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.

23 August 2012

The Applicability of the 2009 IT Act Rules to Blocking Online Information

Section 69A(1) of the Information Technology Act, 2000, (the ‘IT Act’) empowers the Central Government (or any of its authorised officers) to direct, by written order, any Government agency or intermediary to block (or have blocked) public access to any information generated, transmitted, received, stored or hosted in any computer resource. And under Section 69A(3) of the IT Act, an intermediary that does not comply with a direction for blocking is liable to be punished with imprisonment for a term which may extend to seven years and with a fine. (Intermediaries are also required to designate a person to handle blocking under the relevant ‘Blocking Rules’.)

The power to block or have blocked public access to information under Section 69A(1) of the IT Act cannot be exercised arbitrarily — it is intended to be subject to various restrictions in both the IT Act and the Rules.

Firstly, blocking is an option only if the Central Government or its authorised officer thinks that blocking is necessary or expedient on certain limited grounds specified in the Section 69A(1) of the IT Act, namely: ‘in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating’ thereto.

Secondly, the reasons for or basis upon which the order (for blocking public access) is made must be recorded in writing.

Thirdly, Section 69A(2) of the IT Act explicitly states: ‘The procedure and safeguards subject to which such blocking for access by the public may be carried out, shall be such as may be prescribed.’ It is this third factor which gives rise to questions.

The relevant procedure and safeguards have been laid out in the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, (i.e. the “Blocking Rules”). The officer authorised by the Central Government to issue directions for the blocking of the information contemplated by the Rules (i.e. the  'information') is the Group Coordinator, Cyberlaw Division in the Department of Information Technology, Ministry of Communications and Information Technology, Government of India, Electronics Niketan,6, Central Government Offices Complex, New Delhi-110003. (Relevant Notification)

This officer authorised to issue directions for blocking is referred to as the ‘Designated Officer’ in the Blocking Rules. He is required to maintain records under Rule 15 of the Blocking Rules, and under Rule 5, he is authorised to direct any Government Agency or intermediary (by written, reasoned order) to block access to information, on receipt of any request from the Nodal Officer or a competent court, provided that in the case of a request from the Nodal officer, the approval of the Secretary in the Department of Information Technology under the Ministry of Communications and Information is obtained.

The Nodal Officer is another officer who finds mention in the Blocking Rules — Rule 4 of the Blocking Rules requires government ministries, departments and notified agencies to designate one of its officers as a ‘Nodal Officer’, inform the Central Government’s Department of Information Technology of the same and publish Nodal Officer’s name on their website.

Under Rules 6, 7, 8 and 11 of the Blocking Rules, any person may send a complaint to the relevant Nodal Officer requesting that certain information be blocked (although it isn't entirely clear how to determine the relevant Nodal Officer), and the complaint may be forwarded by the Nodal Officer to the Designated Officer. A complaint rooted through the Nodal Officer shall be forwarded to the Designated Officer only after being scrutinised by the organisation to which the Nodal Officer belongs, and being found to have met the criteria in Section 69A of the IT Act. Further,  a request cannot be sent directly to the Designated Officer unless it has the approval of the Chief Secretary of the concerned State or Union Territory.

Once forwarded to the Designated Officer, the request is supposed to be 'decided' within seven working days of its receipt. It is generally required to be scrutinised by a review committee which, among other things, is required to attempt to give the intermediary hosting the impugned information the opportunity of being heard. If the intermediary does not appear before the committee, the committee will make a recommendation on the basis of the available information to it.

The recommendation of the committee is then submitted to the Secretary in the Department of Information Technology under the Ministry of Communications and Information, (i.e. the “DIT Secretary”) by the Designated Officer. The public’s access to the impugned information is to be blocked only after the approval of the DIT Secretary is obtained.

Rule 9 of the Blocking Rules, however, may supersede Rules 6, 7 and 8 of the same Rules if there is an emergency. Under Rule 9 of the Blocking Rules, the review by a committee is deferred, and an interim decision to block access may be taken by the DIT Secretary via a written, reasoned order for the blocking of public access. This interim order may be later confirmed as per the provisions of the Rule.

Under Rule 10 the Blocking Rules, the procedures contemplated by Rules 6 to 9 do not apply where there is a valid court order for the blocking of public access to information. In such cases, the DIT Secretary only needs to be kept informed by the Designated Officer who is required to immediately initiate action to implement the court order.

Finally, Rule 16 of the Blocking Rules states that ‘strict confidentiality shall be maintained regarding all the requests and complaints received and actions taken thereof’.

It is worth noting that there is a second set of Rules which have been issued under Section 69A of the IT Act: the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, (the ‘ IMD Rules’) which came into force on October 27, 2009. These Rules define the terms ‘decryption’, ‘intercept’, and ‘monitoring’ in IMD Rules 2(f), (l) and (o) respectively, as follows:
decryptionmeans the process of conversion of information in nonintelligible form to an intelligible form via a mathematical formula, code, password or algorithm or a combination thereof;

intercept’ with its grammatical variations and cognate expressions, means the aural or other acquisition of the contents of any information through the use of any means, including an interception device, so as to make some or all of the contents of a information available to a person other than the sender or recipient or intended recipient of that communication, and includes- (a) monitoring of any such information by means of a monitoring device; (b) viewing, examination or inspection of the contents of any direct or indirect information; and (c) diversion of any direct or indirect information from its intended destination to any other destination;

monitor’ with its grammatical variations and cognate expressions, includes to view or to inspect or listen to or record information by means of a monitoring device;

Although the IMD Rules are under Section 69A of the IT Act which deals with the ‘Power to issue directions for blocking for public access of any information through any computer resource’, they do not appear to explicitly deal with the procedure applicable to blocking. From a plain reading of the definitions of ‘decryption’, ‘intercept’, and ‘monitoring’ which are dealt with in detail in the IMD Rules, it is unclear whether the blocking of websites would in fact fall within the scope of the definitions (unless, possibly, if blocking were subsumed in ‘diversion’ mentioned in the definition of ‘intercept’). Pertinently, though, only the definition of ‘decryption’ is an exhaustive definition.

As such, it appears that orders dealing with the blocking of public access to websites would be made under Section 69A of the IT Act in conjunction with the Blocking Rules, and without reference to the IMD Rules.

(This post is by Nandita Saikia and was first published at Indian Copyright.)


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