Centre for Internet and Society

Inclusive Financial Services - Global Trends in Accessibility Requirements

nirmita — 2015-05-03T06:55:49Z

Inclusive Financial Services is a G3ict White Paper researched in cooperation with the Centre for Internet and Society. The research paper comprises a Foreword and Introduction, four chapters — Barriers to Access for Persons with Disabilities and Diverse Abilities, International Framework, Integrating Accessibility into the System, and State of Practice - Impact of the Convention on Inclusive Finance and Accessibility Efforts around the Globe.

Foreword

Global demand for accessibility continues to grow, due in part to the strengthening voice worldwide of more than one billion people with disabilities, including the aging population, and important frameworks, such as the United Nations Convention on the Rights of Persons with Disabilities. From a private sector standpoint, the Convention represents a unique opportunity to ensure equal access to information while achieving global harmonization of standards and economies of scale. Understanding that technology is the great equalizer for underserved populations and having a clear roadmap towards inclusive information and communications technologies (ICT), rather than simple compliance strategies, will benefit everyone in every industry.

Specifically, the financial services sector is faced with the need to transform operations while providing truly exceptional customer experiences. Disruptive trends -- such as the aging population, influx of mobile devices and global regulations – are driving demand for more human-centric technology, and creating an opportunity for innovation that are proving to be differentiators for the institutions embracing them. Consumer demand to be in control of interactions and information is forcing those in financial services to reconsider what’s important to stay competitive. By offering an online experience through any device personalized to individual needs, preferences and abilities, organizations can ensure they are reaching the broadest base of the population, especially the “unbanked” and “underbanked,” to enhance interactions and improve sales opportunities.

Customers with lifelong disabilities or age-related impairments represent an increasingly large population among the biggest markets in the world such as OECD countries and China. Also, in many countries aging persons are the holders of a majority of the assets and highly dependent on insurance, retirement and banking services. Ensuring they can use the services they need without encountering accessibility barriers is a powerful way to earn their loyalty in a highly competitive environment.

IBM has a long tradition and culture of accessibility and understands the importance of improving the user experience, managing accessibility compliance, and creating an inclusive workplace environment. Consistent with our own experience, this report highlights the organizational and process adjustments needed to ensure everyone has equal access to timely information they need for work and life.

By creating a holistic strategy for embedding accessible technology across the entire enterprise - from processes to product development to people – organizations can reinvigorate individual channels and harmonize them across the bank. G3ict has written this timely publication for the financial services sector that provides a clear picture of the global forces at work that are transforming how employee- and client-facing applications, products and services are delivered to reach the broadest set of customers. The report also serves as a useful benchmarking source for governments and advocates based on its review of existing solutions already implemented around the world. We applaud G3ict for taking this first step on the road of advocating for greater accessibility of financial services in cooperation with stakeholders from around the world.

Ian Hurst, General Manager, Global Financial Services Sector, IBM Corporation
Frances W. West, Chief Accessibility Officer, IBM Corporation

Introduction

Financial services play a necessary and important role in societies by enabling access to products, resources, and services, enabling savings and asset creation, and facilitating economic self-sufficiency. Access to financial services for all is a necessity in today’s world not simply at the community or household level, but at an individual level, to open doors to banking services, credit services, stocks and shares, insurance, and other markets. Access to and inclusion in financial services is crucial to poverty reduction and participation in economic prosperity and growth and development.

The increasing pervasiveness of technology in the delivery of financial services and the disruption of traditional channels of delivery through ‘FinTech’ (technology for financial service delivery) have generated new enthusiasm and newer ways for reaching out to persons who remain unbanked. Similarly, the increasing nature of services now available through technology has triggered growing demand among persons who remained marginalized from traditional paper-based banking services, as well as calls to ensure that they do not in turn create new barriers to access. Accompanying this growth spurt in technology there has also been an increasing recognition of the rights of persons with disabilities and the utmost importance of providing equal access to them to all services, including financial services.

Persons with disabilities and diverse abilities have been amongst those traditionally marginalized from the financial services sector through a mix of inaccessibility, presumptions of limited need and capacity to manage finances, and mindsets that did not view them as a profitable consumer base. This paradigm is now rapidly changing with growing evidence of their demand and need for access to services as well as the increasing income base of persons with disabilities around the world. Persons with disabilities and diverse abilities are demanding better and easier access to the entire range of financial services. Access to and inclusion in financial services is important to persons across the economic spectrum. And for persons with disabilities who live under the poverty line, it is essential that they are involved in financial inclusion initiatives and programs that will empower them and enable them to become financially independent.

A range of factors are serving as drivers to enhance the inclusion of persons with disabilities and diverse abilities through accessible financial services including demographics, attaining a competitive advantage and improving market share nationally and globally, Corporate Social Responsibility, regulations, legislation and compliance, enhancing business value, ensuring and increasing an inclusive workplace for employees with disabilities, maximizing on technology advances, and ensuring diversity and inclusion for all.

This report offers an introduction and overview to the need for, and mechanisms to achieve accessibility in financial services:

Chapter 1 offers an understanding of the barriers posed by inaccessible financial services to persons with different disabilities.

Chapter 2 highlights the different international mandates and frameworks that are accelerating the promotion of financial inclusion for persons with disabilities.

Chapter 3 offers in-depth descriptions of the accessibility needs based on the type of technology in use, along with examples of effective practices and solutions to promote inclusion. It also offers a look at how different countries are striving to achieve the accessibility mandate.

Chapter 4 focuses on the state of practice of financial inclusion for persons with disabilities across countries and the implementation of the Convention’s requirements for ICT accessibility and financial inclusion. This chapter describes findings from two major studies undertaken by G3ict that paint a picture of the state of financial accessibility today and offer a glimpse into the financial sector’s commitment to incorporate accessibility into their work and services in the future.

Finally, in the Conclusions section, the report offers recommendations for relevant stakeholders to incorporate the principles of inclusion to drive accessibility through product design and delivery, policy and legal structures, and distribution channels and pathways.

Download the report

For more details visit https://cis-india.org/accessibility/blog/inclusive-financial-services-global-trends-in-accessibility-requirements

IFAT and ITF - Protecting Workers in the Digital Platform Economy: Investigating Ola and Uber Drivers’ Occupational Health and Safety

2021-06-29T06:53:47Z

Between July to November 2019, Indian Federation of App-based Transport Workers (IFAT) and International Transport Workers’ Federation (ITF), New Delhi office, conducted 2,128 surveys across 6 major cities: Bengaluru, Chennai, Delhi NCR, Hyderabad, Jaipur, and Lucknow, to determine the occupational health and safety of app-based transport workers. CIS is proud to publish the study report and the press release. Akash Sheshadri, Ambika Tandon, and Aayush Rathi of CIS supported post-production of this report.

Report: Download (PDF)

Press Release: Download (PDF)

Press Release, August 25, 2020

Between July to November 2019, IFAT and ITF conducted 2,128 surveys across 6 major cities: Bengaluru, Chennai, Delhi NCR, Hyderabad, Jaipur, and Lucknow, to determine the occupational health and safety of app-based transport workers.

Some of the most startling findings from the survey are below:

There is a complete absence of social security and protection—a glaring 95.3% claimed to have no form of insurance, accidental, health or medical. This reflects the inability of workers to invest in their own health. This partly is a result of declining wages—after paying off their EMIs, penalties and commission to the companies and having less than Rs. 20,000 left at the end of the month.
Only 0.15% of the respondents reported to have access to accidental insurance, which is the bare minimum companies like Ola and Uber should have provided to their drivers.
Uber and Ola provide no assistance with regard to harassment and violence while drivers are on the road. Ola or Uber for the most part do not intervene if there is any intimidation from traffic police or local authorities, incidents of road rage, violent attack by customers or criminal elements that endanger drivers’ lives, accidents while driving etc.
On average drivers spend close to 16-20 hours in their cars in a day. 39.8% of the respondents spent close to 20 hours in their vehicle in a day, and 72.8% of the respondents from Bengaluru, Chennai and Hyderabad drive for close to 20 hours a day. Due to long hours, 89.8% of the respondents claim they get less than 6 hours of sleep.
Health issues arising directly as a result of conditions of work is affecting the day-to-day lives of workers. Backache, constipation, liver issues, waist pain and neck pain are the top five health ailments that app-based transport workers suffer from due to their work. 60.7% respondents identified backache as a major health issue.

App-based drivers/driver partners work in a very toxic and isolated work environment. Drivers can’t exit their current occupational status even if they want to because they are shackled in debts and outstanding EMIs. As a result, they race every day to complete targets so that they may earn just enough to pay these liabilities.

The work these drivers are engaged in cannot be considered to be within the ambit of decent work and in reality, is representative of modern slavery. The algorithm of the companies they work for, pits them against their peers in order to maximize profit, while at the same time denying them social security or protection and essentially refusing to acknowledge them as employees.

Drivers working in various cities and working for different app-based platforms have complained about the lack of transparency in how these app-based companies determine fares, promotional cost, surge pricing, incentives, penalties and bonuses. There is little to no information on how rides are being fixed or are being allocated. There also isn't any effective grievance redressal mechanism to resolve any of the issues faced by workers.

The apathy of the state and the exploitation by app-based companies have brought the transport and delivery workers in a precipitous position across the globe. This is underlined and explained by the absence and lack of any social security or protection for the workforce, there are some other issues that the workforce is battling during the Covid-19 pandemic.

Hear our voices and address our demands.

- Shaik Salauddin

National General Secretary, Indian Federation of App-based Transport Workers (IFAT)
Phone: +91 96424 24799

Indian Federation of App-based Transport Workers
Facebook: connectifat
Twitter: @connect_ifat
YouTube: Indian Federation of App-based Transport Workers

For more details visit https://cis-india.org/raw/ifat-itf-protecting-workers-in-digital-platform-economy-ola-uber-occupational-health-safety

IFAT and ITF - Locking Down the Impact of Covid-19

2021-06-29T07:27:09Z

This report, by Indian Federation of App-based Transport Workers (IFAT) and International Transport Workers’ Federation (ITF), New Delhi office, explores the responses to the outbreak of Covid-19 by digital platform based companies, trade unions, and governments to help out workers for digital platform based companies hereafter app based workers during the lockdown. The research work in this article is a characterization of the struggles of app based workers during the global pandemic and how it has affected and changed the world of work for them. The surveys were conducted amongst the workforce working for app based companies like Ola, Uber, Swiggy, Zomato etc. This study is partially supported by CIS as part of the Feminist Internet Research Network led by the Association for Progressive Communications.

Report: Download (PDF)

Press Release: Download (PDF)

Press Release, 17 September, 2020

Between March and June 2020, IFAT and ITF conducted 4 surveys with transport and delivery workers to assess (i) their income levels during the Covid-19 pandemic, (ii) the burden of loan repayment during these months, (iii) the relief provided to them by companies, and (iv) the access to welfare schemes offered by state and central governments.

The first survey, on income levels and loans administered in March 2020, had 5964 respondents, across 55 cities, in 16 states. The second and third surveys conducted in April 2020, on financial relief from companies and governments, had 1630 respondents, across 59 cities, in 16 states. The fourth survey was conducted in June 2020 to assess income levels as the economies were slowing opening up. Some of the most startling findings from the 4 surveys are:

The average monthly EMI of the respondents in March 2020 was between Rs. 10,000 - 20,000. 51% of the respondents had taken vehicle loans from 19 national public sector banks.
30.3% of the respondents worked between 40-50 hours a week, in the week prior to the first national lockdown. Despite high hours of work, the average income of the drivers for the week commencing April 15, 2020 was less than Rs. 2500. 57% of respondents earned between 0 to Rs. 2250.
89.8% of workers did not receive any ration or food assistance, and 84.5% did not receive any financial assistance from either companies or governments.
Where companies had announced financial assistance programmes, including through donations collected by customers, there was no transparency in disbursement of funds. Other reasons for exclusion included administrative red tape (such as the requirement to produce bills that are GST compliant), and absence of clear criteria for eligibility, leading to random disbursement, among others.
Ola announced waiving off the rental amount for leased vehicles, and asked drivers to return such vehicles. However, there was no announcement of a plan to repossess vehicles once there was an easing of the lockdown, causing great anxiety among workers.
After the easing of the national lockdown, 69.7% of respondents indicated that they had no earnings, while 20% earned between Rs.500 to 1500.
2716 respondents from 19 states across gig platforms articulated their support for a peaceful demonstration against company practices.
Mandatory installation of Aarogya Setu by workers raised concerns of privacy, as this would allow companies to surveil workers and collect data on their movements after work hours.

IFAT organised several meetings and protests after each survey, to bring attention to the vulnerable conditions of workers. At these gatherings, workers raised the following key demands:

Companies must reduce commission rates to 5%, to allow workers to get back on their feet, and compensate for losses over the past few months;
Adequate protective equipment and health insurance cover to all drivers must be provided;
There must be increased transparency in disbursement process of funds, and in the criteria for selection of beneficiaries;
Compounded interest must be waived on EMIs for the 3 months of moratorium on loan repayment.

Hear our voices and address our demands.

Shaik Salauddin

National General Secretary, Indian Federation of App-based Transport Workers (IFAT)

Phone: +91 96424 24799

Indian Federation of App-based Transport Workers

Facebook: www.facebook.com/watch/connectifat/

Twitter: www.twitter.com/connect_ifat

YouTube: www.youtube.com/channel/UCA1AxGq0Fb_A_O_Ey44eiPg

For more details visit https://cis-india.org/raw/ifat-itf-locking-down-the-impact-of-covid-19

ICANN Diversity Analysis

akriti — 2018-08-29T11:19:46Z

The by-laws of The Internet Corporation for Assigned Names and Numbers (ICANN) state that it is a non-profit public-benefit corporation which is responsible at the overall level, for the coordination of the “global internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the internet's unique identifier systems”. As key stakeholders of ICANN are spread across the world, much of the communication discussing the work of ICANN takes place over email. This analysis of the diversity of participation at the ICANN processes, through a study of their mailing lists, was undertaken by Paul Kurian and Akriti Bopanna.

The by-laws of The Internet Corporation for Assigned Names and Numbers (ICANN) state that it is a non-profit public-benefit corporation which is responsible at the overall level, for the coordination of the “global internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the internet's unique identifier systems”.^{^[1]}Previously, this was overseen by the Internet Assigned Number Authority (IANA) under a US Government contract but in 2016, the oversight was handed over to ICANN, as a global multi-stakeholder body.^{^[2]} Given the significance of the multistakeholder nature of ICANN, it is imperative that stakeholders continue to question and improve the inclusiveness of its processes. The current blog post seeks to focus on the diversity of participation at the ICANN process.

As stakeholders are spread across the world, much of the communication discussing the work of ICANN takes place over email. Various [or X number of ] mailing lists inform members of ICANN activities and are used for discussions between them from policy advice to organizational building matters. Many of these lists are public and hence can be subscribed to by anyone and also can be viewed by non-members through the archives.

CIS analysed the five most active mailing lists amongst the working group mailing lists from January 2016 to May 2018, namely:

Outreach & Engagement,
Technology,
At-Large Review 2015 - 2019,
IANA Transition & ICANN Accountability, and
Finance & Budget mailing lists.

We looked at the diversity among these active participants by focusing on their gender, stakeholder grouping and region. In order to arrive at the data, we referred to public records such as the Statement of Interests which members have to give to the Generic Names Supporting Organization(GNSO) Council if they want to participate in their working groups. We also used, where available, ICANN Wiki and the LinkedIn profiles of these participants. Given below are some of the observations we made subsequent to surveying the data. We acknowledge that there might be some inadvertent errors made in the categorization of these participants, but are of the opinion that our inference from the data would not be drastically affected by a few errors.

The following findings were observed:

A total of 218 participants were present on the 5 mailing lists that were looked at.
Of these,, 92 were determined to be active participants (participants who had sent more than the median number of mails in their working group) out of which 75 were non-staff members.

Among the active non-staff participants:

Out of the 75 participants, 56 (74.7%) were male and 19 (25.3%) were female.
57.3% were identified to be members of the industry and technological community and 1.3% were identified as government representatives. 8.0% were representatives from Academia, 25.3% represented civil society and the remaining 8.0% were from fields that were uncategorizable with respect to the above, but were related to law and consultancy.
Only 14.7% of the participants were from Asia while the majority belonged to Africa and then North America with 24% and 22.7% participation respectively
Within Asia, we identified only one active participant from China.

Concerns

The vast number of the people participating and as an extension, influencing ICANN work are male constituting three fourth of the participants.
The mailing list are dominated by individuals from industry.. This coupled with the relative minority presence of the other stakeholders creates an environment where concerns emanating from other sections of the society could be overshadowed.
Only 14.7% of the participants were from Asia, which is concerning since 48.7% of internet users worldwide belong to Asia.^{^[3]}
China which has the world’s largest population of internet users (700 million people)^{^[4]} had only one active participant on these mailing lists.

ICANN being a global multistakeholder organization should ideally have the number of representatives from each region be proportionate to the number of internet users in that region. In addition to this, participation of women on these mailing lists need to increase to ensure that there is inclusive contribution in the functioning of the organization. We did not come across any indication of participation of individuals of non binary genders.

^{^[1]} https://cis-india.org/telecom/knowledge-repository-on-internet-access/icann

^{^[2]} https://www.icann.org/news/announcement-2016-10-01-en

^{^[3]} https://www.internetworldstats.com/stats.htm

^{^[4]} https://www.internetworldstats.com/stats3.htm

For more details visit https://cis-india.org/internet-governance/blog/icann-diversity-analysis

Hyper-connected, Hyper-lonely?

Nilofar Ansher — 2015-04-24T11:57:46Z

The Digital Natives newsletter, part of the 'Digital Natives with a Cause?' project, invites contributions to its April-May 2012 double issue.

The April issue puts the spotlight on an emerging trope in society and media: the more connected we are to our gadgets, peer network and social media, the lonelier we feel. The debate, which traces its opening volley to Sherry Turkle's book 'Alone Together', will look at the recurrent media commentary that points to pop-surveys, anecdotes from psychologists, and conscientious academics who talk about increasing isolation among heavy gadget users. Since our gadgets are more often than not net enabled, it doesn't take a giant leap to infer that people who spend a lot of time online count themselves as part of the Lonely Hearts Club. Is loneliness a peculiarly modern phenomenon?
Editor: Shobha Vadrevu

In the May issue, we look at a technology that was considered sci-fi a decade ago, but is now the next best thing since our Smartphones: Augmented Reality. How do scientists and geeks go about augmenting our reality? How inspirational have movies (remember Minority Report) been in engaging imagination with what is commonplace and common sense? Does Google Glass excite you or scare you senseless? Would you still make distinctions between the virtual world and the real one?
Editor: Nilofar Ansher

We invite short pieces, lengthy reflections, haikus and verses, cartoons, graphics, videos, and other forms of creative expressions for both the issues. Deadline: June 21, 2012. For more information, email: nilofar.ansh@gmail.com

For more details visit https://cis-india.org/digital-natives/hyper-connected-hyper-lonely

How India Makes E-books Easier to Ban than Books (And How We Can Change That)

pranesh — 2012-02-21T11:50:56Z

Without getting into questions of what should and should not be unlawful speech, Pranesh Prakash chooses to take a look at how Indian law promotes arbitrary removal and blocking of websites, website content, and online services, and how it makes it much easier than getting offline printed speech removed.

E-Books Are Easier To Ban Than Books, And Safer

Contrary to what Mr. Sibal's recent hand-wringing at objectionable online material might suggest, under Indian laws currently in force it is far easier to remove material from the Web, by many degrees of magnitude, than it is to ever get them removed from a bookstore or an art gallery. To get something from a bookstore or an art gallery one needs to collect a mob, organize collective outrage and threats of violence, and finally convince either the government or a magistrate that the material is illegal, thereby allowing the police to seize the books or stop the painting from being displayed. The fact of removal of the material will be noted in various records, whether in government records, court records, police records or in newspapers of record. By contrast, to remove something from the Web, one needs to send an e-mail complaining about it to any of the string of 'intermediaries' that handle the content: the site itself, the web host for the site, the telecom companies that deliver the site to your computer/mobile, the web address (domain name) provider, the service used to share the link, etc. Under the 'Intermediary Guidelines Rules' that have been in operation since 11th April 2011, all such companies are required to 'disable access' to the complained-about content within thirty-six hours of the complaint. It is really that simple.

"That's ridiculous," you think, "surely he must be exaggerating." Think again. A researcher working with us at the Centre for Internet and Society tried it out, several times, with many different intermediaries and always with frivolous and flawed complaints, and was successful six out of seven times . Thus it is easier to prevent Flipkart or Amazon from selling Rushdie's Midnight's Children than it is to prevent a physical bookstore from doing so: today Indira Gandhi wouldn't need to win a lawsuit in London against the publishers to remove a single line as she did then; she would merely have to send a complaint to online booksellers and get the book removed. It is easier to block Vinay Rai's Akbari.in (just as CartoonsAgainstCorruption.com was recently blocked) than it is to prevent its print publication. Best of all for complainants: there is no penalty for frivolous complaints such as those sent by us, nor are any records kept of who's removed what. Such great powers of censorship without any penalties for their abuse are a sure-fire way of ensuring a race towards greater intolerance, with the Internet — that republic of opinions and expressions — being a casualty.

E-Book Bans Cannot Be Challenged

In response to some of the objections raised, the Cyberlaw Division of the Department of Information Technology, ever the dutiful guardian of free speech, noted that if you have a problem with access to your content being 'disabled', you could always approach a court and get that ban reversed. Unfortunately, the Cyberlaw Division of the Department of Information Technology forgot to take into account that you can't contest a ban/block/removal if you don't know about it. While they require all intermediaries to disable access to the content within thirty-six hours, they forgot to mandate the intermediary to tell you that the content is being removed. Whoops. They forgot to require the intermediary to give public notice that content has been removed following a complaint from person ABC or corporation XYZ on such-and-such grounds. Whoops, again.

So while records are kept, along with reasons, of book bans, there are no such records required to be kept of e-book bans.

E-Book Censors Are Faceless

Vinay Rai is a brave man. He is being attacked by fellow journalists who believe he's disgracing the professional upholders of free-speech, and being courted by television channels who believe that he should be encouraged to discuss matters that are sub judice. He is viewed by some as a man who's playing politics in courts on behalf of unnamed politicians and bureaucrats, while others view him as being bereft of common-sense for believing that companies should be legally liable for not having been clairvoyant and removing material he found objectionable, though he has never complained to them about it, and has only provided that material to the court in a sealed envelope. I choose, instead, to view him as a scrupulous and brave man. He has a face, and a name, and is willing to openly fight for what he believes in. However, there are possibly thousands of unscrupulous Vinay Rais out there, who know the law better than he does, and who make use not of the court system but of the Intermediary Guidelines Rules, firmly assured by those Rules that their censorship activities will never be known, will never be challenged by Facebook and Google lawyers, and will never be traced back to them.

Challenging Invisible Censorship

Dear reader, you may have noticed that this is a bit like a trial involving Free Speech in which Free Speech is presumed guilty upon complaint, is not even told what the charges against it are, has not been given a chance to prove its innocence, and has no right to meet its accusers nor to question them. Yet, the Cyberlaw Division of the Department of Information Technology continues to issue press releases defending these Rules as fair and just, instead of being simultaneously Orwellian and Kafkaesque. These Rules are delegated legislation passed by the Department of Information Technology under s.79 of the Information Technology Act. The Rules were laid before Parliament during the 2011 Monsoon session. We at CIS believe that these Rules are *ultra vires* the IT Act as well as the Constitution of India, not only with respect to what is now (newly) proscribed online (which in itself is enough to make it unconstitutional), but how that which is purportedly unlawful is to be removed. We have prepared an alternative that we believe is far more just and in accordance with our constitutional principles, taking on best practices from Canada, the EU, Chile, and Brazil, while still allowing for expeditious removal of unlawful material. We hope that the DIT will consider adopting some of the ideas embodied in our draft proposal.

As Parliament passed the IT Act in the midst of din, without any debate, it is easy to be skeptical and wonder whether Rules made under the IT Act will be debated. However, I remain hopeful that Parliament will not only exercise its power wisely, but will perform its solemn duty — borne out of each MP's oath to uphold our Constitution — by rejecting these Rules.

Photo credit: Lynn Gardner, under CC-BY-NC-SA 2.0 licence*

This was reproduced in Outlook Magazine on 27 January 2012

For more details visit https://cis-india.org/internet-governance/blog/india-ebooks-easier-to-ban-than-books

High Level Comparison and Analysis of the Use and Regulation of DNA Based Technology Bill 2017

elonnai — 2017-08-11T02:16:52Z

This blog post seeks to provide a high level comparison of the 2017 and 2015 DNA Profiling Bill - calling out positive changes, remaining issues, and missing provisions.

In July 2017 the Law Commission published a report on DNA profiling and the “Draft Use and Regulation of DNA Based Technology Bill 2017”. India has been contemplating a draft DNA Profiling Bill since 2007. There have been two publicly available versions of the bill, 2012, and 2015, and one version in 2016. In 2013, the Department of Biotechnology formulated an Expert Committee to discuss different aspects and issues raised regarding the Bill towards finalizing the text. The Centre for Internet and Society was a member of the Expert Committee, and in its conclusion, issued a note of dissent to the Expert Committee for DNA Profiling.

This post provides a high level overview of the Use and Regulation of DNA Based Technology Bill 2017 and calls out positive changes from the 2015 Bill, remaining issues, and missing provisions. The post also calls out if, and where, CIS's recommendations to the Expert Committee have been incorporated.

If enacted, the 2017 Bill will establish national and regional DNA data banks that will maintain five different types of indices: a crime scene index, missing persons, offenders, suspects, and unknown deceased persons. The data banks will be led by a Director, responsible for communicating information with requesting entities, foreign states, and international organizations. Information relating to DNA profiles, DNA samples, and records maintained in a DNA laboratory can be made available in six instances: to law enforcement and investigating agencies, in judicial proceedings, for facilitating prosecution and adjudication of criminal cases, for taking defence of an accused, for investigation of civil disputes, and other cases which might be specified by regulations. Offences related to unauthorized disclosure of information in the DNA data bank, obtaining information from DNA data banks without authorization, unlawful access to information in the DNA Data Bank, using DNA sample or result without authorization, and destroying, altering, contaminating, or tampering with biological evidence.

Below are some key positive changes from the 2015 Bill, remaining issues, and missing safeguards from the 2017 Bill:

Positive Changes: The Bill contains a number of positive changes from the 2015 draft. Key ones include:

Consent: Section 21 prohibits the taking of samples from arrested persons without consent, except in the case of a specified offence - a specified offence being any offence punishable with death or imprisonment for a term exceeding seven years. If consent is refused, a magistrate can order the taking of the sample. This can be in the case of any matter listed in the Schedule of the Act. Section 22 provides for consent from volunteers. It is important to note that despite being an improvement from the 2015 Bill, which did not address instances of collection with our without consent, this provision is still broad as the list of offences under the Schedule is expansive and can be further expanded by the Central Government. Furthermore, the Magistrate can overrule a refusal of consent of the parent or guardian of a voluneet who is a minor, which does not provide adequate protection to childrens' rights.
Deletion: Section 31 defines instances for deletion of suspect profiles, under trial profiles, and all other profiles. Though a step in the right direction, as the 2015 Bill only addressed retention and deletion of the offenders index, this provision does not address the automatic removal of innocents.
Purpose limitation: Section 33 limits the purpose of profiles in the DNA Data Bank to that of facilitating identification. This is a positive step from the 2015 Bill - which enabled use of DNA profiles for the creation and maintenance of a population statistics data bank. Section 34 also limits the purposes for which information relating to DNA profiles, samples, and records can be made available.
Destruction of samples: Section 20 defines instances for destruction of DNA samples. Destruction of samples was not address in the 2015 Bill, and is an important protection as it prevents samples from being re-analyzed.
Comparison of profiles: Section 29 clarifies that if the individual is not an offender or a suspect, their information will not be compared with DNA profiles in the offenders’ or suspects index. This creates an important distinction between types of indices held in the data bank and the purpose for the same i.e missing persons are not treated as potential offenders. In the 2015 Bill, profiles entered in the offenders or crime scene index could be compared by the DNA Data Bank Manger against all profiles contained in the DNA Data Bank.
Re-testing: Section 24 allows for an accused person to request for a re-examination of fresh bodily substances if it is believed the sample has been contaminated. The closest provision to this in the 2015 was the creation a post - conviction right for DNA profiling - which is now deleted. It is important to note that fresh samples can easily be obtained from individuals, but if contamination happens at a crime scene, it is much more difficult to obtain a fresh sample.
Limiting Indices and including a crime scene index: The 2017 Bill limits the number of indices to five - a crime scene index, missing persons, offenders, suspects, and unknown deceased persons. This is an improvement from the 2015 Bill which provides for the maintenance of indices in the DNA Bank and includes a missing person’s index, an unknown deceased person’s index, a volunteers’ index, and such other DNA indices as may be specified by regulation.

Remaining Issues: There are some remaining issues in the 2017 Bill. Some of these include:

Delegating and Expanding through Regulation: The Bill delegates a number of procedures to regulation - many which should be in the text of the Bill. For example: the format for receiving and storing DNA profiles, and additional criteria for entry, retention, and deletion of DNA profiles. Furthermore, a number of provisions allow for expansion through regulation. For example, the sources from which DNA can be collected from to be expanded as specified by regulations. Further purposes for making DNA profiles available can be defined by regulation. Important procedures such as privacy and security safeguards are also left to regulation.
Broad Powers and Composition of the Board: The Bill designates twenty one responsibilities to the Board. As pointed out in 1, many of these should be detailed in the text of the legislation.

While serving on the Expert Committee,CIS recommended that the functions of the DNA Profiling Board should be limited to licensing, developing standards and norms, safeguarding privacy and other rights, ensuring public transparency, promoting information and debate and a few other limited functions necessary for a regulatory authority. This recommendation has not been incorporated.

Ideally, the Board should also include privacy experts, an expert in ethics, as well as civil society. Towards this, the Board should be comprised of separate Committees to address these different functions. There should be a Committee addressing regulatory issues pertaining to the functioning of Data Banks and Laboratories and an Ethics Committee to provide independent scrutiny of ethical issues.

As a positive note, the reduction of the size of the Board was agreed upon by the Expert Committee from 16 members (2012 Bill) to 11 members. This reccomendation has been incorporated.

CIS also provided language regarding how the Board could consult with the public:The Board, in carrying out its functions and activities, shall be required to consult with all persons and groups of persons whose rights and related interests may be affected or impacted by any DNA collection, storage, or profiling activity. The Board shall, while considering any matter under its purview, co-opt or include any person, group of persons, or organisation, in its meetings and activities if it is satisfied that that person, group of persons, or organisation, has a substantial interest in the matter and that it is necessary in the public interest to allow such participation. The Board shall, while consulting or co-opting persons, ensure that meetings, workshops, and events are conducted at different places in India to ensure equal regional participation and activities. This language has not been fully incorporated

Lack of Authorization Procedure: Though the Bill defines instances of when DNA information can be made available, it fails to establish or refer to an authorization process for making information available and the decision currently seems to rest with the DNA Bank Director.
Expansive Schedule: The Bill creates a schedule containing a list of matters for DNA testing which includes whole acts and a range of civil disputes and matters that are broad and do not relate to criminal cases - most notably “issues relating to immigration or emigration and issues relating to establishment of individual identity.”
Unclear Data Stored: Though the Bill clarifies the circumstance that the identity of the individual will be associated with a profile, it allows for ‘information of data based on DNA testing and records relating thereto” to be stored, yet it is unclear what information this would entail.
Lack of procedures for chain of custody: Presently, the Bill defines quality assurance procedures for a sample that is already at the lab. There are no provisions defining a process for the examination of a crime scene and laying down standards for the chain of custody of a sample from the crime scene to a DNA laboratory.

Missing Safeguards:

There are some safeguards that, if added, would strengthen the Bill and ensure rights to the individual:

Notification to the individual: There are no provisions that ensure that notification is given to an individual if his/her information is accessed or made available.
Right to challenge: There are no provisions that give the individual the right to challenge the storage of their DNA.
Established profiling standard: Though the Law Commission report refers to the 13 CODIS standard, the Bill does not mandate the use of the 13 CODIS profiling standard.
Reporting standard: There are no standards for how matches or other information should be communicated from the DNA director to the authority or receiving entity including instances of partial matches.
Right to access and review: There are no provisions that allow an individual to review his/her information contained in the regional or the national database.
Lack of costing: There is no cost estimate in the report or a requirement for one to be carried out.
Study for the potential for false matches: This must consider the size of the population and large family size, i.e. relatively large numbers of closely related people and is particularly necessary given the the size over population as large as India's.

Importantly, in the DNA Expert Committee, CIS requested the Expert Committee that the Bill be brought in line with the nine national principles defined in the Report of Experts on Privacy led by Justice AP Shah. These include the principles of notice, choice and consent, collection limitation, purpose limitation, access and correction, disclosure of information, security, openness, and accountability. These principles have not been fully incorporated.

For more details visit https://cis-india.org/internet-governance/blog/high-level-comparison-and-analysis-of-the-use-and-regulation-of-dna-based-technology-bill-2017

Habeas Data in India

Vipul Kharbanda and edited by Elonnai Hickok — 2016-12-10T04:01:40Z

Habeas Data is a latin word which can be loosely translated to mean “have the data”. The right has been primarily conceptualized, designed, ratified, and implemented by various nation-states in the background of a shared common history of decades of torture, terror, and other repressive practices under military juntas and other fascist regimes.

Download the Paper (PDF)

Introduction

The writ of habeas data was a distinct response to these recent histories which provided individuals with basic rights to access personal information collected by the state (and sometimes byprivate agencies of a public nature) and to challenge and correct such data, requiring the state to safeguard the privacy and accuracy of people's personal data.[1]

The origins of Habeas Data are traced back, unsurprisingly, to the European legal regime since Europe is considered as the fountainhead of modern data protection laws. The inspiration for Habeas Data is often considered to be the Council of Europe's 108th Convention on Data Protection of 1981.[2] The purpose of the Convention was to secure the privacy of individuals regarding the automated processing of personal data. For this purpose, individuals were granted several rights including a right to access their personal data held in an automated database.[3]

Another source or inspiration behind Habeas Data is considered to be the German legal system where a constitutional right to information self-determination was created by the German Constitutional Tribunal by interpretation of the existing rights of human dignity and personality. This is a right to know what type of data is stored on manual and automatic databases about an individual, and it implies that there must be transparency on the gathering and processing of such data.[4]

Habeas Data is essentially a right or mechanism for an individual complaint presented to a constitutional court, to protect the image, privacy, honour, information self-determination and freedom of information of a person. [5]

A Habeas Data complaint can be filed by any citizen against any register to find out what information is held about his or her person. That person can request the rectification, update or even the destruction of the personal data held, it does not matter most of the times if the register is private or public.[6]

Habeas Data in different jurisdictions

Habeas Data does not have any one specific definition and has different characteristics in different jurisdictions. Therefore, in order to better understand the right, it will be useful to describe the scope of Habeas Data as it has been incorporated in certain jurisdictions in order to better understand what the right entails:[7]

Brazil

The Constitution of Brazil grants its citizens the right to get a habeas data “a. to assure knowledge of personal information about the petitioner contained in records or data banks of government agencies or entities of a public character; b. to correct data whenever the petitioner prefers not to do so through confidential judicial or administrative proceedings;[8]

The place or tribunal where the Habeas Data action is to be filed changes depending on who is it presented against, which creates a complicated system of venues. Both the Brazilian constitution and the 1997 law stipulate that the court will be:

The Superior Federal Tribunal for actions against the President, both chambers of Congress and itself;
The Superior Justice Tribunal for actions against Ministers or itself;
The regional federal judges for actions against federal authorities;
State tribunals according to each state law;
State judges for all other cases.[9]

Paraguay
The Constitution of Paraguay grants a similar right of habeas data in its constitution which states:

"All persons may access the information and the data that about themselves, or about their assets, [that] is [obren] in official or private registries of a public character, as well as to know the use made of the same and of their end. [All persons] may request before the competent magistrate the updating, the rectification or the destruction of these, if they were wrong or illegitimately affected their rights."[10]

Compared to the right granted in Brazil, the text of the Paraguay Constitution specifically recognises that the citizen also has the right to know the use his/her data is being put to.

Argentina

Article 43 of the Constitution of Argentina grants the right of habeas data, though it has been included under the action of “amparo”,[11] the relevant portion of Article 43 states as follows:

"Any person may file an amparo action to find out and to learn the purpose of data about him which is on record in public registries or data banks, or in any private [registers or data banks] whose purpose is to provide information, and in case of falsity or discrimination, to demand the suppression, rectification, confidentiality, or updating of the same. The secrecy of journalistic information sources shall not be affected."[12]

The version of Habeas Data recognised in Argentina includes most of the protections seen in Brazil and Paraguay, such as the right to access the data, rectify it, update it or destroy it, etc. Nevertheless, the Argentinean constitution also includes certain other features such as the fact that it incorporates the Peruvian idea of confidentiality of data, being interpreted as the prohibition to broadcast or transmit incorrect or false information. Another feature of the Argentinean law is that it specifically excludes the press from the action, which may be considered as reasonable or unreasonable depending upon the context and country in which it is applied.[13]

Venezuela
Article 28 of the Constitution of Venezuela established the writ of habeas data, which expressly permits access to information stored in official and private registries. It states as follows:

"All individuals have a right to access information and data about themselves and about their property stored in official as well as private registries. Secondly, they are entitled to know the purpose of and the policy behind these registries. Thirdly, they have a right to request, before a competent tribunal, the updating, rectification, or destruction of any database that is inaccurate or that undermines their entitlements. The law shall establish exceptions to these principles. By the same token, any person shall have access to information that is of interest to communities and groups. The secrecy of the sources of newspapers-and of other entities or individuals as defined by law-shall be preserved."[14]

The Venezuelan writ of habeas data expressly provides that individuals "are entitled to know the purpose of and the policy behind these registries." Also, it expresses a right to "updating, rectification, or destruction of any database that is inaccurate or that undermines their entitlements." Article 28 also declares that the “secrecy of the sources of newspapers and of other entities or individuals as defined by law-shall be preserved."[15]

Philippines

It is not as if the remedy of Habeas Data is available only in Latin American jurisdictions, but even in Asia the writ of Habeas Data has been specifically granted by the Supreme Court of the Philippines vide its resolution dated January 22, 2008 which provides that “The writ of habeas data is a remedy available to any person whose right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission of a public official or employee, or of a private individual or entity engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence of the aggrieved party.” According to the Rule on Writ of Habeas Data, the petition is to be filed with the Regional Trial Court where the petitioner or respondent resides, or which has jurisdiction over the place where the data or information is gathered, collected or stored, at the option of the petitioner. The petition may also be filed with the Supreme Court or the Court of Appeals or the Sandiganbayan when the action concerns public data files of government offices.[16]

Two major distinctions are immediately visible between the Philippine right and that in the latin jurisdictions discussed above. One is the fact that in countries such as Bazil, Argentina and Paraguay, there does not appear to be a prerequisite to filing such an action asking for the information, whereas in Philippines it seems that such a petition can only be filed only if an individual’s “right to privacy in life, liberty or security is violated or threatened by an unlawful act or omission”. This means that the Philippine concept of habeas data is much more limited in its scope and is available to the citizens only under certain specific conditions. On the other hand the scope of the Philippine right of Habeas Data is much wider in its applicability in the sense that this right is available even against private individual and entities who are “engaged in the gathering, collecting or storing of data or information regarding the person, family, home and correspondence”. In the Latin American jurisdictions discussed above, this writ appears to be available only against either public institutions or private institutions having some public character.

Main features of Habeas Data

Thus from the discussion above, the main features of the writ of habeas data, as it is applied in various jurisdictions can be culled out as follows: [17]

It is a right to the individual or citizen to ask for his/her information contained with any data registry;
It is available only against public (government) entities or employees; or private entities having a public character;[18]
Usually it also gives the individuals the right to correct any wrong information contained in the data registry;
It is a remedy that is usually available by approaching any single judicial forum.

Since the writ of Habeas Data has been established and evolved primarily in Latin American countries, there is not too much literature on it available freely in the English language and that is a serious hurdle in researching this area. For example, this author did not find many article mentioning the scope of the writ of habeas data, for example whether it is an absolute right and on what grounds can it be denied. The Constitution of Venezuela, for example, specifies that the law shall establish exceptions to these principles and infact mentions the secrecy of sources for newspapers as an exception to this rule.[19]

Similarly in Argentina, there exists a public interest exception to the issuance of the writ of Habeas Data.[20]

That said, although little literature on the specific exceptions to habeas data is freely available in English, references can still be found to exceptions such as state security (Brazil), secrecy of newspaper sources (Argentina and Venezuela), or other entities defined by law (Venezuela).[21]

This suggests that the, as would be expected, the right to ask for the writ of habeas data is not an absolute right but would also be subject to certain exceptions and balanced against other needs such as state security and police investigations.

Habeas Data in the context of Privacy

Data protection legislation and mechanisms protect people against misuse of personal information by data controllers. Habeas Data, being a figure for use only by certain countries, gives the individuals the right to access, correct, and object to the processing of their information.

In general, privacy is the genus and data protection is the species, data protection is a right to personal privacy that people have against the possible use of their personal data by data controllers in an unauthorized manner or against the requirements of force. Habeas Data is an action that is brought before the courts to allow the protection of the individual’s image, privacy, honour, self-determination of information and freedom of information of a person. In that sense, the right of Habeas Data can be found within the broader ambit of data protection. It does not require data processors to ensure the protection of personal data processed but is a legal action requiring the person aggrieved, after filing a complaint with the courts of justice, the access and/or rectification to any personal data which may jeopardize their right to privacy.[22]

Habeas Data in the Indian Context

Although a number of judgments of the Apex Court in India have recognised the existence of a right to privacy by interpreting the fundamental rights to life and free movement in the Constitution of India,[23]

the writ of habeas data has no legal recognition under Indian law. However, as is evident from the discussion above, a writ of habeas data is very useful in protecting the right to privacy of individuals and it would be a very useful tool to have in the hands of the citizens. The fact that India has a fairly robust right to information legislation means that atleast some facets of the right of habeas data are available under Indian law. We shall now examine the Indian Right to Information Act, 2005 (RTI Act) to see what facets of habeas data are already available under this Act and what aspects are left wanting. As mentioned above, the writ of habeas data has the following main features:

It is a right to the individual or citizen to ask for his/her information contained with any data registry;
It is available only against public (government) entities or employees; or private entities having a public character;[24]
Usually it also gives the individuals the right to correct any wrong information contained in the data registry;
It is a remedy that is usually available by approaching any single judicial forum.

We shall now take each of these features and analyse whether the RTI Act provides any similar rights and how they differ from each other.

Right to seek his/her information contained with a data registry

Habeas data enables the individual to seek his or her information contained in any data registry. The RTI Act allows citizens to seek “information” which is under the control of or held by any public authority. The term information has been defined under the RTI Act to mean “any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force”.[25]

Further, the term “record” has been defined to include “(a) any document, manuscript and file; (b) any microfilm, microfiche and facsimile copy of a document; (c) any reproduction of image or images embodied in such microfilm (whether enlarged or not); and (d) any other material produced by a computer or any other device”. It is quite apparent that the meaning given to the term information is quite wide and can include various types of information within its fold. The term “information” as defined in the RTI Act has been further elaborated by the Supreme Court in the case of Central Board of Secondary Education v. Aditya Bandopadhyay,[26]

where the Court has held that a person’s evaluated answer sheet for the board exams held by the CBSE would come under the ambit of “information” and should be accessible to the person under the RTI Act.[27]

An illustrative list of items that have been considered to be “information” under the RTI Act would be helpful in further understanding the concept:

Asset declarations by Judges;[28]
Copy of inspection report prepared by the Reserve Bank of India about a Co-operative Bank;[29]
Information on the status of an enquiry;[30]
Information regarding cancellation of an appointment letter;[31]
Information regarding transfer of services;[32]
Information regarding donations given by the President of India out of public funds.[33]

The above list would indicate that any personal information relation to an individual that is available in a government registry would in all likelihood be considered as “information” under the RTI Act.

However, just because the information asked for is considered to come within the ambit of section 2(h) does not mean that the person will be granted access to such information if it falls under any of the exceptions listed in section 8 of the RTI Act. Section 8 provides that if the information asked falls into any of the categories specified below then such information shall not be released in an application under the RTI Act, the categories are:

"(a) information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence;
(b) information which has been expressly forbidden to be published by any court of law or tribunal or the disclosure of which may constitute contempt of court;
(c) information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature;
(d) information including commercial confidence, trade secrets or intellectual property, the disclosure of which would harm the competitive position of a third party, unless the competent authority is satisfied that larger public interest warrants the disclosure of such information;
(e) information available to a person in his fiduciary relationship, unless the competent authority is satisfied that the larger public interest warrants the disclosure of such information;
(f) information received in confidence from foreign Government;
(g) information, the disclosure of which would endanger the life or physical safety of any person or identify the source of information or assistance given in confidence for law enforcement or security purposes;
(h) information which would impede the process of investigation or apprehension or prosecution of offenders;
(i) cabinet papers including records of deliberations of the Council of Ministers, Secretaries and other officers:
Provided that the decisions of Council of Ministers, the reasons thereof, and the material on the basis of which the decisions were taken shall be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this section shall not be disclosed;
(j) information which relates to personal information the disclosure of which has no relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger public interest justifies the disclosure of such information:
Provided that the information which cannot be denied to the Parliament or a State Legislature shall not be denied to any person."

The above mentioned exceptions seem fairly reasonable and infact are important since public records may contain information of a private nature which the data subject would not want revealed, and that is exactly why personal information is a specific exception mentioned under the RTI Act. When comparing this list to the recognised exceptions under habeas data, it must be remembered that a number of the exceptions listed above would not be relevant in a habeas data petition such as commercial secrets, personal information, etc. The exceptions which could be relevant for both the RTI Act as well as a habeas data writ would be (a) national security or sovereignty, (b) prohibition on publication by a court, (c) endangering the physical safety of a person, (d) hindrance in investigation of a crime. It is difficult to imagine a court (especially in India) granting a habeas data writ in violation of these four exceptions.

Certain other exceptions that may be relevant in a habeas data context but are not mentioned in the common list above are (a) information received in a fiduciary relationship; (b) breach of legislative privilege, (c) cabinet papers; and (d) information received in confidence from a foreign government. These four exceptions are not as immediately appealing as the others listed above because there are obviously competing interests involved here and different jurisdictions may take different points of view on these competing interests.[34]

Available only against public (government) entities or entities having public character.

A habeas corpus writ is maintainable in a court to ask for information relating to the petitioner held by either a public entity or a private entity having a public character. In India, the right to information as defined in the RTI Act means the right to information accessible under the Act held by or under the control of any public authority. The term "public authority" has been defined under the Act to mean “any authority or body or institution of self-government established or constituted—

(a) by or under the Constitution;
(b) by any other law made by Parliament;
(c) by any other law made by State Legislature;
(d) by notification issued or order made by the appropriate Government, and includes any— (i) body owned, controlled or substantially financed; (ii) non-Government organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;"[35]

Therefore most government departments as well as statutory as well as government controlled corporations would come under the purview of the term "public authority". For the purposes of the RTI Act, either control or substantial financing by the government would be enough to bring an entity under the definition of public authority.[36]

The above interpretation is further bolstered by the fact that the preamble of the RTI Act contains the term “governments and their instrumentalities".[37]

Right to correct wrong information
While certain sectoral legislations such as the Representation of the People Act and the Collection of Statistics Act, etc. may provide for correction of inaccurate information, the RTI Act does not have any such provisions. This stands to reason because the RTI Act is not geared towards providing people with information about themselves but is instead a transparency law which is geared at dissemination of information, which may or may not relate to an individual.

Available upon approaching a single judicial forum
While the right of habeas data is available only upon approaching a judicial forum, the right to information under the RTI Act is realised entirely through the bureaucratic machinery. This also means that the individuals have to approach different entities in order to get the information that they need instead of approaching just one centralised entity.

Conclusion

There is no doubt that habeas data, by itself cannot end massive electronic surveillance of the kind that is being carried out by various governments in this day and age and the excessive collection of data by private sector companies, but providing the citizenry with the right to ask for such a writ would provide a critical check on such policies and practices of vast surveillance.[38]

An informed citizenry, armed with a right such as habeas data, would be better able to learn about the information being collected and kept on them under the garb of law and governance, to access such information, and to demand its correction or deletion when its retention by the government is not justified.

As we have discussed in this paper, under Indian law the RTI Act gives the citizens certain aspects of this right but with a few notable exceptions. Therefore, if a writ such as habeas data is to be effectuated in India, it might perhaps be a better idea to approach it by amending/tweaking the existing structure of the RTI Act to grant individuals the right to correct mistakes in the data along with creating a separate department/mechanism so that the applications demanding access to one’s own data do not have to be submitted in different departments but can be submitted at one central place. This approach may be more pragmatic rather than asking for a change in the Constitution to grant to the citizens the right to ask for a writ in the nature of habeas data.

There may be calls to also include private data processors within the ambit of the right to habeas data, but it could be challenging to enforce this right. This is because it is still feasible to assume that the government can put in place machinery to ensure that it can find out whether information about a particular individual is available with any of the government’s myriad departments and corporations, however it would be almost impossible for the government to track every single private database and then scan those databases to find out how many of them contain information about any specific individual. This also throws up the question whether a right such as habeas data, which originated in a specific context of government surveillance, is appropriate to protect the privacy of individuals in the private sector. Since under Indian law section 43A and the Rules thereunder, which regulate data protection, already provide for consent and notice as major bulwarks against unauthorised data collection, and limit the purpose for which such data can be utilised, privacy concerns in this context can perhaps be better addressed by strengthening these provisions rather than trying to extend the concept of habeas data to the private sector.

[1]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:http://ssrn.com/abstract=2694803

[2]. Article 8 of the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, 1981, available at https://www.coe.int/en/web/conventions/full-list/-/conventions/rms/0900001680078b37

[3]. Guadamuz A, 'Habeas Data: The Latin-American Response to Data Protection',2000 (2) The Journal of Information, Law and Technology (JILT).

[4]. Id.

[5]. Speech by Chief Justice Reynato Puno, Supreme Court of Philippines delivered at the UNESCO Policy Forum and Organizational Meeting of the Information for all Program (IFAP), Philippine National Committee, on November 19, 2007, available at http://jlp-law.com/blog/writ-of-habeas-data-by-chief-justice-reynato-puno/

[6]. Guadamuz A, 'Habeas Data: The Latin-American Response to Data Protection',2000 (2) The Journal of Information, Law and Technology (JILT).

[7]. The author does not purport to be an expert on the laws of these jurisdictions and the analysis in this paper has been based on a reading of the actual text or interpretations given in the papers that have been cited as the sources. The views in this paper should be viewed keeping this context in mind.

[8]. Article 5, LXXII of the Constitution of Brazil, available at https://www.constituteproject.org/constitution/Brazil_2014.pdf

[9]. Guadamuz A, 'Habeas Data vs the European Data Protection Directive', Refereed article, 2001 (3) The Journal of Information, Law and Technology (JILT).

[10]. Article 135 of the Constitution of Paraguay, available at https://www.constituteproject.org/constitution/Paraguay_2011.pdf?lang=en

[11]. The petition for a writ of amparo is a remedy available to any person whose right to life, liberty and security is violated or threatened with violation by an unlawful act or omission of a public official or employee, or of a private individual or entity.

[12]. Article 43 of the Constitution of Argentina, available at https://www.constituteproject.org/constitution/Argentina_1994.pdf?lang=en

[13]. https://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2001_3/guadamuz/

[14]. Article 28 of the Venezuelan Constitution, available at http://www.venezuelaemb.or.kr/english/ConstitutionoftheBolivarianingles.pdf

[15]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:http://ssrn.com/abstract=2694803

[16]. Rule on the Writ of Habeas Data Resolution, available at http://hrlibrary.umn.edu/research/Philippines/Rule%20on%20Habeas%20Data.pdf

[17]. The characteristics of habeas data culled out in this paper are by no means exhaustive and based only on the analysis of the jurisdictions discussed in this paper. This author does not claim to have done an exhaustive analysis of every jurisdiction where Habeas Data is available and the views in this paper should be viewed in that context.

[18]. Except in the case of the Philippines and Venezeula. This paper has not done an analysis of the writ of habeas data in every jurisdiction where it is available and there may be jurisdictions other than the Philippines which also give this right against private entities.

[19]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:http://ssrn.com/abstract=2694803

[20]. The case of Ganora v. Estado Nacional, Supreme Court of Argentina, September 16, 1999, cf.http://www.worldlii.org/int/journals/EPICPrivHR/2006/PHR2006-Argentin.html

[21]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:http://ssrn.com/abstract=2694803

[22]. http://www.oas.org/dil/data_protection_privacy_habeas_data.htm

[23]. Even the scope of the right to privacy is currently under review in the Supreme Court of India. See “Right to Privacy in Peril”, http://cis-india.org/internet-governance/blog/right-to-privacy-in-peril

[24]. Except in the case of the Philippines. This paper has not done an analysis of the writ of habeas data in every jurisdiction where it is available and there may be jurisdictions other than the Philippines which also give this right against private entities.

[25]. Section 2(f) of the Right to Information Act, 2005.

[26]. 2011 (106) AIC 187 (SC), also available at http://judis.nic.in/supremecourt/imgst.aspx?filename=38344

[27]. The exact words of the Court were: “The definition of `information' in section 2(f) of the RTI Act refers to any material in any form which includes records, documents, opinions, papers among several other enumerated items. The term `record' is defined in section 2(i) of the said Act as including any document, manuscript or file among others. When a candidate participates in an examination and writes his answers in an answer-book and submits it to the examining body for evaluation and declaration of the result, the answer-book is a document or record. When the answer-book is evaluated by an examiner appointed by the examining body, the evaluated answer-book becomes a record containing the `opinion' of the examiner. Therefore the evaluated answer-book is also an `information' under the RTI Act.”

[28]. Secretary General, Supreme Court of India v. Subhash Chandra Agarwal, AIR 2010 Del 159, available at https://indiankanoon.org/doc/1342199/

[29]. Ravi Ronchodlal Patel v. Reserve Bank of India, Central Information Commission, dated 6-9-2006.

[30]. Anurag Mittal v. National Institute of Health and Family Welfare, Central Information Commission, dated 29-6-2006.

[31]. Sandeep Bansal v. Army Headquarters, Ministry of Defence, Central Information Commission, dated 10-11-2008.

[32]. M.M. Kalra v. DDA, Central Information Commission, dated 20-11-2008.

[33]. Nitesh Kumar Tripathi v. CPIO, Central Information Commission, dated 4-5-2012.

[34]. A similar logic may apply to the exceptions of (i) cabinet papers, and (ii) parliamentary privilege.

[35]. Section 2 (h) of the Right to Information Act, 2005.

[36]. M.P. Verghese v. Mahatma Gandhi University, 2007 (58) AIC 663 (Ker), available at https://indiankanoon.org/doc/1189278/

[37]. Principal, M.D. Sanatan Dharam Girls College, Ambala City v. State Information Commissioner, AIR 2008 P&H 101, available at https://indiankanoon.org/doc/1672120/

[38]. González, Marc-Tizoc, ‘Habeas Data: Comparative Constitutional Interventions from Latin America Against Neoliberal States of Insecurity and Surveillance’, (2015). Chicago-Kent Law Review, Vol. 90, No. 2, 2015; St. Thomas University School of Law (Florida) Research Paper No. 2015-06. Available at SSRN:http://ssrn.com/abstract=2694803

For more details visit https://cis-india.org/internet-governance/blog/habeas-data-in-india

Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response

nehaa — 2015-01-05T17:01:50Z

The procedure and tests surrounding software patenting in India have remained ambiguous since the Parliament introduced the term “per se” through the Patent (Amendment) Act, 2002. In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Through this post, CIS intern, Shashank Singh, analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses.

I. Introduction

In June, 2013 the Office of Controller General of Patents, Designs and Trademarks ('IPO'), released the Draft Guidelines for Examination of Computer Related Inventions ('Guidelines'). The aim of the Guidelines was to provide some much needed clarity around patentability of Computer Related Inventions ('CRI'). The Guidelines discuss the procedure to be adopted by the examiners while examining CRI patent applications. In response to the Guidelines, several stakeholders submitted their comments to either accept, reject or modify the interpretation provided by the IPO. Most of the comments circled around the phraseology of Section 3(k), Patents Act, 1970 ('Act'). In its current form, Section 3(k) reads as "a mathematical or business method or a computer programme per se or algorithms", and comes under Chapter III of the Act which lists inventions that are not patentable. Simply put, this means that software cannot be patented in India, unless it is embedded/combined in with some hardware. While this is the most widely accepted interpretation of this Section 3(k), there have been contradictory interpretations as well.

In this note, I shall look at the various ambiguities surrounding patent application for CRIs. The note has been divided into five parts. Part II briefly reiterates the legislative history behind Section 3(k) and CRI patenting. Part III would briefly summarize the various parts of the Guidelines where the IPO has given their interpretation and opinion on the various issues surrounding CRI patenting. Part IV would then map the position of the stakeholders on each ambiguous point. Lastly, Part V would give the conclusion.

II. Legislative History

Under the Patent Act, 1970, prior to the 2002 Amendment, there was no specific provision under which software could be patented. Nonetheless, there was no explicit embargo on software patenting either. For an invention to be patentable, under Section 2(1) (j) of the Act, which defines an invention, general criteria of novelty, non-obviousness and usefulness must be applied. Software is generally in the form of a mathematical formula or algorithm, both of which are not patentable under the Act as they do not produce anything tangible. However, if combined or embedded in a machine or a computer, the resultant product can be patented as it would pass the aforementioned criteria.

The Parliament, in 1999, sought to amend the Act to bring it in conformity with the changing technological landscape. Consequently, the Patent (Second Amendment) Bill, 1999 was introduced in the Parliament which was then referred to a Joint Parliamentary Committee ('JPC'). The ensuing Bill proposed Section 3(k) in its current phraseology. It reasoned that:

" In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, ancillary thereto or developed thereon. The intention here is not to reject them for grant of patent if they are inventions. However, the computer programmes as such are not intended to be granted patent. This amendment has been proposed to clarify the purpose. "

The Bill was then enacted as the Patent (Amendment) Act, 2002 and reads in its current form as:

Section 3(k) - "a mathematical or business method or a computer programme per se or algorithm"

This created some ambiguity with respect to the interpretation of the term "per se". It was interpreted to mean that software cannot be patented unless it is combined with some hardware. This combination would then have to comply with all the tests of patentability under the Act.

In December, 2004 the Patent (Amendment) Ordinance, 2004 ('Ordinance') was enacted which amended Section 3(k) to divide it into two parts, namely Section 3(k) and Section 3(ka).

"(k) a computer programme per se other than its technical application to industry or a combination with hardware;

(ka) a mathematical method or a business method or algorithms; ".

In February, 2005 the Ordinance was introduced in the Parliament as the Patent (Amendment) Bill, 2005.This included the amendment to Section 3(k) as under the Ordinance. In the Objects and Reasons it clarified that the intention behind the amendment was to " modify and clarify the provisions relating to patenting of software related inventions when they have technical application to industry or in combination with hardware ". However, the final amending Act did not divide Section 3(k) as proposed by the Ordinance. In the press note, by the Ministry of Commerce and Industry it was noted that:

"It is proposed to omit the clarification relating to patenting of software related inventions introduced by the Ordinance as Section 3(k) and 3 (ka). The clarification was objected to on the ground that this may give rise to monopoly of multinationals."

Later, in the same year the IPO release a Manual of Patent Office Practice and Procedure, 2005. Here, it noted that "a computer readable storage medium having a program recorded thereon…irrespective of the medium of its storage are not patentable". This did nothing to clarify the ambiguity that existed.

Similarly, the Parliamentary Standing Committee on Commerce, 88^th Report on the Patent and Trademark System in India (2008) noted the uncertainty surrounding the term 'per se' and said that there was a need to clarify the same. It did not do anything in furtherance of pointing this out.

The 2011 Manual of Patent Office and Procedure, 2011 tried to elaborately deal with the ambiguity. Nonetheless, substantively it did not change the uncertainty. It stated that:

"If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products' are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention."

III. Draft Guidelines for Examination of Computer Related Inventions, 2013

The Draft Guidelines were released on June 28, 2013, following which stakeholders were invited to give comments.

Terms/ Definitions used while dealing with CRIs

At the outset, the IPO put a caveat to say that the Guidelines do not constitute 'rule making'. Consequently, in case of a conflict between the Guidelines and the Act, the Act shall prevail. After the Introduction and Background, in Part I and Part II respectively, the Guidelines looked at the various definitions/terms that correspond to CRI patent claims in Part III. In all, there were 21 such definitions/terms that were sought to be clarified. These definitions can be branched into three categories.

Category I- Where the definition/term was borrowed from some other Indian stature.
Category II- Where the definition/term was construed according to the plain dictionary meaning. Category III- Where the Guidelines tried to give their interpretation to the term/definition.

Under Category I, there were seven definitions whose meaning was derived from some other stature. The meaning of Computer Network, Computer System, Data, Information and Function were derived from Information Technology Act, 2000 ('IT Act'). The definition of Computer Programme was taken from Copyright Act, 1957. Lastly, the definition of Computer was taken from both Copyright Act and IT Act.

Under Category II, the Guidelines underscored five definitions whose meaning was to be borrowed from the Oxford Dictionary. These were algorithm, software, per se, firm ware and hardware. Importantly, it was noted that these definitions have not been defined anywhere in Indian legislations. Lastly, under Category III the Guidelines tried to interpret certain terms according to their understanding. These terms included, Embedded Systems, Technical Effects, Technical Advancement, Mathematical Methods, Business Methods etc.

Categorization of CRI claims

In Part IV, the Guidelines tried to broadly group the various CRI patent applications under four heads. These categorizations tried to give an insight into what the patent examiners look for while rejecting a patent application.

Method/process:

Without defining what a method or process would entail, the Guidelines stated that any claim carrying a preamble with "method/process for..." shall not be patentable. It clarified that claims relating to mathematical methods, business methods, computer programme per se, algorithm or mental act are cannot be patented as they are prime illustrations of claims under this category. Further, the Guidelines gave specific examples of each of the aforementioned claims.

Apparatus/system

The second category consisted of claims whose preamble stated that the patent application was for an "apparatus/system". Under this, the patent application must not only comply with the standard tests of patentability- novelty, inventive step and industrial applicability, but also define the inventive constructional or hardware feature of the CRI. However, in contradictory statements, the Guidelines try to narrow down the prerequisites for a claim under this category, only to state that such claims cannot be patented.

Computer readable medium

While stating this as a category, the Guidelines do not elaborate on what this exactly means and what types of claims would be rejected being under this category.

Computer program product

This category includes computer programs that are expressed on a computer readable medium (CD, DVD, Signal etc.). Further, infusing ambiguity to the debate, the Guidelines failed to differentiate between Computer Readable Medium and Computer Program Product.

Examination Procedure used by IPO

The examination procedure for CRI patent application in the Guidelines is similar to other patent applications which look at novelty, inventive step and industrial applicability. However, claims relating to determination of specific subject matter under the excluded categories (Method/Process, Computer Readable Medium, Apparatus/system, and Computer Program Product) require specific examination skills from the examiner.

Under the excluded category itself, Method/Process requires subjective judgement by the examiner as to whether such a claim qualifies to be classified under this category or not. For investigating the inventive step involved in the 'method/process', the technical advancement over existing knowledge in the technological field has to be analyzed. Any patent claim from a non-technological field shall not be considered.

The Guidelines then tried to clarify the controversial Section 3(k) which eliminates the patenting of computer programmes per se. While previously stating that the definition of the term 'per se' as borrowed from the Oxford dictionary meant 'by itself', the Guidelines stated that computer programme loaded on a general purpose computer or related device cannot be patented. Nonetheless, while filing patent application for a novel hardware, with a loaded computer programme, the likelihood patenting the combination cannot be ruled out. Further, the stated hardware must be something more than a general purpose machine. Essentially, a patent for a novel computer programme combined with a novel hardware, which must be more than a general purpose machine, may be considered for patenting. It then gave several examples which were followed by flowcharts to further clarify ambiguities surrounding CRI patentability. Interestingly, all these examples and flowcharts only listed the inventions that are not patentable.

IV. Response by Stakeholders

Many and various comments were received from 36 stakeholders that including lawyers, civil society members, law firms, students, global and national trade bodies and industry representatives.

Our compilation (and the first level of analysis) of the Stakeholders' Responses is available here.

While all the stakeholders' applauded the much needed transparency in the IPO, substantively they differed considerably on various issues and highlighted some inconsistencies. In this part, I shall map the responses of the various stakeholders'. While doing so, I shall also try and find specific patterns to the responses corresponding to the following segments:

1. Civil Society

2. Law Firm/Advocates ('law Firms')

3. Industry/ Industry Representatives/Global Trade Body (Industry)

4. Students

These segments have been created on the assumption that each of the aforementioned segment would lobby for similar kind of policy.

Interpretation of Section 3(k)

One of the major points of deviation between the stakeholders was regarding the interpretation of Section 3(k) which encapsulates the term "computer programme per se".

The industry responded by critiquing the current CRI patenting regime in India as being "restrictive" ( FICCI , NASSCOM, US India Business Council and Bosch ). While some industry representatives sought clarifications due to uncertain phraseology, there was no industry representative that favored restricted interpretation to exclude software patenting altogether. While opposing the Guidelines, they sought assistance from the legislative history behind introduction of Section 3(k). It was pointed out that the term 'per se' was included to raise the threshold of patentability to something higher than the previous patentability standard, but it did not explicitly exclude patent protection for software.

The general perception of the stakeholders, keeping in mind the current Guidelines, was that for patenting software it had to be combined with some hardware. This combination would then be scrutinized against the triple test of novelty, inventive step and industrial application.

While the Guidelines noted that the hardware involved must not be general purpose hardware and that the chances of software patentability would increase significantly if novelty resides in the hardware; however, most of the industry and global trade bodies disagreed with this interpretation. They argued that if software in combination of hardware technically advances the existing technology, then such an innovation must be patentable, despite being combined with a general purpose machine (Bosch). Another explanation supporting expanded interpretation was that much of the technological innovation is accomplished through software development as compared to hardware innovation and novel software can achieve technical effect without the hardware developments ( BSA- The Software Alliance ). Consequently, software development that allows a general purpose machine to perform tasks that were once performed by a special machine must be incentivized. Some stakeholders interpreted the Guidelines to reason that hardware must be completely disregarded while examining patentability of software (Majumdar & Co. ).

Most of the responses from the civil society argued for a restricted interpretation of Section 3(k) ( Centre for Internet & Society). They concurred with the interpretation provided by the IPO to exclude software patentability. Most of the stakeholders responded seeking further clarification on the subject (Software Freedom Law Centre , K&S Partners and Xellect IP Solutions).

However, within each segments itself there was difference of opinion on the interpretation of Section 3(k). For instance, out of the five civil society members, four wanted to restrictive interpretation while one of them favoured expansive interpretation to include software patenting. Similarly, 13 law firms sought further clarification on the subject matter, while seven argued for expansive interpretation and one of them argued for restricted interpretation. The most consistent response was from the industry that clearly favoured software patenting and called the Guidelines "restrictive". Seven out of the nine industry representatives supported expansive interpretation and the other two sought further clarifications on the subject.

Section 5.4.6- Hardware

The interpretation of Section 3(k) until the release of the Guidelines was that software in combination with some hardware could be considered for patenting. However, the Guidelines increased the threshold stating that this hardware must be "something more than a general purpose machine". A stakeholder pointed out that increasing this threshold would go against the legislative intent as the requirement of a novel hardware has not been mentioned anywhere in the Act ( Anand & Anand ).

The industry's perspective on this matter was largely uniform. They pointed out the large technological field that would be eliminated from the scope of patentability if the interpretation provided by the Guidelines is adopted ( Bosch). Also, the investigation of novelty in the hardware would disincentives inventors in the field of CRIs ( Kan & Krishme ). Most of the stakeholders, across segments, sought more clarification on the role of hardware under Section 3(k) (Majumdar & Co. Centre for Internet & Society).

Comparative Analysis

Much of the criticism surrounding CRI patenting policy in India is based on the comparative inconsistency with similar laws in other jurisdictions. Comparative analysis on the subject has only been provided by the stakeholders that support software patentability. They point out that most countries like US, UK, Japan and the European Patent Convention allow patenting of software, and India must also do the same in order to comply with its international obligations under the TRIPs Agreement. Paradoxically, stakeholders who supported the current practice chose not to comparatively analyze CRI policy of other jurisdictions. While most of the stakeholders simply jumped to analyze comparative jurisprudence on the subject, only one of them gave a reasonable explanation for such a comparison ( LKS). It was noted that the Supreme Court of India and the Intellectual Property Appellate Board regularly borrow from foreign decisions to either accept or deny patents. Therefore, while formulating any policy on the matter, the position in other jurisdictions must be considered.

It was reasoned that the term 'per se' used in the Act, is similar to the European Patent Convention and UK Patent Act, 1977 where the term 'as such' has been used. Therefore, while juxtaposing both the terms, the interpretation of 'per se' must be similar to 'as such'. Consequently, software patenting must be allowed subject to the tests evolved by the courts. Similarly, the term 'as such' has been used by several Asian countries including China, Taiwan, South Korea and Japan. In these countries, software in concert with a specific hardware that resolves a technical problem thereby achieving a technical result can be patented ( Krishna and Saurastri Associates ).

Likewise, while comparing the jurisprudence of US, the landmark case Diamond vs. Diehr, which marked the beginning of software patenting was cited ( Subhojeet Ghosh and US India Business Council ). Several others argued that India must align their laws with global standards ( Bosch, Phillips Intellectual Property and Standards , Sun Smart IP Services , United Overseas Patent Firm).

Business Method

The Guidelines tried to narrow down the definition of 'Business Method' to clarify that such claims cannot be patented. It was urged that the Guidelines reconsider such a blanket embargo ( Legasis Partners- Advocates and Solicitors, Anand & Anand ). While judging patentability, a patent must not be rejected simply because it mentions business method or business method related terminology. What must be examined is whether the inventive step resides in the technical or non-technical part of the claim ( Legasis Partners- Advocates and Solicitors). A distinction must be made differentiating as to what software implementing business method and a software relating to the technical aspect of the transaction ( Anand & Anand ). While the former can be rejected, the latter must be accepted subject to the triple test of patenting.

It was pointed out that reevaluating a business method claim apart from a method involving financial transaction; monopoly claim over trade and new business strategies; monopoly claim over new types of carrying out business and method of increasing revenue; must be rejected (Law Offices of Mohan Associates , Remfry and Sagar, FICCI ). The more overarching opinion of the stakeholders was there is no objection to the exclusion of business method patents, but what constitutes business methods need more clarity (D. Moses Jeyakaran, Law Firm of Naren Thappeta , Japan Intellectual Property Association ).

Critique of Examples and Flowcharts

The Guidelines provided for several examples and flowcharts to foster a better understanding of the subject matter. However, a notable feature of each of these was that they only gave examples of what claims would be rejected. This was sufficiently pointed out by most of the stakeholders who sought more positive examples (Bosch, BSA- The Software Alliance , K&S Partners , FICCI , Xellect IP Solutions, Japan Intellectual Property Association , In-House Intellectual Property Professional Forum, NASSCOM , Obhan & Associates , Remfry & Sagar, Tata Consultancy Services ). It was pointed out that the examples have not sufficiently elaborated on their relation with Section 3(k) ( FICCI ), and some of them are "weak, obscure and incorrect" ( Software Freedom Law Centre). These examples also fail to elaborate on the tests that have previously been applied by the Patent Office ( LKS). Overall, the general perception was that, the examples were confusing and greater clarity along with positive examples was needed ( LKS, Anand & Anand ).

Interestingly, out of the 25 stakeholders' who commented on the illustrations, 16 sought positive examples. Further, most of the positive examples were sought by industry representatives and law firms who supported software patenting.

V. Conclusion

It has been over a year since IPO released the CRI Guidelines. On release, it invited suggestions in order to revise the Guidelines, but the revised version has still not been released by the IPO. The Guidelines were authored from a patent examiner's perspective; however, while doing so it obscured the matter further. It was argued that in totality the application of the Guidelines would now make the patentability of software stricter. It was also pointed out that the Guidelines have not taken into account the legislative history and the specific rejection of the Ordinance in the 2005 Amendment.

The responses received by IPO gave conflicting opinion on the same issue. In general, it can be concluded that the industry and law firms were in favour of allowing software patenting. They sought removal of the hardware requirement for software patentability. Most of the stakeholder's who favoured software patenting also undertook a comparative study of jurisdictions like US, UK, EU and Japan to point out the difference in the software patenting policy. Further, they also wanted the Guidelines to give positive examples wherein CRIs patenting has previously been allowed.

Admittedly, the Guidelines have no legal standing and much like the Patent Manual, they serve merely to guide the patent applicants and provide transparency patent examination. Overall, the Guidelines failed to explain the previous inconsistencies surrounding the subject matter. In conclusion the Guidelines mention that it would periodically release and update the Guidelines incorporating the stakeholder's comments. Considering the diverse set of opinions received by the IPO, it now needs to be seen which suggestions are accepted until the next round of comments.

For more details visit https://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions

Grounds for Compulsory Patent Licensing in United States, Canada, China, and India

maggie — 2014-07-29T08:45:25Z

The research paper seeks to answer questions about the grounds of compulsory licensing in international treaties with specific examples from America and Asia. The grounds for granting compulsory licenses, jurisdictional comparison of compulsory licensing, etc., are examined.

Holding ownership to a patented invention means one has certain exclusive rights: a) the right to decide who may use the invention during the time of protection; b) the right to give licenses to other parties to use the invention on mutually agreed terms; and, c) the right to sell and transfer ownership of the patent to someone else[1]. Once this patent expires, the invention would enter the public domain to be shared freely[2].

However, given certain conditions, a compulsory license can be granted, in which “authorization [is] given by national authority to a person without or against the consent of the titleholder, for the exploitation of a subject matter protected by a patent or other intellectual property rights” [3].

Compulsory licensing has been most contentiously applied for patented pharmaceutical companies who are often looking to recoup research and development costs. Proponents of this instrument are now also growing amongst advocates for climate change mitigation technologies [4]. The Pervasive Technologies: Access to Knowledge in the Marketplace project is broadly assessing access to knowledge through sub-100 dollar devices. The accessibility of these critical technologies, and subsequent access to knowledge, information, and culture through these devices may be implicated by this policy lever[5]

Thus, this paper seeks to answer the following questions:

What are the grounds for compulsory licensing set in international treaties?
How does Canada, United States (i.e. North America), India, and China (i.e. Asia) provide for compulsory licensing within its national laws?

This will be done through first providing an overview of the relevant international treaties to understand the compulsory licensing framework which signatory nations must follow. Then, utilizing Correa (1999)'s study as a foundation, an analysis of the text within the four aforementioned's codified laws will be assessed to understand all the possible grounds compulsory licensing can be provided. This paper will conclude by summarizing any significant distinctions across the four jurisdictions.

Compulsory Patent Licensing in International Law and Regional Trade Agreements
Paris Convention for the Protection of Industrial Property (1883) [6]
Article 5(2) of the Paris Convention provides each country with the right to "grant compulsory licenses to prevent abuses which might result form the exercise of exclusive rights conferred by the patent… " United States, Canada, China, and India are four of the 175 contracting parties to this convention [7]. This can only be done after 4 years of applying for the patent, or 3 years from the date in which the patent was granted. This means, a sufficient amount of time must have elapsed to allow the rights holder to exploit the invention.

North American Free Trade Agreement (1994)[8]
Article 1704 in NAFTA provides that "appropriate measures" can be taken to control abusive or anticompetitive practices. The United States and Canada have utilized this ground of anti-competition to grant numerous compulsory licenses.

Article 1709 notes that there must not be a discrimination of technology – patents may only be revoked when the grant has not remedied lack of exploitation, and that the use of the patent adheres to certain criteria.

In 1993, Canada repealed the compulsory licensing regulations from its Patent Law to comply with the international TRIPS and NAFTA treaties.

Trade Related Aspects of Intellectual Property Rights (1994) [9]
All members of the World Trade Organization is provided the right to use compulsory licenses via Article 31 Other Use Without Authorization of the Right Holder within the Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement. This Article stipulates 12 procedural provisions: compulsory licensing should be granted on 'individual merits'[10], must have shown prior effort to obtain authorization under reasonable commercial terms [11], must be non-exclusive[12], adequate renumeration must be provided[13], and the license must be terminated as soon as the circumstances for which it was granted cease to exist[14].

Suggested, but not obligatory grounds for which compulsory licensing could be granted under the TRIPs agreement are a) emergency and extreme urgency, b) anticompetitive practices, c) public non-commercial use, and the d) use of dependent patents[15].

Doha Declaration on the TRIPS Agreement and Public Health (2001)
The Doha Declaration is a clarification of the earlier TRIPS agreement in response to some countries' public health concerns due to obstacles to accessing patented medicines.[16]

Paragraph 4 of the Doha Declaration expressly allows Members to take measures to protect public health, while paragraph 5b states that "each Member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted". Freedom of each country to define the terms of their intellectual property rights is also further reiterated.

Grounds for granting compulsory licenses
Correa (1999) in his paper Intellectual Property Rights and the Use of Compulsory License: Options for Developing Countries outlines eight common grounds which provided the framework for this comparative analysis between the jurisdictions of the United States, Canada, India, and China. Through analyzing the codified law on compulsory licensing, a few other grounds were added to the list.

Refusal to deal
In principle, the patent owner has an exclusive right to determine whether or not to issue a license to a third party. However, if under reasonable terms, one still refuses to issue a license, national courts may interpret this as an abuse of patent rights, resulting in lack of availability of the product and commercial development. In the United States, this is often raised as an anticompetitive issue.

Non-working and inadequate supply
The "working obligation" was initially understood as the industrial use of an invention, which according to Article 31 of the TRIPs Agreement required working 'predominantly' for local markets. However, many countries have defined 'working' to include commercial use of the invention, in which importation of a product would suffice[17].

Public interest
The public interest needs to be balanced with individuals' rights, and it is the responsibility of the courts or administration in each respective country to determine this. Thus, what actually constitutes as "public interest" varies depending on time and jurisdiction. For example, countries with limited industrial development could consider a compulsory patent to develop its national industries as for public interest [18]. Accessibility of a product at the lowest price have been argued to be in public interest, but some courts have ruled this to be invalid[19]

Anticompetitive practices
A patent is essentially a temporary monopoly meant to provide an economic reward for the inventor's work, as well as additional incentive to continue producing[20]. However, excessive monopolization through unlawful or unfair practices, such as when a patent is overly broad, acquiring and accumulating patent portfolios, and subsequent patent trolling are some acts that be considered anticompetitive patent practices[21]. Compulsory licenses have also been granted through this ground under anti-monopoly, antitrust, and competition laws.

Governmental use
Each country's government decides what is to be considered as governmental use. Occasionally synonymous to government use has also been public, non-commercial use, or as suggested by the TRIPs agreement, for the purposes of national emergency or urgency. This is assuming the government is acting on behalf of public interest; given its lack of an international standardized definition, this ground can be utilized and interpreted in other ways.

Facilitate use of dependent patents
When a new invention (dependent invention) cannot be developed without infringing on the license of an existing patented invention, (principle invention) a compulsory licensing can be granted to facilitate innovation. This ensures the patents of principle inventions would not block technical progress. The TRIPs agreement expressly allows this, provided reasonable compensation is articulated. In some jurisdictions, cross-licensing, (which involves a licensing agreement between two parties to exploit each other's intellectual property[22]) can be negotiated to resolve this issue.

Compulsory licenses for medicines
Numerous countries have issued licenses for increased accessibility to food and medicine. Prior to the Doha Round, TRIPs prohibited this, as Article 27 states "national laws cannot discriminate in exercise of patent rights on the basis of field of technology". However, the Doha Declaration addressed this, allowing pharmaceuticals to have increased accessibility (via pricing, production, and importation) for the sake of public health.

Exclusive Grant Back or Coercive Package Licensing
A grant back can be agreed upon when there is an expectation of an improvement on the licensed technology through increased superiority or method [23]. This allows the licensee to commercialize an improved product without having to file for another patent[24]. Exclusive grant back provides the licensor the exclusive right to use or sublicense improvements, while licensee retains non-exclusive right to practice the improvements.[25] Grant-backs, particularly exclusive ones are sometimes deemed as anticompetitive.

A package license, otherwise known as patent pools is used when the licensing of more than one patent is necessary to commercialize an invention [26] Coercive package licensing can occur when the licensing of other patents within the package is forceful and unnecessary. The defining and interpretation of 'coercion' ultimately depends on each country's respective authorities.

Hindrance from Importation of Abroad[27]
This ground may fall under non-working, but is unique in that it notes a state's ability to grant compulsory license on behalf of a foreign-owned patent. Yang (2012) cites that this as one of the most controversial aspects of compulsory patent licensing, as countries may feel undermined when another state can grant compulsory licenses that are against their own interests[28].

Jurisdictional comparison of Compulsory Licensing
The following table was developed as an exercise to review compulsory licensing within the jurisdictions of the United States, Canada, India, and China. Utilizing Correa (1999)'s findings as a skeletal framework, the four aforementioned countries' codified patent laws were used to determine the grounds for compulsory licensing. The main compairson was done through analyzing the specific text within the laws of the four jurisdiction – one approach to treaty and law interpretation[29] However, for those countries that were lacking general provisions on compulsory licensing (i.e. United States, and eventually Canada in 1993[30]), there was a need to expand to a more comprehensive approach and look through other codified laws beyond patents and intellectual property, as well as through case law to see if the mentioned grounds have been used to provide for compulsory licenses[31].

Grounds		Countries	Law
Refusal to deal and/or abuses of patentees' exclusive rights		U.S	n/a in codified law…refusal to deal is an essential element of intellectual property rights…but can lead to anti-competition in which Antitrust laws can be used
		Canada	Patent Law - Abuse of Rights 65.2(d): "if by reason of refusal of patentee to grant* a license or licenses on reasonable terms…*
		India	Patent Act 1970 S.4(d) *"Refusal to deal"* includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought Patent Act, 1970 S. 84.7(a) " If by reason of refusal…ii) demand for the patented article has not been met to an adequate extent or on reasonable terms; or iii) a market for the patented article manufactured in India is not being supplied or developed; or iv) the establishment or development of commercial activities in India is not prejudiced Patent Act 1970 S.84 (6) " …Controller shall take into account, - i) nature of invention, the time which has elapsed since the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention; iv) ..whether applicant has made efforts to obtain a license from the patentee on reasonable terms conditions, and such efforts have not been successful within a reasonable period *period not ordinarily exceeding a period of six months* as the Controller may deem fit
		China	Patent Law of the People's Republic of China - Article 48 (1): " When it has been 3 years since the date the patent right is granted, and four years since the date the patent application is submitted, the patentee, without legitimate reasons, fails to have the patent exploited or fully exploited"
Non-working and inadequate supply		U.S.	n/a
		Canada	Patent Act 1935: s.65 a): "… is capable of being worked within Canada but is not being worked within Canada on a commercial scale, and no satisfactory reason can be given for that non-working…" REPEALED in 1993 due to NAFTA and TRIPS
		India	Patents Act, 1970 S. 84 (1): " At any time after expiration of 3 years from the date of the grant of a patent, any person interested may make an application… b)…not available to the public at a reasonably affordable price, or c) that the patented invention is not available to the public at a reasonably affordable price Patent Act 1970 S.84(2): "…reasonable requirements of the public.. not satisfied or that the patented invention is not worked in the territory of India, Patent Act, 1970 S. 84.7(a) "If by reason of refusal…ii) demand for the patented article has not been met to an adequate extent or on reasonable terms; or iii) a market for the patented article manufactured in India is not being supplied or developed; or iv) the establishment or development of commercial activities in India is not prejudiced Patent Act, 1970 S. 84.7(d): " If the patented invention is not being worked in the territory of India on a commercial scale to an adequate extent, or is not being so worked to the fullest extent that is reasonably practicable
		China	Measures for Compulsory licensing of Patent Implementation (2012) - Ch 2 Art. 5: "If without good reason not implemented or fully implemented, their licensing patent within 3 years from the date of grant of patent right..and 4 years from the date of filing patent"
Public interest:		U.S.	"...no general provision allowing authorities to override patents in the larger public interest” [32] Bayh-Dole Act of 1980 - allow government to exercise "march in" rights with regard to government funded research results that universities might otherwise patent But US has granted compulsory licenses when felt public interest was at stake (Atomic Energy Act and Clean Air Act 1970, Federal Non-Nuclear Energy Research and Development Act 1973)
Canada	Patent Law - Abuse of Rights 65.2(d): "if by reason of refusal of patentee to grant a license or licenses on reasonable terms… in public interest that license/licenses should be granted" Patent Act S. 39. (3) License under patent relating to food: " In the case of any patent…of food…shall grant to any person applying…Commissioner shall have regard to the desirability of making the food available to the public at the lowest possible price consistent with giving to the inventor due reward for the research leading to the invention" REPEALED in 1993 due to NAFTA and TRIPS
India	Patent Act 1970, S. 84 (2)…not available to the public at a reasonably affordable price Patent Act 1970 S. 84 (6) " …Controller shall take into account, ii) the ability of the applicant to work the invention to the public advantage Patent Act, 1970 - S. 92 Special provision for compulsory licenses on notifications by Central Government-(1): " If Central Government is satisfied… circumstances of national emergency or in circumstances of extreme urgency, or in case of public non commercial use...
China	Patent Law - Article 49: " Where a national emergency or any extraordinary state of affairs occurs, or public interests so require…" Measures for Compulsory Licensing of Patent Implementation - Article 6: If emergency or irregular event of the state…or for purposes of public interest
Anti-competitive practices		U.S.	Antitrust & Trade Law: Sherman Act 15 U.S. C.S. 2 - Monopolizing trade a felony; penalty: " Every person who shall monopolize, or attempt to monopolize…any part of trade or commerce among several States, or with foreign nations…deemed guilty of a felony, and conviction.."
		Canada	Competition Act (S. 32 RSC 1985): " …where use has been made of exclusive rights and privileges conferred by one or more patents for invention…(a) limit unduly the facilities for transporting, producing, manufacturing, supplying…may be a subject of trade or commerce, (b) restrain or injure, unduly, trade or commerce…(c) prevent, limit, or lessen, unduly, the manufacture or production…or unreasonably enhance the price thereof, or (d) prevent or lessen, unduly, competition in…
India	India Patent Law Chapter 90 (1.ix) Terms and Conditions of compulsory licenses… granted to remedy a practice determined after judicial or administrative process to be anticompetitive…
China	Measures for Compulsory Licensing of Patent Implementation, 2012 - Article 11: " …that actions of patent holder in exercising patent right…deemed to be monopolistic actions" Patent Law of the People's Republic of China - Article 48 (2): " …patentee's exercise of the patent right is in accordance with law, confirmed as monopoly and its negative impact on competition needs to be eliminated or reduced"
Governmental use		United States	28 United States Code 1498: " …when used or manufactured by or for the United States without license of the owner…remedy shall be..Claims for recovery of his reasonable and entire compensation for such use and manufacture…" ie. Government does not have to seek license or negotiate for use, and the only appeal for patent owner is compensation
		Canada	Under the 1993 and 1994 amendments to the Patent Act of 1985, section 19.1: "the Commissioner may, on application by the Government of Canada or the government of a province, authorize the use of a patented invention by that government ."
		India	Patent Act, 1970 - S. 100 Power of Central Government to use inventions for purposes of Government (1): "…at any time…the Central Government and any person authorized in writing… may use the invention for the purposes of Government in accordance with provisions of this chapter" Patent Act, 1970 S. 100 Power of Central Government to use inventions for purposes of Government (2): " Where an invention has, before priority date of relevant claim, been duly recorded in a document, or tested or tried, by or on behalf of the Government or Government undertaking… any use of the invention by the Central Government or any person authorized in writing by it for the purposes of Government may be made free of any royalty or other renumeration to the patentee " Patent Act, 1970 S. 100 Power of Central Government to use inventions for purposes of Government (6): " The right to make, use, exercise, and vend an invention for the purposes of Government under sub-section (1) shall include the right to sell on noncommercial basis, and person c laiming through..as if Central Government or authorized were the patentee of the invention
China	Patent Law of PRC Art. 14: "If an invention patent of a State-owned enterprise or institution is of great significance to national or public interests, upon approval by State Council.. Patent Law PRC Article 49: " Where a national emergency or any extraordinary state of affairs occurs…patent administration department under the State council may grant a compulsory license for exploitation of an inanition patent or utility model patent" Patent Law PRC Article 14: “ If an invention patent of a State-owned enterprise or institution is o f great significance to national or public interests, upon approval by the State Council, the relevant competent department under the State Council ...may decide to have the patent widely applied within an approved scope and allow the designated units to exploit the patent, and the said units shall pay royalties to the patentee in accordance with the regulations of the State.
Facilitate use of dependent patents		United States	N/A - U.S. Does has not formally codified a general provision for Compulsory licensing of Dependent Patents [33]
		Canada	N/A
		India	Patent Act 1970 - Section 88 Power of Controller in Granting Compulsory licenses (3): …if Controller satisfied that the applicant cannot efficiently or satisfactorily work the license granted to him under those patents without infringing the other patents held by the patentee, and if those patents involve important technical advancement of considerable economic significance …may direct grant of a license…
		China	Patent Law - Ch 6 Art 51: " If an invention/utility model…represents major technological advancement of remarkable economic significance, compared with an earlier invention or utility model for which the patent right has already been obtained, and exploitation of former relies on exploitation of latter…may grant it a compulsory license to exploit..."
Compulsory licenses for medicines		United States	N/A but has threatened Bayer for compulsory licensing of Ciproflaxin medicine who subsequently dropped their prices drastically [34]
		Canada	Bill C-9 Amendment to Food and Drugs Act, 2004: "…pharmaceutical products intended for export in accordance with that WTO General Council decision…to comply with…sold on domestic market" Patent Act (4) License under patent relating to medicine - " ..intended or capable of being used for the preparation of production of medicine…Commissioner shall grant.. REPEALED in 1993 due to NAFTA and TRIPS
India	Patent Act 1970 Section 92.A Compulsory license for export of patent pharmaceutical products in certain exceptional circumstances: " …shall be available for manufacture and export of patented pharmaceutical products [35] to any country having insufficient or no manufacturing capacity in the pharmaceutical sector for the concerned product to address public health problems…" Patent Act, 1970 Section 83.(d): "General principles applicable to working of patented inventions… do not impede protection of public health and nutrition…
China	Patent Law of PRC: Article 50: " For the benefit of public health…grant compulsory license for manufacture of the drug, for which a patent right has been obtained, and for its export to the countries or regions that conform to the provisions…" Measures for Compulsory Licensing of Patent Implementation, 2012 - Ch 2 Art 7: " For purposes of public health…able to implement petition for compulsory licensing…for manufacture of patented medicines..and export of, to following countries/regions: 1) The most underdeveloped countries/regions; 2) Developed/developing members of the WTO
Exclusive grant-back and Coercive package licensing		U.S.	Legal in the past – granted in Transparent Wrap Machine Corp v Stokes & Smith Co. but discouraged... interpreted by Rule of Reason doctrine which is an interpretation of Sherman Antitrust (Anti-competition) Act[36] Now Department Of Justice from 2007 has said must be non-exclusive under its Antitrust laws [37]
		Canada	N/A
		India	Patent Act, 1970 Section 84 (7.c): …Reasonable requirements of the public shall be deemed not to have been satisfied [38] - c) if the patentee imposes a condition upon the grant of license under the patent to provide exclusive grant back, prevention to challenges to validity of patent, or coercive package licensing
		China	N/A
Hindered by importation from abroad		U.S.	N/A
		Canada	N/A
		India	Patent Act, 1970 Section 84 (7.e): " if the working of the patented invention in the territory of India on a commercial scale is being prevented or hindered by the importation from abroad of the patented article by…i) patentee..ii) persons purchasing…iii) other persons not taking proceedings for infringement
China	N/A

Summary of Cross-Jurisdictional Comparison
As mentioned previously, this comparison necessitated an expansion into codified law outside of compulsory licensing and patent law into case law, since the United States had never written a general provision for compulsory licensing, and Canada had repealed theirs in 1993 upon the signing of the NAFTA and TRIPS agreement. For Canada, compulsory licenses (CLs) continued to be granted following the repeal through the Foods and Drugs Act, as well as the Competition Act. Despite United States' lack of general provisions, Knowledge Ecology International claims it is the world's leader in the use of CLs, yet hypocritical to developing countries' requests for affordable patented pharmaceuticals.[39]

In general, India and China both have very extensive compulsory licensing laws. China's State Intellectual Property Office even developed additional Measures to account for the execution of compulsory licensing. Despite comprehensive CL provisions, India has had only one compulsory license ever granted in the case of Natco Pharma Ltd v. Bayer Corporation, for the domestic production of cancer-drug Nexavar. [40] China has yet to grant any compulsory license, but the new Measures may signify an increasing willingness to do so, or even to be used as a bargaining tool. However, given its goal of developing domestic intellectual property (i.e. China's 5-year plan), it is unlikely that China will grant compulsory licenses in the masses.[41]

In regards to the specific grounds themselves, some grounds noted particular differences per country.

Under U.S. Intellectual Property Law, refusal to deal is actually is considered a right, thus does not provide for compulsory licensing; depending on the degree however, it could lead to anti-competition[42]. According to the Paris Convention, one can only request consideration for a CLs 3 years from the granting of a patent, or 4 years from application, allowing said time for provision of dealing. However, India seems to have a more stringent period of not exceeding a period of six months, while China noted specifically not 'without legitimate reasons'.

The non-working and inadequate supply was again not present in U.S. Law, yet Canada did include it in its former compulsory licensing provision prior to repeal. Canada had defined 'working' specifically referring to a commercial scale when compulsory licensing was in effect. India's 'working' means being available at a reasonably affordable price, and supplied or developed, through the establishment of commercial activities, worked to the fullest extent that is fully practicable, while China mentioned non-working 'if without good reason, it is not implemented or fully implemented'.

The United States does not have any provision providing explicitly for public interest. However, under the Bayh-Dole Act, government-funding for research during the economic crisis in the 1970s was granted as long as the inventors agreed to allow petition for 'march-in rights', in which the government or a third party “shall have the right...to require the contractor...to grant a nonexclusive, partially exclusive, or exclusive license” (35 U.S. Code S203(a)) if it meets one of four requirements - one being to “...alleviate health and safety needs which are not reasonably satisfied...” (35 U.S. Code Section 203). Canada's public interest clause had existed, but was repealed. India now states that CLs can be granted to make available to the public “at a reasonably affordable price, to public advantage, and for public non-commercial use”. In China, public interest is provided in conditions of 'national emergency or extraordinary state of affairs, for the purpose of public interest'.

The United States does however strongly uphold and value competition, and have granted CLs to remedy anticompetitive practices under its Antitrust laws, prohibiting any 'attempt to monopolize any part of trade or commerce'. China also uses the language of 'monopolistic actions' and allows compulsory licensing if its “negative impact on competition needs to be eliminated or reduced.” Canada's Competition Act allows for compulsory licensing if one 'limits unduly, the facilities for transporting, producing, manufacturing... restrain or injure unduly, trade or commercial etc..' .preventing fair competition. India also notes the remedying of anticompetitive acts in its patent laws.

Governmental use in the United States have been granted for use by the Department of Defense and as mentioned previously for the Bayh-Dole Act. However, unlike the other countries of focus, there is no way to appeal a CL for the purposes of government-use. The only way to remedy this as a patent owner is compensation. In Canada, the Commissioner may on application by the Government of Canada or province authorize a CL. Indian patent law also allows CLs for the purposes of the Government, with the explicit possibility of being made free of any royalty or renumeration. It also expressly notes within S103 that one can petition to the Government if this occurs. The Chinese Patent Law notes governmental use through the language of 'great significance to national or public interests', and 'national emergency or extraordinary state of affairs. The possibility of appeal is also expressly noted in Article 58.

Neither United States or Canada have formally codified any mention of compulsory licensing for the use of dependent patents, though it does exist in the TRIPs agreement they both comply to. In India patent law, CLs is granted through this ground “only if it involves important technical advancement of considerable economic significance, and... only if it cannot be accomplished without infringing other patents.” In China, the law states that if an “invention/utility model represents major technological advancement...compared with earlier invention or utility model...and the exploitation of former relies on exploitation of the latter...”, a compulsory license may be granted.

Compulsory licensing for medicine in the United States again have never been codified, but have been used to encourage Bayer to reduce their prices under the possibility of being issued compulsory liceninsg. Home to many of the pharmaceutical industries who own patents to medicines, the United States has been called hypocritical due to its common lack of providing affordable pharmaceuticals. Canada allows for CLs under the Food and Drugs Act which points to the World Trade Organization guidelines. Prior to the repeal of its compulsory licensing act, Canada also had specific provisions relating to medicines, and was actually the first country to authorize the compulsory licensing of an AIDS drug for Rwanda for export.[43] In India, the only compulsory license that has ever been granted was for cancer drug Nexavar. In its compulsory licensing provision, it states that CLs are “available for manufacture and export of patented pharmaceutical products...to any country having insufficient or no manufacturing” abilities. Similar to the TRIPs agreement, it also states that none of the principles should impede the protection of public health and nutrition. China's patent laws state that CLs can be used for the benefit of public health. The Measures for Implementation specifies more specifically which countries and regions are allowed, which includes WTO members, or the 'underdeveloped' nations.

Only in the Indian Patent Law does it explicitly allow for CL in the event of exclusive grant backs due to anti-competition and/or not being reasonable to the public. On the contrary, the United States actually had allowed exclusive grant back in the Transparent Wrap Machine Corp v Stokes & Smith Co. case[44]. However, the FTC now strongly recommends against it as it is considered anticompetitive when a grant-back is exclusive[45]. Canada and China does not seem to have this condition in their laws.

Similarly, only in the Indian patent law does coercive package licensing provide for compulsory licensing. This clause may have implications on standard-essential patent pools when attempting to determine which patents are indeed 'essential', and if they comply with fair, reasonable, and non discriminatory regulations[46].

Indian Patent Law also expressly allows for compulsory licensing on the ground that a product is hindered by importation from abroad. It must be proven the lack of accessibility is soley due to the process of it being imported, perhaps affected by natural disasters, socioeconomic reasons, political instability, sanctions, or more – ultimately affecting the cost and availability of this product. [47]

Conclusion and Further Reflections on Compulsory Licensing
Ultimately, there seems to be no correlation between the detail and scope of compulsory licensing (and other codified) law, and the number of compulsory licenses granted. However, it must be noted that the Eastern countries of focus in this review have had much less time developing its intellectual property landscape. In addition, the comprehensiveness of India and China's patent laws also reflect the incorporation of valuable lessons learned from poor implementation of other countries.

The prevalence of broadly defined patents, patent trolling, and the increasing need to navigate patent thickets all act as barriers to innovation and production to a commercial scale in which these technologies can actually be disseminated. The Pervasive Technologies project looks ultimately at bridging the digital divide through providing access to low-cost technology, and subsequently access to information, culture, and knowledge.

Compulsory licenses can be used to decrease the cost burden of production, and reduce barriers to innovation, ultimately providing greater accessibility to these tools for all of society. The Centre for Internet and Society has proposed and continues to advocate the establishment of patent pools for low-access devices through the use of compulsory licenses to achieve this goal[48].

[1] WIPO. What Is Intellectual Property. World Intellectual Property Organization, 2012. Print. 5

[2] WIPO, 6

[3] Correa, Carlos M. “Intellectual Property Rights and the.” Trade Related Agenda Development and Equity (1999): 3

[4] Contreras, Jorge L., and Charles R. McManis. “Compulsory Licensing of Intellectual Property: A Viable Policy Lever for Promoting Access to Critical Technologies?” TRIPS and Developing Countries – Towards a New World Order? (Gustavo Ghidini, Rudolph J.R. Peritz & Marco Ricolfi, eds., 2014 (Edward Elgar)) (2014): 112 Print.

[5] Abraham, Sunil. Letter for Establishment of Patent Pool for Low-Cost Access Devices through Compulsory Licenses. 27 June 2013. Accessed: http://cis-india.org/a2k/blog/letter-for-establishment-of-patent-pool-for-low-cost-access-devices

[6] The Paris Convention is an intellectual property treaty covering industrial property: patents, trademarks, industrial designs, utility models, service marks, trade names, and geographical indicators.

WIPO. “Summary of the Paris Convention for the Protection of Industrial Property (1883).” World Intellectual Property Organization. Website. http://www.wipo.int/treaties/en/ip/paris/summary_paris.html

[7] WIPO. “WIPO-Administered Treaties: Contracting Parties.” World Intellectual Property Organization. Website. http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=2

[8] The North American Free Trade Agreement (NAFTA) is the largest free trade agreement in the world, with members Canada, United States, and Mexico.
USTR. “North American Free Trade Agreement (NAFTA).” Office of the United States Representative. Website. http://www.ustr.gov/trade-agreements/free-trade-agreements/north-american-free-trade-agreement-nafta

[9] The Trade Related Aspects of Intellectual Property RIghts (TRIPS) agreement is a treaty which provides basic intellectual property provisions for international law, and stipulates that members shall be free to determine methods of implementing the provisions, in addition to enact more specific measures provided it coincides with the rest of the agreement.
World Trade Organization. “Agreement on Trade Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods.”WTO Legal Texts - A Summary of the Final Act of the Uruguay Round. Website. http://www.wto.org/english/docs_e/legal_e/ursum_e.htm#nAgreement

[10] TRIPS - Article 31.a)

[11] TRIPS - Article 31.b)

[12] TRIPS - Article 31.b)

[13] TRIPS – Article 31.h)

[14] TRIPS – Article 31.c)

[15] TRIPS – Article 31

[16] fWHO. “The Doha Declaration on the TRIPs Agreement and Public Health.” World Health Organization. http://www.who.int/medicines/areas/policy/doha_declaration/en/

[17] Correa, 11-12.

[18] Fauver, Cole M. “Compulsory Patent Licensing in the United States: An Idea Whose Time Has Come.” Northwestern Journal of International Law and Business 8.3 (1988): 666–685. Print. p671

[19] Correa, 13

[20] Ferrell, John. Patent Pro Se: The Entrepreneur’s Guide to Provisional Patent Applications. BayWater Publishing, 2010. Print.

[21] Milchenko, Oleg. “Contemporary Anti-Competetive Practices of Patents Usage.” Journal of International Commercial Law and Technology 8.3 (2013): 1-13. Print.

[22] Shapiro, Carl. “Navigating the Patent Thicket: Cross Licneses, Patent Pools, and Standard Setting.” Innovation Policy and the Economy 1 (2001): 119–150. Print.

[23] McGurk, Thomas B. “The Grant-Back Clause in Your Technology License.” Biodiesel Magazine 17 Jan. 2013.

[24] Origin IP Academy. “Exclusive Grant Back License.” Origiin IP Academy 15 Nov. 2009. Blog. Accessed: http://origiinipae.blogspot.in/2009/11/exclusive-grant-back-license.html

[25] Dykeman, David J. “When Licensing out Patents, Make Sure Improvements Are Granted Back.” Boston Business Journal 8 Mar. 2006. Blog retrieved from: http://www.bizjournals.com/boston/blog/mass-high-tech/2006/03/when-licensing-out-patents-make-sure.html?page=all

[26] Origiin IP Academy. “Coercive Package Licensing.” Origiin IP Academy 11 Nov. 2009. Accessed: http://origiinipae.blogspot.in/2009/11/coercive-package-licensing.html

[27] Reddy, Prashant. “‘Working’ a Patent under the Indian Patent Act, 970 - Does Importation of a Patented Invention Count?” Spicy IP - Decoding Indian Intellectual Property Law. 22 Apr. 2010. Retrieved: http://spicyip.com/2010/04/working-patent-under-indian-patent-act.html

[28] Yang, Deli. “Compulsory Licesning: For Better or for Worse, the Done Deal Lies in the Balance.” Journal of Intellectual Property Rights 17 (2012): 76–81; p80 Print. Global IP Debates

[29] Shaw, Malcom N. International Law 7th Edition. 5th ed. Cambridge University Press, 2003. Print.

[30] Canada had repealed its section on Compulsory Licensing in order to comply with the TRIPS and NAFTA agreements

[31] A more comprehensive approach could be to assess broadly ALL the compulsory licensing cases rather than just a select few ….particularly for United States and Canada...

[32] http://www.aals.org/documents/2006intprop/JeromeReichmanOutline.pdf

[33] Reichman, Jerome. “Compulsory Licensing of Patented Inventions: Comparing United States Law and Practice with Options under the TRIPS Agreement.” Vancouver, Canada: Duke University School of Law, 2006.

[34] Reichman, Jerome H. “Comment: Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options.” The Journal of Law, Medicine, and Ethics 37.2 (2009): 247–263. Print.

[35] Pharmaceutical products' means any patented product, or product manufactured through a patented process, of the pharmaceutical sector needed to address public health problems and shall be inclusive of ingredients necessary for their manufacture and diagnostic kits required for their use"

[36] Dratler, Jay. Licensing of Intellectual Property. New York: Law Journal Press, 2005: 7.89 Print.

[37] Miller, Mark E., and David S. Almeling. “DOJ, FTC Redefine Antitrust Rules on Patent Pools.” National Law Journal. 29 Oct. 2007.

[38] Therefore compulsory licensing can be granted given Controller agrees

[39] Raja, Kanaga. “US Leads the World in Use of Compulsory Licenses, Says KEI.” Third World Network. N.p., 18 Mar. 2014.

[40] Bakhru, Rachna. “India Grants First Compulsory Licence under Patents Act.” Intellectual Property Magazine June 2012: 46–47. Print.

[41] Miller Canfield. “China Allows Compulsory Licensing.” Law FIrm of Miller Canfield. Dec. 2012. Retreived: http://www.millercanfield.com/resources-321.html

[42] Genevaz, Simon. “Against Immunity for Unilateral Refusal to Deal in Intellectual Property: Why Antitrust Law Should Not Distingusih between IP and Other Property Rights.” Berkeley Technology Law Journal 19.2 (2014): 742–784. Print.

[43] World Trade Organization. “Canada Is First to Notify Compulsory License to Export Generic Drug.” WTO | 2007 News Items. N.p., 4 Oct. 2007.

[44] sSchmalbeck, Richard L. “The Validity of Grant-Back Clauses in Patent Licensing Agreements.” University of Chicago Law Review 42 (1975): 733–748.

[45] Miller & Ameling, 2007: 3

[46] Lerner, Josh, and Jean Tirole. “Standard-Essential Patents.” Working Paper 43.

[47] Reddy, 2010

[48] See Executive Director of CIS' letter to the government here: http://cis-india.org/a2k/blog/letter-for-establishment-of-patent-pool-for-low-cost-access-devices

For more details visit https://cis-india.org/a2k/blogs/grounds-for-compulsory-patent-licensing-in-us-canada-china-and-india

Government gives free publicity worth 40k to Twitter and Facebook

Akriti Bopanna — 2018-04-27T09:52:26Z

We conducted a 2 week survey of newspapers for links between government advertisement to social media giants. As citizens, we should be worried about the close nexus between the Indian government and digital behemoths such as Facebook, Google and Twitter. It has become apparent to us after a 2 week print media analysis that our Government has been providing free publicity worth Rs 40,000 to these entities. There are multiple issues with this as this article attempts at pointing out.

We analyzed 5 English language newspapers daily for 2 weeks from March 12^th to 26^th, one week of the newspapers in Lucknow and the second week in Bangalore. Facebook, Twitter, Instagram and Alphabet backed services such as Youtube and Google Plus were part of our survey. Of a total of 33 advertisements (14 in Lucknow+19 in Bangalore), Twitter stands out as the most prominent advertising platform used by government agencies with 30 ads but Facebook at 29 was more expensive. In order to ascertain the rates of publicity, current advertisement rates for Times of India as our purpose was to solely give a rough estimation of how much the government is spending.

Advertising of this nature is not merely an inherent problem of favoring some social media companies over others but also symptomatic of a bigger problem, the lack of our native e-governance mechanisms which cause the Government to rely and promote others. Where we do have guidelines they are not being followed. By outsourcing their e-governance platforms to Twitter such as TwitterSeva, a feature created by the Twitter India team to help citizens connect better with government services, there is less of an impetus to construct better websites of their own.

If this is so because we currently do not have the capacity to build them ourselves then it is imperative that this changes. We should either be executing government functions on digital infrastructure owned by them or on open and interoperable systems. If anything, the surveyed social media platforms can be used to enhance pre-existing facilities. However, currently the converse is true with these platforms overshadowing the presence of e-governance websites. Officials have started responding to complaints on Twitter, diluting the significance of such complaint mechanisms on their respective department’s portal. Often enough such features are not available on the relevant government website. This sets a dangerous precedent for a citizen management system as the records of such interactions are then in the hands of these companies who may not exist in the future. As a result, they can control the access to such records or worse tamper with them. Posterity and reliability of such data can be ensured only if they are stored within the Government’s reach or if they are open and public with a first copy stored on Government records which ensures transparency as well. Data portability is an important facet to this issue as well as being a right consumers should possess. It provides for support of many devices, transition to alternative technologies and lastly, makes sure that all the data like other public records will be available upon request through the Right to Information procedure. The last is vital to uphold the spirit of transparency envisioned through the RTI process since interactions of government with citizens are then under its ambit and available for disclosure for whomsoever concerned.

Secondly, such practices by the Government are enhancing the monopoly of the companies in the market effectively discouraging competition and eventually, innovation. While a certain elite strata of the population might opt for Twitter or Facebook as their mode of conveying grievance, this may not hold true for the rest of the online India population.

Picking players in a free market is in violation of technology and vendor neutrality, a practice essential in e-governance to provide a level playing field for all and competing technologies. Projecting only a few platforms as de facto mediums of communication with the government inhibits the freedom of choice of citizens to air their grievances through a vendor or technology they are comfortable with. At the same time it makes the Government a mouthpiece for such companies who are gaining free publicity and consolidating their popularity. Government apps such as the SwachBharat one which is an e-governance platform do not offer much more in terms of functionality but either reflect the website or are a less mature version of the same. This leads to the problem of fracturing with many avenues of complaining such as the website, app, Twitter etc. Consequently, the priority of the people dealing with the complaints in terms of platform of response is unsure. Will I be responded to sooner if I tweet a complaint as opposed to putting it up on the app? Having an interoperable system can solve this where the Government can have a dashboard of their various complaints and responses are then made out evenly. Twitter itself could implement this by having complaints from Facebook for example and then the Twitter Seva would be an equal platform as opposed to the current issue where only they are favored.

Recent events have illustrated how detrimental the storage of data by these giants can be in terms of privacy. Data security concerns are also a consequence of such leaks. Not only is this a long overdue call for a better data protection law but at the same time also for the Government to realize that these platforms cannot be trusted. The hiring of Cambridge Analytica to influence voters in the US elections, based on their Facebook profiles and ancillary data, effectively put the governance of the country on sale by exploiting these privacy and security issues. By basing e-governance on their backbone, India is not far from inviting trouble as well. It is unnecessary and dangerous to have a go-between for matters that pertain between an individual and state.

As this article was being written, it was confirmed by the Election Commission that they are partnering with Facebook for the Karnataka Assemby Elections to promote activities such as encourage enrollment of Voter ID and voter participation. Initiatives like these tying the government even closer to these companies are of concern and cementing the latter’s stronghold.

Note: Our survey data and results are attached to this post. All research was collected by Shradha Nigam, a Vth year student at NLSIU, Bangalore.

Survey Data and Results

This report is based on a survey of government advertisements in English language newspapers in relation to their use of social media platforms and dedicated websites (“Survey”). For the purpose of this report, the ambit of the social media platforms has been limited to the use of Facebook, Twitter, YouTube, Google Plus and Instagram. The report was prepared by Shradha Nigam, a student from National Law School of India University, Bangalore. Read the full report here.

For more details visit https://cis-india.org/internet-governance/blog/government-giving-free-publicity-worth-40-k-to-twitter-and-facebook

Google Policy Fellowship Program: Asia Chapter

praskrishna — 2011-08-02T07:34:24Z

For the ardent followers of free and open Internet and for those who love to debate on technology, media law and Internet-related policy issues, there is some good news. The Centre for Internet and Society, India is conducting a Google Policy Fellowship program this summer!

Offered for the first time in Asia Pacific, the Google Policy Fellowship offers successful applicants the opportunity to develop research and debate on issues relating to freedom of expression for a minimum of ten weeks from June to August 2011. The applicants will be selected in Australia, India and Hong Kong respectively.

The Centre for Internet and Society will select the India Fellow, and is accepting applications for the position before March 27, 2011. Google is providing a USD 7,500 stipend to the India Fellow, who will be selected by April 18, 2011.

To apply, please send to google.fellowship@cis-india.org the following materials:

Statement of Purpose: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).
Resume
Three references

More information about the focus of the work that the Google Policy Fellow will take on is described below1. More information about the Google Policy Fellowship program is available in the FAQ2.

Research Agenda Outline

The research proposals, and the fellowship itself, are to be anchored in the reality of the growing threat to civil liberties in cyberspace, with the consequent curbs on free expression that arise. The aim of the research is to chart out a comprehensive map of the legal and policy frameworks relating to free expression within the Asia-Pacific region and also examine people’s attitudes and ground-level movements relating to the same. This second component will necessarily involve some amount of empirical research: the fellows across different regions (for 2011, there will be fellows from India, Australia and Hong Kong) will be expected to use a survey on similar lines, so that the results could be adequately contrasted.

The research would involve but not necessarily be limited to the following areas:

Understanding Dissent

This component would involve looking at how dissent is negotiated in the region by the legal system and the ways in which governments seek to stifle and control online dissent. Specific points of interrogation would include:

The extent to which the constitution and other laws in the region protect freedom of expression and the extent to which they are enforced.
Judicial decisions relating to free expression, censorship and dissent. Have they examined how speech and other activities on the Internet should be afforded free speech protection?
The kind of material deemed objectionable and subject to censorship and/or penalization.
The kind of penalties placed on writers, commentators and bloggers for posting objectionable materials on the Internet.
Understanding the economic environment in which free expression operates: chains of media ownership, state restrictions on the means of journalistic production and distribution, and the levels of state control through allocation of advertising or subsidies would be part of this question.
Further, what are the laws relating to encryption and telecom security, as well as to intermediary liability, and how do they affect free expression?

Understanding Free Expression

To be examined here is the question of how freedom of expression is perceived by people. What is the extent to which people believe the right is available to them — as balanced by conceivably conflicting rights such as privacy?

One part of proceeding on this would be to track a set of activist bloggers, gauging their take on various issues.
Another part would include tracking public opinion through comments pages on articles relating to free speech issues; taking a survey or coordinating focus group research. However, this is by no means the most reliable way to gauge the same and is, in particular, one area that will require an appropriate methodology to be developed by the fellows in consultation with the partner organizations.

Both these components are essential in being able to proceed with the third aspect, mentioned below.

Understanding and Facilitating Movements

This final aspect will involve looking at how free expression advocates come together, or fail to do so.

Is there a defined activist community in the region?
If not, what are the possible reasons behind failure of collaboration or organization? Have there been attempts towards the same?

Frequently Asked Questions

What is the Google Policy Fellowship program?

The Google Policy Fellowship program offers students interested in Internet and technology related policy issues with an opportunity to spend their summer working on these issues at the Centre for Internet and Society at Bangalore. Students will work for a period of ten weeks starting from June 2011. The research agenda for the program is based on legal and policy frameworks in the region connected to the ground-level perception of free expression.
Applications for the Fellowship should carry these:

Statement of Purpose: A brief write-up outlining about your interest and qualifications for the programme including the relevant academic, professional and extracurricular experiences. As part of the write-up, also explain on what you hope to gain from participation in the programme and what research work concerning free expression online you would like to further through this programme. (About 1200 words max).
Resume
Three references

Important Dates
What is the program timeline?

March 27, 2011:	Student application deadline; applications must be received by midnight 00:00 GMT.
April 18, 2011:	Student applicants are notified of the status of their applications.
June 2011:	Students begin their fellowship with the host organization (start date to be determined by students and the host organization); Google issues initial student stipends.
July 2011:	Mid-term evaluations; Google issues mid-term stipends.
August 2011:	Final evaluations; Google issues final stipends.

EligibilityI am an International student can I apply and participate in the program?

Are there any age restrictions on participating?

Yes. You must be 18 years of age or older by 1 January 2011 to be eligible to participate in Google Policy Fellowship program in 2011.

Are there citizenship requirements for the Fellowship?

For the time being, we are only accepting students eligible to work in India (e.g. Indian citizens, permanent residents of India, and individuals presently holding an Indian student visa. Google cannot provide guidance or assistance on obtaining the necessary documentation to meet the criteria.

Who is eligible to participate as a student in Google Policy Fellowship program?

In order to participate in the program, you must be a student. Google defines a student as an individual enrolled in or accepted into an accredited institution including (but not necessarily limited to) colleges, universities, masters programs, PhD programs and undergraduate programs. Eligibility is based on enrollment in an accredited university by 1 January 2011.

I am an International student can I apply and participate in the program?

In order to participate in the program, you must be a student (see Google's definition of a student above). You must also be eligible to work in India (see section on citizen requirements for fellowship above). Google cannot provide guidance or assistance on obtaining the necessary documentation to meet this criterion.

I have been accepted into an accredited post-secondary school program, but have not yet begun attending. Can I still take part in the program?

As long as you are enrolled in a college or university program as of 1 January 2011, you are eligible to participate in the program.

I graduate in the middle of the program. Can I still participate?

As long as you are enrolled in a college or university program as of 1 January 2011, you are eligible to participate in the program.

Payments, Forms, and Other Administrative Stuff

How do payments work*?

Google will provide a stipend of USD 7,500 equivalent to each Fellow for the summer.

Accepted students in good standing with their host organization will receive a USD 2,500 stipend payable shortly after they begin the Fellowship in June 2011.
Students who receive passing mid-term evaluations by their host organization will receive a USD 1,500 stipend shortly after the mid-term evaluation in July 2011.
Students who receive passing final evaluations by their host organization and who have submitted their final program evaluations will receive a USD 3,500 stipend shortly after final evaluations in August 2011.

Please note: Payments will be made by electronic bank transfer, and are contingent upon satisfactory evaluations by the host organization, completion of all required enrollment and other forms. Fellows are responsible for payment of any taxes associated with their receipt of the Fellowship stipend.

*While the three step payment structure given here corresponds to the one in the United States, disbursement of the amount may be altered as felt necessary.

What documentation is required from students?

Students should be prepared, upon request, to provide Google or the host organization with transcripts from their accredited institution as proof of enrollment or admission status. Transcripts do not need to be official (photo copy of original will be sufficient).

I would like to use the work I did for my Google Policy Fellowship to obtain course credit from my university. Is this acceptable?

Yes. If you need documentation from Google to provide to your school for course credit, you can contact Google. We will not provide documentation until we have received a final evaluation from your mentoring organization.

Host Organizations

What is Google's relationship with the Centre for Internet and Society?

Google provides the funding and administrative support for individual fellows directly. Google and the Centre for Internet and Society are not partners or affiliates. The Centre for Internet and Society does not represent the views or opinions of Google and cannot bind Google legally.

For more details visit https://cis-india.org/internet-governance/blog/google-policy-fellowship

Global Accessibility Awareness Day 2017

praskrishna — 2017-05-16T05:51:45Z

The Centre for Internet & Society along with Prakat Solutions and Mitra Jyothi is co-hosting the Global Accessibility Awareness Day in Bengaluru on May 18, 2017.

Global Accessibility Awareness Day is celebrated across the world on the 3rd Thursday in May every year to create an awareness in making technology accessible and usable by persons with disabilities. While people may be interested in the topic of making technology accessible and inclusive, the reality is that they often do not know how or where to start, Awareness comes first.

The purpose of GAAD is to get everyone talking, thinking and learning about digital (web, software, mobile, etc.) access/inclusion and people with different disabilities.

To mark this day, Prakat Solutions will be hosting an event filled with lightning talks, workshops and a lot of other activities. You can also view a series of short videos about why accessibility is important with contributions from some of the greatest minds in accessibility today.For us as a company, Global Accessibility Awareness Day is quite special. Other awareness days that we participate in focus on a specific group of people. Today, is not about a specific group of people, today is about each and every one of us.

Watch the Video on What is GAAD

For more details visit https://cis-india.org/accessibility/events/global-accessibility-awareness-day-2017

Future of the Commons: A Conversation on Artificial Intelligence, Indian Languages, and Archives Conference Report

Soni Wadhwa, Puthiya Purayil Sneha, Garima Agrawal and Nishant Shankar — 2024-08-06T03:24:53Z

We are pleased to share our report on the ‘Future of the Commons: A Conversation on Artificial Intelligence, Indian Languages, and Archives’ conference, held in July 2024 at the Maharashtra Knowledge Corporation Limited (MKCL) in Pune.

Organized by the Centre for Internet and Society, Bengaluru, and MKCL, the conference explored the development of localized or Indic generative AI models, state of digital commons, and the role of public institutions such as archives and digitization movements. It featured a mix of panel discussions, roundtables, and workshops, providing a platform for policymakers, civil society organizations, academia, researchers, technologists, archivists, and creative practitioners to exchange views and collaborate. The keynote address by P. Sainath, founder of the People's Archive of Rural India (PARI), dwelled on the importance of digitization and archives in India. He emphasized the role of human translators in maintaining the authenticity of stories and the socio-political implications of digitalization on low-resource languages.

The themes discussed at the conference included:

Ongoing Efforts and Innovations in AI:

Current state of research and development of localized generative AI systems.
Use-cases of generative AI products in Indian languages.
Challenges with the availability of training datasets and dependency on big tech.
Open-source development of generative AI models.

Development and Use of Digital Commons:

Digitizing, preserving, and using knowledge and cultural heritage for training AI models.
Practices and challenges in archives and digitization movements, especially in Indian languages.
Role of open knowledge movements and GLAM (Galleries, Libraries, Archives, and Museums) institutions.

Future of AI, including LLMs, in Indian Languages:

Designing AI systems that contribute to the digital commons.
Incentivizing expansion, foregrounding diversity, and safeguarding digital commons.
Role of law, policy, ethics, and algorithmic justice.

The conference concluded with participants emphasizing the need for multidisciplinary collaboration, fostering trust in AI applications, and importance of democratization of technology and data.

We invite you to read the full report for a comprehensive view of the discussions and recommendations that emerged.

If you would like to participate in further discussions on this topic, please write to us at anubha@cis-india.org.

For more details visit https://cis-india.org/raw/report-on-the-future-of-the-commons

Fueling the Affordable Smartphone Revolution in India

sinha — 2016-03-16T15:23:43Z

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

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

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

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

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

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

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

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

Creating an Enabling Legal Framework to Foster Access to Knowledge

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

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

Hardware Technologies and Their Relationship with IP Law

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

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

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

Software Technologies and Their Relationship with IP Law

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

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

Effective Innovation Systems

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

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

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

Conclusion

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

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

References / Links / Resources

Benkler, Y. (2006). The Wealth Of Networks: How Social Production Transforms Markets And Freedom. Retrieved from http://www.benkler.org/wealth_of_networks/index.php?title=Chapter_9%2C_section_3.
Cassar, S. (2014). Interviews with App Developers: Open Source, Community, and Contradictions – Part III. Retrieved from: http://cis-india.org/a2k/blogs/interviews-with-app-developers-open-sourcecommunity-and-contradictions-iii
Cassar, S. (2014) Ambiguity in the App Store: Understanding India’s emerging IT sector in light of IP. Retrieved from http://cis-india.org/a2k/blogs/ambiguity-in-the-app-store
Centre for Internet and Society, Pervasive Technologies: Access to Knowledge in the Marketplace(2012, September). Retrieved from http://cis-india.org/a2k/pervasive-technologies-research-proposal.pdf/view
Guynn, J. (2015, September 28). Facebook, Silicon Valley like Indian Prime Minister Narendra Modi. Retrieved from http://www.usatoday.com/story/tech/2015/09/27/narendra-modi-india-facebook-markzuckerberg-google-sundar-pichai-silicon-valley/72936544/
Huang, M. (2014). [Open] Innovation and Expertise > Patent Protection & Trolls in a Broken Patent Regime (Interviews with Semiconductor Industry - Part 3). Retrieved from: http://cis-india.org/a2k/blogs/ interviews-with-semi-conductor-industry-part-3
IAMAI (2015). An inquiry into India's app economy.
Kapczynski, A., Krikorian, G., (2010). Access to Knowledge in the Age of Intellectual Property. Retrieved from: https://mitpress.mit.edu/sites/default/files/titles/free_download/9781890951962_Access_to_ Knowledge_in_the_Age_of_Intellectual_Property.pdf
Lakshane, R. (2015, September). FAQ: CIS Proposal for Compulsory Licensing of Critical Mobile Technologies. Retrieved from: http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-ofcritical-mobile-technologies
Lakshane, R. (2015, February). Open Letter to Prime Minister Modi. Retrieved from: http://cis-india.org/ a2k/blogs/open-letter-to-prime-minister-modi
Lapowsky, I. (2015, February). If You Want to Fix Software Patents, Eliminate Software Patents. Retrieved from https://www.eff.org/mention/follow-wired-twitter-facebook-rss-eff-if-you-want-fix-software-patentseliminate-software
Meeker, M. (2015). 2015 Internet Trends. Retrieved from http://www.kpcb.com/partner/mary-meeker
PTI (2015). Google aims to make India a hub for app development. Livemint. Retrieved from: http:// www.livemint.com/Industry/rwWUfp30YezONe0WnM1TIO/Google-aims-to-make-India-a-hub-for-appdevelopment.html
Qualcomm Enters Into CDMA Modem Card License Agreement with Seiko Instruments Incorporated. (n.d.). Retrieved November 13, 2015, from https://www.qualcomm.com/news/releases/2000/06/20/ qualcomm-enters-cdma-modem-card-license-agreement-seiko-instruments
Shapiro, C. (2001). Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting. Innovation Policy and the Economy, 1, 119-150. Retrieved from: http://www.nber.org/chapters/c10778.pdf
Shaver, L. (2007). Defining and Measuring Access to Knowledge: Towards an A2K Index. Faculty Scholarship Series. Paper 22. retrieved from: http://digitalcommons.law.yale.edu/fss_papers/22
Sinha, A. (2015). Comments on the Guidelines for Examination of Computer Related Inventions (CRIs). Retrieved from http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computerrelated-inventions-cris
United Nations Development Programme, Human Development Report 2001: Making New Technologies Work for Human Development (2001). Retrieved from http://hdr.undp.org/reports/global/2001/en/
World Intellectual Property Organisation. (2010, Dec 1-2). Media Piracy in Emerging Economies: Price, Market Structure and Consumer Behavior. Retrieved from the WIPO website: http://www.wipo.int/edocs/ mdocs/enforcement/en/wipo_ace_6/wipo_ace_6_5.pdf

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