A
Dissertation on
Convergence of Media – Emerging Legal Issues
By
Kapil Suravaram
NALSAR ID No. Mlh07_03
A Project paper submitted in partial fulfilment of
P.G. Diploma in Media Laws for Module – III (Convergence & New Media)
AUGUST 2004
NALSAR UNIVERSITY OF LAW, HYDERABAD
Table of Contents
Table of Contents. 2
INTRODUCTION.. 3
METHODOLOGY.. 4
MEDIA CONVERGENCE – CREATING CHANGES. 5
Convergence Means Change. 5
Media Convergence Technologies. 6
The Industry. 7
The Institutions. 7
What It Means. 8
MEDIA LAWS – AN OVERVIEW... 10
CASE STUDY.. 19
CONCLUSIONS & COMMENTS ON CONVERGENCE BILL.. 21
BIBILOGRAPHY.. 27
INTRODUCTION
Convergence of media implies convergence of technologies used by the media. Earlier Media meant Newspapers & Magazines. Later it included Radio and then Television. All these were covered for a long time under the Telegraph act. As an evolving process the laws covering the media slowly took shape. Now the surge of IT has brought about Internet and now convergence of the various media. Convergence now not only includes media but all communication activity. Telecommunications, Telegraph, Internet, Television, Radio, Print, etc., all of them have become closely connected in terms of technology. A single optical fibre cable can serve defence cameras on borders; carry telecommunications signals and supply retail television cable and radio content, besides serving many other purposes of communications.
This phenomenal development of the technologies has left the legal systems far behind. The convergence has led to exploitation of technology in an haphazard manner by powerful groups. It has become easy for a corporate to start operations in all media and communication activities with unified technologies. This has led to the question of crossholding. If a single person controls Television, Radio and Newspaper in a particular geographical area, his control over the public opinion of the people of that area is phenomenal. These issues need to be addressed with utmost immediacy. This study makes an effort to study the issues of convergence and the ability of the existing media laws to deal with it.
METHODOLOGY
Convergence refers to two different trends: [ 1 ] Convergence between the broadcasting and telecommunications sectors. Advances in technology make it possible to use different media (cable networks, terrestrial and satellite radio relay systems, computer terminals and television sets) to carry and process all kinds of information and services, including sound, images and data. This type of convergence is due to a revolution in technology (digitisation). It has economic and regulatory implications. [ 2 ] Fixed/Mobile convergence. Increasingly similar technologies are used and services provided by fixed telephone and mobile telephone systems. This type of convergence opens up prospects for operators to propose the same services to all users, regardless of the technology or networks they use.
In this study we are referring basically to the first trend. The trend of convergence between broadcasting and telecommunications sectors has thrown open a Pandora’s Box in respect to legal implications. To ensure a systematic process of understanding and disseminating the issues and information in regard to this subject, the study first digs into the meanings and trends of convergence in general in media in specific. Then the study deals with the laws dealing with the subject of media and then dwells into their effectiveness and relevance in the era of convergence.
MEDIA CONVERGENCE – CREATING CHANGES
‘ 80s was the decade of computers, 90s the Internet
and this decade will be the decade of Convergence’
The convergence between online or internet services and television has often been represented by the term Web-TV. However this does not represent the complete picture. Media Convergence can be defined as the dynamic approach or partial integration of different communication and information based market applications. A further aspect of convergence is that it brings out integrated multimedia products and services in such a way that the satisfaction of additional and multiple consumer preferences is met. The computer industry is clearly tending to augment its traditional offering with multimedia components and services. Besides the transformation of the end user device industry, telecommunication carriers and media companies will unite within an emerging market segment, i.e intelligent digital broadcasting to combine entertainment, information and network home shopping/e-commerce services.
Convergence Means Change
No matter whether one thinks in terms of technologies, information, or people, convergence is tearing down barriers as it streaks and ripples through society, industry, and institutions of all kinds. For some convergence proponents, the end product will be a massive interconnection of digital technologies. The connection can be wire or wireless, voice or data, terrestrial or space, but the goal is to enable all technologies, from the toaster on the kitchen countertop to the data server located somewhere to connect with speed, accuracy and purpose. Convergence means a world in which people are not denied access to any ideas or visions. Others view convergence as interconnection of people. The essence of convergence is the freedom to interact with people not only electronically, but also on a personal level.
Media Convergence Technologies
The electronics industry is a key player in the development and manufacturing of hard- and software, such as navigation software, set top box, cable modems, servers, end user devices, applications or security concepts. Networked multimedia services require a comprehensive hard- and software, which must be developed, installed and maintained. The program aggregators, much like the content/service creators, often decide to outsource the production of strategically irrelevant systems. Nevertheless the selection of the hard- and software interfacing is often the deciding factor for the quality and reliability of the overall service
The technologies involved in media convergence are all those used in the four essential functions -- create, display, distribute, and store -- that can be applied to anything comprised of text, visuals, or sound. Today, convergence is most often discussed in terms of the technologies used in computers, television, and telephony. The focus is on the microprocessors, the broadband delivery capability of television, and the global, networked, two-way interconnections of telephony. With analog disappearing and digital images and sounds to work with, technology focuses on how to perform the four essential functions digitally. But the converged technology needs to be as transparent to the people using it as the technologies of telephony and television are to those who use them.
An overarching cross-media, cross-modal technology approach is needed to facilitate the integration of all the various components of both existing and new enterprise communication systems, such as the PBX, voicemail, email, and fax servers, wired/wireless phones, wireless LANs, PDAs, and web access. The tools of human interaction--images, video, sound and text--can now be digitally transmitted, stored, combined and manipulated in ingenious ways that are still being discovered and perfected. An example of the technology advances is "The Edge", a family of products from VT Media are the first devices to fully address the Convergent Media / Internet / Home Network markets. The Edge Set Top Box enables several data streams, including Ethernet 10/100 to be converted to composite analog RF data streams or digital S-Video data streams compatible with all standard TV sets. Over 250 channels of various forms of TV-format data have been successfully tested.
The Content for convergence media is very crucial as well. Content/Service aggregators combine various contents and services into segment specific packages and/or channels. The content/service aggregator is customer oriented and his central task is to organize the program bundle. In doing so, he moves within the recipient as well as the content procurement and advertising markets. The content/service aggregator organizes the compilation of targeted contents and functions and markets the product. Their activities include subscriber management advertising, contract design, performance assurance, collection, subscriber administration and update service), the development or purchase of contents, technical functionality and switching capacity and the integration of product components.
The Industry
The industries of convergence include those that manufacture and sell products and services used in the creation, display, distribution, and storage of anything comprised of text, visuals or sound. These industries include the aforementioned computer, television, and telephone industries but cannot be limited to these giants of industry. Movie and television producers, data storage, radio, publishing, photography, consumer electronics, appliance manufacturers, home and commercial construction, and utilities are but a few of the industries now or in the near future that will be involved in convergence.
Today one can no longer say something as simple as; "I was watching NBC last night..." Why? Because there are now seven NBCs to watch. Once again technologies and industries are converging to offer more and different information through what were once divergent communication channels.
Sony and Sharp have both built specialized research facilities to focus on digital products. Thompson Consumer Electronics has partnered with Compaq to develop new products that combine consumer electronics and personal computers such as PC/TV. The Phillips Magnavox WebTV was introduced in 1996, and IBM has introduced its PC DVD-ROM that can run on either a computer monitor or television set.
The Institutions
Institutions also ride convergence into their futures. Libraries, hospitals, schools, universities, government of all levels, police and fire-each connects with others and the people they serve. They converge because of the available technologies, the industries that provide them, and the need for what the institutions offer. For many institutions, the convergence is one of ideas. If a consumer can access medical information from any or all, the information has converged, and in the process the institutions themselves, or at least some of their functions have converged.
`Professors, doctors, and teachers used to communicate daily with a peer in the next office or down the hall. Now they consult across the oceans. Information and ideas flow easily in two directions at comfortable speeds. Ideas converge and clash, converge and blend. Service spreads beyond the bounds of time and space. When real-time interactivity moves out of the research centers, education will converge on the learner, not the other way around.
What It Means
Media Convergence has already created changes in technology, the corporate landscape, and our institutions. What has been slower to change is our perception of them. People will once again be able to communicate using face-to-face interchanges with full-motion video and stereo sound. Media Convergence opens a floodgate of information, be it entertainment, personal interaction with others, access to databases, or merely choices. No human will be able to comprehend everything pouring into our lives. We’ll need helpers. They’re called information agents or learning interface agents. Researchers at MIT’s Media Lab are already working on these software assistants to help us select and organize our personal information sources. Like a personal shopper these agents will scan the available resources with our shopping list in hand, selecting information off the shelves and leaving behind the sprouts -- the information and entertainment likes and dislikes.
Maybe the future includes a PAN (personal area network) to connect your personal communication devices via a low-frequency network inside your body. Electronic devices on or near your body will exchange digital information through capacitively coupled picoamp currents. Shaking hands with business contacts will transfer data to their PAN, including your address, phone number, and professional information.
Speaking on the career opportunities available in the field of Media Convergence, Mr. Sudhir Mathur, Head- Arena Multimedia, says, "Convergence like no other technology before, has brought the entire gamut of Industries together, who hitherto were not interdependent. Be it the Hardware manufacturer, Internet Service provider, Media companies, content developers and software writers have been brought together. This undoubtedly augurs well for the future of Information technology. To make this future a reality, we need people who are trained in the art of convergence."
MEDIA LAWS – AN OVERVIEW
Introduction
Mass Media systems of the world vary from each other according to the economy, polity, religion and culture of different societies. In societies, which followed communism and totalitarianism, like the former USSR and China, there were limitations of what the media could say about the government. Almost everything that was said against the State was censored for fear of revolutions. On the other hand, in countries like USA, which have a Bourgeois Democracy, almost everything is allowed.
Shifting our view to the Indian perspective and its system of Parliamentary Democracy, it is true that, the Press is free but subject to certain reasonable restrictions imposed by the Constitution of India, 1950, as amended ("Constitution"). Before the impact of globalisation was felt, the mass media was wholly controlled by the government, which let the media project only what the government wanted the public to see and in a way in which it wanted the public to see it. However, with the onset of globalisation and privatisation, the situation has undergone a humongous change.
Before the invention of communication satellites, communication was mainly in the form of national media, both public and private, in India and abroad. Then came 'transnational media' with the progress of communication technologies like Satellite delivery and ISDN (Integrated Services Digital Network), the outcome: local TV, global films and global information systems.
In such an era of media upsurge, it becomes an absolute necessity to impose certain legal checks and bounds on transmission and communication In the due course of this article, we would discuss the various aspects of media and the relevant legal checks and bounds governing them.
Historical Perspective of Mass Media Laws
Mass Media laws in India have a long history and are deeply rooted in the country’s colonial experience under British rule. The earliest regulatory measures can be traced back to 1799 when Lord Wellesley promulgated the Press Regulations, which had the effect of imposing pre-censorship on an infant newspaper publishing industry. The onset of 1835 saw the promulgation of the Press Act, which undid most of, the repressive features of earlier legislations on the subject.
Thereafter on 18th June 1857, the government passed the ‘Gagging Act’, which among various other things, introduced compulsory licensing for the owning or running of printing presses; empowered the government to prohibit the publication or circulation of any newspaper, book or other printed material and banned the publication or dissemination of statements or news stories which had a tendency to cause a furore against the government, thereby weakening its authority.
Then followed the ‘Press and Registration of Books Act’ in 1867 and which continues to remain in force till date. Governor General Lord Lytton promulgated the ‘Vernacular Press Act’ of 1878 allowing the government to clamp down on the publication of writings deemed seditious and to impose punitive sanctions on printers and publishers who failed to fall in line. In 1908, Lord Minto promulgated the ‘Newspapers (Incitement to Offences) Act, 1908 which authorized local authorities to take action against the editor of any newspaper that published matter deemed to constitute an incitement to rebellion.
However, the most significant day in the history of Media Regulations was the 26th of January 1950 – the day on which the Constitution was brought into force. The colonial experience of the Indians made them realise the crucial significance of the ‘Freedom of Press’. Such freedom was therefore incorporated in the Constitution; to empower the Press to disseminate knowledge to the masses and the Constituent Assembly thus, decided to safeguard this ‘Freedom of Press’ as a fundamental right. Although, the Indian Constitution does not expressly mention the liberty of the press, it is evident that the liberty of the press is included in the freedom of speech and expression under Article 19(1)(a). [i]It is however pertinent to mention that, such freedom is not absolute but is qualified by certain clearly defined limitations under Article 19(2) in the interests of the public.
It is necessary to mention here that, this freedom under Article 19(1)(a) is not only cribbed, cabined and confined to newspapers and periodicals but also includes pamphlets, leaflets, handbills, circulars and every sort of publication which affords a vehicle of information and opinion[ii]:
Thus, although the freedom of the press is guaranteed as a fundamental right, it is necessary for us to deal with the various laws governing the different areas of media so as to appreciate the vast expanse of media laws.
Print
“Our freedom depends in large part, on the continuation of a free press,
which is the strongest guarantee of a free society.”
- Richard M. Schmidt[iii]
The Freedom Of Press and the Freedom Of Expression can be regarded as the very basis of a democratic form of government. Every business enterprise is involved in the laws of the nation, the state and the community in which it operates. Newspaper publishers find themselves more ‘hemmed in’ by legal restrictions than many other businesses do – despite the fact that the freedom of press is protected by the Indian constitution. The various Acts, which have to be taken into consideration when dealing with the regulations imposed upon the Print Media, are:
Ø The Press and Registration of Books Act, 1867 – This Act regulates printing presses and newspapers and makes registration with an appointed Authority compulsory for all printing presses.
Ø The Press (Objectionable Matters) Act, 1951 – This enactment provides against the printing and publication of incitement to crime and other objectionable matters.
Ø The Newspaper (Prices and Pages) Act, 1956 – This statute empowers the Central Government to regulate the price of newspapers in relation to the number of pages and size and also to regulate the allocation of space to be allowed for advertising matter.
When dealing with this statute, it will be worthwhile to mention about the case of Sakal Papers Ltd. v. Union of India[iv]. In this case, the Daily Newspapers (Price and Control) Order, 1960, which fixed a minimum price and number of pages, which a newspaper is entitled to publish, was challenged as unconstitutional. The State justified the law as a reasonable restriction on a business activity of a citizen. The Supreme Court struck down the Order rejecting the State’s argument. The Court opined that, the right of freedom of speech and expression couldn’t be taken away with the object of placing restrictions on the business activity of the citizens. Freedom of speech can be restricted only on the grounds mentioned in clause (2) of Article 19.
Ø Defence of India Act, 1962 – This Act came into force during the Emergency proclaimed in 1962. This Act aimed at restricting the Freedom Of The Press to a large extent keeping in mind the unrest prevailing in India in lieu of the war against China. The Act empowered the Central Government to issue rules with regard to prohibition of publication or communication prejudicial to the civil defence/military operations, prevention of prejudicial reports and prohibition of printing or publishing any matter in any newspaper.
Ø Delivery of Books and Newspapers (Public Libraries) Act, 1954 – According to this Act, the publishers of books and newspapers are required to deliver, free of cost, a copy of every published book to the National Library at Calcutta and one copy each to three other public libraries specified by the Central Government.
Ø The Working Journalists and other Newspaper Employees (Conditions of Service and Miscellaneous Provisions) Act, 1955 – It lays down the minimum standards of service conditions for newspaper employees and journalists.
Ø Civil Defence Act, 1968 - It allows the Government to make rules for the prohibition of printing and publication of any book, newspaper or other document prejudicial to the Civil Defence.
Ø Press Council Act, 1978 – Under this Act, the Press Council was reconstituted (after 1976) to maintain and improve the standards of newspaper and news agencies in India.
Although on one hand, the Constitution confers the fundamental right of freedom of the press, Article 105 (2) provides certain restrictions on the publications of the proceedings in Parliament. In the famous Searchlight Case[v], the Supreme Court held that, the publication by a newspaper of certain parts of the speech of members in the House, which were ordered to be expunged by the Speaker constituted a breach of privilege.
Due to the restrictive scope of this Article, it is not possible for us to delve into all the other statutes; however, a few of the legislations, which are worth mentioning are the Contempt of Courts Act, 1971 and The Official Secrets Act, 1923.
Broadcast
The broadcast media was under complete monopoly of the Government of India. Private organizations were involved only in commercial advertising and sponsorships of programmes. However, in Secretary, Ministry of I&B v. CAB[vi], the Supreme Court clearly differed from the aforementioned monopolistic approach and emphasized that, every citizen has a right to telecast and broadcast to the viewers/listeners any important event through electronic media, television or radio and also provided that the Government had no monopoly over such electronic media as such monopolistic power of the Government was not mentioned anywhere in the Constitution or in any other law prevailing in the country.
This judgment, thus, brought about a great change in the position prevailing in the broadcast media, and such sector became open to the citizens.
Ø The Broadcasting Code, adopted by the Fourth Asian Broadcasting Conference in 1962 listing certain cardinal principles to be followed buy the electronic media, is of prime importance so far as laws governing broadcast medium are concerned. Although, the Broadcast Code was chiefly set up to govern the All India Radio, the following cardinal principles have ideally been practiced by all Broadcasting and Television Organization; viz: -
o To ensure the objective presentation of news and fair and unbiased comment
o To promote the advancement of education and culture
o To raise and maintain high standards of decency and decorum in all programmes
o To provide programmes for the young which, by variety and content, will inculcate the principles of good citizenship
o To promote communal harmony, religious tolerance and international understanding
o To treat controversial public issues in an impartial and dispassionate manner
o To respect human rights and dignity
Ø Cable Television Networks (Regulation) Act, 1995 basically regulates the operation of Cable Television in the territory of India and regulates the subscription rates and the total number of total subscribers receiving programmes transmitted in the basic tier. In pursuance of the Cable Television Network (Regulation) (Amendment) Bill, 2002, the Central Government may make it obligatory for every cable operator to transmit or retransmit programme of any pay channel through an addressable system as and when the Central Government so notifies. Such notification may also specify the number of free to air channels to be included in the package of channels forming the basic service tier.
Ø Direct-to-Home Broadcasting – Direct-to-Home (DTH) Broadcasting Service, refers to distribution of multi-channel TV programmes in Ku Band by using a satellite system and by providing TV signals directly to the subscribers’ premises without passing through an intermediary such as a cable operator. The Union Government has decided to permit Direct-to-Home TV service in Ku band in India[vii].
Film – India is one of the largest producers of motion pictures in the world. Encompassing three major spheres of activity – production, distribution and exhibition, the industry has an all-India spread, employing thousands of people and entertaining millions each year. The various laws in force regulating the making and screening of films are: -
Ø The Cinematograph Act, 1952 – The Cinematograph Act of 1952 has been passed to make provisions for a certification of cinematographed films for exhibitions by means of Cinematograph. Under this Act, a Board of Film Censors (now renamed Central Board of Film Certification) with advisory panels at regional centres is empowered to examine every film and sanction it whether for unrestricted exhibition or for exhibition restricted to adults. The Board is also empowered to refuse to sanction a film for public exhibition.
In K. A. Abbas v. Union of India[viii], the petitioner for the first time challenged the validity of censorship as violative of his fundamental right of speech and expression. The Supreme Court however observed that, pre-censorship of films under the Cinematograph Act was justified under Article 19(2) on the ground that films have to be treated separately from other forms of art and expression because a motion picture was able to stir up emotion more deeply and thus, classification of films between two categories ‘A’ (for adults only) and ‘U’ (for all) was brought about[ix].
Furthermore, in Bobby Art International v. Om Pal Singh Hoon[x], the Supreme Court re-affirmed the afore-mentioned view and upheld the order of the Appellate Tribunal (under the Cinematograph Act) which had followed the Guidelines under the Cinematograph Act and granted an ‘A’ certificate to a film.
Ø The Copyright Act, 1957 – According to this Act, ‘copyright’ means the exclusive right to commercially exploit the original literary, dramatic, artistic, musical work, sound recordings or cinematographic films as per the wishes of the owner of copyright subject to the restrictions imposed in the Act.
Although this Act, is applicable to all the branches of media, in some areas it is specific to this particular genre. In the case of a Cinematographed film, to do or to authorise the doing of any of the following acts would lead to the infringement of copyright. Those acts are namely: -
• To make a copy of the film
• To cause the film, in so far, as it consists of visual images, to be seen in public and in so far as it consists of sounds to be heard in public
• To make any record embodying the recording in any part of the soundtrack associated with the film by utilizing such sound track
• To communicate the film by radio-diffusion
The Act also makes it a cognizable offence for anyone to sell, hire, distribute, exhibit, possess or view any unauthorised recordings and prescribes severe penalties, including imprisonment, fines as well as confiscation of the equipment used for the purpose of such recording and exhibition. The Amendments to The Copyright Act also prohibit unauthorized transmission of films on the cable television[xi].
Ø Cine Workers and Cinema Theatre Workers (Regulation of Employment) Act, 1981 – This legislation affords a measure of protection to those employed in the industry by imposing certain obligations on motion picture producers and theatre owners concerning the former’s condition of service.
Ø Cine Workers Welfare Cess Act, 1981 and the Cine Workers Welfare Fund Act 1981 – They seek to create means of financial support to cine employees, the seasonal and unpredictable nature of whose employment often leaves them impoverished and helpless. Besides these, there are also a few local legislations, which affect the film medium; viz.
Ø The Bombay Police Act, 1951 – It contains provisions empowering the police to regulate the exhibition of films in the state of Maharashtra (formerly Bombay).
Ø Bombay Cinemas (Regulation) Act, 1953 – It provides a scheme for state licensing of cinema theatres and other places where motion pictures are exhibited
Ø The Bombay Entertainments Duty Act, 1923 – It imposes a tax on the public exhibition of motion pictures and other forms of entertainment.
Advertising
Advertising communication is a mix of arts and facts subservient to ethical principles. In order to be consumer-oriented, advertisement will have to be truthful and ethical. It should not mislead the consumer. If it so happens, the credibility is lost.
In order to enforce an ethical regulating code, the Advertising Standards Council of India was set up. Inspired by a similar code of the Advertising Standards Authority (ASA) UK, ASCI follows the following basic guidelines in order to achieve the acceptance of fair advertising practices in the interest of the consumer: -
• To ensure the truthfulness and honesty of representations and claims made by advertisements and to safe guard against misleading advertising;
• To ensure that advertisement are not offensive to generally accepted standards of public decency;
• To safeguard against indiscriminate use of advertising for promotion of products which are regarded as hazardous to society or to individuals to a degree or of a type which is unacceptable to society at large; and
• To ensure that advertisements observe fairness in competition so that the consumers need to be informed on choices in the market places and canons of generally accepted competitive behaviour in business are both served.
Few Complaints filed with ASCI –
o HLL’s Clinic All Clear Dandruff shampoo claimed that it had ZPTO, the special ingredient in Clinic All Clear that stops dandruff. This claim was found to be untrue since ZPTO is a micro biocide, when in reality, dandruff is known to be caused by several other factors, besides, microbes. HLL’s multi-crore research wing ‘clearly overlooked’ this aspect. The advertisement has been withdrawn.
o Novartis India claimed that their disposable contact lenses ensure there is no protein build-up. This claim was found to be totally false. The truth is that build up is a natural biological phenomenon with all contact lenses. The ad was discontinued.
The other legislations affecting the area of advertising are: -
Ø Drug and Magic Remedies (Objectionable Advertisement) Act, 1954 – This Act has been enacted to control the advertisements of drugs in certain cases and to prohibit the advertisement for certain purposes of remedies alleged to possess magic qualities and to provide for matters connected therewith.
In Hamdard Dawakhana v. Union of India[xii] the Supreme Court was faced with the question as to whether the Drug and Magic Remedies Act, which put restrictions on the advertisements of drugs in certain cases and prohibited advertisements of drugs having magic qualities for curing diseases, was valid as it curbed the freedom of speech and expression of a person by imposing restrictions on advertisements. The Supreme Court held that, an advertisement is no doubt a form of speech and expression but every advertisement is not a matter dealing with the expression of ideas and hence advertisement of a commercial nature cannot fall within the concept of Article 19(1)(a).
However, in Tata Press Ltd. v. Mahanagar Telephone Nigam Ltd[xiii], a three judge bench of the Supreme Court differed from the view expressed in the Dawakhana case and held that ‘commercial advertisement’ was definitely a part of Article 19(1)(a) as it aimed at the dissemination of information regarding the product. The Court, however, made it clear that the government could regulate commercial advertisements, which are deceptive, unfair, misleading and untruthful.
Ø Monopolies and Restrictive Trade Practices Act, 1969 - Section 36 A of the Act deals with 5 major Unfair Trade Practices: -
• Any misleading, false, and wrong representation either in writing (i.e. in advertisements, warranty, guarantee etc.) or oral (at the time of sale) actual or intended, even if actual injury or loss is not caused to the consumer/buyer constitutes as unfair trade practices;
• Sales, where there is element of deception;
• All business promotion schemes announcing ‘free gifts’, ‘contests’, etc. where any element of deception is involved;
• Violation of laws existing for protection of consumers;
• Manipulating sales with a view to raising prices.
Parle’s mango drink ‘Maaza’ gave the advertisement of Maaza mango and the MRTP issued a notice against Parle Exports Pvt. Ltd. The advertisement implied that the soft drink was prepared from fresh mango while actually preservatives were added to it. The company had to suspend production pending enquiry.
CASE STUDY
Tata Group wins cyber squatting case
TATA Sons, the holding company of India's biggest industrial conglomerate, the Tata Group, has won a case to evict a cyber squatter from 10 contested internet domain names.
Tata Sons had filed a complaint at the World Intellectual Property Organization against an Indian agency for registering 10 domain names which included ratantata.com, tatapowerco.com, tatatimken.com and jrdtata.com.
The Tata Group received the decision in its favor from WIPO earlier this month after a complaint was filed in December, a Tata spokeswoman said.
The Geneva-based WIPO, a United Nations agency, protects trademarks and patents.
WIPO said the domain names held by the Indian agency were identical or confusingly similar to the trademark which belongs to Tata Sons.
It said the registration of a host of such domain names by the Indian agency indicated a pattern of cyber squatting.
Tata Sons had earlier obtained similar judgments in its favour for the domain name tata.org and a pornographic site Bodacious-tatas.com.
Ratan Tata is the chairman of Tata Group, which has a combined turnover of about $8 billion with business interests in automobiles, electricity, information technology, chemicals, commodities, hotels and steel.
The group has 80 diversified companies.
Local media reports have said the Tata Group is contesting more than 50 websites which include Tata in their name.
CONCLUSIONS & COMMENTS ON CONVERGENCE BILL
In this age of media explosion, one cannot simply remain confined to the boundaries of the traditional media. The media world has expanded its dimensions by encompassing within its orbit, the widening vistas of cyber media etc. As a consequence, the laws governing them are also numerous. This has left the regulatory frame work with numerous loop holes for media houses exploiting converging technologies. To further the cause of “Freedom of Speech and Expression” and “Dissemination of Knowledge” while protecting the larger interests of the society, a new regulatory frame work is necessary. This should include issues of media crossholding and about bureaucratic approvals required for any new technologies. The new framework should also address questions related to usage of content from one media in another.
CONVERGENCE BILL
THE Convergence Bill 2000 placed before the Parliament is based on the hype that information technology (IT), telecommunications and entertainment industry are merging together. This completely obscures what is converging in the above areas and what is not. The convergence in communications, IT and entertainment is in technology – the infrastructure, the type of equipment used and in methods i.e., digitisation of voice, data sound and pictures. The services over such networks remain distinct and there is little likelihood of their convergence. This becomes clearer if we look at telecommunications and entertainment. The existing cable television network can deliver telephone, Internet and cable television; however only a fool will argue that talking on telephone is converging with watching television. The Convergence Bill however believes that as the infrastructure and technology for telecommunications, IT and entertainment are becoming similar, entertainment and communications services are also converging. The entire philosophy underlying the Convergence Bill is based on this faulty and foolish premise.
PROVISIONS OF THE BILL
The Bill seeks to replace the Telegraph Act of 1985, the Indian Wireless Act of 1933, the Telegraph Wire Unlawful Possession Act of 1950 and the Telecom Regulatory Authority of India (TRAI) Act of 1997. The Prashar Bharati Act is not covered under the Bill. It seeks to provide powers to a Communications Commission of India that will license all communications and entertainment companies which use wireless, wired or network infrastructure. The print media is excluded from the ambit of the Commissions. The Commission will not only license and regulate these entities, it will also "formulate and lay down programme and advertising codes" and "take steps to regulate or curtail the harmful and illegal content on the internet and other communications services". In other words, it will regulate not only the physical infrastructure but also the content in the electronic media. Under the provision 23 of the Bill, the government can give the Commission directives from time to time on policy matters, which will be binding on the commission. The Act also enables the government to tap any communications – email, telephone, cellular, etc., without any judicial procedure. There is also an Appellate body under the proposed Bill -- the Communications Appellate Tribunal -- that will hear appeals against the decisions of the Commission. The decisions of the Tribunal can only be challenged before the Supreme Court and not before a High Court.
UNDERLYING PHILOSOPHY
The interesting part of the proposed Bill is not only what it contains, but also what it does not. The Bill hardly addresses issues of public interest such as universal access, public address broadcasting, protecting against cross-media monopolies, etc; there is little or no attempt identify the needs of the people and their interests. Instead, the Bill’s focuses almost entirely on how to allow private players in various markets, protect them against "the dominant player" and see that they make profits. The only other area the Bill addresses is to set up a censoring agency that will carry out government directives. Such directives could include no criticism of defence services or of the police as it will weaken "the territorial integrity of the country", one of the objectives of the Bill. In a discussion in All India Radio on the Bill, the anchor strongly argued on the need to control the media on issues such as Tehalka and Kashmir, as they weaken the nation. As long as corporate interests are protected and the government kept immune from criticism, the BJP led NDA government does not care what happens to rural telephony, taking telecommunications to all parts of the country and any other matter of public concern. A muzzled media making huge profits fits in with the ideology of the BJP; a police state for the capitalist class, this is the underlying philosophy of the Bill.
The misplaced focus of the Convergence Bill can be seen from its primary focus on competition. Presumably, the private operators in basic services, who have provided only three lakh telephones after three years of receiving their licenses, need to be protected against BSNL and MTNL that have provided in the same period, connections to two crore consumers. Obviously, the private operators are only interested in a minuscule section that can pay large amounts. In this context, the protection of private operators from BSNL or MTNL, which the Bill believes is its primary function, is ridiculous.
Any regulatory regime draws its need from public interest or larger social objectives. Unless there are such public interest issues, there is no need for regulation. The social objectives in telecom and broadcasting are providing universal access at low costs to the people. The broadcasters, apart from low cost viewing, have also to promote healthy, democratic culture, plurality of views and protect against harmful content. As telecommunications are largely private, the public interest lies in protecting the privacy of such communications. The regulatory needs of broadcasting and telecommunications are common in so far as there is a need to extend such services at low costs to the people. The purposes of regulation in terms of content are completely different for broadcasting and telecommunications. In one case, it is public and therefore subject to regulation not to cause harm, for example to minors, prevents monopolies; in the case of telecommunications, regulation is to maintain privacy of the communication. Therefore, the question that arises is should there be a common regulatory approach at all?
BROAD CONSENSUS
A number of countries have addressed the convergence issue. The broad consensus that is emerging is that while there is technological convergence, the type of services being offered is quite different. Thus, the two broad areas: audio-visual (or broadcasting) and telecommunications areas need different regulatory forms: broadcasting and telecommunications should be retained as separate regulatory regimes. The common infrastructure that may be used may need the two sets of regulators to work together but do not need a common regulator. The European Union (EU) produced a Green Paper on this in 1997 discussing various aspects of convergence; it had wide ranging public discussions on this and has finally agreed that there is no need for a common regulator. In the US, the Federal Communications Commission (FCC) only deals with the physical infrastructure and not with content of broadcasting. The only country in the world that has passed a Convergence Act is Malaysia and their experience has not been happy.
REGULATORY PROBLEMS
The Indian scenario is further compounded by the problem of repeated regulatory instability. The Telecom Regulator – TRAI – came into existence only in 1997. The Act had to be amended in 1999 as TRAI and Department of Telecom entered into serious turf wars. No sooner has the regulatory scene assumed any degree of stability, we now have a new Convergence Bill. If it passes and becomes an Act, it is likely to see a number of legal challenges, throwing the regulatory regime into a further state of flux. What passes all understanding is why is there a need for an Act that no one has asked for. The cellular telecom operators are unhappy with the TRAI; this cannot be a reason to throw out the TRAI Act, unless the motive is to throw out the current set of regulators while constituting the new Communications Commission. It is possible that the operators have such narrow interests. But why should the government contemplate a change when the current telecom policy regime – the NTP 99 – has been introduced only in 1999? Or are we to conclude that the Group on Telecom that produced the NTP 99 botched up the job so completely that it did not even address such basic questions as convergence?
The Internet related services are even more problematic. Currently, only Internet service providers are licensed and that also very lightly. The rates, quality standards, content have all been left outside the purview of any regulation. Of course, the laws of the land apply to such material in any case: use of Internet for criminal purposes, obscenity law and law of libel applies on any Internet site. The policing of such sites are not easy. For instance, child pornographers are using the Internet and as these sites move from country to country, it needs cross-border co-operation to stop such activities. Similarly, hate literature of racist or communal variety can be circulated over the Internet and hosted on sites in countries that have no restriction against them. For instance, a number of neo-nazi groups use the US for hosting their sites as it does not ban such material unlike European countries and Canada, all of whom have stringent punishment for "hate literature". In spite of this, the Internet is relatively free of policing, primarily as it is not a broadcast medium.
The Convergence Bill seeks to bring Internet services under its ambit in two ways. One way is to regulate it through content. It explicitly lays down policing the Internet as one of the objectives of the Bill. The second is to bring all services offered through the Internet or the telecommunications network under licensing, unless exempted specifically. The Bill claims that a list of exemptions will be made available along with the Bill. There are two aspects to these so-called exemptions. Every time a new service appears -- and Internet is introducing a variety of new services every day -- they will require special exemptions, delaying their introduction. The second is which agency will issue such exemptions. From the reading of the Bill, it is nowhere made clear which is the agency that will issue such exemptions. It is not clear why the alternate method of identifying the services that require licenses have not been considered. Presumably, in one case the Parliament will decide which services will require licenses, while in the current form, probably the government will notify such exemptions.
OTHER ISSUES
There are a variety of other issues that are there in the Convergence Bill. We will only take up three of them. The first is that the government has a complete right to monitor any communications, either any telephone call or any email. There is no requirement of establishing the need for such tapping of private communications that can be reviewed. The desire of the government to tap is enough. This is a continuation of the Telegraph Act and has been considered outmoded in most countries, which earlier had such provisions. The second is that there are no restrictions on cross-media monopolies. Though protection against monopolies in each area is one objective of the Bill, protection against cross-media monopolies has not been identified by the Bill as an objective, This is doubly important as unlike the TRAI Act, which left the monopoly aspects of telecommunications to the MRTP Act, there is no such provision here. Presumably, even anti-monopoly aspects of telecommunications are being brought under the purview of this Bill. The third is that any public authority is obligated to provide the right-of-way for laying cables once the Communications Commission has given a license to a party. Already, two basic service operators and one broadband Internet service provider – Reliance – have dug up various cities. Such a blanket provision does not take into account that granting right-of-way impinges on the citizens’ convenience. But then, the citizen is hardly the focus of the reforms.
All in all, the Convergence Bill 2000, fails to addresses neither the need of the people nor the needs of growth of the sector. The attempt appears to is a narrow one of getting rid of the current telecom regulators while exercising some kind of control over the broadcast medium. The bill betrays the mindset of a police state while promoting the market and competition as the drivers of convergence. Its immediate effect will be to muzzle the media and build cross-media empires under the guise of convergence.
BIBILOGRAPHY
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ENDNOTES
[i] CAD, Vol VII page 980 (as per Dr. B.R. Ambedkar); view reiterated by the Supreme Court in Indian Express Newspapers v. Union Of India, (1985) 1 SCC 641.
[ii] Lowell v Griffin (1938) 303 US 444; this view was followed and relied upon by the Supreme Court of India in Sakal Papers Ltd. v Union of India, AIR 1962 SC 305.
[iii] Cf. Herbert Lee Williams, Newspaper Organization and Management, 5th Edn., page 347.
[vii] The prohibition on the reception and distribution of television signal in Ku band has been withdrawn by the Government vide notification No. GSR 18 (E) dated 9th January 2001 of the Department of Telecommunications.
[ix] This view was re-iterated in Life Insurance Corporation of India v. Manu Bhai D. Shah, (1992) 3 SCC 637.
[xi] Section 37 of the Copyright Act, 1957.
