Centre for Internet and Society

Comments on IP Rights Policy to DIPP

praskrishna — 2014-12-02T14:56:29Z

For more details visit https://cis-india.org/a2k/comments-on-ip-rights-policy-to-dipp.pdf

Comments on Internet Priorities

akriti — 2018-07-07T01:31:45Z

For more details visit https://cis-india.org/internet-governance/files/comments-on-internet-priorities

Comments on Information Technology (Security of Prepaid Payment Instruments) Rules, 2017

amber — 2017-03-23T01:54:28Z

The Centre for Internet and Society submitted comments on the Information Technology (Security of Prepaid Payment Instruments) Rules, 2017. The comments were prepared by Udbhav Tiwari, Pranesh Prakash, Abhay Rana, Amber Sinha and Sunil Abraham.

1. Preliminary

1.1. This submission presents comments by the Centre for Internet and Society^[1] in response to the Information Technology (Security of Prepaid Payment Instruments) Rules 2017 (“the Rules”).^[2] The Ministry of Electronics and Information Technology (MEIT) issued a consultation paper (pdf) which calls for developing a framework for security of digital wallets operating in the country on March 08, 2017. This proposed rules have been drafted under provisions of Information Technology Act, 2000, and comments have been invited from the general public and stakeholders before the enactment of these rules.

2. The Centre for Internet and Society

2.1. The Centre for Internet and Society, (“CIS”), is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, and open access), internet governance, telecommunication reform, digital privacy, and cyber-security.

2.2. This submission is consistent with CIS’ commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved, especially the privacy and data security of citizens. CIS is thankful to the MEIT for this opportunity to provide feedback to the draft rules.

3. Comments

3.1 General Comments

Penalty

There is no penalty for not complying with these rules. Even the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 doesn’t have penalties. Under section 43A of the Information Technology Act (under which the 2011 Rules have been promulgated), a wrongful gain or a wrongful loss needs to be demonstrated. This should not be a requirement for financial sector.

Expansion to Contractual Parties.

A majority of these rules, in order to be effective and realistically protect consumer interest, should also be expanded to third parties, agents, contractual relationships and any other relevant relationship an e-PPI issuer may delegate as a part of their functioning.

3.2 Rule 2: Definitions

Certain key words relevant to the field of e-PPI based digital payments such as authorisation, metadata, etc. are not defined in the rules and should both be defined and accounted for in the rules to ensure modern developments such as big data and machine learning, digital surveillance, etc. do not violate human rights and consumer interest.

3.2 Rule 7: Definition of personal information

Rule 7 provides an exhaustive list of data that will be deemed to be personal information for the purposes of the Rules. While information collected at the time of issuance of the pre-paid payment instrument and during its use is included within the scope of Rule 7, it makes no reference to metadata generated and collected by the e-PPI issuer.

3.3 Rule 4: Inadequate privacy protections

Rule 4(2) specifies the details that the privacy policies of each e-PPI issuer must contain. However, these specifications are highly inadequate and fall well below the recommendations under the National Privacy Principles in Report of the Group of Experts on Privacy chaired by Justice A P Shah.

Suggestions: The Rules should include include clearly specified rights to access, correction and opt in/opt out, continuing obligations to seek consent in case of change in policy or purpose and deletion of data after purpose is achieved. Additionally, it must be required that a log of each version of past privacy policies be maintained along with the relevant period of applicability.

3.4 Rule 10: Reasonable security practices

Problem: Financial information (“such as bank account or credit card or debit card or other payment instrument details”) is already invoked in an inclusive manner in the definition of ‘personal information’ in Rule 7. Given this there is no need to make the Reasonable Security Practices Rules applicable to financial data through this provisions: it already is, and it is best to avoid unnecessary redundancy.

Solution: This entire rule should be removed.

3.5 Rule 12: Traceability

Problem: There is a requirement created under this rule that payment-related interactions with customers or other service providers be “appropriately trace[able]”. But it is unclear what that would practically mean: would IP logging suffice? would IMEI need to be captured for mobile transactions? what is “appropriately” traceable? — none of those questions are answered.

Suggestion: The NPCI’s practices and RBI regulations, for instance, seek to limit the amount of information that entities like e-PPI providers have. These rules need to be brought in line with those practices and regulations.

3.6 Rule 5: Risk Assessment

Rule 5 requires e-PPI issuers to carry out risk assessments associated with the security of the payments systems at least once a year and after any major security incident. However, there are no transparency requirements such as publications of details of such review, a summary of the analysis, any security vulnerabilities discovered etc.

Suggestion:

Broaden the scope of this provision to include not just risk assessments but also security audits.
Mandate publication of risk assessment and security audit reports.

3.7 Rule 11: End-to-End Encryption

The rule concerning end-to-end encryption (E2E) needs significantly greater detailing to be effective in ensuring the the protection of information at both storage and transit.

Suggestions: Elements such as Secure Element or a Secured Server and Trusted User Interface, both concepts to enable secure payments, can be detailed in the rule and a timeline can be established to require hardware, e-PPI practices and security standards to realistically account for such best practices to ensure modern, secure and industry accepted implementation of the rule.

3.8 Rule 13: Retention of Information

Problem: Rule 13 leaves the question of retention entirely unanswered by deferring the future rulemaking to the Central Government.

Suggestions: Rule 13 should be expanded to include the various categories of information that can be stored, guidelines for the short-term (fast access) and long-term storage of the information retained under the rule and other relevant details. The rule should also include the security standards that should be followed in the storage of such information, require access logs be maintained for whenever this information is accessed by individuals, detail secure destruction practices at the end of the retention period and finally mandate that end users be notified by the e-PPI issuer of when such retained information is accessed in all situations bar exceptional circumstances such as national security, compromising an ongoing criminal investigations, etc.

3.9 Rule 14: Reporting of Cyber Incidents

Rule 14 is an excellent opportunity to uphold transparency, accountability and consumer rights by mandating time- and information-bound notification of cyber incidents to customers, including intrusions, database breaches and any other compromise of the integrity of the financial system. While the requirement of reporting such incidents to CERT-In is already present in the Rule 12 of the CERT Rules, the rule retains the optional nature of notifying customers. The rule should include an exhaustive list of categories or kinds of cyber incidents that should be reported to affected end users without compromising the investigation of such breaches by private organisations and public authorities. Further, the rule should also include penalties for non-compliance of this requirement (both to CERT-In and the consumer) to serve as an incentive for e-PPI issuers to uphold consumer public interest. The rule should be expanded to include a detailed mechanism for such reporting, including when e-PPI issuers and the CERT-In can withhold information from consumers as well as requiring the withheld information be disclosed when the investigation has been completed. Finally, the rule should also require that such disclosures be public in nature and consumers not be required to not disseminate such information to enable informed choice by the end user community.

Suggestion:

(1) In Rule 14(3) “may” should be substituted by “shall”.

(2) Penalties of up to 5 lakh rupees may be imposed for each day that the e-PPI issuer fails to report any severe vulnerability that could likely result in harm to customers.

3.10 Rule 15: Customer Awareness and Education

Problem: Rule 15 on Customer Awareness and Education by e-PPI issuers does not take into account the vast lingual diversity and varied socio-economic demographic that makes up the end users of e-PPI providers in India, by mandating the actions under the rule must account for these factors prior to be propagated.

Solutions: The rule must ensure that e-PPI issuers track record in carrying out awareness is regularly held accountable by both the government and public disclosures on their websites. Further, the rule can be made more concrete and effective by including mobile operating systems in their scope (along with equipments), mandating awareness for best practices for inclusive technologies like USSD banking, specifying notifications to include SMS reports of financial transactions, etc.

3.11 Rule 16: Grievance Redressal

Problem: Rule 16 lays down the requirement of grievance redressal, without specifying appellate mechanisms (both within the organisation and at the regulatory level), accountability (via penalties) for non-compliance of the rule nor requiring a clear hierarchy of responsibility within the e-PPI organisation. These factors seriously compromise the efficacy of a grievance redressal framework.

Solutions: Similar rules for grievance redressal that have been enacted by the Insurance Regulatory and Development Authority for the insurance sector and the Telecom Regulatory Authority of India for the telecom sector can and should serve as a reference point for this rule. Their effectiveness and real world operation should also be monitored by the relevant authorities while ensuring sufficient flexibility exists in the rule to uphold consumer rights and the public interest. Proper appellate mechanisms at the regulatory level are essential along with penalties for non-compliance.

3.12 Rule 17: Security Standards

Problem: Rule 17 empowers the Central Government to mandate security standards to be followed by e-PPI issuers operating in India. While appreciable in its overall outlook on ensuring a minimum standard of security, the Rule needs be improved upon to make it more effective. This can be in done by specifying certain minimum security standards to ensure all e-PPI issuers have a minimal level of security, instead of leaving them open to being intimated at a later date.

Solutions: Standards that can either be made mandatory or be used as a reference point to create a new standard under Rule 17(2) are ISO/IEC 14443, IS 14202, ISO/IEC 7816, PCI DSS, etc. Further, the Rule should include penalties for non-compliance of these standards, to make them effectively enforceable by both the government and end users alike. Additional details like the maximum time period in which such security standards should be implemented post their notification, requiring regular third party audits to ensure continuing compliance and effectiveness and requiring updated standards be used upon their release will go a long way in ensuring e-PPI issuers fulfil their mandate under these Rules.

^[1] http://cis-india.org/

^[2] http://meity.gov.in/sites/upload_files/dit/files/draft-rules-security%20of%20PPI-for%20public%20comments.pdf

For more details visit https://cis-india.org/internet-governance/blog/comments-on-information-technology-security-of-prepaid-payment-instruments-rules-2017

Comments on InDEA 2.0

divyank — 2022-03-22T06:26:39Z

For more details visit https://cis-india.org/internet-governance/comments-on-indea-2.0

Comments on eCourts phase III

aman — 2021-06-03T12:15:17Z

For more details visit https://cis-india.org/internet-governance/comments-on-ecourts-phase-iii-3

Comments on Draft National Policy on Software Products

praskrishna — 2016-12-11T03:32:14Z

For more details visit https://cis-india.org/internet-governance/files/comments-on-draft-national-policy-on-software-products.pdf

Comments on Draft National Policy on Official Statistics

Gurshabad Grover — 2018-06-07T01:58:22Z

For more details visit https://cis-india.org/internet-governance/files/comments-on-draft-national-policy-on-official-statistics

Comments on Draft National Policy on ICT in School Education

krithika — 2011-08-30T14:23:03Z

The Department of School Education & Literacy under the Ministry of Human Resources Development invited comments on its latest draft of the National Policy on ICT in School Education. CIS' comments are listed in this post.

The Department of School Education & Literacy under the Ministry of Human Resources Development has invited comments on its latest draft of the National Policy on ICT in School Education. We, at the Centre for Internet and Society (CIS) have the following comments on the latest draft:

Digital content and resources already available in the public domain must be leveraged by the Government and this intention must be specifically expressed in the policy.
The provision in the copyright law providing for fair use of copyrighted material must be completely taken advantage of in developing, sharing, disseminating and exchanging digital content and resources. Material already part of the public domain should be included in the pool of resources to be utilised by the Government under the policy.
It is not enough for the State to provide “open and free access” to ICT and ICT-enabled tools and resources to all students. It is important that the Government adopts the concept of global Open Educational Resources (OER) and license Indian content appropriately. OER refers to digitised materials offered freely and openly for educators, students and self-learners to use and reuse for teaching, learning and research.¹ OER materials are being increasingly integrated into open and distance education. The policy should mandate the State to license all digital content under OER.
It is commedable that the policy mandates use of Open Standards for the State to maintain and share digitsed content. However, we recommend that the policy uses the same definition for “Open Standards” as that incorporated in the Government's Open Standards policy so that the same phrase is defined uniformly across all national policies.
The policy should not foreclose the option of including freeware or resources obtained gratis in the educational material for students. It should allow the State to make efforts to obtain freely available educational material and incoporate it as part of the educational material.
Course developed by the State should be licensed under a Creative Commons License, preferably an attribution-only² or sharealike³ CC license 3.0. Similarly, software used as part of educational resource must be licensed under a GPL or a BSD license.
Teachers and students should be sensitised towards the fair use exception in the Indian copyright law so that maximum utilisation of the provision is facilitated.
School libraries should be encouraged to exercise their right to the fair use exception applicable to libraries. Even though the law on fair use in respect of public libraries seems restricted in terms of the number of copies of a book that can be made (and thus, leading to staggered borrowing) and making it a prerequisite for the book to be unavailable for sale in India. However, there is significant room for interpretation of these ambiguous provisions and take advantage of the fair use exception to provide greater access to educational materials available in school libraries. Other statutes such as the Public Libraries Act govern the operations of State libraries and this, in addition to the fair use provision, would allow for greater flexibility in operation for the libraries. The State should endeavour to make the most of these provisions and interpret them to enable greater access to learning material for the students.
The policy should require libraries to follow an anonymisation policy which ensures that the details of books borrowed by the students remain private and the students' privacy is adequately safeguarded in this regard.
As far as ICT for children for special needs is concerned, it is recommended that the State use the DAISY format to make documents accessible and comply with WCAG guidelines to ensure accesssibility of web content.
Indian law on fair use exception applicable for distance education is still unclear. Therefore, we recommend that this policy be used test the feasibility of fair use in case of distance education in India.
The results and findings from the monitoring, evaluation and research should be declared Open Government Data (OGD) and shared or disseminated accordingly. A piece of data is open if anyone is free to use, reuse and redistribute it – subject only, at most, to the requirement of attribute and share-alike.⁴ Open data commissioned or produced by the government or government controlled entities constitutes OGD.⁵
As far as use of software for education is concerned, students need to read code before they write code, just as in the case of books. Therefore, Free and Open Source Software (FOSS) has to be made available so that the source code is accessible for the students to read and improve upon. De facto proprietary software could be made available where budget exists so that students can learn in a technology-neutral fashion and are exposed to multiple implementations of an idea. However, proprietary software availability will be inapplicable for domains which operate exclusively on free software.
The present draft recommends educating students and teachers on use of firewalls and other security measures to be used to block “inappropriate websites”. We feel that there is no requirement for a centralised policy on blocking websites. We recommend community-based blocking wherein each school can decide the criteria on which they want to block a website.
It is very critical to ensure that there is no surveillance done on children so that there is a free environment for children to use the digitised content and the internet for their educational purposes.
We recommend that the State is mandated to have all Indian language content be encoded using Unicode standards.
We have gone through the comments made on the draft version by IT for Change and Free Software Foundation (FSF) and we are broadly in agreement with the points made by them. We would like to reiterate that use of FOSS must be made mandatory.

Notes

1 OECD (2007), Giving Knowledge for Free: The Emergence of Open Educational Resources, OECD Publishing.
doi: 10.1787/9789264032125-en

2 http://creativecommons.org/licenses/by/3.0/legalcode

3 http://creativecommons.org/licenses/by-sa/3.0/legalcode

4 http://www.opendefinition.org/

5 http://www.opendefinition.org/government/

For more details visit https://cis-india.org/openness/blog-old/ict-in-school-education

Comments on Draft Digital Information Security in Healthcare Act

Amber Sinha and Shweta Mohandas — 2018-05-01T01:54:48Z

For more details visit https://cis-india.org/internet-governance/files/comments-on-draft-digital-information-security-in-healthcare-act

Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms

Anubha Sinha, Nehaa Chaudhari and Rohini Lakshane — 2016-05-03T02:30:15Z

The Centre for Internet & Society gave its comments to the Department of Industrial Policy and Promotion. The comments were prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.

Download the PDF To access other submissions to the DIPP Discussion Paper on SEP and FRAND, please click here

Authors

I. PRELIMINARY

1. This submission presents comments by the Centre for Internet and Society, India ("CIS") on the Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms (dated 01 March, 2016), released by the Department of Industrial Policy and Promotion ("the DIPP"), Ministry of Commerce and Industry, Government of India (" the discussion paper/ discussion paper").

2. CIS commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views.

3. This submission is divided into three main parts. The first part, 'Preliminary', introduces the document; the second part, 'About CIS', is an overview of the organization; and, the third part, 'Submissions on the Issues', answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document.

II. ABOUT CIS

4. CIS is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cyber-security.

5. CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles. In addition, the comments are in line with the aims of the Make in India and Digital India initiatives of the Government of India.

III. SUBMISSION ON THE ISSUES FOR RESOLUTION

6. The following sections provide CIS' views and recommendations on the issues enumerated in section 11 of the discussion paper:

a) Whether the existing provisions in the various IPR-related legislations, especially the Patents Act, 1970 and antitrust legislations, are adequate to address the issues related to SEPs and their availability on FRAND terms? If not, then can these issues be addressed through appropriate amendments to such IPR-related legislations? If so, what changes should be affected?

A.1. The issues related to Standard Essential Patents ("SEPs") and their licensing on a fair, reasonable and non-discriminatory ("FRAND") basis lie at the intersection of intellectual property ("IP") law and competition law . As such, in India, the Patents Act, 1970 ("the Patents Act") and, the Competition Act, 2002 ("the Competition Act") are the relevant legislations to be studied. These have been recently discussed, most recently, by Justice Bakhru in his comprehensive order inTelefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India and Another.

A.2. It is our submission that at the moment, amendments to the Patents Act and the Competition Act may not be preferred. As Justice Bakhru has noted in the aforesaid decision, there is no conflict between the remedies in the Patents Act and in the Competition Act, and, the pursuit of rights and remedies under one of these legislations does not bar a party from pursuing rights and remedies in the other. Further, under both legislations, there are scenarios for the respective authorities - the Controller General of Patents, Designs and Trademarks ("the Controller") and the Competition Commission of India (" the CCI") for the Patents Act and for the Competition Act respectively - to seek inputs from each other.

A.3. We also note that the CCI is a fairly nascent regulator; one whose jurisdiction is not yet a settled matter of law. While the judgment in the Ericsson-CCI case is indeed a good beginning, we do not believe that the matter has been conclusively decided. Accordingly, given the complex legal questions involved, over not just the interpretation of the Patents Act and the Competition Act, but also constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts, we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.

A.4. In addition, we are of the opinion that our IP law, and, our competition law, fully honor our international commitments, including the requirements under the TRIPS Agreement. As such, we would urge the Government of India to not enter into free trade agreements including, inter alia, the Regional Comprehensive Economic Partnership, that threaten our use of TRIPS flexibilities, and, impose 'TRIPS-plus' obligations.

A.5. We also urge the Government of India to adopt a balanced National IPR Policy, and, a National Competition Policy, both of which has been in abeyance for a considerable amount of time. We believe that these policies are crucial to realize the objectives of the Make in India and Digital India initiatives. At the same time, we submit that these policies be balanced, taking into account the interests of all stakeholders, developed through an extensive consultative process, and, suitably modified based on feedback.

b) What should be the IPR policy of Indian Standard Setting Organizations in developing Standards for Telecommunication sector and other sectors in India where Standard Essential Patents are used?

B.1. The discussion paper identifies four Standard Setting Organizations ("SSOs") in India, namely, the Telecom Standards Development Society of India ("TSDSI"), the Telecommunication Engineering Center ("TEC"), the Bureau of Indian Standards (" BIS"), the Global ICT Standardization Forum for India ("GISFI"), and, the Development Organization of Standards for Telecommunications in India ("DOSTI"). Comments on each of their policies have been made in the following paragraphs.

B.2. The BIS does not have an intellectual property rights ("IPR") policy of its own. The BIS Act, 2016 does not include one either. As the discussion paper notes, the BIS refers to the IPR policies of the relevant international SSO in the context of technology implemented in India, that is the same or equivalent to the ones developed or maintained by the respective SSOs.We recommend that BIS adopt an IPR policy at the earliest, factoring in India specific requirements differences: a large and exponentially growing mobile device market makes it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin ("India specific requirements"). In addition, our comments on the IPR policy of the TSDSI in paragraph B.4. of this submission (below), may also be considered for the content of the BIS' future policy on IPR.

B.3 . According to the discussion paper, the TEC considers the IPR policies of the International Telecommunication Union. We recommend that like the BIS, the TEC also adopt its own IPR policy, factoring in the India specific requirements detailed above. In addition, our comments on the IPR policy of the TSDSI in paragraph B.4. of this submission (below), may also be considered for the content of the BIS' future policy on IPR.

B.4. The TSDSI, a relatively new standards body, has defined an IPR policy . In respect of this policy, the following observations are presented. First, this policy notes that IPR owners should be adequately and fairly rewarded.Second, it requires members to disclose essential IPRs in a "timely fashion." Third, as per its policy, the TSDSI can request the owner of an essential IPR to undertake, within three months, to license it irrevocably on FRAND terms. At the same time, the policy also states that the (aforesaid) ask may be subject to the condition that licensees agree to reciprocate. Should such an undertaking not be forthcoming, the TSDSI may suspend work on the standard or technical specification in question, or, adopt another course of action. Fourth, the policy identifies two scenarios for the non availability of licences prior to publication, based on the existence, or, the lack thereof, of alternative technologies. In the event of a lack of alternative technology, the policy requires a member to disclose in writing its reasons for not licensing its patents. Following this, it is submitted that there is no clarity on the concrete steps that the TSDSI would adopt in case the efforts to convince a member to license their essential IPRs, fail. The policy only states that "the TSDSI shall take further action as deemed fit." The same is also true where the IPR owner is not a member of the TSDSI. Fifth, the policy also envisages a scenario of non-availability post publication. The procedure for dealing with this is akin to the one detailed above, with the TSDSI asking for a written explanation, considering further action, including the possible withdrawal of the standard or technical specification in question. Sixth, it is observed that the policy does not require a commitment from its members to refrain from seeking injunctive relief. Seventh, it is accordingly recommended that the policy be suitably modified (a) to include India specific requirements discussed above; (b) to require a commitment from its members, that they refrain from seeking injunctive relief; (c) to delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (d) to identify in detail the procedure to be followed in case of patent 'hold-ups' and patent 'hold-outs'; (e) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, non-members, both; and, (f) to include a detailed process on the declassification of a standard or technical specification.

B.5. The IPR policy of GISFI, is substantially similar to the IPR policy of the TSDSI, discussed in paragraph B.4. of this submission (above). Inter alia, GISFI's IPR policy also does not indicate the specific steps to be taken in case an IPR owner refuses to license essential IPRs for which no alternative technology is available. This is true in the cases both, where the refusal is by a member, and, by a non-member. Our recommendations on the IPR policy of the TSDSI in paragraph B.4. of this submission (above), may also be considered for the GISFI's IPR policy.

B.6. According to the discussion paper, the IPR policy of the DOSTI resembles that of the GIFSI. It is submitted that these policies are similar in the context of refusal to license by a member or non-member, and, like the TSDSI and the GISFI, the DOSTI also requires the patent holder to license its IPR irrevocably on FRAND terms. Accordingly, we reiterate our comments on the IPR policy of the TSDSI in paragraph B.4. of this submission (above). The aforesaid recommendations may also be considered to be relevant for the DOSTI's IPR policy.

B.7. We are also of the opinion that it would be useful for Indian SSOs to consider recommending the use of royalty-free licenses for IPRs. Illustratively, the World Wide Web Consortium ("W3C") and the Open Mobile Alliance ("OMA") encourage royalty-free licensing.

c) Whether there is a need for prescribing guidelines on working and operation of Standard Setting Organizations by Government of India? If so, what all areas of working of SSOs should they cover?

C.1. In our opinion, in a milieu where instances of SEP litigation are becoming increasingly complex, and, there is a tangible threat of the abuse of the FRAND process, it might be useful for the Government of India to make suggestions on the working of Indian SSOs.

C.2. It is suggested that the Government of India develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements, including the ones detailed in paragraph B.2. of this submission (above). We believe that this measure will also enable the fulfilment of the objectives of the Make in India and Digital India initiatives.

C.3. We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the the Indian Patent Office ("IPO"), the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.

C.4. In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.

d) Whether there is a need for prescribing guidelines on setting or fixing the royalties in respect of Standard Essential Patents and defining FRAND terms by Government of India? If not, which would be appropriate authority to issue the guidelines and what could be the possible FRAND terms?

D.1. In light of the inadequacies in the IPR policies (discussed above) of various SSOs in India, as well the the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the Government of India intervene in the setting of royalties and FRAND terms.

D.2. We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Further details of this proposal have been enumerated in answer to question 'f' of the discussion paper (below).

D.3. Our motivations for this proposal are many-fold. In our opinion, it is near-impossible for potential licensees to avoid inadvertent patent infringement. As a part of our ongoing research on technical standards applicable to mobile phones sold in India, we have found nearly 300 standards so far . It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities ("NPEs") and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, home-grown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now-affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.

e) On what basis should the royalty rates in SEPs be decided? Should it be based on Smallest Saleable Patent Practicing Component (SSPPC), or on the net price of the Downstream Product, or some other criterion?

E.1. It is our submission that royalty rates for SEPs should be based on the smallest saleable patent practising component ("SSPPC"). Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000. A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India. It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined.

E.2. The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties . In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company's cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government's objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme . It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking.

E.3. The discussion paper notes that J. Gregory Sidak, having studied the proceedings before the Delhi High Court, approved of the manner in which the court determined royalties. In his paper, Sidak(2015) notes that in determining royalties, the court relied, inter alia, on the decision of CSIRO v.Cisco ("the CSIRO case"), a 2015 decision of the US Court of Appeals for the Federal Circuit. 2015. We humbly disagree with the opinion of the Delhi High Court on the manner of determining royalties, and, with Sidak's approval of the same.

E.4. It is our submission that the CSIRO case relied on a previous judgment, which we disagree with. The decision, a 2014 district court judgment, analogises the determination of royalties on SEPs to the determination of royalties on a copyrighted book. The court notes, "[b]asing a royalty solely on chip price is like valuing a copyrighted book based only on the costs of the binding, paper, and ink needed to actually produce the physical product. While such a calculation captures the cost of the physical product, it provides no indication of its actual value." In our opinion, this analogy is flawed. While a book is a distinct product as a whole, a mobile phone is a sum-total of its parts. If at all, a mobile phone could be compared with a book with several authors, as multiple technologies belonging to several patent holders are implemented in it. This judgement bases valuation for one set of technologies on the whole device, thus awarding compensation to the licensor even for those technologies implemented in the device that are not related to the licensed technologies. In our opinion, charging royalty on the net selling price of a device for one technology or one set of technologies is thus more like a referral scheme and less like actual compensation for the value added. Accordingly, royalties must be charged on the SSPPC principle.

f) Whether total payment of royalty in case of various SEPs used in one product should be capped? If so, then should this limit be fixed by Government of India or some other statutory body or left to be decided among the parties?

F.1. CIS has proposed a compulsory licensing fee of five per cent on a patent pool of critical mobile technologies. The rationale for this figure is the royalty cap imposed by India in the early 1990s.

F.2. As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with the DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to "high priority industries". Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government.

F.3. While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009.

F.4. It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, in our opinion, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands.

F.5. We believe that the aforementioned developments are detrimental to the Make in India and Digital India initiatives of the Government of India, and, the government's aim of encouraging local manufacturing, facilitating indigenous innovation, as well as strengthening India's intellectual property regime. It is our submission, therefore, that the payment of royalties on SEPs be capped.

F.6. We submit that such a measure is particularly important, given the nature of SEP litigation in India. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other's patent portfolios. Dynamics in the Indian market differ - with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, home-grown.

F.7. In June, 2013, we had recommended to the erstwhile Hon'ble Minister for Human Resource Development that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon'ble Prime Minister. We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. As we have stated in our request to the Hon'ble Prime Minister, we believe that such a pool would "possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices."

F.8. We believe that such a measure is not in breach of our international obligations under the TRIPS Agreement.

g) Whether the practice of Non-Disclosure Agreements (NDA) leads to misuse of dominant position and is against the FRAND terms?

G.1. The issue of Non Disclosure Agreements ("NDAs") in SEP/FRAND litigation is a contentious one. Patent holders argue that they are essential to the license negotiation process to protect confidential information, whereas potential licensees submit that NDAs result in the imposition of onerous conditions.

G.2. In India's SEP litigation, the use of NDAs has been raised as an issue in at least two cases - separately by Intex and by iBall , in their cases against Ericsson. Intex and iBall have both claimed that the NDAs that Ericsson asked them to sign were onerous, and favoured Ericsson.

G.3. According to Intex, the NDA in question would result in high legal costs for Intex, and, would render it unable to disclose crucial information to its vendors (who had agreed to supply to Intex on the condition that Intex was not infringing on any patents).

G.4. According to iBall, the parties had agreed to enter a global patent license agreement ("GPLA") but Ericsson insisted on an NDA. Upon receiving the terms of the NDA, iBall claimed before the CCI that Ericsson's refusal to identify the allegedly infringed SEPs; the threat of patent infringement proceedings; the attempt to coax iBall to enter into a "one-sided and onerous NDA"; the tying and bundling patents irrelevant to iBall's products by way of a GPLA; demanding unreasonably high royalties by way of a certain percentage value of handset as opposed to the cost of actual patented technology used all constituted abuse of Ericsson's dominant position under Section 4 of the Competition Act.

G.5. In India, the law on misuse (abuse) of dominant position by an 'enterprise' is found primarily in Section 4 of the Competition Act (read with Section 2(h) of the Competition Act, which defines 'enterprise'). In its recent decision in the Ericsson-CCI case , the Delhi High Court has found Ericsson to be an 'enterprise' for the purposes of the Competition Act, and hence subject to an inquiry under Section 4 of the same legislation. In the same decision, the court has also recognised the jurisdiction of the CCI to examine Ericsson's conduct for abuse of behaviour, based on complaints by Micromax and Intex. The use of NDAs is one of the grounds on which the parties have complained to the CCI.

G.6. Pending a final determination by the CCI (and subsequent appeals), it would be premature to make an absolute claim on whether the use of NDAs results in an abuse of dominant position in all instances. However, the following submissions are made: First, the determination of misuse/abuse of dominant position is influenced by a number of factors , i.e., such a determination should be made on a case to case basis. Second, the market regulator, the CCI, is best situated to determine (a) abuse of dominance, and (b) whether the use of NDAs by an enterprise constitutes an abuse of its dominance. Third, the question of whether the use of NDAs constitutes misuse of dominance needs to be addressed in two parts - (a) whether the use of the NDA itself is abusive, irrespective of its terms and, (b) whether the use of certain specific terms renders the NDA abusive. Fourth, NDAs could potentially lead to the patent owner abusing its dominant position in the market, as well as result in an invalidation of FRAND commitments and terms. NDAs make it impossible to determine if a patent holder is engaging in discriminatory licensing practices. Fifth, NDAs are especially harmful in the case of NPEs-- companies that hold patents and monetise them but don't build or manufacture the components or devices that implement the technology associated with the patents.

h) What should be the appropriate mode and remedy for settlement of disputes in matters related to SEPs, especially while deciding FRAND terms? Whether Injunctions are a suitable remedy in cases pertaining to SEPs and their availability on FRAND terms?

H.1. The licensing of SEPs on FRAND terms requires the parties to negotiate "reasonable" royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into binding arbitration. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.

H.2. Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser " to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose. " Such an independent adviser may inform the court on the technical nuances of the matter.

H.3. Further, under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves first, a prima facie case of infringement; second, that the balance of convenience tilts in plaintiff's favour; and, third, that if an injunction is not granted the plaintiff shall suffer irreparable damage. H.4. However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. First, in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. Second, especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that "irreparable damage" has been caused to the patent owner on account of infringement. Third, we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder. Fourth, we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator. Further, as Contreras (2015) observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.

i) What steps can be taken to make the practice of Cross-Licensing transparent so that royalty rates are fair & reasonable?

I.1. The Patents Act requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year. Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of "working". A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that "working" is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. Indeed, as the decision in Natco Pharma v. Bayer Corporation reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent "working" information in a timely manner.

I.2. However, there has been little compliance of this requirement by the patentees, despite the IPO reiterating the importance of compliance through the issuance of multiple public notices (suo motu and in response to a public interest litigation filed in 2011 ), and, reminding the patentees that non-compliance is punishable with a heavy fine. Findings of research submitted by one of the parties in the writ of the 2011 public interest litigationShamnad Basheer v. Union of India and others reveal as follows. First, a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. Second, a large number of filings in the telecom sector remain incomplete.

I.3. In 2015, CIS queried the IPO website for Form 27s of nearly 4,400 patents. CIS' preliminary research (ongoing and unpublished) echoes findings similar to the ones disclosed in the case discussed in paragraph I.2. of this submission (above).

I.4. In view of the submissions above, CIS makes the following recommendations to make the practice of cross-licensing transparent so that royalty rates are fair & reasonable: first, that there be a strict enforcement of the submission of Form 27s on a regular and timely basis by the patentees; and, second, that guidelines may be drawn up on whether it was discriminatory to charge no royalties (whether on the SSPPU or on the whole device) for a patent holder in a cross-licensing arrangement with another, when it charges royalty on the selling price of the device from a non-cross-licensor.

j) What steps can be taken to make the practice of Patent Pooling transparent so that royalty rates are fair & reasonable?

J.1. Patent pools can be understood as an agreement between two or more patent owners to license one or more of their patents to one another or to third parties. Thus, the creation of a patent pool makes use of the legal instrument of licensing, similar to the practice of cross-licensing. Insofar, we reiterate our recommendations made in paragraph I.3. of this submission (above), which apply to the answer to the instant question.

J.2. In furtherance of the recommendation above, we also propose the alteration of the Form 27 template to include more disclosures. Presently, patentees are required to to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.

J.3. It is also our submission that patent pools be required to offer FRAND licenses on the same terms to both members and non-members of the pool.

k) How should it be determined whether a patent declared as SEP is actually an Essential Patent, particularly when bouquets of patents are used in one device?

K.1. We submit that several studies on the essentiality of SEPs indicate that only a small percentage of SEPs are actually essential. A study conducted byGoodman and Myers (2004) showed that only 21% of SEPs pertaining to the 3G standard in the US were deemed to be actually essential. Another study conducted by the same authors in 2009 for WCDMA patents showed that 28% SEPs were essential.

K.2. In our opinion, first, the methodology adopted by Goodman and Myers could be replicated to determine the "essential" nature of an SEP. Second, while adopting their methodology, it would be useful to address some of the issues over which these studies were critiqued. Accordingly, we suggest that (a) laboratory tests may be conducted by an outside expert or by a commercial testing laboratory, and not at an in-house facility owned by either parties, so as to eliminate in the lab results; and, (b) expert opinions may be considered in order to determine essentiality.

l) Whether there is a need of setting up of an independent expert body to determine FRAND terms for SEPs and devising methodology for such purpose?

L.1. In our opinion, there is no need for an independent expert body to determine FRAND terms for SEPs and devising the methodology for such a purpose. The existing legal and regulatory framework is reasonably equipped to determine FRAND terms. A more detailed submission on the existing framework and suggested changes has been made in our answer to question 'a' of the discussion paper (above).

L.2. However, we observe that Indian courts, tribunals and the CCI are yet to endorse a methodology for making FRAND determinations. The judgments of the Delhi High Court do not provide a conclusive rationale or methodology for the imposition of royalty rates in the respective matters.

L.3. We submit that in the absence of definitive Indian jurisprudence for determination of FRAND terms, American jurisprudence provides certain guidance. Contreras (2015) informs us about the various case law American courts and regulators have developed and adhered to whilst making such determinations.The dominant analytical framework for determining "reasonable royalty" patent damages in the United States today was set out in 1970 by the District Court for the Southern District of New York in Georgia-Pacific Corp. v. U.S. Plywood Corp . While this may be used as a guiding framework, the question of methodology remains far from settled.

m) If certain Standards can be met without infringing any particular SEP, for instance by use of some alternative technology or because the patent is no longer in force, what should be the process to declassify such a SEP?

M.1. In our opinion, if a standard can be met without infringing a patent declared to be "essential" to it, then the patent is not actually "essential". In this instance, the methods suggested in response to question 'k' of the discussion paper (above) could be used to declassify the SEP.

M.2. We further submit that if a patent is no longer in force, that is, if it has expired, then it ceases to be patent, and therefore an SEP. The process to declassify such an SEP could be simply to declare it an expired patent.

M.3. In addition, if it is possible to implement a certain standard by using an alternative technology, then the SEP for such a standard is not actually an SEP. However, the scale of operations and that of mass manufacturing and compatibility requirements in devices and infrastructure mean that it is unlikely to have different methods of implementing the same standard.

M.4. In general, it is our submission that an Indian SSO could maintain a publicly accessible database of SEPs found to be invalid or non-essential in India.

7. We reiterate our gratitude to the DIPP for the opportunity to make these submissions. In addition to our comments above, we have shared some of our research on this issue, in the 'Annexures', below.

8. It would be our pleasure and privilege to discuss these comments with the DIPP; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.

On behalf of the Centre for Internet and Society, 22 April, 2016

Anubha Sinha - anubha@cis-india.org | Nehaa Chaudhari - nehaa@cis-india.org

Rohini Lakshané - rohini@cis-india.org

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ANNEXURES

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● Anubha Sinha, Fuelling the Affordable Smartphone Revolution in India, available at http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india (last accessed 22 April, 2016).

● Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf (last accessed 22 April, 2016).

● Nehaa Chaudhari, Pervasive Technologies:Patent Pools, available at http://cis-india.org/a2k/blogs/patent-pools (last accessed 22 April, 2016).

● Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, available at http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-indi a (last accessed 22 April, 2016).

● Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low Cost Access Devices through Compulsory Licences, available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed 22 April, 2016).

● Prof Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486 (last accessed 22 April, 2016).

● Rohini Lakshané, CIS, List of technical standards and IP types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 22 April, 2016).

● Rohini Lakshané, Open Letter to Prime Minister Modi, February 2015, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 April, 2016).

● Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies (last accessed 22 April, 2016).

● Rohini Lakshané, Joining the dots in India's big-ticket mobile phone patent litigation, May 2015, last updated October 2015, available at http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation (last accessed 22 April, 2016).

● Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, March 2015, last updated April 2016, available at http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india , (last accessed April 22, 2016).

● Rohini Lakshané, Patent landscaping in the Indian Mobile Device Marketplace, presented at the 4th Global Congress on Intellectual Property and Public Interest, December 2015, available at https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs (last accessed 22 April, 2016).

● Vikrant Narayan Vasudeva, Patent Valuation and Licence Fee Determination in the Context of Patent Pools, available at http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools (last accessed 22 April, 2016).

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This submission has been authored by (alphabetically) Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané, on behalf of the Centre for Internet and Society, India.

See The Centre for Internet and Society, available at http://cis-india.org (last accessed 22 April, 2016) for details of the organization, and, our work.

Make in India, available at http://www.makeinindia.com/home (last accessed 22 April, 2016).

Digital India, available at http://www.digitalindia.gov.in/ (last accessed 22 April, 2016).

See Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, available at http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india (last accessed 21 April, 2016) for further details on relevant provisions.

In the High Court of Delhi, W.P.(C) 464/2014 & CM Nos. 911/2014 & 915/2014, judgment delivered on 30 March, 2016. Hereafter referred to as the Ericsson-CCI judgment.

Id.

Under Articles 226 and 227 of the Constitution of India, and, under Article 32 of the Constitution of India, for the High Courts and the Supreme Court, respectively.

Agreement on Trade-Related Aspects of Intellectual Property Rights, available at https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm (last accessed 22 April, 2016).

KEI Staff, 2015 October 15 version: RCEP IP Chapter, available at http://keionline.org/node/2472 (last accessed 22 April, 2016).

BIS Act, 2016, available at http://www.bis.org.in/bs/bsindex.asp (last accessed 21 April, 2016).

TSDSI, Intellectual Property Rights Policy, available at http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf (last accessed 22 April, 2016).

Id at Clause 3.1.

Id at Clause 5.1.

Id at Clause 5.2.

Id at Clause 5.5.

Id at Clauses 7.1. and 7.2.

Id at Clause 7.2.1.a (iii).

Id at Clause 7.2.1.b(iii).

Id at Clause 7.3.

GISFI, Intellectual Property Rights Policy, available at http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm (last accessed 22 April, 2016).

Id at Clauses 6.2.1.a(iii) and 6.2.1.b(iii).

See W3C, Patent Policy, available at https://www.w3.org/Consortium/Patent-Policy-20040205/ (last accessed 22 April, 2016) for more details on their royalty-free licences.

See OMA, Use Agreement, available at http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/ (last accessed 22 April, 2016) for more details on their royalty-free licences.

See Rohini Lakshané, Open Letter to PM Modi, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 April, 2016) for further details of CIS' proposal.

Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 22 April, 2016).

Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. at 2015; See also, for e.g., RPX Corporation, Amendment No. 3 to Form S-l, 11 Apr. 2011, at 59, available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm (last accessed 22 April, 2016), quoting - "Based on our research, we believe there are more than 250,000 active patents relevant to today's smartphones…".; See further Steve Lohr, Apple- Samsung Case Shows Smartphone as Legal Magnet, New York Times, 25 Aug. 2012, available at http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html (last accessed 22 April, 2016).

Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486 (last accessed 22 April, 2016).

Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The Smartphone- Royalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf (last accessed 22 April, 2016).

Florian Mueller, Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html (last accessed 22 April, 2016).

Romit Guha and Anandita Singh Masinkotia, PM Modi's Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services (last accessed 22 April, 2016).

Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf (last accessed 22 April, 2016).

See part 10.2.2. of the Discussion Paper, at page 25.

J.Gregory Sidak, FRAND in India:The Delhi High Court's Emerging Jurisprudence on Royalties for Standard-Essential Patents, available at http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full (last accessed 22 April, 2016).

Appeal from the United States District Court for the Eastern District of Texas in No. 6:11-cv-00343-LED, decided on 03 December, 2015, available at. http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF (last accessed 22 April, 2016).

Id.

Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html (last accessed 21 April, 2016).

See Sanjana Govil, Putting a Lid on Royalty Outflows- How the RBI Can Help Reduce India's IP Costs, available at http://cis-india.org/a2k/blogs/lid-on-royalty-outflows (last accessed 21 April, 2016), for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.

Supra note 33.

Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses, available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed 21 April, 2016).

Supra note 26.

Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies (last accessed 22 April, 2016).

Id.

See the Ericsson-CCI case, supra note 6, for Intex's submissions as discussed by Justice Bakhru.

Id.

Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, available at http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india (last accessed 21 April, 2016).

See the Ericsson-CCI case, supra note 6, at paragraph 19.2.

Supra note 47.

See the Ericsson-CCI judgment, supra note 6, at paragraphs 88-105.

Section 19(4) of the Competition Act. See also Competition Commission of India v. Steel Authority of India and Another, (2010) 10 SCC 744.

Section 115 of the Patents Act, 1970.

Huawei Technologies Co. Ltd v. ZTE Corp. and ZTE Deutschland, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C-170/13.

Third Party United States Fed. Trade Commission's Statement on the Public Interest, In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-745 (Jun. 6, 2012).

Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens, 80 Antitrust Law Journal 39 (2015), available at http://ssrn.com/abstract=2374983 or http://dx.doi.org/10.2139/ssrn.2374983 (last accessed 22 April, 2016).

Section 146(2) of the Patents Act, 1970..

Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html (last accessed 22 April, 2016).

Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at http://www.ipab.tn.nic.in/045-2013.htm (last accessed 22 April, 2016).

Intellectual Property India, Public Notice, available at http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf (last accessed 22 April, 2016) and Intellectual Property India, Public Notice, available at http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf (last accessed 22 April, 2016).

Supra note 57.

Id.

See research findings available at http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf (last accessed 22 April, 2016).

In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, Patent Working in India: Delhi HC issues notice in Shamnad Basheer v. Union of India & Ors. - I, available at http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html (last accessed 22 April, 2016).

In response to an RTI request made to the IPO in Mumbai for forms unavailable on the website, CIS received a reply stating, "As thousand [sic] of Form -27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official staff/ manpower and it will affect day to day [sic] work of this office." This research is ongoing and unpublished. Please contact us for a copy of the RTI application and the response received.

WIPO Secretariat, Patent Pools and Antitrust - A Comparative Analysis, available at https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf (last accessed 22 April, 2016).

Form 27, The Patents Act, available at http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf (last accessed 22 April, 2016).

David J. Goodman and Robert A. Myers, 3G Cellular Standards and Patents, available at http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf (last accessed 22 April, 2016).

Darien CT, Review of Patents Declared as Essential to WCDMA through December, 2008, available at http://www.frlicense.com/wcdma1.pdf (last accessed 22 April, 2016).

Supra note 67.

Donald L. Martin and Carl De Meyer, Patent Counting, a Misleading Index of Patent Value: A Critique of Goodman & Myers and its Uses, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439 (last accessed 22 April, 2016).

Rohini Lakshané, Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation, available at http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation (last accessed 22 April, 2016). See also supra note 47 for more details.

Supra note 55.

318 F. Supp. 1116, 1120 (S.D.N.Y. 1970), modified and aff'd, 446 F. 2d 295 (2d Cir. 1971), cert. denied, 404 U.S. 870 (1971).

2015

They filed it in 2011

The 2011 filing only includes pharma, BTW: http://spicyip.com/docs/Form%2027s.pdf. Also, this writ is from May 2015: http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf Anyway, I'll leave it as it is.

For more details visit https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms

Comments on the Report of the Committee on Digital Payments (December 2016)

Sumandro Chattapadhyay and Amber Sinha — 2017-01-12T12:32:22Z

The Committee on Digital Payments constituted by the Ministry of Finance and chaired by Ratan P. Watal, Principal Advisor, NITI Aayog, submitted its report on the "Medium Term Recommendations to Strengthen Digital Payments Ecosystem" on December 09, 2016. The report was made public on December 27, and comments were sought from the general public. Here are the comments submitted by the Centre for Internet and Society.

1. Preliminary

1.1. This submission presents comments by the Centre for Internet and Society (“CIS”) [1] in response to the report of the Committee on Digital Payments, chaired by Mr. Ratan P. Watal, Principal Advisor, NITI Aayog, and constituted by the Ministry of Finance, Government of India (“the report”) [2].

2. The Centre for Internet and Society

2.1. The Centre for Internet and Society, CIS, is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, and open access), internet governance, telecommunication reform, digital privacy, and cyber-security.

2.2. CIS is not an expert organisation in the domain of banking in general and payments in particular. Our expertise is in matters of internet and communication governance, data privacy and security, and technology regulation. We deeply appreciate and are most inspired by the Ministry of Finance’s decision to invite entities from both the sectors of finance and information technology. This submission is consistent with CIS’ commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved, especially the citizens and the users. CIS is thankful to the Ministry of Finance for this opportunity to provide a general response on the report.

3. Comments

3.1. CIS observes that the decision by the Government of India to withdraw the legal tender character of the old high denomination banknotes (that is, Rs. 500 Rs. 1,000 notes), declared on November 08, 2016 [3], have generated unprecedented data about the user base and transaction patterns of digital payments systems in India, when pushed to its extreme use due to the circumstances. The majority of this data is available with the National Payments Corporation of India and the Reserve Bank of India. CIS requests the authorities concerned to consider opening up this data for analysis and discussion by public at large and experts in particular, before any specific policy and regulatory decisions are taken towards advancing digital payments proliferation in India. This is a crucial opportunity for the Ministry of Finance to embrace (open) data-driven regulation and policy-making.

3.2. While the report makes a reference to the European General Data Protection Directive, it does not make a reference to any substantive provisions in the Directive which may be relevant to digital payments. Aside from the recommendation that privacy protections around the purpose limitation principle be relaxed to ensure that payment service providers be allowed to process data to improve fraud monitoring and anti-money laundering services, the report is silent on significant privacy and data protection concerns posed by digital payments services. CIS strongly warns that the existing data protection and security regulations under Information Technology (Reasonable security practices and procedures and sensitive personal data or information), Rules are woefully inadequate in their scope and application to effectively deal with potential privacy concerns posed by digital payments applications and services. Some key privacy issues that must be addressed either under a comprehensive data protection legislation or a sector specific financial regulation are listed below. The process of obtaining consent must be specific, informed and unambiguous and through a clear affirmative action by the data subject based upon a genuine choice provided along with an option to opt out at any stage. The data subjects should have clear and easily enforceable right to access and correct their data. Further, data subjects should have the right to restrict the usage of their data in circumstances such as inaccuracy of data, unlawful purpose and data no longer required in order to fulfill the original purpose.

3.3. The initial recommendation of the report is to “[m]ake regulation of payments independent from the function of central banking” (page 22). This involves a fundamental transformation of the payment and settlement system in India and its regulation. We submit that a decision regarding transformation of such scale and implications is taken after a more comprehensive policy discussion, especially involving a wider range of stakeholders. The report itself notes that “[d]igital payments also have the potential of becoming a gateway to other financial services such as credit facilities for small businesses and low-income households” (page 32). Thus, a clear functional, and hence regulatory, separation between the (digital) payments industry and the lending/borrowing industry may be either effective or desirable. Global experience tells us that digital transactions data, along with other alternative data, are fast becoming the basis of provision of financial and other services, by both banking and non-banking (payments) companies. We appeal to the Ministry of Finance to adopt a comprehensive and concerted approach to regulating, enabling competition, and upholding consumers’ rights in the banking sector at large.

3.4. The report recognises “banking as an activity is separate from payments, which is more of a technology business” (page 154). Contemporary banking and payment businesses are both are primarily technology businesses where information technology particularly is deployed intimately to extract, process, and drive asset management decisions using financial transaction data. Further, with payment businesses (such as, pre-paid instruments) offering return on deposited money via other means (such as, cashbacks), and potentially competing and/or collaborating with established banks to use financial transaction data to drive lending decisions, including but not limited to micro-loans, it appears unproductive to create a separation between banking as an activity and payments as an activity merely in terms of the respective technology intensity of these sectors. CIS firmly recommends that regulation of these financial services and activities be undertaken in a technology-agnostic manner, and similar regulatory regimes be deployed on those entities offering similar services irrespective of their technology intensity or choice.

3.5. The report highlights two major shortcomings of the current regulatory regime for payments. Firstly “the law does not impose any obligation on the regulator to promote competition and innovation in the payments market” (page 153). It appears to us that the regulator’s role should not be to promote market expansion and innovation but to ensure and oversee competition. We believe that the current regulator should focus on regulating the existing market, and the work of the expansion of the digital payments market in particular and the digital financial services market in general be carried out by another government agency, as it creates conflict of interest for the regulator otherwise. Secondly, the report mentions that Payment and Settlement Systems Act does not “focus the regulatory attention on the need for consumer protection in digital payments” and then it notes that a “provision was inserted to protect funds collected from customers” in 2015 (page 153). This indicates that the regulator already has the responsibility to ensure consumer protection in digital payments. The purview and modalities of how this function of course needs discussion and changes with the growth in digital payments.

3.6. The report identifies the high cost of cash as a key reason for the government’s policy push towards digital payments. Further, it mentions that a “sample survey conducted in 2014 across urban and rural neighbourhoods in Delhi and Meerut, shows that despite being keenly aware of the costs associated with transacting in cash, most consumers see three main benefits of cash, viz. freedom of negotiations, faster settlements, and ensuring exact payments” (page 30). It further notes that “[d]igital payments have significant dependencies upon power and telecommunications infrastructure. Therefore, the roll out of robust and user friendly digital payments solutions to unelectrified areas/areas without telecommunications network coverage, remains a challenge.” CIS much appreciates the discussion of the barriers to universal adoption and rollout of digital payments in the report, and appeals to the Ministry of Finance to undertake a more comprehensive study of the key investments required by the Government of India to ensure that digital payments become ubiquitously viable as well as satisfy the demands of a vast range of consumers that India has. The estimates about investment required to create a robust digital payment infrastructure, cited in the report, provide a great basis for undertaking studies such as these.

3.7. CIS is very encouraged to see the report highlighting that “[w]ith the rising number of users of digital payment services, it is absolutely necessary to develop consumer confidence on digital payments. Therefore, it is essential to have legislative safeguards to protect such consumers in-built into the primary law.” We second this recommendation and would like to add further that financial transaction data is governed under a common data protection and privacy regime, without making any differences between data collected by banking and non-banking entities.

3.8. We are, however, very discouraged to see the overtly incorrect use of the word “Open Access” in this report in the context of a payment system disallowing service when the client wants to transact money with a specific entity [4]. This is not an uncommon anti-competitive measure adopted by various platform players and services providers so as to disallow users from using competing products (such as, not allowing competing apps in the app store controlled by one software company). The term “Open Access” is not only the appropriate word to describe the negation of such anti-competitive behaviour, its usage in this context undermines its accepted meaning and creates confusion regarding the recommendation being proposed by the report. The closest analogy to the recommendation of the report would perhaps be with the principle of “network neutrality” that stands for the network provider not discriminating between data packets being processed by them, either in terms of price or speed.

3.9. A major recommendation by the report involves creation of “a fund from savings generated from cash-less transactions … by the Central Government,” which will use “the trinity of JAM (Jan Dhan, Adhaar, Mobile) [to] link financial inclusion with social protection, contributing to improved Social and Financial Security and Inclusion of vulnerable groups/ communities” (page 160-161). This amounts to making Aadhaar a mandatory ID for financial inclusion of citizens, especially the marginal and vulnerable ones, and is in direct contradiction to the government’s statements regarding the optional nature of the Aadhaar ID, as well as the orders by the Supreme Court on this topic.

3.10. The report recommends that “Aadhaar should be made the primary identification for KYC with the option of using other IDs for people who have not yet obtained Aadhaar” (page 163) and further that “Aadhaar eKYC and eSign should be a replacement for paper based, costly, and shared central KYC registries” (page 162). Not only these measures would imply making Aadhaar a mandatory ID for undertaking any legal activity in the country, they assume that the UIDAI has verified and audited the personal documents submitted by Aadhaar number holders during enrollment. A mandate for replacement of the paper-based central KYC agencies will only remove a much needed redundancy in the the identity verification infrastructure of the government.

3.11. The report suggests that “[t]ransactions which are permitted in cash without KYC should also be permitted on prepaid wallets without KYC” (page 164-165). This seems to negate the reality that physical verification of a person remains one of the most authoritative identity verification process for a natural person, apart from DNA testing perhaps. Thus, establishing full equivalency of procedure between a presence-less transaction and one involving a physically present person making the payment will only amount to removal of relatively greater security precautions for the former, and will lead to possibilities of fraud.

3.12. In continuation with the previous point, the report recommends promotion of “Aadhaar based KYC where PAN has not been obtained” and making of “quoting Aadhaar compulsory in income tax return for natural persons” (page 163). Both these measures imply a replacement of the PAN by Aadhaar in the long term, and a sharp reduction in growth of new PAN holders in the short term. We appeal for this recommendation to be reconsidered as integration of all functionally separate national critical information infrastructures (such as PAN and Aadhaar) into a single unified and centralised system (such as Aadhaar) engenders massive national and personal security threats.

3.13. The report suggest the establishment of “a ranking and reward framework” to recognise and encourage for the best performing state/district/agency in the proliferation of digital payments. It appears to us that creation of such a framework will only lead to making of an environment of competition among these entities concerned, which apart from its benefits may also have its costs. For example, the incentivisation of quick rollout of digital payment avenues by state government and various government agencies may lead to implementation without sufficient planning, coordination with stakeholders, and precautions regarding data security and privacy. The provision of central support for digital payments should be carried out in an environment of cooperation and not competition.

3.14. CIS welcomes the recommendation by the report to generate greater awareness about cost of cash, including by ensuring that “large merchants including government agencies should account and disclose the cost of cash collection and cash payments incurred by them periodically” (page 164). It, however, is not clear to whom such periodic disclosures should be made. We would like to add here that the awareness building must simultaneously focus on making public how different entities shoulder these costs. Further, for reasons of comparison and evidence-driven policy making, it is necessary that data for equivalent variables are also made open for digital payments - the total and disaggregate cost, and what proportion of these costs are shouldered by which entities.

3.15. The report acknowledges that “[t]oday, most merchants do not accept digital payments” and it goes on to recommend “that the Government should seize the initiative and require all government agencies and merchants where contracts are awarded by the government to provide at-least one suitable digital payment option to its consumers and vendors” (page 165). This requirement for offering digital payment option will only introduce an additional economic barrier for merchants bidding for government contracts. We appeal to the Ministry of Finance to reconsider this approach of raising the costs of non-digital payments to incentivise proliferation of digital payments, and instead lower the existing economic and other barriers to digital payments that keep the merchants away. The adoption of digital payments must not lead to increasing costs for merchants and end-users, but must decrease the same instead.

3.16. As the report was submitted on December 09, 2016, and was made public only on December 27, 2016, it would have been much appreciated if at least a month-long window was provided to study and comment on the report, instead of fifteen days. This is especially crucial as the recently implemented demonetisation and the subsequent banking and fiscal policy decisions taken by the government have rapidly transformed the state and dynamics of the payments system landscape in India in general, and digital payments in particular.

Endnotes

[1] See: http://cis-india.org/.

[2] See: http://finmin.nic.in/reports/Note-watal-report.pdf and http://finmin.nic.in/reports/watal_report271216.pdf.

[3] See: http://finmin.nic.in/cancellation_high_denomination_notes.pdf.

[4] Open Access refers to “free and unrestricted online availability” of scientific and non-scientific literature. See: http://www.budapestopenaccessinitiative.org/read.

For more details visit https://cis-india.org/internet-governance/blog/comments-on-the-report-of-the-committee-on-digital-payments-dec-2016

Comments and Suggestions to the Draft Patent Manual March 2019

Achal Prabhala, Feroz Ali, Ramya Sheshadri, Roshan John and Anubha Sinha — 2019-04-05T02:15:07Z

A coordinated civil society response to the consultation on the Patent Manual. CIS provided comments on patenting of computer related inventions.

On behalf of the accessibsa project (www.accessibsa.org), the Médecins Sans Frontières Access Campaign (https://msfaccess.org/) and the Centre for Internet and Society (www.cis-india.org) , as well as numerous endorsing organisations and individuals across Indian Civil Society, we are pleased to present our comments, feedback and suggestions on the draft Manual of Patent Office Practice and Procedure, Version 3, published on 1 March 2019, to which your office invited comment from all stakeholders.

The Indian Patent Office (IPO) on 1 March 2019, published a draft of the “Manual of Patent Office Practice and Procedure, Version 3.0” (hereafter, the “Manual”). This draft extends upon the previous Manual, Version 01.11, dated 22 March 2011, which is currently the Manual in force.

At the outset, we should note that the current draft Manual does not differ substantially from the version in force. Aside from a few updations (for instance, noting the Indian Supreme Court decision in the Novartis case of 2013, as regarding Section 3(d) of Indian patent law), the current Manual under consideration is similar in most aspects to the Manual in force. However, given that several provisions in the current Manual in force were insufficient to implement Indian patent law as it was intended even in 2011, as well as the fact that there have been numerous developments in law, scholarship and practice since the time the Manual was last updated in 2011, we urge the IPO to take this opportunity to reflect upon the developments in patent law and practice, as well as the extensive scholarship now available to us.

Preamble: Indian patent law was substantially amended in 2005, and we began the process of implementing this law a few years later. Today, in 2019, we have data and evidence from almost 14 years of practice, and we suggest that the IPO fully incorporate all learnings available to us, to bring the full force of Indian patent

law into effect, as originally intended. The Manual of the Patent Office has the potential to be a comprehensive handbook on implementing patent law for all stakeholders including patent agents, applicants and the courts. The current version, in the manner proposed, is not. Our suggestions, if adopted in entirety, would make this so: furthermore, our suggestions provide a much-needed opportunity to correct course, by understanding and correcting the failures of the system to implement the original and far-sighted provisions in the Indian patent law amendment of 2005.

Overarching themes: Several of our suggestions for the current Manual under consideration are systemic, and, as such, require broad and serious attention to completely overhaul.

Structure: The Manual under consideration is badly composed and incomplete. Tabular columns are an inappropriate format for a patent manual. Furthermore and separately, the IPO makes use of several instances of “Guidelines” when examining patents. The IPO currently consults, among others, Guidelines for pharmaceuticals, biotechnology and computer related inventions. These guidelines are randomly categorized, badly deployed, hard to locate and amended haphazardly, without notice or any attention. There is no excuse for the IPO Guidelines to not form a part of the Patent Office Manual, thus giving them stability, and subjecting them to a transparent and participative process, like the rest of the Manual. Lastly, the Guidelines should evolve to covering the examination of Biologics as a distinct category, as we should with other frontier technology, such as Artificial Intelligence and Synthetic Biology.

Coherence: We have three inter-locking layers in the patent system in India: the patents act, the patent rules and the patent manual (which should incorporate the patent examination guidelines). The IPO is currently soliciting suggestions for the draft Patent Office Manual, while it has an ongoing amendment to the Patents (Amendment) Rules, 2018. We expect the final Rules to be published shortly; however, we are also being asked to provide suggestions on the Manual, without any knowledge of what the IPO’s final version of the Rules will look like. (For instance, the Patent Rules have suggested a procedural change in how pre-grant patent oppositions will be conducted in India; however, since the Rules are not final, it is unclear how they integrate with the Manual, and how we can comment on the process, since the status of the Patent Rules remains unclear). Furthermore, the Manual makes no reference to the Rules. As such, the IPO should decide and publish a final version of the Rules, and only then solicit feedback on the Manual (which it could do in the current time by extending the date of feedback on the Manual). Regardless, the IPO must achieve coherence and cohesion between its many layers, including the patents act, the patent rules, and the patent manual. This coherence, if achieved, would allow the Manual to serve as a handbook for all stakeholders involved in the patent system, including serving as a basis for open-book exams for patent agents.

Updation: Patent law and practice are fast evolving fields. The IPO necessarily needs to keep up with the pace of technology, as well as evolving interpretations of existing patent law provisions. For instance, the Indian Supreme judgment in the Novartis case was announced in 2013; however, it has taken over 6 years for this important judgment to formally reflect in the work of the Patent Office Manual, despite being Indian law for these 6 years. The IPO, therefore, needs to update the Manual and the examination guidelines, frequently – at least as frequently as major events in technology and the law require.

Transparency & Accountability: In the current time, stakeholders in the Indian patent system, be they multinational corporations or ordinary members of Indian society, are faced with considerable challenges when attempting to view patent information. Despite the IPO having made information

available online for some years, the information on Indian patents is needlessly limited, often inaccurate, often incomplete, and frequently unavailable. On occasion, this is due to insufficient disclosure on the part of the applicant, but overwhelmingly, it is because the IPO is not well organized and insufficiently invested in transparency or accountability. For instance, mandating pharmaceutical patent applicants to provide an INN (International non-proprietary name) on all applications where the information is available, would invaluably assist in extending the transparency and utility of the IPO’s functioning with the Indian public. Patent information in India is the right of every Indian citizen to have, and we have made several suggestions by which the IPO can move towards complying with our constitutional right to information.

Specific themes: Drawing from law, scholarship and practice over the last 14 years of Indian patent law, we strongly urge the IPO to consider these very specific suggestions on having their work comply with the spirit and letter of Indian patent law.

Focus on Biologics: Biologics are a relatively new category of therapy that have quickly become the world’s most expensive medicines emerging as critical therapies in areas like cancer. 7 out of 10 of the world’s best-selling medicines are biologics, and they will play only an increasingly important part in public health in India. Therefore, identifying, understanding and examining patent applications on biologics is of crucial importance to Indian citizens. The IPO would benefit from identifying biologics as a critical category; providing them their distinct field of invention; as well as developing guidelines and practices for evaluating biologics, along with other frontier technology that emerges.

Expedited examination: Since 2016, expedited examination of patents has been the law. More recently, there are reports that the IPO is considering PPH partnerships with some rich country economies such as Japan. This is unwise, especially since even in the extended examination currently underway, the IPO has faced several challenges. We strongly suggest that the IPO needs to evidence the ability to manage the ordinary processes in place with accuracy and compliance with Indian law, before attempting to expedite the said processes, especially since the non-functioning of the patents side of the Intellectual Property Appellate Board (IPAB) has meant that India has not had a corrective mechanism for any incorrect grants that may have been made at the IPO since May 2016.

Check exceptions to patentability first: The law, as has evolved in the Novartis Case in the Supreme Court, and the Roche vs Cipla case before the Delhi High Court, clearly points towards applying all exceptions to patentability under Sections 3 & 4 of the Indian Patents Act, first, before applying the test of patentability under Section 2 (1)(j). Such a procedure would make the work of the IPO more efficient, as well as fair.

Making anti-evergreening provisions work: The Manual currently does not capture the guidelines explicitly laid out in the Indian Supreme Court’s judgment in the Novartis case. Specific principles relating to how to apply Section 3(d) were laid out in the judgment which have no reflection in the Manual. Like with Section 3(d), applicants also routinely circumvent other anti-evergreening provisions in Indian law, such as Section 3(e) and 3(i). Sometimes, these provisions are circumvented alone; other times, when combined, applicants take advantage of the confusion and adduce evidence on one ground, and then use that as a basis to circumvent the other grounds. To apply anti-evergreening provisions in Indian patent law efficiently and fairly, we suggest an anti-

evergreening checklist that will facilitate this process, and which we recommend be an official part of the examiner’s report, both within the process and as a reported output.

Computer related inventions: The Manual currently does not adequately regulate Computer Related Inventions (CRIs). We suggest the introduction of a 3-step test to comprehensively regulate the patentability of mathematical methods, business methods, computer programmes and algorithms as laid down in the Indian Patents Act. Furthermore, we suggest ways in which the law can be applied more carefully within the Manual to detect camouflaging of claims, with an intent to confuse the IPO and Indian patent examiners, especially when conjoined to computer technology, by noting that (1) mathematical methods may sometimes be claimed as “technological development”, (2) that business methods must be evaluated as such, regardless of their application through computers, computer programmes, computer networks or other programmable apparatus, and that (3) that the scope of algorithms needs to be extended to any invention where the function claimed to be performed can only be carried out by means of a computer programme.

Finally, while the nature of our comments and suggestions are deep and extensive, we are aware that we have also asked for the system to be evaluated in full, rather than in parts. As such, the Indian Patent ecosystem is large and complex, and the IPO has been engaged with setting the Patent Rules (under finalization), the Patent Office Manual (the subject of our commentary in this communication) as well as the Examining Guidelines (which we recommend move from being arbitrarily categorized and extended to becoming a formal part of the Patent Office Manual).

In order to comprehensively react to changes to the Indian Patent ecosystem, we require the opportunity to comment comprehensively on a range of inter-linked proposals.

In this spirit, we hope you will allow us – as civil society – to react, once more, to the Patent Rules (as connected to the Patent Office Manual) as well as each of the Examining Guidelines (old and new, i.e. including those intended such as for biologics), in the interests of fairness and transparency. We look forward to assisting you at every step of this process.

Thank you for your time. We trust that, as civil society researchers, activists and academics, who have devoted a considerable number of years towards the research of intellectual property, and the protection of public interests and human rights in India, our submission will be considered seriously and acted upon. We remain, of course, at your disposal, should you or your office have any questions – which we will gladly answer.

Sincerely,

Achal Prabhala, Feroz Ali, Ramya Sheshadri, Roshan John and Anubha Sinha

For more details visit https://cis-india.org/a2k/blogs/comments-and-suggestions-to-the-draft-patent-manual-march-2019

Comments and Feedback on the Draft Twelfth Five Year Plan with respect to Persons with Disabilities

Rahul Cherian — 2012-12-28T15:33:02Z

The Centre for Internet & Society was one of the ten organizations representing people with disabilities that sent comments and feedback on the draft twelfth five year plan.

We write to you on behalf of the organizations representing people with disabilities listed at the end of this document. At the outset, we would like to thank you for circulating the Draft Twelfth Five Year Plan with respect to persons with disabilities in advance in order to gain the feedback and the perspective of all interested parties and stakeholders, including persons with disabilities. However, we would like to bring to your attention that while the entire budgetary allocation has been given to us in this draft, the specifics of the allocation i.e. the detailed break up has not been given, and so any input that we may have may be insufficient in the absence of this information.

The World Health Organization estimates that globally about 1 billion people (or 14% of the population) live with some form of disability of who nearly 200 million experience considerable difficulties in functioning.[1] Given the large prevalence of disability of approximately 14% of the population, it is submitted that the statistics of the 2001 census which states that only 2.11 % of the population is disabled is wholly inaccurate. If the financial outlay is based on the flawed assumption that only 2.11% of the population is disabled, we fear that the financial outlay will be substantially less than is necessary to meet the actual needs of people with disabilities. Therefore we recommend that the Twelfth V Year Plan should be based on realistic numbers of the persons with disabilities in the country. It is recommended that at least 5% of the total outlay for the Twelfth Plan should be for disability related projects. It is also recommended that a reality check is done on the benefits available to persons with disabilities such as pensions. Unless this is done, the benefits available to persons with disabilities is wholly inadequate.

We would like to point out that the document you had circulated does not give the status of the implementation of the various schemes that were proposed under the Eleventh V Year. Without the status of implementation of schemes proposed earlier, we are concerned that merely reiterating the same schemes for the upcoming Plan period may lead to suboptimal usage of the allocated funds particularly with respect to those schemes that have not been implemented to the maximum extent possible. We therefore request you to include the status of implementation of the various schemes that were proposed in the earlier Plan period to enable transparency in this exercise.

Before we give specific input and comments on the financial outlay, we would like to point out our grievance in the wording of Sec. 24.218[2] of the draft which states that persons with disabilities have "un-evolved capacities" and we strongly believe that this approach that persons with disabilities will completely obscure the optimistic approaches sought to be achieved by this Plan. While it is appreciated that persons with disabilities need some protection, using terminology like "unevolved capacity" is just reaffirming a protectionist attitude as well as patronizing one. We hope that this terminology will be removed from the document. We also point out that in point number 24.227 the United Nations Convention on the Rights of Persons with Disabilities is wrongly mentioned as "United Nations Conference on Rehabilitation of Persons with Disabilities (UNCRPD)". This error must be rectified.

Be that as it may, the undersigned would like to place on record our appreciation for the inclusion of many aspects into the above mentioned document. We would also like to bring your attention to several aspects given below which we believe should be covered in the Twelfth V Year Plan (hereinafter referred to as "the Plan").

Specific Input

I. Detection of Disability
Early detection of disabilities in babies and children is critical to determine what types of early intervention and rehabilitation is required to be provided. The Plan must provide financial outlay for the following with respect to detection of disabilities for further action:

At birth screening - Every baby born should be examined in detail using a standard examination checklist, to detect anomalies. The checklist should focus on detecting anomalies so that further follow up on developmental delay could be identified for at risk cases which could further lead to interventions. At birth screening must be made mandatory and the mother and child should not be discharged from hospitals without completing this procedure. Special attention must be taken to screen high risk babies (such as babies born to mothers who have diabetes, high blood pressure, thyroid deficiency, pre-term babies, babies with history of perinatal hypoxia, neonatal infections, low birth weight babies, etc.). The screening should be done free of cost and appropriate allocation should be done for the training of medical professionals and soliciting of equipment for this purpose.
Additional Screening In addition, screening by health workers, medical officers and doctors are required at stages like vaccinations, routine check ups, etc. The Plan must include allocation for training programs to be formulated and appropriate training must be given to all health care workers on how to diagnose disabilities and how to determine developmental milestones. Allocation of funds must be made to train doctors at maternity clinics/hospitals on conducting adequate checks/tests for early detection of developmental delays and disabilities If any disability is suspected, the child must be referred to the medical officer. There must be recognition of the fact that failure to detect disabilities at the early stage may lead to secondary disabilities.
Universal screening camps - The Plan itself must provide financial outlay to enable each state to organize bi annual universal screening camps for all school going children in the state to detect disabilities. The screening must be conducted for all disabilities. These camps must include the necessary manpower /specialists (including audiologist /speech therapist, clinical child psychologist, physiotherapist, etc.) and equipment required to detect all types of disabilities in babies. Appropriate budgetary allocations need to be in place. Universal screening camps must be held in conjunction with setting up of early intervention centres failing which the children identified to have disabilities will tend to face social stigma.
Registration of Births of Children with Disabilities: In accordance with the Persons with Disabilities Act, the Registrar General appointed under section 3 of the Births and Deaths Registration Act, 1969 shall whilst carrying out the superintendence duties of registering births and deaths in the country ensure, including by issuing general directions to all Chief Registrars and other concerned officials, that the registration of births and deaths of all children with disabilities is undertaken in accordance with the procedure specified in the Births and Deaths Registration Act of 1969.

II. Early Intervention
Early intervention has been touched upon in the policy document. However, there is not enough emphasis on this area. The importance of early intervention is well established. Early intervention provides support for infants and young children with disabilities, their families and communities, in order to promote the child's development and inclusion. Without early intervention it is extremely difficult for children with disabilities to be integrated into mainstream society. Delay in diagnosis and treatment results in irreversible damage to the child's development. Early intervention could be in the form of medical intervention and/or variety of disability specific rehabilitation intervention like different therapies and specialized training (specialized training or therapy). Early intervention would also include:

Counseling and training of parents of children with disability.
Early stimulation for High risk babies
Early Intervention for Developmental Delay, Speech & Hearing Problems, Visual Problems, Autism Intervention etc.
Parental guidance for supporting activities of daily living.

It is critical that early intervention centres are set up in each district in the country. The State of Kerala has created a blue print for setting up early intervention centres in each district in the State. This document is attached separately for your information. The Plan should incorporate salient features from this document. Point 24.226 must be modified accordingly.

III. Education
While the Plan places emphasis on education in point 24.222 a most critical aspect has been left out. Training of teachers to impart education to children with disabilities in an inclusive school setup is extremely critical if such children are to get a meaningful education. In this connection the Plan should provide financial outlay for ensuring that both mainstream teachers and teachers in special schools are provided the necessary training for imparting education to children with disabilities. The salary of all such teachers should be on par with regular teachers. The Plan should also provide for refresher training to be imparted to teachers in this connection. In addition to the above, the Plan should provide adequate financial outlay to ensure that all educational materials are provided to children with disabilities in the accessible formats they require including in Braille, Daisy, etc. It is also critical to ensure that schools are made accessible such that children with disabilities have equal access to 4 all parts of the school. Moreover, it is imperative that adequate accessible transportation is provided to enable children with disabilities to reach the school. In this connection, point 24.245 is adequately modified. The Plan should also ensure that children with disabilities have access to schools at every taluk.

In point 24.222 there is a mention of setting up a national accessible library. This is an extremely encouraging move. However, the national accessible library is not mentioned in the responsibilities of any of the Ministry. We recommend that the national accessible library is included in the responsibilities of the Ministry of Social Justice and Empowerment. The Plan makes no mention of the HEPSN scheme and capacity building in colleges and universities. This should be addressed explicitly. In addition, the Plan makes no mention of the role of the UGC. Given the fact that the UGC is responsible for higher education in India, it needs to promote inclusive higher education through adequate capacity building through incentivizing the setting up of resource centers and accessible content creation. It could also interface with organizations like the National Assessment Accreditation Council (NAAC) that is responsible for accrediting colleges and universities to ensure that the provision of certain minimum standards / disabled student registration be made compulsory to receive accreditation and consequent larger share of UGC grants. Financial support for college / university professors (human / technological) needs to be specifically mentioned and augmented over the Xlth plan outlays. Several existing plans including the ADIP Scheme and the IEDC Scheme need to be brought in line with practical realities and the amounts payable under such Scheme should be significantly enhanced.

IV. Employment
Point 24.221 rightly highlights reservation as being critical. However, the Plan does not tackle the issue of the huge backlog in this area that has crept in over the year. The Plan must deal with this issue on a priority basis. The Plan should also provide for bridge training to be provided to persons with disabilities to enable them to be equipped to perform their respective roles after they are recruited to mainstream jobs. In this connection it is critical that all government offices must be made accessible (both in terms of physical accessibility and also in terms of accessibility of the electronic infrastructure) failing which disabled employees will not be able work from these offices. Point 24.225 should be therefore adequately modified to reflect this. The Plan should provide for setting up of career guidance cells in every district for persons with disabilities. The Plan should provide financial outlay to ensure that they necessary assistive aids such as computer screen reading software is made available at government offices free of cost for employees with visual impairment. Lastly the Plan should also provide financial outlay to ensure that accessible transport is provided to persons with disabilities to travel to and from the work place. In the alternative the Plan should provide for additional payments to be made to ensure that persons with disabilities can make their own arrangements to take the mode of transport they are most comfortable in to come and go from their workplace.

V. Accessibility
Access to the physical environment as well as to information, technology and communication is an essential requirement for integration of persons with disability into mainstream society. It is critical to recognize that the lack of provision of accessibility is the same as discrimination against persons with disabilities. The provision of accessibility both by the Government and by the private sector is therefore critical and the Plan must make an effective strategy to ensure that both these stakeholders provide the necessary accessibility to persons with disabilities.

While accessibility is tackled in a general manner in point 24.225, this has not been adequately tackled in the responsibilities of the Ministries in the subsequent pages of the document. The responsibilities of each of the Ministries with respect to accessibility must be explicitly specified in the document. While the Ministry of Communication and Information Technology has been allotted some responsibilities, this does not cover access to content, access to telecommunication services or access to broadcasting. For further information on access to content, telecommunication services and broadcasting see Annexure A. In addition, point 24.225 mentions that only important government buildings must be made accessible. This approach is fraught with danger and the Plan must provide for all government buildings and buildings accessible to the public in general must be made accessible. The Government must also formulate a set of standards for accessibility.

We would also like to point out that the recommendation under the obligations of the Ministry of Railways to provide one coach for persons with disabilities is blatant discrimination and is "ghettoisation" of persons with disabilities. It is submitted that this is the same as asking any other minority community to use only a particular coach on the train and is in violation of Article 14, Article 15 and Article 21 of the Constitution. This provision will prevent persons with disabilities from having equal access to the air conditioned coaches, first class coaches and will also prevent persons with disabilities from travel on an equal basis with others. The Ministry of Railways should instead be mandated to ensure that every coach is made accessible for persons with disabilities. In addition, the Plan requires the Ministry of Railways only to make multilevel and multiple platform railways stations to be made accessible. This is blatantly discriminatory to rural India. We therefore recommend that all railway stations are made accessible, including toilets, rest rooms etc.

VI. Independent Living
In point 24.226, the Plan does touch upon the subject of Independent Living. However, there needs to be detailed specifications on the manner in which Independent Living for persons with disabilities are provided. The setting up of Independent Living Centres is extremely crucial in light of Article 19 of the United Nations Convention on the Rights of Persons with Disabilities. While this is not something which can be achieved overnight, the Government can begin by commissioning the setting up of one independent living centres or townships in each State over the next 5 years, which are fully accessible, and thus creating a model which can be replicated easily in the years to come. This would include independent living for persons with physical disability as well as psychosocial disabilities.

It has come to our attention that there has been a report filed by a committee under the Chairmanship of Additional Secretary, Department of Rural Development, Ministry of Rural Development, to make recommendations on the criteria for grant of benefits under the Indira Gandhi National Disability Pension Scheme. While the Scheme already includes "severe" and "multiple" disabilities, the Committee has also recommended the specific inclusion of autism and cerebral palsy. While the committee report itself is not available, this information is available in the press note . Choosing specific categories should not be encouraged whereas disability should be acknowledged based on the definition for persons with disabilities as provided by UNCRPD.

A crucial aspect to a real development of an individual with disability is not just pension but the support and assistance that he or she requires to live independently by effectively functioning and contributing in the family and community. In this respect, there is a huge requirement for personal assistants for persons with severe and profound disabilities. The National Social Assistance program should look at allocating funds to be disbursed for the payment of personal assistants for persons with disabilities rather than mere pension.

VII. Identity Cards and BPL Cards
We urge that the Plan takes all steps to ensure that identity cards are made available to all persons with disabilities in the country to ensure that they can easily access all the benefits available to them. These cards should be recognized throughout the country and accepted by all departments and authorities. We also urge that the Plan redoubles it efforts to ensure that BPL Cards are given to the applicable persons with disabilities.

Conclusion

In conclusion, we appreciate the initiative of the Government to double the financial outlay for persons with disabilities in the Twelfth V Year Plan to Rs. 32684 crores. However, there are significant areas that must be tackled as mentioned above if there has to be meaningful progress of persons with disabilities. We humbly request the Government to consider the points given above when finalizing the Plan.

We are happy to provide you any additional information in this connection.

Thank you and best regards,
Prepared by

Inclusive Planet Centre for Disability Law and Policy
Rahul Cherian and Amba Salelkar

With Input From:

Centre for Internet and Society
Nirmita Narasimhan
nirmita@cis-india.org
Xavier's Resource Center for the Visually Challenged
Sam Taraporevala
sam@xrcvc.org
Daisy Forum of India
Dipendra Manocha
dipendra.manocha@gmail.com
Andhjan Kalyan Trust
Praful Vyas
aktrust.drj@gmail.com
Parivaar
J.P. Gadkari
jpgadkari@gmail.com
Ummeed Child Development Centre
vibha.krishnamurthy@ummeed.org
National Centre for Autism, India
Merry Barua
actionforautism@gmail.com
Network of Persons with disAbility Organisations
Srinivasulu
npdoap@gmail.com
Disabilities Legislative Unit, South
dlu.south@gmail.com
National Platform for the Rights of the Disabled
A. Muralidharan
nprd.in@gmail.com

[1]. http://whqlibdoc.who.int/publications/2011/9789240685215jeng.pdf
[2]. Protection acknowledging that Persons with Disabilities have 'un-evolved' capacities as a consequence of their disabilities and thereby have rights to protection; on the part of parents, community and the State from abuse and from participation in activities likely to cause them harm.

ANNEXURE A - Access to Content, Telecommunication Services and Broadcasting

Access to Content

Objective
All published content, whether printed or electronic, must be made available in accessible formats at the same time as it is first published and with no extra cost or hardship to persons with disabilities.

Strategy/ activities

Books for education- both at the school and university levels, must be made available in accessible electronic formats. This could be a target to be achieved in five years. CBSE and state board syllabi in all languages may be made available in accessible electronic formats.
Funds may be outlayed towards digitizing public libraries.
Government may frame schemes for funding disability organizations which are engaged in converting books into accessible formats, as is done in other countries like USA.
All the public libraries should have the facility to provide books in accessible formats to its disabled readership.
Government may promote open access and open education resources amongst educational, scientific and research organizations and libraries and stress the need for accessibility.
All government information must be available in accessible formats which can be accessed on multiple platforms like computers or mobile phones, including information provided through RTIs, etc.
All archives containing digital copies of books must be able to provide a requested book in an accessible format, even where they have been unable to completely digitize their archives in an accessible manner. However, the long term target must be to have all archives completely accessible.

Access to Telecommunication Services

Objective:
To ensure that every person with a disability has access to basic telephone and broadband services both in rural as well as urban areas.

Strategy/ Activities:

Public Kiosks and Common Service Centres set up by the Government must have at least one machine which is fitted with assistive technology for every ward.
Each school and college with an ICT centre must have at least one computer befitted with assistive technology and should be manned by a trained instructor who can guide students in using them.
Research and development must be funded in open source and cloud based solutions like screen readers and operating systems which will facilitate universal access at no cost to user. These research projects must necessarily have persons with disabilities to advise on the efficacy and design of the product.
Assistive technologies for computers and mobile phones must be developed in local languages and be made available at low cost.
Schemes may be launched to provide funds to persons with disabilities to purchase assistive technologies for their computers or handsets.
Each household with a person with disability must have a broadband connection and telephone connection.
At least 1 public pay phone in each area must be accessible with texting facility.
A national toll free emergency number must be set up like Reach 112 in Europe.
TRAI must include persons with disabilities in its periodic survey to gauge their access to telecommunication services. Similarly the DoT and DIT must make available data on ICT access for persons with disabilities.
A Code of Good practice should be evolved for servicing disabled customers which contains both minimum as well as best practices to be adhered to by service providers.

Service providers/ operators:

Should make their services accessible for persons with disabilities. Information about their accessible services must be available on their web site, which should also adhere to WCAG standards.
Should collect data on the number of their disabled customers and frame at least 1 or 2 schemes for persons with different disabilities and provide basic accommodations like accessible billing and accessible customer care. They could have a public relations officer to service the complaints of disabled customers.

The charter of the Universal Service Obligation Fund must be expanded to include 'persons with disabilities' as an underserved community and all ongoing projects must be made inclusive.
The DoT must make special mention of persons with disabilities in the Telecom Policy and also formulate specific policies to connect them with accessible telecom services.

Access to Broadcasting

Objective
To provide broadcasting access to persons with various disabilities.

Strategy/ Activities:

It must be made mandatory for all television programming to be recorded with clearly legible and appropriate audio descriptions and closed captioning.
All films must have clearly legible and appropriate closed captioning and audio description, and sign language tracks recorded and this must be made a prerequisite for obtaining a censor certificate.
All new theatres must have facilities for patrons to access closed captioning/audio descriptions/sign language, without which they should not be granted licenses. Existing theatres should be granted a period of 1 year within which such facilities should be obtained. These facilities should be available at no extra charge beyond that of the ticket to patrons.
In the ongoing compulsory digitalization of cable television in India, all set top boxes being procured must be made accessible to persons with vision/cognitive disabilities. Optional voice navigation must be made mandatory for all set top boxes being sold/imported into India.
All new television receivers/set top boxes must have built-in decoder circuitry or capability designed to display closed captioned video programming, the transmission and delivery of video description services, and the conveyance of emergency information. Existing patrons should be allowed to exchange their television receivers/set top boxes for accessible ones.
All new television sets sold or imported in India must be equipped with built-in closed caption decoder circuitry or capability designed to display closed-captioned video programming/ audio descriptions, and have the capability to decode and make available the transmission and delivery of video/audio description services, and have the capability to decode and make available emergency information in a manner that is accessible to individuals who are disabled.

Inclusive Planet Centre for Disability Law and Policy
12/21 Custain Beach Road, Santhome,
Chennai - 600 004.
Tel: +91-44-24611313
Fax: +91-44-24617924
www.inclusiveplanet.org.in

For more details visit https://cis-india.org/accessibility/blog/feedback-on-draft-twelfth-five-year-plan

Commemorating Ulo Senthamizh Kodai (1945 - 2024): A Luminary of Tamil Open Knowledge Movement

pavan — 2024-02-08T14:59:50Z

பயன்தூக்கார் செய்த உதவி நயன்தூக்கின் நன்மை கடலின் பெரிது. (௱௩ - 103) திருவள்ளுவர் (Payandhookkaar Seydha Udhavi Nayandhookkin Nanmai Katalin Peridhu (Transliteration). The contribution made without weighing the return, When weighed, outweighs the sea. - Thiruvalluvar

With deep sorrow, we announce the passing of Ulo Senthamizh Kodai (December 22, 1945 – February 1, 2024), a distinguished technologist, author, academician, and prolific contributor to the Tamil Wikipedia community.[1] Born on December 22, 1945, in the village of Puducherrypalli in Thiruvallur district, Tamil Nadu, India, He devoted his life to engineering, science, and promoting scientific knowledge in Tamil.

Ulo Senthamizh Kodai earned his Bachelor's degree in Electrical Engineering from Guindy Engineering College and a Master's degree from PSG College of Technology in Coimbatore. His illustrious 33-year career at the Tamil Nadu Electricity Board included earning a Ph.D. He authored the acclaimed book "Makkal Ariviyal Ilakkiyam: Nokkum Pokkum" and received the Tamil Nadu Government's award for best book in engineering and technology in 2007.

Passionate about Tamil Nadu's science and technology history, Ulo Senthamizh Kodai contributed extensively to scientific vocabulary in Tamil. He served on the editorial board of the Bharathidasan University Journal of Science and Technology and significantly contributed to the Tamil Virtual Academy's glossary of technical terms.

In addition to academia, He was a luminary in the Tamil Wikipedia community, starting his contributions in 2014. He created over 2000 articles and had an edit count of 28513 in Tamil Wikipedia, focusing mainly on scientific articles. He was actively involved until his final days, participating in discussions and editing articles until January 29, 2024.

Ulo Senthamizh Kodai leaves behind a legacy continued by his son Vanchi. His impact on Tamil science and the Wikipedia community is immeasurable, with notable contributions to projects like the 100 WikiDays and the Tamil Teachers' Articles Cleanup Drive.

Members of the Tamil Wikipedia community mourn his passing. Fellow Wikipedian Mahalingam noted, "The passing of Ulo Senthamizh Kodai is a great loss to us all." Former colleague Jambulingam remembered his dedication and encouragement, while longtime contributor K. Murthy recalled Ulo Senthamizh Kodai's resilience despite physical challenges.

Ulo Senthamizh Kodai's contributions were recognized with accolades, including featuring on the main page of Tamil Wikipedia in 2016 and various barnstars and medals from fellow Wikipedians.

As we bid farewell to Ulo Senthamizh Kodai, we remember him not only for his significant contributions to Tamil science and Wikipedia but also for his unwavering dedication to knowledge, education, and the Tamil language. His passing leaves a void in the community, and he will be dearly missed.

We are planning to host a condolence meeting online and we will soon provide information about that. We encourage people to share their memories/experiences of their association with Ulo Senthamizh Kodai on this thread.

Tamil Wikimedians & CIS-A2K.

[1] Biographical Article about Ulo Senthamizh Kodai in Tamil Wikipedia

[2] Userpage of Ulo Senthamizh Kodai in Tamil Wikipedia

For more details visit https://cis-india.org/a2k/blogs/commemorating-ulo-senthamizh-kodai-1945-2024-a-luminary-of-tamil-open-knowledge-movement

CODE Session

praskrishna — 2016-01-13T13:39:43Z

CODE Project is an IDRC funded project, and CIS is a partner institution, along with PIJIP at American University Washington College of Law, USA, Karisma Foundation, Colombia, Derechos Digitale, Chile, American Assembly, Columbia University, USA and FGV, Rio.

At this session held in New Delhi on December 17, 2015, CIS presented some preliminary research and sought input on methodology as well as content. The project broadly studies law and policy environment that facilitates/hinders content creation online in Brazil, US, India, Colombia and Chile. A second part of the project, led by PIJIP is developing a copyright index, to chart copyright law developments in many countries around the world. Nehaa Chaudhari and Anubha Sinha participated in the open session.

For more details visit https://cis-india.org/a2k/news/code-session

Centre for Internet and Society

Comments on IP Rights Policy to DIPP

Comments on Internet Priorities

Comments on Information Technology (Security of Prepaid Payment Instruments) Rules, 2017

1. Preliminary

2. The Centre for Internet and Society

3. Comments

3.1 General Comments

3.2 Rule 2: Definitions

3.2 Rule 7: Definition of personal information

3.3 Rule 4: Inadequate privacy protections

3.4 Rule 10: Reasonable security practices

3.5 Rule 12: Traceability

3.6 Rule 5: Risk Assessment

3.7 Rule 11: End-to-End Encryption

3.8 Rule 13: Retention of Information

3.9 Rule 14: Reporting of Cyber Incidents

3.10 Rule 15: Customer Awareness and Education

3.11 Rule 16: Grievance Redressal

3.12 Rule 17: Security Standards

Comments on InDEA 2.0

Comments on eCourts phase III

Comments on Draft National Policy on Software Products

Comments on Draft National Policy on Official Statistics

Comments on Draft National Policy on ICT in School Education

Notes

Comments on Draft Digital Information Security in Healthcare Act

Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms

Rohini Lakshané, Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation, available at http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation (last accessed 22 April, 2016). See also supra note 47 for more details.

Comments on the Report of the Committee on Digital Payments (December 2016)

1. Preliminary

2. The Centre for Internet and Society

3. Comments

Endnotes

Comments and Suggestions to the Draft Patent Manual March 2019

Comments and Feedback on the Draft Twelfth Five Year Plan with respect to Persons with Disabilities

Specific Input

Conclusion

ANNEXURE A - Access to Content, Telecommunication Services and Broadcasting

Access to Content

Access to Telecommunication Services

Access to Broadcasting

Commemorating Ulo Senthamizh Kodai (1945 - 2024): A Luminary of Tamil Open Knowledge Movement

CODE Session