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Government gives free publicity worth 40k to Twitter and Facebook
https://cis-india.org/internet-governance/blog/government-giving-free-publicity-worth-40-k-to-twitter-and-facebook
<b>We conducted a 2 week survey of newspapers for links between government advertisement to social media giants. As citizens, we should be worried about the close nexus between the Indian government and digital behemoths such as Facebook, Google and Twitter. It has become apparent to us after a 2 week print media analysis that our Government has been providing free publicity worth Rs 40,000 to these entities. There are multiple issues with this as this article attempts at pointing out.</b>
<p style="text-align: justify;"><img src="https://cis-india.org/home-images/TotalAdvertisementExpenditure.jpg" alt="null" class="image-inline" title="Total Advertisement Expenditure" /></p>
<p style="text-align: justify;">We analyzed 5 English language newspapers daily for 2 weeks from March 12<sup>th</sup> to 26<sup>th</sup>, one week of the newspapers in Lucknow and the second week in Bangalore. Facebook, Twitter, Instagram and Alphabet backed services such as Youtube and Google Plus were part of our survey. Of a total of 33 advertisements (14 in Lucknow+19 in Bangalore), Twitter stands out as the most prominent advertising platform used by government agencies with 30 ads but Facebook at 29 was more expensive. In order to ascertain the rates of publicity, current advertisement rates for Times of India as our purpose was to solely give a rough estimation of how much the government is spending.</p>
<p style="text-align: justify;">Advertising of this nature is not merely an inherent problem of favoring some social media companies over others but also symptomatic of a bigger problem, the lack of our native e-governance mechanisms which cause the Government to rely and promote others. Where we do have guidelines they are not being followed. By outsourcing their e-governance platforms to Twitter such as TwitterSeva, a feature created by the Twitter India team to help citizens connect better with government services, there is less of an impetus to construct better <a class="external-link" href="https://factordaily.com/twitter-helping-india-reboot-public-services-publicly/">websites of their own</a>.</p>
<p style="text-align: justify;">If this is so because we currently do not have the capacity to build them ourselves then it is imperative that this changes. We should either be executing government functions on digital infrastructure owned by them or on open and interoperable systems. If anything, the surveyed social media platforms can be used to enhance pre-existing facilities. However, currently the converse is true with these platforms overshadowing the presence of e-governance websites. Officials have started responding to complaints on Twitter, diluting the significance of such complaint mechanisms on their respective department’s portal. Often enough such features are not available on the relevant government website. This sets a dangerous precedent for a citizen management system as the records of such interactions are then in the hands of these companies who may not exist in the future. As a result, they can control the access to such records or worse tamper with them. Posterity and reliability of such data can be ensured only if they are stored within the Government’s reach or if they are open and public with a first copy stored on Government records which ensures transparency as well. Data portability is an important facet to this issue as well as being a right consumers should possess. It provides for support of many devices, transition to alternative technologies and lastly, makes sure that all the data like other public records will be available upon request through the Right to Information procedure. The last is vital to uphold the spirit of transparency envisioned through the RTI process since interactions of government with citizens are then under its ambit and available for disclosure for whomsoever concerned.</p>
<p style="text-align: justify;">Secondly, such practices by the Government are enhancing the monopoly of the companies in the market effectively discouraging competition and eventually, innovation. While a certain elite strata of the population might opt for Twitter or Facebook as their mode of conveying grievance, this may not hold true for the rest of the online India population.</p>
<p style="text-align: justify;">Picking players in a free market is in violation of technology and vendor neutrality, a practice essential in e-governance to provide a level playing field for all and competing technologies. Projecting only a few platforms as de facto mediums of communication with the government inhibits the freedom of choice of citizens to air their grievances through a vendor or technology they are comfortable with. At the same time it makes the Government a mouthpiece for such companies who are gaining free publicity and consolidating their popularity. Government apps such as the SwachBharat one which is an e-governance platform do not offer much more in terms of functionality but either reflect the website or are a less mature version of the same. This leads to the problem of fracturing with many avenues of complaining such as the website, app, Twitter etc. Consequently, the priority of the people dealing with the complaints in terms of platform of response is unsure. Will I be responded to sooner if I tweet a complaint as opposed to putting it up on the app? Having an interoperable system can solve this where the Government can have a dashboard of their various complaints and responses are then made out evenly. Twitter itself could implement this by having complaints from Facebook for example and then the Twitter Seva would be an equal platform as opposed to the current issue where only they are favored.</p>
<p style="text-align: justify;">Recent events have illustrated how detrimental the storage of data by these giants can be in terms of privacy. Data security concerns are also a consequence of such leaks. Not only is this a long overdue call for a better data protection law but at the same time also for the Government to realize that these platforms cannot be trusted. The hiring of Cambridge Analytica to influence voters in the US elections, based on their Facebook profiles and ancillary data, effectively put the governance of the country on sale by exploiting these privacy and security issues. By basing e-governance on their backbone, India is not far from inviting trouble as well. It is unnecessary and dangerous to have a go-between for matters that pertain between an individual and state.</p>
<p style="text-align: justify;">As this article was being written, it was confirmed by the Election Commission that they are partnering with Facebook for the Karnataka Assemby Elections to promote activities such as encourage enrollment of Voter ID and voter participation. Initiatives like these tying the government even closer to these companies are of concern and cementing the latter’s stronghold.</p>
<p style="text-align: justify;"><em>Note: Our survey data and results are attached to this post. All research was collected by Shradha Nigam, a Vth year student at NLSIU, Bangalore.</em></p>
<hr />
<h3 style="text-align: justify;">Survey Data and Results</h3>
<p style="text-align: justify;">This report is based on a survey of government advertisements in English language newspapers in relation to their use of social media platforms and dedicated websites (“<strong>Survey</strong>”). For the purpose of this report, the ambit of the social media platforms has been limited to the use of Facebook, Twitter, YouTube, Google Plus and Instagram. The report was prepared by Shradha Nigam, a student from National Law School of India University, Bangalore. <a class="external-link" href="http://cis-india.org/internet-governance/files/cis-report-on-social-media">Read the full report here</a>.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/government-giving-free-publicity-worth-40-k-to-twitter-and-facebook'>https://cis-india.org/internet-governance/blog/government-giving-free-publicity-worth-40-k-to-twitter-and-facebook</a>
</p>
No publisherAkriti BopannaGoogleInstagramPrivacyTwitterYouTubeInternet GovernanceFeaturedGoogle PlusFacebookHomepage2018-04-27T09:52:26ZBlog EntryResponse to TRAI Consultation Paper on Regulatory Framework for Over-the-Top (OTT) Services
https://cis-india.org/telecom/blog/joint-response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-services
<b>The Centre for Internet and Society (CIS) sent a joint response to the TRAI Consultation Paper on Regulatory Framework for Over-the-top (OTT) Services with scholars from Indian Institute of Management, Ahmedabad. The response was sent on March 27, 2015.</b>
<h3 style="text-align: justify; ">Executive Summary</h3>
<p style="text-align: justify; ">The principle objective of net neutrality is that “all the Internet traffic has to be treated equally without any discrimination”; but this has had different interpretations over varied contexts. While the discourse in India has often treated net neutrality as a singular policy construct, we break down net neutrality to its various components. We then individually contextualise each component to the unique characteristics of the Indian telecommunications industry such as dependence on wireless internet access, the fragmented and non-contiguous distribution of spectrum, high competition between TEL-SPs and low digital literacy. The evolving nature of markets and networks are also considered while taking into account various public policy perspectives.</p>
<p style="text-align: justify; ">In this submission, we also argue for the need to introduce reasonable regulatory parity between functionally equivalent communications services provided by OTT-SPs and TEL-SPs. We compare the regulations for OTT-SPs under the Information Technology Act 2000 (as amended) with the regulations for TEL-SPs under the Telegraph Act 1885 (as amended), the license agreements (UL, UASL, ISP-L) and TRAI Regulations. Based on an analysis of the current laws and regulations, we suggest how TRAI needs to intervene to create this regulatory parity (for example in areas such as privacy, spam/UCC, interception etc.).</p>
<p style="text-align: justify; ">Through the above analysis, we recommend an overall regulatory framework that should be adopted by the Government. The framework takes a nuanced approach to various components of net neutrality, contextualised to India, and also attempts to bring reasonable regulatory parity. Instead of compartmentalising TEL-SPs and OTT-SPs as two distinct actors, the recommended framework considers a two-layered approach which recognises that there is an overlap between TEL-SPs and OTT-SPs. The first layer comprises of network and infrastructure (collectively called the network layer) and the second layer comprises of services and applications (collectively called the service layer).</p>
<p style="text-align: justify; ">The framework further divides the service layer into “Non-IP Services”, “Specialised Services” and “Internet Based Services”. The concept of “Specialised Services”, which is borrowed from the European Union, refers to traditional services that have migrated to an IP architecture such as facilities-based VoIP calls to PSTN and IPTV, and are either logically distinct from the Internet or have special needs which the “best efforts” delivery of the general Internet cannot satisfy. This concept helps in applying different evaluation criteria to functionally equivalent “Non-IP Services”, “Specialised Services” and “Internet Based Services”. In the framework, “Specialised Services” are also recognised as an exception to net neutrality. The concept of “Specialised Services” also helps to create an incentive for continued investment in underlying infrastructure by TEL-SPs.</p>
<p style="text-align: justify; ">This framework has helped us to bring a more balanced approach from the perspective of both TEL-SPs and OTT-SPs, while also taking into account technological convergence. It has also helped us to bring a more nuanced approach to various issues comprising net neutrality such as zero rating, paid prioritisation etc. We have considered best practices from different international regimes and the pros and cons during implementation in order to determine the exceptions and boundaries of net neutrality that should be adopted in India.</p>
<p style="text-align: justify; "><a href="https://cis-india.org/telecom/blog/trai-response-paper.pdf" class="internal-link">Download the full text of the Response</a></p>
<p>
For more details visit <a href='https://cis-india.org/telecom/blog/joint-response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-services'>https://cis-india.org/telecom/blog/joint-response-to-trai-consultation-paper-on-regulatory-framework-for-over-the-top-services</a>
</p>
No publisherpraneshTelecomFeatured2015-05-09T11:27:15ZBlog EntryDesiSec: Cybersecurity and Civil Society in India
https://cis-india.org/internet-governance/blog/desi-sec-cybersecurity-and-civil-society-in-india
<b>As part of its project on mapping cyber security actors in South Asia and South East Asia, the Centre for Internet & Society conducted a series of interviews with cyber security actors. The interviews were compiled and edited into one documentary. The film produced by Purba Sarkar, edited by Aaron Joseph, and directed by Oxblood Ruffin features Malavika Jayaram, Nitin Pai, Namita Malhotra, Saikat Datta, Nishant Shah, Lawrence Liang, Anja Kovacs, Sikyong Lobsang Sangay and, Ravi Sharada Prasad.</b>
<p style="text-align: justify; ">Originally the idea was to do 24 interviews with an array of international experts: Technical, political, policy, legal, and activist. The project was initiated at the University of Toronto and over time a possibility emerged. Why not shape these interviews into a documentary about cybersecurity and civil society? And why not focus on the world’s largest democracy, India? Whether in India or the rest of the world there are several issues that are fundamental to life online: Privacy, surveillance, anonymity and, free speech. DesiSec includes all of these, and it examines the legal frameworks that shape how India deals with these challenges.</p>
<p style="text-align: justify; ">From the time it was shot till the final edit there has only been one change in the juridical topography: the dreaded 66A of the IT Act has been struck down. Otherwise, all else is in tact. DesiSec was produced by Purba Sarkar, shot and edited by Aaron Joseph, and directed by Oxblood Ruffin. It took our team from Bangalore to Delhi and, Dharamsala. We had the honour of interviewing: Malavika Jayaram, Nitin Pai, Namita Malhotra, Saikat Datta, Nishant Shah, Lawrence Liang, Anja Kovacs, Sikyong Lobsang Sangay and, Ravi Sharada Prasad. Everyone brought something special to the discussion and we are grateful for their insights. Also, we are particularly pleased to include the music of Charanjit Singh for the intro/outro of DesiSec. Mr. Singh is the inventor of acid house music, predating the Wikipedia entry for that category by five years. Someone should correct that.</p>
<p>DesiSec is released under the Creative Commons License Attribution 3.0 Unported (CC by 3.0). You can watch it on Vimeo: <a href="https://vimeo.com/123722680" target="_blank">https://vimeo.com/123722680</a> or download it legally and free of charge via torrent. Feel free to show, remix, and share with your friends. And let us know what you think!</p>
<hr />
<h2>Video</h2>
<p><iframe frameborder="0" height="315" src="https://www.youtube.com/embed/8N3JUqRRvys" width="560"></iframe></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/desi-sec-cybersecurity-and-civil-society-in-india'>https://cis-india.org/internet-governance/blog/desi-sec-cybersecurity-and-civil-society-in-india</a>
</p>
No publisherLaird BrownCensorshipPrivacyFreedom of Speech and ExpressionInternet GovernanceCyber Security FilmFeaturedChilling EffectCyber SecurityHomepageCyber Security Interview2015-06-29T16:25:43ZBlog Entry Digital Activism in Asia Reader
https://cis-india.org/raw/digital-activism-in-asia-reader
<b>The digital turn might as well be marked as an Asian turn. From flash-mobs in Taiwan to feminist mobilisations in India, from hybrid media strategies of Syrian activists to cultural protests in Thailand, we see the emergence of political acts that transform the citizen from being a beneficiary of change to becoming an agent of change. In co-shaping these changes, what the digital shall be used for, and what its consequences will be, are both up for speculation and negotiation. Digital Activism in Asia marks a particular shift where these questions are no longer being refracted through the ICT4D logic, or the West’s attempts to save Asia from itself, but shaped by multiplicity, unevenness, and urgencies of digital sites and users in Asia. It is our great pleasure to present the Digital Activism in Asia Reader.</b>
<p> </p>
<h2>The Book</h2>
<p>The Reader took shape over two workshops with a diverse range of participants, including activists, change-makers, and scholars, organised by the Researchers at Work (RAW) programme in June 2014 and March 2015. During the first workshop, the participants identified the authors, topics, and writings that should be included/featured in the reader, based upon their relevance in the grounded practices of the participants, who came from various Asian countries. The second workshop involved open discussions regarding how the selected readings should be annotated, from key further questions to strategies of introducing them, followed by development of the annotations by the participants of the workshop. The full list of contributors, annotators, and editors is mentioned at the end of the book.</p>
<p>We are grateful to the <a href="http://meson.press/about/" target="_blank">Meson Press</a> for its generous and patience support throughout the development process of the book.</p>
<p><strong>Please download, read, and share this open-access book from the Meson Press <a href="http://meson.press/wp-content/uploads/2015/08/9783957960511-Digital-Activism-Asia-Reader.pdf" target="_blank">website</a>.</strong></p>
<p>The Reader has been edited by Nishant Shah, P.P. Sneha, and Sumandro Chattapadhyay, with support from Anirudh Sridhar, Denisse Albornoz, and Verena Getahun.</p>
<p> </p>
<h2>Excerpt from the Foreword</h2>
<p>Compiling this Reader on Digital Activism in Asia is fraught with compelling challenges, because each of the key terms in the formulation of the title is sub-ject to multiple interpretations and fierce contestations. The construction of ‘Asia’ as a region, has its historical roots in processes of colonial technologies of cartography and navigation. Asia was both, a measured entity, mapped for resources to be exploited, and also a measure of the world, promising anorientation to the Western World’s own turbulent encounters. As Chen Kuan-Hsing points out in his definitive history of the region, Asia gets re-imagined as a ‘method’ in cold-war conflicts, becoming the territory to be assimilated through exports of different ideologies and cultural purports. Asia does not have its own sense of being aregion. The transactions, interactions, flows and exchanges between different countries and regions in Asia have been so entirely mediated by powers of colonisation that the region remains divided and reticent in its imagination of itself. However, by the turn of the 21st century, Asia has seen a new awakening. It finds a regional identity, which, surprisingly did not emerge from its consolidating presence in global economics or in globalised structures of trade and commerce. Instead, it finds a presence, for itself, through a series of crises of governance, of social order, of political rights, and of cultural productions, that binds it together in unprecedented ways.</p>
<p>The digital turn might as well be marked as an Asian turn, because with the new networks of connectivity, with Asian countries marking themselves as informatics hubs, working through a circulated logic of migrant labour and dis-tributed resources, there came a sense of immediacy, proximity, and urgencythat continues to shape the Asian imagination in a new way. In the last decade or so, the rapid changes that have emerged, creating multiple registers of modernity, identity, and community in different parts of Asia, accelerated by a seamless exchange of ideas, commodities, cultures, and people have created a new sense of the region as emerging through co-presence rather than competition and conflict. Simultaneously, the emergence of global capitals of information, labour and cultural export, have created new reference points by which the region creates its identities and networks that are no longer subject to the tyranny of Western hegemony...</p>
<p>While the digital remains crucial to this shaping of contemporary Asia, both in sustaining the developmental agenda that most of the countries espouse, and in opening up an inward looking gaze of statecraft and social organisation, the digital itself remains an ineffable concept. Largely because the digital is like a blackbox that conflates multiple registers of meaning and layers of life, it becomes important to unengineer it and see what it enables and hides. The economic presence of the digital is perhaps the most visible in telling the story of Asia in the now. Beginning with the dramatic development of Singapore as the centre of informatics governance and the emergence of a range of cities from Shanghai to Manilla and Bangalore to Tehran, there has been an accelerated narrative of economic growth and accumulation of capital that is often the global face of the Asian turn. However, this economic reordering is not a practice in isolation. It brings with it, a range of social stirrings that seek to overthrow traditional structures of oppression, corruption, control, and injustice that have often remained hidden in the closed borders of Asian countries. However, the digital marks a particular shift where these questions are no longer being excavated by the ICT4D logic, of the West’s attempts to save Asia from itself. These are questions that emerge from the ground, as more people interact with progressive and liberal politics and aspire not only for higher purchase powers but a better quality of rights. The digital turn has opened up a range of social and political rights based discourses, practices, and movements, where populations are holding their governments and countries responsible, accountable, and culpable in the face of personal and collective loss and injustice...</p>
<p>In the face of this multiplicity of digital sites and usages that are reconfiguring Asia, it is obvious then, that the very nature of what constitutes activism is changing as well. Organised civil society presence in Asia has often had a strong role in shaping modern nation states, but more often than not these processes were defined in the same vocabulary as that of the powers that they were fighting against. Marked by a strong sense of developmentalism and often working in complement to the state rather than keeping a check on the state’s activities, traditional activism in Asia has often suffered from the incapacity to scale and the inability to find alternatives to the state-defined scripts of development, growth and progress. In countries where literacy rates have been low, these movements also suffer from being conceived in philosophical and linguistic sophistry that escapes the common citizen and remains the playground of the few who have privileges afforded to them by class and region. Digital Activism, however, seems to have broken this language barrier, both internally and externally, allowing for new visualities enabled by ubiquitous computing to bring various stakeholders into the fray... At the same time, the digital itself has introduced new problems and concerns that are often glossed over, in the enthralling tale of progress. Concerns around digital divide, invasive practices of personal data gathering, the nexus of markets and governments that install the citizen/consumer in precarious conditions, and the re-emergence of organised conservative politics are also a part of the digital turn. Activism has had to focus not only on digital as a tool, but digital also as a site of protest and resistance...</p>
<p>The Reader does not offer an index of the momentous emergence with the growth of the digital or a chronological account of how digital activism in Asia has grown and shaped the region. Instead, the Reader attempts a crowd-sourced compilation that presents critical tools, organisations, theoretical concepts, political analyses, illustrative case-studies and annotations, that an emerging network of changemakers in Asia have identified as important in their own practices within their own contexts.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/raw/digital-activism-in-asia-reader'>https://cis-india.org/raw/digital-activism-in-asia-reader</a>
</p>
No publishersumandroDigital ActivismDigital Activism in Asia ReaderFeaturedResearchNet CulturesPublicationsResearchers at Work2015-10-24T14:36:44ZBlog EntryCOVID-19 Charter Of Recommendations on Gig Work
https://cis-india.org/raw/covid-19-charter-of-recommendations
<b>Tandem Research and the Centre for Internet and Society organised a webinar on 9 April 2020, with unions representing gig workers and researchers studying labour rights and gig work, to uncover the experiences of gig workers during the lockdown. Based on the discussion, the participants of the webinar have drafted a set of recommendations for government agencies and platform companies to safeguard workers’ well being. Here are excerpts from this charter of recommendation shared with multiple central and state government agencies and platforms companies.</b>
<p> </p>
<em><a href="https://cis-india.org/raw/zothan-mawii-covid-19-and-relief-measures-for-gig-workers-in-india" target="_blank">Summary of discussions</a> from the COVID-19 and Gig Economy webinar, authored by Zothan Mawii, Tandem Research</em>
<hr />
<h3><strong>Contributors</strong></h3>
<ol>
<li>Aayush Rathi, Ambika Tandon and Tasneem Mewa, The Centre for Internet and Society, India</li>
<li>Aditi Surie, Indian Institute for Human Settlements</li>
<li>Anita Gurumurthy and Nandini Chami, IT for Change</li>
<li>Astha Kapoor, Aapti Institute</li>
<li>Dharmendra Vaishnav, Indian Delivery Lions (IDL)</li>
<li>Janaki Srinivasan, International Institute of Information Technology, Bangalore</li>
<li>Kaveri Medappa, University of Sussex</li>
<li>Pradyumna Taduri, Fairwork Foundation</li>
<li>Rakhi Sehgal, Gurgaon Shramik Kendra</li>
<li>Sangeet Jain, Researcher</li>
<li>Shaik Salauddin, Indian Federation of App-based Transport Workers (IFAT)</li>
<li>Shohini Sengupta, Assistant Professor of Research, Jindal School of Banking and Finance</li>
<li>Simiran Lalvani, Independent researcher</li>
<li>Tanveer Pasha, Ola, Taxi 4 Sure and Uber Drivers and Owners’ Association (OTU)</li>
<li>P. Vignesh Ilavarasan, Researcher and professor, IIT Delhi</li>
<li>Vinay Sarathy, United Food Delivery Partners’ Union (UFDPU)</li>
<li>Vinay K. Sreenivasa, Advocate, Alternative Law Forum</li>
<li>Zothan Mawii, Iona Eckstein and Urvashi Aneja, Tandem Research</li></ol>
<h3><strong>Context</strong></h3>
<p>The nationwide lockdown in response to the ongoing COVID-19 pandemic has had a devastating impact on ‘gig workers’ working for on-demand service platforms such as those providing ride-hailing, home-based work and food delivery services and also e-commerce companies. Those driving for on-demand transportation companies have lost their source of livelihood as services remain suspended.</p>
<p>Workers for on-demand delivery and home-based services, on the other hand, have been deemed “essential” and continue to work although demand has fallen drastically. Earnings for delivery workers have fallen to as low as INR 100-300 per day for a whole day’s work. Workers face a high risk of contracting COVID-19 due to their exposure to multiple customers. Apprehensions are rising after a <a href="https://indianexpress.com/article/cities/delhi/pizza-man-who-tested-covid-19-positive-also-delivered-food-for-us-zomato-6365513/" target="_blank">delivery worker for Zomato</a> tested positive for COVID-19 in New Delhi. Demand has fallen further but delivery workers must continue to put themselves and their families’ health and safety at risk with limited or no provisions for personal protective equipment or other safety measures <a href="https://gadgets.ndtv.com/apps/news/swiggy-zomato-customer-advisory-coronavirus-outbreak-covid-19-india-2193038" target="_blank">offered by companies</a>.</p>
<p>The relief works announced by the central and state governments do not specifically provide for ‘gig workers’. At the same time, the measures announced by on-demand service companies are inadequate, ambiguous and inconsistent. The eligibility, manner and quantum of relief and the process of availing relief is unclear to workers.</p>
<p>We urge you to bolster the socio-economic and healthcare protections for ‘gig workers’ in India in light of the outbreak of COVID-19. Any efforts aimed at directing relief to ‘gig workers’ will have to be combined, involving the central and state governments and on-demand service companies.</p>
<p>We suggest that the measures adopted incorporate the recommendations outlined below. The recommendations have been drafted after discussion between civil society actors including labour unions from delivery and transportation sectors, researchers, and activists. A summary of the discussions leading to this charter of recommendations can be found <a href="https://cis-india.org/raw/zothan-mawii-covid-19-and-relief-measures-for-gig-workers-in-india" target="_blank">here</a>.</p>
<h3><strong>Charter of Recommendation on Gig Work</strong></h3>
<p><img src="https://cis-india.org/raw/covid19-charter-image-1/" alt="null" width="85%" /></p>
<p><img src="https://cis-india.org/raw/covid19-charter-image-2/" alt="null" width="85%" /></p>
<p><img src="https://cis-india.org/raw/covid19-charter-image-3/" alt="null" width="85%" /></p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/raw/covid-19-charter-of-recommendations'>https://cis-india.org/raw/covid-19-charter-of-recommendations</a>
</p>
No publisherAayush Rathi and Ambika TandonResearchers at WorkGig WorkDigital LabourCovid19ResearchPlatform-WorkFuture of WorkFeaturedNetwork EconomiesHomepage2020-05-13T08:53:02ZBlog EntryYour economy, our livelihoods: A policy brief by the All India Gig Workers’ Union
https://cis-india.org/raw/your-econonomy-our-livelihoods-a-policy-brief-by-the-all-india-gigi-workers-union
<b>In this policy brief, the All India Gig Workers’ Union (AIGWU) presents its critique on NITI Aayog’s report on India’s platform economy. Through experiences from over 3 years of organising gig workers across India, they highlight fallacies in the report that disregard workers’ experiences and realities. They present alternative recommendations that are responsive to these realities, and offer pathways towards rights-affirming futures for workers in the platform economy.
</b>
<p><span style="text-align: justify; "><a class="external-link" href="https://cis-india.org/raw/files/your-economy-our-livelihoods.pdf">Click to download</a> the full report</span></p>
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<h3>Alternative recommendations towards rights-affirming futures for workers in the platform economy</h3>
<p><strong>Regulating the unchecked rise of platforms and the platform workforce</strong></p>
<p dir="ltr" style="text-align: justify; ">The rise of platforms will not only affect workers in blue collar or grey collar jobs but also engulf other service sectors that currently provide permanent and dignified employment. The platform and gig work paradigm must not be used as a way to further deregulate the Indian economy by subterfuge.</p>
<p style="text-align: justify; ">Robust regulatory mechanisms and worker protections must be extended to the gig economy and other forms of perennial employment threatened by the new Central labour codes. Gig workers must be recognised as employees with a clear test of employment enshrined in law.</p>
<p style="text-align: justify; ">A stronger push towards better paradigms of work can only come from alternative models of platform work. It is essential that the government foster the creation of platform cooperatives in certain service sectors. Such platform cooperatives will mitigate market concentration that results from the network effects of large private platforms, offer greater stability than profit-oriented private platforms, and offer genuine pro-people alternatives.</p>
<p dir="ltr"><strong>Securing data rights and employment security</strong></p>
<p dir="ltr" style="text-align: justify; ">Gig workers must be guaranteed individual and collective rights to their data collected and stored by platforms. Workers’ data should belong to the workers. Workers should be able to access verified records of their training (if any) and work contributions. The government should prescribe standards to ensure that these records are machine-readable and universally inter-operable. In addition, workers must have easy access to verified receipts for each successful task performed on the platform.</p>
<p dir="ltr"><strong>Centering gender-responsive protections for workers facing intersectional vulnerabilities</strong></p>
<p dir="ltr" style="text-align: justify; ">Platform work is uncritically accepted as a panacea for women without taking a deeper look at labour practices, and how women workers may be particularly vulnerable to workplace risks and exploitation.</p>
<p style="text-align: justify; ">Considering these vulnerabilities, there must be legal and regulatory measures enabling women to participate in the gig economy more fully—for example, creches, sexual harassment prevention measures, equal wages, and proper hours and working conditions. Crucially, there should be safety provisions for all gig workers, especially for women who face greater dangers of harassment. Importantly, accessible and efficient enforcement mechanisms must be introduced to operationalise schemes and rights for women workers.</p>
<p><strong>Securing minimum social protection guarantees for all workers on digital platforms</strong></p>
<p dir="ltr" style="text-align: justify; ">Effective minimum wages of INR 26,000 per month must be enforced as demanded by the Joint Platform of Central Trade Unions in India. This figure must be used to determine the minimum earnings for an hour’s worth of work on a platform.</p>
<p style="text-align: justify; ">Provision for Provident Fund (PF) must be introduced, and a bank account that does not require minimum balances or related charges must also be guaranteed. Social insurance measures must be guaranteed including health insurance, personal accident insurance, pension, maternity benefits, and disability benefits. In addition, the state government must consider waiving off charges relating to fuel surcharges and parking expenses/ penalties for gig workers, while on duty.</p>
<p style="text-align: justify; ">Security and safety for women workers must be addressed by issuing government ID cards for gig workers. Gig workers are required to travel to unknown localities, where residents tend to be suspicious of them. The government ID card will help workers establish their identity and increase their credibility among the residents.</p>
<p>Social security legislation and a tripartite board (with representation of workers and worker organisations, government, and platforms) must be constituted to ensure registration of all platform-based gig workers and facilitate their access to social security. The law should cover all those persons who are engaged in professions that are using digital platforms for their last mile delivery.</p>
<p><strong>Building accountability mechanisms for financial inclusion measures on platforms</strong></p>
<p dir="ltr" style="text-align: justify; ">While including gig workers into the formal banking system is essential, this must not be used as a pretext to ensnare them into debt traps. Should the government wish to use platforms as a lever for financial inclusion, it must mandate platforms to deposit a minimum amount above and beyond workers’ existing incomes towards their consumption. For platforms, existing schemes must be rejigged—Firstly, the burden of credit schemes must not be borne only by public sector banks; the private sector must also be directed to take on some of the lending. Secondly, interest rates may be lowered for such loans, but this reduced rate must be made conditional on ensuring a certain threshold of working conditions to gig workers.</p>
<p><strong>Developing workforce estimation strategies that reflect workers’ realities</strong></p>
<p dir="ltr" style="text-align: justify; ">Workers in the gig economy must not blindly be lumped with the unorganised sector without an understanding of nuances within the broad definition of the gig economy. Assumptions that workers in the gig economy have alternate sources of income must be refuted. Rather, in the case of gig workers in the Indian context, ground realities show that this work actually constitutes primary sources of income.</p>
<p dir="ltr" style="text-align: justify; ">Primary data must be collected across the country where platform work is seen as a clear option for individuals to choose as a profession. Thus, one can estimate the percentage of the population that depends on the gig economy in a consistent manner. Digital platforms must provide adequate data to state governments on the number of workers registered on the platform in every region (along with work time data) in order for governments to actively prepare for public infrastructure requirements required for such employment generation.</p>
<hr />
<h3 dir="ltr" style="text-align: justify; ">Contributors</h3>
<p dir="ltr">Authors: W.C. Shukla, Rikta Krishnaswamy, Rohin Garg, Gunjan Jena, and S.B. Natarajan</p>
<p dir="ltr">Images: All India Gig Workers’ Union (AIGWU)</p>
<p dir="ltr">Design: Annushka Jaliwala</p>
<h3>About the All India Gig Workers’ Union (AIGWU)</h3>
<p dir="ltr">The All India Gig Workers’ Union (AIGWU) is a registered trade union for all food delivery, logistics, and service workers that work on any app-based platforms in India.</p>
<p dir="ltr">Contact: <a href="mailto:contactaigwu@gmail.com">contactaigwu@gmail.com</a></p>
<p>Connect: <a href="https://twitter.com/aigwu_union">Twitter</a>; <a href="https://www.facebook.com/aigwu">Facebook</a></p>
<p style="text-align: justify; ">The views and opinions expressed on this page are those of their individual authors. Unless the opposite is explicitly stated, or unless the opposite may be reasonably inferred, CIS does not subscribe to these views and opinions which belong to their individual authors. CIS does not accept any responsibility, legal or otherwise, for the views and opinions of these individual authors. For an official statement from CIS on a particular issue, please contact us directly.</p>
<p>
For more details visit <a href='https://cis-india.org/raw/your-econonomy-our-livelihoods-a-policy-brief-by-the-all-india-gigi-workers-union'>https://cis-india.org/raw/your-econonomy-our-livelihoods-a-policy-brief-by-the-all-india-gigi-workers-union</a>
</p>
No publisherW.C. Shukla, Rikta Krishnaswamy, Rohin Garg, Gunjan Jena, and S.B. NatarajanLabour FuturesDigital EconomyGig WorkDigital LabourReserve Bank of IndiaFeaturedHomepage2024-01-31T00:02:12ZBlog Entry(Updated) Information Security Practices of Aadhaar (or lack thereof): A documentation of public availability of Aadhaar Numbers with sensitive personal financial information
https://cis-india.org/internet-governance/information-security-practices-of-aadhaar-or-lack-thereof-a-documentation-of-public-availability-of-aadhaar-numbers-with-sensitive-personal-financial-information-1
<b>Since its inception in 2009, the Aadhaar project has been shrouded in controversy due to various questions raised about privacy, technological issues, welfare exclusion, and security concerns. In this study, we document numerous instances of publicly available Aadhaar Numbers along with other personally identifiable information (PII) of individuals on government websites. This report highlights four government projects run by various government departments that have made sensitive personal financial information and Aadhaar numbers public on the project websites.
</b>
<p> </p>
<h4>Read the updated report: <a class="external-link" href="https://cis-india.org/internet-governance/information-security-practices-of-aadhaar-or-lack-thereof/" target="_blank">Download</a> (pdf)</h4>
<h4>Read the first statement of clarification (May 16, 2017): <a class="external-link" href="https://cis-india.org/internet-governance/clarification-on-information-security-practices-of-the-aadhaar-report/" target="_blank">Download</a> (pdf)</h4>
<h4>Read the second statement of clarification (November 05, 2018): <a class="external-link" href="https://cis-india.org/internet-governance/blog/clarification-on-the-information-security-practices-of-aadhaar-report" target="_blank">Link to page</a> (html)</h4>
<hr />
<p><em>We are grateful to Yesha Paul and VG Shreeram for research support.</em></p>
<hr />
<p>In the last month, there have been various reports pointing out instances of the public disclosure of Aadhaar number through various databases, accessible easily on Twitter under the hashtag #AadhaarLeaks. Most of these public disclosures reported contain personally identifiable information of beneficiaries or subjects of the non UIDAI databases containing Aadhaar numbers of individuals along with other personal identifiers. All of these public disclosures are symptomatic of a significant and potentially irreversible privacy harm, however we wanted to point out another large fallout of such events, those that create a ripe opportunity for financial fraud. For this purpose, we identified benefits disbursement schemes which would require its databases to store financial information about its subjects. During our research, we encountered numerous instances of publicly available Aadhaar Numbers along with other PII of individuals on government websites. In this paper, we highlight four government projects run by various government departments with publicly available financial data and Aadhaar numbers. Our research is focussed largely on the data published by or pertaining to where Aadhaar data is linked with banking information. We chose major government programmes using Aadhaar for payments and banking transactions. We found sensitive and personal data and information very easily accessible on these portals.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/information-security-practices-of-aadhaar-or-lack-thereof-a-documentation-of-public-availability-of-aadhaar-numbers-with-sensitive-personal-financial-information-1'>https://cis-india.org/internet-governance/information-security-practices-of-aadhaar-or-lack-thereof-a-documentation-of-public-availability-of-aadhaar-numbers-with-sensitive-personal-financial-information-1</a>
</p>
No publisherAmber Sinha and Srinivas KodaliDigital IDPrivacyNDSAPData ProtectionAccountabilityFeaturedData GovernanceAadhaarDigitisationHomepageInternet GovernanceData Management2019-03-13T00:29:01ZBlog EntryGlobal Accessibility Awareness Day 2017
https://cis-india.org/accessibility/events/global-accessibility-awareness-day-2017
<b>The Centre for Internet & Society along with Prakat Solutions and Mitra Jyothi is co-hosting the Global Accessibility Awareness Day in Bengaluru on May 18, 2017. </b>
<p style="text-align: justify;"><strong>Global Accessibility Awareness Day </strong>is celebrated across the world on the 3rd Thursday in May every year to create an awareness in making technology accessible and usable by persons with disabilities. While people may be interested in the topic of making technology accessible and inclusive, the reality is that they often do not know how or where to start, Awareness comes first.</p>
<p style="text-align: justify;">The purpose of GAAD is to get everyone talking, thinking and learning about digital (web, software, mobile, etc.) access/inclusion and people with different disabilities.</p>
<p style="text-align: justify;">To mark this day, Prakat Solutions will be hosting an event filled with lightning talks, workshops and a lot of other activities. You can also view a series of short videos about why accessibility is important with contributions from some of the greatest minds in accessibility today.For us as a company, Global Accessibility Awareness Day is quite special. Other awareness days that we participate in focus on a specific group of people. Today, is not about a specific group of people, today is about each and every one of us.</p>
<h3 style="text-align: justify;">Watch the Video on What is GAAD</h3>
<p><iframe src="https://www.youtube.com/embed/M9Ac5PAIKWo" frameborder="0" height="315" width="560"></iframe></p>
<p>
For more details visit <a href='https://cis-india.org/accessibility/events/global-accessibility-awareness-day-2017'>https://cis-india.org/accessibility/events/global-accessibility-awareness-day-2017</a>
</p>
No publisherpraskrishnaFeaturedHomepageAccessibilityEvent2017-05-16T05:51:45ZEventSameet Panda - Data Systems in Welfare: Impact of the JAM Trinity on Pension & PDS in Odisha during COVID-19
https://cis-india.org/raw/sameet-panda-jam-trinity-pension-pds-odisha-covid-19
<b>This study by Sameet Panda tries to understand the integration of data and digital systems in welfare delivery in Odisha. It brings out the impact of welfare digitalisation on beneficiaries through primary data collected in November 2020. The researcher is thankful to community members for sharing their lived experiences during course of the study. Fieldwork was undertaken in three panchayats of Bhawanipatna block of Kalahandi district, Odisha. Additional research support was provided by Apurv Vivek and Vipul Kumar, and editorial contributions were made by Ambika Tandon (Senior Researcher, CIS). This study was conducted as part of a project on gender, welfare, and surveillance, supported by Privacy International, UK.</b>
<p> </p>
<h4>Report: <a href="https://cis-india.org/raw/sameet-panda-impact-of-the-jam-trinity-on-pension-pds-in-odisha-during-covid-19" target="_blank">Download</a> (PDF)</h4>
<hr />
<h3>Extract from the Report</h3>
<p>The COVID-19 pandemic has accelerated flaws in social institutions as never before - threatening food security, public health systems, and livelihood in the informal sector. At the time of writing this report,
India is the second-worst affected country in the world with over 9.8 million confirmed cases and more than 1.4 hundred thousand deaths. Unemployment has been increasing at an alarming rate, from 6.67 to 7 percent in October...</p>
<p>Following the national lockdown, many families belonging to low-income groups and daily wage earners found themselves stranded without money, food or credit from their employers. During the strict lockdown of the economy between March to June 2020 lakhs of migrants faced starvation in cities and walked back home. The government responded with some urgent measures, although inadequate. To cope with the food and economic crisis the Government of India and state governments initiated several social protection schemes. In Odisha, The central government provided two kinds of support, cash transfer through Direct Benefit Transfer (DBT) MGNREGS, Pradhan Mantri Jan Dhan Yojana (PMJDY) and Pradhan Mantri Ujjwala Yojana (PMUJ), advance release of pension in cash to existing beneficiaries and cash support of Rs. 1000. The Odisha government provided cash support of Rs. 1000
to ration card holding families. Beneficiaries of the Public Distribution System also received free-of-cost food grain under the Pradhan Mantri Garib Kalyan Anna Yojana...</p>
<p>Over the last couple of years, along with making the Aadhaar mandatory, the government has also been working towards linking mobile numbers and bank accounts of beneficiaries. An increasing number of schemes are shifting to Direct Benefit Transfer from in-kind or cash benefits - 324 schemes under 51 ministries of the Government of India. Such schemes are relying on the linkage of Jan Dhan accounts, the Aadhaar, and mobile numbers (the “JAM trinity”) to facilitate access to Direct Benefit Transfers. The Economic Survey 2015-16 has pointed out that without improving mobile penetration and rural banking infrastructure making the JAM trinity mandatory would continue to lead to exclusions. The issues with each of the components of the JAM trinity worsened during the COVID-19 crisis with restrictions on physical movement, difficulties in topping up mobile phone accounts, and enrolling for the Aadhaar or addressing other technical issues.</p>
<p>This report assesses the role of the data system in welfare delivery. It focuses on the impact of the three components of the JAM trinity - Jan Dhan Account, mobile numbers and the Aadhaar on Direct Benefit Transfer, social security pension and the Public Distribution System. The objective of this study is to understand the challenges faced by beneficiaries in accessing PDS and pension as a result of digitisation processes. This includes failures in Direct Benefit Transfers and exclusions from databases, particularly during the COVID-19 pandemic. The study focuses on gender as a key component shaping the impact of digitisation on beneficiaries. The sample includes both men and women beneficiaries in order to identify such gendered differences. It will also identify infrastructural constraints in Odisha that impact the implementation of digital systems in welfare. Also, it will analyse policy frameworks at central and state levels, to compare their discourse with the impact on the ground.</p>
<p> </p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/raw/sameet-panda-jam-trinity-pension-pds-odisha-covid-19'>https://cis-india.org/raw/sameet-panda-jam-trinity-pension-pds-odisha-covid-19</a>
</p>
No publisherSameet PandaWelfare GovernanceData SystemsHomepageResearchFeaturedGender, Welfare, and PrivacyResearchers at Work2021-02-26T07:36:10ZBlog EntryUniversal Service for Persons with Disabilities: A Global Survey of Policy Interventions and Good Practices
https://cis-india.org/universal-service-for-persons-with-disabilities
<b>The Global Initiative for Inclusive Information and Communication Technologies and the Centre for Internet and Societies in cooperation with the Hans Foundation have published the Universal Service for Persons with Disabilities: A Global Survey of Policy Interventions and Good Practices. The book consists of a Foreword by Axel Leblois, an Introduction and four chapters. Deepti Bharthur, Axel Leblois and Nirmita Narasimhan have contributed to the chapters.</b>
<h3>Foreword</h3>
<p>Universal Service definitions have been developed by 125 countries and are the foundation for policies and programs ensuring that telecommunications are available to all categories of population. Universal service funds are the main vehicle used to fund those programs, primarily addressing imbalances such as lack of availability of services in rural areas. While geographic coverage has vastly improved over the past decade with wireless infrastructure, the scope of Universal Service has expanded to include other categories of underserved populations.</p>
<p>Among those, persons with disabilities and senior citizens, who represent 15% of the world population<a href="#fn1" name="fr1">[1]</a> are an increasing concern for legislators and regulators. Basic accessibility features for public telephone booths, fixed line or wireless handsets, customer services in alternate formats such as Braille, or assistive services such as relay services for hard of hearing or deaf persons are in fact not implemented in a majority countries.<a href="#fn2" name="fr2">[2]</a></p>
<p>To address those issues, several countries have expanded the scope of their national definition of Universal Service Obligation to include persons with disabilities allowing programs promoting the accessibility of information and communication technologies to be covered by Universal Service Funds.</p>
<p>The adoption of the Convention on the Rights of Persons with Disabilities by over 150 countries since March 31st, 2007 will likely accelerate this trend: States Parties have an obligation to ensure that Information and Communication Technologies and Services are made accessible to persons with disabilities. This can be done by aligning the definition of Universal Service Obligation with article 9 of the Convention and expanding the charter of Universal Service Funds to cover programs promoting accessibility for persons with disabilities. This report is the first attempt to document how Universal Service definitions and related policies and programs have been implemented by various countries to ensure that persons with disabilities have full access, on an equal basis with others,to telecommunication services.G3ict would like to express its sincere appreciation to the Center for Internet and Society for its support of this project, to Nirmita Narasimhan for researching and editing this report;to the International Telecommunication Union for providing references and helping identify countries to be surveyed, and to the Hans Foundation for funding the print version of the report. Promoting universal service for persons with disabilities can affect positively the lives of millions of users around the world. We hope that this report may serve as a useful reference for policy makers, operators, organizations of persons with disabilities, and as a framework for good practice sharing among countries currently implementing the Convention on the Rights of Persons with Disabilities.</p>
<p>Axel Leblois<br />Executive Director<br />G3ict – Global Initiative for Inclusive ICTs</p>
<hr />
<h3>Introduction</h3>
<p>The advent of the Internet and accessible information and communication technologies (ICT) has opened up exciting possibilities and opportunities for persons with disabilities.The United Nations Convention on the Rights of Persons with Disabilities (the ‘UNCRPD’)3 has explicitly recognized the right of persons with disabilities to seek, receive and impart information on an equal basis with others4 and has placed specific obligations on member states to ensure that all ICT based facilities and services (which include telecommunications services) must be made available and accessible to all. To this end, member states are required to formulate and implement appropriate laws and policies at national, regional and global levels. In an age where almost all spheres of life are inextricably woven with and dependent on ICT, Article 9 of the UNCRPD on Accessibility is possibly one of the most powerful and critical tools in the hands of policy makers to ensure that persons with disabilities are assured of basic human rights such as education, health, employment and access to information and participation.While the lack of awareness amongst governments is undeniably a serious impediment to implementing accessible ICT in any country, an equally serious and perhaps more realistic problem is the lack of resources which is plaguing many countries, especially developing nations. The fact that governments are already struggling to ensure basic human rights for all citizens by judiciously dividing their limited resources for the whole gamut of needs makes it difficult for them to outlay separate and substantial budgets which may be required for implementing ICT accessibility. In such a scenario it becomes very important to look around and identify sources of funding, new or existing, which can be leveraged by governments to fulfill their obligation towards making all ICT based applications and services accessible and promoting assistive technologies for persons with disabilities.</p>
<p>This report aims to highlight the extreme suitability of leveraging the Universal Service Fund (USF) to implement accessibility and assistive technologies in telecommunications. It examines the evolution of the concept of USF, its minimum mandate and scope, funding sources, as well as project implementation mechanisms and showcases countries which are using the USF to fund accessibility projects through policies and programmes.</p>
<hr />
<p>[<a href="#fr1" name="fn1">1</a>].WHO Global Report on Disability, June 2011 - <a class="external-link" href="http://www.who.int/disabilities/world_report/2011/en/index.html">http://www.who.int/disabilities/world_report/2011/en/index.html </a></p>
<p>[<a href="#fr2" name="fn2">2</a>].CRPD Progress Report on ICT Accessibility – 2010 by G3ict - <a class="external-link" href="http://g3ict.org/resource_center/publications_and_reports">http://g3ict.org/resource_center/publications_and_reports</a></p>
<hr />
<ol>
<li><a href="https://cis-india.org/universal-service-braille/view" class="external-link">Click here</a> for the Braille format</li>
<li>Download the Daisy version <a href="https://cis-india.org/accessibility/universal-service-daisy" class="internal-link" title="Universal Service for Persons with Disabilities - Daisy File">here</a></li>
<li>Download the book <a href="https://cis-india.org/accessibility/universal-service-disabilities.pdf" class="internal-link" title="Universal Service for Persons with Disabilities">here </a>PDF [302 KB] </li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/universal-service-for-persons-with-disabilities'>https://cis-india.org/universal-service-for-persons-with-disabilities</a>
</p>
No publishernirmitaFeaturedAccessibilityPublications2012-10-08T05:43:46ZBlog EntryGuidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response
https://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions
<b>The procedure and tests surrounding software patenting in India have remained ambiguous since the Parliament introduced the term “per se” through the Patent (Amendment) Act, 2002. In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Through this post, CIS intern, Shashank Singh, analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses. </b>
<p style="text-align: justify; "><b> I. </b> <b>Introduction </b></p>
<p style="text-align: justify; ">In June, 2013 the Office of Controller General of Patents, Designs and Trademarks ('IPO'), released the <a href="http://ipindia.nic.in/iponew/draft_Guidelines_CRIs_28June2013.pdf">Draft Guidelines for Examination of Computer Related Inventions</a> ('Guidelines'). The aim of the Guidelines was to provide some much needed clarity around patentability of Computer Related Inventions ('CRI'). The Guidelines discuss the procedure to be adopted by the examiners while examining CRI patent applications. In response to the Guidelines, several stakeholders submitted their comments to either accept, reject or modify the interpretation provided by the IPO. Most of the comments circled around the phraseology of Section 3(k), Patents Act, 1970 ('Act'). In its current form, Section 3(k) reads as "a mathematical or business method or a computer programme per se or algorithms", and comes under Chapter III of the Act which lists inventions that are not patentable. Simply put, this means that software cannot be patented in India, unless it is embedded/combined in with some hardware. While this is the <a href="http://nopr.niscair.res.in/bitstream/123456789/14456/1/JIPR%2017(4)%20284-295.pdf">most widely accepted interpretation of this Section 3(k)</a>, there have been contradictory interpretations as well.</p>
<p style="text-align: justify; ">In this note, I shall look at the various ambiguities surrounding patent application for CRIs. The note has been divided into five parts. Part II briefly reiterates the legislative history behind Section 3(k) and CRI patenting. Part III would briefly summarize the various parts of the Guidelines where the IPO has given their interpretation and opinion on the various issues surrounding CRI patenting. Part IV would then map the <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/CRI%20Comments-index.html">position of the stakeholders</a> on each ambiguous point. Lastly, Part V would give the conclusion.</p>
<p style="text-align: justify; "><b> II. </b> <b>Legislative History </b></p>
<p style="text-align: justify; ">Under the Patent Act, 1970, prior to the 2002 Amendment, there was no specific provision under which software could be patented. Nonetheless, there was no explicit embargo on software patenting either. For an invention to be patentable, under Section 2(1) (j) of the Act, which defines an invention, general criteria of novelty, non-obviousness and usefulness must be applied. Software is generally in the form of a mathematical formula or algorithm, both of which are not patentable under the Act as they <a href="http://nopr.niscair.res.in/bitstream/123456789/14456/1/JIPR%2017(4)%20284-295.pdf">do not produce anything tangible.</a> However, if combined or embedded in a machine or a computer, the resultant product can be patented as it would pass the aforementioned criteria.</p>
<p style="text-align: justify; ">The Parliament, in 1999, sought to amend the Act to bring it in conformity with the changing technological landscape. Consequently, the Patent (Second Amendment) Bill, 1999 was introduced in the Parliament which was then referred to a <a href="http://164.100.47.5/webcom/MoreInfo/PatentReport.pdf">Joint Parliamentary Committee</a> ('JPC'). The ensuing Bill proposed Section 3(k) in its current phraseology. It reasoned that:</p>
<p style="text-align: justify; ">" <i> In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, <b>ancillary thereto or developed thereon.</b> The intention here is not to reject them for grant of patent if they are inventions. However, the <b>computer programmes as such</b> are not intended to be granted patent. This amendment has been proposed to clarify the purpose. </i> "</p>
<p style="text-align: justify; ">The Bill was then enacted as the <a href="http://www.ipindia.nic.in/ipr/patent/patentg.pdf">Patent (Amendment) Act, 2002</a> and reads in its current form as:</p>
<p style="text-align: justify; ">Section 3(k) - <i>"a mathematical or business method or a computer programme per se or algorithm"</i></p>
<p style="text-align: justify; ">This created some ambiguity with respect to the interpretation of the term "per se". It was interpreted to mean that software cannot be patented unless it is combined with some hardware. This combination would then have to comply with all the tests of patentability under the Act.</p>
<p style="text-align: justify; ">In December, 2004 the <a href="http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf">Patent (Amendment) Ordinance, 2004</a> ('Ordinance') was enacted which amended Section 3(k) to divide it into two parts, namely Section 3(k) and Section 3(ka).</p>
<p style="text-align: justify; ">"<i>(k) a computer programme per se other than its technical application to industry or a combination with hardware;</i></p>
<p style="text-align: justify; "><i>(ka) a mathematical method or a business method or algorithms;</i> ".</p>
<p style="text-align: justify; ">In February, 2005 the Ordinance was introduced in the Parliament as the <a href="http://pib.nic.in/newsite/erelease.aspx?relid=8096">Patent (Amendment) Bill, 2005</a>.This included the amendment to Section 3(k) as under the Ordinance. In the Objects and Reasons it clarified that the intention behind the amendment was to " <i> modify and clarify the provisions relating to patenting of software related inventions when they have technical application to industry or in combination with hardware </i> ". However, the final amending Act did not divide Section 3(k) as proposed by the Ordinance. In the <a href="http://pib.nic.in/newsite/erelease.aspx?relid=8096">press note, by the Ministry of Commerce and Industry</a> it was noted that:</p>
<p style="text-align: justify; "><i> "It is proposed to omit the clarification relating to patenting of software related inventions introduced by the Ordinance as Section 3(k) and 3 (ka). The clarification was objected to on the ground that this may give rise to monopoly of multinationals." </i></p>
<p style="text-align: justify; ">Later, in the same year the IPO release a <a href="http://ipindia.nic.in/ipr/patent/manual-2052005.pdf">Manual of Patent Office Practice and Procedure, 2005</a>. Here, it noted that "a computer readable storage medium having a program recorded thereon…irrespective of the medium of its storage are not patentable". This did nothing to clarify the ambiguity that existed.</p>
<p style="text-align: justify; ">Similarly, the <a href="http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Commerce/88th%20Report.htm"> Parliamentary Standing Committee on Commerce, 88<sup>th</sup> Report on the Patent and Trademark System in India (2008) </a> noted the uncertainty surrounding the term 'per se' and said that there was a need to clarify the same. It did not do anything in furtherance of pointing this out.</p>
<p style="text-align: justify; ">The 2011 <a href="http://www.ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20pdf/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure.pdf"> Manual of Patent Office and Procedure, 2011 </a> tried to elaborately deal with the ambiguity. Nonetheless, substantively it did not change the uncertainty. It stated that<b>:</b></p>
<p style="text-align: justify; "><i> "If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products' are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention." </i></p>
<p style="text-align: justify; "><b> III. </b> <b>Draft Guidelines for Examination of Computer Related Inventions, 2013</b></p>
<p style="text-align: justify; ">The Draft Guidelines were released on June 28, 2013, following which stakeholders were invited to give comments.</p>
<p style="text-align: justify; "><b><i>Terms/ Definitions used while dealing with CRIs </i></b></p>
<p style="text-align: justify; ">At the outset, the IPO put a caveat to say that the Guidelines do not constitute 'rule making'. Consequently, in case of a conflict between the Guidelines and the Act, the Act shall prevail. After the Introduction and Background, in Part I and Part II respectively, the Guidelines looked at the various definitions/terms that correspond to CRI patent claims in Part III. In all, there were 21 such definitions/terms that were sought to be clarified. These definitions can be branched into three categories.</p>
<p style="text-align: justify; ">Category I- Where the definition/term was borrowed from some other Indian stature. <br /> Category II- Where the definition/term was construed according to the plain dictionary meaning. Category III- Where the Guidelines tried to give their interpretation to the term/definition.</p>
<p style="text-align: justify; ">Under Category I, there were seven definitions whose meaning was derived from some other stature. The meaning of Computer Network, Computer System, Data, Information and Function were derived from <a href="http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf">Information Technology Act, 2000</a> ('IT Act'). The definition of Computer Programme was taken from <a href="http://copyright.gov.in/documents/copyrightrules1957.pdf">Copyright Act, 1957</a>. Lastly, the definition of Computer was taken from both Copyright Act and IT Act.</p>
<p style="text-align: justify; ">Under Category II, the Guidelines underscored five definitions whose meaning was to be borrowed from the Oxford Dictionary. These were algorithm, software, per se, firm ware and hardware. Importantly, it was noted that these definitions have not been defined anywhere in Indian legislations. Lastly, under Category III the Guidelines tried to interpret certain terms according to their understanding. These terms included, Embedded Systems, Technical Effects, Technical Advancement, Mathematical Methods, Business Methods etc.</p>
<p style="text-align: justify; "><b><i>Categorization of CRI claims </i></b></p>
<p style="text-align: justify; ">In Part IV, the Guidelines tried to broadly group the various CRI patent applications under four heads. These categorizations tried to give an insight into what the patent examiners look for while rejecting a patent application.</p>
<ul style="text-align: justify; ">
<li> Method/process: </li>
</ul>
<p style="text-align: justify; ">Without defining what a method or process would entail, the Guidelines stated that any claim carrying a preamble with "method/process for..." shall not be patentable. It clarified that claims relating to mathematical methods, business methods, computer programme per se, algorithm or mental act are cannot be patented as they are prime illustrations of claims under this category. Further, the Guidelines gave specific examples of each of the aforementioned claims.</p>
<ul style="text-align: justify; ">
<li> Apparatus/system </li>
</ul>
<p style="text-align: justify; ">The second category consisted of claims whose preamble stated that the patent application was for an "apparatus/system". Under this, the patent application must not only comply with the standard tests of patentability- novelty, inventive step and industrial applicability, but also define the inventive constructional or hardware feature of the CRI. However, in contradictory statements, the Guidelines try to narrow down the prerequisites for a claim under this category, only to state that such claims cannot be patented.</p>
<ul style="text-align: justify; ">
<li> Computer readable medium </li>
</ul>
<p style="text-align: justify; ">While stating this as a category, the Guidelines do not elaborate on what this exactly means and what types of claims would be rejected being under this category.</p>
<ul style="text-align: justify; ">
<li> Computer program product </li>
</ul>
<p style="text-align: justify; ">This category includes computer programs that are expressed on a computer readable medium (CD, DVD, Signal etc.). Further, infusing ambiguity to the debate, the Guidelines failed to differentiate between Computer Readable Medium and Computer Program Product.</p>
<p style="text-align: justify; "><b><i>Examination Procedure used by IPO </i></b></p>
<p style="text-align: justify; ">The examination procedure for CRI patent application in the Guidelines is similar to other patent applications which look at novelty, inventive step and industrial applicability. However, claims relating to determination of specific subject matter under the excluded categories (Method/Process, Computer Readable Medium, Apparatus/system, and Computer Program Product) require specific examination skills from the examiner.</p>
<p style="text-align: justify; ">Under the excluded category itself, Method/Process requires subjective judgement by the examiner as to whether such a claim qualifies to be classified under this category or not. For investigating the inventive step involved in the 'method/process', the technical advancement over existing knowledge in the technological field has to be analyzed. Any patent claim from a non-technological field shall not be considered.</p>
<p style="text-align: justify; ">The Guidelines then tried to clarify the controversial Section 3(k) which eliminates the patenting of computer programmes per se. While previously stating that the definition of the term 'per se' as borrowed from the Oxford dictionary meant 'by itself', the Guidelines stated that computer programme loaded on a general purpose computer or related device cannot be patented. Nonetheless, while filing patent application for a novel hardware, with a loaded computer programme, the likelihood patenting the combination cannot be ruled out. Further, the stated hardware must be something more than a general purpose machine. Essentially, a patent for a novel computer programme combined with a novel hardware, which must be more than a general purpose machine, may be considered for patenting. It then gave several examples which were followed by flowcharts to further clarify ambiguities surrounding CRI patentability. Interestingly, all these examples and flowcharts only listed the inventions that are not patentable.</p>
<p style="text-align: justify; "><b> IV. </b> <b>Response by Stakeholders</b></p>
<p style="text-align: justify; ">Many and various comments were received from 36 stakeholders that including lawyers, civil society members, law firms, students, global and national trade bodies and industry representatives.</p>
<p style="text-align: justify; ">Our compilation (and the first level of analysis) of the Stakeholders' Responses is <a href="https://cis-india.org/a2k/blogs/cri-comments-comparison-table.xlsx" class="internal-link">available here</a>.</p>
<table class="listing">
<tbody>
<tr>
<th><img src="https://cis-india.org/home-images/DivisionofStakeholdersComments.png" alt="Division of Stakeholders' Comments" class="image-inline" title="Division of Stakeholders' Comments" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">While all the stakeholders' applauded the much needed transparency in the IPO, substantively they differed considerably on various issues and highlighted some inconsistencies. In this part, I shall map the responses of the various stakeholders'. While doing so, I shall also try and find specific patterns to the responses corresponding to the following segments:</p>
<p style="text-align: justify; ">1. Civil Society</p>
<p style="text-align: justify; ">2. Law Firm/Advocates ('law Firms')</p>
<p style="text-align: justify; ">3. Industry/ Industry Representatives/Global Trade Body (Industry)</p>
<p style="text-align: justify; ">4. Students</p>
<p style="text-align: justify; ">These segments have been created on the assumption that each of the aforementioned segment would lobby for similar kind of policy.</p>
<p style="text-align: justify; "><b><i>Interpretation of Section 3(k) </i></b></p>
<p style="text-align: justify; ">One of the major points of deviation between the stakeholders was regarding the interpretation of Section 3(k) which encapsulates the term "computer programme per se".</p>
<p style="text-align: justify; ">The industry responded by critiquing the current CRI patenting regime in India as being "restrictive" ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/NASSCOM-feedback%20to%20CRI%20guidance.pdf">NASSCOM</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/USIBC%20Final%20Comments%20on%20CRI%20Guidelines%20July%2026,%202013.pdf"> US India Business Council </a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch </a> ). While some industry representatives sought clarifications due to uncertain phraseology, there was no industry representative that favored restricted interpretation to exclude software patenting altogether. While opposing the Guidelines, they sought assistance from the legislative history behind introduction of Section 3(k). It was pointed out that the term 'per se' was included to raise the threshold of patentability to something higher than the previous patentability standard, but it did not explicitly exclude patent protection for software.</p>
<p style="text-align: justify; ">The general perception of the stakeholders, keeping in mind the current Guidelines, was that for patenting software it had to be combined with some hardware. This combination would then be scrutinized against the triple test of novelty, inventive step and industrial application.</p>
<p style="text-align: justify; ">While the Guidelines noted that the hardware involved must not be general purpose hardware and that the chances of software patentability would increase significantly if novelty resides in the hardware; however, most of the industry and global trade bodies disagreed with this interpretation. They argued that if software in combination of hardware technically advances the existing technology, then such an innovation must be patentable, despite being combined with a general purpose machine (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>). Another explanation supporting expanded interpretation was that much of the technological innovation is accomplished through software development as compared to hardware innovation and novel software can achieve technical effect without the hardware developments ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL%20BSA%20comments%20on%20India%20Patent%20Office%20Guidelines%20for%20CII.pdf"> BSA- The Software Alliance </a> ). Consequently, software development that allows a general purpose machine to perform tasks that were once performed by a special machine must be incentivized. Some stakeholders interpreted the Guidelines to reason that hardware must be completely disregarded while examining patentability of software (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20the%20Recent%20guidelines%20on%20CRI.pdf">Majumdar & Co.</a> ).</p>
<p style="text-align: justify; ">Most of the responses from the civil society argued for a restricted interpretation of Section 3(k) ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI%20Comment%20CIS.pdf">Centre for Internet & Society</a>). They concurred with the interpretation provided by the IPO to exclude software patentability. Most of the stakeholders responded seeking further clarification on the subject (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI_Comments_SFLC.pdf">Software Freedom Law Centre</a><a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20comments%20on%20CRI%20guidelines_Gabrial.pdf">, K&S Partners</a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Rachna.pdf">Xellect IP Solutions</a>).</p>
<table class="listing">
<tbody>
<tr>
<th><img src="https://cis-india.org/home-images/StakeholdersOpinion.png" alt="Stakeholders' Opinion" class="image-inline" title="Stakeholders' Opinion" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">However, within each segments itself there was difference of opinion on the interpretation of Section 3(k). For instance, out of the five civil society members, four wanted to restrictive interpretation while one of them favoured expansive interpretation to include software patenting. Similarly, 13 law firms sought further clarification on the subject matter, while seven argued for expansive interpretation and one of them argued for restricted interpretation. The most consistent response was from the industry that clearly favoured software patenting and called the Guidelines "restrictive". Seven out of the nine industry representatives supported expansive interpretation and the other two sought further clarifications on the subject.</p>
<p style="text-align: justify; "><b><i>Section 5.4.6- Hardware </i></b></p>
<p style="text-align: justify; ">The interpretation of Section 3(k) until the release of the Guidelines was that software in combination with some hardware could be considered for patenting. However, the Guidelines increased the threshold stating that this hardware must be "something more than a general purpose machine". A stakeholder pointed out that increasing this threshold would go against the legislative intent as the requirement of a novel hardware has not been mentioned anywhere in the Act ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ).</p>
<p style="text-align: justify; ">The industry's perspective on this matter was largely uniform. They pointed out the large technological field that would be eliminated from the scope of patentability if the interpretation provided by the Guidelines is adopted ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>). Also, the investigation of novelty in the hardware would disincentives inventors in the field of CRIs ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Kan & Krishme </a> ). Most of the stakeholders, across segments, sought more clarification on the role of hardware under Section 3(k) (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20the%20Recent%20guidelines%20on%20CRI.pdf">Majumdar & Co.</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI%20Comment%20CIS.pdf">Centre for Internet & Society</a>).</p>
<p style="text-align: justify; "><b><i>Comparative Analysis </i></b></p>
<p style="text-align: justify; ">Much of the criticism surrounding CRI patenting policy in India is based on the comparative inconsistency with similar laws in other jurisdictions. Comparative analysis on the subject has only been provided by the stakeholders that support software patentability. They point out that most countries like US, UK, Japan and the European Patent Convention allow patenting of software, and India must also do the same in order to comply with its international obligations under the TRIPs Agreement. Paradoxically, stakeholders who supported the current practice chose not to comparatively analyze CRI policy of other jurisdictions. While most of the stakeholders simply jumped to analyze comparative jurisprudence on the subject, only one of them gave a reasonable explanation for such a comparison ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>). It was noted that the Supreme Court of India and the Intellectual Property Appellate Board regularly borrow from foreign decisions to either accept or deny patents. Therefore, while formulating any policy on the matter, the position in other jurisdictions must be considered.</p>
<p style="text-align: justify; ">It was reasoned that the term 'per se' used in the Act, is similar to the European Patent Convention and <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/354942/patentsact1977011014.pdf">UK Patent Act, 1977</a> where the term 'as such' has been used. Therefore, while juxtaposing both the terms, the interpretation of 'per se' must be similar to 'as such'. Consequently, software patenting must be allowed subject to the tests evolved by the courts. Similarly, the term 'as such' has been used by several Asian countries including China, Taiwan, South Korea and Japan. In these countries, software in concert with a specific hardware that resolves a technical problem thereby achieving a technical result can be patented ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20draft%20Guidelines%20for%20CRI_Krishna.pdf"> Krishna and Saurastri Associates </a> ).</p>
<p style="text-align: justify; ">Likewise, while comparing the jurisprudence of US, the landmark case <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=450&invol=175"><i>Diamond vs. Diehr</i></a>, which marked the beginning of software patenting was cited ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Shubhojeet_Comments_CRI%20(1).pdf">Subhojeet Ghosh</a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/USIBC%20Final%20Comments%20on%20CRI%20Guidelines%20July%2026,%202013.pdf"> US India Business Council </a> ). Several others argued that India must align their laws with global standards ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/2013-07-26%20PEIL_comments%20on%20draft%20guidelines%20on%20examination%20of%20computer%20related%20inventions.pdf"> Phillips Intellectual Property and Standards </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments_to_India_Draft_Guidelines_for_Computer_Related_Inventions.pdf"> Sun Smart IP Services </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Guideline1.pdf">United Overseas Patent Firm</a>).</p>
<table class="listing">
<tbody>
<tr>
<th><img src="https://cis-india.org/home-images/ComparativeAnalysis.png" alt="Comparative Analysis" class="image-inline" title="Comparative Analysis" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; "><b><i>Business Method</i></b></p>
<p style="text-align: justify; ">The Guidelines tried to narrow down the definition of 'Business Method' to clarify that such claims cannot be patented. It was urged that the Guidelines reconsider such a blanket embargo ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20CRIs.pdf">Legasis Partners- Advocates and Solicitors</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ). While judging patentability, a patent must not be rejected simply because it mentions business method or business method related terminology. What must be examined is whether the inventive step resides in the technical or non-technical part of the claim ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20CRIs.pdf">Legasis Partners- Advocates and Solicitors</a>). A distinction must be made differentiating as to what software implementing business method and a software relating to the technical aspect of the transaction ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ). While the former can be rejected, the latter must be accepted subject to the triple test of patenting.</p>
<p style="text-align: justify; ">It was pointed out that reevaluating a business method claim apart from a method involving financial transaction; monopoly claim over trade and new business strategies; monopoly claim over new types of carrying out business and method of increasing revenue; must be rejected (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20draft%20CRI.pdf">Law Offices of Mohan Associates</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/REMFRY%20&%20SAGAR%20COMMENTS%20FOR%20CRI'S.pdf">, Remfry and Sagar</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> ). The more overarching opinion of the stakeholders was there is no objection to the exclusion of business method patents, but what constitutes business methods need more clarity (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/COMMENTS.pdf">D. Moses Jeyakaran</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20thappeta%20Jul%2026%202013%20comments%20on%20CRI%20Examination.pdf"> Law Firm of Naren Thappeta </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/JIPA%20Opinions%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Japan Intellectual Property Association </a> ).</p>
<p style="text-align: justify; "><b><i>Critique of Examples and Flowcharts </i></b></p>
<p style="text-align: justify; ">The Guidelines provided for several examples and flowcharts to foster a better understanding of the subject matter. However, a notable feature of each of these was that they only gave examples of what claims would be rejected. This was sufficiently pointed out by most of the stakeholders who sought more positive examples (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL%20BSA%20comments%20on%20India%20Patent%20Office%20Guidelines%20for%20CII.pdf"> BSA- The Software Alliance </a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20comments%20on%20CRI%20guidelines_Gabrial.pdf">, K&S Partners</a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Rachna.pdf">Xellect IP Solutions</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/JIPA%20Opinions%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Japan Intellectual Property Association </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL_I-HIPP_submission_on_CRI_Guidelines.pdf"> In-House Intellectual Property Professional Forum, </a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/NASSCOM-feedback%20to%20CRI%20guidance.pdf">NASSCOM</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/O&A-Comments%20on%20Guidelines%20for%20CRI.pdf">, Obhan & Associates</a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/REMFRY%20&%20SAGAR%20COMMENTS%20FOR%20CRI'S.pdf">Remfry & Sagar</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/TCS%20Response%20to%20Draft%20CRI%20Guidelines.pdf">Tata Consultancy Services</a> ). It was pointed out that the examples have not sufficiently elaborated on their relation with Section 3(k) ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> ), and some of them are "weak, obscure and incorrect" ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI_Comments_SFLC.pdf">Software Freedom Law Centre</a>). These examples also fail to elaborate on the tests that have previously been applied by the Patent Office ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>). Overall, the general perception was that, the examples were confusing and greater clarity along with positive examples was needed ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ).</p>
<table class="listing">
<tbody>
<tr>
<th><img src="https://cis-india.org/home-images/PositionofStakeholdersIllustrations.png" alt="Position of Stakeholders' Illustrations" class="image-inline" title="Position of Stakeholders' Illustrations" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; ">Interestingly, out of the 25 stakeholders' who commented on the illustrations, 16 sought positive examples. Further, most of the positive examples were sought by industry representatives and law firms who supported software patenting.</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b> V. </b> <b>Conclusion </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; ">It has been over a year since IPO released the CRI Guidelines. On release, it invited suggestions in order to revise the Guidelines, but the revised version has still not been released by the IPO. The Guidelines were authored from a patent examiner's perspective; however, while doing so it obscured the matter further. It was argued that in totality the application of the Guidelines would now make the patentability of software stricter. It was also pointed out that the Guidelines have not taken into account the legislative history and the specific rejection of the Ordinance in the 2005 Amendment.</p>
<p style="text-align: justify; ">The responses received by IPO gave conflicting opinion on the same issue. In general, it can be concluded that the industry and law firms were in favour of allowing software patenting. They sought removal of the hardware requirement for software patentability. Most of the stakeholder's who favoured software patenting also undertook a comparative study of jurisdictions like US, UK, EU and Japan to point out the difference in the software patenting policy. Further, they also wanted the Guidelines to give positive examples wherein CRIs patenting has previously been allowed.</p>
<p style="text-align: justify; ">Admittedly, the Guidelines have no legal standing and much like the Patent Manual, they serve merely to guide the patent applicants and provide transparency patent examination. Overall, the Guidelines failed to explain the previous inconsistencies surrounding the subject matter. In conclusion the Guidelines mention that it would periodically release and update the Guidelines incorporating the stakeholder's comments. Considering the diverse set of opinions received by the IPO, it now needs to be seen which suggestions are accepted until the next round of comments.</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions'>https://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions</a>
</p>
No publishernehaaFeaturedHomepageSoftware PatentsAccess to Knowledge2015-01-05T17:01:50ZBlog EntryStrategies to Organise Platform Workers
https://cis-india.org/raw/strategies-to-organise-platform-workers-rightscon
<b>In 2022, the Centre for Internet and Society hosted a panel with Akkanut Wantanasombut, Ayoade Ibrahim, Rikta Krishnaswamy, and Sofía Scasserra at RightsCon, an annual summit on technology and human rights. </b>
<p><b><a class="external-link" href="http://cis-india.org/raw/strategies-to-organise-platform-workers/at_download/file">Click</a></b> to download the full report</p>
<hr />
<h3>Event Report</h3>
<p style="text-align: justify; ">This event report is based on proceedings from a panel hosted at the 2022 edition of RightsCon. Hosted by the labour and digitalisation team at CIS, the panel brought together seasoned labour organisers, activists, and researchers working across Thailand, Nigeria, India, and Argentina. The panellists represented a diverse group of worker organisations, including transnational federations, national unions, and informally organised movements.<br /><br />Their experiences of organising in research and practice infused our discussion with insight into collective action struggles across varied sectors and platform economies in the global south. Collective resistance among platform workers has witnessed a sustained rise in these economies over the past three years, with demands for transparency and accountability from platforms, and for a guarantee of rights and protections from governments.<br /><br />Through this panel, we sought to answer:</p>
<ol>
<li>How have workers’ organisations overcome challenges in sustained collective action?</li>
<li>What have been unique aspects of organising in the global south?</li>
<li>Which strategies have been gaining traction for organising workers and mobilising other stakeholders?</li>
</ol>
<p style="text-align: justify; "><br />Placing workers’ participation front and centre, the panellists incorporated common threads around campaigning, education, and mobilisation for increasing worker participation, as well as bargaining with the government for legal and social protections. The panellists highlighted that it’s the resilience and resistance led by workers that drive the way for sustained organising. This panel hoped to spotlight steps taken in that direction, where organising efforts strive to form, sustain, and champion worker-led movements.</p>
<h3 style="text-align: justify; ">Contributors</h3>
<p><b>Panellists: </b><br />Akkanut Wantanasombut<br />Ayoade Ibrahim<br />Rikta Krishnawamy <br />Sofía Scasserra</p>
<p><b>Worker organisations in focus:</b><br />Tamsang-Tamsong<br />National Union of Professional App-based Transport Workers<br />International Alliance of App-based Transport Workers<br />All India Gig Workers’ Union <br />Federación Argentina de Empleados de Comercio y Servicios<br />Asociación de Personal de Plataformas</p>
<p><b>Conceptualisation and planning</b>: Ambika Tandon, Chiara Furtado, Aayush Rathi, and Abhishek Sekharan</p>
<p><b>Author</b>: Chiara Furtado<br /><b>Reviewers</b>: Ambika Tandon and Nishkala Sekhar<br /><b>Designer</b>: Annushka Jaliwala<br /><br />This event report is part of research supported by the Internet Society Foundation under the ‘Labour futures’ grant.</p>
<p>
For more details visit <a href='https://cis-india.org/raw/strategies-to-organise-platform-workers-rightscon'>https://cis-india.org/raw/strategies-to-organise-platform-workers-rightscon</a>
</p>
No publisherfurtadoLabour FuturesDigital EconomyResearchers at WorkGig WorkPlatform-WorkFeaturedRAW ResearchHomepage2023-10-22T09:54:52ZBlog EntryAvailability and Accessibility of Government Information in Public Domain
https://cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain
<b>The information provided on most Government websites such as Acts, notifications, rules, orders, minutes of meetings and consultations, etc. is usually in the form of electronic documents. However, these lack authenticity and accessibility and cannot be (text) searched., This policy brief identifies the problem areas with the current work flow being used to publish documents and proposes suitable modifications to make them easy to locate, authentic and accessible.</b>
<p style="text-align: justify; ">Prepared by Sunil Abraham, Nirmita Narasimhan, Beliappa, and Anandhi Viswanathan and with inputs from Dipendra Manocha, Saksham, and Deepak Maheshwari, Symantec. Download the text as<b> <a href="https://cis-india.org/accessibility/blog/policy-brief-availability-accessibility-govt-information-public-domain.pdf" class="external-link">PDF here</a></b>. (96 Kb)</p>
<hr />
<p style="text-align: justify; "><b>Problem Statement</b>: The information published on most government websites exist in the form of document files [including but not limited to the Acts, Rules and Regulations, Government Orders and Notifications, Consultation Papers, Reports etc.] which, even when published, more often than not lack authenticity and accessibility and cannot be (text) searched.</p>
<p style="text-align: justify; ">Analysis: The current workflow towards publishing documents on government websites is broadly as follows:</p>
<ol style="text-align: justify; ">
<li>The document is born digital – that means it is created on a computer.</li>
<li>The document is printed.</li>
<li>The document is stamped with the official seal and signed in ink by the authorized person(s).</li>
<li>The paper document is scanned.</li>
<li>The scanned image is converted into a PDF file.</li>
<li>The document is uploaded on the website and thereby published in the public domain.</li>
</ol>
<p style="text-align: justify; ">In fact, at times, even gazette notifications and other printed documents are also scanned as images.</p>
<p style="text-align: justify; ">This approach has numerous problems, including the following:</p>
<ol style="text-align: justify; ">
<li>First and foremost, such a practice is against the letter and spirit of Section 4 (1) (a) of the Right to Information Act, 2005.<a href="#fn1" name="fr1">[1] </a>that inter alia, mandates every public authority to “maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”.</li>
<li>This does not realize the enabling provision of the Information Technology Act, 2000<a href="#fn2" name="fr2">[2]</a> which gives legal sanctity to digital signatures. The digital image of a physical signature is not a digital signature in the eye of the law, though at times it is mistakenly believed to be so.</li>
<li>This does not address the problem of repudiation. That means a government official can say “I didn't sign that document” and there is no way to tell whether what he or she is saying is true. One of the key features of digital signatures is non-repudiability.</li>
<li>Scanned images of printed text cannot be searched for specific text (character, word or phrase) even by people without disabilities but for people with disabilities, the documents become totally inaccessible since the accessibility software cannot parse such scanned images – against the underlying tenets and objectives of the National Universal Electronic Accessibility Policy 2013.<a href="#fn3" name="fr3">[3] </a></li>
<li>As an extension, content of such documents cannot be indexed by search engines (such as Google, Bing and Raftaar, etc.) and hence, unlikely to be located even if technically the same are in the public domain.</li>
</ol>
<p style="text-align: justify; "><b>Proposed Solution</b>: The following work flow is proposed for publishing documents electronically on government websites:</p>
<ol style="text-align: justify; ">
<li>The document is born digital by preparing it in or through a computer system. Documents in Indian languages should be produced using Unicode based fonts.</li>
<li>The government official authorized to sign the same, must sign it digitally.</li>
<li>The document is uploaded in an open standard based format such as EPUB using a content management system and made available on the website such that it is available, accessible, indexable and searchable.</li>
</ol>
<p style="text-align: justify; ">This will ensure democratization of information in its truest sense – making available information to the public at large and ensuring that it can be easily located and remains accessible to one and all.</p>
<p style="text-align: justify; ">The process of formatting should be standardized in such a way that semantics (such as heading styles, lists and tables) can be added to the text of the document. The Web Style Guide provides information on good practices for creating well-structured documents:</p>
<p style="text-align: justify; ">Standardizing the formatting process by creating different templates for different types of documents will ensure uniform accessibility of the documents as well as provide a standard look and feel across government documents.</p>
<p style="text-align: justify; ">India became a global pioneer by making the legal provision for computerised, indexed and duly catalogued public records. It is high time that India takes the lead by living up to the legislative intent under the Right to Information Act, Information Technology Act and the National University of Educational Planning and Administration, and thereby establishes a global best practice.</p>
<p style="text-align: justify; ">Admittedly, legacy documents should also be converted electronically to accessible formats though before such a rendering, due editorial oversight may be necessary along with use of technologies such as Optical Character Recognition (OCR).</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. Government of India. The Right to Information Act, 2005. No. 22 of 2005. Retrieved on November 30, 2014 from <a class="external-link" href="http://rti.gov.in/webactrti.htm">http://rti.gov.in/webactrti.htm</a>.</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. Government of India. The Information Technology Act, 2000. No. 21 of 2000. Retrieved on November 30, 2014 from <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf">http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf</a></p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Government of India. National Policy on Universal Electronic Accessibility. 2013. Retrieved on November 30, 2014 from <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf">http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf</a></p>
<p>
For more details visit <a href='https://cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain'>https://cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain</a>
</p>
No publishersunilGovernment InformationAccessibilityFeaturedDigitisationHomepage2014-12-30T01:25:12ZBlog EntryMapping Digital Humanities in India - Concluding Thoughts
https://cis-india.org/raw/mapping-digital-humanities-in-india-concluding-thoughts
<b>This final blog post on the mapping exercise undertaken by CIS-RAW summarises some of the key concepts and terms that have emerged as significant in the discourse around Digital Humanities in India. </b>
<p><em> </em></p>
<p style="text-align: justify;">The present exercise in mapping Digital Humanities (henceforth DH) in India has brought to the fore several learnings, and challenges in trying to locate the domain of enquiry even as our understanding of what constitutes new objects, methods and forms of research and pedagogy constantly undergo change and redefinition. Even as we wrap up this study, some of the key questions or problems of definition, ontology and method remain with us, as the 'field' as such is incipient in India, as with other parts of the world and the term itself is yet to find a resonance in many quarters, other than a few institutions and a number of individuals. However, what it does do for us immediately, is throw open several questions about how we understand the idea of the 'digital', and what may be the new areas of enquiry for the humanities at large.</p>
<p style="text-align: justify;">We began with the understanding that DH is a new space of interdisciplinary research, scholarship and practice with several possibilities for thinking about the nature of the intersection of the humanities and technology. The term was a little more than a found name of sorts, which since then has taken on various meanings and undergone some form of creative re-appropriation. The ubiquitous history of the term in humanities computing in the Anglo-American context has helped in locating and defining the field globally within the ambit of certain kinds of practices and scholarship in the contemporary moment. As most of the literature around DH even globally has pointed out, the problem with arriving at a definition is ontological, more than epistemological. The conditions of its emergence and existence are yet to be completely understood, although if one is to take into account the larger history of science and technology studies or even cyber/digital culture studies, these 'epistemic shifts' have been in the making for some time now. In India particularly, where a clear picture of the 'field' as such is still to emerge in the form of a theorisation of its key concerns, areas of focus or object of enquiry, it is only through a practice-mapping that one may locate what are at best certain discursive shifts in the way we understand content, structures and methods in the humanities, within the context of the digital. The fundamental premise of the nature of the digital and its relation to the human subject still lacks adequate exploration which would be required to define the contours of the field. The inherited separation of humanities and technology further makes this a complex space to negotiate, when the term may now actually indicate the need to decode the rather tenuous relationship between the two supposedly separate domains.</p>
<p style="text-align: justify;">The question of methodology then comes in as the next most important aspect here, as the method of DH is yet to be clearly defined. At present it looks like a combination and creative appropriation of methodologies drawn from different disciplines and creative practices. The change in the methodology of the humanities and social sciences itself as now longer remaining discipline-specific has been a contributory factor to the evolving methodology of DH. The practice itself is still evolving, and while DH in the Anglo-American context can trace a history in humanities computing, with now an active interest in other spaces where the digital is an inherent part of the discourse, in India there has been little work in mainstream academic spaces such as universities or research centres, and some interest from the information and technology sector. As such the skills and infrastructure needed to work with large data sets and new technologised processes of interpretation and visualisation still remain outside the ambit of the mainstream humanities. This mapping exercise largely relied on interviews as part of its methodology, without any engagement with the actual practice, mainly because of a lack of consensus on what constitutes DH practice. However, through an exploration of allied fields such as media, archival practice, design and education technology, the study tries to locate how certain practices in these areas inform what we understand of DH today.</p>
<p style="text-align: justify;">The archive, media and now to a certain extent art and design have become the sites for most of the discussions around DH in India, primarily because of the nature of institutions and people who have engaged with the question so far. Archival practice has seen a vast change with the onset of digitisation, and the growth of more public and collaborative archival spaces will also bring forth new questions and concepts around the nature of the archive and its imagination as a dynamic space of knowledge production. At a more abstract level, the nature of the text as an unstable object itself, now increasingly being mediated and negotiated in different ways through digital spaces, tools and methods would be one way of locating an object of enquiry in DH and tracing its connection to the humanities, which are essentially still seen as 'text-based disciplines'. What has been a definite shift is the emphasis on process which has become an important point of enquiry, and one of the many axes around which the discourse around DH is constructed. The rethinking of existing processes of knowledge production, including traditional methods of teaching-learning, and the emergence of new tools and methods such as visualisation, data mapping, distant reading and design-thinking at a larger level would be some of the interesting prospects of enquiry in the field. The method of DH is however, necessarily collaborative and distributed at the same time, as evidenced by its practice in these various areas and disciplines.</p>
<p style="text-align: justify;">While in the Anglo-American context the predominant narrative or <em>raison d'etre</em> of DH seems to be the so-called 'crisis' in the humanities, it may after all be just one of reasons, and not a primary cause, at least in the Indian context. Moreover, in a paradoxical sense the emergence of DH has been seen as endangering the future of the traditional humanities, in terms of a move away from certain conventional methods and forms of research and pedagogy. While this may be relevant to our understanding of the emergence of DH, understanding the emergence of the field as resolving a crisis also renders the discourse into a uni-dimensional, problem-solving approach, thus making invisible other factors, such as the technologised history of the humanities or several other factors that have contributed to these changes. The complex and somewhere problematic history of science and technology in India and the growth of the IT sector also forms part of this context, and will inform the manner in which DH grows as a concept, area of enquiry or even as a discipline. DH is yet another manifestation of changes that we have seen in the existing objects, processes, spaces and figures of learning, particularly the open, collaborative and participatory nature of knowledge production and dissemination that has come about with the advent of the internet and digital technologies. More importantly, they also point towards the larger changes in what where earlier considered unifying notions for the university, namely that of reason and culture, which have now moved towards an idea of excellence based on a certain techno-bureaucratic impulse, as noted by Bill Readings in his work on the rise of the post-modern university<a name="_ftnref1" href="#_ftn1">[1]</a>.</p>
<p style="text-align: justify;">If one may try to locate within this the debates around DH, the subject of this new discourse around the digital is also now rather unclear. One could explore the notion of the digital humanist, or in a more abstract manner the digital subject as one example of this lack of clarity or the distance between the practice and the subject, which is also why it has been of much concern for several scholars. As Prof. Amlan Dasgupta, with English Department at the University of Jadavpur says, it is difficult to identify such a category of scholars, although a person who is able to situate his work in the digital space with the same kind of ease and confidence that people of a different generation could do in manuscripts and books would perhaps fit this description, and he is sure that such a person may be found. For example someone who knows Shakespeare well and can write a programme, and he is sure a day will come when this is a possibility. It is a familiarity in which the inherent distance between these two pursuits becomes lesser - DH is at that moment - a composite of these two approaches rather than the difference.</p>
<p style="text-align: justify;">While many scholars concur with this explanation, others find the term misleading - humanities scholars do not call themselves 'humanists'. Also, by virtue of being a digital subject, anybody engaged with some form of digital practice is already a digital humanist of some sort. The problem also is in the rather unclear nature of the practice, all of which is not unanimously identified as DH, as a result of which not many scholars would want to identify with the term. As Patrik Svensson (2010) points out "The individual term digital humanist may be problematic because it may seem both too general in not relating to a specific discipline or competence (thus deemphasizing the discipline-specific or professional) and too specific in emphasizing the "digital" part of the scholarly identity (if you are scholar) or giving too much prominence to the humanities part of your professional identity (if you are a digital humanities programmer or a system architect). The more general and non-personal term digital humanities is more inclusive, but somewhat limited because of its lack of specificity and relatively weak disciplinary anchorage. For both variants, there is also a question of whether "the digital" needs to be specified at all, and it is not uncommon <a href="http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html#N10309">[9]</a> to encounter the argument that technology and the digital are part or will be part of any academic area, and hence the denotation "digital" is not required" <a name="_ftnref2" href="#_ftn2">[2]</a>. Svensson further points out that since the term, like digital humanities, has proliferated so much in academic spaces, through publishing and funding initiatives that it has become a term of self-identification, but it could be a reference to the digital as 'tool' rather that the object of study itself. However, he also speculates that given digital humanists work across several disciplines, their understanding of humanities as a construct is stronger as the identity is linked to it at large. <a name="_ftnref3" href="#_ftn3">[3]</a></p>
<p style="text-align: justify;">This debate is importantly, symptomatic of a larger conflict over the authority of knowledge, because of what seems to be a move away from the university to alternate spaces and modes of knowledge production. As Immanuel Wallerstein (1996) suggests, such a conflict of authority has already been documented earlier, in terms of the displacement of theology first and then Newtonian mechanics as dominant sources of knowledge, and the now in the manner in which the separation of disciplines is being challenged. The potential of technology in general and the internet in particular in democratising knowledge has been explored in several cases, with many such online spaces now becoming a suitable 'alternate' to the university mode of teaching and learning. What they have also given rise to are questions about the authenticity of knowledge produced and disseminated and who are the stakeholders in the process. The debates over MOOC's and the Wikipedia, and at some level the criticism that DH and certain methods like distant reading have attracted from traditional humanities scholars are a case in point. However, many of these alternate or liminal spaces have always existed; they are perhaps becoming more visible and acknowledged now. DH, with its emphasis on interdisciplinarity and different kinds of knowledge drawn from a diverse set of practices definitely opens up space for a new mode of questioning; whether all of these different modes of questioning can coalesce as a new discipline or interdisciplinary field in itself will remain to be seen.</p>
<p><strong> </strong></p>
<p><strong>References</strong></p>
<ol>
<li>Patrik, Svensson, "The Landscape of Digital Humanities". <em>Digital Humanities Quarterly</em>,4:1 <a href="http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html">http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html</a> 2010.</li>
<li>Readings, Bill, <em>The University in Ruins</em> Cambridge: Harvard University Press, 1997, pp 1-20.</li>
<li>Wallerstein, Immanuel, "The Structures of Knowledge, or How Many Ways May We Know?" Presentation at "Which Sciences for Tomorrow? Dialogue on the Gulbenkian Report: <em>Open the Social Sciences</em>," Stanford University, June 2-3, 1996 http://www.binghamton.edu/fbc/archive/iwstanfo.htm </li></ol>
<hr />
<p style="text-align: justify;"><em> The author would like to thank the Higher Education Innovation and Research Applications (HEIRA) programme at the Centre for the Study of Culture and Society (CSCS), Bangalore for support towards the fieldwork conducted as part of this mapping exercise, and colleagues at CIS and CSCS for their feedback and inputs<strong>. </strong> </em></p>
<p><strong> </strong></p>
<p><strong>Concepts/Glossary of terms </strong></p>
<ol>
<li style="text-align: justify;"> Ontology - A lot of the work being done to define DH is in fact to understand its ontological status, the nature of its being and existence. As pointed out in the part of this section, the difficulty in arriving at a consensus on a definition is largely due to a lack of clarity over the ontological basis of such a field, rather than its epistemological stake, which one may already be able to discern in a few years. There is a slippage due to a lack of connection between the history of the term and its practice, particularly in India, where DH is still a 'found term' of sorts. See <a href="http://cis-india.org/raw/digital-humanities/a-question-of-digital-humanities"> http://cis-india.org/raw/digital-humanities/a-question-of-digital-humanities</a></li>
<li style="text-align: justify;">Humanities - The predominant discourse in the Anglo-American context on DH seems to have set it up in a conflict with or as a threat to the traditional humanities disciplines, the causal link here being the 'crisis' of the disciplines. While there is such a narrative of crisis in the Indian con text as well, anything 'digital' is understood in terms of a problem-solving approach, and at another level seeks to further existing concerns of the humanities themselves, such as around the text. The important shift that DH may open up here is in terms of thinking about the inherited separation of technology and the humanities, and if it indeed possible now to think of a technologised history of the humanities.See <a href="http://cis-india.org/raw/digital-humanities/a-question-of-digital-humanities"> http://cis-india.org/raw/digital-humanities/a-question-of-digital-humanities</a></li>
<li style="text-align: justify;">Digital - the debate around and interest in DH has reinforced the need for a larger and more elaborate exploration of the 'digital' itself, and as mentioned in an earlier post, deciphering the nuances of the current state of digitality we inhabit will be key to understanding the field of DH much better. This is challenging because India is a mutli-layered technological landscape, which is also quite dynamic, ever-changing and in a period of transition to the digital. Taking this back to more fundamental questions of technology and its relation to the subject would also provide more insights into DH.See <a href="http://cis-india.org/raw/digital-humanities/digital-humanities-problem-of-definition"> http://cis-india.org/raw/digital-humanities/digital-humanities-problem-of-definition</a></li>
<li style="text-align: justify;">Subject - DH is a manifestation of the relationship between technology and the human subject, and provides different ways to negotiate the same. The 'digital humanist' as the likely subject of this discourse has remained largely undefined in this series of explorations, partly because of the lack of resonance with the term among humanities scholars and the fact that everybody at some level is already a digital subject, and therefore a digital humanist. An exploration of how the digital constitutes or constructs a subject position is likely to reveal better the nuances of this term and the reason for its relation to or distance from the practice.</li>
<li style="text-align: justify;">Method - the methodology of a discipline is the connection between theory and field of practice, and the method of DH is still being developed. Whether it is data mining, distant reading, cultural informatics, sentiment analysis or creative visualisations of data sets drawing from aspects of media, art and design, the methodology and interests of DH are necessarily diverse and interdisciplinary. In many a case the distinction among methods, content and forms do blur as newer modes or approaches to DH come into being. This becomes a particular problem in understanding DH in the context of pedagogy and curricular resources, and would therefore require a rethinking of the understanding of a singular methodology itself.</li>
<li style="text-align: justify;">Archive - A large part of the DH work in India seems to be focussed around the archive - both as a concept and practice. With the digital becoming in a sense the default mode of documentation across the humanities disciplines, and the opening up of the archive due to more public and digital archival efforts, the concept of the archive and archival practice have undergone several changes in terms of becoming now more networked and accessible. As mentioned earlier, we are living in an archival moment where there is a transition from analogue to digital, and it is in this moment of transition that a lot of new questions around data and knowledge will emerge. See http://cis-india.org/raw/digital-humanities/living-in-the-archival-moment.</li>
<li style="text-align: justify;">Text - the text has been one of significant aspects of the DH debate, given that the academic discourse on DH in the West and now in India is primarily located in English departments. The understanding of the text as object, method and practice as mediated through digital spaces and tools is an important part of the discourse around DH, and has implications for how we understand changes in the nature of the text, and reading and writing as technologised processes in the digital context. See http://cis-india.org/raw/digital-humanities/reading-from-a-distance.</li>
<li style="text-align: justify;">Process: An important point of emphasis in DH has been that of process, perhaps even more than content or outcomes. Given that the method of DH is collaborative and peer-to-peer, the processes of doing, making or teaching-learning etc become increasingly visible and important to understanding the nature of the field and knowledge production itself. More importantly, it also seeks to bring in the practitioner's experience into the realm of research and pedagogy.</li>
<li style="text-align: justify;">Liminal : DH is a good example of a liminal space; which is a space that is on both sides of a threshold or boundary, and is therefore at some level undefined and transitional. The liminal space is often located at the margin of a body of knowledge or discipline, and it is at the margins of disciplines that new knowledge is produced. The discourse and even criticism around DH highlights the difficulties with defining the present nebulous nature of these liminal spaces and what they could transform into in the future. See http://cis-india.org/raw/digital-humanities/digital-humanities-and-alt-academy.</li>
<li style="text-align: justify;">Interdisciplinarity - Closely tied to the notion of liminal spaces is the notion of interdisciplinarity. DH by nature is interdisciplinary, given that it draws upon methods and concerns from the other disciplines, but instead of limiting the definition to just this, it also provides a space to understand the challenges of negotiating and using an interdisciplinary approach to the humanities and other disciplines and develop these questions further. See http://cis-india.org/raw/digital-humanities/digital-humanities-and-alt-academy. </li></ol>
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a name="_ftn1" href="#_ftnref1">[1]</a> See Bill Readings, <em>The University in Ruins</em> Cambridge: Harvard University Press, 1997, pp 1-20.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2" href="#_ftnref2">[2]</a> See Patrik Svensson. "The Landscape of Digital Humanities". <em>Digital Humanities Quarterly</em>,4:1 <a href="http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html">http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html</a></p>
</div>
<div id="ftn3">
<p><a name="_ftn3" href="#_ftnref3">[3]</a> <em> Ibid.</em></p>
</div>
<p>
For more details visit <a href='https://cis-india.org/raw/mapping-digital-humanities-in-india-concluding-thoughts'>https://cis-india.org/raw/mapping-digital-humanities-in-india-concluding-thoughts</a>
</p>
No publishersneha-ppDigital KnowledgeMapping Digital Humanities in IndiaResearchFeaturedDigital HumanitiesResearchers at Work2015-11-13T05:36:10ZBlog EntryCIS Comments on TRAI Consultation Paper on Promoting Local Telecom Equipment Manufacturing
https://cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing
<b>The Centre for Internet & Society (CIS) sent comments to the TRAI Consultation Paper on promoting telecom equipment manufacturing. CIS submission drew primarily from the research done in the Pervasive Technologies project.</b>
<p><b><a class="external-link" href="http://trai.gov.in/sites/default/files/CP_on_Manufacturing_18_09_17.pdf">Read TRAI's Consultation Paper on Promoting Local Telecom Equipment Manufacturing </a></b></p>
<hr />
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b><span>Preliminary</span></b></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b><span> </span></b></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><span>This submission presents comments by the Centre for Internet and Society, India ("<b>CIS</b>") on the <i>Consultation Paper on Promoting Local Telecom Equipment Manufacturing </i>dated 18.09. 2017, released by the Telecom Regulatory Authority of India (TRAI), under Department of Telecom, Ministry of Communications and Information Technologies (“<b>the TRAI Consultation Paper</b>”).</span><span> </span></li>
<li style="text-align: justify; "><span>We commend TRAI for its efforts at seeking inputs from various stakeholders on this important and timely issue and are thankful for the opportunity to put forth our views.</span></li>
<li style="text-align: justify; "><span>We have addressed questions 3 and 5 of the TRAI Consultation Paper. Question numbers referred to in our submission correspond to those in the TRAI Consultation Paper.</span><span> </span></li>
<li style="text-align: justify; "><span>Further, the Department of Industrial Planning and Promotion (DIPP) invited comments on SEPs and their availability on FRAND terms on 01. 03. 2016.<a href="#_ftn1" name="_ftnref1"><span>[1]</span></a> CIS submitted a detailed response to the consultation, and our present submission will draw significantly from our earlier response<a href="#_ftn2" name="_ftnref2"><span>[2]</span></a>, as well as new empirical research concluded in the since the time of the consultation.</span></li>
</ol>
<p style="text-align: justify; "><span> </span></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b><span>About CIS<br /></span></b></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><span> </span></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><span>CIS<a href="#_ftn3" name="_ftnref3"><span>[3]</span></a> is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. Our areas of focus include IP rights, openness, internet governance, telecommunication reform, free speech, intermediary liability, digital privacy, cyber-security, and accessibility for persons with diverse abilities.</span><span> </span></li>
<li style="text-align: justify; "><span>We strive to maximise public benefit, useful innovation, vibrant competition and consumer welfare. This submission is consistent with our commitment to the domestic goals (as enumerated in Make in India and Digital India), and the protection of India's national interest at the international level. </span></li>
</ol>
<p style="text-align: justify; "><span> </span></p>
<ul style="text-align: justify; ">
</ul>
<p style="text-align: justify; "><b><span>Submission on the Issues for Resolution<br /></span></b></p>
<ul style="text-align: justify; ">
</ul>
<p style="text-align: justify; "><b><i><span>“Q.3 Are the existing patent laws in India sufficient to address the issues of local manufacturers? If No, then suggest the measures to be adopted and amendments that need to be incorporated for supporting the local telecom manufacturing industry.</span></i></b><span>”</span></p>
<p style="text-align: justify; "><span>We submit that amendments to the Patents Act, 1970 may not be preferred, presently. It may be noted that there have been no judgments concluded by Indian courts on disputes relating to licensing of SEPs, yet. Justice Bakhru’s landmark order in <i>Telefonaktiebolaget LM Ericsson (Publ) </i>v. <i>Competition Commission of India (2016) </i>provided valuable clarity on the issue of conflict between remedies under Patents Act, 1970 and Competition Act, 1970. As various other matters are yet to be conclusively decided, and given the complex legal questions involved around the interpretation of Patents Act, 1970 and Competition Act, 2002, and constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts, we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.</span></p>
<p style="text-align: justify; "><span>However, to support the local telecom manufacturing industry the Government of India may adopt and implement the following measures: </span></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><b><span> <span>Develop Model Guidelines to improve the working of Indian Standard Setting Organisations (SSOs</span>): </span></b><span>Given the increasing complexity and time-consuming nature of SEP litigation in India, there is a tangible threat of the abuse of the FRAND process, it might be useful for the government to make suggestions on the working of Indian SSOs. The functioning of Indian SSOs has not been satisfactory and it is suggested that the government develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements. The India specific requirements include a large and exponentially growing mobile device market which has made it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin. We believe that this measure will also enable the fulfillment of the objectives of the Make in India and Digital India initiatives.</span><span><br /><br />We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the Indian Patent Office, the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.</span><span><br /><br />In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.<br /><br /></span></li>
<li style="text-align: justify; "><b><span><span>Initiate the formation of a patent pool of critical mobile technologies and cap royalty payments</span></span></b><span><span>:</span></span><span> In light of the observed inadequacies in the IPR policies of various SSOs in India, as well the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the government intervene in the setting of royalties and FRAND terms by setting up a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Further, patent pools should be required to offer FRAND licenses on the same terms to both members and nonmembers of the pool.</span><span> </span><span><br /><br />Our motivations for this proposal are manifold. In our opinion, it is nearly impossible for potential licensees to avoid inadvertent patent infringement. As a part of our research on technical standards applicable to mobile phones sold in India, we have found nearly 322 standards so far.<a href="#_ftn4" name="_ftnref4"><span>[4]</span></a> It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, homegrown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.</span><span> </span><span><br /><br />Further, how did we arrive at a cap of 5 percent? The rationale for this figure is the royalty cap imposed by India in the early 1990s. As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to “high priority industries”.<a href="#_ftn5" name="_ftnref5"><span>[5]</span></a> Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government. While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009.<a href="#_ftn6" name="_ftnref6"><span>[6]</span></a> It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other’s patent portfolios. Dynamics in the Indian market differ – with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, homegrown.</span><span><br /><br />In June, 2013, we had recommended to the erstwhile Hon’ble Minister for Human Resource Development<a href="#_ftn7" name="_ftnref7"><span>[7]</span></a> that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon’ble Prime Minister.<a href="#_ftn8" name="_ftnref8"><span>[8]</span></a> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license.<a href="#_ftn9" name="_ftnref9"><span>[9]</span></a> As we have stated in our request to the Hon’ble Prime Minister, we believe that such a pool would “<i>possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anticompetitive practices.</i>”<a href="#_ftn10" name="_ftnref10"><span>[10]</span></a> We believe that such a measure will not be in breach of our international obligations under the TRIPS Agreement.<br /><br /></span></li>
<li style="text-align: justify; "><b><span><span>Increase transparency in the patent system by making patentees comply with the law</span></span></b><span>: </span><span>The Patents Act, 1970 requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year.<a href="#_ftn11" name="_ftnref11"><span>[11]</span></a> Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of “working”. A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that “working” is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. Indeed, as the decision<a href="#_ftn12" name="_ftnref12"><span>[12]</span></a> in <i>Natco Pharma </i>v. <i>Bayer Corporation<a href="#_ftn13" name="_ftnref13"><b><span>[13]</span></b></a></i> reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. <b>Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent “working” information in a timely manner</b>.</span><span> </span><span><br /><br />However, there has been little compliance of this requirement by the patentees, despite the Indian Patent Office (<b>IPO</b>) reiterating the importance of compliance through the issuance of multiple public notices<a href="#_ftn14" name="_ftnref14"><span>[14]</span></a> (suo motu and in response to a public interest litigation filed in 2011<a href="#_ftn15" name="_ftnref15"><span>[15]</span></a>), and, reminding the patentees that noncompliance is punishable with a heavy fine.<a href="#_ftn16" name="_ftnref16"><span>[16]</span></a> Findings of research submitted by one of the parties<a href="#_ftn17" name="_ftnref17"><span>[17]</span></a> in the writ of the 2011 public interest <i>litigation Shamnad Basheer v. Union of India</i> <i>and others</i><a href="#_ftn18" name="_ftnref18"><span>[18]</span></a> reveal as follows. First, a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. Second, a large number of filings in the telecom sector remain incomplete.</span><span><br /><br />In 2015, CIS queried the IPO website for Form 27s of mobile device patents to arrive at a similar conclusion. We obtained 4,916 valid Form 27s, corresponding to 3,126 mobile device patents from public online records. These represented only 20.1% of all Forms 27 that should have been filed and corresponded to only 72.5% of all mobile device patents for which Forms 27 should have been filed. Forms 27 were missing for almost all patentees, and even among Forms 27 that were obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules.<a href="#_ftn19" name="_ftnref19"><span>[19]</span></a></span><span><br /><br />Further, in our study, we observed that patentees adopted drastically different positions regarding the definition of patent working, some arguing that importation of products into India or licensing of Indian suppliers constituted working, while others even went so far as to argue that the granting of a worldwide license to a non-Indian firm constituted working in India. Several significant patentees claimed that they or their patent portfolios were simply too large to enable the provision of information relating to individual patents, and instead provided gross revenue and product sale figures, together with historical anecdotes about their long histories in India.</span><span><br /><br />The Indian government has made little or no effort to monitor or police compliance with Form 27 filings, undoubtedly leading to significant non-compliance. We also propose the alteration of the Form 27 template<a href="#_ftn20" name="_ftnref20"><span>[20]</span></a> to include more disclosures.<a href="#_ftn21" name="_ftnref21"><span>[21]</span></a> Presently, patentees are required to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.<br /><br /></span></li>
<li style="text-align: justify; "><span><b>Require royalty rates to be decided on the basis of the Smallest Saleable Patent Practicing Component: </b>Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000.<a href="#_ftn22" name="_ftnref22"><span>[22]</span></a> A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India.<a href="#_ftn23" name="_ftnref23"><span>[23]</span></a> It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined. Thus, we submit that royalty rates for SEPs should be based on the <i>smallest saleable patent practising component</i>, and not on the net price of the downstream product.</span><span><br /><br />The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al<a href="#_ftn24" name="_ftnref24"><span>[24]</span></a> have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties.<a href="#_ftn25" name="_ftnref25"><span>[25]</span></a> In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company’s cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government’s objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme.<a href="#_ftn26" name="_ftnref26"><span>[26]</span></a> It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking.<a href="#_ftn27" name="_ftnref27"><span>[27]</span></a></span><b><i><span><br /><br /> “Q.5 Please suggest a dispute resolution mechanism for determination of royalty distribution on FRAND (Fair Reasonable and Non Discriminatory) basis.”</span></i></b><span><br /><br />The licensing of SEPs on FRAND terms requires the parties to negotiate “reasonable” royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into <b>binding arbitration</b>. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.</span><span><br /><br />Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser “<i>to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose.</i>”<a href="#_ftn28" name="_ftnref28"><span>[28]</span></a> Such an independent adviser may inform the court on the technical nuances of the matter.</span><span><br /><br />Further<b>, </b>under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves <i>first, </i>a prima facie case of infringement; <i>second, </i>that the balance of convenience tilts in plaintiff’s favour; and, <i>third, </i>that if an injunction is not granted the plaintiff shall suffer irreparable damage. However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. <i>First, </i>in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. <i>Second, </i>especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that “irreparable damage” has been caused to the patent owner on account of infringement. <i>Third, </i>we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder.<a href="#_ftn29" name="_ftnref29"><span>[29]</span></a> <i>Fourth, </i>we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator.<a href="#_ftn30" name="_ftnref30"><span>[30]</span></a> Further, as Contreras (2015)<a href="#_ftn31" name="_ftnref31"><span>[31]</span></a> observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.</span></li>
</ol>
<p style="text-align: justify; "><b>Concluding Remarks</b></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><span>We are thankful to TRAI for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these comments with the TRAI; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.</span></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><span>[1]</span></a> Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms, available at <a href="https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms">https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a> (last accessed November 13, 2017)</p>
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2"><span>[2]</span></a> Anubha Sinha, Nehaa Chaudhari and Rohini Lakshane, “CIS’ Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms” (April 23, 2016); available at <a href="https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms">https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a></p>
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3"><span>[3]</span></a> <a href="http://www.cis-india.org">www.cis-india.org</a></p>
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4"><span>[4]</span></a> Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5"><span>[5]</span></a> Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at http://www.businessstandard.com/article/economypolicy/newsonroyaltypaymentbringscheerinnewyear11001 0400044_1.html (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><span>[6]</span></a> See Sanjana Govil, Putting a Lid on Royalty Outflows How the RBI Can Help Reduce India’s IP Costs <i>, </i>available at <a href="http://cisindia.org/a2k/blogs/lidonroyaltyoutflows">http://cisindia.org/a2k/blogs/lidonroyaltyoutflows</a> (last accessed 13 November, 2017) for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.</p>
<p style="text-align: justify; "><a href="#_ftnref7" name="_ftn7"><span>[7]</span></a> Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low cost Access Devices through Compulsory</p>
<p style="text-align: justify; ">Licenses, available at <a href="http://cisindia.org/a2k/blogs/letterforestablishmentofpatentpoolforlowcostaccessdevices">http://cisindia.org/a2k/blogs/letterforestablishmentofpatentpoolforlowcostaccessdevices </a>(last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref8" name="_ftn8"><span>[8]</span></a> See Rohini Lakshané, Open Letter to PM Modi, available at <a href="http://cisindia.org/a2k/blogs/openlettertoprimeministermodi">http://cisindia.org/a2k/blogs/openlettertoprimeministermodi</a> (last accessed 13 November, 2017) for further details of CIS’ proposal.</p>
<p style="text-align: justify; "><a href="#_ftnref9" name="_ftn9"><span>[9]</span></a> Rohini Lakshané, FAQ: CIS’ proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cisindia.org/a2k/blogs/faqcisproposalforcompulsorylicensingofcriticalmobiletechnologies">http://cisindia.org/a2k/blogs/faqcisproposalforcompulsorylicensingofcriticalmobiletechnologies </a>(last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10"><span>[10]</span></a> Id.</p>
<p style="text-align: justify; "><a href="#_ftnref11" name="_ftn11"><span>[11]</span></a> Section 146(2) of the Patents Act, 1970.</p>
<p style="text-align: justify; "><a href="#_ftnref12" name="_ftn12"><span>[12]</span></a> Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at <a href="http://spicyip.com/2013/02/patentofficefinallytakesform27s.html">http://spicyip.com/2013/02/patentofficefinallytakesform27s.html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref13" name="_ftn13"><span>[13]</span></a> Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at <a href="http://www.ipab.tn.nic.in/0452013.htm">http://www.ipab.tn.nic.in/0452013.htm</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref14" name="_ftn14"><span>[14]</span></a> Intellectual Property India, Public Notice, available at</p>
<p style="text-align: justify; "><a href="http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf">http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf</a> ((last accessed 13 November, 2017) <i>and </i>Intellectual Property India, Public Notice, available at <a href="http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf">http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref15" name="_ftn15"><span>[15]</span></a> Supra note 11.</p>
<p style="text-align: justify; "><a href="#_ftnref16" name="_ftn16"><span>[16]</span></a> Id.</p>
<p style="text-align: justify; "><a href="#_ftnref17" name="_ftn17"><span>[17]</span></a> See research findings available at <a href="http://spicyip.com/wpcontent/uploads/2015/05/FORM27WP1Rcopy.pdf">http://spicyip.com/wpcontent/uploads/2015/05/FORM27WP1Rcopy.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref18" name="_ftn18"><span>[18]</span></a> In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, <i>Patent Working in India: Delhi HC issues notice in Shamnad Basheer </i>v<i>. Union of India & Ors. – I </i>, available at <a href="http://spicyip.com/2015/09/patentworkinginindiadelhihcissuesnoticeinshamnadbasheervunionofindiaorsi.html">http://spicyip.com/2015/09/patentworkinginindiadelhihcissuesnoticeinshamnadbasheervunionofindiaorsi.html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref19" name="_ftn19"><span>[19]</span></a> Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: <a href="https://ssrn.com/abstract=3004283">https://ssrn.com/abstract=3004283</a></p>
<p style="text-align: justify; "><a href="#_ftnref20" name="_ftn20"><span>[20]</span></a> Form 27, The Patents Act, available at <a href="http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20%20html/Forms/Form27.pdf">http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20%20html/Forms/Form27.pdf</a> (last accessed November 13, 10`7).</p>
<p style="text-align: justify; "><a href="#_ftnref21" name="_ftn21"><span>[21]</span></a> However, we came across some complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement - namely, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents are not necessarily amenable to the individual-level data requested by Form 27. See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: <a href="https://ssrn.com/abstract=3004283">https://ssrn.com/abstract=3004283</a></p>
<p style="text-align: justify; "><a href="#_ftnref22" name="_ftn22"><span>[22]</span></a> Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, <i>85 Tex. L. Rev. at 2015 </i>; See also, for e.g.,</p>
<p style="text-align: justify; ">RPX Corporation, Amendment No. 3 to Form Sl,11 Apr. 2011, at 59, available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm (last accessed 22 April, 2016), quoting <i>“Based on our research, we believe there are more than 250,000 active patents relevant to today’s</i></p>
<p style="text-align: justify; "><i>smartphones…” </i>.; See further Steve Lohr, Apple Samsung Case Shows Smartphone as Legal Magnet, New York Times, 25 Aug. 2012, available at <a href="http://www.nytimes.com/2012/08/26/technology/applesamsungcaseshowssmartphoneaslawsuitmagnet">http://www.nytimes.com/2012/08/26/technology/applesamsungcaseshowssmartphoneaslawsuitmagnet</a>.html (last accessed November13, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref23" name="_ftn23"><span>[23]</span></a> Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref24" name="_ftn24"><span>[24]</span></a> Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The SmartphoneRoyalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at <a href="https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/TheSmartphoneRoyaltyStackArmstrongMuellerSyrett.pdf">https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/TheSmartphoneRoyaltyStackArmstrongMuellerSyrett.pdf</a> (last accessed 13 November, 2017)</p>
<p style="text-align: justify; "><a href="#_ftnref25" name="_ftn25"><span>[25]</span></a> Florian Mueller, Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at <a href="http://www.fosspatents.com/2014/01/ericssonexplainedpubliclywhyits.Html">http://www.fosspatents.com/2014/01/ericssonexplainedpubliclywhyits.Html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref26" name="_ftn26"><span>[26]</span></a> Romit Guha and Anandita Singh Masinkotia, PM Modi’s Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at <a href="http://articles.economictimes.indiatimes.com/20140825/news/53205445_1_digitalindiaindiatodayfinancialservices">http://articles.economictimes.indiatimes.com/20140825/news/53205445_1_digitalindiaindiatodayfinancialservices</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref27" name="_ftn27"><span>[27]</span></a> Nehaa Chaudhari, Standard Essential Patents on Low Cost Mobile Phones in India: A Case to Strengthen Competition Regulation? available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340C1B94BA4B6A9D6B6494391B8.pdf">http://www.manupatra.co.in/newsline/articles/Upload/08483340C1B94BA4B6A9D6B6494391B8.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref28" name="_ftn28"><span>[28]</span></a> Section 115 of the Patents Act, 1970.</p>
<p style="text-align: justify; "><a href="#_ftnref29" name="_ftn29"><span>[29]</span></a> <i>Huawei Technologies Co. Ltd </i>v. <i>ZTE Corp. and ZTE Deutschland </i>, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C170/13.</p>
<p style="text-align: justify; "><a href="#_ftnref30" name="_ftn30"><span>[30]</span></a> Third Party United States Fed. Trade Commission’s Statement on the Public Interest, <i>In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof</i>, U.S. Int’l Trade Comm’n, Inv. No. 337TA745 (Jun. 6, 2012).</p>
<p style="text-align: justify; "><a href="#_ftnref31" name="_ftn31"><span>[31]</span></a> Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens <i>, </i>80 Antitrust Law Journal 39 (2015), available at h ttp://ssrn.com/abstract=2374983 or <a href="http://dx.doi.org/10.2139/ssrn.2374983">http://dx.doi.org/10.2139/ssrn.2374983</a> (last accessed 13 November, 2017).</p>
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For more details visit <a href='https://cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing'>https://cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing</a>
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