Guest Interview: In conversation with Mr. Rodney D. Ryder- Founder, Scriboard and Senior Partner- ANM Global

I am pleased to bring to you our next guest interview with Mr. Rodney D. Ryder.

Mr. Ryder is a lawyer with nearly two decades of experience in Information Technology, Intellectual Property and New Media Laws and is considered to be an authority in this space.

He is presently the Advisor to the Ministry of Communications and Information Technology, Government of India on the implementation of the Information Technology Act, 2000. He is also the advisor to the National Internet Exchange of India [NiXI] and a member of the panel of independent and neutral arbitrators with NiXI.

He has authored several books including Guide to Cyber Laws: the Information Technology Act, 2000, E-Commerce, Data Protection and the Internet, the first section-wise analysis of the Indian Information Technology Act, 2000. His second book, Intellectual Property and the Internet, published by LexisNexis is perhaps the only one of its kind in Asia. The text has been quoted in the first and only judgement by the Hon’ble Supreme Court of India on domain names. He is also an adjunct professor to the Indian Institute of Management, Lucknow [IIML], the Fore School of Management, New Delhi [FSM], Amity Business School [ABS], National Law School of India University [NLSIU], Bangalore, NALSAR, Hyderabad, National Law University [NLU], Jodhpur, Campus Law Centre, Faculty of Law, University of Delhi, Amity Law School, Indian Institute of Technology[Kharagpur] and the CBI Academy [Ghaziabad].

Mr. Ryder counsels a wide range of clients from start-ups to several Fortune 100 companies and represents them in advisory and litigation regarding technology law, data security, compliance with law enforcement and intellectual property strategy.

Mr. Ryder has been nominated as a ‘Leading Lawyer’ in his areas of practice by Asia Law, Who’sWhoLegal amongst other International publications.

Mr. Ryder is the founding partner of Scriboard as well as the senior partner of ANM Global which are both full service law firms with intellectual property, technology and media specialist practice.

1. Mr. Ryder, could you tell us a bit about yourself and your journey as an IPR & IT lawyer?

It has been a very interesting journey from the first day in the profession starting as a corporate lawyer and litigator to practising intellectual property and technology law as a specialist. There was new ground to break as it were and I was lucky to enter the profession at the time I did. The practice of law was evolving and there were newer ways to contribute – as a writer, a teacher, a litigator and a counsellor advising clients.

2. You are considered to be an institution in the Information Technology space. As far as the media industry is concerned, the OTT space is still largely unregulated. Could you talk to us about the intermediary liability in India and what should OTT platforms look out for while streaming content in India?

Thank you very much for the kind words! The practice of law has given me immense satisfaction. I was and am fortunate to contribute in multiple ways as an author, teacher, mentor, litigator, arbitrator and counsellor. I am grateful to our clients and all who had faith in me!

Yes, OTT services in India are still largely unregulated and are loosely governed by several scattered rules, regulations, agreements and circulars. In the absence of a dedicated or stand-alone piece of legislation regulating OTT services, the regulatory space at the moment is dominated and governed primarily by circulars issued by either Telecom Regulatory Authority of India [TRAI] or the Department of Telecommunications [DoT]. There is thus an urgent need to regulate and streamline this area.

The basic principle of intermediary liability is to provide a reasonable amount of protection to the content sharing platform [or other platforms] on which content is posted by third parties. With the law laid down in the Shreya Singhal vs. Union of India case, the definition of ‘actual knowledge’ of the intermediary of objectionable content has been narrowed down. It has been held that intermediaries would only be liable if they fail to expeditiously remove or disable access to content after receiving actual knowledge through a court order or a Government notification about the same. Thus, private complaints to intermediaries would not constitute ‘actual knowledge’. However, it is still important for OTT service providers to actively monitor content distributed and shared on their platform and to act on any private complaints of objectionable content in a reasonable manner.

The interpretation of the Shreya Singhal case has led to the creation of a vacuum when it comes to intermediary liability and their responsibility of taking down content based on ‘actual knowledge’. A set of rules is required to adequately structure and define the take down mechanism so that a level playing field is created for the content creators as well as the content distributors.

3. Currently there are global reforms taking place with GDPR coming into effect. Could you throw some light on how does GDPR impact Indian entities dealing in the digital space?

The EU General Data Protection Regulation [GDPR] is amongst the most evolved and advanced data protection legislation present in the world as of today. However, it is to be understood that for Indian companies – the first and foremost data protection legislation to be complied with is the Indian Information Technology Act, 2000 [IT Act]. The GDPR has several mandatory compliance requirements which are not addressed or are not mandatory under the Indian IT Act. This being said, entities [irrespective of the fact where they are located] which collect, process and store personal data of subjects who are EU residents are required to comply with GDPR.

4. What are your views on the Personal Data Protection Bill, 2018 submitted by Justice B.N. Srikrishna committee?

The Privacy Bill in the present form is a great first draft!

In my opinion, the Bill has been able to adequately address all major issues relating to data privacy and protection – which have either not been dealt with or have only been briefly dealt with in the IT Act and the rules framed thereunder.

The draft Privacy Bill makes individual consent crucial to data sharing, it proposes an apparatus to protect the rights of users, imposes obligations on “data fiduciaries”. The imposition on ‘data fiduciaries — all those entities, including the State, which determine purpose and means of data processing is perhaps the most important. The Bill proposes the setting up of the Data Protection Authority which will function as India’s privacy regulator.

In practice, the law should be able to mark a balance between data privacy and data use and should indicate the rights as well as duties of the parties on both sides of the data collection regime. A strong but balanced Data Protection legislation in line with global data privacy legislations is urgently required. Issues such as proper redressal mechanisms, data erasure, protocol to be followed in case of a data breach, etc. should ideally be properly structured in the bill.

A lot of work remains, the Bill should be thoroughly discussed, debated and reviewed by all relevant stakeholders so that a well-structured and balanced Act can be enacted. Moreover, the said Act too should be constantly reviewed and amended from time to time as per the requirements and demands of the technological landscape.

5. There is a lot being said about Blockchain technology and its ability to bring about transparency in various sectors including the royalty collection societies [copyright societies]. Could you enlighten us with what is blockchain technology and how can it help the copyright societies in India?

It is to be noted that as a publicly assessable and decentralised database that is distributed across the internet, Blockchain maintains permanent and undeletable records in cryptographic form. Transactions through the Blockchain technology occur across a peer-to-peer network, and are computed, verified and recorded using an automated consensus method thereby eliminating the need for an intermediator or third party to manage or control information.

In India as well as globally, copyright societies are responsible for the collection of royalties on behalf of artists. While these societies primarily serve the purpose of the artists, they are able to dictate the terms on which artists receive royalties. For instance, the amount of royalty, the frequency of payments, administrative and commission fees, etc. are some of the terms which are dictated by copyright societies.

As opposed to this age-old method, Blockchain technology provides a more direct system for artists to receive their copyright royalties without the intervention of a third party or copyright society. It is to be noted that identifying copyright of a song and defining how royalties should be split between songwriters, performers, etc. is difficult in the digital space. However, Blockchain’s distributed ledger system can ensure that no single entity can claim complete ownership over a song. Secure files with all relevant information such as composition, lyrics, linear notes, cover art, licensing, as well as royalty details can be encoded onto the Blockchain creating a permanent and inerasable record. This means that artists can control and determine when their and other artists’ royalties are received and all this can be done in a transparent and efficient manner with no scope of tampering or withholding of royalty funds by a third party.

6. Internet Piracy continues to be one of the biggest snags in the film industry. Most producers approach the courts to obtain John Doe orders prior to release of their films so that ISPs are directed by the court to block piracy websites from streaming such films. Could you explain to our readers on why such John Does orders are required to be obtained despite it being a settled law that once an intermediary receives an actual knowledge of the infringing content, it is required to take down such content?

The reason for this is two-fold: The Supreme Court, in the Shreya Singhal case, read down Section 79[3][b] of the IT Act and Rule 3[4] of the Intermediary Guidelines Rules 2011 which deals with intermediary liability. Previously, any user, that is – a private individual or entity, or the Government and its departments could request intermediaries to take down content, without a court order. Non-compliance of the same within the prescribed time period could lead to legal actions against the intermediary.

However, the Supreme Court in the Shreya Singhal case narrowed this down and held that intermediaries would only be liable if they fail to expeditiously remove or disable access to content after receiving actual knowledge through a court order or a Government notification about the same. Thus, private complaints to intermediaries would not constitute ‘actual knowledge’.

In addition to this, as per the Copyright [Amendment] Act, 2012 and Rule 75 of the Copyright Rules, 2013, on receipt of a take-down notice from the copyright holder, the intermediary if it is satisfied that the reported content is infringing in nature should take down such content for a period of 21 days.  However, if no court order is obtained within such 21 days by the copyright owner in support of the take down notice, the work can be put up again, and the intermediary can ignore future complaints regarding the same work.

The division bench of the Delhi High Court in the case of Myspace Inc. Vs. Super Cassettes Industries Ltd had interpreted the Shreya Singhal judgement differently in relation to copyright infringement suit and held that for copyright infringement matters, it is sufficient if the intermediary receives specific knowledge of the infringing works in the format provided for in its website from the content owner without the necessity of a court order.

However, in light of these two provisions and in the absence of any other definite take down mechanism, the producers are compelled to obtain John Doe Orders from Courts to protect their intellectual property.

7. According to you are the TMT (Technology Media Telecommunication) laws in India technology agnostic?

Yes, TMT laws in India are upto an extent agnostic in nature. The Indian legal system still has a long way to go to develop and implement a comprehensive and efficient regulatory landscape for the TMT sector. Constant review of, and amendment[s] to the present legislation[s] are also required to keep pace with technological advances in this sector. Moreover, in several instances the rules to be formulated by the Government under the respective Acts have so far not been developed by the Government. For instance, Section 84A of the Indian Information Technology Act, 2000 states that the Central Government may prescribe the mode or method for encryption. However, no such mode or method has been formulated by the Government so far. While the Government did come up with a draft national policy on encryption, the same was withdrawn in a short time due to the collective criticism it received from all quarters of the public. No revised policy has been issued by the Government since then.

Therefore, as mentioned above, we are far from achieving a truly developed and efficient TMT legal system. A dedicated and focussed approach from all relevant stakeholders is required to review, amend and develop a truly efficient TMT legal system in India.

 8. Any parting thoughts for our readers?

I think we are at a very interesting stage in the evolution of technology, new media and intellectual property law. Any one tracking developments, reading, practising or teaching will have a wonderful journey in the days to come! I would urge your readers to be involved, enjoy the evolution and contribute!