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POLICY SUPPORT IN MEDIA AND

ENTERTAINMENT FOR MAKING IT

GLOBALLY COMPETITIVE-

SOME PERSPECTIVES

POLICY SUPPORT IN POLICY SUPPORT IN MEDIA AND MEDIA AND

ENTERTAINMENT ENTERTAINMENT FOR MAKING IT FOR MAKING IT

GLOBALLY GLOBALLY COMPETITIVECOMPETITIVE--

SOME PERSPECTIVESSOME PERSPECTIVES

A PRESENTATION A PRESENTATION BY BY

PAVAN DUGGAL,PAVAN DUGGAL,CHAIRMAN, ASSOCHAM CHAIRMAN, ASSOCHAM

CYBERLAW COMMITTEE,CYBERLAW COMMITTEE,ADVOCATE, SUPREME COURT OF ADVOCATE, SUPREME COURT OF

INDIA,INDIA,HEAD , PAVAN DUGGAL HEAD , PAVAN DUGGAL

ASSOCIATESASSOCIATES1919--1212--0707

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MEDIA & MEDIA & ENTERTAINMENTENTERTAINMENT

��TODAY, MEDIA AND TODAY, MEDIA AND ENTERTAINMENT ARE LARGELY ENTERTAINMENT ARE LARGELY DIGITALDIGITAL��USE OF THE ELECTRONIC USE OF THE ELECTRONIC FORMAT, COMPUTERS, FORMAT, COMPUTERS, COMPUTER SYSTEMS AND COMPUTER SYSTEMS AND COMPUTER NETWORKSCOMPUTER NETWORKS

POLICY SUPPORT POLICY SUPPORT ��INDIA HAS ALREADY PROVIDED INDIA HAS ALREADY PROVIDED LEGAL BASIS FOR THE LEGAL BASIS FOR THE ELECTRONIC FORMATELECTRONIC FORMAT��THE INFORMATION THE INFORMATION TECHNOLOGY ACT, 2000TECHNOLOGY ACT, 2000

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THE IT ACT, 2000 THE IT ACT, 2000 ––OBJECTIVES (contd)OBJECTIVES (contd)

�� AIMS TO PROVIDE FOR THE LEGAL AIMS TO PROVIDE FOR THE LEGAL FRAMEWORK SO THAT LEGAL FRAMEWORK SO THAT LEGAL SANCTITY IS ACCORDED TO ALL SANCTITY IS ACCORDED TO ALL ELECTRONIC RECORDS AND OTHER ELECTRONIC RECORDS AND OTHER ACTIVITIES CARRIED OUT BY ACTIVITIES CARRIED OUT BY ELECTRONIC MEANS.ELECTRONIC MEANS.

ELECTRONIC ELECTRONIC GOVERNANCEGOVERNANCE

�� Legal requirements of any information Legal requirements of any information or any other matter being in writing or in or any other matter being in writing or in the typewritten or printed form, shall be the typewritten or printed form, shall be deemed to have been satisfied if such deemed to have been satisfied if such information or matter isinformation or matter is——

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ELECTRONIC GOVERNANCE ELECTRONIC GOVERNANCE (contd.)(contd.)

(a)(a) rendered or made available in rendered or made available in an an electronic form; and electronic form; and

(b)(b) accessible so as to be usable for a accessible so as to be usable for a subsequent reference.subsequent reference.

AUTHENTICATION OF AUTHENTICATION OF ELECTRONIC RECORDSELECTRONIC RECORDS

�� Any subscriber may authenticate an Any subscriber may authenticate an electronic record electronic record

�� Authentication by affixing his digital Authentication by affixing his digital signature. signature.

�� Any person by the use of a public key of Any person by the use of a public key of the subscriber can verify the electronic the subscriber can verify the electronic record. record.

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LIABILITY OF LIABILITY OF NSPsNSPs

�� LAW HAS PROVIDED THE LAW HAS PROVIDED THE CONCEPT OF NETWORK SERVICE CONCEPT OF NETWORK SERVICE PRODUCERPRODUCER

�� ALMOST ALL MEDIA AND ALMOST ALL MEDIA AND ENTERTAINMENT PLAYERS ARE ENTERTAINMENT PLAYERS ARE NETWORK SERVICE PROVIDERS, NETWORK SERVICE PROVIDERS, IF THEY PROVIDE THEIR IF THEY PROVIDE THEIR SERVICES ON THE ELECTRONIC SERVICES ON THE ELECTRONIC NETWORKSNETWORKS

Section 79, IT ACT, 2000Section 79, IT ACT, 2000

�� For the removal of doubts, it is hereby For the removal of doubts, it is hereby declared that no person providing any declared that no person providing any service as a network service provider shall be service as a network service provider shall be liable under this Act, rules or regulations liable under this Act, rules or regulations made thereunder for any third party made thereunder for any third party information or data made available by him if information or data made available by him if he proves that the offence or contravention he proves that the offence or contravention was committed without his knowledge or was committed without his knowledge or that he had exercised all due diligence to that he had exercised all due diligence to prevent the commission of such offence or prevent the commission of such offence or contravention.contravention.

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Network Service Providers:Network Service Providers:When Not LiableWhen Not Liable

�� Explanation.Explanation.——For the purposes of this For the purposes of this section, section, ——

(a) (a) "network service provider" means an "network service provider" means an intermediary;intermediary;

(b) (b) "third party information" means any "third party information" means any information dealt with by a network service information dealt with by a network service provider in his capacity as an intermediary.provider in his capacity as an intermediary.

BROADCASTING BILLBROADCASTING BILL��AN ATTEMPT TO REGULATE AN ATTEMPT TO REGULATE CERTAIN ASPECTS OF CARRIAGE CERTAIN ASPECTS OF CARRIAGE AND CONTENT OF AND CONTENT OF BROADCASTINGBROADCASTING��AIMS TO PROVIDE STRONG AIMS TO PROVIDE STRONG CENTRALIZED REGULATION OF CENTRALIZED REGULATION OF CABLE & BROADCASTINGCABLE & BROADCASTING

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NEW LICENSINGNEW LICENSING��NO BROADACSTING SERVICE NO BROADACSTING SERVICE WOULD BE POSSIBLE WITHOUT WOULD BE POSSIBLE WITHOUT OBTAINING A LICENCE IN THIS OBTAINING A LICENCE IN THIS REGARD.REGARD.��LICENCE TO BE OBTAINED LICENCE TO BE OBTAINED FROM A STATUTORY BODYFROM A STATUTORY BODY

BRAIBRAI��SECTION 4SECTION 4-- EVERY SERVICE EVERY SERVICE PROVIDER TO REGISTER HIS TV PROVIDER TO REGISTER HIS TV OR RADIO CHANNEL WITH THE OR RADIO CHANNEL WITH THE BROADCASTING REGULATORY BROADCASTING REGULATORY AUTHORITY OF INDIA( BRAI)AUTHORITY OF INDIA( BRAI)��BRAIBRAI-- CONTENT CENSORCONTENT CENSOR

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CONTENT CODECONTENT CODE��CONTENT THAT IS OBSCENE OR CONTENT THAT IS OBSCENE OR VULGARVULGAR��OF A TERRORIST OF A TERRORIST ORGANIZATIONORGANIZATION��COPYRIGHT PROTECTEDCOPYRIGHT PROTECTED��OF A FOREIGN CHANNELOF A FOREIGN CHANNEL

MANDATORY SHARINGMANDATORY SHARING��OF CERTAIN BROADCAST SIGNALS OF CERTAIN BROADCAST SIGNALS WITH THE PUBLIC SERVCE WITH THE PUBLIC SERVCE BROADCASTERSBROADCASTERS

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ADVERTISING ADVERTISING COVEREDCOVERED

��ALL ELECTRONIC AND DIGITAL ALL ELECTRONIC AND DIGITAL ADVERTISING COVERED WITHIN THE ADVERTISING COVERED WITHIN THE AMBIT OF THE DEFINITION OF AMBIT OF THE DEFINITION OF ““CONTENTCONTENT”” UNDER SECTION 2UNDER SECTION 2��BROADCAST BILL TO COVER THE BROADCAST BILL TO COVER THE CONTENT OF ADVERTISEMENTS.CONTENT OF ADVERTISEMENTS.

GRAY AREASGRAY AREAS��LIMITED APPLICABILITYLIMITED APPLICABILITY��SEEKS TO ADDRESS CABLE & SEEKS TO ADDRESS CABLE & BROADCASTING ISSUESBROADCASTING ISSUES��PIECEMEAL LEGISLATIONPIECEMEAL LEGISLATION--HARDLY ABLE TO WITHSTAND HARDLY ABLE TO WITHSTAND THE TEST OF TIME, GIVEN ITS THE TEST OF TIME, GIVEN ITS INABILITY TO DEAL WITH INABILITY TO DEAL WITH DIGITAL BROADCASTINGDIGITAL BROADCASTING

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GRAY AREASGRAY AREAS��NEED FOR A FUTURISTIC NEED FOR A FUTURISTIC APPROACHAPPROACH��NEED TO RATIONALIZE THE NEED TO RATIONALIZE THE PROPOSED BILL WIH THE PROPOSED BILL WIH THE INFORMATION TECHNOLOGY INFORMATION TECHNOLOGY ACT, 2000ACT, 2000

IT ACT, 2000 & BIT ACT, 2000 & B’’CAST CAST BILLBILL

��DUTIES, RIGHTS AND DUTIES, RIGHTS AND RESPONSIBILITIES OF THE RESPONSIBILITIES OF THE BROADCASTING SERVICE BROADCASTING SERVICE PROVIDERS AND CONTENT PROVIDERS AND CONTENT BROADCASTING SERVICE BROADCASTING SERVICE PROVIDERSPROVIDERS

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IT ACT, 2000 & BIT ACT, 2000 & B’’CAST CAST BILL(contdBILL(contd))

��OVERLAP WITH THE CONCEPT OVERLAP WITH THE CONCEPT OF A NETWORK SERVICE OF A NETWORK SERVICE PROVIDER UNDER INFORMATION PROVIDER UNDER INFORMATION TECHNOLOGY ACT, 2000TECHNOLOGY ACT, 2000--CONFLICTS INHERENTCONFLICTS INHERENT

WHICH LAW IS WHICH LAW IS OVERRIDING?OVERRIDING?

��SECTION 81 OF THE IT ACT, 2000SECTION 81 OF THE IT ACT, 2000��SECTION 44 OF THE BSECTION 44 OF THE B’’CAST BILL, CAST BILL, 20062006

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ISSUES OF ISSUES OF CONVERGED CONVERGED

BB’’CASTINGCASTING��ISSUES OF BROADCASTING IN ISSUES OF BROADCASTING IN THE CONVERGED ENVIRONMENT THE CONVERGED ENVIRONMENT NOT AT ALL COVERED NOT AT ALL COVERED ��MOBILE TV + IP TV NOT MOBILE TV + IP TV NOT COVERED BY THE PROPOSED BILLCOVERED BY THE PROPOSED BILL

DRACONIAN POWERSDRACONIAN POWERS��Draconian powers granted to the Draconian powers granted to the Central Government to takeover the Central Government to takeover the running and management of any running and management of any channel, in the times of any national channel, in the times of any national emergencyemergency��No transparent basis or parameters No transparent basis or parameters spelt out , which need to be complied spelt out , which need to be complied with, before the exercise of such a powerwith, before the exercise of such a power

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DRACONIAN POWERSDRACONIAN POWERS��Potentiality of abuse immensePotentiality of abuse immense��A exploitative tool for the settling of A exploitative tool for the settling of political scores against not political scores against not –– soso--comfortable news and other channelscomfortable news and other channels��Against the root of Indian democracy Against the root of Indian democracy and the principles enshrined in the and the principles enshrined in the Constitution of IndiaConstitution of India

STAKEHOLDERS STAKEHOLDERS INPUTSINPUTS

��NEED TO INCORPORATE ALL NEED TO INCORPORATE ALL THE INPUTS OF ALL RELEVANT THE INPUTS OF ALL RELEVANT STAKEHOLDERSSTAKEHOLDERS��WE NEED TO SHAPE THE FUTUE WE NEED TO SHAPE THE FUTUE TOMORROWTOMORROW

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THAT WAS A PRESENTATION THAT WAS A PRESENTATION --BY BY

PAVAN DUGGAL,PAVAN DUGGAL,ADVOCATE, SUPREME COURT OF ADVOCATE, SUPREME COURT OF

INDIAINDIAPRESIDENT,PRESIDENT,

CYBERLAWS.NETCYBERLAWS.NETMEMBER, MAC, ICANNMEMBER, MAC, ICANN

pduggal@nde.vsnl.net.inpduggal@nde.vsnl.net.inpavanduggal@hotmail.compavanduggal@hotmail.com