Centre for Internet and Society

Legal Issues pertaining to Cloud Computing

praskrishna — 2022-02-07T15:29:00Z

The Law and Technology Society of National Law School of India University, Bangalore is organizing the 6th edition of its flagship conference ‘Consilience’ on December 14 and 15, 2013 at NLSIU Campus, Bangalore. The Centre for Internet and Society is supporting this event.

The Conference will see some of the best lawyers, jurists and industry leaders in India speak on different issues surrounding the theme. The Conference is co- branded with ‘Salesforce.com’, ‘International Technology Law Association’ and the Centre for Internet and Society (http://www.cis-india.org/). Apart from making an effective contribution towards greater understanding of the subject, the Conference will lead to a recommendatory policy paper to the government of India.

Key speakers for the Conference include:

Senapathy (Kris) Gopalakrishnan (Co-Founder and Executive Vice Chairman, Infosys & President, CII )
Pavan Duggal (Advocate, Supreme Court)
Abhishek Malhotra (Founding Partner, TMT Law Practice)
Azmul Haque (Partner, Shook Lin & Bok, Singapore)
Chris Edwards (Senior Associate, DLA Piper, Singapore)
Prof. Rahul De (IIM Bangalore)
Pamela Kumar (Chair, Cloud Computing Innovation Council of India)
Suhaan Mukherji (Expert advisor, Office of Adviser to the Prime Minister of India on Public Information Infrastructure and Innovations)

Registrations for the Conference are open and fee for the same is as follows:

Students: Rs. 500/-
Professionals: Rs. 750/-

Please find attached the concept note, programme schedule and speakers’ profiles. To register, visit http://www.consilience.co.in/index.php/consilience-2013/register-for-the-conference. For any other queries, please write to ltech.nls@gmail.com .

or contact

Shivam Singla (Ph: +91-9916708701)
Ayushi Sutaria (Ph: +91-8123925725)

Conference Programme

Saturday, December 14th, 2013
Venue: Conference Hall, Academic Block, NLSIU

Lunch
08.30 09.30	Breakfast and Registration
09.45 10.00	Inauguration
10.00 10.30	Keynote Address
10.30 12.30	SESSION 1: INTRODUCTION TO CLOUD COMPUTING How does cloud computing work? - An overview of the basic technical features The current legal regime related to cloud computing in India- Main issues and challenges
13.15 15.15	SESSION 2: THE RELATION BETWEEN PARTIES TO CLOUD COMPUTING- USERS, INTERMEDIARIES AND GOVERNMENT BODIES Legal obligations of the intermediaries towards (i) the government and (ii) the users Cyber security concerns Standards of data protection Government's surveillance powers and privacy issues
Tea Break
15.30 17.30	SESSION 3: REGULATION AND MONITORING OF DATA CONTENT Current data control monitoring systems by intermediaries Data ownership and intellectual property issues- Possible threats and need for regulation Sensitive or critical data- Security concerns relating to their storage
High Tea/Networking Session

Sunday, December 15th, 2013
Venue: Conference Hall, Academic Block, NLSIU

Tea Break
09.00 10.00	Breakfast and Registration
10.00 12.00	SESSION 4: THE INTERNATIONAL PERSPECTIVE ON CLOUD COMPUTING Jurisdiction and choice of law issues- how do we counter the confusion? International laws applicable to cloud computing Need for a comprehensive international framework to simplify the situation?
12.15 14.15	SESSION 5: COMPARATIVE ANALYSIS WITH LEGAL FRAMEWORKS IN OTHER COUNTRIES Legal frameworks in UK and Singapore Beneficial features of these legal regimes and their suitability in the Indian context Lessons to be learnt for India
Lunch
15.00 17.00	SESSION 6: THE WAY FORWARD – SUGGESTIONS AND RECOMMENDATIONS Overview of the important challenges and suggestions Possible Policy and Legislative steps to improve the Cloud Computing regime in India
High Tea/Networking Session

Click to read the sub tracks for discussion
Access the speakers' profiles here

For more details visit https://cis-india.org/events/legal-issues-on-cloud-computing

Legal Challenges to Mapping in India #1 - Laws, Policies, and Cases

Adya Garg — 2016-05-11T13:43:11Z

Responding to the draft Geospatial Information Regulation Bill and the draft National Geospatial Policy made public recently, this post provides an overview of the present configuration of laws, policies, and guidelines that provides the legal framework in India for governance of creation and sharing of geospatial data in India. The post also studies these policies in action by describing the key legal cases around the creation and use of geospatial data. The next post of this series will document the reflections and opinions of the key geospatial industry actors in India, as well as the free and open source mapping community.

1. Introduction

2. Mapping the Legal Journey of Geospatial Data: Past to Present

2.1. National Map Policy, 2005

2.2. Guidelines issued by Survey of India

2.3. Remote Sensing Data Policy (RSDP)

2.4. Civil Aviation Rules

3. Incidents of Legal Actions Faced by Agencies

3.1. Google's Mapathon in Legal Trouble

3.2. One Country - Two Boundaries

3.3. J. Mohanraj v Google and Others

4. Conclusion

5. References

6. Author Profile

1. Introduction

“Maps, like faces, are the signature of history.” – Will Durant [1]

Throughout the course of history geospatial information has played an important role in technological, economic, political and cultural dimensions of the human society. With technological developments taking place, the field of mapping – that is collection, analysis, and representation of geospatial data – is continuously evolving. On the face of it, creation of geospatial data seems to be an exclusive scientific and technological matter. However, the political and economic facets of geospatial data are often as predominant and complex as its scientific practice. Continuing from the colonial era, the political facet of mapping emerged significantly in the public discourse from the 1990s onwards as digital technologies amplified the ability of non-governmental actors to collect, generate, and share geospatial data, in the form of maps or otherwise [2]. This 'democratisation' of the ability to map and share private/user-generated maps structurally undermined the government's ability to have an authoritative and universal voice when it comes to geospatial depiction of the nation and its various components. Similar to the other upsurges in the digitized world, which is often followed by an introduction of legal provisions in order to keep access to and use of digital data under mechanisms of monitoring and permission, mapping in India has also has subsequently been governed under policies addressing both terrestrial mapping and remote sensing. Concerns of national security, naturally, have driven much of these policies.

This post focuses on providing an overview of the present configuration of laws, policies, and guidelines that provides the legal framework in India for governance of creation and sharing of geospatial data in India. The post also studies these policies in action by describing the key legal cases around the creation and use of geospatial data. The next post of this series will document the reflections and opinions of the key geospatial industry actors in India, as well as the free and open source mapping community.

2. Mapping the Legal Journey of Geospatial Data: Past to Present

“We know every inch of the nation, because we map every inch of it!” – Survey of India [3]

Aforementioned slogan adopted by the primary organization responsible for mapping all geospatial data in India indicates the importance of the geospatial data and mapping the same. While it indicates the importance of having access to mapping data in order to be aware of the geospatial features of one’s country, it also cleverly reveals the vulnerability that having access to mapped data brings. The phrase can be said to imply that mapping every inch of the country leads to information about every inch of the nation which is useful if in the hands of government agency but repugnant to security if in the hands of external agencies. This conflict between access to information about the country and the security concerns arising from such an open access has led to a rich evolution of legal policies governing the same.

Set up in 1767, Survey of India (hereinafter “SOI”) was required to map the terrains of India to fulfill the commercial and political convenience of the East India Company [4]. During these colonial times, maps were considered to be essential for governmental purposes and thus their dissemination to unauthorized persons was barred by Clause 5 of the Official Secrets Act, 1923 [5]. Thus, till 1950s mapping was being governed by the colonial provisions which maps restricted to official use only [6]. With independence, the functions of the SOI shifted mainly towards providing information for the defense forces [7].

An important change came in the form of orders and notifications by Ministry of Defence (hereinafter “MOD”) during 1960s, the major one being the 1965 order that permitted distribution of maps of scale 1:4 M [8]. The Map Restriction Policy of the MOD, however, imposed categorical restrictions on sharing of maps, aerial photos, and all geophysical data for various parts of India - with a focus on international border areas in the North-Eastern state, and the coastal zone that included several large cities like Chennai, Kochi, Kolkata, and Mumbai [9]. Dr. Manosi Lahiri notes that "[t]his had a far reaching effect on the mapping culture of independent India and perpetuated the perception among many that maps were a security threat" [10]." By 1971, however, the functions of SOI extended to catering to inter alia all development activities and was hence brought under the ambit of Department of Science and Technology [11].

However, the catalytic transformation came in the form of National Map Policy, 2005 which made SOI the nodal governmental agency for dealing with all processes involving geospatial data. While harping for open access to geospatial data, the policy accompanied by corresponding guidelines have largely restricted the power to map geospatial data to SOI. The Policy and the guidelines have been discussed in detail as under.

2.1. National Map Policy, 2005

The National Map Policy, 2005 (hereinafter, “NMP”) was announced by the Central Government on May 19, 2005 [12]. The preamble of the policy identifies the importance of high quality spatial data in various facets such as socio-economic development, conservation of natural resources, infrastructure development etc [13]. Topographic map database constitutes the foundation of all spatial data and its production, maintenance, and dissemination has been assigned as a responsibility to SOI, which is to "liberalize access" to spatial data without compromising upon security concerns. Thus, the conflict between national security and right to have access to information regarding one’s country is clearly highlighted in the policy as a need for enactment of the same. Thus, the policy objectives include access to National Topographic Database (NTDB) [14] and promotion of geospatial based intelligence, subject to confirmation to national standards of SOI.

In order to realize the security concerns, inter alia, a dual-classification was created amongst the maps, namely - i) Defence Series Maps (“DSM”) and ii) Open Series Maps (“OSM”). While the former constitutes of topographical maps that mainly cater to defence and security requirements of the country, the latter supports developmental activities. Hence, DSMs whether in analogue or digital form, fall under the classified category and the power to issue guidelines pertaining to their use vests digit mainly for developmental purposes, they are not openly accessible by ipso facto and need to gain the ‘unrestricted’ tag after clearance from MOD. A table specifying the distinction between DSMs and OSMs in detail has been provided below:

Sub-Topic	Defence Series Maps (“DSM”)	Open Series Maps (“OSM”)
Why are these maps used?	The maps under this series cater to defence and security requirements of the country.	The maps under this series are useful in supporting various developmental activities in the country.
What are the technical classifications?	Everest/WGS-84 Datum and Polyconic/UTM Projection) on various scales (with heights, contours and full content without dilution of accuracy).	In UTM Projection on WGS-84 datum, bearing different map sheet numbers. (And as provided in Annexure B of the NMP)
Who can use these maps?	Maps (in analogue or digital forms) for the entire country will be classified.	Both hard copy and digital form will become “Unrestricted” after obtaining a one-time clearance of the Ministry of Defence.
How can the maps be used?	Guidelines regarding the use of DSMs will be formulated by the Ministry of Defence.	Guidelines regarding the use of OSMs will be formulated by SOI regarding aspects like procedure for access, further dissemination /sharing, ways and means of protecting business and commercial interests of SOI etc.

While the DSMs are completely classified, restrictive provisions regarding usage and dissemination of OSMs have also been incorporated in the policy. OSMs are not allowed to show any civil and military Vulnerable Areas and Vulnerable Points (VA’s/VP’s). OSMs on a scale larger than 1:1 needs to be disseminated either by sale or an agreement, which will allow the agency to add its own value to the maps obtained, and to share these maps with others.

The primary transaction between SOI and the agency as well as all the subsequent transactions between the agency and other users have to be registered in the Map Transaction Registry for records. While the Map Transaction Registry forms an important part of the NMP, no such registry information has been made available on the official website of SOI as indicated by the screenshot below.

Map Transaction Registry, Survey of India, URL: http://www.surveyofindia.gov.in/pages/view/48

The policy allows users to publish maps on hard copy or web (with or without GIS interface) subject to a certification from SOI in case of depiction of international boundaries. The policy also upholds the validity of the previous MOD notifications pertaining to mapping subject to the modifications introduced by the policy and authorises SOI to issue further guidelines corresponding to the policy.

2.2. Guidelines issued by Survey of India

Under the powers vested by the NMP, SOI has issued detailed clarificatory guidelines in furtherance of the policy [15]. The restrictions arising on mapping of geospatial data can be attributed to two major factors namely, Security concerns and Copyright provisions [16]. Under the guidelines, copyright of both digital and analogue maps has been vested with the SOI. Penal consequences have been mentioned as a result of violation of SOI’s copyrights. In furtherance of security concerns, the guidelines uphold the Ministry of Finance (Department of Revenue) Notification No. 118-Cus./F.No.21/ 5/62-Cus. I/VIII dated 4th May 1963 which prohibits the export of all maps/digital data in 1: 250K and larger scales through any means. Digital Topographical data has been an exclusive licensing domain of only Indian individuals, organisations, firms or companies.

While paper maps can be accessed from SOI offices against payment of price, digitisation of maps has been strictly made forbidden by the guidelines. Ownership of digital data has been vested completely with the SOI and can only be gained against payment after application through a specified proforma.

2.3 Remote Sensing Data Policy (RSDP)

In 2011, the confusion pertaining to applicability of NMP to both territorial and satellite mapping was resolved with the release of the Remote Sensing Data Policy (RSDP). The policy recognized the importance of remote sensing data and noted that it was largely used by government and non-government users from Indian and foreign remote sensing satellites. However, again banking upon the need for security considerations, the policy was released with the purpose of “…managing and/ or permitting the acquisition/dissemination of remote sensing data in support of developmental activities" [17]. Department of Science (DOS) was made the nodal government agency for all actions pertaining to remote sensing data under the policy.

A basic perusal of the policy indicates a parallelism between the RSDP and the NMP. Thus, similar to NMP, RSDP assures of a government managed Indian Remote Sensing Satellites (IRS) Programme, the data produced by which will be solely owned by the government and other users could only be provided with licences if need be. Any attempt at acquiring and/or dissemination of remote sensing data within India requires permission through the nodal government agency. National Remote Sensing Centre (NRSC) of the Indian Space Research Organisation (ISRO)/ DOS is vested with the authority to acquire and disseminate all satellite remote sensing data in India, both from Indian and foreign satellites. NRSC is also supposed to maintain a systematic National Remote Sensing Data Archive, and a log of all acquisitions/ sales of data for all satellites. Thus, nodal government agencies were created for both terrestrial mapping and satellite imagery, former being SOI and latter NRSC.

2.4 Civil Aviation Rules

Aerial instruments and aircrafts act as important instruments for geophysical surveys and mapping. Thus, this area does not go ungoverned. While, till date, India doesn’t impose an explicit bar on foreign registered aircraft overflying its territory for aerial photography and geo-physical survey, the same is subject to prior clearance under rule 158 and 158A of the Aircraft Rules, 1937 on account of safety and security concerns, the procedure for which has been given under Civil Aviation Rules (CAR) [18]. CAR is applicable to inter alia agencies undertaking aerial photography, geophysical surveys etc. An application is required to be made as per Annexure E which inter alia requires confinement of photography/sensing to the exact area as applied and cleared by the Ministry of Defence. The application is forwarded by DGCA to the Ministry of Defence and other agencies responsible for issuing NOC.

DGCA’s restrictions extends to voluntary geographic information with prohibition of civilian drones in India. Unmanned drones are an important equipment used for the purpose of collecting geo-spatial data. The ban on flying drones in India exist from October, 2014 but is not in common knowledge [19]. While it is argued that drones could harm people and lead to chances of crashing, the major argument has always been the use of drones by anti-national elements to peruse sensitive places for plotting terror attacks [20]. While there is an ambiguity regarding using drones in India, flying drones over defence establishments and historical places is completely banned [21]. Thus, civilians using drones for clicking pictures of monuments etc. have often been confronted by the police [22].

Thus, there is no single policy that acts as a deterrent for mapping in India but an accumulation of multiple policies, guidelines and legal provisions that are used by departments of government to restrict mapping in the name of security. These restrictions have also witnessed incidents in their furtherance as detailed below.

3. Incidents of Legal Actions Faced by Agencies

Since the advent of restrictive mapping policies, numerous incidents have come forth when agencies have found themselves faced by legal actions for violating such policies. In recent times, these incidents were publicly highlighted in 1998 when the sale of the CD-Roms of Delhi Guide Maps created by Eicher were prohibited [23]. Eicher has been one of the oldest players of the private mapping market, creating city and road maps for India in the private sector for public distribution. While having faced a ban in earlier times, it is also one of the few companies been able to access the SOI data for value addition. It works in collaboration with SOI now, often launching products in ‘strategic alliance’ with them. After the implementation of NMP, we have witnessed two major legal controversies, both involving SOI on one hand and Google on the other.

3.1. Google's Mapathon in Legal Trouble

In furtherance of Google’s constant endeavour to have every nook and corner mapped, Google holds a competition called ‘Mapathon’ each year [2]. The competition invites people to map their local surroundings incentivised by lucrative prizes to winners. However, an initiative launched for purely mapping purposes had to face a large legal hurdle in the year of 2013. Google-Mapathon, 2013, held in February-March, had declared Vishal Saini as the 1st winner who had mapped the military-prone city of Pathankot. According to legal provisions governing mapping practices in India, civil and military Vital Areas (VAs) /Vital Points (VPs) cannot be shown on maps in public domain [25]. Thus, the tech-giant found itself amidst legal controversy for having held the competition without permission from Survey of India after a concern raised by BJP’s Tarun Vijay. A case was filed by SOI at the R.K. Puram Police Station. The primary contention was that the “Mapathon 2013 activity is likely to jeopardise national security interest and violates the National Map Policy. Citizens of the country, who are ignorant of the legal consequences, are likely to violate the law of the land” [26].

Considering the involvement of a U.S. based company, the investigation was handed over to CBI During the probe, it was alleged by then Surveyor General of India Swarna Subba Rao that Google did not refrain from “polluting” [27] the internet with classified material despite having been asked so. Further, then Additional Surveyor-General of India R.C. Padhi wrote claimed that “The Survey of India is only mandated to undertake ‘Restricted’ category surveying and mapping, and no other government/private organisations or any individual are authorised to do so” [28]. He told Reuters that some of the information provided by locals to Google could be ‘sensitive’ and the security of the nation could not be compromised at any cost [29].

Google on the other hand said that its primary motive was to map local information of daily needs such as hospitals, restaurants, markets etc. and the competition was in tandem with national laws. Further, it was heard that Google had been approached regarding Mapathon by SOI and it had replied with intimation of willingness to talk to SOI. However, SOI had not reverted back and Google was always ready and willing to talk out the matter. However, the much hyped case did not have a substantial result and CBI had to close the probe on account of lack of evidence [30].

Considered a thing of past, the controversy resurfaced in the recent times of January, 2016 post the Pathankot Air Base strike [31]. Google was dragged to the court for having displayed sensitive geospatial data regarding Pathankot that made possible an airstrike at the location. An injunction was sought to refrain Google from showing sensitive military areas and defence establishments on the maps made available by it. While the injunction was refused, Delhi High Court had asked the centre and the additional solicitor to look into the same and keep the court apprised. Thus, this can be termed as an open and unfinished matter ongoing legal contemplation.

While it is understandable that some areas are considered as vulnerable due to security concern. The lost keeps changing often leading to transgression into security places. But the major point being the list of vulnerable areas is classified and not released to public. In absence of such a list, how is it possible for google to vet its data to comply with security concerns.

3.2. One Country - Two Boundaries

Another major legal controversies in the field of geospatial mapping has been with regards to wrong depiction of international boundaries of India by Google. A basic perusal of the official website of SOI provides a list of only three documents under the tab of ‘Public Awareness’, all dealing with the crime of depicting wrong Indian boundaries [32]. While one of them includes the certified map with correct boundaries, to be complied with, other is a gazette notification bringing the Criminal Law Amendment Act, 1961 which criminalized the act of showing wrong depiction of boundaries. Section 69A of the IT Act has also been used earlier to restrict access to links depicting incorrect maps of India [33] though it only speaks about restricting public access to data, necessary in the interest of Sovereignty and Integrity inter alia, the section per se does not deal with dissemination of geos-spatial data.

It was in the year of 2014, that on the directions of Department of Science and Technology, SOI filed a complaint against Google at the Dehradun Police Station for depiction of international boundaries not in a “wrong manner” i.e. not in compliance with Government of India authentication [34]. The result was that today Google shows different boundaries on Indian domain, in compliance with SOI and different on International domain.

Google was also involved in a controversy when in 2009, Google maps for India marked areas of Arunachal Pradesh, including its capital Itanagar and Tawang, in China [35]. It was followed by an apology from Google and an immediate rectification for Indian users. However, Google uses a different version for China and the world creating disparity in the boundary depiction [36].

Google has not been the only platform having faced the anger of Indian community for wrong depiction. In 2011, copies of the Economist Magazine were seized for having depicted the map of Kashmir divided between India, Pakistan and China [37]. For similar reasons, Al-Jazeera was taken off air by the Indian government after a 5-day ban imposed under Section 69A of the IT Act [38]. Modi’s visit to Queensland University of Technology was accompanied by an “unqualified apology” from the authorities for having depicting Indian map without portions of Kashmir [39]. Urban Development Department of Bihar also ended up show-causing one of its employees for putting up wrong map on its website and substituting the same with SOI’s version after media attention [40]. India seems to be the country often having been angered due to wrong depictions of maps.

While India seems to be actively involved in Geo-politics, it isn’t the only country Google has fallen in legal trouble with, for wrongly depicting International Boundaries. In 2010, Google gained a lot of media attention for allegedly starting the ‘First Google Maps War’ [41]. It occurred when a Nicaraguan official led his forces to the Costa Rican territory on other side of the customary border and used Google Maps as a proof to deny trespassing. Nicaragua and Costa Rica have a long territorial dispute and Google seem to have fuelled it by depicting the Nicaraguan version of border according to which that area of Cost Rican territory came within the boundaries of Nicaragua [42]. Despite Nicaragua’s petition to Google to not accept Costa Rica’s petition to shift borders, Google voluntarily changed its borders to comply with the Costa Rican stance [43].

Another such incident followed in the case of Google’s depiction of Dutch-German border with respect to Dollart Bay [44]. Germany claimed the border to be closer to Dutch land while Dutch claimed it to be more towards centre. Google, however, chose to depict a self-version that transferred the German city of Emden to the territorial control of Netherlands. This infuriated the city which resorted to expressing its displeasure and asking Google to change the depiction. Google, this time, however remained dormant and no amendment in the depiction of Dutch-German border could be witnessed.

At the time of Crimean referendum supporting independence, U.N. had passed a resolution condemning the same and supporting territorial integrity of Ukraine. Google, however, believed in the contrary and was quick to bring changes into its maps to depict formation of independent Crimea [45]. Rather than a mistake, this time, Google had adopted a stance against the UN resolution and used its maps to vocalize the same.

Similarly during the inclusion of South Sudan in the U.N.G.A., while members voted, they were unaware of the exact territorial division between North and South Sudan. It was then that Google initiated the process of collecting geo-spatial information regarding South Sudan from locals in order to better the territorial integrity [46].

Thus, Google has times and again fallen into criticism for wrong depiction of international boundaries and even varied depictions of boundaries as per the perspective of the political entity. However, “Popularity does not bestow authority” [47] and Google’s maps cannot be accurately relied upon for proving sovereign territorial holds. Thus, most of the international incidents have witnessed countries resorting to peaceful petitions to Google informing it regarding the inaccuracy of the border and requesting a shift in the same. Hardly has the world witnessed penal provisions being invoked against Google for depicting versions other than the perceived ones.

3.3. J. Mohanraj v Google and Others

Apart from the above two incidents, another pertinent case is the 2008 judgment by the Madras High Court in J. Mohanraj v (1) Secretary To Government, Delhi; (2) Indian Space Research Organisation, Bangalore; (3) Google India Private Limited, Bangalore . A writ petition was filed by Mohanraj seeking a complete ban on Google Earth and ‘Bhuvan’; mapping initiatives by Google and ISRO respectively [48].

The petition was allegedly filed in public interest considering the security apparatus of Indian Government along with the threat posed by the terrorists. The petitioner claimed that the initiatives such as Google Earth used high quality satellite imagery to display bird’s eye view of various establishments including minute details and were bound to cover defense establishments and sensitive areas, posing a threat to Indian security. Dr. A.P.J. Abdul Kalam’s speech was referred to indicate his views against such open creation of geospatial data. The provisions of the NMP was highlighted and it was alleged that such mapping practices violated the individual rights of a person under Article 21 of the Constitution. Further, it was claimed that such practices could only be taken up by SOI and were outside the purview of private organizations.

However, the Court held that the petitioner was unable to produce any specific “Guidelines/Rules/Law laid down by the Central/State Governments, prohibiting the private organisations or any other individuals to Interactive Mapping Program, covering vast majority of the Planet”. Since the court could only interpret existing provisions and not lay down guidelines, passed the judgment against the petitioners.

From the above explained incident it seems that the NMP per se does not refrain creation of mapping data by agencies other than SOI. The centre of the conflict seems to lie with the interpretation of the policy by SOI claiming itself to be the exclusive agency entitled to map data. Hence, often though complaints and cases are filed against such activities, no concrete consequence emerges from the same. Further, the courts have also neglected the grievance of the issue and given ambiguous judgments in most cases. Thus no judicial sanction or opposition to the SOI’s guidelines exist till date often allowing SOI to continue with following its own version. While these cannot be termed as a solution, they definitely indicate towards the root of the problem.

4. Conclusion

It can be concluded from above compilation of legal provisions and incidents that it is perhaps SOI’s interpretation to NMP that gives rise to exclusive authority to map geospatial data and not the policy per se. The objective of the policy clearly advocates for promotion of the use of geospatial knowledge and intelligence. More than one provision under the SOI guidelines indicate towards the arbitrary abuse of power. First, a provision regarding ‘Settlement of disputes’ has been included in the guidelines. Secretary, Department of Science & Technology has been vested with binding decision making powers in case of a dispute on the applicability or interpretation of the guidelines between the SOI and any other person. Thus, instead of a judicial forum, an executive authority has been vested with quasi-judicial powers. Such a dispute resolution mechanism cannot be considered as devoid of bias towards the governmental agency, hampering fair and equal justice. Second, SOI assumed the power of mapping data but under the guidelines considers itself devoid of complete responsibility for the loss caused to any person on account of failure of proper dissemination of data. Third, the SOI has reserved the right to add, delete, modify or amend every provision of the guidelines at any time without assigning any reason or notice.

While depiction of wrong boundaries has been specifically been criminalized and can be accepted as symbolic of sovereign hold over contentious territorial areas, it hardly fulfills a security purpose other than acting as a proof to the international community. The incident regarding Mapathon, on the other hand, though did not result in penal consequences towards Google, seem counterproductive in the first place for asking for a ban on increase of geospatial resource data. Considering the same, prudency demands that India also adopt policies and measures that are more peaceful and accommodating in nature such as resolving territorial matters by talking out with Google and other agencies. The current and proposed stringent penal provisions only act as dis-incentivising measures for geo-spatial agencies to map India, which is not the motive sought to be achieved by the bill.

However, the interpretation of the policy cannot be blamed alone for restrictions such as depiction of VAs and VPs have been specifically mentioned in the policy. Above mentioned policies and guidelines have often been criticized for being overly restrictive in nature and a consequence of colonial hangover. In times of crowdsourcing of mapping data, the need of the hour exist in critically analysing the existent policies and their interpretation. The same is especially so in the absence of a high quality digital version of the correct boundary of India. While a map in PDF form has been put up by Survey of India, the same cannot be converted to digital form to be complied with or used to resolve territorial disputes of detailed nature. This makes it absolutely impossible to completely comply with the Indian version of the boundaries without a proper resource acting as a comparison check. The need of the hour is for the Government to release less ambiguous and specific details as to what it considers to be outside the scope of private mapping and the correct boundaries along with a less stringent policy framework so that India can protect its security, sovereignty and integrity while promoting creation and dissemination of geo-spatial data.

5. References

[1] SV Srikantia, 'Restriction on maps: A denial of valid geographic information,' [2000] 79(4), Current Science 484.

[2] Fatima Alam, 'Mapping the politics of cartography,' Infosys Science Foundation, 31 March 2015, http://www.infosysblogs.com/infosysprize/2015/03/mapping_the_politics_of_cartog_2.html, accessed 11 May 2016.

[3] 'About Us,' Survey of India, http://www.surveyofindia.gov.in/pages/view/10-about-us, accessed 11 May 2016.

[4] Ibid.

[5] R Ramachandran, 'Public Access to Indian Geographical Data,' [2000] 79(4) Current Science 450.

[6] Ibid.

[7] Supra, 4.

[8] “Scale represents the relationship of the distance on the map/data to the actual distance on the ground. Map detail is determined by the source scale of the data: the finer the scale, the more detail.” Seen at http://gif.berkeley.edu/documents/Scale_in_GIS.pdf.

[9] Dr. Manosi Lahiri, 'Survey & Mapping in India: The Regulatory Framework,' Directions Magazine India, https://www.mlinfomap.com/Pdf/Survey&Mapping-Lahiri%202.1.pdf, accessed 11 May 2016.

[10] Ibid.

[11] Supra, 2.

[12] ‘Guidelines for implementing National Map Policy,’ Survey of India, http://surveyofindia.gov.in/files/nmp/Guidlines%20for%20Implementing%20National%20Map%20policy.pdf.

[13] 'National Map Policy, 2005, Preamble,' Survey of India, http://surveyofindia.gov.in/files/nmp/National%20Map%20Policy.pdf.

[14] Ibid, Objectives.

[15] Supra, 11.

[16] Supra, 5.

[17] 'Remote Sensing Data Policy, 2011,' National Remote Sensing Centre, Indian Space Research Organisation, http://www.nrsc.gov.in/Remote_Sensing_Data_Policy.

[18] Civil Aviation Requirement Section 3 Air Transport Series ‘F’ Part I Issue I, 12th October 2010.

[19] Nandagopal Rajan, 'Why India needs rules for flying drones, soon' (The Indian Express, 9 July, 2015) http://indianexpress.com/article/technology/gadgets/why-india-needs-rules-for-flying-drones-soon/ accessed 11 May 2016.

[20] TNN, 'Now, flying a drone can land you in prison' (The Times of India, 15 February, 2016) http://timesofindia.indiatimes.com/city/jaipur/Now-flying-a-drone-can-land-you-in-prison/articleshow/50990613.cms, accessed 11 May 2016.

[21] Ibid.

[22] Supra, 19; 20.

[23] Supra, 5.

[24] tech2 news staff, 'Why is Google’s Mapathon in hot waters in India? All you need to know' (Tech-2, 12 Aug, 2015) http://tech.firstpost.com/news-analysis/why-is-googles-mapathon-in-hot-waters-in-india-all-you-need-to-know-228810.html, accessed 6 May 2016

[25] Supra, 12.

[26] Supra, 24.

[27] ‘PTI, 'Google ‘polluted Internet’ with classified material: Survey of India' (The Hindu, 10 August, 2014) http://www.thehindu.com/sci-tech/technology/internet/mapathon-2013-row-google-polluted-internet-with-classified-material-says-survey-of-india/article6300853.ece, accessed 11 May 2016.

[28] Sandeep Joshi, ‘Google didn’t take permission for Mapathon’ (The Hindu, 24 April, 2013) http://www.thehindu.com/news/national/google-didnt-take-permission-for-mapathon/article4648589.ece, accessed 6 May 2016.

[29] Supra, 24.

[30] Abhishek Sharan, 'CBI may close probe against Google in Mapathon case' (Hindustan Times, 12 February, 2015) http://www.hindustantimes.com/india/cbi-may-close-probe-against-google-in-mapathon-case/story-CgZYWoP9NgYA3xVepjr5bN.html, accessed 6 May 2016.

[31] PTI, 'Pathankot attack: Sensitive sites on Google Maps under Delhi HC scanner' (Times of India, 15 January, 2016) http://timesofindia.indiatimes.com/tech/tech-news/Pathankot-attack-Sensitive-sites-on-Google-Maps-under-Delhi-HC-scanner/articleshow/50596143.cms, accessed 6 May 2016.

[32] ‘Public Awareness,' Survey of India, http://www.surveyofindia.gov.in/pages/display/190-public-awareness), accessed 6 May 2016.

[33] Aman Sharma, '7-year jail, Rs 100 crore fine soon for showing PoK, Arunachal as disputed' (The Economic Times, 05 May 2016) http://economictimes.indiatimes.com/news/politics-and-nation/7-year-jail-rs-100-crore-fine-soon-for-showing-pok-arunachal-as-disputed/articleshow/52117889.cms, accessed 6 May 2016.

[34] Jaspreet Sahni 'Survey of India files complaint against Google maps for wrong depiction of India's boundaries' (News18, 13 December 2014) http://www.news18.com/news/india/survey-of-india-files-complaint-against-google-maps-for-wrong-depiction-of-indias-boundaries-731101.html, accessed 6 May 2016.

[35] Itanagar agencies, 'Arunachal fumes over wrong map on iPhone4' (Deccan Herald, 04 October, 2010) http://www.deccanherald.com/content/101784/F, accessed 6 May 2016.

[36] CC, 'How Google represents disputed borders between countries' (The Economist, 04 September, 2014) http://www.economist.com/blogs/economist-explains/2014/09/economist-explains-1, accessed 6 May 2016.

[37] The Kashmir Walla, 'Ten Maps of Kashmir That Angered India' (The Kashmir Walla, 14 May, 2015) http://thekashmirwalla.com/2015/05/ten-maps-of-kashmir-that-angered-india/accessed 11 May 2016.

[38] Ibid.

[39] Ibid.

[40] Ibid.

[41] Frank Jacobs, 'The First Google Maps War' (The New York Times, 28 February, 2012) http://opinionator.blogs.nytimes.com/2012/02/28/the-first-google-maps-war/, accessed 11 May 2016.

[42] Ethan Merel, 'Google’s World: The Impact of "Agnostic Cartographers" on the State-Dominated International Legal System' [2016] Columbia Journal of Transnational Law 442-444.

[43] Ibid.

[44] Europe, 'Google map gives German harbour to Netherlands' (BBC, 23 February, 2011) http://www.bbc.com/news/world-europe-12558741, accessed 11 May 2016.

[45] Supra, 42, 448.

[46] Ibid, 449.

[47] Supra, 47.

[48] J. Mohanraj v (1) Secretary To Government, Delhi; (2) Indian Space Research Organisation, Bangalore; (3) Google India Private Limited, Bangalore, 2008 Indlaw MAD 3562.

6. Author Profile

Adya Garg is a law student at West Bengal National University of Juridical Sciences, Kolkata and has completed her second year. An ardent *SRK fan*, and a dancer at heart, she loves reading books in her free time. Always excited about exploring new fields, she never misses an opportunity to work on areas outside her legal curriculum.

For more details visit https://cis-india.org/openness/legal-challenges-to-mapping-in-india-1-laws-policies-cases

Lecture on Open Access and Open Content Licensing at ICAR (short course)

Admin — 2018-12-05T16:19:56Z

The ICAR-Indian Institute of Horticultural Research (IIHR) a constituent establishment of Indian Council of Agricultural Research (ICAR) organised a short course on 'ICTs for Improving Efficiency and Effectiveness in Agricultural Research, Education and Extension of NARES' during November 13-22, 2018 in Bangalore. Anubha Sinha delivered a lecture to the participants.

Read for more information about the programme.

For more details visit https://cis-india.org/openness/news/lecture-on-open-access-and-open-content-licensing-at-icar-short-course

Learning from Fukushima

praskrishna — 2011-08-30T12:47:25Z

Take remedial steps and demystify the unreasoning dread of nuclear power, says Shyam Ponappa in his latest column published by the Business Standard on April 7, 2011.

Official statistics report over 22,000 deaths related to fires, 27,000 by drowning and 144,000 in traffic accidents annually in India[1]. By contrast, the number of deaths resulting from the Chernobyl nuclear accident is about 10,000 in total, estimates Frank von Hippel, a nuclear physicist at Princeton, who is co-chairman of the International Panel on Fissile Materials (other estimates: World Health Organisation 4,000; International Agency for Research on Cancer 16,000; Belarus 93,000 plus 270,000 cancer patients; and Ukraine 500,000). Against this, he estimates the number of deaths owing to pollution from coal plants in the US alone at 10,000 each year [2].

In this context, what are we to make of a top Indian scientist’s demand for stopping nuclear power production in India pending a transparent safety audit of all nuclear plants? Why not stop all traffic because of traffic accidents, to paraphrase another leading scientist? Should we shut down all our cities and towns until the sewerage systems work? A conscious effort should be made to demystify nuclear power.

To consider this rationally, let’s begin with some reported facts. The Fukushima accident happened after the earthquake, after the plant shut down. The plant was designed to withstand waves of six metres, but was struck by an eight-metre high tsunami, according to the US’ National Oceanographic and Atmospheric Administration (other estimates range between 6.71 and 14 metres).

The reactor core takes several days to cool after being shut down and requires external cooling. The cooling system lost power from the grid because of the earthquake. The backup diesel generators worked for an hour, then stopped (there are conflicting reports on the reasons). The backup batteries then powered the pumps until they ran out. There are also conflicting reports of alternate diesel generators that were either of insufficient capacity or could not be connected for reasons that are unclear (flooded connectors, incompatible plugs and so on). The tsunami devastated the surroundings even as it hampered assistance from elsewhere. The failure appears to have been in the supply of power and water, that is , ancillary services.

Japan has 55 nuclear power reactors and it experiences frequent earthquakes. Though there have been instances of plants being shut down after earthquakes (2007: electrical transformer fire at Kashiwazaki-Kariwa, and some leaks of slightly radioactive water reported; 2004: one unit at the same plant was shut down), there has been no failure of nuclear plants because of earthquakes. So, no new facts relating to earthquakes or tsunamis seem to have surfaced to cause India to shut down its nuclear plants arbitrarily.

An increase in energy use in India is inescapable, given the correlation between growth and energy consumption. On balance, we need all the energy we can get staying within reasonable risks and costs. Objectively, what can we expect from our government and related agencies such as the Department of Atomic Energy and the Atomic Energy Agency?

Remedial Action

One could be to expect action to reduce risks based on experience.

After the Indian Ocean tsunami of 2004, a 3.2-km wall was constructed at Kalpakkam, which was in the path of the tsunami, fortified with sandbags, rocks and embankments. (The plant is situated at over 9 metres above the sea, with the reactor floors at a height of nearly 10.7 metres.)
The backup generators are located some distance away from the plant, out of the reach of tsunamis.
Mangroves and casuarinas along the coast helped diffuse the impact of the waves in 2004. News reports indicate the Department of Atomic Energy plans to augment these after its recent review of coastal nuclear plants.
News reports also mention that portable generators will be acquired for backup and tsunami alarms will be installed at coastal sites.

Other remedial measures based on experience may have been incorporated at Indian plants, or if not, could be incorporated now. For instance, referring to Fukushima, Dr von Hippel describes a filtered vent system designed to reduce radioactivity before releasing pressure from the containment building in the event of a meltdown (see diagram). Though it was ignored in the US, Sweden adopted it and so did France and Germany. Presumably, a benefit of Areva’s partnership with the Nuclear Power Corporation of India for constructing India’s new reactors will be the inclusion of filtered vents, if appropriate and not already in our design.

Costs, Benefits and Risks

Another issue is educating people on the risks, costs and benefits of different fuels. Life-cycle emissions capture one aspect of these costs (see figure for Europe).

A similar study is available for the US: “Life-Cycle Assessment of Electricity Generation Systems and Applications for Climate Change Policy Analysis” by Paul J Meier, University of Wisconsin-Madison, August 2002 (http://fti.neep.wisc.edu/pdf/fdm1181.pdf) Besides, there are costs such as population displacement and environmental effects associated with hydroelectric plants, land requirements and the environmental impact of manufacturing for solar generation, noise levels for wind farms, or pollution and the higher risk of accidents associated with coal [3].

Open Information and Communication

A third issue is easy access to accurate and relevant information. After the tsunami in 2004, the information sharing with the public was exemplary, with open and transparent briefings at Kalpakkam. This approach needs to be instituted as a standard operating procedure for governance by all departments and agencies, displaying integrity in systems, thereby instilling confidence in the public.

Prompt and accurate information about safety features including design and remedial measures could be compiled for ready access on websites, with pointers during press briefings. Regular and effective communication of systems and procedures, and measures to mitigate risks, could reduce our unreasoning dread of nuclear energy. Such steps would help assess risks reasonably and provide a good framework for governance and crisis management.

Notes

[1]."Table 38.1 Incidence of Accidental Deaths", http://mospi.nic.in/...38%20ACCIDENT%20STATISTICS/Table-38.1.xls [2008: latest available data].

[2].“It Could Happen Here”, Frank N von Hippel, New York Times, March 23, 2011: http://www.nytimes.com/2011/03/24/opinion/24Von-Hippel.html.

[3].“Nuclear power is safest way to make electricity, according to study”, David Brown, Washington Post, April 2, 2011: http://www.washingtonpost.com/national/nuclear-power-is-safest-way-to-make-electricity-according-to-2007-tudy/2011/03/22/AFQUbyQC_story.html.

For more details visit https://cis-india.org/telecom/blog/fukushima

Leaked Privacy Bill: 2014 vs. 2011

elonnai — 2014-04-01T10:52:41Z

The Centre for Internet and Society has recently received a leaked version of the draft Privacy Bill 2014 that the Department of Personnel and Training, Government of India has drafted.

Note: After obtaining a copy of the leaked Privacy Bill 2014, we have replaced the blog "An Analysis of the New Draft Privacy Bill" which was based off of a report from the Economic Times, with this blog post.

This represents the third leak of potential privacy legislation for India that we know of, with publicly available versions having leaked in April 2011 and September 2011.

When compared to the September 2011 Privacy Bill, the text of the 2014 Bill includes a number of changes, additions, and deletions. Below is an outline of significant changes from the September 2011 Privacy Bill to the 2014 Privacy Bill:

Scope: The 2014 Bill extends the right to Privacy to all residents of India. This is in contrast to the 2011 Bill, which extended the Right to Privacy to citizens of India. The 2014 Bill furthermore recognizes the Right to Privacy as a part of Article 21 of the Indian Constitution and extends to the whole of India, whereas the 2011 Bill did not explicitly recognize the Right to Privacy as being a part of Article 21, and excluded Jammu and Kashmir from its purview.
Definitions: The 2014 Bill includes a number of new definitions, redefines existing terms, and deletes others.

Terms that have been added in the 2014 Bill and the definitions

Personal identifier: Any unique alphanumeric sequence of members, letters, and symbols that specifically identifies an individual with a database or a data set.
Legitimate purpose: A purpose covered under this Act or any other law for the time being in force, which is certain, unambiguous, and limited in scope for collection of any personal data from a data subject.
Competent authority : The authority which is authorized to sanction interception or surveillance, as the case may be, under this Act or rules made there under or any other law for the time being in force.
Notification: Notification issued under this Act and published in the Official Gazette
Control : And all other cognate forms of expressions thereof, means, in relation to personal data, the collection or processing of personal data and shall include the ability to determine the purposes for and the manner in which any personal data is to be collected or processed.
Telecommunications system: Any system used for transmission or reception of any communication by wire, radio, visual or other electromagnetic means but shall not include broadcasting services.
Privacy standards: The privacy standards or protocols or codes of practice. developed by industry associations.

Terms that have been re-defined in the 2014 Bill from the 2011 Bill and the 2014 Bill definitions

Communication data:The data held or obtained by a telecommunications service provider in relation to a data subject including the data usage of the telecommunications
Data subject : Any living individual, whose personal data is controlled by any person
Interception: In relation to any communication in the course of its transmission through a telecommunication system, any action that results in some or all of the contents of that communication being made available, while being transmitted, to a person other than the sender or the intended recipient of the communication.
Person: Any natural or legal person and shall include a body corporate, partnership, society, trust, association of persons, Government company, government department, urban local body, or any other officer, agency or instrumentality of the state.
Sensitive personal data: Personal data relating to: (a) physical and mental health including medical history, (b) biometric, bodily or genetic information, (c) criminal convictions (d) password, (e) banking credit and financial data (f) narco analysis or polygraph test data, (g) sexual orientation. Provided that any information that is freely available or accessible in public domain or to be furnished under the Right to Information Act 2005 or any other law for time being in force shall not be regarded as sensitive personal data for the purposes of this Act.
Individual: a resident of Indian
Covert surveillance: covert Surveillance" means obtaining private information about an individual and his private affairs without his knowledge and includes: (i) directed surveillance which is undertaken for the purposes of specific investigation or specific operation in such a manner as is likely to result in the obtaining of private information about a person whether or not that person was specifically identified in relation to the investigation or operation; (ii) intrusive surveillance which is carried out by an individual or a surveillance device in relation to anything taking place on a residential premise or in any private vehicle. It also covers use of any device outside the premises or a vehicle wherein it can give information of the same quality and detail as if the device were in the premises or vehicle; (iii) covert human intelligence service which is information obtained by a person who establishes or maintains a personal or other relationship with an individual for the covert purpose of using such a relationship to obtain or to provide access to any personal information about that individual
Re-identify: means the recovery of data from an anonymised data, capable of identifying a data subject whose personal data has been anonymised;
Process: “process" and all other cognate forms of expressions thereof, means any operation or set of operations, whether carried out through automatic means or not by any person or organization, that relates to:(a) collation, storage, disclosure, transfer, updating, modification, alteration or use of personal data; or (b) the merging, linking, blocking, degradation or anonymisation of personal data;
Direct marketing: Direct Marketing means sending of a commercial communication to any individual
Data controller: any person who controls, at any point in time, the personal data of a data subject but shall not include any person who merely provides infrastructure for the transfer or storage of personal data to it data controller;
Government: the Central Government or as the case may be, the State Government and includes the Union territory Administration, local authority or any agency and instrumentality of the Government;

Terms that have been removed from the 2014 Bill that were in the 2011 Bill and the 2011 definition:

Consent: Includes implied consent
Maintain: Includes maintain, collect, use, or disseminate.
Data processor: In relation to personal data means any person (other than the employee of the data controller), who processes the data on behalf of the data controller.
Local authority: A municipal committee, district board, body of port commissioners, council, board or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund.
Prescribed: Prescribed by rules made under this Act.
Surveillance: Surveillance undertaken through installation and use of CCTVs and other system which capture images to identify or monitor individuals (this was removed from the larger definition of surveillance.)
DNA: Cell in the body of an individual, whether collected from a cheek, cell, blood cell, skin cell or other tissue, which allows for identification of such individual when compared with other individual.

Terms that have remained broadly (with some modification) the same between the 2014 Bill and 2011 Bill (as per the 2014 Bill definition):

Authority: The Data Protection Authority of India
Appellate tribunal: the Cyber Appellate Tribunal established under Sub-Section (1) of section n48 of the Information Technology Act, 2000.
Personal data: Any data which relates to a data subject, if that data subject can be identified from that data, either directly or indirectly, in conjunction with other data that the data controller has or is likely to have and includes any expression of opinion about such data subject.
Member: Member of the Authority
Disclose: and all other cognate forms of expression thereof, means disclosure, dissemination, broadcast, communication, distribution, transmission, or make available in any manner whatsoever, of personal data.
Anonymised: The deletion of all data that identifies the data subject or can be used to identify the data subject by linking such data to any other data of the data subject, by the data controller.

Exceptions to the Right to Privacy: According to the 2011 Bill, the exceptions to the Right to Privacy included:

Sovereignty, integrity and security of India, strategic, scientific or economic interest of the state
Preventing incitement to the commission of any offence
Prevention of public disorder or the detection of crime
Protection of rights and freedoms of others
In the interest of friendly relations with foreign state
Any other purpose specifically mentioned in the Act.

The 2014 Bill reflects almost all of the exceptions defined in the 2011 Bill, but removes ‘detection of crime’ from the list of exceptions. The 2014 Bill also qualifies that the application of each exception must be adequate, relevant, and not excessive to the objective it aims to achieve and must be imposed on the manner prescribed – whereas the 2011 Bill stated only that the application of exceptions to the Right to Privacy cannot be disproportionate to the purpose sought to be achieved.

Acts not to be considered deprivations of privacy: The 2011 Bill lists five instances that will not be considered a deprivation of privacy - namely

For journalistic purposes unless it is proven that there is a reasonable expectation of privacy,
Processing data for personal or household purposes,
Installation of surveillance equipment for the security of private premises,
Disclosure of information via the Right to Information Act 2005,
And any other activity exempted under the Act.

The 2014 limits these instances to:

The processing of data purely for personal or household purposes,
Disclosure of information under the Right to Information Act 2005,
And any other action specifically exempted under the Act.

Privacy Principles: Unlike the 2011 Bill, the 2014 Bill defines nine specific privacy principles: notice, choice and consent, collection limitation, purposes limitation, access and correction, disclosure of information, security, openness, and accountability. The Privacy Principles will apply to all existing and evolving practices.

Provisions for Personal Data: Both the 2011 Bill and the 2014 Bill have provisions that apply to the processing of personal and sensitive personal data. The 2011 Bill includes provisions addressing the:

Collection of personal data,
Processing of personal data,
Data quality,
Provisions relating to sensitive personal data,
Retention of personal data,
Sharing (disclosure) of personal data,
Security of personal data,
Notification of breach of security,
Access to personal data by data subject,
Updation of personal data by data subject
Mandatory processing of data,
Trans border flows of personal data.

Of these, the 2014 Bill broadly (though not verbatim) reflects the 2011 Bill provisions relating to the:

Collection of personal data,
Processing of personal data,
Access to personal data,
Updating personal data
Retention of personal data
Data quality,

The 2014 Bill has further includes provisions addressing:

Openness and accountability,
Choice,
Consent,
Exceptions for personal identifiers.

The 2014 Bill has made changes to the provisions addressing:

Provisions relating to sensitive personal data,
Sharing (disclosure of personal data),
Notification of breach of security,
Mandatory processing of data
Security of personal data
Trans border flows of personal data.

The changes that have been made have been mapped out below:

Provisions Relating to Sensitive Personal Data: The 2011Bill and 2014 Bill both require authorization by the Authority for the collection and processing of sensitive personal data. At the same time, both Bills include a list of circumstances under which authorization for the collection and processing of sensitive personal data is not required. On the whole, this list is the same between the 2011 Bill and 2014 Bill, but the 2014 Bill adds the following circumstances on which authorization is not needed for the collection and processing of sensitive personal data:

For purposes related to the insurance policy of the individual if the data relates to the physical or mental health or medical history of the individual and is collected and processed by an insurance company.
Collected or processed by the Government Intelligence agencies in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India.

The 2014 Bill also allows the Authority to specify additional regulations for sensitive personal data, and requires that any additional transaction sought to be performed with the sensitive personal information requires fresh consent to first be obtained. The 2014 Bill carves out another exception for Government agencies, allowing disclosure of sensitive personal data without consent to Government agencies mandated under law for the purposes of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution, and punishment of offences.

Notification of Breach of Security: The provisions relating to the notification of breach of security in the 2014 Bill differ from the 2011 Bill. Specifically, the 2014 Bill removes the requirement that data controllers must publish information about a data breach in two national news papers. Thus, in the 2014 Bill, data controllers must only inform the data protection authority and affected individuals of the breach.

Notice: The 2014 Bill changes the structure of the notice mechanism – where in the 2011 Bill, prior to the processing of data, data controllers had to take all reasonable steps to ensure that the data subject was aware of the following:

The documented purposes for which such personal data is being collected
Whether providing of personal data by the data subject is voluntary or mandatory under law or in order to avail of any product or service
The consequences of the failure to provide the personal data
The recipient or category of recipients of the personal data
The name and address of the data controller and all persons who are or will be processing information on behalf of the data controller
If such personal data is intended to be transferred out of the country, details of such transfer.

In contrast the 2014 Bill provides that before personal data is collected, the data controller must give notice of:

What data is being collected and
The legitimate purpose for the collection.

If the purpose for which the data was collected has changed the data controller will then be obligated to provide the data subject with notice of:

The use to which the personal data will be put
Whether or not the personal data will be disclosed to a third party and if so the identity of such person
If the personal data being collected is intended to be transferred outside India and the reasons for doing so, how the transfer helps in achieving the legitimate purpose and whether the country to which such data is transferred has suitable legislation to provide for adequate protection and privacy of the data.
The security and safeguards established by the data controller in relation to the personal data
The processes available to a data subject to access and correct his personal data
The recourse open to a data subject, if he has any complaints in respect of collection or processing of the personal data and the procedure relating thereto
The name, address, and contact particulars of the data controller and all persons who will be processing the personal data on behalf of the data controller.

Disclosure of personal data: Though titled as ‘sharing of personal data’ both the 2011 Bill and 2014 Bill require consent for the disclosure of personal information, but list exceptional circumstances on which consent is not needed. In the 2011 bill, the relevant provision permits disclosure of personal data without consent only if (i) the sharing was a part of the documented purpose, (ii) the sharing is for any purpose relating to the exceptions to the right to privacy or (iii) the Data Protection Authority has authorized the sharing. In contrast, the 2014 Bill permits disclosure of personal data without consent if (i) such disclosure is part of the legitimate purpose (ii) such disclosure is for achieving any of the objectives of section 5 (iii) the Authority has by order authorized such disclosure (iv) the disclosure is required under any law for the time being in force (v) the disclosure is made to the Government Intelligence agencies in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India. As a safeguard, the 2014 Bill requires that any person to whom personal information is disclosed, whether a resident or not, must adhere to all provisions of the Act. Furthermore, the disclosure of personal data must be limited to the extent which is necessary to achieve the purpose for which the disclosure is sought and no person can make public any personal data that is in its control.

Transborder flow of information: Though both the 2011 Bill and the 2014 Bill require any country that data is transferred to must have equivalent or stronger data protection standards in place, the 2014 Bill carves out an exception for law enforcement and intelligence agencies and the transfer of any personal data outside the territory of India, in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India.

Mandatory Processing of Data: Both the 2011 Bill and 2014 Bill have provisions that address the mandatory processing of data. These provisions are similar, but the 2014 Bill includes a requirement that data controllers must anonymize personal data that is collected without prior consent from the data subject within a reasonable time frame after collection.

Security of Personal Data: The provision relating to the security of personal information in the 2014 Bill has been changed from the 2011 Bill by expanding the list and type of breaches that must be prevented, but removing requirements that data controllers must ensure all contractual arrangements with data processors specifically ensure that the data is maintained with the same level of security.

Conditions on which provisions do not apply: Both the 2011Bill and 2014 Bill define conditions on which the provisions of updating personal data, access, notification of breach of security, retention of personal data, data quality, consent, choice, notice, and right to privacy will not apply to personal data. Though the 2011 Bill and 2014 Bill reflect the same conditions, the 2014 Bill carves out an exception for Government Intelligence Agencies - stating that the provisions of updating personal data, access to data by the data subject, notification about breach of security, retention of personal data, data quality, processing of personal data, consent, choice, notice, collection from an individual will not apply to data collected or processed in the interest of the sovereignty, integrity, security or the strategic, scientific or economic interest of India.
Privacy Officers: Unlike the 2011 Bill, the 2014 Bill defines the role of the privacy officer that must be established by every data controller for the purpose of overseeing the security of personal data and implementation of the provisions of the Act.
Power of Authority to Exempt: Both the 2011 Bill and 2014 Bill contain provisions that enable the Authority to waive the applicability of specific provisions of the Act. The circumstances on which this can be done are based on the exceptions to the Right to Privacy in both the 2011 and 2014 Bill. To this extent, the 2014 Bill differs slightly from the 2011 Bill, by removing the power of the Authority to exempt for the ‘detection of crime’ and ‘any other legitimate purpose mentioned in this Act’ .

The Data Protection Authority: The 2011 Bill and 2014 Bill both establish Data Protection Authorities, but the 2014 Bill further clarifies certain aspects of the functioning of the Authority and expands the functions and the powers of the Authority. For example, new functions of the Authority include:

Auditing any or all personal data controlled by the data controller to assess whether it is being maintained in accordance with the Act,
Suggesting international instruments relevant to the administration of the Act,
Encouraging industry associations to evolve privacy standards for self regulations, adjudicating on disputes arising between data controllers or between individuals and data controllers.

The 2014 Bill also expands the powers of the Data Protection Authority – importantly giving him the power to receive, investigate complaints about alleged violations of privacy and issue appropriate orders or directions.

At the same time, the 2014 Bill carves out an exception for Government Intelligence Agencies and Law Enforcement agencies – preventing the Authority from conducting investigations, issuing appropriate orders or directions, and adjudicating complaints in respect to actions taken by the Government Intelligences Agencies and Law Enforcement, if for the objectives of (a) sovereignty, integrity or security of India; or(b) strategic, scientific or economic interest of India; or(c) preventing incitement to the commission of any offence, or (d) prevention of public disorder, or(e) the investigation of any crime; or (f) protection of rights and freedoms of others; or (g) friendly relations with foreign states; or (h) any other legitimate purpose mentioned in this Act.

This power is instead vested with a court of competent jurisdiction.

The National Data Controller Registry: The 2014 Bill removes the National Data Controller Registry and requirements for data controllers to register themselves and oversight of the Registry by the Data Protection Authority.
Direct Marketing: Both the 2011 and 2014 Bills contain provisions regulating the use of personal information for direct marketing purposes. Though the provisions are broadly the same, the 2011 Bill envisions that no person will undertake direct marketing unless he/she is registered in the ‘National Data Registry’ and one of the stated purposes is direct marketing. As the 2014 Bill removes the National Data Registry, the 2014 Bill now requires that any person undertaking direct marketing must have on record where he/she has obtained personal data from.
Interception of Communications: Though maintaining some of the safeguards defined in the 2011 Bill for interception, 2014 Bill changes the interception regime envisioned in the 2011 Bill by carving out a wide exception for organizations monitoring the electronic mail of employees, removing provisions requiring the interception take place only for the minimum period of time required for achieving the purposes, and removing provisions excluding the use of intercepted communications as evidence in a court of law. Similar to the 2011 Bill, the 2014 Bill specifies that the principles of notice, choice and consent, access and correction, and openness will not apply to the interception of communications.
Video Recording Equipment in public places: Unlike the 2011 Bill, which addressed only the use of CCTV’s, the 2014 Bill addresses the installation and use of video recording equipment in public places. Though both the 2011 Bill and 2014 Bill both prevent the use of recording equipment and CCTVs for the purpose of identifying an individual, monitoring his personal particulars, or revealing personal, or otherwise adversely affecting his right to privacy - the 2014 Bill requires that the use of recording equipment must be in accordance with procedures, for a legitimate purpose, and proportionate to the objective for which the equipment was installed.

The 2014 Bill makes a broad exception to these safeguards for law enforcement agencies and government intelligence agencies in the interest of the sovereignty, integrity, security or the strategic, scientific, or economic interest of India.

Privacy Standards and Self Regulation: The 2014 Bill establishes a specific mechanism of self regulation where industry associations will develop privacy standards and adhere to them. For this purpose, an industry ombudsman should be appointed. The standards must be in conformity with the National Privacy Principles and the provisions of the Privacy Bill. The developed standards will be submitted to the Authority and the Authority may frame regulations based on the standards. If an industry association has not developed privacy standards, the Authority may frame regulations for a specific sector.
Settlement of Disputes and Appellate Tribunal: The 2014 Bill makes significant change to the process for settling disputes from the 2011 Bill. In the 2014 Bill an Alternative Dispute Mechanism is established where disputes between individuals and data controllers are first addressed by the Privacy Officer of each Data Controller or the industry level Ombudsman. If individuals are not satisfied with the decision of the Ombudsman they may take the complaint to the Authority. Individuals can also take the complaint directly to the Authority if they wish. If an individual is aggrieved with the decision of the Authority, by a privacy officer or ombudsman through the Alternative Dispute Resolution mechanism, or by the adjudicating officer of the Authority, they may approach the Appellate Tribunal. Any order from the Appellate Tribunal can be appealed at a high court.

In the 2011 Bill disputes between the data controller and an individual can be taken directly to the Appellate Tribunal and orders from the Authority can be appealed at the Tribunal. There is not further path for appeal to an order of the tribunal.

Offences and Penalties: The 2014 Bill changes the structure of the offences and penalties section by breaking the two into separate sections - one addressing offences and one addressing penalties while the 2011 Bill addressed offences and penalties in the same section.

Offences: The 2014 Bill penalizes every offence with imprisonment and a fine and empowers a police officer not below the rank of Deputy Superintendent of Police to investigate any offence, limits the courts ability to take cognizance of an offence to only those brought by the Authority, requires that the Court be no lower than a Chief Metropolitan Magistrate or a Chief Judicial Magistrate, and permits courts to compound offences. The 2014 Bill further specifies that any offence that is punishable with three years in prison and above is cognizable, and offences punishable with three years in prison are bailable. . Under the 2014 Bill offences are defined as:

Unauthorized interception of communications
Disclosure of intercepted communications
Undertaking unauthorized Covert Surveillance
Unauthorized use of disclosure of communication data

The offences defined under the Act are reflected in the 2011 Bill, but the time in prison and fine is higher in the 2014 Bill.

Penalties: The 2014 Bill provides a list of penalties including:

Penalty for obtaining personal data on false pretext
Penalty for violation of conditions of license pertaining to maintenance of secrecy and confidentiality by telecommunications service providers
Penalty for disclosure of other personal information
Penalties for contravention of directions of the Authority
Penalties for data theft
Penalties for unauthorised collection, processing, and disclosure of personal data
Penalties for unauthorized use of personal data for direction marketing. These penalties reflect the penalties in the 2011 bill, but prescribe higher fines

Adjudicating Officer: Unlike the 2011 Bill that did not have in place an adjudicating officer, the 2014 Bill specifies that the Chairperson of the Authority will appoint a Member of the Authority not below the Rank of Director of the Government of India to be an adjudicating officer. The adjudicating officer will have the power to impose a penalty and will have the same powers as vested in a civil court under the Code of Civil Procedure. Every proceeding before the adjudicating officer will be considered a judicial processing. When adjudicating the officer must take into consideration the amount of disproportionate gain or unfair advantage, the amount of loss caused, the respective nature of the default

Civil Remedies and compensation: Both the 2011 and 2014 Bill contain provisions that permit an individual to pursue a civil remedy, but the 2014 Bill limits these instances to - if loss or damage has been suffered or an adverse determination is made about an individual due to negligence on complying with the Act, and provides for the possibility that the contravening parties will have to provide a public notice of the offense.

The 2014 Bill removes provisions specifying that individuals that have suffered loss due to a contravention by the data controller of the Act are entitled to compensation.

Exceptions for intelligence agencies: Unlike the 2011 Bill, the 2014 Bill includes an exception for Government Intelligence Agencies and Law Enforcement Agencies – stating that the Authority will not have the power to conduct investigations, issue appropriate orders and directions or otherwise adjudicate complaints in respect of action taken by the Government intelligence agencies and Law Enforcement agencies for achieving any of the objectives that reflect the defined exceptions to privacy.

The Centre for Internet and Society welcomes many of the changes that are reflected in the Privacy Bill 2014, but are cautious about the wide exceptions that have been carved out for law enforcement and intelligence agencies in the Bill.

In 2012, the Report of Group of Expert s on Privacy was developed for the purpose of informing a privacy framework for India. As such the Centre for Internet and Society will be analyzing in upcoming posts the draft Privacy Bill 2014 and the recommendations in the Report of the Group of Experts on Privacy.

For more details visit https://cis-india.org/internet-governance/blog/leaked-privacy-bill-2014-v-2011

Leading Up To The GCIP: A Chat With Zakir Thomas

Job Michael Mathew — 2016-01-30T10:54:37Z

With only a few more days to go for the 4th Global Congress on Intellectual Property and the Public Interest 2015 (“Congress”), we will be putting out a number of blog posts as a precursor of things to come. In this first series, Job Michael Mathew approaches some of our keynote speakers for their thoughts on their work areas and contemporary developments in their fields.

Profile: Zakir Thomas is an expert in the field of intellectual property rights, open source innovation, neglected diseases and innovation ecosystem in science and technology in India. He will be giving a keynote address during the inaugural plenary session scheduled for December 15^th.

JMM: How far has the TRIPS regime ensured access to and availability of treatment for neglected diseases?

ZT: TRIPS is an instrument meant to further intellectual property (“IP”) driven innovation. One basic feature of IP driven innovation is that it is market related; thus if the market fails, there is no innovation. There is a whole gamut of areas where innovation is required but does not happen due to lack of a market. The TRIPS regime is meant to address innovation in areas where there is already a market. IP drives innovation in areas that has a market, which will ensure return on investment. In the case of neglected diseases there is no ‘market’ for the innovation drivers to ensure a return on their investment and hence access and availability has been poor in this area. I would say that the TRIPS regime has not dealt with the question of treatment for neglected diseases at all. The fact here is that the TRIPS regime was not meant to ensure access and availability to treatment for neglected diseases.

However it important to look at this question a little closer. There are a lot of areas where innovation has not happened despite the presence of TRIPS-compliant laws. There are countries with stronger IP laws than the US, yet companies have not shifted to those countries. There are many countries in the world today that have TRIPS-complaint IP laws, yet has this resulted in transfer of R&D from the US to local companies in these countries? Even after two decades of TRIPS and links drawn between stronger IP laws and innovation, innovation is confined to a handful of countries. Innovation ecosystem is a complex ecosystem and IP is only one of the factors that have an effect on the ecosystem and not the sole determinant as the current narrative makes it out to be. It is important to challenge the narrative that proclaims that IP drives innovation or that higher IP protection will attract investment and transfer of R&D.

JMM: Given the fact that big pharmaceutical companies are resource-rich to pay hefty sums to people who work with them, how can the open source movement attract the best talent to work for it?

ZT: From my experience in working in this field, I don’t think talent or the lack of it is the real issue. It is important to understand what exactly a pharmaceutical company does in research. In most cases the real innovation, i.e. finding the early stage molecule, which is the core of pharmaceutical innovation, happens in publicly funded academic or research institutions and only in limited cases does it happen within the pharmaceutical company. Once the early stage molecule is discovered then the pharmaceutical companies does some development over these molecules leading up to the clinical trial. There are experts in publicly funded institutions who are willing to work with the open source movement and are in fact working with it. There are Contract Research Organizations who are IP agnostic and deliver quality research to the industry. Talent, therefore, is not difficult to find and is readily available to tap into. Of course, pharmaceutical industry driven drug discovery is a cost-intensive model. Even in the open source model, the costs cannot be brought below a certain level. The open source model will also have to conduct clinical trials and somebody will have to bear these expenses. The difference lies in that fact that the fruits of the innovation will be available to all without the exclusivity of IP attached to it.

JMM: A major concern for the uninitiated will be issues of quality control in an open source drug discovery model. How does open source drug discovery address such concerns?

ZT: To be honest, such a doubt will come from someone not only uninitiated to the model of open source drug discovery but also the process of drug discovery itself. Drug discovery and development is a highly quality controlled work. There are inbuilt regulatory mechanisms which ensure that newly discovered molecules pass certain regulatory standards. We have an independent clinical trial regulatory body called the Drug Controller General, whose experts closely scrutinize all data submitted to it, and only after they are satisfied will they give the nod to go ahead with clinical trials. Further, just because the drug is developed in an open source model doesn’t mean that experts do not closely scrutinize it. Experts, peer reviewers and funders scrutinize the discovery at every single stage and only with the approval of the regulators will things move ahead. Essentially, independent of whether the drug is discovered through the open source or the pharmaceutical model, the kind of regulatory checks and quality controls it goes through will be the same.

JMM: The Department of Biotechnology and the Department of Science and Technology are announcing an open access policy as a major victory for the open access movement in the country. What according to you should be the next objective of the open access movement in India?

ZT: Creating a national depository of open access journals which are properly cited and indexed, organized subject-wise and searchable online by all our academic institutions should be the next step. Essentially a well stocked and organized open access library should be accessible to our researchers. India has a National Knowledge Network (NKN) which provides high bandwidth connectivity to academic institutions. This repository should be made accessible over NKN. It is not enough to declare that Departments go open access. It is important to ensure that the all open access resources are available to our researchers we well.

JMM: How far has the open access movement in India translated to output of quality scientific research studies?

ZT: Open access is about access to knowledge. It will ensure that the work you do at your lab is now accessible by people at large. It does not mean that the quality of work you do in your lab improves. But access to knowledge has the potential to improve the quality of your research. Open access allows for the communication of research findings with taxpayers, which will lead to better returns for the taxpayers as the fruits of the tax money spend is available publicly for everyone to access. Whether this availability leads to better quality of scientific research studies is something unquantifiable as of now. So, open access resulting in output of quality scientific research studies is a correlation that I cannot make. Open Access has been recently adopted in India and there is no data available that allows me to make such a correlation.

The idea behind open access is that one makes public one’s work regardless of its quality or other considerations. Now, the question is whether doing so increases quality of output? There is a possibility that following an open access model will result in better review and feedback of works submitted but this is a very long process and there is no data in India to make such a claim.

[1] Job Michael Mathew is an intern at the Centre for Internet and Society. He is currently a student at Nalsar University of Law, Hyderabad.

[2] Zakir Thomas was the founding Project Director of Open Source Drug Discovery (OSDD) of the Council of Scientific and Industrial Research (CSIR) in India, where he led an open innovation drug discovery programme for tuberculosis (TB). He was also the head of the Director General’s Technical Cell, leading a team which provided technical and policy inputs to CSIR, including intellectual property issues.

He served as the Registrar of Copyrights of Government of India from 2000-2003 and as a Deputy Secretary in the Department of Higher Education of the Ministry of Human Resources Development. Professionally, he is an officer of the Indian Revenue Service with over 25 years of experience, currently posted as Commissioner of Income Tax at Delhi. He has worked at the Ministries of Finance, Science and Technology and Human Resources Development, in the fields of intellectual property, science and technology, e-governance and policy formulation.

Zakir holds an M.Sc. in Physics (Mahatma Gandhi University, Kerala), LL.B. (Delhi University), and a Masters in Intellectual Property, Commerce and Technology (Franklin Pierce Law Centre, University of New Hampshire in the U.S.)

Check out the blog post on Spicy IP

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-zakir-thomas

Leading Up To The GCIP: A Chat With Susan K. Sell

Job Michael Mathew — 2016-01-31T08:36:57Z

After Mr. Zakir Thomas and Dr. Michael Geist, our third discussion is with Prof. Susan K. Sell.

Click to read the blog post published on Global Congress page on December 12, 2015.

Profile: Susan Sell is a Professor of Political Science and International Affairs at George Washington University where her teaching focuses on theories of international politics, international political economy and relations between the North and South. She will be giving a keynote address during the inaugural plenary session scheduled for December 15th.

JMM: The Australian Government’s plain packaging legislation is being challenged by Philip Morris International under the Investment State Dispute Settlement provisions under the Australia-Unites States of America Bilateral Investment Treaty. The treaty under question is a purely investment treaty with no references to public interest or health pre-dating the TRIPS. What do you think will be the implications of adjudicating an intellectual property enforcement dispute at an investment tribunal? Further, such provisions are present in the recently concluded TPP as well even though an exception is carved out for tobacco. However TPP vide Article 18.6 affirms the party’s commitment to TRIPS and public health and explicitly states that parties have the right to determine what constitutes a national emergency and take measures to protect public health even if it conflicts with the obligations under the IP chapter. Do you think the presence of such an explicit undertaking will fundamentally alter the power dynamics within an investor State dispute settlement tribunal which is generally seen as a pro-corporate body?

SS: I think the implications are very troubling. One thing I have looked at a lot and continue to look at is the practice of forum shifting, where parties shift to different forums to try to get what they want and I look at Investor State Dispute Settlement (ISDS) as another forum that raises troubling implications. ISDS has become extremely popular over the last few years; in 1982 there was only one ISDS case, it rose to 50 in 2012 and now in 2015 we are up to 500 cases in 50 different countries. To me this is troubling because it represents a trend of deal making behind closed doors that circumvents democratic deliberation and public scrutiny.

IP is now being defined as an investment asset under the ISDS provisions. In 2014, Susy Frankel and R Dreyfuss wrote about this redefinition of intellectual property. In 2012 a multinational law firm Jones Day published a report arguing that ISDS was a new way forward for pharmaceutical firms to address the assault on their patents in the developing world. So this is a new strategy of intellectual property owners.

The ISDS provisions, by identifying intellectual property as an investment asset, are like getting a camel’s nose inside a tent. Once these issues get adjudicated under ISDS provisions it will open the floodgates for much more ISDS activity focused on IP. Now there is some interesting pushback against these provisions since ISDS is getting more scrutiny in Europe. Germany has gotten less excited about it, the EU is openly debating it and the Eli Lily case against Canada is gaining a lot of notoriety. A number of developing countries, especially in Latin America, who have been very hard hit by ISDS provisions in a number of sectors have requested that ISDS provisions, that they are party to, be formally annulled. Now that’s not going to happen but it is an important symbolic groundswell against ISDS provisions because they override sovereignty, they override decisions of the highest courts of the land, and they are not transparent and there is no appeals process.

To answer the second part of the question, I would love it if states could use the flexibilities in the TPP as a defense of their public health laws but I am a little skeptical about that happening. We have had the Doha Declaration for many years and it has not really stopped pharmaceutical companies from pushing for further protection and enforcement of intellectual property and intellectual property obligations. Therefore even though the language is in there, I doubt if it will change a lot of things in terms of power dynamics on the ground.

JMM: In one of your papers you make the claim that non-governmental organizations (NGOs) working towards lowering intellectual property standards in movements such as access to medicine are not all that different from big businesses that these organizations are fighting. The claim proceeds to argue that both parties are influenced by normative as well as instrumental objectives as opposed to belief that NGOs are only informed by normative objectives. Yet, how important do you think it is for the NGO movements such as Access to Medicine to maintain a distinction from the pharmaceutical companies they are fighting considering the fact that one of the major victories of the Access to Medicine movement was in relation to the HIV/AIDS crisis where the whole issue was framed as a moral life or death question?

SS: I think it is extremely important for the movement to maintain the distinction and the life or death framing of the issue was important too. I want to clarify that the comparison in the piece ‘Using ideas strategically’ between pharmaceutical companies and NGOs is only at the level of strategy. Both parties are very different in terms of resources, structural power, etc. Pharmaceutical companies have access to more resources and are more powerful structurally. Therefore the framing of issues becomes very important for the structurally weaker party.

There are big differences between NGOs in the access to medicine movement and pharmaceutical companies. However, that said, I think there are many representatives of pharmaceutical firms that really believe in the morality of their position – that you need protection to innovate the next generation of drugs. People from Monsanto, many of whom advocate for patents for seeds feel this is important because they believe that this can increase food security. They sincerely believe that the development of drought-resistant plants is something that is good for the world. So these people also make a moral claim whether or not you agree with it. The point is such claims are not purely cynical or instrumental on the part of such actors.

JMM: One of the major criticisms against the TPP has been the lack of transparency in negotiations with even Congressmen not being allowed to see the text till it was released earlier this month. You have spoken about how this is troubling from a legitimacy and accountability standpoint and insulates private players from scrutiny while pushing unpopular articles within the agreement. Yet, in the case of tobacco, an industry which is quite powerful in the US, the TPP has carved out an exception in relation to ISDS. Article 29.5 gives parties the right to elect to deny the benefits of ISDS in relation to tobacco control measures. The statement of United States Trade Representative Michael Froman explaining the exception reads “Developed following extensive consultations with Congress and with a wide range of American stakeholders – from health advocates to farmers, representing many views on whether and how to address tobacco-related health policy measures in a trade agreement”. Even as criticism abound on lack of transparency there seems to have been a surprising amount of transparency as far as this particular provision is concerned. What do you think explains this anomaly?

SS: First of all, I am not very sure that there has been a lot of transparency in the tobacco discussions. I would need to find out more about the process. That statement alone from Michael Froman is not much to go by considering the fact that Stan McCoy before Michael Froman and now Michael Froman himself have always maintained that they have been consulting a wide range of stakeholders during the entire process of TPP negotiations. However the consulted stakeholders have only been their cleared advisors, most of whom are IP owners, major corporations, Wall Street players and the like. Consumers and public interest NGO’s have been shut out of this process. Therefore I am not aware, despite what Froman has said, that there has been an open public deliberation about tobacco provisions.

In fact right now, in the United States, there is a lot of pushback against the carve-out for tobacco in ISDS. This is a sticking point for Obama getting the deal through Congress. Tobacco firms are very upset about the carve-out. Similarly pharmaceutical companies are very upset that they did not get the 12 year data exclusivity on biologics. Senators and Congressmen from states that have a big pharmaceutical presence are saying that the deal must be renegotiated and the higher standards be put in place. So there is an interesting process going on now, but I am not aware of any open and public negotiations.

JMM: An exception to the global movement towards stricter IP regimes as evidenced by deals such as ACTA, TPP among others has been India. The patent law has set the bar pretty high for granting of patents and the Government hasn’t shied away from using tools such as compulsory licenses. What explains the Indian isolation to pressures of the western world, particularly the United States, and what are the lessons the Indian model has to offer to other developing countries?

SS: India is a really interesting case and I am a little nervous about recent statements made by Narendra Modi referencing the need to be open to stronger IP protection. India has a long history of standing up to pressure, for example being the leader of the Non-Aligned Movement, so it has a history of carving out its own path. It has been a pioneer with the passing of the Indian Patent Act, 1970, which allowed it to develop a highly robust and successful generic industry. The adoption of Section 3(d) of the Patents Act, which prevents the evergreening of patents, has been emulated by the Philippines in its Patent Act and is totally TRIPS compliant.

Some of the lessons of the Indian model are to use flexibilities under TRIPS and tailor IPR regimes to suit one’s national needs. Of course India has a large economy and that gives it a more power than some of the smaller developing countries. I think it is important that countries support each other’s rights to use these flexibilities and I would like to see more South-South corporation in drafting laws and offer some pushback against the relentless pressure to go over and above what is required by TRIPS.

JMM: At the turn of the 21^st century there was a move to evolve minimum standards of protection for IP which culminated in the TRIPS agreement. There was a feeling that that the TRIPS agreement was an unbalanced agreement with respect to the interests of the developing world and it was hoped that the Doha Declaration on Public Health and TRIPS would make the agreement more balanced. Added to this, the US trade policy of 2007 marked a shift in the approach of the United States towards IP by lowering standards of protection for the first time. However, recently agreements such as ACTA and TPP tip the balance in favour of developed countries and its MNCs by dismantling many of the inherent flexibilities in the TRIPS agreement. What, according to you, explains this latest shift to a more restrictive IP regime evident from bilateral and plurilateral agreements?

SS: I would argue that if you look back historically, the May 2007 amendment to the Trade Policy to allow for more flexibility in the area of public health is an anomaly. It is this anomaly that needs to be explained rather than the pressure for higher standards. The pressure for higher standards has been ongoing ever since the TRIPS negotiations were concluded. For right-holders the provisions in the TRIPS were always a floor, a bare minimum of protection whereas other parties saw it as ceiling considering their level of development and capacity. So when we see agreements like ACTA and TPP, they are consistent with what US trade policy has been and increasingly Europe as well in its bilateral and regional agreements. Firms have never stopped pushing for stricter standards and they are never going to.

I think one of the most concerning things is firms engaging in what I would call Private Power 2.0. We saw how private power was very instrumental in crafting and achieving the TRIPS agreement. What we see now, however, is less transparency and more anti-competitive conduct flourishing behind closed doors as evidenced by deals such as TPP and ACTA. I just read a manuscript by Natasha Tusikov titled ‘Choke Points’ in which she talks about the fact that even though the Stop Online Piracy Act and Protect Intellectual Property Act were shelved as a result of online activism and mobilization of opposition, that helped to unravel ACTA abroad and seemed like a very big victory. People were celebrating it as a David and Goliath story as it was the first time rights holders did not get what they wanted in a big way. However in reality the provisions of SOPA and PIPA are in practice after having been adopted through private contracts between Internet Service Providers and content owners. These contracts are entered into behind closed doors and the public is not privy to this. So if you are watching a 12 episode show on Netflix and after 8 episodes it is no longer available then you begin to wonder what happened. What happened is these private agreements behind closed doors where companies like eBay and Google are increasingly policing the rights of the right-holders and increasingly enforcing wishes of right-owners online. These are some of the worrying trends that need to be addressed.

One other issue is that the firms are still making the argument that they have always tried to get higher standards of protection and that this is about competitiveness and creating jobs. However recently, Irish company Amgen acquired Pfizer which was based in New York. It will be interesting to see how compelling the larger competiveness and jobs argument will be given that Pfizer will now be based in Ireland and no longer paying the United States tax revenue. The Pfizer spokesperson was saying that the acquisition is good for the United States and that’s a real puzzler. So this is a really interesting move that has happened and it undercuts the rationale these firms have been using to get the support of the US Government behind their preferences.

[1] Prof. Sell has written extensively on the politics behind the international IP rights regime most notably in her book “Private Power, Public Law, The Globalization of Intellectual Property Rights”. She is also the author of “Intellectual Property Rights: A Critical History” and “Power and Ideas: North South Politics of Intellectual Property and Antitrust”. Apart from the books, she has a number of publications dealing with and describing the forces that shape IPR regimes, the implications of the present IPR regime in relation to access to medicine, importance of developing a humanitarian conception of IPR among others.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-susan-k-sell

Leading Up To The GCIP: A Chat With Shamnad Basheer

Job Michael Mathew — 2016-01-31T08:57:01Z

The next discussion in our pre-GCIP discussion series is with Prof. Shamnad Basheer.

The blog post was published on the Global Congress page on December 13, 2015.

Profile: Shamnad Basheer is the founder of SpicyIP, India's premier blog on IP and innovation law and policy. Basheer was the first Ministry of Human Resource Development Chaired Professor of Intellectual Property Law at the National University of Juridical Sciences, Kolkata, and a Frank H. Marks Visiting Associate Professor of Intellectual Property Law at the George Washington University Law School in Washington DC.

JMM: The years after TRIPS have seen a number of battles in developing countries over IP rights. In response, some developing countries like India have incorporated measures such as Form 27 requirements for patents and Section 3(d) in the Patents Act to prevent over-broad exclusionary rights. What explains the presence of such creative interpretation of inherent flexibilities in some developing countries and their absence in others?

SB: Indeed! Some developing countries such as India have been a little more successful in using TRIPS flexibilities than others. I believe this is due to several factors:

Firstly, you need a very strong domestic constituency that prods the government to actively exploit TRIPS flexibilities. In the case of India, there were two very powerful constituencies at play -

a. We have a very strong generic industry, which has historically benefited from a not-so-stringent patent regime and was keen on ensuring the widest possible use of TRIPS flexibilities so that they could continue to remain competitive in a market that was soon to be flooded with pharmaceutical patents.

b. Also, a very powerful civil society played an important role in shaping the 2005 Amendments to the Patents Act, which contained a number of flexibilities to rein in the impact of pharmaceutical patents.

Thanks to the powerful advocacy of these two constituencies, we see measures such as section 3(d) of the Indian Patents Act, strong compulsory licensing and patent working provisions, parallel import provisions, strong Bolar provisions etc.

Further the spirited defense by our domestic generic majors in patent infringement actions by multinational pharmaceutical companies triggered a strong line of public interest jurisprudence from our Courts. All of this contributed to a relatively more progressive patent regime than present in a number of other developing countries.

Even if domestic industry interest has begun aligning itself more with the interests of Big Pharma, with whom they are partnering in large numbers, the fact that we have an active civil society that continues to challenge problematic patents is a great boon for patients and public health.

Secondly, though not a perfect democracy, India’s law and policy making processes are relatively more transparent than a number of other developing countries. This permits civil society and the wider public, including the academia, to engage with law makers and influence the course of patent policy in India.

Thirdly, the adversarial litigation system and the relative openness of our court processes and procedures, coupled with a vibrant media helped infuse more public interest norms and TRIPS flexibilities within Indian patent decisions.

JMM: How far have measures undertaken by the governments and the judiciaries of developing countries been able to balance public interest and rising exclusionary norms that are coming to characterize global IP regimes?

SB: On the issue of balancing a private patent monopoly interest with the larger public interest, I think a lot more needs to be done. I still can’t get over the fact that despite extensive engagement by the civil society and the public with IP issues, we still have so many Free Trade Agreements being signed! Not to mention the highly opaque TPP agreement which just got signed and will certainly take us back to the dark ages in terms of the gains in a more progressive vision of IP and its place in the changing knowledge economy which relies more on openness and sharing. As a result of these pressures from the Western nations and the corporations that lobby them to take these hard-hearted stances, many countries will be under pressure to desist from deploying their full range of TRIPS flexibilities and will never be able to infuse more public health and public interest concerns within their domestic regimes. So these regimes will remain unbalanced at least for the foreseeable future, I’m afraid.

However, this is not just a simple developed versus developing countries concern. Even within developed countries, there is a lot of rethink on the role of patents in innovation. An increasingly heated discussion on the downside of patents and their deleterious impact on innovation is taking place, thanks to the advent of trolls and various other funny creatures that have cropped up due to an excessive one-sided ratcheting up of IP rights and enforcement.

If these developed country lobbies that are critical of the patent regime get stronger, there might be hope for a more sweeping IP paradigm change the world over! And perhaps a lot more developing countries may be freer to begin experimenting with TRIPS flexibilities.

JMM: The generic drug industry of India is world renowned for making life saving medicines accessible to a large part of the world. This industry had actively opposed the revision to the patent law in 1970 and there was a belief that the interests of the generic drug industry coincided with the interests of Indian patients. In the years since 1970, these industries have experienced tremendous growth and even as there are 50-60 companies making identical generic medicines the market is dominated by 3-4 companies. How far would you say the interests of the generic drug industry overlap with the interests of the Indian patients now?

SB: Great question! The interests between the domestic generic industry and civil society in India clearly overlapped earlier, but unfortunately there is an increasing divergence today. The clearest example of this is Cipla, an Indian Robin Hood of sorts, which fearlessly took on global MNCs and slashed prices of HIV medications and promoted access to affordable medication.

Today they prefer to partner and meekly sign up to problematic licensing arrangements with Big Pharma such as the one they signed with Sovaldi, a notoriously priced Hep C drug by Gilead. Incidentally, this patent was initially challenged in India by Natco and Zydus, but these companies later signed up to partnerships with Gilead, after which they dropped their patent challenges! So much for relying on our generic majors to protect the public health turf and guard our interests! But perhaps that is not their job! For after all, these are “corporations” at the end and the quest for more profits and dividends to satisfy their shareholders is hard wired into their very DNA!

It is this “corporate” sense and sensibility that is driving this increasing partnership between Indian generic companies and foreign multinationals. Originator drug makers want to show a “generic” face to governments that are racing to squeeze public health budgets and cut costs by tendering more generic supplies. Similarly our generic majors want to be the next Teva, and come up with the next big molecule that will help them rake in some serious moolah! Therefore partnerships with big pharmaceutical companies are attractive propositions for generic manufactures to enhance their R&D skill sets. Leading to what I call the “Ardhnarishwar” model, a term of art from Hindu divinity, referring as it does to a godlike figure comprising half man and half woman. In our context, this term roughly translates to: half originator: half generic!

These cozy connects between originator and generic firms may perhaps help explain why there are no compulsory license applications in India, despite Natco’s stellar success with the first license application concerning Bayer’s excessively priced Nexavar. Worryingly, the number of patent oppositions from generic companies against originator patent applications are also coming down.

In all, the gap between generic interests and patient interests are widening. As a result of this there is increasing pressure on civil society to fight the good fight and continue opposing frivolous pharma patents!

JMM: You were part of a team that played a pivotal role in getting through, the amendment to the Indian Copyright Act in relation to the exception that made it legal to convert copyrighted content to forms accessible for the disabled. Has the amendment satisfactorily addressed issues of access that the disabled face in India? Do you think other measures are also required to supplement this?

SB: I think the Indian exception is one of the broadest in the world and needs to be applauded. One of the rare instances where politicians across party lines supported the Amendment after we had advocated for it for more than a year! All thanks to the wonderful Rahul Cherian (unfortunately snatched away from us thanks to a quirk of fate) and his ability to bring a number of disability activists, policy makers and academics together to achieve this phenomenal outcome.

Though the government did not endorse our proposal in its entirety, the final clause that found its way into the Copyright Amendment Act 2012 comes close to what we had suggested.

Unfortunately, despite this stellar statutory provision, I’m not sure how many people on the ground are actively deploying it, at least as third party organizations that work for the benefit of the differently-abled. We need to create more awareness around this provision and its potential for social transformation.

JMM: The informal economy represents a major share of output and employment in middle and low income countries. In these countries the informal economy is a major area of innovation though little is known about what incentives prompt individuals and communities to innovate. What do you think is the role of IP in informal sectors and how has the relative absence of IP in such fields affected knowledge diffusion?

SB: I think the honest answer to this question is that we don’t know because no one has ever really studied this sector! At least in terms of its innovation ecosystem and its dynamics- what drives creativity here, how is it diffused, and how are ideas translated to products? Are people driven by money or by love of their fellow humans or do they create for reputational benefits, as is the case with open source software? Or is there is some mystical magic to all of this, where people believe they are conduits for a higher energy/force such as traditional medicinal healers who don't charge any money for their medicines or healing?

I explored some of these aspects for a short piece I did for WIPO as part of a joint project with other academics and policy makers. We came across anecdotal evidence to suggest that the innovation ecosystem in the informal economy differs in important particulars from that of the formal economy. Of course, a lot more needs to be done to understand this sector. In the meantime, the assumption that blindly transposing IP regimes built largely for the formal sector will somehow unleash creativity within the informal sector is highly misguided! Rather than blithely assuming that the informal sector needs to learn from the formal sector, perhaps we could learn from them?

JMM: The Delhi University Photocopy case which involved a small photocopy shop in Delhi being taken to Delhi High Court for copyright infringement by big publishing houses such as Oxford University Press and Cambridge University Press for photocopying copyrighted content belonging to these presses. The copyrighted content in dispute involved course-packs recommended by the University with excerpts from several books. The Indian Copyright Act’s fair dealing provision incorporated specifically provides an exception for educational use in Section 52(1)(i) and in that sense is wider than fair dealing provisions in some other parts of the world. Yet the Delhi High Court issued a temporary injunction restraining the photocopying shop from selling the (allegedly) infringing course-packs until the case was decided. Leaving aside the outcome of the case, do you think countries like India require explicit guidelines from the Executive that categorically state that photocopying of academic material does not constitute copyright infringement like in Costa Rica to isolate such uses from judicial construction or do you have any other such suggestions that can work well in the Indian context?

SB: This case is currently pending before the Delhi High Court and we are awaiting the court’s decision. So clearly, at this stage, we need to wait for guidance from the courts. To a large majority of us, it is very clear that educational photocopying is exempt under the terms of section 52(1)(i). The publishers of course don’t seem to think so. Therefore I think it would be best for the court to issue the verdict and provide clarity. If the final ruling does not favour educational use in the way that we seek to now advocate, we may need to persuade our lawmakers to then amend the law and make this clearer. I am hoping things don’t come to that and that the judge rules in favour of a robust and strong educational exception, which is what Parliament intended when they crafted the exception.

At this stage however, I don't think Executive fiat will work, particularly since there is a statute in place and a judge is currently interpreting that very statutory provision. More importantly, relying on the Executive is a double edged sword, given the money and lobbying power of the publishing industry, more than amply demonstrated when the last government under Minister Kapil Sibal did a volte face and removed a provision at the last minute that would have fully exempted parallel imports from the scope of copyright infringement.

JMM: Can you shed some light on the term ‘public interest’ since different stakeholders such as governments, pharmaceutical companies, activists and academics are all working in ‘public interest’ and yet their paths towards achieving ‘public interest’ diverge more often than converge?

SB: This is a difficult question to answer! You are right: public interest means different things to different people. At one level, even a big pharmaceutical corporation that takes out a patent can invoke public interest stating that they are inventing the drug in public interest…and that, but for the introduction of the drug, there would be no question of access at all!

Therefore the term itself is a bit relative. But to the extent that it helps, one might need to examine it on the specifics of each case and determine whether the argument being advanced by a party is really furthering personal interest or the interests of the community or society at large. Good faith is a large part of this equation and it can help determine if what one is doing is in larger public interest or private interest.

[1] Shamnad Basheer has been a research fellow at the Institute of Intellectual Property, Tokyo, an International Bar Association scholar and an Inter‑Pacific Bar Association scholar. He is also the founder and managing trustee of Increasing Diversity by Increasing Access (IDIA), a non-profit body that aims to empower under privileged communities by facilitating access to legal knowledge and education to the common man.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-shamnad-basheer

Leading Up To The GCIP: A Chat With Michael Geist

Job Michael Mathew — 2016-01-31T05:37:58Z

Continuing the lead-up to the GCIP, the following discussion is with Dr. Michael Geist.

Click to read the blog post originally published on Global IP Congress website on December 12, 2015.

Profile: Dr. Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law. He will be giving a keynote address during the inaugural plenary session scheduled for December 15^th.

JMM: The UK recently made a major push towards open access after the recommendations of the Finch Report dealing with expanding access to research publications. The major thrust of the Finch Report is towards sustaining an open access model through Article Processing Charges (APC) as opposed to other alternatives such as Advertisement/Sponsorship based model or the subsidy-based model. This has raised concerns over predatory open access journals using APC which are said to undermine peer review and privilege wealthy universities and grant holding scholars. What do you think are the implications of following such a model for the open access movement at large?

MG: I have real concerns about the APC model, which may price open access out of the hands of many scholars. We need experimentation with different open models, recognizing the economic uncertainty of switching away from high priced subscriptions. However, APC may entrench much of the current model and is among the least desirable (though increasingly common) publisher approaches to OA.

JMM: One of the barriers to open access in Canada was the lack of campus support towards open access. You have written that even as many of the world’s top universities adopt open access strategies, universities in Canada remain reluctant to follow open access mandates. What explains this reluctance to open access among universities and is it something found in other parts of the world as well?

MG: We are starting to see more movement towards OA in Canada. Part of this is driven by our federal granting councils, which have emphasized OA requirements within their guidelines. I think there is also a growing recognition of the scholarly benefits of OA. That said, there are still many scholars who pay little attention to the publishing contracts they sign and the restrictions that may be imposed on their work through their choice of journal. This is an ongoing education issue, particularly for senior scholars, who may still be unfamiliar with OA issues.

JMM: In early 2013, the University of Ottawa Press released “The Copyright Pentalogy: How the Supreme Court of Canada shook the foundations of Copyright Law” in open access. The book was one of the most accessed on the University of Ottawa Press website and in less than 6 months of release was top among 35 books on page views. Writing about the book, you noted that the book was also a top seller in the University webpage in spite of being available for free. Over the last few years, many more of such examples have surfaced. Is open access actually not at odds with commercial sales as commonly understood?

MG: I think open access works hand-in-hand with commercial sales. Indeed, in some instances, it may increase sales. I have long come from the position that there are three potential purchasers of my books. The first group – librarians, people focused on digital issues, etc. – will buy the book regardless of whether it is freely available online. There is a second group that might have purchased the book, but chooses not to do so because there is a free version available. This group represents a financial loss. There is a third group, however, who would not have purchased the book or even been aware of it, but find it through open access. This group may decide it likes what it has read and will buy the book. If group three is larger than group two, the publisher ends up ahead. In fact, the third group doesn’t even need to be larger, because the publisher may be able to use OA to cross-sell other publications. Note that the fourth group – those that would not buy the book but choose to download it – do not factor into this analysis because this group would never have been purchasers.

JMM: Recently you wrote about an Ottawa Court ruling asking a man to pay damages amounting to $13,470 for circumvention of a digital lock. The case involved a man who received from his friend an online publication that he had not subscribed to himself. Apart from Canada, United States of America has strict anti-circumvention rules under the Digital Millennium Copyright Act (DMCA) which makes it illegal to circumvent technological protection measures irrespective of whether or not the reasons for doing so are perfectly legal or non-infringing. Further the TPP under Article 18.68 provides for legal protection against circumvention of effective technological measures without reference to any exception for legal or non infringing use just as in the DMCA. In the light of active endorsement of such measures from certain quarters of the developed world do you think such measures could become a global norm that developing countries may soon be forced to adopt?

MG: There is a real danger of this occurring. The US has aggressively pressured others to implement restrictive anti-circumvention rules. These rules often go well beyond those required by the WIPO Internet treaties. This is a significant problem that cuts across all economies, both developed and developing.

JMM: Almost a year back, there were reports indicating that Canada was the leading opponent of the IP chapter in the Trans-Pacific Partnership. However a year later the negotiations have been completed and parties have agreed to the same text. According to you, what helped quell the Canadian dissent to contentious areas such as extension of the term of copyright protection, criminal liability for copyright infringement among others? Further do you think the victory of the Liberal Party in the just concluded elections will force a rethink on the TPP?

MG: Earlier leaks did indeed indicate that Canada opposed many provisions in the IP text, reflecting differences between Canadian and U.S. copyright law. On several issues, Canada caved (such as term extension). Given the secrecy associated with the negotiations, it is hard to know precisely why certain provisions ended up the way they did. However, the final text suggests that IP was not a top Canadian priority, other than preserving the notice-and-notice system.

As for the change in government, I think Canada will sign the TPP alongside other signatories, but conduct an extensive review of the treaty before deciding whether to implement it. Whether it moves forward likely depends more on what happens in the U.S., where there appears to be significant opposition from some presidential candidates and members of Congress

JMM: Article 18.66 of the TPP deals with Balance in Copyright and Related Rights system. The article allows countries to achieve a balance in copyright and related rights system by crafting exceptions or limitations ‘giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’. Do you think this article is drafted broadly enough to allow meaningful fair use? Further, article 18.65, to which 18.66 is subject to, states that exceptions permitted under the TRIPS, Berne Convention, WIPO Copyright Treaty and WIPO Performance and Phonograms treaty shall apply to TPP as well. The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled is absent in Article 18.65 but is present in a footnote referencing to the exception of ‘facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’ in Article 18.66. What do you think explains this treatment of Marrakesh Treaty and what will its implications be?

MG: I do think that the TPP allows for fair use. However, it does not require fair use, which suggests that many other countries may not implement it.

There is definitely a double standard with respect to international copyright treaties in the TPP. Where the treaty is viewed as a rights-oriented treaty, it is a requirement. Where it is a user-oriented treaty such as Marrakesh, it is optional.

[1] Dr. Geist has written numerous academic articles and government reports on Internet and Technology and is a syndicated columnist on technology law issues with his regular columns appearing on the Hill Times, the Tyee and the Toronto Star.

He is the editor of several copyright law books including “The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law”, “From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda”, and “In the Public Interest: The Future of Canadian Copyright Law” along with being the editor of several monthly technology law publications and author of a popular blog on internet and intellectual property rights.

Dr. Geist serves an the director and on advisory boards of several Internet and IT law organizations including the Canadian Internet Registration Authority, the dot-ca administrative agency, the Canadian IT Law Association, Watchfire, and Verifia. He is Chair of a global Internet jurisdiction project for the American Bar Association and International Chamber of Commerce. He is regularly quoted in the national and international media on Internet law issues and has appeared before government committees on e-commerce policy

More information can be obtained at http://www.michaelgeist.ca/.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-michael-geist

Leading Up To The GCIP: A Chat With Jayashree Watal

Job Michael Mathew — 2016-01-31T09:00:56Z

The fifth discussion in our pre-GCIP discussion series is with Jayashree Watal.

The blog post was published on the Global Congress page on December 15, 2015.

Profile: Jayashree Watal has been Counsellor in the Intellectual Property Division of the World Trade Organization since February 2001. She worked in the Ministry of Commerce of the Government of India as Director, Trade Policy Division, New Delhi (1995–1998). She represented India at a crucial stage in the Uruguay Round TRIPS negotiations from 1989–1990.

JMM: One of the major reasons for developing countries agreeing to the TRIPS agreement was the incorporation of Articles 7 and 8 which allow countries certain flexibilities in enforcing obligations under the agreement. Two decades since the beginning of TRIPS many if not most developing countries have not been able to take full advantage of these flexibilities. What explains this gap between the text of the agreement and its practical application?

JW: There were several reasons for developing countries like India agreeing to the TRIPS Agreement. Firstly, TRIPS contains policy options, including through exceptions and limitations to IPRs, that allow WTO members to take measures to protect public interest, for example through compulsory licences and parallel imports. Secondly, not accepting TRIPS would have meant leaving the multilateral trading system and facing unilateral action – a price considered by many countries to be too high given that the final agreement was fairly balanced and that there were trade benefits to be obtained especially in textiles and agriculture. Thirdly, many of these countries were already TRIPS compliant with the exception of a limited number of provisions. At the same time, many were already responding to contemporary geopolitical changes by unilaterally liberalizing their trade and investment policies; maintaining certain minimum IPR standards without compromising vital public interest went in the same direction.

The perspective of some twenty years ago has hence changed and TRIPS has come into focus as a reasonably flexible framework rather than the highly restrictive constraint on domestic policymaking and pre-emption of policy options that some feared. Experience has shown that developing countries have been able to work within the TRIPS framework in diverse ways interpreting and applying TRIPS standards, and framing their IP laws and policies, in diverse ways that are tailored to their national interests and domestic circumstances. Articles 7 and 8 of the TRIPS Agreement are indeed important benchmarks for policymakers taking account of public policy when framing and implementing IP laws and policies, but the practical experience we can now survey from countries across the globe in applying specific TRIPS provisions offers concrete insights into the constructive way the general standards of the agreement are adapted and implemented to take account of changing policy needs, and other social, economic and technological changes. Empirical surveys such as the useful work done by the WIPO Secretariat in reporting to the WIPO Committee on Development and Intellectual Property on the use of patent-related flexibilities not only show the extent of flexibilities implemented, but potentially serve as a factual basis for constructive dialogue and mutual learning about contemporary trends in IP policymaking in the developing world within the TRIPS framework. See http://www.wipo.int/ip-development/en/agenda/flexibilities/search.jsp

JMM: The TRIPS Agreement was an example of consensus based multilateral norm setting on intellectual property. Two decades since TRIPS, multilateral norm setting on intellectual property is at a standstill and regional and bilateral avenues which certain commentators have called ‘power based’ as opposed to ‘rule based’ are setting norms on IP. How do you think a change in forum from multilateral to bilateral or plurilateral affects the negotiating power of developing country negotiators? Further can you shed some light on the additional challenges negotiators from developing countries faced during the TRIPS negotiations on account of the politically sensitive nature of intellectual property negotiations considering its impact on access to medicine etc?

JW: It is worth bearing in mind that the genesis of the TRIPS negotiations can be found, at least in part, in the desire of many countries – including developed countries – to find a more transparent, rules-based approach to dealing with inevitable bilateral disagreements over the trade dimension of IP: the preamble of TRIPS refers to the reduction of tensions through multilateral resolution of disputes. This background lies behind the consensus to conclude an agreement on TRIPS. Equally, though, the TRIPS negotiations illustrated how developing countries can benefit in trade negotiations from strong coalitions among themselves, coalitions that can also bridge across the traditional north-south divide. , A broader base of support and engagement in multilateral settings can offset the more narrowly defined targets of demandeurs in the negotiations. This can happen in a multilateral context or even in a plurilateral context. This more inclusive approach is less likely by definition in a bilateral trade negotiation. A recent WTO publication The Making of the TRIPS Agreement is available for free download chapter by chapter at https://www.wto.org/english/res_e/publications_e/trips_agree_e.htm . There are many chapters authored by developing country negotiators that discuss exactly these considerations.

JMM: In the context of a number of trade agreements involving intellectual property chapters negotiated in secret, what are the pros and cons of conducting open negotiations?

JW: In any negotiation process with significant issues at stake, there are competing considerations of transparency and inclusion, and managing the dynamics of negotiations. Reaching consensus in a multilateral or plurilateral negotiation, irrespective of forum or subject, is very difficult. It is even more so when each party's "bottom lines" or "red lines" are known to other parties, and the actual progress of negotiations is entirely open to immediate debate and analysis. Compromises and understandings that have to be made to progress any negotiation become more difficult if the entire process is open to all to observe. It is hard to prescribe the correct way of addressing this balance for each and every trade negotiation, and to determine the best mechanism for transparency and consultation that should apply in each case. As a general observation, however, it does behove negotiators and those instructing them, to ensure a good degree of transparency and a broad base of consultation, not least because this will build understanding and acceptance of the ultimate negotiated outcome.

JMM: What role can multilateral institutions such as WTO and WIPO play in the context of intellectual property negotiations moving to bilateral or plurilateral forums?

JW: The range and complexity of recent intellectual property norm-setting in bilateral and regional forums is unprecedented. Setting aside the question of the perceived virtues and shortcomings of this approach, there is unquestionably a common challenge in developing a comprehensive overview of the cumulative effect of several hundred new treaties dealing with IP norms, and the overall trends that can be discerned. Considering the role of the WTO, while WTO Members are clearly entitled to enter into regional trade agreements (RTAs, also known as free trade agreements or preferential trade agreements)subject to the conditions laid down in the multilateral trade agreements, the WTO system provides for transparency and review of their provisions. This work is actively undertaken in the Committee on RTAs; the WTO Trade Policy Review Mechanism has also produced valuable information on RTAs and similar agreements with IP standards. The TRIPS Council has from time to time had bilateral and plurilateral norm setting questions on its agenda. WTO is a member-driven organization and members continue to debate on how to respond to the overall trend towards bilateral and plurilateral norm setting, and its implications for the multilateral system. Among analysts, some maintain FTAs can serve as building blocks for further multilateral trade liberalization. Other analysts question the continuing effectiveness of a "single undertaking" approach to multilateral negotiations, and advocate pre- Uruguay Round type plurilateral agreements.

JMM: The years since the TRIPS have seen a changing landscape of innovation in the fields of biotechnology, computer technology etc. Do these changes necessitate a revision of the TRIPS agreement or can the flexibilities in the agreement take care of such changes?

JW: TRIPS is a minimum standards agreement and provides a balanced framework that can accommodate the evolving technological landscape. An example would be the revolutionary developments in biotechnology that have occurred in the past two decades: WTO Members, through policy processes, legislation, and court decisions, have dealt with the implications of these developments in flexible ways within the established TRIPS framework. The TRIPS negotiations took place at a time when the internet was largely unknown and in the meantime, digital technology has revolutionised not only copyright but the way in which much creative content is distributed and traded. The WIPO Internet Treaties of 1996 represented a multilateral step forward taking account of digital technologies in a manner consciously consistent with TRIPS. Since that time, there has been a great deal of norm-setting in this area in bilateral negotiations and more recently in plurilateral processes. It is for the international community to take collective stock of these developments, although there is currently no apparent momentum. The TRIPS Agreement does contain provision for reviews "in the light of any relevant new developments” which might “warrant modification or amendment” of the Agreement. However, there are no proposals tabled by WTO Members at present under this provision.

[1] Jayashree Watal has researched and published articles on issues related to the law and economics of intellectual property rights, including a book Intellectual Property Rights in the WTO and Developing Countries (Oxford University Press, India and Kluwer Law International, 2001). She was the editor of the book ‘The Making of the TRIPS Agreement’ which details the negotiating process of the agreement from the standpoint of the negotiators themselves.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-jayashree-watal

Land and Social Justice - An introduction to Georgism

praskrishna — 2013-04-28T07:06:03Z

Cherry G Mathew will be giving a public talk on Georgism at the office of the Centre for Internet and Society in Bangalore on April 12, 2013, from 5 p.m. to 7 p.m.

Abstract

In his popular book of the 1870s "Progress and Poverty", Henry George examined the causes of Poverty in contemporary America, and proposed very specific solutions for economic justice. "His genius has been glowingly acknowledged by such renowned figures as philosophers John Dewey and Mortimer J. Adler, presidents Woodrow Wilson and Dwight D. Eisenhower, scientists Alfred Russel Wallace and Albert Einstein, essayists John Ruskin and Albert Jay Nock, jurists Louis D. Brandeis and Samuel Seabury, columnists William F. Buckley and Michael Kinsley, and statesmen Winston Churchill and Sun Yat-sen.", while being heavily criticised by Karl Marx (who referred to George's teaching as "Capitalism's last ditch."[*]

This talk will make a brief introduction to George's Ideas, and then will attempt to draw discussion on their relevence to information and current copyright and intellectual property landscapes.

Cherry G. Mathew

Cherry G. Mathew is a British Chevening Scholar and an Open Source Kernel Hacker. He has worked on the Linux kernel in the past, and is an active FreeBSD and NetBSD developer/committer. He is an Electronics Engineer by basic training, with a Masters in Evolutionary and Adaptive Systems. He has worn various hats professionally, from Technical Developer, Roboticist, Free Software campaigner, CEO, volunteer teacher and currently software consultant. His current area of professional work is the Xen hypervisor and BSD kernels. His non-technology hobbies include outdoor pursuits and swing dancing.

Click to see the presentation

[*]. http://bit.ly/13HZg7m (Retrieved on March 29, 2013).

For more details visit https://cis-india.org/a2k/events/land-and-social-justice-an-introduction-to-georgism

Konknni Wikipedia Workshop

praskrishna — 2013-11-15T08:19:50Z

Dalgado Konknni Akademi in collaboration with Centre for Internet & Society’s Access to Knowledge Programme is organsing a 2 day Wikipedia editing workshop at the Goa Central State Library on November 16 and 17, 2013 from 10 a.m. to 1 p.m.

This workshop is free and open for anyone to attend. Please feel free to join hands in the campaign to promote free access to knowledge in one’s mother tongue – Konknni in Romi! This is a brilliant opportunity to showcase Konkani language in Roman script on a global platform such as Konknni Wikipedia!

Click to download the invite here. (PDF, 64 Kb)

Read more on Dalgado Konknni Akademi here
Read more on the Centre for Internet and Society here
Read more on Goa Central State Library here

For more details visit https://cis-india.org/openness/events/konknni-wikipedia-workshop-nov-16-17-2013

Konknni Wikipedia

praskrishna — 2013-11-15T07:10:25Z

For more details visit https://cis-india.org/openness/blog-old/konknni-wikipedia-event.pdf

Konkani-language books from Konkani-language culture center Mannd Sobhaann to enrich Konkani Wikipedia

Rahmanuddin Shaik and Tanveer Hasan — 2015-11-12T13:08:07Z

Mangalore based cultural centre Maand Sobhaann has recently relicensed 3 of their publications under a free license so that the books could be digitised on Konkani Wikisource and enrich Konkani Wikipedia.

Mannd Sobhaann, a private organisation working for unification of Konkani people around the world, preservation and promotion of Konkani language and culture, has recently relicensed 3 of their published books under a CC-by-SA 4.0 license. Erik Ozario, founder of the organisation has kindly permitted to open these books under free license so they get digitised on Konkani Wikisource and contribute in enriching the Goan Konkani Wikiepdia. Thanks to Wikimedian Harriet Vidyasagar for her help in acquiring these books. The three books that are relicensed are Konkani pustakaam, a compilation of Konkani books published for last century; Prabhaav, compilation of Konkani stories and writers; and another book containing compilation of songs in praise of Jesus.

Mannd Sobhaann as an organisation has been quite instrumental in taking Konkani language to masses. They have opened up a space called Kalangan in Mangalore for Konkani speakers to gather and organise various language and cultural celebrations. They have published 13 books and 23 music albums on Konkani language and culture. Their publication and association of them will hopefully lead to better the Konkani Wikimedia projects and unite the Konkani speakers in Mangalore and Goa to grow the Wikimedia community.

CIS-A2K's work with the Konkani Wikipedia received a boost when two prominent organisations working for popularisation and conservation of Konkani culture, Maand Sobhaan and World Konkani Centre decided to join hands with us. They have agreed to not only host GLAM (unleashing cultural data by institutional partnership with galleries, libraries, archives and museums) activities at their premises and the proposed museum at Maand Sobhaan but by donating three invaluable books to be released under CC-BY-SA license have paved the way for introduction of new content and also provided sources for citation and reference.

These organisations have worked relentlessly in their own capacity to spread the Konkani language, culture, aspects of life and introduce prominent personalities that have worked to promote Konkani language. Their association with the Konkani Wikimedia projects is a sure way of not only addition of content but leads to the definite possibilities of increase in readers, increase in editors. A2K has proposed to digitise their archives which contains invaluable resources (audio, video and text) that shall be of immense help in growing Konkani Wikimedia projects.

By securing the help of these organisations, CIS-A2K has been able to spread the utility and functionality of Konkani Wikipedia from Goa to Mangalore. CIS-A2K is also considering to conduct and organise events that bring in institutions and organisations from different Konkani speaking parts of India together.

For more details visit https://cis-india.org/openness/konkani-language-books-from-konkani-language-culture-center-mannd-sobhaann-to-enrich-konkani-wikipedia

Konkani Wikipedia in the making

praskrishna — 2013-09-30T09:11:09Z

Process of uploading the four volumes of Konkani encyclopaedia will be completed in six months’ time.

This article by Prakash Kamat was published in the Hindu on September 29, 2013. T. Vishnu Vardhan is quoted.

The Goa University has re-launched a four-volume Konkani Vishwakosh (Konkani encyclopaedia) and announced its plan to upload the same on Wikipedia so as to build the Konkani Wikipedia.

The project is seen as a major stride in Konkani learning, research and production of books. The project, which will involve 42 students of the Konkani Department of Goa University including four designated as Ambassadors of Konkani, will turn students into producers of knowledge rather than mere consumers of knowledge. The University has signed a three-year memorandum of understanding (MoU) with the Centre for Internet and Society (CIS) for building up the Konkani Wikipedia.

“Wikipedia is a global phenomenon and a platform to bring people together for making creative activities possible, which in fact, has challenged the monopoly of publishers and created a movement in order to put together knowledge, further making it accessible to public,” said Satish Shetye, Vice-Chancellor of Goa University, speaking at the launch of the project.

Narrating how the project began, Registrar of Goa University V. P. Kamat explained that Mr. Satish Shetye, who took over as Vice-Chancellor over a year ago, happened to notice the huge piles of hardbound volumes of the Konkani encyclopaedia stacked in the Goa University library and wished to digitise the manuscripts and re-launch the encyclopaedia. The idea to upload the whole content on Wikipedia was thus born.

The work for the Konkani encyclopaedia project was commissioned during the tenure of the first Vice-Chancellor B. Sheik Ali. The project was seen as a historical step to document the identity of the State and its people and the history of Goa for posterity. University insiders, however, said that no serious efforts were made to take the invaluable research work undertaken beyond the University. Secondly, because of the lack of human resource and funds, no initiative was taken so far to update these volumes.

Initiative

Prof. Shetye took a proactive initiative and tied up with Access to Knowledge Programme of the CIS. The four volumes of the 3,632 page Konkani encyclopaedia are being released under Creative Commons License CC-BY-SA 3.0 to support the movement of open knowledge and open access.

Programme Director at CIS’s Access to Knowledge Programme Vishnu Vardhan said that the process of uploading the four volumes of Konkani encyclopa edia on Wikipedia would be completed in six months’ time. He also stressed on the need to rewrite some of the articles in the encyclopaedia so as to make the content more relevant.

Students of the University involved in digitisation work and rewriting the content see this as an opportunity to learn about digitisation and to write Konkani of global standard, said Madhavi Sardesai, Professor, Department of Konkani at the University. Mr. Vardhan also disclosed plans for a relevant training programme specially co-designed by the CIS as well as the University to put up the content on Wikipedia.

He said that the Goa University is the first in the country to re-license copyright of its content and hailed the initiative towards open knowledge. Though the MoU signed last month would be initially valid for three years, Mr. Vardhan is optimistic that it would go beyond the launch of the Vishwakosh volumes.

Mr. Halarnkar, associated with the Konkani literary movement, who was present at the launch as the editor of the original volumes, welcomed the process of digitisation as relevant, historical and need of the hour. However, he stressed on supervision over the accuracy and accountability while digitising original data and regular updating of the content in the context of the Konkani language, its history and movement.

For more details visit https://cis-india.org/news/the-hindu-september-29-2013-prakash-kamat-konkani-wikipedia-in-the-making