Centre for Internet and Society

Consumers International IP Watchlist Report 2012

praskrishna — 2012-08-16T10:18:58Z

This report was prepared by Pranesh Prakash. It was posted on the A2K Network website.

For more details visit https://cis-india.org/a2k/ci-ip-watchlist-report-2012

Consumers International IP Watchlist 2012 — India Report

pranesh — 2012-08-16T10:23:36Z

Pranesh Prakash prepared the India Report for Consumers International IP Watchlist 2012. The report was published on the A2K Network website.

Summary

India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist. India's Copyright Act is a relatively balanced instrument that recognises the interests of consumers through its broad private use exception, and by facilitating the compulsory licensing of works that would otherwise be unavailable. However, the compulsory licensing provision have not been utilized so far, because of both a lack of knowledge and more importantly because of the stringent conditions attached to them. Currently, the Indian law is also a bit out of sync with general practices as the exceptions and limitations allowed for literary, artistic and musical works are often not available with sound recordings and cinematograph films. There are numerous other such inconsistencies. Positively retrogressive provisions, such as criminalisation of individual non-commercial infringement also exist.

It is unfortunate that the larger public interest in copyright-related issues are never foregrounded in India. For instance, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings without calling a single consumer rights organization, and without seeking any civil society engagement, except for the issue of access for persons with disabilities. This was despite a number of civil society organizations, including consumer rights organizations, sending in a written submission to the Standing Committee.

This lopsidedness in terms of policy influence is resulting in greater imbalance in the law, as evidenced by the government's capitulation to a handful of influential multinational book publishers on the question of allowing parallel importation of copyrighted works. Furthermore, pressure from the United States and the European Union, in the form of the Special 301 report and the India-EU free trade agreement that is being negotiated are leading to numerous negative changes being introduced into Indian law, despite us not having any legal obligation under any treaties. Such influence only works in one direction: to increase the rights granted to rightsholders, and has so far never included any increase in user rights.

It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Visually impaired persons, for instance, have no option but to disobey the law that does not grant them equal access to copyrighted works. Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works.

Source URL: http://bit.ly/QEJf5l
Click to download the report [PDF, 201 Kb]

For more details visit https://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012

Consumers International IP Watchlist 2011 — India Report

praskrishna — 2012-01-02T08:48:45Z

Pranesh Prakash prepared the India report for Consumers International IP Watchlist 2011. The report was published on the A2K website.

For more details visit https://cis-india.org/a2k/blogs/ip-watch-list-2011.pdf

Consumers International IP Watchlist 2011 — India Report

pranesh — 2014-05-29T05:52:28Z

Pranesh Prakash prepared the India Report for the Consumers International IP Watchlist 2011. The report was published on the A2K Network website.

The report says:

While India has not acceded to the WIPO [23] Copyright Treaty or the WIPO Performers and Phonograms Treaty, yet a set of amendments have been proposed which would bring the Indian law in compliance with both the WCT and the WPPT. These amendments would expose India's consumers to the same problems experienced in other jurisdictions which have prohibited the use of circumvention devices to gain access to legally-acquired copyright material. These amendments also propose a substantial increase in the copyright term for photographs (from 50 years to life plus 60 years), and a conditional increase of ten years for cinematograph films to 70 years if a special agreement is entered into by the producer with the director. It is true that copyright infringement, particularly in the form of physical media, is widespread in India. However this must be taken in the context that India, although fast-growing, remains one of the poorest countries in the world. Although India's knowledge and cultural productivity over the centuries and to the present day has been rich and prodigious, its citizens are economically disadvantaged as consumers of that same knowledge and culture. Indeed, most students, even in the so-called elite institutions, need to employ photocopying and other such means to be able to afford the requisite study materials. Physically challenged persons have no option but to disobey the law that does not grant them equal access to copyrighted works.

Legitimate operating systems (with the notable exception of most free and open source OSes) add a very high overhead to the purchase of cheap computers, thus driving users to pirated software. Thus, these phenomena need to be addressed not at the level of enforcement, but at the level of supply of affordable works in a suitable format.

Over the last year, the Standing Committee tasked with review of the Copyright Amendment Bill has held hearings and presented its findings and recommendations to the HRD Ministry. However, not a single consumer rights organization was called by the Standing Committee, and no civil society engagement was sought except for the issue of access for persons with disabilities. This was despite a number of civil society organizations sending in written submissions to the Standing Committee. The government is going to re-table the Bill in this session of Parliament (February-April).

Click to download the full report [PDF, 150 kb]
Read the report published by A2K Network here

For more details visit https://cis-india.org/a2k/blogs/ip-watch-list-2011

Consumers International Global Meeting 2012

praskrishna — 2012-04-03T07:54:56Z

Pranesh Prakash participated in the Consumers International Global Meeting held in Kuala Lumpur on March 8 and 9, 2012. He spoke on UN Consumer Guidelines. Robin Brown, Tobias Schönwetter and Guilherme Varella were the other speakers in the session.

Wednesday 7 March

6:45pm	Anwar Fazal speech on 50th anniversary of JFK Consumer Rights
7:00pm	Dinner hosted by FOMCA

Thursday 8 March

8:30am	Registration
9:00am	Welcome (Helen McCallum)
9:30am	Introduction and overview (Jeremy Malcolm)
10:00am	Introduction to Digital Personal Property (Paul Sweazey)
11:00am	Break
11:30am	UN Consumer Guidelines (Robin Brown, Tobias Schönwetter, Pranesh Prakash, Guilherme Varella)
1:00pm	Lunch
2:00pm	Consumer Protection and IP Abuse Prevention under the WTO Framework (George Tian)
3:00pm	Internet governance and consumers (Peng Hwa Ang)
4:00pm	Break
4:30pm	Public Interest Representation in the Information Society (Norbert Bollow)
5:30pm	Consumers in the information society (Jeremy Malcolm)
6:30pm	Break
7:30pm	Cultural and culinary outing to pasar malam

Friday 9 March

8:30am	Registration
9:00am	M-Lab (Lih Shiun Goh from Google Singapore)
10:00am	Internet and human rights (Alan Finlay from Association for Progressive Communications)
11:00am	Break
11:30am	Global consumer survey on broadband (Jeremy Malcolm, Veridiana Alimonti, Elise Davidson, Marzena Kisielowska-Lipman)
1:00pm	Lunch
2:00pm	Cyber-security concerns for consumers and businesses (Raj Kumar, IMPACT)
3:00pm	Broadband nutrition label (Benjamin Lennett, New America Foundation)
4:00pm	Break
4:30pm	Reporting back – open time for member presentations
6.00 pm	Close

Abstracts and biographies

United Nations Guidelines for Consumer Protection

This paper provides background to the proposed amendments to update the United Nations Guidelines for Consumer Protection for the digital age. A soft-law instrument, the Guidelines provide an influential standard for the dissemination of good practices in consumer protection, as a mechanism to foster and promote social and economic development. They outline eight areas for developing policies for consumer protection, which are reflected by the eight consumer rights declared by the global consumer movement: rights to satisfaction of basic needs, safety, choice, information, consumer education, redress, representation and a health environment.

The paper outlines the current global regime of public policy developmment and regualtion relating to access to knowledge. Indicating that many of the issues of concern in terms of access to knowledge are essentially consumer issues it argues that amendments to the Guidelines would form the basis for progress. The paper then details the proposed amendments explaining the basis for each one.

Joining Robin Brown on the panel will be representatives from our research partners in India, Brazil and South Africa who will be contributing to our research on the Guidelines.

Robin Brown has 25 years of experience in consumer and business regulatory affairs. He spent 10 years as the chair and chief executive of Australia’s national consumer body, the Australian Federation of Consumer Organisations. Robin has been involved in projects to advance consumer protection and competition policy and regulation in a number of developing countries. In recent years Robin has served as a Councilor of the Australian Consumers’ Association. He holds a BA and a Master of Public Policy from the Australian National University.

Pranesh Prakash is Programme Manager at the Centre for Internet and Society, Bangalore. He is a graduate with a degree in Arts and Law from National Law School, Bangalore, with a keen interest in the law, economics, and culture of intellectual property rights. He helped found the Indian Journal of Law and Technology, and was part of its editorial board for two years. He is most interested in interdisciplinary research on IP and property law, freedom of speech, and privacy. He has worked with practising lawyers, civil society organizations, and law firms.

Tobias Schönwetter is a Senior Manager within PricewaterhouseCoopers' South African practice performing legal advisory services specifically relating to innovation, technology and intellectual property (copyright and trademarks). Tobias has studied and practised law in Germany, the US and South Africa and he has led the copyright division at UCT's Intellectual Property Law and Policy Research Unit for several years. His international experience, together with his leadership roles in a number of intellectual property-related projects and research collaborations such as the African Copyright and Access to Knowledge (ACA2K) project and the Open AIR (African Innovation Research and Training) project, has secured his place as an industry expert within the intellectual property and technology sector.

Guilherme Varella is a lawyer at Idec (Brazilian Institute for Consumer Defense) in telecomunications, Internet and access to knowledge and Master's student in public policies of culture in the Law School of Universidade de São Paulo (University of São Paulo - USP).

The event was sponsored by the Ford Foundation, the Open Society Institute and IDRC/CRDI. For more information, see here on the Access to Knowledge website.

For more details visit https://cis-india.org/news/consumers-international-meeting-2012

Consumer Privacy in e-Commerce

sahana — 2012-03-28T04:53:17Z

Looking at the larger picture of national security versus consumer privacy, Sahana Sarkar says that though consumer privacy is important in the world of digital technology, individuals must put aside some of their civil liberties when it comes to the question of national security, as it is necessary to prevent societal damage.

What is Consumer Privacy?

In today’s digital economy generating consumer information is inevitable. Though some companies use the personal information they obtain to improve and provide more services to consumers, many companies use the information in an irresponsible manner.

In countries that do provide legal protection for consumer privacy, it is never protected as an absolute right. Consumer privacy is not considered an absolute right for three reasons:

What constitutes consumer privacy is culturally, contextually, individually defined
Consumer privacy often conflicts with other market rights
The ownership of a consumer's private information is debated — as consumer's believe they own the information and businesses believe they own the information.

In order to understand consumer privacy it is useful to outline the privacy expectations and strategies of both consumers and businesses, and to also examine the protection measures taken by firms to safeguard consumer information. The major privacy concerns held by consumer's can be broken down into three main domains:

Consumers want to be informed about the type of information that is being collected from them.
Consumers need to know that they a certain degree of control over the personal information that is being collected.
Consumers need to be assured that their personal information will be secure and will not be abused or stolen.

Though privacy has been defined by many as the "right to be let alone", its application in today’s modern world is not that straightforward. We live in a world where our purchasing behavior, both online and offline, is shared and used invisibly. For instance, if an individual uses a social networking site, it is possible for a third party application to access personal information that is shared. Similarly, if an individual uses a warranty card or loyalty card during a purchase, it is possible for third parties, like data brokers, to collect and use the individuals' personal information.

For instance,15 consumer privacy groups have filed a complaint against Facebook for limiting user's ability to browse anonymously. The complaint was regarding the fact that users only had the choice to designate personal information as publicly linkable, or to not provide information at all. Though Facebook claims to ensure users control over their personal data by allowing users to choose their privacy settings, it does not clarify that these setting can change at any given point. Moreover, the latest privacy embarrassment that hit Facebook proves again that Facebook does not protect users’ privacy. A few weeks ago Facebook admitted to passing personal information of its users onto different gaming applications. These gaming applications have in turn passed the information on to advertisers who otherwise could not have accessed the information.[1]

Breach of Privacy in Information Collection

Internet users often fear the loss of personal privacy, because of the ability businesses and their websites have to collect, store, and process personal data. For example, sites extract information from consumers through a form, and then record data about their user’s browsing habit. After collecting user information, the sites match the data with their personal and demographic information to create a profile of the user’s preferences, which is then used to promote targeted advertisements or provide customized services. The sites might also engage in web lining through which they price a consumer according to their profiles.

Online there are two main ways in which sites collect user information:

Sites collect information directly through a server software. Sites often use automatic software logs to do this.
A third party extracts information from the site without the consumer’s knowledge. Sites often place cookies on websites to extract user information.

Automatic software logs and third party cookie placement are two overlooked aspect of information collection. Cookies work by collecting personal information while a user surfs the net, and then feeds the information back to a Web server. Cookies are either used to remember the user, or are used by network advertising agencies to target product advertisements based on long term profiles of user’s buying and surfing habits. An example of a website that uses cookies is 'double click'. Web bugs are used by advertising networks to add information to the personal profiles stored in cookies. Web bugs are also used in junk email campaigns to see how many visits the site gets. Cookies and web bugs are just two out of hundreds of technologies used to collect personal information. [2]

Challenges Posed by Protection of Consumer Privacy

In conclusion, I would like to talk about the difficulty in maintaining a balance between the legal collections of information and protecting privacy of consumers. Above I demonstrated how this conflict arises between businesses and consumers — and is rooted in businesses wanting personal information for commercial reasons, and a user wanting protection and control over their own information. This conflict can also arise between consumers, businesses, and political bodies. An example that demonstrates this is the ongoing conflict between RIM (Research in Motion) and the Government of India. The Government of India has issued a warning against RIM saying that it would suspend its blackberry operations if they do not adhere to the Indian laws and regulations.

The Ministry of Home Affairs is demanding that RIM allow access to encrypted content that flows in and out of India. In other words the Government of India wants RIM to allow the security forces to have access to data sent using Blackberries by reducing encryption levels, or by providing the government with the decryption keys. The demand by the government is somewhat ironic as Blackberry manufacturers have developed the Blackberry encryption key to protect the consumers’ privacy during any business deal, so that information is not compromised. On the other side of the debate, the government is demanding access to Blackberry communications, because their inability to decrypt the codes makes countering the threats to national security difficult. This is especially true for a country like India, which is constantly facing threats from Maoists, and extremist Islamic groups.

This example highlights an important question: what is more important — national security or consumer privacy? In 2010, RIM agreed to negotiate access to consumer messages only where access requests are within local laws. Blackberry also agreed to not make any specific deals with consumers, and to make its enterprise systems security and confidentiality non-negotiable.

Conclusion

Though, consumer privacy is very important especially in a world of digital technology, however, when we speak of national security, I feel that individuals must set aside some of their civil liberties — at least to the extent that it is necessary to prevent societal damage. For a clearer understanding of national security vs consumer privacy look at the case of RIM Vs Indian Government in the following sites:

[1]http://www.ft.com/cms/s/0/198599e6-dc5f-11df-a0b9-00144feabdc0.html#axzz1O00LowtN

[2]http://cyber.law.harvard.edu/olds/ecommerce/privacytext.htmlFor an overview of some of these new data-collection technologies, along with some information on privacy-enhancing technologies such as P3P, see Developing Technologies.

For more details visit https://cis-india.org/internet-governance/blog/privacy/consumer-privacy-e-commerce

Consultation Paper on Media Law

praskrishna — 2014-09-30T06:47:54Z

For more details visit https://cis-india.org/internet-governance/blog/consultation-paper-media-law.pdf

Consultation on 'National Geospatial Policy' - Notes and Submission

sinha — 2016-03-29T17:03:31Z

The Department of Science and Technology, Government of India, has constituted a National Expert Committee for developing a draft National Geospatial Policy (NGP) to provide appropriate guidelines for collection, analysis, use, and distribution of geospatial information across India, and to assure data availability, accessibility and quality. A pre-drafting consultation meeting for the NGP was organised in Delhi on February 03, 2016. Ms. Anubha Sinha represented CIS at the meeting, and shares her notes.

National Geospatial Policy - Pre-Drafting Consultation Meeting

Keeping in mind the importance of geospatial data in the context of national development, the Department of Science and Technology, Government of India, has constituted a National Expert Committee for developing a draft National Geospatial Policy (NGP). The Committee is Chaired by Major General Dr. R Siva Kumar, former Head of Natural Resources Data Management System (NRDMS) and CEO of National Spatial Data Infrastructure (NSDI), and Dr. Bhoop Singh, Head of NRDMS and NSDI Division at Department of Science and Technology, as Member Secretary. The Policy aims at providing appropriate guidelines for collection, analysis, use, and distribution of geospatial information across India, and to assure data availability, accessibility and quality.

A pre-drafting consultation meeting for the NGP was organised in Delhi by Dr. Valli Manickam, Professor at the Academic Staff College of India, on February 03, 2016, and CIS was invited to take part in it as the only participant from the civil society. The other participants included representatives from the geospatial industry and industry associations (like FICCI and CII), and Ms. Ranjana Kaul, Partner at Dua Associates. Among the drafting committee members, Major General Dr. R Siva Kumar, Dr. Bhoop Singh, Dr. Sandeep Tripathi (IFS), and Wing Commander Satyam Kushwaha were present.

National Geospatial Policy - Concept Note

The purpose of the meeting was to hear the stakeholders' response to a Concept Note on the NGP, circulated prior to the meeting [1]. The Note sets out the principles and concerns of the proposed policy, which plans to guarantee geospatial data availability, accessibility, quality and in consonance with the imperatives of national security and intellectual property rights. The applicability of the policy is aimed at:

all geospatial data created, generated and collected using public funds provided by Central and State Governments and International donor organizations, directly or through authorized agencies.

The note suggests establishment of an "empowered body" to ensure proper creation, updates, management, dissemination, and sharing of the data, and management of an online portal for the same. The institutional mechanism to implement the policy will be composed of an Appellate authority / National High Power Implementation Committee, the NGP Implementation Committee, and the NGP Steering Committee.

Notes from the Meeting

The Welcome Address was delivered by Dr. Bhoop Singh (Head of NRDMS and NSDI Division, DST) who informed the participants that the Expert Committee had already met National Security Council and heard their concerns on the policy. The principles on which the proposed policy is to be based were also shared. The policy resulted from an exercise started two years ago to fix quality and accuracy of geospatial data, which was when it was realised that there were significant gaps that need urgent redressal. It was also identified that in previous initiatives to manage geospatial data at the national level, some data-generating organisations had been left behind. The chief concerns for the Expert Committee are 1) tailoring a policy suited to India's unique security issues, 2) avoiding a blanket open policy that may lead to misuse of low resolution data, 3) heeding restrictions on mapping, considering that 43% of landmass was not represented on maps presently (a probable solution was to do feature based mapping), and 4) clarifying government regulation of drone-based mapping. Security concerns were raised frequently throughout the meeting. The Committee also recognised that for development, data sharing should be made more open. The Committee was keen to have the private industry as a partner in generation of geospatial data.

Private industry representatives agreed with the objectives of the policy and were willing to contribute to geospatial data generation. The Expert Committee mulled over the possibility of creating a Public Private Partnership to cater to data generation. The private industry complained about the lack of efforts in popularising geospatial technologies and making the process of tenders more transparent.

There were suggestions to examine the policies of other jurisdictions facing similar internal security threats as India, and delineating the types of data that could be openly shared (for instance, geospatial data from border regions versus non-border regions). Segregation of restricted and open geospatial data can also be done on the basis of its end-application, such as for military and engineering purposes. Participants also requested the creation of a clear Do's and Don'ts guideline. CIS presented a written submission that raised seven key concerns. These are listed in the section below.

On the question of making an open data policy, it was suggested that the committee needs to decide the fundamental approach of the policy first - whether the policy should be based on prohibition and restriction, or focus on identifying and regulating open and free geospatial. The UN General Assembly document on Principles relating to remote sensing of the Earth from space provides an appropriate international point of reference [2].

After listening to the concerns and comments of the stakeholders, the core committee made the following concluding remarks:

Existing policies of government and defence should be mapped out to avoid conflict or overlap with the proposed NGP policy
The sharing of data vests with government agencies and other organisations recommended by them – there needs to be a transparent mechanism for such recommendation based sharing
Industry should come up with self-regulatory mechanisms, do's and don'ts, and code of conduct
Develop a secure mechanism for providing data on sensitive areas (in terms of national security;
Even the defence agencies sometimes cannot access maps due to policies of the National Remote Sensing Centre and other agencies – such inconsistencies need to be fixed

It was announced that the next consultation will occur in a couple of months, and will be open to the public at large, including representatives of industry, defence, and civil society.

Key Concerns about the NGP Concept Note

1. Complete lack of availability of open geospatial data from Indian government agencies: No government agency in India publish open geospatial data. While maps are often sold, both in printed and in digital form, they are not provided in a machine-readable open format and under an open license. The concept note towards NGP has made strong commitments towards changing this situation. There is an immediate need to participate in the NGP drafting process, with coordination among various civil society actors interested in open geospatial data, to ensure that these principles are carried into and operationalised in the actual NGP document.

2. Need for explicit and comprehensive set of criteria to determine if a set of geospatial data is sensitive for national security reasons: In formal and informal conversations with various agencies collecting and creating geospatial data in India, the role played by security agencies in blocking proactive and reactive public disclosure of geospatial data, and even intra-governmental sharing of such data, has been highlighted. Addressing this issue requires development of an explicit and comprehensive list of criteria that will establish a clear and rule-based system for identifying if a specific geospatial data set is to be categorised as “shareable” or “non-shareable.”

3. No clarity regarding legal status of citizen/crowd-sourced geospatial data, and initiatives to generate them: Open user-contributed geospatial data, especially through the OpenStreetMap platform, has emerged as a key driver of the global geospatial services industry. There is a legal ambiguity created by the National Mapping Policy regarding generation of such data in India, which came into focus when Survey of India filed a case against Google for organising a Mapathon contest, which invited Indian users to add metadata about physical and built features through Google Maps platform.1 The NGP needs to expressly provide legal sanction (and perhaps framework) for citizen/crowd-sourcing of geospatial data.

4. Fragmented institutional structure for collection, management, and distribution of different kinds of geospatial data: Survey of India, Indian Institute of Remote Sensing, and Indian Space Research Organisation are all key government agencies involved in creating and managing geospatial data. Further, Election Commission of India is involved in preparing geospatial data about electoral units and their boundaries. The National Spatial Data Infrastructure was conceptualised to harmonise and centralise the geospatial data management processes, but is yet to be implemented with the backing of a policy or an Act. The NSDI can be institutionalised via the NGP as the national archive, aggregator, and distributor of open geospatial data, being originally collected and created by a range of government agencies.

5. Integration of National Geospatial Policy with National Data Sharing and Accessibility Policy (NDSAP): The proactive disclosure of “shareable” geospatial data using open geospatial standards and under open licenses must be carried out under the purview of the NDSAP, and through the open government data platform established through NDSAP. The decisions regarding licensing of open government data, as being discussed by the a committee set up under NDSAP, must also be applicable to open geospatial data that will be published following the instructions of the NGP. Further, instead of multiple online sources of open geospatial data collected by various Indian government agencies, must be identified as the primary and necessary source for publication of open geospatial data.

6. Integration of National Geospatial Policy with Right to Information (RTI) Act: Geospatial data must be treated as a special category of information under the RTI Act, which necessitates that if an Indian citizen requests for geospatial data from a government agency under the purview of RTI Act, the agency must provide the data in a human-readable and machine-readable open geospatial standard, and not only in the printed format, as key qualities of digital geospatial data can be substantially lost when printed in paper.

7. Need for special infrastructure for management and publication of real-time geospatial (big) data, and governance of the same: With increasing number of government assets being geo-referenced for the purpose of more effective and real-time management, especially in the transportation sector, the corresponding agencies (which are often not mapping agencies) are acquiring a vast amount of high-velocity geospatial data, which needs to be analysed and (sometimes) published in the real-time. The need for special infrastructure for such data, as well as its governance, has not been discussed in the concept note for NGP, which is a major omission.

Endnotes

[1] See: https://github.com/cis-india/website/raw/master/docs/DST_National-Geospatial-Policy_Concept-Note_2016.01.21.pdf.

[2] UNGA 41/65. Principles Relating to Remote Sensing of the Earth from Space: http://www.unoosa.org/pdf/gares/ARES_41_65E.pdf.

For more details visit https://cis-india.org/openness/consultation-on-national-geospatial-policy-03022016

Consultation Note on Model for Nation-wide Interoperable and Scalable Publi Wi-Fi

praskrishna — 2016-12-11T03:02:18Z

For more details visit https://cis-india.org/telecom/files/consultation-note-on-model-for-publi-wifi.pdf

Consilience 2013 Report

praskrishna — 2013-11-20T06:14:01Z

For more details visit https://cis-india.org/internet-governance/blog/consilience-2013.pdf

Connecting the Next Two Billion: The Role of FOSS

praskrishna — 2014-09-10T05:04:58Z

Sunil Abraham was a speaker at this event organized by ICFOSS at the APrIGF in Noida on August 4, 2014.

Specific Issues of Discussions & Description

Connecting the next two billion users on the Internet poses unique challenges that must be addressed. The next two billion users will have very different profiles as compared to the first billion in terms of factors such as geography, demography, gender, disability, technology access, language access, and connectivity devices. In addition, with the coming of the Internet of Things, the users of the Internet may also include devices, sensors and sensor networks. Further, the context of the Internet itself may be changing, particularly in relation to efforts by various State and non-State actors to restrict freedom of access to the Internet and freedom of expression on it.Free & Open Source Software (FOSS) has now assumed greater significance in the light of revelations related to arbitrary surveillance conducted by states. This issue highlights the need to use audited technology and infrastructure to prevent the wanton violation of privacy of citizens. FOSS can be used to build shared community infrastructure that will protect users from privacy abuses. As most of the online applications run on top of free software, there is also a need for greater collaboration between the industry and free software community to ensure security and robustness of software to prevent incidents like the heartbleed bug vulnerabilities. As the next two billion comes online, FOSS assumes great significance for building a safe and secure Internet and robust communication platforms.The panel will discuss the following issues:• Relevance of FOSS as an access enabler and source of robust, cost-effective andfreedom-preserving software• The importance of FOSS in preventing arbitrary surveillance• Co-operation among businesses and free software community to develop secure.

Building community communication infrastructure using FOSS to restrict the dependence on centralised services.

Moderator and Speakers

Moderator: Ms. Mishi Choudhary, Executive Director, SFLC.IN, New Delhi
Dr. Rahul De, IIM Bangalore (Remote)
Dr. G. Nagarjuna, Free Software Foundation of India (Remote)
Mr. Prasanth Sugathan, Counsel, SFLC.in
Mr. Satish Babu, Director, ICFOSS
Mr. Sunil Abraham, Executive Director, Centre for Internet and Society, Bangalore
Mr. S. Ramakrishnan, Media Lab Asia/Govt. of India

Workshop Organizer

This workshop will be jointly organised by International Centre For Free and Open Source Software (ICFOSS), an autonomous institution under the Government of Keralamandated with the objectives of co-ordinating FOSS initiatives within Kerala, as well as linking up with FOSS initiatives in other parts of the world and SFLC.IN, a donor supported legal services organisation that works to protect freedom in the digital world.The details of the contact person for the workshop is given below:Name: Mr.Satish BabuDesignation: DirectorOrganisation: International Center for Free and Open Source Software (IC-FOSS).

For more details see the APrIGF website.

For more details visit https://cis-india.org/openness/news/apr-igf-delhi-2014-connecting-the-next-two-billion-the-role-of-foss

Connaught Summer Institute on Monitoring Internet Openness and Rights

praskrishna — 2013-07-26T09:17:45Z

Malavika Jayaram is a speaker at this event being held at the Munk School of Global Affairs, Bloor Street West.

Click to read the original posted on Citizen Lab website

Monday, July 22, 2013

Location: Munk School of Global Affairs (Observatory Site), 315 Bloor Street West (map)

14:00 - 17:00	Meet and Greet at the Citizen Lab Participants are free to drop by the Lab between 2:00-5:00 pm to see the space and meet with Citizen Lab researchers. Participants should go to the reception desk on the first floor and have the receptionist call the Lab.

Tuesday, July 23, 2013

Location: Campbell Conference Room, South House, Munk School of Global Affairs (Trinity site), 1 Devonshire Place (map)

08:00 - 09:00	Breakfast
09:00 - 09:15	Opening Remarks
09:15 - 10:45	Tutorial "Welcome to Oz: Beyond a Black and White Debate on Internet Regulation (and Control)" – Jon Penney (Berkman Centre/Oxford Internet Institute/Citizen Lab) and Ryan Budish (Berkman Centre/Herdict)
10:45 - 11:00	Break
11:00 - 12:00	Commercialization of Information Controls "Regulators, Politicians, and Deep Packet Inspection: Who's Driving What and Why" – Chris Parsons (University of Victoria) "Fingerprinting Internet Filtering Products" – Jakub Dalek (Citizen Lab) "Cash Rules Everything Around Me: The Commercialization of Online Spying" – Bill Marczak (UC Berkeley)
12:00 - 13:45	Lunch
13:45 - 14:45	Circumvention / Attacks 1 "Collateral Freedom" – David Robinson (Robinson + Yu) "Remedy: Relays Monitoring and Deployment" – KheOps (Telecomix) "Fake Domain Attacks on Civil Society Groups" – Michael Carbone (Access)
14:45 - 15:45	Characterization / Measurement 1 "Iran through the Eyes of Big Data" – Collin Anderson (Independent Researcher) "Measurement, Detection, and Comparison of Surveillance Data" – Praveen Selvasekaran (Simple Tech Life) "Filbaan: What is Filtered Today?"
15:45 - 16:00	Break
16:00 - 16:45	Identity Systems and Monitoring "Desperately Seeking the Names: Examining the Historical Progression of Real Name Policies on the Chinese Internet" – Lianrui Jia (Carleton University) "India's Civil Liberties Crisis: Digital Free Will in Free Fall" – Malavika Jayaram (Centre for Internet and Society, Bangalore)
17:00 - 18:30	Poster and Demo Session Light refreshments will be served "User-side Approach for Censorship Detection: Home-router and Client-based Platforms" – Giuseppe Aceto (University of Naples Federico II) "The Cyber Losers" – Aaron Brantly and Katrin Verclas (National Democratic Institute) "What is the Impact of Internet Censorship in China?" – Carlotta James (Psiphon Inc.) "Open Integrity Index" – Jun Matsushita "M-Lab: Exploring the Possibilities for Open, Global Censorship and Surveillance Detection" – Stephen Soltesz (Open Technology Institute) and Meredith Whittaker (Google Research) "Mapping Google: Global Business Infrastructure and Implications for Openness " – John Harris Stevenson (University of Toronto) "Chat Program Censorship and Surveillance in China: Tracking TOM-Skype and Sina UC" – Greg Wiseman (Citizen Lab) "The Growth and Spread of Cyberspace Controls" – Benjamin Zaiser (Free University of Berlin)

Wednesday, July 24, 2013

Location: Campbell Conference Room, South House, Munk School of Global Affairs (Trinity site), 1 Devonshire Place (map)

08:00 - 09:00	Breakfast
09:00 - 10:20	Characterization / Methodology 2 "Refining the Tor Censorship Detector" – Sam Burnett (Georgia Tech) "From Internet Security to Internet Freedom: The case of the RPKI" – Sharon Goldberg (Boston University) "Running Software in Albuquerque to Measure Censorship Anywhere" – Jeffrey Knockel (University of New Mexico) "Social Media as Labratory: What We Can Learn about Chinese Politics from Sina Weibo Censorship and Online Discussion" – Jason Q. Ng (Citizen Lab)
10:20 - 11:00	Break
11:00 - 12:00	Circumvention 2 "VPNthnography: Hacking the Great Firewall for Fun and Profit" "Economics of Web Proxy Networks" – Bennett Haselton (Peace Fire/Citizen Lab) "Censors Working Overtime" – Karl Kathuria (Psiphon Inc.)
12:00 - 14:00	Lunch
14:00 - 15:30	Tutorial "Network Censorship Techniques, Detection, and Localization" – Nick Weaver (ICSI)
15:30 - 16:00	Break
16:00 - 17:30	Panel: Bridging Activism and Research (5 minute talks + discussion) Ali Bangi (ASL19 / Citizen Lab) Stefania Milan (Tillburg University) Deji Olukotun (PEN) John Scott-Railton (Citizen Lab / UCLA) 'Gbenga Sesan (Paradigm Initiative Nigeria)

Thursday, July 25, 2013

Location: Campbell Conference Room, South House, Munk School of Global Affairs (Trinity site), 1 Devonshire Place (map)

08:00 - 09:00	Breakfast
09:00 - 10:20	Jurisdictions and Borders Online "Cyberconflict and the Legal-Territorial Paradox" – Cameran Ashraf (UCLA) "Beyond Borders: Legislative Challenges to the Management of Records in the Cloud" – Elaine Goh (University of British Columbia) "Civil Society 2.0: The Global Struggle to Govern the Democratic Impacts of ICTs" – Muzammil M. Hussain (University of Michigan) "The Anti-Counterfeiting Trade Agreement and the Networked Public Sphere: How to avoid a Convergent Crisis" – James Losey (Open Technology Institute)
10:20 - 10:40	Break
10:40 - 12:10	Tutorial "Ranking Companies on Digital Rights: Challenges and Synergies" – Rebecca MacKinnon (New America Foundation)
12:10 - 14:00	Lunch
14:00 - 15:30	Surveillance and Monitoring "Revisiting Webtapping: Learning From Five Years’ of U.S. Cyber and Intel Policy" – Chris Bronk (Rice University) "Who Watches the Watchmen?: Detecting Stealth and Unattributed Information Controls" – Herve Saint Louis (University of Toronto) "IX Maps" – Andrew Clement (University of Toronto) "Technologies of Control, ‘National Security’ and Systemic Abuse of Minorities in the East and Horn of Africa" – Clara Gutteridge (Equal Justice Forum)
15:30 - 15:45	Break
15:45 - 16:30	Closing Discussion on Interdisciplinary Research and Information Controls

Friday, July 26, 2013

Location: Rooms 108, 208 and Basement, North House, Munk School of Global Affairs (Trinity site), 1 Devonshire Place (map)

10:00 - 14:00

Breakout Sessions

Light refreshments will be served

The half day will be dedicated to giving participants the opportunity to break into small groups to further discuss, share, and hack on topics raised during the workshop.

Sponsor

The workshop is sponsored by University of Toronto's Connaught Fund. Since it was founded in 1972, the fund has invested more than $1 million in projects that span across the disciplines.

For more details visit https://cis-india.org/news/citizenlab-summer-institute-on-monitoring-internet-openness-and-rights

Conference Report: 'Privacy Matters' Bangalore

praskrishna — 2011-02-08T05:13:24Z

On February 5th the 'Privacy Matters" conference was held at the TERI Regional Center in Bangalore. The event was a full day and centered around issues of privacy including: privacy rights of minorities, privacy and open government data, and privacy and identity.

Conference Summary

On the 5th of February, civil society, lawyers, students, NGO’s, and representatives from the IT companies gathered together at the TERI Southern Regional Center to take part in 'Privacy Matters' - a public conference held to discuss privacy issues in India, and the privacy legislation that has been proposed in the parliament. The conference was opened by Prashant Iyengar, head researcher at Privacy India. Mr. Iyengar explained the mandate of Privacy India, which is to raise awareness of privacy, spark civil action, and promote democratic dialogue around privacy challenges and violations in India.

Keynote: Ashish Rajadhyakksha, Senior fellow, Centre for the Study of Culture & Society

Mr. Rajadhyaksha delivered the keynote speech. In his presentation he focused on privacy in relation to the changing nature of the individual. He pointed out how humans are now becoming technologically enhanced individuals - in essence cybernetic organisms. These technological enhancements can be both positive and negative, but in both cases come with multiple and complicated questions of privacy, because the technological enhancements facilitate everyday life but at the same time create possible privacy violations. He further raised the point that people are not aware of these privacy implications, and thus violations of privacy are not seen as coercive acts, and people do not see their liberty as being placed at risk or challenged.

QUESTIONS TO CONSIDER

How do we define claim rights vs. liberty rights in terms of privacy ?

How do we define our rights in terms of privacy?

Privacy and Minorities: Session I of the conference focused on the privacy rights of minorities and privacy and open government data

Zainab Bawa, CIS RAW fellow spoke on Privacy and Open Government Data. Her presentation, titled Property Rights, Privacy, and Open Government Data looked at how data by governmental agencies is handled. Her research is specifically on land records and the government. In her work she looks at:

How data bases are designed

How documents are translated into English
How hard copy documents are digitized

How information is posted

What are the privacy implications for all these processes

Shubha Chacko from Sangama spoke on the issues of sex workers and questions of privacy. Ms. Chacko opened her presentation by pointing out that there is a common conception that sex workers have no rights to privacy. She then talked about the precarious position sex workers find themselves in, because the law and society find it offensive that a sex worker brings into the public sphere what society believes is to happen in the private. Ms.Chacko also spoke on the invasive techniques that sex workers are subjected to such as HIV intervention and open disclosure of health records, and how these invasive techniques take away the privacy of sex workers. Furthermore, the nature of sex workers work means that they are not privy to the same right of anonymity that many believe is an important principle of privacy. Ms. Chacko closed her presentation by pointing out that the UID might actually bring privacy to sex workers. Closing the panel, Sahana Basavapatna spoke on refugees, the UID, and privacy. Ms. Basavapatna spoke about the difficult situation that refugees are placed in as they have no identity in India, but are also easily identified.

QUESTIONS TO CONSIDER

How can a privacy legislation insure that when data bases are architected, they are structured in a way that is appropriate for that type of data?

How can a privacy legislation work to ensure that when records are digitized, information is not lost or manipulated?
What are ways in which the Government can post data, so that it is both open and not in violation of an individual’s privacy?

How can a privacy legislation ensure anonymity for all citizens when necessary?

Should specific steps be taken in a privacy legislation to ensure the privacy of minorities such as refugees and sex workers?

How can a privacy legislation be framed and implemented in order to not perpetuate existing societal stigmas?

Identity and Privacy: Session III of the conference focused on identity and privacy

Hamish Fraser (Partner at Truman Hoyle, Sydney, Australia) spoke on the Australia Identity card, and how, among other reasons, it was privacy concerns that squashed the identity card in Australia. Furthermore, out of the attempt to make an Australian Identity Card, the Privacy Act of 1995 was passed. Currently in Australia individuals do not have identity cards, but instead they have numbers for different services – such as a tax number, a health number, and a driver license number. These numbers are not unique, and one number for a certain service cannot be used for another service, thus the government cannot track an individual by their number. Mr. Hamish also touched on the ten principles of privacy that the Australian legislation adopts, and pointed out that though the legislation does not have strong teeth, in Australia there is a strong culture of privacy that makes the law enforceable. Michael Whitener (Principal and co-founder of VistaLaw International LLC) spoke next. His presentation titled “Science Fiction Becomes Reality, but at What Cost” focused on the privacy aspects of biometrics and changing technology.

Raman Chima, Privacy analyst for Google, was the final speaker on the panel. Mr. Chima worked to expose myths that people hold about why Google collects information, and how they use that information. For instance Google gathers limited information to develop valuable products and services, and to develop innovative products that reflect strong privacy standards. Mr. Chima also pointed out that though online tracking can have negative implications, it also has many positive implications - such as allowing spam to be stopped and tracking disease in areas. He concluded his presentation by urging citizens to become more informed, and ask for more rights. He also pointed out that privacy has yet to be spelled out and presented in a way that any person can comprehend, understand, respect, and follows

QUESTIONS TO CONSIDER

Should a privacy legislation regulate how much access to private citizens records is the government granted?
How can a privacy legislation be drafted and implemented, so that is practical and applicable for the common citizen?
How are court regulators going to balance the privacy rights against the need for authentication?

What will be the requirements for securing storage of biometric data?

How will a legislation or privacy policy respond to security breaches?
How will legislation answer the question of what constitutes "consent"?

What privacy principles should a privacy legislation in India enforce?
Should a privacy legislation allow an individual to be “forgotten”?
How could a privacy legislation be given either legal or social teeth in India?

Privacy and Social networking Session IV of the conference focused on privacy and social networking

Ujjvala Ballal from Inclusive Planet , a social networking site for the disabled, focused her presentation on the privacy rights of the disabled. She raised the point that disabled people have been struggling for equal access rights for many years. In the process they have lost much of the privacy that they have a right to. She went on to explain that there are many privacy issues that are unique to a disabled persons. Some of which include: the disclosure of their disability, the stigma that comes along with their disability, and the denial of services based on their disability.

Gagan K. (NLSIU Law Student) spoke on Privacy Issues in Social Networking Websites. Gagan pointed out that on social networking sites privacy issues include:

Data mining

Profiling

Third party disclosure.

QUESTIONS TO CONSIDER

Should information pertaining to the disabled be held to higher standards of privacy, because of its sensitive nature?

How can a privacy legislation be drafted, so it is accessible to the disabled?

Could a privacy legislation construct regulations on the handling of data, in order to prevent profiling and discrimination?

Conclusion: the concluding session was a time for discussion and opinion sharing

From the closing session, and the above sessions many themes and questions pertaining to privacy came out that will need to be addressed when considering the way forward for a privacy legislation including:

Property rights and privacy

The right to be forgotten

Privacy rights of minorities

Privacy and open government data- how is it collected, transferred, stored, and reproduced
Privacy and foreigners (refugees, illegal migration, etc)

Recognizing privacy rights in a changing technological society

Privacy implications of biometric usage
Privacy rights superseding identification needs
Corporate privacy policies
Privacy rights and the disabled
Privacy rights and social networking

For more details visit https://cis-india.org/internet-governance/blog/privacy/privacy-conferencebanglaore

Conference on Standards Settings Organizations (SSO) and FRAND, NLSIU

rohini — 2016-04-02T18:12:41Z

Rohini Lakshané attended the Conference on Standards Settings Organizations (SSO) and FRAND held at NLSIU, Bengaluru on March 21 and 22, 2015. It was organised by the MHRD Chair on Intellectual Property Rights, Centre for Intellectual Property Rights and Advocacy (CIPRA), National Law School of India University, Bengaluru in association with Intel Technology India. This post is a compilation of notes from the conference.

Programme Schedule

Significant Takeaways
It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms. In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014. This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India. India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in Huawei vs. InterDigital that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price. Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product. The government of India has adopted a royalty free (RF) approach to licensing open standards. Non-essential claims are excluded from disclosure. Pending patent applications are not. Only 16% patents declared as SEPs are actually SEPs, according to a study. The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases. Matheson: The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.

SSOs and FRAND: Licensing issues

John Matheson, Director of Legal Policy (Asia Pacific), Intel

The role of licensing policy

Ensuring market access
Standards often depend on patented technology, which is accessed through the Promise to License on FRAND terms.
It is equally critical to ensure that standards can be implemented without unfair legal games.
It is essential to prevent patent hold-up.
Reasonable compensation

Patent holders remain entitled to fair compensation and benefit from the proliferation of their technologies via standardisation.

Why FRAND?

A FRAND commitment embodies certain fundamental principles that have been recognised widely by the courts and regulators.

The fundamental purpose of a FRAND commitment is widespread adoption of the standard.

Because of the peculiar nature of SEPs, the process is open to abuse.

A FRAND commitment is aimed at preventing patent holders from exploiting a hold-up value and extracting unreasonable royalties and concessions that could otherwise follow from being in a very unique position. Often, the holders of the IP have a single solution to an interoperability or connectivity conundrum that technology is facing.

Why are SEP license negotiations different from Non-SEP ones?

In the context of non-SEPs, one may be negotiating to obtain a license to a patent for a particular feature. If the licensor is being difficult, one can discard the feature to include something else. In a competitive market, this negotiation is focused on the value of the invention to be licensed. Thus one can redesign to avoid a particular claim and, in turn, avoid injunction.

On the other hand, it is necessary to either obtain a license for or infringe an SEP to manufacture the mobile device. There is no workable alternative or workaround to obtaining a license for the desired technology. With the threat of an injunction looming over the negotiations, the prospective licensee is under pressure to obtain a license. So the market negotiations for SEPs and non-SEPs are very different. One-way negotiations raise the possibility of a patent hold-up, and abuse of the standard implementer.

IP policies inevitably involve compromise.

Common areas of misunderstanding include:

Valuations or meaning of "reasonable". Valuations of IP under consideration.
Injunctive relief or exclusion orders
Discrimination or refusal to license
Patent transfer (It requires a continuation of the FRAND commitment, and shouldn't get differential treatment in the IP policy.)

Competition authorities in the US and EU have asked SSOs to reconsider policies to reduce ambiguity in the context of these areas of misunderstanding.

The ex-ante or the incremental value of the SEPs before the standard is set needs to be understood. The SSOs look at several different ways to solve a connectivity problem. The patent owners bring their patents into the standards body and claim that theirs is the best way to solve that problem. The market and consumers want an uncomplicated solution which works and is as cheap as possible. In many cases, there is one single winner, simply because we need one solution. In exchange for being the winner, the FRAND discipline is quid pro quo.

European Commission's response to two different patent lawsuits:

In the Samsung and Motorola cases, the Commission clarifies that in the standardisation context where the SEP holders have committed to:

License their SEPs
Do so on FRAND terms

It is anti-competitive to seek to exclude competitors from the market by seeking injunctions on the basis of SEPs, if the licensee is willing to take a license on FRAND terms.

In other words, if there is a bona fide commitment on the part of the licensee to agree to that test, then it is anti-competitive to seek an injunction.

In these circumstances, the seeking of injunctions can distort licensing negotiations and lead to unfair licensing terms, with a negative impact on consumer choice and prices. -- EU Competition Policy Brief, Issue 8, June 2014.

Anyone who needs access to connectivity or needs interoperability requires to get a SEP license, and if that license is required to be obtained within a time limit, it almost -- by definition -- is not going to work. Patent licenses take years to negotiate, and they're incredibly complex. For example, a patent policy may offer up to 12 months to agree on a license, but that is not the way the market works. So we cannot expect policies that put forth time limits to work in the SEP arena. What we can expect is that the implementers make a bona fide commitment to seek a license.

Motorola vs. Microsoft, Germany:

Motorola sought injunctive relief against Microsoft in Germany. Microsoft moved its distribution centre from Germany to the Netherlands. This resulted in loss of jobs, relocation costs ($11.6 million), and annual increased operating costs of $5 million for Microsoft.

Samsung vs. Apple, Germany

Similarly, on the basis of one patent, a temporary injunction was granted on the sale of the Apple iPad and iPhone. Apple was forced to agree to terms it didn't want to agree to, so that the sale of its products would resume.

This is a very important issue for India as it thinks about how it can attract foreign investments. India has a unique opportunity to learn from these lessons from around the globe and craft India-specific solutions. India has the intellectual capability and the institutions capable of crafting these solutions, and in doing that we can support Make In India.

SEP holders that make FRAND commitments should not be allowed to obtain injunctions against alleged infringers, except in limited circumstances. This formula has been adopted by the IEEE, which has solved this problem. India has the opportunity to leapfrog a lot of patent litigation by adopting the IEEE test.

Learn from what happened with Microsoft in Germany. What kind of message do you want to send to the foreign community about investing in India? Do you want to use the scare tactics of injunctions or do you want to adopt a policy that will avoid litigation?

India needs to be mindful about what is happening in the [South Asian] region. China has moved aggressively to try to curb FRAND abuse. The People's Court in China ruled in Huawei vs. InterDigital that for 2G, 3G, and 4G patents, the license fees of royalties should not exceed 0.019% of the actual sale price.

Reasonable Compensation Considerations

Royalty based on the smallest unit that practices the standard.
Technical value of patented technologies vs. alternatives.
Overall royalty that could reasonably charged for all SEPs.

Non-discrimination

A commitment to license every implementer of the relevant standard.

Transfer

FRAND commitments follow the transfer of a patent to subsequent proprietors.

Dr. Krishna Sirohi, Impact Innovator, GISFI, President, I2TB

As per the Make in India programme, we have to achieve zero imports by 2020. Product development in India by Indian companies will happen with collaborative research and development and IPR sharing through licenses. We are looking at national capacity building through product development and patent uses.

Global Information and Communication Technology Forum for India (GISFI) is a standards setting body involved with standardisation and research. It is a telecommunications standards development body (TSDO) set up with the approval of the DoT. It has peer relationships with ITU, OMA, TTC and a bunch of other SDOs. Internet of Things (IoT), mobility and security are its three major research programmes.

GISFI is working towards defining 5G in India. The 5G standardisation theme in India is called WISDOM (Wireless Innovative System for Dynamic Operating Mega Communications). GISFI is considering the perspective of the Indian user, the network capability, the network architecture, network development and the Indian revenue model, strategic and special purpose networks, inclusive growth, and network security.

However, some India-specific aspects such as illiteracy and lack of basic civic infrastructure need to be considered in the standardisation process.

GISFI plans and stages for 5G definition and adoption

Stage 1 (2014-2018): National agenda for strategic research, innovation and experimentation

Focus on Digital India and Make in India programmes.

Stage 2 (2016-2019): Standardisation

Stage 3 (2017-2021): Product Development

Stage 4 (2019-2023): Early Development

Technical understanding required for IPR issues

Enhancement applicable to general scenarios
- Traffic capacity
- Cell coverage
- Edge cell performance
- Intercell interference
- Network congestion
- Mobility
- Energy consumption
Enhancements targeting new use cases
- machine-type communication
- national security
- public safety services
Carrier aggregation
- Higher throughput owing to intra and inter-band transmission bandwidth of more than 20 MHz.
- Reduced network congestion owing to load-balancing across multiple carriers.
- Improvement in mobility and reduction in inter-cell interference.
Enhanced MIMO
- Improved spatial diversity and multiplexing
- Improved beam-forming
- Multiple access with multi-antenna transmission
Coordinated Multi-Point Operation (CoMP)
- Reduction in intercell interference owing to coordinated scheduling or beamforming (CS/CB)
- Transmission from multiple distribution points (base stations, RRH) in a coordinated way (Dynamic point selection, and Joint transmission)

What do SSOs handle IPR in different parts of the world and what are the issues they face?

GISFI has adopted ITU's IPR policy.

In SSOs, the FRAND principle works well only when participating entities have equal or almost equal IPR clout, and can reciprocate with their own patents every time other entities share their patents. It is difficult to create a balance between entities that only own IPR and those that only consume IPR.

Most of the members of SSOs are IPR owners. The entities that develop [technological] solutions without owning the IPRs are usually not a part of SSOs. However, additional strategies need to be implemented for realising the "Make in India" goal. The goal of zero imports by 2020 can only be achieved if a large number of small companies use these standards to develop products locally. So small manufacturers should be represented even at the highest levels of the standards development body. An IPR policy should be defined/ modified to factor in these needs.

Evaluation of LTE essential patents declared by ETSI

Cyber Creative Institute, June 2013: http://www.cybersoken.com/research/pdf/lte03EN.pdf

A large number of LTE patents are held by a handful of companies. There is no Indian owner of any LTE SEP.

Ericsson sued Apple in the US over infringement of its LTE patents. As of January 2015, Apple countersued Ericsson in a federal court in California and claimed that it did not owe any royalties to the latter.

Apple also stated that Ericsson was calculating royalties on the sale price of the iPhone or iPad, whereas the royalty should be calculated on the value of the baseband chip that runs this technology in the mobile device. If such litigation occurs in India, what would be India's position? If a building block contains the technology pertaining to a patent, then royalty should be calculated on the smallest possible patent practising unit and not the entire product.

Dr. Kumar N. Shivarajan, CTO, Tejas Networks

TSDSI's (Telecommunications Standards Development Society of India) IPR policy states that a member's technology will become a part of a standard as long as the member licenses it on FRAND terms to other members.

By 2017, 70% of the global equipment spend will be on LTE.
TD-LTE subscriber base in India has been projected to reach 67 million by 2017.
Most of the data connections in India are still on 2.5G.
Smartphones have become affordable but 3G continues to languish in India; 4G yet to take off.
The number of 3G connections in India grew from 30 million to 33 million from 2013 to 2014.

Is 5G the answer to India's access problems?

The mobile industry is aiming to go beyond traditional 4G LTE in 2015 and there is increasing focus on adding new bells and whistles to 4G and realise 4G+.

LTE Licensed-assisted access (formerly LTE-Unlicensed)
LTE Direct/ Peer-to-peer
LTE-M for machine to machine communication
CoMP

Countries forming 5G groups to take an early lead:

China: IMT-2020 (5G) Promotion Group
Korea: 5G Forum
EU: 5G Public Private Partnership (5G-PPP)

5G in its current form is souped-up 4G.

Key India-specific requirements for 5G standard development

5G must factor in the Indian requirement for DSL-like connectivity: Always ON, low latency, affordable cost
To minimise costs, 5G must minimise the use of BTS sites and focus on spectral efficiency.
5G should allow virtual network operations enabling multiple operators to use the same physical network infrastructure.
5G must work well in Indian propagation environments: concrete buildings blocking signals, dense barriers.
5G infrastructure should be green as electricity shortfall is a problem. India has 400,000 cell towers. 10% of them are not connected to the electricity grid. More than 70% experience power outages longer than 8 hours per day, and work on diesel-powered generators. As a result, 25% of the operational costs of telcos are their energy bills. India imports 3 billion litres of diesel annually to run these cell sites.

India can try to get a headstart in owning the IPR that would eventually go into the 5G standard.

Prof. Ramakrishna, MHRD Chair, NLSIU, Bengaluru

The attitude of an SSO towards patented technology determines the objective of its IPR policy. For example, an SSO may want to:

Promote widespread implementation of a standard without unnecessary IPR implications.
Ensure transparency and certainty about the declaration of patents and patents' claims as SEPs.
Ensure that every patented technology is available at a reasonable fee, comparable to the value of the technology.

What happens when IP ownership is transferred to another owner? It continues to be a part of the SSO but things get complicated.

New owners, third parties, subsidiaries, and affiliates fall under the purview of the IPR policy, by extension.

IP and Disclosure policies of Indian SDOs

BIS (Bureau of Indian Standards) and TEC (Telecommunication Engineering Centre) do not have IP policies of their own. TEC refers to the ISO/IEC IP policies wherever the technology is equivalent or the same.
GISFI disclosure requirement: Each member is required to inform GISFI in a timely manner of essential IPRs. But members are not under any obligation to conduct IP searches. GISFI's IPR policy is based on that of ETSI.
DOSTI (Development Organization of Standards for Telecommunications in India) is not functional.

IPR policy for open standards in e-governance

The government of India has adopted a royalty free (RF) approach to licensing open standards.

Mandatory Characteristics of Open Standards:

The patent claims necessary to implement the standard should be made available royalty free for the lifetime of the standard.
The standard shall be adapted and maintained by a not-for-profit organisation.
The standard shall have a technology-neutral specification.

The RF approach and the maintenance by a non-profit may be a disincentive for IP owners.

IEEE patent policy:

IEEE invites participants to disclose patent claims essential to a standard under development. Upon disclosure, the patent holder needs to submit a letter of assurance that states:

License(s) will be made available without compensation or at a RAND rate.
A commitment to enforce the essential patent claims against any entity complying with the standard.
Or state its unwillingness or inability to license its essential patent claims.

Common patent policy for ITU-T/ ITU-R/ ISO/ IEC

Recommendations/ deliverables are non-binding -- ensure compatibility of technologies and systems on a worldwide basis.

The "code of practice":

It is desirable that the fullest available information should be disclosed although ITU, ISO or IEC are unable to verify the validity of any such information.

Major types of IPR policies:

Participation-based IPR policies

These are common in small, informal bodies such as consortia.
Members are bound by the terms of membership to commit to licensing SEPs on RAND or RF terms.
SEP holders notify the standards body in case RAND or RF licenses are not available after the draft standard has been published.

Commitment-based IPR policies
- These are commonly followed large, standards setting bodies.
- These bodies identify SEPs to a draft standard through disclosure and submission of licensing commitment.
- Parties may seek alternative solutions or work on a withdrawn standard is the the alternative solutions don't work out.

Basic building blocks of commitment-based IPR policies

Disclosure policies:

Disclosure is important for
- sending requests to SEP holders to make licensing commitments
- ensuring that experts' groups make informed decisions on inclusion of patented technologies
- providing information to prospective standards implementers about the SEP owners

Two forms of disclosure:

A call for patents is made at the start of meetings. This is more informational than binding.
Later, the member states its intentions regarding licensing the patent on RAND terms.

How disclosure obligations arise (and commitments are binding):

IEEE has by-laws that are binding on members.
ITU, IEC, and ISO: It is via a resolution or recommendation.

(Indicative list)

General disclosure procedure:

The nature of disclosure rules concerning self-owned patents depends on the status or the role of the entity.

A "submitter" is a participant in the working group making a conscious decision to submit its technology to the SSO for a license or free of royalty.
A participant in a working group may submit its technology to the SSO free of royalty, on RAND terms, on RAND terms with the right to charge a fee, or with a refusal to license it. (A working group participant who discloses technology is usually a technology expert. When someone who does not have adequate knowledge of patents discloses technology, it has complicated implications.)
A non-working group participant (third-party) may also submit its technology.

ANSI has left it to the accredited SSO to decide the terms of disclosure for participants of working groups. It has not laid out a policy in this regard. Other organisations have laid out obligations on the submitter to disclose SEPs.

Nature of disclosure terms for patents owned by third-parties:

ETSI: It is obligatory.

ITU/ ISO: Obligatory only for participants of the working groups.

IEEE: Entirely voluntary

Non-essential claims are excluded from disclosure. Pending patent applications are not.

Working groups prefer early disclosure so that they may adopt or discard the claim as early as possible in the standard setting process.

ITU: Disclosure from the outset

IEEE: During meetings of the working group

ETSI: "Timely manner"

AFSI: At a sufficiently mature level

There is no mandate for updating the disclosure in case a standard evolves.

Most SSOs make disclosed patents public. Failure to disclose patents may result in accusations of abuse of monopoly or anti-trust/ anti-competitive activities.

It is difficult to identify all potentially essential patents due to the complexity of specifications.

Some SSOs don't require IP disclosure at all. The obligations to license on FRAND terms would be sufficient.

Only 16% patents declared as SEPs are actually SEPs, according to a study.

It makes sense for rightsholders to go for blanket disclosures instead of disclosure of specific patents.

Vinod Dhall, ex-chairperson of the Competition Commission of India (CCI):

Our competition law is new, so there aren't any cases pertaining to patent litigation and involving the competition law, which we can treat as precedents. In one of the mobile phone patent litigation cases in India, the implementer has approached the CCI claiming that the licensor has been abusing its dominant position in the market by charging unreasonable royalties.

The Delhi High Court has passed interim orders restraining the CCI from deciding these cases. Our appeal to the courts is that these patent infringement lawsuits should not be viewed in isolation. They should not be viewed as merely contractual issues between the licensor and the licensee. They should be seen in the context of their economic effects and their adverse effect on competition. The CCI should be enabled to deal with such cases.

Questions-answers round:

What are the criteria for declaring a patent an SEP?

T. Ramakrishnan: SSOs have no role in declaring that a patent is an SEP. The SEP holder declares that their patent is essential to a technical standard. Most of the time, the SEP may turn out to be a non-SEP at a later stage. Statistically, 16 out 100 claimed SEPs are actually SEPs. There is no way for SSOs to tell if a patent is an SEP. IP policies of most SSOs state that they don't search [if a patent is an SEP]. The members of SSOs are under no obligation to search.

The commitment to license an SEP on FRAND terms is more important to an SSO [than determining if the patent is indeed an SEP].

Can compulsory licensing be implemented with government intervention in India so that the Central Government can fix a royalty and put an end to patent litigation?

Matheson: The phrase "compulsory license" sends a shiver down every corporate's spine every time it is used. International experience is that the judicial system has been the only forum where we have been able to have due process to enable us to construct cases properly in order to explain to the judge or to the jurors how the system works. That has produced very sensible solutions to this problem. Handing it off to the government to institute a compulsory license wouldn't be fair to the SEP holders.

With respect to the "safe harbour" approach towards SEP-based injunctions, what does the licensee need to do to prove to the courts that it is a willing licensee, in the event that licensing negotiations fail or take a long time?

Matheson: It gets down to the licensee showing its willingness to negotiate. The licensee cannot make a half-hearted attempt and decline to negotiate or decline the licensor's offer and then disappear. They should physically engage in the negotiation. If and when it gets to a judicial environment, the judges know when people are telling stories and when parties are bona fide. They can tell a ruse when they see one, and I think it is one of the things you observe in practice.

Ramakrishnan: The licensee should be able to demonstrate that it is willing to pay the royalty and should deposit an amount towards royalty. One recommendation from AIPP states that instead of using the terms "willing licensee" and "willing licensor", use "good faith response". For "good faith" we have very well established criteria. The entire licensing process should end within 12 months of starting. If the negotiations fail or if the process takes longer, then they should agree upon an arbitrator to fix FRAND terms. These are indicators that demonstrate the licensee being a "willing licensee" or a "good faith" licensee.

Often technology changes before the legal action can be taken or the lawsuit completed, and the patent over which litigation has happened may no longer be relevant to the technology. How do patent holders deal with this situation?

S.K. Murthy, Research Scholar, NLSIU: Even if the technology becomes obsolete, damages can be claimed retrospectively.

Matheson: You have a commitment to a FRAND solution, so that when you enter the protracted negotiation, you know that at the end of it you will get a fair solution. That's not always the case when you are dealing outside the FRAND world. You're dealing with a FRAND incumbent, not with unlicensed patents.

Why is putting a time limit to negotiations not a good idea? Also, IEEE seems to have done well by taking the threat of negotiations out of its way. Is it practical in India, because injunction is still the most potent weapon to protect intellectual property rights in India currently?

Matheson: Licensing is incredibly complex. There can be claims to the validity of the patent, there are claim charts to be drawn, there is expert evidence to be put together. Litigation over patents can take 2 to 3 years. To say that there must be a solution [arrived at] within a smaller framework gives the licensor the opportunity to wait around till the end of that period and assert its patents through an injunction. If you're leaving injunction at the table, you will not have a fair solution. The licensee will always be at a major disadvantage. The IEEE solution is a good one because it has taken the time limit away, but at the same time the policies that would adopt that solution need to include the discipline to ensure that the negotiations are bona fide.

What percentage of the sale price should be provisioned by a product developer for royalties? Can a mechanism be drawn up for this purpose?

Justice Ratnakala: Definitely. Such a mechanism should be drawn up in the near future.

For more details visit https://cis-india.org/a2k/blogs/conference-on-standards-settings-organizations-sso-and-frand-nlsiu

Concept Note: Network Neutrality in South Asia

praskrishna — 2015-12-01T02:34:25Z

For more details visit https://cis-india.org/internet-governance/blog/concept-note-network-neutrality-in-south-asia