Centre for Internet and Society

CIS Submission to TRAI Consultation on Regulatory Framework for Over-the-Top Services

pranesh — 2016-03-25T17:59:56Z

For more details visit https://cis-india.org/internet-governance/resources/net-neutrality/2015-03-27_cis_trai-submission_regulation-OTTs

CIS Position Paper on Net Neutrality in India (Background Submission to TRAI)

pranesh — 2016-03-25T16:35:12Z

For more details visit https://cis-india.org/internet-governance/resources/net-neutrality/2015-06-29_PositionPaperonNetNeutralityinIndia

CIS Counter Comments on TRAI Consultation on Differential Pricing

pranesh — 2016-03-25T16:28:06Z

This counter-comment also includes: a) An appendix that charts regulations on zero-rating across the globe, and shows that the popular press have misunderstood and misrepresented regulations in foreign countries; b) An appendix that charts specialized services (including differential pricing of specialized services) across the globe.

For more details visit https://cis-india.org/internet-governance/resources/net-neutrality/2016-01-14_cis_trai-counter-comments_differential-pricing

Report of the 30th Session of the WIPO SCCR by the Centre for Internet & Society

nehaa — 2016-04-04T14:39:05Z

This report was edited by Nehaa Chaudhari, Programme Officer; compiled with assistance from Nisha S.K., Administrator, and, Aarushi Bansal, Amulya P., and Saahil Dama, interns.

I. Broadcast Treaty Negotiations

Day 1: June 29, 2015

Opening Statements from Regional Coordinators

Japan, speaking for Group B, said that the Group continued to attach importance to the negotiation of the Broadcast Treaty. It emphasized the importance of the information session by technical experts to strengthen the understanding of technical issues. A better understanding of the legal aspects and language of the Treaty text would prove advantageous during Treaty negotiation.

It acknowledged that the presentation by Professor Kenneth Crews indicated that the Member States required an informative reference to adopt the limitations and exceptions. It recommended that the reference be made more user-friendly and accessible. Additionally, it proposed for an exchange of national experiences and a background check on the collection of outcomes.

Germany spoke next, on behalf of the Central European and Baltic States (CEBS). It supported a "forward-looking approach that would take into account the technical progress achieved in broadcasting systems so far". It argued for the inclusion of new media platforms used by broadcasting organizations into the Treaty.

It appreciated Kenneth Crews' study on limitations and exceptions for libraries and archives.
Germany believed that progress on these issues would be facilitated if the committee agreed on common objectives. It wanted to exchange best practices on both - limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and for persons with disabilities.

Nigeria, on behalf of the African group, wanted equal time to be given to both the issues on the agenda - the Broadcast Treaty and limitations and exceptions. The African Group supported a balanced Treaty on protection of broadcasting organizations as per the mandate of the 2007 General Assembly. It welcomed Kenneth Crews' study on copyright trends. It also suggested a discussion on copyright exceptions for museums.

Argentina, speaking on behalf of GRULAC (Group of Latin American and Caribbean Countries), asked for equal time be given to all the issues on the agenda. This view was also supported by Mexico.

On behalf of the Asia Pacific group, Pakistan supported a balanced Treaty which followed the signal-based approach, for protecting broadcasting organizations as per the mandate of the 2007 General Assembly.

Belarus, representing the Central Eastern and Caucasian Countries, wanted a Diplomatic Conference for the conclusion of the Treaty soon.

The European Union (EU) stated that in building consensus on the Broadcast Treaty, the broad aim should be to make a meaningful Treaty that would be relevant to technological realities and needs of broadcasting organizations in the 21^st century.

Information Session on Broadcasting

Preceded by opening statements by regional groups and countries, the main event on Day 1 was an information session on broadcasting. The panel consisted of George Twumasi, Deputy Chairman and CEO of ABN Holdings Ltd.; Daniel Knapp, Director, Advertising Research; Shida Bolai, CEO of Caribbean Communications Network Ltd.; Anelise Rebello de Sa, Legal Manager of International Business and Contracts Compliance, TV Globo; Avnindra Mohan, President, Zee Network; and Tejveer Bhatia, Singh and Singh Associates, New Delhi.

Daniel Knapp started the information session by providing an outlook on broadcasting from a technical and revenue perspective. He highlighted that traditional broadcasting was different in different countries. In Greece, for example, there was little or no cable other than at the national level, while in the Middle East and Africa, a large proportion of access came from free satellite prescribers.

Knapp stated that despite digitization paid TV homes were growing at a 6% annual rate which was expected to slow down to 3.4% by 2018. While the growth was being led by India and China, pay TV homes in the US were declining as people were moving to over-the-top services. He added that users of connected devices such as smart-phones, broadband players and smart TVs were predicted to surge to more than 8 billion by 2017. This would result in the decline of TV-usage as audiences would move to online open source resources such as Facebook, YouTube, AOL and premium services such as Amazon and Netflix.

Kanpp voiced concerns about development in technology leading to piracy. He warned that traditional threats such as smart cards on set-top boxes and new methods of piracy such as online file-sharing needed to be checked.

John Simpson of the British Broadcasting Corporation ("BBC") outlined how broadcasting had changed through the years due to advancement of technology. He stated that the world was moving from analog TVs to digital services. Digital technologies had enabled broadcasters to offer more channels and programs, providing users with more choice and control. The definitional boundaries between broadcasting and digital video libraries were becoming increasingly blurred.

He argued that broadcasting was an important tool for social cohesion, economic development and ensuring public access to information. He believed that new content delivery mechanisms, such as computer networks or smart-phones, could bridge the knowledge-gap in developing countries. In Africa, for instance, the recent transition from analog television to digital television has the potential to improve both the quantity and the quality of content on television.

However, Simpson noted that the Treaty-text had no mention of the quality and accuracy of the information being broadcasted. It failed to discuss the need for televisions and videos to produce programs which did not just represent the beliefs of the government, but had a genuine observational truth to them. Simpson stressed upon maintaining quality and developing new ways in which things are broadcasted to people.

Shida Bolai of Caribbean Communications Network Limited spoke about challenges broadcasters faced during transition to digital technologies and migration of viewers and advertisers from traditional to new platforms. She noted that while most of the Caribbean was still grappling with standards and infrastructure to go digital, Bahamas and Surinam had already made the change. Legal protection offered to broadcasters in the Caribbean was inadequate and piracy in the form of CDs or fraudulent satellite use and internet were issues yet to be tackled.

Piracy was the result of the costly distribution of content on the internet leading to the broadcasters obtaining expensive licenses. Hence cable-operators pirated signals and free broadcasters had to look for new content. This showed that broadcasters were given inadequate protection. Bolai also indicated that it was difficult to invest in high-cost sports programmes due to financial losses arising out of piracy. She highlighted the need for the indigenous community to find primary channels of production and distribution.

George Twumasi from ABN Holdings LTD said that the central challenge for broadcasting in Africa was the creation of commercially viable content by Africans for Africans. If such content increased, the broadcast industry would grow to become a $75 billion industry over the next 15 years. With respect to piracy, he stated that Africans did not like foreign content and that it was not a pressing concern for them. He argued that the best way to stop piracy was through invasive technologies.

Twumasi wanted to create a lobby group to facilitate the growth of broadcasting. Given Africa's history, he emphasized on its need to define its role as a broadcaster and to entertain the world through its powerful mythology and culture.

Yaw Owusu from University of Ghana stated that copyright could be protected to the extent of monetizing what existed in the marketplace. He explained that the business strategy would operate by broadcasters driving the digital content and revenue system. Intellectual property and ownership would be protected through encryption software. Since English content had also been pirated in Africa, expert enhancement of existing content was required.

Anelise Rebello de Sa from International Business and Contracts Compliance, TV Globo said that the most important challenge to Latin American broadcasters were not other broadcasters, but Google, Facebook, Twitter and piracy. Audiences for the Brazilian advertising market had grown from 10 million in 2000 to 33 billion in 2014. Traditional TV had 72% of the advertisement market. Piracy was a problem since Brazilian signals would be picked up and used by broadcasters in other countries.

She also said that online piracy and set-top boxes were major causes for concerns. She explained the functioning of piracy using the example of Globo in Japan. Pirated content on Globo could not be removed since it did not originate in Japan. Hence the protection was inadequate.

Fingerprint technology would be useful against piracy since it automatically removes instead of comparing videos with one another. She concluded by stating that television also needed an updated legal framework and dependant businesses and investments to continue.

Avnindra Mohan from Zee Telefilms stated that by end of 2016, all of India would be on digital TV. The TV industry was set to increase its revenue from 7.8 billion USD to 12.1 billion USD in the future. However, piracy through DTH box cloning, IPTV, cable TV, inter-country smuggling and over the internet was a major concern. With regards to web-initiated transmissions, he argued that as long as the signal was hacked by someone, broadcasters should have the right to prevent that piracy or illegal transmission from happening.

Day 2: June 30, 2015

Day 2 began with the Chair calling for statements from Member States and regional groups on general principles and key objectives of the proposed Broadcast Treaty.

Regional Group Statements on General Principles

Japan, on behalf of Group B, reiterated that after the session it hoped to move forward with the discussion in line with the 2007 General Assembly mandate and to convene the diplomatic conference at the earliest opportunity.

Speaking on behalf of the Asia Pacific Group, Pakistan stated that it supported the development of an international treaty based on the mandate of the 22 ^nd SCCR which was reiterated in 2012. It sought an agreement based on traditional broadcasting and cable casting; a balanced text that prioritized the interests of all the stakeholders. Pakistan said that the original mandate without new layers of protection would achieve this balance.

Nigeria, representing the African Group, stated that it wanted a pragmatic and effective outcome in conformity with the 2007 mandate, and looked forward to moving towards a Diplomatic Conference soon. Noting the efforts made at the 29^th SCCR, it welcomed the discussion on broadcasting protection. Nigeria concluded by reaffirming its commitment for constructive development in order to protect broadcasting rights within the directives of the 2007 General Assembly mandate.

Romania supported a Treaty that would provide adequate protection in line with modern technological developments. It sought a broad consensus on the signal-based approach. It also stated that it hoped to recommend the convening of a Diplomatic Conference to the General Assembly.

The EU considered the Broadcast Treaty to be a high priority. It wanted a treaty that would be meaningful in view of the technological realities and the needs of broadcasting organizations in the 21^st century. It argued that both - traditional broadcasting and broadcasting over the internet- - required international protection against piracy.

Iran supported the statements made by Pakistan and the Asia Pacific group. It wanted the Treaty to follow the signal-based approach decided in the 2007 General Assembly. Iran only wanted protection for traditional broadcasters. It argued that expanding protection to transmissions over the internet raised concerns of rising transaction costs and reducing access to broadcast in developing countries. It sought an assessment of the impact of the Treaty on the public domain, access to knowledge, freedom of expression, users, performers and authors.

South Korea believed that after the introduction of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization ("Rome Convention"), the protection of broadcasting organizations had not been updated to reflect advances in technology. Therefore, it wanted the Treaty to respond to changes in technology.

National Statements on General Principles

Japan wanted the SCCR to end with a recommendation for convening a Diplomatic Conference to adopt the Treaty. It hoped to discuss objectives of protection and rights to be granted. It wanted to move to textual work in the near future and have more elaborate discussions to expand the scope of common understanding.

The US wanted to continue discussions to obtain a general consensus on a meaningful and targeted text. In its opinion, a right that protected broadcasters against signal piracy on any platform without an extra layer of protection could attract such a consensus.

Russia wanted to adopt a new document on the protection of broadcasting organizations. It wished to confine the Treaty to traditional broadcasting, but also lay a basis for content for future protection. It suggested that new forms of broadcasting should be identified and new directions for future protection should be introduced. Russia conveyed its support to all collective decisions to be taken while discussing the text of the future Treaty, as well as a speedy adoption of a common approach.

Belarus, on behalf of the Central Asia and Eastern Europe group, hoped that the new Treaty would reflect specificities of different regions and possibilities of adaptation to changes in broadcasting.

Indonesia supported the statements delivered by Pakistan. It wanted the Treaty to be based on the 2007 General Assembly mandate and use a signal-based approach with broadcasting and cablecasting defined traditionally. It opposed the introduction of any new layers of protection and wanted to strike a balance between rights and responsibilities of broadcasting organizations.

India supported a Treaty with the 2007 General Assembly mandate and also sought the prevention of unauthorized live transmission over computer networks. It opposed expanding the mandate to include elements of webcasting, simulcasting and retransmission over computer networks or other platforms, as these were not a part of broadcasting as defined in a traditional sense. India wanted the Treaty to provide exceptions to private use, use by experts in connection with reporting of current events, use solely for the purpose of education and research and the fixation of a broadcast by means of its own facilities.

Objectives of Treaty, Scope of Protection and Object of Protections

The EU argued that there was a need to ensure that the Treaty was up to date and in line with technological advancements. It wanted protection to extend to broadcasters who used new technologies and urged for the inclusion of a broad retransmission right that would involve simultaneous retransmission and deferred retransmissions. It believed that the objective of the Treaty was to stop piracy whether it was in the form of simultaneous transmissions or organized by websites. It also expressed eagerness to go to text-based work as opposed to working on clarifications.

Speaking next, the US supported a Treaty that would respond to advancements in digital technology and address piracy concerns by eliminating loopholes that pirates could exploit. It said that piracy was a significant concern but not necessarily the suitable object for the Treaty in question. It was not a major part of broadcasters' protection, which could be resolved by enforcing only signal protection.

Romania, speaking next on behalf of the CBES group, stated that it believed in a Treaty that would protect broadcasters against piracy regardless of the platform. It wanted to protect cablecasting and simulcasting in addition to traditional broadcasting. It re-iterated the stand taken by US in saying that a broad retransmission right would be the way forward.

Japan believed that there was a need for separating traditional broadcasting from internet originated initial transmission. Since newer broadcasting organizations dealt with internet broadcasting, it wanted Member States to discuss methods of dealing with such a transmission.

Argentina supported a Treaty that would include broadcasters and cablecasters but would exclude internet originated transmissions except in the context of near simultaneous transmissions.

The EU noted that India, Iran, CEBS, South Africa, Argentina and Kenya seemed to agree that live signals transmitted over any platforms would be the object of protection of the Broadcast Treaty. It stated that it would support a Treaty that protected cablecasting in addition to traditional broadcasting.

Italy endorsed the stance of the EU. It explained that the broadcasting rights to fixation, reproduction of fixations and retransmissions of such fixations and protection of signals sent over the internet could find a background in Article 14 of the TRIPS. It further argued that even the idea of exclusive rights to broadcasters could find precedence in Article 14 of TRIPS and in the Rome Convention.

China argued that the Treaty should account for technological developments. While it fully supported a Treaty that only covered traditional broadcasting including cablecasting, it wanted to include simulcasting, on demand casting and near simulcasting within the Treaty.

India, in response to the EU and Italy, sought to emphasize the difference between a right to authorize and a right to prohibit broadcasting. It stated that the Broadcast Treaty should not provide for a positive right to authorize. It argued that internet companies often broadcast events based on a contract with the content creators, and such a right should not conflict with rights that may be given to broadcasters by virtue of the Treaty. India emphasized the need to stick to the signal-based approach as it balanced the interests of broadcasters and content creators. It pointed out that in cases where broadcasters doubled up as content creators, copyright law would be enough to prevent piracy.

Brazil, along with the US and South Africa, wanted to take into account the concerns of content owners in other platforms.

The US stated that the common ground would be the protection of live signals. If the signal is transmitted by any means, it should be protected. Since many broadcasters used the internet to transmit signals, it would be important to ensure that the signals thus transmitted were protected from piracy as well. It wanted a technologically neutral definition of broadcasting and argued that this would still be limited to a signal-based approach because there were no rights over the content per se.

India clarified its stance and stated that while it did believe that unauthorized retransmissions over the internet should be prohibited by the Treaty, providing broadcasters with a sole right to transmission over the internet would be beyond the signal-based approach. Internet transmissions could rarely be said to be signal theft in the traditional sense.

Iran, responding to the EU, stated that it supported a Treaty that covered traditional broadcasting, cablecasting and even live retransmissions on the internet. It expressed concerns with the Treaty granting exclusive rights to broadcasters, and stated that it would support a Treaty against signal theft as long as the signals belonged to traditional broadcasters.

Chile argued that only broadcasts open to the public should be protected by the Treaty and broadcasts requiring decryption without a cable should be excluded.

The EU restated that it supported a Treaty with technologically neutral terminology. It expressed concerns with the Treaty benefitting all kinds of broadcasters since technological developments had enabled everyone to become a broadcaster. Italy supported this caveat and stated that a workable definition of a "broadcast organization" would be an organization that transmits a broadcast signal. A "broadcast signal" would be a signal that includes only broadcasts or cablecasts; and broadcasting does not include the transmission over computer networks. It believed that such a definition would differentiate between broadcasts, cablecasts and webcasts.

Japan stated that broadcasting organizations would have to be defined as broadcasters in the traditional sense since the idea of a broadcasting organizations had not changed despite technological advancement. It wanted to start with the definition of broadcasting as it was laid out in the WIPO Performances and Phonograms Treaty ("WPPT") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").

Nigeria stated that broadcasting should be clearly defined before broadcasting organizations since the two were inevitably linked.

Russia believed that the discussion was becoming overly complicated. It argued that a simple method of understanding broadcasting would suffice to define broadcasting and broadcasting organizations. The means used by broadcasters were of little concern to Russia.

The US stated that along with being forward-looking, the definitions also needed to be consistent with treaties passed by the WIPO in the past, including the WPPT and Beijing Treaty. Broadcasting organizations should be defined as entities that would assemble and schedule programmes carried by the signal keeping in mind the distinction between a signal and a program.

As per the EU, the definitions in Document SCCR 27/2 needed to be discussed as they covered important elements of broadcasting such as broadcasting by wireless means including satellite for public reception. The EU also stated that while the definition of broadcasting organizations should not include transmissions over computer networks, transmissions over computer networks could be included as a part of the object of protection.

At the end of the evening, Ann Lear, of the WIPO, intervened to stress that definitions must be adopted keeping keep in mind that many broadcasters today viewed the internet as the main platform for distribution of their broadcast in the near future and were using streaming and downloading over the internet.

Day 3: July 1, 2015

Day 3 of the negotiations began with the Chair noting the general consensus emerging in the matter of protecting live signals over any platform, and, allowing broadcasters to prohibit unauthorized access regardless of the platform from which the signal was transmitted. The Chair opened the floor for debate on whether there was a need for defining 'broadcasting organizations' or whether defining 'broadcasting' as an activity would suffice, and on whether the definitions must reflect those existing in other international treaties.

Defining 'broadcasting organizations'

The EU spoke first, stating that the definition laid out in Alternative B to Article 5 in Document SCCR 27/2 was similar to what it wanted. It believed that defining broadcasting and cablecasting was crucial to defining the beneficiaries of the Treaty. But this did not mean that it was unimportant to outline who the beneficiaries of the Treaty were.

Australia argued that the Rome Convention operated well without having defined broadcasting organizations and the same would hold true for the Broadcast Treaty as well. It further argued that the definition of broadcasting should be based on the definitions that already existed in the Beijing Treaty and the WPPT.

Serbia stated that the definition of a broadcasting organization had to conform by the definition of broadcasting. Additionally, it felt the need to define the responsibility of broadcasting organizations for collecting information and editorial functions.

Russia argued that defining broadcasting organizations would be a misstep since different countries would have different definitions of broadcasters in their national legislations. Russia relied on the fact that the Rome Convention was operating well without having defined broadcasting organizations.

Brazil stated that while it wanted clarity on who would be the beneficiaries of the Treaty it was still debating whether broadcasting organizations had to be defined in the Treaty. It supported a technologically neutral definition of broadcasting as it would encompass different countries with different regulatory regimes.

Kenya stressed that it needed clarity on what broadcasting entailed as their national laws dealt with broadcasting in a particular manner. It required a clear definition to move things forward.

South Africa, agreeing with Kenya, spoke of its domestic legislation which defined broadcasting in several ways, and included both wired and wireless technology. It suggested accommodating different definitions of countries like Brazil and China which regulated broadcasting differently. It added that following a text-based definition would be difficult as discussions involving fundamental questions of broadcasting were constantly being raised.

Canada felt the need to examine national treatment with respect to defining or not defining broadcasting organizations. It said that a basic definition of the activity with a chance to accommodate differences in national legislations would be the best way to move forward.

The US proposed that text-based work would be more constructive in gaining clarity on these questions.

The EU commented that the definition of 'signal' could be based on the Beijing Treaty that makes a reference to public reception of sounds or images or images and sounds or representation thereof. Alternative A for Article 5 in Document SCCR 27/2 most closely reflected the definitions that already exist in other existing treaties as well. It stated that it would be sufficient to define broadcasting, cablecasting, broadcasting organizations and signal.

Romania endorsed the statement made by the EU. It stressed on the importance of defining the beneficiaries of the Treaty.

The EU intervened again to state that it was necessary to define broadcasting organizations, but that it could start with defining broadcasting based on existing treaties.

Romania intervened on behalf of the CEBS group to state that it was important to move to a text-based discussion to continue making progress. It emphasized on the need for updating the international legal framework to accord adequate protection to broadcasting organizations.

Russia supported the same proposal and stated that it was important to consolidate a text to eventually recommend convening a Diplomatic Conference.

Serbia aligned itself with the Romanian position. It further stated that it was important to identify the beneficiaries and non-beneficiaries under the Treaty.

Iran intervened to urge the commencement of text-based negotiations on the draft Treaty as there was no consensus on important concepts such as objectives, scope or objects of protection of the Treaty. It supported the proposal made by Romania on behalf of CEBS. Iran also stated that deciding on convening the Diplomatic Conference in the next biennium before resolving divergent views and arriving at a consensus would be premature.

The US argued that text-based work would be the way forward. Though consensus was beginning to appear, a number of countries had not committed to anything. Hence the draft should leave options so that there is still room for negotiations. It further said that if an acceptable text was found over the next two meetings, then a Diplomatic Conference in the next biennium could have a successful outcome.

The EU stated that while there was progress on understanding different positions, a consensus was yet to emerge. Further discussions were needed on important issues such as the term of protection and technological protection measures. It aligned itself with the proposal of the CEBS group and hoped that the work would lead to a Diplomatic Conference in the next biennium.

India, South Africa, Japan, Nigeria, Senegal and Kenya also supported the CEBS proposal to move to text-based work.

Chair's Conclusions

At the end of the session on broadcasting, the Chair noted that there had been an exchange of views on the objectives of the Treaty, the scope of protection and the object of protection. While no consensus had been reached, there was greater clarity on different positions. The Chair stated that text-based work seemed to be the way forward and agreed to prepare the draft document. Further, with the exception of one delegation, there was a consensus on the protection being granted to broadcasting organizations to prohibit unauthorized use of broadcast signals in the course of a transmission over any technological platform. The Chair lastly said that the proposed timeframe for this would be to work towards the biennium when the proposed Diplomatic Conference could take place.

II. Report on Negotiations on International Instrument for Exceptions and Limitations for Libraries and Archives

Day 1: June 29, 2015

Opening Statements by Regional Coordinators

Japan spoke on behalf of Group B and stated that the presentation by Prof. Kenneth Crews (hereafter, Crews) had provided for a way forward by showing that Member States needed an informative session on this topic. This informative session should be in an accessible and user friendly environment where exchange of national experiences could take place. It believed that the SCCR should give further consideration to the objectives and principles proposed by the US in this regard.

Nigeria, on behalf of the Africa Group, wanted to establish legal instruments on this issue and on limitations on educational and research institutions for persons with disabilities. It wanted equal time to be given to all the instruments being discussed.

Representing the GRULAC, Argentina stated that the issue of limitations and exceptions for libraries and archives was of particular importance to it. Argentina hoped that it would be dealt with in a balanced way. It attached importance to the work that had been done until then and to the report prepared by Crews. It supported an open and frank discussion on the issue and was interested in the proposal made by Brazil, Ecuador, Uruguay, the African Group and India. Mexico endorsed this statement as well.

On behalf of the Asia Pacific Group, Pakistan expressed disappointment since all the issues had not received equal commitment from all Member States, particularly the issue of exceptions and limitations for libraries and archives. It stated that while there were different priorities due to different economic realities in the various Member States, inclusiveness as an ideal meant that these priorities would be accommodated.

Pakistan believed that the issue of limitations and exceptions for libraries and archives was of critical importance for individual and collective development of societies. Libraries and archives play an important role in the right to education, which remains a challenge in many developing countries due to lack of access to relevant educational and research material. While sharing national experiences and best practices was informative and useful, it was important to understand that the lack of development with regard to exceptions and limitations resulted in no decision at the 2014 General Assembly. Therefore it wanted to move to text-based work on the same.

The EU stated that the discussion could not be furthered without clarity on direction and objectives. It sought a surer understanding of what the outcome of the discussion could be to avoid wasting time and resources. It noted that the 2014 General Assembly had not provided the SCCR with a new mandate on libraries and archives. Even on exceptions and limitations for educational and research institutions and persons with disabilities, the acceptable way forward would be to encourage best practices in the broad and flexible boundaries of the current international copyright framework and not within the realm of further legally binding instruments.

Day 3: July 1, 2015

Regional Statements on General Principles

Work on exceptions and limitations for libraries and archives resumed in the afternoon session of the third day of the meeting.

Brazil, on behalf of GRULAC, believed that Crews' report documented the important role played by libraries and archives and emphasized the need for library lending services. It supported an open and frank discussion without prejudging its outcome. It was interested in the proposal made by itself, Ecuador, Uruguay, the African Group and India on the same. It also underscored the importance of ratification with respect to any Treaty relating to limitations and exceptions.

On behalf of the Asia Pacific Group, Pakistan stated that limitations and exceptions were essential requisites for all norm setting exercises. People in all countries would benefit from exceptions and limitations for libraries and archives since it would allow for materials to be accessible by all of humankind instead of being restricted to individual countries. Pakistan believed that any agreement on this would require harmonization of domestic laws and policies. It considered sharing national experiences of Member States to be beneficial in this regard. In a report to the 28^th session of the Human Rights Council, the Special Rapporteur for Cultural Rights also supported the harmonization of exceptions and limitations in copyright for libraries in education.

Representing the African Group, Nigeria underscored the fundamental role of libraries and archives in facilitating access to knowledge for human and societal development. The principle of exceptions and limitations meeting specific objectives is an essential part of international instruments. As evidence, Nigeria pointed out legal precedents that contained specific limitations protecting educational institutions and facilitating access to learning. It sought a text-based discussion on the text prepared by the African Group, Brazil, Ecuador, India and Uruguay and the Chair's informal document streamlining various proposals.

Romania stated on behalf of the CEBS group that it welcomed the updated version of the study on copyright exceptions prepared by Crews. Romania recognized the important role that exceptions and limitations would play in facilitating library services and serving the social objectives of copyright law. It stated that the three-step test provided for by existing treaties offered a framework that was wide enough for states to establish their own exceptions and limitations but conceded that it may need more guidance on best practices. It considered an approach based on exchange of best practices to be superior to a normative approach.

Japan, on behalf of Group B, relied on Crews' study to show that many countries had already introduced exceptions and limitations for libraries and archives in their domestic legal systems. It wanted further work at the SCCR to be based on the recommendations of the Chair at the previous SCCR and the presentation by Kenneth Crews. It sought for a substantive discussion at an objective and principle level as proposed by the US.

China intervened and pointed out that there already existed a Chinese legislation regarding exceptions and limitations for libraries and museums and orphan works.

The EU stated that the study conducted by Kenneth Crews was illustrative of the fact that exceptions and limitations in domestic legal systems and other instruments were adequate. It considered this to be the basis for understanding effective ways to implement exceptions and limitations in different legal systems. It believed that an approach based on exchange of best practices and mutual learning would stimulate substantive discussions. It further stated that in the absence of a mandate by the 2014 General Assembly, there was a need for further clarity on the expected outcome of these discussions.

Brazil spoke next in its national capacity and aligned itself with the statements produced by GRULAC, the Asian Group and the African Group. It considered the discussion on exceptions and limitations to copyright law to be a subject of utmost importance. It pointed out that for libraries, the activities that could be linked to copyright exceptions were preservation of copies, making orphan works, public library lending and so on.

Mexico aligned itself with GRULAC. It reiterated that its government attached importance to exceptions and limitations for libraries and archives that were aimed at facilitating copying, preservation, archiving and the dissemination of works, and, encouraging the spread of knowledge for the common good.

India intervened and pointed out that access to knowledge was lacking in many jurisdictions despite increasing trends of digitization of information. In this context, libraries and archives act as balancing forces for increased access and it was important to strengthen this balance between ownership and access. Citing Crews' study, India argued that the diverse approaches in national laws, including that of absence of limitations and exceptions in many jurisdictions, necessitated work on an international instrument for limitations and exceptions. It stated that the work of the African Group, Brazil, Ecuador and Uruguay to get more countries aligned to a document on the eleven issues for an equitable balance relating to limitations and exceptions needed to be built upon for consensus among members. The best way forward would be to draft a legal instrument, as exchange of practices did not bring the necessary urgency to the subject.

Iran aligned itself with statements made by the Asia Pacific Group and the African Group. It stated that the rights to science, library and culture were basic human rights. It believed that limitations and exceptions played a key role in creating a balance of interests in the international copyright system and empowered creativity by increasing educational opportunities and promoting access to cultural works and inclusion. It further argued that since the existing international copyright system did not address technological developments, it needed rectification. It cited the UNHRC Special Rapporteur's recommendation to the WIPO to set a core list of minimum required exceptions and limitations. Iran strongly supported work towards a legally binding international instrument for limitations and exceptions for libraries and archives, and research and educational institutions. It sought to start text-based negotiations in this regard and suggested that the proposal by the African Group, India, Brazil and Ecuador would be a good base for preparing a consolidated text.

Indonesia agreed with the statement made by the Asia Pacific Group and sought to move on to text based negotiations. It highlighted the importance of developing a legal framework to enable libraries and archives to reproduce content without the authorization of copyright holders for the purpose of education, research and inter-library loans.

The Russian Federation pointed out that it had already partially solved the problem in its domestic legislation. It sought to strike a balance between the interests of the author and that of the society.

Ecuador endorsed the statement made by GRULAC. It had a Bill in its domestic legislature to address this issue. It wanted to proceed to text-based negotiations.

South Africa aligned itself with GRULAC, the African Group and the Asia Pacific Group and emphasized the critical role of libraries archives and educational institutions in the dissemination and preservation of their cultural heritage. It also called for progress on text based work and to send a clear message to the General Assembly and the international community that the issue was important.

The US believed in the development of non-binding principles and objectives relating to national copyright exceptions and limitations for libraries, archives, and educational institutions. It noted that statements of such principles and objectives introduced by them in earlier sessions of the SCCR had been received positively. The US further stated that it supported work through symposia or seminars to examine different approaches to national implementation of these principles. It also went on to state that libraries and archives, being central to knowledge systems, provided valuable insights to people. She referred to a document formulated by the United States which discussed the importance of enabling libraries to function properly, along with the goals the US attempted to achieve. The approach would be for the Member States to tailor the exceptions to suit their needs within the constraints of international obligations to make libraries and archives available to the world.

Pakistan agreed with the statements made by the Asia Pacific Group, the African Group and GRULAC. It was concerned with the lack of uniformity and occasional absence of exceptions and limitations for libraries, archives and educational and research institutions in some countries, which restricted a large number of people from accessing information. Pakistan argued that reformation and harmonization of the current system was essential, and that mere incorporation into domestic laws was insufficient. There was a need to engage in text-based negotiations and work towards an appropriate international legal instrument.

Cameroon also aligned itself with the position of the African Group, GRULAC and the Asia Pacific Group. It emphasized the crucial role played by libraries and the importance of providing adequate exceptions and limitations for them. Cameroon said that it was also reviewing its own national legislation on the issue.

Armenia pointed out that it was drafting a new domestic law on the issue of limitations and exceptions for libraries and archives. It also emphasized the importance of minimum international standards for countries to adopt. Armenia wanted countries to implement these limitations in their national legislations and supported a legally binding instrument for limitations and exceptions.

Sudan supported the proposal put forward by the African Group, the Asian Group, Brazil Ecuador, Uruguay and India. Citing Crews' study, it stated that with advent of the digital age, all the memory and knowledge in the world could be easily converted into accessible formats and made available on databases for researchers and educational institutions. Therefore it was necessary for the SCCR to enable students and researchers to have access to this knowledge. The EU Directives passed in 2001 and 2012, and the work undertaken by the US and UNESCO were positive steps in this regard. It wanted to work towards an appropriate international instrument such as the Marrakesh Treaty.

Aligning with the African Group, Nigeria argued that since information sharing transcended national boundaries in the digital age, national solutions would be ineffective. There was a need to balance the interests of the creators and the larger public interest. It welcomed the report by Crews and the document prepared by the Chair to stimulate discussion along with the text-based proposal of the African Group, Brazil, Ecuador, India and Uruguay.

Japan supported Group B's statements and said that libraries and archives played a pivotal role in collecting and preserving materials and providing them to the public. It cited Crews' study to argue that international differences in conditions for application of limitations and exceptions would cause problems with the increasing digitizing of materials. Principles evolved from these discussions should serve as guidelines for establishing the legal framework for libraries and archives in each Member State. Japan considered the objectives and principles document released by the US to be a good basis for discussion.

Malawi wanted discussions to be guided by Crews' report.

Uruguay supported the statements made by GRULAC, the African Group and the Asia Pacific Group. It wanted to sponsor Document SCCR 29/4 submitted by Brazil, Ecuador, India and the African Group. It believed that libraries and archives were important for culture, leisure activities and welfare of the needy sections of society. Since archivists and librarians had approached the SCCR in every session to ask for an international solution, Uruguay urged the SCCR to continue with the discussion without prejudging the result.

Malaysia considered Crews' study to be useful for deliberation. It supported limitations and exceptions that contributed to the attainment of education for all. It wanted to appoint a facilitator or a friend of the Chair to further discussion and create concrete solutions.

Algeria valued the study submitted by Crews and recognized that copyright exceptions and limitations for libraries and archives would enable the spread of cultural and scientific awareness. Algeria aligned itself with the statement made by the African group.

Congo believed that libraries and archival services had inherent rights to share knowledge and education. This would enrich cultural diversity and break the digital divide between the Global North and South. It argued that Crews' study demonstrated that domestic solutions would not solve this problem and an international instrument was necessary.

Zambia supported the statement made by the African Group. It remarked that libraries and archives played an essential role in disseminating information and provided a pool of historical knowledge which served as a base for our future. It believed that any solution should balance the interests of rights holders and that of the public.

Nepal aligned itself with the Asia Pacific Group. It stated that libraries and archives played an important role in education as they were often the only sources of materials for students and academics in countries like Nepal. An international legal instrument on exceptions and limitations would balance different interests. Nepal supported appointing a facilitator or a friend of the Chair to develop a working text on limitations and exceptions.

Australia supported the proposal given by the United States as a sound basis for developing principles and objectives of the suggested clusters. It wanted simple and immediate solutions within the existing legal framework to close the gap between ideals and the reality.

The US, agreeing with Australia, showed interest in developing principles and objectives in terms of how different countries arrived at the principles and objectives. It also agreed to filling gaps between these and find consensus on the approach.

Day 4: July 2, 2015

Approach Forward

The Chair asked the Secretariat to provide an overview of the situation on this topic. The Secretariat stated that there were two studies on the issue - the first compiled by Kenneth Crews which had updated previous studies conducted in 2008 and 2014 and another study on limitations and exceptions for museums, SCCR/30/2.

There was also a working document adopted in 2014, SCCR/26/2, that compiled the reference to eleven topics and identified them as priority topics on this issue. Two proposals had also been adopted - one which refers to objectives and principles presented by USA (SCCR/26/8) and another by the African Group, Brazil, Ecuador, India and Uruguay (SCCR/29/4). The SCCR pointed out that a chart/non-paper had been submitted by the Chair in December 2014 and that delegations were to consider this non-paper in this session.

The Chair clarified that the purpose of preparing the chart/non-paper was not to push the discussion in a particular way or to side with an issue. It was to help guide discussion in an organized fashion while remaining respectful of all views. The Chair opened the floor for comments on the same.

Speaking first, Australia was willing to work on the Chair's proposal. It believed that this should be done in a three-step process. Firstly, principles and objects as proposed by the US had to be clarified; secondly, reasons had to be identified for why those principles and objectives were not already in effect; and finally, solutions for implementing the principles and objectives had to be discussed. It believed that simple and immediate solutions should be preferred to complex solutions which would take longer to come into effect.

Brazil stated that it was ready to contribute to discussions on the non-paper drafted by the Chair as a framework for the discussion. It argued that following the framework proposed by the Chair would not exclude discussion on principles and objectives. It suggested that the discussion on principles and objectives be subsumed within the framework proposed by the Chair.

Japan questioned whether the list of issues compiled or the way discussions were structured would have had an impact on the direction taken by the SCCR.

The Chair answered that the list was not fixed and that the flexible structure of the framework allowed for discussion on other related issues also. The Chair also asked if there was consensus on moving forward on the structure outlined by him or if there were suggestions on improvements.

The US agreed with the Australian delegate on the importance of developing principles and objectives. The Chair pointed out that this discussion could be included as part of the approach within the chart/non-paper prepared by him.

The EU questioned the difference between the chart and Document SCCR 26/3. It also asked how the discussion on each issue was envisaged and whether it would be limited to a principled discussion.

The Chair responded to the first question by stating that while Document SCCR 26/3 was the source, it would be better to use the chart as a tool than to refer to a document even though it had been approved by the SCCR. To the second question, the Chair stated that while he could not predict the way in which the discussion would unfold, he foresaw a discussion which would first test whether the topic had consensus with regard to its inclusion in the topic and then try to set a principle that would be agreed upon. If solutions existed, an exchange of views based on the Australian approach of contrasting the principle with the findings in the Crews' study would take place, followed by methods of resolving the issue through exchange of best practices or an international instrument.

Day 4: July 2, 2015

Day 4 commenced from the previous day's discussion on the approach forward on libraries and archives.

Brazil spoke on behalf of GRULAC and supported the approach recommended by the Chair in the non-paper submitted to the SCCR. It believed that this allowed for flexibilities. It invited comments for improvements.

This was repeated by Pakistan on behalf of the Asia Pacific Group and Nigeria on behalf of the African Group, Iran, Malaysia, Senegal, Mexico, Tanzania, Guatemala and Zimbabwe.

On behalf of the Asia Pacific group, Pakistan appreciated the proposal on the non-paper by the Chair.

Japan, speaking for Group B, required further clarifications on the approach proposed by the non-paper and reiterated its support to a discussion based on principles and objectives as proposed by the US. The Chair expressed his willingness to offer clarifications on questions from any of the delegations.

Nigeria supported the proposal on behalf of the Africa Group.

Iran supported Pakistan and the interventions made by Brazil and Nigeria. It saw these discussions as beneficial for developing a legally binding instrument. Since discussion on substantive issues was being delayed because of procedural matters, Iran asked Member States who believed that their positions would be hindered by the non-paper to express their concerns and suggest changes in the non-paper.

Uruguay speaking on behalf of their group stated that it supported the Chair's proposal and regretted that the discussion on substantive issues was being delayed due to procedural issues which, it believed, were settled in the 27^th SCCR.

The EU welcomed the proposal but raised concerns about clarity on the expected outcome of the approach suggested by the Chair.

South Africa supported the non-paper as a basis to proceed on the discussion.

Brazil, speaking for GRULAC, believed that it had a mandate on an international legal instrument in whatever form and asked whether all Member States agreed with the approach suggested by the Chair.

The EU stated that it did not find a mandate as described by Brazil in the general assembly 2014 records. It believed that the issue of the mandate would be controversial and would lead to unproductive and repetitive discussions. It asked the Chair to clarify the situation with respect to the mandate.

The Chair stated that before changing the topic to the mandate, he wanted to get more views on the proposal.

Venezuela supported the structure laid out by the Chair. Venezuela expressed dissatisfaction at the fact that even though it was supportive towards the Broadcast Treaty negotiations, which was not a priority for them, the same courtesy was not extended to them when it came to issues that were important to developing countries such as limitations and exceptions for libraries and archives. It was unhappy at substantive discussions on the latter being delayed due to procedural quarrels. It argued that if this was an indication of the way forward, it would first want to discuss exceptions and limitations at the next SCCR so that developing countries did not have to waste their time. Venezuela pointed out that even developed countries needed solutions on the issue of limitations and exceptions. It agreed with Brazil's interpretation with regard to the mandate.

Nigeria supported the statements made by the African Group, the Asia Pacific Group and GRULAC. It stated that procedural issues should not cloud discussions over substantive issues and that the approach put forward by the Chair allowed for sufficient flexibility.

Switzerland supported the Chair's proposal.

Australia believed that discussing procedures and concerns from Member States was important to ensure clarity on the way forward.

Canada supported the statements made by Switzerland and Australia.

The US supported the Chair's proposal. While it wanted a discussion on principles and objectives, it believed that the approach suggested by the Chair would help Member States. The US did not presuppose an outcome.

The Chair welcomed this statement and assured that the principles and objectives document submitted by the US would also be used as a tool to provide clarity on issues.

Ecuador supported the chart prepared by the Chair and agreed to using that chart as a starting point to guide discussions which would include principles and objectives as proposed by the US

Tanzania, on behalf of the African Group, supported the tool prepared as a means to reach a common understanding from the point of view of the different statuses of the countries.

Japan, in its national capacity, supported the statements made by Switzerland, Canada, Australia and the US.

Guatemala also showed great interest in the working of this tool for the purpose of the discussion.

Singapore realigned itself with the Asia Pacific Group's position and supported the Chair's proposal which it felt would be helpful in guiding the substantive discussions.

Zimbabwe appreciated the proposal made by Nigeria and showed its support for a constructive engagement without prejudice.

The Chair suggested that statements by NGOs should be taken only at the stage of discussing substantive issues. The Chair also welcomed questions seeking clarifications on the intention behind the preparation of the chart. The Chair agreed to write an introduction to the chart stating that the intention was not to prejudge any outcome. He encouraged Member States to discuss the substantive issue of preservation if all concerns were adequately addressed by an introductory text.

China expressed support for the Chair's proposal.

The EU sought clarifications on whether the Chair would write an introductory text and whether he would want discussions to proceed simultaneously. After receiving affirmations on both questions, the EU asked for bilateral discussions with the Chair.

After the coffee break the Chair announced that he had written an introductory text to the chart which would be circulated and sought to start discussion on the substantive issue of preservation and invited comments on the same from experts.

Preservation

Non-Governmental Organizations

Speaking first, the International Federation of Libraries and Archives (IFLA) stated that preservation was one of the most critical, frequently exercised and widely approved activities of libraries and archives and that preservation standards varied according to the medium - whether paper, film or digital. It pointed out that preservation was required only to preserve and not to create additional copies. Libraries and archives needed to collaborate across borders to preserve cultural heritage which may exist in libraries of different countries. Hence it was important to take international action.

The International Federation of Reproduction Rights Organisations (IFRRO) stated that preservation included reproduction, digitization and other forms of electronic reproduction, for the sole purpose of preserving and archiving information. It noted that many Member States did not include exceptions for this in their domestic laws. IFRRO wanted such exceptions to conform to the Berne three-step test and not be used for commercial purposes. It argued that while works that were commercially available did not need preservation, works that were no longer commercially available required an exception so as to be preserved appropriately. It believed that libraries had an important role to play in preserving and providing access to knowledge and cultural heritage and appropriate licensing agreements needed to ensure that they can perform this role adequately.

The International Council on Archives (ICA) said that without archives, countries such as South Africa would lose their past and cultural roots. The Council argued that while preservation could be thought of as a purely national issue with the only possible solution being to encourage countries to introduce preservation standards in domestic legislations, this would ignore important international dimensions involved in the question. Materials such as diplomatic reports and reports of ambassadors sent to other countries were essential to the history of a country. Such cases required stable, harmonious legislations. Also, since preservation of modern materials involved the use of technology that was not available in all countries, preservation standards would ensure that electronic materials could be frequently migrated and copied could be stored anywhere in the world.

The Federation of International Journalists (FIJ) strongly supported its work being archived as long as parallel publication was avoided. FIJ stated that exceptions should be accompanied by fair remuneration to authors and performers since the world would be deprived of cultural works if authors in poorer countries could not make a living. Authors were in an equally vulnerable state to libraries in less wealthy countries due to contracts with publishing houses. Given the imbalance in power, the WIPO needed to address this with an international instrument.

The International Authors Forum (IAF) agreed with the technical comments made by IFFRO and FIJ and supported preservation and digitization. It pointed out that while authors around the world were vulnerable due to having low incomes, it still wanted their works to be preserved.

According to (SDM), while the publishing industry depended on copyright protection to innovate, some limitations and exceptions needed to be carefully crafted. It wanted these limitations and exceptions to comply with the Berne three-step test, taking into account the increased risk of misappropriation and misuse in the digital environment. It wanted to ensure that uses under this exception were limited to preservation and replacement and did not allow the creation of additional copies.

Civil Society Coalition (CSC) called for harmonized, broad and compulsory exceptions to the right of reproduction to allow libraries to fulfill their traditional functions and to provide access to knowledge and culture on non-commercial terms. It pointed out that the world wide web of the 1990s was not preserved and would be lost without immediate preservation thereby creating a memory hole for the 21^st century.

Knowledge Ecology International (KEI) supported preservation and wanted copyright and trade negotiators to sort out context-specific access related issues. It believed that preservation should be a minimum standard and that domestic laws must be harmonized in this regard. It also pointed out that preservation included exceptions to Technological Protection Measures, exceptions to related rights, etc. Citing Wikileaks as an example, KEI stated since knowledge about one country could reside in another, there was a need for an international treaty that harmonized minimum standards on preservation.

Union internationale des éditeurs (UIE) stated that though International Publishers Association (IPA) considered topics related to libraries and archives as unrelated to the agenda, their preservation was important nonetheless. It articulated the publishers' wish to have their publications as part of the nation's heritage. It envisioned for the libraries authorized to preserve these to be technically, financially and legally enabled to do so. UIE emphasized on the need for differentiating between copyrighted, unpublished and commercially available works and achieving a consensus between stakeholders. It mentioned the following reasons for collaboration between right holders and libraries - firstly, publish may publish works in different formats, or hold information in different databases; secondly, updated data can be preserved only with collaboration; and thirdly, agreement on the mode of providing digital files to preserve libraries was also essential.

The IPA wanted a substantive debate on preservation. It wanted distinctions drawn between unpublished works, commercially available works and works in the public domain as there were different interests and different levels of consensus amongst stakeholders for these categories. The IPA also pointed out that digital preservation of digital work required co-ordination between libraries and right-holders in understanding which copies had to be preserved, the format it had to be preserved in, and how the digital files should be provided to libraries.

The (SCR) stated that there was a need for a preservation exception in copyright law since fires and other natural disasters had often led to knowledge and cultural materials being lost. SCR considered digitization to be a reliable answer. It believed that preservation could not be done simply through licensing when exceptions for archivists were unavailable. It believed that an international treaty would also prove useful where collaborative cross-border digital preservation initiatives were taking shape.

The Transatlantic Consumer Dialogue (TACD) considered preservation of a common past as a public good. It stated that current international copyrights law made it nearly impossible for librarians and archivists to engage in cross-border operations because uncertainty and possible litigation costs prevented them from engaging in preservation. It went on to state that even consumers in developed countries wanted these exceptions and limitations so that libraries could engage in cross-border preservation initiatives.

The Society of American Archivists (SAA) cited Crews' study to state that national measures and exchange of national best practices were both inadequate and instead an international instrument on limitations and exceptions for libraries and archives was necessary. It said that archivists could not preserve knowledge and serve global users without consistent and predictable laws. It also stated that 45% of WIPO's Member States provided for no exceptions on preservation and those who did were so varied in their approaches that librarians and archivists needed an international instrument to do their job. Further, according to SAA, three steps were involved in preservation - copying, updating the copies, and making the copies available when the original copy becomes damaged, obsolete, or is lost. As preservationists, it said, it needed the right to reproduce copies, migrate them either digitally or otherwise, and make them available.

The International Society for Development of Intellectual Property (the Society) pointed out that protection of IP strengthened creativity and innovation and contributed to building of a strong knowledge economy provided that it was balanced with public interest. To be successful, it said, any solution sought by the SCCR should balance different interests. It was of the opinion that this could be done either through limitations and exceptions or exchange of best practices. The Society pointed out that practical solutions were easily achievable and more likely to produce results than long term international measures.

The Canadian Library Association (CLA) explained that preservation included reproduction in digital and physical forms for the purpose of preserving and archiving a copyrighted work. It did not believe this could be adequately done with simple licensing contracts. It also pointed out that format shifting was important to ensure works remained preserved where the original mediums became obsolete or too fragile. It ended with emphasizing the importance of cross-border initiatives toward preservation.

The German Library Association stated that digital long-term preservation necessitated technical instruments. It opined that storing archives on CDs was not enough as the CDs might become unusable after a decade. It argued that multiple copies in newer formats were required to adequately preserve works. It further stated that publishers often refused to license works for this purpose and this necessitated an international instrument that harmonized laws across countries.

The European Bureau of Library Information and Documentation Associations (EBLIDA) considered libraries' role in preserving a nation's history to be a public good. It pointed out that licenses expired according to terms of subscription. It also said that libraries could not obtain back-up files for preservation and could only access them from the producer's website which provided no guarantee of preservation. Further, it stated that even in the EU, several Member States had not put in place clear comprehensive policies to ensure preservation; and, that an international solution which provided for a minimum standard for preservation regardless of the format of publication was necessary.

Member States

Brazil spoke first and underlined the importance of preservation. It proposed using technology-neutral and format-neutral terms in an exception for preservations.

Nigeria, on behalf of the African Group, pointed out that there was an overwhelming consensus amongst NGOs on the need to have an international instrument for preservation. It felt that contracts and licensing agreements could not do the job. Crews' study was credible evidence to show the need for an international instrument.

The US pointed out that the objective of their document on principles and objectives was to enable libraries and archives to do their job. Limitations and exceptions would enable libraries and archives to preserve copyrighted works in a variety of media and formats, including migration of content from obsolete formats. Though the US appreciated Crews' study, it wished to understand why different Member States had decided differently on this issue, what works required preservation, and how preservation was affected by TPMs.

Algeria stated that exceptions in its domestic laws allowed libraries to preserve one copy of a copyrighted work. It believed that an international instrument was required to harmonize these exceptions throughout the world.

UK said that its copyright law was amended in June 2014, to enable libraries and archives to make copies of copyrighted work in any format to preserve cultural heritage. It considered the current international framework and the three-step test adequate to provide for this exception.

Chile stated that its domestic law authorized libraries and archives to reproduce works that were no longer commercially available. A maximum of twelve copies could be made for non-profit uses.

Mexico also mentioned that exceptions and limitations for libraries and archives were present in its national laws. The exceptions allowed creation of copies for preservation, especially when the original had been taken out of the catalogue, had disappeared or was in a fragile state.

Ecuador said that some of the issues it wanted to consider and discuss were the subject, the number of reproductions, the format of reproductions and the circumstances in which these reproductions could be made.

India stated its Public Internet Access Programme and Information for All depended on preservation. It considered preservation important for economic development and believed it to be the foundation for intergenerational equity. Therefore, the exceptions should be wide and public interest should be the overriding factor.

Belgium stated that as in their domestic legislation, a limit on the number of copies allowed should be put in place if the purpose is preservation. Also, all exceptions should conform to the Berne three-step test. Belgium's national law did not consider works that were exhausted or out of commerce.

The Chair stated that he had prepared the introductory paragraph to the chart which mentioned that it was merely a tool to guide discussion and not a negotiating paper or a basis for the drafting exercise. The introduction encouraged evidence-based discussion without prejudging outcomes. He opened the floor for clarifications and discussions on the same.

EU thanked the Chair and stated that it wanted an agreement on what the expected outcome was before engaging in discussion. It expressed reluctance on engaging in any normative work. It stressed that there was no consensus on an international instrument. It preferred an exchange of best practices. The EU said that while a discussion on objectives and principles as proposed by the US was important, a more important exercise would be to exchange best practices and understand the rationale behind these best practices. It called for a reworking of the study by Kenneth Crews which made data more easily accessible and regrouped discussions of national studies by topic. It suggested that the WIPO Lex search database and search engine could provide for national studies even on library exceptions.

The Secretariat stated that work on the last issue was in progress and suggested that it be discussed in detail in the next session. The Secretariat also stated that it intended to organize regional seminars to provide technical assistance in this area for those who did not have exceptions yet or wanted to upgrade their laws.

Pakistan argued that the discussion was meant to include the possibility of all outcomes and not confined to any conditionality in light of the statement by EU. The Chair confirmed the same.

Nigeria, on behalf of the African Group, stated that while it was not prejudging an outcome from the discussions, it hoped that the exchange of best practices would seen as means to enhance the discussion and not as en end in itself.

Representing the Asia Pacific Group, Pakistan stated that it also did not want to prejudge outcomes but wanted to ensure that all the factual experiences were used and analyzed in a result-oriented manner. South Africa and Nigeria aligned themselves with Pakistan's position.

EU clarified that its acceptance of the chart as a tool did not mean that any outcome was acceptable or possible.

Iran aligned itself with Pakistan and South Africa.

The session on libraries and archives ended with no agreement on an international instrument.

Day 1: July 3, 2015

Agenda item 8 - Limitations and Exceptions for teaching, research, educational institutions and persons with other disabilities

Nigeria spoke first and said that the Committee should advance work on exceptions and limitations for educational and research institutions and persons with other disabilities. It reiterated that it wanted to discuss all three issues in the future sessions of SCCR.

The Central European and Baltic states group expressed interest in sharing experiences and practices regarding copyright limitations and exceptions for educational and research institutions and for persons with other disabilities.

On behalf of the GRULAC countries, Brazil welcomed the discussion on limitations and exceptions for educational and research institutions and for persons with other disabilities. It stated that there was no study on persons with other disabilities
and their relationship with limitations and exceptions and their right to culture.

The EU welcomed discussions on how copyright could support educational and research institutions and people with other disabilities in the analogue world. It stated that these exceptions could be adopted since the existing international copyright framework had adequate legal space and flexibility. It suggested that the Committee work on adopting exceptions and limitations such that national and international frameworks concur.

China, discussing its legal provisions regarding topics on the agenda, welcomed equal education and fair regulations.

Georgia, speaking on the importance of balancing the interests of copyright holders and the society, suggested that a strong and sustainable copyright system could be established through limitation and exceptions.

The US spoke about the need for exceptions and limitations for educational purposes to be consistent with international obligations. It considered collaborations with copyright industries to be essential to its education system. Firstly, it emphasized encouraging members to adopt exceptions and limitations which allowed using copyrighted works for educational purposes while ensuring a balance between rights of authors and public interest. Secondly, it encouraged the promotion of access to educational content through innovative licensing models. Thirdly, it wanted to adopt limitations and exceptions through technological learning. Finally, it included general ideals like monetary grants for non-profit education, ensuring access of copyrighted works. Owing to technological advancements and changes in the educational environment, the US welcomed the plans of WIPO to update the study on other disabilities for discussions in the Committee.

Mexico believed that education and scientific research could be encouraged by facilitating access to protected works. It also discussed executive strategies to allow the promotion of enterprises and the development of education to encourage technological innovation.

Trinidad and Tobago supported Brazil's views. It opined that the issues of limitations and exceptions for libraries and archives, and educational and research institutes are in tandem with each other.

Supporting this view, Russia stated that these issues did not have to be divided, and a single common approach could be used to resolve this conflict. It opined that it was a way of respecting the interests of authors and copyright holders, and also providing access for promoting development of science, culture and providing opportunities to citizens.

Algeria stated that the Berne Convention had established the stages for the exceptions and limitations for research and education. It argued that the exceptions and limitations should not only fulfill the needs of developing countries but other stakeholders as well. Algeria supported exceptions for research and teaching institutes.

South Africa supported a study on the challenges faced by education and research institutions and people with other disabilities, especially in the digital environment.

Sudan supported the statements of the African Group, Asia Pacific Group and GRULAC. It spoke on the need to make balanced efforts on all the issues on the Agenda to reach a consensus. In its opinion, the Marrakesh Treaty indicated that the study on exceptions and limitations and people with disabilities was required. It supported updating the study using previous studies of the International Bureau. In conclusion, it stated that libraries and archives should benefit from limitations and exceptions and should be accessible to all.

Pakistan supported the statements issued by the Asia Pacific Group, the African Group and GRULAC. It wanted time to be allocated for all three issues in future SCCR sessions. It also supported the study proposal of the African Group.

Ecuador also supported the statement of GRULAC and wished to dedicate more time to these issues in the session. It believed that all these elements, on better understanding, could help the proceedings of the committee.

Nigeria supported the intervention made by the Africa Group and the statements of Pakistan and Brazil. It considered exceptions and limitations for educational and teaching institutions, and persons with other disabilities to be important for advancement of knowledge. It highlighted the need for adjusting the international copyright system to facilitate access and usage of digital content by all.

Guatemala aligned itself with Brazil's statement. It attached importance to limitations and exceptions since it considered access to be a human right. It wanted a legal instrument covering limitations and exceptions in the digital area which considering the three-step test.

The Secretariat recalled that at SCCR 26, it had been asked to identify whether resources could be found to update the existing studies on exceptions and limitations for educational and research institutions. There were five regional studies conducted about five years ago on this topic. It reported to the Committee that it would identify the resources and start work the same year. It also sought funds in the work plan to work on it in the next bi-annum, assuming it was approved by the Member States. The Secretariat clarified that it had also been asked to look if there were resources to conduct a scoping study on the intersection of persons with other disabilities and the copyright system to understand the areas which needed to be addressed. There was an event on hearing impairment and captioning and how that intersected with this topic. There had also been a discussion on conducting additional studies and whether there would be resources for the same.

Sudan, speaking on persons with disabilities, pointed out that the same organizations which had previously tackled the subject should conduct the study since these organizations had more experience on limitations and exceptions. Sudan suggested holding seminars for direct interaction with them.

Nigeria, on behalf of the African Group, sought clarifications on whether this pertained strictly to the topics that the Secretariat had outlined - marking and scoping for persons with impaired hearing. It also wanted to know whether the captioning was for exceptions and limitations for educational and research institutions.

South Africa supported the intervention made by Nigeria.

Brazil sought further information from the Secretariat on whether it would be more efficient to have a compilation and a consolidation of the studies in one global study on the situation of exceptions and limitations under agenda item 8 than having a series of regional studies.

Japan, with regard to artists' resale rights, said that the related provision existed in the Berne Convention. However, the flexibility provided by the Berne Convention meant that the protection of resale right was left to the declaration of national laws. Japan wanted the Committee to stick with the agenda and did not support the proposal of including artists' resale rights as a new agenda item of the committee.

The US fully supported enriching the agenda, and encouraged all delegates to engage in discussions to develop it.

Chair's Summary

The Chair's draft summary was given to the regional coordinators for their inputs.. Members were free to present and reflect upon the document. But since it was the Chair's summary, he refused to enter into approval procedure for this. He suggested a set of recommendations for the Committee to discuss. The Chair advised the committee to discuss their recommendations and not the summary.

Iran raised an issue on the legal status of the summary. It pointed out that the summary had not been discussed, negotiated and approved by the Committee which went against WIPO practice.

The EU reserved the right to make comments on points of substance. These related to paragraphs that mentioned what the Committee decided, or those that mentioned individual positions taken by groups of states. It agreed with everything that was said by Japan on behalf of Group B. It also favoured the general point raised by Iran in relation to the paper carrying a disclaimer on the fact that it did not commit to the Committee in any way.

Romania, on behalf of the CEBS, expressed support for the remarks made by the Group B coordinator.

Nigeria commented on the Chair's summary as a tool for providing balance on all the concerns raised by the different regional groups. It added that even the African Group's concerns had not been reflected in the summary. However, it reiterated its confidence in the summary for the purpose of moving forward.

The Chair stated that there were fifty pages which did not appear in summary shape but did on the record shape. However a record containing different views and specific positions had been made. The Chair's view was reflected here and because it was not approved or subjected to approval by the Committee, it did not take decision on that. The Chair sought to avoid starting an exercise on common drafting of each paragraph. It invited Members to consider the approach adopted by Nigeria and some delegates from the CEBS countries without taking that as a decision of the Committee. The Chair urged members to move to the next stage of recommendations. It invited oppositions from those against this view.

The Chair distributed a separate paper to all the delegates, and a discussion was commenced to arrive at a common view for the three items on the agenda. The Chair highlighted that regarding the third topic, which was related to exceptions and limitations for educational and research institutions and persons with other disabilities, there was a mandate to deliver the Committee's recommendation to the 2015 General Assembly.

Nigeria, on behalf of the African Group, asked the Chair to have a disclaimer in the summary and set the desired precedent. It was concerned that it could lead to the Committee being extended.

Pakistan said that the Asia-Pacific Group supported text-based negotiation on agreed topics and discussions on those requiring clarification. Pakistan considered it premature to talk about the exact timing of a Diplomatic Conference which could be decided in due course after evaluating progress.

Nigeria recommended that the 2015 WIPO General Assembly direct the Committee to expedite its work towards an international legal instrument in whatever form on the topic of limitations and exceptions for libraries and archives. For agenda item 8, it recommended repetition of the same language.

Brazil, on behalf of the GRULAC group, supported the statement made by Nigeria. It supported working towards an international legal instrument in whatever form as an objective for the future work on proposed recommendation on limitations and exceptions for libraries and archives.

Pakistan, on behalf of a majority of the Asia-Pacific Group, showed support to the proposal made by Nigeria.

Iran supported the statement made by Pakistan on behalf of Asia. It pointed out that the text-based negotiations on the Treaty had not been conducted. There was also no common understanding on key issues and Articles. Iran recommended that the Committee continue its work on text-based negotiations, finding solutions for key issues and achieving consensus on key provisions in the draft Treaty. Depending on the progress of the text-based negotiations, the Committee could decide on the date for convening a Diplomatic Conference. It supported the statement made by Nigeria and Brazil, and seconded by Pakistan regarding items 7 and 8.

India supported the views expressed by Nigeria, Brazil, Pakistan and Iran on both agenda items dealing with limitations and exceptions. It suggested that the mandate of the General Assembly should reflect in the language, which was presently not the case. It sought to know the basis on which it had been decided that the Diplomatic Conference would be held in 2017 since there was no consensus of opinions yet. It suggested that the reference be left open, depending upon the two future SCCR meetings.

The Chair clarified that a recommendation without consensus could not be accepted. On observing that no Delegate requested the floor, he welcomed concluding remarks and called for closing the session.

The EU expressed disappointment on the failure to formulate a roadmap on the Treaty in 2017 and reaching a conclusion on the exception items.

Nigeria, in line with the comment made by South Africa, recommended that more effort could be made towards finalizing a language that achieves consensus.

The Chair, showing interest in the suggestion of Nigeria, expressed the desire to see whether the other delegates were keen on receiving suggestions and welcomed different views regarding this.

South Africa requested the floor and supported the statement made by Nigeria. It felt that the Committee had something on the paper and if the regional coordinators met, a consensus could be achieved.

The Chair proceeded to listening to closing remarks. The meeting closed with closing remarks by delegates.

For more details visit https://cis-india.org/a2k/blogs/report-of-the-30th-session-of-the-wipo-sccr-by-the-centre-for-internet-society

Too Clever By Half: Strengthening India’s Smart Cities Plan with Human Rights Protection

vanya — 2016-03-22T13:49:32Z

The data involved in planning for urbanized and networked cities are currently flawed and politically-inflected. Therefore, we must ensure that basic human rights are not violated in the race to make cities “smart”.

The article was published in the Wire on March 21, 2016

As Indian cities reposition themselves to play a significant role in development due to urban transformation, the government has envisioned building 100 smart cities across the country. Due to the lack of a precise definition as to what exactly constitutes a smart city, the mutual consensus that has evolved is that modern technology will be harnessed, which will lead to smart outcomes.

Here, Big Data and analytics will play a predominant role by the way of cloud, mobile technology and other social technologies that gather data for the purpose of ascertaining and accordingly addressing concerns of people.

Role of Big Data

Leveraging city data and using geographical information systems (GIS) to collect valuable information about stakeholders are some techniques that are commonly used in smart cities to execute emergency systems, creating dynamic parking areas, naming streets, and develop monitoring. Other sources which would harness such data would be from fire alarms, in disaster management situations and energy saving mechanisms, which would sense, communicate, analyze and combine information across platforms to generate data to facilitate decision making and manage services.

According to the Department of Electronics and Information Technology, the government’s plan to develop smart cities in the country could lead to a massive expansion of an IoT (Internet of Things) ecosystem within the country. The revised draft IoT policy aims at developing IoT products in this domain by using Big Data for government decision-making processes. For example, in India a key opportunity that has been identified is with regard to traffic management and congestion. Here, collecting data during peak hours, processing information in real time and using GPS history from mobile phones can give insight into the routes taken and modes of transportation preferred by commuters to deal with traffic woes. The Bengaluru Transport Information System (BTIS) was an early adopter of big data technology which resorted to aggregating data streams from multiple sources to enable planning of travel routes by avoiding traffic congestions, car-pooling, etc.

Challenges

The idea of a data-driven urban city has drawn criticism as the initiative tends to homogenize Indian culture and change the fabric of cities by treating them alike in terms of their political economy, culture, and governance.

Despite basing the idea of a smart city on the assumption that technology-based solutions and techniques would be a viable solution for city problems in India, it is pertinent to note that the collection of personal real-time data may blur the line between personal data with the large data collected from multiple sources, leaving questions around privacy considerations, use and reuse of such data, especially by companies and businesses involved in providing services in legally and morally grey areas.

Privacy concerns cloud the dependence on big data for functioning of smart cities as it may lead to erosion of privacy in different forms, for example if it is used to carry out surveillance, identification and disclosures without consent, discriminatory inferences, etc.

Apart from right to privacy, a number of rights of an individual like the right to access and security rights would be at risk as it may enable practices of algorithmic social sorting (whether people get a loan, a tenancy, a job, etc.), and anticipatory governance using predictive profiling (wherein data precedes how a person is policed and governed). Dataveillance raises concerns around access and use of data due to increase in digital footprints (data they themselves leave behind) and data shadows (information about them generated by others). Also, the challenges and the realities of getting access to correct and standardized data, and proper communication seem to be a hurdle which still needs to be overcome.

The huge, yet untapped, amount of data available in India requires proper categorization and this makes a robust and reliable data management system prerequisite for realization of the country’s smart city vision. Cooperation between agencies in Indian cities and a holistic technology-based approach like ICT and GT (geospatial technologies) to resolve issues pertaining to wide use of technology is the need of the hour. The skills to manage, analyze and develop insights for effective policy decisions are still being developed, particularly in the public sector. Recognizing this, Nasscom in India has announced setting up a Centre of Excellence (CoE) to create quality workforce.

Though it is apparent that data will play a considerable role in smart city mission, the peril is lack of planning in terms of policies to govern the big data mechanics and use of data. This calls for development of suitable standards and policies to guide technology providers & administrators to manage and interpret data in a secured environment.

Legal hurdles

The Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules 2011 deals with accountability regarding data security and protection as it applies to ‘body corporates’ and digital data. It defines a ‘body corporate’ as “any company and includes a firm, sole proprietorship or other association of individuals engaged in commercial or professional activities” under the IT Act. Therefore, it can be ascertained that government bodies or individuals collecting and using Big Data for the smart cities in India would be excluded from the scope of these Rules. This highlights the lack of a suitable regulatory framework to take into account potential privacy challenges, which currently seem to be underestimated by our planners and administrators.

Regarding access to open data, though the National Data Sharing and Accessibility Policy 2012 recognizes sensitive data, the term has not been clearly defined under it. However, the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 clearly define sensitive personal data or information. Therefore, the open data framework must refer to or adopt a clear definition drawing from section 43A Rules to bring clarity in this regard.

Way forward

As India moves toward a digital transformation, highlighted by flagship programmes like Smart Cities Mission, Digital India and the UID project, data regulation and recognition of use of data will change the nature of the relationship between the state and the individual. However, this seems to have been overlooked. Policies that regulate the digital environment of the country will intertwine with urban policies due to the smart cities mission. Use of ICTs in the form of IoT and Big Data entails access to open data, bringing another policy area in its ambit which needs consideration. Identification/development of open standards for IoT particularly for interoperability between cross sector data must be looked at.

To address privacy concerns due to the use of big data techniques, nuanced data legislation is required. For a conducive big data and technologically equipped environment, the governments must increase efforts to create awareness about the risks involved and provide assurance about the responsible use of data.

Additionally, a lack of skilled and educated manpower to deal with such data effectively must also be duly considered.

The concept note produced by the government reflects how it visualizes smart cities to be a product of marrying the physical form of cities and its infrastructure to a wider discourse on the use of technology and big data in city governance. This makes the role of big data quite indispensable, making it synonymous with the very notion of a smart city. However, the important issue is to understand that data analytics is only a part of the idea. What is additionally required is effective governance mechanism and political will. Collaboration and co-operation is the glue that will make this idea work. It is important to merge urban development policies with principles of democracy. The data involved in planning for urbanized and networked cities are currently flawed and politically-inflected. Therefore, collective efforts must go into minimizing pernicious effects of the same to ensure the basic human rights are not violated in the race to make cities “smart”.

Vanya Rakesh is Programme Officer, The Centre for Internet & Society (CIS), Bangalore. Elonnai Hickok, Policy Director of CIS, also provided inputs for this story.

For more details visit https://cis-india.org/internet-governance/blog/the-wire-march-21-2016-vanya-rakesh-too-clever-by-half-strengthening-indias-smart-cities-plan-with-human-rights-protection

Salient Points in the Aadhaar Bill and Concerns

Amber Sinha and Elonnai Hickok — 2016-03-21T04:37:48Z

Since the release of the Aadhaar Bill, the Centre for Internet and Society has been writing a number of posts analyzing the Bill and calling out problematic areas and the implications of the same. This post is meant to contribute to this growing body of writing and call out our major concerns with the Bill.

Use of Aadhaar Number

What the Bill says:

Used to establish identity: The Aadhaar number can be used by any government or private agency to validate a person’s identity for any lawful purpose, but it cannot be used as a proof of citizenship. (Sections 4, 6, and 57)
Mandatory for access to government services: The government can make it mandatory for a person to authenticate her/his identity using Aadhaar number before receiving any government subsidy, benefit, or service whose expenditure is incurred from the Consolidated Fund of India.
Those without a number, must apply for one: If someone attempting to access an applicable service does not have an Aadhaar number, he/she should make an application for enrolment, and will be allowed to use an alternative method of identification in the meantime. (Section 7)
Open to use by public and private bodies: The Bill does not prevent the use of Aadhaar number to establish identity for other lawful purposes by the State or other private bodies. (Section 57)

Concerns:

Aadhaar is not voluntary: Section 7 makes its mandatory to have an Aadhaar number to access services, subsidies and benefits, and stipulates that in case one does not have the Aadhaar number they must apply for it. This is counter to the repeated claims about Aadhaar being purely voluntary, and the Supreme Court order dated August 11, 2015 which prevents making Aadhaar mandatory, barring a few specified services. The Bill does not limit mandatory use of Aadhaar to those services, and leaves the door open for the government to route more benefits, subsidies and services through the Consolidated Fund of India and expand the scope of Aadhaar.
There are limited and unclear alternatives: While there is a proviso in the Act which speaks for “viable and alternative” means of identification where Aadhaar number is not issued, the language is not clear and speaks of cases where Aadhaar “is not assigned” rather than simply stating that it is applicable to anyone who does not have an Aadhaar number.
There is a conflict in the objects and actual scope of the Bill: There is a conflict between the objects of the Bill which is stated as identification of individuals for targeted delivery of entitlements and Section 57 which allows all entities, public or private, to use the Aadhaar number for authentication.

Enrollment Process

What the Bill says:

Enrolling agencies must provide notice: At the time of enrollment, the enrolling agency will inform the individual of the following details— i) how their information will be used; ii) what type of entities the information will be shared with; and iii) that they have a right to access their information, and also tell them how they can access their information. (Section 3)
Biometrics and demographics will be collected: Biometric information and demographic information will be collected at enrollment. Biometric information means photograph, fingerprint, Iris scan, or any other biological attributes specified by regulations. Demographic information includes information relating to the name, date of birth, address and other relevant information as specified by regulations. (Section 2)
Special measures to ensure enrollment for all: The UIDAI will take special measures to issue Aadhaar number to women, children, senior citizens, persons with disability, unskilled and unorganised workers, nomadic tribes or to such other persons who do not have any permanent residence and similar categories of individuals as specified by the regulations. (Section 5)

Concerns:

The Bill fails to address implementation issues: The Bill does not address issues that have arising during enrolment processes that have already been implemented. These include: the collection of additional and unnecessary information, unclear retention, storage, and destruction standards for data collected by enrollment agencies, abuse of methods used to ensure all have access to the enrollment process, inaccuracy in the collection of data. Detailed procedure and chain of custody for the enrollment process needs to be addressed through provisions in the Bill particularly as this process is undertaken by contracted third party registrars and enrolling agencies.
Definition of “Biometric Information” is broad and ambiguous: The Bill defines “biometric information” as “photograph, fingerprint, iris scan, or other such biological attributes of an individual.” This definition is broad and gives sweeping discretionary power to the UIDAI / Central Government to determine “other such biological attributes of an individual”. The definition should be precise and exhaustive in its scope. Any modification to this, and other terms in the Bill, should take place only through a legislative act.

Authentication Process

What the Bill says:

Consent and use limitation during authentication: The Bill states that any requesting entity will— (a) take consent from the individual before collecting his/her Adhaar information; (b) use the information only for authentication with the CIDR.
Notice during authentication: Further, the entity requesting authentication will also inform the individual of the following— (a) what type of information will be shared for authentication; (b) what will the information be used for; and (c) whether there is any alternative to submitting the Aadhaar information to the requesting entity. (Section 8)
Retention of authentication records: The UIDAI will maintain the authentication records in the manner and for as long as specified by regulations. (Section 32) The UIDAI will not collect, keep or maintain any information about the purpose of authentication. (Section 32)
Ability to obtain authentication records: Every Aadhaar number holder may obtain his authentication record as specified by regulations. (Section 32)
Requirement to update information: The UIDAI has the power to require residents to update their demographic and biometric information from time to time. (Section 6)

Concerns:

Lack of strong consent mechanism: While the Bill does provide for seeking consent for collecting and using an Aadhaar for authentication, the Bill does not specify that this must be informed consent with an ‘opt out’ mechanism and does not specify the manner in which such consent should be sought. This leaves it it in the hands of the UIDAI and possibly the third requesting entity to determine the form of consent that is to be taken. This could result in ambiguous, misleading, or inconsistent consent mechanisms being used.
Lack of strong notice mechanism: While the Bill does provide that individuals should be given notice of the type of information be shared and what the information will be used for, and any alternative identity that will be accepted during the authentication process this is a minimal notice and does not meet the standards in the (Reasonable security practices and procedures and sensitive personal data or information) Rules 2011 which require individuals to be notified of a) the fact that the information is being collected b) the purposes for which the information is being collected c) the intended recipients of the information d) the name and address of the agency collecting the information and the agency that will retain the information. Furthermore, the Bill does not require the UIDAI, contracted bodies, or requesting entities to notify individuals of any changes in organizational privacy policies.
“Obtaining” rather than the right to access: Instead of providing the individual with a clear right to access the information that the UIDAI holds about him or her, the Bill waters down this safeguard by giving the individual the ability to obtain only his authentication record. What ‘obtaining’ will entail and how one will go about it is delegated to regulations.
Lack of ability to opt out, withdraw consent and/or ‘exit’ Aadhaar: There are no opt-out mechanisms in the Aadhaar Act.This means that individuals cannot:

Opt out and leave the Aadhaar ‘ecosystem’ once enrolled and their information is not deleted.
Opt out of sharing of information at the enrollment stage or authentication stage.
Opt out of any use, disclosure, or retention of their information prescribed by the Act.

Security

What the Bill says:

Security measures for information with UIDAI: The UIDAI will take measures to ensure that all information with the UIDAI, including CIDR records is secured and protected against access, use or disclosure and against destruction, loss or damage. (Section 28)
Security measures through contract: The UIDAI will adopt and implement appropriate technical and organisational security measures, and ensure the same are imposed through agreements/arrangements with its agents, consultants, advisors or other persons. (Section 28)
Security protocol via regulations: The UIDAI has the power to prescribe via regulation various processes relating to data management, security protocol and other technology safeguards (Section 54)

Concerns:

Undefined security measures: The Bill specifies that appropriate technical and organisational security measures shall be put in place without elaborating upon what those measure should be or defining any standards that they will adhere to. The Bill gives the Authority the power to define broad regulations pertaining to security protocol.

Confidentiality

What the Bill says:

Restriction on Sharing, Disclosure, and Use: Unless otherwise provided, the UIDAI or its agents will not reveal any information in the CIDR to anyone. (Section 28) The core biometric information collected will not be a) shared with anyone for any reason, and b) used for any purpose other generation of Aadhaar numbers and authentication. (Section 29) Identity information, other than core biometric information, may be shared as per this Act and regulations specified under it. (Section 29) Identity information available with a requesting entity will not be used for any purpose other than what is specified to the individual, nor will it be shared further without the individual’s consent. (Section 29) Aadhaar numbers or core biometric information will not be made public except as specified by regulations. (Section 30)
Application of Information Technology Act: All biometric information collected and stored in electronic form will be deemed to be “electronic record” and “sensitive personal data or information” under Information Technology Act, 2000 and its provisions and rules will apply to it in addition to this Act. (Section 30)

Concerns:

Aadhaar numbers and biometric information to be made public: It is unclear for what purposes it would be necessary for Aadhaar numbers and core biometric information to be made public and it is concerning that such circumstances are left to be defined by regulation. This is different from the Telegraph Act and the IT Act which define the circumstances for interception in the Act and define the procedure for carrying out interception orders in associated Rules. Defining circumstances for such information to be made public is against the disclosure standards in the 43A Rules - which would be applicable to the UIDAI and the disclosure of core biometric information.
Unclear application of Section 43 A Rules: The Bill characterises biometric information collected as ‘sensitive personal data or information’ under the Information Technology Act, 2000 and Section 43A Rules and states that the Act and Rules would be applicable to biometric information. If this is the case, than any body corporate (including the UIDAI) collecting, processing, or storing biometric information would need to follow the standards established in the Rules - including standards for collection, consent, disclosure, sharing, retention, and security. Yet, the Bill allows the UIDAI to make regulations for collection, disclosure, security etc.

Disclosure

What the Bill says:

Disclosure during authentication: During authentication, the UIDAI will respond to the authentication request with yes, no, or other appropriate response and share identity information about the Aadhaar number holder, but not share any biometric information. (Section 8)
Exceptions to confidentiality provisions: The UIDAI may reveal identity information, authentication records or any information in the CIDR following a court order by a District Judge or higher. Any such order may only be made after UIDAI is allowed to appear in a hearing. (Section 33) The confidentiality provisions in Sections 28 and 29 will not apply with respect to disclosure made in the interest of national security following directions by a Joint Secretary to the Government of India, or an officer of a higher rank, authorised for this purpose. (Section 33)
Oversight Committee: An Oversight Committee comprising Cabinet Secretary, and Secretaries of two departments — Department of Legal Affairs and DeitY— will review every direction under 33 B above. Any directions in the interest of national security above are valid for 3 months, after which they may be extended following a review by the Oversight Committee. (Section 33)

Concerns:

Unnecessary disclosure during authentication: Usually authentication would be a binary process leading to a yes or no result, however, Section 8 also allows sharing of identity information in certain cases. It is unclear why any additional information would need to be shared in the authentication process.
Lack of opportunity to data subject: In case of a court order identity information and authentication records of an individual can be revealed without any notice or opportunity of hearing to the individual affected. Aside from allowing the UIDAI a right to be heard, the Bill does not provide any means by which an individual can contest such an order or challenge it after it has been passed.
Lack of defined functions and responsibilities of oversight mechanisms: Section 33 currently specifies a procedure for oversight by a committee, however, there are no substantive provisions laid down as the guiding principles establishing the responsibilities and powers of the oversight mechanism.
Low standards for disclosure order: Though a court order from a District Judge is required to authorize disclosure of information, the Bill fails to define important standards that such an order must meeting including that the order is necessary and proportionate.
Sweeping exception of National Security: Disclosures that are made ‘in the interest of national security’ do not require authorization by a judge and instead can be authorized by the Joint Secretary of the Government of India - a standard lower than that established in the Telegraph Act and IT Act for the interception of communications.

Power of UIDAI to make rules and regulations

What the Bill says:

The matters on which the UIDAI may frame rules include:

The process of collecting information,
Verification of information,
Individual access to information,
Sharing and disclosure of information,
Alteration of information,
Request and response for authentication,
Defining use of Aadhaar numbers,
Defining privacy and security processes,
Specifying processes relating to data management, security protocols and other technology safeguards under this Act
Establishing redressal mechanisms.

Concerns:

Over delegation of powers to the UIDAI: This Bill follows in the tradition of laws like the Information Technology Act, which allows the executive a very high degree of discretionary power. As mentioned above, a number of important powers which should ideally be within the purview of the legislature are delegated to the UIDAI. The UIDAI has been administrating the project since its inception, and a number of problems have already been documented in process such as collection, verification, sharing of information, privacy and security processes. Rather than addressing these problems, the Bill allows the UIDAI to continue to have similar powers.
Lack of independence of grievance redressal mechanism: Within the text of the Bill there are no grievance redressal mechanism created under the Bill. The power to set up such a mechanism is delegated to the UIDAI under Section 23 (2) (s) of the Bill. However, making the entity administering a project, also responsible for providing for the frameworks to address the grievances arising from the project, severely compromises the independence of the grievance redressal body.

For more details visit https://cis-india.org/internet-governance/salient-points-in-the-aadhaar-bill-and-concerns

The Digital is Political

nishant — 2016-06-05T03:58:46Z

To speak of technology is to speak of human life and living.

The article was published in the Indian Express on March 20, 2016.

“You are supposed to write about the internet, why do you keep talking about all this politics?” I was taken aback when I was faced with this question. It is true – since the year has begun, I have talked about digital education and the ways in which it needs to account for unexpected and underserved communities, about net neutrality and why the Indian government needs to build a stronger, safer, and a more inclusive digital ecosystem. I have written about freedom of speech and expression and how this is going to be the year when we stand together to save the internet from vested interests that seek to convert it from a public commons into a private commodity.

In my head, all these questions — of inclusion, of access, of presence, of rights — are questions of human life and living, but they are also those that are being hugely restructured by the internet and digital technologies. When faced with the query, I was reminded of a deep-seated division that has been at the heart of digital cultures.

Way back in the ’90s, when the internet was still a space of science fiction and the World Wide Web was in its nascent stages, there was a distinction made between Virtual Reality (VR) and Real Life (RL). The presumption in the construction of these categories was that the digital is only an escape, the technological is merely a prosthesis, and the internet is just a thing that a few geeks engaged with in their free time. However, the last three decades have made this distinction between VR and RL redundant.

We live in digital times. The digital is not just something we use strategically and specifically to do a few tasks. Our very perception of who we are, how we connect to the world around us, and the ways in which we define our domains of life, labour, and language are hugely structured by the digital technologies. The digital is ubiquitous and hence, like air, invisible. We live within digital systems, we live with intimate gadgets, we interact through digital media, and even though we might all be equally digital natives, there is no denying the fact that the very presence and imagination of the digital has dramatically restructured our lives. The digital, far from being a tool, is a condition and context that defines the shapes and boundaries of our understanding of the self, the society, and the structures of governance.

The pervasive nature of the digital technologies and internet can be found at multiple levels. For instance, we do not think about going online anymore, because most of our devices are connected 24×7 to the digital web. Even when we are not online, sunk in a bad network connection, or protecting our precious data usage, we know that our avatars and digital identities are online and talking without us.

So established is this phenomenon that we even have a name for the anxiety it creates: FOMO — the Fear Of Missing Out. Similarly, the digital can be located at the level of human understanding. We are used to thinking of ourselves as digital systems. We talk about our primary identity as one marked by information overload. We often complain, when faced with too many demands on our time and space, that we don’t have enough bandwidth to deal with new problems, and we are not referring to digital connectivity.

The digital also has space at the level of policy and governance. If you, like the many millions of Indians, have registered for an Aadhaar card, you have already been marked by a digital identity whether or not you have broadband access. When our government launches Digital India campaigns, it is not merely about an economic model of growth, but it is suggesting that the digital is going to be at the foundations of the new India that we want to build for the future.

If the digital is so central to our fundamental understanding of the self, the society, and the state, then surely it is time to stop thinking that these technologies have nothing to do with politics? There remains a forced imagination of technologies as devices, as tools, as prostheses which do not have any other role than the performing of a function. However, this is a fallacy, because not only do technologies shape our sense of who we are, but they also prescribe new templates and models of who we are going to be. In the process, these technologies take political action, create social structures, mobilise cultural possibilities, and often, because they are technologies that are still elite and available to the privileged few in the country, they enable decisions which are not always fair, open, and just.

Hence, a technological decision cannot be read merely as a technical decisions but as human decisions. To speak of technology is to speak of human life and living. To write about technology is to write about politics, because a separation between the two is not only futile but downright dangerous.

For more details visit https://cis-india.org/internet-governance/blog/indian-express-march-20-2016-nishant-shah-digital-is-political

IP Meetup #02: Prabir Purkayastha on the CRI Guidelines and software patenting in India

sinha — 2016-03-29T17:06:13Z

Prabir Purkayastha will deliver a short talk on what the Guidelines on Computer Related Inventions mean for software patenting, and the way forward, on Sunday, March 20th, 2016 at the CIS Delhi office, at 4 p.m.

We would like to invite you to the second session of a series of IP focused meetups. The meetups are aimed at bringing folks together working within or interested in IP law, to discuss recent developments with reference to access to knowledge, climate change, health, trade, etc.

The talk will be followed by a round of discussion, after which the floor will be thrown open for other pressing/relevant IP developments.

Please join us for tea and refreshments at 3.30 pm.

Please RSVP by dropping a line at anubha@cis-india.org.

CIS Delhi's location on Google Maps: https://goo.gl/maps/nPKkoQFhRSt

For more details visit https://cis-india.org/a2k/events/ip-meetup-02-prabir-purkayastha-on-the-cri-guidelines-and-software-patenting-in-india

February 2016 Bulletin

praskrishna — 2016-03-20T05:13:30Z

The Centre for Internet & Society is happy to share its February 2016 newsletter. Previous issues of the newsletters can be accessed at http://cis-india.org/about/newsletters.

Highlights
The Researchers at Work programme organised the Internet Researchers' Conference 2016 (IRC16) on February 26-28. It was hosted by the Centre for Political Studies at the Jawaharlal Nehru University, and was generously supported by the CSCS Digital Innovation Fund. Subhashish Panigrahi won the Yuva Prerana Samman award. The award was conferred during the 2nd International Conclave of Odia Language (organized by Intellects, a Delhi-based progressive forum of intellectuals) at the India International Centre in New Delhi on February 20, 2016. Odisha News covered the event. Subhashish Panigrahi wrote an article for the Hoot on whether Wikipedia could revive dying Indian languages. Panigrahi stated that by encouraging content and involvement languages could be kept relevant. The article was republished by Pratham Books. Kannada Wikipedia just celebrated its 13th anniversary. As part of the WikipediansSpeak series Subhashish Panigrahi caught up with Vasanth to learn about his contributions to the Kannada Wikipedia. In the discussion Vasanth shared his long time involvement in the Wikimedia movement, and spoke about what drove him every day to edit Wikipedia and helping other fellow Wikimedians. Sunil Abraham's article on Facebook's Free Basics was published by First Post. He stated that there is more to come from TRAI in terms of net neutrality regulations especially for throttling and blocking. Nehaa Chaudhari wrote an article for the Socio Legal Review (National Law School of India University). The article seeks to examine legal and policy lever and the role of regulator in the development of an enabling environment for access to sub-hundred dollar mobile devices. In a recently published paper, Jahnavi Phalkey and Sumandro Chattapadhyay explore public initiatives in technological solutions for educating the poor and the disadvantaged in independent India. The United Nations Educational, Scientific and Cultural Organisation (UNESCO) had published a book in 2014 that examines free speech, expression and media development. The chapter contains a Foreword by Irina Bokova, Director General, UNESCO. Pranesh Prakash contributed to the Independence: Introduction - Global Media Chapter. The book was edited by Courtney C. Radsch. India should apply electronic toll collection systems to roads, and adapt road network concepts in organizing and managing communications networks wrote Shyam Ponappa in an Op-Ed published by the Business Standard.

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Accessibility & Inclusion
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India has an estimated 70 million persons with disabilities who don't have access to read printed materials due to some form of physical, sensory, cognitive or other disability. As part of our endeavour to make available accessible content for persons with disabilities we are developing a text-to-speech software in 15 languages with support from the Hans Foundation. The progress made so far in the project can be accessed here.

►NVDA and eSpeak

Report

February 2016 (Suman Dogra; February 28, 2016).

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

►Pervasive Technologies

Article

Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation? (Nehaa Chaudhari; Socio Legal Review, National Law School of India University; February 25, 2016).

Participation in Event

2016 Works-in-Progress Intellectual Property ("WIPIP") Colloquium (Organized by School of Law, University of Washington; Washington D.C.; February 19 - 20, 2016). Prof. Jorge Contreras presented a paper co-authored by Rohini Lakshané on the patent landscape conducted for the Pervasive Technologies project.

► Copyright and Patent

MHRD IPR Chair Series: Information Received from University of Madras (Karan Tripathi; February 19, 2016).
MHRD IPR Chair Series: Information Received from Cochin University of Science and Technology (Karan Tripathi; February 21, 2016).
MHRD IPR Chair Series: Information Received from IIT, Bombay (Karan Tripathi; February 22, 2016).
MHRD IPR Chair Series: Information Received from IIT, Delhi (Karan Tripathi; February 22, 2016).
The new Guidelines for Computer Related Inventions are a big win for FOSS in India! (Anubha Sinha; February 23, 2016).

Event Organized

IP Meetup #01: Prof. Biswajit Dhar on 'Intellectual Property issues: The Way Forward post Nairobi WTO Ministerial' (CIS, New Delhi; February 7, 2016). Prof. Dhar gave a talk.

►Wikipedia

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

Articles

Can Wikipedia revive dying Indian languages? (Subhashish Panigrahi; The Hoot; February 19, 2016 and mirrored by Pratham Books; February 22, 2016).
Community Digest—Estonians working on a new feedback system for Wikipedia articles (Subhashish Panigrahi; Wikimedia Blog; February 27, 2016).
Looking ahead to the future of the Kannada Wikipedia: Vasanth S.N. (Subhashish Panigrahi; Wikimedia Blog; February 29, 2016).
ଓଡ଼ିଆ ଭାଷା ପାଇଁ ଏକ ଅନୁଶୀଳନ (Subhashish Panigrahi; Suryaprava; February 22, 2016).
ଓଡ଼ିଆ ଭାଷା ପାଇଁ ଏକ ଅନୁଶୀଳନ (Subhashish Panigrahi; Samaja; February 21, 2016).
ମାତୃଭାଷା ଦିବସ: ଆଜିର ସମସ୍ୟା ଓ ଆହ୍ୱାନ (Subhashish Panigrahi; Sambad; February 21, 2016).

Submission

Cultural institution AKA GLAM for more OER (Subhashish Panigrahi; February 27, 2016). Subhashish's submission under the theme of "Innovative approaches to opening up cultural heritage collections for education" has been selected for the OER16 conference to be held in Edinburg, Scotland from 19 to 20 April 2016.

Media Coverage

Youth is responsible for protecting Telugu (Eenadu; January 14, 2016).
Why aren’t Indians using Wikipedia to hold the government to account? (Madhav Gadgil; Scroll.in; February 6, 2016).
Now trending: Regional Indian language social media networks (Kanika Sharma; Hindustan Times; February 14, 2016).
International Mother Language Day (Eenadu; February 21, 2016).
ಪ್ರಶಾಂತವನ (Prashasti Prashantavanam; February 21, 2016).

Award

The Intellects, a Delhi-based progressive forum of intellectuals, held the 2nd International Conclave of Odia Language at the India International Centre in New Delhi on February 20, 2016. Subhashish Panigrahi participated in the event and won the Yuva Prerana Samman award. Odisha News covered the event.

Event Organized

Digitisation sprint at Andhra Loyola College Vijayawada to bring more books on Telugu Wikisource (Andhra Loyola College, Off Eluru Road, Behind Vinayak Theater, Vijayawada, Andhra Pradesh; February 12 to 14, 2016).

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Openness
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Our work in the Openness programme focuses on open data, especially open government data, open access, open education resources, open knowledge in Indic languages, open media, and open technologies and standards - hardware and software. We approach openness as a cross-cutting principle for knowledge production and distribution, and not as a thing-in-itself.

Articles

Monitoring Sustainable Development Goals in India: Availability and Openness of Data (Part I) (Kiran AB, Openness Blog, February 22, 2016)

Submission

Open Data Hackathons are Great, but Address Privacy and License Concerns (Nisha Thompson, Cross-posted from DataMeet, February 05, 2016)

Participation in Event

National Koha Conclave (Organized by Informatics Publishing; Fortune Park JP Celestial; Bangalore; February 17, 2016). Sunil Abraham delivered the inaugural address on the occasion.

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

►Big Data

Database on Big Data and Smart Cities International Standards (Vanya Rakesh; February 11, 2016).
Sean McDonald - Ebola: A Big Data Disaster (Sumandro Chattapadhyay; February 29, 2016).

►Freedom of Expression

Articles

‘A Good Day for the Internet Everywhere': India Bans Differential Data Pricing (Subhashish Panigrahi; Global Voices; February 9, 2016).
Net Neutrality Advocates Rejoice As TRAI Bans Differential Pricing (Subhashish Panigrahi; Odisha TV; February 9, 2016).
Facebook's Fall from Grace: Arab Spring to Indian Winter (Sunil Abraham; First Post; February 11, 2016).
Internet Freedom (Sunil Abraham and Vidushi Marda; Asian Age; February 14, 2016).
There is No Such Thing as Free Basics (Subhashish Panigrahi; February 14, 2016).
World Trends in Freedom of Expression and Media Development (Pranesh Prakash; United Nations Educational, Scientific and Cultural Organisation; February 17, 2016). Pranesh Prakash contributed to Independence: Introduction - Global Media Chapter.

Event Organized

Public Debate on 'Differential Pricing': Series 1 (Co-organized by CIS, ICRIER and the Department of Civics and Politics, University of Mumbai; CIS, Bangalore; February 1, 2016).
Public Debate on 'Differential Pricing': Series 2 (Co-organized by CIS, ICRIER and the Department of Civics and Politics, University of Mumbai; Pherozeshah Mehta Bhavan, Vidyanagari, Kalina, Mumbai; February 3, 2016).
Public Debate on 'Differential Pricing': Series 3 (Co-organized by CIS, ICRIER and the Department of Civics and Politics, University of Mumbai; India Habitat Centre, Lodhi Road near Air Force Bal Bharti School, New Delhi; February 5, 2016).

Participation in Event

UNICEF & Nasscom Foundation Workshop on Child Online Protection (Organized by United Nations Children's International Education Fund; Hotel Claridges; New Delhi; February 8, 2016). Jyoti Panday attended the event.

►Privacy

Submission

Comments by the Centre for Internet and Society on the Report of the Committee on Medium Term Path on Financial Inclusion (Vipul Kharbanda; February 27, 2016).

Blog Entry

A Case for Greater Privacy Paternalism? (Amber Sinha; February 14, 2016).

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

Bottled-Up National Assets (Shyam Ponappa; Business Standard and Organizing India BlogSpot; February 3, 2016).

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

Article

The Aakash Tablet and Technological Imaginaries of Mass Education in Contemporary India (Jahnavi Phalkey and Sumandro Chattapadhyay; February 14, 2016).

Video

RAW Lectures #02: Anil Menon on 'Speculative Fiction and Freedom' - Video (CIS, Bangalore; January 13, 2016). The video was uploaded on February 9, 2016.

Events Organized

Internet Researchers' Conference 2016 (Jawaharlal Nehru University, Delhi; February 26 - 28, 2016).

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

India bans Facebook’s ‘free’ Internet for the poor (Annie Gowen; Washington Post; February 8, 2016).
Zuckerberg's Plan Spurned as India Backs Full Net Neutrality (Adi Narayan and Bhuma Srivastava; Bloomberg; February 8, 2016).
A Megacorp’s Basic Instinct (Arindam Mukherjee; Outlook; February 8, 2016).
Facebook’s Free Basics hits snag in India (James Crabtree with additional reporting by Tim Bradshaw; Financial Times; February 8, 2016).
Trai upholds Net Neutrality in setback to Facebook’s Free Basics (Moulishree Srivastava and Shauvik Ghosh; Livemint; February 9, 2016).
India Sets Strict New Net Neutrality Rules (Anjana Pasricha; Voice of America; February 9, 2016).
Net neutrality advocates hail Trai verdict (Alnoor Peermohamed; Business Standard; February 9, 2016).
Netizen Report: The EU Wrestles With Facebook Over Privacy (Global Voices; February 11, 2016).
Linking Facebook use to free top-up data (Deccan Chronicle; February 14, 2016).
India's ‘Facebook ruling’ is another nail in the coffin of the MNO model (The Register; February 15, 2016).
Violence call key to 'sedition' (The Telegraph; February 18, 2016).
Why the Internet is Making India Furious (Sanjana Sathian; Ozy; February 19, 2016).
Why India snubbed Facebook's free Internet offer (Daniel Van Boom; Cnet; February 26, 2016).

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About CIS
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The Centre for Internet and Society (CIS) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. The academic research at CIS seeks to understand the reconfigurations of social and cultural processes and structures as mediated through the internet and digital media technologies.

► Follow us elsewhere

Twitter: http://twitter.com/cis_india
Twitter - Access to Knowledge: https://twitter.com/CISA2K
Twitter - Information Policy: https://twitter.com/CIS_InfoPolicy
Facebook - Access to Knowledge: https://www.facebook.com/cisa2k
E-Mail - Access to Knowledge: a2k@cis-india.org
E-Mail - Researchers at Work: raw@cis-india.org
List - Researchers at Work: https://lists.ghserv.net/mailman/listinfo/researchers

► Support Us

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

► Request for Collaboration

We invite researchers, practitioners, artists, and theoreticians, both organisationally and as individuals, to engage with us on topics related internet and society, and improve our collective understanding of this field. To discuss such possibilities, please write to Sunil Abraham, Executive Director, at sunil@cis-india.org (for policy research), or Sumandro Chattapadhyay, Research Director, at sumandro@cis-india.org (for academic research), with an indication of the form and the content of the collaboration you might be interested in. To discuss collaborations on Indic language Wikipedia projects, write to Tanveer Hasan, Programme Officer, at tanveer@cis-india.org.

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

For more details visit https://cis-india.org/about/newsletters/february-2016-bulletin

Pratap Vikram Singh - Why Aadhaar is Baseless?

praskrishna — 2016-04-02T05:31:30Z

This article by Pratap Vikram Singh, Governance Now, discusses the problems emerging out of the UIDAI project due to its lack of mechanisms for informed and granular consent, and for seeking recourse in the case of denial of service. The article quotes Sumandro Chattapadhyay and mentions Hans Varghese Mathew's work on the biometric basis of UIDAI. It was written before the Aadhaar bill was passed in Lok Sabha.

Cross-posted from Governance Now.

It was no less than a roller-coaster ride for Aadhaar, a programme formulated by the UPA government to assign a 12-digit unique number to every Indian resident. From the time it came into being in 2009, Aadhaar drew a volley of criticism, thanks to the misgivings and apprehensions that various critics and civil society organisations had. It was criticised for lack of a clear purpose, degree of effectiveness and absence of a privacy law and was virtually thrown into the bin by a parliamentary panel headed by BJP’s Yashwant Sinha in December 2011.

When the finance minister Arun Jaitley, in his budget speech, announced that the government would introduce the Aadhaar bill during the budget session, expectations were already set high. The bill, giving statutory backing to the unique identification authority of India (UIDAI), the implementing authority, was passed by the Lok Sabha on March 11. While the privacy and voluntary versus mandatory provisions are under the consideration of the supreme court, the bill makes way for linking Aadhaar with all government subsidies, benefits and services. The law on Aadhaar, former UIIDAI chairman Nandan Nilekani wrote in the Indian Express, will help the government in going paperless, presence-less and cashless. The legislation, however, fails to deliver on several counts.

However, prior to evaluating the bill (yet to be passed by the Rajya Sabha at the time of this writing though it is a money bill), let us take a look at its major aspects. For those, who always wondered whether Aadhaar is mandatory or voluntary, the bill 2016 makes it mandatory to avail subsidy, benefit or a service from the government.

The bill has provisions related to information security and confidentiality (section 28) which not only extend to employees of the UIDAI but also consultants and external agencies working with the authority.

The proposed law restricts information sharing. It bars UIDAI from sharing core biometric information – the bill defines it as fingerprints and iris scan – with “anyone for any reason whatsoever” or “used for any purpose other than generation of Aadhaar numbers and authentication under this Act”. The section 32 of the bill entitles Aadhaar number holders to access her or his authentication record. It also bars the authority from collecting, keeping or maintaining information about the purpose of authentication.

Odd Drives the Bill

While the intent is clear and is aimed at streamlining welfare schemes to ensure it reaches the bottom of the pyramid, cutting through the long chain of pilferage and subversion, the bill, however, has several shortcomings. To begin with, the government should not have taken the money bill route to pass the legislation – tactfully avoiding any conclusive discussion and debate in the Rajya Sabha, where it is in minority.

The bill assumes that the technology and the biometric system used by the UIDAI are flawless and it doesn’t provide any recourse in case of denial of a service. “If your fingerprint is not matching and you lose out on service, then what is the alternative mechanism you have,” asks Sumandro Chattapadhyay, research director, centre for internet and society (CIS). The bill doesn’t provide for recourse. “What if the scanning machine fails? What if the identifiers of two people match?”

Based on experiments conducted in the initial days of the Aadhaar programme, Hans Verghese Mathews, another CIS researcher, did a study on the probability of matching of identifiers of two persons. “For the current population of 1.2 billion the expected proportion of duplicands (users whose identifiers match) is 1/121, a ratio which is far too high,” Mathews wrote in the Economic and Political Weekly in February.

“It is like putting the technology in a black box – which can’t be reviewed,” says Chattapadhyay. The bill doesn’t talk about setting up an independent body to review the logs and keep an eye on wrong and duplicate matches.

Who Defines National Security?

According to public policy experts, it is an attempt to seek “minimal legitimacy” from parliament and further adds to the unbridled power of the executive.

Although the bill restricts information sharing in section 29, sections 33 and 48 provide exemption in cases of national security and public emergency, respectively. The legislation, nevertheless, doesn’t elaborate on what constitutes national security and public emergency, leaving it to the executives. The section 33 reads: “Nothing contained in… shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security….”

Similarly, section 48 states that if, at any time, the central government is of the opinion that a public emergency exists, “the central government may, by notification, supersede the Authority for such period, not exceeding six months, as may be specified in the notification and appoint a person or persons as the president may direct to exercise powers and discharge functions under this Act”.

Says Jayati Ghosh, professor, centre for economic studies and planning, Jawaharlal Nehru University, “National security is a very opaque term. Who decides what national security is? Today, the whole JNU is being projected as a threat to national security.” Swagato Sarkar, associate professor and executive director, Jindal school of government and public policy, OP Jindal Global University, says, “The bill has provisions for oversight on the use of Aadhaar, but then it suspends those provisions in case of emergency in the later sections, giving the state the power to use biometric information for whatever it deems fit.”

Sarkar adds, “It seems the bill is simply an instrument for seeking minimum legitimacy from parliament. The bill tries to address the concern of privacy minimally and it hardly serves any purpose.” He believes that there is a need to define the broader contours of democratic control of the state and reassess the changing state-citizen relationship, instead of rejecting the whole idea on the basis of surveillance and privacy. In other words, there is a need for strong parliamentary oversight, and that the Aadhaar related matters shouldn’t be completely delegated to the executive.

In its recommendations on formulating Privacy Act, the justice AP Shah committee in 2012 provided for establishing the office of privacy commissioner at the regional and central levels, defining the role of self-regulating organisations and co-regulation, and creating a system of complaints and redressal for aggrieved individuals. Since the country still doesn’t have any legislation on privacy, people are left on their own in case of an infringement or violation of privacy. Moreover, section 47 states, “No court shall take cognizance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.”

In its report, the parliamentary committee headed by Yashwant Sinha notes that “enactment of national data protection law… is a prerequisite for any law that deals with large scale collection of information from individuals and its linkages across separate databases”. The committee notes that in absence of data protection legislation, it would be difficult to deal with issues of access, misuse of personal information, surveillance, profiling, linking and matching of databases and securing confidentiality of information.

Subsidy-Aadhaar Linkage

The Sinha committee also takes a cautious view of the role of Aadhaar in curbing leakages in subsidy distribution, as beneficiary identification is done by states. It notes, “Even if the Aadhaar number links entitlements to targeted beneficiaries, it may not even ensure that beneficiaries have been correctly identified. Thus, the present problem of proper identification would persist.”

According to Ghosh, the biggest danger in using Aadhaar for social welfare programmes is that the fingerprints of the rural working class is not always in good shape and hence Aadhaar will not be the best way of identification. “If I am misidentified, I can go to so many places for recourse. But what if a labourer in a remote Jharkhand village is misidentified? Where and whether he would go?” the economist asks. Besides, the bill doesn’t limit the use of Aadhaar and defines areas where it can be used. Section 57 says that the law will not prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, “whether by the state or anybody corporate or person, pursuant to any law, for the time being in force or any contract to this effect.”

According to a PRS Legislative review, since the bill also allows private persons to use Aadhaar as a proof of identity for any purpose, the provision will open a floodgate and enable private entities such as airlines, telecom, insurance and real estate companies to mandate Aadhaar as a proof of identity for availing their services.

Since the bill doesn’t restrict its application, people will not have a choice to identify themselves other than using Aadhaar when corporate organisations make it mandatory, says Chattapadhyay of the CIS. Adds Sarkar, “The bill should clearly mention sectors or services where Aadhaar will be potentially used (or made mandatory). Every time a new sector or service is added to the list, it is done after parliamentary approval.”

So far, 98 crore people have been assigned Aadhaar number. So far the project has costed Rs 8,000 crore.

For more details visit https://cis-india.org/internet-governance/news/gov-now-pratap-vikram-singh-17032016-why-aadhaar-is-baseless

Studying Digital Creative Industries in India: Initial Questions

sneha-pp — 2016-03-18T13:55:56Z

This brief overview of the discourse around creative industries is an attempt to explore some ways of identifying what could be digital creative industries in India, and the questions they raise and problematize for us in terms of cultural expression, knowledge production, creativity and labour. The term ‘creative industries’ has been around for a while now, but with the advent of the digital, and with interest from different sectors, especially with a focus on policy and economic development, it would be essential to critically examine the discourse around the term, and see where it may be changing to open up new possibilities, particularly for the arts, humanities and design.

Introduction

The term ‘creative industries’ has been popular for more than two decades now, and continues to remain an important sector for research and development, as indicated by several shifts in policy and public discourse in the last few years. A significant move has been the foregrounding of creativity and knowledge as important resources for economic growth and social well–being. The term has a connection with the older and more specific term ‘cultural industries’, with its origins in the Frankfurt School [1] of theory, but has developed as part of a larger discourse around the creative economy/knowledge economy. First used in Australia in 1994 as part of a report titled Creative Nation [2], it became more widely recognized in the following years with the setting up of the Creative Industries Task Force by the United Kingdom’s Department of Culture, Media and Sport in 1997.The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) [3] was perhaps the most prominent global effort in recognizing and taking steps towards fostering the growth of creativity and cultural production as part of sustainable development.

Following this there have been several other initiatives across the world, most noticeably in the Anglo-American context, that have built upon this framework to ease and facilitate cross-cultural flows and diversity in the circulation of information, labour and goods. Increasingly, the attempt now is to understand the relevance of these efforts in the digital age, where several advancements in technology and the ubiquitous presence of the internet continue to determine the creation, circulation and consumption of cultural commodities. This blog post is an attempt to outline some initial thoughts on what could be the possibilities of studying ‘digital’ creative industries in India. The digital is an inherent aspect of much cultural and creative expression today, given the steady transition from analogue to digital and the increased presence of internet in almost every domain. What would constitute creative digital industries in the present moment, how do they determine the larger course of cultural production, and pose new questions for labour, commodities, creativity and technology more broadly are some of the questions explored here.

According to the UN Creative Economy Report 2010 [4] the creative industries:

are the cycles of creation, production and distribution of goods and services that use creativity and intellectual capital as primary inputs;
constitute a set of knowledge-based activities, focused on but not limited to arts, potentially generating revenues from trade and intellectual property rights;
comprise tangible products and intangible intellectual or artistic services with creative content, economic value and market objectives;
stand at the crossroads of the artisan, services and industrial sectors; and
constitute a new dynamic sector in world trade.

As the report mentions, these are ‘evolving’ concepts and definitions, and just the number of areas that can come within the purview of the creative industries has increased greatly in the last decade. The report classifies creative industries under four different models as illustrated here:

Source: UN Creative Economy Report 2010.

Creative Industries in India

In India, there has been a keen interest in the potential of creativity as a resource, although creative industries may not be a popularly used term. From a policy perspective it is largely in terms of opportunities for economic growth, and more recently the potential for innovation and entrepreneurship, as seen in the Niti Aayog report presented in 2015 [5], which says that:

the committee proposes using digital platforms to encourage innovation, reforming the educational system to encourage creativity and upskilling workers to make them more employable, improving the ease of doing business, and strengthening intellectual property rights. Finally, the committee also proposes a number of measures to change cultural biases and attitudes towards entrepreneurship in the long-term, including attaching entrepreneurship to large scale economic and social programs, promoting new high-potential sectors via the government’s “Make in India” campaign, fostering a culture of coordination and collaboration, attempting to redefine cultural notions of success, and tying entrepreneurship with the social inclusion agenda.

The report therefore reflects an interest in harnessing creativity or creative labour as a significant factor in fostering innovation and entrepreneurship, and in some sense also expanding the scope of such entrepreneurship by tying it with social inclusion and encouraging collaboration. What this also has implications then is for educational reform, capacity-building and upskilling for increased employability and better livelihoods, something that requires a systemic and focused effort spread over time. The report also explicitly speaks of strengthening an existing intellectual property regime, which also has been a rather dominant framework for the creative industries discourse from a policy perspective. While there is a need to focus on growth and innovation, a perceived objective of IP, the easy conflation of the two is problematic. Further, the role of IPR in fostering innovation and socio-economic development, as reflected in the draft National IPR policy (2014) [6] is contentious, as responses to the draft have pointed out [7]. It would also be imperative to understand better the ‘cultural notions of success’ and how these would also impact the creative industries discourse in India.

As part of a large research initiative titled Culture: Industries and Diversity in Asia (CIDASIA) [8] spread over two years, the Centre for the Study of Culture and Society Bangalore worked on some of the pertinent questions that emerged out of the creative industries discourse in India and the sub-continent. In a report produced as part of this initiative creative industries are described as:

[T]he vast sector that has emerged with the arrival of modern technologies (emphasis as in the original) and forms of mass reproduction since the colonial period. This sector has now become an important site of intervention for both governments such as in UK, Australia and India and international agencies such as the United Nations.

Further, about the programme the report says:

The initiative attempts to assess the viability of international and government policies for cultural and creative industries and thus lay the groundwork for a hitherto unprecedented intervention of philanthropic organizations in the domain. We specifically focus on culture industries through the node of ‘livelihoods’ that we see as inextricably tied to this sector.

The importance of the question of livelihood to the growth in culture industries remains even today, as they are a source of employment for a vast section of society, mostly in rural areas, and often fall into what is called the unorganized sector. Low capital investment and the disputable legality of many of these industries however, make this connection a complicated one, as pointed out by the CIDASIA research. The study critiqued existing models of creative and cultural industries which emphasized copyright and intellectual property rights (IPR) as safeguards of livelihood and identity, a rather contentious connection given the presence of a large underground economy based on creative labour, which is also often migrant in nature. Other initiatives in the programme included a consultation to rethink the existing debates around cultural policy and diversity, with a focus on the rights of marginalized people, rights in the domain of mass culture, copyright and IPR. Diminishing spaces for cultural or political-artistic performances, and the role of creative cities in fostering such spaces was another area of concern.

There were several learnings from these initiatives about the nature of creative industries (audio-visual media including film and television), the conflation and overlap with culture industries (including craft and legacy industries) and the complex relationship between the two, and how the latter benefits from the first. The question of livelihoods, particularly those of non-citizens, or the migrant is an important one, for it highlights the cultural visibility of these industries, and more importantly establishes the presence of an underground economy that produces goods of high economic value, using cheap labour. Policy reforms, especially with respect to IPR and any regulation of these industries would need to take into account these features. The convergence of difference forms of cultural production with the growth of new media technologies, in particular is a pertinent question. Along with growing concerns around piracy, growth of new kinds of content, exclusivity and distribution become important factors here. The availability of capital and technology, and a growing global presence has also changed dramatically the nature of several creative industries, such as media, entertainment and advertising, but also brought with it challenges of finding creative and sustainable business models [9]. The problem of cultural impenetrability, or the difficulty of certain commodities to find a market in certain countries was also brought up as part of a study on the Korean wave in India. The translation of cultural worth into economic value, here studied through an examination of the cinema as cultural object, produced interesting observations in addressing the commodification of these objects and understanding the problem of value in this context [10]. The role of technology in the growth of the creative industries was an inherent aspect of all these studies, with factors such as context, conditions and quality of access, and the need to understand the problem of the 'last mile' as a conceptual and cultural problem, rather than a technological one, being emphasized in these findings [11].

Creative Labour?

The importance of the question of livelihood to the growth in culture industries remains even today, as they are a source of employment for a vast section of society, mostly in rural areas, and often fall into what is called the unorganized sector. Low capital investment and the disputable legality of many of these industries however, make this connection a complicated one, as pointed out by the CIDASIA research. The study also critiqued existing models of creative and cultural industries which emphasized copyright and intellectual property rights (IPR) as safeguards of livelihood and identity, a rather contentious connection given the presence of a large underground economy based on creative labour, which is also often migrant in nature. Other initiatives in the programme included a consultation to rethink the existing debates around cultural policy and diversity, with a focus on the rights of marginalized people, rights in the domain of mass culture, copyright and IPR. Diminishing spaces for cultural or political-artistic performances, and the role of creative cities in fostering such spaces was another area of concern.

In the last decade alone, the internet and digital technologies have grown at an exponential pace in India. Creative industries have been driven greatly by advancements in technology, and the role of the digital here then becomes an important aspect of the discourse, in terms of either a space, object or context. The term itself has drawn different kinds of criticism, beginning with the juxtaposition of creativity and industry, or the ‘economisation of culture’, as another product of contemporary capitalism, a critique that stems from the Frankfurt School. The problems are several, as outlined here by Andrew Ross [12]:

It may be too early to predict the ultimate fate of the paradigm. But sceptics have already prepared the way for its demise:: it will not generate jobs; it is a recipe for magnifying patterns of class polarisation; its function as a cover for the corporate intellectual property (IP) grab will become all too apparent; its urban development focus will price out the very creatives on whose labour it depends; its reliance on self-promoting rhetoric runs far in advance of its proven impact; its cookie-cutter approach to economic development does violence to regional specificity; its adoption of an instrumental value of creativity will cheapen the true worth of artistic creation.2 Still others are inclined simply to see the new policy rubric as ‘old wine in new bottles’ – a glib production of spin-happy New Labourites, hot for naked marketization but mindful of the need for socially acceptable dress. For those who take a longer, more orthodox Marxist view, the turn toward creative industries is surely a further symptom of an accumulation regime at the end of its effective rule, spent as a productive force, awash in financial speculation, and obsessed with imagery, rhetoric and display.

Similar concerns may be highlighted in the Indian context as well, where the employability of many in creative fields of work, which often fall under the informal or unorganized sector, has always been fraught with uncertainty. The access to cultural and social capital also defines the discourse in a certain manner, as largely urban-centric and focused around a particular class. Education, training and capacity-building efforts in creative fields, and access to these are an important factor that requires further exploration. As reflected in the discussions above, the prevalent imagination of cultural and creative industries still focusses on IPR and socio-economic development of certain sectors of the knowledge economy, therefore making invisible other kinds of labour. The appropriation of the term itself to focus on innovation in certain sectors, at the cost of others, and streamlining and regulation of these in some way would be another aspect of concern. More importantly, the definition of creativity, as beyond skilling for certain kinds of work also needs to be emphasized in these discussions.

Key Questions

Whether these are still pertinent criticisms now is a question, and more importantly, what would be new ways to frame the creative industries debate today would be a relevant starting point of engagement. The following are some questions that could be useful in mapping the creative industries discourse and how it could be thought about today, post the digital turn:

What are digital creative industries? Is it possible to identify a smaller subset of industries that would come within the purview of this term, or is it another entry point into the creative industries discourse in India, where the digital is all pervasive? What are new kinds of creative industries that are heavily and/or purely reliant on the internet and digital technologies?
Does the digital add a new perspective/dimension to how we theorise the notion of creative labour, because of the manner in which it affects, or determines creative expressions in the present, on the internet and more broadly in the digital? More importantly, do we need to critically think about a definition of creativity itself, today within the digital context? How do we then understand questions of precarity in working conditions, innovation and entrepreneurship in this space?
Who is the creative subject? Is it possible to understand such a subject outside of the very Eurocentric discourse around creativity and ‘creation’, which paints the creator as hegemonic in some sense? Another new way to reframe the livelihoods question is to understand the creative worker/knowledge worker, and how to think of these distinctions. What are the new ways to understand this debate?
The discourse around creative industries has largely been framed within the context of the intellectual property rights, and as a method to ensure the stability of the IPR regime. Given the changes, and many nuances to the IPR debates in the last few years, and the growth of the Free/Libre and Open Source Software (FLOSS) movement, it would be useful to understand the growth of creative digital industries in this context.
What does this tell us about a growing digital economy in India? Creative industries would raise interesting questions about the fostering of a digital economy in India, and the many ways in which it determines cultural production in the rest of the world.

Endnotes

[1] Theodor Adorno and Max Horkheimer, 'The Culture Industry: Enlightenment as Mass Deception,' 1944. https://www.marxists.org/reference/archive/adorno/1944/culture-industry.htm.

[2] See: http://apo.org.au/resource/creative-nation-commonwealth-cultural-policy-october-1994.

[3] See: http://portal.unesco.org/en/ev.php-URL_ID=31038&URL_DO=DO_TOPIC&URL_SECTION=201.html.

[4] See: http://unctad.org/en/Docs/ditctab20103_en.pdf.

[5] See: http://niti.gov.in/mgov_file/report%20of%20the%20expert%20committee.pdf.

[6] See: http://dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf.

[7] For more on this see: 'Comments on the First Draft Of The National IPR Policy' submitted by the Centre for Internet and Society, 2015 http://cis-india.org/a2k/blogs/cis-comments_first-draft-of-national-ipr-stategy.pdf, and 'SpicyIP Tidbit: New IPR Policy in 2 months' by Balaji Subramanian, SpicyIP, October 2015, http://spicyip.com/2015/10/spicyip-tidbit-new-ipr-policy-in-2-months.html.

[8] See: http://cscs.res.in/irps/cidasia-1.

[9] S. Ananth, 'Business of Culture in India,' 2008. http://cscs.res.in/dataarchive/textfiles/textfile.2009-12-18.9970782136.

[10]'When The Host Arrived: A Report on the Problems and Prospects for the Exchange of Popular Cultural Commodities with India,' 2008. http://cscs.res.in/dataarchive/textfiles/textfile.2009-07-17.9853066637/file.

[11]Ashish Rajadhyaksha, 'The Last Cultural Mile' (Bangalore: Centre for Internet and Society, 2011) http://cis-india.org/raw/histories-of-the-internet/blogs/the-last-cultural-mile/the-last-cultural-mile-blog-old.

[12] Andrew Ross, 'Nice Work of You Can get it: The Mercurial Career of Creative Industries Policy,' in MyCreativity Reader. Eds. Geert Lovink and Ned Rossiter (Amsterdam: Institute of Network Cultures, 2007).

For more details visit https://cis-india.org/raw/studying-digital-creative-industries-in-india-initial-questions

Govt narrative on Aadhaar has not changed in the last six years: Sunil Abraham

praskrishna — 2016-03-16T16:37:19Z

The bill is basically the same as the UPA version, with some cosmetic changes, and some tokenism towards the right to privacy, says Abraham.

Shreeja Sen interviewed Sunil Abraham. The article was published in Livemint on March 8, 2016.

The government’s bid to push financial inclusiveness and access to government services has received a fresh boost, with finance minister Arun Jaitley introducing a proposed law to give legislative backing to Aadhaar, being implemented by the Unique Identification Authority of India (UIDAI).

This project, which uses a person’s biometric data like fingerprints and iris scans to authenticate identity of people receiving subsidies and other state benefits, will move India towards a cashless economy and help digital initiatives such as biometric attendance, Pradhan Mantri Jan Dhan Yojana, digital certificates, pension payments and the proposed introduction of payments banks.

Sunil Abraham, 42

Abraham is executive director of Centre for Internet and Society, a Bengaluru-based think tank focusing on accessibility, access to knowledge, telecom and Internet governance. He has written extensively on the UID scheme, and the intersection of privacy and security. He founded Mahiti—an enterprise that aims to reduce the cost and complexity of information and communications technology for the voluntary sector by using free software.

The Aadhaar project has faced its share of roadblocks with cases challenging it pending before the Supreme Court. A constitution bench of the court will decide whether the right to privacy is a fundamental right and if Aadhaar violates it.

Sunil Abraham, the executive director of Centre for Internet and Society, a Bengaluru-based policy research institute, is a critic of Aadhaar for several reasons. He explained his concerns in an interview. Edited excerpts:

Have any of the concerns regarding the Aadhaar project since its inception in 2009 been addressed?

Whatever we complained about six or seven years ago, whatever complaints were made by the civil society...all of those complaints remain in the exact same situation.

Nothing has changed.

What kind of concerns?

The first thing to remember is that privacy and security are just two sides of the same coin. You cannot have one without the other.

Our first concern with the project is centralization. Whenever you build an information system, and you create a central point of failure, then it will fail because the possibility of failure exists. The Internet has no central point of failure. That is why it is so difficult for you to bring the Internet down. Complaint number 2 is the opaque technology.

UIDAI keeps saying that “we have built a technology using a free software and open standard stack”. The first is a de-duplication software and the second one is the authentication software—those are the most important pieces of software.

This software is proprietary and nobody knows how they work and nobody can independently audit them.

The third complaint is the use of an irrevocable and non-consensual authentication factor. In the UID scheme, the biometrics serve two purposes: it can be used to identify a citizen and it can be used to authenticate a transaction. Authentication factors, commonly known as passwords, should always be revocable. That means if the password is compromised, you should be able to change the password or at least say that this password is no longer valid. The use of biometrics eliminates those two important requirements.

Further, in most other authentication, the process of authentication ensures that you are consenting. For example, PIN (personal identity number) authentications. But suppose I am authenticating you through your irises, then as long as your eyes are open, the machine will think you’re authenticating. There’s no way of saying I don’t want to authenticate. Or if you’re sleeping, somebody can hold your fingers over a biometric reader and open your iPhone. So that’s complaint number three.

The fourth complaint from the privacy perspective is: there is a very important database that they don’t talk about. I call it the transactions database. Suppose there is somebody who is using the UIDAI service to authenticate a transaction, then UIDAI should keep a record of that successful or unsuccessful transaction authentication. That means you have been registered into the database.

You go to a fair price shop to purchase subsidized grain and at that fair price shop or ration shop, you use your finger on the biometric reader, and then the UIDAI system says “yes you are indeed who you say you are”.

So, at that point, later the shop should not be able to say X never came here, or X came twice. So, in order for them to not say all those things, a record should be made on the UID database, that on this day, from this geographical location, this particular biometric reader sent us X’s biometric template and asked if the template matched against X’s UID number...the transaction database can be used for profiling. They never talk about it.

They never tell us what that database holds and how long they’re keeping all those records. None of that is clear.

Does Aadhaar bill help assuage your doubts about the project?

The government narrative has not changed in the last six years; the bill is basically the same as the UPA (United Progressive Alliance) version, with some cosmetic changes, and some tokenism towards the right to privacy. The proof that the technology is fallible is in the bill.

If the technology was infallible, as the UIDAI would like us to believe, then the bill would not criminalize the following: (1) impersonation at the time of enrolment; (2) unauthorized access to the Central Identities Data Repository.

Imagine that the bill admits that every Indian’s biometric can be stolen from one single centralized database. Now why don’t we have a similar offence for stealing all private keys from the Internet—we don’t because that is technical impossibility thanks to decentralization.

Therefore we don’t need a law to make (it) illegal. We’ve suggested changes to both the technology and the law. We’ve written seven open letters to the UIDAI, and we’ve never gotten any response. Very few of our concerns have been addressed. We’ve seen dogs getting UID, various other things getting UID, so there’s a lot of evidence that the system does not work. From Kerala we have stories of one person getting several UIDs, so we have no idea about technological feasibility of the project.

One of our distinguished fellows, Hans Varghese Mathews, has published an academic paper in the latest EPW (Economic and Political Weekly), by extrapolating UIDAI field trial data to national scale. He predicts that by the time the number crosses 1 billion, every time UIDAI tries to register someone new, they will match with about 850 people already in the database positively. So, the unique identification capability of the UIDAI will not scale above the billion. The consequence of the technology failing is not trivial. If someone replaces your biometrics in the central database, then the onus is on you to prove that you are a resident of India.

Previously, human beings determined the answer to this question, and they had to find proof that you were not a resident. Now, a fallible technology will be asked to answer this important question.

Isn’t the basic function of the Aadhaar project to ensure that benefits reach the person they are meant for, and it’s easier for people to get an identity proof for those who have no other ID, like migrant workers?

Two responses: is it good anti- corruption technology? Unfortunately not, because it is intended at retail fraud. The person under surveillance is very poor. But the person responsible for corruption is not poor. So, I believe you should be surveilling those responsible for corruption.

What I had said is UID should be first given to every single bureaucrat and every single politician in the country. From Delhi till the Panchayat office, till the ration shop in the village, that supply chain must be monitored and documented using cryptography, so that nobody can deny anything. We need non-repudiatable audit trail from New Delhi to the village because according to all analyses, that is where the theft is happening—in the supply chain. The villager who is taking false benefits, that is called retail fraud.

The bulk of the fraud is actually wholesale fraud. Please tackle wholesale fraud using non-repudiatable public audit trail from New Delhi to the village first, before you start surveilling the poor.

The second point is that people find it easy to get the UID. That is fine, but there is a problem; that it’s not uniquely identifying anybody. So, people will keep registering and the UID system will keep giving them more and more UIDs because there are no human checks and balances. Because you’ve gone with a pure technological solution, it’s very easy to fool (the system).

So, the ease of registration has not served the purpose.

For more details visit https://cis-india.org/internet-governance/news/livemint-march-8-2016-shreeja-sen-govt-narrative-on-aadhaar-has-not-changed-in-last-six-years-sunil-abraham

Fueling the Affordable Smartphone Revolution in India

sinha — 2016-03-16T15:23:43Z

Smartphones have emerged as the exemplar of mankind's quest for shrinking technologies. They embody the realization of a simple premise – that computing devices would do more and cost less. This realization has been responsible for modern society's profound transformations in communication, governance, and knowledge distribution.

The essay was published as part of the The Good Life in Asia's Digital 21st Century essay collection.

The launch of the iPhone in 2007 is often credited with ushering in an era of smartphones. Ever since, the world's best tech R&D has focused on increasing the capabilities of these devices. And as a result, less than a decade later, we have sub-hundred dollar smartphones. The low-cost smartphone has found an enthusiastic and insatiable market in developing countries, especially Asia. India is no exception to the Asian narrative – Micromax, Spice, and Lava (low cost smartphone manufacturers) are household names in the Indian smartphone market, which accounted for 65% of internet traffic in 2014 (Meeker, 2015).

The Indian Prime Minister, carrying the twin aspirations of catalyzing the growth of indigenous manufacturing and bridging the digital divide, launched the “Digital India” and “Make in India” campaigns last year. During his US visit, Google, Apple, Microsoft, Facebook extended their support to the campaigns' vision (Guynn, 2011). The campaigns outline the government's elaborate initiatives to, inter alia, bridge the digital divide and build indigenous manufacturing capacity. While all these developments bode well for the indigenous smartphone, there remain some serious concerns affecting the growth of the industry – for instance, patent infringement litigations and the absence of clear legal and regulatory solutions.

From the state of the industry and its implications, it can be concluded that: first, growing access to smartphones has been influenced by their phenomenal affordability; second, smartphones are an excellent example of technology for development (UNDP, 2001) and a facilitator of access to knowledge; and third, domestic smartphone production has occurred in an imprecise legal and regulatory environment.

This essay attempts to build an appreciation for the role that smartphones are playing in development, specifically, by fostering Access to Knowledge. Conversations around development by public-interest groups and emerging industries often espouse Access to Knowledge to address concerns in international development, communications, technology, education, and intellectual property policy. Whereas the principle can be regarded as in-theworks, two theories inform us about the role of mobile phones in fostering Access to Knowledge. Lea Sheaver's theory classifies mobile as an Access-toKnowledge good. Lea enumerates the five key components of a robust Access to Knowledge framework, viz., education for information literacy, access to the global knowledge commons, access to knowledge goods, an enabling legal framework, and effective innovation systems (Sheaver, 2007). According to her, affordability of the good is the ultimate indicator of its efficacy as an access to knowledge good. Furthermore, inventions in microchip technology, electronics manufacturing, and software need to be supported by enabling legal and policy frameworks coupled with effective innovation systems.

Yochai Benkler's framework classifies mobile-devices as both informationembedded goods and information-embedded tools (Benkler, 2006). He says, “Information-embedded goods are those goods which are ‘better, more plentiful or cheaper because of some technological advance embedded in them or associated with their production,’ such as medicines, movies, and improved crop seed. Information-embedded tools, in turn, are those technologies necessary for research, innovation, and communication of knowledge” (Benkler, 2006). A smartphone qualifies as both because it can be used to obtain knowledge, and it depends on discoveries in microchip technology, electronics manufacturing, and software to function.

To date, there has been no formal, theoretical or evidentiary investigation on the emergence of smartphones as an Access-to-Knowledge good. In the following sections, I will attempt to explain the smartphone’s dependence on an enabling legal framework and effective innovation systems (Lea's components). It must be borne in mind that globally, discussions affecting access to knowledge have aimed at creating balanced and inclusive systems related to intellectual property (Kapczynski & Krikorian, 2010). Therefore, the essay will focus on: first, the relationship between constituent mobile technologies and intellectual property as a function of production/deployment of smartphones in India; and second, the relationship between innovation and access.

Creating an Enabling Legal Framework to Foster Access to Knowledge

The adage “the only lesson you can learn from history is that it repeats itself” is worth bearing in our narrative. The emergence of the smartphones industry in Asia has commonalities with the flourishing Asian piracy trade – which remains an essential access solution for low-income societies constantly barraged by expensive western media goods. The prohibitive cost of acquiring brand-name devices (e.g. Apple, HTC, Samsung, Sony) drove local production to imitate and innovate cheaper substitutes (WIPO, 2010). This occurred within the lenient and flexible intellectual property regimes prevalent in Asian countries, which continue to be constantly criticized for their failure to enact stricter intellectual property law. The hubs of smartphone production – China, Taiwan, and India – have flexible intellectual property protection law and lax enforcement measures (Centre for Internet and Society, 2012).

Concerns of intellectual property center around patent and copyright legislation, which have yet to be fully developed to address intellectual property in high-tech industries (since trademark issues remain unchanged, they will not be discussed in the essay.) As a result, constituent smartphone technologies have been shaped and governed by a blend of formal and informal rules and legal and illegal practices. This is why they are often referred to as “gray market” technologies. A smartphone in terms of constituent intellectual property can be broadly divided into hardware and software technologies. This piece will first deal with hardware, followed by software technologies.

Hardware Technologies and Their Relationship with IP Law

Presently, most Indian manufacturers import hardware from China and Taiwan, and assemble the phones in India. A few key Indian domestic players are Maxx Mobile, Intex, Spice, and Lava, whose dominance have not gone unnoticed by foreign manufacturers. A couple of these domestic manufacturers are now embroiled in patent litigation threats or infringement suits. And as litigation piles up in Indian courts, the judiciary is slowly waking up to mobile patent litigation, but is yet to rule comprehensively. To make matters worse, the jurisdiction of the Indian antitrust regulator remains unclear, and to a certain extent overlaps with the judiciary, adding to the ambiguity. For instance, when an appellate court ruled in favor of the Swedish tech-giant Ericsson, it ordered Micromax to pay a flat 1.25 – 2% of its devices' selling price to Ericsson (Lakshane, 2015). The ruling was devoid of a more rational and reasoned approach developed by courts of other jurisdictions in similar matters, which prescribed that the infringers pay damages based on the price of the patented components only, and not the retail price of the phones. This decision risks causing a significant increase in the price of phones and potentially threatens local innovation.

The Indian government's Make in India and Digital India campaigns aim to fulfill the vision of a digitally empowered India, and the 2015 Indian Union budget also targets boosting the electronics manufacturing industry. Despite these broad initiatives, there needs to be a more focused policy in place to ensure domestic companies do not get weighed down by patent related concerns. The root cause of litigation is the vesting of a majority of critical mobile patents (Standard Essential Patents, or SEPs) by a handful tech-giants. For instance, Qualcomm owns 5700 patents around CDMA technology (qualcomm.com). In another instance, the DVD format constitutes 311 SEPs for DVD players and 272 SEPs for DVD recorders (CIS, 2012). Such a dense concentration of patents around SEPs creates a patent thicket and thereby compels Smartphone manufacturers to acquire multiple licenses, and to pay high transaction costs and huge royalties to the owner. To reduce conflict and protect domestic players from being arm-twisted into paying high royalties, the government can potentially identify critical technologies and initiate the formation of a patent pool of such technologies. The concept of a patent pool mandates that the patent holders issue licenses on fair, reasonable, and nondiscriminatory basis to interested parties. However, a nuanced and cautious approach to setting up such pools is necessary (Shapiro, 2001).

There are interesting lessons in China's steps to encourage local innovation of Smartphone hardware as well, specifically in the form of standardized technologies. The Chinese government has actively supported the development of indigenous standards to shield domestic manufacturers from royalty exposure. In fact, the China Blue High-definition Disc (CBHD) standard was built as an alternative to the Blu-ray disc and was duly adopted by the Chinese government, which reportedly caused the royalty rates for the Blu-ray format to dip. Much later, Warner Bros, Paramount, and other motion picture producers adopted the CBHD standard as well for distribution in China.

Software Technologies and Their Relationship with IP Law

Unlike hardware technology, where India is struggling to build manufacturing capacity, the success of the Indian software industry has already been realized. The software-as-a-service (SaAS) industry is led by Infosys, TCS, and Wipro in software exports. The prevailing trend in the industry since the 1980s was to assign ownership of their products to offshore clients. However, in the past decade, there has been a conscious shift by the Indian software development workforce to build products for Smartphone platforms. This is in response to the shift in local populations to accessing content and services online. Reports indicate that India has the second largest population of mobile applications developers (approx. 3 million) in the world, second only to the US (Livemint, 2015). The Indian government has recognized the potential of mobile application-based ventures and created funds to encourage app development in India (IAMAI, 2015).

Intellectual property protection around software is fairly ambiguous. A piece of code is potentially capable of gaining both patent and copyright protection. In the area of mobile application development, preliminary research findings indicate that coding occurs with an agnostic attitude towards intellectual property laws (Cassar, 2014). One of the reasons is ambiguity on a multitude of issues around the protection of software because Indian legislation on patent and copyright is frustratingly insufficient. There is a growing discontentment about long-term patent protection over software code, which could be detrimental to innovation – particularly, to the start-up segment of software industry. In more technologically advanced economies, software patenting has emerged as a scourge – last year, the US Supreme Court in Alice Corporation Pty Ltd v. CLS Bank International Et Al narrowed the eligibility of software inventions to gain patent protection. The activist discourse has shifted in favor of eliminating software patenting because of the incremental and obsolescent nature of a software invention, inter alia (Lapowsky, 2015). However, in a recent disappointing move, the Indian patent office widened the scope of patent-eligible subject matter for software-related inventions – a move that was decried by free software activists and industry alike. This widening of scope can only benefit tech-giants in building bigger patent portfolios, which is unnecessary and unhealthy for innovation by small and mid-tier entities (Sinha, 2015).

Effective Innovation Systems

Innovation ensures fresh creation of knowledge. A society cannot premise itself on the mere importation of knowledge; it must also strive to use the knowledge to meet its own local needs and environment. Innovation depends on a variety of factors – there is no singular path or factor to build an innovative and enterprising society. The patent system is often incorrectly credited with “promoting” innovation. The discourse around innovation was extremely patent-centric until studies disproved the assumptive correlation between high patenting activity and innovation. Continuing in the same vein, Lea states, “From the A2K perspective, however, relying on patents – which represent the right to exclude others from access to the innovation – is particularly problematic. Patents likely represent the segment of innovation of least value for expanding access to knowledge: improvements in the knowledge stock whose application is limited by exclusive property rights” (Shaver, 2007).

In this framework, it is also important to shed light on the growing movement of openness. Openness as a movement has been captured by various fields - Big data, software, education, media, etc. Free and Open Source Software has emerged as a key agent in information technology policy-making in India, with the Indian government adopting an open standards policy and an open software policy for its own purposes.

In the context of smartphone technologies, preliminary findings also support the shift towards openness (Huang, 2014). Industry participants have observed that openness will lead to greater benefits in private production of hardware technologies. Similarly, mobile applications developers have also voiced support of open source software (Cassar, 2014).

Conclusion

The discussion above identified a limited set of legal and regulatory concerns affecting the state of production/deployment of smartphones in India. These issues and findings are backed by preliminary research, and purport to sustain the emergence of the smartphone as an enabler of access to knowledge. The proposed solutions direct industry and the government alike to take immediate steps to fix problems impeding pervasive access to this knowledge good.

The experience of the smartphone industry with an imprecise legal and regulatory environment, akin to piracy, has thus far been a success story of affordability, quality substitution, and innovation. However, this narrative is now threatened by messy litigation, jurisdictional uncertainties between the anti-trust regulator and judicial system, SEP licensing issues, rise of software patents, inter alia. Despite these issues, the industry continues to grow. The future of access to knowledge is therefore bright, provided that stakeholders make efforts to meet the needs of this emerging industry and the public, including development and consumer interests.

References / Links / Resources

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Cassar, S. (2014) Ambiguity in the App Store: Understanding India’s emerging IT sector in light of IP. Retrieved from http://cis-india.org/a2k/blogs/ambiguity-in-the-app-store
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United Nations Development Programme, Human Development Report 2001: Making New Technologies Work for Human Development (2001). Retrieved from http://hdr.undp.org/reports/global/2001/en/
World Intellectual Property Organisation. (2010, Dec 1-2). Media Piracy in Emerging Economies: Price, Market Structure and Consumer Behavior. Retrieved from the WIPO website: http://www.wipo.int/edocs/ mdocs/enforcement/en/wipo_ace_6/wipo_ace_6_5.pdf

For more details visit https://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india

An Urgent Need for the Right to Privacy

sumandro — 2016-03-17T07:40:12Z

Along with a group of individuals and organisations from academia and civil society, we have drafted and are signatories to an open letter addressed to the Union government and urging the same to "urgently take steps to uphold the constitutional basis to the right to privacy and fulfil it’s constitutional and international obligations." Here we publish the text of the open letter. Please follow the link below to support it by joining the signatories.

Read and sign the open letter.

Text of the Open Letter

As our everyday lives are conducted increasingly through electronic communications the necessity for privacy protections has also increased. While several countries across the globe have recognised this by furthering the right to privacy of their citizens the Union Government has adopted a regressive attitude towards this core civil liberty. We urge the Union Government to take urgent measures to safeguard the right to privacy in India.

Our concerns are based on a continuing pattern of disregard for the right to privacy by several governments in the past. This trend has increased as can be plainly viewed from the following developments.

In 2015, the Attorney General in the case of *K.S. Puttaswamy v. Union of India*, argued before the Hon’ble Supreme Court that there is no right to privacy under the Constitution of India. The Hon'ble Court was persuaded to re-examine the basis of the right to privacy upsetting 45 years of judicial precedent. This has thrown the constitutional right to privacy in doubt and the several judgements that have been given under it. This includes the 1997 PUCL Telephone Tapping judgement as well. We urge the Union Government to take whatever steps are necessary and urge the Supreme Court to hold that a right to privacy exists under the Constitution of India.

Recently Mr. Arun Jaitley, Minister for Finance introduced the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016. This bill was passed on March 11, 2016 in the middle of budget discussion on a short notice as a money bill in the Lok Sabha when only 73 of 545 members were present. Its timing and introduction as a money bill prevents necessary scrutiny given the large privacy risks that arise under it. This version of the bill was never put up for public consultation and is being rushed through without adequate discussion. Even substantively it fails to give accountable privacy safeguards while making Aadhaar mandatory for availing any government subsidy, benefit, or service.

We urge the Union Government to urgently take steps to uphold the constitutional basis to the right to privacy and fulfil it’s constitutional and international obligations. We encourage the Government to have extensive public discussions on the Aadhaar Bill before notifying it. We further call upon them to constitute a drafting committee with members of civil society to draft a comprehensive statute as suggested by the Justice A.P. Shah Committee Report of 2012.

Signatories:

Amber Sinha, the Centre for Internet and Society
Japreet Grewal, the Centre for Internet and Society
Joshita Pai, Centre for Communication Governance, National Law University
Raman Jit Singh Chima, Access Now
Sarvjeet Singh, Centre for Communication Governance, National Law University
Sumandro Chattapadhyay, the Centre for Internet and Society
Sunil Abraham, the Centre for Internet and Society
Vanya Rakesh, the Centre for Internet and Society

For more details visit https://cis-india.org/internet-governance/blog/an-urgent-need-for-the-right-to-privacy

2016-WIPIP-Agenda.pdf

praskrishna — 2016-03-03T01:46:12Z

For more details visit https://cis-india.org/a2k/blogs/2016-WIPIP-Agenda.pdf