur club or society.
• The reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics.
• The storing of a work in any medium by electronic means by a non- commercial public library, for preservation.
• The making of not more than three copies of a book (including a pamphlet, sheet of music, map, chart or plan) by or under the direction of the person in charge of a non-commercial public library for the use of the library if such book is not available for sale in India.
• The reproduction, for the purpose of research or private study or with a view to publication, of an unpublished literary, dramatic or musical work kept in a library, museum or other institution.
32 • The reproduction or publication of any matter which has been published in any Official Gazette.
• the report of any committee, commission, council, board or other like body appointed by the Government if such report has been laid on the Table of the Legislature. • Any judgment or order of a court, tribunal or other judicial authority. • The making or publishing of a painting, drawing, engraving or photograph of a work of architecture or the display of a work of architecture.
• The inclusion in a cinematograph film of — any artistic work permanently situated in a public place or any premises to which the public has access; or any other artistic work.
• The use by the author of an artistic work, where the author of such work is not the owner of the copyright therein, of any mould, cast, sketch, plan, model or study made by him.
• The making of a 3-D object from a 2-D artistic work such as a technical drawing, for the purposes of industrial application of any purely functional part of a useful device.
• The reconstruction of a building or structure in accordance with the architectural drawings or plans by reference to which the building or structure was originally constructed.
• In relation to a literary, dramatic, artistic or musical work recorded or reproduced in any cinematograph film, the exhibition of such film after the expiration of the term of copyright therein.
• The performance of a literary, dramatic or musical work or the communication to the public of such work or of a sound recording in the course of any bona fide religious ceremony or an official ceremony. 10.6.3 Remedies against Copyright Infringement The civil remedies for copyright infringement are mentioned under Section 55 of the Copyright Act of 1957. The various civil remedies available against infringement are:
1) Interlocutory Injunctions: The most important remedy is the grant of an interlocutory injunction. In most cases the application filled is for interlocutory relief and the matter rarely goes beyond the interlocutory stage. The basic requisites for grant of interlocutory injunction are –a prima facie case, balance of convenience and an irreparable injury.
2) Pecuniary Remedies: Copyright owners can also seek three pecuniary remedies. First, an account of profits which lets the owner seek the sum of money made equal to the profit made through unlawful conduct. Second, compensatory damages which let the copyright owner seek the damages he suffered due to the infringement. Third, conversion damages which are assessed according to the value of the article.
33 Criminal Remedies: Under the Copyright Act, 1957 the following remedies are provided for infringement: • Imprisonment up to 3 years but, not less than 6 months • Fine which may not be less than 50,000 but, may extend up to 2,00,000 • Search and seizure of infringing goods • Delivery of infringing goods to the copyright owner. To ensure the effective implementation of the Copyright Act, 1957 the following bodies have been formed:
Copyright Office: The office is under the superintendence and direction of Central Government. A registrar and one or more deputy registrars are also appointed who performs the function of registration and maintenance of Register of Copyright.
Copyright Board: The Copyright Board, a quasi-judicial body, was constituted in September 1958. The jurisdiction of the Copyright Board extends to the whole of India. The Board is entrusted with the task of adjudication of disputes pertaining to copyright registration, assignment of copyright, grant of Licenses in respect of works withheld from public, unpublished Indian works, production and publication of translations and works for certain specified purposes. The Copyright Board has headquarters in Delhi. Check Your Progress: 5 Note: 1) Use the space below for your answers 2) Compare your answers with those given at the end of the Unit 1) What are the pecuniary remedies available to a copyright owner in case of infringement of copyright? ......
2) Which bodies are responsible for the implementation of the Copyright Act in India? ...... 34 10.7 LET US SUM UP
In this unit we have discussed that the copyright law has been enacted in India to oblige the objective of TRIPS and other conventions. Copyright Act, 1957 describes the definition of copyright along with the provisions related to the determination of copyright. There are certain rights of the owner having copyright such as transmit of copyright or perform the work in public has been mentioned in the above heads.
The Act also lays down the procedure for the registration of copyright. The term of copyright has also been mentioned in the Act. Under the law the owner of copyright the owner may assign and grant license of the copyright. In case the work of the owner is exploited without his consent then the Act also provisions stating different consequences against the infringement. In the Unit above certain actions have also been discussed which do not cause infringement.
For the effective implementation of the Act copyright bodies has been constituted under the Act and certain civil and criminal remedies are also available in case of copyright violation.
10.8 FURTHER READINGS
Law relating to Intellectual Property Rights, V.K Ahuja, Lexis Nexis; 2nd edition (2013)
Law Relating to Intellectual Property, B.L.Wadhera, Universal Law Publishing - An imprint of LexisNexis; Fifth edition (2016)
Copyright Law in India, Dr. G.B. Reddy, Gogia Law Agency, Hyderabad (2015)
Iyenger’s The Copyright Act 1957, Revised by Dr. R.G. Chaturvedi and Sanjay Upadhyay, Universal Law Company, Delhi, Sixth Edition (2008)
10.9 CHECK YOUR PROGRESS: POSSIBLE ANSWERS Check Your Progress: 1 1) Copyright is a set of rights given by the law to the creators of literary, dramatic, musical and artistic works and the producers of cinematograph films and sound recordings.
2) Copyright in a work is not a single right, it consists of a bundle of rights together. For example, copyright in a book is not merely the right to bring it out in varied edition, but also the right to serialise in media, translation, adaptation etc. Check Your Progress: 2 1) The producer and principal director.
2) The government shall be the first owner of copyright in a Government work unless there is an agreement to the contrary 35 Check Your Progress: 3 1) Appeal against the decision of the Registrar of Copyright can be filed with the Copyright Board.
2) Sixty years after the death of author. Check Your Progress: 4 1) The owner of the copyright in any existing work or the prospective owner of the copyright in any future work may grant any interest in the right by licence in writing by him or by his duly authorised agent. This is called licence granted by owners of copyright.
2) The licence granted for reproduction and translation may be terminated by Copyright Board if subsequent to grant of licence the owner himself has republished the work or has made translations of the work or has made translation of the work at a reasonable price. However, the termination will not take effect until after the expiry of three months from the date of service of notice. Check Your Progress: 5 1) A copyright owner can seek pecuniary remedies: First, an account of profits which lets the owner seek the sum of money made equal to the profit made through unlawful conduct. Second, compensatory damages which let the copyright owner seek the damages he suffered due to the infringement. Third, conversion damages which are assessed according to the value of the article.
2) Copyright Office and Copyright Board are responsible for the implementation of the Copyright Act in India.
36 UNIT 11 CYBER LAW
Structure 11.0 Introduction 11.1 Learning Outcomes 11.2 Concept of Cyber space 11.2.1 Characteristics of Cyberspace 11.2.2 Issues emerging from cyberspace and need for regulation 11.3 International and National Cyber Laws 11.3.1 International Law 11.3.2 National Law 11.4 Information Technology Act, 2000 as amended 11.4.1 Electronic signature and electronic records 11.4.2 Regulation of Certifying authorities 11.4.3 Cyber Appellate Tribunal 11.4.4 Intermediaries 11.5 Cyber Crimes 11.5.1 Types of Computer crimes 11.5.2 Cyber crimes: Some Cases 11.6 Let Us Sum Up 11.7 Further Readings 11.8 Check Your Progress: Possible Answers 11.0 INTRODUCTION
In the era of rapid use of information communication technologies networks, devices and services worldwide, the cyberspace has emerged as a new medium of communication. According to International Telecommunication Union (ITU), International Internet bandwidth is growing rapidly worldwide and India is among the front runner nations of the world. In India Internet is growing at a fast pace in cities as well as villages. More and more people are using mobile telephones and this has further accelerated its growth in the country. The new virtual space has thus given rise to many social and national issues and has posed new challenges to deal with technology driven cyber crimes and to protect person’s privacy and intellectual rights.
This Unit provides you an overview of the concept of cyber space, cybercrimes and other issues emerging from it.
11.1 LEARNING OUTCOMES After studying this unit you should be able to: • discuss the concept of cyberspace; • explain the need for regulation of cyberspace; • outline various issues emerged due to cyberspace;
37 • describe cyber crimes and offences under Information Technology (IT) Act; and • acquaint yourself with the law regulating cyberspace in India. 11.2 CONCEPT OF CYBER SPACE
Cyberspace represents a space created by science where various events, sharing of ideas are taking place with the help of Internet connecting various computer systems and mobile phones.
With the advent and growth of electronic communication, the word “cyberspace” has entered into our everyday parlance. But what does this word signify? To a common person, cyberspace refers to a virtual area without limits where one can meet people and discover information on any subject through Internet. In the cyberspace you can find right, wrong or confusing answer to almost any question. This description of cyberspace is not 100% accurate, but it points out some of its important characteristics: its non-physicality, its social dimension and its functionality.
According to Rebecca Bryant, Cyberspace represents “the new medium of communication, electronic communication, which is fast outmoding, or even replacing, more traditional methods of communication. It appears, then, that space and cyberspace can count as roughly equivalent conceptual entities, at least in the sense of sharing the four common sub-concepts of place: distance, size, time and route. Despite the differences, cyberspace is, in one way, intimately connected with the physical world. Cyberspace depends, for its very existence, on hardware and software, cables and routers — it depends on physical objects existing in physical space. And, of course, this intimate connection between the two also represents a fundamental difference - physical space, if it exists, depends on nothing at all”. 11.2.1 Characteristics of Cyberspace David B. Whittle in his book, “Cyberspace: The Human Dimension”, has identified three characteristics of the cyberspace: (1) It is not a physical location but a virtual space. (2) One needs access device to enter into cyber space. That means one needs some sort of physical access device (may be computer screen, a telephone, a terminal, etc.) with an artificial processing mechanism, such as digital computing power and/or software. And that should be joined with other access devices on a network of physical connections.(3) It enables interaction and communication between individuals and groups of individuals and their creative output, largely independent of time and space. 11.2.2 Issues emerging from cyberspace and need for regulation Today new communication technologies, usage of mobile phones and other communication devices are globally challenging the traditional notion of jurisdiction. It has led to the possibility of invasion of the privacy of an individual. There is need to have effective law to deal with the problems of cyber social media crimes, rumour-mongering, email spoofing, spams, cyber stalking, defamation and various other cybercrimes as the impact of these crimes can be more than the conventional crimes. These cyber crimes are usually committed by 38 the person using fake identity, not readily and easily identifiable. Further, due to anonymity and the ease of circulation it has given rise to many social debates that demands the reconciliation of the two views viz., freedom of speech and expression and the concern for maintaining basic civic peace and standards. Besides this, the major areas of concern which calls for strict regulation are: Management of Intellectual Property and to prevent Infringements in digital media; spread of terrorism, cross border taxation; cyber security which is an expensive affair as the business organisations are vulnerable to data breaches leading to loss of business opportunities and therefore needed to be secured from unauthorised access, modification or removal of data/information, data theft; authentication, data protection and data privacy of the industries, individuals and government agencies; Encryption; Protection of e-consumers from the misleading advertisements of goods and services enabling them to make informed and meaningful choices. The business organisations must manage the consumer information responsibly respecting the privacy of the individuals but this requires strict regulators restricting the exchange and use of data. Check Your Progress: 1 Note: 1) Use the space below for you answers. 2) Compare your answers with those given at the end of this unit. 1) What are the characteristics of cyber space? ......
2) Why do we need cyberspace regulation? ......
11.3 INTERNATIONAL AND NATIONAL CYBER LAWS
In this section we shall briefly discuss the international and national laws which govern cyberspace. 11.3.1 International Law UNCITRAL Model law 1996, Model law on E-Signature, 2001 and United Nations Convention on the Use of Electronic Communications in International Contracts, 2005 constitute some international initiatives relating to cyberspace. 39 UNCITRAL Model law 1996 -The first Model Law on E-commerce was adopted in 1996 by United Nations Commission on International Trade and Law (UNCITRAL). The General Assembly of United Nations adopted it by passing a resolution on 30th January, 1997. The prime objective of the law was to have uniformity in law relating to e-commerce at international level and to provide equal treatment to paper-based and electronic information. India is also signatory to this Model law and hence, enacted the Information Technology Act, 2000.
Model law on E-Signature, 2001(MLES) - In 2001, the Model law on E- Signature was adopted by United Nations Commission on International Trade and Law (UNCITRAL) with the aim to enable and facilitate the use of electronic signatures by establishing criteria of technical reliability for the equivalence between electronic and hand-written signatures. The law may assist countries in establishing a modern, harmonised and fair legislative framework to address effectively the legal treatment of electronic signatures and give certainty to their status. Accordingly, India passed the Information Technology (Amendment) Act, 2008, which makes necessary amendments in 2000.
United Nations Convention on the Use of Electronic Communications in International Contracts, 2005 - It was adopted in 23 November 2005 and came into force on 1 March 2013. It recognises the fact that electronic communications plays a fundamental role in promoting trade and economic development both domestically and internationally and also improves the efficiency of commercial activities. It aims to provide a common solution to remove legal obstacles to the use of electronic communications in a manner acceptable to States with different legal, social and economic systems. The Electronic Communications Convention aims at facilitating the use of electronic communications in international trade by assuring that contracts concluded and other communications exchanged electronically are as valid and enforceable as their traditional paper-based equivalents. 11.3.2 National Law The Government of India being signatory to UNICITRAL LAW on E-commerce enacted the 2000 which was amended in the year 2008 to implement the UNCITRAL Model Law on Electronic Signatures, 2001. Many traditional crimes which are capable of being committed with the use or aid of or through computers and technology have been bought within the definition of conventional crimes and therefore fall under the ambit of the Indian Penal Code, 1860 as amended. The Evidence Act, 1872 has been amended, section 65A and section 65B of the Indian Evidence Act, 1872 provides for Admissibility of electronic records as evidence. The Banker’s Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934, have also been amended in order to facilitate collection of evidence to deal with cyber crimes or any matter connected with such crimes. The main purpose of these amendments is to address the related issues of electronic commerce, electronic crimes and evidence and to enable further regulation with regard to Electronic Fund Transfer.
For further detailed information, you may visit website of United Nations Commission on International Trade Law: www.unicitral.org.
40 11.4 INFORMATION TECHNOLOGY ACT, 2000
The Information Technology Act, 2000 aims to provide legal recognition for the transactions carried out by the means of electronic data interchange and other means of communications commonly referred to as “Electronic Commerce”, which involve the use of alternatives to paper based methods of the communication and storage of information, to facilitate electronic filing of document with the government agencies. 11.4.1 Electronic signature and Electronic records Section 3A of the Information Technology Act provides that a subscriber may authenticate any electronic record by such electronic signature or electronic authentication technique which (a) is considered reliable; and (b) may be specified in the Second Schedule.
Chapter III of the Act pertains to legal recognition to the electronic records (Section 4), electronic signature (Section 5) and their usage in Government and its agencies (Section 6). Chapter IV lays down rules for attribution of the e-record, the mode and manner of its acknowledgement and determination of time and place of dispatch and receipt of electronic records. Section 10A provides for validity of contracts formed through electronic means. Chapter V lays down conditions for secure electronic records and secure electronic signature. 11.4.2 Regulation of Certifying Authorities The provisions relating to Regulation of Certification Authorities are given in Chapter VI of the Information Technology Act. Chapter VI deals with appointment of a controller and other officers, functions of controller, recognition of foreign certifying authorities, licence to issue electronic signature certificates – application, renewal, suspension of licence and procedure for grant or rejection of licence.
Functions of Controller Controller of Certification authority is a focal point in the Information Technology Act, who shall discharge the functions under this Act subject to the general control and directions of the Central Government. According to Section 18 of the Information Technology Act, the Controller may perform all or any of the following functions: a) Exercising supervision over the activities of the Certifying Authorities. b) Certifying public keys of the Certifying Authorities. c) Laying down the standards to be maintained by the Certifying Authorities. d) Specifying the qualifications and experience which employees of the Certifying Authorities should possess. e) Specifying the conditions subject to which the Certifying Authorities shall conduct their business. f) Specifying the contents of written, printed or visual materials and advertisements that may be distributed or used in respect of a Digital Signature Certificate and the public key. g) Specifying the form and content of a Digital Signature Certificate and the key. 41 h) Specifying the form and manner in which accounts shall be maintained by the Certifying Authorities. i) Specifying the terms and conditions subject to which auditors may be appointed and the remuneration to be paid to them. j) Facilitating the establishment of any electronic system by a Certifying Authority either solely or jointly with other Certifying Authorities and regulation of such systems. k) Specifying the manner in which the Certifying Authorities shall conduct their dealings with the subscribers. l) Resolving any conflict of interests between the Certifying Authorities and the subscribers. m) Laying down the duties of the Certifying Authorities. n) Maintaining a data base containing the disclosure record of every Certifying Authority containing such particulars as may be specified by regulations, which shall be accessible to public. Powers of Controller In Section 24 of the procedure for grant or rejection of licence is stated. According to this Section, the Controller may, on receipt of an application under Section 21(1), and after considering the documents accompanying the application and such other factors, as he deems fit, grant the licence or reject the application. However, no application shall be rejected under this section unless the applicant has been given a reasonable opportunity of presenting his case.
In Section 25 of the procedure for suspension of licence is laid down. According to this Section:
1) the Controller may, if he is satisfied after making such inquiry, as he may think fit, that a Certifying Authority has- a) made a statement that the application for the issue or renewal of the licence is incorrect or false in material particulars; b) failed to comply with the terms and conditions subject to which the licence was granted; c) failed to maintain the procedures and standards specified in Section 30; d) contravened any provisions of this Act, its rules, regulations or orders; revoke the licence: Provided that no licence shall be revoked unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed revocation. 2) The Controller may, if he has reasonable cause to believe that there is any ground for revoking a licence under the above sub-section (1), by order, suspend such liecnce pending the completion of any enquiry ordered by him. However, no licence shall be suspended for a period exceeding ten days unless the Certifying Authority has been given a reasonable opportunity of showing cause against the proposed suspension.
3) No Certifying Authority whose licence has been suspended shall issue any 42 Digital Signature Certificate during such suspension. Sections 28 and 29 of the Act provide power to the Controller or any officer authorised by him to investigate contraventions and to access to computers and data if he has reasonable cause to suspect any contravention of the provisions of this Act, its rules or regulations. 11.4.3 Cyber Appellate Tribunal Section 57 of Information Technology Act lays down provisions relating to Appeal to Cyber Appellate Tribunal.
• Any person aggrieved by an order made by controller or an adjudicating officer under this Act may file an appeal to a Cyber Appellate Tribunal having jurisdiction in the matter, within forty-five days of receipt of the copy of the said order. However, no appeal shall lie to the Cyber Appellate Tribunal from an order made by an adjudicating officer with the consent of the parties. The Cyber Appellate Tribunal can also entertain an appeal after the expiry of the said period of forty-five days, if it is satisfied that there was sufficient cause for not filing it within that period.
• The Cyber Appellate Tribunal shall give both the parties to the appeal, an opportunity of being heard before passing such orders.
• The appeal filed before the Cyber Appellate Tribunal shall be disposed off as expeditiously as possible with an endeavor for final dispose within six months from the date of receipt of the appeal.
Procedure and powers of the Cyber Appellate Tribunal– Section 58 of Information Technology Act provides that the Cyber Appellate Tribunal has, for the purposes of discharging its functions, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 while trying the suit. However, the Tribunal shall not be bound by the procedure laid down by Section 5 of Code of Civil Procedure, 1908, but shall be guided by the principles of natural justice and, subject to the other provisions of this Information Technology Act and its rules. The Tribunal shall have powers to regulate its own procedure including the place at which it shall have its sittings. 11.4.4 Intermediaries Section 2(1) (w) of Information Technology Act defines: Intermediary means any person who on behalf of another person receives stores or transmits that record or provides any service with respect to that record. Intermediary includes: telecom service providers; network service providers; internet service providers; web-hosting service providers; search engines; online payment sites; online- auction sites; online-market places and cyber cafes.
As the Internet has grown to permeate all aspects of the countries and economy; the role of Internet intermediaries in bringing together or facilitating interactions, transactions or activities between third parties on the Internet is crucial as they influence and determine access to and choice between online information, services and goods.
Duties of Intermediaries: • According to Section 67 C of Information Technology Act, Intermediary shall preserve and retain such information as may be specified for such 43 duration and in such manner and format as the Central Government may prescribe. In case of intentionally contravening this duty, the Act provides that intermediary shall be punished with an imprisonment for a term, which may extend to three years and also be liable to fine.
• Section 69(3) provides that the subscriber or intermediary or any person in- charge of the computer resource shall, when called upon by Central Government or a State Government or any of its officers specially authorised by the Central Government or the State Government, must extend all facilities and technical assistance them. Intermediary will provide them access to (a) the computer resource generating, transmitting, receiving or storing such information; or (b) intercept, monitor, or decrypt the information; or (c) information stored in computer resource.
• Information Technology Act also deals with blocking public access of any information through any computer resource. The intermediary has to comply with the direction issued by the Government in this regard. In case, the intermediary fails to comply with the direction issued shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.
Role of intermediaries and the law Intermediaries play an important role and act as the tools that enable users to access information and provide new opportunities for social activities and citizen participation. Their technical capacity to prevent harm by strengthening cyber security, e-consumer security and to protecting privacy and intellectual property rights are very important. It has always been the concern across the world that besides certain duties and responsibilities the intermediaries must also be given protection or exemption from legal liability that could arise due to posting of illegal content by the users. In many countries like the USA and members of the European Union, there are attempts to provide legal protection to intermediaries from such user generated content. Such protection is often termed as a ‘safe harbour’ protection. Our Information Technology Act also provides for exemption from liability of intermediary in certain cases as discussed below:
Exemption from liability Under Information Technology Act intermediaries are not liable for any third party information, data, or communication link made available to others in following cases: a) Where the intermediary does not– i) initiate the transmission, ii) select the receiver of the transmission, and iii) select or modify the information contained in the transmission; b) Where the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe from time to time.
Liability of intermediaries Intermediary will be liable in the following circumstances: 44 a) Where the intermediary has conspired or abetted whether by threats or promise or otherwise in the commission of the unlawful act; b) On being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, if the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. Check Your Progress: 2 Note: 1) Use the space below for you answers. 2) Compare your answers with those given at the end of this unit. 1) Define the term ‘intermediaries’...... 2) Who can file an appeal to Cyber Appellate Tribunal? ......
11.5 CYBER CRIMES
The term cyber crime refers to the wide range of crimes that involves computers and networks, where computer is used as a tool to commit crime or computer itself is the target of a crime or incidental to a crime. The term cyber crimes, if used in generic sense, its scope can be extended to covers many kinds of civil and criminal wrongs. The cyber crimes are committed against individuals or property, they are also committed against an organisation - Government, non government; company; firm or group of individuals, or against the society at large. 11.5.1 Types of Computer Crimes Computer crimes can be categorised as given below:
Conventional crimes committed through computer: There are a number of traditional or conventional crimes that are committed against individuals and 45 their properties. Many of these crimes are now being committed by the aid of computers. Cyber defamation, cyber pornography, cyber stalking/harassment, cheating, digital forgery, theft, Internet fraud/ financial crimes including cheating, credit card frauds, money laundering online gambling and sale of illegal articles, cyber terrorism etc are the crimes punishable under both Indian Penal Code and Information Technology Act.
Cyber defamation (publication of defamatory statement about someone on a website or sending of e-mails containing defamatory information to the known contacts of the victim) is covered under section 499 of Indian Penal Code (IPC) read with section 4 of the Information Technology Act. Cyber frauds are also covered under Section 420 IPC. Digital forgery of documents is creation of a document which one knows is not genuine and yet projects the same as if it is genuine. Fraudulent birth certificates, ID cards, etc are dealt with various sections of IPC and Information Technology Act. Cyber stalking, i.e. repeated acts of harassment or threatening behaviour of the criminal targeting the victim with the aid of the Internet, e-mail, or other electronic communication devices to stalk another person, is a cybercrime as well as a crime under IPC. Cyber pornography, showing of sexual acts can be dealt with under Sections 292 and 293 IPC, Sections 67,67A and 67B Information Technology Act and Indecent Representation of Women’s Act.
Crimes committed on a computer network and related to mail: These crimes are technology driven crimes like hacking/unauthorised access, E-mail spamming, or E-mail spoofing. E-mail spamming mans an illegal intrusion into a computer system and/or network. E-mail spamming also means sending of large amount of mails to the victims as a result of which their account or mail server crashes. Email spoofing means an e-mail that appears to originate from one source although it has actually been sent from another source. These crimes are dealt with under Indian Penal Code as well as Information Technology Act.
Crimes relating to data alteration/destruction: computer vandalism, transmitting of virus/worms/Trojan horses/ logic bomb, theft of Internet hours; data diddling, salami attacks- insignificant alteration in customers account which in a single case would go completely unnoticed; phishing, etc. Data diddling is a type of cybercrime in which data is altered as it is entered into a computer system, most often by a data entry clerk or a computer virus. Phishing is a sort of cyber crime often used to steal user data, including login credentials and credit card numbers, etc. Usually it is committed by a person under the disguise of some trustworthy entity.
Section 43 of Information Technology Act also provides for civil liability. Crimes relating to violation of Intellectual property rights- The examples are distribution of pirated software; and cyber squatting i.e., obtaining of a domain name consisting of the owner’s distinctive trademark. The traditional laws for protecting intellectual property have also been applicable to the infringements taking place in digital media. 11.5.2 Cyber Crimes: Some Cases It will be useful for you to know about some cases related to cyber crimes dealing with fake identity, defamation, cheating, and cyber pornography, publishing or transmitting obscene material in electronic form, etc. 46 SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra, decided by ADJ, Delhi on 12 February 2014
In this case it was alleged that defendant Jogesh Kwatra being an employee of the plaintiff company had sent derogatory, defamatory, obscene, vulgar, filthy and abusive emails to his employers as also to different subsidiaries of the said company all over the world with the aim to defame the company and its Managing Director. The plaintiff filed a suit for permanent injunction restraining the defendant from doing the above said illegal acts. The Hon’ble Judge of the Delhi High Court passed an ex-parte interim injunction observing that a prima facie case had been made out by the plaintiff and consequently restrained the defendant from sending derogatory, defamatory, obscene, vulgar, humiliating and abusive emails either to the plaintiffs or to its sister subsidiaries all over the world including their Managing Directors and their Sales and Marketing departments. The defendant was further restrained from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs.
However ADJ, Delhi in the judgment dated 12 February 2014 held that “this court is not in a position to accept the strongest argument on behalf of plaintiff under the circumstances in the absence of direct evidence to infer that it was the defendant in particular, who was sending these emails - the test of balance of probabilities is to be applied to the evidence available on record and not to the inferences”. The issue was accordingly decided against the plaintiffs and in favour of the defendant and suit of the plaintiff was dismissed.
State of Tamil Nadu Vs Suhas Katti, AMM Court, Egmore (CC No 4680 of 2004)
This is considered as the first case in India of conviction under Section 67 of 2000. In this case the accused, a known family friend of the victim was interested in marrying her. However, the victim married another person and that marriage later ended in divorce. The accused started contacting her once again but she turned down his marriage proposal. The accused took up harassment of the victim through the Internet by posting obscene, defamatory and annoying message about her in the yahoo message group and then forwarding emails to the victim through a false e-mail account opened by him in the name of the victim. The posting of the message resulted in messages and phone calls from several persons to the victim who also received phone calls by people who believed she was soliciting for sex work.
The accused was found guilty and sentenced for offences under section 67 of Information Technology Act 2000 and 469, 509 of the IPC. The sentence included imprisonment for two years and fine.
National Association Of Software (NASSCOM), vs Ajay Sood and Others, Decided by Delhi High Court on 23 March 2005.
In this case the defendants were operating a placement agency involved in head- hunting and recruitment. In order to obtain personal data, which they could use for purposes of headhunting, the defendants composed and sent e-mails to third parties in the name of NASSCOM. Plaintiff filed the suit praying for a decree of permanent injunction restraining the defendants or any person acting under their 47 authority from circulating fraudulent E-mails purportedly originating from the plaintiff of using the trade mark ‘NASSCOM’ or any other mark confusingly similar in relation to goods or services. Prayer for damages was made in the plaint.
This landmark judgment delivered on 23rd March 2005 brings the act of “phishing” into the ambit of Indian laws even in the absence of specific legislation. The court observed that “An act which amounts to phishing, under the Indian law would be a misrepresentation made in the course of trade leading to confusion as to the source and origin of the e-mail causing immense harm not only to the consumer but even the person whose name, identity or password is misused. It would also be an act of passing off as is affecting or tarnishing the image of the plaintiff, if an action is brought by the aggrieved party.”
The defendants in the present case admitted their illegal acts and the parties settled the matter through the recording of a compromise in the suit proceedings. According to the terms of compromise, the defendants agreed to pay a sum of Rs1.6 million to the plaintiff as damages for violation of the plaintiff’s trademark rights. The court also ordered the hard disks seized from the defendants’ premises to be handed over to the plaintiff who would be the owner of the hard disks. Defendants their servants and agents were barred from circulating fraudulent e- mails purportedly originating from the plaintiff or using the trade name NASSCOM or any other name/mark and address of the plaintiff amounting to tarnishing their image.
Activity-1 Go through newspaper reports and identify some cyber crimes dealing with fake identity, defamation, cheating, etc. as discussed above. Follow up the stories and analyse the outcome. Check Your Progress: 3 Note: 1) Use the space below for you answers. 2) Compare your answers with those given at the end of this unit. 1) Explain the term ‘phishing’......
2) What is Data Diddling? ...... 48 11.6 LET US SUM UP
In this unit we discussed various aspects relating to Cyber law such as the concept of cyberspace; the need for regulation of cyberspace; cyber crimes and offences under Information Technology (IT) Act; and the law regulating cyberspace in India.
Today cyberspace has emerged as a new medium of communication, a place where numbers of social and economic activities are going on leading to new challenges and new forms of crimes. Some of these involve computers and networks, where computer may be used as a tool to commit crime or computer itself is the target or computer may be considered as incidental to a crime. Therefore the role of internet intermediaries, their technical capacity to prevent harm by strengthening cyber security, e-consumer security and in protecting privacy and intellectual property rights cannot be denied. It was discussed that the intermediaries need to observe due diligence while discharging their duties. The applicable law to govern electronic records and technology driven crimes is Information Technology Act, 2000. It was also explained that many traditional crimes which are capable of being committed with the use or aid of or through computers and technology can also be dealt with under Indian Penal Code, 1860; The Evidence Act, 1872, The Banker’s Book Evidence Act, 1891and and the Reserve Bank of India Act, 1934, and others.
11.7 FURTHER READINGS
Gibson, William, Neuromancer, Harper Collins Publishers, London, 1995, p.67 S. SAI
Pavan Duggal, Cyber Law, Universal Law Publishing Co., Delhi, Second Edition, 2017
Prashant Mali, Cyber law & cyber crimes simplified, Cyber Infomedia, 4th edition. 2017
Vakul Sharma, Information Technology Law and Practice- Cyber Laws and Laws Relating to E-Commerce. Universal Law Publishing - An imprint of Lexis Nexis. 5th edition. 2016
Dr.S.R. Myneni, Information Technology Law (Cyber Laws), Asia Law House, 2017
11.8 CHECK YOUR PROGRESS: POSSIBLE ANSWERS Check Your Progress: 1 1) Cyberspace is not a physical location but a virtual space. One needs access device to enter into cyber space. That means one needs some sort of physical access device (may be computer screen, a telephone, a terminal, etc.) with an artificial processing mechanism, such as digital computing power and/or software. That should be joined with other access devices on a network of physical connections. It enables interaction and communication between 49 individuals and groups of individuals and their creative output, largely independent of time and space.
2) Today new communication technologies, usage of mobile phones and other communication devices are globally challenging the traditional notion of jurisdiction. This has led to the possibility of the invasion of privacy of an individual. We need effective law to deal with the problems of cyber social media crimes, rumour-mongering, e mail spoofing, spams, cyber stalking, defamation and various other cybercrimes as the impact of these crimes can be more than the conventional crimes. These cyber crimes are usually committed by the person using fake identity thus not readily and easily identifiable. Check Your Progress: 2 1) Section 2(1) (w) of Information Technology Act defines Intermediary any person who on behalf of another person receives stores or transmits that record or provides any service with respect to that record. Intermediary includes: telecom service providers; network service providers; internet service providers; web-hosting service providers; search engines; online payment sites; online-auction sites; online-market places and cyber cafes.
2) Any person aggrieved by an order made by controller or an adjudicating officer can file an appeal to a Cyber Appellate Tribunal having jurisdiction in the matter, within forty-five days of receipt of the copy of the said order. However no appeal shall lie to the Cyber Appellate Tribunal from an order made by an adjudicating officer with the consent of the parties Check Your Progress: 3 1) Phishing is a sort of cyber crime often used to steal user data, including login credentials and credit card numbers, etc. Usually it is committed by a person under the disguise of some trustworthy entity.
2) Data diddling is a type of cybercrime in which data is altered as it is entered into a computer system, most often by a data entry clerk or a computer virus.
50 UNIT 12 RIGHT TO INFORMATION
Structure 12.0 Introduction 12.1 Learning Outcomes 12.2 Right to Information: Concept & Evolution 12.3 Right to Information Act, 2005 12.4 Right to Information and Indian Constitution 12.5 Institutions Covered under RTI 12.5.1 Information to be given by the public authorities 12.5.2 Information which cannot be accessed by the public 12.6 Impact of Right to Information 12.7 Constraints in Implementing RTI 12.8 Right to Information (Amendment) Act, 2019 12.9 Let Us Sum Up 12.10 Further Readings 12.11 Check Your Progress: Possible Answers 12.0 INTRODUCTION
In a democratic set-up, information is an indispensable tool of good governance which acts as an aid to ensure accountability in administration. If people are not aware about the actions of those who rule them, they cannot take a meaningful part in the affairs of the society. In this regard, the Right to Information Act, 2005 was passed by the government for access to information and to ensure accountability and transparency in governance.
This Unit gives you an overview of various aspects of the Right to Information Act, 2005 such as the historical development of the RTI in India, and the salient features of the Act. It looks at the impact of RTI in checking corruption and also examines various constraints in implementing the Act. The unit briefly touches upon the RTI (Amendment) 2019 which gives power to the government to set the tenure and salaries of the state and central information commissioners.
12.1 LEARNING OUTCOMES
After reading through this unit, you should be able to: • describe the historical evolution of the Right to Information in India; • analyse the impact of RTI; • describe some constraints in implementing RTI; • discuss the focus of RTI (Amendment) 2019; and • examine the issues related to the implementation of RTI in India.
51 12.2 RIGHT TO INFORMATION: CONCEPT & EVOLUTION
Information is crucial for vibrant democracy, good governance, accountable administration and overall transparent system. Access to information is equally important as dissemination of information. Access to information not only facilitates active participation of people in the democratic governance process, but also promotes openness, sincerity and merit in the entire system. Right to Information Act, 2005 is a great step in this endeavour. The Act can be used for securing access to information under the control of public authorities and to promote transparency and accountability in the working of every public authority so as to usher in good governance.
Media makes use of RTI to access credible and authentic information and report news/facts accurately and objectively. Being a powerful tool in the hands of media, the right to information heralds a new age of investigative journalism and create a paradigm shift in building trust between people and the state and a harmonious relationship between the two.
According to RTI Act, 2005, the term “right to information” means the right to information accessible under this Act. This deals with the information held by or under the control of any public authority and includes the right to — • inspection of work, documents, records; • taking notes, extracts or certified copies of documents or records; • taking certified samples of material; • obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in any other device; It is essential to note that only that information which already exists and is held by the public authority or held under the control of the public authority is given under the RTI Act.
Historical Development of Right to Information The commitment towards a transparent and accountable government is not confined to India but various countries across the globe have enacted laws and legislations to make information accessible to public. The first RTI law was enacted by Sweden in 1766, largely motivated by the parliament’s interest in access to information held by the King. Finland was the next to adopt, in 1951, followed by the United States, which enacted its first law in 1966, and Norway, which passed its laws in 1970. At present more than 85 countries, including UK, France, Australia, New Zealand and Canada, Greece, Austria, Italy, etc. have enacted national level RTI laws.
In India, the misuse of authority and power by the government during the time of Internal Emergency of 1975–77 led to expression for citizen’s right to information in 1977. However the real quest for the Act began in1990 when Mazdoor Kisan Sangathan in Rajasthan started a movement for RTI in which they demanded the information regarding the development work carried in rural areas. With the result, RTI Act was enacted in Rajasthan in 2000. Earlier Tamil Nadu was the first state 52 to enact a law on RTI in 1997 while Delhi had RTI Act in 2001. Expressing the intent of an informed citizenry the government introduced the Freedom of Information Bill, 2000 in the Parliament which was halted for about two years and was finally passed by the Parliament in December 2002. It received the assent of the President of India in January 2003. However, the Act contained certain loopholes due to which it was criticised on various grounds and was not notified.
In 2004 the central government constituted the National Advisory Council (NAC) for advising the government and finally, in 2004 the RTI Bill was introduced in the Parliament and it received the assent of the President in 2005.
12.3 RIGHT TO INFORMATION ACT, 2005
The intent and objective of the Right to Information Act, 2005 has been significantly mentioned in its preamble which states that it is “an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority”. Further, it is stated that the Constitution of India has established democratic Republic; and democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption.
Salient Features of RTI Act The Act promises to make the right to information more progressive, participatory and meaningful, as it encourages the common citizen to enthusiastically participate in the whole process of governance. The citizens are not only free to ask for information from the government but also have the right to get it.
The scope of the Act extends to all authorities and bodies under the Constitution of India. The Act extends to Central and state governments and local bodies. The non-governmental organisations (NGOs) substantially funded, directly or indirectly, by the public funds also fall within the ambit of this Act.
A duty has been cast, in Section 4 of the Act, on every public authority to suo motu provide to the public with the information as prescribed. A citizen has to merely make a request to the concerned Public Information Officer (PIO) specifying the information sought by him. The fee payable is reasonable and the information is to be provided free of cost to citizens living below the poverty line.
To ensure that the information sought is provided quickly, Section 7 of the Act makes it mandatory for the PIO to provide the information within 30 days. If the information requested concerns the life or liberty of a person, it has been made mandatory to provide it within 48 hours of the receipt of the request. The Act provides for penalties in case of failure to provide information in time, or for refusing to accept an application for information, or for giving incorrect, incomplete or misleading information, or destroying information and so on. In addition, the Information Commission has also been empowered to recommend disciplinary action against the government servants.
The Act establishes an appeal system too. The first appeal lies to an officer within the organisation who is senior in rank to PIO. The second appeal lies in the Information Commission. 53 In the case of security and intelligence agencies and organisations, which are exempted from the provisions of this Act, if there were cases of allegation of corruption and human rights violation, such exemption would not be available. In cases of allegations of violation of human rights, information would be made available after the approval of the Information Commission. Check Your Progress: 1 Note: 1) Use the space below for your answers. 2) Compare your answers with those given at the end of the Unit. 1) What is the time limit for PIOs for providing information? ......
2) Whether NGOs are covered under RTI Act, 2005? ......
3) What is in the preamble of the Act? ......
12.4 RIGHT TO INFORMATION AND INDIAN CONSTITUTION
The right to information has been has been considered as a part of constitutional law of the country after the writ petitions has been filed by the print media in the Supreme Court seeking enforcements of certain logistical implication of the right to freedom of speech and expression and challenging governmental orders for control of newsprint, bans on distribution of paper etc. 54 In the case of People’s Union for Civil Liberties vs Union of India AIR 2004 SC 1442 : (2004) 2 SCC 476, it was held that “Right to Information is a facet of the freedom of ‘speech and expression’ as contained in Article 19 (1) (a) of the Constitution of India. Right to Information, thus, indisputably is a Fundamental Right.”
In State of U.P. vs. Raj Narain case (1975) 4 SCC 428, it has been held by the Supreme Court that “in a Government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of this country have a right to know every public act, everything that is done in a public way, by their public functionaries. They are entitled to know the particulars of every public transaction in all its bearing”.
In S. P. Gupta vs. Union of India (1981) Supp SCC 87, the Supreme Court recognised that a democratic society cannot keep the activities of the government hidden from the public in order to avoid accountability and criticism. Recognising a “right to know which seems implicit in the right of free speech and expression,” the Court said: “Where a society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their government is doing. The citizens have a right to decide by whom and by what rules they shall be governed and they are entitled to call on those who govern on their behalf to account for their conduct. No democratic government can survive without accountability and the basic postulate of accountability is that the people should have information about the functioning of the government. It is only if people know how government is functioning that they can fulfill the role which democracy assigns to them and make democracy a really effective participatory democracy”
In Secretary, Ministry of Information and Broadcasting vs. Cricket Association of Bengal, the Supreme Court held in 1995 that “The right to participate in the affairs to the country is meaningless unless the citizens are well informed on all sides of the issues, in respect of which they are called upon to express their views. One-sided information, misinformation and non- information all equally create an uninformed citizenry which makes democracy a farce …”
12.5 INSTITUTIONS COVERED UNDER RTI
According to the RTI Act, all public authorities are obligated to provide the information to the citizens. Here “public authority” means any authority or body or institution of self-government established or constituted— a) by or under the Constitution; b) by any other law made by the Parliament; c) by any other law made by State Legislature; d) by notification issued or order made by the appropriate government, and includes any— i) body owned, controlled or substantially financed; and ii) Non-Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government.
55 12.5.1 Information to be given by the public authorities All public authorities after the enactment of the Act are mandated to publish the following information every year: i) The particulars of its organisation, functions and duties; ii) The powers and duties of its officers and employees; iii) The procedure followed in the decision making process, including channels of supervision and accountability; iv) The norms set by it for the discharge of its functions; v) The rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; vi) A directory of its officers and employees; vii) The names, designations and other particulars of the Public Information Officers; and viii) Other prescribed information. 12.5.2 Information which cannot be accessed by the public There are certain areas of information which have been kept out of the purview of the Act. They include:
a) Information disclosure of which would prejudicially affect the sovereignty and integrity of India, or relations with foreign State or that may lead to incitement of an offence;
b) Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
c) Information the disclosure of which would cause a breach of privilege of the Parliament or the State Legislature;
d) Information, including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
e) Information received in confidence from foreign government;
f) Information which would impede the process of investigation or apprehension or prosecution of offenders;
g) Cabinet papers, including records of deliberations of the Council of Ministers, Secretaries and other officers; and(h) Information which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information.
56 12.6 IMPACT OF RIGHT TO INFORMATION
The Right to Information Act, 2005 has not only strengthened the right to know of an individual but also mandated the public authorities to be more accountable and transparent in their functioning. This is now a tool used by responsible citizens as well media to bring out many hidden scams and malfunctioning of the public machinery. The impact of the legislation can be put under the following heads:
I) Promoted an informed citizenry: The Act provided the people with the mechanism to access information, which can be utilised by them to seek explanations and to ask about the decisions taken by them and the consequences of those decisions. The citizens can now inquire about the schemes and policies of the government which has been created for them. According to the provisions of the Act, the authorities are also mandated to upload the necessary information for access to citizens in their official website.
II) Promotion of citizen-government partnership: The RTI Act provides a framework for the promotion of citizen-government partnership in carrying out the programmes for the welfare of the people. The principle of partnership is derived from the fact that people are not only the ultimate beneficiaries of development but also the agents of development. The stakeholders’ participation leads to better projects and more dynamic development. Under the RTI regime, citizens’ participation has been promoted through access to information and involvement of affected groups/communities in the design and implementation of projects. The disclosure of information has enabled the beneficiaries to assume a central role in the design and execution of projects.
III) Reduction in corruption: Lack of transparency and accountability encourages government officials to indulge in corrupt practices. Due to RTI regime, there is greater transparency in the working of public departments. As a result, there is a better understanding of the decision-making process and greater accountability of government. According to Transparency International (TI), RTI Act has been playing a major role in the decline of corruption in India. Impact of RTI: Some Examples It will be useful for you to look at some examples of the impact of the RTI Act: Crawford Market Redevelopment: According to a 12 October 2009 report of Hindustan Times ‘4 yrs on, RTI goes strong’, the RTI Act was used to uncover the Rs 1,000 crore loss which the Brihanmumbai Municipal Corporation was ready to incur by letting a private developer undertake the Crawford Market redevelopment.
Mani Lal Ratan (2019) state editor of Dainik Bhaskar, Raipur, gave several examples relating to impact of RTI in his book. Some of them are given below:
Management Institute’s Admission Criteria Vaishnavi Kasturi a visually- impaired student, in 2007 was denied a seat in one of the country’s premier 57 management institutes – despite her impressive score at the entrance examination. Ms. Kasturi wanted to know why, and wondered whether it was because of her physical disability. She filed an RTI application to request the institute to disclose their selection process. Although she failed to gain admission to the institute, her RTI application meant that IIM had to make its admission criteria public. It emerged that the entrance exam, the Common Admission Test, actually mattered little compared to Class 10 and 12 results.
Adarsh Society Scam The applications filed by RTI activists were instrumental in bringing to light links between politicians and military officials, among others. The 31- storey building, which had permission for six floors only, was originally meant to house war widows and veterans. Instead, the flats went to several politicians, bureaucrats and their relatives. The scandal led to the resignation of Ashok Chavan from the post of chief minister of Maharashtra.
Exorbitant expenditure on toilet construction In the response to an RTI query by an activist in October 2012, she was told by the Basic Education Department that that from April 2007 to October 2012, the Uttar Pradesh government had released Rs 3225.81 lakh for the construction of 1538 toilets, meaning thereby that toilets were constructed at the cost of more than Rs 2.09 lakh per toilet as against standard cost of Rs 24, 000 per unit of construction as fixed by Government of India. It was also revealed that out of Rs 3225.81 lakhs, Rs 1944 lakh were allocated to only district, Agra, meaning that more than 60% of total funds allocated for toilets went to one district. Rest 74 districts of U. P. got less than 40% share. Districts like Bijnor, Jyotiba Phule Nagar, Kashiram Nagar, Maharajganj, Shamli, Shrawasti, Sonebhadra and Chhatrapati Shahuji Maharaj Nagar got no money for toilet constructions in five years.
Foreign Jaunts: In 2009, Shyamlal Yadav, a Special Correspondent in India Today, got a prestigious award, for using RTI Act to expose foreign jaunts by ministers and junketeering by bureaucrats causing loss to the exchequer.
RTI Investigations carried out by Indian Express, Pune revealed that 377 babies died in Sassoon, YCM hospital NICUs in Feb. 2011. RTI query revealed deaths of 377 babies in the neo-natal intensive care units. Major causes of death were respiratory distress syndrome, sepsis, asphyxia and congenital diseases. In Sassoon burns ward: 3000 women admitted in 5 years, 1900 succumbed. RTI investigation revealed ventilators, ICU, Operation theatre missing; non-functional air conditioners, shortage of staff and medicines.
Thus RTI Act gave ordinary citizens the right to ask questions to government authorities and equipped them with some means to take on corruption.
58 Check Your Progress: 2 Note: 1) Use the space below for your answers. 2) Compare your answers with those given at the end of this unit. 1) What is the relationship of Adarsh Society scam in Maharashtra and RTI? ......
2) What was decided by the Supreme Court in PUCL vs. Union of India case? ......
3) What are Transparency International views about RTI in India......
12.6 CONSTRAINTS IN IMPLEMENTING RTI
There are various constrains in implementing RTI. Among the factors that have impacted the gains made under the RTI regime are: • Exclusion of departments and organisations from the purview of RTI • The manner in which information is structured and organised • The time frame in which information is provided • Preparedness of public bodies to provide information • Monitoring and enforcement of the RTI Act Several civil liberties activists feel that it is the government and the judiciary that together pose a “serious threat to the RTI” as suggested by a former Central Information Commissioner Shailesh Gandhi. He has said that the government’s 59 infrastructure such as training and resources for the implementation of the RTI is “woefully inadequate.” He also added that the manner in which courts had been granting stays on orders of the information commission indicated a “dangerous trend.”
A study by the Right to Information Assessment and Analysis Group (RaaG) has indicated that nearly 60 per cent of the commissions reported inadequate infrastructure as their biggest problem. Inadequate staff and low budgets were the most commonly cited problems. According to Lal, “The main obstacle to the RTI fulfilling its potential is the attitude of bureaucrats who still treat it as a burden and provide information on a need-to-know basis. Transparency in governance also entails administrative reforms the authorities are reluctant to undertake.
The ineffectiveness of information commissions is another factor hampering the RTI. Activists have been opposing the government’s practice of appointing retired bureaucrats as information commissioners. Those who spent their professional lives opposing disclosure of information are unlikely to be votaries for access to information.”
There are some other constraints too in the effective implementation of RTI Act. They include:
Lack of basic infrastructure: The PIOs are required to provide information through photocopies, soft copies etc., but these facilities are not easily available at district level and therefore it becomes a challenge to get information from Block/Panchayat level. Also the limited use of information technology delays the procedure of providing information within the stipulated time.
Lack of qualitative information: The information which has been provided under the Act has been found dissatisfactory by the information seeker. According to the data, approximately 75 per cent people are not satisfied with the information provided by the authorities.
Information not provided within prescribed time limit: The Act sets down the deadline for providing information which is 30 days, but the information is not provided within 30 days in many cases.
Untrained PIOs and authorities: It has been observed that the PIOs lack basic training and are unaware of the recent RTI judgments. Also, the frequent transfers/ changes in the PIOs adds to the challenge.
Pendency of RTI appeals: Just as the pendency of cases is increasing in our Indian courts every year, the pendency of RTI appeals is also on rise.
12.8 RIGHT TO INFORMATION (AMENDMENT) ACT, 2019
In July 2019, the Right to Information (Amendment) Bill, 2019 was passed by both Houses of Parliament giving the government powers to set salaries and service conditions for Information Commissioners. Later on the President of India gave his assent to the Bill. 60 It amended Section 13 (5) of the RTI Act. Before the amendment, Section 13(5) provided that salaries, allowances and other terms and conditions of the service of the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner while that of an Information Commissioner shall be same as that of an Election Commissioner. According to the amendment, the term of offices, salaries and allowances and other terms and conditions shall be “as prescribed by the Central Government.” The argument given by the government was that “The functions being carried out by the Election Commission of India and the Central and State Information Commissions are totally different. The Election Commission of India is a Constitutional body; on the other hand Central Information Commission and State Information Commission are statutory bodies established under the right f Information Act 2005.”
The amendment has faced criticism from civil society members, activists and opposition parties who believe that the RTI architecture has been diluted and the move would take away independence of the commissions. The government, however, argues that it will put out as much information in the public domain as possible in order to reduce the need for RTI applications. The amendment would correct certain anomalies in the RTI Act and strengthen the overall RTI structure and there will be no interference in the independence and autonomy of the Act.
Need to widen the scope of RTI The Right to Information Act, 2005 is considered to be one of the most progressive and democracy - enhancing legislation enacted in free India. The Act gave ordinary citizens the right to ask questions to government authorities and acted as a deterrent for government servants against taking arbitrary decisions. According to estimates, nearly 60 lakh applications are being filed every year by common people as well as the media.
The relevance of the Act lies in providing information to public by the authorities. The CIC, in its various cases, tried to widen the scope and ambit of the Act, but the ineffective enforcement of the orders leaves the objective of transparent administration unfulfilled. There is a great need to widen the scope of RTI Act. Private schools and institutions, which are often reported for their arbitrary administration, are also excluded from the purview of RTI Act and so are cooperative societies. Only those entities which are substantially aided by the government can be brought under RTI. At present Political parties are also out of the scope of RTI Act. Some of these steps will contribute to the effectiveness of the RTI Act enabling it to usher in greater transparency at various levels and strengthen the foundations of democracy Check Your Progress: 3 Note: 1) Use the space below for your answers. 2) Compare your answers with those given at the end of this unit. 1) What is the major focus of the RTI (Amendment) Act 2019? ......
...... 61 2) If any court of law forbids any information to make public, can that be obtained through RTI Act? ......
3) What are the infrastructural problems at block/ panchayat level to provide information under RTI? ......
12.9 LET US SUM UP
The RTI Act is considered as one of the most successful laws which gave ordinary citizens the right to ask questions to government authorities and equipped them with some means to take on corruption. The Unit provides an overview of the Right to Information Act, 2005 which has now become an indispensible part of good governance. The Act is a central legislation passed by Parliament of India. The legislation also provides penal provisions against public officers in case of non-compliance of the provisions of the Act. Several Supreme Court judgments also support right to know, i.e. right to information for Indian citizens. At present political parties and several private institutions serving public are out of the purview of the RTI Act, 2005.
With the help of some examples, the unit explained how the RTI Act has been successful in exposing corruption in India. However, like any other legislation, the RTI Act has also problems in its effective implementation which need to be addressed. With the advancement of time, there is a need to enlarge its scope for greater transparency and accountability. The existing loopholes need to be removed to ensure its proper implementation to meet the objective of the Act.
In July 2019, the RTI Act was amended which gave power to the government to set the tenure and salaries of the state and central information commissioners. The government view is that the amendment would strengthen and streamline the RTI Act and remove some existing anomalies; while the activists argue that the government would interfere with the functioning of RTI thus affect its autonomy.
Understanding of the RTI Act is important for you as can use it to assert your right to information which is also your fundamental right incorporated under Freedom of Speech and Expression, as enshrined in Article 19(1)(a) of our 62 Constitution of India. 12.10 FURTHER READINGS
Right to Information: Towards Transparent Governance; Mani Lal Ratan (2019), Kindle Edition
Law Relating to Right to Information Dr. Ashish K. S. Massey and Anshuman K.S. Massey, Orient Publishing Company, New Delhi, Second Edition (2015, Reprint 2016)
Handbook on the Right to Information Act, P. K. Das (Fourth Edition) Universal Law Publishing Company, New Delhi
Right to Information: A Step By Step Guide - Nandini Sahai and Vishnu Rajgadia (2008) Publisher: FES-India, MICCI and UNESCO
12.11 CHECK YOUR PROGRESS: POSSIBLE ANSWERS Check Your Progress: 1 1) The Act makes it mandatory for the PIO to provide the information within 30 days. If the information requested concerns the life or liberty of a person, it has been made mandatory to provide it within 48 hours of the receipt of the request.
2) The non-governmental organisations (NGOs) substantially funded, directly or indirectly, by the public funds also fall within the ambit of the RTI Act, 2005.
3) The preamble states that it is “an Act to provide for setting out the practical regime of right to information for citizens to secure access to information under the control of public authorities, in order to promote transparency and accountability in the working of every public authority”. Further, it is stated that the Constitution of India has established democratic Republic; and democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption. Check Your Progress: 2 1) The applications filed by RTI activists were instrumental in bringing to light links between politicians and military officials, among others. The 31- storey building, which had permission for six floors only, was originally meant to house war widows and veterans. Instead, the flats went to several politicians, bureaucrats and their relatives. The scandal led to the resignation of Ashok Chavan from the post of chief minister of Maharashtra.
2) In People’s Union for Civil Liberties vs Union of India AIR 2004 SC 1442 : (2004) 2 SCC 476, it was held that “Right to Information is a facet of the freedom of ‘speech and expression’ as contained in Article 19 (1) (a) of the Constitution of India. Right to Information, thus, indisputably is a Fundamental Right.”
3) According to Transparency International (TI), RTI Act has been playing a major role in the decline of corruption in India. 63 Check Your Progress: 3 1) According to the amendment, the term of offices, salaries and allowances and other terms and conditions shall be as prescribed by the Central Government.
2) Information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court, cannot be obtained through RTI Act.
3) The PIOs are often required to provide information through photocopies, soft copies etc. At block/panchayat level the offices are not well equipped and therefore it becomes a challenge to get information from there. The limited use of information technology also delays the procedure of providing information within the stipulated time.
64 REFERENCES http://www.wipo.int/portal/en/index.html http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf http://www.garph.co.uk/IJARMSS/Jan2015/7.pdf http://blog.ipleaders.in/remedies-available-copyright-infringement-india/ http://www.thehindu.com/news/national/copyright-bill-cleared-artistes-entitled- to-lifelong-royalty/article3447052.ece http://nujslawreview.org/wp-content/uploads/2015/02/01_prashant.pdf International Telecommunication Union. ICT Facts and Figures 2017. Switzerland, Geneva, July 2017. Http://www.itu.int/ict. National Crime Record Bureau. Cyber Crimes. Chapter-18. ncrb.nic.in. Parthasarathi Pati. “Cyber Crime”. http://www.naavi.org. Rebecca Bryant. “What Kind of Space is Cyberspace?” ISSN 1393-614X. Minerva - An Internet Journal of Philosophy 5 (2001): 138–155. Software Freedom Law Center. Intermediaries, users and the law –Analysing intermediary liability and the IT Rules. https://sflc.in/. Sushanth. “Emerging trends & challenges in Cyber Law”. International Journal of Advances in Computer Science and Cloud Computing. ISSN: 2321-4058. Vol1, issue 1.May-2013. Talwant Singh. “Cyber Law & Information Technology”. http:// www.delhidistrictcourts.nic.in. Trend 6: Security analysis. The Zettabyte Era: Trends and Analysis. June 2007 United Nations Convention on the use of Electronic Communications in International Contracts. United Nations publication. ISBN: 978-92-1-133756-3. January 2007. Https://www.uncitral.org/ Whittle B. David, Cyberspace: The Human Dimension. W.H. Freeman Co., New York, 1996, p.7. Cited in http://infoscape.org. William Fisher. “Freedom of Expression on the Internet”. The Berkman centre for internet and society. Harvard Law School. https://cyber.harvard.edu. http://www.ceac.in https://indiancaselaws.wordpress.com https://indiankanoon.org/ Https://www.csoonline.com/. http://odishapolice.gov.in/sites/default/files/PDF/2-HISTORY.pdf http://righttoinformation.gov.in/rti-act.pdf http://portal.unesco.org/ci/en/files/26828/ http://www.right2info.org/cases/r2i-s.p.-gupta-v.-president-of-india http://www.caluniv.ac.in/global-mdia-journal/ http://rtiforyou.info/?page_id=312 http://www.onlineresearchjournals.com/aajoss/art/49.pdf 65 http://rti.gov.in/rticorner/studybypwc/progress_made.pdf http://subhashgoudappanavar.blogspot.in/2014/03/critical-evaluation-of-right- to.html https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source= web&cd=4&ved=0ahUKEwjP6cjGn7DQAhUJQo8KHbflCfYQFggu MAM&url=http%3A%2F%2Fshodhganga.inflibnet.ac.in%2Fbitstream%2 F10603% 2F57390%2F12% 2F12_chapter%2 5205.p df&usg=AFQjCNG3P7puboan CHtoiTnnuFw1vH6AzA&bvm= bv.139250283,bs.2,d.c2I&cad=rja http://www.thehindu.com/todays-paper/tp-national/10-years-after-rti- transparency-under-cloud/article7212302.ece http://timesofindia.indiatimes.com/india/RTI-backlog-burden-Waiting-period- 60-years-in-MP-17-in-West-Bengal/articleshow/44766766.cms http://rti.gov.in/rticorner/studybypwc/key_issues.pdf http://rti.gov.in/rticorner/studybypwc/Executive%20Summary.pdf
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