Who owns your email account when you die?

There’s an interesting article in today’s Hindu about who gets to access your email/facebook account once you die. I think there are two questions – who gets the right to access this information that is held by your service provider, and what can be done with this information.

ACCESS
As a quick response to this question, most online service providers recognize that their ‘privacy policies’ are subject to the ‘operation of law’. See for instance what GMail’s Privacy Policy has to say on information sharing:

Google only shares personal information with other companies or individuals outside of Google if..
We have a good faith belief that access, use, preservation or disclosure of such information is reasonably necessary to (a) satisfy any applicable law, regulation, legal process or enforceable governmental request,

At the simplest level, this means that if are the deceased’s successor – say, the legatee under a will-  you will be able to access the deceased’s email account according to this policy. Gmail also has a page giving specific instructions on how to access the deceased’s email. This requires, inter alia,

5. A United States court order authorising access to the specific email account in question.

Presumably this would include orders from Indian courts that are executed through US courts.

The Hindu article suggests that one can look at email accounts as ‘assets’. My reading of GMail’s Terms of Service suggests that things may not be as simple for the following reasons:

• There is a disctinction between your email and your email account. While the email you send, and the Content of your email account is undeniably your ‘asset’ (since you hold copyrights over them), your email accounts are provided to you as a ’service’. This service may, according to Google’s terms, be stopped permanently or temporarily at Google’s sole discretion and without prior notice (Para 4.3 of TOS) . Further, “Google reserves the right to .. to pre-screen, review, flag, filter, modify, refuse or remove any or all Content from any Service.” (Para 8.3).
• Google holds your Content not as a custodian in the sense of a bailee, but as the licensee of the copyrights in them (Para 9.4). This is a technical, legal point, but one with much legal import. As valuable as your email may be to you, if Google deletes your email account after your death, it will not be “destroying your assets” as much as simply withdrawing a service that is within its discretion. This would be the case even if Google does this during your lifetime. You are solely responsible for keeping backups of your own mail.
• This is analogous to a situation where you are the heir of a famous author who had licensed their copyrights to be used by a publishing company. You inherit the copyright in the author’s works, but not the individual copies of the books which are stocked by the publishing company .

USE
Need to check the law here – I recollect there being a difference between the ownership of the individual copy of a letter itself, versus the copyright in what was written. Thus if I received a handwritten letter from my hero and Prime Ministerial candidate Lalu Prasad Yadav, I have the right to auction that particular letter and become a millionaire. I do not, however, thereby, get a right to reproduce copies of the letter, translate adapt etc. This would infringe his copyright if such use is not saved by fair dealing. (This is a point I have to repeatedly stress, since so often ignored in mainstream media – India has one of the most extensive regime of fair dealing rights and these rights trump copyrights in all kinds of ways. Please read section 52 of the ICA)
Some interesting US case law on the issue here.

What does this have to do with email accounts? I think this distinction would vanish. If Mr. Yadav sent me an email, for instance, I might notionally have a title over that ‘copy’, but for all practical purposes that title would be useless. Printing or forwarding a copy of the email would count as reproducing it – an infringing act unless it is saved by “fair dealing” exceptions (for instance private use and research).

(CAVEAT:I’ve only looked at GMail’s Terms of Service and so this post cannot be a comment on Yahoo’s or Hotmail’s services. I don’t think their policies would be vastly different, but you should check for yourselves)

One of the features of the ‘information society’ we inhabit is that I am convinced that I am never going to die.  I cannot help this feeelng. For others, there’s a detailed article morbidly titled “Planning for your digital death” which gives you step by step instructions on how to, er, ‘plan‘ your digital death.

Fair dealing and the right to reproduce (articles)

I’m still on my “fair-dealing” hobby horse. Earlier last week, in my post relating to the Mint Legal notice, I had rather hastily admitted that Copyright law might not expressly permit the reproduction of articles in their entirety. Now, I’m not so certain.

1. Firstly, there’s the express language of Section 52(1)(m) of the Copyright Act which reads:
   

   “(m) the reproduction in a newspaper, magazine or other periodical of an article on current economic, political, social or religious topics, unless the author of such article has expressly reserved to himself the right of such reproduction;”

   The clause creates a blanket presumption that all newspapers, magazines (including online) and periodicals can reproduce in entirety articles on “current political, social or religious topics” . This is subject to the author expressly reserving to himself/herself the right of such reproduction.

   The article that sparked the Mint’s ire was authored by one Seema Singh. I just checked the Mint site and there is no statement by her either at the foot of the article or anywhere on the website where she expressly reserves the right to reproduce to herself.

   Section 52(1)(m) only allows the author (as opposed to the publisher/”first owner”) to reserve the right of such reproduction – which means that HT-Media’s prohibition on reproduction in its Terms of Use will not serve the same purpose. The reservation must be “express” which means that it cannot be arrived at impliedly.

   There are good grounds to believe that Section 52(1)(m) survives even the exclusive assignment of copyrights by authors to publishers, and may even be seen as an additional right in the hands of the author not enumerated in Section 14. It is the right of the author of an article of political importance to reach the maximum possible audience if she wishes, and not to be silenced by non-publication, merely because he or she happened to assign rights to a particular media company.

   There is legislative wisdom behind the vesting of such powers in the author, and behind setting up the right to reproduce articles as the general presumption against which the author has the right to demur.

2. Secondly, the ambit of the fair-dealing right enshrined in Section 52(1)(a) and (b) is fairly wide and recognizes that the extent of permissible copying may vary with the purpose and characteristics of the use. Specifically, reproducing works to make them more accessible might amount to a transformational use even though it is not transformation in the sense of “altering the original expression with new expression meaning or message”.

   (See THE CHANCELLOR MASTERS and SCHOLARS of the University of Oxford Vs. Narendra Publishing House The rule regarding “the extent of copying.. does not entail that the reproduction of the entire work would militate against the finding of fair use. There could be cases where the copying could be substantial and the courts finds fair use, at the same time there could be cases where the copying though insubstantial could be held as infringement”)
   (See Also Kelly v. Arriba Soft)

There are a host of other authorities in India to support the view that CSE’s non-commercial, public-interest use will weigh heavily in the court’s determination.
I’m following this article up with a longer one that analyses fair-dealing in India.

Lessons in Cola, Copyright, Constitutionality and Generosity for dear Mr. Raju (from a self-appointed legal educator)

I’m responding to Raju Narisetty’s blog post on copyright infringement, along with which he tosses in some rambling invectives against Sunita Narain and the Center for Science and Environment (CSE).  In his words, “it all began” with his discovery of Mint articles archived at a site run by the CSE (www.indiaenvironmentalportal.org). The article claims that users and readers have absolutely no right to use Mint contents for any purpose unless The Mint expressly authorizes them. Mr Raju finds a gleefully irony in the fact that he can now accuse the CSE of a misdemeanor, as revenge for their having had the temerity to take on the Colas during their highly acclaimed pesticide campaign. I want to dwell briefly on his digs at the CSE, before addressing his observations on Copyright.

Coke
In relation to Sunita Narain and the CSE’s extremely hard fought campaign against the big colas, Mr. Raju scours the entire internet and finally handpicks this link - a monumentally stupid, 3 sentence piece in the National Public Radio’s website which says this.

“ In India, several states have banned the sale of Coke and Pepsi after a group called The Center for Science and Environment said the soft drinks contain unacceptably high levels of pesticide. The national government of India has said the Center’s data is flawed. But the state governments continue to ban the products.”

(I’m quoting the entire article, here and I hope Mr. Raju doesn’t give himself a nosebleed if he sees this)

While this snippet certainly does not tell you the “entire saga” of high toxicity levels in colas in India, it reveals much about Mr. Raju’s own worldview.

The CSE is a “group” – like the Taliban, the Bajrang Dal and the Indian Mujahideen – that is “prone to pointing fingers”, and is not the well-respected two-decade old research organisation that we know it to be. This ‘group’ is obviously populated by some nasty attention-seeking lunatics who are strangely influential amongst lowly state governments who irrationally ban the sale of colas. By contrast, the “national government of India” – the repository of reasonableness and true wisdom – is, however, wiser, and pooh-poohs the madwoman’s rants.

Undoubtedly, Sunita Narain is one of the many  “self-appointed guardians of right and wrong behavior in our society” whom Mr. Raju cannot abide. Coke and Pepsi would, of course, do nothing of the sort since, as we know, Coke is an honourable man. In fact, they advertise with him, these colas.

Here’s a snippet from another article that tries to capture what the real pesticide saga is about.

The most common pesticides detected by the CSE in the samples were Lindane, Chlorpyrifos, Heptachlor and Malathion. Lindane accumulates in fat tissues and damages the liver, kidney, neural and immune systems, and induces birth defects and cancer. Exposure to Chlorpyrifos adversely affects brain cell development. Malathion causes dna abnormalities at all doses.

According to CSE, the United States has restricted the use of Heptachlor to underground termite control. If the results are to be believed, therefore, they could have serious health implications for people.

Why should a global company which provides quality products globally provide a substandard product in India? Equally importantly, will our government give more importance to the threat of reduced investment vis-à-vis a possibly very real health threat to the public at large?

It’s a little shocking that the editor of a major national newspaper would exhibit openly his ignorance of important public issues. Or perhaps he is only exhibiting his antipathy towards them. In 2006, at a Global Meeting in Istanbul, Coca Cola issued special-edition coins with “Coca Cola Republic of Happiness” inscribed on them. More than a mere marketing gimmick, I imagine this “Coca Cola Republic” to be an actually existing borderless nation-state with a devoted population that includes people of Mr. Raju’s ilk. This population emphatically denies allegiance to any of the recognized constitutions of the world, and is opposed to being identified with the peoples of any country. The ‘other’ of this republic is not any one sovereign state, but the  “ordinary public” of the entire world.

Copyright
The pretext for this attack is equally ill-conceived. Mr. Raju is visibly pained that the CSE has not sought his express permission in writing before collecting the articles in its database. This “egregiously” violates, in his learned legal opinion , the Indian Copyright Act, 1957. At the heart of Mr. Raju’s attack is an extremely parsimonious view of freedom of speech and the press.

Articles on GIs and creativity

Some interesting articles in the papers this last week.

Latha Jishnu’s written a characteristically insightful and analytical piece about GI registration in India. Excerpts:

In recent months there has been practically a stampede for GI registration in India. Unlike the developed countries which use it primarily for food products (Champagne, of course, and things like Parma Ham), India has extended GI protection to products across the spectrum, from handicrafts to flowers and spices. Thus the Aranmula mirror, along with assorted silks, saris, textiles and embroidery styles, joins soaps, incense, different varieties of jasmines, several strains of rice, tea, betel leaf, pepper and chillies to get the GI tag.

The GI Registry at Chennai, where right-holders can register their products, is getting inundated. The question, however, is how much of a protection a GI offers. For one, other WTO members are not obliged to ensure the same kind of protection to all Indian GIs because there is a problem of hierarchy. Although TRIPS has a single definition for all GIs, it has authorised a two-level system of protection: one, a general protection under Article 22, and the other, a higher level under Article 23 that is applicable only to wines and spirits.

According to some experts, Article 22 is not good enough. It is simply a law against unfair trade practices and for consumer protection and is not really for IPR protection. A producer not belonging to a specific geographical region could still use the GI as long as the product’s true origin is indicated on the label. In other words, an Aranmula mirror could be turned out from, say, Houston in Texas, thus allowing an American producer to free ride on the reputation and market goodwill created by Keralite artisans over two centuries. Tellicherry pepper and Udupi jasmine thus far are not in the same class as wine from Champagne.

Lawrence Liang’s article in the Indian Express covers the recent Rakesh Roshan V Ram Sampath row in the Bombay High Court and makes some poignant comments on creativity, copying and copyright.

The language of the case and the reportage around it rely very heavily on the language of theft, property and damages for infringement of copyright and plagiarism in music. This rather hasty leap of faith to stricter enforcement of music copyright does not seem to find too much support in the history of music itself. While there was surely a violation of propriety in the Ram Sampath case, the important question that emerges is the impact of thinking of creativity only in terms of property. The history of copying, appropriation and plagiarism is in fact central to the history of various forms of cultural production, including music. We should therefore be a little cautious when we celebrate this case for the quick remedy it provided to an act of copying.

The act of copying has been central to the ways in which culture has flowed through various parts of the world, transcending the limitations set by space and time. Thus a Polish folk song, “Szla dzieweczka do gajeczka”, becomes a part of Indian popular consciousness through its adaptation as Salil Chaudhury’s “Dil Tadap Tadap Ke” from Madhumati. Secondly, the creation of music has always relied on adaptations, influences and inspirations, whether conscious or unconscious. It would be unfortunate if as a result of aggressive copyright suits, we reach a situation like the United States where even subconscious copying is held to be infringement. In a case brought by a band, The Chiffons, against former Beatle George Harrison, the court held that Harrison’s “My Sweet Lord” was in infringement of The Chiffons’ “He’s so fine”, even though the judge believed that Harrison did not intentionally copy the song and had only been inspired by it subconsciously.

In our enthusiasm to protect the creator and ensure that he gets his just rewards, let’s not forget that the sense of touch is not limited to the hand, but extends to our eyes and ears. It is only natural that when we create something, it will be influenced by things we have read, heard or seen, even if they are not our property. Walter Benjamin describes this form of mimicry as a form of learning as a “sensuous similarity”, a right to copy, which should be as jealously guarded as copyright.