2 December 2018

[Link] Cross-Sectoral Conceptions of Public Interest

My colleague, Sidharth Chopra, and I write about the differences between ostensible and actual public interest taking into account commercial dealings and the trajectory of legislative action and judicial interpretation (with reference to case law including two cases in which we've been involved on behalf of publishers and a broadcaster).

Extracts:
...what appears to be in the public interest in theory can diverge from what is actually in public interest in practice. Ultimately, exercises in advancing the public interest cannot be divorced from capitalism where commercially available products are involved in the equation. Supply and demand chains are often impervious to utopian conceptions of public interest. [....]
...the statutory regime protects both the public and creators (who are often the first owners of rights). Living in a time of capitalism has obviously ensured that creators, whether they are scientists or poets, cannot sustain themselves or their work without adequate reward. And, so, risking the dilution of the reward by limiting intellectual property rights is almost certain to adversely affect their work. It is therefore critical that the balance of rights envisaged by the statute be respected. [....]
To all appearances, public interest is being increasingly broadly interpreted by the various arms of the State, one suspects, at times perhaps without a detailed investigation into market economics. Case law certainly appears to suggest that public interest concerns have led to the dilution of private proprietary rights,  and we cannot be certain of what the effect of such dilution will be in the long run.

The entire piece is available here at MedianamaCross-Sectoral Conceptions of ‘Public Interest’: Sidharth Chopra and Nandita Saikia where it was first published. It has also been re-published at Bar and Bench

4 November 2018

Jurisdictional Ambiguity in Content Regulation

The regulatory landscape in India for content and its dissemination has seen the State's unwieldy mechanisms seeming to perpetually try to catch up to technology without ever quite succeeding. It has also seen manifestations of the State's belief that it is a purveyor of morality with an obligation to thrust its own understanding of decency on to the populace at large.

There is no doubt whatsoever that, in the realm of content law, there is an imprecise mass of regulation which can be used to impugn virtually any content. There is no way to contain the invocation of the law considering that individuals can, quite randomly, shoot off legal notices and initiate formal legal proceedings. To do so, they do not need good reasons. The law doesn't preclude such conduct even if claims made ultimately fail, as they often do. Such is the cesspool that governs the substance of content in India. And, if that weren't enough, there's also the ownership of content to contend with.

Proprietary rights in content are primarily governed by a group of intellectual property statutes including the Copyright Act and the Trade Marks Act which deal with items such as films, music, books, logos, art, and broadcasts. These statutes try to balance the rights of various stakeholders by saying that although owners have monopoly rights in content, non-owners may use content in limited ways without the permission of rights owners.

In cases where third parties do not simply have the right to use content without authorisation whether by availing of exceptions to infringement or by relying on the doctrinal mandate that the law not concern itself with trifles or inconsequential infringement, third parties may occasionally be able to 'forcibly' acquire authorisation to use content through the mechanisms of statutory and compulsory licences.

None of these avenues involve negotiated contracts between the parties concerned, and all of them help to keep content from being unfairly sequestered, possibly by pricing licence fees ludicrously high, once it is made publicly available. They highlight two aspects of content statutes: firstly, that the law attempts to balance the rights of all the stakeholders, and, secondly, that the laws which govern content are rarely laws which deal with substance alone. On the contrary, most content laws also deal with how to ensure that content reaches the public... or (!) how to ensure that content is kept from the public possibly through mechanisms such as those created by the 1952 Cinematograph Act.

In other words: content laws deal with not only substance but also with carriage. This tends to lead to rather sticky situations as there are, additionally, distinct laws which focus on almost nothing but carriage. It can also lead to formal claims related to various statutes having overlapping jurisdictions which is exactly what occurred the case of Star India v Department of Industrial Policy & Promotion decided in October 2018 by the Supreme Court.

In this 2018 decision, the Copyright Act and the TRAI Act came under scrutiny after the issue of the 'Telecommunication (Broadcasting and Cable) Services Interconnection (Addressable Systems) Regulations, 2017' and the 'Telecommunication (Broadcasting and Cable) Services (Eighth) (Addressable Systems) Tariff Order, 2017' by TRAI which contained mandates about how television channels could be bundled together in bouquets and how much could be charged for them was challenged. It was possible to essentially construe TRAI's acts to be an indirect method of controlling the substance of content broadcast by stipulating pricing which, by itself, is not alien to its mandate. The question has been how far its mandate extends.

In a rather perplexing decision, however, the Supreme Court largely ignored the notion of balance embedded in the Copyright Act and held that the TRAI Act would supercede the Copyright Act in certain circumstances:
"We are, therefore, clearly of the view that if in exercise of its regulatory power under the TRAI Act, TRAI were to impinge upon compensation payable for copyright, the best way in which both statutes can be harmonized is to state that, the TRAI Act, being a statute conceived in public interest, which is to serve the interest of both broadcasters and consumers, must prevail, to the extent of any inconsistency, over the Copyright Act which is an Act which protects the property rights of broadcasters. We are, therefore, of the view that, to the extent royalties/compensation payable to the broadcasters under the Copyright Act are regulated in public interest by TRAI under the TRAI Act, the former shall give way to the latter."

In effect, it could be argued that the impugned TRAI regulation & tariff order has amounted to the insertion of an additional non-voluntary copyright licence into the 1957 Copyright Act without the sanction of parliament, a licence not contemplated by the statute at all. Whether an external agency such as TRAI has (or should have) the mandate to effectively create and present as a fait accompli an additional non-negotiated licence in a field ostensibly alien to it is, of course, debatable although, not entirely unrelatedly, in a 2007 case, the Delhi High Court recognised the competence of TRAI to fix tariffs and to prescribe the Standard Interconnection Agreements dehors the 1995 Cable Television Networks  (Regulation) Act, stating: “What must not be overlooked is that the subscriber has a fundamental right of viewership which has preeminence over that of the broadcasters' fundamental rights. The impugned Regulations are calculated to protect the viewers' interest.”

Thus, it appears that TRAI is seen as an official authority which promotes the public interest. Unfortunately, ‘public interest’ is an ill-defined term subject to ‘judicial idiosyncrasy’, to borrow a term from a completely different context, and it is not evident that the manner in which courts have chosen to harmonise TRAI’s powers with related powers, rights, and functions in statutes which are independent of TRAI is definitely in the interest of the public.

To further muddy waters is the fact that there have been questions about the jurisdiction of TRAI for a while now. In July 2018, for example, there were concerns raised about whether the substance of vast portions of its ‘Recommendations on Privacy, Security and Ownership of the Data in the Telecom Sector’ fell within its remit. Interestingly, by October 2018, reportage indicated that there were plans to have issues like data privacy, security and cybercrime be overseen by TRAI possibly instead of by IT Ministry.

There is, of course, an Information Technology Act which was passed in 2000, but it is far from clear how technologies such as those associated with IPTV should be dealt with by the existing legal framework since, with almost no interpretive legerdemain, they could easily also be considered to fall within the scope of the 1995 Cable Television Networks Act which, incidentally, also contains Programme and Advertisement Codes in its 1994 Rules that can be used to proscribe the dissemination of content on the basis of its nature.

Extant legal mechanisms quite simply do not appear to be equipped to handle the range of content, either qualitatively or quantitatively, or the technology of the 21st century. All that appears to be clear at this point is that there is a great deal of, often competing and sometimes contentious, regulatory and statutory overlap. How policy should be shaped and how the existing mess should be untangled remains an open question which, in coming years, will  have to be somehow untangled.

(Note: The author, Nandita Saikia, has advised broadcasters on issues of law and legal policy.)

[Link] The Rule of Law

I critique the rule of law with reference to violence and its own history, pointing out that it has often been 'the voice of the immensely privileged codified in statute and subordinate legislation' in a piece that was published by Smashboard and later by Firstpost.

Extracts

"...the rule of law is not an egalitarian concept and its history demonstrates that it not underlain by gender neutrality. It may be possible to force it into another, less discriminatory mould more mindful of equality and individual rights but that would require recognising our current understanding of the rule of law for what it often is: an idea perpetuated by white men living in sexist societies themselves and forming the theoretical basis for the racial hierarchies which plague all of us today, often with their ideas being used to support economic drain and worse of countries primarily populated by non-white peoples.

[....]

The Constitution of India promises individuals equality and dignity. However, that promise may well be betrayed by the rule of law if it is not structured to avert violence induced by such facets of one’s identity as gender, sex, and sexual orientation.

[....]

Violence is unlikely to be eradicated in our own time but it can be contained, and it is legitimate to ask that the rule of law be structured to protect the most vulnerable amongst us. The most vulnerable are not just those who are poor but anyone who lacks the privilege of power which is, of course, most of us and women, upper class or not, in particular. After all, privilege is always relative, and persons who are abused invariably have less privilege than their abusers. If the rule of law is not structured to address the concerns of those with comparatively less privilege, its adoption would too often merely result in access to law and not in access to justice."


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

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