Art and Indian Copyright Law: A Statutory Reading

A look at how the Indian Copyright Act, 1957, as amended in 2012, interacts with art (other than films and sound recordings), and, in particular, with Indian art. The first part of this text comprises a feminist and post-colonial reading of the Indian copyright statute while later parts focus on interpreting the provisions of the statute in relation to art.

31 August 2017

Data Protection, Financial Privacy, and Domestic Violence

(A quick note based on old tweets, some of them here.)

Wanting privacy is not about having 'things to hide'— it's about protection against malignant totalitarianism some day, maybe years later. It's about protection from data leakage, maybe not today but decades later, to malignant entities or groups or even individuals. In private life, amongst other issues, it's about protection against abusers, in the present or future. Once data is collected and collated, it's probably not going to disappear. And it makes all those whose data is collected vulnerable to abuse unless there are adequate, well-enforced safeguards. And data collection without safeguards, without privacy is a potential disaster.

Privacy is not illegal per se. Even assuming the state is and always will be benign, even assuming there's no fear of sectarian violence, etc., and totalitarian surveillance states pose no concerns,  there's still a problem. If your data were with umpteen people, many whom you'd struggle to hold accountable should they disclose it for the asking to a third person without authorisation, it'd likely be but one step for anyone a vendetta against you to find out a great deal about your life and to them use that information to act against you. That means that abusers would potentially be able to access their target's data -- much of what there is to know about that person: where they eat, shop, visit.

There's no argument to be made against tracking tax evasion and terrorists but there is also no argument to be made to the effect that the apparatus and process of data collection and retention may legitimately be susceptible to being used to endanger ordinary citizens acting legally. Surely, individuals have the right to have private information about themselves be subject to robust, transparent, workable safeguards that don't make their lives even more unsafe than they already are, and which are actually enforced?

Many women rely on mechanisms that would fall flat without a basic degree of privacy to circumvent patriarchal and conservative expectations of them, and to protect themselves sometimes by hiding the truth which is often an entirely legal act. Anecdotally, women often hide alcohol consumption, pretend boyfriends are cousins, use IUDs to avoid forced pregnancy. Privately saving some money from household expenses without telling husbands is almost cultural practice in India; it isn't illegal and many women secret money because they know it's what works best to protect themselves and sometimes to feed themselves and their children.

Sans ensuring financial privacy, forcing legal but secret money out into the open can destroy women's financial security not to mention endanger their physical safety. For example, it was completely unsurprisingly reported that demonetization caused domestic violence to rise: abusive men weren't pleased to discover that their wives had secreted money.

In the absence of data protection and privacy, tonnes of smart phones and cards are not useful for many people, especially women. We don't have meaningful laws protecting privacy. We do have a social set up where a man can, amongst other things, easily access a woman relative's bank accounts. And, so, unless clear mechanisms protecting financial privacy and data are set up, we are likely to be left with stalker-friendly policies. Props to patriarchy as always.

What's sad about this is that is isn't difficult to anticipate, and it shouldn't be impossible to attempt to mitigate the damage which could be done. Without financial privacy, unless she's lucky, a woman will always be one beating away from signing away all of her money. There is no reason at all why that should be acceptable or why the law shouldn't consider how to decrease the risks involved for women acting legally.

24 August 2017

Privacy as a Fundamental Right



A Quick Comment on International Law in Indian Courts:

There's an interesting line in the Supreme Court's judgment issued today in WP (Civil) 494 of 2012 which seems to have largely been ignored: "In the view of this Court, international law has to be construed as a part of domestic law in the absence of legislation to the contrary and, perhaps more significantly, the meaning of constitutional guarantees must be illuminated by the content of international conventions to which India is a party."

This is, of course, in stark contrast with the position which the Supreme Court had adopted in the 1980 Jolly George case: "The positive commitment of the States Parties ignites legislative action at home but does not automatically make the Covenant an enforceable part of the corpus juris of India."

Although there have been decisions in the intervening years which have veered towards the position in today's judgment, it could be argued that the unequivocal statement made today by the Supreme Court significantly widens the scope of possible claims which may be made in Indian courts. It appears that we do not need specific adoption. And that, I suspect, is significant.


(This post is by Nandita Saikia and was first published at IN Content Law.)

30 April 2017

Informational Self-Determination v Privacy (Note)

A very quick note with the text of tweets which I'd posted about how an argument relating to informational self-determination is not a 'backdoor entry' to an argument about privacy, and how the two concepts differ:

Privacy & informational self-determination are not synonymous. They emerge from distinct traditions. The latter's been around for 34+ years.

Privacy, in the US trad, is generally understood as a derivative of an 1890 paper [in which Brandeis and Warren, then concerned with covert photography, thought of it in terms of the right to be let alone]. Informational self-determination likely emerged in 1967.

Refs to 34 years re info self determination come from a German case though Alan Westin conceptualized it earlier [in his book 'Privacy and Freedom' where he re-defined privacy in terms of the individual's right to control the disclosure, retention, and dissemination of his personal information].

Info self determination is largely unrecognised by Indian law although oblique unnamed references could be considered to have been made [in the 2011 Privacy Rules under the IT Act, for example].

Info self determination is also not really a US thing — reams have been written about how to bring it into US law. It's barely compatible »
» with the US 'right to be let alone' concept of privacy which draws on tort law & isn't esp amenable to capitalist or neolib appropriation.

US consti rights in pvt settings are abwehrrechte, not implicated sans state coercive power/significant encouragement, Blum v Yaretsky '82. [That's 1982.]

German law, however, is much more 'proactive' and more easily invoked to protect the individual & grant autonomy even in pvt settings.

Westin aside, within Germany, informational self-determination finds basis in the work of Niklas Luhmann. It has communal benefits. »
» In 140: Separating & constraining overflow of individuals' info from one societal subsystem to anr facilitates democratic participation.

So, this thread's scattered but bottomline—ref info self determination, not privacy is not some lawyer's sleight of hand. They're different.

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