माननीय महानुभाव
Sub: The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, the Draft Digital Personal Data Protection Bill, and the IT Act 200 and how they fail to address the issue of copyright violations, frauds and financial accountability of Tech Giants and intermediaries operating from foreign soil and staying outside the jurisdiction of Indian laws and courts.
We do appreciate the efforts put in by your Ministry in formulating these rules and the proposed draft of the DPDP Bill. However, we would like to point out to serious lacunae that remain unaddressed.
1. While the draft DPDP Bill is about personal data, there is no law that protects the other digital data the copyright of which is owned by the citizens of India yet various digital big tech platforms and intermediaries use and abuse it without due authorisation, violating the Indian Copyright and other criminal, civil and tax laws as they stay outside the jurisdiction of Indian courts because of the immunity granted to them by the Information Technology Act 2000, Section 79, Sub-Section 1.
2. The reluctance of MeitY to invoke Section 79, Sub-Section 3 of the IT Act 2000 to rescind such immunity and the absence of stringent penal provisions in the Act that are in tune with the quantum of losses suffered by Indian IPR owners, allow the offending intermediaries to misuse the labyrinthine justice delivery system to their advantage.
3. Though DPDP Bill recognises the processing of personal data outside India by a digital platform if it’s offering goods and services and proposes to bring it under the jurisdiction of Indian courts, the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021 don’t provide a credible, and robust mechanism to protect the IPR of Indian citizens from unauthorised global exploitation, misuse, and theft.
4. The IT Rules 2021, Part II, No3 -1- b, refer to due diligence by a variety of intermediaries and mention that the intermediary shall make REASONABLE EFFORTS (by itself, and to cause the users of its computer resource to not host), display, upload, modify, publish, transmit, store, update, or share any information that (i) belongs to another person to which the user does not have any right (iv) infringes any patent, trademark, copyright, or other proprietary rights (vi) impersonates another person.
5. These Rules fail to specify or exemplify the phrase REASONABLE EFFORTS and leave plenty of room for the intermediary to indulge in legal obfuscations and subterfuges to get away with organised and deliberate theft of the IPR of Indian content creators and owners causing them losses running into thousands of crores while it profits from such theft any which way.
According to an Economic Times report dated 19th December 2022, Google, an intermediary, claimed that content creators who used its streaming platform You Tube to monetise their content, added Rs.10,000 crores to India’s GDP. Ishan John Chatterjee, Director, India, YouTube, was quoted to have said, “We continue investing in ways to enable our viewers to learn valuable skills and gain access to knowledge that helps them achieve their potential and follow their dreams.”
6. The article does not mention how did You Tube arrive at the figure of Rs.10,000 crores and what did it earn from its footprint and operations in India and if it really paid taxes on its earnings by globally distributing the content generated and owned by Indians and if it can provide a detailed account of such earnings generated in India and in the manner it was distributed among various stakeholders. However, it gives us some indication of the extent of the abuse and theft of IPR.
7. The Rules also fail to specify the civil and criminal liability of the intermediary that has actually profited from the theft of the IPR and thus, by all jurisprudential and natural justice norms, is a deemed partner in the criminal enterprise that has caused losses worth thousands of crores to Indian IPR owners.
Example: YouTube, an intermediary owned by Google, inserts advertisements during the transmission of a film on its platform and charges the advertisers for this service. It shares a part of such earnings in the form of ‘AdSense’ revenue with those who put up the content on the platform.
8. In the fast changing digital scenario, the IT Act 2000, Section 79, Sub-Section 1, has lost its relevance and a sovereign nation must not grant immunity to digital intermediaries from their criminal, civil, and corporate regulations, laws and liabilities and subject them to strong judicial scrutiny and penal action for violations committed by them.
9. We would like to point out that Indian IPR owners neither have the wherewithal not the financial might to take on Big Tech Intermediaries outside or even within India and thus the onus to protect their property is on the the state, the Government of India. Big Tech intermediaries also employ big legal firms and top-of-the-line tactical lawyers to delay and derail justice and hide behind the ‘immunity’ clause of the IT Act.
10. The intermediaries don’t just cause huge losses to the Indian IPR owners but to the government exchequer as well. They don’t provide a detailed statement of accounts to the IPR owners and content creators of the business generated by their content that’s broadcast/distributed/transmitted through intermediary platforms. The financial dealings of these intermediaries are opaque and they seemingly don’t pay taxes on the income earned by them through global distribution and monetisation of Indian content.
11. Neither the IT Act nor the new laws and rules address the issue of the digital market place in terms of varied activities of intermediaries, their business models and opaque, monopolistic, and exploitative trade practices. While other nations are imposing restrictions and creating a robust regulatory and legal framework, MeitY frames soft rules and laws for ‘intermediaries’ who conveninetly flout them and get away with gross violations of Indian laws.
12. The Intermediaries are part of a digital market place now. They have B to B, and B to C business models. They generate revneues through marketing of goods and services. They are no more ‘neutral media and content distribution platforms’ and thus to treat them differently than any other business entity is unfair, wrong and travesty of justice. They must be subjected to all Indian laws without any immunity the way an MNC or any other media and entertainment entity and a content production, distribution, and exhibition company operating in India is treated.
13. While the rest of the world has gone beyond terming ‘digital market operators’ as mere ‘Intermediaries’ and has evolved a regulatory and legal framework to deal with emerging changes and challenges of the digital world, we are still talking about harmless rules and laws and near-absent penal provisions that will hardly make any impact on transgressors.
14. In July 2022, the EU Parliament created the Digital Markets Act (DMA) and the Digital Services Act (DSA). These acts nearly take away the immunity of intermediaries and holds them responsible for the content on their platform and for the illegalities involved therein. There is also a provision for imposing heavy fines.
15. It’s evident from the language of the new IT rules that they are diluted version of EU laws. In fact, while formulating such rules and laws our government, lawmakers, and bureaucracy must take into cognisance the fact that Indian situation is different from EU or the USA that have stricter and faster enforcement of laws, particularly the ones related to copyrights, contracts, unfair and restrictive trade practices, etc. They also impose huge penalties, financial and otherwise, on offenders for their acts of omission and commission.
In view of the points made above we request you to have a relook at The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules 2021, the Draft Digital Personal Data Protection Bill, and the IT Act itself and amend them suitably to protect the rights of Indian IPR owners by incorporating robust provisions and clearly defining and fixing the criminal and civil liabilities of digital intermediaries of various hues and cries.
Yours truly,
Film Fraternity of India, Content Owners’ Collective,
khullamkhulla.wordpress.com 