Copyright Directive in the Digital Single Market – the EU Controversy Explained

Here’s why the internet could potentially have broken!

Till a month ago, the world waited with bated breath as members of the European Parliament contemplated a proposed directive to herald a new Copyright Law within the European Union. This Directive aims to create a digital single market and has been named as such. However, the proposal has been a hotbed for controversy right since its very inception in 2016. While many advocate both for and against its enforcement, not all understand why so many open letters were written to the Parliament, especially by internet giants like Wikipedia and why Facebook and Google staunchly opposed it as well. On the other hand, stalwarts of the entertainment industry, especially sound and music, were vehemently in favour of the law. 

The Parliament, in its esteemed wisdom, did not bite the bullet and sent the proposal back for revision. It will now be tabled again in September which is but a momentary…

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Law is organic. It is ever-evolving. Its most difficult challenge, however, is to evolve as quickly as the changes being embraced by the society. It is indeed a tough task considering the breakneck speed at which we are advancing. Arguably, the biggest fear facing society today is the probable inability of law to keep pace […]

via DNA Technology Bill – Everything You Need to Know — LawSkills blog

No Reform in Procedure for Allotment of Cases: Supreme Court

On 6th July, 2018, the Supreme Court laid to rest yet another debate on the question of judicial accountability. In the case of Shanti Bhushan vs. Supreme Court of India and Ors. MANU/SC/0702/2018, a petition filed by Senior Advocate and Former Law Minister, Mr. Shanti Bhushan, it had been contended that concentration of unfettered powers in a single person was anti-democratic. Thus, reforms in the process of determination of were sought.  While conceding that the Chief Justice of India was indeed the Master of Roster, it was argued that the process of allocating cases should be determined by the collegium of senior most judges instead of the CJI alone so as to prevent abuse of power. While the 2 judge bench of Hon’ble Justices A.K. Sikri and Ashok Bhushan decided not to act upon the said petition, they did shed considerable light on judicial accountability and the qualities that need to be possessed by judges. The opinion of the judges have been summarized as follows –

  • On the petitioner’s contention that the role of CJI as the ‘master of roster’ was not based on any constitutional provision, Justice Sikri expressly acknowledged that the Constitution is silent on the role of Chief Justice as the Master of the Roster. However, he added that this role was “based upon healthy practice and sound conventions which have been developed over a period of time and that stands engrafted in the Supreme Court Rules.”
  • Reliance was placed on the cases of Campaign for Judicial Accountability and Reforms vs. Union of India & Anr. And the Asok Pande Case which affirmed the powers of the CJI as the master of the roster. Further, these cases reaffirmed that the CJI was an institution in himself and, thus, his administrative power of allocating cases cannot be delegated to the Collegium.
  • It was observed that –

This kind of system which is devised for the appointment of Judges cannot be replicated when it comes to the role of the Chief Justice as Master of Roster. We have to keep in mind that the Chief Justice, as the head of the Supreme Court of India, and the Chief Justices of the High Courts, have to perform many other functions, on the administrative side, in their capacities as Chief Justices. Framing of the Roster and constituting the Benches is one among them. In case the expression ‘Chief Justice’ is to be interpreted as ‘Collegium’, it would be difficult to have smooth day to day functioning of the Supreme Court, or for that matter the High Courts.

  • However, Justice Sikri reiterated the role of the CJI as that of being ‘first amongst the equals” and thereby clarified that the bench to which a case has been allotted will have complete dominion over the case.
  • The Bench further outlined the qualities to be possessed by a judge such as –

– Wisdom

– Patience

– Fairness and Balance

– Independence of Mind

– Knowledge of the Law

– Moral Courage or Fortitude

– Sense of Practical Reality

– Commitment to Administration of Justice in Accordance with Law

Thus, the Supreme Court has once again refused to entertain reforms to the CJI’s power as master of the roster as against transparency in the procedure of allocating cases. A huge furor had been created in this regard in a press conference on January 12, 2018 wherein the 4 senior most judges of the Supreme Court had expressed concerns about this very issue. However, status quo has been maintained as of now.

Full text of this judgment can be found at – Shanti Bhushan vs. Supreme Court of India and Ors. MANU/SC/0702/2018

The Controversy Behind EU’s Digital Single Market Economy Explained

Till a fortnight ago, the world waited with bated breath as the members of the European Parliament contemplated a proposed directive to herald a new Copyright Law within the European Union. This Directive aims to create a digital single market and has been named as such. However, the proposal has been a hotbed for controversy right since its very inception in 2016. While many advocate both for and against its enforcement, not all understand why so many open letters were written to the Parliament, especially by internet giants like Wikipedia and why Facebook and Google staunchly opposed it. While stalwarts of the entertainment industry, especially sound and music, were vehemently in favour of the law.

The Parliament, in its esteemed wisdom, did not bite the bullet and sent the proposal back for revision. It will now be tabled again in September which is but a momentary respite from all the brouhaha.

For all those wondering why the internet generation cried rivers together, here’s a breakdown of why this Directive was touted as being the next step in surveillance and would have ‘broken’ the internet.

The primary issue revolved around Articles 11 and 13 of the Directive, popularly known as the ‘link tax’ and ‘meme ban’, respectively.

In short, Article 11 would have made it impossible for websites like Wikipedia, news aggregators like Google and media monitoring companies to upload even snippets of news articles from sources like the BBC without first paying a license fee to the original publishers. Hence, the link tax nomenclature. You would be taxed for linking to another’s original content.

On the other hand, the meme ban would have required all content sought to be uploaded on the internet to first be filtered for plagiarization so as to prevent infringement of copyright. All internet companies and websites would have to automatically filter the content and no exceptions was provided for honest/genuine parodies, memes, vines, etc. It needs no mention that the cost of developing and installing such auto-filtering software would have been humongous for the companies, especially considering the huge amount of data that is sought to be uploaded every second of every day.

Additionally, such filtering would also have enabled the authorities to monitor or ‘surveil’ internet usage of the people. Someone seeking to upload copyrighted material, in any form irrespective of the intention, would have raised red flags. Opponents of the directive had gone as far as to say that this would have made even made NSA’s surveillance look like child’s play.

As of yet, it is not clear which Articles of the proposed Directive will be revised before re-tabling. However, it is hoped that all genuine points raised by stakeholders in the industry will be given due consideration. Or else, the internet as we know it will change forever.

Union Cabinet Approves DNA Technology Bill – All You Need to Know About the Law in Making

Law is organic. It is ever-evolving. Its most difficult challenge, however, is to evolve as quickly as the changes being embraced by the society. It is indeed a tough task considering the breakneck speed at which we are advancing. Arguably, the biggest fear facing society today is the probable inability of law to keep pace with advancement in technology.

We cannot govern what the law has not envisaged. And, what is ungoverned can very likely cause anarchy and disruption, to say the least.

However, technology, while being a worthy adversary to law, is also an indispensable ally. With ingenious criminals harnessing a devilish kind of creativity these days, it is technology which makes it possible to even detect crimes in the first place, leave alone nabbing the culprits.

Thus, the Union Cabinet’s approval of the DNA Technology (Use and Application) Regulation Bill, 2018 granted today comes as a welcome and much-needed reprieve. This Bill, in essence, is aimed towards expanding the scope of application of DNA-based forensic technologies in order to assist the justice delivery system in India. No one can disagree about the usefulness of such technology in bringing crimes home to criminals, providing relief to victims and their families and serving justice to the society at large.

This Bill provides for mandatory accreditation and regulation of DNA laboratories ensuring the reliability of test results and protection of data from misuse or abuse.

Thus, this Bill hopes to achieve an expedited delivery of justice and a heightened rate of conviction. The comprehensiveness and ambit of the Bill will enable cross matching of DNA samples so as to reconcile cases of missing persons with the discoveries of unidentified bodies all across the country in the hope of establishing identity of victims.

Similarly, in cases of crimes that are committed against the human body, such as violent crimes like murder, rape, causing grievous hurt, or physical contact crimes like kidnapping, trafficking, abduction, etc. as well as crimes against property where the culprit might leave behind some imprint of himself (like burglary, theft, etc.) can now be solved easily with Forensic DNA profiling that is part and package of this Bill.

Presently, only a small percentage of such cases go through the process of DNA testing. However, with the expanded use of this technology envisaged in the Bill, criminals of India need to beware!