[A2k] Preventive Detention for Copyright Violation

Nehaa Chaudhari nehaa at cis-india.org
Thu Aug 21 07:37:26 PDT 2014


A few weeks ago the state of Karnataka, India amended a legislation as 
the result of which persons may be arrested on the 'suspicion' of 
engaging in audio/video piracy for commercial purposes; with the 
possibility of preventive detention of upto one year.

Are there (even remotely) similar provisions in other jurisdictions?


http://cis-india.org/a2k/blog/spicy-ip-nehaa-chaudhari-august-13-2014-preventive-detention-for-copyright-violation



  Preventive Detention for Copyright Violation: Karnataka Amends the
  'Goondas' Act

Posted byNehaa Chaudhari <http://cis-india.org/author/nehaa>at Aug 13, 
2014 12:46 PM |Permalink 
<http://cis-india.org/a2k/blog/spicy-ip-nehaa-chaudhari-august-13-2014-preventive-detention-for-copyright-violation> 

Filed under:Copyright 
<http://cis-india.org/search?Subject=Copyright>,Access to Knowledge 
<http://cis-india.org/search?Subject=Access+to+Knowledge>
Last week, the Government of Karnataka amended the Karnataka Prevention 
of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, 
Goondas, Immoral Traffic Offenders and Slum Gamblers Act, 1985 (“the 
Karnataka Goondas Act”). The Karnataka Goondas Act would now also apply 
to offences under the Indian Copyright Act, 1957 and the Information 
Technology Act, 2000. This article presents an overview on the various 
provisions of this law and discusses the potential impact of the amendment.

The//blog post by Nehaa Chaudhari was firstpublished on SpicyIP 
<http://spicyip.com/2014/08/guest-post-karnatakas-goondas-act-an-examination.html?utm_source=rss&utm_medium=rss&utm_campaign=guest-post-karnatakas-goondas-act-an-examination>on 
August 13, 2014.

------------------------------------------------------------------------


      Goondas and Goondas Acts

Now used in ‘Indian English’ to mean a ‘hired thug or bully 
<http://www.oxforddictionaries.com/definition/english/goonda>’, 
/goonda/gunda/seems to have Hindi/Urdu origins 
<http://dictionary.reference.com/browse/goondas>. Incidentally, 
/thug/itself has Hindi origins 
<http://dictionary.reference.com/browse/thug>, with its meaning 
encompassing a range of criminals from robbers to murderers to gangs of 
criminals, or /anti-social elements/.

In 1923, the Goondas Act 
<http://www.lawsofindia.org/pdf/west_bengal/1923/1923WB1.pdf>(India’s 
first) was enacted in Bengal. As per the Act, a /goonda///residing 
within, habitually frequenting or visiting /Culcutta/either by 
herself/himself or as part of a gang, /committing/has 
committed/assisting in the commission of/is about to commit/a 
non-bailable offence against person or property, or the offence of 
criminal intimidation or causing breach of peace was liable for action 
under this legislation. Similar laws were soon enacted across the 
country, including the Central Provinces and Berar Goondas Act, 1946 of 
Madhya Pradesh, (later struck down as unconstitutional in /State of 
Madhya Pradesh/v./Baldeo Prasa/d <http://indiankanoon.org/doc/882909/>), 
the Uttar Pradesh Control of Goondas Act, 1970 (see: an illustrative 
decision); the Rajasthan Control of Goondas Act, 1975 (see:an 
illustrative decision 
<http://indiankanoon.org/docfragment/510607/?formInput=goonda%20act%20doctypes:rajasthan>); 
The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug 
Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers and 
Video Pirates Act, 1982 (legislation prior to the 2004 amendment 
available here), and the Karnataka Prevention of Dangerous Activities of 
Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic 
Offenders and Slum-Grabbers Act, 1985, which was amended a few weeks ago.

While these legislations are broadly similar in their object – that of 
curtailing the criminal activities of ‘/goondas’/with provisions for 
removal as well as preventive detention, there is a variation in scope 
of the legislation. Karnataka and Tamil Nadu having extended the 
application of their respective Goondas Acts to a larger number of 
activities, including video piracy – which is the focus of this post.


      The Karnataka Goondas Act: What Remains and What has Changed

*Scope and Definition*
Enacted in 1985 to curb activities of “anti-social” elements, which have 
frequently disturbed the “even tempo of life” especially in “urban 
areas”, the Karnataka Goondas Act extended to ‘bootleggers, drug 
offenders, gamblers, goondas, immoral traffic offenders and slum 
grabbers’. Amongst others,the 2014 amendment, which comes into effect 
“at once”, extends the scope of this legislation to “video or audio 
pirates” and “digital offenders”.

As per the new amendment, Section 2(iv) of the Act first refers to a 
“digital offender” as ‘/when he is engaged, or is making preparations 
for engaging, in any of his activities as a digital offender, which 
affect adversely or are likely to affect adversely the maintenance of 
public order.///An Explanation to Section 2 under Clause (f) specifies 
that a “digital offender” is /any person who knowingly or deliberately 
violates for commercial purposes any copyright law in relation to any 
book, music, film, software, artistic or scientific work and also 
includes any person who illegally enters through the identity of another 
user and illegally uses any computer or digital network for pecuniary 
gain for himself or for any other person or commits any of the offences 
specified under section 67, 68, 69, 70, 71, 72, 73, 74 and 75///of the 
Information Technology Act, 2000 
<http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf>.

These mentioned sections (67-75 of the IT Act), refer to a variety of 
measures which penalize refusal to decrypt information, publication of 
obscene information, access or attempts to access a ‘protected’ computer 
or network, misrepresentation, and breach of confidentiality and 
privacy, as well as prescription of penalties for some offences. (See 
morehere 
<http://www.vakilno1.com/bareacts/informationtechnologyact/informationtechnologyact.html#67_Publishing_of_information_which_is_obscene_in_electronic_form>)

The requirement that the action be committed for a “commercial purpose” 
has been eliminated in those instances where the offence is a violation 
of any of the listed sections of the Information Technology Act, 2000.

A “video or audio pirate” as defined under amended Section 2(xiii) is 
/when he is engaged or is making preparations for engaging in any of his 
activities as a video or audio pirate habitually for commercial gain, 
which affect adversely, or are likely to affect adversely the 
maintenance of public order.///The Explanation to Section 2 under 
amended Clause (o) states that a “video or audio pirate” /means a person 
who commits or attempts to commit or abets the commission of offences of 
infringement of copyright habitually for commercial gain, in relation to 
a cinematograph film or a record embodying any part of the soundtrack 
associated with the film, punishable under the Copyright Act, 1957./

The Explanation to amended Section 2 lays down the conditions in 
which//public order shall be deemed to have been affected adversely or 
shall be deemed likely to be affected adversely,///viz. that /if any of 
the activities of any of the persons referred to in this clause directly 
or indirectly, is causing or is calculated to cause any harm, danger or 
alarm, or a feeling of insecurity, among the general public or any 
section thereof or grave or widespread danger to life or public health.//

*Preventive Detention Orders*
The amendment now means the State Government accordingly has the power 
to detain audio and video pirates and digital offenders, to prevent them 
from acting in a manner “prejudicial” to public order. In the first 
instance, such an order may not be for more than three months, it may be 
extended to a period of twelve months (Section 13), three months at a 
time, passed for the commission or the suspicion of commission of 
various offences, including copyright infringement, which under the 
Copyright Act, 1957 can only be determined by a court of law and is 
subject to subsequent appeals.

The 2014 amendment also modifies Section 17, by virtue of which no order 
of detention can be made under the National Security Act, 1980 against 
any of the persons named under the Karnataka Goondas Act, including 
audio or video pirates or digital offenders.

Section 8 requires grounds of detention to be disclosed to the detainees 
within five days of their detention, but not when it might not be in the 
public interest to do so.

*Anomalies*
This recent amendment to the Karnataka Goondas Act has resulted in 
anomalies. There are probably more; but two come to mind straight away.

/First/- preventive detention under the Karnataka Goondas Act means that 
the person arrested need not be produced before a magistrate 
immediately- there is a significantly long review process and detention 
may continue for a period of one year.This is for offences under the 
Information Technology Act, 2000, under which persons arrested have to 
be produced before a magistrate. This is also for offences under the 
Copyright Act, 1957, under which a person may be arrested only when 
found guilty of an offence by the court, whereas the Karnataka Goondas 
Act allows arrest on mere suspicion. Further, persons detained under 
this legislation cannot secure bail.

/Second-///the amendments to the Karnataka Goondas Act negate the 
exceptions laid out under the Copyright Act, 1957.While a reading of the 
Karnataka Goondas Act suggests that copyright infringement for 
commercial purposes falls under the purview of the legislation (and 
therefore non -commercial uses are excluded), however, under its 
provisions, persons may be detained (preventively) on mere suspicion as 
well.Therefore, even if a person were to be performing an activity 
permitted under the Copyright Act, 1957 (for instance, converting a 
coyrighted work into a machine readable format for the benefit of 
persons with disabilities), this person could be preventively detainedon 
the suspicion of engaging in this activity for commercial purposes.


      Constitutional Validity

*Legislative Competence*
The legislative competence of the Karnataka Government in amending the 
Karnataka Goondas Act to apply to audio and video pirates as well as to 
digital offenders is moot. /Prima facie,///these amendments seem to be 
unconstitutional.

Article 246 read with List I (Union List) of the Seventh Schedule 
<http://lawmin.nic.in/olwing/coi/coi-english/Const.Pock2Pg.Rom8Fsss%2835%29.pdf>of 
the Constitution of India specifies those subjects on which the Centre 
has the authority to make laws. Offences related to and committed by 
“video or audio pirates” or “digital offenders” as explained under the 
Karnataka Goondas Act are subjects on which the Centre has the authority 
to make laws, by virtue of the provisions relating to /posts and 
telegraphs; telephones, wireless, broadcasting and other like forms of 
communication/(Entry 31 of List I) and /patents, inventions and designs; 
copyright; trade-marks and merchandise marks and merchandise 
marks/(Entry 49 of List I).

Article 246 read with List II (State List) of the Seventh Schedule of 
the Constitution of India specifies those subjects on which the States 
have the authority to make laws. Seemingly, the Government of Karnataka 
may have chosen to make laws relating to “video or audio pirates” and 
“digital offenders” Entry I of List II, i.e., /public order/. It is my 
submission, however, that these offences would not fall under an 
understanding of “public order” and this amendment would still remain 
unconstitutional.

*Freedom of Speech*
Gautam Bhatia’s article in the Outlook 
<http://www.outlookindia.com/article/Goondagiri-Of-The-Goonda-Act/291593>(with 
a slightly modified version on his blog 
<http://indconlawphil.wordpress.com/2014/08/05/karnatakas-amendments-to-the-goonda-act-violate-article-191a/>) 
make out the case against the recent amendments to the Karnataka Goondas 
Act violating Article 19(1)(a) of the Constitution of India. Bhatia 
argues that preventive detention under this legislation would be “prior 
restraint”, where government action prevents expression before it can 
take place, which is unconstitutional in most cases. He also argues that 
in order for free speech to be restricted on the grounds of “public 
order” under Article 19(2) of the Constitution of India, the State is 
required to meet a high threshold, which the Karnataka Goondas Act does 
not meet.


      Closing Comments

The idea of introducing provisions to deal with online piracy and other 
‘digital offences’ under the Goondas Act is not a new one. Mridula Chari 
writes 
<http://scroll.in/article/673042/Why-many-states-are-using-the-1923-Goondas-Act-to-curb-digital-piracy>that 
Tamil Nadu introduced such amendments to its Goondas Act in 2004 and 
Maharashtra in 2009, with Andhra Pradesh toying with the idea in 2010. 
She also writes that the Bengali and Punjabi music industries are making 
demands of their respective governments to introduce their own versions 
of the Goondas Acts and insert similar provisions. The Economic Times 
report 
<http://articles.economictimes.indiatimes.com/2014-07-30/news/52237723_1_goonda-act-offences-offenders>on 
these recent amendments to the Karnataka Goondas Act also seems to 
suggest that these changes have been introduced for the protection of 
business interests. In contrast, in a detailed report 
<http://www.bangaloremirror.com/bangalore/cover-story/we-the-goondas/articleshow/39564603.cms>, 
the Bangalore Mirror provides various illustrations of seemingly 
innocuous actions which may attract a draconian legislation, ranging 
from forwarding a song to a friend on WhatsApp to posting comments on 
social media sites.

The prospect of the protection of business interests with draconian 
legislations which are prima facie unconstitutional, aside from being 
ridiculous is deeply concerning. Widening the scope of these 
legislations to areas on which they have no constitutional authority to 
legislate, and introducing provisions with grave ramifications on 
fundamental rights, states in their continued and extended use of the 
Goondas Act are engaging in callous ill thought out actions with a deep 
disregard for their implications.



-- 
Nehaa Chaudhari
The Centre for Internet and Society
No. 194, Second 'C' Cross
Domlur, 2nd Stage
Bangalore - 560071
Karnataka, India.
Ph: +91 80 4092 6283
Fax: +91 80 2535 0955



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