Skip to main content

Posts

First Principles: The Anticipated Non-Personal Data Governance Framework

A committee constituted by the Ministry of Electronics and Information Technology issued a draft report on non-personal data governance in India in July 2020 which it revised in December 2020 following the receipt of feedback from stakeholders. The December 2020 report envisages parallel regimes for the governance of personal and non-personal data although it does not appear to take into account how fluid the two forms of data are. The report's underlying principles also seem fairly ambiguous; the document suggests that 'regulation in India to establish rights over non-personal data collected and created in India' be 'simple, digital and unambiguous' in § 3.4(v) without specifying what it means by 'digital' or, indeed, why the regulations should be digital.  The comments contained in this write-up seek to engage with the principles which appear to underlie the December 2020 Draft Report by the Committee

[SSRN] Negotiated Content Dissemination Under Copyright Law

ABSTRACT Copyright does not function in isolation. It is supported by contract law, and it is but one of the laws which governs content, its ownership, use, and dissemination. Focusing on broadcasts, whilst recognising that the processes applicable to them also apply to other forms of dissemination in modified form, this text describes, in broad strokes, the field in which negotiated grants of copyright function from a statutory point of view, describes what goes into attempting to ensure that content per se is ready for legal dissemination, and discusses how relationships between the various stakeholders are structured to facilitate such dissemination. A 20-page working paper (that's been on my device for a while) shared as-is :  available here via SSRN . This post is by Nandita Saikia and was first published at IN Content Law . 

Comments: Proposing to De-Criminialise Copyright Offences

NOTE: These comments have not been edited, double-checked, or proof-read. They are based on first impressions of the law, and may be re-thought. Contents I.        Introduction .. 1 II.      Concerns about Criminal Provisions . 1              1.       The Specificity of Offences              2.       Definitional Issues              3.       Enforcement Processes              4.       Sentencing Guidelines              5.       Mens Rea and the Commission of Offences III.     Limitations to the De-Criminalisation Process . 11 (References to the Copyright Act are references to the Indian Copyright Act, 1957.) I.                   Introduction Indian criminal law relating to offences contemplated by its copyright statute does not appropriately address infringement: amongst other issues, it lacks nuance, is not always clear, and does not necessarily require that a person intend to commit a crime to be held guilty of it. Due to the textu

Copyright Crimes in Colonial and Contemporary Times

Copyright law, in its modern avatar, was introduced in India not because Indians themselves felt a dire for it but simply as one of the laws brought into the country by the British who had colonised the land. As in other parts of the colonised world, the 'natives' had little say in shaping the law they would come to be subject to. They watched, largely as mute and often ignorant spectators, while intellectual property regimes foist upon them contributed to the development of capitalism which, in turn, led to the vastly inequitable distribution of global wealth that persists to this day. Colonial copyright was, unsurprisingly, often an instrument of power which did not so much encourage universal learning as it held back democratisation through learning. There were controls on procedural issues adjacent to the enjoyment of copyright which included restrictions on who could register copyright, and in what sort of works copyright could be registered. Needless to say, the priori

[Link] Contouring IPR and service sector regulation against COVID-19

Over ten years ago, it was proposed to amend copyright law to facilitate access to protected content by persons with disabilities. Unfortunately, the proposal created a hierarchy and, in that form, it could not aid everyone who had a disability. Many people devoted a good deal of time to suggesting revisions to the proposal in the following years and, when the proposed amendment was finally passed, it facilitated access to protected works without reference to the type of work or disability. The law had been used as an instrument to effect positive social change: India now has one of the most robust regimes in the world to enable people with disabilities to access copyrighted works... We clearly know how to use the law for social engineering in public interest. It's hard to avoid thinking that in these times of upheaval, perhaps that's a skill we should more enthusiastically employ. Sidharth Chopra and I write about shaping the law to help fight the current crisis with refere

Continuing Royalties for Authors and Performers

The 2012 amendments introduced two provisos to Section 18 of the Indian Copyright Act, 1957, two provisions to Section 19, and a proviso to Section 38A(2), which was itself newly-inserted into the statute, with the aim of ensuring that performers and the authors of underlying works in cinematograph films and sound recordings would be entitled to continuing royalties for the use of their works and performances. The two provisos to Section 18 of the Copyright Act, 1957, which deal with continuing royalties mandate that: any assignment or waiver by the author of a literary or musical work included in a cinematograph film of the right to receive continuing royalties for, in essence, the non-theatrical use of their works is void unless the assignment or waiver is in favour of the author’s legal heirs or a copyright society for collection and distribution; and any assignment or waiver by the author of a literary or musical work (included in a sound recording which is not part of a ci

[Link] Courts, Contracts & Coronavirus

Sidharth Chopra and I write about what dispute resolution could look like in a post-pandemic world, and what we now need to be looking at as we deal with contracts, interpreting existing ones and drafting new ones... So much that we've built up over the years now seems less than infallible. We will likely have to go back to the drawing board and work towards substantially renovating the legal structures and mechanisms we've developed over the years. Thankfully, though, the fundamentals of the law which we take for granted have remained stable. Some countries are preparing for recessions of a kind not seen in our lifetimes, and we can be reasonably sure that the way we work will change. With the opportunity to cut operational costs by taking advantage of technological advances, and the precariousness of just-in-time supply chains becoming obvious, there will almost certainly be changes in both manufacturing and services sectors. The latter is also likely to spill into gove

Contracting in the Wake of Contagion

In 'The Silence of the Girls' by Pat Barker, which retells the Iliad from a woman's point of view, a priest of Apollo invokes the god when the Greek Agamemnon refuses to return his daughter to him. Apollo, as the Greeks seem to have forgotten in the moment, is the mouse God. Not long after, plague strikes their camp outside the walls of Troy. This is, of course, not the first time that Agamemnon, who comes across as being a thoroughly unpleasant person determined to impose his will on those he thinks he can dominate instead of negotiating agreements with them, has foolishly wrangled with women. He has sacrificed his daughter Iphigenia to be able to reach Troy in the first place and her mother, Clytemnestra, has sworn vengeance which she will get although Agamemnon does not yet know it. Their story has been memorably reimagined in 'The House of Names' by Colm Tóibín. Agamemnon is now more myth than man if ever he existed, and his tale is being told in the voices