[A2k] A2k Digest, Vol 52, Issue 11

Alberto Cerda alberto at derechosdigitales.org
Fri Aug 22 13:26:36 PDT 2014


As far as I know, this seems to be a peculiar development of criminal
enforcement in India.

Time ago, I read an article by Prashant Reddy and Sai Vinod, *titled The
Constitutionality of Preventing “Video Piracy” through Preventive Detention
in Indian States*, in which they explained this development in a few Indian
states.
In Latin American countries, this sort of abuses is still unknown. We do
have significant and serious problems with criminal enforcement of
copyright, but not long-term preventive detentions.

Best,

A.


On Fri, Aug 22, 2014 at 3:00 PM, <a2k-request at lists.keionline.org> wrote:

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> Today's Topics:
>
>    1. Preventive Detention for Copyright Violation (Nehaa Chaudhari)
>    2. [Updates] GC 2015, New Delhi, India (Nehaa Chaudhari)
>
>
> ----------------------------------------------------------------------
>
> Message: 1
> Date: Thu, 21 Aug 2014 20:07:26 +0530
> From: Nehaa Chaudhari <nehaa at cis-india.org>
> To: a2k at lists.keionline.org, IP-ENFORCEMENT at ROSTER.WCL.AMERICAN.EDU
> Subject: [A2k] Preventive Detention for Copyright Violation
> Message-ID: <53F60426.2050407 at cis-india.org>
> Content-Type: text/plain; charset=utf-8; format=flowed
>
> 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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