Centre for Internet and Society

Thomas Abraham's Rebuttal on Parallel Importation

pranesh — 2011-08-04T04:47:12Z

We engaged in an e-mail conversation with Thomas Abraham, the managing director of Hachette India, on the issue of parallel importation of books into India. We thought it would be in the public interest to publish a substantive part of that conversation. In this post he points at great length how our arguments are faulty. While we still believe that he doesn't succeed, we hope this will clarify matters a bit.

Nature of disagreement

There is essentially fundamental disagreement on principle and definition-and I guess there will always be if you knock actual knowledge and see things as abstract philosophical (and legal) points. Why I think detailed knowledge is necessary is precisely illustrated at the logic (or lack thereof actually) employed by the Ministry. And then there is to me the fundamental problem of disregarding the author's wishes (for no greater good).

Second hand books and libraries

The comparison is not the same. Both (second-hand and libraries) have had a first sale where the copyright holder has got his/her basic right-the designated royalty. (I have explained earlier how export royalties and remainder royalties are much lower and results in losses to the author.) So here we come back to the basic philosophy-who has greater right on deciding on creative works? The creator or the government? A just answer would be the creator provided commercial dissemination fulfilled society's needs-which in India's case would be availability and right pricing keeping in mind socio-economic needs. Both are happening through local publishing and pricing of imports. But parallel imports would take away that right an author has of deriving a rightful income as per existing norms in all mature markets (including India so far). We are heading towards being a mature market and this has come about only because we are in the self-perpetuating framework of publishing, writing, and cultural development.

So the argument is that second hand books and libraries foster reading without depriving the author of rightful royalty or ruining the market.

Parallel importation does both. There is every reason to know that this will happen-that's exactly the substantiation we are offering. And the advocates of parallel importation have none to offer-pricing (where is it high, and by how much should it come down?), what is not freely available and at special prices? So for what reason do we want the existing law-also made by lawmakers-to change the stated remit of exhaustion from national to international.

No book publisher objects to libraries or even second hand books. But they are objecting to parallel importation. So leave it to them to decide. It is a tad patronizing to tell us what will help us, without having a shred of actual knowledge.

Helping libraries and disabled

This is completely false. No library needs to import from Amazon. And if it is a public library then they are wasting taxpayer money. Almost any book in the world they will still get at a special price through Indian publishers or distributors. There are societies for the disabled to whom publishers give rights at almost no cost. The UK has a law that a copy must be made available at near cost for disabled. By all means have such a law here. Why try and use parallel importation as an excuse for this?

Flexibility in the law

To your point: "Even if prices don't fall, it is good to have the flexibility for libraries to import four copies of a book that students need and isn't being made available in India. That flexibility is crucial, for availability, and just on principle, and not just for the sake of prices". By all means pass the law that gives the libraries the right to import 5 copies of any book they want. Publishers won't gripe at that. Libraries would still get it cheaper here than Amazon but that's the libraries' call.

Law should promote fairness and equity, not perpetuate a particular business model

No disagreement here. But the contention is that it will result in exactly the opposite. Sure, so let the lawmakers demonstrate they have done due diligence and outline evidence for their assumptions and how it will promote fairness and equity. What is unfair right now and what is not equitable? And how this law will address that. Why do other markets have it, and why should we not? On no count is there any detailing-just three false assumptions-availability, pricing and current editions.

Equally one can't have the law being made the proverbial ass because the lawmakers won't do their homework.

Export and remainder royalties are lower

I explained export vs domestic royalties in my first rebuttal. Not just remainders. Remainders are near zero royalties. Export surplus even pre-remainders are low royalty-against the author's wishes. And parallel importation will result in further loss of royalties from loss of sales of the hitherto legitimate edition.

Why anti-dumping laws will not be practical

Firstly there will be 40,000-plus titles to track, and the damage would have been done by the time you invoke the law. And assuming we want to invoke anti-dumping law, what parameters will be fixed? what discount are you going to fix? What quantity? I'll explain why this will never work. There are no real averages to draw lines and say this much and no more for either discount or price or quantity. To understand why we need to understand cost to price structures. Indian publishing (both publishing and imports) is low margin. Our books are priced to market; that means from cost our mark up is 2.5 times for imports and about 3-4 on average for local publishing-to enable the prices you see. Abroad it is 8-10 times from cost. To enable low pricing in India, we already have overseas terms that exceed 70% discounts, going into 'net pricing' for the ones that we pick to push big. Once the market is opened up, you will have two things-(a) targeted remainders as against the minor trickle now and (b) surplus clearance or even targeted sale to undercut the existing lawful edition. And I repeat the point that these remainders and 'targeted exports' can still end up undercutting the local edition. Not significantly enough to cause a change in pricing pattern (no benefit to consumer), but enough to undermine existing industry structures.

And yes, parallel importation (the current trickle) does see enforcement the logical way (by which I mean that the intensity of the problem merits the level of redressal). So far (believe me, each of us keeps tabs) we have 'unaware imports' and 'deliberate imports'. It is an irritant but is gradually reducing as the market matures. And the unaware ones are easily remedied by a simple letter asking for infringing stock to be withdrawn. In fact 8 out of 10 cases this simple letter works. For the deliberate ones, as I said earlier, it's just one or two where the impact is not worth the cost. Our margins do not allow us to hire expensive lawyers. But the moment it touches key brands or high revenue, legal action is taken.

Market expansion

Again the inherent assumption that this is some 'fat cat' lobbying protest. For once the lawmakers need to apply themselves-why is everybody from Penguin & Hachette (biggest) to Zubaan and Yatra (amongst smallest) all opposing it? Similarly from Crossword (large chain) to 'The Bookshop' in Jor Bagh (small independent), nobody wants this. Why? Surely that must speak for something? The only ones it will benefit are the remainder stalls you see (of which there must be about 25-30 all over the country). But over time every bookshop will be forced to keep this kind of stocking eroding current shelf space (they will have no choice). This is not market expansion.

Pricing drop

The other thing being ignored is that it's not just short term spoiler pricing. When one thinks in purely theoretical terms and says "open up, prices will drop", one is also not factoring in that the composition of what is stocked will changed. It's no longer status quo at reduced prices. That's the key to a mature market, that what the market needs is available-from bestsellers to literary works to philosophical works-balancing commercial and cultural needs and at prices the market can afford. So sure we can sit back and say we don't care if the history and philosophy shelves are eroded, if local publishing shrinks, let market forces prevail and let there be just foreign mass market novels and old editions (which will flow in by the thousand). But I'd like to hear the government say that.

Not just about copyrighted books but about all copyrighted materials

Yes, and we're not commenting about the others (other materials, i.e.) because we do not know enough. But we cannot have one size fits all if there are legitimate grounds to think about otherwise. Why is there a redressal of authors' needs in the music and film industry and a total disregard of books? Why were there panels created to discuss and thresh the whole thing through for films, and no detailed consultation at all for the books industry?

For more details visit https://cis-india.org/a2k/blogs/parallel-importation-rebuttal

This Twitter Account Puts a Face to the Unsung Volunteer Editors Behind Wikipedia

subha — 2014-07-03T06:17:56Z

The life of a Wikipedia editor is an interesting one. Globally, about 100,000 editors edit the collaborative online encyclopedia's 30 million articles in 287 languages, including over 4.5 million in the English Wikipedia.

Click to read the post published on Global Voices here.

They dedicate a tremendous amount of their time to contribute and edit articles, but for no pay (editors work as volunteers) and for little public recognition – their work is credited via their usernames tucked away in the entry's edit history.

Now, one initiative is trying to shine the spotlight on these hard-working “Wikipedians.” WeAreWikipedia is an unofficial project that brings on a different editor each week to curate information regarding their favorite Wikipedia pages and tweet them using the handle @WeAreWikipedia. So far, 19 people representing 17 different language Wikipedias have curated the account.

WeAreWikipedia explains on its blog that it was inspired by a weekly rotation curation handle @WeAreBangalore created by social media strategists from the Indian city of Bangalore in October 2013 to create a space for Bangaloreans to tell their stories, give their opinions or simple connect with other active social media users in the area.

Admin: Most of u r not aware that, one of our previous curators @psubhashish was inspired by us and started global #RoCur @WeAreWikipedia :)
— Bangalore/Rajeev (@WeAreBangalore) June 17, 2014

@WeAreBangalore in turn took its cue from the highly successful @sweden, which turns over the Twitter handle to a different Swede every week as a sort of citizen ambassador program.

The WeAreWikipedia curators also tell personal stories and explain the technicalities of publishing and editing Wikipedia to any readers who ask.

Wherever I go, local Wikipedians are so welcoming and so open to collaboration. I have made friends all around the globe.
— WeAreWikipedia (@WeAreWikipedia) junio 17, 2014

Curators often focus tweets on their Wikipedia language community and country. Two women editors from India, Noopur Raval and Netha Hussain, dedicated many of their publications to facts about women’s rights, issues and development in India while curating the handle during Women’s History Month in March. They also drew attention to an edit-a-thon held in Bangalore that brought 90 women to write about 77 articles related to women in India.

Mariona Aragay, an editor for the Catalan Wikipedia, made a related call for more women editors while she was at the helm of @WeAreWikipedia:

As a wikipedian, it concernes me the low ratio of #woman editors: if you’re a wiki-girl, let us know your experience! #gendergap @wikiwomen

— WeAreWikipedia (@WeAreWikipedia) June 4, 2014

Curators also highlight community events, such as Odisha Dibasa 2014, a gathering at the end of March 2014 of the Odia-language Wikipedia community in the capital of the Indian state of Odisha, where the language is predominantly spoken.

Diptiman Panigrahi, an Odia editor who curated @WeAreWikipedia during the event, talked about his week in a blog post for The Centre for Internet and Society in India:

It was a wonderful experience curating WeAreWikipedia without even much time. Meeting the entire Wikimedia global community was even more fun when I was telling happenings of my own community. I hope to take part in more of such collaborative global issues like this.

You can follow WeAreWikipedia on Twitter, Facebook and on their blog.

For more details visit https://cis-india.org/openness/blog-old/global-voices-online-june-18-2014-subhashish-panigrahi-twitter-account-puts-a-face-to-unsung-volunteer-editors-behind-wikipedia

Third South Asian Meeting on the Internet and Freedom of Expression

praskrishna — 2013-01-17T07:16:58Z

Internet Democracy Project, Voices for Interactive Choice & Empowerment and Global Partners & Associates are organizing this event in Dhaka on January 14 - 15, 2013.

Pranesh Prakash is moderating the session on "Understanding cyber security and surveillance in South Asia today". Chinmayi Arun is speaking in this panel.

The Third South Asian Meeting on the Internet and Freedom of Expression seeks to address the question of how freedom of expression on the Internet is best protected by taking as its starting point two of the biggest challenges for freedom of expression online in South Asia today: hate speech online on the one hand, and cyber security and surveillance on the other.

The meeting seeks to investigate how these challenges affect freedom of expression on the Internet as well as how they can be addressed most effectively while protecting free speech online. It will also touch briefly on the important question of what kind of Internet governance processes are most likely to ensure the desired outcomes materialise.

A very short history of the South Asian Meeting on the Internet and Freedom of Expression
The first South Asian Meeting on the Internet and Freedom of Expression took place in March 2011 in Delhi, and mapped the many challenges for free speech online in our region, as an input into the report on the Internet and freedom of expression of UN Special Rapporteur on Freedom of Expression, Mr. Frank La Rue.

The second South Asian Meeting, in Kathmandu in November 2011, assessed the extent to which policy and regulation in the South Asian countries complied with the recommendations Mr. La Rue made in his report.

This third meeting will now build on these earlier efforts by bringing together experts from civil society, business, the research community and other stakeholder groups from across the region to discuss two of the biggest shared challenges for freedom of expression online in South Asia today in detail: the rising visibility of hate speech on the one hand, and the impact of discourses regarding cyber security and surveillance on the other.

Why focus on hate speech and security/surveillance now?
Since UN Special Rapporteur on Freedom of Expression, Mr. Frank La Rue, presented his report on the Internet and freedom of expression to the UN Human Rights Council in June 2011, the complexity of this topic has received growing recognition. However, not all trends that La Rue had pointed out as directly affecting freedom of expression online – from access to the Internet to cyber attacks – are equally important in the South Asian region. Detailed analysis in several South Asian countries has shown that, though Internet penetration rates remain fairly low, most countries do possess, for example, the political will crucial to improve these figures. The two trends that seem to be of greatest concern in our region are that of the fight against hate speech, and the impact on freedom of expression of cyber security and surveillance measures. The latter is foregrounded for a variety of reasons ranging from the safety of individual users to national security.

Incidentally, across the region, as in many parts of the world, hate speech and cyber security have also been among the most important reasons governments have quoted to justify greater government control over the Internet. At the national level, this has at times manifested itself through the approval and implementation of legislation that has far-reaching consequences for freedom of speech online, without consulting many of the stakeholders who are affected at any point in time. At the global level, we see a growing number of proposals by governments that would effectively expand their collective powers to regulate the Internet, though with varying levels of involvement of other stakeholders envisioned.

Yet while governments' intentions when imposing censorship or approving surveillance measures may at times be in doubt, it is difficult to deny that the Internet has facilitated a new proliferation of hate speech, as well as that it has thrown up new security challenges that couldn't even be imagined before.

It is therefore our contention that the challenges of hate speech online and of ensuring cyber security in our region are real, and need to be addressed head-on if we are to strengthen and protect the right to freedom of expression online. For this reason, the meeting seeks to investigate both the precise nature of these challenges and what Internet governance mechanisms we need to evolve to ensure that they can be addressed most effectively whilst upholding and strengthening the right to freedom of expression. If we are to take the challenges the threats of hate speech and cyber security policy embody seriously yet also aim to uphold and strengthen the right to freedom of expression online, then what are the solutions we require? And who will need to be responsible for implementing them?

Participants
Taking into account the many parallels in the shape problems of hate speech and cyber security and surveillance take across the South Asian region as a result of shared cultures and historical legacies alike, participants will be invited from Bangladesh, India, Nepal, Pakistan, Afghanistan, Sri Lanka and the Maldives. Moreover, as solutions to these problems will invariably require collaboration among various stakeholders in the Internet governance field in order to be effective, participants will be drawn from a wide variety of stakeholder groups, including civil society, business, government, academia and the media from across the region. In this way, the meeting hopes tofacilitate a South Asia wide, multistakeholder dialogue, to learn, discuss and evolve more detailed thinking on these topics for one and a half days. The meeting will come to an end with a public event at the end of the second day.

The meeting will use a variety of formats, including key note presentations, panel discussions, case studies and small group conversations.

Agenda

January 14, 2013

9.00-09.45	Welcome and introductions to participants
09.45-10.15	Introduction to the meeting: the challenge that hate speech online and cyber security/surveillance pose to freedom of expression on the Internet – Dixie Hawtin Intro: Internet governance and human rights issues in general Why is this event focussed on hate speech and surveillance?
10.15-10.45	Tea/coffee break
10.45-12.15	The challenge of hate speech on the Internet in South Asia Strengthening the right to freedom of expression to curtail hate speech (Anja Kovacs) Three country perspectives, from the Maldives (Mariyath Mohamed), Pakistan (tbc), and Bangladesh (Salim Khan) Moderator: Bishakha Datta
12.15-13:30	Lunch
13.30-14.00	Keynote: Thinking about a rights-based approach to cyber security and surveillance as it relates to speech – KS Park
14.00-15.30	Understanding cyber security and surveillance in South Asia today With Three country perspectives from Bangladesh (Mohammad Rahman), Nepal (Kailash Prasad Neupane) and India (Chinmayi Arun). Moderator: Pranesh Prakash
15.30-16:00	Tea/coffee break
16.00-17.30	Legal and ethical questions and challenges when addressing cyber security and surveillance: two case studies – Rohan Samarajiva

January 15, 2013

9.00-9.15	Introduction to day 2
9.15-9.45	Cybersecurity, surveillance and hate speech online – key issues that need to be addressed in governance in order to protect Internet freedom of expession. This session will discuss particular issues that have relevance for both cyber security debates and hate speech issues in greater depth. Four topics that will be addressed are: The question of anonimity (KS Park) Cross-border cooperation and other jurisdictional issues in context of cloud computing and crossborder data flows and storage (Aditya Rao) Domain Names and registration (Babu Ram Aryal) Intermediaries as law enforcers (Suman Pradhan) Moderator: Shahzad Ahmed
10.45-11.00	Tea/coffee break
11.00-13.00	What kind of solutions could a rights-based approach throw up to the challenges raised so far in the meeting? Open discussion in groups and plenary, following key note speaker, Bulbul Monjurul Ahsan
13.00-13.30	Summing up and thank you
13.30-15.00	Lunch
15:00 – 16:00	Meeting participants move to venue for public meeting, tea/coffee break and arrival of wider public
16.00-18.30	PUBLIC EVENT: The Internet and freedom of expression Confirmed speakers include: Abu Taher, Info Commissioner; Iftekharuzzaman, Executive Director, Transparency International Bangladesh; Sarah Hossain, Lawyer and Honorary Executive Director, BLAST; Shaheen Anam, Executive Director, Manusher Jonno Foundation; Monjurul Ahsan Bulbul, eminent journalist and CEO, Boishakhi Television; and Rohan Samarajiva, Chair and CEO, LIRNEasia.

List of Participants

Aditya Rao, Senior Associate, Amarchand Mangaldas, India
Ahmed Swapan, Executive Director, VOICE, Bangladesh
Amrit Pant, General Secretary, Computer Association of Nepal & President, Information Technology Development Society, Nepal
Anja Kovacs, Project Director, Internet Democracy Project, India
Babu Ram Aryal, President, Internet Society, Nepal Chapter, Nepal
Binaya Guragain, Coordinator of Programs, Equal Access, Nepal
Bishakha Datta, Wikimedia Foundation Board Member & Co-founder, Point of View, India
Chinmayi Arun, Assistant Professor, National Law University Delhi & Fellow, Centre for Internet and Society, India.
Dixie Hawtin, Project Manager for Digital Communications and Freedom of Expression, Global Partners and Associates, UK
Farhana Rumki, Associate Programme Coordinator, VOICE, Bangladesh
Kailash Prasad Neupane, Chief of Legal Section, Spokesperson, Secretary and Registrar, Nepal Telecommunications Authority, Nepal
Khairuzzaman Kamal, Founder Secretary General of Bangladesh Manobadhikar Sangbadik Forum & Senior Reporter at Bangladesh Sangbad Sangstha, Bangladesh
Khawaza Mainuddin, Executive Editor, ICE Business Times Magazine, Bangladesh
K S Park, Executive Director, the PSPD Public Interest Law Center & Professor, Korea University Law School, South Korea
Mariyath Mohamed, Journalist, Minivan News, Maldives
Mohammad Nazmuzzaman Bhuian Emon, Associate Professor, Department of Law, University of Dhaka, Bangladesh
Mohammad Shahriar Rahman, Assistant Professor, Department of Computer Science and Engineering, University of Asia Pacific & Head, Center for IT Security and Privacy, Bangladesh
Moiyen Zalal Chowdhury, Community Manager, Somewhere.In & Norad Fellow,Bangladesh
Monjurul Ahsan Bulbul, Chair, International Press Institute & Editor-in-chief and CEO,Boiskakhi TV, Bangladesh
Pranesh Prakash, Policy Director, Centre for Internet and Society, India
Prasanth Sunganathan, Counsel, Software Freedom Law Centre, India
Rezaur Rahman Lenin, Research Fellow, VOICE, Bangladesh
Richa Kaul Padte, Writer, India
Rohan Samarajiva, Chair and CEO, LIRNEasia, Sri Lanka
Saleem Samad, Columnist & Correspondent at Reporters without Borders, Bangladesh
Salimullah Khan, Writer and Professor, Stamford University, Bangladesh
Sana Saleem, Director, Bolo Bhi, Pakistan
Santosh Sigdel, Advocate and Vice President, Internet Society, Nepal Chapter, Nepal
Shahzad Ahmed, Country Director, Bytes for All, Pakistan
Shehla Rashid Shora, Project Officer, Internet Democracy Project, India
Shehnaz Banu, Media and Communication Officer, Alliance for Social Dialogue, Bangladesh
Soheil Zafar, Editor, Unmochan Blog & TV Producer and Researcher, 71 Television, Bangladesh
Suman Lal Pradhan, CEO, Websurfer, Nepal
Sushma Luthra, Event Coordinator, India
Syeda Fedous Jana, Managing Director and Co-Founder of Somewhere.In, Bangladesh
Tahmina Rahman, Director Bangladesh and South Asia Region, Article 19, Bangladesh
Vasana Wickremasena, Executive Director, Centre for Integrated Communication Research and Advocacy, Sri Lanka

For more details visit https://cis-india.org/news/third-south-asian-meeting-on-internet-and-freedom-of-expression

There is No Such Thing as Free Basics

subha — 2016-02-14T11:37:50Z

India would not see the rain of Free Basics advertisements on billboards with images of farmers and common people explaining how much they could benefit from this Firefox project. Because the Telecom Regulatory Authority of India (TRAI) has taken a historical step by banning the differential pricing without discriminating services.

The article was published in Bangalore Mirror on February 9, 2016.

In their notes, TRAI has explained, "In India, given that a majority of the population are yet to be connected to the Internet, allowing service providers to define the nature of access would be equivalent of letting TSPs shape the users' Internet experience." Not just that, violation of this ban would cost Rs 50,000 every day.

Facebook's earlier plan was to launch Free Basics in India by making a few websites—that are mostly partners with Facebook—available for free. The company not just advertised heavily on billboards and commercials across the nation, it also embedded a campaign inside Facebook asking users to vote in support of Free Basics.

TRAI criticised Facebook's attempt for such a manipulative public provocation. However, Facebook was heavily criticised by many policy and Internet advocates, including non-profits groups like Free Software Movement of India and Savetheinternet.in campaign.

The latter two collectives were strongly discouraging Free Basics by bringing public opinion wherein Savetheinternet.org was used to send over 10 lakh emails to TRAI to disallow Free Basics.

Furthermore 500 start ups including major ones like Cleartrip, Zomato, Practo, Paytm and Cleartax also wrote to prime minister Narendra Modi requesting continued support for Net Neutrality — a concept that advocates equal treating of websites — on the Republic Day.

Stand-up comedy groups like AIB and East India Comedy had created humorous but informative videos explaining the regulatory debate and supporting net neutrality which went viral.

Technology critic and Quartz writer Alice Truong reacted saying: "Zuckerberg almost portrays net neutrality as a first-world problem that doesn't apply to India because having some service is better than no service."

In the light of differential pricing, news portal Medianama's founder Nikhil Pawa, in his opinion piece in Times of India, emphasised the way Aircel in India, Grameenphone in Bangladesh and Orange in Africa were providing free access to Internet with a sole motif of access to Internet, and criticised the walled Internet of Facebook that confines users inside Facebook only.

Had the differential pricing been allowed, it would have affected start ups and content-based smaller companies adversely, as they could never have managed to pay the high price to a partner service provider to make their service available for free.

On the other hand, tech-giants like Facebook could have easily managed to capture the entire market. Since the inception of the Facebook-run non-profit Internet.org has run into a lot of controversies because of the hidden motive behind the claimed support for social cause.

The decision by the government has been welcomed largely in the country and outside.

In support of the move, Web We Want programme manager at the World Wide Web Foundation, Renata Avila, has shared saying,

"As the country with the second largest number of Internet users worldwide, this decision will resonate around the world.

"It follows a precedent set by Chile, the United States, and others which have adopted similar net neutrality safeguards. The message is clear: We can't create a two-tier Internet — one for the haves, and one for the have-nots. We must connect everyone to the full potential of the open Web."

For more details visit https://cis-india.org/internet-governance/blog/bangalore-mirror-subhashish-panigrahi-february-9-2016-there-is-no-such-thing-as-free-basics

Theorizing the Digital Subaltern

sara — 2013-08-06T07:20:41Z

As digital humanities research at CIS proceeds, a number of critical positions have arisen, making it possible to reconcile questions of humanities with the digital realm. This blog entry focusses on race as a factor of research and how it is displayed in the digital.

Digital humanities has been criticized for a lack of content when compared with research in the traditional field of humanities. While humanities work deals mostly with subalternity, politics and what it means to be human, it has been established that a lot of digital humanities work revolves mainly around questions of providing access. Access is a good thing and focussing on it can be helpful. Nonetheless, as has been stated by Nishant Shah, simply providing access only works in an ideal world, where all have the gadgets and knowledges of making use of the research made available through digitalization (Shah: 2012). The internet is not the discrimination-free, post-gendered space that cyber-enthusiasts hoped for it to be. As a matter of fact, as Lisa Nakamura describes, the internet is a space of racial and gendered re-embodiement (Nakamura: 2007). Her argument is that in relation to the advancing biotechnologies, ubiquitous surveillance and pre-emptive profiling, 'racio-visual logic' is reconfiguring the body online (ibid.). Even if there is actually visibility of marginalized groups online, it is not always something that actually results in fruitful engagement with the paradigms of racial discrimination. This means that social inequalities and racial discrimination marginalizing people offline are reproduced online. Nakamura exemplifies this in an example by investigating the website alllooksame.com, where users are encouraged to participate in racial profiling by labeling pictures of Asians to be Korean, Chinese or Japanese. A majority of users falsely label the faces, which shows how the social construction of race can wrongly be mainstreamed to accommodate visual perceptions of eastern stereotypes. In this case, as the obviously problematic title of the website already suggests, simply making spaces for perceived minorities is more harmful than good. Nakamura also exemplifies how race is otherwise fetishized online, for example in video games like Grand Theft Auto, portraying non-white protagonists as thugs, or even all-time favorites like Street Fighter or Tekken, appealing to the western image of Asians as martial arts superpowers.

Therefore, the question of the quality of that access and visibility concerning subaltern groups should be vitally important to work in the digital humanities, more than the mere quantity of knowledges available. As Moore-Gilbert explains in his work on digital subalternity (Moore-Gilbert: 2000), it is not mainly access and digitalization, which will be equalizing factors in the digital age. The subaltern is a concept by Antonio Gramsci, which tries to describe the marginalized groups of people that do not have access to hegemonic spaces in society. Gayatri Spivak adds to that concept by saying that not only do the subaltern not have access to hegemonic power structures, also this denial of access makes it impossible for the subaltern to express their own knowledges, as they need to adopt Western ways of knowing to be heard. A subaltern's own cultural knowledges are therefore omitted from the discourse and a subaltern can never truly express oneself (Spivak: 1988).

Summarizing subalternity as the oppressed and dispossessed, Mike Kent (2008) defines a new digital divide, which is opening between people with access to the internet and abilities to operate a computer, and people to whom, for some reason, that description does not apply. These people may simply not own or have access to computers on a regular basis (or at all), but also may be excluded from a digital discourse, because they have been marginalized in that discourse from its analog beginnings. One of the examples was shortly addressed in one of the digital humanities blogposts, where it was explained that many people in India seem to believe that the digital is naturally for the english-speaking world and not available in local languages. These are therefore excluded in the building of gadgets and internet infrastructure, leading users to believe that the internet is a hegemonic space with male, white, western, or at the very least english-speaking dominance. Therefore local Indian languages are marginalized and the digital becomes a realm, which marginalizes non-hegemonic culture and people with different language priorities have difficulties finding their way into. The problem with subalternity is that these people are not visibly excluded, and might not even be aware of their exclusion (Kent: 2008). Providing Indian language Wikipedia, for example, is part of the solution, but definitely not all of it. When doing digital humanities work, archiving or creating access through digitalization, the digital divide grows and does so even more, as it is not, and cannot be addressed in such a way that the people being marginalized are put into a position of realizing the disproportion of knowledge access.

So merely providing information online will not result in the diminishment of the priorly addressed knowledge gap. Even when addressing this gap, it happens in terms of academics, intellectuals and people with online access speaking on behalf of people who do not have access to the discursive space in which these gaps are discussed. The experiences of the subaltern are only addressed from the outside and without their presence. This summarizes subalternity under one large, obscure category, ignoring that the subaltern might need to be addressed individually, according to race, class, gender, etc., to be able to gain the knowledges needed to participate in the discourse evolving around questions of digital humanities. Is it therefore substantive to include subaltern positions into digital discourses, even if this means speaking on behalf of certain positions at first to raise awareness. However, the awareness of speaking for someone else should also exist within the discourse and if there is any way of including subaltern positions directly, they should do so.

Within the work field of digital humanities, many projects are discussing the infrastructure and ways of dealing with online knowledges. The project Digital Humanities Q&A (http://digitalhumanities.org/answers/, or @DHanswers on twitter) offers a platform to ask questions regarding anything concerned with digital humanities. The community quickly tries to help the poster to overcome whatever difficulties s_he might be having in 'building'. And even questions of politics and ethics are discussed in the forum. This is an important infrastructure for discourse happening outside of classical academic forms and certainly retains authority through the amount of other work the researchers participating in the project are publishing online and off.

What seems to be missing, however, is the acknowledgement that the digital is not simply something apart from humanity, and is not something simply extractable and usable as a tool without affecting what it means to be human. Technology forms our very being from the first moment of creation in our mother's wombs. It is intrinsic to every life form in human society and even a complete lack of technology surrounding someone (if that is even possible), is technological in a sense that it is perceived as a lack thereof. This does not necessarily mean that all research work results to digital humanities, but it does point to the impossibility of leaving questions of the social, of race, of gender, aside when dealing with technological development.

To make an analytical example, the technologically focussed concept of the 'Internet-Geek' or the 'Hacker' gives an outlook on how questions of race are handled within a digital space. The terms hacker and geek are being used interchangeably, even though the concepts might differ. Not all geeks are hackers, however, they occupy the same space in the mainstream discourse and when speaking of an internet-geek it is often the assumption that they hack as well. While the term geek bore negative connotations for years, it seems to have shaken these with the rise of the digital realm marking the turn from 'geekism' to 'hacktivism', and with that, geekism as a new type of expertise. Geeks are no longer seen as friendless mavericks, who spend their time obsessing about one subject, which the mainstream culture seems to have little interest in or use for. Much more, the internet-geek is a political figure, which is often said to have the best survival skills in the digital age and is able to navigate through the digital realm like 'a fish takes to water'. The discourse around geek-ism focusses on the geek as an anti-intellectual figure, which overcomes classical academia, as “it's unnecessary to get a college degree in order to be a great coder” (Sanger 2011). However, debates around intellectualism are as old as the concept of the intellectual itself. Historically, the discourse on intellectualism has always been paired with antisemitism and the concept of the intellectual was first used as a derogative term to attack the left wing group defending the jewish captain Alfred Dreyfus in late 19^th century France. The captain was sentenced to life imprisonment for the wrongful accusations of having communicated french military secrets to the German embassy. His accusation and life sentence served the sustenance of French national values and enforced nationalism through the 'Othering'¹ of the jewish captain. Anti-intellectualism therefore historically springs from structural antisemitism and it is worth looking into how that concept has been employed in today's digital culture. Unfortunately, dwelling on the concept of the intellectual is not possible within the frame of this short exemplary analysis. The ambivalence of the concept should, however, not go by unnoticed. This polemic of the discourse is lost in the digital age and there seems to be little engagement with historical perceptions, which may lead to essentialists perceptions of knowledges.

In embracing the priorly addressed values of the internet, the figure of the geek is in most discourses portrayed as anarchic and dismissive of any form of singular authority, therefore undermining power-structures and hegemonic knowledges. While these discourses engage in questions of authority and freedom, it is difficult to find engagement with the categorial inequalities existent in the digital realm. The political engagement, which is supposed to be a key feature in the identity of the hacker, limits itself to questions of freedom of data and open-source. As has been described before, these technological concepts restrict themselves to data accessibility, but do not engage in questions of the quality of access to that data, or the quality of that data itself. The work of the geek or hacker is therefore not subversive per se. Rather, hackerism saw the freedom of internet usage as a right, not a privilege, thereby essentializing a 'survival of the fittest' mentality, which benefits and excuses aggressive behaviour and therefore alienating more sensitive positions. This usually results in re-justifying patriarchal structures and affirming the white, male, heterosexual norm.

Within the last couple of years geek feminism blogs and websites have been springing up on the web in an attempt to overcome the existing knowledge gaps, but the linguistic and theoretical reference seems always to be more along the lines of feminism in an online space and how much these discourses actually impact hetero-normative hackerspaces is questionable. Geek feminists therefore seldom perceive themselves to be part of the hacker-identity, but move in the realm of feminist theory, where intersectionality with other categories, such as race, has been established to be a key factor of analysis. In the hacker-realm, however, when referring to color, what is mostly being addressed is the ethical direction, in which the hacker is performing his*² task, as a short search-engine review of the topic implies. So the political questions the geek or hacker faces, evolve around cybersecurity, privacy and open spaces on the internet, but do not engage in what it means to be of a certain race, gender, etc. when writing code, hacking technologies, or processing knowledges online. This practice of obscuring categories of inequality does not make them any less effective, but, as has been shown above, enforce shallow and often fetishized depictions of online spaces and the users occupying them. This results in a naturalization of the white, male perspective and implies every other position to be an aberration. It is often implied that people of color simply don't want to participate, instead of seeing the possibility of the spaces not being inclusive and inviting enough. It has often been said that hackerspaces are alienating towards women, but the stereotypical depiction of any ethnic group influences the notion of the hacker to be of a certain class and race as well. While one might perceive that Asians occupy a great amount of online space, this does not necessarily mean fruitful engagement in a critical discourse around race in cyberspace.

So even if there is no direct racism in online spaces or within the notion of the hacker, the lack of theorizing race as a category which is still being seen as inferior leads to informal discrimination and reinforces a norm that marginalizes people of color. Research and the building of infrastructure follows these normative interests and marginalizes interests of groups that do not fit into the privileged categories. The notions of free internet usage implies a choice which is not always available, especially within marginalized communities. So it is necessary to engage with the questions of freedom, for whom they apply online, and where freedom and access stop being choices.

To reference Marshall McLuhan, the medium may not necessarily be the message, but it does inseparably intertwine itself, so that it is impossible to tell where medium stops and message begins. If we accept the premise that we are all cyborgs and digital technologies are inscribed in our bodies, a mere quantitative approach to these is not possible and believing technology to simply be a methodology, a means to end is not either. It is necessary to find a way to deal with the technological, the data and, in the end, the internet as a cultural phenomenon which forms our society just as other media does, but also creates reality in a more accurate and impacting way than any medium has done before.

Therefore when taking a turn towards visualizations and design, one should remember what it means to visualize and what is being left out in the process. Of course, articulating something is always a process of marginalizing something else, as it is simply impossible to include all positions. However, the necessity to clarify ones own position, vital in humanities, seems lost in the transition towards digital humanities. The necessity of critical digital humanities has been stressed in the past and a number of critical projects have arisen, a number of which are summarized on the design for digital inclusion homepage from the Washington University: https://depts.washington.edu/ddi/research.html. It is necessary to critically engage with concepts that occupy the digital space and this short analysis of the hacker may serve as a starting point for future research.

Annotations:

1'Othering' is a concept introduced by Edward Said, saying that the construction of a norm usually develops through the demarcation of what they are not. In this case, the french nationality was built upon a notion of anti-semitism and the concept of treason as the biggest offense to the nation state. The concept of 'othering' has also been employed by several other theorists and subaltern researchers, amongst them Gayatri Spivak. See Said: 1977, Spivak: 1985

2Unless explicitly feminist, most literature still addresses the hacker as a male figure. Although of course there are several female hackers, the concept is still connoted as a male identity. In following, this connotation will be applied, however the * indicates the critical engagement with the concept, mirroring the differential gap of power and authority according to the concept of hegemonic masculinity.

References:

Deleuze, G./Guattari, F. (1993): A Thousand Plateaus. Capitalism and Schizophrenia. Minnesota: U of Minnesota Press.

Gold, M.K. (2012): Debates in the Digital Humanities. Open Access Edition

Kuhn, T. S.(1996): The Structure of Scientific Revolutions, University of Chicago Press. 3^rd edition.

Kent, M. (2008): Digital Divide 2.0 and the Digital Subaltern. In: Nebula 5.4, 2008. Accessed July 26^th 2013:http://www.nobleworld.biz/images/Kent3.pdf

Moore-Gilbert, B. (2000): Spivak and Bhabha, In: Schwarz/Ray (ed.), A Companion to Postcolonial Studies. Oxford: Blackwell Publishers, 2000, p. 453.

Nakamura, L. (2008): Digitizing Race. Visual Cultures of the Internet. Minnesota: U of Minnesota Press.

Said, E. (1977): Orientalism. London: Penguin

Shah, N. (2012): The Digital Classroom in the Time of Wikipedia. Accessed July 26^th 2013: http://cis-india.org/raw/digital-humanities/blogs/digital-classroom/digital-classroom-in-time-of-wikipedia

Spivak, Gayatri Chakravorty. " Can the Subaltern Speak?" in Marxism and the Interpretation of Culture. Eds. Cary Nelson and Lawrence Grossberg. Urbana, IL: University of Illinois Press, 1988: 271-313.

Sterne, J. (2000): Computer Race goes to Class. How Computers in Schools Helped Shape the Racial Topography of the Internet. In: Kolko/Nakamura/Rodman (ed.): Race in Cyberspace. New York/London: Routledge. Accessed 29^th July 2013: http://sterneworks.org/ComputerRaceGoestoClass.pdf

For more details visit https://cis-india.org/raw/theorizing-the-digital-subaltern

The Zen of Pad.ma: 10 Lessons Learned from Running Open Access Online Video Archives in India and beyond

sneha-pp — 2016-01-28T08:25:18Z

Sebastian Lütgert and Jan Gerber, the co-initiators of, and the artists/programmers behind the pad.ma (Public Access Digital Media Archive) project will deliver a lecture at CIS on Wednesday, February 03, 6 pm, on their experiences of learnings from running open access online video archives in Germany, India, and Turkey. Please join us for coffee and vada at 5:30 pm.

The Zen of Pad.ma

Eight years after the launch of Pad.ma and three years since the inception of Indiancine.ma, Sebastian Lütgert will take a closer look at some of the strategies -- decisions and decision making processes, foundational principles and accidental discoveries -- that may have helped make these projects sustainable. While most of the lessons begin with concrete questions related to software and technology, most of them will end up pointing beyond that: towards a general theory of collaboration, towards strategies against premature separation of labor, and towards a few practical proposals for successful self-organization on the Internet.

Biographies

Sebastian Lütgert, media artist, programmer, filmmaker and writer, lives and works in Berlin. Co-founder of Bootlab, textz.com, Pirate Cinema Berlin, Pad.ma and Indiancine.ma. Lecturer at the Academy of the Sciences in Berlin, various publications on cinema, copyright, radical subcultures and the politics of technology.

Jan Gerber, video artist and softwate developer, lives and works in Berlin. Co-initiator of Pirate Cinema Berlin, Pad.ma and Indiancine.ma, author of numerous Open Source software projects, most recently Open Media Library. Involved in a variety of open-access archive projects around the world.

For more details visit https://cis-india.org/raw/the-zen-of-padma

The world is your oyster, by invitation only

praskrishna — 2011-05-01T01:40:59Z

Recent trends show the world of social networking actually reflects the social divides and groupings in the real world. This article by Shreya Ray was published in the Livemint on April 26, 2011.

Looking for love and thinking it’s a shame someone as gorgeous as you is single? Worry not, for Beautifulpeople.com is here. The UK-based site guarantees beautiful singletons a chance to find “beautiful relationships” through their network. The homepage gives you a little snapshot into what they are all about. A cluster of model-like people, different ethnicities and yet, ironically, strikingly similar in their Anglo-Saxon good looks: high cheekbones and sharp noses. Membership is open for all with one caveat: The photo you submit must first be rated by your peer group (that is, the people already deemed “beautiful” by the website), only then do you get admission.

Based on a similar principle of peer-group approval is Facebook’s Compare People application, where you rate friends based on their smile, eyes, sex appeal, profile picture (and other school-report card qualities such as “helpfulness”). And then, of course, there are quizzes such as “How Beautiful Are You”, in which too your final score is based on where you stand vis-à-vis other people in the network.

To be fair, this isn’t just a fetish of the beautiful and those who want to officially belong to “beautiful-only” groups. Because, in just the same way, the social networking world is just as populated by people wanting to either be part of “rich-only” (Affluence.org) or “smart only” (Epernicus.com, for researchers) groups, and most recently, the India-based Vagad Visible (Vagadvisible.com, for the Vagads, a small clan within Kutchi Jains), among others. The world of social networking is about everyone wanting to be something “only” and in that sense, to quote Chicago-based social networking expert David Armano, it is “less about being social”.

Exclusivity: The invite-only system allows social networks and other Web platforms to control and stagger the growing load on their infrastructure. Raajan/Mint

Unsocial networking

One of the latest improvements on Facebook towards the end of 2010 was the option that allows you to edit friends with hyperactive user activity (people who are forever cluttering your page with Farmville updates or quizzes) and “hide” such user activity from your feed. “On Facebook, groups are smaller gatherings, individuals which are invite-only. On Twitter, users create lists to help them filter out signal from noise. Lists on Twitter are not really about exclusivity, but they do say something about how people desire to extract more value from a network,” says Armano, in an email interview.

Sunil Abraham, executive director of the research institute Centre for Internet and Society, Bangalore, says the “hierarchy on the online attention economy often reflects the class and social divides in the real world”.The term attention economy was first used by Michael Goldhaber in December 1997 to describe a new arrangement in which the “flow of attention” metaphorically replaced money as the currency of the Internet.

Quantitative research in the Philippines has shown that rich people are less likely to respond to messages that say “will you be my friend”, he adds, citing the work of researcher Raul Pertierra. “On Facebook, the act of friending someone may appear symmetric. But privacy settings on content, groups and feed configurations may be used to fine-tune the exact power dynamics of the relationship. In platforms such as Twitter, the asymmetry is explicit: For example, Twitter, where I can follow you but you need not follow me,” he says.

Technology has aided this aspect of exclusivity. “There are now beta releases of social software which typically get released to a smaller group of influential and digital savvy individuals. There are now services such as Klout that partner with brands to reward individuals who have the largest social graphs,” adds Armano. Klout measures your overall online influence using over 35 variables on Facebook and Twitter and rates you as True Reach, Amplification Probability, and Network Score.

The other way of practising exclusivity—unlike Facebook, Twitter and other “open” networks—is to just come out and say it: invite only. Beautifulpeople.com will only admit you on the basis of your looks; asmallworld (Asmallworld.net), becoming increasingly popular among the First World swish set, can only be accessed by invitation; and Affluence.org very categorically states it is a place for wealthy individuals to “connect” (membership is free but requires a verifiable minimum household net worth of $1 million, or Rs. 4.5 crore) and “engage in meaningful conversations”. There are others that are slightly work oriented: The Behance network (Behance.net) is a place for creative professionals and you have to seek a membership invitation by describing your creative work. Sermo (Sermo.com) is a place for physicians to “share medical insights”.

Vahad Visible is completely restricted to the Vahad community (a user’s credentials are authenticated by a phone interview and other records), and is social networking meets matrimonial meets classified ads.

The why

There are many reasons for this exclusivity. First, technical. “The invite-only system allows social networks and other Web platforms to control and stagger the growing load on their infrastructure,” says Abraham.

There is also a marketing and commercial aspect to it. Affluence.org, for instance, provides a forum for “exclusive, high quality content and advice from experts on subjects such as art, technology and travel”. Similarly, asmallworld has advertisements for accommodation (it also doubles up as a couch-surfing site of sorts, only these are all rich people living in the First World), among others. Both the technical and the commercial aspects, however, are tied to the larger, that is, sociological aspect of exclusivity. For instance, the “invite-only” system also creates a sense of exclusivity and then drives registrations, says Abraham.

Sociologically, the recipient of this exclusivity, according to Armano, “feels special and rewarded for their social status”. “Those who deal in exclusivity are looking to create smaller “higher quality” networks of individuals who they deem are connected in a way which benefits them,” he says. The way we configure our social network and allow access to our feeds on Twitter or the Facebook page are based on our individual priorities and objectives. “Exclusive social networks are meant for those with overlapping priorities and objectives. The generic social networking websites are meant for finding long-lost classmates and friends and weak ties in general. Exclusive social networks are for accumulating new contacts and building strong ties,” says Abraham.

The dichotomy about social networks, adds Armano, is that “in theory, they flatten social norms” and also make certain things more accessible—like personal publishing. “However, networks do not guarantee that you will find yourself in the desirable social circles. You still have to do that the old-fashioned way—networking,” he adds.

Read the original article published by Livemint here

For more details visit https://cis-india.org/news/world-is-your-oyster

The Wolf in Sheep's Clothing: Demanding your Data

Rekha Jain — 2020-11-10T17:44:13Z

This piece was originally published in The Economic Times Telecom, on 8 September, 2020.

The increasing digitalization of the economy and ubiquity of the Internet, coupled with developments in Artificial Intelligence (AI) and Machine Learning (ML) has given rise to transformational business models across several sectors. These developments have changed the very structure of existing sectors, with a few dominant firms straddling across many sectors. The position of these firms is entrenched due to the large amounts of data they have, and usage of sophisticated algorithms that deliver very targeted service/content and their global nature.

Such data based network businesses are generally multi-sided platforms subject to network effects and winner takes all phenomena, often, making traditional competition regulation inappropriate. In addition, there has been concern that such companies hurt competition as they are owners of large amounts of data collected globally, the very basis on which new services are predicated. Also since users have an inertia to share their data on multiple platforms, new companies find it very challenging to emerge. Several of the large companies are of US origin. Several regions/countries such as EU, UK, India are concerned that while these companies benefit from the data of their citizens or their devices, SMEs and other companies in their own countries find it increasingly difficult to remain viable or achieve scale. With the objective of supporting enterprises, including SMEs in their own countries, Europe, UK India are in different stages of data regulation initiatives.

In India, the Personal Data Protection (PDP) Bill, 2019 deals with the framework for collecting, managing and transferring of Personal Data of Indian citizens, including mandating sharing of anonymized data of individuals and non-personal data for better targeting of services or policy making. In addition, the Report by the Committee of Experts (CoE) on Non Personal Data (NPD) came up with a Framework for Regulating NPD. Since the NPD Report is a more recent phenomenon, this articles analyzes some aspects of it.

According to CoE, non-personal data could be of two types. First, data or information which was never about an individual (e.g. weather data). Second, data or information that once was related to an individual (e.g. mobile number) but has now ceased to be identifiable due to the removal of certain identifiers through the process of ‘anonymisation’. However, it may be possible to recover the personal data from such anonymized data and therefore, the distinction between personal and non-personal is not clean. In any case, the PDP bill 2019 deals with personal data. If the CoE felt that some aspect of personal data (including anonymized data) were not adequately dealt with, it should work to strengthen it. The current approach of the CoE is bound to create confusion and overlapping jurisdiction. Since anonymized data is required to be shared, there are disincentives to anonymization, causing greater risk to individual privacy.

A new class of business based on a “horizontal classification cutting across different industry sectors” is defined. This refers to any business that derives “new or additional economic value from data, by collecting, storing, processing, and managing data” based on a certain threshold of data collected/processed that will be defined by the regulatory authority that is outlined in the report. The CoE also recommends that “Data Businesses will provide, within India, open access to meta-data and regulated access to the underlying data” without any remuneration. Further, “By looking at the meta-data, potential users may identify opportunities for combining data from multiple Data Businesses and/or governments to develop innovative solutions, products and services. Subsequently, data requests may be made for the detailed underlying data”.

With increasing digitalization, today almost every business is a data business. The problem in such categorization will be with the definition of thresholds. It is likely that even a small video sharing app or an AR/VR app would store/collect/process/transmit more data than say a mid-sized bank in terms of data volumes. Further, with increasing embedding of IoT in various aspects of our lives and businesses (smart manufacturing, logistics, banking etc), the amount of data that is captured by even small entities can be huge.

The private sector, driven by profitability, identifies innovative business models, risks capital and finds unique ways of capturing and melding different data sets. In order to sustain economic growth, such innovation is necessary. The private sector would also like legal protection over these aspects of its businesses, including the unique IPR that may be embedded in the processing of data or its business processes. But mandating such onerous requirements on sharing by the CoE is going to kill any private initiative. Any regulatory regime must balance between the need to provide a secure environment for protecting data of incumbents and making it available to SMEs/businesses.

Meta data provides insights to the company’s databases and processes. These are source of competitive advantage for any company. Meta data is not without a context. The basis of demanding such disclosure is mandated with the proposed NPD Regulator who would evaluate such a purpose. In practice, purposes are open to interpretation and the structure of appeal mechanism etc is going to stall any such sharing. Would such mandates of sharing not interfere with the existing Intellectual Property Rights? Or the freedom to contract? Any innovation could easily be made available to a competitor that front-ends itself with a start-up. To mandate making such data available would not be fair. Further, how would the NPD regulator even ensure that such data is used for the purpose (which the proposed regulator is supposed to evaluate) that it is sought for? In Europe, where such data sharing mandates are being considered, the focus is on public data. For private entities, the sharing is largely based on voluntary contributions. Compulsory sharing is mandated only under restricted situations where market failure situations are not addressed through Competition Act and provided legitimate interest of the data holder and existing legal provisions are taken into account.

Further, the compliance requirements for such Data Businesses is very onerous and makes a mockery of “minimum government” framework of the government. The CoE recommends that all Data Businesses, whether government NGO, or private “to disclose data elements collected, stored and processed, and data-based services offered”. As if this was not enough, the CoE further recommends that “Every Data Business must declare what they do and what data they collect, process and use, in which manner, and for what purposes (like disclosure of data elements collected, where data is stored, standards adopted to store and secure data, nature of data processing and data services provided). This is similar to disclosures required by pharma industry and in food products”. Such disclosures are necessary in these industries as the companies in this sector deal with critical aspects of human life. But are such requirements necessary for all activities and businesses? As long as organizations collect and process data, in a legal manner, within the sectoral regulation, why should such information have to be “reported”? Further, such bureaucratic processes and reporting requirements are only going to be a burden to existing legitimate businesses and give rise to a thriving regulatory license raj.

Further questions that arise are: How is any compliance agency going to make sure that all the underlying metadata is made available in a timely manner? As companies respond to a dynamic environment, their analysis and analytical tools change and so does the metadata. This inherent aspect of businesses raises the question: At what point in time should companies make their meta-data available? How will the compliance be monitored?

Conclusion: The CoE needs to create an enabling and facilitating an environment for data sharing. The incentives for different types of entities to participate and contribute must be recognized. Adequate provisions for risks and liabilities arising out data sharing need to be thought through. National initiatives on data sharing should not create an onerous reporting regime, as envisaged by the CoE, even if digital.

DISCLAIMER: The views expressed are solely of the author and ETTelecom.com does not necessarily subscribe to it. ETTelecom.com shall not be responsible for any damage caused to any person/organisation directly or indirectly.

For more details visit https://cis-india.org/internet-governance/blog/the-wolf-in-sheeps-clothing-demanding-your-data

The Violence of Knowledge Cartels

nishant — 2013-01-18T07:33:53Z

We are all struck with a sense of loss, grief and shock since we heard of the death of Aaron Swartz, by suicide. People who have been his friends have written heart-felt obituaries, saluting his dreams and visions and unwavering commitment to a larger social good.

The blog post was published in the Hybrid Publishing Lab on January 17, 2013.

Colleagues who have worked with him and have been inspired by his achievements have documented the quirky intelligence and the whimsical genius that Swartz was. His fellow crusaders, who have stood by him in his impassioned battle against the piracy centred witch-hunt have helped spell out the legal and political conditions, which might not have directly led to this sorry end, but definitely have to be factored in his own negotiations with depression. All these voices have enshrined Aaron Swartz, the 26 year old boy-wonder who was just trying to make the world a better place where information is free and everybody has unobstructed access to knowledge. They have shown us that there is an ‘Aaron sized hole’ in the world, which is going to be difficult to fill. These are voices that need to be heard, remembered, and revisited beyond the urgency of the current tragedy and it is good to know that this archive of grief and outpouring of emotional support will stay as a living memory to the legend that Swartz had already become in his life-time.

However, I want to take this opportunity to not talk about Aaron Swartz. I am afraid that if I do, I will end up either factualising him – converting him into a string of data sets, adding to the already burgeoning details about his life, his achievements, and of course the gory court case that has already been the centre of so much rage and debate. I am also afraid that if I do talk about Aaron Swartz, I will end up making him into a creature of fictions – talking about his dreams and his visions and his outlook and making him a martyr for a cause, forgetting to make the distinction that Aaron died, not for a cause, but believing in it. I, like many people who were affected, in many degrees of separation and distance, am taking the moment to mourn the death of somebody who should have lived longer. But I want to take the moment of Aaron’s death to talk about heroisms and sacrifices and everyday politics of what he believed in.

Let me talk about Shyam Singh, who is as far removed from Swartz as possible. Shyam Singh is a 74 year-old-man in India, who runs a corner photocopying shop on the Delhi School of Economics campus in New Delhi. Singh is not your young, charismatic, educated, tech-savvy oracle. He spent a large part of his life – 3 decades – working at the University’s Central Research Library and the Ratan Tata Library, operating unwieldy machines that were panting to keep up with new innovations in technologies of digital reproduction. It took him thirty years of work to muster enough savings so that he could buy a couple of photocopying machines and start a small photocopying shop at Ramjas College in New Delhi. After his retirement, the Delhi School of Economics actually invited him to come and set up the Rameshwari Photocopying shop on the campus, for the students at the school. He had an official license from the University, for which he paid a sum of 10,000 Indian Rupees, to work on a profit model that depended on high volume and low costs. The shop was more or less a landmark for students and professors alike, who would come to get their course material photocopied out of books that they could almost never afford to buy and were not easily available in public lending libraries. The shop keeper also compiled course-packs, which allowed students to buy all the texts prescribed for their curricula (but not necessarily available in multiple or digital copies in the library), at affordable rates.

It came as quite a shock to Singh, when one day, he was told that a consortium of publishers – Oxford University Press, Cambridge University Press, and Taylor and Francis Group – had filed a case in the high court of New Delhi against him, claiming damages of 6 million Indian Rupees for wilful copyright infringement for commercial gains. Singh did not have the ideological apparatus that was available to Swartz, nor the competence to talk about the unfairness of the legal claim. He did, in several interviews, talk about India’s avowed policy on universal education and how he had always thought of himself as helping in that process of equal access to students who would otherwise have been unable to afford the education. The case against Singh is already in the courts, and the High Court has issued an injunction restraining him from providing copies of chapters from textbooks published by the three international publishers who have moved the court. And while he has found support from the academic, legal and student community from around the country, there is no denying that he is going to be fighting an expensive battle against a large Intellectual Property protection conglomeration of publishers who are all ready to make a ‘scapegoat’ and an ‘example’ of this small photocopy shop, in their efforts at enforcing paid access to scholarly and academic material in the country.

I desperately hope that Singh shall not find himself as persecuted as Swartz did, by the publishers, by the public prosecutors, and by an indifferent citizenry who is quite happy to benefit from the fruits that might fall out of this case about loosened Intellectual Property and symbolically support the idea that knowledge should be free, but do not think that this is a problem that affects them in particular. True, in both these instances, we have seen people oscillating between rue and rage, expressing their dissatisfaction with these market driven information cartels which refuse to unleash the information and knowledge that we all believe should be made free. But in those expressions of anger and shock, is also a denial of the fact that we have all been complicit in building, supporting and sustaining these worlds because doing otherwise would inconvenience our schedules, lives and careers. Swartz and Singh, in their own way, had to become the poster-children, the martyrs, for us to take notice about a battle that affects us uniformly but doesn’t feature in our everyday practices and conviction.

Intellectual Property and Openness are seen as legal battles for somebody else to fight. Even with academia and research, which is the most complicit in building these exploitative knowledge industries, there is very little discussion or even recognition of the untenable behemoths that we have been feeding in our quest for tenures, publications and popularity. For an everyday person, as you can imagine, this is even more removed from their quotidian life practices. The distancing and alienation gets even more acerbated by the fact that these battles are often fought silently. We have legal stalwarts fighting it out in court rooms. Academic scholars and researchers are drawing their pens and swords in academic journals. Political activists are championing their causes in conferences and summits. And in all of this, we have produced a gated activism, where the threshold of engagement and investment is so high that unless there are these dying and the wounded to hold out for public scrutiny, the world moves on, grumbling slightly at the restriction on torrent downloads or the unavailability of its favourite book in the local markets, but thinking that it has nothing to do with them. They are not even an audience to these battles. And if indeed, they are audiences, they are the kinds that go to a play, eat loudly out of crinkly wrappers, talk on their cellphones in the middle of the denouement and leave before the play ends, because they don’t want to miss their favourite TV show about dancing animals back at home.

I do not want to hyperbolise and so I will not endorse the often suggested idea that knowledge should be as free as air and water – for a lot of us who have been looking at the private-public nexus in developing globalised countries already know that free air and water are a myth and that there are heavy prices to be paid for them. But I do want to suggest that it is time to think of the knowledge wars as human wars, as deeply implicated in our understanding of who we are, what kind of societies we want to live in, and what worlds we want to build for the future generations to inherit. These are fights that are not only about getting things for free – they are about understanding what is sacred and central to our civilization impulse and disallowing a small clutch of private bodies to make their profits by selling it to us.

It is time to maybe look around and see how manipulations of power and the algebra of survival has made us support corrupt and corrupting systems that restrict free information and knowledge. It is time to learn about the issues at stake – from providing cheap drugs to those in underprivileged areas to offering conditions of affordable education for the masses – when we talk about intellectual property regimes. It is time to organize, question, re-evaluate our own everyday practices, and realise that the fights against intellectual property are not battles that are fought once-every-heroic-death. That these are things that we need to strive for on a daily basis, without the need of an external catalyst or a dramatic death of somebody who died believing in a cause that was supposed to make the world a better place for those in the audience.

The next time, let us not wait for shame, guilt, horror, or surprise to catalyse us in taking note of the growing restrictions on information and knowledge in our world. Let us not wait for the emergence of another Swartz or Singh, persecuted by exploitative knowledge cartels that do untold harm to our sense of being human and being free in information societies. And let us keep our fingers crossed, that wherever he is, Swartz has found peace, solace, and the freedom that he was fighting for, and that Singh does not suffer a fate that might denude him of his livelihood and life’s savings.

Nishant Shah (@latelyontime / nishant.shah@inkubator.leuphana.de )is an International Tandem Partner at the Centre for Digital Cultures, Leuphana University, Lueneburg, and Director-Research at the Centre for Internet and Society, Bangalore.

For more details visit https://cis-india.org/openness/blog-old/hybridpublishing-nishant-shah-january-17-2013-the-violence-of-knowledge-cartels

The US 301 Report – A Myopic View of IP Rights

nehaa — 2015-06-24T15:35:29Z

Varun Baliga and Nehaa Chaudhari discuss the 2015 US 301 Report, focussing on its narrow and convenient understanding of IP rights. A farrago of contradictions, it supports a rightsholder-centric view but not when the right, Geographical Indicator, is not to their liking. Similarly, the emphasis on the rights themselves gives short shrift to critical exceptions and limitations that also enhance and incentivize innovation, the ostensible purpose of IP.

The US Trade Representative ["USTR"] is the office in charge of the United States Special 301 Report ["301 Report"] - an annual report on the state of intellectual property rights in countries around the world. The Executive Summary of the 2015 Report states that it is conducted "pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (19 U.S.C. § 2242)". [1] The relevant excerpt of the provision states:

" The Trade Representative shall, by not later than the date by which countries are identified under subsection (a) of this section, transmit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, a report on actions taken under this section during the 12 months preceding such report, and the reasons for such actions, including a description of progress made in achieving improved intellectual property protection and market access for persons relying on intellectual property rights ."

The 2015 301 Report, much like its predecessors, prioritizes the existence of institutional mechanisms for the protection of intellectual property rights over the purported end goals of those rights, as argued by Shamnad Basheer.[2] The purported link between intellectual property and innovation, a key element of the CIS comment on the National IPR Policy , is not studied by the Report but simply assumed as a truism. In the usual criticism of India's laws, the Report notes that "IPR protection and enforcement challenges continue, and there are serious questions regarding the future of the innovative climate in India", operating on the assumption that IPR is the sole driving force of innovation. Instead, the Report is guided by the 'business climate' in a country as facilitated by its IP laws. To borrow from the EFF's incisive critique of this annual exercise, the 301 Report pressurizes India to criminalize the act of camcording in a cinema hall despite domestic copyright law that prohibits it subject to statutory exceptions.[3] Further, the Report finds India's compliance with the Berne Convention to be insufficient since 'business climate' favours as comprehensive an intellectual property regime as possible directed at the expansion of rights and the narrowing of exceptions critical to education and openness of knowledge.

International law on intellectual property is interpreted instrumentally by the drafters of the report. What this means is that IP is being viewed solely through the prism of national interest. A particularly egregious implication is being witnessed in the shift of preferred fora to discuss IP from bodies like the WIPO to trade-oriented platforms, a theme that is discussed later on in this piece. Further, Italy's notice and takedown regime is praised in the 2015 Report notwithstanding its procedure of obtaining an order of removal not from the courts but the Communications Regulatory Authority, against the Manila Principles of Intermediary Liability, an important albeit non-binding piece of state practice.[4]

Furthermore, the emphasis on the interests of rightsholders themselves coupled with enforcement seldom happens in a comparative context, in the Report. This means that the Report privileges the interests of rightsholders to the exclusion of any interest that the exceptions to copyright, for fair use and education for instance, may hold. The 2015 Report, for instance, notes positive developments in IP law as exclusively including the strengthening of the regulatory framework weighted in favour of rights. It fails to note the ratification of the Accessible Books Consortium or the Report of the UN Special Rapporteur Farida Shaheed on copyright policy,[5] implicitly signalling that the US does not consider these developments favourable. This is problematic at two level.

First, competing interests of free speech, open access to knowledge, education, public health are either downplayed or outright ignored. For example, the Report entirely ignores the work of WIPO on exceptions and limitations, and the Marrakesh Treat among the multilateral and plurilateral initiatives of note. Switzerland, for instance, is censured for the 2010 Swiss Federal Court decision that erred on the side of privacy by prohibiting Logistep from tracking IP addresses of entities accused of file-sharing.[6] Even in the emphasis on rightsholders, the 301 Report reeks of hypocrisy and doublespeak. Gabriel J. Michael notes that the 301 Report criticized the European Union for having too much protection of IP through geographical indicators (GI). So, IP protection appears to be an unreserved good as long as it's the right kind of IP as determined by the United States.

" For example, by any reasonably objective standard, the European Union offers very high levels of IP protection. Yet as recently as 2006, Special 301 listed the European Union on its watch list, citing "concerns" about the EU's geographical indication (GI) regime. Given that GIs are a form of intellectual property, USTR essentially placed the EU on its watch list for offering too much IP-or, if you prefer, the wrong kind of IP. Interestingly, this is a tacit admission by the U.S. that at least some kinds of IP can act as trade barriers ."[7]

Second, the 301 Report operates on the assumption that intellectual property is a right in rem. It does not even attempt to engage with the notion of IP as a public right. This is a direct implication of the methodology of the Report that privileges the simple existence of IP frameworks and enforcement mechanisms over a more substantive examination of the causal nexus between IP and its purported raison d'etre. Therefore, the interpretive approach of the 301 Report towards intellectual property law construes it not as a means to ends but as an end in itself.

What Does This Mean?

Finally, there are two implications of this approach to IP rights. The first is on the Report's words on India this year. Credit is given to India for establishing the High Level Working Group on Intellectual Property ["IPR Working Group"]. The purpose of the Working Group is said to be to "enable India to achieve its important domestic policy goals of increasing investment and stimulating innovation through, not at the expense of, IPR protection and enforcement". The façade of public interest behind which the 301 Report attempted to operate is finally off, one might say. IP exists, it seems, to facilitate not broader goals of public interest but investment and innovation within the myopic interests of 'rightsholders'. Paradoxically, however, the Report does call for more consultation on the First Draft of India's National IPR Policy - a noteworthy development, although inconsistent with the tenor of the rest of the Report. Second, the 301 Report as a reflection of American foreign policy goals is now being understood through the lens of ongoing trade negotiations. This steady shift in the preferable forum for IP negotiations from inclusive and democratic platforms, such as WIPO, towards restrictive and secretive ones, such as the WTO, is driven by regressive notions of IP as reflected in the 301 Report. Signalling a move towards a state-centric approach heralded by the United States, critical non-state actors from civil society find it increasingly difficult to exercise agency in these negotiations. While WIPO provides space for non-state actors such as non-governmental organizations to represent their positions and aid states with research, trade negotiations shunt civil society. The cloak and daggers approach of the United States Government towards the Trans-Pacific Partnership Treaty,[8] brought to some light with recent votes in the US Congress, negotiations contrasted with the democratic and open nature of the negotiations surrounding the Marrakech treaty underscores the important difference in approach.[9]

As a result, the civil society finds itself unable to counterbalance the power hierarchies entrenched in international relations as it has done, for example, with the attempted imposition of TRIPS-plus standards through bilateral and multilateral agreements. A state-centric approach makes it easier for larger economies to coerce smaller and dependent countries to draft laws with little regard for limitations and flexibilities that are key for innovation and standard of life in large swathes of Global South - peoples who cannot afford the costs of IP protected-innovation. Further, issues of IP and trade are not pertinent solely to states but are increasingly driven by and relevant to a raft of non-state actors. Any policy that does not actively seek to include these stakeholders in the decision making process is destined to fail. Therefore, on both principled and consequentialist grounds, the Special 301 Report deserves very little attention from the international community.

[1] Full text of the provision available at https://www.law.cornell.edu/uscode/text/19/2242.

[2] http://indianexpress.com/article/opinion/columns/these-rancid-rankings/99/

[3] https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found

[4] https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found ; https://www.manilaprinciples.org/

[5] http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/57 .

[6] http://arstechnica.com/tech-policy/2010/09/switzerland-gathering-ip-addresses-from-bittorrent-sites-illegal/

[7] https://topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/ ;

https://www.techdirt.com/articles/20140612/17435227561/ustrs-special-301-list-naughty-countries-without-strong-enough-patent-copyright-laws-is-complete-joke.shtml

[8] http://www.politico.com/magazine/story/2015/05/tpp-elizabeth-warren-labor-118068.html#.VWvcMk-qqko ; http://www.ip-watch.org/2015/04/23/divide-and-conquer-the-new-us-strategy-to-disentangle-the-tpp-negotiations/

[9] http://www.ip-watch.org/2013/12/19/wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries/

For more details visit https://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

The two-faced FRAND: Licensing and injunctive relief in ICTs

rohini — 2016-03-16T02:37:02Z

Important takeaways from the Indo-Europe Conference on Building a Sustainable IPR-ICT Ecosystem for Promoting Innovation, held in Bangalore in November 2015. Ericsson and the Indian Cellular Association presented an interesting set of views on FRAND licensing as well as injunctive relief, from seemingly opposite ends of the spectrum.

For the schedule, and more information, visit: http://www.ict-ipr.in/sipeit/conference

Ericsson’s position on patenting

-- Companies file numerous patent applications every year but 95% of all granted patents are never commercialised.

-- Ericsson manages to commercialise less than 5 percent of its patents.

-- A patent application could be rejected because it is not inventive or novel enough. Sometimes, a competitor manages to file for or obtain a patent for the same or similar technology a few days before Ericsson. Hence, it becomes prior art and Ericsson is unable to apply for a patent.

-- Monetising patents is a challenge because the technology they pertain to may not be good enough to be implemented. Either that, or nobody in the market wants the technology. There is no business aspect to it. Thus, patenting is expensive but but filing patents is a trial-and-error activity, which makes patenting financially cumbersome.

-- Ericsson feels the need to file a lot of patents, so that some of those patents could be useful from a business perspective. The rest are not commercialised.

-- The number of patents filed are rising in certain countries, but the numbers are misleading. Some patents are of poor quality and/ or unusable for commercialisation.

-- Ericsson gets approximately 5,000 inventions per year but files patent applications for only around 1,500 to 1,600, as the rest of the inventions do not have a business aspect to it. That is, Ericsson does not believe that the invention has good business potential or that there is little way for the market to adapt to it.

-- When companies invest heavily on research and development, and when they try to get (what will later become a) standardised technology released into the market, they should get fair returns on investment.

-- Indian companies need to invest in IPR. They need to do trial-and-error with respect to patenting. Only then, perhaps, some returns will accrue to them from owning patents.

-- Monetisation is besides selling products. It's a side effect of investment in research and development.

Ericsson’s position on FRAND licensing

-- No company apart from non-practising entities (NPEs) make all or most of its money from licensing. Ericsson makes most of its money from its products and not patents.

-- A large number of companies such as Ericsson have inventors based in India but the patents get registered abroad, [that is, the patents are not filed by the Indian subsidiary of Ericsson].

-- The percentage fee charged for a FRAND license is a low, single-digit number.

-- It's a wrong conception that FRAND licensing is very expensive and will shut down Indian companies. If there were no FRAND agreements, no Indian company would be able to put out a phone in the market.

-- It’s a wrong notion that FRAND agreements are prohibiting any company from the market. Indian companies will not be thrown out of the market by FRAND companies or companies that possess a lot of patents. No Indian company would be able to make and sell a phone if FRAND terms didn’t exist.

-- Ericsson is called a patent troll because it doesn’t make mobile phones anymore, but Ericsson built the technology it patented [unlike other patent trolls who buy and gather patents].

-- Ericsson has entered into more than licensing 100 agreements worldwide. Many of its licensees are repeat licensees.

-- The average selling price (ASP) of China-made phones sold in India is USD 50. This money goes to China. The ASP of high-end phones elsewhere is USD 250. Thus, a royalty of USD 15, calculated on the sale price of the end product, is not high.

Ericsson’s position on SEP litigation in India and injunctions

-- Nobody starts litigation in order to render an injunction in the end. The idea is to get the other party to the table and negotiate reasonable terms.

-- Litigation without injunction is a toothless tiger. The 'licensee' has the financial upper hand of not paying the licensor. So the former can keep prolonging negotiations.

-- When hold-out happens during licensing negotiations, litigation is used as a last resort. Injunctions are one of the possible outcomes of litigation.

-- India should play the SEP game. 5G development starts in January 2016 and India should try to get a stake in the development. Indian companies should try to get high quality patents.

[This suggestion seems to be for homegrown Indian companies as Ericsson also stated during the conference that, “A large number of companies such as Ericsson have inventors based in India but the patents get registered abroad”, that is, the patents are not filed by the Indian subsidiary of Ericsson.]

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Indian Cellular Association on injunctive relief, SEPs and FRAND licensing rates

-- When the standard setting process is collaborative, it is not logical to apply injunctive relief. It is against the ethos of the community.

--Telecommunication was the first industry to create monopolies, that is, standardisation in order to serve the customer better.

-- [With reference to SEP infringement litigation happening in India], the so-called infringer is not in league/ not competing with anything the patent holder is making and/ or selling.

-- The Competition Act in India is a wide-ranging law. It is not a restrictive trade practices act or a monopolies act. Patents are out of the purview of competition.

-- If a rights holder has acquired dominance as a part of the standard setting process, it is undoubtedly dominant. But if the rights holder's market practices are fair, then it is not violating any provisions of the Competition Act.

-- India has a “demographic dividend”. Legacy patent holders should look at India differently, and consider our purchasing power. If technology has to proliferate, then consumers in India cannot be burdened with the same royalties as the developed world.

-- We are trying to strengthen the TSDSI, India's indigenous standards development body [so that India can have a stake in international standards development].

-- The size of the global smartphone market today [2015] is USD 500 billion; India's mobile phone market is worth USD 16 billion. The mobile phone market share of China is pegged at USD 110 billion.

-- The mobile phone market in India will be worth USD 100 billion as of the year 2022 or 2023. For SEP royalties that reward the innovation of all the SEP holders, what will be the amount of royalty outflow? If the outflow is USD 500 billion [in the year 2022 or 2023], then the FRAND percentage be 0.5, which is not a single-digit number, unlike what was stated by Ericsson's representative.

-- In the projected figure of USD 100 billion, USD 30 billion accounts for display, USD 5 billion accounts for Lithium-ion battery, USD 5 billion for communication protocol, and the complete chipset stack for around USD 10 billion. If the FRAND rate were to be determined as a percentage of the price of the smallest practising component of the [finished] device, then it would be, say, 2% of USD 10 billion. If the FRAND rate were to be determined as a percentage of the end product, it would be 0.5% of USD 100 billion. But, if the FRAND percentage were a single-digit number, which could also be 9, then all the manufacturers except the rights holders would be snuffed out. China's mobile market is at USD 110 billion now and is projected to be at USD 400 billion in 2022, will be paying around USD 1 billion in total royalty outflows.

-- We also need to evaluate macro costs of research and development globally. How many times, how much, and for how many years do we need to reward innovation? What is the right return amount for inventors? All this will come up for serious debate with the patent office, the Competition Commission of India, the companies, and with the ministries. To ensure equitable growth and a level playing field, all these entities need to get involved.

-- There is deep distrust of rights holders due to opaqueness in their operations. For example, injunctive relief was sought against a small importer in an Indian court. The royalty rate demanded happened to be half of that demanded from another Indian importer in the same court against an interim injunction. The rights holder then claimed that the email sent to the former importer was a mistake and it revised the rates so that it was equal for both importers.

[This seems to be a reference to Ericsson suing Saral Communications for patent infringement in the Delhi High Court around the same time that Micromax complained to the Competition Commission of India alleging abuse of its dominant positon by Ericsson. The interim royalty rates quoted to Saral were half of the rates that Micromax was ordered to pay, rendering Ericsson's conduct discriminatory and in violation of FRAND. Ericsson subsequently claimed that the rates conveyed to Saral via email were a mistake and asked for the same interim royalty rates as it from Micromax. For more details refer to, Court document reveals discriminatory royalty demands by Ericsson for its wireless patents.

This is also an indication that the market practices of certain rights holders are not consistent, which not only results in a trust deficit but prevents the implementation of a harmonised FRAND rate across the world.]

****

Injunctive relief and FRAND licensing in Europe

-- According to the German Patent Act, there is automatic injunction as a consequence of patent infringement. No injunctive relief is granted for SEPs anymore in Germany, if certain conditions are fulfilled by the willing licensee.

-- Long-standing provisions exist in Germany for calculating royalties when multiple patents and multiple patent holders exist. FRAND licensing for one patent is useless. There should be FRAND for the whole complex.

-- As per the Huawei decision of the European Court of Justice, dated 16 July 2015, a willing licensee can make an offer for the price it wishes to pay to use a patent under the condition that it deposits an amount in the bank as a security for the licensor. Then the licensor cannot enforce the injunction anymore.

****

Open data in patenting

If the data available with patent offices across the world is made publicly accessible by the respective governments in a way that it is possible to search, understand, and visualise it, then there could be an explosion in innovation.

The trade-off between access and innovation

Inexpensive phones of sub-standard quality break down or stop working sooner than good quality phones. This also destroys incentives for innovators who want to bring high quality phones into the market. So the inexpensive, low-quality phones is a trade-off between having access to mobile phones today and experiencing the fruits of innovation tomorrow. The Hatch Waxman Act in the US addresses this issue by allowing imitators to come into the economy through an authorised mechanism, which also restores some incentives for innovation.

The tradeoff is also addressed better by implementing an evidence-based approach instead of a one-size-fits-all solution. Some regions require an emphasis on access. In other places that do not lack access due to their geographical location and clusters of innovators, IPRs can be implemented more strictly. Such a segmented approach to regions and product-markets can be crafted into policy.

The challenge of harmonisation

Denmark does not have a dedicated intellectual property office. Work on IP is integrated in the government offices for trade, growth, economy, and so on. IPR is strongly interlaced with competition law in the country. Similarly, the Department of Telecom, Department of Health, the Indian Patent Office and the Competition Commission of India should work in tandem to avoid conflict in the way they address cases and issues.

Patenting for universities

Indian university do not carry out patenting as much as their counterparts in other countries. The DieTY has schemes for supporting patent filing by universities and academic institutions.

Number of patents granted annually to:

Xingua University, China: 1,000

MIT, United States: 4,000

IIT and IISC, India: Between 100 and 200

Technology areas and number of SEPs in Europe

Telecom via public network: 4,284

IT and Internet: 534

Audio/ video systems, coding, et cetera.: 221

Security, cryptography, biometrics: 182

(Source: Competition Policy Brief, June 2014, Issue 8, Standard Essential Patents, European Commission)

***

All comments in square brackets and italics by the author.

For more details visit https://cis-india.org/a2k/blogs/two-faced-frand-licensing-and-injunctive-relief-in-icts

The tragedy of the unused commons

Shyam Ponappa — 2018-01-05T14:50:56Z

Hope for the good sense and guts to handle it.

The article was published by Business Standard on December 6, 2017 and in the Organizing India Blogspot on the same day.

“The tragedy of the commons” as you may recall, refers in economics to the overexploitation of shared resources because of unregulated access. The tragedy results from shared resources being depleted or degraded because users pursue their own interests, contrary to the common good. This leads to unsustainable depletion or degradation. The atmosphere and oceans are examples of such shared resources.

There are also reverse situations, in which resources that are available for the benefit of society are unused, to the detriment of the common good. In such cases, there are opportunity costs from disuse that result in detriments, because the benefits of use are foregone. India’s abundant sunlight is a good example. Given its abundance, a reasonable expectation might be that extensive innovation and market organisation would be focused on harvesting this potential energy. Alas, India is a laggard in innovation relating to solar power.

Another resource that is neither depleted nor degraded by usage but underused is radio frequency spectrum. The opportunity cost for unused spectrum is therefore even greater than for a degradable mineral resource such as coal, resulting in an extreme tragedy of unused commons.

Some Issues Need Resolution

The situation today is that swathes of spectrum are unused because of our inability, perhaps unwillingness, to develop the appropriate regulations and organisation to benefit from them. This is true of all unused and underused radio frequency spectrum, although some of it is the most useful means for broadband connectivity for the majority of our rural and semi-urban population. It would also give more urban users less expensive access. For both sets, judicious use would enhance productivity and improve living conditions.
The entire thrust of the Digital India initiative requires these enabling policies and procedures, that is, the administrative rules and regulations that would enable the use of presently unused and therefore wasted spectrum. There are, of course, many other steps required than merely putting in place the regulations. The market structures and organisation have to be created under government leadership with other stakeholders in industry and civil society that would permit sustainable use of “the commons” — namely, the spectrum, if it were a shared resource instead of being apportioned in silos.

At present, private operators in this sector, except one, have too much debt, very low profitability, and insufficient network coverage. Services can be good in some locations, but countrywide, are spotty and not universally accessible. Yet, operators apparently want auctions, not now but at some time in the future (perhaps next year), for the essential resource that is the prerequisite for building the coverage that they don’t have although sorely needed, as it has been for years. While clearly impractical because of how auctions soak up capital, limiting subsequent investment in networks because of the deprivation of capital, operators reportedly want this in order to reduce competitive threats.

Another baffling aspect of our reality is that the administration and regulator took no effective action to prevent the destruction of existing market structures in the telecom sector when there was a disruptive new entrant. With overwhelming resources from unrelated activities, unsustainable strategies and tactics could be construed as jeopardising India’s current and future productivity. Meanwhile, the administration and the regulator dithered, debating theoretical concepts of what constitutes anticompetitive or predatory activity, and the judiciary remained on the sidelines.

Yet another aspect of puzzling inactivity is that there have been no steps to test certain promising technologies for permitting their use through appropriate policies in India, such as TV White Space or the development of MIMO — Multiple-Input-Multiple-Output — using arrays of antennas, yielding (a) greater throughput (b) over longer distances (c) to more users, thereby improving spectrum capacity for broadband. While initial tests for TV White Space, conducted after a delay of several years, have been promising (disclosure: the author was associated with some), proposals for larger follow-up trials have stalled. Without these, policymakers can’t even consider policies that would enable the development and use of TV White Space devices for extending optical fibre from gram panchayats to hundreds of thousands of village users.

In the press, confusing articles short on facts make policy formulation even more difficult and risky in this already technically and financially complex space. One instance is an article about Maharashtra’s Village Social Transformation initiative avoiding TV White Space because this technology has problems with security clearance, in addition to Foreign Contribution Regulation Act clearance for Microsoft’s sponsorship of the pilot. The fact that the problem in India is in getting permission to use TV White Space for purposes other than for Doordarshan’s broadcasts finds no mention. The security risk in these frequencies is the same as in other frequencies, and transmission in any band can be monitored.

Another article suggests the government is considering allocating a high-speed wireless frequency band of unused spectrum (V band or 60 GHz, which is like short-range wireless optic fibre) on a first come, first served basis “which is a gross violation of the Supreme Court order”. Somewhere down the page is a surmise that since the Broadband India Forum is advocating de-licencing of this band and foreign companies support it, this “means that it should be allocated without auction on first come, first served basis”. The Broadband India Forum in its white paper clearly recommends aligning with an international standard, the Harmonised European Standard.1
According to this, low power equipment within specified emission limits in this band doesn’t need a licence. Wi-Fi is de-licenced spectrum that is open access and not allocated. Other de-licenced spectrum would not need to be allocated either, although in India, bands such as 60 GHz could be restricted to authorised operators.

It needs government intervention to cut the Gordian knot and initiate discussions on pooling spectrum for networks and working out practicable, sustainable options. Here’s hoping good sense and guts will help to make a start.

Shyam (no-space) Ponappa at gmail dot com
1: "V band - 60 GHz: The Key to Affordable Broadband in India"
White Paper by Broadband India Forum, November 9, 2016http://www.broadbandindiaforum.com/img/White%20Paper%20on%20V-BAND%20Revised%20Final.pdf

For more details visit https://cis-india.org/telecom/blog/business-standard-december-6-2017-shyam-ponappa-the-tragedy-of-the-unused-commons

The Technology Behind Big Data

praskrishna — 2016-12-02T01:23:26Z

For more details visit https://cis-india.org/internet-governance/files/technology-behind-big-data.pdf

The Technology behind Big Data

Geethanjali Jujjavarapu and Udbhav Tiwari — 2016-12-04T09:53:43Z

The authors undertakes a high-level literature review of the most commonly used technological tools and processes in the big data life cycle. The big data life cycle is a conceptual construct that can be used to study the various stages that typically occur in collecting, storing and analysing big data, along with the principles that can govern these processes.

Download the Paper (PDF, 277 kb)

Introduction

Defining big data is a disputed area in the field of computer science^{^[1]}, there is some consensus on a basic structure to its definition^{^[2]}. Big data is data that is collected in the form of datasets that has three main criteria: size, variety & velocity, all of which operate at an immense scale^{^[3]}. It is ‘big’ in size, often running into petabytes of information, has vast variety within its components, and is created, captured and analysed at an incredibly rapid velocity. All of this also makes big data difficult to handle using traditional technological tools and techniques.

This paper will attempt to perform a high-level literature review of the most commonly used technological tools and processes in the big data life cycle. The big data life cycle is a conceptual construct that can be used to study the various stages that typically occur in collecting, storing and analysing big data, along with the principles that can govern these processes. The big data life cycle consists of four components, which will also be the key structural points of the paper, namely: Data Acquisition, Data Awareness, Data Analytics & Data Governance.⁴ The paper will focus on the aspects that the author believes are relevant for analysing the technological impact of big data on both technology itself and society at large.

Scope: The scope of the paper is to study the technology used in big data using the "Life Cycle of Big Data" as model structure to categorise & study the vast range of technologies that are involved in big data. However, the paper will be limited to the study of technology related directly to the big data life cycle. It shall specifically exclude the use/utilisation of big data from its scope since big data is most often being fed into other, unrelated technologies for consumption leading to rather limitless possibilities.

Goal: Goal of the paper is twofold: a.) to use the available literature on the technological aspects of big data, to perform a brief overview of the technology in the field and b.) to frame the relevant research questions for studying the technology of big data and its possible impact on society.

Data Acquisition

Acquiring big data has two main sub components to it, the first being sensing the existence of the data’ itself and the second, the stage of collecting and storing this data. Both of these subcomponents are incredibly diverse fields, with lots of rapid change occurring in the technology utilised to carry out these tasks. The section will provide a brief overview of the subcomponents and then discuss the technology used to fulfil the tasks.

Data Sensing

Data does not exist in a vacuum and is always created as a part of a larger process, especially in the aspect of modern technology. Therefore, the source of the data itself plays a vital role in determining how it can be captured and analysed in the larger scheme of things. Entities constantly emit information into the environment that can be utilised for the purposes of big data, leading to two main kinds of data: data that is “born digital” or “born analogue.”^{^[4]}

Born Digital Data

Information that is “born digital,” is created, by a user or by a digital system, specifically for use by a computer or data‐processing system. This is a vast range of information and newer fields are being added to this category on a daily basis. It includes, as a short, indicative list: email and text messaging, any form of digital input, including keyboards, mouse interactions and touch screens, GPS location data, data from daily home appliances (Internet of Things), etc. All of this data can be tracked and tagged to users as well as be aggregated to form a larger picture, massively increasing the scope of what may constitute the ‘data’ in big data.

Some indicative uses of how such born digital data is catalogued by technological solutions on the user side, prior to being sent for collection/storage are:

a.) Cookies - There are small, often just text, files that are left on user devices by websites in order to that visit, task or action (for example, logging into an email account) with a subsequent event.^{^[5]} (for example, revisiting the website)

b.) Website Analytics^{^[6]} - Various services, such as Google Analytics, Piwik, etc., can use JavaScript and other web development languages to record a very detailed, intimate track of a user's actions on a website, including how long a user hovers above a link, the time spent on the website/application and in some cases, even the time spent specific aspects of the page.

c.) GPS^{^[7]} - With the almost pervasive usage of smartphones with basic location capabilities, GPS sensors on these devices are used to provide regular, minute driven updates to applications, operating systems and even third parties about the user's location. Modern variations such as A-GPS can be used to provide basic positioning information even without satellite coverage, vastly expanding the indoor capabilities of location collection.

All of these instances of sensing born digital data are common terms, used in daily parlance by billions of people from all over the world, which is a symbolic of just how deeply they have pervaded into our daily lifestyle. Apart from privacy & security concerns this in turn also leads to an exponential increase in the data available to collect for any interested party.

Sensor Data

Information is said to be “analogue” when it contains characteristics of the physical world, such as images, video, heartbeats, etc. Such information becomes electronic when processed by a “sensor,” a device that can record physical phenomena and convert it into digital information. Some examples to better illustrate information that is born analogue but collected via digital means are:

a.) Voice and/or video content on devices - Apart from phone calls and other forms communication, video and voice based interactions have started to regularly be captured to provide enhanced services. These include Google Now^{^[8]}, Cortana^{^[9]} and other digital assistants as well as voice guided navigation systems in cars, etc.

b.) Personal health data such as heartbeats, blood pressure, respiration, velocity, etc. - This personal, potentially very powerful information is collected by dedicated sensors on devices such as Fitbit^{^[10]}, Mi Band^{^[11]}, etc. as well as by increasingly sophisticated smartphone applications such as Google Fit that can do so without any special device.

c.) Camera on Home Appliances - Cameras and sensors on devices such as video game consoles (Kinect^{^[12]} being a relevant example) can record detailed human interactions, which can be mined for vast amounts of information apart from carrying out the basic interactions with the devices itself.

While not as vast a category as born digital data, the increasingly lower costs of technology and ubiquitous usage of digital, networked devices is leading to information that was traditionally analogue in nature to be captured for use at a rapidly increasing rate.

Data Collection & Storage

Traditional data was normally processed using the Extract, Transform, Load (ETL) methodology, which was used to collect the data from outside sources, modify the data to fit needs, and then upload the data into the data storage system for future use.^{^[13]} Technology such as spreadsheets, RDBMS databases, Structured Query Languages (SQL), etc. were all initially used to carry out these tasks, more often than not manually. ^{^[14]}

However, for big data, the methodology traditionally followed is both inefficient and insufficient to meet the demands of modern use. Therefore, the Magnetic, Agile, Deep (MAD) process is used to collect and store data^{^[15]}^{^[16]}. The needs and benefits of such a system are: attracting all the data sources regardless of their quality (magnetic), logical and physical contents of storage systems adapting to the rapid data evolution in big data (agile) and complex algorithmic statistical analysis required of big data on a very short notice^{^[17]}. (deep)

The technology used to perform data storage using the MAD process requires vast amount of processing power, which is very difficult to create in a single, physical space/unit for nonstate or research entities, who cannot afford supercomputers. Therefore, most solutions used in big data rely on two major components to store data: distributed systems and Massive Parallel Processing^{^[18]} (MPP) that run on non-relational (in-memory) database systems. Database performance and reliability is traditionally gauged using pure performance metrics (FLOPS per second, etc.) as well as the Atomicity, consistency, isolation, durability (ACID) criteria.^{^[19]} The most commonly used database systems for big data applications are given below. The specific operational qualities and performance of each of these databases is beyond the scope of this review but the common criteria that makes them well suited for big data storage have been delineated below.

Non-relational databases

Databases traditionally used to be structured entities that operated solely on the ability to correlate information stored in them using explicitly defined relationships. Even prior to the advent of big data, this outlook was turning out to be a limiting factor in how large amounts of stored information could be leveraged, this led to the evolution of non relational database systems. Before going into them in detail, a basic primer on their data transfer protocols will be helpful in understanding their operation.

A protocol is a model that structures instructions in a particular manner so that it can be reproduced from one system to another^{^[20]}^{^[21]}. The protocols which govern technology in the case of big data have gone through many stages of evolution, starting off with simple HTML based systems^{^[22]}, which then evolved to XML driven SOAP systems^{^[23]}, which led to JavaScript Object Notation, or JSON^{^[24]}, the currently used form for in most big database systems. JSON is an open format used to transfer data objects, using human-readable text and is the basis for most of the commonly used non-relational database management systems. Examples of Non-relational databases also known as NoSQL databases, include MongoDB^{^[25]}, Couchbase^{^[26]}, etc. They were developed for both managing as well as storing unstructured data. They aim for scaling, flexibility, and simplified development. Such databases rather focus on the high-performance scalable data storage, and allow tasks to be written in the application layer instead of databases specific languages, allowing for greater interoperability.^{^[27]}

In-Memory Databases

In order to overcome performance limitation of traditional database systems, some modern databases now use in-memory databases. These systems manage the data in the RAM memory of the server, thus eliminating storage disk input/output. This allows for almost realtime responses from the database, in comparisons to minutes or hours required on traditional database systems. This improvement in the performance is so massive that, entirely new applications are being developed for using IMDB systems.^{^[28]} These IMDB systems are also being used for advanced analytics on big data, especially to increase the access speed to data and increase the scoring rate of analytic models for analysis.^{^[29]} Examples of IMDB include VoltDB^{^[30]}, NuoDB^{^[31]}, SolidDB^{^[32]} and Apache Spark^{^[33]}.

Hybrid Systems

These are the two major systems used to store data prior to it being processed or analysed in a big data application. However, the divide between data storage and data management is a slim one and most database systems also contain various unique attributes that cater them to specific kinds of analysis. (as can be seen from the IMDB example above) One example of a very commonly used Hybrid system that deals with storage as well as awareness of the data is Apache Hadoop³³, which is detailed below.

Apache Hadoop

Hadoop consists of two main components: the HDFS for the big data storage, and MapReduce for big data analytics, each of which will be detailed in their respective section.

The HDFS^{^[34]}^{^[35]} storage function in Hadoop provides a reliable distributed file system, stored across multiple systems for processing & redundancy reasons. The file system is optimized for large files, as single files are split into blocks and spread across systems known as cluster nodes.^{^[36]} Additionally, the data is protected among the nodes by a replication mechanism, which ensures availability even if any node fails. Further, there are two types of nodes: Data Nodes and Name Nodes.^{^[37]} Data is stored in the form of file blocks across the multiple Data Nodes while the Name Node acts as an intermediary between the client and the Data Node, where it directs the requesting client to the particular Data Node which contains the requested data.

This operating structure for storing data also has various variations within Hadoop such as HBase for key/value pair type queries (a NoSQL based system), Hive for relational type queries, etc. Hadoop’s redundancy, speed, ability to run on commodity hardware, industry support and rapid pace of development have led to it being almost co-equivalently associated with big data.^{^[38]}

Data Awareness

Data Awareness, in the context of big data, is the task of creating a scheme of relationships within a set of data, to allow different users of the data to determine a fluid yet valid context and utilise it for their desired tasks.^{^[39]} It is a relatively new field, in which most of the work is currently being done on semantic structures to allow data to gain context in an interoperable format, in contrast to the current system where data is given context using unique, model specific constructs.^{^[40]} (such as XML Schemes, etc.)

Some of the original work on this field was carried out in the form of utilising the Resource Description Framework (RDF), which was built primarily to allow describing of data in a portable manner, especially being agnostic towards platforms and systems for Semantic Web at the W3C. SPARQL is the language used to implement RDF based designs but both largely remain underutilised in both the public domain as well as big data. Authors such as Kurt

Cagle^{^[41]} and Bob DuCharme^{^[42]} predict its explosion in the next couple of years. Companies have also started realising the value of interoperable context, with Oracle Spatial^{^[43]} and IBM’s DB2^{^[44]} already including RDF and SPARQL support in the past 3 years.

While underutilised, the rapid developments taking place in the field will make the impact that data awareness may have on big data as big as Hadoop and maybe even SQL. Some aspects of it are already beginning to be used in Artificial Intelligence, Natural Language Processing, etc. with tremendous scope for development.^{^[45]}

Data Processing & Analytics

Data Processing largely has three primary goals: a. determines if the data collected is internally consistent; b. make the data meaningful to other systems or users using either metaphors or analogy they can understand; and (what many consider most importantly) provide predictions about future events and behaviours based upon past data and trends.^{^[46]}

Being a very vast field with rapidly changing technologies governing its operation, this section will largely concentrate on the most commonly used technologies in data analytics.

Data analytics requires four primary conditions to be met in order to carry out effective processing: fast, data loading, fast query processing, efficient utilisation of storage and adaptivity to dynamic workload patterns. The analytical model most commonly associated with meeting this criteria and with big data in general is MapReduce, detailed below. There are other, more niche models and algorithms (such as Project Voldemort^{^[47]} used by LinkedIn), which are used in big data but they are beyond the scope of the review, and more information about them can be read at article linked in the previous citation. (Reference architecture and classification of technologies, products and services for big data system)

MapReduce

MapReduce is a generic parallel programming concept, derived from the “Map” and “Reduce” of functional programming languages, which makes it particularly suited for big data operations. It is at the core of Hadoop^{^[48]}, and performs the data processing and analytics functions in other big data systems as well.^{^[49]} The fundamental premise of MapReduce is scaling out rather than scaling up, i.e., (adding more numerical resources, rather than increasing the power of a single system)^{^[50]}

MapReduce operates by breaking a task down into steps and executing the steps in parallel, across many systems. This comes with two advantages, a reduction in the time needed to finish the task and also a decrease in the amount of resources one has to expend to perform the task, in both power and energy. This model makes it ideally suited for the large data sets and quick response times required of big data operations generally.

The first step of a MapReduce job is to correlate the input values to a set of keys/value pairs as output. The “Map” function then partitions the processing tasks into smaller tasks, and assigns them to the appropriate key/value pairs.^{^[51]} This allows unstructured data, such as plain text, to be mapped to a structured key/value pair. As an example, the key could be the punctuation in a sentence and the value of the pair could be the number of occurrences of the punctuation overall. This output of the Map function is then passed on “Reduce” function.^{^[52]} Reduce then collects and combines this output, using identical key/value pairs, to provide the final result of the task.^{^[53]} These steps are carried using the Job Tracker & Task Tracker in Hadoop but different systems have different methodologies to carry out similar tasks.

Data Governance

Data Governance is the act of managing raw big data as well as the processed information that arises from big data in order to meet legal, regulatory and business imposed requirements. While there is no standardized format for data governance, there have been increasing call with various sectors (especially healthcare) to create such a format to ensure reliable, secure and consistent big data utilisation across the board. The following tactics and techniques have been utilised or suggested for data governance, with varying degrees of success:

Zero-knowledge systems: This technological proposal maintains secrecy with respect to the low-level data while allowing encrypted data to be examined for certain higherlevel abstractions.^{^[54]} For the system to be zero-knowledge, the client’s system will have to encrypt the data and send it to the storage provider. Due to this, the provider stores the data in the encrypted format and cannot decipher the same unless he/she is in possession of the key which will decrypt the data into plaintext. This allows the individual to store his data with a storage provider while also maintaining anonymity of the details contained in such information. However, these are currently just beginning to be used in simple situations. As of now, they are not expandable to unstructured and complex cases and have to be developed marginally before they can be used for research and data mining purposes.
Homomorphic encryption: Homomorphic encryption is a privacy preserving technique which performs searches and other computations over data that is encrypted while also protecting the individual’s privacy.^{^[55]} This technique has however been considered to be impractical and is deemed to be an unlikely policy alternative for near future purposes in the context of preserving privacy in the age of big data.^{^[56]}
Multi-party computation: In this technique, computation is done on encrypted distributed data stores.^{^[57]} This mechanism is closely related to homomorphic encryption where individual data is kept private using encryption algorithms called “collusion-robust” while the same is used to calculate statistics.^{^[58]} The parties involved are aware of some private data and each of them use a protocol which produces results based on the information they are aware of and the information they are not aware of, without revealing the data they are not already aware of.^{^[59]} Multi-party computations thus help in generating useful data for statistical and research purposes without compromising the privacy of the individuals.

Differential Privacy: Although this technological development is related to encryption, it follows a different technique. Differential privacy aims at maximizing the precision of computations and database queries while reducing the identifiability of the data owners who have records in the database, usually through obfuscation of query results.^{^[60]} This is widely applied today in the existence of big data in order to ensure preservation of privacy while trying to reap the benefits of large scale data collection.^{^[61]}
Searchable encryption: Through this mechanism, the data subject can make certain data searchable while minimizing exposure and maximizing privacy.^{^[62]} The data owner can make his information available through search engines by providing the data in an encrypted format but by adding tags consisting of certain keywords which can be deciphered by the search engine. This encrypted data shows up in the search results when searched with these particular keywords but can only be read when the person is in possession of the key which is required for decrypting the information.

This technique of encryption provides maximum security to the individual’s data and preserves privacy to the greatest possible extent.

K-anonymity: The property of k-anonymity is being applied in the present day in order to preserve privacy and avoid re-identification.^{^[63]} A certain data set is said to possess the property of k-anonymity if individual specific data can be released and used for various purposes without re-identification. The analysis of the data should be carried out without attributing the data to the individual to whom it belongs and should give scientific guarantees for the same.
Identity Management Systems: These systems enable the individuals to establish and safeguard their identities, explain those identities with the help of attributes, follow the activity of their identities and also delete their identities if they wish to.^{^[64]} It uses cryptographic schemes and protocols to make anonymous or pseudonymous the identities and credentials of the individuals before analysing the data.
Privacy Preserving Data Publishing: This is a method in which the analysts are provided with the individual’s personal information with the ability to decipher particular information from the database while preventing the inference of certain other information which might lead to a breach of privacy.^{^[65]} Data which is essential for the analysis will be provided for processing while sensitive data will not be disclosed. This tool primarily focuses on microdata.
Privacy Preserving Data Mining: This mechanism uses perturbation methods and randomization along with cryptography in order to permit data mining on a filtered version of the data which does not contain any form of sensitive information. PPDM focuses on data mining results unlike PPDP.^{^[66]}

Conclusion

Studying the technology surrounding big data has led to two major observations: the rapid pace of development in the industry and the stark lack of industry standards or government regulations directed towards big data technologies. These observations have been the primary motivating factor for framing further research in the field. Understanding how to deal with big data technologically, rather than just the potential regulation of possible harms after the technological processes have been performed might be critical for the human rights dialogue as these processes become even more extensive, opaque and technologically complicated.

[1] EMC: Data Science and Big Data Analytics. In: EMC Education Services, pp. 1–508 (2012)

[2] Bakshi, K.: Considerations for Big Data: Architecture and Approaches. In: Proceedings of the IEEE Aerospace Conference, pp. 1–7 (2012)

[3] Adams, M.N.: Perspectives on Data Mining. International Journal of Market Research 52(1), 11–19 (2010) ⁴ Elgendy, N.: Big Data Analytics in Support of the Decision Making Process. MSc Thesis, German University in Cairo, p. 164 (2013)

[4] Big Data and Privacy: A Technological Perspective - President’s Council of Advisors on Science and

Technology (May 2014)

[5] Chen, Hsinchun, Roger HL Chiang, and Veda C. Storey. "Business Intelligence and Analytics: From Big Data to Big Impact." MIS quarterly 36.4 (2012): 1165-1188.

[6] Chandramouli, Badrish, Jonathan Goldstein, and Songyun Duan. "Temporal analytics on big data for web advertising." 2012 IEEE 28th international conference on data engineering. IEEE, 2012.

[7] Laurila, Juha K., et al. "The mobile data challenge: Big data for mobile computing research." Pervasive Computing. No. EPFL-CONF-192489. 2012.

[8] Lazer, David, et al. "The parable of Google flu: traps in big data analysis." Science 343.6176 (2014): 12031205.

[9] ibid

[10] Banaee, Hadi, Mobyen Uddin Ahmed, and Amy Loutfi. "Data mining for wearable sensors in health monitoring systems: a review of recent trends and challenges." Sensors 13.12 (2013): 17472-17500.

[11] ibid

[12] Chung, Eric S., John D. Davis, and Jaewon Lee. "Linqits: Big data on little clients." ACM SIGARCH Computer Architecture News. Vol. 41. No. 3. ACM, 2013.

[13] Kornelson, Kevin Paul, et al. "Method and system for developing extract transform load systems for data warehouses." U.S. Patent No. 7,139,779. 21 Nov. 2006.

[14] Henry, Scott, et al. "Engineering trade study: extract, transform, load tools for data migration." 2005 IEEE Design Symposium, Systems and Information Engineering. IEEE, 2005.

[15] Cohen, Jeffrey, et al. "MAD skills: new analysis practices for big data." Proceedings of the VLDB Endowment

[16] .2 (2009): 1481-1492.

[17] Elgendy, Nada, and Ahmed Elragal. "Big data analytics: a literature review paper." Industrial Conference on Data Mining. Springer International Publishing, 2014.

[18] Wu, Xindong, et al. "Data mining with big data." IEEE transactions on knowledge and data engineering 26.1 (2014): 97-107.

[19] Supra Note 17

[20] Hu, Han, et al. "Toward scalable systems for big data analytics: A technology tutorial." IEEE Access 2 (2014):

[21] -687.

[22] Kurt Cagle, Understanding the Big Data Lifecycle - LinkedIn Pulse (2015)

[23] Coyle, Frank P. XML, Web services, and the data revolution. Addison-Wesley Longman Publishing Co., Inc., 2002.

[24] Pautasso, Cesare, Olaf Zimmermann, and Frank Leymann. "Restful web services vs. big'web services: making the right architectural decision." Proceedings of the 17th international conference on World Wide Web. ACM, 2008.

[25] Banker, Kyle. MongoDB in action. Manning Publications Co., 2011

[26] McCreary, Dan, and Ann Kelly. "Making sense of NoSQL." Shelter Island: Manning (2014): 19-20.

[27] ibid

[28] Zhang, Hao, et al. "In-memory big data management and processing: A survey." IEEE Transactions on Knowledge and Data Engineering 27.7 (2015): 1920-1948.

[29] ibid

[30] ibid

[31] Supra Note 20

[32] Ballard, Chuck, et al. IBM solidDB: Delivering Data with Extreme Speed. IBM Redbooks, 2011.

[33] Shanahan, James G., and Laing Dai. "Large scale distributed data science using apache spark." Proceedings of the 21th ACM SIGKDD International Conference on Knowledge Discovery and Data Mining. ACM, 2015. ³³ Shvachko, Konstantin, et al. "The hadoop distributed file system." 2010 IEEE 26th symposium on mass storage systems and technologies (MSST). IEEE, 2010.

[34] Borthakur, Dhruba. "The hadoop distributed file system: Architecture and design." Hadoop Project Website

[35] .2007 (2007): 21.

[36] ibid

[37] ibid

[38] Zikopoulos, Paul, and Chris Eaton. Understanding big data: Analytics for enterprise class hadoop and streaming data. McGraw-Hill Osborne Media, 2011.

[39] Bizer, Christian, et al. "The meaningful use of big data: four perspectives--four challenges." ACM SIGMOD Record 40.4 (2012): 56-60.

[40] Kaisler, Stephen, et al. "Big data: issues and challenges moving forward." System Sciences (HICSS), 2013 46th Hawaii International Conference on. IEEE, 2013.

[41] Supra Note 21

[42] DuCharme, Bob. "What Do RDF and SPARQL bring to Big Data Projects?." Big Data 1.1 (2013): 38-41.

[43] Zhong, Yunqin, et al. "Towards parallel spatial query processing for big spatial data." Parallel and

Distributed Processing Symposium Workshops & PhD Forum (IPDPSW), 2012 IEEE 26th International. IEEE, 2012.

[44] Ma, Li, et al. "Effective and efficient semantic web data management over DB2." Proceedings of the 2008 ACM SIGMOD international conference on Management of data. ACM, 2008.

[45] Lohr, Steve. "The age of big data." New York Times 11 (2012).

[46] Pääkkönen, Pekka, and Daniel Pakkala. "Reference architecture and classification of technologies, products and services for big data systems." Big Data Research 2.4 (2015): 166-186.

[47] Sumbaly, Roshan, et al. "Serving large-scale batch computed data with project voldemort." Proceedings of the 10th USENIX conference on File and Storage Technologies. USENIX Association, 2012.

[48] Bar-Sinai, Michael. "Big Data Technology Literature Review." arXiv preprint arXiv:1506.08978 (2015).

[49] ibid

[50] Condie, Tyson, et al. "MapReduce Online." Nsdi. Vol. 10. No. 4. 2010.

[51] Supra Note 47

[52] Dean, Jeffrey, and Sanjay Ghemawat. "MapReduce: a flexible data processing tool." Communications of the ACM 53.1 (2010): 72-77.

[53] ibid

[54] Big Data and Privacy: A Technological Perspective, White House,

https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_big_data_and_privacy__may_2014

[55] Tene, Omer, and Jules Polonetsky. "Big data for all: Privacy and user control in the age of analytics." Nw. J. Tech. & Intell. Prop. 11 (2012): xxvii.

[56] Big Data and Privacy: A Technological Perspective, White House,

https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_big_data_and_privacy__may_2014

[57] Privacy by design in big data, ENISA

[58] Big Data and Privacy: A Technological Perspective, White House,

https://www.whitehouse.gov/sites/default/files/microsites/ostp/PCAST/pcast_big_data_and_privacy__may_2014

[59] Id

[60] Id

[61] Tene, Omer, and Jules Polonetsky. "Privacy in the age of big data: a time for big decisions." Stanford Law Review Online 64 (2012): 63.

[62] Lane, Julia, et al., eds. Privacy, big data, and the public good: Frameworks for engagement. Cambridge University Press, 2014.

[63] Crawford, Kate, and Jason Schultz. "Big data and due process: Toward a framework to redress predictive privacy harms." BCL Rev. 55 (2014): 93.

[64] http://homes.esat.kuleuven.be/~sguerses/papers/DanezisGuersesSurveillancePets2010.pdf

[65] Seda Gurses and George Danezis, A critical review of 10 years of privacy technology, August 12th 2010, http://homes.esat.kuleuven.be/~sguerses/papers/DanezisGuersesSurveillancePets2010.pdf

[66] Id

For more details visit https://cis-india.org/internet-governance/blog/technology-behind-big-data

The Supreme Court Judgment in Shreya Singhal and What It Does for Intermediary Liability in India?

jyoti — 2015-04-17T23:59:34Z

Even as free speech advocates and users celebrate the Supreme Court of India's landmark judgment striking down Section 66A of the Information Technology Act of 2000, news that the Central government has begun work on drafting a new provision to replace the said section of the Act has been trickling in.

The SC judgement in upholding the constitutionality of Section 69A (procedure for blocking websites) and in reading down Section 79 (exemption from liability of intermediaries) of the IT Act, raises crucial questions regarding transparency, accountability and under what circumstances may reasonable restrictions be placed on free speech on the Internet. While discussions and analysis of S. 66A continue, in this post I will focus on the aspect of the judgment related to intermediary liability that could benefit from further clarification from the apex court and in doing so, will briefly touch upon S. 69A and secret blocking.

Conditions qualifying intermediary for exemption and obligations not related to exemption

The intermediary liability regime in India is defined under S. 79 and assosciated rules that were introduced to protect intermediaries for liability from user generated content and ensure the Internet continues to evolve as a “marketplace of ideas”. But as intermediaries may not have sufficient legal competence or resources to deliberate on the legality of an expression, they may end up erring on the side of caution and takedown lawful expression. As a study by Centre for Internet and Society (CIS) in 2012 revealed, the criteria, procedure and safeguards for administration of the takedowns as prescribed by the rules lead to a chilling effect on online free expression.

S. 69A grants powers to the Central Government to “issue directions for blocking of public access to any information through any computer resource”. The 2009 rules allow the blocking of websites by a court order, and sets in place a review committee to review the decision to block websites as also establishes penalties for the intermediary that fails to extend cooperation in this respect.

There are two key aspects of both these provisions that must be noted:

a) S. 79 is an exemption provision that qualifies the intermediary for conditional immunity, as long as they fulfil the conditions of the section. The judgement notes this distinction, adding that “being an exemption provision, it is closely related to provisions which provide for offences including S. 69A.”

b) S. 69A does not contribute to immunity for the intermediary rather places additional obligations on the intermediary and as the judgement notes “intermediary who finally fails to comply with the directions issued who is punishable under sub-section (3) of 69A.” The provision though outside of the conditional immunity liability regime enacted through S. 79 contributes to the restriction of access to, or removing content online by placing liability on intermediaries to block unlawful third party content or information that is being generated, transmitted, received, stored or hosted by them. Therefore restriction requests must fall within the contours outlined in Article 19(2) and include principles of natural justice and elements of due process.

Subjective Determination of Knowledge

The provisions for exemption laid down in S. 79 do not apply when they receive “actual knowledge” of illegal content under section 79(3)(b). Prior to the court's verdict actual knowledge could have been interpreted to mean the intermediary is called upon its own judgement under sub-rule (4) to restrict impugned content in order to seek exemption from liability. Removing the need for intermediaries to take on an adjudicatory role and deciding on which content to restrict or takedown, the SC has read down “actual knowledge” to mean that there has to be a court order directing the intermediary to expeditiously remove or disable access to content online. The court also read down “upon obtaining knowledge by itself” and “brought to actual knowledge” under Rule 3(4) in the same manner as 79(3)(b).

Under S.79(3)(b) the intermediary must comply with the orders from the executive in order to qualify for immunity. Further, S. 79 (3)(b) goes beyond the specific categories of restriction identified in Article 19(2) by including the term “unlawful acts” and places the executive in an adjudicatory role of determining the illegality of content. The government cannot emulate private regulation as it is bound by the Constitution and the court addresses this issue by applying the limitation of 19(2) on unlawful acts, “the court order and/or the notification by the appropriate government or its agency must strictly conform to the subject matters aid down in Article 19(2).”

By reading down of S. 79 (3) (b) the court has addressed the issue of intermediaries complying with takedown requests from non-government entities and has made government notifications and court orders to be consistent with reasonable restrictions in Article 19(2). This is an important clarification from the court, because this places limits on the private censorship of intermediaries and the invisible censorship of opaque government takedown requests as they must and should adhere, to the boundaries set by Article 19(2).

Procedural Safeguards

The SC does not touch upon other parts of the rules and in not doing so, has left significant procedural issues open for debate. It is relevant to bear in mind and as established above, S. 69A blocking and restriction requirements for the intermediary are part of their additional obligations and do not qualify them for immunity. The court ruled in favour of upholding S. 69A as constitutional on the basis that blocking orders are issued when the executive has sufficiently established that it is absolutely necessary to do so, and that the necessity is relatable to only some subjects set out in Article 19(2). Further the court notes that reasons for the blocking orders must be recorded in writing so that they may be challenged through writ petitions. The court also goes on to specify that under S. 69A the intermediary and the 'originator' if identified, have the right to be heard before the committee decides to issue the blocking order.

Under S. 79 the intermediary must also comply with government restriction orders and the procedure for notice and takedown is not sufficiently transparent and lacks procedural safeguards that have been included in the notice and takedown procedures under S. 69. For example, there is no requirement for committee to evaluate the necessity of issuing the restriction order, though the ruling does clarify that these restriction notices must be within the confines of Article 19(2). The judgement could have gone further to directing the government to state their entire cause of action and provide reasonable level of proof (prima facie). It should have also addressed issues such as the government using extra-judicial measures to restrict content including collateral pressures to force changes in terms of service, to promote or enforce so-called "voluntary" practices.

Accountability

The judgement could also have delved deeper into issues of accountability such as the need to consider 'udi alteram partem' by providing the owner of the information or the intermediary a hearing prior to issuing the restriction or blocking order nor is an post-facto review or appeal mechanism made available except for the recourse of writ petition. Procedural uncertainty around wrongly restricted content remains, including what limitations should be placed on the length, duration and geographical scope of the restriction. The court also does not address the issue of providing a recourse for the third party provider of information to have the removed information restored or put-back remains unclear. Relatedly, the court also does not clarify the concerns related to frivolous requests by establishing penalties nor is there a codified recourse under the rules presently, for the intermediary to claim damages even if it can be established that the takedown process is being abused.

Transparency

The bench in para 113 in addressing S. 79 notes that the intermediary in addition to publishing rules and regulations, privacy policy and user agreement for access or usage of their service has to also inform users of the due diligence requirements including content restriction policy under rule 3(2). However, the court ought to have noted the differentiation between different categories of intermediaries which may require different terms of use. Rather than stressing a standard terms of use as a procedural safeguard, the court should have insisted on establishing terms of use and content restriction obligations that is proportional to the role of the intermediary and based on the liability accrued in providing the service, including the impact of the restriction by the intermediary both on access and free speech. By placing requirement of disclosure or transparency on the intermediary including what has been restricted under the intermediary's own terms of service, the judgment could have gone a step further than merely informing users of their rights in using the service as it stands presently, to ensuring that users can review and have knowledge of what information has been restricted and why. The judgment also does not touch upon broader issues of intermediary liability such as proactive filtering sought by government and private parties, an important consideration given the recent developments around the right to be forgotten in Europe and around issues of defamation and pornography in India.

The judgment, while a welcome one in the direction of ensuring the Internet remains a democratic space where free speech thrives, could benefit from the application of the recently launched Manila principles developed by CIS and others. The Manila Principles is a framework of baseline safeguards and best practices that should be considered by policymakers and intermediaries when developing, adopting, and reviewing legislation, policies and practices that govern the liability of intermediaries for third-party content.

The court's ruling is truly worth celebrating, in terms of the tone it sets on how we think of free speech and the contours of censorship that exist in the digital space. But the real impact of this judgment lies in the debates and discussions which it will throw open about content removal practices that involve intermediaries making determinations on requests received, or those which only respond to the interests of the party requesting removal. As the Manila Principles highlight a balance between public and private interests can be obtained through a mechanism where power is distributed between the parties involved, and where an impartial, independent, and accountable oversight mechanism exists.

For more details visit https://cis-india.org/internet-governance/blog/sc-judgment-in-shreya-singhal-what-it-means-for-intermediary-liability