Centre for Internet and Society

Second Response to Draft National Policy on Open Standards for e-Governance

pranesh — 2011-08-18T05:06:31Z

The government is in the process of drafting a national policy on open standards for e-governance. The National Informatics Centre recently released draft version 2 of the policy, and CIS sent in its comments on the draft.

CIS has been following the drafting of the national policy on open standards for e-governance with much interest. Last year, we offered our comments on the first draft of the policy. The policy has since gone through two more iterations (copies of which are kept on the Fosscomm site), labelled versions 1.15 and 2, and we have again offered comments on the latest version. The evolution the draft policy has been mired in controversy, as documented by Venkatesh Hariharan of Red Hat. It seems that the National Association of Software and Services Companies (NASSCOM) has been trying to nullify the effect of the policy by pushing for recognition of proprietary standards within the policy, and that too without consultation with its members.

We believe that proprietary standards go against the interests the government, which as the primary consumer of the standards would have to pay royalties and would face vendor lock-in, of small and medium enterprises, which provide direct and indirect services to the government, since they would be required to invest in those closed standards to service the government, and most of all, of the citizens of India.

Based on that view, we have noted four deficiencies in version 2 of the draft policy: the possibility of following the letter of policy while violating its spirit; the possibility of patenting and closed licensing of government-developed standards; that no framework provided for review or phasing out interim standards; and certain problematic definitions in the glossary to the policy.

All these points are elaborated upon in the comments we submitted to the Department of Information Technology.

For more details visit https://cis-india.org/openness/blog-old/second-response-to-draft-policy

Second Response to Draft National Policy on Open Standards for e-Governance

pranesh — 2009-07-07T16:49:37Z

Another draft (labelled "version 2", dated May 26, 2009) of the draft national policy on open standards for e-governance was made available to Fosscomm, while many software companies were speaking out against NASSCOM's position on the policy. CIS drafted a second response addressing both the allegations against NASSCOM as well as the few shortcomings we perceive in the draft policy.

To
Shri Shankar Aggrawal
Joint Secretary (e-Governance)
Department of Information Technology
Ministry of Communications and Information Technology

Tuesday, July 7, 2009

Dear Sir,

Sub: Comments on Draft National Policy on Open Standards for e-Governance (version 2)

I am writing on behalf of the Centre for Internet and Society, which is a Bangalore-based civil society organization involved both in research and policy advocacy. Public accountability and digital pluralism are two of our core concerns, and it is for this that we are writing to you today. As a natural corollary of our mission, we aim at representing the concerns of citizens and consumers. You would recall that we had submitted comments to the call for comments you had put out for the draft National Policy on Open Standards for e-Governance last year (archived at <http://cis-india.org/advocacy/os/iosp/the-response/>).

We have recently received what appears to be a newer draft (version 2) of the National Policy on Open Standards for e-Governance, dated May 26, 2009. We are yet again very pleased to note the progressive nature of this document and wish to congratulate the government on its decision to promote the interests of the citizens of India over the narrow partisan interests of a few companies which wish to promote proprietary standards.

It has brought to our notice by some in the software industry that the National Association of Software and Services Companies (NASSCOM) has argued for the dilution of the definition of open standards by including standards licensed under “reasonable and non-discriminatory” terms to be considered “open”, and has also called for multiple standards in the same domain to be considered valid as a rule under the policy. We believe both these demands go against the interest of consumers of standards — which in this case is the Indian government — and are thus against the interest of citizens as well, since the Indian government handles data on behalf of its citizens.

Even “reasonable and non-discriminatory” terms of licensing of standards are in fact discriminatory as they prevent the development of free/libre/open source software based on those standards. And while having multiple implementations of a standard is beneficial as it increases consumer (i.e., governmental) choice, having multiple incompatible standards is detrimental to the government's interest as the policy itself recognizes in paragraph 4.2, and the very purpose (as enumerated in paragraphs 1, 3, and 4) of having standards is defeated. Even if the multiple standards are bi-directionally interoperable, additional costs are incurred in having concurrent multiple standards.

Thus, one hopes that the the threshold of “national interest” mentioned in paragraph 6.4.1 is set to a high level. Lastly, the views put forth by NASSCOM seem not to be truly legitimate as it has been the complaint of some that NASSCOM did not hold an open consultation with its own members before formulating its views. There are software giants, including IBM, Sun, and Red Hat, that have openly criticized the NASSCOMM position on open standards. More importantly, NASSCOM's position does not concur with what we believe is in the best interest of small and medium software enterprises, which constitute the bulk of the Indian software industry. We pray that you shall keep this in mind while considering NASSCOM's views.

We believe that apart from the technical reasons to favour open standards, there are many public interest reasons as well. We believe that the adoption of open standards is a step towards the promotion of equitable access to knowledge to all the people of our country. We further believe that public accountability will be served greatly by adoption of an open standards policy by the Central and State governments. While even developed countries (such as those of the EU) are mandating open standards in all governmental departments, processes, and interactions, it is developing countries that stand to gain most from open standards. Proprietary standards place a larger burden on developing economies than developed as developing economies have a greater need to participate in the global network by using standards, but do have lesser capabilities than developed economies in terms of paying for royalties.

On the document itself, while there are many reasons to hail it, we believe there are still a few shortcomings which we wish to bring to your notice.

Issue 1: Possibility of following letter of policy while violating its spirit

Explanation
Sometimes private companies can interfere with the standardisation process by exerting undue influence on the members of the standard setting body. That such undue influence have been sought to be applied even in India recently shows that this is not mere conjecture or idle speculation. Given this background, the document should note this as a problem and note that remedial measures could be undertaken in the event such undue influence comes to light.

Resolution
Introduce language, such as that used in the EU EIF, stating:
“Practices distorting the definition and evolution of open standards must be addressed immediately to protect the integrity of the standardisation process.”

Issue 2: Patenting and licensing of government-developed standards

Explanation
Paragraph 6.3 of the draft policy allows the government to opt for the development of a new standard by a Government of India-identified agency in case no standard is found to meet the government's functional requirements. However, it is not clear under what terms this standard will be available.

Resolution
Introduce a paragraph 6.3.1 stating:
“Any standard developed by or on behalf of the government shall be patent-free and the specifications of such a standard will be published online and will be available to all for no cost. Along with the standard, the government shall also provide, or shall cause to be provided, a free/libre/open source reference implementation of that standard.”

Issue 3: No framework provided for review or phasing out interim standards

Explanation
Paragraph 6.2 permits the government to adopt a non-open “interim” standard (one which does not fulfil all the mandatory requirements of open standards as laid out in 5.1) if no open standard exists in the specific domain for which the standard is required. This however does not have a clause necessitating the phasing out of such an interim standard.

Resolution
A review mechanism should be provided for periodic evaluation of all standards selected by the government, especially those designated as interim standards. A new paragraph 7.1.1 could be added:
“All standards selected through the processes outlined in this policy shall undergo an annual review by the Apex Body on e-Governance Standards, and all those designated as interim standards shall be reviewed biannually.”

Issue 4: Problematic definition in the glossary

Explanation
In Appendix A, the definition of “patents” (A.12) states: “The additional qualification 'utility patents' is used in countries such as the United States to distinguish them from other types of patents but should not be confused with utility models granted by other countries. Examples of particular species of patents for inventions include biological patents, business method patents, chemical patents and software patents.” Many of these references are U.S.-specific and are not valid forms of patents in India (e.g. biological patents, business method patents, and software patents).

Resolution
Delete the last two sentences in A.12

We once again wish to compliment the government on developing such a strong policy on open standards, and hope that our suggestions are incorporated into the text of the final version. We further hope that the policy will be notified at the earliest, as there has already been considerable opportunity for the public and industry to comment on the draft versions of the policy.

Yours sincerely,

Pranesh Prakash
Programme Manager
Centre for Internet and Society

For more details visit https://cis-india.org/openness/publications/standards/second-response

Short note on IT Amendment Act, 2008

pranesh — 2011-06-01T14:45:34Z

Pranesh Prakash of the Centre for Internet and Society wrote a short note in February 2009 on the Information Technology (Amendment) Act, 2008. This is being posted as a precursor to a more exhaustive analysis of the Act and the rules sought to be promulgated under the Act. Thus, this does not cover the regulations that have been drafted under the Act.

The new amendments to the Information Technology Act, 2000 that got passed by the Lok Sabha last December deserve a careful reading. There are a number of positive developments, as well as many which dismay. Positively, they signal an attempt by the government to create a dynamic policy that is technology neutral. This is exemplified by its embracing the idea of electronic signatures as opposed to digital signatures. But more could have been done on this front (for instance, section 76 of the Act still talks of floppy disks). There have also been attempts to deal proactively with the many new challenges that the Internet poses.

Freedom of Expression

The first amongst these challenges is that of child pornography. It is heartening to see that the section on child pornography (s.67B) has been drafted with some degree of care. It talks only of sexualized representations of actual children, and does not include fantasy play-acting by adults, etc. From a plain reading of the section, it is unclear whether drawings depicting children will also be deemed an offence under the section. Unfortunately, the section covers everyone who performs the conducts outlined in the section, including minors. A slight awkwardness is created by the age of "children" being defined in the explanation to section 67B as older than the age of sexual consent. So a person who is capable of having sex legally may not record such activity (even for private purposes) until he or she turns eighteen.

Another problem is that the word "transmit" has only been defined for section 66E. The phrase "causes to be transmitted" is used in section 67, 67A, and 67B. That phrase, on the face of it, would include the recipient who initiates a transmission along with the person from whose server the data is sent. While in India, traditionally the person charged with obscenity is the person who produces and distributes the obscene material, and not the consumer of such material. This new amendment might prove to be a change in that position.

Section 66A which punishes persons for sending offensive messages is overly broad, and is patently in violation of Art. 19(1)(a) of our Constitution. The fact that some information is "grossly offensive" (s.66A(a)) or that it causes "annoyance" or "inconvenience" while being known to be false (s.66A(c)) cannot be a reasons for curbing the freedom of speech unless it is directly related to decency or morality, public order, or defamation (or any of the four other grounds listed in Art. 19(2)). It must be stated here that many argue that John Stuart Mill's harm principle provides a better framework for freedom of expression than Joel Feinberg's offence principle. The latter part of s.66A(c), which talks of deception, is sufficient to combat spam and phishing, and hence the first half, talking of annoyance or inconvenience is not required. Additionally, it would be beneficial if an explanation could be added to s.66A(c) to make clear what "origin" means in that section. Because depending on the construction of that word s.66A(c) can, for instance, unintentionally prevent organisations from using proxy servers, and may prevent a person from using a sender envelope different form the "from" address in an e-mail (a feature that many e-mail providers like Gmail implement to allow people to send mails from their work account while being logged in to their personal account). Furthermore, it may also prevent remailers, tunnelling, and other forms of ensuring anonymity online. This doesn't seem to be what is intended by the legislature, but the section might end up having that effect. This should hence be clarified.

Section 69A grants powers to the Central Government to "issue directions for blocking of public access to any information through any computer resource". In English, that would mean that it allows the government to block any website. While necessity or expediency in terms of certain restricted interests are specified, no guidelines have been specified. Those guidelines, per s.69A(2), "shall be such as may be prescribed". It has to be ensured that they are prescribed first, before any powers of censorship are granted to any body. In India, it is clear that any law that gives unguided discretion on an administrative authority to exercise censorship is unreasonable (In re Venugopal, AIR 1954 Mad 901).

Intermediary Liability

The amendment to the provision on intermediary liability (s.79) while a change in the positive direction, as is seeks to make only the actual violators of the law liable for the offences committed, still isn't wide enough. This exemption is required to be widely worded to encourage innovation and to allow for corporate and public initiatives for sharing of content, including via peer-to-peer technologies.

Firstly, the requirement of taking down content upon receiving "actual knowledge" is much too heavy a burden for intermediaries. Such a requirement forces the intermediary to make decisions rather than the appropriate authority (which often is the judiciary). The intermediary is no position to decide whether a Gauguin painting of Tahitian women is obscene or not, since that requires judicial application of mind. Secondly, that requirement is vitiates the principles of natural justice and freedom of expression because it allows a communication and news medium to be gagged without giving it, or the party communicating through it, any due hearing. It has been held by our courts that a restriction that does not provide the affected persons a right to be heard is procedurally unreasonable (Virendra v. State of Punjab, AIR 1957 SC 896).

The intermediary loses protection of the act if (a) it initiates the transmission; (b) selects the receiver of the transmission; and (c) selects or modifies the information. While the first two are required to be classified as true "intermediaries", the third requirement is a bit too widely worded. For instance, an intermediary might automatically inject advertisements in all transmissions, but that modification does not go to the heart of the transmission, or make it responsible for the transmission in any way. Similarly, the intermediary may have a code of conduct, and may regulate transmissions with regard to explicit language (which is easy to judge), but would not have the capability to make judgments regarding fair use of copyrighted materials. So that kind of "selection" should not render the intermediary liable, since misuse of copyright might well be against the intermediary's terms and conditions of use.

Privacy and Surveillance

While the threat of cyber-terrorism might be very real, blanket monitoring of traffic is not the way forward to get results, and is sure to prove counter-productive. It is much easy to find a needle in a small bale of hay rather than in a haystack. Thus, it must be ensured that until the procedures and safeguards mentioned in sub-sections 69(2) and 69B(2) are drafted before the powers granted by those sections are exercised. Small-scale and targetted monitoring of metadata (called "traffic data" in the Bill) is a much more suitable solution, that will actually lead to results, instead of getting information overload through unchannelled monitoring of large quantities of data. If such safeguards aren't in place, then the powers might be of suspect constitutionality because of lack of guided exercise of those powers.

Very importantly, the government must also follow up on these powers by being transparent about the kinds of monitoring that it does to ensure that the civil and human rights guaranteed by our Constitution are upheld at all times.

Encryption

The amending bill does not really bring about much of a change with respect to encryption, except for expanding the scope of the government's power to order decryption. While earlier, under section 69, the Controller had powers to order decryption for certain purposes and order 'subscribers' to aid in doing so (with a sentence of up to seven years upon non-compliance), now the government may even call upon intermediaries to help it with decryption (s.69(3)). Additionally, s.118 of the Indian Penal Code has been amended to recognize the use of encryption as a possible means of concealment of a 'design to commit [an] offence punishable with death or imprisonment for life'.

The government already controls the strength of permissible encryption by way of the Internet Service Provider licences, and now has explicitly been granted the power to do so by s.84A of the Act. However, the government may only prescribe the modes or methods of encryption "for secure use of the electronic medium and for promotion of e-governance and e-commerce". Thus, it is possible to read that as effectively rendering nugatory the government's efforts to restrict the strength of encryption to 40-bit keys (for symmetric encryption).

Other Penal Provisions

Section 66F(1)(B), defining "cyberterrorism" is much too wide, and includes unauthorised access to information on a computer with a belief that that information may be used to cause injury to decency or morality or defamation, even. While there is no one globally accepted definition of cyberterrorism, it is tough to conceive of slander as a terrorist activity.

Another overly broad provision is s.43, which talks of "diminish[ing] its value or utility" while referring information residing on a computer, is overly broad and is not guided by the statute. Diminishing of the value of information residing on a computer could be done by a number of different acts, even copying of unpublished data by a conscientious whistleblower might, for instance, fall under this clause. While the statutory interpretation principle of noscitur a socii (that the word must be understood by the company it keeps) might be sought to be applied, in this case that doesn't give much direction either.

While all offences carrying penalties above three years imprisonment have been made cognizable, they have also been made bailable and lesser offences have been made compoundable. This is a desirable amendment, especially given the very realistic possibility of incorrect imprisonments (Airtel case, for instance), and frivolous cases that are being registered (Orkut obscenity cases).

Cheating by personation is not defined, and it is not clear whether it refers to cheating as referred to under the Indian Penal Code as conducted by communication devices, or whether it is creating a new category of offence. In the latter case, it is not at all clear whether a restricted meaning will be given to those words by the court such that only cases of phishing are penalised, or whether other forms of anonymous communications or other kinds of disputes in virtual worlds (like Second Life) will be brought under the meaning of "personation" and "cheating".

While it must be remembered that more law is not always an answer to dealing with problems, whether online or otherwise, it is good to note that the government has sought to address the newer problems that have arisen due to newer technologies. But equally important is the requirement to train both the judiciary and the law enforcement personnel to minimize the possibility of innocent citizens being harassed.

For more details visit https://cis-india.org/internet-governance/publications/it-act/short-note-on-amendment-act-2008

Information Technology Act

pranesh — 2009-06-15T12:12:00Z

The Information Technology Act, 2000 (amended in 2008) is the main statute that governs online behaviour in India, from e-commerce to cybercrimes, Internet surveillance, and intermediary liability. Thus, understanding that statute is of paramount interest to all Indian 'netizens'.

For more details visit https://cis-india.org/internet-governance/publications/it-act

Consumers International IP Watch List 2009

pranesh — 2011-08-04T04:42:27Z

In response to the US Special 301 report, Consumers International brought out an IP Watch List. CIS contributed the India Country Report for the Watch List.

Every year the Office of the United States Trade Representative (USTR) publishes a report known as the Special 301 Report, documenting IP regimes in various countries, and publishing a list of those countries which do not afford 'adequate and effective' protection for US intellectual property. This year Consumers International, which set up the A2K Network, published a counter-report, the IP Watch List 2009 for which the India report [pdf here] was prepared by the Centre for Internet and Society. While the Special 301 Report labels India a "Priority Watch List" country (meaning that it has an IP regime least conducive to the trade interests of the United States), the Consumers International report holds India to have the most consumer-friendly and balanced IP regulation amongst the sixteen countries surveyed. The CI report lambasts the USTR's attempts to make countries comply with unreasonable demands which go over and above the countries' international obligations. For instance, the WIPO Internet Treaties, which have been criticised by many, is sought to be imposed on countries like Israel, India, and Canada. Prof. Michael Geist of the University of Ottawa even notes that piracy levels and accession to the WCT and WPPT do not seem to be correlated: "In fact, only five countries that have ratified the WIPO Internet treaties have software piracy rates lower than Canada." Still, the USTR has placed both India, whose IP laws are being praised by Consumers International and Canada, which has low piracy rates even by the accounts of the notoriously propagandist BSA, have both been placed in the Priority Watch List. The reasons for doing so are not all that unclear if we look at who really shapes the USTR's Special 301 report.

The India section of the USTR Special 301 report [pdf] (pp. 18-19) notes:
"India will remain on the Priority Watch List in 2009. India has made progress on improving its IPR infrastructure, including through the modernization of its IP offices and the introduction of an e-filing system for trademark and patent applications. Further, the IP offices have started the process of digitization of intellectual property files. In addition, the Indian ministerial committee on IPR enforcement has supported the creation of specialized IPR police units. Customs enforcement has also improved through the implementation of the 2007 IPR (Imported Goods) Enforcement Rules as well as by seizures of unlicensed copyrighted goods intended for export. However, the United States remains concerned about weak IPR protection and enforcement in India. The United States continues to urge India to improve its IPR regime by providing stronger protection for copyrights and patents, as well as effective protection against unfair commercial use of undisclosed test and other data generated to obtain marketing approval for pharmaceutical and agrochemical products. The United States encourages India to enact legislation in the near term to strengthen its copyright laws and implement the provisions of the WIPO Internet Treaties. The United States also encourages India to improve its IPR enforcement system by enacting effective optical disc legislation to combat optical disc piracy. Piracy and counterfeiting, including of pharmaceuticals, remain a serious problem in India. India’s criminal IPR enforcement regime remains weak. Police action against those engaged in manufacturing, distributing, or selling pirated and counterfeit goods, and expeditious judicial dispositions for IPR infringement and imposition of deterrent-level sentences, is needed. As counterfeit medicines are a serious problem in India, the United States is encouraged by the recent passage of the Drugs and Cosmetics (Amendment) Act 2008 that will increase penalties for spurious and adulterated pharmaceuticals. The United States urges India to strengthen its IPR regime and stands ready to work with India on these issues during the coming year."

Large chunks of it seem to have been 'borrowed' from the IIPA submissions. The IIPA (International Intellectual Property Alliance), which is made up of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance, is a body that was created to lobby the USTR to impose trade sanctions on those countries which did not follow the path that IIPA thought best for those countries.
Interestingly, the IIPA submissions talk not of IIPA's concern about weak IPR protection and enforcement in India, but instead states: "the United States remains concerned about weak IPR protection and enforcement in India". This exact line even manages to finds itself in the USTR Special 301 report. Many IIPA complaints find themselves as USTR recommendations, including: a) fast-track judical dispositions of IP cases; b) special laws against optical disc piracy; c) ratification of the WCT and WPPT (the "WIPO Internet Treaties"); d) increased criminal enforcement of intellectual property.

Thus, the Special 301 report emerges as a discredited report that the US's trade partners should not (and by many accounts do not) pay attention to. Measurement of IP balance and consumer-friendliness such as the Consumers International IP Watch List are more important, and should eventually lead to a measurement index for Access to Knowledge.

For more details visit https://cis-india.org/a2k/blogs/consumers-international-ip-watch-list-2009

Letter on South Africa's IPRs from Publicly Financed R&D Regulations

pranesh — 2011-08-04T04:42:15Z

Being interested in legislations in developing nations styled after the United States' Bayh-Dole Act, CIS responded to the call issued by the South African Department of Science and Technology for comments to the Intellectual Property Rights from Publicly Financed Research and Development Regulations.

For more details visit https://cis-india.org/a2k/blogs/letter-on-south-africas-iprs-from-publicly-financed-r-d-regulations

WIPO Broadcast Treaty and Webcasting

pranesh — 2011-08-04T04:42:10Z

On Friday, 8 May 2009, at Shastri Bhavan, New Delhi, the Ministry of Information and Broadcasting held a stakeholders' briefing meeting on the Broadcast Treaty that has been on the table at the World Intellectual Property Organisation (WIPO). The purpose of that meeting was to inform the relevant stakeholders of the developments in Geneva, as well as to garner input from them regarding the stance to be adopted by India at the WIPO. Pranesh Prakash from the Centre for Internet and Society participated and made a presentation on webcasting, highlighting the differences between webcasting and broadcasting, and arguing that webcasting should not be part of the WIPO Broadcast Treaty.

First, we wish to applaud the Ministry of Information and Broadcasting for holding this stakeholders' meeting, which is a definite step towards greater transparency, and are grateful for having been invited to provide our input. The meeting was attended by representatives from various government offices and ministries, including the Ministry of Human Resource Development (which administers the Indian Copyright Act), broadcasters, broadcast associations, law firms, and civil society organisations. The Secretary of the Ministry of Information and Broadcasting inaugurated the session by talking of how the Broadcast Treaty involved the assessment and balancing of various interests while keeping 'public interest' foremost. This was followed by Mr. N. P. Nawani, Secretary General of the Indian Broadcasting Foundation (IBF), presenting on the concerns of the broadcasting industry. After this Prof. N. S. Gopalakrishnan, head of the School of Law, Cochin University of Science and Technology, spoke.

Prof. Gopalakrishnan covered many areas of relevance: the concept of broadcasting and the legal rights involved; the scheme of legal protection over broadcast signals and over the content of the signals, and the difference between the two; gaps in the international law covering broadcasting; details of the proposed broadcast treaty; the implications of the broadcast treaty and concerns of the Indian government; and unresolved issues.

Amongst the unresolved issues mentioned by Prof. Gopalakrishnan was that of webcasting and the problems related to that. The discussion below aims to shed some light on some of the problems created by the inclusion of webcasting in the broadcast treaty.

Legal regimes for broadcasting

At the national level, the law governing broadcasting is the Indian Copyright Act, 1957. Broadcasting is covered by many sections of the Indian Copyright Act, including: ss. 2(dd) (definition of "broadcast"), 2(ff) (definition of "communication to the public"), 37 (the section granting a special "broadcast reproduction right"), and 39A (containing exceptions to s.37). At the international level, broadcasting is covered by the Rome Convention, 1960 (which India has signed, but hasn't ratified); the Brussels Convention, 1974 (only pre-broadcast satellite signals); the TRIPS Agreement, 1994 per Article 14 (which doesn't mandate that broadcasting rights be granted directly to the broadcasters); the WIPO Performances and Phonograms Treaty, 1996 (WPPT) in Articles 2(f) and 15; and the proposed WIPO Treaty on the Protection of Broadcasting Organizations ("Broadcast Treaty"). In May 2006, provisions for webcasting were brought back into the Broadcast Treaty as part of the non-mandatory Appendix after having been excised in 2004 owing to protests by many countries on their inclusion. The current draft (SCCR/15/2 rev.) was prepared in September 2006 as an attempt to put together an all-inclusive document (with alternative versions of proposed provisions present in the document), and a diplomatic conference was planned to push the treaty through. In August 2007, WIPO released a 'non-paper' (SCCR/S2/Paper1) and dropped plans for the diplomatic conference, as there was still significant disagreement about the treaty. In November 2008, the WIPO chair released an informal paper (SCCR/17/INF/1), which advocated technological neutrality, and hence, presumably, that webcasting to be covered by the treaty.

Meaning of broadcasting and netcasting

Broadcasting is generally taken to be a point-to-multipoint transmission of audio-visual content. Hence, cable transmissions and Internet/Web transmissions (which are point-to-point) are usually not included when one uses the term "broadcasting". But there is no one common definition of "broadcasting". As things stand in the WIPO Broadcast Treaty, the definition of broadcasting (Art. 5(a)) does not cover cablecasting, which is separately defined in Art. 5(b), neither does it cover webcasting. However, the definition of "retransmission" as provided in the draft treaty is broad enough to cover Internet-based transmission, and hence could provide a backdoor via which webcasting is included. The rights covered by the all-inclusive draft WIPO Broadcast Treaty include the rights of and over: retransmission; communication to the public; fixation; reproduction; distribution; transmission following fixation; making available of fixed broadcasts; and pre-broadcast signals. The treaty also mandates legislative protection to systems of digital rights management (DRM) and technological protection measures (TPMs). This, coupled with post-fixation rights, grants broadcasters the rights to dictate what one can and cannot do with a broadcast, thus negating all fair dealing rights and possibly restricting the public domain as well. It may be noted that even content creators are not provided such rights in the vast majority of the world, and that fair dealing rights are much better safeguarded by copyright law. The latest proposal by the U.S. on the term "netcasting" is to be found in an informal paper presented at SCCR 15 [MS Word document], and has been criticised as overly expansive by civil society organisations such as Consumer Project on Technology (now Knowledge Ecology International).

Non-justifications for webcasting's inclusion

Webcasting is sought to be included within the Broadcast Treaty for a number of reasons, all of which are problematic. Firstly, there is the argument of technology neutrality, which advocates say is to ensure that the treaty is relevant into the future as well. However, adopting technology neutrality as the basis for doing so amounts to wilful blindness to technological advancements, and the benefits that such advancement provides, including lowered costs of infrastructure. Secondly, advocates argue that thanks to media convergence, the same content (which is usually digital) can be delivered through various communication networks. This disregards the need to establish the requirement for a new right to be created, and simply assumes that just because the function that the two (broadcasters and webcasters) perform are similar means that they operate in similar economic and social environments. In fact, webcasters work in a very different environment from broadcasters.

This is an environment where intense innovation and competition already exist, and don't need to be artificially created by means of a new property right in an international treaty. Furthermore, the United States, a country with extremely large and hugely profitable broadcasting networks, does not have a specific statute to protect broadcasters’ rights. Even it only has laws protecting the conditional-access regime. Second, much less investment is required to reach a set number of people through webcasting than through broadcasting -- and these people can be spread throughout the globe. Typically, a computer with a fast internet connection is all that is required. Given this, anyone can become a 'broadcasting organisation'. Additionally, IP addresses (in IPv6) are not limited, unless one considers 340 undecillion addresses to be 'limited'. This is a big difference from terrestrial broadcasting, where Hertzian frequencies are limited, and hence one has to pay a premium for them. Lastly, signal appropriation does not happen for sake of the signal, but for the content. Protection, thus has to be given to the content (and already is given, in the form of copyright law). Copyright owners who object to such appropriation, and who are often large multinational corporations, have proven more than willing to pursue those who appropriate their works – broadcasters are not necessarily in a better position to do so. This situation is aggravated with webcasting. Indeed, on the Web, something akin signal appropriation is not only not frowned upon, but often encouraged: embedding of audio and video from other servers on your own website is prevalent.

Problems if webcasting is included

Apart from the lack of justifications for going ahead with the treaty, especially when it seeks to create a separate property right over signals instead of merely providing for signal protection and includes webcasting (at least upon 'retransmission'), there are many problems that the treaty creates. Firstly, transaction costs will increase vastly, leading to a tragedy of the anticommons where no one ends up using the content because clearing all the surrounding rights is too difficult. On top of clearing and making payment for rights from the copyright holders, a person wishing to use parts of any content that has been broadcast/webcast would have to get the rights cleared from the first broadcaster/webcaster as well. This is inevitable if property-like rights are bestowed upon the act of distributing signal in the form of a broadcast or hosting audio and visual content for webcasting.

Secondly, materials in the public domain and openly-licensed content will become more difficult to gain access to, and the exercise of fair dealings with copyrighted content will be hampered. Since rights over signal are independent of rights over content, a copy of the public-domain work will have to be procured from an archive, which negates the very purpose of broadcasting and webcasting, which is to make content more easily accessible to a large number of people located over great distances. Additionally, limitations and exceptions are extremely difficult to negotiate and are of the 'ceiling' kind, limiting the limitations and exceptions that national legislatures can prescribe. Thus, the fair dealing rights over the signal will probably end up being more limited than the fair dealing rights over content. This makes the situation akin to anti-circumvention measures, which (in countries where they are legally recognised) have fewer limitations and exceptions than the content they protect.

Thirdly, public benefit and access will seriously be harmed. It is conceivable that this treaty might hamper the Indian legislature's ability to pass statutes such as the Sports Broadcasting Signals (Mandatory Sharing with Prasar Bharati) Act, 2007, which mandate sharing of certain kinds of signals. Lawyers will claim that such statutes go against India's international obligations.

Differences between webcasting and broadcasting

To sum up, there are a large number of differences between broadcasting and webcasting.
Infrastructure: The expenditure required to establish the infrastructure for a webcasting unit is much less than that required for an equivalent (in terms of reach in terms of listeners). Even traditional broadcasting is not that expensive: fixed-frequency radio transmission kits have been known to cost as little as Rs. 50 (<http://news.bbc.co.uk/2/hi/south_asia/4735642.stm>. Thus, one of the biggest arguments for protection ('to recover investment') is taken away. The content producers' 'investment' is protected by copyright law.
Competition: Providing incentives to increase competition and hence public benefit is often a reason cited as a reason for introduction of a new property-like right. However, such incentives seem utterly redundant in the online market where becoming a webcasting organisation is trivial, and immense competition already exists.
Broadcasting vs. Uni- and Multicasting: The notion of 'broadcasting' does not exist in IPv6. The closest that a webcaster can come to broadcasting is 'multicasting' to a specific range of IP addresses. What one sees on the Web today is "unicasting", which is initiated by a request from the recipient and not by the webcaster.
Temporal limitations: Unlike traditional broadcasting (which does not include cable), content on demand is possible over the Web. By this, the temporal limitations faced by traditional broadcasting, which is ephemeral, are overcome. This opens up many possibilities that should not be hampered by creating an excessive legal regime (and that too a property regime) over webcasting.
Geographic limitations: While terrestrial broadcasting is limited in geographic scope (which satellite and cable-casting are less susceptible to), webcasting knows no geographic limitations. As long as an Internet connection is present, the content can be viewed anywhere. Additionally, granting a separate webcasting right will open up a jurisdicational can of worms.
Marginal costs of subscribers: While in terrestrial broadcasting, adding an additional receiver does not cost the broadcaster anything, in satellite television (direct-to-home), cable television and webcasting, each additional receiver means either additional infrastructure (cables and set-top boxes) or additional server load. In the case of webcasting, this marginal cost is small enough to ignore, especially given all the other reasons mentioned previously.

Conclusion

There are still a number of uncertainties surrounding the inclusion of webcasting in the Broadcast Treaty. Michael Nelson of the Internet Society points out that questions such as who the broadcaster is in a download grid, in distributed gaming, for webcasts of surveillance videos, etc., are unanswered. As the example of the download grid (a situation where the 'casting' is multipoint-to-point) shows, many Internet-specific scenarios have not been contemplated by the treaty negotiators. Situations which might soon be reality, such as peer-to-peer relaying of webcasts are also not contemplated, and the treaty would become a policy document preventing such technological innovations. Whether IPTV would be included within webcasting is also unclear. The WIPO chair in his informal paper noted, 'Finally, if after consideration of the options above (A/B) and possible other options, it will not in the present situation be possible to decide on the establishment of a new treaty, the SCCR should end these discussions through an express decision in order to avoid further spending of time, energy and resources to no avail. Such a decision could include a timetable for later revisiting and reconsidering the matter.' (SCCR/15/2 rev) SCCR should end these discussions which have gone on for more than a decade without any progress.

For more details visit https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-and-webcasting

RTI Application to Visvesvaraya Technological University

pranesh — 2011-08-18T05:01:46Z

The Centre for Internet and Society filed an RTI application to Visvesvaraya Technological University asking it to provide details about its curriculum design, and its tie-ups with various software vendors.

The grip software vendors have over courses in technology (at both the school and the university levels) is a matter for concern. Due to what can be termed institutional inertia, educational institutions often don't realise that alternatives exist in the form of FLOSS (Free/Libre/Open Source software), as proprietary software is entrenched in the system (and is sometimes the market leader in that tech sector). To further tighten their grip, software vendors enter into commercial deals with governments and universities in attempts to penetrate the crucial education sector. This often results in students being taught courses on how to use particular (usually proprietary) software instead of being taught standard technologies. In turn, this denies them the opportunity to learn the concepts behind the software effectively, and ties them to the particular software that they were taught. For software vendors, getting their products into the curricula is very important because the supply of students trained in particular software also affects the demand for that software.

Students should be taught technologies first and foremost, and these technologies should be taught via the vehicle of both free and proprietary software (this is much easier if the technology itself is an open technology). That would allow students the opportunity to understand different implementations of the same technology and make an informed decision as to what they wish to use. It would also offer them more opportunities and choices in their future careers. The importance of FLOSS in the education sector is highlighted in a guide brought out by the United Nations Development Programme's International Open Source Network.

Against this backdrop, when news reports appeared in the Hindu (19 November 2008) and the Deccan Herald (20 November 2008) about a curriculum tie-up between Microsoft and Visvesvaraya Technological University, we filed a Right to Information application to get more details about it. The response stated that this matter was still under discussion and no agreement had been signed.

To read the application, click here; to read the response, click here. You can download a scanned copy of the response here.

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This entry was originally posted on 30 March 2009 and was updated on 3 April 2009.

For more details visit https://cis-india.org/openness/blog-old/rti-application-on-microsoft-vtu-deal

Screening of Pixel Pirate II: Attack of the Astro Elvis Video Clone

pranesh — 2011-04-05T04:41:30Z

Artists Soda_Jerk will lead discussions after the screening of their narrative remix video Pixel Pirate II, a film that questions the current state of intellectual property laws (and is composed only of samples).

Soda_Jerk (Dan & Dominique Angeloro) are two Sydney-based artists working collaboratively in the areas of video, photomedia and installation. They work exclusively with found material, recombining fragments of film footage, audio samples and vintage image culture to create new works.

Their hour-long narrative remix video "Pixel Pirate II: Attack of the Astro Elvis Video Clone" (2002-06) is a critique of intellectual property law that is constructed from samples pirated from over 300 film and music sources. Think of it as a sci-fi/ biblical epic/ romance/ action movie that stars Elvis Presley, Moses, the Hulk, Michael Jackson, Jesus, Batman and the Ghostbusters. Since its 2006 launch at the Art Gallery of New South Wales, Sydney it has screened internationally in the Czech Republic, Germany, Scotland, the Netherlands, Mexico and India. Soda_Jerk will discuss the process and cultural context of their video remix practice and screen 'Pixel Pirate II' along with other excerpts from their work.

For more information about Soda_Jerk, and about Pixel Pirate II, please visit: http://www.sodajerk.com.au and http://www.pixelpirate2.com.

For more details visit https://cis-india.org/events/screening-of-pixel-pirate-ii-attack-of-the-astro-elvis-video-clone

Lecture by Eben Moglen and Mishi Choudhary

pranesh — 2011-08-23T02:55:59Z

The Software Freedom Law Center, National Law School, and the Centre for Internet and Society organised a lecture by Mishi Choudhary and Eben Moglen for students of NLS on Saturday, December 13, 2008.

Saturday, December 13, 2008 had Mishi Choudhary and Eben Moglen of the New York-based Software Freedom Law Center speaking to the students of the National Law School of India University in Nagarbhavi, Bangalore, in a talk organized by CIS.

Mishi Choudhary, who will head the Software Freedom Law Center in New Delhi, spoke on "Globalising Public Interest Law: The SFLC Model". She told the students about the importance of non-profit legal work as well as its viability as a career choice. She also laid out the background to the work that SFLC does, and traced a brief history of software patent cases

Eben Moglen chose to speak on "Who Killed Intellectual Property and Why We Did It?". He started off by talking of the interconnections between law and societal change: how law can't keep pace with the changes we see around us, and how law actually sometimes changes in the reverse direction, while trying to maintain the status quo.

This is not a new phenomenon, he noted, and that when law is responsive to anybody, it listens to the 'people of the past' more carefully than the 'people of the future'. This, he says, is compounded by the fact that the primary mode of change in the law is not legislation (since there is nothing legislators hate more than legislating), and that the better lawyers usually represent only those who can afford to pay them, hence resulting in systemic injustice. He emphasised that the clients of the SFLC, on the other hand, are people who create software worth billions of dollars, but who do not own it.

On that point of creation for the purpose of sharing and not owning, a student raised the question of why proprietary rights shouldn't exist in creations of the intellect. In response Mr. Moglen pointed out that while his personal opinions might be different, the Software Freedom Law Center does not seek to bring into dispute the concept of property rights in software, nor the fundamentals of patent law: it is merely concerned with the scope of patent law, and seeks a literal enforcement of patent law as it exists in most jurisdictions.

Another question that cropped up was on the economics of software creation and the anti-competitive nature of free software. To this, Mr. Moglen provided a brief summary of the tragedy of the anticommons by using land to be acquired for public works in the centre of a city as an example. In software, this problem is only exacerbated, he pointed out. Most physical creations over which patents are granted have something like 8 or 10 steps. Software code is different because it contains thousands of instructions. Even big companies face the anticommons problem; but they manage to evade it by cross-licensing agreements which results in efficient transactions for them since it involves no exchange of money whatsoever. Small companies are in a worse situation, since they don't have those kinds of patent portfolios to be able to enter into cross-licensing agreements, no matter how innovative they are. Thus, in effect, the system is rigged against them. This provides a partial answer to the antitrust question, he noted. Competition law is actual in favour of free software. The right to practise a trade or profession, and the right to speech get implicated in any case where a FLOSS-based company is hauled up before a court being accused of conspiring with other to take cost to zero.

Mr. Moglen further explained that when it comes to software, the problem of patenting is very different. A 20-year monopoly is more reasonable from the viewpoint of physical creations. Patent law, however doesn't tailor the rights that are granted by a patent. The problem starts right from the process of granting a patent. The job of a patent office being to apply the tests of non-obviousness, novelty and utility, most patent offices can do a reasonable job in most fields of technological endeavour, since there is a large body of innovation with which the proposed patent can be compared. Software, however, is a recent field with a large number of applications coming in all at once. While the patents that are sought might include claims on ideas and applications that existed in software in 1956, those aren't easy for the patent offices to dig up, since the field of software patents and software itself have not existed for the same length of time.

For more details visit https://cis-india.org/a2k/blogs/lecture-by-eben-moglen-mishi-choudhary

Lecture by Eben Moglen and Mishi Choudhary

pranesh — 2011-04-05T04:42:05Z

Software Freedom Law Center, National Law School of India University and Centre for Internet and Society jointly organize a lecture by Eben Moglen and Mishi Choudhary.

The Software Freedom Law Center (SFLC), National Law School of India University (NLSIU), and the Centre for Internet and Society (CIS) are organizing a lecture by Prof. Eben Moglen of Columbia University and Ms. Mishi Choudhary, head of the New Delhi branch of SFLC.

Prof. Moglen will be speaking on "Who Killed Intellectual Property and Why We Did It", and Ms. Choudhary will be speaking on "Globalising Public Interest Law: The SFLC Model".

Venue:
National Law School of India University,
Gnana Bharathi Main Road,
Nagarbhavi,
Bangalore
[map: http://bit.ly/nlsiu-map]

Date and Time:
Saturday, December 13, 2008
12:30-13:30

For more details visit https://cis-india.org/events/lecture-by-eben-moglen-and-mishi-choudhary

Workshop on Reforming the International ICT Standardization System

pranesh — 2011-08-23T02:56:30Z

On Day 4, the last day, of the Internet Governance Forum, a workshop was conducted by the Dynamic Coalition on Open Standards on the reforming the international ICT standardisation system. The panellists were Bob Jolliffe of Freedom to Innovate South Africa, Sunil Abraham of the Centre for Internet and Society, Ashish Gautam of IBM India, and Aslam Raffee, Chairperson of the Government IT Officers' Council, OSS Working Group, Republic of South Africa, who moderated the session.

Mr. Rafee, after introducing the panellists, laid out the parameters of the discussion. He noted that the discussion was not about "open standards" per se, but about the standardisation process.

Mr. Jolliffe noted that the main problems revolved around the question of legitimacy of the Standard Setting Organizations, which often arises from "standardisation by corporations" (a phrase coined by Martin Bryan), as shown by the representatives of the individual countries to the international bodies. For the international standardization process to acquire legitimacy, the national bodies need to do so first. A start can be made, Mr. Jolliffe noted, through simple steps like increase in stakeholder participation beyond vendors, full disclosure of institutional affiliations at the standardisation bodies, better streamlining of processes such as the fast-track system, and full and clear disclosures with regard to IP licensing terms would help in increasing accountability and legitimacy of standard setting organizations.

He also indicated that financial transparency, modernisation of processes (including remote participation), regulation of proportional influence of private interests, a code of best practices and innovation in patent searches, full interest disclosures, and clear display of IPR policies of committees would help in increasing the openness of standards.

Mr. Abraham chose to focus on the national standardization processes, and the lessons that can be learnt from those. He highlighted that the discussions around open standards were really discussions about standards followed by public institutions. He analogized the situation to private houses vs. the public road infrastructure, noting how the road infrastructure cannot be private. Ensuring that the public infrastructure was open to all, he said, was the important role played by the standardisation process. He went on to highlight the importance of open standards as a lever in the hands of governments which can be used to fix monopoly situations, as it was in the case of SCOSTA smart card standard, where the use of an open standard led to a drop in price from Rs.600 to Rs.30 and increased the number of vendors from 3 to 12. He then narrated a number of "stories" from India, Pakistan and Malaysia to show the various forms of weaknesses within the national standard setting processes. He further concluded that countries with weak institutions are the ones less likely to support open standards.

Mr. Abraham added the need to adopt common definitions of "open standards" and transparency of processes and encouragement of remote participation as suggestions for the standardization system.

Mr. Gautam from IBM India chose to talk about the standards principles that the company follows, and the need for reform of the standardization processes.

For more details visit https://cis-india.org/openness/blog-old/workshop-on-reforming-the-international-ict-standardization-system

Report on Open Standards for GISW2008

pranesh — 2009-01-05T06:52:54Z

In this report, Sunil Abraham lays out the importance and the policy implications of Open Standards.

[PDF copy]

Most computer users today remain “digitally colonised” (Bhattacharya, 2008) due to our unquestioning use of proprietary standards. As users of proprietary standards we usually forget that we lose the right to access our own files the moment the licence for the associated software expires. For example, if I were to store data, information or knowledge in .doc, .xls or .ppt format, my ability to read my own files expires the moment the licence for my copy of Microsoft Office expires.

Definition

Unlike the terms “free software” or “open source software”, the term “open standard” does not have a universally accepted definition. The free and open source software (FOSS) community largely believes that an open standard is:

[S]ubject to full public assessment and use without constraints [royalty-free] in a manner equally available to all parties; without any components or extensions that have dependencies on formats or protocols that do not meet the definition of an open standard themselves; free from legal or technical clauses that limit its utilisation by any party or in any business model; managed and further developed independently of any single vendor in a process open to the equal participation of competitors and third parties; available in multiple complete implementations by competing vendors, or as a complete implementation equally available to all parties (Greve, 2007).

The controversy

Proprietary software manufacturers, vendors and their lobbyists often provide a definition of open standards that is not in line with the above definition on two counts (Nah, 2006).

One, they do not think it is necessary for an open standard to be available on a royalty-free basis as long as it is available under a “reasonable and non-discriminatory” (RAND) licence. This means that there are some patents associated with the standard and the owners of the patents have agreed to license them under reasonable and non-discriminatory terms (W3C, 2002). One example is the audio format MP3, an ISO/IEC [International Organisation for Standardisation/International Electrotechnical Commission] standard where the associated patents are owned by Thomson Consumer Electronics and the Fraunhofer Society of Germany. A developer of a game with MP3 support would have to pay USD 2,500 as royalty for using the standard. While this may be reasonable in the United States (US), it is unthinkable for an entrepreneur from Bangladesh. Additionally, RAND licences are incompatible with most FOSS licensing requirements. Simon Phipps of Sun Microsystems says that FOSS “serves as the canary in the coalmine for the word ‘open’. Standards are truly open when they can be implemented without fear as free software in an open source community” (Phipps, 2007). RAND licences also retard the growth of FOSS, since they are patented in a few countries. Despite the fact that software is not patentable in most parts of the world, the makers of various distributions of GNU/Linux do not include reverse-engineered drivers, codecs, etc., in the official builds for fear of being sued. Only the large corporation-backed distributions of GNU/Linux can afford to pay the royalties needed to include patented software in the official builds (in this way enabling an enhanced out-of-the-box experience). This has the effect of slowing the adoption of GNU/Linux, as less experienced users using community-backed distributions do not have access to the wide variety of drivers and codecs that users of other operating systems do (Disposable, 2004). This vicious circle effectively ensures negligible market presence of smaller community-driven projects by artificial reduction of competition.

Two, proprietary software promoters do not believe that open standards should be “managed and further developed independently of any single vendor,” as the following examples will demonstrate. This is equally applicable to both new and existing standards.

Microsoft’s Office Open XML (OOXML) is a relatively new standard which the FOSS community sees as a redundant alternative to the existing Open Document Format (ODF). During the OOXML process, delegates were unhappy with the fact that many components were specific to Microsoft technology, amongst other issues. By the end of a fast-track process at the ISO, Microsoft stands accused of committee stuffing: that is, using its corporate social responsibility wing to coax non-governmental organisations to send form letters to national standards committees, and haranguing those who opposed OOXML. Of the twelve new national board members that joined ISO after the OOXML process started, ten voted “yes” in the first ballot (Weir, 2007). The European Commission, which has already fined Microsoft USD 2.57 billion for anti-competitive behaviour, is currently investigating the allegations of committee stuffing (Calore, 2007). Microsoft was able to use its financial muscle and monopoly to fast-track the standard and get it approved. In this way it has managed to subvert the participatory nature of a standards-setting organisation. So even though Microsoft is ostensibly giving up control of its primary file format to the ISO, it still exerts enormous influence over the future of the standard.

HTML, on the other hand, is a relatively old standard which was initially promoted by the Internet Engineering Task Force (IETF), an international community of techies. However, in 2002, seven years after the birth of HTML 2.0, the US Department of Justice alleged that Microsoft used the strategy of “embrace, extend, and extinguish” (US DoJ, 1999) in an attempt to create a monopoly among web browsers. It said that Microsoft used its dominance in the desktop operating system market to achieve dominance in the web-authoring tool and browser market by introducing proprietary extensions to the HTML standard (Festa, 2002). In other words, financial and market muscle have been employed by proprietary software companies – in these instances, Microsoft – to hijack open standards.

The importance

There are many technical, social and ethical reasons for the adoption and use of open standards. Some of the reasons that should concern governments and other organisations utilising public money – such as multilaterals, bilaterals, civil society organisations, research organisations and educational institutions – are listed below.

Innovation/competitiveness: Open standards are the bases of most technological innovations, the best example of which would be the internet itself (Raymond, 2000). The building blocks of the internet and associated services like the world wide web are based on open standards such as TCP/IP, HTTP, HTML, CSS, XML, POP3 and SMTP. Open standards create a level playing field that ensures greater competition between large and small, local and foreign, and new and old companies, resulting in innovative products and services. Instant messaging, voice over internet protocol (VoIP), wikis, blogging, file-sharing and many other applications with large-scale global adoption were invented by individuals and small and medium enterprises, and not by multinational corporations.
Greater interoperability: Open standards ensure the ubiquity of the internet experience by allowing different devices to interoperate seamlessly. It is only due to open standards that consumers are able to use products and services from competing vendors interchangeably and simultaneously in a seamless fashion, without having to learn additional skills or acquire converters. For instance, the mail standard IMAP can be used from a variety of operating systems (Mac, Linux and Windows), mail clients (Evolution, Thunderbird, Outlook Express) and web-based mail clients. Email would be a completely different experience if we were not able to use our friends’ computers, our mobile phones, or a cybercafé to check our mail.
Customer autonomy: Open standards also empower consumers and transform them into co-creators or “prosumers” (Toffler, 1980). Open standards prevent vendor lock-in by ensuring that the customer is able to shift easily from one product or service provider to another without significant efforts or costs resulting from migration.
Reduced cost: Open standards eliminate patent rents, resulting in a reduction of total cost of ownership. This helps civil society develop products and services for the poor.
Reduced obsolescence: Software companies can leverage their clients’ dependence on proprietary standards to engineer obsolescence into their products and force their clients to keep upgrading to newer versions of software. Open standards ensure that civil society, governments and others can continue to use old hardware and software, which can be quite handy for sectors that are strapped for financial resources.
Accessibility: Operating system-level accessibility infrastructure such as magnifiers, screen readers and text-to-voice engines require compliance to open standards. Open standards therefore ensure greater access by people with disabilities, the elderly, and neo-literate and illiterate users. Examples include the US government’s Section 508 standards, and the World Wide Web Consortium’s (W3C) WAI-AA standards.
Free access to the state: Open standards enable access without forcing citizens to purchase or pirate software in order to interact with the state. This is critical given the right to information and the freedom of information legislations being enacted and implemented in many countries these days.
Privacy/security: Open standards enable the citizen to examine communications between personal and state-controlled devices and networks. For example, open standards allow users to see whether data from their media player and browser history are being transmitted along to government servers when they file their tax returns. Open standards also help prevent corporate surveillance.
Data longevity and archiving: Open standards ensure that the expiry of software licences does not prevent the state from accessing its own information and data. They also ensure that knowledge that has been passed on to our generation, and the knowledge generated by our generation, is safely transmitted to all generations to come.
Media monitoring: Open standards ensure that the voluntary sector, media monitoring services and public archives can keep track of the ever-increasing supply of text, audio, video and multimedia generated by the global news, entertainment and gaming industries. In democracies, watchdogs should be permitted to reverse-engineer proprietary standards and archive critical ephemeral media in open standards.

Policy implications

Corporations have a right to sell products based on proprietary standards just as consumers have a right to choose between products that use open standards, proprietary standards, or even a combination of such standards. Governments, however, have a responsibility to use open standards, especially for interactions with the public and where the data handled has a direct impact on democratic values and quality of citizenship. In developing countries, governments have greater responsibility because most often they account for over 50% of the revenues of proprietary software vendors. Therefore, by opting for open standards, governments can correct an imbalanced market situation without needing any additional resources. Unfortunately, many governments lack the expertise to counter the campaigns of fear, uncertainty and doubt unleashed by proprietary standards lobbyists with unlimited expense accounts.

Most governments from the developing world do not participate in international standard-setting bodies. On the other hand, proprietary software lobbyists like the Business Software Alliance (BSA) and Comptia attend all national meetings on standards. This has forced many governments to shun these forums and exacerbate the situation by creating more (totally new) standards. Therefore, governments need the support of academic and civil society organisations in order to protect the interests of the citizen. For example, the Indian Institute of Technology in Kanpur (IIT-K) helped the government of India develop the open standard Smart Card Operating System for Transport Applications (SCOSTA) for smart card-based driving licences and vehicle registration documents. Proprietary vendors tried to jettison the move by saying that the standard was technically not feasible. IIT-K developed a reference implementation on FOSS to belie the vendor's claims. As a consequence, the government of India was able to increase the number of empanelled smart-card vendors from four to fifteen and reduce the price of a smart card by around USD 7 each (UNDP, 2007a). This will hopefully result in enormous savings during the implementation of a national multi-purpose identification card in India.

In some instances, proprietary standards are technically superior or more universally supported in comparison to open standards. In such cases the government may be forced to adopt proprietary and de facto standards in the short and medium term. But for long-term technical, financial and societal benefits, many governments across the world today are moving towards open standards. The most common policy instruments for implementation of open standards policy are government interoperability frameworks (GIFs). Governments that have published GIFs include the United Kingdom, Denmark, Brazil, Canada, the European Union, Malaysia, Hong Kong, Malaysia, New Zealand, and Australia (UNDP, 2007b).

While challenges to the complete adoption of open standards in the public sector and civil society remain, one thing is certain: the global march towards openness, though slow, is irreversible and inevitable.

References

Bhattacharya, J. (2008) Technology Standards: A Route to Digital Colonization. Open Source, Open Standards and Technological Sovereignty. .
Available at:
knowledge.oscc.org.my/practice-areas/‌government‌/oss-seminar-putrajaya-2008/technology-standards-a-route-to-digital/at_download/file

Calore, M. (2007) Microsoft Allegedly Bullies and Bribes to Make Office an International Standard. Wired, 31 August.
Available at: www.wired.com/software/coolapps/news/2007/08/ooxml_vote

Disposable (2004) Ubuntu multimedia HOWTO.
Available at: www.oldskoolphreak.com/tfiles/‌hack/‌ubuntu.txt

Festa, P. (2002) W3C members: Do as we say, not as we do. CNET News, 5 September.
Available at: news.cnet.com/2100-1023-956778.html

Greve, G. (2007) An emerging understanding of open standards.
.
Available at: www.fsfe.org/‌fellows‌/greve/freedom_bits/an_emerging_understanding_of_open_standards

Nah, S.H. (2006) FOSS Open Standards Primer. New Delhi: UNDP-APDIP.
Available at: www.iosn.net/open-standards/foss-open-standards-primer/foss-openstds-withnocover.pdf

Phipps, S. (2007) Roman Canaries..
Available at: blogs.sun.com/webmink/entry/‌roman_canaries‌

Raymond, E.S. (2000) The Magic Cauldron.
Available at: www.catb.org/~esr/writings/‌cathedral-‌bazaar/‌magic-‌cauldron/‌index.html

Toffler, A. (1980) The Third Wave. New York: Bantam.

UNDP (United Nations Development Programme) (2007a) e-Government Interoperability: A Review of Government Interoperability Frameworks in Selected Countries.
Available at: www.apdip.net/projects/gif/gifeprimer

UNDP (2007b) e-Government Interoperability: Guide.
Available at: www.apdip.net/projects/gif/GIF-Guide.pdf

US DoJ (Department of Justice) (1999) Proposed Findings of Fact – Revised.
Available at: www.usdoj.gov/‌atr/‌cases/‌f2600/v-a.pdf

W3C (World Wide Web Consortium) (2002) Current patent practice.
Available at: www.w3.org/TR/patent-practice#def-RAND

Weir, R. (2007) How to hack ISO.
Available at: www.robweir.com/blog/2007/09/how-to-hack-iso.html

For more details visit https://cis-india.org/openness/publications/standards/report-on-open-standards-for-gisw2008

Agreement on Procurement

pranesh — 2008-12-08T06:08:19Z

On December 6, 2008, at the closing of the third Internet Governance Forum in Hyderabad, India, the Dynamic Coalition on Open Standards (DCOS) released an agreement entitled the "Dynamic Coalition on Open Standards (DCOS) Agreement on Procurement in Support of Interoperability and Open Standards".

Dynamic Coalition on Open Standards (DCOS) Agreement on Procurement in Support of Interoperability and Open Standards

Third Internet Governance Forum (IGF)

Hyderabad, India

6 December 2008

Preamble

The Contracting Parties,

Recalling the World Summit on the Information Society (WSIS) Declaration of Principles which states that "[i]nternational standards aim to create an environment where consumers can access services worldwide regardless of underlying technology,"

Recognizing that standards are increasingly global concerns, involving goods and services that move in international trade across borders,

Aware that current competition and legal remedies may not be enough to solve the inherent tensions that routinely arise in the realm of patents and standards,

Desirous of encouraging procurement policies that require evaluation of multiple, competing products based on open ICT standards in order to ensure a level playing field for vendors, governments and consumers,

Cognizant of the need for procurement policies for software programs that are predicated upon an open standard,

Open Standards

Given the multiplicity of interpretations of the term open standards, for the purpose of this document we endorse as an acceptable definition the position contained in the European Union's draft European Interoperability Framework:

1) The open standard is adopted and will be maintained by a not-for-profit organisation, and its ongoing development occurs on the basis of an open decision-making procedure available to all interested parties (consensus or majority decision etc.).
2) The open standard has been published and the standard specification document is available either freely or at a nominal charge. It must be permissible to all to copy, distribute and use it for no fee or at a nominal fee.
3) The intellectual property - i.e. patents possibly present - of (parts of) the open standard is made irrevocably available on a royalty free basis.
4) There are no constraints on the re-use of the standard.

(IDABC EIF v2 draft (http://ec.europa.eu/idabc/en/document/7728))

As noted in the European Interoperability Framework cited above, open standards or technical specifications must allow all interested parties to implement the standards and to compete on quality and price. The goal is to have a competitive and innovative industry, not to protect market shares by raising obstacles to newcomers. Thus, open standards or technical specifications must be possible to implement in software distributed under the most commonly used open source licences, with no limitations arising from IPR associated with the standard in question.

In addition to the above requirements, it is recommended that there should be multiple independent implementations of the standard.

Governments, publicly funded and non-profit institutions agree to implement the following policies.

Governments, publicly funded and non-profit institutions

Hereby agree to the following measures in order to promote interoperability and accessibility through the use of open standards.

1. To create a policy statement on interoperability and open standards, to be available to employees and the public.

2. By 2010, procurement of all software should be vendor neutral and implement open standards

3. By 2010, tender specifications for hardware (including peripherals and mobile devices) should require that manufacturers provide the driver and interface information necessary to work with a reasonable range of proprietary and free operating system platforms.

4. By 2010, all public facing web pages should conform to W3C standards for structure, presentation and accessibility.

5. By 2010, tenders for the supply of web based services (for example, online reservations) must specify the requirements of point 4.

6. By 2010, agencies should implement policies regarding the storage and archiving of government data and records to ensure that data is stored in open data and document formats.

Signed by:

Aslam Raffee, Government IT Officers' Council, OSS Working Group, Republic of South Africa

Association for Progressive Communications (APC)

Bob Jolliffe, Freedom To Innovate, South Africa

Centre for Internet and Society, India

Hamid Rabiee, Sharif University of Technology, Iran

Knowledge Ecology International

Moving Republic, India

Shuttleworth Foundation, South Africa

Swathanthra Malayalam Computing, India

Endorsed by:

Bangladesh Friendship Education Society, Bangladesh

Indian Social Action Forum (INSAF), India

Foundation for Media Alternatives, Philippines

OpenForum Europe

For more details visit https://cis-india.org/openness/publications/standards/dynamic-coalition-on-open-standards-dcos-agreement-on-procurement

Report on Open Standards for GISW 2008

pranesh — 2011-08-23T02:57:53Z

A report on Open Standards prepared by Sunil Abraham, for the Global Information Society Watch 2008. As on their site, GISWatch focuses on monitoring progress made towards implementing the World Summit on the Information Society (WSIS) action agenda and other international and national commitments related to information and communications. It also provides analytical overviews of institutions involved in implementation.

For more details visit https://cis-india.org/publications-automated/cis/sunil/Open-Standards-GISW-2008.pdf