VIEWPOINT / Need for a censorship Bill, rather than one on convergence

P K Vasudeva

The CONVERGENCE Bill 2000 is unclear on several Intellectual Property Rights (IPR) issues that could arise out of convergence of the electronic media. For every exciting opportunity they offer, information technology (IT) and the Internet are also open to piracy and cyber crimes. At present, at least 60 per cent of Indian software is pirated, said speakers at a seminar on “Intellectual Property and Information Technology” held in Bangalore recently.

The Communication Convergence Bill, which the communications minister Ram Vilas Paswan, describes as a “landmark legislation” came in for strident criticism at the seminar. Various speakers described it as “foolish, thoughtless, draconian, unacceptable and vague on IPR-related issues”.

The Bill intends to provide a legal framework to regulate the broadcast and telecom sectors. It would substitute a plethora of earlier legislations, such as the Indian Telegraph Act 1885, the Indian Wireless Telegraphy Act 1933, the Telegraph Wire Unlawful Possession Act 1950, the Cable Television Networks (Regulation Act) 1995 and the Telecom Regulatory Authority of India Act 1997. It envisages a regulatory framework for providing and licensing of (a) network infrastructure facilities, (b) network services, (c) application services, and (d) content application services. However, it is silent on IPR-related issues, which are very important in view of the Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement of the World Trade Organisation (WTO).

The main objection to the proposed legislation was that it sought to create a Convergence Commission of India having nine members, who will be nominated by the government. Besides, the Commission shall be obliged to follow the directives of the Union government, whose decision would be final. The other objection is that the Bill does not allow data privacy or data protection, which is part of the TRIPs, agreement.

Computer software can be legally converged into various media such as TV, telephone, palmtops and even watches, throwing up several intellectual properties-related issues for both hardware and software. Security of the data is very important, say IT law experts.

In cases of overlapping and multiple jurisdictions, especially for regulation, such as broadband provided by a power utility, who should determine tariffs? Pratibha Singh and Jyoti Sagar, Delhi-based advocates who are IT law experts said that initially, the superior technology of convergence hardware and brand consciousness among buyers may reduce piracy. However, in the end, the grey market would be difficult to curb.

As a solution, equipment manufacturers and software companies should converge on their own. The software sector should always offer legal software at fair prices and in bulk to discourage the grey competition. Performing artistes and the entertainment industry will also see far reaching changes.

When Subhash Ghai’s movie Taal was released, the distribution rights were sold in at least seven different modes: terrestrial rights to Doordarshan, satellite licences to Zee and Sony, pay channels like Star Movies, and Siti Cable, video rights to lending libraries, besides music, audio and internet rights. With convergence, only one behemoth licence will be allowed with the exception of terrestrial rights.

Justice S Rajendra Babu said that opinion was divided on whether software should be free from patents and intellectual property rights laws like the Indian Patent Act 1970. However, the Convergence Bill is completely silent on IPR.

The Bill provides for the Commission to enforce some codes on the content (the material that would be broadcast or telecast). It contains certain “codes” that would be enforced by imposing “reasonable restrictions.” One code says that the Commission would “restrain portrayal of violence.” Another says that “emphasis would be laid on Indian culture.” Yet, another says that the content shall not be prejudicial to India?s relationship with other countries.

These are all controversial codes. Who will decide “violence” “Indian culture”, and acts prejudicial to nation’s external relations. These are quite ambiguous and susceptible to misuse.

The Convergence Commission of India, in the present form, will be a government body, like the Press Council of India. The proposed Convergence Commission might also turn out to be Censorship Commission of India.
The web sites could give completely wrong information and remove it off the site anytime, with no record of such wrong information having been posted there. In the mean time, such a web site could have done enormous damage. The Bill is also silent on cross-media ownership and foreign direct investment in convergent media. The silence seems to be deliberate for manipulating at a later stage.

In areas, such as cable TV, that the industry has already developed, the new Act can do very little. Actually there is a requirement of bringing out a Bill on censorship rather than convergence.

(Dr P K Vasudeva is chairman, Institute of Development Studies and Training, Chandigarh)