Centre for Internet and Society

Report: Global Intellectual Property Convention 2015

rohini — 2015-06-21T13:36:18Z

The Global Intellectual Property Convention was held in January 2015 in Mumbai. Interns Anna Liz Thomas and Nayana Dasgupta assisted with the making of this report.

Conference Schedule [PDF]

National IPR Policy Recommendations [PDF]

Harshvardhan Lale, Price Waterhouse Coopers (PWC)

Digital piracy in India

Special 301 Report:

India is second among 10 countries on the Priority Watch List of the United States Trade Representatives (USTR), according to the Special 301 Report published in May 2014. Once every two years, the US, through its trade representatives releases the Special 301 Report, which deals with piracy across the globe, especially in the places where US business interests lie. Though the police conduct at least 25 raids every week across India, it has made no difference to the rate of piracy in the country. When a couple of software publishers entered India, they were very confident that none of their products, in any shape and form, could be pirated in India. I took one of the heads of Compliance to the [pirated goods] market where we got a product worth Rs. 5 crores for Rs. 100.

The Special 301 Report also suggests that none of the previous governments or government bodies in India have taken any initiative whatsoever to ensure that even the products used in the government offices are not pirated. According to US government agencies (2013), there were serious difficulties in attaining constructive engagement on IPR issues with the UPA government.

Video piracy:

India is rated as one of the countries with the highest incidence of video piracy by MPDA, well above Bulgaria, Costa Rica, Greece, and Peru. We [supporters of stricter IP] are now trying to get the digital rights management provision in the [Indian] Copyright Law [redacted], but that is still in the future.

Broadcast piracy:

A few Indian television channels are facing this problem because of demand [to view their content] from Indians living abroad.

Online piracy:

The Internet has been an enabler for the movie and music industry. Many cinema and music publishers have their own channels, say, on YouTube. Although content cannot be directly downloaded from YouTube, "YouTube grabber" software enables piracy.

Surreptitious recording of public performances on mobile phones and recording of cinema screenings using camcorders are other instances of piracy. These recordings are later circulated on the Internet.

Software piracy:

Recently, one automobile manufacturer had to recall a set of its vehicles from the Indian market. Investigations revealed that one of the automobile components, which was procured from a supplier, was created using pirated software. There is a fair chance that a pirated product won't provide all the functionalities that you might otherwise get, or that some APIs (Application Programming Interface) may be missing, which may lead to erroneous or inaccurate design.

Counterfeiting, online piracy, end user piracy, client overuse, and hard disk loadings [sideloading] amount to most of the software piracy in India. One of the software companies for whom we [PWC] are doing an audit - it happens to be one of the leading information technology companies in India - we identified a gap of 20 million [US] dollars for one software publisher in their India operations. Whether this was deliberate or not can be debated, but it is a serious problem.

A survey on software piracy conducted across the globe by Business Software Alliance indicates that India has improved from bring ranked tenth to twelveth. Estimated use of unlicensed software stands at 43% globally; India is at 60% [as per the latest figures]. In 2010, India was at 64%, in 2011 at 63%. There is a recent case of a patent getting rejected because the organisation that had applied for it had used unlicensed software for designing the product. Another serious impact with regard to RnD and patents is on privacy. [Pirated software could contain] malware with the potential of stealing information].

Some of the major problems are that organisations are not aware of the implications of using pirated software and media, leading to potential non-compliances. [Owing to] lack of knowledge of licensing, the different software licenses, software publishers not using a standard format of licensing, the end consumer does not understand what licensing is. In the license terms, there is a "Right to Audit", which gives every software publisher the right to evaluate your organisation at any time.

Corporates are trying to align themselves with consultants like us [PWC] to support the industry in curbing piracy. The Make in India program has a dedicated section on intellectual property (IP). There is a special focus on intellectual property rights (IPR) for the manufacturing sector, which is directly affected by digitalisation. We hope that with the new government, some change will happen in the software piracy space.

Omesh Puri, Senior Associate, LexOrbis

Effective Copyright Enforcement in the Digital Era: Relevance of John Doe Orders

Copyright enforcement challenges in the digital world:

Rapid growth in digital technology presents enormous opportunities for copyright owners as it expands their customer base, reduces distribution costs, and makes territorial boundaries almost a nullity. The disadvantage is that, unless regulated properly, it exposes copyrighted work to threat of blatant infringement spread across different media including the Internet. The main problem before copyright owners is ever-growing online piracy. The Internet grants anonymity to copyright infringers. There can be a number of occasions where copyright owners are not able to ascertain the infringer's identity even after spending considerable time or money. In such cases, a John Doe order comes as an effective enforcement tool.

The name John Doe is used to identify unknown and nameless infringers or defendants who have allegedly committed some wrong, but whose identity is unknown to the plaintiff. To avoid delay and injustice, the court names the defendant John Doe, until such time as the defendant is identified. The orders passed by courts in such cases are known as John Doe orders, and is an internationally accepted practice to enforce IPR, especially with respect to copyright and trademark. This is prevalent in various jurisdictions including the US, Canada, Australia and New Zealand. This order has also been formalised in the statutory provision of these countries. It is an ex-parte interim injunction with the added benefit that the plaintiff is given the liberty to add to the array of parties who would be identified after the filing of the suit. These orders are an exception to the general rule which requires the defendant to be identified prior to the filing of the suit. The ex-parte interim injunction then applies even against the later defendants. It is also against the defendants whose identities are unknown during the filing of the suit. The orders enjoin unknown defendants from engaging in any infringing activity.

Why are John Doe orders so popular?

These orders allow for immediate action in case any instance of infringement comes to light. As the copyright owners only need to serve a copy of the order to the erring parties instead of filing of a new suit. By filing a single action, and after obtaining a single John Doe order, the plaintiff would be able to cover all alleged and even potential infringements and violators, which would ultimately save a lot of time and costs. The plaintiff would not be required to file separate court actions before different courts in India. Once they obtain this order, it will block all unknown defendants and infringers. It is also able to reduce online piracy by mandating that internet service providers block access to infringing websites.

Some of the important John Does copyright injunctions passed in India:

The first John Doe order was passed in the famous case of Ten Sports entitled Taj Television v. Rajan Mandal. The plaintiff, Taj Television, a Dubai-based company, owned and operated an exclusive sports channel by the name Ten Sports. They had acquired the exclusive rights to broadcast the 2002 FIFA World Cup. They entered into agreements with various cable operators for transmission of the channel. However, many unlicensed cable operators started displaying Ten Sports without any permission or authorisation from Taj Television, which then instituted a suit against named and unnamed cable operators. In 2002, the Delhi High Court passed a pathbreaking order which stopped the unauthorised broadcast of FIFA World Cup matches.

The Indian Court has specifically held that such orders may be enforced against persons whose identities are unknown at the time of instituting the suit.

Whose identities fall within the scope of action?

So long as the litigating finger is directed at an unknown person, the inability to identify him by name is a mere misnomer. The principle of litigating finger was affirmed in this case. After this there have been a series of John Doe orders. However it is only in recent times that the Indian Judiciary has started granting these orders on a regular basis, especially for blocking websites. In another case in 2014, Star India Pvt. Ltd. vs. Haneeth Ujwal, the plaintiff was one of the leading broadcasters in India. They had acquired the exclusive broadcasting rights, which includes television, mobile, Internet or on-demand rights with respect to the 2014 India vs. England Test Series. Star India filed the suit against websites, many of which were unidentifiable in nature or the owners could not be located. They were showing these cricket matches live without the permission of Star India. The websites' viewers could either view the ad-supported free version or the video-on-demand or pay-per-view subscription-enabled version. The availability of this content is supported by advertisements found on these websites.

How could the exclusive rights of the plaintiff be protected, and what can be the appropriate remedy?

Should the websites be blocked completely or only the specific URL providing access to the infringing content? The court held that both known and unknown defendants were liable for infringement as there was no remedy available to the plaintiff other than blocking the entire website. Blocking URLs was considered to be insufficient remedy by the court because, in its opinion, the website owners could easily change the specified URL by merely one character to circumvent the John Doe order passed by the Court.

Challenges:

While it has become routine to seek John Doe copyright injunctions before every big movie release or any major sporting event, many claim that they have largely remained unsuccessful in checking and controlling small street pirates. Lack of police cooperation may also render these orders unenforceable. There is another dispute going on whether these orders should be limited to entire websites or specific URLs. The Delhi HC has previously granted orders to extend the inclusion of these orders on the entire website. However, there is another opinion by Madras HC which said that these orders would be limited to specific URLs. In the absence of specific judicial guidelines, there is no clarity on the scope of these orders or under what circumstances these may be granted. There is a risk of misuse and improper implementation of these orders.

James Martin, Director, Fieldfisher

Online Infringement In the European Union

(Recent Court Rulings in the European Union Regarding Online Copyright Infringement and Database Rights)

The Svensson case:

The Court of Justice of the European Union (CJEU) ruled that the owner of a website may use hyperlinks to redirect Internet users to protected works available on other websites without the authorisation of the copyright holder of the linked website, provided that the linked website is freely available, that is, it can be accessed by anyone on the Internet.

The Retriever Sverige website operated to provide clickable links to articles published by other websites on the internet. The claimants were journalists who wrote articles for the Goteborgs-Posten website, and those articles were being linked by the Retriever Sverige website. The claimants argued that the Retriever Sverige hyperlink constituted an infringement of the claimant's copyright by making a communication to the public without the author's permission and they alleged that this was contrary to Article 3 of the Information Society Services Directive, commonly known as the InfoSoc Directive, which is the European Directive that harmonises copyrights across the 28 member states of the EU within the Information Society. The case made its way to the Swedish Court of Appeal which stayed the proceedings pending references to four questions to the CJEU.

1. If anyone other than the holder of copyright in a certain work supplies a clickable link to the work on his website, does that constitute communication to the public within the meaning of Article 3(1) of the InfoSoc Directive?

2. Is the assessment under Q1 affected if the work which the link refers is on a website on the Internet, which can be accessed by anyone without restrictions or if access is restricted in some way?

3. When making the assessment under Q1, should any distinction be drawn between a case where the work, after the user has clicked on the link, is shown on another website and one where the work, after the user has clicked on the link, is shown in such a way as to give the impression that the content is appearing on the same website, in other words, framing the content.

4. Is is possible for a [an EU] Member State to give wider protection to the author's exclusive rights by enabling communication to the public to cover a greater range of acts than provided for in Art. 3(1) of the Info Soc Directive?

In answer to the first question, the Court of Justice determined that "communication to the public " requires both a "communication" and a "public". The hyperlinks were determined to be making available, and therefore, they were an act of communication. However, there is a sting in the tail, because the Court of Justice held that the public must be a new public, and the communication must be directed to a new public. A public that wasn't taken into account by the copyright holders when they first authorised their initial communication to the public. In the second stanza for Svensson, the public targeted by the journalists' original articles consisted of all potential visitors to the Goteborgs-Posten website, which was unrestricted. Therefore they could be freely used and read by any Internet user. Consequently the links provided by the Retriever Sverige website were not to a new public and there was no need to obtain the author's consent.

In response to the second question, the situation would be different if the link allowed users to bypass restrictions designed to limit access to the public such as a paywall as can be found on The Times London websites, the Wall Street Journal websites and many others. Such users were not taken into account by the original copyright holders when the initial communication was authorised. So those people would constitute a new public.

Regarding the third question, the framing, the Court of Justice unusually held that it was irrelevant. The Internet user who clicks on a hyperlink is given the impression that the link is appearing on the site that contains the link, in other words, framing somebody else's content that is already freely available on the internet on your own website is absolutely fine, and there are obviously issues that arise out of that concerning advertising revenue streams that some people have on their websites where they are effectively making money by putting content freely on the internet by having advertising revenue surrounding their content. But of course if somebody can freely embed that content on their website, those adverts aren't necessarily seen. But as far as the European Court of Justice is concerned in the context of copyright, this is perfectly acceptable, and this applies across all 28 EU Member States.

In answering the fourth question, the CJEU held that member states do not have the right to give wider protection to copyright holders by widening the concept of "communication to the public" from that which is given in the InfoSoc Directive, as this would otherwise give rise to legislative differences between member states contrary to the purposes of the directive.

Bestwater ruling:

The Bestwater case reconfirmed the liberal approach that the Court of Justice takes towards embedding copyright material on a third party website. The judgement has been stayed pending the outcome of the decision handed down in the Svensonn case. And the CJEU has ruled that unless an original publisher uses technical access restrictions, then embedded content does not reach a new public. The effect of this judgement, combined with the Svensonn judgement is likely to lead to more restrictive publishing practices within the EU. Copyright holders will seek to avoid free riders taking advantage of the loophole that the court seems to have legitimised. So to provide background,

The Bestwater case was referred to the Court of Justice by the German Federal Court of Justice. It deals with a promotional video about water pollution that was produced by Bestwater International, a company that makes water filters. The film was originally published by Bestwater on its own company website and later uploaded to YouTube, allegedly without the permission or knowledge of Bestwater. The defendants were competitors of Bestwater, and they embedded the video on their websites, with the frames pointing to the YouTube copy. Now Bestwater objected to this use and sought an injunction against the two representatives of the rival company from the German Court. Bestwater's position was that the video was protected by copyright and that the exclusive rights to use the film belonged to Bestwater. So the German court referred the case to the CJEU asking whether the embedding of content of a third-party website on one's own website constitutes a communication to the public within the meaning of Article 3(1) of the InfoSoc Directive.

After the Svensonn decision, the Court of Justice felt that it had already put an end to the debate regarding content on the Internet and it reverted to the German Court suggesting that the latter should withdraw its submission. In other words, saying that they did not want give an answer, saying that they had already answered it. The German Court insisted on a decision, one of the main reasons apparently being that in the Bestwater case, the YouTube video which the defendants were linking to and embedding on their website was itself a copyright violation. Nevertheless, in delivering its decision the CJEU followed the same rationale as in Svensonn and held that embedding content from another website does not amount to communication to the public if the uploader did not restrict access to the content and communicated it to the entire web community. There was no new public accessing the Bestwater video when it was embedded on the defendant's website, because when the video was uploaded on YouTube, whether lawfully or unlawfully, it was intended to be accessed by all who have access to the Internet. So this ruling somewhat cast doubt on the technical and economic understanding of modern media publication because the CJEU's position seems to be that the Internet is a medium rather than a mere technology. In other words, by analogy, a website does not compare to a particular magazine, newspaper, or a particular TV channel, but print media, TV in general, i.e, the relevant audience being all those who have access to magazines and newspapers rather than access to a particular newspaper, and all those who have access to TVs rather than a specific channel. So from a purely economic perspective these decisions raise concerns as they open up numerous possibilities to take advantage of copyright holders and content of other parties on the Internet. Based on these decisions, it's now possible to use written content, images or other videos that are hosted on another website for one's own website simply by embedding them. Apart from using somebody else's Internet bandwidth (which wasn't addressed by the CJEU at all), the CJEU in these copyright cases haven't taken account that the embedded content is actually taken out of its original context, and the advertisements displayed on the original website alongside the uploaded content may not appear on the embedded website, and the embedder may therefore spoil an important source of revenue for the copyright owner and use third-party copyright content for its own economic benefit. The most obvious response to these decisions will be that copyright owners will need to protect their content by implementing paywalls or other restrictive measures from the outset.

Another decision that the ECJ handed down involved the low-cost European Airline, RyanAir. This has been a long running dispute with various third parties, but one third party in particular, which accessed content on the RyanAir website to enable the sale of RyanAir flights and details about RyanAir time tables and schedules available on that third-party website, and interestingly, one thing that the Court of Justice raised in that decision is that it may be possible for owners of content to bind third parties in contract, but obviously you need to ensure that you are binding that third party in contract by accessing the website so that even if you cannot sue them for copyright infringement, you may be able to sue them for breach of contract for accessing your content and placing it on their website.

Database rights (AutoTrack v. GasPedaal)

The Court of Justice ruled in 2014 that the use of a meta-search engine can, in certain circumstances, constitute re-utilisation of the contents of the database in the meaning of Article 7(2)(b) of the Database Directive.

Database rights is an unusual concept, very newly come into the EU, and they provide protection above and beyond copyright protection. You don't necessarily need to have original content in a database, it's really protecting the investment an individual makes in actually producing the database, and that investment can be assessed on a qualitative or quantitative basis.

The Database Directive introduced the bespoke new form of legal protection. It is commonly referred to as the sui generis right . Article 7(1) in particular provides a "right for the maker of a database which shows that there has been qualitatively and/ or quantitatively a substantial investment in either obtaining, verification or presentation of the content to prevent extraction and/or re-utilisation of the whole or of a substantial part, evaluated quantitatively and/or qualitatively, of the contents of that database". Now for this purpose, Article 7(2)(b) provides that "re-utilisation means any form of making available to the public of all or a substantial part of the contents of a database by the distribution of copies, by renting, by online, or other forms of transmission". Article 7(5) provides that "the repeated and systematic extraction and/or re-utilisation of insubstantial parts of the contents of the database implying acts which conflict with a normal exploitation of that database or which unreasonably prejudice the legitimate interests of the maker of the database shall not be permitted."

The recitals to the Directive also back this up. So recital 42 of the Directive provides for "The right to prevent extraction and/or re-utilization related to acts by the user which go beyond his legitimate rights and thereby harm the investment". "The right to prohibit extraction and or re-utilization of all or a substantial part of the contents of a database relates not only to the manufacture of a parasitical competing product but also to any user who, through his acts, causes significant qualitative or quantitative detriment to the investment".

Turning to the facts of this case, Wegener operated a website called AutoTrack which carried car sale advertisements updated daily of to a 190,000 to 200,000 second hand cars of which around 40,000 were to be found on the AutoTrack website. Now Innoweb operated an online car advertisement website called GasPedaal. Rather than having its own database, it used a dedicated meta-search engine which then searched third party websites including AutoTrack's, using those websites to obtain results. So when a user typed in search terms on the GasPedaal website, the site's search engine would translate the relevant command into a language that could be understood by the AutoTrack web search engine. The AutoTrack search engine would then find any relevant advertisements and make them available on the GasPedaal search engine, which would then sort and collate those results from other dedicated search engines on other websites as well. The GasPedaal search engine would then note where more than one site produced the same advertisement and then made a single search result of those, presenting the user with links to the multiple sources. For each search performed, the GasPedaal search engine only returned results representing a small number of the advertisements on the AutoTrack site, but that is because it was only returning results that matched the relevant search terms given by the Internet user. Now Wegener successfully sued Innoweb for infringement of its database right. Innoweb appealed and the Hague Court of Appeal stayed the proceedings pending reference to the CJEU for a ruling on nine questions. The Court of Justice did not consider it necessary to consider all the nine questions. It ruled that it would be an infringement to the database right to use the meta-search engine in circumstances such as that involved in such proceedings. Under Article 7(1), an operator who makes available on the internet a dedicated meta-search engine such as GasPedaal re-utilises the whole or substantial part of the contents of a protected database, when that database's meta-search engine:

1) provides the end user with a search form which essentially offers the same range of functionality as the search form on the original database site.

2) where it translates queries from end users into the search engine for the database site in real time so that all the information on that database is searched through.

3) where it presents the results to the end user using a format of the website grouping duplications together into a single block item in an order that reflects the criteria comparable to those used by the search engine of the database site concerned for presenting results.

A dedicated meta-search engine is different from a general search engine based on an algorithm (like Google), primarily because a meta-search engine does not have its own data itself. It makes use of search engines of third party websites by transferring the queries from its users to the other search engines having first translated them into the relevant format required. It therefore offers the public a service where it searches the entire contents of the third-party databases or part of them in real time.

So Article 7(2)(b) has been broadly drafted to include "any other form of making available". The EUCJ attributed a broad meaning to the concept of reutilisation in its case law focusing on the objective of the database right which is to stimulate investment in data storage and processing systems. So in light of this objective, the re-utilisation has been construed as referring to any unauthorised act of making available to the public the results of the database maker's investment. Accordingly, in this case, it included any distribution to the public of the contents of the database regardless of the nature and form of the process used. When a website operator makes a dedicated meta-search engine available on the Internet, it does more than just point out the third-party databases that exist that a user can go to and consult. It gives the end user the means of searching all that data in most third-party databases without even visiting those third party databases' websites and akin to the Svensson and Bestwater case, this might mean that advertisers might stop advertising on the original third-party's site and might start placing advertisements on the meta-search engine's site. Now in this case we are looking at database rights, the EUCJ considered this dedicated meta-search engine to be close to a parasitical competing product. But it made a reference to the fact that this wording exists in Recital 42 of the Preamble of the Database Directive. The legislation is different, so this is why it has reached a different result, but still, it leads to a conflicting approach. So the Court of Justice held that the meta-search engine sites are close to being parasitical competing products and they've gone on to explain the fact that they resemble databases even though they themselves do not contain databases. And therefore in this case, and in similar cases, operators of such search engines would be making available to contents of third party websites within the meaning of Article 7(2)(b).

What are the effects of this judgement?

By bypassing the homepage and most other pages of the site that actually contain the database, meta-search engines can divert hits, and potentially advertising revenues. Operators of websites that scrape data from third parties and enable those third party sites to be searched, and by doing so thereby risks diverting advertising revenue may therefore need to review their technical business model in light of this judgement.

Chaitanya Prasad, Controller General of Patents, Designs & Trade Marks, India

In India, patents, trademarks, designs, and geographical indications are administered by the Controller General of Patents, Designs and Trademarks. We have offices in New Delhi, Mumbai, Chennai, Kolkata and Ahmedabad. We have a Geographical Indications Registry located in Chennai as well as an Institute of Intellectual Property Management in Nagpur.

There are other IPR laws administered by different ministries. The Ministry of Human Resource Development looks after the Copyright laws. The Department of Information Technology looks after the Semiconductors, Integrated Circuits, and Layouts and Designs Act.

The number of patents in force in India in 2013 was 41,103 out of which 82 per cent were owned by non-resident Indians. The average age of patents in force in India is around 11.6 years, incidentally the second- highest in the world. The reason could be that India is a large market and companies want to exploit these patents and keep them in force.

National IP Trends

The filing of patents in India has gone up from around 35,000 to around 43,000 from 2007 to 2014, and the resident filing has gone up from 17% to 25%. In the year 2011-12, 11,000 patent applications were examined while in 2013-14, the number was 18,000. On a comparative basis, in India one patent examiner examined 140 patent applications in 2014 against 50 and 70 in the US and EU respectively. Therefore, it is the lack of human resources that is creating a backlog in the processing of patents in India vis-a-vis other countries.

Initiatives of the Indian Patent Office aimed at creating easy access to patents offices, and at Improving Its Quality and Services:

Comprehensive e-filing has been introduced where every document and form can be filed online, with regard to patent and trademarks. A payment gateway was launched in 2014, wherein Internet banking facilities of more than 70 banks can be used in addition to debit cards and credit cards for filing any patent or trademark. There is complete electronic processing in the patent and trademark office. Every paper that comes in is scanned, digitised and uploaded. Every paper that is issued from or received by the office is made available on the website.

An entry in the national phase can be done by filing Form 1 and the last page of the specification as we are directly streaming specifications from the WIPO patents scope. Incentives are being given for online filing. There is a 10% cost differential between online and offline filing since February 2014. One month after the incentive was introduced, online filing went up from 30% to 75%.

A new category has been introduced for Medium and Small Enterprises (MSMEs) in patents and designs. MSMEs get 50% discount for filing.

Quality management teams have been hired and skill development of personnel has been undertaken. Measures to introduce more transparency have been sought and efforts have been made to disseminate information with regard to IPRs. Real-time status of IP applications is available within tier file wrappers and e-registers.

The Indian Patent Office does weekly publication of online journals. We have a free public search facility. We have started instant email communications to applicants in trademarks specifically for filing purposes. We have started QR-coded communications for smartphones.

We have introduced a number of dynamic utilities where one can avail of information in real-time. Using the "stock and flow utility" one can find the stock of applications as well as the flow of applications from one process to another. From this, one can drill down to the office, the field, and the application itself and go to the file in the file wrapper and see the entire office thrown open to the world. One of the utilities counts and publicly displays the number of lapsed and expired patents in real-time. Because the patents have either lapsed or expired, these can be searched through fields of technology through any patent application that was not renewed or has expired. These applications are available on the website with the specification and search facility on a real-time basis. A number of other dynamic utilities for examinations, show-cause hearings, publications, registrations, et cetera have been made available online in real-time. We have started working as an international searching authority and have started giving high quality reports. These are currently available to all Indians.

We are shortly going to provide a searchable patent database. We are also bringing in an integrated search engine and are augmenting our human resources. The new government has approved 1,033 new posts in the patent and trademark offices, and with the training and skill of the increased human resources, we will stand on par with the best in the world with regard to the examination and disposal of both patent and trademark applications. We are completely overhauling our hardware and processing software. We will soon introduce new guidelines - one on computer-related inventions and another on search and examination generally.

Dr. Stefan V. Steinbrener, Consultant, Bardehle Pagenberg

Patentability of Computer-Implemented Inventions at the EPO

"Computer-implemented invention" (CII) is defined in the guidelines of the European Patents Office as an expression intended to cover claims which involve computers, computer networks, or other programmable apparatus, whereby prima facie one or more of the features of the claimed invention are realised by means of a programme or programs. Such a claim directed at computer-implemented inventions may take the form of a method of implementing said apparatus, apparatus set up to execute the method, or following the computer programme itself or as well as the physical media carrying the programme, computer programme product claims such as data carrier, storage medium, computer readable medium, or signal.

One can assume that an important part of all applications will fall under this definition. In 2010, the EPO granted 60,000 patents out of which 20,000 were covered by the said definition.

The core regulation is Article 52 of the EPC: European patents shall be granted for inventions in all fields of technology provided that they involve an inventive step and are susceptible for industrial application. Further, there is a list of non-inventions which include discoveries, scientific theories, mathematical methods, schemes, rules and methods for performing mental acts, playing games, doing business, programmes for computers, and presentations for information. This will include or exclude patentability only to the extent to which the European patent application or patent related to such subject matter or activity.

The nature and language of such a regulation mandate the identification of a criterion delimiting excluded items from non-excluded ones. On the one hand, we have no definition of statutory subject matter apart from stipulation that inventions arise from all fields of technology. On the other hand we have a definition of a non-exhaustive list of exceptions, which are not patentable or have non-patentable subject matter. This regulation is, however, contrasting with respect to US regulations. In paragraph 101 in the US, the definitions of statutory subject matter can be found and the non-patentable subject matter is determined through findings of the Supreme Court, abstract ideas, laws of nature and natural phenomena.

Thus from a legal aspect, there are two hurdles for patent eligibility. The first is the patent eligibility of the subject matter. If this is in the affirmative, then the next hurdle is whether the elements of a patent are satisfied, namely, novelty, innovativeness, and industrial applicability.

According to European standards, an invention may not be innovative but may be patent eligible so long as the subject matter is patentable. The judicial issues that are to be addressed are the development of a coherent method of identifying the patentability of a subject matter and subsequently dealing with the grey areas in technicality by sifting through individual cases in order to arrive at certain guidelines for approaching individual cases of patent eligibility.

The finding of the case law upon the first issue is that an invention is such if the claimed subject matter has some technical matter. A subject matter is said to have technical character if it relates to a technical device, product or relates to technical means. "Technical means" has been liberally construed such that in a particular matter a method of storing information using paper and a pencil is patent eligible subject matter because the method employs technical means such as paper and pencil. However, the same would not be patented as the implementation of the same is trivial. The answer to the same question of patentability would be no if it is among the excluded subject matter or is similar to another invention. The barrier to patent eligibility will not disappear but the threshold is much lower. It is only when a subject matter is completely devoid of technical means can it be not called can invention. Barriers also come into play when the idea is abstract or even if there is a possibility of the use of technical means to some extent but claims for the same are not made.

Are computer-implemented innovations patent eligible under the EPC?

The answer would be yes, if explicitly tied to technical means.

When determining whether the invention has the required qualities of a patent, the answer would be in the affirmative if those of the technical features that contribute to the technical character are noble, inventive and industrially applicable. Thus only features of a technical character are taken into consideration while the others making no such contribution are ignored. For example, there have been a lot of patent applications for business methods from the United States, after the State's Street Bank Decision. These applications may have about forty pages of description of the business innovation with a disclaimer note at the end stating that the implementation of the same can be achieved through basic hardware that are already in use. Such applications lack an inventive step and can therefore cannot be patented. Thus, the basic test of patent eligibility with regard to the definition of an invention is the determination of whether there is a technical solution to a technical problem.

Some of the excluded subject matter may contribute towards technical character. Mathematical methods, for example, in the case of cryptography, wherein a mathematical algorithm may assist in the implementation of the same; then such a mathematical method may be patentable.

Further, "technical" should be understood to mean technological. But generally, it is difficult to define the term "technical", even through case laws. The meaning of the same in the core area is however undisputed while the semantics which lack definition are only at the fringes which may be identified in individual cases. We thus work with a dynamic concept of technology.

Ravi Bhola, Partner, KnS Partners

Patent Valuation and its Interplay with FRAND Terms

There are two broad methodologies for the valuation of patents. One is quantitative valuation by taking into consideration the income, the cost, and the market. However, the more relevant method is the qualitative analysis wherein one can look into the scope of the claims, geographical coverage, et cetera. Patent valuation is sometimes speculative. However, in an observation made by a court in the Federal Circuit, a judge directed a re-trial stating that in the study by the patentee, which was an SEP holder, the damages were predicted on speculation and unrealistic assertions. Thus one can ponder about whether there is a requirement to take into consideration a greater number of tools, software, or parameters for the valuation of intellectual property.

In order to strike a balance with society, SEP holders are obligated to licence their patents on FRAND terms to interested parties. The observed trend is that because SEPs are more important, they are valued higher than regular patents. Therefore, the question arises: Are SEPs are over- valued? For this purpose, reference must be made to four ongoing cases concerning SEPs.

Ericsson v. Micromax:

While the adjudication had commenced, it was observed that Ericsson has prior license agreements on FRAND terms of its 8 SEPs (under litigation in this case) with players in the West and other parts of the world. The court thus called forth these agreements for perusal.

Therefore, the first contentious concern is the manner or methodology adopted by the courts to arrive at the unrealistic rates of royalties. However, it is evident in this case that the court, by referring to prior agreements with the same set of SEPs, are trying to bring down the rates of royalty to more realistic values, even at the interim stage.

A similar situation has been observed in the case between Ericsson and Xiaomi, which is pending in the Delhi High Court. Here the court arrived at the amount of Rs. 100 as an interim arrangement, till the adjudication of the matter has been completed. It was again speculated here as to whether the amount was inflated.

The trend observed in the patent litigation at the Delhi High Court where most of such matters are adjudicated, is that unlike the pharmaceuticals sphere, there is a greater tendency in the telecommunication patent litigation to grant a temporary injunction, modify or even vacate the same while determining royalties payable, even at this stage.

How has the West handled these matters with regard to SEP valuation?

Motorola sued Microsoft in the US over the infringement of some of its SEPs. The former sought 2.25% royalty, but the court set a lower rate, such that the royalty amount fell from 4 million USD to about 1.8 million USD. The question which arises is with regard to the manner of determination of such royalties and whether sufficient parameters are in existence [to determine royalties].

Another example is of a European case wherein Apple was found to be infringing SEPS owned by Motorola Mobility. Apple's claim before the European Commission was that as an interested and willing licensee, it had made efforts to obtain a license for the said patents under FRAND terms which Motorola Mobility deterred vehemently. The European Commission upon investigation found that Motorola was exploiting its dominant position in the market and it intentionally sought to oust Apple from the usage of technology protected by means of the SEPs. Damages were accordingly awarded in this case.

Therefore, there is uniformity in the notion that there is an obligation on SEP holders to license their patents to interested licensees on FRAND terms.

What constitutes reasonableness?

The presumption with subjective issues such as these is that the courts will define the same through case laws. While FRAND terms have been dealt with by the courts and even the European Commission, it is pertinent to note whether there have been any anti-trust or competition matters pertaining to the ongoing litigation in telecommunication patent infringement. The Competition law comes into picture while determining the checks and balances to ensure that the SEP holder acts in a reasonable manner.

In Micromax v. Ericsson and Intex v. Ericsson placed before the Competition Commission of India (CCI), Micromax and Ericsson claimed that they had approached Ericsson as licensees but the immense royalty rates put forth by Ericsson deterred them. The CCI after investigation affirmed the claims of Micromax and Intex, with the finding that Ericsson has indeed abused its dominant position. However, the Delhi High Court has directed the CCI to abstain from passing the final order as long as the case is sub-judice.

Daniel R. Bereskin , Q.C. Founding Partner, Bereskin & Parr LLP

Patents as Catalysts to Economic Growth

The more I studied WIPO data and other sources, the more I came to the conclusion that patent numbers, whether in terms of filing or grants are a pretty poor indicator of the level of innovation in a country. Many commentators have taken the view that the patent system throughout the world is in crisis and there are many reasons for this. Far too many patents are granted for very trivial innovative steps, if they are even innovative at all. They are tiny sideways steps, even backwards steps.

When I started in 1965, in order to get a patent, you had to have an invention that was new, "unobvious" and useful. Now we see many thousands of patents granted annually for inventions that are of very dubious merit. Not only does this not encourage economic growth, it tends to retard economic growth. Think of small and medium-sized enterprises, for example. When they are confronted with many thousands of patents that are far too expensive for them to properly evaluate, covering very trivial or insignificant steps.

It is really up to the government to a large extent to encourage innovation and they do that in many countries in different ways such as through research and development tax incentives. The trouble is that if a government spends money in encouraging research and development, it tends to be invisible to the ordinary member of the public whereas building roads and doing other things that are much more concrete in nature are easier and better from the short-term political view. At the same time, if a country is to grow economically, and to prosper in the future, it is absolutely crucial that governments make an investment. I think a rough rule of thumb is for governments to devote up to about 2% of their GDP to encouraging R&D, and that money is significant, but it has to be spent wisely.

Now India has come up for criticism by the US Chamber of Commerce for not adequately protecting IP rights. The International Trade Commission is conducting a survey right now of US firms to understand how the policies of India discriminate against US exports and investment. Canada is also on the watch-list, although it is the US's greatest trading partner and is in close proximity to the US. I find these comments to be very ironic because the US has a history of discriminating against foreigners when it comes to protecting its own citizens. In fact Prof. Jane Ginsburg who is a prominent teacher and writer called the US in the 19th century a pirate nation, and the reason why she said that is because the US refused to grant copyright to works of foreign authors and that did not change till 1891. The reason for that was that Americans liked to read British authors in preference to the works of American authors. So the solution was to not give copyrights to British authors. When they finally, grudgingly, granted copyright protection, it was on the condition that the books of foreign authors had to be manufactured in the United States. This manufacturing clause was not repealed until fairly recently and that was done only because by then the US realized that the US had become a big exporter of books by authors. So we have to take with a grain of salt the comments we get about IP policies in every country. It is very important to take a realistic view of what is really going on.

China has grown steadily in the past eight years to the point where the growth is now over nine trillion dollars. The growth in filing patents in China is incredible. It is going up exponentially and shows no signs of abating. In 2012, WIPO showed that Chinese nationals were responsible for almost 150,000 granted Chinese patents and the number of issued patents to foreigners was roughly 75,000. The problem with China is that there is no way of knowing what the mix is between patents of invention and utility models. Given the enormous disparity between the number of applications filed by the Chinese people in China compared with those filed by them abroad, most of the inventions that are utility models, or patents that are of very dubious economic value. My feeling is that these huge numbers are due to government policy in dictating to Chinese companies that they have to file a lot of patent applications, because it is easy for a government to say, "Look at how impressive our filing statistics are". You have to dig deeper to try to find out what the value is of the innovations that are represented by these patents. My feeling is that since such a small number, roughly 4% of all applications filed by the Chinese in China were filed abroad, that is an indication that the vast majority of these huge Chinese filings are not of any great economic importance.

India's GDP is over 1.3 trillion dollars. Economists predict that in 15 years, the Indian economy is expected to rival that of the US. Of course, India has a population of over 1.3 billion. The US has, maybe, a quarter of that. So you cannot exactly compare them.

Patent applications in Indiai show a somewhat disturbing trend. Although there is some growth in the patent filings by resident applicants, non-residents' filings swamp [outnumber] those of the residents. The number of applications filed abroad by companies and individuals of Indian origin is less than 10,000, which is a very small number given the size of the Indian economy.

There has been a very sharp decline in the past four years in the number of patents that are actually granted to individuals or companies where the inventors are of Indian origin. In 2014, less than 600 patents were granted to Indian nationals [WIPO statistics]. The number of patents granted to foreign applications is likewise declining and it is surprising. It could mean that the Indian Patent Office is getting tougher on "unobviousness". Nevertheless, the numbers are still pretty low.

Korea is a real success story. Their GDP is not yet at the level of India or China, but it is at 1.3 trillion dollars, which is not insignificant. But take a look at their patent application filings. Korean inventors were responsible for almost 150,000 filings in 2012. Koreans filed more than 50,000 applications abroad in the same year. These grants are substantial compared with [erstwhile] figures for India and China.

The US GDP is close to 17 trillion dollars and the economy seems to be continuing to grow. Right now the US economy is about 27% of the worldwide GDP. It is reasonable to conclude that the US has a very strong and vested interest in trying to ensure that IP rights are protected outside of the US because their continued growth depends on the protection of their homegrown IP.

Questions-Answers

How do you compare and contrast recent litigation in pharma versus litigation in the high-tech space, especially Ericsson and Vringo?

Pravin Anand (Managing Partner, Anand & Anand): In the Francis Xavier case in New Delhi, a division bench of the Delhi High Court said that an ex-parte injunction must not be granted in patent cases. The law, however, changed subsequently. The first evidence is of a DCJI clearance required when an application was moved by a pharma company and the news reached the patent owner by means of a right-to-information (RTI) request and private investigation. The patent owner then approached the court in order to prevent to the marketing of the product. Thus, before the launch of the product, the patent holder obtained a status quo. The rules of the division bench did not apply because balance of convenience was observed in maintaining the status quo. But that order essentially acted as an ex-parte injunction in a patent matter. This was phase one. Phase two saw the grant of injunction as the number of status quo order had exceeded twenty five in litigation against well known companies such as Pfeizer and Bristol Meyers. These orders were converted to injunctions by the judges.

The third phase was brought on by the Ericsson, Vringo, and other electronics companies, which albeit through lesser litigations, were able to create quite a stir. Ex-parte injunctions were granted in these cases. However, the judges felt the need to arrive at interim arrangements in lieu of the injunctions. Earlier, pending trial, these arrangements involved the payment of money and royalty by the defendants through their sales, directly to the plaintiff.

Therefore, the present stance is that both status quo orders and temporary injunctions are in use in pharma litigation before the launch of the product. Subsequently, the grant of such orders is rare. The impediment after launch is that the price difference between the plaintiff's and the defendant's product are evident to the question. Prior to the launch, only the plaintiff's product exists in the market. Hence, the grant of such orders is said to be in favour of balance of convenience. The mobile phone patent litigation cases, however, are witnessing the grant of interim orders, rather, arrangements.

Why is it that the Courts cannot wait another day to hear both the parties before granting the ad interim injunction?

Abhay Pandey, Partner, LexOrbis: The main issue that is going to come up in electronic product litigation is the pleading which contains the product mapping. In the Ericsson cases, there is an indirect reference made to the infringements, i.e., the devices are following the standards and not the readings to the claims. Therefore, the issue of injunctions will arrive only once the product is broken down into the claims.

D.P. Vaidya (Lakshmikumaran Sreedharan)

Computer Related Inventions and Indian Patent Law

Section 2 of the Indian Patent Act defines “invention” as any new process or new product which has or which involves an inventive step and is capable of industrial applications. “Inventive step” as well as “capable of industrial application” are defined in the Act. Section 3 defines what are not inventions. With respect to computer related inventions (CRIs), section 3(k) is worded differently than the provision for CRIs in the European Patent Convention (EPC). In Indian law, mathematical methods, algorithms, and business methods are not considered “inventions”, irrespective of whether they are “as such”. Computer programs are qualified with the phrase “per se” instead. The only common thing between EPC and Indian patent law is that “computer programs per se” or “computer programs as such” are not inventions. So programs that do not quality “per se” or “as such” could be patentable.

What are CRIs?

CRIs can be classified as: CRIs related to general purpose computers and CRIs implemented by specific computers (and not special purpose computers). General purpose computers are inventions that work towards different types of solutions. The solutions could be purely mathematical calculations or technical problems.

The term “business method” is not precisely defined in law as much as the abstract idea is. Generally speaking, any commercial transaction will qualify as a “business method” going by my observations from various decisions in the US, UK, and Europe.

Example technical problem: What is the point of presence (PoP) for designing network topology or network architecture?

Based on rules and various parameters defined for the topology or architecture, a schematic is drawn up. It shows the locations where the PoPs should be placed to minimise the cost of operations and the investment. This is also an application that can be implemented over a general purpose computer.

Would it fall under the definition of an “algorithm”? The definition of “algorithm” in the guidelines is very broad. Whether or not it is implemented on a [general purpose] computer, it will be treated as a “computer” because there is no qualifier as “per se” or “as such”. If it is an algorithm, it is not patentable.

Then, what is not an “algorithm”? It could be argued that all methods will fall under the definition of “algorithm”. The IEEE definition of a “solution to a problem” is that it is a finite set of well-defined rules in a finite number of steps. For example, a complete specification for a sequence of arithmetic operations for evaluating the value of sin “x” for a given precision. When the aim is mainly to determine a certain value or function for optimisation or for arithmetic calculations, the method or process can be treated as an “algorithm”. From a legal point of view, methods are patentable, but paradoxically, algorithms are not considered inventions.

Then next level of general-purpose computer-implemented inventions (CII) are those that make changes in the operating systems [instead of sitting on top of the operating system]. By making changes in the operating system, the CII is changing the character of the computer. It is improving the computer, and therefore it is patentable. Also, a general purpose computer operating a machine or a technical process is patentable.

Embedded Computer-Implemented Inventions:

Wherever there is embedded software, the patent controllers generally do not have any issues related to patentability. They may have issues related to inventive step.

For more details visit https://cis-india.org/a2k/blogs/report-global-intellectual-property-convention-2015

Call for Participation: Global Congress on Intellectual Property and the Public Interest

sinha — 2015-06-24T16:11:07Z

We are pleased to announce the call for participation for the fourth edition of the Global Congress on Intellectual Property and the Public Interest (“Global Congress”), being hosted at New Delhi from December 15 to 17, 2015.

The theme for this year’s Congress will be “Three Decades of Openness; Two Decades of TRIPS.” We are now inviting applications to participate in the Congress, including session participation and presentations. We are also welcoming proposals for panels and workshops.

The application form is available now at [http://form.jotformpro.com/form/50854976184973?] Please note that this form is for application purposes, and does not amount to confirmation of participation. The registrations for the plenary sessions, which are open to the public, will open closer to the date of the Global Congress.

Deadlines

August 1st: Priority Deadline for Applications- Applicants will be considered on a rolling basis, with applications made by August 1st being given first consideration. Applications after August 1st to receive travel assistance will be considered only under exceptional circumstances (these details will be collected in a subsequent form).

November 1st: All applications for session participation and paper submissions will close on November 1st.

Application Information

For applications to participate/host: Applications to present or host workshops shall be considered based on the proposals to be submitted in the form.

For applications to attend sessions: Applications to attend sessions as discussants will be considered based on the statement of purpose and/or any other relevant information provided by the applicant.

Limited travel grants to cover accommodation and/or travel to the Congress will be available, with priority to those from developing countries.

Background, Theme and Expected Outcomes

The Global Congress on Intellectual Property and the Public Interest is the most significant event on the calendar for scholars and policy advocates working on intellectual property from a public interest perspective. By sharing their research and strategies, the network of experts and activists supported by the Global Congress are empowered to put forward a positive agenda for policy reform. The Global Congress began in Washington D.C. in 2011, moved to Rio de Janeiro in 2012, and was held in Cape Town in 2013. The fourth Global Congress will now be held in New Delhi, in December 2015. The event would be the largest convening of public interest-oriented intellectual property practitioners ever held in Asia, and would help link in the world's most populous region to these global debates around how intellectual property policy can best serve the public interest.

The fourth edition of the Global Congress brings research, civil society, industry and regulatory and policy-making communities together for active, intense engagement on key public-interest intellectual property issues. Opportunities for these groups to interact are rare but valuable; and have been proven to lead to successful policy outcomes. The 4^th edition of the Congress, slated to be held in December, 2015 in New Delhi seeks to be one such opportunity.

The theme for the 2015 Congress is Three Decades of Openness; Two Decades of TRIPS-coming at a pivotal time for reflection, revision, and further strategizing. Specifically, the 2015 Congress seeks to produce three outcomes- first, the mobilization of existing scholarly research directly into the hands of civil society advocates, business leaders and policy makers, leading to evidence-based policies and practices; second, the collaborative identification of urgent, global and local research priorities and generation of a joint research/advocacy agenda; and third, the solidification of an inter-disciplinary, cross-sector and global networked community of experts focused on public interest aspects of IP policy and practice.

Participation Opportunities

Discussions at the Global Congress will be carried out in the form of plenary sessions, thematic tracks, cross-track sessions, and the room of scholars. Participation is invited for the thematic track sessions, cross-track sessions and the room of scholars.

The thematic tracks at the Global Congress are: 1) Openness, 2) Access to Medicines, 3) User Rights, 4) IP and Development. Cross-track sessions will feature research that cuts across tracks in order to facilitate engagement between tracks on themes of mutual interest.

The Room of Scholars will feature presentations of research outputs such as draft works or white papers that may not fit directly within the thematic tracks but fall within the overall theme of the Global Congress.

Participation could be in the form of presenting / discussing conference papers or policy briefs, or by conducting workshops where they may share their own work and solicit feedback from peers, during the aforementioned sessions.

The application form for participation is available now at http://form.jotformpro.com/form/50854976184973?. Please forward this invitation to interested lists and individuals. For more information or questions, you may contact global-congress@cis-india.org.

Organisation

The 4^th Global Congress on Intellectual Property and Public Interest, is being organised in cooperation with National Law University, Delhi, by the American Assembly at Columbia University, the Centre for Internet and Society, Open A.I.R., and the Program on Information Justice and Intellectual Property at American University Washington College of Law.

For more details visit https://cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest

2015 USTR Report: Old Wine in New Bottle

sinha — 2015-06-16T10:24:49Z

Every year, the Office of the United States Trade Representative (USTR) undertakes an elaborate exercise to castigate countries' domestic intellectual property (IP) law and policy. The criticisms and recommendations are presented in a document called the Special 301 Report. This year's edition puts India on the Priority Watch List for the twenty-sixth time in a row. Below, I rebut the report's prejudicial claims and demands, and argue that the report puts free speech, innovation and public interest in jeopardy.

Keeping in tradition , the 2015 report yet again exposes US' hypocrisy by faithfully serving Hollywood and Big Pharma. In the past, countries such as Israel and Canada have publicly rejected the USTR's findings and derided the US for unwarranted interference with domestic law and policy. Last year, India too had refused to cooperate with a USTR initiated unilateral investigation (Out of Cycle review) of its IP regime because the investigation violated international law.

The Electronic Frontier Foundation has released a hard-hitting response to the report. It draws case studies of countries where overbroad IP law has affected public interest, free speech and innovation. For instance, it mentions how Colombia's 'reformed' copyright law has become a travesty. Colombia introduced extreme enforcement and harsh criminal sanctions for unauthorised sharing of works at the behest of the US. Last year, news surfaced that a Colombian biodiversity researcher faced upto eight years in prison for sharing an academic article on Scribd. Any balanced IP regime (including India) permits such use of copyrighted works under the fair use principle, however, Colombia's narrow fair use provision has led to a situation where citizens now face prison for ordinary use of academic works.

This year the Special 301 Report in its section on India approves the Prime Minister's statements to align IP law with international standards, which is a cause for concern. Firstly, what are these “international standards” that both US and India refer to exactly? The most comprehensive international agreement on IP that binds 160 member nations is the WTO Agreement on Trade related aspects of Intellectual Property (TRIPS Agreement). Ergo, this agreement would qualify as the most accepted “international standard”, which India already complies with. Secondly, the TRIPS Agreement sets down certain global minimum standards for protecting and enforcing IP, simultaneously providing countries a certain degree of flexibility. However, the US has consistently pushed India to enact tougher provisions known as TRIPS Plus provisions. This is reflected in the report as well. Legally speaking, under international law India is not obligated to accede to such demands, and it should not if it wants a balanced IP regime to protect and serve the interests both of rights holders and its citizens.

The report shamelessly aligns its concerns with the financial interests of foreign rights holders and American companies. It erroneously projects IP as a tool to only maximise revenues, agnostic to public interest. While IP rights are temporary monopolies, they also are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. It is well established that flexible IP laws enable access to knowledge and promote innovation. Such a flexible regime is critical to developing countries like India. The USTR conveniently forgets that lax IP law and enforcement for a large part of the 19th century helped the US to accelerate into an economic powerhouse and a front-runner in innovation. It also brazenly threatens to impose unilateral sanctions against a country designated as a Priority Foreign Country on the list. This treatment is usually reserved for the worst offender on the list. Such unilateral threats and sanctions are again a direct violation of international law.

Unsurprisingly, the report is critical of India's under-enforcement of copyright laws and the impact of patent law on pharmaceuticals. It demands a specific legislation to counter camcording and video piracy. The prospective legislation is unnecessary because all movie theatres in India prohibit camcorders and the prevailing Copyright Act, 1957 contains penalties to punish offenders. Instead of creating new offences, we should re-evaluate the need of existing offences. For instance, copyright infringement on non-commercial scales should not be a criminal offence at all . Instead, the law should provide convenient and affordable access to such works to counter petty infringement.

India is home to the world's largest apothecary. The Indian pharmaceutical and medical device industry provides affordable healthcare to the citizens, and also exports drugs to countries in need. In fact, the compulsory licensing mechanism has ensured affordable access to life saving liver and kidney drugs in India. The report comments on the undesirability of section 3(d) and the compulsory licensing mechanism in Indian patent law. With respect to section 3(d), the US wishes India to to change its patent law to enable large pharma companies to patent new forms of known substances that aren't even better. This alarmist outlook smacks of hypocrisy because the US, in fact, has a higher rate of patent invalidation and compulsory license grants! It also demands data exclusivity – which would extend proprietary rights to patentees over government mandated drug data, and would be detrimental to the local pharma industry. Further, the report states that the Indian system is biased against enforcement of foreign patent rights holders - which is mere speculation. There is no evidence to draw such a conclusion. The claims relating to localisation trends in pharma are half- baked and speculative again.

The report observes that at the UNFCCC negotiations, India recognised patents as an obstacle to dissemination of climate change technologies. It wishes India understood the critical role of patent protection and competitiveness to ensure innovation, which is a flawed co-relation. While strong IP rights may protect inventors against infringement and provide return on investment, however, stronger IP rights also raise the cost of innovation by raising the price of technological inputs into innovation and lower the frequency of innovation.

As far as the issue of counterfeit medicines is concerned, a better remedy lies in health safety laws and consumer laws, than the trademark law. The report also approves of state legislatures' version of the Goondas Act. These Acts provide for detainment of criminals and lumpen elements in society, and with recent amendments have expanded to include video pirates and digital offenders. Karnataka's Goonda Act enabling preventive detention violates constitutional rights. While the Sixth Amendment to the United States Bill of rights protects offenders against preventive detention, the US has no qualms about approving such unconstitutional procedures in India.

The arguments above underscore the irrelevance of the report. The Prime Minister may have made appeasing statements to the USA, however, in a welcome development Commerce and Industry Minister Nirmala Sithraman in response to the report stated “India is fully aligned with international intellectual property rights standards and "there is no need for anyone to question us."” Our IP regime with its inherent flexibilities should be preserved and not sacrificed at the altar of US' business interests. Using compulsory licensing across sectors would indeed accelerate technology transfer and diminish initial capex for manufacturers, a move promoted by the National Manufacturing Policy. The ambitious Make in India and Digital India campaigns are set to suffer if India incorporates TRIPS plus standards into its IP regime. The government supports opennes s and has implemented policies mandating use of open standards and open source software as a part of the Digital India campaign. India should not let foreign hands dictate its IPR Policy, and proceed to develop a policy which is informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those for research, education and access to medicines.

For more details visit https://cis-india.org/a2k/blogs/2015-ustr-report-old-wine-in-new-bottle

Definition of Net Neutrality should be flexible: Pranesh Prakash

pranesh — 2015-06-19T01:43:04Z

Critics argue that Facebook’s Internet.org violates the principle of Net Neutrality.

The article by Sanjay Vijaykumar was published in the Hindu on May 10, 2015. Pranesh Prakash is extensively quoted.

The definition of Net Neutrality should be flexible enough to allow for experimentation with different models of providing cheaper Internet access and such experimentation needs to be regulated by the telecom regulator, Telecom and Regulatory Authority of India (TRAI) according to Internet expert Pranesh Prakash.

Mr. Prakash was reacting to the business model of Boston-based start-up Jana, which said it had figured out a way to offer billions of people in the emerging world free access to the Internet, without violating the web’s open nature. The firm has launched Jana Loyalty, a product that seeks to reward its smartphone users in two ways. One, it reimburses users the cost of downloading and using an app of Jana’s clients. Two, it gives free additional data with which the user can access any content online.

“While Jana is like Internet.org, since it is Internet service-specific zero-rating, Jana Loyalty is what my colleague Sunil Abraham dubs a ‘leaky walled garden’. The walled garden (site-specific access) exists, but you also get free access to the whole of the Web in return. Given that there is no one universal definition of Net Neutrality, and given India currently doesn’t have a definition, I can’t answer if this is a violation of Net Neutrality,” said Mr. Prakash, who is Policy Director at The Centre for Internet and Society (CIS), a Bangalore-based, non-profit, research and policy advocacy.

Facebook’s attempts to provide a limited version of the Internet free has been attracting criticism from supporters of Net Neutrality, especially in India. Critics argue that Facebook’s Internet.org, which offers users free access to a bouquet of pre-selected Web sites, violates the principle of Net Neutrality by choosing what is accessible and what isn’t. Facebook has reacted to this by opening up Internet.org to all developers who meet its guidelines. Mr. Prakash said the definition of Net Neturality should be flexible enough to allow for experimentation with different models of providing cheaper Internet access, including Jana Loyalty.

“However, such experimentation ought to be regulated by the telecom regulator. To minimise harm, they should be allowed on a case-by-case basis after the regulator has had an opportunity to conduct risk-benefit analysis against four goals it should seek to promote — universal and affordable access; effective competition; protection of consumers against harm; and diversity that arises from the openness and interconnectedness of the Internet,” he added.

Net neutrality is a principle that says Internet Service Providers (ISPs) should treat all traffic and content on their networks equally.

Why now?

Late last month, Trai released a draft consultation paper seeking views from the industry and the general public on the need for regulations for over-the-top (OTT) players such as Whatsapp, Skype, Viber etc, security concerns and net neutrality. The objective of this consultation paper, the regulator said, was to analyse the implications of the growth of OTTs and consider whether or not changes were required in the current regulatory framework.

What is an OTT?

OTT or over-the-top refers to applications and services which are accessible over the internet and ride on operators' networks offering internet access services. The best known examples of OTT are Skype, Viber, WhatsApp, e-commerce sites, Ola, Facebook messenger. The OTTs are not bound by any regulations. The Trai is of the view that the lack of regulations poses a threat to security and there’s a need for government’s intervention to ensure a level playing field in terms of regulatory compliance.

For more details visit https://cis-india.org/internet-governance/news/the-hindu-sanjay-vijaykumar-may-10-2015-pranesh-prakash-on-definition-of-net-neutrality

March 2015 Bulletin

praskrishna — 2015-05-12T01:36:18Z

Newsletter for the month of March.

We are happy to share with you the third issue of the CIS newsletter (March 2015). The past editions of the newsletter can be accessed at http://cis-india.org/about/newsletters.

Highlights

In a landmark judgement upholding the freedom of expression, the Supreme Court of India on March 24, 2015 struck down a provision (Section 66 A of the IT Act) which provided the power to arrest anyone for posting offensive comments online. Geetha Hariharan in her blog post captures the happenings which led to the court ruling.

CIS in partnership with Privacy International is doing the GSMA project that seeks to understand different legal and regulatory aspects of security and surveillance in India. The research outputs published thus far are now online in a consolidated blog post.
CIS as part of its RAW programme is inviting abstracts for essays that explore what it means to study Internet(s) in India today.
CIS is pleased to announce that the Researchers at Work (RAW) programme is supporting a new collaborative publishing project led by T.A.J. Residency / SKE Projects and or-bits.com. The first volume of the series titled 'Silicon Plateau' will feature contributions by a group of well-known artists, researchers, and writers.
Sumandro Chattapadhyay's paper titled 'Whose Open Data Community is it? Reflections on the Open Data Ecosystem in India' has been accepted for presentation at the Open Data Research Symposium to be held during the 3rd International Open Data Conference in Ottawa, Canada, on May 28-29 2015.
CIS has been invited to contribute two sections to the Asia Internet History - Third Decade (2001 - 2010) book edited by Dr. Kilnam Chon. The sections will discuss the activities and experiences of civil society organisations in Asia and India, respectively, in national, regional, and global Internet governance processes. Draft outlines of the sections are shared here . Comments and suggestions are invited.

CIS has prepared an open proposal to the Wikimedia Foundation to support its annual plan with USD 208,603.
CIS has prepared a draft work plan for the period July 2015 to June 2016 . This work plan consists of 18 programs across 6 verticals.
On December 24, 2015, Bharti Airtel, one of India's largest telecom players, announced the introduction of a new 'VOIP' usage policy for its mobile users. Tarun Krishnakumar analyses the developments in a blog post.

In his monthly column published in the Business Standard on March 4, 2015, Shyam Ponappa writes "systems and methods for access through elements that provide connectivity - spectrum, fibre-optic cable, coaxial cable, or "twisted-pairs" for ADSL - must be devised in an integrated manner and made available at low cost.
NVDA team as part of its project on developing text-to-speech software in 15 Indian languages has published key updates ofBengali and Assamese language testing.
In the year 2013 Nehaa Chaudhari had worked on a module on IP Rights for UNESCO's Open Access Curriculum. The module was published recently and is available under the CC-BY-SA 3.0 IGO license.

Rohini Lakshané in a blog post chronicles information about big-ticket lawsuits pertaining to mobile technology patents filed in India.

► Vacancies at CIS

CIS is seeking applications for these posts:

Assistant Project Manager : To assist the Project Manager on all tasks relating to the organization of the Fourth Global Congress on Intellectual Property and the Public Interest, which will take place in New Delhi from December 15-17, 2015.
Internship : CIS is providing opportunities for students enrolled in graduate programmes to undertake internship at its offices in Bangalore and Delhi. Eligible candidates are welcome to participate in our internship programme.

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Accessibility and Inclusion
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Under a grant from the Hans Foundation we are doing two projects. The first project is on creating a national resource kit of state-wise laws, policies and programmes on issues relating to persons with disabilities in India. CIS in partnership with CLPR (Centre for Law and Policy Research) compiled the National Compendium of Policies, Programmes and Schemes for Persons with Disabilities (29 states and 6 union territories). The publication has been finalised and is being printed. The draft chapters and the quarterly reports can be accessed on the project page. The second project is on developing text-to-speech software for 15 Indian languages. The progress made so far in the project can be accessed here.

►NVDA and eSpeak

Monthly Updates

March 2015 Report (Suman Dogra; March 31, 2015).

Language Testing Reports

Assamese Language (Nirmita Narasimhan; March 23, 2015).
Bengali Language (Nirmita Narasimhan; March 24, 2015).

Event Organized

Report on Training on the Use of eSpeak in Hindi with NVDA (Organized by NVDA team; Dr. Shakuntala Mishra National Rehabilitation University, Lucknow; March 16 - 29, 2015).

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Access to Knowledge
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As part of the Access to Knowledge programme we are doing two projects. The first one (Pervasive Technologies) under a grant from the International Development Research Centre (IDRC) is for research on the complex interplay between pervasive technologies and intellectual property to support intellectual property norms that encourage the proliferation and development of such technologies as a social good. The second one (Wikipedia) under a grant from the Wikimedia Foundation is for the growth of Indic language communities and projects by designing community collaborations and partnerships that recruit and cultivate new editors and explore innovative approaches to building projects.

►Pervasive Technologies

As part of the Pervasive Technologies project, Rohini Lakshané has written a blog entry that chronicles information on big-ticket lawsuits pertaining to mobile technology patents filed in India. As part of broader Access to Knowledge work UNESCO published a module on Intellectual Property Rights, Copyright and Alternative to a Strict Copyright Regime.

Module Units

Intellectual Property Rights - Open Access for Researchers (Nehaa Chaudhari; March 19, 2015, UNESCO). Nehaa worked on a module on Intellectual Property Rights for United Nations Educational, Scientific and Cultural Organization (UNESCO)'s Open Access Curriculum (Curriculum for Researchers) as part of a project for the Commonwealth Educational Media Centre for Asia. UNESCO published the module this year. Nehaa Chaudhari and Varun Baliga were among the Module preparation team. Nehaa Chaudhari was the writer for Units 1, 2 and 3: Understanding Intellectual Property Rights, Copyright and Alternative to a Strict Copyright Regime.

Blog Entries

Mobile App Developer Series: Terms of Agreement - Part IV (Samantha Cassar; March 23, 2015).
Compilation of Mobile Phone Patent Litigation Cases in India (Rohini Lakshané; March 15, 2015).
Interviews with App Developers: Open Source, Community, and Contradictions - Part III (Samantha Cassar; March 24, 2015).
Interviews with App Developers: Name of the Game - Part IV (Samantha Cassar; March 24, 2015).

Participation in Events

Conference on Standards Setting Organisations (SSOs) and FRAND (Organized by MHRD Chair on Intellectual Property Rights, Centre for Intellectual Property Rights and Advocacy (CIPRA), National Law School of India University, Bangalore, in association with Intel Technology India Pvt. Ltd.; Bangalore; March 21-22, 2015). Rohini Lakshané participated in this event.
4th IPR Researchers Confluence (Organized by Shailesh J. Mehta School of Management, Indian Institute of Technology Bombay, Mumbai and National Institute of Industrial Engineering, Mumbai with support from Ministry of Human Resource Development, New Delhi; March 27 - 28, 2015). Maggie Huang presented intermediary findings of the research entitled "India's Music Copyright Management in the Age of Music Streaming".

Media Coverage

The perils of not protecting intellectual property for new ventures (Evelyn Fok and Shonali Advani; Economic Times; March 20, 2015). Sunil Abraham gave his inputs.

►Wikipedia

As part of the project grant from the Wikimedia Foundation we have reached out to more than 3500 people across India by organizing more than 100 outreach events and catalysed the release of encyclopaedic and other content under the Creative Commons (CC-BY-3.0) license in four Indian languages (21 books in Telugu, 13 in Odia, 4 volumes of encyclopaedia in Konkani and 6 volumes in Kannada, and 1 book on Odia language history in English).

Announcements

Open Proposal for Funding : CIS has prepared an open proposal for funding for about USD 208,603 from the Wikimedia Foundation. CIS is inviting comments on the proposal. CIS is proposing to contribute to the qualitative and quantitative growth of 12 Wikimedia projects across 9 Indian languages and associated communities, in addition to providing need based support to other Indic communities.
Access to Knowledge Work Plan : CIS has prepared the India Access to Knowledge work plan (July 2015 to June 2016). The work plan consists of 18 programs across 6 verticals. These include eight programs in five language areas, two community strengthening initiatives, five stand-alone Wikimedia projects, creating movement resources, publicity, research and documentation, and general support and service to the movement.

Event Organized

Train the Trainer Program (CEO Centre; Dodda Gubbi; Bangalore; February 26 - March 1; 2015).

Blog Entry

Hindustani Language: We Are Wikipedia (Syed Muzamiluddin; March 27, 2015).

Participation in Event

2nd National Language Conference, Bhubaneswar (Organized by Institute of Odia Studies and Research; Institute of Physics, Bhubaneswar; March 30 - April 2, 2015). Subhashish Panigrahi presented a paper in Odia language in this conference as part of a panel discussion related to Odia language computing.

News and Media Coverage

CIS-A2K team gave its inputs to the following media coverage:

Train the Trainer (Udayavani; March 2, 2015).
More articles for Tulu Wikipedia (The Hindu; March 10, 2015).
GoI body National Mission for Manuscripts has digitised 3 million manuscripts (Sneha Johari; Medianama; March 13, 2015).
Bangla Wiki turns 10 (Sudeshna Banerjee, Showli Chakraborty and Abhinanda Datta; The Telegraph; March 29, 2015).

Events Co-organized

Women's History Month - India (Organized by CIS-A2K and Wikimedia India; India, March 2015). March 8 is International Women's Day, and to celebrate this women in India organized edit-a-thons and meetups to create and expand articles of importance to women in Wikipedia in English and various Indian languages. Online events were organized for these Wikipedias: Bengali , Punjabi , Odia , Marathi , Kannada and Malayalam .

►Openness

Media Coverage

India backs open source software for e-governance projects (originally published by IDG News Service was mirrored on the website ofCIO and PC World; March 29, 2015). Sunil Abraham gave his inputs.

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Internet Governance
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As part of its research on privacy and free speech, CIS is engaged with two different projects. The first one (under a grant from Privacy International and International Development Research Centre (IDRC)) is on surveillance and freedom of expression (SAFEGUARDS). The second one (under a grant from MacArthur Foundation) is on studying the restrictions placed on freedom of expression online by the Indian government.

►Freedom of Expression

India's Apex Court in a landmark decision struck down section 66A of the IT Act. The judgment provided great relief for advocates of freedom of speech on the Internet. The development attracted lots of media coverage to which CIS gave its inputs:

Articles

Internet censorship will continue in opaque fashion (Sunil Abraham; The Times of India; March 25, 2015).
Historic day for freedom of speech and expression in India (Vidushi Marda; Bangalore Mirror; March 25, 2015).
India's Supreme Court Axes Online Censorship Law, But Challenges Remain (Subhashish Panigrahi; Global Voices Online; March 25, 2015).
Big win for freedom of speech. Really? (Sunil Abraham; Bangalore Mirror; March 29, 2015).
Three reasons why 66A verdict is momentous (Pranesh Prakash; The Times of India; March 29, 2015).

Blog Entries

What Does Facebook's Transparency Report Tell Us About the Indian Government's Record on Free Expression & Privacy? (Pranesh Prakash; March 17, 2015).
No more 66A! (Geetha Hariharan; March 24, 2015).

· Requests to ICANN: CIS sent ICANN six requests to ICANN regarding ICANN's expenditure on travels and meetings, granular revenue, cyber-attacks on ICANN, ICANN's implementation of the NETmundial principles, complaints under the Ombudsman process, and information regarding revenues received from gTLD auctions. These were prepared by Geetha Hariharan:DIDP Request #7: Globalisation Advisory Groups and DIDP Request #8: ICANN Organogram.

Participation in Events

Tech Law Form @ NALSAR (Organized by NALSAR University of Law, Hyderabad; March 7 and 8, 2015). Geetha Hariharan participated as a speaker.
Roundtable on ICANN Accountability (Organized by Department of Electronics and Information Technology (DeitY), National Internet Exchange of India and Centre for Communication Governance, National Law University, Delhi; March 13, 2015).

►Privacy

Research Outputs

CIS in collaboration with Privacy International, UK as part of GSMA project is conducting research to understand different legal and regulatory aspects of security and surveillance in India. The following outputs have been published: Indian Law and the Necessary Proportionate Principles (Elonnai Hickok), Security, Surveillance and Data Sharing Schemes and Bodies in India (Maria Xynou and Elonnai Hickok), Export and Import of Security Technologies in India: QA (Elonnai Hickok), Regulation of CCTV's in India (Elonnai Hickok), Mutual Legal Assistance Treaties (MLATs) and Cross Border Sharing of Information in India (Maria Xynou and Elonnai Hickok), Composition of Service Providers in India (Lovisha Aggarwal), The Surveillance and Security Industry in India - An Analysis of Indian Security Expos (Divij Joshi), An Analysis of News Items and Cases on Surveillance and Digital Evidence in India (Lovisha Aggarwal), Policy Recommendations for Surveillance Law in India and an Analysis of Legal Provisions on Surveillance in India and the Necessary & Proportionate Principles (Maria Xynou), The Surveillance Industry in India (Maria Xynou), and State of Cyber Security and Surveillance in India: A Review of the Legal Landscape (Elonnai Hickok).

Event Organized

Cybersecurity and the Internet of Things (Organized by US Consulate Chennai, Cyber Security & Privacy Foundation and CIS; Hotel Atria, Palace Road, Bangalore; March 19, 2015).

Participation in Events

CONNECTing the Dots: Options for Future Action (Organized by UNESCO; March 3 - 4, 2015; Paris). Elonnai Hickok participated in the event.
Vox Pol Workshop on the Role of Social Media and Internet Companies in Responding to Violent Online Extremism (Organized by VOX-Pol network; March 5-6, 2015).

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News & Media Coverage
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CIS gave its inputs to the following media coverage:

Uploaded and blocked, a daylong battle rages on the web over BBC documentary (Kim Arora; The Times of India; March 6, 2015).
India tops list of content restrictions requests, says Facebook (Neha Alawadhi; Economic Times; March 17, 2015).
If you thought India is a country where freedom of speech and expression are fundamental rights, think twice! (Business Insider; March 17, 2015).
Live Chat: Aadhaar: An identity crisis? (Hindu; March 17, 2015).
Delhi Govt Sets Up WiFi Task Force (Originally published by Press Trust of India; TeleAnalysis; March 18, 2015).
India's plan to offer citizens digital lockers poses a privacy threat, say experts (Scroll.in; March 19, 2015).
Internet becomes vernacular with relaunch of e-bhasha (Ankita Lahiri; Governance Now; March 23, 2015).
Indian Supreme Court Overturns Law Barring 'Offensive Messages' Online (Niharika Mandhana; Wall Street Journal; March 24, 2015).
Supreme Court Strikes Down Section 66A Of IT Act (Indrani Basu and Betwa Sharma; Huffington Post; March 24, 2015).
India's section 66A scrapped: Win for free speech (Prasanto K. Roy; BBC; March 24, 2015).
India's Online Freedom Advocates Hail Court Ruling on Free Speech (Anjana Pasricha; Voice of America; March 24, 2015).
Live Chat: Win for Free Speech (Hindu; March 24, 2015). Geetha Hariharan participated in the live chat.
India's Supreme Court strikes down law that led to Facebook arrests (Annie Gowen; Washington Post; March 24, 2015).
Netizens Rejoice Over SC Ruling to Keep the Net Free (Parina Dhilla; New Indian Express; March 25, 2015).
'A safe Internet and a free Internet can co-exist' (Hindu; March 25, 2015).
India High Court: No Takedown Requests On Social Sites Without Court, Gov't Order (Madhur Singh; Bloomberg BNA; March 25, 2015).
India's Supreme Court strikes down law that led to arrests over Facebook posts (Annie Gowen; Star.com; March 25, 2015).
What the experts said on live chat (Hindu; March 25, 2015). Geetha Hariharan was one of the panelists.
Indian Court Strikes Down Section of Law Punishing Offensive Posts (Nida Najar and Suhasini Raj; NDTV; March 25, 2015).
IT Leaders, Lawyers Welcome SC Ruling on 66A of the IT Act (Cio.in; March 25, 2015).
I dare you, I double dare you: Social media celebrates Sec 66A verdict (Vishakha Saxena; Hindustan Times; March 25, 2015).
Ruling in India shields Web posts (Originally published by Washington Post and mirrored in Boston Globe; March 25, 2015).
The noose tightens on freedom of speech on the Internet (Gabey Goh; Digital New Asia; March 26, 2015). This was also mirrored in Malaymail Online.
SECTION 66A: DELETE (Kumar Anshuman; Open Magazine; March 27, 2015).
SC has set a high threshold for tolerance: Lawrence Liang (Dhamini Ratnam; Livemint; March 28, 2015).
66A DEAD. LONG LIVE 66A! (Soni Mishra; The Week; March 28, 2015).
India's landmark online speech ruling is step toward greater press freedom (Sumit Galhotra; CPJ; March 28, 2015).
You can still get into trouble for online posts: Digital law experts (Kim Arora; The Times of India; March 30, 2015).
'Smack' the Trolls! (Marianne De Nazareth; Citizen; March 31, 2015).

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Researchers at Work
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The Researchers at Work (RAW) programme is an interdisciplinary research initiative driven by contemporary concerns to understand the reconfigurations of social practices and structures through the Internet and digital media technologies, and vice versa. It is interested in producing local and contextual accounts of interactions, negotiations, and resolutions between the Internet, and socio-material and geo-political processes:

Announcements

Call for Essays: Studying Internet in India : CIS is inviting abstracts for essays that explore what it means to study Internet(s) in India today, the many experiences of Internet(s) in India; its histories and archaeologies; how we use it to read, write, create, relate, learn, and share. Please send abstracts (200 words) to raw@cis-india.org.
Announcing Silicon Plateau #01 : The RAW programme is supporting a new collaborative publishing project led by T.A.J. Residency / SKE Projects and or-bits.com. The first volume of the series titled 'Silicon Plateau' will feature contributions by a group of artists, researchers, and writers, including IOCOSE, Tara Kelton, Anil Menon, Sunita Prasad, Achal Prabhala and Sreshta Rit Premnath, along with contextual writing and documentation material. Here is an excerpt from the editorial note written by Marialaura Ghidini, the co-editor of the volume.
Whose Open Data Community is it? - Accepted Abstract (Sumandro Chattapadhyay; March 31, 2015). The paper 'Whose Open Data Community is it? Reflections on the Open Data Ecosystem in India' has been accepted for presentation at the Open Data Research Symposium to be held during the 3rd International Open Data Conference in Ottawa, Canada, on May 28-29 2015.

Event Organized

Digital Activism in Asia Reader (Organized by CIS; Bangalore; March 6-7, 2015). The project is a collaborative effort of CIS and the Centre for Digital Cultures, Leuphana University, Germany, which aims to bring together local knowledge, debates and conversations around Digital Activism in Asia. The Digital Activism in Asia Reader is expected to be published by the Hybrid Publishing Lab in mid-2015.

Blog Entries

Figures of Learning: The Reader (P.P.Sneha; March 24, 2015).
Civil Society Organisations and Internet Governance in Asia and India - Section Outlines : CIS has been invited to contribute two sections to the Asia Internet History - Third Decade (2001-2010) book edited by Dr. Kilnam Chon.

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Telecom
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CIS is involved in promoting access and accessibility to telecommunications services and resources and has provided inputs to ongoing policy discussions and consultation papers published by TRAI. It has prepared reports on unlicensed spectrum and accessibility of mobile phones for persons with disabilities and also works with the USOF to include funding projects for persons with disabilities in its mandate:

Op-ed

Railway Takeaways for Digital India (Shyam Ponappa; Business Standard and Organizing India Blogspot; March 4, 2015).

Blog Entry

TRAI-ing Times: The Story So Far (Tarun Krishnakumar; March 19, 2015).

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About CIS
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The Centre for Internet and Society is a non-profit research organization that works on policy issues relating to freedom of expression, privacy, accessibility for persons with disabilities, access to knowledge and IPR reform, and openness (including open government, FOSS, open standards, etc.), and engages in academic research on digital natives and digital humanities.

► Follow us elsewhere

Twitter: https://twitter.com/CISA2K
Facebook group: https://www.facebook.com/cisa2k
Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge
E-mail: a2k@cis-india.org

► Support Us

Please help us defend consumer / citizen rights on the Internet! Write a cheque in favour of 'The Centre for Internet and Society' and mail it to us at No. 194, 2nd 'C' Cross, Domlur, 2nd Stage, Bengaluru - 5600 71.

► Request for Collaboration:

We invite researchers, practitioners, and theoreticians, both organisationally and as individuals, to collaboratively engage with Internet and society and improve our understanding of this new field. To discuss the research collaborations, write to Sunil Abraham, Executive Director, at sunil@cis-india.org. To discuss collaborations on Indic language Wikipedia, write to T. Vishnu Vardhan, Programme Director, A2K, at vishnu@cis-india.org.

CIS is grateful to its primary donor the Kusuma Trust founded by Anurag Dikshit and Soma Pujari, philanthropists of Indian origin for its core funding and support for most of its projects. CIS is also grateful to its other donors, Wikimedia Foundation, Ford Foundation, Privacy International, UK, Hans Foundation, MacArthur Foundation, and IDRC for funding its various projects.

For more details visit https://cis-india.org/about/newsletters/march-bulletin-2015

Studying Internet in India: Selected Abstracts

sumandro — 2015-08-28T06:53:33Z

We received thirty five engaging abstracts in response to the call for essays on 'Studying Internet in India.' Here are the ten selected abstracts. The final essays will be published from June onwards.

Deva Prasad M - 'Studying the Internet Discourse in India through the Prism of Human Rights'

Exploring Internet from the perspective of human rights gives rise to the multitude of issues such as right to privacy, freedom of expression, accessibility. Pertinent socio-political and legal issues related to Internet which was widely debated upon in the past one year in India includes lack of freedom of expression on Internet and Section 66A of Information Technology Act, 2000. The recent net neutrality debate in India has also evoked deliberation about the right of equal accessibility to Internet and to maintain Internet as a democratic space. The repercussions of ‘Right to be Forgotten’ law of European Union also had led to debate of similar rights in Indian context. Interestingly all these issues have an underlying thread of human right perspective connecting them and need pertinent deliberation from human rights perspective.

This paper is an attempt to understand and analyze theses issues from the human rights angle and also how they have contributed in evolving an understanding and perspective amongst the digitally conscious Indian’s to ensure the democratic nature of “Internet” is perceived. Moreover, analysis of these three issues would also help in emphasizing upon the need for a right-based approach in studying Internet in India.

Dibyajyoti Ghosh - 'Indic Scripts and the Internet'

Whereas the status of the internet in India is similar to the status of the internet in similar economies with low-penetration and a primarily mobile-based future, an alphabetically diverse nation such as India has its added worries. Whereas the 1990s saw an overdomination of English given the linguistic communities which were developing the world of computers and the world of the internet, by 2015, some of the disparity with offline linguistic patterns has been reduced. However, for Indic scripts, much less development has taken place. If one is studying the internet in India, chances are one is studying it in English.

What does this hold for the future of these Indic scripts? Given the multilingual skills of Indian school-goers and the increasing amount of daily reading time of those connected to the internet (which is somewhere between 12% and 20% of the population) being devoted to reading on the internet, chances are reading is increasingly in English. In this essay, I shall attempt to study the effects this has on the internet population of India, some of which are as follows.

The kind of mimetic desire it causes
The degneration in spelling skills caused due to transliteration
The effacement of non-digitised Indic verbal texts

Divij Joshi - 'The Internet in the Indian Judicial Imagination'

The first mention of the 'Internet' in the vocabulary of Indian judicial system was a fleeting reference to its radical capability to allow access to knowledge. In one of its most recent references, it expounded upon and upheld the idea of the Internet as a radical tool for free expression, announcing its constitutional significance for free speech.

The judicial imagination of the Internet – the understanding of its capabilities and limitations, its actors and constituents, as reflected in the judgements of Indian courts – plays a major role in shaping the Internet in India, both reflecting and defining conceptions of the Internet and its relationship with society, law, and public policy.

This essay is an attempt to use legal and literary theory to study the archives of judicial decisions, tracing the history of the Internet in India through the lens of judicial trends, and also to look at how the judiciary has defined its own role in relation to the Internet. It attempts a vital study of how courts in India have conceptualized and understood the Internet, and how these conceptions have, in turn, impacted the influence of the Internet on Indian society.

Ipsita Sengupta

The proposed essay will make observations of a specific kind of conversation that takes place on the social media platform of YouTube. The conclusive argument is imagined along questions of high versus low culture, as described below.

Under study are two objects- one, particular YouTube videos which play Rabindra-Sangeet, i.e. songs penned and composed in the late 19- early 20th centuries by the Bengali writer and artist Rabindranath Tagore, the body of work which today has become a genre of Indian music; and the second, comments that these videos receive from users of the site.

Visuals of YouTube song videos of Rabindra-Sangeet are of many kinds. So are renditions, with solitary or duet or band performances, and with varying pace and instrumental accompaniment.

The videos which have visuals from contemporary cinema, like images of urban youth, and the remixed renditions have often been found to receive comments which reflect/ reveal hurt sentiments of people trying to preserve some kind of sanctity of Rabindra-Sangeet, comments which state how the ethics of presenting the genre have been violated, via their notation and design, by either makers of the film in the song’s incorporation, or by the way young pop stars have been placed in particular montages.

Some examples:

In such a scenario, YouTube as medium of user-generated expression becomes interesting to analyse individual and group dynamics- given the space for commenting (below the video), and statistical data such as “Likes”, “Dislikes”, and “Views”. The debate here is that in Tagore’s “Nationalism”, when he himself is seen to have an imagination of the human race beyond patriotic groupings and consequent othering, does this apparent need to avoid “insulting” his compositions by preserving an intangible art form in a particular way, become then a type of jingoism of region or identity? And what is this Benjaminian “aura” of the “original” that listeners look for in their experience of these videos?

Laird Brown - 'Dharamsala Networked'

Three hours after regulations governing public access to WiFi in India were changed in 2005 the first router went up in Dharamsala. It was homemade, open source, and eventually, “monkey proof.” Something unimaginable had happened: high-speed Internet access in one of India’s most difficult physical geographies. Dharamsala has also become one of India's interesting information networks and has a burgeoning, unlikely 'tech scene’. But is it so unlikely?

Since 1959 Dharamsala has been home to the Dalai Lama, the Tibetan people and, government in exile. This single, significant incident possibly set in motion a number of factors that made it possible for the mountain-town to become a political, global, communications. However, much like the rest of India, the region struggles for human and environmental rights against fractured ideas of 'development'. This essay will draw on archives and interviews to unpack this microcosmic tale of Internet access, its histories and economics and the factors at play in shaping it - mundane and maverick, familiar and outlier.

Maitrayee Deka - 'WhatsApp Economy'

Everyone around us is connected to the Internet through some or other electronic devices, phones, laptops, and tablets. However, not everyone use Internet for the same purpose. Through an ethnographic account of the usage of WhatsApp messages by the traders in three electronic bazaars in Delhi, Palika Bazaar, Nehru Place and Lajpat Rai Market, we see how Internet on the phone is used predominantly for business purpose. The paper seeks to examine how Whatsapp messages, which are for most of the users a medium for social communication, for the traders in Delhi, become a mode to establish business contact with their counterparts in China. From sharing of pictures of new tools to quoting prices of different products, Whatsapp messages become the lifeline of what many has termed as ‘globalization from below’. This paper argues what has started as economic exchanges through Whatsapp messages may start a new political alliance of similar mass markets in Asia. With the electronic bazaars in Delhi facing stiff competition from formal business actors both online and offline, the WhatsApp messages that is a space of new innovations and trade alliances could sustain the mass markets in India.

Purbasha Auddy - 'Citizens and their Internet'

Suddenly it seems internet data package on mobile phones is the reply to the problems in India. As mobile phones remain with us most of the time, it is as if we are ready to face the world if our mobile phones have a data package. Yes, several television commercials in India are gleefully harping on the notes of knowledge, empowerment and freedom. Moreover, internet is being identified as a virtual institution.

The essay proposes to look into those advertisements which talk about the internet to promote data packages, mobile phones or apps. Through this, the essay firstly, would like to construct the idea of the internet using the Indian citizen who is depicted as smart and almost infallible. Secondly, on the other hand, the essay would analyse how an affirmative and constructive view of using the internet in the minds of citizens has been generated by these advertisements, like the virtual world of the internet can save you from any drastic situation.

Advertisements are creative constructs, which have a strong aptitude to entice target consumers. While studying the internet in India, studying the ‘texts’ of Indian advertisements which refer to the act of ‘consuming’ the internet could result in an interesting study.

Sailen Routray - 'The Many Lives and Sites of Internet in Bhubaneswar'

Those of us who have jumped or meandered across to the wrong (or perhaps the right) side of thirty by now, first came to consume internet in what were called, and are still called, cyber cafes or internet cafes. Their numbers in big Indian cities is dwindling because of the increasing ubiquity of smartphone, and netbooks and data cards. The cyber café seems to be inexorably headed the way of the STD booth in the geography of large Indian cities. The present paper is a preliminary step towards capturing some of the experience of running and using internet cafes. With ethnographic fieldwork with cyber café owners and internet users in these cafes in the Chandrasekharpur area of Bhubaneswar (where the largest section of the computer industry in the state of Odisha is located), this paper tries to capture experiences that lie at the interstices of ‘objects’ and spaces - experiences that are at the same time a history of the internet as well as a personal history of the city.

Sarah McKeever - 'Quantity over Quality: Social Media and the New Class System in India'

From the humblest mobile phones to the most sophisticated computers, the Internet is everywhere and nowhere in India. The boundaries, the contours of the space remain nebulous and opaque. When engaging with social media in urban India in particular, we are bound to the conventions of corporations which demand quantity over quality creating a new class system of the Internet: those who are “active” – and therefore a “better” user – and those who have seemingly failed to keep up with the demands of the medium, buried in the ever‐growing noise and chaos. The creation of a new class system on the Internet, based on Western corporate desire for data, has shaped who is seen and heard on the Internet in India.

Based on fieldwork in New Delhi which examines the impact of the Internet on offline social movements – including the anti corruption movement in 2011 and the Delhi Rape Case in 2012 – I will argue that the study of the Internet in India can reinforce Western corporate conceptions of how to use the Internet properly among various users involved in the movements. By challenging these preconceptions, this essay will engage with issues of Western corporate notions of Internet use and how we engage with and find participants, how we evaluate what is “good” use of the Internet, and the creation of a new class system on the Internet in India.

Smarika Kumar - 'Governing Speech on the Internet: Transforming the Public Sphere through Policymaking'

In the privatised spaces of the World Wide Web and the internet, how does one make sense of speech? Should speech in such a space be understood as the product of a marketplace of ideas? Or should its role in democratic participation be recognised by contextualising the internet as part of the Habermasian public sphere? These questions have interesting implications for the regulation of speech on the internet, as they employ different principles in understanding speech. Recent scholarship has argued for the benefits of employing the public sphere approach to the internet and thus recognising its democratic potential. But taking into account that all speech is inherently made in private spaces on the internet, the application of this approach is far from simple.

This creates a tension between the marketplace of ideas and the public sphere approaches to speech on the internet in policymaking. I propose to explore how legal and regulatory mechanisms manage these tensions by creating governance frameworks for the internet: I argue that through the use of policy and regulation, the private marketplace of the internet is sought to be reined in and reconciled to the public sphere, which is mostly represented through legislations governing the internet. I propose that this less-than-perfect reconciliation then manages to modify the very idea of the public sphere itself in the Indian context, by infusing participation of the "other" on the internet through indirect means.

For more details visit https://cis-india.org/raw/studying-internet-in-india-selected-abstracts

Stranded Capacities & Greater Expectations

Shyam Ponappa — 2015-06-22T01:56:34Z

India's infrastructure is in a shambles because of stranded capacities that don't connect with unmet needs. Every aspect of infrastructure, such as electricity or broadband for communications, needs to be designed and executed to flow through from end to end.

The post was published in Organizing India Blogspot on May 8, 2015. It was earlier published on May 6 in the Business Standard.

The remarkable change in expectations from last May that the National Democratic Alliance (NDA) government achieved appears to be giving way to closer scrutiny based on actual performance. Meanwhile, the wait for significant economic reforms is excruciating.

A couple of indicators of uneasiness: foreign institutional investors (FIIs) have turned watchful, with investments in equity and debt slowing after sustained inflows. (See Chart 1).

Also, while some leading businessmen have been saying everything is on track, industry credit growth is slowing relentlessly, as is to be expected when demand is muted, infrastructure is dysfunctional and credit is expensive. (See Chart 2).

The flurry of claims, accusations, rebuttals and counter-claims about earlier growth rates dwell on reclaiming the past, with little evidence of seeking clues to generate momentum and confidence. This may be attributable partly to the curse of our times: a penchant for headline-grabbing or headline-making. There is scarce interest in less flamboyant, fact-based presentation - whether it is politicians, TV and print media, or the audience, the general public. This may also be partly attributable to inept communication, a malady that seems to plague this regime despite its vaunted communication skills as much as it did the United Progressive Alliance (UPA) before it. Perhaps the Web can be better used to not only organise and coordinate within and across ministries, but also to disclose information while building convergence and confidence.

Consider some points that stand out from the clamour. One is that insufficient attention is directed towards cohesive policies, processes and institutions. On the face of it, there do appear to be several efforts at policy reform, for instance, in land and labour legislation, as well as in judicial reforms. There are critiques, however, suggesting that these stand-alone efforts suffer from insufficient resource allocation and ineffective implementation. The implication is that there is an absence of overarching vision and flowing from that, a lack of direction and integration.

Are constructive alternatives possible?

Last week's observations by former NDA minister Arun Shourie highlighted this apparent lack of vision, and how the government seemed to be dealing with the many problems like pieces of a jigsaw puzzle without an appreciation of the big picture. For example, the government's actions relating to coal and spectrum auctions are merely in line with court orders. There is no apparent effort to develop constructive alternatives in the public interest.

From a societal perspective, surely the government, the courts and the public need to ask: for whose benefit and at what cost? For instance, how are upfront government revenues from auctions beneficial to the public if they result in non-delivery or a slowdown of requisite services, compared with much larger collections over time from enterprises that deliver services after criteria-based allocations?

Note: revenue sharing can also be transparent. For transparent allocations, one alternative is to draw up technical and financial shortlists with integrity, followed by a lottery (with equal integrity). Another possibility is merit-based, open criteria judged by individuals with understanding and integrity - as was done to affect a breakthrough for land acquisition for the Calcutta Metro in 1982 and for part of the Bengaluru Metro in 2006. Both were achieved effectively without controversy by officials (or, to use the customary pejorative, "bureaucrats") entrusted with the responsibility. These individuals could be consulted.

Cohesive Leadership

An elephant in the room is the NDA's socially divisive stance. If the goal is high achievement, the need for convergent effort from our diverse, vast population is a no-brainer. Strong leadership resulting in cohesive effort is essential. The misgivings created so far must be addressed and reversed. If not attempted now, it will be a tremendous opportunity squandered.

There will be, of course, many impediments to achieving convergent efforts. And the dissonant legacy structures - such as realigning the judiciary and executive to constructive engagement, a constructive welfare net in place of Mahatma Gandhi National Rural Employment Guarantee Act, formulating truly beneficial policies for our needs instead of aping detrimental auction models - will be difficult to replace.

It is likely that we will continue in our shambolic ways, depriving ourselves of the gains of organisation and productivity. Yet there is the tantalising possibility of great gains if we were to have the right leadership, and if we could ourselves rise to the occasion.

Infrastructure

Another elephant in the room is our atrocious infrastructure. Successive governments and all parties have foundered on this. Empty talk of "second-round" reforms and so on betray a complete lack of understanding of the elements of essential, enabling infrastructure. At the most basic level, electricity, communications, transport and logistics, water and sewerage/waste disposal are fundamental requirements for productive living. These must be the relentless focus of end-to-end delivery systems.

The reforms in power and communications since 1991 were encapsulated sub-processes, as in Chart 3. Each of the boxes is a complex process in itself, and each has its position in the process flow as shown. Electricity reforms relate to fuel, generation, transmission, distribution and cash collection. Unless all steps in the chain are completed, we will be left with stranded capacities in one or more of these "boxes", like stranded generation plants, as we have been so far.

For broadband communications, the areas are the access, aggregation and the core or backbone networks. The most difficult are the last-mile links in access networks. Elements like the National Optical Fibre Network (NOFN) backbone are stranded unless they are connected with aggregation networks that lead to last-mile access, which could be a wireless, cable, telephone wire, or an electricity link. The system must be designed in its entirety to deliver.

What began the information technology services revolution was facilitating every link in the chain from one end to the other, with permissions, incentives and tax cuts, even if it was only a "thin pipe", 64 kbps link that bypassed initial hurdles for a start. The government could consider variants that could work for each infrastructure sector.

For more details visit https://cis-india.org/telecom/blog/business-standard-op-ed-may-6-2015-shyam-ponappa-stranded-capacities-and-greater-expectations

Inclusive Financial Services - Global Trends in Accessibility Requirements

nirmita — 2015-05-03T06:55:49Z

Inclusive Financial Services is a G3ict White Paper researched in cooperation with the Centre for Internet and Society. The research paper comprises a Foreword and Introduction, four chapters — Barriers to Access for Persons with Disabilities and Diverse Abilities, International Framework, Integrating Accessibility into the System, and State of Practice - Impact of the Convention on Inclusive Finance and Accessibility Efforts around the Globe.

Foreword

Global demand for accessibility continues to grow, due in part to the strengthening voice worldwide of more than one billion people with disabilities, including the aging population, and important frameworks, such as the United Nations Convention on the Rights of Persons with Disabilities. From a private sector standpoint, the Convention represents a unique opportunity to ensure equal access to information while achieving global harmonization of standards and economies of scale. Understanding that technology is the great equalizer for underserved populations and having a clear roadmap towards inclusive information and communications technologies (ICT), rather than simple compliance strategies, will benefit everyone in every industry.

Specifically, the financial services sector is faced with the need to transform operations while providing truly exceptional customer experiences. Disruptive trends -- such as the aging population, influx of mobile devices and global regulations – are driving demand for more human-centric technology, and creating an opportunity for innovation that are proving to be differentiators for the institutions embracing them. Consumer demand to be in control of interactions and information is forcing those in financial services to reconsider what’s important to stay competitive. By offering an online experience through any device personalized to individual needs, preferences and abilities, organizations can ensure they are reaching the broadest base of the population, especially the “unbanked” and “underbanked,” to enhance interactions and improve sales opportunities.

Customers with lifelong disabilities or age-related impairments represent an increasingly large population among the biggest markets in the world such as OECD countries and China. Also, in many countries aging persons are the holders of a majority of the assets and highly dependent on insurance, retirement and banking services. Ensuring they can use the services they need without encountering accessibility barriers is a powerful way to earn their loyalty in a highly competitive environment.

IBM has a long tradition and culture of accessibility and understands the importance of improving the user experience, managing accessibility compliance, and creating an inclusive workplace environment. Consistent with our own experience, this report highlights the organizational and process adjustments needed to ensure everyone has equal access to timely information they need for work and life.

By creating a holistic strategy for embedding accessible technology across the entire enterprise - from processes to product development to people – organizations can reinvigorate individual channels and harmonize them across the bank. G3ict has written this timely publication for the financial services sector that provides a clear picture of the global forces at work that are transforming how employee- and client-facing applications, products and services are delivered to reach the broadest set of customers. The report also serves as a useful benchmarking source for governments and advocates based on its review of existing solutions already implemented around the world. We applaud G3ict for taking this first step on the road of advocating for greater accessibility of financial services in cooperation with stakeholders from around the world.

Ian Hurst, General Manager, Global Financial Services Sector, IBM Corporation
Frances W. West, Chief Accessibility Officer, IBM Corporation

Introduction

Financial services play a necessary and important role in societies by enabling access to products, resources, and services, enabling savings and asset creation, and facilitating economic self-sufficiency. Access to financial services for all is a necessity in today’s world not simply at the community or household level, but at an individual level, to open doors to banking services, credit services, stocks and shares, insurance, and other markets. Access to and inclusion in financial services is crucial to poverty reduction and participation in economic prosperity and growth and development.

The increasing pervasiveness of technology in the delivery of financial services and the disruption of traditional channels of delivery through ‘FinTech’ (technology for financial service delivery) have generated new enthusiasm and newer ways for reaching out to persons who remain unbanked. Similarly, the increasing nature of services now available through technology has triggered growing demand among persons who remained marginalized from traditional paper-based banking services, as well as calls to ensure that they do not in turn create new barriers to access. Accompanying this growth spurt in technology there has also been an increasing recognition of the rights of persons with disabilities and the utmost importance of providing equal access to them to all services, including financial services.

Persons with disabilities and diverse abilities have been amongst those traditionally marginalized from the financial services sector through a mix of inaccessibility, presumptions of limited need and capacity to manage finances, and mindsets that did not view them as a profitable consumer base. This paradigm is now rapidly changing with growing evidence of their demand and need for access to services as well as the increasing income base of persons with disabilities around the world. Persons with disabilities and diverse abilities are demanding better and easier access to the entire range of financial services. Access to and inclusion in financial services is important to persons across the economic spectrum. And for persons with disabilities who live under the poverty line, it is essential that they are involved in financial inclusion initiatives and programs that will empower them and enable them to become financially independent.

A range of factors are serving as drivers to enhance the inclusion of persons with disabilities and diverse abilities through accessible financial services including demographics, attaining a competitive advantage and improving market share nationally and globally, Corporate Social Responsibility, regulations, legislation and compliance, enhancing business value, ensuring and increasing an inclusive workplace for employees with disabilities, maximizing on technology advances, and ensuring diversity and inclusion for all.

This report offers an introduction and overview to the need for, and mechanisms to achieve accessibility in financial services:

Chapter 1 offers an understanding of the barriers posed by inaccessible financial services to persons with different disabilities.

Chapter 2 highlights the different international mandates and frameworks that are accelerating the promotion of financial inclusion for persons with disabilities.

Chapter 3 offers in-depth descriptions of the accessibility needs based on the type of technology in use, along with examples of effective practices and solutions to promote inclusion. It also offers a look at how different countries are striving to achieve the accessibility mandate.

Chapter 4 focuses on the state of practice of financial inclusion for persons with disabilities across countries and the implementation of the Convention’s requirements for ICT accessibility and financial inclusion. This chapter describes findings from two major studies undertaken by G3ict that paint a picture of the state of financial accessibility today and offer a glimpse into the financial sector’s commitment to incorporate accessibility into their work and services in the future.

Finally, in the Conclusions section, the report offers recommendations for relevant stakeholders to incorporate the principles of inclusion to drive accessibility through product design and delivery, policy and legal structures, and distribution channels and pathways.

Download the report

For more details visit https://cis-india.org/accessibility/blog/inclusive-financial-services-global-trends-in-accessibility-requirements

April 2015 Bulletin

praskrishna — 2015-05-31T04:29:24Z

Newsletter for the month of April below.

We are happy to share with you the fourth issue of the Centre for Internet and Society (CIS) newsletter (April 2015). The past editions of the newsletter can be accessed at http://cis-india.org/about/newsletters.

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Highlights
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CIS received 35 engaging abstracts in response to the call for essays on 'Studying Internet in India'. The final essays will be published from June onwards. The ten selected abstracts can be read at http://cis-india.org/raw/studying-internet-in-india-selected-abstracts/ .

CIS submitted its comments to the National Informatics Centre on April 30, 2015 bringing to notice the negligible progress on the front for making Indian government websites conform to the notified standards, and gave recommendations to take the initiatives forward.
Nehaa Chaudhari has prepared a consolidated report that tracks the development of India's National IPR Policy and the requests by CIS to the Department of Industrial Policy and Promotion under the RTI Act and responses elicited from the Department.

Institute of Odia Studies and Research organised 2nd National Language Conference beginning on March 30, 2015 and ending on April 2, 2015 at the Institute of Physics, Bhubaneswar. This conference was organised in collaboration with the Department of Tourism and Culture. Subhashish Panigrahi presented a paper in Odia language in this conference as part of a panel discussion related to Odia language computing.

Sunil Abraham's article titled "Shreya Singhal and 66A" was published in Economic and Political Weekly Vol-L No.15. Vidushi Marda helped in doing the research.

Sunil Abraham in an article in DNA titled " Multiple Aspects Need to be Addressed as the Clamour Grows for Network Neutrality " tells readers that there are four violations of Network Neutrality that are considered particularly egregious.

Jyoti Panday prepared an analysis of the Supreme Court judgement in Shreya Singhal and what it does for intermediary liability in India.
In February 2015, CIS had requested DeitY under RTI Act to provide information clarifying the procedures for blocking in India. The response elicited from DeitY has been published.

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.

► Vacancies at CIS

CIS is seeking applications for:

Internship : CIS is providing opportunities for students enrolled in graduate programmes to undertake internship at its offices in Bangalore and Delhi. Eligible candidates are welcome to participate in our internship programme.

►NVDA and eSpeak

# Monthly Updates

April 2015 Report (Suman Dogra; April 30, 2015).

# Language Testing Reports

Hindi Language (Nirmita Narasimhan; April 10, 2015).
Gujarati Language (Nirmita Narasimhan; April 16, 2015).
Oriya Language (Nirmita Narasimhan; April 30, 2015).

►Other

# Submission

Comments to the GIGW (Nirmita Narasimhan; April 30, 2015).

# Blog Entries

Methodology: Patent Landscaping in the Indian Mobile Device Market (Rohini Lakshané; November 10, 2014). The list of standards and specifications found in sub-USD-100 Internet-enabled mobile phones sold in India" (Annexure 2 in the post) has been updated .
Conference on Standards Settings Organizations (SSO) and FRAND, NLSIU (Rohini Lakshané; April 5, 2015).
National IPR Policy Series: RTI Requests by CIS to DIPP + DIPP Responses (Nehaa Chaudhari; April 15, 2015).
Pervasive Technologies Project Working Document Series: Literature Review on IPR in Mobile app development (Anubha Sinha; April 29, 2015).

Media Coverage

CIS gave inputs for the following:

One reason startups are moving out of India (Evelyn Fok and Varun Aggarwal; The Times of India; April 10, 2015). This was also mirrored in Economic Times .
Indian businesses crave IP certainty, but better patent values are tempting them overseas (IAM Magazine; April 28, 2015).

►Wikipedia

# Participation in Event

2nd National Language Conference, Bhubaneswar (Organized by Institute of Odia Studies and Research; Institute of Physics; Bhubaneswar; March 30 - April 2, 2015). This conference was organised in collaboration with the Department of Tourism and Culture. Subhashish Panigrahi presented a paper in Odia language in this conference as part of a panel discussion related to Odia language computing.

# Blog Entries

Hindustani Language: We Are Wikipedia (Syed Muzamiluddin; April 10, 2015).
ଓଡ଼ିଆ ଭାଷା ପାଇଁ ଡିଜିଟାଲ ଅସୁବିଧା (Subhashish Panigrahi; April 15, 2015).
Wikipedia Campus at Oxford College (Subhashish Panigrahi; April 28, 2015).

# News and Media Coverage

CIS-A2K team gave its inputs to the following media coverage:

Odia waits for Google Translate debut - Nine Indian languages available (Anwesha Ambaly; Telegraph; April 6, 2015).
Now you can search Google in Kannada, in your handwriting (Apurva Venkat; Bangalore Mirror; April 18, 2015).

►Openness

# Event Co-organized

NASA International Open Data Challenge 2015 (Co-organized by CIS and Team Indus; Bangalore; April 11-12, 2015).

►Freedom of Expression

# Articles

Shreya Singhal and 66A (Sunil Abraham; Economic and Political Weekly Vol-L No.15; April 11, 2015). Vidushi Marda helped in doing the research.
Don't Do Nothing. Take a Stand on Net Neutrality. (T. Vishnu Vardhan; NDTV; April 13, 2015).
Multiple Aspects Need to be Addressed as the Clamour Grows for Network Neutrality (Sunil Abraham; DNA; April 16, 2015).
The Hazards of a Non-neutral Internet (Geetha Hariharan; April 18, 2015). A modified version of the blog entry was published as an article titled " A must for free speech " in the Week.

# Blog Entries

The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India? (Jyoti Panday; April 11, 2015).
DeitY says 143 URLs have been Blocked in 2015; Procedure for Blocking Content Remains Opaque and in Urgent Need of Transparency Measures (Jyoti Panday; April 29, 2015).

# Event

Freedom of Expression in a Digital Age: Effective Research, Policy Formation & the Development of Regulatory Frameworks in South Asia (Organized by Center for Global Communication Studies at the Annenberg School for Communication at the University of Pennsylvania, Observer Research Foundation and CIS; Observer Research Foundation, New Delhi; April 21, 2015).

# Participation in Event

Financial Express hosts #NetNeutralityDebate: 'Price discrimination can be allowed, but not for the same packet of data' (New Delhi; April 24, 2015). Pranesh Prakash participated in the discussion.

►Privacy

# Participation in Event

Privacy International Network Meeting (Organized by Privacy International, UK; April 22 - 23, 2015). Sunil Abraham attended the meeting.

►Miscellaneous

# Announcement

IIGF Recruitment : The National Internet Exchange of India (NIXI) conducted walk-in interviews on May 16, 2015 at NIXI Jasola office, Flat No. 6B, 6th Floor, Uppals M6 Plaza, New Delhi. NIXI sought candidates to fill the posts of Technology Analyst, Policy Analyst, Research Associate and Executive Assistants.

# Participation in Events

Global Conference on Cyberspace 2015 (Co-organized by Dutch Government, City of the Hague and One Conference; The Hague, Netherlands; April 16 - 17, 2015). Sunil Abraham was a panelist. He also participated in an expert roundtable conference .
CII Digital India Summit (Organized by Confederation of Indian Industries; Taj Mahal Hotel and Pragati Maidan, New Delhi; April 21 and 24, 2015). Pranesh Prakash attended the summit.

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News & Media Coverage
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CIS gave its inputs to the following media coverage:

'Smack' the Trolls! (Marianne De Nazareth; The Citizen; March 31, 2015).
The block heads (Sibi Arasu; Hindu Businessline; April 3, 2015).
Smriti Irani brings back focus on voyeurism prevailing in our country (Amrita Madhukalya; DNA; April 6, 2015).
Surveillance rises, privacy retreats (Namrata Acharya; Business Standard; April 12, 2015).
People voice their support for net neutrality, say Internet a utility not a luxury (IBN Live; April 13, 2015).
Net neutrality: Trai receives over 2 lakh mails (Sandhya Soman and Jayanta Deka; April 14, 2015).
Net neutrality: Debate rages on (Surabhi Aggarwal; Business Standard; April 11, 2015)
Net neutrality debate rages (Lalatendu Mishra and Pradeesh Chandran; The Hindu; April 15, 2015).
Net neutrality: Net activism packs a punch (Sandhya Soman; The Times of India; April 19, 2015).
Net Neutrality debate in India: Here are all the arguments you need to know (Indian Express; April 23, 2015).
Freedom struggle 2.0 (Zara Khan; Hindu; April 25, 2015).
Cry, you nasty trolls (Prasun Chaudhari; The Telegraph; April 26, 2015). Net Neutrality: The argument continues (Deepak Ajwani and Debojyoti Ghosh; Forbes India Magazine; April 29, 2015).

# Blog Entries

Studying Internet in India: Selected Abstracts - CIS received thirty five engaging abstracts in response to the call for essays on 'Studying Internet in India.' The final essays will be published from June onwards. These are the ten selected abstracts: Studying the Internet Discourse in India through the Prism of Human Rights (by Deva Prasad); Indic Scripts and the Internet (by Dibyajyoti Ghosh); The Internet in the Indian Judicial Imagination (by Divij Joshi); Dharmasala Networked (by Laird Brown); WhatsApp Economy (by Maitrayee Deka); Citizens and their Internet (by Purbasha Auddy); The Many Lives and Sites of Internet in Bhubaneswar (by Sailen Routray); Quantity over Quality: Social Media and the New Class System in India (by Sarah McKeever); Governing Speech on the Internet: Transforming the Public Sphere through Policymaking (by Smarika Kumar).

# Submission

Response to TRAI Consultation Paper on Regulatory Framework for Over-the-Top (OTT) Services (Pranesh Prakash; March 27, 2015). The response was sent in March but mirrored on our website recently.

► Follow us elsewhere

Twitter: https://twitter.com/CISA2K
Facebook group: https://www.facebook.com/cisa2k
Visit us at: https://meta.wikimedia.org/wiki/India_Access_To_Knowledge
E-mail: a2k@cis-india.org

► Support Us

► Request for Collaboration:

For more details visit https://cis-india.org/about/newsletters/april-2015-bulletin

Net Neutrality: The argument continues

praskrishna — 2015-05-09T11:35:23Z

Opposing camps pitch their views on what zero rating and differential access to the internet would mean in India.

The interview was published by Forbes India magazine on April 29, 2015. Pranesh Prakash gave his inputs.

The debate on net neutrality in India is playing out on the internet, social media, television and newspapers. On one side, there are telecom service providers who believe in services such as zero rating and sponsor-enabled free access to the internet for consumers; on the other, there are proponents of free and fair access to the internet who consider variable access as a violation of the principles of net neutrality.

The Telecom Regulatory Authority of India (Trai) has launched a consultation paper, inviting views from the public to analyse the implications of the growth of internet services, apps, over-the-top services (OTTs) and consider changes required in the current regulatory framework.

To get both sides of the argument, Forbes India spoke to Rajan Mathews, director general at the Cellular Operators Association of India, and Pranesh Prakash, policy director at The Centre for Internet & Society (CIS), a Bangalore-based, non-profit, research and policy advocacy.

Q. How are zero rating and net neutrality linked? And if they are separate issues, what differentiates them?
Rajan Mathews: Zero rating and net neutrality are two separate issues. Net neutrality is about not denying access, and about the absence of unreasonable differentiation on the part of network operators in transmitting internet traffic. Zero rating is when operators subsidise tariffs as a result of commercial arrangements with application providers who do not discriminate against the customer, but provide a benefit. Zero rating is not a net neutrality issue since access to all content and applications remains open. Such arrangements increase social welfare by transferring the cost of internet access from consumers to content providers. If a content provider deems its revenues to be substantial and wishes to engage in distribution arrangements with last-mile access providers to subsidise access to its services, it should be allowed to do so. Zero rating should be the customer’s choice.

Pranesh Prakash: The issues of net neutrality and zero rating are intrinsically linked. Zero rating is the practice of not counting certain traffic towards a subscriber’s regular internet usage. The motivations for zero rating are many. Unbundling is one. For example, a consumer wishes to use a WhatsApp pack as opposed to accessing WhatsApp through the regular internet pack. Self-interest is another: Showcase the internet’s value through cheap or free packs of certain internet services so that customers graduate to higher data packages.

All forms of zero rating—zero-priced, fixed-priced, subscriber-paid or internet service provider (ISP)-paid, content-based or content provider-based—have one thing in common: They are instances of discrimination on the network. This links it to net neutrality, which, at its core, is a question about discrimination by ISPs.

We shouldn’t only be focussed on the existing models of zero rating while regulating it, but also on the models that may emerge in the future.

Q. Zero rating is seen as an attempt to give internet access to millions of Indians who can’t afford an internet connection. Is there a different, but net-neutral, way to do this?
Mathews: Zero rating is [offered] in the nature of a subsidy, which is prevalent and practiced in all forms of businesses. For example, MS Office is available at different rates to different consumers such as homes and businesses, students and enterprises. It is for the consumer to choose which version to buy. The same should be applicable to telecom services as well.

Prakash: Just because something provides access to the bottom of the pyramid doesn’t make it something we should have. For example, predatory pricing is something that might benefit all subscribers in the short term but, over time, it harms the market, competition and consumers. Suppose all ISPs are mandated to provide internet for free to everyone; in the short run, everyone will get free internet but it’s not a sustainable business practice for ISPs. If free internet can be sustainably provided, that’s not harmful. The current debate is to evaluate if we can ensure a method where we can have competition while providing access to the bottom of the pyramid.

For more details visit https://cis-india.org/internet-governance/news/forbes-india-april-29-2015-deepak-ajwani-debojyoti-ghosh-net-neutrality-the-argument-continues

Pervasive Technologies Project Working Document Series: Literature Review on IPR in Mobile app development

sinha — 2015-08-31T13:48:02Z

This post is literature survey of material exploring and analysing the role of Application Platforms in the Mobile Applications Development ecosystem, albeit from an intellectual property perspective. The document is a work in progress.

1. What are the decisions developers are making within their practice in terms of location of their enterprise and clients, scale of audience, funding, business models and mobile apps marketplace (app stores)? Who is the primary actor in the mobile applications development cycle in India?

1.1. Is the mobile apps marketplace organically developing into a Bazaar model, or a Cathedral model?

1.2. What are the contractual terms between the enterprise and the employee? What is the typical nature of agreements in the mobile apps development industry between enterprise- employee and enterprise- client?

The role of Mobile application developers (“developers”) is critical in the app market, especially when such markets are regarded as the key entry and dissemination point for mobile content. Developers are seen as innovation engines and the fastest route to innovation, so understanding factors that attract and retain third party mobile application developers is of importance to mobile platform providers in order to survive.

Who are the primary actors in the mobile applications development cycle in India?

This chapter of the Pervasive Technologies Project (“Project”) aims to study developers who are key contributors to the mobile applications space within India; and the problems, those being faced by them as they attempt to navigate an emerging and ambiguous ecosystem. The results of our qualitative research give us insight into the characteristics of this new tribe. A majority of the developers do not own the products they innovate and instead assign ownership of their IP over to their clients. Innovating for the purpose of creating and retaining ownership is a key motivation and is reflected in the tendency of developers to move away from the services sector to develop their own products.[1]

As one developer puts it, “unless you're a 1000 man enterprise, there's no economic benefit in services; as competition has driven pricing so low, everyone's struggling to deliver $12-14 per hour.”

Every startup in mobile development, especially, is doing services to stay afloat and would like to move toward a product model.

Further, IAMAI conducted a survey[2] in 2013 and the report presents an analysis in four sections:

a) Who? The App Developer in India

b) What? The Preference of Users and Developers in India

c) Why? The Business of Apps in India

d) How? The Future of Apps in India

The Report states:

“The vast majority of app developers in India are male. In their survey of 454 developers, only 35 respondents were female reflecting the gender bias. On the demand side 80 percent of smartphone users in India are male reinforcing the male dominance. Geographically the respondents were all based in India except one developer of Indian origin residing in Malaysia. The well known and established IT cities in India are attractive for app developers because they provide with easy access to infrastructure, skill and a ready market for products. The survey shows the concentration of app developers in the cities of Bangalore, Mumbai, Delhi NCR, Hyderabad and Ahmedabad. A larger percentage of developers in such IT cities make apps on a full-time basis as compared to developers in other cities. The survey data also shows that Bangalore, Mumbai and NCR have the maximum number of companies (organized business operations) engaged in app development. Cities like Ahmedabad, Hyderabad and Chennai host many small teams of app developersas well as self-employed app professionals. In most of the other cities such as Bhubaneshwar, Cochin, Coimbatore, Gandhinagar and Kota, app development is done primarily on a part-time basis and is not the primary source of income. This could be the result of limited monetization options that make app development an unsustainable livelihood for many.

The popularity of international apps was evident in the survey data. The average download of ‘Indian’ apps was very low. Only 14 of the 454 developers has crossed the hundred thousand download mark, of which only 5 surpassed the one million milestone. These numbers do not pertain to a single app, but to the cumulative number of downloads across all the apps created by each developer, supporting the thesis of low visibility of apps developed domestically.

In their sample of 454 developers, entertainment apps including gaming and social networking are the dominant categories reflecting demand side preference. Utilities, health and education are the other important categories. The survey also below provided the number of apps developed under each category. The list does not include lifestyle and enterprise apps which are exceptions. One forceful result of their survey is the focus of app developers on foreign app demand in preference to producing locally-relevant content - as the latter is less profitable. Each respondent in their sample had developed an average of 38 apps. Of these 13 have developed 100 or more apps and these are the larger professional app companies. After excluding extreme values, the average number of apps developed by each respondent fell to 17.

Skewed revenue sharing models biased against content providers was one of the main reasons why Indian app developers focus on international app stores such as Apple App Store or Google PlayStore that offer a flat 70 percent of the total revenue to developers. This adversely affected development of India-specific apps and even popular apps such as Saavn and Zomato have expanded abroad because of this very reason.

Survey results indicated an Android dominated future for the app economy in India for two apparent reasons. One, Android devices are more affordable and two, the Android ecosystem is open allowing OEMs such as Samsung and HTC to manufacture mobile devices that use the Android OS. The drawback turns out to be the resulting fragmentation in screen sizes, resolution limits and hardware traits. Because of this, “developing apps that work across the whole range of Android devices can be extremely challenging and time-consuming.” Moreover, Indian app developers need to recognise the existence of an active market for used phones and thus the appeal of ‘backward compatibility’ i.e. an app that can work across old devices as well as new ones and also function across both old and new versions of operating systems will stand a better chance of success.

On the whole, app development was not considered to be a remunerative business opportunity. 17 percent of respondents who answered the question on choice of revenue model indicated that they did not have a specific revenue generation plan. While some developers are engaged in contractual development, there are few developers who self finance their project and do not actively market or promote their app. The business of app development in India seems to be at a stage in which it could be characterised as one based on a ‘hit and trial’ philosophy. Self financing is common in the industry. Only 7 and 13 developers approached banks or venture capitalists for financing. Funding an app developer was not an investor’s primary choice. Recognising the market failure and the utility of apps, the Department of Electronics and IT and Department of Telecommunication have both instituted funds to encourage mobile technology ventures

and app development in India.[3] One can argue on the efficacy of the use of limited public resources for app development, but not the fact that app development in India needs a boost. The industry is still very young and ‘unorganized’ and is largely dependent on own and informal sources for financing. The study presents presents the source of financing for app developers.”

Understanding of IP

There is a lack of understanding of IP amongst the developers. During the course of interviews, IP was often thought of as mere content or code. There was also confusion between the terms IP and IPR. The few developers who understood the nuances of IP better, voiced a need for the developer community to deepen their understanding of what parts of their work are IP. Samuel Mani, Founding Partner of Mani Chengappa & Mathur, stressed that developers should recognize the value within not just the product or software itself, but the background business processes. According to Mani, the execution of the idea is the true source of innovation; how one accesses the market, and maybe who the market is as well.[4]

The IAMAI report[5] had some observations on the impact of IP on the apps industry. According to the report, “since the industry thrived on innovation, protection of intellectual property was important to developers. The balance between protection and sharing of innovation was part of a larger and often tendentious debate on open source versus proprietary software development.[6] The survey did not attempt to deconstruct that debate; merely reported that 70 percent of respondents were of the view that intellectual property protection was a concern for app developers. However, not all had taken steps to protect intellectual property. The lack of seriousness could be associated with poor revenue potential from apps. Among those who had, some obtained copyrights/patents, while others worked with individual checks on in-app piracy using code morphing, copy protection, server–based checks, or both etc (The study provides data on different IP protection measures).”

Nature of their clients

Out-sourced 'mobile app services' is marginal as a business model here in India.[7]

Ownership of their product/service:

Often, the lack in understanding can be traced to the developers working in isolation from the legalities involved in assigning the product to the client. Majority of those interviewed developed mobile app products for clients, and in turn assigned ownership of their products to their clients. As previously mentioned, they commonly shared an interest in leaving the services sector to create products of their own, with some of them already having made the transition within their business model.[8]

Contractual clauses most important to mobile app developers: Delving deeper into the aspect of assigning ownership to clients, the most common practice is for developers to enter into a work-for-hire agreement with the client. Typically, a work-for-hire agreement mandates that if a worker is paid to carry out a particular project, whatever is created within the project belongs to the client.[9]

For startups where team players are small in number, it is likely that all will have access to any contract agreements entered into with clients. For larger corporate software developer firms, there may be a specialized department for legal-related matters. In such cases, the mobile app developers themselves would seldom lay eyes on the legalese of contracts, for the primary reason being that it doesn't concern them. Instead, the terms of agreement more familiar to them would be those that they obliged to upon working for their employer. The interviews revealed that the importance of contract agreements was actually underestimated in the country.[10]

Within a work-for-hire agreement, it is commonplace for developers to enter into restrictive agreements that obstruct the freedoms of what they can do with the code created for the client. Problematic areas proved to be those related to the time periods in which the developer was not allowed to take up future work for competing clients (i.e. the non-compete clause), or could not talk about their work for the client at all (the “quiet period”).[11]

Developers are unable to license their work to other interested clients when one client retains ownership. “Clients typically do not want a perpetual license, but complete ownership”, says a website developer. He further explains that, “this means they could make a derivative work or use it for another project. Depending on how bad we want the project, we'll work out some middle ground.” But it does not seem to be so easy for he and his SME to do so: “The thing about contracts is it’s all about a sort of differential bargaining power that the two parties have... you’ll have very little control about what happens once you’ve got paid.”[12]

To have any sort of bargaining power within a work-for-hire arrangement requires a lot of time for negotiating, and the space for communication to begin with. In many cases, contracts may not even be introduced into a work agreement, leaving a lot of intricacies to the unknown.

The problems are further compounded by contract illiteracy, more so in second tier cities.[13]

2. What is the nature of innovation emerging from the mobile app industry? What is the awareness of the "mobile applications developer and its enterprise on rules concerning code, content and design? How does re-use and sharing of code, content and design occur in the mobile application developer ecosystem ? What is the perceived impact of the Indian IPR regime on the aforementioned aspects? Finally, do the emerging trends in re-use and sharing of code run afoul of Indian IP law?

There is a marked shift towards using open source software amongst developers. According to a Gartner study, most software makers will have some open source applications or code in their portfolio by 2016. The study also reaches the conclusion that 99% of Forbes’ Global 2000 companies will be using some form of open source software.[14]

Awareness

The interviews revealed different personal understandings of the meaning of IP. The most common responses were the following[15]:

A : When questioned about IP to developers, they did not know what it meant, because it didn’t have anything to do with what they were doing.

B : Developers often did not know what part of their app was IP... there is was gap in understanding with respect to IP.

For the most part, it seems, IP was considered to refer to content or code across interviews, and was even confused at one point with IPR (IP Rights) within a response referring to an SME's trademark and pending application.

For those who appeared to be better versed in matters related to IP, they emphasised on the need for developers to be better acquainted with what parts of their work are IP. One interviewee stressed on the importance of developers to recognize the value of background business processes, apart from software and the product itself. [16]

In certain cases, it took $1 million in sales for a medium-sized software development enterprise to start paying attention to IP. The enterprise tried to obtain patent protection for their application, but the effort turned out to be futile.[17]

Protection of work (Speaks to awareness also)

When asked, those interviewed responded with a variance in answers. Some simply stated that their work is not protected, while a few mentioned that they acquired trademark or intend to apply for trademark protection. One interviewee had a patent pending in India and the US, as well. In many conversations, developers mentioned that their code for their apps is under open source licenses, and a couple others entailed sharing that the content is under creative commons licenses, “individual licenses,” or joint copyright. Additionally, within one interview, one mentioned the use of encryption tools as a technical means of protection for their work.[18]

“The concept of securing IP is relatively new within the Indian context... it becomes a question of priority between innovation and protection" — Aravind Krishnaswamy, Levitum.

Of the developers interviewed, many exhibited some sort of confusion or misunderstanding related to the protection of their works by means of intellectual property rights (IPR). Those interviewed seemed to either express an interest to acquire IPR in the future for their products in the forms of patent or trademark protection, or expressed their appreciation for openness source licensing—or both! Beneath these immediate responses, however, many repeated patterns, as well as contradictions, are revealed. Conversations that followed within these interviewed entailed the opportunity to hear from personal experiences and opinions on different areas within their practice intersecting IPR.[19]

Across interviews conducted, one particular observation entailed the tendency for developers to have worked in the past for corporate employers that have dealt with cases of infringement or have acquired IP protection. Almost half of those interviewed shared the fact that they worked for a corporate employer and became better familiar with different notions of intellectual property through that experience. It may not be too far-fetched to suggest, then, that for the developer the idea of acquiring IPR protection is one that may be reinforced from previous employers or other successful development companies with IPR of their own.[20]

Impact of law & reasons for IPR Protection

One would assume that if a startup was bootstrapped with minimal cash flow, then it would place a low priority on getting IP protection for its products. Aravind Krishnaswamy of startup, Levitum, also stated that “the concept of securing IP was relatively new within the Indian context.” [21]

Yet, many developers who were interviewed did express an interest in IPR. The main concerns developers believed IP protection would address, were proving ownership over their work or preventing problems in the future. One developer's commented on how the mobile app market is a “new and potentially volatile area for software development.” For this reason, it was imperative that he and his team attempted to avoid trouble in the future, and ensure that they going about mobile app development the right and moral way.[22]

Within another interview, developer, John Paul of mobile app SME, Plackal, explained his motives for seeking to acquire patent protection, the application for which back then was pending in India and the US: "For us, applying for a patent is primarily defensive. And if it does get infringed upon, it would give us a good opportunity to generate revenue from it." For the company's trademark, they sought to be able to enforce their ownership over their product's brand: “As a precautionary, we've trademarked the app so that should there be a situation where the app is pirated, we can claim ownership for that app.”[23]

Do the emerging trends run afoul of Indian law?

Yes. This was evident from the legal practices of mobile app developers and the resulting cases of infringement.

Some instances of infringement (limited to Mobile app content (i.e. logos, pictures, etc.)) are[24]:

• Pirated apps in app stores

• “Dummy apps” or imitations of another's app

• Breaching app stores user agreement

• Violation of License agreements of code created by another

• Violation of Open source licenses

• Breaching of terms of agreement for by commissioning clients

• Breaching of terms of agreement for by those hired

Some of the developers indicated that they weren't a fish big enough to be pursued for infringement. “The big companies do not go after small developers; it depends on how much money they're making.” said a developer. He added,“Patent lawsuits can cost something like millions of dollars, so unless they're going to get more back, they wouldn't go through the trouble of doing so... but that is true even in the US.”

Some added that others who may have been apparently copying you, may have been working on the same content independently. Corporate players are in non-compliance knowingly than not, whereas more SMEs infringe upon others without being aware that they are. Just as well, the degree to which infringement takes place may differ between the two types of industry players: “At the corporate level, where they know they are not in compliance, the degree of non-compliance might be very small or specific, but it still exists.” On the other hand, for startup developers, a substantial amount of their code may not comply with the licenses and agreements they are obliged to—something that could pose problems for them later down the road if left unfixed. [25]

3. The apps marketplace is extremely important since they are the gatekeepers enabling access to apps. What is the nature of the apps marketplace? What are the limitations associated with it ? How do the existing regulatory models intersect with this relatively new marketplace? What is the enforcement carried out by these app stores in terms of IP?

“The app platform is a gatekeeper which provides the consumer and developer a virtual space to buy and sell products (mobile apps). What is the nature of the app platform? What are the limitations associated with it?

An app dealing in pirated content or infringing intellectual property faces the risk of getting barred by the app platform. What is the enforcement carried out by app platforms to protect intellectual property?”

Firstly, what is an app platform?

Iansteti and Levien[26] state that at the core of each innovation network is a focal organization known as platform owner (or keystone) that provides the platform to facilitate contribution by other members in the network.

Hagiu[27] defines a platform as a product, service or technology that provides a foundation for other parties to develop complementary products.

Specifically, I Kouris[28] defines an app platform as a special kind of electronic market which enable software developers to distribute their software applications(apps) among users of mobile devices like smartphones or tablets. An app platform owner dictates the entire infrastructure(like user interface, server space, etc.) and determines the rules for the interaction between the developers and users. They usually provide information about apps and developers and serve as a trusted third party by controlling app quality. Fransman M[29] characterised the app platform as an 'innovation ecosystem incorporating app developers effectively.'

Innovation can happen within the enterprise, or can take a more open route and benefit from external innovation. In order to gain the benefit of external innovation, platform owners must open their platforms up beyond their internal base of developers and provide resources to third party developers.[30]

What is the platform concept in software?

Broadly, Noori[31], discusses the issues about the platform concept in software and attempts to address the subject of platform strategy. Tsai, Phal & Robert[32] further the discussion by stating principles for an effective platform strategy.

In mobile ecosystems building a developer community is one of the niches to attract the developers to join the ecosystem. However, health can mean differing things for different ecosystem members. In order to stimulate innovation[33] the keystone company is often forced to relinquish much of their control over the platform to the development community. This involves a careful balancing act in relinquishing enough control to create a healthy environment for developers, and not stifling innovation while retaining a necessary and desired degree of control.[34]

Baskin[35] examines the problems concerning software patent under the mobile applications platform environment. The scope of the analysis is limited to two mobile applications platforms: Apple's iOS and Google's Android. The analysis throws light on the problems of innovation in software systems like iOS and Android. The note also proposes several changes to both antitrust and patent laws that will make it more difficult for established market players to prevent new competitors from entering high tech markets, thereby promoting greater openness and innovation. The part on software patents discusses the effects of enforcement of patent rights on open and closed systems. The note observes that the US Federal Circuit's decisions (Fonar Corp. v. Gen. Elec. Co., io7 F.3d 1543, 1549 (Fed. Cir. 1997)) have severely curtailed both the enablement and best mode requirements for successful software patents., thereby limiting the disclosure and preventing many of the invention's useful elements from reaching the public domain. Patentability issues have affected open systems such as Android more than Apple, owing to a greater dependency on third parties to run android systems, leading to more patent infringement issues. It recommends, that, intellectual property law should promote open systems above patent protection in high tech fields, allow reverse engineering of software and introduce an 'independent invention' defence in the law for innovators.

A certain paper addresses rejection of apps in the AppStore on three grounds: rejection on content grounds (including some competition-driven restrictions), rejection on development grounds, and the regulation of transactions.

Apple's and Google's foray into building a mobile development platform

Coming from the music and personal computer industry, Apple disrupted the mobile industry by making its mobile development platform available to third party developers and eliminating the barriers between those developers and customers. The main goal of Apple in the mobile world is to increase the cross-sales of its high-margin products by providing a continuous experience roaming (iPhone, iPad, Mac, and Apple TV) using complements such as mobile applications, content, services, and accessories.[36] Google, on the other hand, is an online advertising company which provides an open source mobile operating system, in the shape of Android, on which mobile handset manufacturers can develop smartphones without paying software licensing fees. By commoditizing mobile device production under its unique governance structure and building a large developer community, Google secured a means of reducing the barriers to new users accessing their advertising through smartphones. Microsoft through its Windows Phone is the most recent addition to the leading mobile platform providers. Its motivations lie in trying to protect its core business of software licensing which has been disrupted by falling PC sales linked to the emergence of mobile technology and free cloud technology services provided by companies such as Google which have impacted respectively on its licensing fees for Windows OS and Microsoft Office[37].

Luis H Hestres[38] analyzes Apple’s guidelines and approval process on the App Store, discusses content-based rejections of apps, and outlines the consequences of this process for developers’ and consumers’ freedom of expression. It outlines a set of principles to ensure “app-neutrality” whilie ensuring device quality and safety. The article illustrates challenges faced by app developers working on the iOS platform. Criticisms have come forth about Apple's arbitrary and opaque review process. Apple has a rejection rate of 30% of the 26,000 apps submitted to the app store each week[39]. Van Grove[40] comments that the ambiguity, opaqueness, and susceptibility to outside pressures that seems to characterize Apple’s approval process do a disservice to a democratic online culture. With more than 400 million iOS devices sold worldwide since 2007[41], Apple’s devices and app store have become important online intermediaries for Internet users. The article proposes a few basic guidelines, anchored on widely accepted international laws and treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

Statistics

A Report[42] presents us with some important insights into the growth of Google Play. Following are the highlights of the report: There are now well over 1 million apps available on Google Play App downloads and revenue from Google Play increased dramatically over the past year; Markets such as Brazil, Russia, Mexico, Turkey and Indonesia are driving growth in app downloads from Google Play; Google Play is experiencing rapid expansion of monetization in established markets such as Japan, the United States and South Korea; Games played a major role in the acceleration of Google Play revenue growth, but almost all app categories experienced expansion and accounted for almost 90% of revenue in Q1 2014; The freemium business model advanced its domination of Google Play app revenue, and represents a growing proportion of downloads; Asian markets lead the way in generating freemium revenue. Another report8 reiterates the explosion of gaming apps.

4. How does Indian copyright law and patent law apply to the mobile applications development ecosystem, in respect of the various business models operating in the industry?

4.1. The patent regime is grounded on a laboratory model of innovation. What does the niche mobile applications development industry (working on a micro-creativity model of innovation) require differently from the patent regime to foster growth?

4.2. Similarly, copyright law has a distinct design for digital objects. Examine the design and its suitability to regulate a mobile application.

A. The interviews reveal a dichotomy existing in the mobile app developer space. While some developers argued for strong IPR protections, several of app developers opposed strict IPR protection (patents, especially) and advocated use of open source software.[43]

Open source for future protection (Applicable as literature to Research question 2)

Sometimes developers license for community values primarily, however, the assumption is that dominant reason is to retain the ability to use their own work across clients. A designer from a services enterprise gave a different reason for doing so: to guarantee their ability to use their work again. “Since we use a bunch of templates and things like that, those we license using a non-exclusive license, because we reuse those elements on different bits of code in different projects,” he explains, “so there are bits of it which is used over multiple projects and there are stuff that is built exclusively for the client.”[44]

Here one can gather some insight, that perhaps developers do not necessarily license for community values primarily, but for the ability to use their own work across clients. That being said, we begin to wonder what the possibility that open source code may serve as a loophole for work-for-hire contracts, which require the developer to assign all written intellectual property to whoever is commissioning the project. If the code happened to “already be available by open source,” a developer may still be honouring any restrictive agreements with clients, and ensuring their ability to use their code in this future again.[45]

As a developer suggests, that startups should first and foremost protect themselves by making wiser choices related to code in order to prevent being litigated against by others—such as using an open source equivalent to a piece of code that one does not have the rights to, or instead putting the extra time in to develop it from scratch.[46]

Of those who expressed an interest in the open source movement, not all had said that their products were to be open licensed as well. One developer explicitly stated: “I like the idea of open source, and building upon others' work...but our app is not open source, it's proprietary.” It may be a given, then, that all or most developers within our interview sample rely on open source code within their practice, but not all may contribute their resulting product's source code back.[47]

Vivek Durai, from Humble Paper said that despite the fact that “open source has really taken route... on the smaller levels, people will come to a point when philosophies begin to change the moment you start seeing commercial.”[48]

B. A certain paper[49] examines from various angles the complex relationship between intellectual-property rights and technological innovation. Following are the conclusions:

1) Intellectual property rights are most likely to foster innovation when the following conditions converge in a particular industry: (a) high research-and-development costs; (b) a high degree of uncertainty concerning whether specific lines of research will prove fruitful; (c) the content of technological advances can be ascertained easily by competitors through “reverse engineering”; and (d) technological advances can be mimicked by competitors rapidly and inexpensively.

2) The likelihood that intellectual-property rights will impede more than stimulate innovation increases as more and more of the following factors obtain in a particular field: (a) trade-secret protection or lead-time advantages reduce the ability of competitors to take advantage of technological advances; (b) innovation in the field tends to be highly cumulative; (c) researchers in the field are motivated primarily by non-monetary incentives; (d) the field is characterized by strong network externalities. The last three of these circumstances were all present during the development of the technical infrastructure of the Internet; it is thus not surprising that that development proceeded rapidly and effectively with little reliance upon intellectual-property systems.

3) The following techniques may be employed to mitigate the economic side-effects of intellectual-property systems: (a) compulsory licenses; (b) facilitation of price discrimination; (c) strict enforcement of the “utility” requirement; (d) encouragement of appropriate cross-licensing agreements (provided that cartel behavior can be simultaneously discouraged); (e) narrow interpretations of “similarity”; (f) strict enforcement of “enablement” and “best-mode” requirements; and (g) the affirmative defenses of patent and copyright misuse.

4) In contexts in which reliance upon these mitigating devices is not feasible, the following alternative ways of solving the public-goods problem may be superior to intellectual-property rights as ways of stimulating innovation:government research; government funding for private research; or post-hoc government rewards for private technological advances.

C. In a paper[50], the authors study the determinants of patent quality and volume of patent applications when inventors care about perceived patent quality. They analyze the effects of various policy reforms, specifically, a proposal to establish a two‐tiered patent system. In the two‐tiered system, applicants can choose between a regular patent and a more costly, possibly more thoroughly examined, ‘gold‐plate’ patent. Introducing a second patent‐tier can reduce patent applications, reduce the incidence of bad patents, and sometimes increase social welfare. The gold‐plate tier attracts inventors with high ex‐ante probability of validity, but not necessarily applicants with innovations of high economic value.

D. Copyrights related to apps are still being hashed out in the courts. Oracle, for example, sued Google[51] for copyright infringement regarding the structure of Java APIs in its Android operating system[52], and the case was decided by the U.S. Supreme Court.

E. Policy Levers in Patent Law[53]

The paper argues that some industries should be the subject of patent tailoring – which can make them illustrative of certain policy levers. Use of obviousness and disclosure doctrines to modulate the scope and frequency of patents, as might be necessary where anti-commons to patent thicket theories are applicable.

Nature of software vis-a-vis biological/chemical inventions

Software inventions tend to have a quick, cheap, and fairly straightforward post- invention development cycle. Most of the work in software development occurs in the initial coding, not in development or production. The lead time to market in the software industry tends to be short. Because innovation is less uncertain in software than in industries like biotechnology, Merges’ economic framework suggests that the non-obviousness bar should be rather high.

Implementing a rational software policy obviously requires some significant changes to existing case law. A number of policy levers might be brought to bear on this problem. First, obviousness doctrine needs to be reformed, preferably by way of a more informed application of the level of skill in the art or alternatively by application of new secondary considerations of non-obviousness.

Poor handling of software patents by the Federal Circuit

The paper argued that broad software patents were indeed what the existing Federal Circuit jurisprudence will likely produce. By relaxing the enablement requirement and permitting software inventions defined in broad terms, supported by very little in the way of detailed disclosure, the Federal Circuit has encouraged software patents to be drafted broadly and to be applied to allegedly infringing devices that are far removed from the original patented invention.

By implication, the Federal Circuit’s standard also seems to suggest that many narrower software patents on low- level incremental improvements will be invalid for obviousness in view of earlier, more general disclosures. They may also be invalidated under the on- sale bar, because the Supreme Court’s view that a software invention is “ready for patenting” when it is the subject of a commercial order and when the inventor has described its broad functions, even if it is not clear how the code will be written or that it will work for its intended purpose, means that any patentee who waits until the code is written to file a patent application risks being time-barred for not filing earlier. Unfortunately, the Federal Circuit’s current standard seems to be precisely backwards. Software is an industry characterized by at least to a limited extent by competition theory and to a greater extent by cumulative innovation. Cumulative innovation theory suggests that patent protection for incremental software inventions should be relatively easy to acquire in order to reward incremental improvements, implying a somewhat lower obviousness threshold. It also suggests that the resulting patents should be narrow and, in particular, that they should not generally extend across several product generations for fear of stifling subsequent incremental improvements. This suggests that software patents should be limited in scope.

Second, a higher disclosure requirement and restrictions on the doctrine of equivalents will help reduce patent scope. Additionally, the authors think software patents are the ideal candidate for a new policy lever: reverse engineering. Many commentators have explained the importance of permitting competitors to reverse engineer a product in order to see how it works and to figure out ways to design around it. In the case of copyright, courts have adapted the doctrine of fair use, together sometimes with copyright misuse, to allow competitors to engage in reverse engineering of computer software. Patent law includes no express provision allowing reverse engineering, nor is there any judicially developed exception akin to copyright’s fair use doctrine that might permit it. Indeed, patent law generally lacks provisions akin to fair use or other exceptions that might readily be pressed into the service of reverse engineering, although commentators have suggested that patent law may need such exceptions for precisely this reason.

This does not mean that reverse engineering a patented product is necessarily illegal patent law. Some inventions, such as the paper clip, are readily apparent once embodied in a product. Improvers do not need to reverse engineer the paper clip and figure out how it works in order to improve it; they just need to look at it. Additionally, in many cases, the patentee has done all the work necessary for reverse engineering patented inventions by virtue of disclosing how to make and use the claimed invention in the patent specification. In theory, an express provision authorizing reverse engineering would be superfluous if the enabling disclosures required to secure a patent were sufficiently strong – someone who wanted to learn how a patented device worked would only need to read the patent specification. Patentable inventions in software, however, generally do not have these characteristics. Software devices typically cannot be readily understood by casual inspection, and particularly not without access to human-readable source code or other documentation. Examination of the patent itself is unlikely to yield information equivalent to a reverse engineered inspection because the Federal Circuit does not require would-be patentees of software inventions to disclose the implementing source code or, for that matter, very much at all about their inventions. Accordingly, software patents present unique obstacles to consummation of the patent law’s traditional rights-for-disclosure bargain with the public. The specific reverse engineering techniques commonly used for software, in turn, may raise some infringement problems that are unique to software. The definition of infringement in the patent statute is extremely broad, encompassing anyone who “makes, uses, offers to sell, ... sells..., or imports” a patented product. Reverse engineering a patented computer program by decompiling it likely fits within this broad category of prohibited conduct, at least where the program itself is claimed as an apparatus. Reverse engineering clearly constitutes a “use” of the patented software, though owners of a particular copy of the program surely have the right to use it. More significantly, decompilation may also constitute “making” the patented program by generating a temporary yet functional copy of it in RAM memory and, in certain instances, a longer-term (though still “intermediate”) copy in more permanent memory. Those copies probably constitute patent infringement unless protected by some defense. The result of all of this is that the nominally neutral patent law rule – no defense for reverse engineering – affects software more than other industries.

The need for a reverse engineering exception in patent law militates in favor of adapting the existing doctrines of exhaustion or experimental use to that end. Patent misuse might also be adapted, as it has been in the copyright arena, to prevent patent holders from deterring or prohibiting reverse engineering related to their inventions. The exception might even be created out of whole cloth by reinterpreting the infringement provisions of section 271(a). The resulting patent doctrine would constitute a macro policy lever. As Cohen and Lemley observe, in most industries there is either no need to reverse engineer an invention or reverse engineering can be done without infringing the patent.

The paper concludes by stating, “Only in software is there a need for a particular doctrine to protect the right to reverse engineer —and therefore the ability of improvers to innovate. Thus, a judicially created reverse engineering defense would make sense across the board in software cases but not in other patent cases.”

[1]Samantha Cassar, "App Developers Series: Products-Services Dichotomy & IP (Part I)”, last accessed July 21, 2015

[2]IAMAI, “An inquiry into the impact of India's App economy”, 2015

[3]DoT has set up a 1000 crore app development centre called Application Development Infrastructure and 700 crores under the National E-Governance Plan have been allocated for mobile technology ventures

[4]Supra note 1

[5]Supra note 2

[6]Hippel, Eric von, and Georg von Krogh. "Open source software and the “private-collective” innovation model: Issues for organization science." Organization science 14.2 (2003): 209-223.

[7]Supra note 1

[8]Ibid

[9] Samantha Cassar, “Mobile App Developer Series: Terms of Agreement – Part IV”, last accessed July 21

[10]Ibid

[11]Ibid

[12]Ibid

[13]Ibid

[14]Gartner Data

[15]Supra note 1

[16]Ibid

[17]Samantha Cassar, “Interviews with App Developers: [dis]regard towards IPR vs. Patent Hype – Part II”, last accesed July 21, 2015

[18]Ibid

[19]Ibid

[20]Ibid

[21]Ibid

[22]Ibid

[23]Ibid

[24]Samantha Cassar, “Interviews with App Developers: Name of the Game (Part IV)”, last accessed July 21, 2015

[25]Ibid

[26]"Strategy as Ecology," Harvard Business Review, Vol. 82, No. 3, March 2004.

[27] Evans, D. S., A. Hagiu and R. Schmalensee, 2006, Invisible Engines: How Software Platforms

Drive Innovation and Transform Industries, Cambridge, MA: The MIT Press.

[28]Kouris, Iana and Kleer, Rob, "BUSINESS MODELS IN TWO-SIDED MARKETS: AN ASSESSMENT OF STRATEGIES FOR APP PLATFORMS" (2012). 2012 International Conference on Mobile Business. Paper 22.
http://aisel.aisnet.org/icmb2012/22

[29]Fransman, M. (2014) Models of Innovation in Global ICT Firms: The Emerging Global Innovation Ecosystems. JRC Scientific and Policy Reports –EUR 26774 EN. Seville: JRC-IPTS

[30] Deniz and Kehoe, Factors that attract and retain third party developers in mobile ecosystems, June 2013

[31]Nadea Saad Noori (2009) Managing External Innovation: The case of platform extension, available at http://www3.carleton.ca/tim/theses/2009/Noori2009.pdf

[32]Tsai, Phal & Robert, Industry Platform Construction and Development in a changing environment: Evidence from the ICT Industry, available at http://druid8.sit.aau.dk/acc_papers/6s5aqckmne7ggybu0vfxryrynuog.pdf

[33] Supra note 9

[34] Ibid.

[35]John Baskin, Competitive Regulation of Mobile Software Systems: Promoting Innovation Through Reform of Antitrust and Patent Laws (2013)

[36] Constantinou, 2012b

[37]Ibid.

[38]Luis H Hestres (2013) App Neutrality: Apple’s App Store and Freedom of Expression Online , American University , International Journal of Communication 7 (2013), 1265–1280

[39]Supra note 9

[40]Ibid.

[41] Supra note 9

[42]App Annie Data

[43]Supra note 1

[44]Samantha Cassar, “Interviews with App Developers: Open Source, Community, and Contradictions – Part III”, last accessed July 21

[45]Ibid

[46]Ibid

[47]Ibid

[48]Ibid

[49] William Fisher, INTELLECTUAL PROPERTY AND INNOVATION: THEORETICAL, EMPIRICAL, AND HISTORICAL PERSPECTIVES

[50]Patent Quality and a Two‐Tiered Patent System (Vidya Atal and Talia Brar, 2014)

[51]http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google

[52]http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google#.VYf0i9Z5MxB

[53]http://escholarship.org/uc/item/4qr081sg

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-literature-review-on-ipr-in-mobile-app-development

Freedom struggle 2.0

pranesh — 2015-04-27T01:23:44Z

In the face of the debate on net neutrality, here is a look at the consequences of not having a free, equal, and private internet.

The article was published in the Hindu on April 25, 2015. Pranesh Prakash gave his inputs.

There has been so much noise surrounding net neutrality (generously helped along by All India Bakchod’s explanatory video) that by now even my technology-abhorring grandmother knows something is rotten in the state of Denmark.

However, let us recap: net neutrality refers to a free and open Internet that lets us utilise every channel of communication without bias or — heaven forbid — having to pay extra dough. Paid sites and subscriptions excluded of course; the owners have to send their kids to college, you know. As to the Importance of net neutrality, it is “... a democratic principle (in line with the right to equality in our Constitution) and it is important for freedom of speech and expression,” says Pranesh Prakash of the Centre for Internet and Society.

“Evolving technologies cannot be regulated” was one of the opening lines of Almost Human, a science fiction/crime series that did not survive its debut season. A profound statement, especially in the light of the blistering debate over net neutrality. A debate that has the Twitterati frothing at the mouth and primed to spew sarcasm at those against them in what is being perceived as a battle of epic proportions. Sample these: @Roflindian: What if this net neutrality debate was a clever ploy by telcos to merrily push up rates? And we’ll be like — anything for net freedom! @GabbbarSingh: Someone should launch a start-up just to announce its support to #NetNeutrality “We at Random-Word-with-no-vowels support #NetNeutrality”. @madversity: Net Neutrality has become so popular in Delhi in just three days Aunties want to know where it is available so they can wear it for Karva Chauth.

The battle for net neutrality, in India at least, looks to have exacerbated suddenly in the past few weeks. In truth, however, the issue has been brewing for quite a while, fanned by the Federal Communications Commission’s (FCC) penchant for preparing sheaves of rules and regulations, sundry disputes and discourses by the Reddit demigods and anyone who owns a blog or a YouTube channel, the Bitcoin mafia’s complacent insistence on being the saviour of the web as we know it, and the rumours and filtered nuggets of news surrounding Google’s plans for a mobile virtual network operator (MVNO).

Here, then, are the main antagonists of our piece: telecom company Airtel (post its announcement of the ostensibly unpopular Airtel Zero plan, so much so that the CEO decided to grace Airtel’s users with an e-mail to “clear the air”) and Telecom Regulatory Authority of India (TRAI) that has taken to pitting Davids (consumers) against Goliaths (telecom companies) by floating a paper (subject to discussion and a cannonade of indignant e-mails) containing “some of the strangest and some ridiculously biased statements”, as Nikhil Pahwa succinctly put it in a MediaNama piece.

According to Airtel’s CEO, their “vision is to have every Indian on the Internet. There are millions of Indians who think that the Internet is expensive and do not know what it can do for them… We know that if we allow them to experience the joys of the Internet they will join the digital revolution.” Noble thought, but the sentiment is marred by the sordid matter of blunt. “Airtel Zero is a technology platform that connects application providers to their customers for free. The platform allows any content or application provider to enrol on it so their customers can visit these sites for free. Instead of charging customers we charge the providers who choose to get on to the platform.” In effect, restricting the freedom of the consumer to choose what site he/she wishes to use.

And I wish telecoms would stop bandying about the word “free” like confetti at a wedding. ‘100 free SMSes per day! Only at Rs. 50 a month!’ Well, I’m still losing Rs. 50, aren’t I? Why would you insult my intelligence by telling me my 100 SMSes are free then? “Customers are free to choose which website they want to visit, whether it is toll free or not. If they visit a toll free site they are not charged for data. If they visit any other site normal data charges apply.” Well, pray tell us plebians, Mr. CEO, since companies like Flipkart, NDTV and others have already abandoned the Airtel Zero ship, and a Google probably mightn’t consider coming aboard, having bigger fish to fry (i.e. its MVNO plans), does not your unequal treatment of these websites go against the very backbone of net neutrality?

The debate on net neutrality has more far-reaching consequences, however, than just having to shell out extra to exchange annoying Whatsapp group messages all day long or Skyping with your significant other. The absence of neutrality will result in a barrage of unregulated technologies and the unprecedented growth of the deep web (the portion of Internet content that is not or cannot be indexed by regular or standard search engines — typically comprising around 90 per cent of data presently available on the World Wide Web). Most of the deep web is a fairly innocuous place, consisting of anything from library catalogues to your private folder of dead baby jokes, but it is also a lair of (mostly) undetectable criminal activity (case in point, the recent shutdown of Silk Road, an online black market for your every requirement, and I mean every requirement).

The deep web, naturally, is the best illustration of “a free, equal, and private Internet” (when its powers are harnessed for good, not evil) and so is its most popular currency — Bitcoin. A Bitcoin is, in the concise words of Danny Bradbury (in an informative CoinDesk piece), “a payment mechanism designed to level the playing field, driving out unnecessary costs and making it possible for even the lowest income members of society to participate in the economy. But it relies on a free and open Internet to do so.” And vice versa. Researchers have been working on a way to make micropayments and encryption work together without privacy or bandwidth compromise via mesh networks (faster connections through nearby peers, thus leading to net neutrality, and further to telecoms becoming skittish). However, steady price gains for Bitcoin as well as altcoins (alternative cryptocurrencies to bitcoin) are undeniable proof that telecoms may have to bow to the inevitable.

Also, in the absence of a free and open Internet, organisations like Wikileaks and Anonymous would abound with alacrity. While some would call that an excellent development, there are those who would want to banish Internet altogether from our fair land, making the aam junta cower, tremble and rage by turns at the usurping of its digital rights.

Another thing that seems to be troubling very few, especially in the wake of the wave of acrimony against Airtel, is Google’s plans to expand into the MVNO market. Google, so goes the news, is planning to go into partnership with Sprint and T-Mobile to further its plans of becoming a wireless carrier. While Google already provides free or subsidised Internet with Project Loon and Google Fiber, the new move could easily prove a challenge to net neutrality. Some see the move as harmless — in fact, for the greater good. Evidenced by a senior software engineer of my acquaintance who, since Google makes money by tracking user information and behaviour online and doesn’t prioritise certain kinds of traffic on the Internet access it provides currently, doesn’t see them having any incentive to do so in the cellular space. In fact, he finds the Google MVNO a fascinating move, especially since Sprint and T-Mobile have far fewer subscribers than ATT or Verizon — meaning that the MVNO provider is at the mercy of these MNOs and that, were Google to be successful with this, it means the MNOs are losing selling power. An interesting irony in the context of net neutrality. On the other hand, a researcher at Centre for Internet and Society and former tech journalist is of the opinion that Google may try to push its services since that has always been the case with corporates, whether they provide CSR freebies or diversify their business.

After all, “Who decides what we consume? What if tomorrow the government decides everyone watching YouTube is wasting their time, or [those] watching cricket should be doing something better? That starts to tread into censorship...” says Vijay Anand of The Startup Centre. I suppose all we can do is keep hope animatedly existent as to the triumph of the freedom in our webspace and spam TRAI’s inbox with as many e-mails as we can.

Net Neutrality

Net neutrality is a principle that says Internet Service Providers (ISPs) should treat all traffic and content on their networks equally.

How does net neutrality affect you?
The internet is now a level-playing field. Anybody can start up a website, stream music or use social media with the same amount of data that they have purchased with a particular ISP. But in the absence of neutrality, your ISP might favour certain websites over others for which you might have to pay extra. Website A might load at a faster speed than Website B because your ISP has a deal with Website A that Website B cannot afford. It’s like your electricity company charging you extra for using the washing machine, television and microwave oven above and beyond what you are already paying.

Why Now?

Key Players
Internet Service Providers like Airtel, Vodaphone, Reliance... The Telecom Regulatory Authority of India which lays down the rules for telecom companies The Internet companies like Facebook, Google, whatsapp and other smaller startups You, the consumer

What is an OTT?
OTT or over-the-top refers to applications and services which are accessible over the internet and ride on operators' networks offering internet access services. The best known examples of OTT are Skype, Viber, WhatsApp, e-commerce sites, Ola, Facebook messenger. The OTTs are not bound by any regulations. The Trai is of the view that the lack of regulations poses a threat to security and there’s a need for government’s intervention to ensure a level playing field in terms of regulatory compliance.

For more details visit https://cis-india.org/internet-governance/news/the-hindu-zara-khan-april-25-2015-freedom-struggle

Net Neutrality debate in India: Here are all the arguments you need to know

praskrishna — 2015-05-09T08:01:20Z

While online activists and even big Internet companies have come out to support Net Neutrality, the debate isn’t really as simple when it comes to India.

The article by Shruti Dhapola was published in the Indian Express on April 23, 2015. Pranesh Prakash gave his inputs.

If you are one of India’s active netizens, it is unlikely that the words Net Neutrality have escaped your daily dose of social media updates and news. The debate, which gained pace post AIB’s video on the topic and news of the Airtel Zero programme, has seen some of the biggest names in the Internet and media industries give their take on the issue. More importantly, last month India’s telecom regulator TRAI came out with a consultation paper on the growth of Over-the-top (OTT) players like WhatsApp or Skype and is looking at exploring a regulatory framework for these apps.

In essence, Net Neutrality implies that all Internet data pack should be treated equally, that there should be no fast or slow lanes for Internet, or that users should pay differently for accessing some websites. While online activists and even big Internet companies in India like ClearTrip, Flipkart, have come out to support Net Neutrality, the debate isn’t really as simple when it comes to India.

For starters, in a country like India, Net Neutrality has vast implications, especially for start-ups many of whom are dependent on the medium for the success of their business. A neutral Internet means a level playing field.

Rishabh Gupta, COO, Housing.com, says, “Net neutrality has played a significant role in keeping the internet a level-playing field, simplifying customer outreach for businesses across industries. Further, the platform has encouraged new age entrepreneurs to bring in innovative business models making technology as an integral part of business; be it banking, mobile payments, e-commerce, real estate, etc.”

Manav Sethi, Group CMO, Askme adds that “any violation of Internet Neutrality can have a serious bearing on effective and fair competition in the market place”.

“We feel it is the government’s responsibility to ensure a level playing field for home grown entrepreneurs and at the same time protect the interests of netizens,” says Sethi.

Where licensing is concerned, Internet activists have also pointed out that this just won’t work. Pranesh Prakash, Policy Director at Centre for Internet and Society in India, says that India just can’t go back to the licensing days.

“OTT players aren’t just your Facebook or Viber, it’s the entire Internet. For instance with WebRTC protocol coming in you can do peer-to-peer chat, video calls on Web browsers. How would TRAI propose to regulate this, there’s no central service. It might not be popular, but it is being used by some already.”

He says the telecos’ argument about loss revenue due to rise of OTT’s isn’t a legitimate one but adds that instead of going for more regulation TRAI can look to reduce some differential regulations for telecos to make things easier for them.

There’s also a growing belief that TRAI hasn’t acted fairly when it comes to its paper on OTTs. The Internet and Mobile Association of India (IAMAI) has slammed TRAI saying OTTs are already regulated and governed by the IT Act.

A statement issued by IAMAI President Subho Ray said: “It looks like TRAI, in its consultation paper, has copy-pasted from submissions of telcos. India has a robust and at times, overbearing IT Act.” Expressing support for Net Neutrality, his statement said, “the paper makes an assumption that Internet doesn’t come under any regulations, which is incorrect. All Internet companies are regulated by IT Act”.

IAMAI includes firms like Google, Facebook, Snapdeal, Ola, MakeMyTrip and Saavn as its members.

But TRAI has also come out to defend its the whole debate. TRAI chief Rahul Khullar had earlier told Indian Express, “There are passionate voices on both sides of the debate. And if that was not enough, there’s a corporate war going on between a media house and a telecom operator which is confounding already difficult matters.”

While TRAI’s paper has received criticism, it should be noted that the paper does devote a significant proportion to discussing Net Neutrality and the negative impact it could have if India overlooks the principle.

The paper says, “A policy decision to outright depart from “NN” (Net Neutrality) raises various antitrust and public interest issues. There are concerns that TSPs will discriminate against certain types of content and political opinions. Such practices may hurt consumers and diminish innovation in complementary sectors such as computer applications and content dissemination. Discriminatory pricing proposals, if implemented, could raise a variety of significant anti-competitive concerns.”

Discriminatory pricing proposals are what activists fear could take place if India abandons its stand on Net Neutrality, and users will be the one to suffer.

But there is counter-argument to the whole Net Neutrality debate. It states that in a country like India many still don’t have access to data or mobile Internet because it is expensive and that zero-ratings could be a possible solution.

Zero ratings ensure that a TSP or ISP could declare a service or an app as free, and usually these are services that the company has tied-up with. The Facebook-Reliance initiative under the Internet.org initiative is a Zero rating system, where the idea was to provide certain services like Facebook, ClearTrip, NDTV, etc for free for users in certain part of the country. A benevolent scheme no doubt, but a violation of Net Neutrality all the same. Thanks to the furor over Net Neutrality, ClearTrip and others have started pulling out of Internet.org.

Facebook CEO Mark Zuckerberg has defended Internet.org saying while network operators shouldn’t discriminate between services, “for people who are not on the internet though, having some connectivity and some ability to share is always much better than having no ability to connect and share at all. That’s why programs like Internet.org are important and can co-exist with net neutrality regulations.”

Zuckerberg isn’t the only one making an argument for Zero-rating apps. In a paper for Brookings Institute, Darrell M. West argues that zero-rating apps can actually help improve data access to those who can’t afford it.

As an example, the paper points out how “in Paraguay, an Internet.org project has generated an increase in “the number of people using the internet by 50% over the course of the partnership and [an] increase [in the] daily data usage by more than 50%.” In addition to this the paper says that, African nations have reported substantial upticks in Internet usage following introduction of Facebook Zero.

Interestingly, some countries like Chile have banned Zero ratings because they violate Net Neutrality. Pranesh Prakash says that the argument given in favour of ‘zero ratings’ is a bogus one.

Prakash says, “Exclusive deals like Flipkart-Airtel, or Reliance or Facebook or even free Wikipedia, end-up becoming anti-competitive. Discriminatory deals should not be allowed or those that become anti-competitive under Section 3 of Competition act should not be allowed.”

“If zero-rating can exist in an environment of competition, only then it’s a good thing,” he adds.

But government stepping-in isn’t entirely unexpected. Sajai Singh, Partner at J Sagar Associates Law Firm, points out that the government has now woken up to a new disruptive technology. He gives an example of cable television saying that when it first came up in India, the government had no laws to deal with cable.

“This is another example of the government playing catch up and it happens all across the world. It’ll happen more often with newer disruptive technologies like robotics, artificial intelligence. For instance, when the driverless car comes the government will have to bring in some legislation,” he adds.

For now, TRAI has received over 7-8 lakh comments on the discussion paper that they had first put up on their site on 27 March.

It is fair to argue that Net Neutrality has helped preserve the Internet’s free and open character in India and that a deviation from the same will hurt users the most. Then there’s the very real picture that India needs to provide Internet access to more of its citizens especially those who can’t afford it. For TRAI, treading a fine line between the two will prove to be a real challenge.

For more details visit https://cis-india.org/internet-governance/news/indian-express-april-23-2015-net-neutrality-debate-in-india

Net neutrality: Net activism packs a punch

praskrishna — 2015-05-09T09:02:03Z

For the first time in the history of internet campaigns in India, a protest movement has successfully changed the course of a debate without having to take to the streets. The net neutrality movement is being fought almost totally in the virtual world. Hashtag activism isn't new in India. In recent times, several big campaigns have been bolstered by the internet which helped mobilize mass support and kept people constantly updated on events. Pink Chaddi, Jan Lokpal and the Nirbhaya movements were some examples of successful on-the-ground campaigns that were galvanized by social media. But they still needed public action — dharnas, candlelight vigils and actual pink undies — to make a difference.

The article by Sandhya Soman was published in the Times of India on April 19, 2015. Pranesh Prakash was quoted.

But the ongoing battle for internet freedom has proved that clicktivism isn't just about passive engagement with a cause. While it's all too easy to 'like' a cause, leading to what David Carr describes as "favoriting fatigue" in an article in the New York Times, some clicks can count in the real world.

It all started when the Telecom Regulatory Authority of India (Trai) posted a vaguely worded and complicated discussion paper on net neutrality and called for public responses to it. "Clearly, many people understood that some of the proposals put forward by Trai in its paper threatened the internet as they knew it," says Anja Kovacs, who directs the Internet Democracy Project and has closely followed online activism in India.

Soon, an unlikely collective of techies, lawyers, journalists and even stand-up comics had banded together. Some of them — such as tech entrepreneur Kiran Jonnalagadda and journalist Nikhil Pahwa — had been writing and tweeting about the issue for a while but the Trai paper galvanized them. "I dropped everything and asked for help. Kiran, (lawyers) Apar Gupta amd Raman Chima, Sandeep Pillai, standup group All India Bakchod and several Reddit India users (some of whom remain anonymous), started getting involved," says Pahwa, who is the founder of Medianama. The only common factor was their love for internet and an acute worry what this policy consultation might do to destroy its open and equal nature.

Though scattered across India, once they came together online, this 'apolitical collective' was able to rope in engineers, developers, open source activists, entrepreneurs, policy experts, lawyers and journalists as volunteers.

The best way to counter propaganda and opposition was to get people involved. An abridged version of the voluminous Trai paper was posted online, and a FAQ section created on a public Google Doc. "Many came forward to answer the questions and that exercise helped create an understanding of the situation," explains Pahwa. By the time, Jonnalagadda and a few other developers set up the savetheinternet.in website by April 1, there was enough information and data points. Lawyers Gupta and Chima had also decoded the legalese and prepared cogent answers to Trai's 20 questions. This was turned into a ready-to-use email template for users to hit 'send'.

And send they did. The flood of emails to the Trai inbox number is already 803,723 and counting. The results of the social media backlash are evident — with e-commerce retailer Flipkart pulling out of Airtel Zero and several websites backing out of Facebook and Reliance's internet.org. "I was hoping to get around 15,000 responses to counter, say, 15 from the telecom lobby. Now, people make fun of me because I said that," laughs Pahwa. In this case, what also struck a chord was the idea of a bunch of young guys using tech to take on mismanagement by the older generation and corporate greed, says entrepreneur Mahesh Murthy. "We were telling them we like things on the internet as they are now."

But it is hard to sustain online outrage without an action plan, relentless groundwork and some comic warfare. So, when the contentious paper came out on March 27, the website was followed by AIB's punchy video that decoded the concept and took irreverent potshots at those who wanted to limit access while urging people to write to Trai. A lot of the lessons for the campaign came from the US where a John Oliver video turned the tide in the net neutrality debate. "We had seen that several people don't take internet petitions seriously. Also, we wanted to follow the proper legal course in this issue and not hold dharnas," says Jonnalagadda.

It is also important for campaigns to result in doable action. As Kovacs points out, savetheinternet.in and netneutrality. in gave users practical tools to respond before the April 24 deadline. The team also kept clarifying doubts and complex concepts on social media and also had an AMA (ask me anything) chat on Scrollback on Saturday while the 'other side' stuck to big words and jargon.

Of course, like every movement, this one too has attracted criticism. The proneutrality band has been branded as socialist and utopian and there were intense arguments amongst supporters. "Disagreements and arguments are not unique to the activism online," says Pranesh Prakash, policy director at Centre for Internet and Society.

Earlier in the debate, Prakash had said he'd received strong pushback from friends and allies when he spoke about the possible benefits of non-competitive zero rating, an example would be allowing companies to offer free access to their sites and apps via an arrangement with a telecom company — if effective competition exists. Airtel Zero and Reliance's Internet.org claim to do the same though most supporters remain critical. Says Prakash: "There might've been differences. But the fact that a lot of people are thinking about effects of 'free', and comparing it to predatory pricing shows that #savetheinternet is one of the better examples of engaged activism."

Online campaigns have previously also successfully mobilized people to get involved in issues they do not know much about, says author Nilanajana Roy, who is an influential voice on Twitter. The J&K flood relief efforts last year started on Twitter but got volunteers moving on the ground, she says. "People don't always realize what they care strongly about so, despite the risk of compassion fatigue or armchair volunteerism, it's worth having some online activism," says Roy.

Meanwhile, those behind the savetheinternet campaign are struggling with their new-found identity as "activists". "I think of myself as a venture capitalist and marketing consultant, not a khadi kurta-jholawala from JNU," says Mahesh Murthy, among those who strongly support the movement.

And at the end of the day, most of these activists would like to go back to their cubicles, free to browse or start a business. But not before they've tried to keep the internet open.

For more details visit https://cis-india.org/internet-governance/news/the-times-of-india-sandhya-soman-april-19-2015-net-neutrality-net-activism-packs-a-punch

The Hazards of a Non-neutral Internet

geetha — 2015-05-27T16:07:36Z

Spurred by recent events, India’s policy circles are dancing to the complex tunes of net neutrality. Airtel came under fire for pricing calls made over the Internet differentially; it has since withdrawn this plan. Airtel and Reliance Communications are caught in the storm as Airtel Zero and Internet.org, the Facebook-spearheaded product for low-cost Internet access, face stiff criticism for violating net neutrality. Companies like Flipkart, which earlier supported these products, have stepped back and are throwing their weight behind net neutrality. The Department of Telecommunications has set up a six-member panel to consult on net neutrality.

A modified version of the blog entry was published as an article titled "A must for free speech" in the Week on April 18, 2015

Responding to concerns, the Telecom Regulatory Authority of India (TRAI) released a consultation paper on OTT services on March 27, 2015. TRAI has called for public comments to be sent by April 24, 2015, and counter-comments to be sent by May 8, 2015. The TRAI consultation paper raises several crucial issues, including net neutrality. Given the heightened interest in the issue, let us two steps back and revisit the basics about net neutrality.

What is net neutrality?

In the simplest terms, net neutrality is the principle by which the carrier (telco/ISP like Reliance, Airtel) is prohibited from discriminating between any two ‘packets’ of data carried over its network. That is, ISPs ought not treat data packets differently, no matter what the content, source or price.

It follows, then, that when packets are given differential treatment, the principle of net neutrality is violated. As Centre for Internet and Society’s Sunil Abraham explains, differential treatment may occur in many ways: first, carriers may provide consumers with free access to certain websites or web content, while charging the sender or destination; second, ISPs may throttle traffic of one website/company to give it priority over other sites (the website will then load faster than others); third, ISPs may refuse access to some websites unless consumers or content-providers pay extra charges. Other violations abound too; this list is merely illustrative.

Diversity, Innovation & Competition: The Costs of Net Non-neutrality

Let us take zero-rating to explore the impacts of a net neutrality violation. In Internet.org and Airtel Zero, companies like Facebook and Flipkart (prior to the latter’s withdrawal) pay to provide users with free access to their cluster of websites; these are examples of “zero-rating”. Telcos and content-providers like Facebook argue that this is crucial to expand Internet access in price-sensitive markets like India. While this is an important consideration, zero-rating can have detrimental impacts on free speech and diversity, competition and innovation. It can result in “walled gardens” and a diversity-trap, where the only sites we can access are the walled gardens of curated information compiled by Facebook and the like.

Today, we can access an unprecedented variety of content across freely accessible platforms. We pay for our Internet connections and for data, but the content we access is neither set nor monitored by ISPs or content-providers, unless legally mandated to do so under Section 69 of Information Technology Act, 2000. Our freedom to access and receive diverse information is not curated by the companies themselves (as Facebook would in Internet.org) or their ability to pay ISPs to carry traffic. But with zero-rating, preferential access or traffic throttling, content diversity will suffer.

Of course, impact of receding diversity of content may not be felt in the short term, if access is made the priority. However, if net non-neutrality is allowed to continue in perpetuity, this may result in corporate curation and censorship of content. Moreover, since established players can better shell out the money needed for zero-rated or prioritised access, new companies and start-ups may find their entry blocked. Such a possibility is vexing for innovation, as greater costs will disincentivise smaller players from entering the market. There is also an impact on competition: entrenched players who can afford to pay carriers will dig their heels deeper, and become the sole curators of content. This is censorship by market design.

Access and Self-preservation, say the Telcos

Some telecom operators and ISPs argue that zero-rating is essential for universal access to data services, a dream of the Digital India mission. They also stress that OTTs like Whatsapp, Viber, Skype and others are free-riding on their networks and usurping their revenue, since it is the telcos and not OTTs who pay licence fees and spectrum charges. Finally, telcos and ISPs say that treating packets differently is a form of network and traffic management; such management is crucial to an efficient and open Internet, and is an age-old practice of operators.

Of course, traffic and network management practices do exist, and operators do block or manage speeds during congestion periods or when there are security threats. As users, we also experience different Internet speeds depending on the hardware and software employed by operators, the time of day, the type of content accessed (video/ audio/ text), etc. As Christopher Yoo says, operators should be free to experiment with network management practices (‘network diversity’) so long as consumers and competition suffer no detriment.

But as reports show, net non-neutrality practices have negative impacts on speech diversity, innovation and competition, among others. Any proposal to grant legal recognition to net non-neutrality practices like zero-rating, traffic-prioritization or others, which depend on the consumer or content-provider’s ability to pay and result in differential treatment of data packets, must answer these concerns and provide safeguards. In Shreya Singhal, the Supreme Court affirmed the value of freedom of speech and diversity; saying that “…a culture of open dialogue is important”, the Court declared that “…we need to tolerate unpopular views”. Internet companies and telcos provide the platforms to make such views available. Through traffic prioritization and zero-rating, and by chilling innovation and competition, net neutrality violations can stifle speech diversity. The Department of Telecom and TRAI must remember this when debating a net neutrality regulation.

For more details visit https://cis-india.org/internet-governance/blog/the-week-april-18-2015-geetha-hariharan-hazards-of-non-neutral-internet