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IFAT and ITF - Locking Down the Impact of Covid-19
https://cis-india.org/raw/ifat-itf-locking-down-the-impact-of-covid-19
<b>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.</b>
<p> </p>
<h4>Report: <a href="https://cis-india.org/raw/files/ifat-itf-locking-down-the-impact-of-covid-19-report/" target="_blank">Download</a> (PDF)</h4>
<h4>Press Release: <a href="https://cis-india.org/raw/files/ifat-itf-locking-down-the-impact-of-covid-19-press-release/" target="_blank">Download</a> (PDF)</h4>
<hr />
<h3>Press Release, 17 September, 2020</h3>
<p><br />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.</p>
<p>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:</p>
<ul>
<li>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.<br /><br /></li>
<li>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.<br /><br /></li>
<li>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.<br /><br /></li>
<li>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.<br /><br /></li>
<li>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.<br /><br /></li>
<li>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.<br /><br /></li>
<li>2716 respondents from 19 states across gig platforms articulated their support for a peaceful demonstration against company practices.<br /><br /></li>
<li>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.</li>
</ul>
<p>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:</p>
<ul>
<li>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;<br /><br /></li>
<li>Adequate protective equipment and health insurance cover to all drivers must be provided;<br /><br /></li>
<li>There must be increased transparency in disbursement process of funds, and in the criteria for selection of beneficiaries;<br /><br /></li>
<li>Compounded interest must be waived on EMIs for the 3 months of moratorium on loan repayment.</li>
</ul>
<p>Hear our voices and address our demands.</p>
<p><br /><em>Shaik Salauddin</em></p>
<p>National General Secretary, Indian Federation of App-based Transport Workers (IFAT)</p>
<p>Phone: +91 96424 24799</p>
<p><br /><strong>Indian Federation of App-based Transport Workers</strong></p>
<p>Facebook: <a href="https://www.facebook.com/watch/connectifat/" target="_blank">www.facebook.com/watch/connectifat/</a></p>
<p>Twitter: <a href="https://www.twitter.com/connect_ifat" target="_blank">www.twitter.com/connect_ifat</a></p>
<p>YouTube: <a href="https://www.youtube.com/channel/UCA1AxGq0Fb_A_O_Ey44eiPg" target="_blank">www.youtube.com/channel/UCA1AxGq0Fb_A_O_Ey44eiPg</a></p>
<p>
For more details visit <a href='https://cis-india.org/raw/ifat-itf-locking-down-the-impact-of-covid-19'>https://cis-india.org/raw/ifat-itf-locking-down-the-impact-of-covid-19</a>
</p>
No publisherIndian Federation of App-based Transport Workers (IFAT) and International Transport Workers’ Federation (ITF), New Delhi officeDigital EconomyResearchers at WorkDigital LabourCovid19ResearchPlatform-WorkFeaturedHomepage2021-06-29T07:27:09ZBlog EntryEconomic, Social and Cultural Rights in India: Opportunities for Advocacy in Intellectual Property
https://cis-india.org/openness/apc-april-23-2017-sunil-abraham-and-vidushi-marda-economic-social-and-cultural-rights-in-india
<b>Centre for Internet & Society worked on a three part case study. The first case study on digital protection of traditional knowledge was published by GIS Watch in December 2016. The other two case studies along with the synthesis overview has also been published.</b>
<p style="text-align: justify; ">The rights established in the International Covenant on Economic, Social and Cultural Rights (ICESCR) are socioeconomic rights and are easily mapped onto rights to education, work, science and culture. These rights, however, are not as easily mapped onto intellectual property rights. This three-part case study contemplates the ICESCR through aspects of intellectual property in India, namely, mobile patents, free and open source software (FOSS), and India’s Traditional Knowledge Digital Library. Through these, it demonstrates the potential of these technologies in realising ESCRs.</p>
<p style="text-align: justify; ">A distinguishing factor of the ICESCR is the emphasis on the progressive realisation of rights within the Covenant, which indicates the necessity of parties to take steps for the realisation of ESCRs to the best of their ability given the resources available, with a view to fully realising these rights in the long term. This is particularly relevant in India, where the large population and scarcity of resources require gradual realisation and sustained planning. This case study advocates for the progressive realisation of the rights outlined below, and sheds light on the current state of progress in India, as well as providing an overview of the framework within which these rights will be realised.</p>
<p style="text-align: justify; ">Although these three case studies focus on distinct areas – mobile patents, FOSS and open standards, and traditional knowledge – they can also be understood as tied together through the central theme of a mobile phone. The first case study on mobile patents deals with the hardware of the phone, the second deals with the software in discussing open software and standards, and the third case study on traditional knowledge focuses on the person holding the phone who consumes information-embedded products such as traditional foods and medicines.</p>
<hr />
<ul>
<li><a class="external-link" href="http://cis-india.org/openness/files/economic-social-and-cultural-rights-in-india">Synthesis Overview</a></li>
<li><a class="external-link" href="http://cis-india.org/openness/files/economic-social-and-cultural-rights-in-india-opportunities-for-advocacy-in-intellectual-property-rights-access-to-mobile-technology">Access to Mobile Technology</a></li>
<li><a class="external-link" href="http://cis-india.org/openness/files/economic-social-and-cultural-rights-in-india-opportunities-for-advocacy-in-intellectual-property-rights-the-traditional-knowledge-digital-library">Traditional Knowledge Digital Library</a><a class="external-link" href="http://cis-india.org/openness/files/economic-social-and-cultural-rights-in-india-foss/"><span class="external-link"></span></a></li>
<li><a class="external-link" href="http://cis-india.org/openness/files/economic-social-and-cultural-rights-in-india-foss/">FOSS and Open Standards</a></li>
</ul>
<p style="text-align: justify; "><i><br />The report on digital protection of traditional knowledge was <a class="external-link" href="https://www.giswatch.org/sites/default/files/Giswatch2016_web.pdf">published by GIS Watch</a> earlier and the rest of the reports have been published by the <a class="external-link" href="https://www.apc.org/en/pubs/economic-social-and-cultural-rights-india-opportun">Association for Progressive Communications</a></i>.</p>
<p>
For more details visit <a href='https://cis-india.org/openness/apc-april-23-2017-sunil-abraham-and-vidushi-marda-economic-social-and-cultural-rights-in-india'>https://cis-india.org/openness/apc-april-23-2017-sunil-abraham-and-vidushi-marda-economic-social-and-cultural-rights-in-india</a>
</p>
No publisherSunil Abraham and Vidushi MardaOpennessFeaturedFOSSHomepage2017-04-23T05:22:01ZBlog EntryAlt needs to Shift
https://cis-india.org/raw/digital-humanities/indian-express-nov-18-2012-nishant-shah-alt-needs-to-shift
<b>People maybe talking more online, but they all seem to be talking about the same kind of thing.</b>
<hr />
<p style="text-align: center; ">Nishant Shah's column was <a class="external-link" href="http://www.indianexpress.com/news/alt-needs-to-shift/1031583/0">published in the Indian Express</a> on November 18, 2012.</p>
<hr />
<p style="text-align: justify; ">If you were to recount what has happened in the world, based entirely on your tweetosphere and Facebook timelines, you might realise that everything important seems to have happened elsewhere. It is true that we live in a widely connected viral world, where if the USA sneezes, India gets a flu, but it seems as if lately, the things that I hear and read about are generally things that happen only at a global level. More surprisingly, most of the news that trends on Twitter, gets promoted on Facebook, and discussed on Google Plus, is in sync with what is being reported in mainstream media.</p>
<p style="text-align: justify; ">Of course, the voices are different. People have found a space for their opinions. There are strong critiques and alternative viewpoints around these events which are finding space in the public domain.</p>
<p style="text-align: justify; ">Much like the salons and cafes of the 18th century, which saw a whole range of new educated classes coming into the public to discuss and shape the society they lived in, the digital commons have created new public spaces of expression and discussion. This has been, indeed, one of the visions of the social web and we have reached a point where, at least for digital natives who have grown up within digital ecosystems, there is space to produce alternative opinions in their immediate environments.</p>
<p style="text-align: justify; ">At the turn of the millennium, when the social Web was being shaped, this was one of the biggest excitements — the possibility that voices from outside of mainstream and traditional media, which often get curtailed, would find contestations and alternative visions from people’s everyday experiences. And in many ways, it looks like we have achieved this dream, and found channels, communities and information strategies, which allow for conflicting views to co-exist in our knowledge spectrum. It is fascinating to realise that just a decade ago, the ways in which we talked about the key questions of our life, was so different, and was largely controlled by those in positions of power who identified only certain things as “newsworthy”.</p>
<p style="text-align: justify; ">Traditional media has also changed dramatically, with citizen reporters contributing to the content, crowdfunded information shaping news, and ordinary people being the first to witness globally significant events before the larger media complexes arrived. And now that we are well on our way to harnessing the power of this social web, there is something else that needs to be addressed.</p>
<p style="text-align: justify; ">It is the concern that increasingly people are talking more, but they seem to be talking about the same kind of thing! Sure, there are many different voices, but their focus of attention is the same. We see a whole range of alternative opinions emerging, but they are still clustered around the things that traditional media is also covering.</p>
<p style="text-align: justify; ">In the age of information overload, with so many different information streams, it feels like there is a homogenisation of information where increasingly only that which can be easily understood, easily read, easily captured to create spectacles gets to be at the centre of the attention economies. Which is why, news which is local, things which do not have global interest, and events which cannot be captured in videos on YouTube and hashtags on Twitter, do not feature in the alternative worlds of the social web. And when these locally relevant and significant things get mentioned, they have to work so much harder, to overcome the visibility threshold to get attention from the local publics.</p>
<p style="text-align: justify; ">We have found the alternative to the mainstream, but maybe it is now time to find the alternative to the alternative. We need to think of localisation of our social web. A lot of effort is made towards being on the global information highway, but we now also need to start investing energy into rendering our local contexts more accessible and intelligible, not only to the larger worlds but also to ourselves. Maybe it is time to reflect on how much we posted, read and consumed of the recent presidential elections in the USA, and try to recollect what else happened in the world. Maybe it is time to step out of our silos where we have replaced multiplicity of things with diversity of opinions about a narrow range of things. The next time you see something trending or popular, it might be a good idea to reflect on what else might be hiding behind the virality of that digital object.</p>
<p style="text-align: justify; ">This column was informed by conversations from a thought exploration on ‘Habits of Living’ supported by Brown University and Centre for Internet and Society Bangalore</p>
<p>
For more details visit <a href='https://cis-india.org/raw/digital-humanities/indian-express-nov-18-2012-nishant-shah-alt-needs-to-shift'>https://cis-india.org/raw/digital-humanities/indian-express-nov-18-2012-nishant-shah-alt-needs-to-shift</a>
</p>
No publishernishantFeaturedResearchers at WorkDigital Humanities2012-12-14T10:03:30ZBlog EntryA Question of Digital Humanities
https://cis-india.org/raw/a-question-of-digital-humanities
<b>An extended survey of digital initiatives in arts and humanities practices in India was undertaken during the last year. Provocatively called 'mapping digital humanities in India', this enquiry began with the term 'digital humanities' itself, as a 'found' name for which one needs to excavate some meaning, context, and location in India at the present moment. Instead of importing this term to describe practices taking place in this country - especially when the term itself is relatively unstable and undefined even in the Anglo-American context - what I chose to do was to take a few steps back, and outline a few questions/conflicts that the digital practitioners in arts and humanities disciplines are grappling with. The final report of this study will be published serially. This is the second among seven sections. </b>
<p> </p>
<h2>Sections</h2>
<p>01. <a href="http://cis-india.org/raw/digital-humanities-in-india">Digital Humanities in India?</a></p>
<p>02. <strong>A Question of Digital Humanities</strong></p>
<p>03. <a href="http://cis-india.org/raw/reading-from-a-distance-data-as-text">Reading from a Distance – Data as Text</a></p>
<p>04. <a href="http://cis-india.org/raw/the-infrastructure-turn-in-the-humanities">The Infrastructure Turn in the Humanities</a></p>
<p>05. <a href="http://cis-india.org/raw/living-in-the-archival-moment">Living in the Archival Moment</a></p>
<p>06. <a href="http://cis-india.org/raw/new-modes-and-sites-of-humanities-practice">New Modes and Sites of Humanities Practice</a></p>
<p>07. <a href="http://cis-india.org/raw/digital-humanities-in-india-concluding-thoughts">Digital Humanities in India – Concluding Thoughts</a></p>
<hr />
<p>The 'digital turn' has been one of the significant changes in interdisciplinary research and scholarship in the last couple of decades. The advent of new digital technologies and growth of networked environments have led to a rethinking of the traditional processes of knowledge gathering and production, across an array of fields and disciplinary areas. DH has emerged as yet another manifestation of what in essence is this changing relationship between technologies and the human being or subject. The nature and processes of information, scholarship and learning, now produced or mediated by digital tools, methods or spaces have formed the crux of the DH discourse as it has emerged in different parts of the world so far. It has been variously called a phenomenon, field, discipline and a set of convergent practices – all of which are located at and/or try to understand the interaction between digital technologies and humanities practice and scholarship. DH in the Anglo-American context has seen several changes – from an early phase of vast archival initiatives and digitisation projects, to now exploring the role of big data and cultural analytics in literary criticism. Some of the early scholarship in the field illustrate the problems with defining and locating it within specific disciplinary formations, as the research objects, methods and locations of DH work cut across everything from the archive to the laboratory and social networking platforms. Largely interpreted as a way to explore the intersection of information technology and humanities, DH is grown to become an interdisciplinary field of research and practice today. However, DH is also clearly being posited as a site of contestation – what is perceived as doing away with or reinventing certain norms of traditional humanities research and scholarship. As a result it has largely been framed within the existing narrative of a crisis in the humanities, highlighting the more prominent role of technology which is now expected to resolve in some way questions of relevance and authority that seem to have become central to the continued existence and practice of the humanities in its conventional forms.</p>
<p> </p>
<h2>The Problem of Definition</h2>
<p>The question of what is DH has been asked many times, and in different ways. Most scholars have differentiated between two waves or types of DH – the first is that of using computational tools to do traditional humanities research, while the second looks at the 'digital' itself as integral to humanistic enquiry <strong>[1]</strong>. However as is apparent in the existing discourse, the problem of definition still persists. As a field, method or practice, is it a found term that has now been appropriated in various forms and by various disciplines, or is it helping us reconfigure questions of the humanities by making available, through advancements in technology, a new digital object or a domain of enquiry that previously was unavailable to us? These and others will continue to remain questions <em>for</em> the digital humanities, but it would be important to first examine what would be the question/s <em>of</em> digital humanities. Dave Parry summarises to some extent these different contentions to a definition of the field when he suggests that "what is at stake here is not the object of study or even epistemology, but rather ontology. The digital changes what it means to be human, and by extension what it means to study the humanities." (Parry 2012)</p>
<p>Some speculation on the larger premise of the field, with specific reference to its emergence in India is what I hope to chart out in this report. This is not in itself an attempt at a definition, but sketching out a domain of enquiry by mapping the field with respect to work being done in the Indian context. In doing so these propositions will assume one or the other (if not all three) of these following suggested threads or modes of thought, which will also inform larger concerns of the DH work at CIS:</p>
<ol>
<li>The first is the inherited separation of technology and the humanities and therefore the existing tenuous relationship between the two fields. As is apparent in the nomenclature itself, there seems to be a bringing together of what seem to have been essentially two separate domains of knowledge. However, the humanities and technology have a rather chequered history together, which one could locate with the beginning of print culture. As Adrian Johns points out in the <em>Nature of the book</em>, "any printed book is, as a matter of fact, both the product of one complex set of social and technological processes and the beginning of another" (Johns 1998:3). The larger imagination of humanities as text-based disciplines can be located in a sense in the rise of printing, literacy and textual scholarship. While the book itself seems to have made a comfortable transition into the digital realm, the process of this transition, the channels of circulation and distribution of information as objects of study have been relegated to certain disciplinary concerns, thus obfuscating and making invisible this 'technologised history' of the humanities. Can DH therefore be an attempt to uncover such a history and bridge these knowledge gaps would be a question here?<br />
<br /></li>
<li>The distance between the practice and the subject. How does one identify with DH practice? While many people engage with what seem to be core DH concerns, they are not all 'digital humanists' or do not identify themselves by the term. While at one level the problem is still that of definition and taxonomy – what is or is not DH – at another level it is also about the nature of subjectivity produced in such practice – whether it has one of its own or is still entrenched in other disciplinary formations, as is the case with most DH research today. This is apparent in the emphasis on processes and tools in DH– where the practice or method seems to have emerged before the theoretical or epistemological framework. One may also connect this to the larger discourse on the emergence of the techno-social subject <strong>[2]</strong> as an identity meditated by digital and new media technologies, wherein technology is central to the practices that engender this subjectivity.<br />
<br /></li>
<li>Tying back to the first question is also the notion of a conflict between the humanities and DH. This comes with the perception of DH being a version 2.0 of the traditional humanities, a result of the existing narrative of crisis and the need for the humanities disciplines to reinvent themselves to remain relevant in the present context, and one way to do this is by becoming amenable to the use of computing tools. DH has emerged as one way to mediate between the humanities and the changes that are imminent with digital technologies, but it may not or even need not take up the task of trying to establish a teleological connection between the two. The theoretical pursuits of both may be different but deeply related, and this is one manner of approaching DH as a field or domain of enquiry; the point of intersection or conflict would be where new questions emerge. This narrative is also located within a larger framing of DH in terms of addressing the concerns of the labour market, and the fear of the humanities being displaced or replaced as a result. Parry’s objective of studying DH works with and tries to address this particular formulation of the field.</li></ol>
<p>Locating these concerns in India, where the field of DH is still at an incipient stage comes with a multitude of questions. For one the digital divide still persists to a large extent in India, and is at different levels due to the complexity of linguistic and social conditions of technological advancement. It is difficult locate a field that is so premised on technology in such a varied context. Secondly, the existing discourse on DH still draws upon, to a large extent, the given history of the term which renders it inaccessible to certain groups or classes of people in the global South. Another issue which is not specifically Indian but can be seen more explicitly in this context is the somewhat uncritical way in which technology itself is imagined. In most spaces, technology is still understood as either ‘facilitating’ something, either a specific kind of research enquiry or as a tool - a means to an end, and as being value or culture neutral. However, if we are to imagine the digital as a condition of being as Parry says, then technology too cannot be relegated to being a means to an end. Bruno Latour indicates the same when he says "Technology is everywhere, since the term applies to a regime of enunciation, or, to put it another way, to a mode of existence, a particular form of exploring existence, a particular form of the exploration of being – in the midst of many others." (Latour 2002)</p>
<p>DH then in some sense takes us back to the notion of technology or more specifically the digital realm as being a discursive space, and a technosocial or cultural paradigm that generates new objects and methods of study. This has been the impetus of cyber culture and digital culture studies, but what separates DH from these fields is another way to arrive at some understanding of its ontological status. At a cursory glance, the shift from content to process, from information to data seems to be the key transition here, and the blurring of the boundaries between such absolute categories. More importantly however, does this point towards an epistemic shift; a rupture in the given understanding of certain knowledge formations or systems is also a pertinent question of DH.
There are several questions therefore for DH - in terms of what it means and what it could do for our understanding of the humanities and technology. However the questions of DH still need to be made explicit. This mapping exercise will attempt to explore some of the above thoughts a little further. Through discussions with scholars and practitioners across diverse fields, we will attempt to map and generate different meanings of the ‘digital’ and DH. While one can expect this to definitely produce more questions, we also hope the process of thinking though these questions will lead to an understanding of the larger field as well.</p>
<p> </p>
<h2>The Problem of the Discipline</h2>
<p>Much has been said and written about DH as an emergent field or domain of enquiry; the plethora of departments being set up all across the world, well mostly the developed world is testimony to the claimed innovative and generative potential of the field. However as outlined in the introduction the problem of definition still persists and poses much difficulty in any attempts to engage with the field. While the predominant narrative seems to be in terms of defining what DH or to take it a step back, what the ‘digital’ allows you to do, with respect to enabling or facilitating certain kinds of research and pedagogy, a pertinent question still is that of what it allows you to ‘be’. DH has been alternatively called a method, practice and field of enquiry, but scholars and practitioners in many instances have stopped short of fully embracing it as a discipline. This is an interesting development given the rapid pace of its institutionalisation - from being located in existing Humanities or Computational Sciences and Media Studies departments it has now claimed functional institutional spaces of its own, with not just interdisciplinary research and teaching but also other creative and innovative knowledge-making practices. The field is slowly gaining credence in India as well, with several institutions pursuing research around core questions within the fold of DH.</p>
<p>So is the disciplinary lens inadequate to understand this phenomenon, or is it too early for a field still considered in some ways rather incipient. The growth of the academic discipline itself is something of a fraught endeavour; as debates around the scientific revolution and Enlightenment thought have established. To put it in a very simple manner, the story of academic disciplines is that of training in reason <strong>[3]</strong>. Andrew Cutrofello says "In academia, a discipline is defined by its methodological rigor and the clear boundaries of its field of inquiry. Methods or fields are criticized as being 'fuzzy' when they are suspected of lacking a discipline. In a more straightforwardly Foucauldian sense, the disciplinary power of academic disciplines can be located in their methods for producing docile bodies of different sorts" (Cutrofello 1994). The problem with defining DH may lie in it not conforming to precisely this notion of the academic discipline, and changing ideas of the function of critique when mediated by the digital, which is of primary concern for the humanities. DH has in many spaces also emerged as a manifestation of increasing interdisciplinarity and the blurring of boundaries between traditional disciplinary concerns.</p>
<p>However a prevalent mode of understanding DH has been in terms of the disciplinary concerns it raises for the humanities themselves; this works with the assumption that it is in fact a newer, improved version or extension of the humanities. The present mapping exercise too began with the disciplinary lens, but instead of enquiring about what DH is, it tried to explore what the ‘digital’ has brought to, changed or appropriated in terms of existing disciplinary concerns within the humanities and more broadly spaces and process of knowledge-making and dissemination. This thought stems from the premise that if we have to posit the digital itself as a state of being or existence, then we need to understand this new techno-social paradigm much better. Prof. Amlan Dasgupta, at the School of Cultural Texts and Records at Jadavpur University in Kolkata sees this as useful way of going about the problem of trying to arrive at a definition of the field – one is to understand the history of the term, from its inherited definition in the Anglo-American context, and distinguish it from what he calls the current state of ‘digitality’ – where all cultural objects are being now being conceived of as ‘digital’ objects. In the Indian context, the question of digitality also becomes important from the perspective of technological obsolescence - where there is a great resistance to discontinuing or phasing out the use of certain kinds of technology; either for lack of access to better ones or simply because one finds other uses for it. Prof. Dasgupta interestingly terms this a ‘culture of reuse’, one example of this being the typewriter which for all practical purposes has been displaced by the computer, but still finds favour with several people in their everyday lives. The question of livelihood is still connected to some of these technologies, so much so that they are very much a part of channels of cultural production and circulation, and even when they cease to become useful they have value as cultural artefacts. We therefore inhabit at the same time, different worlds, that of the analogue and digital, or as he calls it 'a multi-layered technological sphere'. The notion of the 'digital' is also multi-layered, with some objects being 'weakly digital', and others being so in a more pronounced manner. The variedness of this space, and the complexities or ‘degrees of use’ of certain technologies or technological objects is what further determines the nature of this space and makes it all the more difficult to define. DH itself has seen several phases in the West, but has seen no such movement or gradual evolution in India, where these phases exist simultaneously.</p>
<p>This is also true of most technology in underdeveloped world. This further complicates the questions of access to technology or the 'digital divide' which have been and still are some of the primary approaches concerning the pervasiveness of technology, particularly in the Global South. The need of the hour therefore is to be able to distinguish between this current state of digitality that we are in, and what is meant by the ‘Digital Humanities’. It may after all be a set of methodologies rather than a subject or discipline in itself– the question is how it would help us understand the ‘digital’ itself much better, and more critically, and the new kinds of enquiries it may then facilitate about this space we now inhabit. This, Prof. Dasgupta feels would go a long way in arriving at some definition of the field.</p>
<p>One of the important points of departure, from the traditional humanities and later humanities computing as mentioned earlier, has been the blurring of boundaries between content, method and object/s of enquiry. The ‘process’ has become important, as illustrated by the iterative nature of most DH projects and the discourse itself which emphasises the 'making' and 'doing' aspects of the research as much as the content itself. Tool-building as a critical activity rather than as mere facilitation is an important part of the knowledge-making process in the field (Ramsay 2010). In conjunction with this, Dr. Moinak Biswas, at the Department of Film Studies at Jadavpur University, thinks that the biggest changes have been in terms of the collaborative nature of knowledge production, based on voluntarily sharing or creating new content through digital platforms and archives, and crucially the possibility of now imagining creative and analytical work as not separate practices, but located within a single space and time. He cites an example from film, where now with digital platforms and processes ‘image’ making and critical practice can both be combined on one platform, like the online archive Indiancine.ma <strong>[4]</strong> or the Vectors journal <strong>[5]</strong> for example, to produce new layers of meaning around existing texts. The aspect of critique is important here, given that the consistent criticism about the field has been the ambiguity of its social undertaking; its critical or political standpoint or challenge to existing theoretical paradigms. Most of the interest around the term has been in very instrumental terms, as a facilitator or enabler of certain kinds of digital practice. While the move away from computational analysis as a technique to facilitate humanities research is apparent, the disciplinary concerns here still seem to be latched onto those of the traditional humanities. Questions about the epistemological concerns of DH itself therefore remain unanswered.</p>
<p>While reiterating some of these core questions within DH, Dr. Souvik Mukherjee at the Department of English, Presidency University and Dr. Padmini Ray Murray, at the Centre for Public History, Srishti School of Art, Design and Technology, speak of the problem of locating the field in India, where work is presently only being done in a few small pockets. The lack of a precise definition, or location within an established disciplinary context are some reasons why a lot of work that could come within the ambit of DH is not being acknowledged as such; conversely it also leads to the problem of projects on digitisation or studies of digital cultures/cyber cultures being easily conflated with DH . Related to this is the absence of self-claimed ‘digital humanists’, which makes it all the more difficult to identify the boundaries of their research and practice. More importantly, the lack of an indigenous framework to theorise around questions of the digital is also an obstacle to understanding what the field entails and the many possibilities it may offer in the Indian context. This they feel is a problem not just of DH, but in general for modes of knowledge production in the social sciences and humanities that have adopted Western theoretical constructs. One could also locate in some sense the present crisis in disciplines within this problem. Sundar Sarukkai and Gopal Guru explicate this issue when they talk about the absence of 'experience as an important category of the act of theorising' because of the privileging of ideas in Western constructs of experience (Guru and Sarukkai 2012). This is also reflective of the bifurcation between theory and praxis in traditional social sciences or humanities epistemological frameworks which borrow heavily from the West. DH while still to arrive at a core disciplinary concern seems to point towards the problem of this very demarcation by addressing the aspect of practice as a very focal point of its discourse.</p>
<p>Dr. Indira Chowdhury, oral historian and director of the Centre for Public History, who is also a faculty member at the Srishti School of Art, Design and Technology, Bangalore sees this as a favourable way of understanding how the field as such has emerged and what its various possibilities could be in terms of different disciplinary perspectives. She is uncertain that of its emergence as a response to a ‘crisis’ in the humanities as such. She recalls an instance of one of her students who went on to work on hypertext in Canada, several years ago, which for her seemed to be the first instance of something close to DH. The IT revolution in the early 2000s was a significant change, and there were several things that it enabled people to do, in terms of concordance, cross-referencing and getting around texts in certain ways. However, whether key questions in the humanities really changed, whether they were taken any further, is something yet to be explored because it is still such a new field, and one can only be speculative about it, she feels. It perhaps pushes for a new level of interdisciplinarity, and a different kind of collaborative space that the digital enables. What is significant and exciting for her as a historian, however, is that if history has to survive as a discipline, in schools but in terms of public spaces and discourse, it should actively engage with the digital. This not only presents significant challenges, in terms how to represent the past in the digital space, (in short problems with method) but also opens up new possibilities, for example with oral history and the advent of digital sound. The definition of the field will also evolve, as people define it from different spaces of practice and research, which Dr. Chowdhury feels is crucial to keeping it open and accessible by all.</p>
<p>Even from diverse disciplinary perspectives, at present the understanding of DH is that it facilitates new modes of humanistic enquiry, or enables one to ask questions that could not be asked earlier. As Prof. Dasgupta reiterates, it is no longer possible to imagine humanities scholarship outside of the ‘digital’ as such, as that is the world we inhabit. However, while some of the key conceptual questions for the humanities may remain the same, it is the mode of questioning that has undergone a change – we need to re-learn questioning or question-making within this new digital sphere, which is in some sense also a critical and disciplinary challenge. While this does not resolve the problem of definition, it does provide a useful route into thinking of what would be questions of DH, particularly in the Indian context.</p>
<p> </p>
<h2>Notes</h2>
<p><strong>[1]</strong> For a more detailed overview of the different phases of DH, see Patrik Svensson in 'Landscape of Digital Humanities,' <em>Digital Humanities Quarterly</em>, Volume 4 Number 1, 2010, <a href="http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html">http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html</a>.</p>
<p><strong>[2]</strong> For more on the nature of the technosocial subject, see Nishant Shah, <em>The Technosocial Subject: Cities, Cyborgs and Cyberspace</em>, Manipal University, 2013. Indian ETD Repository @ INFLIBNET, <a href="http://hdl.handle.net/10603/8558">http://hdl.handle.net/10603/8558</a>.</p>
<p><strong>[3]</strong> This is rather simple abstraction of ideas about discipline and reason as they have stemmed from Enlightenment thought. For a more elaborate understanding see <em>Conflict of the Faculties</em> (1798) by Immanuel Kant and <em>Discipline and Punish</em> (1975) by Michel Foucault.</p>
<p><strong>[4]</strong> See: <a href="http://indiancine.ma/">http://indiancine.ma/</a>.</p>
<p><strong>[5]</strong> See: <a href="http://vectors.usc.edu/journal/index.php">http://vectors.usc.edu/journal/index.php</a>.</p>
<p> </p>
<h2>References</h2>
<p>Cutrofello, Andrew, <em>Discipline and Critique: Kant, Poststructuralism and the Problem of Resistance</em>, State University of New York Press, 1994.</p>
<p>Guru, Gopal, and Sundar Sarukkai, <em>The Cracked Mirror: An Indian Debate on Experience and Theory</em>, New Delhi: Oxford University Press India, 2012.</p>
<p>Johns, Adrian, <em>The Nature of the Book: Print and Knowledge in the Making</em>, Chicago: University of Chicago Press, 1998.</p>
<p>Latour, Bruno, 'Morality and Technology: The End of the Means,' Trans. Couze Venn, <em>Theory Culture Society</em>, 247-260, 2002.</p>
<p>Parry, Dave, 'The Digital Humanities or a Digital Humanism', <em>Debates in the Digital Humanities</em>, ed. Mathew K. Gold, University of Minnesota Press, 2012, <a href="http://dhdebates.gc.cuny.edu/debates/text/24">http://dhdebates.gc.cuny.edu/debates/text/24</a>.</p>
<p>Ramsay, Stephen, 'On Building,' 2010, <a href="http://lenz.unl.edu/papers/2011/01/11/on-building.html">http://lenz.unl.edu/papers/2011/01/11/on-building.html</a>.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/raw/a-question-of-digital-humanities'>https://cis-india.org/raw/a-question-of-digital-humanities</a>
</p>
No publishersneha-ppDigital KnowledgeMapping Digital Humanities in IndiaResearchFeaturedDigital HumanitiesResearchers at Work2016-06-30T05:06:46ZBlog EntryCIS's Position on Net Neutrality
https://cis-india.org/internet-governance/blog/cis-position-on-net-neutrality
<b>As researchers committed to the principle of pluralism we rarely produce institutional positions. This is also because we tend to update our positions based on research outputs. But the lack of clarity around our position on network neutrality has led some stakeholders to believe that we are advocating for forbearance. Nothing can be farther from the truth. Please see below for the current articulation of our common institutional position.</b>
<p> </p>
<ol style="text-align: justify;">
<li>Net Neutrality violations can potentially have multiple categories of harms —<strong> competition harms, free speech harms, privacy harms, innovation and ‘generativity’ harms, harms to consumer choice and user freedoms, and diversity harms</strong> thanks to unjust discrimination and gatekeeping by Internet service providers.<br /><br /></li>
<li>Net Neutrality violations (including some those forms of zero-rating that violate net neutrality) can also have different kinds benefits — enabling the <strong>right to freedom of expression</strong>, and the <strong>freedom of association</strong>, especially when access to communication and publishing technologies is increased; <strong>increased competition</strong> [by enabling product differentiation, can potentially allow small ISPs compete against market incumbents]; <strong>increased access</strong> [usually to a subset of the Internet] by those without any access because they cannot afford it, increased access [usually to a subset of the Internet] by those who don't see any value in the Internet, <strong>reduced payments</strong> by those who already have access to the Internet especially if their usage is dominated by certain services and destinations.<br /><br /></li>
<li>Given the magnitude and variety of potential harms, <strong>complete forbearance from all regulation is not an option</strong> for regulators nor is self-regulation sufficient to address all the harms emerging from Net Neutrality violations, since incumbent telecom companies cannot be trusted to effectively self-regulate. Therefore, <strong>CIS calls for the immediate formulation of Net Neutrality regulation</strong> by the telecom regulator [TRAI] and the notification thereof by the government [Department of Telecom of the Ministry of Information and Communication Technology]. CIS also calls for the eventual enactment of statutory law on Net Neutrality. All such policy must be developed in a transparent fashion after proper consultation with all relevant stakeholders, and after giving citizens an opportunity to comment on draft regulations.<br /><br /></li>
<li>Even though some of these harms may be large, CIS believes that a government cannot apply the precautionary principle in the case of Net Neutrality violations. <strong>Banning technical innovations and business model innovations is not an appropriate policy option. </strong>The regulation must toe a careful line <strong>to solve the optimization problem: </strong>refraining from over-regulation of ISPs and harming innovation at the carrier level (and benefits of net neutrality violations mentioned above) while preventing ISPs from harming innovation and user choice. ISPs must be regulated to limit harms from unjust discrimination towards consumers as well as to limit harms from unjust discrimination towards the services they carry on their networks.<br /><br /></li>
<li>Based on regulatory theory, we believe that a regulatory framework that is technologically neutral, that factors in differences in technological context, as well as market realities and existing regulation, and which is able to respond to new evidence is what is ideal.<br /><br />This means that we need a framework that has some bright-line rules based, but which allows for flexibility in determining the scope of exceptions and in the application of the rules. Candidate principles to be embodied in the regulation include: <strong>transparency, non-exclusivity, limiting unjust discrimination</strong>.<br /><br /></li>
<li>The <strong>harms emerging from walled gardens can be mitigated in a number of ways</strong>. <strong>On zero-rating the form of regulation must depend on the specific model and the potential harms that result from that model. </strong>Zero-rating can be: paid for by the end consumer or subsidized by ISPs or subsidized by content providers or subsidized by government or a combination of these; deal-based or criteria-based or government-imposed; ISP-imposed or offered by the ISP and chosen by consumers; Transparent and understood by consumers vs. non-transparent; based on content-type or agnostic to content-type; service-specific or service-class/protocol-specific or service-agnostic; available on one ISP or on all ISPs. Zero-rating by a small ISP with 2% penetration will not have the same harms as zero-rating by the largest incumbent ISP. For service-agnostic / content-type agnostic zero-rating, which Mozilla terms ‘<strong>equal rating</strong>’, CIS advocates for<strong> no regulation.</strong><br /><br /></li>
<li>CIS believes that <strong>Net Neutrality regulation for mobile and fixed-line access must be different</strong> recognizing the fundamental differences in technologies.<br /><br /></li>
<li><strong>On specialized services CIS believes that there should be logical separation</strong> and that all details of such specialized services and their impact on the Internet must be made transparent to consumers both individual and institutional, the general public and to the regulator. Further, such services should be available to the user only upon request, and not without their active choice, with the requirement that the service cannot be reasonably provided with ‘best efforts’ delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or that the discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.<br /><br /></li>
<li>On incentives for telecom operators, CIS believes that the government should consider different models such as waiving contribution to the Universal Service Obligation Fund for prepaid consumers, and freeing up additional spectrum for telecom use without royalty using a shared spectrum paradigm, as well as freeing up more spectrum for use without a licence.<br /><br /></li>
<li>On reasonable network management CIS still does not have a common institutional position.<br /><br /></li></ol>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/cis-position-on-net-neutrality'>https://cis-india.org/internet-governance/blog/cis-position-on-net-neutrality</a>
</p>
No publishersunilFeaturedHomepageNet NeutralityInternet Governance2015-12-09T13:06:06ZBlog EntryOnline Pre-Censorship is Harmful and Impractical
https://cis-india.org/internet-governance/online-pre-censorship-harmful-impractical
<b>The Union Minister for Communications and Information Technology, Mr. Kapil Sibal wants Internet intermediaries to pre-censor content uploaded by their users. Pranesh Prakash takes issue with this and explains why this is a problem, even if the government's heart is in the right place. Further, he points out that now is the time to take action on the draconian IT Rules which are before the Parliament.</b>
<p>Mr. Sibal is a knowledgeable lawyer, and according to a senior lawyer friend of his with whom I spoke yesterday, greatly committed to ideals of freedom of speech. He would not lightly propose regulations that contravene Article 19(1)(a) [freedom of speech and expression] of our Constitution. Yet his recent proposals regarding controlling online speech seem unreasonable. My conclusion is that the minister has not properly grasped the way the Web works, is frustrated because of the arrogance of companies like Facebook, Google, Yahoo and Microsoft. And while he has his heart in the right place, his lack of knowledge of the Internet is leading him astray. The more important concern is the<a class="external-link" href="http://www.mit.gov.in/sites/upload_files/dit/files/RNUS_CyberLaw_15411.pdf"> IT Rules</a> that have been in force since April 2011.</p>
<h3>Background <br /></h3>
<p>The New York Times scooped a story on Monday revealing that Mr. Sibal and the <a class="external-link" href="http://www.mit.gov.in/">MCIT</a> had been <a class="external-link" href="http://india.blogs.nytimes.com/2011/12/05/india-asks-google-facebook-others-to-screen-user-content/?scp=2&sq=kapil%20sibal&st=cse">in touch with Facebook, Google, Yahoo, and Microsoft</a>, asking them to set up a system whereby they would manually filter user-generated content before it is published, to ensure that objectionable speech does not get published. Specifically, he mentioned content that hurt people's religious sentiments and content that Member of Parliament Shashi Tharoor described as <a class="external-link" href="http://zeenews.india.com/news/nation/i-am-against-web-censorship-shashi-tharoor_745587.html">'vile' and capable of inciting riots as being problems</a>. Lastly, Mr. Sibal defended this as not being "censorship" by the government, but "supervision" of user-generated content by the companies themselves.</p>
<h3>Concerns <br /></h3>
<p>One need not give lectures on the benefits of free speech, and Mr. Sibal is clear that he does not wish to impinge upon it. So one need not point out that freedom of speech means nothing if not the freedom to offend (as long as no harm is caused). There can, of course, be reasonable limitations on freedom of speech as provided in Article 19 of the <a class="external-link" href="http://www2.ohchr.org/english/law/ccpr.htm">ICCPR</a> and in Article 19(2) of our Constitution. My problem lies elsewhere.</p>
<h3>Secrecy <br /></h3>
<p>It is unfortunate that the New York Times has to be given credit for Mr. Sibal addressing a press conference on this issue (and he admitted as much). What he is proposing is not enforcement of existing rules and regulations, but of a new restriction on online speech. This should have, in a democracy, been put out for wide-ranging public consultations first.</p>
<h3>Making intermediaries responsible <br /></h3>
<p>The more fundamental disagreement is that over how the question of what should not be published should be decided, and how that decision should be and how that should be carried out, and who can be held liable for unlawful speech. I believe that "to make the intermediary liable for the user violating that code would, I think, not serve the larger interests of the market." Mr. Sibal said that in May this year <a class="external-link" href="http://online.wsj.com/article/SB10001424052702304563104576355223687825048.html">in an interview with the Wall Street Journal</a>. The intermediaries (that is, all persons and companies who transmit or host content on behalf of a third party), are but messengers just like a post office and do not exercise editorial control, unlike a newspaper. (By all means prosecute Facebook, Google, Yahoo, and Microsoft whenever they have created unlawful content, have exercised editorial control over unlawful content, have incited and encouraged unlawful activities, or know after a court order or the like that they are hosting illegal content and still do not remove it.)
Newspapers have editors who can take responsibility for content published in the newspaper. They can afford to, because the number of articles in a newspaper is limited. YouTube, which has 48 hours of videos uploaded every minutes, cannot. One wag suggested that Mr. Sibal was not suggesting a means of censorship, but of employment generation and social welfare for censors and editors. To try and extend editorial duties to these 'intermediaries' by executive order or through 'forceful suggestions' to these companies cannot happen without amending s.79 of the Information Technology Act which ensures they are not to be held liable for their user's content: the users are.
Internet speech has, to my knowledge, and to date, has never caused a riot in India. It is when it is translated into inflammatory speeches on the ground with megaphones that offensive speech, whether in books or on the Internet, actually become harmful, and those should be targeted instead. And the same laws that apply to offline speech already apply online. If such speech is inciting violence then the police can be contacted and a magistrate can take action. Indeed, Internet companies like Facebook, Google, etc., exercise self-regulation already (excessively and wrongly, I feel sometimes). Any person can flag any content on YouTube or Facebook as violating the site's terms of use. Indeed, even images of breast-feeding mothers have been removed from Facebook on the basis of such complaints. So it is mistaken to think that there is no self-regulation. In two recent cases, the High Courts of Bombay (<a href="https://cis-india.org/internet-governance/janhit-manch-v-union-of-india" class="internal-link" title="Janhit Manch & Ors. v. The Union of India"><em>Janhit Manch v. Union of India</em></a>) and Madras (<em>R. Karthikeyan v. Union of India</em>) refused to direct the government and intermediaries to police online content, saying that places an excessive burden on freedom of speech.</p>
<h3>IT Rules, 2011 <br /></h3>
<p>In this regard, the IT Rules published in April 2011 are great offenders. While speech that is 'disparaging' (while not being defamatory) is not prohibited by any statute, yet intermediaries are required not to carry 'disparaging' speech, or speech to which the user has no right (how is this to be judged? do you have rights to the last joke that you forwarded?), or speech that promotes gambling (as the government of Sikkim does through the PlayWin lottery), and a myriad other kinds of speech that are not prohibited in print or on TV. Who is to judge whether something is 'disparaging'? The intermediary itself, on pain of being liable for prosecution if it is found have made the wrong decision. And any person may send a notice to an intermediary to 'disable' content, which has to be done within 36 hours if the intermediary doesn't want to be held liable. Worst of all, there is no requirement to inform the user whose content it is, nor to inform the public that the content is being removed. It just disappears, into a memory hole. It does not require a paranoid conspiracy theorist to see this as a grave threat to freedom of speech.
Many human rights activists and lawyers have made a very strong case that the IT Rules on Intermediary Due Diligence are unconstitutional. Parliament still has an opportunity to reject these rules until the end of the 2012 budget session. Parliamentarians must act now to uphold their oaths to the Constitution.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/online-pre-censorship-harmful-impractical'>https://cis-india.org/internet-governance/online-pre-censorship-harmful-impractical</a>
</p>
No publisherpraneshIT ActObscenityFreedom of Speech and ExpressionPublic AccountabilityYouTubeSocial mediaInternet GovernanceFeaturedIntermediary LiabilityCensorshipSocial Networking2011-12-12T17:00:50ZBlog EntryHyper-connected, Hyper-lonely?
https://cis-india.org/digital-natives/hyper-connected-hyper-lonely
<b>The Digital Natives newsletter, part of the 'Digital Natives with a Cause?' project, invites contributions to its April-May 2012 double issue. </b>
<p>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? <br />Editor: Shobha Vadrevu </p>
<p>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? <br />Editor: Nilofar Ansher </p>
<p>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: <a class="external-link" href="mailto:nilofar.ansh@gmail.com">nilofar.ansh@gmail.com</a></p>
<p>
For more details visit <a href='https://cis-india.org/digital-natives/hyper-connected-hyper-lonely'>https://cis-india.org/digital-natives/hyper-connected-hyper-lonely</a>
</p>
No publisherNilofar AnsherFeaturedResearchers at WorkDigital Natives2015-04-24T11:57:46ZBlog EntryResponses to the DIPP's Discussion Paper on SEPs and their Availability on FRAND Terms
https://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms
<b>The Department of Industrial Policy and Promotion (DIPP), Government of India, requested comments through its "Discussion Paper on Standard Essential Patents and Their Availability on FRAND Terms" on March 1, 2016. This post is a compilation of various comments submitted in response to it.</b>
<p style="text-align: justify; ">The Centre for Internet & Society (CIS) commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views. The submission is divided in 3 main parts. The first part, ‘Preliminary’, introduces the document; the second part, ‘About CIS’, is an overview of the organization; and, the third part, ‘Submissions on the Issues’, answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document. The submission to the DIPP was prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.</p>
<hr style="text-align: justify; " />
<div style="text-align: justify; "><b><a href="https://cis-india.org/a2k/blogs/dipp-comments.pdf" class="internal-link"> </a></b></div>
<h3 style="text-align: justify; ">Download</h3>
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<li><a href="https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms" class="internal-link"><span style="text-decoration: underline;">Discussion Paper on Standard Essential Patents and their Availability on Frand Terms</span></a> (Government of India, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, March 1, 2016)</li>
<li><a href="https://cis-india.org/a2k/blogs/dipp-comments.pdf" class="internal-link">Centre for Internet and Society</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769239">Centre for Internet and Society (hosted on Social Science Research Network)</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2768496">Prof. Jorge L. Contreras</a></li>
<li><a href="https://cis-india.org/a2k/blogs/aba-comments.pdf" class="internal-link">Joint Comments of the American Bar Association (ABA) Sections of Anti-Trust Law, Intellectual Property Law, International Law, and Science & Technology Law</a></li>
<li><a href="https://cis-india.org/a2k/blogs/g-mason-dipp-response" class="internal-link">Global Antitrust Institute, George Mason University School of Law</a></li>
<li><a href="https://cis-india.org/a2k/blogs/cmai-tema" class="internal-link">CMAI-TEMA (Communication Multimedia and Infrastructure Association of India - Telecom Equipment Manufacturers Association of India)</a></li>
<li><a class="external-link" href="http://sflc.in/comments-on-dipp-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms/">Software Freedom Law Centre (SFLC)</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2779696">Yogesh Pai</a></li>
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For more details visit <a href='https://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms'>https://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms</a>
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No publisherAnubha Sinha, Nehaa Chaudhari, and Rohini LakshanéDIPPFeaturedAccess to Knowledge2016-07-07T16:24:01ZBlog EntryComments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms
https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms
<b>The Centre for Internet & Society gave its comments to the Department of Industrial Policy and Promotion. The comments were prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.</b>
<p><strong><a href="https://cis-india.org/a2k/blogs/dipp-comments.pdf" class="external-link">Download the PDF </a></strong><strong>To access other submissions to the DIPP Discussion Paper on SEP and FRAND, please <a class="external-link" href="http://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms">click here</a></strong><strong><br /></strong></p>
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<p style="text-align: justify; "><strong>Authors <a name="_ftnref1"></a> </strong></p>
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<p style="text-align: justify; "><strong>I. PRELIMINARY</strong></p>
<p style="text-align: justify; "><strong>1. </strong> This submission presents comments by the Centre for Internet and Society, India ("<strong>CIS</strong>") on the <i>Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms</i> (dated 01 March, 2016), released by the Department of Industrial Policy and Promotion ("<strong>the</strong> <strong>DIPP</strong>"), Ministry of Commerce and Industry, Government of India (" <strong>the discussion paper/ discussion paper</strong>").</p>
<p style="text-align: justify; "><strong>2. </strong> CIS commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views.</p>
<p style="text-align: justify; "><strong>3. </strong> This submission is divided into three main parts. The <i>first </i>part, 'Preliminary', introduces the document; the <i>second</i> part, 'About CIS', is an overview of the organization; and, the <i>third </i>part, 'Submissions on the Issues', answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document.</p>
<p style="text-align: justify; "><strong>II. ABOUT CIS</strong></p>
<p style="text-align: justify; "><strong>4. </strong> CIS is a non-profit organisation <a name="_ftnref2"></a> that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cyber-security.</p>
<p style="text-align: justify; "><strong>5. </strong> CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles. In addition, the comments are in line with the aims of the Make in India<a name="_ftnref3"></a> and Digital India <a name="_ftnref4"></a> initiatives of the Government of India.</p>
<p style="text-align: justify; "><strong>III. SUBMISSION ON THE ISSUES FOR RESOLUTION</strong></p>
<p style="text-align: justify; "><strong>6. </strong> The following sections provide CIS' views and recommendations on the issues enumerated in section 11 of the discussion paper:</p>
<p style="text-align: justify; "><strong> a) <i> Whether the existing provisions in the various IPR-related legislations, especially the Patents Act, 1970 and antitrust legislations, are adequate to address the issues related to SEPs and their availability on FRAND terms? If not, then can these issues </i> <i>be addressed through appropriate amendments to such IPR-related legislations? If so, what changes should be affected?</i> </strong></p>
<p style="text-align: justify; "><strong>A.1. </strong> The issues related to Standard Essential Patents ("<strong>SEPs</strong>") and their licensing on a fair, reasonable and non-discriminatory ("<strong>FRAND</strong>") basis lie at the intersection of intellectual property ("<strong>IP</strong>") law and competition law <a name="_ftnref5"></a>. As such, in India, the Patents Act, 1970 ("<strong>the Patents Act</strong>") and, the Competition Act, 2002 ("<strong>the Competition Act</strong>") are the relevant legislations to be studied. These have been recently discussed, most recently, by Justice Bakhru in his comprehensive order in<i>Telefonaktiebolaget LM Ericsson (Publ)</i> v. <i>Competition Commission of India and Another.</i> <a name="_ftnref6"></a></p>
<p style="text-align: justify; "><strong>A.2. </strong> It is our submission that at the moment, amendments to the Patents Act and the Competition Act may not be preferred. As Justice Bakhru has noted in the aforesaid decision,<a name="_ftnref7"></a> there is no conflict between the remedies in the Patents Act and in the Competition Act, and, the pursuit of rights and remedies under one of these legislations does not bar a party from pursuing rights and remedies in the other. Further, under both legislations, there are scenarios for the respective authorities - the Controller General of Patents, Designs and Trademarks ("<strong>the Controller</strong>") and the Competition Commission of India (" <strong>the CCI</strong>") for the Patents Act and for the Competition Act respectively - to seek inputs from each other.</p>
<p style="text-align: justify; "><strong>A.3. </strong> We also note that the CCI is a fairly nascent regulator; one whose jurisdiction is not yet a settled matter of law. While the judgment in the Ericsson-CCI case<a name="_ftnref8"></a> is indeed a good beginning, we do not believe that the matter has been conclusively decided. Accordingly, given the complex legal questions involved, over not just the interpretation of the Patents Act and the Competition Act, but also constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts,<a name="_ftnref9"></a> we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.</p>
<p style="text-align: justify; "><strong>A.4. </strong> In addition, we are of the opinion that our IP law, and, our competition law, fully honor our international commitments, including the requirements under the TRIPS Agreement.<a name="_ftnref10"></a> As such, we would urge the Government of India to not enter into free trade agreements including, <i>inter alia,</i> the Regional Comprehensive Economic Partnership,<a name="_ftnref11"></a> that threaten our use of TRIPS flexibilities, and, impose 'TRIPS-plus' obligations.</p>
<p style="text-align: justify; "><strong>A.5. </strong> We also urge the Government of India to adopt a balanced National IPR Policy, and, a National Competition Policy, both of which has been in abeyance for a considerable amount of time. We believe that these policies are crucial to realize the objectives of the Make in India and Digital India initiatives. At the same time, we submit that these policies be balanced, taking into account the interests of all stakeholders, developed through an extensive consultative process, and, suitably modified based on feedback.</p>
<p style="text-align: justify; "><strong> <i> b) What should be the IPR policy of Indian Standard Setting Organizations in developing Standards for Telecommunication sector and other sectors in India where Standard Essential Patents are used? </i> </strong></p>
<p style="text-align: justify; "><strong>B.1.</strong> The discussion paper identifies four Standard Setting Organizations ("<strong>SSOs</strong>") in India, namely, the Telecom Standards Development Society of India ("<strong>TSDSI</strong>"), the Telecommunication Engineering Center ("<strong>TEC</strong>"), the Bureau of Indian Standards (" <strong>BIS</strong>"), the Global ICT Standardization Forum for India ("<strong>GISFI</strong>"), and, the Development Organization of Standards for Telecommunications in India ("<strong>DOSTI</strong>"). Comments on each of their policies have been made in the following paragraphs.</p>
<p style="text-align: justify; "><strong>B.2.</strong> The BIS does not have an intellectual property rights ("<strong>IPR</strong>") policy of its own. The BIS Act, 2016 <a name="_ftnref12"></a> does not include one either. As the discussion paper notes, the BIS refers to the IPR policies of the relevant international SSO in the context of technology implemented in India, that is the same or equivalent to the ones developed or maintained by the respective SSOs.We recommend that BIS adopt an IPR policy at the earliest, factoring in India specific requirements differences: a large and exponentially growing mobile device market makes it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin ("<strong>India specific requirements</strong>"). In addition, our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (below), may also be considered for the content of the BIS' future policy on IPR.</p>
<p style="text-align: justify; "><strong>B.3</strong> . According to the discussion paper, the TEC considers the IPR policies of the International Telecommunication Union. We recommend that like the BIS, the TEC also adopt its own IPR policy, factoring in the India specific requirements detailed above. In addition, our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (below), may also be considered for the content of the BIS' future policy on IPR.</p>
<p style="text-align: justify; "><strong>B.4. </strong> The TSDSI, a relatively new standards body, has defined an IPR policy <a name="_ftnref13"></a>. In respect of this policy, the following observations are presented. <i>First, </i>this policy notes that IPR owners should be adequately and fairly rewarded.<i>Second, </i>it requires members to disclose essential IPRs in a "timely fashion." <a name="_ftnref14"></a> <i>Third, </i>as per its policy, the TSDSI can request the owner of an essential IPR to undertake, within three months, to license it irrevocably on FRAND terms. <a name="_ftnref15"></a> At the same time, the policy also states that the (aforesaid) ask may be subject to the condition that licensees agree to reciprocate. <a name="_ftnref16"></a> Should such an undertaking not be forthcoming, the TSDSI may suspend work on the standard or technical specification in question, or, adopt another course of action. <a name="_ftnref17"></a> <i>Fourth, </i>the policy identifies two scenarios for the non availability of licences prior to publication, <a name="_ftnref18"></a> based on the existence, or, the lack thereof, of alternative technologies. In the event of a lack of alternative technology, the policy requires a member to disclose in writing its reasons for not licensing its patents. Following this, it is submitted that there is no clarity on the concrete steps that the TSDSI would adopt in case the efforts to convince a member to license their essential IPRs, fail. The policy only states that "the TSDSI shall take further action as deemed fit."<a name="_ftnref19"></a> The same is also true where the IPR owner is not a member of the TSDSI. <a name="_ftnref20"></a> <i>Fifth, </i>the policy also envisages a scenario of non-availability post publication. <a name="_ftnref21"></a> The procedure for dealing with this is akin to the one detailed above, with the TSDSI asking for a written explanation, considering further action, including the possible withdrawal of the standard or technical specification in question. <i>Sixth, </i>it is observed that the policy does not require a commitment from its members to refrain from seeking injunctive relief. <i>Seventh, </i>it is accordingly recommended that the policy be suitably modified (a) to include India specific requirements discussed above; (b) to require a commitment from its members, that they refrain from seeking injunctive relief; (c) to delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (d) to identify in detail the procedure to be followed in case of patent 'hold-ups' and patent 'hold-outs'; (e) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, non-members, both; and, (f) to include a detailed process on the declassification of a standard or technical specification.</p>
<p style="text-align: justify; "><strong>B.5. </strong> The IPR policy of GISFI<a name="_ftnref22"></a>, is substantially similar to the IPR policy of the TSDSI, discussed in paragraph <strong>B.4.</strong> of this submission (above). <i>Inter alia, </i> GISFI's IPR policy also does not indicate the specific steps to be taken in case an IPR owner refuses to license essential IPRs for which no alternative technology is available. This is true in the cases both, where the refusal is by a member, and, by a non-member. <a name="_ftnref23"></a>Our recommendations on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (above), may also be considered for the GISFI's IPR policy.</p>
<p style="text-align: justify; "><strong>B.6. </strong> According to the discussion paper, the IPR policy of the DOSTI resembles that of the GIFSI. It is submitted that these policies are similar in the context of refusal to license by a member or non-member, and, like the TSDSI and the GISFI, the DOSTI also requires the patent holder to license its IPR irrevocably on FRAND terms. Accordingly, we reiterate our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (above). The aforesaid recommendations may also be considered to be relevant for the DOSTI's IPR policy.</p>
<p style="text-align: justify; "><strong>B.7.</strong> We are also of the opinion that it would be useful for Indian SSOs to consider recommending the use of royalty-free licenses for IPRs. Illustratively, the World Wide Web Consortium ("<strong>W3C</strong>") <a name="_ftnref24"></a> and the Open Mobile Alliance ("<strong>OMA</strong>") <a name="_ftnref25"></a> encourage royalty-free licensing.</p>
<p style="text-align: justify; "><strong> <i> c) Whether there is a need for prescribing guidelines on working and operation of Standard Setting Organizations by Government of India? If so, what all areas of working of SSOs should they cover? </i> </strong></p>
<p style="text-align: justify; "><strong>C.1. </strong> In our opinion, in a milieu where instances of SEP litigation are becoming increasingly complex, and, there is a tangible threat of the abuse of the FRAND process, it might be useful for the Government of India to make suggestions on the working of Indian SSOs.</p>
<p style="text-align: justify; "><strong>C.2. </strong> It is suggested that the Government of India develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements, including the ones detailed in paragraph <strong>B.2.</strong> of this submission (above). We believe that this measure will also enable the fulfilment of the objectives of the Make in India and Digital India initiatives.</p>
<p style="text-align: justify; "><strong>C.3. </strong> We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the the Indian Patent Office ("<strong>IPO</strong>"), the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.</p>
<p style="text-align: justify; "><strong>C.4.</strong> In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.</p>
<p style="text-align: justify; "><strong> <i> d) Whether there is a need for prescribing guidelines on setting or fixing the royalties in respect of Standard Essential Patents and defining FRAND terms by Government of India? If not, which would be appropriate authority to issue the guidelines and what could be the possible FRAND terms? </i> </strong></p>
<p style="text-align: justify; "><strong>D.1. </strong> In light of the inadequacies in the IPR policies (discussed above) of various SSOs in India, as well the the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the Government of India intervene in the setting of royalties and FRAND terms.</p>
<p style="text-align: justify; "><strong>D.2. </strong> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty<a name="_ftnref26"></a>. Further details of this proposal have been enumerated in answer to question 'f' of the discussion paper (below).</p>
<p style="text-align: justify; "><strong>D.3.</strong> Our motivations for this proposal are many-fold.<i> </i>In our opinion, it is near-impossible for potential licensees to avoid inadvertent patent infringement. As a part of our ongoing research on technical standards applicable to mobile phones sold in India, we have found nearly 300 standards so far <a name="_ftnref27"></a>. It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities ("<strong>NPEs</strong>") and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, home-grown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now-affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.</p>
<p style="text-align: justify; "><strong> <i> e) On what basis should the royalty rates in SEPs be decided? Should it be based on Smallest Saleable Patent Practicing Component (SSPPC), or on the net price of the Downstream Product, or some other criterion? </i> </strong></p>
<p style="text-align: justify; "><strong>E.1. </strong> It is our submission that royalty rates for SEPs should be based on the smallest saleable patent practising component ("<strong>SSPPC</strong>"). Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000. <a name="_ftnref28"></a> A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India. <a name="_ftnref29"></a> It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined.</p>
<p style="text-align: justify; "><strong>E.2. </strong> The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al <a name="_ftnref30"></a> have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties <a name="_ftnref31"></a>. In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company's cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government's objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme <a name="_ftnref32"></a>. It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking. <a name="_ftnref33"></a></p>
<p style="text-align: justify; "><strong>E.3. </strong> The discussion paper notes that J. Gregory Sidak, having studied the proceedings before the Delhi High Court, approved of the manner in which the court determined royalties.<a name="_ftnref34"></a> In his paper, Sidak(2015)<a name="_ftnref35"></a> notes that in determining royalties, the court relied, <i>inter alia, </i>on the decision of <i>CSIRO</i> v.<i>Cisco</i> ("<strong>the CSIRO case</strong>"), a 2015 decision of the US Court of Appeals for the Federal Circuit. 2015. <a name="_ftnref36"></a> We humbly disagree with the opinion of the Delhi High Court on the manner of determining royalties, and, with Sidak's approval of the same.</p>
<p style="text-align: justify; "><strong>E.4.</strong> It is our submission that the CSIRO case <a name="_ftnref37"></a> relied on a previous judgment, which we disagree with. The decision, a 2014 district court judgment, analogises the determination of royalties on SEPs to the determination of royalties on a copyrighted book. The court notes, "[b]asing a royalty solely on chip price is like valuing a copyrighted book based only on the costs of the binding, paper, and ink needed to actually produce the physical product. While such a calculation captures the cost of the physical product, it provides no indication of its actual value." In our opinion, this analogy is flawed. While a book is a distinct product as a whole, a mobile phone is a sum-total of its parts. If at all, a mobile phone could be compared with a book with several authors, as multiple technologies belonging to several patent holders are implemented in it. This judgement bases valuation for one set of technologies on the whole device, thus awarding compensation to the licensor even for those technologies implemented in the device that are not related to the licensed technologies. In our opinion, charging royalty on the net selling price of a device for one technology or one set of technologies is thus more like a referral scheme and less like actual compensation for the value added. Accordingly, royalties must be charged on the SSPPC principle.</p>
<p style="text-align: justify; "><strong> <i> f) Whether total payment of royalty in case of various SEPs used in one product should be capped? If so, then should this limit be fixed by Government of India or some other statutory body or left to be decided among the parties? </i> </strong></p>
<p style="text-align: justify; "><strong>F.1. </strong> CIS has proposed a compulsory licensing fee of five per cent on a patent pool of critical mobile technologies. The rationale for this figure is the royalty cap imposed by India in the early 1990s.</p>
<p style="text-align: justify; "><strong>F.2.</strong> As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with the DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to "high priority industries". <a name="_ftnref38"></a> Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government.</p>
<p style="text-align: justify; "><strong>F.3.</strong> While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009. <a name="_ftnref39"></a></p>
<p style="text-align: justify; "><strong>F.4.</strong> It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, in our opinion, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands.</p>
<p style="text-align: justify; "><strong>F.5.</strong> We believe that the aforementioned developments are detrimental to the Make in India and Digital India initiatives of the Government of India, and, the government's aim of encouraging local manufacturing, facilitating indigenous innovation, as well as strengthening India's intellectual property regime. It is our submission, therefore, that the payment of royalties on SEPs be capped.</p>
<p style="text-align: justify; "><strong>F.6.</strong> We submit that such a measure is particularly important, given the nature of SEP litigation in India. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other's patent portfolios. Dynamics in the Indian market differ - with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, home-grown. <a name="_ftnref40"></a></p>
<p style="text-align: justify; "><strong>F.7.</strong> In June, 2013, we had recommended to the erstwhile Hon'ble Minister for Human Resource Development <a name="_ftnref41"></a> that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon'ble Prime Minister.<a name="_ftnref42"></a> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license. <a name="_ftnref43"></a> As we have stated in our request to the Hon'ble Prime Minister, we believe that such a pool would "possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices." <a name="_ftnref44"></a></p>
<p style="text-align: justify; "><strong>F.8.</strong> We believe that such a measure is not in breach of our international obligations under the TRIPS Agreement.</p>
<p style="text-align: justify; "><strong><i>g) Whether the practice of Non-Disclosure Agreements (NDA) leads to misuse of dominant position and is against the FRAND terms?</i></strong></p>
<p style="text-align: justify; "><strong>G.1.</strong> The issue of Non Disclosure Agreements ("<strong>NDAs</strong>") in SEP/FRAND litigation is a contentious one. Patent holders argue that they are essential to the license negotiation process to protect confidential information, whereas potential licensees submit that NDAs result in the imposition of onerous conditions.<a name="_ftnref45"></a></p>
<p style="text-align: justify; "><strong>G.2.</strong> In India's SEP litigation, the use of NDAs has been raised as an issue in at least two cases - separately by Intex<a name="_ftnref46"></a> and by iBall <a name="_ftnref47"></a>, in their cases against Ericsson. Intex and iBall have both claimed that the NDAs that Ericsson asked them to sign were onerous, and favoured Ericsson.</p>
<p style="text-align: justify; "><strong>G.3.</strong> According to Intex, the NDA in question would result in high legal costs for Intex, and, would render it unable to disclose crucial information to its vendors (who had agreed to supply to Intex on the condition that Intex was not infringing on any patents). <a name="_ftnref48"></a></p>
<p style="text-align: justify; "><strong>G.4.</strong> According to iBall, the parties had agreed to enter a global patent license agreement ("<strong>GPLA</strong>") but Ericsson insisted on an NDA. Upon receiving the terms of the NDA, iBall claimed before the CCI that Ericsson's refusal to identify the allegedly infringed SEPs; the threat of patent infringement proceedings; the attempt to coax iBall to enter into a "one-sided and onerous NDA"; the tying and bundling patents irrelevant to iBall's products by way of a GPLA; demanding unreasonably high royalties by way of a certain percentage value of handset as opposed to the cost of actual patented technology used all constituted abuse of Ericsson's dominant position under Section 4 of the Competition Act. <a name="_ftnref49"></a></p>
<p style="text-align: justify; "><strong>G.5.</strong> In India, the law on misuse (abuse) of dominant position by an 'enterprise' is found primarily in Section 4 of the Competition Act (read with Section 2(h) of the Competition Act, which defines 'enterprise'). In its recent decision in the Ericsson-CCI case <a name="_ftnref50"></a>, the Delhi High Court has found Ericsson to be an 'enterprise' for the purposes of the Competition Act, and hence subject to an inquiry under Section 4 of the same legislation. In the same decision, the court has also recognised the jurisdiction of the CCI to examine Ericsson's conduct for abuse of behaviour, based on complaints by Micromax and Intex. The use of NDAs is one of the grounds on which the parties have complained to the CCI.</p>
<p style="text-align: justify; "><strong>G.6.</strong> Pending a final determination by the CCI (and subsequent appeals), it would be premature to make an absolute claim on whether the use of NDAs results in an abuse of dominant position in <i>all</i> instances. However, the following submissions are made: <i>First, </i>the determination of misuse/abuse of dominant position is influenced by a number of factors <a name="_ftnref51"></a>, i.e., such a determination should be made on a case to case basis. <i>Second, </i>the market regulator, the CCI, is best situated to determine (a) abuse of dominance, and (b) whether the use of NDAs by an enterprise constitutes an abuse of its dominance. <i>Third, </i>the question of whether the use of NDAs constitutes misuse of dominance needs to be addressed in two parts - (a) whether the use of the NDA <i>itself </i>is abusive, irrespective of its terms and, (b) whether the use of certain specific terms renders the NDA abusive. <i>Fourth, </i>NDAs could potentially lead to the patent owner abusing its dominant position in the market, as well as result in an invalidation of FRAND commitments and terms. NDAs make it impossible to determine if a patent holder is engaging in discriminatory licensing practices. <i>Fifth, </i>NDAs are especially harmful in the case of NPEs-- companies that hold patents and monetise them but don't build or manufacture the components or devices that implement the technology associated with the patents.</p>
<p style="text-align: justify; "><strong> <i> h) What should be the appropriate mode and remedy for settlement of disputes in matters related to SEPs, especially while deciding FRAND terms? Whether Injunctions are a suitable remedy in cases pertaining to SEPs and their availability on FRAND terms? </i> </strong></p>
<p style="text-align: justify; "><strong>H.1.</strong> The licensing of SEPs on FRAND terms requires the parties to negotiate "reasonable" royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into binding arbitration. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.</p>
<p style="text-align: justify; "><strong>H.2.</strong> Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser " <i> to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose. </i> "<a name="_ftnref52"></a> Such an independent adviser may inform the court on the technical nuances of the matter.</p>
<p style="text-align: justify; "><strong>H.3. </strong> Further<strong>, </strong>under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves <i>first, </i>a prima facie case of infringement; <i>second, </i>that the balance of convenience tilts in plaintiff's favour; and, <i>third, </i>that if an injunction is not granted the plaintiff shall suffer irreparable damage. <strong>H.4. </strong>However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. <i>First, </i>in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. <i>Second, </i>especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that "irreparable damage" has been caused to the patent owner on account of infringement. <i>Third, </i>we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder. <a name="_ftnref53"></a> <i>Fourth, </i>we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator. <a name="_ftnref54"></a> Further, as Contreras (2015)<a name="_ftnref55"></a> observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.</p>
<p style="text-align: justify; "><strong><i>i) What steps can be taken to make the practice of Cross-Licensing transparent so that royalty rates are fair & reasonable?</i></strong></p>
<p style="text-align: justify; "><strong>I.1.</strong> The Patents Act requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year. <a name="_ftnref56"></a> Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of "working". A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that "working" is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. <a name="_ftnref57"></a> Indeed, as the decision in <i>Natco Pharma</i> v. <i>Bayer Corporation</i> <a name="_ftnref58"></a> reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent "working" information in a timely manner.</p>
<p style="text-align: justify; "><strong>I.2.</strong> However, there has been little compliance of this requirement by the patentees, despite the IPO reiterating the importance of compliance through the issuance of multiple public notices <a name="_ftnref59"></a> (suo motu and in response to a public interest litigation filed in 2011 <a name="_ftnref60"></a>), and, reminding the patentees that non-compliance is punishable with a heavy fine. <a name="_ftnref61"></a> Findings of research submitted by one of the parties<a name="_ftnref62"></a> in the writ of the<a></a><a></a><a>2011</a><a name="_msoanchor_1"></a><a name="_msoanchor_2"></a><a name="_msoanchor_3"></a> public interest litigation<i>Shamnad Basheer </i>v. <i>Union of India and others</i><a name="_ftnref63"></a> reveal as follows. <i>First, </i>a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. <i>Second, </i>a large number of filings in the telecom sector remain incomplete.</p>
<p style="text-align: justify; "><strong>I.3. </strong> In 2015, CIS queried the IPO website for Form 27s of nearly 4,400 patents. CIS' preliminary research (ongoing and unpublished) echoes findings <a name="_ftnref64"></a> similar to the ones disclosed in the case discussed in paragraph <strong>I.2.</strong> of this submission (above).</p>
<p style="text-align: justify; "><strong>I.4.</strong> In view of the submissions above, CIS makes the following recommendations to make the practice of cross-licensing transparent so that royalty rates are fair & reasonable: <i>first, </i>that there be a strict enforcement of the submission of Form 27s on a regular and timely basis by the patentees; and, <i>second, </i>that guidelines may be drawn up on whether it was discriminatory to charge no royalties (whether on the SSPPU or on the whole device) for a patent holder in a cross-licensing arrangement with another, when it charges royalty on the selling price of the device from a non-cross-licensor.</p>
<p style="text-align: justify; "><strong><i>j) What steps can be taken to make the practice of Patent Pooling transparent so that royalty rates are fair & reasonable?</i></strong></p>
<p style="text-align: justify; "><strong>J.1.</strong> Patent pools can be understood as an agreement between two or more patent owners to license one or more of their patents to one another or to third parties.<a name="_ftnref65"></a> Thus, the creation of a patent pool makes use of the legal instrument of licensing, similar to the practice of cross-licensing. Insofar, we reiterate our recommendations made in paragraph <strong>I.3. </strong>of this submission (above), which apply to the answer to the instant question.</p>
<p style="text-align: justify; "><strong>J.2.</strong> In furtherance of the recommendation above, we also propose the alteration of the Form 27 template <a name="_ftnref66"></a> to include more disclosures. Presently, patentees are required to to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.</p>
<p style="text-align: justify; "><strong>J.3. </strong> It is also our submission that patent pools be required to offer FRAND licenses on the same terms to both members and non-members of the pool.</p>
<p style="text-align: justify; "><strong> <i> k) How should it be determined whether a patent declared as SEP is actually an Essential Patent, particularly when bouquets of patents are used in one device? </i> </strong></p>
<p style="text-align: justify; "><strong>K.1.</strong> We submit that several studies on the essentiality of SEPs indicate that only a small percentage of SEPs are actually essential. A study conducted by<i>Goodman </i>and <i>Myers </i>(2004) showed that only 21% of SEPs pertaining to the 3G standard in the US were deemed to be actually essential. <a name="_ftnref67"></a> Another study conducted by the same authors in 2009 for WCDMA patents showed that 28% SEPs were essential. <a name="_ftnref68"></a></p>
<p style="text-align: justify; "><strong>K.2.</strong> In our opinion, <i>first, </i>the methodology adopted by <i>Goodman </i>and <i>Myers</i> <a name="_ftnref69"></a><i> </i>could be replicated to determine the "essential" nature of an SEP. <i>Second, </i>while adopting their methodology, it would be useful to address some of the issues over which these studies were critiqued. <a name="_ftnref70"></a> Accordingly, we suggest that (a) laboratory tests may be conducted by an outside expert or by a commercial testing laboratory, and not at an in-house facility owned by either parties, so as to eliminate in the lab results; and, (b) expert opinions may be considered in order to determine essentiality.</p>
<p style="text-align: justify; "><strong> <i> l) Whether there is a need of setting up of an independent expert body to determine FRAND terms for SEPs and devising methodology for such purpose? </i> </strong></p>
<p style="text-align: justify; "><strong>L.1.</strong> In our opinion, there is no need for an independent expert body to determine FRAND terms for SEPs and devising the methodology for such a purpose. The existing legal and regulatory framework is reasonably equipped to determine FRAND terms. A more detailed submission on the existing framework and suggested changes has been made in our answer to question 'a' of the discussion paper (above).</p>
<p style="text-align: justify; "><strong>L.2.</strong> However, we observe that Indian courts, tribunals and the CCI are yet to endorse a methodology for making FRAND determinations. The judgments of the Delhi High Court do not provide a conclusive rationale or methodology for the imposition of royalty rates in the respective matters. <a name="_ftnref71"></a> <strong> </strong></p>
<p style="text-align: justify; "><strong>L.3. </strong> We submit that<strong> </strong>in the absence of definitive Indian jurisprudence for determination of FRAND terms, American jurisprudence provides certain guidance. Contreras<a name="_ftnref72"></a> (2015) informs us about the various case law American courts and regulators have developed and adhered to whilst making such determinations.The dominant analytical framework for determining "reasonable royalty" patent damages in the United States today was set out in 1970 by the District Court for the Southern District of New York in <i>Georgia-Pacific Corp. </i>v. <i> U.S. Plywood Corp <a name="_ftnref73"></a> </i> . While this may be used as a guiding framework, the question of methodology remains far from settled.</p>
<p style="text-align: justify; "><strong> <i> m) If certain Standards can be met without infringing any particular SEP, for instance by use of some alternative technology or because the patent is no longer in force, what should be the process to declassify such a SEP? </i> </strong></p>
<p style="text-align: justify; "><strong>M.1. </strong> In our opinion, if a standard can be met without infringing a patent declared to be "essential" to it, then the patent is not actually "essential". In this instance, the methods suggested in response to question 'k' of the discussion paper (above) could be used to declassify the SEP.</p>
<p style="text-align: justify; "><strong>M.2. </strong> We further submit that if a patent is no longer in force, that is, if it has expired, then it ceases to be patent, and therefore an SEP. The process to declassify such an SEP could be simply to declare it an expired patent.</p>
<p style="text-align: justify; "><strong>M.3. </strong> In addition, if it is possible to implement a certain standard by using an alternative technology, then the SEP for such a standard is not actually an SEP. However, the scale of operations and that of mass manufacturing and compatibility requirements in devices and infrastructure mean that it is unlikely to have different methods of implementing the same standard.</p>
<p style="text-align: justify; "><strong>M.4.</strong> In general, it is our submission that an Indian SSO could maintain a publicly accessible database of SEPs found to be invalid or non-essential in India.</p>
<p style="text-align: justify; "><strong>7. </strong> We reiterate our gratitude to the DIPP for the opportunity to make these submissions. In addition to our comments above, we have shared some of our research on this issue, in the 'Annexures', below.</p>
<p style="text-align: justify; "><strong>8. </strong> It would be our pleasure and privilege to discuss these comments with the DIPP; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.</p>
<p style="text-align: justify; "><strong>On behalf of the Centre for Internet and Society, 22 April, 2016</strong></p>
<p style="text-align: justify; ">Anubha Sinha - <a>anubha@cis-india.org</a> | Nehaa Chaudhari - <a>nehaa@cis-india.org</a></p>
<p style="text-align: justify; ">Rohini Lakshané - <a>rohini@cis-india.org</a></p>
<p style="text-align: justify; "><strong>___________________________________________________________________________</strong></p>
<p style="text-align: justify; ">___________________________________________________________________________</p>
<p style="text-align: justify; "><strong>ANNEXURES</strong></p>
<p style="text-align: justify; "><strong>___________________________________________________________________________</strong></p>
<p style="text-align: justify; ">● Anubha Sinha, Fuelling the Affordable Smartphone Revolution in India, available at <a href="http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india"> http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf"> http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Pervasive Technologies:Patent Pools, available at <a href="http://cis-india.org/a2k/blogs/patent-pools">http://cis-india.org/a2k/blogs/patent-pools</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, <span>available </span>at <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india"> http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-indi </a> <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india">a</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low Cost Access Devices through Compulsory Licences, available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Prof Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, CIS, List of technical standards and IP types (Working document), available at <a href="https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing"> https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Open Letter to Prime Minister Modi, February 2015, available at <a href="http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi">http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies"> http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Joining the dots in India's big-ticket mobile phone patent litigation, May 2015, last updated October 2015, available at <a href="http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation"> http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, March 2015, last updated April 2016, available at <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"> http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india </a> , (last accessed April 22, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Patent landscaping in the Indian Mobile Device Marketplace, presented at the 4th Global Congress on Intellectual Property and Public Interest, December 2015, available at <a href="https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs">https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Vikrant Narayan Vasudeva, Patent Valuation and Licence Fee Determination in the Context of Patent Pools, available at <a href="http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools"> http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools </a> (last accessed 22 April, 2016).</p>
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<div style="text-align: justify; "><br clear="all" />
<hr size="1" width="33%" align="left" />
<div id="ftn1">
<p><a name="_ftn1"></a> This submission has been authored by (alphabetically) Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané, on behalf of the Centre for Internet and Society, India.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2"></a> See The Centre for Internet and Society, available at <a href="http://cis-india.org/">http://cis-india.org</a> (last accessed 22 April, 2016) for details of the organization, and, our work.</p>
</div>
<div id="ftn3">
<p><a name="_ftn3"></a> Make in India, available at <a href="http://www.makeinindia.com/home">http://www.makeinindia.com/home</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn4">
<p><a name="_ftn4"></a> Digital India, available at <a href="http://www.digitalindia.gov.in/">http://www.digitalindia.gov.in/</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn5">
<p><a name="_ftn5"></a> See Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, available at <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india"> http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india </a> (last accessed 21 April, 2016) for further details on relevant provisions.</p>
</div>
<div id="ftn6">
<p><a name="_ftn6"></a> In the High Court of Delhi, W.P.(C) 464/2014 & CM Nos. 911/2014 & 915/2014, judgment delivered on 30 March, 2016. Hereafter referred to as the Ericsson-CCI judgment.</p>
</div>
<div id="ftn7">
<p><a name="_ftn7"></a> Id.</p>
</div>
<div id="ftn8">
<p><a name="_ftn8"></a> Id.</p>
</div>
<div id="ftn9">
<p><a name="_ftn9"></a> Under Articles 226 and 227 of the Constitution of India, and, under Article 32 of the Constitution of India, for the High Courts and the Supreme Court, respectively.</p>
</div>
<div id="ftn10">
<p><a name="_ftn10"></a> Agreement on Trade-Related Aspects of Intellectual Property Rights, available at <a href="https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm">https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn11">
<p><a name="_ftn11"></a> KEI Staff, 2015 October 15 version: RCEP IP Chapter, available at <a href="http://keionline.org/node/2472">http://keionline.org/node/2472</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn12">
<p><a name="_ftn12"></a> BIS Act, 2016, available at <a href="http://www.bis.org.in/bs/bsindex.asp">http://www.bis.org.in/bs/bsindex.asp</a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn13">
<p><a name="_ftn13"></a> TSDSI, Intellectual Property Rights Policy, available at <a href="http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf"> http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn14">
<p><a name="_ftn14"></a> Id at Clause 3.1.</p>
</div>
<div id="ftn15">
<p><a name="_ftn15"></a> Id at Clause 5.1.</p>
</div>
<div id="ftn16">
<p><a name="_ftn16"></a> Id at Clause 5.2.</p>
</div>
<div id="ftn17">
<p><a name="_ftn17"></a> Id at Clause 5.5.</p>
</div>
<div id="ftn18">
<p><a name="_ftn18"></a> Id at Clauses 7.1. and 7.2.</p>
</div>
<div id="ftn19">
<p><a name="_ftn19"></a> Id at Clause 7.2.1.a (iii).</p>
</div>
<div id="ftn20">
<p><a name="_ftn20"></a> Id at Clause 7.2.1.b(iii).</p>
</div>
<div id="ftn21">
<p><a name="_ftn21"></a> Id at Clause 7.3.</p>
</div>
<div id="ftn22">
<p><a name="_ftn22"></a> GISFI, Intellectual Property Rights Policy, available at <a href="http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm"> http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn23">
<p><a name="_ftn23"></a> Id at Clauses 6.2.1.a(iii) and 6.2.1.b(iii).</p>
</div>
<div id="ftn24">
<p><a name="_ftn24"></a> See W3C, Patent Policy, available at <a href="https://www.w3.org/Consortium/Patent-Policy-20040205/">https://www.w3.org/Consortium/Patent-Policy-20040205/</a> (last accessed 22 April, 2016) for more details on their royalty-free licences.</p>
</div>
<div id="ftn25">
<p><a name="_ftn25"></a> See OMA, Use Agreement, available at <a href="http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/"> http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/ </a> (last accessed 22 April, 2016) for more details on their royalty-free licences.</p>
</div>
<div id="ftn26">
<p><a name="_ftn26"></a> See Rohini Lakshané, Open Letter to PM Modi, available at <a href="http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi">http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a> (last accessed 22 April, 2016) for further details of CIS' proposal.</p>
</div>
<div id="ftn27">
<p><a name="_ftn27"></a> Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at <a href="https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing"> https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn28">
<p><a name="_ftn28"></a> Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking,<i> 85 Tex. L. Rev. at 2015</i>; See also, for e.g., RPX Corporation, Amendment No. 3 to Form S-l, 11 Apr. 2011, at 59, available at <a href="http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm"> http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm </a> (last accessed 22 April, 2016), quoting - <i>"Based on our research, we believe there are more than 250,000 active patents relevant to today's smartphones…"</i>.; See further Steve Lohr, Apple- Samsung Case Shows Smartphone as Legal Magnet,<i> </i>New York Times, 25 Aug. 2012, available at <a href="http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html"> http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn29">
<p><a name="_ftn29"></a> Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn30">
<p><a name="_ftn30"></a> Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The Smartphone- Royalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at <a href="https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf"> https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn31">
<p><a name="_ftn31"></a> Florian Mueller,<i> </i>Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at <a href="http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html"> http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn32">
<p><a name="_ftn32"></a> Romit Guha and Anandita Singh Masinkotia, PM Modi's Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at <a href="http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services"> http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn33">
<p><a name="_ftn33"></a> Nehaa Chaudhari,<i> </i>Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf"> http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn34">
<p><a name="_ftn34"></a> See part 10.2.2. of the Discussion Paper, at page 25.</p>
</div>
<div id="ftn35">
<p><a name="_ftn35"></a> J.Gregory Sidak, FRAND in India:The Delhi High Court's Emerging Jurisprudence on Royalties for Standard-Essential Patents, available at <a href="http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full"> http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn36">
<p><a name="_ftn36"></a> Appeal from the United States District Court for the Eastern District of Texas in No. 6:11-cv-00343-LED, decided on 03 December, 2015, available at. <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF"> http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn37">
<p><a name="_ftn37"></a> Id.</p>
</div>
<div id="ftn38">
<p><a name="_ftn38"></a> Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at <a href="http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html"> http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html </a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn39">
<p><a name="_ftn39"></a> See Sanjana Govil, Putting a Lid on Royalty Outflows- How the RBI Can Help Reduce India's IP Costs<i>, </i>available at <a href="http://cis-india.org/a2k/blogs/lid-on-royalty-outflows">http://cis-india.org/a2k/blogs/lid-on-royalty-outflows</a> (last accessed 21 April, 2016), for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.</p>
</div>
<div id="ftn40">
<p><a name="_ftn40"></a> Supra note 33.</p>
</div>
<div id="ftn41">
<p><a name="_ftn41"></a> Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses, available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices </a> <span> </span> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn42">
<p><a name="_ftn42"></a> Supra note 26.</p>
</div>
<div id="ftn43">
<p><a name="_ftn43"></a> Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies"> http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn44">
<p><a name="_ftn44"></a> Id.</p>
</div>
<div id="ftn45">
<p><a name="_ftn45"></a> See the Ericsson-CCI case, supra note 6, for Intex's submissions as discussed by Justice Bakhru.</p>
</div>
<div id="ftn46">
<p><a name="_ftn46"></a> Id.</p>
</div>
<div id="ftn47">
<p><a name="_ftn47"></a> Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, available at <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"> http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india </a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn48">
<p><a name="_ftn48"></a> See the Ericsson-CCI case, supra note 6, at paragraph 19.2.</p>
</div>
<div id="ftn49">
<p><a name="_ftn49"></a> Supra note 47.</p>
</div>
<div id="ftn50">
<p><a name="_ftn50"></a> See the Ericsson-CCI judgment, supra note 6, at paragraphs 88-105.</p>
</div>
<div id="ftn51">
<p><a name="_ftn51"></a> Section 19(4) of the Competition Act. See also <i>Competition Commission of India</i> v. <i>Steel Authority of India and Another</i>, (2010) 10 SCC 744.</p>
</div>
<div id="ftn52">
<p><a name="_ftn52"></a> Section 115 of the Patents Act, 1970.</p>
</div>
<div id="ftn53">
<p><a name="_ftn53"></a> <i>Huawei Technologies Co. Ltd </i> v.<i> ZTE Corp. and ZTE Deutschland</i>, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C-170/13.</p>
</div>
<div id="ftn54">
<p><a name="_ftn54"></a> Third Party United States Fed. Trade Commission's Statement on the Public Interest, <i>In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof</i>, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-745 (Jun. 6, 2012).</p>
</div>
<div id="ftn55">
<p><a name="_ftn55"></a> Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens<i>,</i> 80 Antitrust Law Journal 39 (2015), available at <span>h</span><a href="http://ssrn.com/abstract=2374983">ttp://ssrn.com/abstract=2374983</a><span> or</span> <a href="http://dx.doi.org/10.2139/ssrn.2374983">http://dx.doi.org/10.2139/ssrn.2374983</a><a href="http://dx.doi.org/10.2139/ssrn.2374983"> </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn56">
<p><a name="_ftn56"></a> Section 146(2) of the Patents Act, 1970..</p>
</div>
<div id="ftn57">
<p><a name="_ftn57"></a> Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at <a href="http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html"> http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn58">
<p><a name="_ftn58"></a> Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at <a href="http://www.ipab.tn.nic.in/045-2013.htm">http://www.ipab.tn.nic.in/045-2013.htm</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn59">
<p><a name="_ftn59"></a> Intellectual Property India, Public Notice, available at <a href="http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf">http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf</a> (last accessed 22 April, 2016) <i>and</i> Intellectual Property India, Public Notice, available at <a href="http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf">http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn60">
<p><a name="_ftn60"></a> Supra note 57.</p>
</div>
<div id="ftn61">
<p><a name="_ftn61"></a> Id.</p>
</div>
<div id="ftn62">
<p><a name="_ftn62"></a> See research findings available at <a href="http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf"> http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn63">
<p><a name="_ftn63"></a> In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, <i>Patent Working in India: Delhi HC issues notice in Shamnad Basheer </i>v<i>. Union of India & Ors. - I</i>, available at <a href="http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html"> http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn64">
<p><a name="_ftn64"></a> In response to an RTI request made to the IPO in Mumbai for forms unavailable on the website, CIS received a reply stating, "As thousand [sic] of Form -27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official staff/ manpower and it will affect day to day [sic] work of this office." This research is ongoing and unpublished. Please contact us for a copy of the RTI application and the response received.</p>
</div>
<div id="ftn65">
<p><a name="_ftn65"></a> WIPO Secretariat<i>, </i>Patent Pools and Antitrust - A Comparative Analysis, available at <a href="https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf"> https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn66">
<p><a name="_ftn66"></a> Form 27, The Patents Act, available at <a href="http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf"> http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn67">
<p><a name="_ftn67"></a> David J. Goodman and Robert A. Myers, 3G Cellular Standards and Patents, available at <a href="http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf">http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn68">
<p><a name="_ftn68"></a> Darien CT, Review of Patents Declared as Essential to WCDMA through December, 2008, available at <a href="http://www.frlicense.com/wcdma1.pdf">http://www.frlicense.com/wcdma1.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn69">
<p><a name="_ftn69"></a> Supra note 67.</p>
</div>
<div id="ftn70">
<p><a name="_ftn70"></a> Donald L. Martin and Carl De Meyer, Patent Counting, a Misleading Index of Patent Value: A Critique of Goodman & Myers and its Uses, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn71">
<h5><a name="h.b6s0l5evilsq"></a> <a name="_ftn71"></a> Rohini Lakshané, Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation<i>,</i> available at <a href="http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation"> http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation </a> (last accessed 22 April, 2016). See also supra note 47 for more details.</h5>
</div>
<div id="ftn72">
<p><a name="_ftn72"></a> Supra note 55.</p>
</div>
<div id="ftn73">
<p><a name="_ftn73"></a> 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970), modified and aff'd, 446 F. 2d 295 (2d Cir. 1971), cert. denied, 404 U.S. 870 (1971).</p>
</div>
</div>
<div style="text-align: justify; ">
<hr size="1" width="33%" align="left" />
<div>
<div id="_com_1"><a name="_msocom_1"></a>
<p>2015</p>
</div>
</div>
<div>
<div id="_com_2"><a name="_msocom_2"></a>
<p>They filed it in 2011</p>
</div>
</div>
<div>
<div id="_com_3"><a name="_msocom_3"></a>
<p>The 2011 filing only includes pharma, BTW: http://spicyip.com/docs/Form%2027s.pdf. Also, this writ is from May 2015: http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf Anyway, I'll leave it as it is.</p>
</div>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms'>https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a>
</p>
No publisherAnubha Sinha, Nehaa Chaudhari and Rohini LakshaneAccess to KnowledgePervasive TechnologiesCompetitionFeaturedPatents2016-05-03T02:30:15ZBlog EntryNational Resource Kit : The West Bengal Chapter (Call for Comments)
https://cis-india.org/accessibility/blog/the-west-bengal-chapter
<b>The National Resource Kit team is pleased to bring you its research on the state of laws, policies and programmes for persons with disabilities in the state of West Bengal.</b>
<hr />
<p>Note: The chapter is an early draft and will undergo subsequent modifications. We welcome comments and feedback from our readers.</p>
<hr />
<h2>Executive Summary</h2>
<p style="text-align: justify; ">The state of West Bengal has issued the West Bengal Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules 1999 to implement the provisions under the central Persons with Disabilities (Protection of Rights, Equal Opportunities and Full Participation) Act 1995.</p>
<p style="text-align: justify; ">The Department of Women and Child Development and Social Welfare is primarily responsible for the welfare of persons with disabilities in the state. The government of West Bengal has issued six notifications in education, ten notifications in employment and training, ten notifications in health and rehabilitation, ten notifications in social protection and two notifications in transport for persons with disabilities.</p>
<ul>
<li>Capital: Kolkata</li>
</ul>
<ul>
<li>Population: 91,347,736</li>
</ul>
<ul>
<li>Population of persons with disabilities: 1,847,184 </li>
</ul>
<ul>
<li>Literacy: 77.08%</li>
</ul>
<ul>
<li>HDI: 0.625 Ranked: 19th (2005 status) </li>
</ul>
<ul>
<li>Department: Department of Women and Child Development and Social Welfare</li>
</ul>
<ul>
<li>Other authorities: Office of the Chief Commissioner for Persons with Disabilities</li>
</ul>
<hr />
<p><a href="https://cis-india.org/accessibility/blog/west-bengal-chapter.pdf" class="internal-link">Click</a> to download the West Bengal chapter (PDF, 344 Kb)</p>
<p>
For more details visit <a href='https://cis-india.org/accessibility/blog/the-west-bengal-chapter'>https://cis-india.org/accessibility/blog/the-west-bengal-chapter</a>
</p>
No publisheranandiFeaturedAccessibility2013-11-07T06:19:34ZBlog EntryPrivacy Matters — Analyzing the Right to "Privacy Bill"
https://cis-india.org/internet-governance/privacy-matters-analyzing-the-right-to-privacy-bill
<b>On January 21, 2012 a public conference “Privacy Matters” was held at the Indian Institute of Technology in Mumbai. It was the sixth conference organised in the series of regional consultations held as “Privacy Matters”. The present conference analyzed the Draft Privacy Bill and the participants discussed the challenges and concerns of privacy in India.</b>
<p>The conference was organized by Privacy India in partnership with the Centre for Internet & Society, International Development Research Centre, Indian Institute of Technology, Bombay, the Godrej Culture Lab and Tata Institute of Social Sciences. Participants included a wide range of stakeholders that included the civil society, NGO representatives, consumer activists, students, educators, local press, and advocates.</p>
<p><a href="https://cis-india.org/internet-governance/high-level-summary-and-critique-to-the-leaked-right-to-privacy-bill-2011" class="internal-link" title="High Level Summary and Critique to the Leaked Right to Privacy Bill 2011">Comments to the Right to Privacy Bill</a></p>
<h2>Welcome</h2>
<p><strong>Prashant Iyengar</strong> was the Lead Researcher with Privacy India, opened the conference with an explanation of Privacy India’s mandate to raise awareness, spark civil action and promote democratic dialogue around privacy challenges and violations in India. He summarized the five “Privacy Matters” series previously organised across India in <a href="https://cis-india.org/internet-governance/blog/privacy/privacy-nujsconference-summary" class="external-link">Kolkata</a> on January 23, 2011, in <a href="https://cis-india.org/internet-governance/blog/privacy/privacy-conferencebanglaore" class="external-link">Bangalore</a> on February 5, 2011, in <a href="https://cis-india.org/internet-governance/blog/privacy/privacy-matters-report-from-ahmedabad" class="external-link">Ahmedabad</a> on March 26, 2011, in <a href="https://cis-india.org/internet-governance/blog/privacy/privacy-guwahati-report" class="external-link">Guwahati</a> on June 23, 2011 and in<a href="https://cis-india.org/internet-governance/privacy-chennai-report.pdf/view" class="external-link"> Chennai </a>on August 6, 2011.</p>
<h2>Keynote Address</h2>
<p><strong>Na. Vijayashankar</strong> (popularly known as <strong>Naavi</strong>), a Bangalore based e-business consultant, delivered the key note address on the quest of a good privacy law in India. </p>
<table class="plain">
<tbody>
<tr>
<td><img src="https://cis-india.org/home-images/Naavi.jpg/image_mini" title="Naavi" height="171" width="155" alt="Naavi" class="image-inline" /></td>
<td>
<p>He described the essential features of good privacy legislation. In
analyzing the Draft Privacy Bill’s definition of the right to privacy,
he suggested it should be defined through the “right to personal
liberty” rather than through what constitutes “infringements”. Mr.
Vijayashankar went on to explain that the “privacy right” should be
taken beyond “information protection” and defined as a “personal privacy
or a sense of personal liberty without constraints by the society”. He
explained the various classifications and levels of protection
associated with the availability and disclosure of data. He expressed
concerns regarding monitoring of data processors and suggested that data
controllers have contractual agreements between data processors, so as
to ensure an obligation of data security practices. He also called for
the simplification and division of offences and suggested numerous
reasons as to why the Cyber Appellate Tribunal would not be an ideal
monitoring mechanism or authority. See Naavi's presenation <a href="https://cis-india.org/internet-governance/proposed-privacy-bill" class="internal-link" title="Proposed Privacy Bill">here</a></p>
</td>
</tr>
</tbody>
</table>
<h2>Session I: Privacy and the Legal System</h2>
<p> <strong>Dr. Sudhir Krishnaswamy</strong>, Assistant Professor at the National Law School of India</p>
<table class="plain">
<tbody>
<tr>
<td>Dr. Krishnaswamy started off the presentation by questioning the
normative assumptions the Draft Privacy Bill makes. He referred to the
controversy of Newt Gingrich's second marriage, to question the range of
moral interests that were involved. The Bill falls short in accounting
for dignity in relation to privacy.<br /><br />He described the Draft Privacy Bill as a reasonable advance, given where
privacy laws were before. Although, he feels that it does fall short,
in terms of a narrow position, on what privacy law should do. He also
questioned if it satisfies constitutional standards. He stressed the
importance of philosophical work around the Draft Privacy Bill
considering that the nature of privacy is not neat and over-arching.<br /></td>
<td><img src="https://cis-india.org/home-images/sudhir.jpg/image_mini" title="Sudhir Krishnaswamy" height="144" width="152" alt="Sudhir Krishnaswamy" class="image-inline image-inline" /></td>
</tr>
</tbody>
</table>
<h3>Privacy and the Constitutional Law</h3>
<p><strong>N S Nappinai</strong>, Advocate, High Court, Mumbai,</p>
<table class="plain">
<tbody>
<tr>
<td><img src="https://cis-india.org/home-images/nappinai.jpg/image_preview" title="Nappinai" height="172" width="157" alt="Nappinai" class="image-inline image-inline" /></td>
<td>Nappinai spoke on the constitutional right to privacy. She explained the
substantial development of Article 21 of the Constitution of India to
include the ‘right to privacy’ with regards to its interpretation and
application. She described the different shift of the application of the
right to privacy in the West in comparison to India. The West has moved
from the right to privacy pertaining to property to the right to
privacy concerning personal rights, whereas India moved from personal
rights to property rights. She outlined three aspects of privacy:
dignity, liberty and property rights. <br /><br />Ms. Nappinai dissected the Bill in its major components: interception,
surveillance, method and manner of personal data, health information,
collection, processing and use of personal data. Using these components,
she questioned what precedence exists? What should be further protected
or reversed? What lessons should legislators draw from?<br /></td>
</tr>
</tbody>
</table>
<p>Shortcomings of the Draft Right to Privacy Bill falls include:</p>
<ol><li>The objects and reasons section in the Draft Privacy Bill declares the right to privacy to every citizen as well as delineates the collection and dissemination of data. Nappinai dismisses the need for this delineation on the grounds that data protection is an inherent part of the right to privacy, it is not exclusive.</li><li>Large focus on transmission of data. The provisions do not account for property rights pertaining to the right to privacy. Therefore, the ‘knock-and-enter’ rule, the ‘right to be left alone’ and the ‘right to happiness’ should be included.</li><li>Applicability of the Bill should extend to all persons as well as data residing within the territory. It would be self-defeating if it only includes citizens, considering that the Constitution extends to all persons within the territory.</li><li>The right to dignity is unaccounted for.<br /><br />See Nappinai's presentation <a href="https://cis-india.org/internet-governance/privacy-and-the-constitution" class="internal-link" title="Privacy and the Constitution">here</a><br /></li></ol>
<h2>Session II: Privacy and Freedom of Expression</h2>
<p><strong>Apar Gupta</strong>, Advocate, Delhi</p>
<table class="plain">
<tbody>
<tr>
<td>Apar Gupta is an advocate based in Delhi who specializes in IP and
electronic commerce law, spoke predominantly on the interplay between
privacy and freedom of expression. He used the example of an advocate
tweeting about his criticism of a judges’ ruling, to illustrate how
different realms of online anonymity enable freedom of speech. He went
beyond the traditional realm of journalistic architecture such as
television channels or newspapers and explained online community
disclosure.
<p>Mr. Gupta provided a practical example of Indian Kanoon, a popular
online database of Indian court decisions. Because Indian Kanoon is
linked to the Google search engine, many individuals involved in civil
and criminal matters have requested Indian Kanoon to remove the court
judgments, under privacy claims. This particularly occurs with
individuals involved in matrimonial cases. However, as court judgment
constitute public records India Kanoon only removes court judgments when
requested by a court order.</p>
<p>He described the several ways legislators can define privacy and
freedom of expression. Considering that the privacy of an individual may
border upon freedom of speech and expression, he questioned whether or
not privacy should override the right to freedom of speech and
expression. In addition, Mr. Gupta discussed the debate on whether or
not the Privacy Bill should override all existing provisions in other
laws.</p>
</td>
<td><img src="https://cis-india.org/home-images/Gupta.jpg/image_preview" alt="Apar Gupta" class="image-inline image-inline" title="Apar Gupta" /></td>
</tr>
</tbody>
</table>
<p>Additionally, he analyzed the provisions of the Draft Privacy Bill
using three judgments. In these judgments, different entities sought of
various forms of speech to be blocked under privacy claims. He spoke
about the dangers of a statutory right for privacy that does not
safeguard freedom of speech and expression. Considering that the privacy
statute may allow for a form of civil action permitting private parties
to approach courts to stop certain publications, he stressed the
importance for legislators to ensure balanced privacy legislation
inclusive of freedom of speech and expression.</p>
<h3>Sexual Minorities and Privacy<br /></h3>
<p><strong>Danish Sheikh</strong>, researcher at Alternative Law Forum</p>
<table class="plain">
<tbody>
<tr>
<td><img src="https://cis-india.org/home-images/danish.jpg/image_preview" alt="Danish " class="image-inline image-inline" title="Danish " /></td>
<td>Danish examined the status of sexual minorities in the light of privacy
framework in India. The tag of decriminalization has served to greatly
alter the way institutions approach the question of privacy when it
comes to sexual minorities. He used the Naz Foundation judgment as a
chronological marker to map the developments in the right to privacy and
sexual minorities over the years.
<p>He outlined four key effects on the right to privacy due to the Naz Foundation judgment:</p>
<ul><li>Prepared the understanding of privacy as a positive right and placed obligations on the state,</li><li>Discussed privacy as dealing with persons and not just places, it took into account decisional privacy as well as zonal privacy,</li><li>Connected privacy with dignity and the valuable worth of individuals, and</li><li>Included privacy on one’s autonomous identity.</li></ul>
</td>
</tr>
</tbody>
</table>
<p>He described various incidents that took place before the Naz Foundation judgment, pre-Naz, that altered the way we conceived of queer rights in general and privacy in particular, including the Lucknow incidents, transgender toilets, passport forms, the medical establishment and lesbian unions. Post-Naz, he described two incidents including the Allahabad Muslim University sting operation as well as the TV9 “Expose” that captured public imagination. </p>
<p>He concluded by asking: “What do these stories tell us about privacy?” The issues faced by the transgender community tell us that privacy doesn’t necessarily encompass a one-size-fits-all approach, and can raise as many questions as it answers. The issues faced by the Lucknow NGOs display the institutionalized disrespect for privacy and that has marginally more devastating consequences for the homosexual community by the spectre of outing. The issues faced by lesbian women evidence yet another need for breaching the public/private divide, demonstrating how the protection of the law might be welcome in the family sphere. Alternate sexual orientation and gender identity might bring the community under a common rubric, but distilling the components of that rubric is essential for engaging in any kind of useful understanding of the community and the kind of privacy violations it suffers – or engage with situations when the lack of privacy is empowering.</p>
<h2>Session III: Privacy and National Security</h2>
<p><strong>Menaka Guruswamy</strong>, Advocate, Supreme Court of India</p>
<table class="plain">
<tbody>
<tr>
<td>Menaka explored national security and its relationship to privacy. In
her presentation, she compared the similar manner in which the courts
approach national security and privacy issues. The courts feel national
security and privacy issues are too complex to define, therefore, they
take a case-by-case approach.<br />
<br />
<p>Ms. Guruswamy described three incidents that urged her to question
national security and privacy. First, she was interested in the lack of
regulation surrounding intelligence agencies and was involved in the
introduction of the Regulations of Intelligence Agencies Bill as a
private members bill. Second, national security litigation between the
Salwa Judum judgment and the State of Chhattisgarh is an example of how
national security triumphs constitutional rights and values. Third,
privacy in the context of the impending litigation of Naz Foundation in
the Supreme Court. She described the larger conversation of national security focus on
values of equality and privacy. She discussed the following questions
that serve in advancing certain conception of rights:</p>
<ul><li>How do we posit privacy which necessarily, philosophically as
well as judicially, is carved out as the right of an individual to be
left alone?</li><li>What are the consequences when national security,
which is posited as the rights of the nation, is in conflict with the
right of the individual to be left alone?</li><li>Considering that
constitutional rights are posited as a public facet of citizenship how
does a right to privacy play in that context?</li></ul>
</td>
<td><img src="https://cis-india.org/home-images/copy_of_menaka.jpg/image_preview" alt="Menaka" class="image-inline image-inline" title="Menaka" /></td>
</tr>
</tbody>
</table>
<h3>Privacy and UID</h3>
<p><strong>R. Ramakumar</strong>, professor at the Tata Institute of Social Sciences</p>
<table class="plain">
<tbody>
<tr>
<td><img src="https://cis-india.org/home-images/ramkumar.jpg/image_preview" title="Ramakumar" height="171" width="202" alt="Ramakumar" class="image-inline image-inline" /></td>
<td>Prof. Ramakumar spoke on UID, its collection of information and the
threat to individual privacy. First, he provided a historical trajectory
of national security that has led to increased identity card schemes.
He described the concrete connection between UID and national security.
<p><br />He briefed the gathering on the objectives of the UID project. He
described several false claims as proposed by the UIDAI. He explicitly
disproved the UIDAI claim that Aadhaar is voluntary. He did this by
comparing various legislations associated with the National Population
Registrar that had provisions mandating the inclusion of the UID number.</p>
<p> </p>
</td>
</tr>
</tbody>
</table>
<p>He went on to explain that the misplaced emphasis of technology to
handle large populations remains unproven. He described two specific
violations of privacy inherent in the UID system: convergence of
information and consent. The UID database makes it possible for the
linking or convergence of information across silos. In addition, consent
is unaccounted for in the UID system. The UID enrollment form requires
consent from a person to share their information. However, the software
of the enrollment form automatically checks ‘yes’, therefore you are not
asked. Even if you disagree, it automatically checks ‘yes’. Default
consent raises the important question, “to what extent are we the owners
of our information?” and “what are the privacy implications?”</p>
<p>Mr. Ramakumar was once asked, by Yashwant Sinha in a Parliamentary Standing Committee meeting, “Is the Western concept of privacy important in developing country like India?”. Using this question posed to him, he stressed the importance of privacy to be understood as a globally valued right, entitlement and freedom. He also referred to Amartya Sen’s work on individual freedoms.</p>
<h2>Conclusion</h2>
<p>During the daylong consultation numerous questions and themes relating to privacy were discussed:</p>
<table class="plain">
<tbody>
<tr>
<td>
<ul><li>How is the right to privacy defined?</li><li>How can the <a href="https://cis-india.org/internet-governance/draft-bill-on-right-to-privacy" class="internal-link" title="Draft Bill on Right to Privacy">Draft Privacy Bill</a> redefine the right to privacy?</li><li>How can reasonable deterrence mechanisms be included?</li><li>Does duplication of the right to privacy exists in different statutes?</li><li>Is the Cyber Appellate Tribunal an ideal monitoring mechanism or authority? <br /></li><li>What are the circumstances under which authorized persons can exercise the Right of privacy invasion?</li><li>How can the Draft Privacy Bill account for the right to dignity?</li><li>How much information should the State be allowed to collect?</li><li>How can citizens become more informed about the use of their information and the privacy implications involved?</li><li>What would be the appropriate balance or trade-off between security and civil liberties?</li><li>What are the dangers with permitting the needs of national security to trump competing values?</li><li>What are the consequences for the homosexual community, when faced with institutionalized disregard for privacy? </li></ul>
</td>
<td><img src="https://cis-india.org/home-images/copy_of_usha.jpg/image_preview" alt="Usha " class="image-inline image-inline" title="Usha " /></td>
</tr>
</tbody>
</table>
<p> <img src="https://cis-india.org/home-images/contests.jpg/image_preview" alt="Participants" class="image-inline image-inline" title="Participants" /></p>
<p> </p>
<p> </p>
<p><a href="https://cis-india.org/internet-governance/proposed-privacy-bill" class="internal-link" title="Proposed Privacy Bill"><br /></a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/privacy-matters-analyzing-the-right-to-privacy-bill'>https://cis-india.org/internet-governance/privacy-matters-analyzing-the-right-to-privacy-bill</a>
</p>
No publishernatashaPrivacyFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceFeatured2012-02-15T04:27:28ZBlog EntryWorkshop on Open Data for Human Development - Sessions Report
https://cis-india.org/openness/workshop-on-open-data-for-human-development-2015-06-report
<b>CIS facilitated a workshop on open data policy and tools for government officials from Sikkim, Meghalaya, and Tripura, and those from Bhutan and Maldives, in June 2015. The workshop was co-facilitated with Akvo, DataMeet, and Mapbox, and was supported by International Centre for Human Development of UNDP India. Here we share the workshop report and other related documents. The report is written by Sumandro, along with Amitangshu Acharya of Akvo.</b>
<p> </p>
<h2>Day 01, June 03, 2015</h2>
<p>The first day of the workshop began with <a href="https://en.wikipedia.org/wiki/Prem_Das_Rai"><strong>Mr. Prem Das Rai</strong></a>, Honourable MP, Loksabha, Sikkim, briefly addressing the participants. He contextualised the workshop against the background of technological changes and emerging opportunities of governance through effective usages of data. <a href="https://en.wikipedia.org/wiki/A._K._Shiva_Kumar"><strong>Dr. A.K. Shiva Kumar</strong></a>, Director of the <a href="http://www.undp.org/content/india/en/home/operations/projects/human-development/the-international-centre-for-human-development.html">International Centre for Human Development (IC4HD)</a>, UNDP India, welcomed the participants and initiated a panel discussion on data, ICTs and governance. The panel had three speakers: <a href="https://twitter.com/SrivatsaKrishna"><strong>Mr. Srivatsa Krishna</strong></a>, IAS and Secretary, <a href="https://www.bangaloreitbt.in/">Department of Information Technology, Biotechnology, and Science and Technology</a>, Government of Karnataka; <a href="http://www.cgg.gov.in/adg_profile.html"><strong>Dr. B. Gangaiah</strong></a>, Additional Director General, <a href="http://www.cgg.gov.in/">Centre for Good Governance</a>, Hyderabad; and <a href="https://twitter.com/sunil_abraham"><strong>Sunil Abraham</strong></a>, Executive Director, <a href="http://cis-india.org/">the Centre for Internet and Society</a>, Bengaluru and Delhi.</p>
<p><strong>Mr. Krishna</strong> spoke about the strategies adopted in setting up IT and ITES clusters in Cyberabad, Andhra Pradesh and in Bengaluru, Karnataka. He noted that tax cuts and accelerated land allocation are key to incentivising the private sector to set up IT and ITES units. Another major concern is that of ensuring supply of good quality IT workers. He also emphasised on the need for governments to build effective public facing electronic services - either in the form of Nemmadi Kendras, where people can physically go to access various government services, or in the form of mobile applications that bring different civic services into one digital interface, like <a href="https://www.bangaloreone.gov.in/public/default.aspx">Bangalore One</a> and <a href="https://www.mobile.karnataka.gov.in/goken/login.aspx">Karnataka Mobile One</a>.</p>
<p><strong>Dr. Gangaiah</strong> gave an extensive overview of the idea and applications of open data in the contexts of governance and development. He noted that government data (in India) often suffers from criticisms related to quality, as well as the lack of availability of the same in public domain. The key problems, he identified, for opening up government data in India are that most often the data is collected by a government agency for a very specific purpose, and the steps required to ensure wider circulation and use of the same is not taken (such as lack of documentation and interoperability of data); and that the government agencies most often consider the collected data as a source of power, and hence as something to be retained and not disclosed in full details. The slides from Dr. Gangaiah’s presentation can be accessed <a href="https://drive.google.com/file/d/0B7xi0bhhq-OxcGs3UndvWDZJMlk/view?usp=sharing">here</a>.</p>
<p><strong>Mr. Abraham</strong>’s presentation highlighted several areas of concern when deploying data-driven techniques and solutions for human development challenges. He described how the current phase of open data discussions by central and state governments in India represent the third phase of ‘openness’ in governance in India. While the first phase focused on usage of Free/Libre Open Source Softwares in building electronic governance applications and information systems, the second phase involved embracing of open software standards and formats across government information systems and IT solutions. It is very important to note that with the third phase of openness focusing on opening up of data and information, both of these earlier foci of free and open source softwares, and open standards and interoperability are returning as complementary components to ensure seamless publication of open government data. However, he argued, when deploying data-driven techniques and solutions for human development challenges, it is imperative to remember three things: 1) collection of data is a time- and effort-consuming task, and hence must be optimised so as to not to take away time and effort from actual developmental interventions, 2) bad quality of development data is a structural problem, often emanating from the data being not useful to the person actually collecting it, and 3) availability of data does not automatically change or open up the process of decision-making.</p>
<p>The second session of the day started with a detailed presentation by <strong>Mr. T. Samdup</strong>, Joint Director, Department of Information Technology, Government of Sikkim, on the context, the making, and the salient features of the <a href="http://www.sikkim.gov.in/stateportal/Link/SODAAP%20Policy%20Document.pdf">Sikkim Open Data Acquisition and Accessibility Policy (SODAAP)</a>, 2014. He explained that the Policy mandates setting up of an online state data portal that will host all data sets generated by various agencies of the Government of Sikkim, and making such data available, subject to concerns of privacy and security, across all state government agencies and the citizens in general. The key needs driving this Policy have been that for availability of accurate and timely data on various aspects of human development in the state, as well as for reducing expenses and confusions due to duplication of data collection efforts. The slides from Mr. Samdup’s presentation can be accessed <a href="https://drive.google.com/file/d/0B7xi0bhhq-OxcktuMm0tTGFMWHc/view?usp=sharing">here</a>.</p>
<p>The presentation by <strong>Mr. Samdup</strong> was followed by one by <a href="https://twitter.com/ajantriks"><strong>Mr. Sumandro Chattapadhyay</strong></a> of the Centre for Internet and Society on an initial set of questions and concerns that should be addressed by the implementation plan of the SODAAP. He took a detailed look at the four objectives mentioned in the Policy document, and discussed what tasks, decisions, and deliberations are needed to achieve each of those. In conclusion, he listed a set of core components of the implementation process that must also be discussed in the implementation plan document, namely: 1) governance and oversight structure for implementation, 2) incentivising government personnel for opening up data across departments, including financial support for the same, 3) metadata, documentation of data collection process, and implementing unique identifiers, and 4) developing processes of sharing of data between the Union and the state government, especially in reference to national Management Information Systems. The slides from Mr. Chattapadhyay’s presentation can be accessed <a href="https://drive.google.com/file/d/0B7xi0bhhq-OxNUVGM1ZqcGhiUUU/view?usp=sharing">here.</a></p>
<p>These presentations were followed by a general discussion on various aspects of the SODAAP and the challenges to be overcome during its implementation. This session provided a general introduction to the SODAAP, especially for workshop participants who are not from Sikkim, and also set up the key questions to be discussed and answered while preparing the first draft of the SODAAP implementation plan.</p>
<p>After the second session ended, the participants were asked to individually write down the key challenges they identify for the implementation process of SODAAP. These responses were compiled by Sumandro and made available as a reference document for the implementation plan. The chart below summarises these responses.</p>
<p><iframe src="http://ajantriks.github.io/cis/charts/2015.08_sodaap-challenges/index.html" frameborder="0" height="400" width="700"></iframe></p>
<p> </p>
<p>In the third session of the day, <a href="https://twitter.com/joycarpediem"><strong>Joy Ghosh</strong></a> and <a href="https://twitter.com/amitangshu"><strong>Amitangshu Acharya</strong></a> of <a href="http://akvo.org/">Akvo</a> talked about the challenges of collecting structured born-digital data from the grassroots level, and how using mobile-based applications, like <a href="http://akvo.org/products/akvoflow/">Akvo FLOW</a>, can address such challenges. Akvo FLOW runs on all Android-based smartphones, and allows ground level development workers to directly feed data into the phone, as well as collect related materials like GPS location and photographs, based upon a form that is centrally designed and downloaded into their phones by the development workers. The data is then kept in the phone till it is sent back to the main server, where data coming from all different surveyors using the same form is shown on a map-based interface for easy navigation of the data across space and time. In this session, Mr. Acharya first introduced the participants to the issues around digital data collection, touching upon issues of ethics, capacity, prioritisation of data collection process along with tools. Mr. Ghosh then took over to describe the functioning of the tool, and then distributed several smartphones, pre-loaded with Akvo FLOW, among the participants for an applied data collection exercise where the participants walked around the NIAS campus and collected data using the FLOW interface. They returned to see their data mapped and analysed on the online dashboard. Their presentation can be accessed <a href="https://drive.google.com/file/d/0B0kFsiLLpy0XdDM2TE5tckE5Zlk/view?usp=sharing">here</a>.</p>
<p> </p>
<h2>Day 02, June 04, 2015</h2>
<p>The second day started with two consecutive presentations by <a href="https://twitter.com/thej"><strong>Mr. Thejesh GN</strong></a> of <a href="http://datameet.org/">DataMeet</a>, and <a href="https://twitter.com/Sramach9"><strong>Mr. Sivaram Ramachandran</strong></a> of <a href="http://mapbox.com/">Mapbox</a> on the tools and techniques for working with statistical data and with geospatial data, respectively. The former presentation took the participants through the stages of working with statistical data: from collecting and finding data, to cleaning and validating, and finally analysing the data. Various free and open source tools for each of these stages were also discussed in brief, such as <a href="https://pdftables.com/">PDF Tables</a><a> and </a><a href="http://tabula.technology/">Tabula</a> for converting PDF tables to spreadsheets, <a href="http://openrefine.org/">Open Refine</a> for cleaning data, and <a href="http://app.raw.densitydesign.org/">RAW</a> and <a href="https://datawrapper.de/">DataWrapper</a> for generating web-based dynamic charts. The latter presentation explored the various ways in which geospatial data can be used to inform and support decision-making, and the tools that can be used to render and present geospatial data in forms that are accessible for decision-makers within government and also for individual users. Mr. Ramachandran presented the various free and open source tools available for working with geospatial data, such as <a href="https://www.mapbox.com/mapbox-studio/">Mapbox Studio</a>, <a href="http://qgis.org/en/site/">Quantum GIS</a>, and <a href="http://leafletjs.com/">Leaflet JS</a>. He also gave a brief introduction to <a href="http://openstreetmap.org/">OpenStreetMap</a>, the wiki-like user-contributed global map data platform. Both the presentations can be accessed <a href="http://thejeshgn.com/presentations/Data_Journalism_Workshop.html">here</a> and <a href="https://drive.google.com/file/d/0B7xi0bhhq-OxQTB3eVpjNmtTUDg/view?usp=sharing">here</a>, respectively. After this session, the participants were divided into two groups. One group engaged further with tools and techniques of working with statistical and geospatial data. The second group took part in a series of exercises to identify and document the current data flows and bottlenecks thereof across several key departments of Government of Sikkim.</p>
<p>The group engaging in applications of various software tools for working with statistical and geospatial data was facilitated by <strong>Mr. Thejesh</strong> and <strong>Mr. Ramachandran</strong>. This group worked with a sample statistical data set, taking it across the stages of finding, cleaning, analysing, and visualising as discussed earlier. The participants used the online version of <a href="http://www.tableau.com/">Tableau</a> to create dynamic charts. Afterwards, they were introduced to various methods of contributing and downloading data from the OpenStreetMap, including directly adding data points through the online editor named <a href="http://wiki.openstreetmap.org/wiki/ID">iD</a>. The participants went out in the NIAS campus to collect geospatial data about various natural and human-made features of the campus, such as trees, pathways, etc.</p>
<p>The second group working on documenting data flows and identifying bottlenecks was facilitated by <strong>Mr. Chattapadhyay</strong>, <strong>Mr. Acharya</strong>, and <strong>Ms. Rajashi Mukherjee</strong> from Akvo. The group was further divided into department-wise teams, one each for the Department of Health, the Department of Economic Statistics, Monitoring, and Evaluation (DESME), the Human Resource Development Department (HRDD), and representatives from Gram Panchayat Units. The exercise began with each of the teams discussing and drawing the flow of data for one of the major data set maintained by the agency concerned. The data flows were drawn by identifying key moments of its processing (such as primary collection, verification, digitisation, analysis, storage, reporting, etc.), the actors involved in that moment, the tools and data formats relevant for each moment, and which agency finally stores and uses the data. Once these processes were described on paper, the next part of the exercise focused on identifying which challenges exist at which part of these data flows. This was followed up by a ranking of all these challenges, in terms of how critically they affect the ability of the agency concerned to use and share the final data. All the teams worked separately, and conversed with the facilitators as needed, to develop the data flow diagrams and identify the key challenges.</p>
<p>The major common challenges noted by these teams were: <strong>1)</strong> delays in collection, verification, and digitisation of data, <strong>2)</strong> inability of state government agencies to access data collected as part of centrally-funded welfare schemes, and <strong>3)</strong> parallel systems of data collection employed by different departments leading to duplication of efforts and data.</p>
<p>Several interesting insights came through in this exercise. For example, data related to education is collected both by the HRDD, and the Sarva Shiksha Abhiyaan (SSA). However, SSA data is not shared with the HRDD. Also, the HRDD publishes all its data, including the name of students, on their <a href="http://sikkimhrdd.org/Home.aspx">website</a>, making it publicly available. One of the data challenges identified by the HRDD was their difficulty in tracking if scholarship money is reaching the suitable students. When a student moves from one school to another, the records do not get updated easily. This leads to different schools continuing to receive funds for the same scholarship. Aligning school records is important to prevent such leakages.</p>
<p>After these two grouped exercises, all the participants gathered back so that the data flows diagrams and identification of key challenges documented by departmental teams could be presented to the entire group. Each team presented their data flow diagram, and discussed challenges and opportunities. This created a context for different departments to discuss what kind of data they often needed from each other, and how there was neither a platform for inter-departmental discussion on such issues, nor systems that facilitate the same. There was an agreement that an open data platform could address this issue to a great extent. The discussion also highlighted that the most significant data collecting government agency in Sikkim is DESME, however, it does not publish any data in machine-readable formats, and does not even have a website.</p>
<p>This data flow and bottleneck exercise made it very clear that there are several data production and collection processes in place in Sikkim, and also systems that are digesting, processing, and reporting data. Hence, implementing the open data policy will need to negotiate with such complexity.</p>
<p>In the final session of the day, <strong>Dr. Shiban Ganju</strong> made a presentation on applications of open data in healthcare. His talk focused on how converting medical information about a patient being stored at various locations to a combined and shareable Electronic Health Record can save the patient as well as the medical practitioners from duplication of medical tests, easier mobility from one medical institute to another, and a clearer macro-level understanding of key public health indicators. Dr. Ganju discussed the open health data initiatives in the United States, in the United Kingdom, and in Sweden, before discussing the challenges faced in implementing interoperable standards for open health data in India. The slides from Dr. Ganju’s presentation can be accessed <a href="https://drive.google.com/file/d/0B7xi0bhhq-OxTTczUTY3MWZFbG8/view?usp=sharing">here</a>.</p>
<p> </p>
<h2>Day 03, June 05, 2015</h2>
<p>The final day started with a set of presentations from <strong>Mr. Garab Dorji</strong>, Deputy Chief IT Officer, Office of the Prime Minister, Thimphu, Bhutan of the Government of Bhutan, <strong>Mr. Birendra Tiwari</strong>, Senior Informatic Officer, Department of Information Technology, Government of Meghalaya, and <strong>Mr. Milan Chhetri</strong> of Melli Dara Paiyong Gram Panchayat Unit, Sikkim, on various technological solutions being explored, implemented, and practiced by the respective governments and administrative units.</p>
<p><strong>Mr. Milan Chhetri</strong>’s presentation was on the operationalisation of Cyber Villages in Sikkim, which had been initiated in 2013 with support from the Honourable Chief Minister of Sikkim, <strong>Pawan Kumar Chamling</strong>. Cyber Villages aim to address digital divide, by empowering local village units with handheld data devices to collect data from every household and connect the same to a real time dashboard. All village related data is expected to be available in one place. At the same time as part of e-governance initiative, SMS based updates on Government programmes and services will be sent to all villagers. Mr. Chhetri ended his presentation with a short promotional video of the concept, which is embedded below.</p>
<iframe src="https://www.youtube-nocookie.com/embed/ZOqAl8kDwKY?rel=0" frameborder="0" height="360" width="640"></iframe>
<p> </p>
<p>The second session of the day started with a presentation from <a href="https://twitter.com/DurgaPrMisra"><strong>Mr. D. P. Misra</strong></a>, National Data Sharing and Accessibility Policy - Programme Management Unit (NDSAP-PMU), National Informatics Centre, Government of India. The presentation focused on the process of implementation of the <a href="http://data.gov.in/sites/default/files/NDSAP.pdf">National Data Sharing and Accessibility Policy</a> approved by the Government of India in 2012. Mr. Misra has played a key role in the NDSAP-PMU that was trusted with development of the national open government data platform of India and in setting up the procedures and standards for publication of government data by various central and state government agencies through that Platform. His talk described the technical solutions designed by the NDSAP-PMU to make data accessible for the end-users in various file formats, to make visualisation of available data easy, and to make it possible for users to comment upon existing data and to request for data that is unavailable at the moment. Further, he emphasised the need for outreach initiatives by the government so as to build awareness and activities around the available open government data. The slides from Mr. Misra’s presentation can be accessed <a href="https://drive.google.com/file/d/0B7xi0bhhq-OxZjZrc0c4cmxpZFk/view?usp=sharing">here</a>.</p>
<p>The presentation by Mr. Misra was followed by a group exercise where various teams, self-selected by the participants, worked on different sections of the SODAAP implementation plan to put together ideas and plans for the first draft of the document. Five groups were formed and each of them worked on a separate section of the implementation plan: <strong>1)</strong> Governance Framework and Budgetary Support, <strong>2)</strong> Data Inventory and Negative List, <strong>3)</strong> Data Acquisition and Open Standards, <strong>4)</strong> Data Publication Process, Licenses, and Timeframes, and <strong>5)</strong> Awareness, Capacity, and Demand of Data. The initial section titled ‘Introduction to the Policy and its Principles’ was put together by Vashistha Iyer on the basis of the SODAAP document. The technical section on the ‘Sikkim Open Data Portal’ was left out of this drafting exercise, as it was decided that the representatives of the Department of Information Technology will prepare this section on the basis of their interactions with the NDSAP-PMU later in June.</p>
<p>The drafting session was followed by presentations by each team working on a separate section, and quick feedbacks from all the participants. These drafts, along with the feedbacks, have been compiled together by Mr. Chattapadhyay, and is shared with the officials from the Government of Sikkim for their further discussion and eventual finalisation of the SODAAP implementation plan document.</p>
<p>The workshop ended with a round of final words and sharing of learning by the participants, and a vote of thanks on the behalf of the organisers.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/openness/workshop-on-open-data-for-human-development-2015-06-report'>https://cis-india.org/openness/workshop-on-open-data-for-human-development-2015-06-report</a>
</p>
No publishersumandroOpen DataOpen Government DataFeaturedSikkim Open Data Acquisition and Accessibility PolicyOpenness2015-08-28T08:16:09ZBlog EntryNot Just Fancy Television
https://cis-india.org/digital-natives/blog/indian-express-december-8-2012-nishant-shah-not-just-fancy-television
<b>Nishant Shah reviews Ben Hammersley's book "64 Things You Need to Know for Then: How to Face the Digital Future Without Fear ", published by Hodder & Stoughton </b>
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<p style="text-align: justify;">The review was<a class="external-link" href="http://www.indianexpress.com/news/not-just-fancy-television/1042040/0"> published in the Indian Express</a> on December 8, 2012.</p>
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<p style="text-align: justify;">Let us begin by acknowledging that when the world was learning how to drive on the information highway, Ben Hammersley was out there, instructing us how to do it best. So it doesn’t surprise that 64 Things You Need to Know for Then: How to Face the Digital Future Without Fear, despite its untweetable title, is quite spot-on when it comes to describing our digital pasts, demystifying our interweb presents and preparing us for technosocial futures. Well-written, interspersed with illustrative anecdotes, reflective experiences and speculative ideas, the book looks at the good, the bad and the downright bizarre that the digital turn has introduced in our lives. Working through moments of nostalgia for things that have already become obsolete, and through experiences that morph even before we can comprehend them, Hammersley writes (or, as he suggests in his introduction — co-writes with hundreds of anonymous contributors) a book that is readable, for those seeking to understand how the digital world moves and those who want to remember their own role in shaping forgotten trends.</p>
<p style="text-align: justify;">The book also attempts to answer some of the troublesome tensions in our understanding of our contemporary digital lives. Hammersley’s basic intention in writing the book is to show how technological shifts are not merely about changing usage patterns. It radically (and often dramatically) restructures our domains of life, language and labour. Older structures have become redundant and the new ones have not yet found their feet. There are many who attempt to think of the internet as a mere extension of older media practices. But as he says, “The internet is absolutely not just fancy television.” It is a technology that is reshaping everything we had understood about who we are and how we relate to the world around us.</p>
<p style="text-align: justify;">However, Hammersley suggests, the ways in which the internet is rapidly transforming the world leads to a clear divide around technology literacy. The “technologically literate” are shaping the digital turn, experimenting and exploring the possibilities, but unable to fall back upon older structures of assurance to know whether the choices they are making are sustainable. At the same time, the “technologically illiterate” are still responsible for shaping a world that they are quickly losing track of.</p>
<p style="text-align: justify;">This book clearly explains the technological, legal, cultural, social and economic shifts of the last 20 years, and how they foretell our futures, without complicating it with geeky discourses on code or theoretical bluster.</p>
<p style="text-align: justify;">Hammersley also ensures that the book is not merely a glossary of terms. He has the most interesting anecdotes from around the world like Harry Potter fan-fiction and crowdsourced translations in Germany challenging intellectual property rights regimes, the Human Flesh Search Engines in China, which threaten to reinforce regressive mob politics while also enabling cultural vigilantes in our societies. He also goes beyond individual concerns and reflects on the larger political concerns of censorship, control and freedom, discussing with great lucidity, the complicated nuances of hacker groups like Anonymous, political effects of collectives like WikiLeaks, etc. It is an exciting mash-up of events that will make you smile at the audacity and irreverence of the players in the digital playground, but will also make you shiver as it lays bare the new authoritarian and violent regimes that emerge with digital technologies.</p>
<p style="text-align: justify;">Instead of taking partisan positions about something as necessarily good or bad, Hammersley documents some of the practices, effects and affects of technology, to show how our world has changed. There is no explanation of why the list stops at 64 things. But it is a well curated list of social, cultural, economic and political concerns and provides a conversational account of the present and future, speculating, like an old friend on the living room couch on a Sunday afternoon.</p>
<p style="text-align: justify;">The only criticism against Hammersley is that he is too dependent on the rules of the internet to explain the internet. The different laws that have evolved in computing and network theory, in the sociology of the Web and the economic analysis of information societies, are accepted too easily, and used as self-evident explanatory frameworks. But then, this is not a book pretending to argue for a new conceptual framework. It is a book that has set out to educate and entertain, slowly unfolding the fractured narratives of the Web from its military origins to its Arab Spring manifestations. Of the many books that are already flooding the market, trying to decode the Web, Hammersley’s list of 64 things is going to be at the top.</p>
<p style="text-align: justify;"><em>The writer is Director (Research), Centre for Internet and Society, Bangalore</em></p>
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For more details visit <a href='https://cis-india.org/digital-natives/blog/indian-express-december-8-2012-nishant-shah-not-just-fancy-television'>https://cis-india.org/digital-natives/blog/indian-express-december-8-2012-nishant-shah-not-just-fancy-television</a>
</p>
No publishernishantFeaturedResearchers at WorkBook ReviewDigital Natives2015-04-24T11:45:14ZBlog EntryPrivacy in Healthcare: Policy Guide
https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide
<b>The Health Policy Guide seeks to understand what are the legal regulations governing data flow in the health sector — particularly hospitals, and how are these regulations implemented. Towards this objective, the research reviews data practices in a variety of public and private hospitals and diagnostics labs. The research is based on legislation, case law, publicly available documents, and anonymous interviews.</b>
<p><a href="https://cis-india.org/internet-governance/blog/privacy-healthcare.pdf" class="external-link">Click to download the PDF</a> (320 Kb)</p>
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<h2 style="text-align: justify; ">Introduction</h2>
<p style="text-align: justify; ">To this date, there exists no universally acceptable definition of the right to privacy. It is a continuously evolving concept whose nature and extent is largely context driven. There are numerous aspects to the right to privacy, each different from the other in terms of the circumstance in which it is invoked. Bodily privacy however, is to date, the most guarded facet of this vastly expansive right. The privacy over one’s own body including the organs, genetic material and biological functions that make up one’s health is an inherent right that does not; as in the case of other forms of privacy such as communication or transactional privacy, emanate from the State. It is a right that has its foundations in the Natural Law conceptions of The Right to Life, which although regulated by the State can at no point be taken away by it except under extreme circumstances of a superseding Right to Life of a larger number of people.</p>
<p style="text-align: justify; ">The deliberation leading to the construction of a universally applicable Right to Privacy has up until now however only been in terms of its interpretation as an extension of the Fundamental Right to Life and Liberty as guaranteed under Article 21 as well as the freedom of expression and movement under Articles 19(1)(a) and (b) of the Constitution of India. While this may be a valid interpretation, it narrows the ambit of the right as one that can only be exercised against the State. The Right to privacy however has much larger implications in spheres that are often removed from the State. There is thus an impending need to create an efficient and durable structure of Law and policy that regulates the protection of privacy in Institutions that may not always be agents of the State.</p>
<p style="text-align: justify; ">It is in this regard that the following analysis studies the existing conceptions of privacy in the Healthcare sector. It aims to study the existing mechanisms of privacy protection and their pragmatic application in everyday practices. Further, it determines definitive policy gaps in the existing framework and endeavors to provide effective recommendations to not only redress these shortcomings but also create a system that is efficient in its fulfillment of the larger objective of the actualization of the Right to Privacy at an individual, state and institutional level.</p>
<h2 style="text-align: justify; ">Purpose</h2>
<p style="text-align: justify; ">The purpose of this research study is to formulate a comprehensive guide that maps the synthesis, structure and implementation of privacy regulations within the healthcare sector in India. It traces the domestic legislation pertaining to various aspects of the healthcare sector and the specific provisions of the law that facilitate the protection of the privacy of individuals who furnish their personal information as well as genetic material to institutions of healthcare, either for the purpose of seeking treatment or to contribute to research studies. It is however imperative that the nature and extent of the information collected be restricted through the establishment of requisite safeguards at an institutional level that percolate down to everyday practices of data collection, handling and storage within healthcare institutions. The study thus aims to collate the existing systems of privacy protection in the form of laws, regulations and guidelines and compare these with actual practices in government and private hospitals and diagnostic laboratories to determine whether these laws are in fact effective in meeting the required standards of privacy protection. Further, the study also broadly looks at International practices of privacy protection and offers recommendations to better the existing mechanisms of delimiting unnecessary intrusions on the privacy of patients.</p>
<h2 style="text-align: justify; ">Importance</h2>
<p style="text-align: justify; ">The Indian Healthcare sector although at par with international standards in its methods of diagnosis, treatment and the use of contemporary technology, is still nascent in the nature and extent of its interaction with the Law. There are a number of aspects of healthcare that lie on the somewhat blurred line between the interest of the public and the sole right of the individual seeking treatment. One such aspect is the slowly evolving right to privacy. The numerous facets of this right have come to the fore largely through unique case laws that are reflective of a dynamic social structure, one that seeks to reconcile the socio economic rights that once governed society with individual interests that it has slowly come to realize. The right of an individual to disclose the nature of his disease, the liberty of a woman not to be compelled to undergo a blood test, the bodily autonomy to decide to bear children or not, the decisional privacy with regards to the termination of a pregnancy and the custodial rights of two individuals to their child are certain contentious aspects of healthcare that have constructed the porous interface between the right to privacy and the need for medical treatment. It is in this context that this study aims to delve into the existing basic structure of domestic legislation, case laws and regulations and their subsequent application in order to determine important gaps in the formulation of Law and Policy. The study thus aims to draw relevant conclusions to fill these gaps through recommendations sourced from international best practice in order to construct a broad framework upon which one can base future policy considerations and amendments to the existing law.</p>
<h2 style="text-align: justify; ">Methodology</h2>
<p style="text-align: justify; ">This research study was undertaken in two major parts. The first part assesses domestic legislation and its efficacy in the current context. This is done through the determination of relevant provisions within the Act that are in consonance with the broader privacy principles as highlighted in the A.P Shah Committee report on Privacy Protection<a href="#_ftn1" name="_ftnref1">[1]</a>. This part of the research paper is based on secondary sources, both in terms of books as well as online resources. The second part of the paper analyses the actual practices with regard to the assimilation, organization, use and storage of personal data as practiced in Government and Private hospitals and Diagnostic laboratories. Three Private hospitals, a prominent Government hospital and a Diagnostic laboratory were taken into consideration for this study. The information was provided by the concerned personnel at the medical records department of these institutions of healthcare through a survey conducted on the condition of anonymity. The information provided was analyzed and collated in accordance with the compliance of the practices of these institutions with the Principles of privacy envisioned in the Report of the Group of Experts on Privacy.</p>
<h3 style="text-align: justify; ">The Embodiment of Privacy Regulation within Domestic Legislation</h3>
<p style="text-align: justify; ">This section of the study analyses the viability of an approach that takes into account the efficacy of domestic legislation in regulating practices pertaining to the privacy of individuals in the healthcare sector. This approach perceives the letter and spirit of the law as the foundational structure upon which internal practices, self regulation and the effective implementation of policy considerations that aim to create an atmosphere of effective privacy regulation take shape, within institutions that offer healthcare services. To this effect, domestic legislationthat provides for the protection of a patient’s privacy has been examined. The law has been further studied with respect to its tendency to percolate into the everyday practices, regulations and guidelines that private and government hospitals adhere to. The extent of its permeation into actual practice; in light of its efficacy in fulfilling the perambulatory objectives of ensuring safe and unobtrusive practices,within the construct of which a patient is allowed to recover and seek treatment, has also been examined.</p>
<p style="text-align: justify; ">The term ‘<b>Privacy’</b> is used in a multitude of domestic legislations primarily in the <b>context of the foundation of the fiduciary relationship between a doctor and a patient.</b>This fiduciary relationship emanates from a reasonable expectation of mutual trust between the doctor and his patients and is established through the Indian Medical Council Act of 1952, specifically section 20(A) of the Act which lays down the code of ethics which a doctor must adhere to at all times. Privacy within the healthcare sector includes a number of aspects including but not limited to <b>informational privacy</b> (e.g., confidentiality, anonymity, secrecy and data security); <b>physical privacy</b> (e.g., modesty and bodily integrity); <b>associational privacy</b> (e.g. intimate sharing of death, illness and recovery); <b>proprietary privacy</b> (e.g., self-ownership and control over personal identifiers, genetic data, and body tissues); and <b>decisional privacy</b> (e.g., autonomy and choice in medical decision-making).</p>
<p style="text-align: justify; "><b>Privacy Violations stem from policy and information gaps: </b> Violations in the healthcare sector that stem from policy formulation as well and implementation gaps<a href="#_ftn2" name="_ftnref2">[2]</a> include the disclosure of personal health information to third parties without consent, inadequate notification to a patient of a data breach, unlimited or unnecessary collection of personal health data, collection of personal health data that is not accurate or relevant, the purpose of collecting data is not specified, refusal to provide medical records upon request by client, provision of personal health data to public health, research, and commercial uses without de-identification of data and improper security standards, storage and disposal. The disclosure of personal health information has the potential to be embarrassing, stigmatizing or discriminatory.<a href="#_ftn3" name="_ftnref3">[3]</a> Furthermore, various goods such as employment, life, and medical insurance, could be placed at risk <a href="#_ftn4" name="_ftnref4">[4]</a>if the flow of medical information were not restricted. <a href="#_ftn5" name="_ftnref5"><sup><sup>[5]</sup></sup></a></p>
<p style="text-align: justify; ">Disclosure of personal health information is permitted and does not amount to a violation of privacy in the following situations: 1) during referral, 2) when demanded by the court or by the police on a written requisition, 3) when demanded by insurance companies as provided by the Insurance Act when the patient has relinquished his rights on taking the insurance, and 4) when required for specific provisions of workmen's compensation cases, consumer protection cases, or for income tax authorities,<a href="#_ftn6" name="_ftnref6"><sup><sup>[6]</sup></sup></a> 5) disease registration, 6) communicable disease investigations, 7) vaccination studies, or 8) drug adverse event reporting. <a href="#_ftn7" name="_ftnref7"><sup><sup>[7]</sup></sup></a></p>
<p style="text-align: justify; ">The following domestic legislations have been studied and relevant provisions of the Act have been accentuated in order to analyse their compliance with the basic principles of privacy as laid out in the A.P Shah Committee report on Privacy.</p>
<p style="text-align: justify; "><b>Mental Health Act, 1987</b><a href="#_ftn8" name="_ftnref8">[8]</a><br />The Provisions under the Act pertaining to the protection of privacy of the patient have been examined. The principles embodied within the Act include aspects of the Law that determine the nature and extent of oversight exercised by the relevant authorities over the collection of information, the limitation on the collection of data and the restrictions on the disclosure of the data collected. The principle of oversight is embodied under the legislation within the provisions that allow for the inspection of records in psychiatric hospitals and nursing homes only by officers authorized by the State Government.<a href="#_ftn9" name="_ftnref9"><sup><sup>[9]</sup></sup></a> The limitation on the Collection of information is imposed by the Inspection of living conditionsby a psychiatrist and two social workers are on a monthly basis. This would include analyzing the living condition of every patient and the administrative processes of the psychiatric hospital and/or psychiatric nursing home. <a href="#_ftn10" name="_ftnref10"><sup><sup>[10]</sup></sup></a>Additionally, Visitors must maintain a book regarding their observations and remarks.<a href="#_ftn11" name="_ftnref11"><sup><sup>[11]</sup></sup></a> Medical certificates may be issued by a doctor, containing information regarding the nature and degree of the mental disorder as reasons for the detention of a person in a psychiatric hospital or psychiatric nursing home. <a href="#_ftn12" name="_ftnref12"><sup><sup>[12]</sup></sup></a>Lastly, the disclosure of personal records of any facility under this Act by inspecting officers is prohibited<a href="#_ftn13" name="_ftnref13"><sup><sup>[13]</sup></sup></a></p>
<h2 style="text-align: justify; "></h2>
<p style="text-align: justify; "><b>Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994</b> <a href="#_ftn14" name="_ftnref14"><sup><sup>[14]</sup></sup></a><br />The Act was instituted in light of a prevalent public interest consideration of preventing female foeticide. However, it is imperative that the provision of the Act remain just shy of unnecessarily intrusive techniques and do not violate the basic human requirement of privacy in an inherently personal sphere. The procedure that a mother has to follow in order to avail of pre-natal diagnostic testing is mandatory consent of age, abortion history and family history. These conditions require a woman to reveal sensitive information concerning family history of mental retardation or physical deformities.<a href="#_ftn15" name="_ftnref15">[15]</a> A<b>special concern for privacy and confidentiality should be exercised with regards to disclosure of genetic information.</b> <a href="#_ftn16" name="_ftnref16">[16]</a><b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>Medical Termination of Pregnancy Act, 1971</b> <a href="#_ftn17" name="_ftnref17"><sup><sup>[17]</sup></sup></a><br />Although, the right to an abortion is afforded to a woman within the construct of her inherent right to bodily privacy, decisional privacy (for e.g., autonomy and choice in medical decision-making) is not afforded to patients and their families with regards to determining the sex of the baby. The sections of the Act that have been examined lay down the provisions available within the Act to facilitate the protection of a woman’s right to privacy during the possible termination of a pregnancy. These include the principles pertaining to the choice and consent of the patient to undergo the procedure, a limit on the amount of information that can be collected from the patient, the prevention of disclosure of sensitive information and the security measures in place to prevent the unauthorized access to this information. The Medical Termination of Pregnancy Regulations, 2003 supplement the Act and provide relevant restrictions within every day practices of data collection use and storage in order to protect the privacy of patients. The Act mandates <i>Written Consent </i>of the patient in order to facilitate an abortion .Consent implies that the patient is aware of all her options, has been counselled about the procedure, the risks and post-abortion care.<a href="#_ftn18" name="_ftnref18">[18]</a>. The Act prohibits the disclosure of matters relating to treatment for termination of pregnancy to anyone other than the Chief Medical Officer of the State. <a href="#_ftn19" name="_ftnref19">[19]</a>The Register of women who have terminated their pregnancy, as maintained by the hospital, must be destroyed on the expiry of a period of five years from the date of the last entry.<a href="#_ftn20" name="_ftnref20">[20]</a> The Act also emphasizes upon the security of information collected. The medical practitioner assigns a serial number for the woman terminating her pregnancy.<a href="#_ftn21" name="_ftnref21">[21]</a>Additionally, the admission register is stored in safe custody of the head of the hospital. <a href="#_ftn22" name="_ftnref22">[22]</a><i> </i></p>
<p style="text-align: justify; "><b>Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (Code of Ethics Regulations, 2002)</b><br />The Medical Council of India (<b>MCI</b>) Code of Ethics Regulations<a href="#_ftn23" name="_ftnref23"><sup><sup>[23]</sup></sup></a> sets the professional standards for medical practice. These provisions regulate the nature and extent of doctor patient confidentiality. It also establishes universally recognized norms pertaining to consent to a particular medical procedure and sets the institutionally acceptable limit for intrusive procedure or gathering excessively personal information when it is not mandatorily required for the said procedure. The provisions addressed under these regulations pertain to the Security of the information collected by medical practitioners and the nature of doctor patient confidentiality.</p>
<p style="text-align: justify; ">Physicians are obliged to protect the confidentiality of patients<sup> 5</sup>during all stages of the procedure and with regard to all aspects of the information provided by the patient to the doctor, includinginformation relating to their personal and domestic lives. <a href="#_ftn24" name="_ftnref24"><sup><sup>[24]</sup></sup></a>The only exception to this mandate of confidentiality is if the law requires the revelation of certain information, or if there is a serious and identifiable risk to a specific person and / or community ofa notifiable disease.</p>
<p style="text-align: justify; "><b>Ethical Guidelines for Biomedical Research on Human Subjects</b> <a href="#_ftn25" name="_ftnref25">[25]</a><br />The provisions for the regulation of privacy pertaining to biomedical research include aspects of consent as well as a limitation on the information that may be collected and its subsequent use. The provisions of this act aim to regulate the protection of privacy during clinical trials and during other methods of research. The principal of informed consent is an integral part of this set of guidelines. ThePrivacy related information included in the participant/ patient information sheet includes: the choice to prevent the use of their biological sample, the extent to which confidentiality of records could be maintained and the consequences of breach of confidentiality, possible current and future uses of the biological material and of the data to be generated from the research and if the material is likely to be used for secondary purposes or would be shared with others, the risk of discovery of biologically sensitive information and publications, including photographs and pedigree charts.<a href="#_ftn26" name="_ftnref26">[26]</a> The Guidelines require special concern for privacy and confidentiality when conducting genetic family studies. <a href="#_ftn27" name="_ftnref27">[27]</a>The protection of privacy and maintenance of confidentiality, specifically surrounding the identity and records, is maintained whenusing the information or genetic material provided by participants for research purposes. <a href="#_ftn28" name="_ftnref28"><sup><sup>[28]</sup></sup></a>The Guidelines require investigators to maintain confidentiality of epidemiological data due to the particular concern that some population based data may also have implications on issues like national security or public safety.<a href="#_ftn29" name="_ftnref29">[29]</a>All documentation and communication of the Institutional Ethics Committee (IEC) must be dated, filed and preserved according to the written procedures.Data of individual participants can be disclosed in a court of law under the orders of the presiding judge, if there is a threat to a person’s life, communication to the drug registration authority regarding cases of severe adverse reaction and communication to the health authority if there is risk to public health.<a href="#_ftn30" name="_ftnref30">[30]</a></p>
<p style="text-align: justify; "><b>Insurance Regulatory and Development Authority (Third Party Administrators) Health Services Regulations, 2001<br /></b>The provisions of the Act that have been addressed within the scope of the study regulate the practices of third party administrators within the healthcare sector so as to ensure their compliance with the basic principles of privacy.An exception to the maintenance and confidentiality of information confidentiality clause in the code of conduct, requires TPAs to provide relevant information to any Court of Law/Tribunal, the Government, or the Authority in the case of any investigation carried out or proposed to be carried out by the Authority against the insurance company, TPA or any other person or for any other reason.<a href="#_ftn31" name="_ftnref31">[31]</a>In July 2010, the IRDA notified the<b>Insurance Regulatory and Development </b>Authority<b> (Sharing of Database for Distribution of Insurance Products) Regulations</b> <a href="#_ftn32" name="_ftnref32">[32]</a><b>. These regulations restrict referral companies from </b>providing details of their customers without their prior consent.<a href="#_ftn33" name="_ftnref33">[33]</a>TPAs must maintain the confidentiality of the data collected by it in the course of its agreement and maintain proper records of all transactions carried out by it on behalf of an insurance company and are also required to refrain from trading information and the records of its business<a href="#_ftn34" name="_ftnref34">[34]</a>.TPA’s must keep records for a period of not less than three years.<a href="#_ftn35" name="_ftnref35">[35]</a></p>
<p style="text-align: justify; "><b>IDRA Guidelines on Outsourcing of Activities by Insurance Companies</b> <a href="#_ftn36" name="_ftnref36">[36]</a><br />These guidelines require the insurer to take appropriate steps that require third party service providers protect confidential information of both the Insurer and its clients from intentional or inadvertent disclosure to unauthorized persons.<a href="#_ftn37" name="_ftnref37">[37]</a></p>
<p style="text-align: justify; "><b>Exceptions to the Protection of Privacy</b><br />The legal provisions with regard to privacy, confidentiality and secrecy are often superseded by Public Interest Considerations. The right to privacy, although recognized in the course of Indian jurisprudence and embodied within domestic legislation is often overruled prima facie when faced with situations or instances that involve a larger interest of a greater number of people. This policy is in keeping with India’s policy goals as a social welfare state to aid in the effectuation of its utilitarian ideals. This does not allow individual interest to at any point surpass the interest of the masses.</p>
<p style="text-align: justify; "><b>Epidemic Diseases Act, 1897</b> <a href="#_ftn38" name="_ftnref38">[38]</a><br />Implicit within this formulation of this Act is the assumption that in the case of infectious diseases, the right to privacy, of infected individuals must give way to the overriding interest of protecting public health.<a href="#_ftn39" name="_ftnref39">[39]</a> This can be ascertained not only from the black letter of the Law but also from its spirit. Thus, in the absolute positivist as well as a more liberal interpretation, at the crux of the legislation lies the undeniable fundamental covenant of the preservation of public health, even at the cost of the privacy of a select few individuals <a href="#_ftn40" name="_ftnref40">[40]</a>.</p>
<h2 style="text-align: justify; ">Policy and Regulations</h2>
<p style="text-align: justify; "><b>National Policy for Persons with Disabilities, 2006</b><a href="#_ftn41" name="_ftnref41">[41]</a><br />The following provisions of the Act provide for the incorporation of privacy considerations in prevalent practices with regard to persons with disabilities. The National Sample Survey Organization collects the <b>following information on persons with disabilities:</b> the socio- economic and cultural context, cause of disabilities, early childhood education methodologies and all matters connected with disabilities, at least once in five years.<a href="#_ftn42" name="_ftnref42">[42]</a>This data is collected by non-medical investigators. <a href="#_ftn43" name="_ftnref43">[43]</a>There is thus an inherent limit on the information collected. Additionally, this information is used only for the purpose for which it has been collected.</p>
<p style="text-align: justify; ">The Special Employment Exchange, as established under The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act, collects and furnishes information in registers, regarding provisions for employment. <b>Access to such data is limited to</b> any person who is authorized by the Special Employment Exchange as well as persons authorized by general or special order by the Government, to access, inspect, question and copy any relevant record, document or information in the possession of any establishment. <a href="#_ftn44" name="_ftnref44">[44]</a> When conducting research on persons with disabilities consent is required from the individual or their family members or caregivers.<a href="#_ftn45" name="_ftnref45">[45]</a><i> </i></p>
<p style="text-align: justify; "><b>HIV Interventions</b><br />In 1992, the Government of India instituted the National AIDS Control Organization (NACO) for the prevention and control of AIDS. NACO aims to control the spread of HIV in India through the implementation of Targeted Interventions (TIs) for most at risk populations (MARPs) primarily, sex workers, men having sex with men and people who inject drugs.<a href="#_ftn46" name="_ftnref46">[46]</a>The Targeted Interventions (TIs) system of testing under this organization has however raised numerous concerns about relevant policy gaps in the maintenance of the confidentiality and privacy of persons living with HIV/ AIDS. The shortcomings in the existing policy framework include: The Lack of a limitation and subsequent confidentiality in the amount of Information collected. Project staff inTIsrecordthe name, address and other contact information of MARPs and share this data with Technical Support Unit and State AIDS Control Societies.<a href="#_ftn47" name="_ftnref47">[47]</a> Proof of address and identity documents are required to get enrolled in government ART programs.<a href="#_ftn48" name="_ftnref48">[48]</a>Peer-educators operate under a system known as line-listing, used to make referrals and conduct follow-ups. Peer-educators have to follow-up with those who have not gone at regular intervals for testing. <a href="#_ftn49" name="_ftnref49">[49]</a> This practice can result in peer-educators noticing and concluding that the names missing are those who have tested positive. <a href="#_ftn50" name="_ftnref50">[50]</a> Although voluntary in nature, the policy encourage the fulfillment of fulfilling of numerical targets, and in doing so supports unethical ways of testing.<a href="#_ftn51" name="_ftnref51">[51]</a></p>
<p style="text-align: justify; ">The right to privacy is an essential requirement for persons living with HIV/AIDS due to the potential stigmatizing and discriminatory impact of the revelation of this sensitive information, in any form.<a href="#_ftn52" name="_ftnref52">[52]</a> The lack of privacy rights often fuels the spread of the disease and exacerbates its impact on high risk communities of individuals. Fears emanating from a privacy breach or a disclosure of data often deter people from getting tested and seeking medical care. The impact of such disclosure of sensitive information including the revelation of tests results to individuals other than the person being tested include low self esteem, fear of loss of support from family/peers, loss of earnings especially for female and transgender sex workers, fear of incrimination for illicit sex/drug use and the insensitivity of counselors. <a href="#_ftn53" name="_ftnref53">[53]</a>HIV positive individualslive in constant fear of their positive status being leaked. They also shy away from treatment as they fear people might see them taking their medicines and thereby guess their status. Thus breaches in confidentiality and policy gaps in privacy regulation, especially with respect to diseases such as HIV also prevents people from seeking out treatment. <a href="#_ftn54" name="_ftnref54">[54]</a></p>
<h2 style="text-align: justify; ">Case Law</h2>
<p style="text-align: justify; ">The following cases have been used to deliberate upon important points of contention within the ambit of the implementation and impact of Privacy Regulationsin the healthcare sector. This includes the nature and extent of privacy enjoyed by the patient and instances where in the privacy of the patient can be compromised in light of public interest considerations.</p>
<p style="text-align: justify; "><i>Mr. Surupsingh Hrya Naik vs. State of Maharashtra</i> ,<a href="#_ftn55" name="_ftnref55">[55]</a> (2007)</p>
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<p>The decision in this case held that The RTI Act 2005 would supersede The Medical Council Code of Ethics. The health records of an individual in judicial custody should be made available under the Act and can only be denied in exceptional cases, for valid reasons.</p>
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<p style="text-align: justify; ">Since the Code of Ethics Regulations are only delegated legislation, it was held in the case of <i>Mr. SurupsinghHrya Naik v.State Of Maharashtra</i><a href="#_ftn56" name="_ftnref56">[56]</a> that these would not prevail over the Right to Information Act, 2005 (<b>RTI Act</b>) unless the information sought falls under the exceptions contained in Section 8 of the RTI Act. This case dealt with the important point of contention of whether making the health records public under the RTI Act would constitute a violation of the right to privacy. These health records were required to determine why the convict in question was allowed to stay in a hospital as opposed to prison. In this context the Bombay High Court held thatThe Right to Information Act supersedes the regulation that mandate the confidentiality od a person, or in this case a convict’s medical records. It was held that the medical records of a a person sentenced or convicted or remanded to police or judicial custody, if during that period such person is admitted in hospital and nursing home, should be made available to the person asking the information provided such hospital nursing home is maintained by the State or Public Authority or any other Public Body. It is only in rare and in exceptional cases and for good and valid reasons recorded in writing can the information may be denied.</p>
<p style="text-align: justify; "><i>Radiological & Imaging Association v. Union of India</i> ,<a href="#_ftn57" name="_ftnref57"><sup><sup>[57]</sup></sup></a> (2011)<br />On 14 January 2011 a circular was issued by the Collector and District Magistrate, Kolhapur requiring the Radiologists and Sonologists to submit an on-line form “F” under the PNDT Rules. This was challenged by the Radiological and Imaging Association, <i>inter alia</i>, on the ground that it violates the privacy of their patients. Deciding the above issue the Bombay High Court held that .The images stored in the silent observer are not transmitted on-line to any server and thus remain embedded in the ultra-sound machine. Further, the silent observer is to be opened only on request of the Collector/ the civil surgeonin the presence of the concerned radiologist/sonologist/doctor incharge of the Ultra-sound Clinic. In light of these considerations and the fact that the `F' form submitted on-line is submitted only to the Collector and District Magistrate is no violation of the doctor's duty of confidentiality or the patient's right to privacy. It was further observed that The contours of the right to privacy must be circumscribed by the compelling public interest flowing through each and every provision of the PC&PNDT Act, when read in the background of the following figures of declining sex ratio in the last five decades.</p>
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<p>The use of a Silent Observer system on a sonograph has requisite safeguards and doesn’t violate privacy rights. The declining sex ratio of the country was considered a compelling public Interest that could supersede the right to privacy.</p>
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<p style="text-align: justify; "><i>Smt. Selvi and Ors. v.State of Karnataka </i>(2010)<br />The Supreme Court held that involuntary subjection of a person to narco analysis, polygraph test and brain-mapping violates the ‘right against self-incrimination' which finds its place in Article 20(3)<a href="#_ftn58" name="_ftnref58">[58]</a> of the Constitution. <a href="#_ftn59" name="_ftnref59">[59]</a> The court also found that narco analysis violated individuals’ right to privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent, and physically restraining a subject to the location of the tests and amounted to cruel, inhuman or degrading treatment.<a href="#_ftn60" name="_ftnref60">[60]</a></p>
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<p>The Supreme Court found that Narco-analysis violated an individuals’ right to privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent.</p>
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<p style="text-align: justify; "><i>Neera Mathur v. Life Insurance Corporation </i>(LIC),<a href="#_ftn61" name="_ftnref61">[61]</a> (1991)<br />In this casethe plaintiff contested a wrongful termination after she availed of maternity leave. LIC required women applicants to furnish personal details like their menstrual cycles, conceptions, pregnancies, etc. at the time of appointment. Such a requirement was held to go against the modesty and self respect of women. The Court held that termination was only because of disclosures in application, which was held to be intrusive, embarrassing and humiliating. LIC was directed to delete such questions.</p>
<p style="text-align: justify; ">The Court did not refer to the term privacy however it used the term personal details as well as modesty and self respect, but did not specifically link them to the right to life or any other fundamental right. These terms (modesty and self respect) are usually not connected to privacy but although they may be the harm which comes from an intrusion of one’s privacy.</p>
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<p>The Supreme Court held that Questions related to an individual’s reproductive issues are personal details and should not be asked in the service application forms.</p>
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<p style="text-align: justify; "><b><i> </i></b></p>
<p style="text-align: justify; "><b><i> </i></b></p>
<p style="text-align: justify; "><b><i> </i></b></p>
<p style="text-align: justify; "><i>Ms. X vs. Mr. Z &Anr</i> ,<a href="#_ftn62" name="_ftnref62">[62]</a> (2001)<br />In this case, the Delhi High Court held that an aborted foetus was not a part of the body of a woman and allowed the DNA test of the aborted foetus at the instance of the husband. The application for a DNA test of the foetus was contested by the wife on the ground of “Right to Privacy”.7In this regard the court held that The Supreme Court had previously decided that a party may be directed to provide blood as a DNA sample but cannot be compelled to do so. The Court may only draw an adverse interference against such party who refuses to follow the direction of the Court in this respect.The position of the court in this case was that the claim that the preservation of a foetus in the laboratory of the All India Institute of Medical Science, violates the petitioner’s right to privacy, cannot be entertained as the foetus had been voluntarily discharges from her body previously, with her consent. The foetus, that she herself has dischargedis claimed to be subjected to DNA test. Thus, in light of the particular facts and the context of the case, it was held that petitioner does not have any right of privacy.</p>
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<p>A woman’s right to privacy does not extend to a foetus, which is no longer a part of her body. The right to privacy may arise from a contract as well as a specific relationship, including a marital relationship. The principle in this case has been laid down in broad enough terms that it may be applied to other body parts which have been disassociated from the body of the individual.</p>
<p><b> </b></p>
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<p style="text-align: justify; ">It is important to note here that the fact that the Court is relying upon the principles laid down in the case of <i>R. Rajagopal </i>seems to suggest that the Court is treating organic tissue preserved in a public hospital in the same manner as it would treat a public document, insofar as the exception to the right to privacy is concerned.</p>
<p style="text-align: justify; "><i>B.K Parthasarthi vs. Government of Andhra Pradesh</i> ,<a href="#_ftn63" name="_ftnref63">[63]</a> (1999)<br />In this case, the Andhra Pradesh High Court was to decide the validity of a provision in the Andhra Pradesh Panchayat Raj Act, 1994 which stipulated that any person having more than two children should be disqualified from contesting elections. This clause was challenged on a number of grounds including the ground that it violated the right to privacy. The Court, in deciding upon the right to privacy and the right to reproductive autonomy, held thatThe impugned provision, i.eSection 19(3) of the said Act does not compel directly anyone to stop procreation, but only disqualifies any person who is otherwise eligible to seek election to various public offices coming within the ambit of the Andhra Pradesh Panchayat Raj Act, 1994 or declares such persons who have already been holding such offices to be disqualified from continuing in such offices if they procreate more than two children.Therefore, the submission made on behalf of the petitioners 'right to privacy' is infringed, is untenable and must be rejected.”</p>
<p style="text-align: justify; "><i>Mr. X v. Hospital Z, Supreme Court of India</i> ,<a href="#_ftn64" name="_ftnref64">[64]</a> (1998 and 2002)<br />The petitioner was engaged to be married and thereafter during tests for some other illness in the hospital it was found that the petitioner was HIV positive. This information was released by the doctor to the petitioner’s family and through them to the family of the girl to whom the petitioner was engaged, all without the consent of the petitioner. The Court held that:</p>
<p style="text-align: justify; ">“The Right to privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.”</p>
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<p>Right to privacy and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.</p>
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<p style="text-align: justify; ">This decision of this case could be interpreted to extend the principle, of disclosure to the person at risk, to other communicable and life threatening diseases as well. However, a positivist interpretation would render these principle applicable to only to HIV+ cases.</p>
<p style="text-align: justify; "><i>M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd.</i> <a href="#_ftn65" name="_ftnref65">[65]</a> (2001)<br />The petitioner alleged that she had contracted the HIV virus due to the negligence of the authorities of Maternity and Family Welfare Hospital, Godavarikhani, a hospital under the control of Singareni Collieries Company Ltd., (SCCL), in conducting relevant precautionary blood tests before transfusion of blood of her brother (donor) into her body when she was operated for hysterectomy (Chronic Cervicitis) at the hospital. The petition was initially filed as a Public Interest Litigation,which the court duly expanded in order to address the problem of the lack of adequate precautionary measures in hospitals, thereby also dealing with issues of medical confidentiality and privacy of HIV patients. The court thus deliberated upon the conflict between the right to privacy of an HIV infected person and the duty of the state to prevent further transmission and held:</p>
<p style="text-align: justify; ">In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional. As under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India</p>
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<p>The right of reproductive autonomy is a component of the right to privacy .A provision disqualifying a person from standing for elections due to the number of children had, does not violate the right to privacy as the object of the legislation is not to violate the autonomy of an individual but to mitigate the population growth in the country. Measures to control population growth shall be considered legal unless they impermissibly violate a fundamental right.</p>
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<p style="text-align: justify; ">However, another aspect of the matter is whether compelling a person to take HIV test amounts to denying the right to privacy? The Court analyzed the existing domestic legislation to arrive at the conclusion that there is no general law that can compel a person to undergo an HIV-AIDS test. However, specific provisions under the Prison Laws<a href="#_ftn66" name="_ftnref66">[66]</a></p>
<p style="text-align: justify; ">provide that as soon as a prisoner is admitted to prison, he is required to be examined medically and the record of prisoner's health is to be maintained in a register. Further, Under the ITP Act, the sex workers can also be compelled to undergo HIV/ AIDS test.<a href="#_ftn67" name="_ftnref67">[67]</a></p>
<p style="text-align: justify; ">Additionally, under Sections 269 and 270 of the Indian Penal Code, 1860, a person can be punished for negligent act of spreading infectious diseases.</p>
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<p>The right to privacy of a person suspected to be HIV+ would be subordinate to the power and duty of the state to identify HIV+ patients in order to protect public interest and improve public health. However any law designed to achieve this object must be fair and reasonable. In a conflict between the individual’s privacy right and the public’s right in dealing with the cases of HIV-AIDS, the Roman Law principle 'SalusPopuliestSuprema' (regard for the public wealth is the highest law) applies when there is a necessity.</p>
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<p style="text-align: justify; ">After mapping legislation that permit the invasion of bodily privacy, the Court concluded that they are not comprehensive enough to enable the State to collect information regarding patients of HIV/AIDS and devise appropriate strategies and therefore the State should draft a new legislation in this regard. Further the Court gave certain directions to the state regarding how to handle the epidemic of HIV/AIDS and one of those directions was that the “Identity of patients who come for treatment of HIV+/AIDS should not be disclosed so that other patients will also come forward for taking treatment.”</p>
<p style="text-align: justify; "><i>Sharda v. Dharmpal</i> ,<a href="#_ftn68" name="_ftnref68">[68]</a> (2003)</p>
<p style="text-align: justify; ">The basic question in this case was whether a party to a divorce proceeding can be compelled to a medical examination. The wife in the divorce proceeding refused to submit herself to medical examination to determine whether she was of unsound mind on the ground that such an act would violate her right to personal liberty. Discussing the balance between protecting the right to privacy and other principles that may be involved in matrimonial cases such as the ‘best interest of the child’ in case child custody is also in issue, the Court held:</p>
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<p>If the best interest of a child is in issue in the case then the patient’s right to privacy and confidentiality would get limited. The right to privacy of an individual would be subordinate to the power of a court to arrive at a conclusion in a matrimonial dispute and the right of a party to protect his/her rights in a Court of law would trump the right to privacy of the other.</p>
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<p style="text-align: justify; ">"Privacy" is defined as "the state of being free from intrusion or disturbance in one's private life or affairs". However, the right to privacy in India, is only conferred through an extensive interpretation of Article 21 and cannot therefore in any circumstance be considered an absolute right. Mental health treatment involves disclosure of one's most private feelings However, like any other privilege the psychotherapist-patient privilege is not absolute and may only be recognized if the benefit to society outweighs the costs of keeping the information private. Thus if a child's best interest is jeopardized by maintaining confidentiality the privilege may be limited.” Thus, the power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to violate the petitioner’s right to privacy.</p>
<p style="text-align: justify; "><b> </b></p>
<h2 style="text-align: justify; ">Regulation of Privacy in Government and Private Hospitals and Diagnostic Laborataries</h2>
<p style="text-align: justify; "><b>A. Field Study</b><br />The Hospitals that have been chosen for the analysis of the efficacy of these legislations include prominent Government Hospitals, Private Hospitals and Diagnostic Centers. These Institutes were chosen because of their widely accredited status as centers of medical research and cutting edge treatment. They have also had a long standing reputation due to their staff of experienced and skilled on call doctors and surgeons. The Private Hospitals chosen had patient welfare centers that addressed the concerns of patients including questions and doubts relating to but not limited to confidentiality and consent. The Government hospitals had a public relations office that addressed the concerns of discharged patients. They also provided counseling services to patients to aid them in addressing concerns relate to the treatment that they might want to be kept confidential. Diagnostic laboratories also have an HR department that addresses similar concerns. The laboratory also has a patient welfare manager who addresses the concerns and queries of the patient prior to and during the procedure.</p>
<p style="text-align: justify; ">The following section describes the practices promulgated by Government and Private Hospitals, as well as Diagnostic Laboratories in their endeavor to comply with the basic principles of privacy as laid down in the A.P Shah Committee report on Privacy.</p>
<h5 style="text-align: justify; ">(i) Notice</h5>
<p style="text-align: justify; ">Through an analysis of the information provided by Government and Private hospitals and diagnostic laboratories, relevant conclusions were drawn with regard to the nature, process and method in which the patient information is recorded. Through interviews of various medical personnel including administrative staff in the patient welfare and medical records departments we observed an environment of openness and accountability within the structure of the patient registration system.</p>
<p style="text-align: justify; ">In Government Hospitals, the patient is notified of all types of information that is collected, in terms of both personal information as well as medical history. The Patient admission as well as the patient consent form is filled out by the patient or the attending relative accompanying the patient and assistance for the same is provided by the attending staff members, who explain the required details that need to be filled in a language that the patient is able to understand. The patient is notified of the purpose for which such information is collected and the procedure that he/ she might have to undergo depending on his injury or illness. The patient is not however, notified of the method in which he/she may correct or withdraw the information that is provided. There is no protocol provided for the correction or withdrawal of information, once provided. The patient is, at all times notified of the extent and nature of doctor patient confidentiality including the fact that his/her personal information would not be shared even with his/her immediate relatives , insurance companies, consulting doctors who are not directly involved with his/her treatment or any unauthorized third party without requisite consent from the patient. The patient is informed of the fact that in some cases the medical records of the patient will have to be shared with consulting doctors and that all the patient’s medical records would be provided to insurance companies, but this will only be done with the consent of the patient.</p>
<p style="text-align: justify; ">The same system of transparency and accountability transcends across private hospitals and diagnostic laboratories as well. In private hospitals, the patient is informed of all the information that is collected and the purpose for which such information may be collected. Diagnostic laboratories have specific patient consent forms for specific types of procedures which the patient will have to fill out depending on the required tests. These forms contain provisions with regard to the confidential nature of all the information provided. This information can only be accessed by the patient and the consulting doctor with the consent of the patient. Both private hospitals and diagnostic laboratories have a specific protocol and procedure in place to correct or withdraw information that has been provided. In order to do so the patient would have to contact the medical records department with requisite proof of the correct information. Private hospitals inform patients of the nature and extent of doctor patient confidentiality at every stage of the registration process. Some private hospitals contain patient safety brochures which inform patients about the nature and extent of consent and confidentiality, even with regard to consulting doctors and insurance agencies. If the patient does not want certain information revealed to insurance agencies the hospital will retain such records and refraining from providing them to third party insurance agencies. Thus, all information provided by the patient remains confidential at the behest of the patient.</p>
<h5 style="text-align: justify; ">(ii) Choice and Consent</h5>
<p style="text-align: justify; ">Choice and consent are two integral aspects of the regulation of privacy within the healthcare sector. Government and Private hospitals as well as diagnostic laboratories have specific protocols in place to ensure that the consent of the patient is taken at every stage of the procedure. The consent of the patient can also be withdrawn just prior to the procedure even if this consent has already been given by the patient in writing, previously. The choice of the patient is also given ample importance at all stages of the procedure. The patient can refuse to provide any information that may not mandatorily required for the treatment provided basic information regarding his identity and contact information in case of emergency correspondence has been given.</p>
<h5 style="text-align: justify; ">(iii) Collection Limitation</h5>
<p style="text-align: justify; ">The information collected from the patient in both government and private hospitals is used solely for the purpose that the patient has been informed of. In case this information is used for purposes other than for the purpose that the patient has been informed of, the patient is informed of this new purpose as well. Patient records in both Government and Private hospitals are stored in the Medical Records Department as hard copies and in some cases as scanned soft copies of the hard copy as well. These Medical Records are all stored within the facility. The duration for which the records are stored range from a minimum of two years to a maximum of ten years in most private hospitals. Some private hospitals store these records for life. Government hospitals store these records for a term of thirty years only as hard copies after which the records are discarded. Private hospitals make medical records accessible to any medical personnel who may ask for it provided the requisite proof of identity and reasons for accessing the same are provided, along with an attested letter of authorization of the doctor who is currently involved or had been involved in the treatment of the patient. Government hospitals however do not let any medical personnel access these records except for the doctor involved in the treatment of that particular patient. Both private and government hospitals are required to share the medical records of the patient with the insurance companies. Government Hospitals only share patient records with nationalized insurance agencies such as The Life Insurance Corporation of India (LIC) but not with private insurance agencies. The insurance claims forms that are required prior to providing medical records to the insurance companies mandatorily require the signature of the patient. The patient is thus informed that his records will be shared with the insurance agencies and his signature is a proof of his implied consent to the sharing of these records with the company with which he has filed a health insurance claim.</p>
<p style="text-align: justify; ">Diagnostic laboratories collect patient information solely for the purpose of the particular test that they have been asked to conduct by the treating or consulting doctor. Genetic samples (Blood, Semen, Urine etc) are collected at one time and the various tests required are conducted on these samples. In case of any additional testing that is required to be conducted on these samples, the patient is informed. Additional testing is conducted only in critical cases and in cases where the referral doctor requests for the same to be conducted on the collected samples. In critical cases, where immediate testing is required and the patient is unreachable, the testing is conducted without informing the patient. The patient is mandatorily informed after the test that such additional testing was conducted. The patient sample is stored for one week within the same facility. The Patient records are digitized. They can only be accessed by the patient, who is provided with a particular username and password using which he can access only his records. The information is stored for a minimum of two years. This information can be made available to a medical personnel only if such medical personnel has the required lab no, the patients name, and reason for which it needs to be accessed. He thus requires the permission of the authorities at the facility as well as the permission and consent of the patient to access such records. The Medical test records of a patient are kept completely confidential. Even insurance companies cannot access such records unless they are provided to the company by the patient himself. In critical cases however, the patient information and tests results are shared with the treating or referral doctor without the consent of the patient.</p>
<h5 style="text-align: justify; ">(iv) Purpose Limitation</h5>
<p style="text-align: justify; ">In Government and Private Hospitals, the information is only used for the purpose for which it is collected. There is thus a direct and relevant connection between the information collected and the purpose for which it used. Additional information is collected to gauge the medical history of the patient that may be relevant to the disease that has to be treated. The information is never deleted after it has been used for the purpose for which it had been collected. The Medical Records of the patient are kept for extended periods in hard copy as well as soft copy versions. There is a provision for informing the patient in case the information is used for any purpose other than the purpose for which it was collected. Consent of the patient is taken at all stages of collecting and utilizing the information provided by him.</p>
<p style="text-align: justify; ">Diagnostic Laboratories have a database of all the information collected which is saved in the server. The information is mandatorily deleted after it has been used for the purpose for which it was collected after a period of two years. In case the information is used for any purpose other than the purpose for which it was collected, for example, in critical cases where additional tests have to be conducted the patient is\ always informed of the same.</p>
<h5 style="text-align: justify; ">(v) Access and Correction</h5>
<p style="text-align: justify; ">In private hospitals, the patient is allowed to access his own records during his stay at the hospital. He is given a copy of his file upon his discharge from the hospital in the form of a discharge summary. However, if he needs to access the original records at a later stage, he can do so by filing a request for the same at the Medical Records Department of the hospital. A patient can make amendments or corrections to his records by providing requisite proof to substantiate the amended information. The patient however at no stage can confirm if the hospital is holding or processing personal information about him or her with the exception of the provisions provided for the amendment or correction to the information held.</p>
<p style="text-align: justify; ">The Medical records of a patient in a government hospital are completely sealed. A patient has no access to his own records. Only the concerned doctor who was treating the patient during his stay at the hospital can access the records of the patient. This doctor has to be necessarily associated with the hospital and had to have been directly involved in the patient’s treatment in order to access the records. The patient is allowed to amend information in his medical records but only generic information such as the spelling of his name, his address, telephone number etc. The patient is at no point allowed to access his own records and therefore cannot confirm if the hospital is holding or processing any information about him/her. The patient is only provided with a discharge summary that includes his personal information, the details of his disease and the treatment provided in simple language.</p>
<p style="text-align: justify; ">Diagnostic laboratories have an online database of patient records. The patient is given a username and a password and can access the information at any point. The patient may also amend or correct any information provided by contacting the Medical records department for the same. The patient can at any time view the status of his record and confirm if it is being held or processed by the hospital. A copy of such information can be obtained by the patient at any time.</p>
<h5 style="text-align: justify; ">(vi) Disclosure of Information</h5>
<p style="text-align: justify; ">Private Hospitals are extremely cautious with regard to the disclosure of patient information. Medical records of patients cannot be accessed by anyone except the doctor treating that particular patient or consulting on the case. The patient is informed whenever his records are disclosed even to doctors. Usually, even immediate relatives of the patient cannot access the patient’s records without the consent of the patient except in cases where the condition of the patient is critical. The patient is always informed about the type and extent of information that may be disclosed whenever it is disclosed. No information of the patient is made available publicly at any stage. The patient can refuse to consent to sharing of information collected from him/her with non-authorized agencies. However, in no circumstance is the information collected from him/her shared with non authorized agencies. Some private hospitals also provide the patient with patient’s safety brochures highlighting the extent of doctor patient confidentiality, the patient’s rights including the right to withdraw consent at any stage and refuse access of records by unauthorized agencies.</p>
<p style="text-align: justify; ">In government hospitals, the medical records of the patient can only be disclosed to authorized agencies with the prior approval of patient. The patient is made aware of the type and extent of information that is collected from him/her and is mandatorily shared with authorized bodies such as insurance agencies or the treating doctor. No information of the patient is made publicly available. In cases where the information is shared with insurance agencies or any such authorized body the patient gives an undertaking via a letter of his consent to such disclosure. The insurance companies only use medical records for verification purposes and have to do so at the facility. They cannot take any original documents or make copies of the records without the consent of the patient as provided in the undertaking.</p>
<p style="text-align: justify; ">Diagnostic Laboratories provide information regarding the patient’s medical records only to the concerned or referred doctor. The patient is always informed of any instance where his information may be disclosed and the consent of the patient is always taken for the same. No information is made available publicly or shared with unauthorized agencies at any stage. Information regarding the patient’s medical records is not even shared with insurance companies.</p>
<p style="text-align: justify; ">Government and Private Hospitals provide medical records of patients to the police only when a summons for the same has been issued by a judge. Diagnostic laboratories however do not provide information regarding a patient’s records at any stage to any law enforcement agencies unless there is summons from a judge specifying exactly the nature and extent of information required.</p>
<p style="text-align: justify; ">Patients are not made aware of laws which may govern the disclosure of information in private and government hospitals as well as in diagnostic laboratories. The patient is merely informed that the information provided by him to the medical personnel will remain confidential.</p>
<h5 style="text-align: justify; ">(vii) Security</h5>
<p style="text-align: justify; ">The security measures that are put in place to ensure the safety of the collected information is not adequately specified in the forms or during the collection of information from the patient in Government or Private Hospitals. Diagnostic laboratories however do provide the patient with information regarding the security measures put in place to ensure the confidentiality of the information.</p>
<h5 style="text-align: justify; ">(viii) Openness</h5>
<p style="text-align: justify; ">The information made available to the patient at government and private hospital and diagnostic laboratories is easily intelligible. At every stage of the procedure the explicit consent of the patient is obtained. In government and private hospitals the signature of the patient is obtained on consent forms at every stage of the procedure and the nature and extent of the procedure is explained to the patient in a language that he understands and is comfortable speaking. The information provided is detailed and is provided in simplistic terms so that the patient does at all stages understand the nature of any procedure he is consenting to undergo.</p>
<h5 style="text-align: justify; ">(ix) Accountability</h5>
<p style="text-align: justify; ">Private hospitals and Diagnostic laboratories have internal and external audit mechanisms in place to check the efficacy of privacy measures. They both have grievance redress mechanisms in the form of patient welfare cells and complaint cells. There is an assigned officer in place to take patient feedback and address and manage the privacy concerns of the patient.</p>
<p style="text-align: justify; ">Government hospitals do not have an internal or external audit mechanism in place to check the efficacy of privacy measures. There is however a grievance redressal mechanism in government hospitals in the form of a Public Relations Office that addresses the concerns, complaints, feedback and suggestions of the patients. There is an officer in charge of addressing and managing the privacy concerns of patients. This officer also offers counseling to the patients in case of privacy concerns regarding sensitive information.</p>
<h3 style="text-align: justify; ">International Best Practices and Recommendations</h3>
<p style="text-align: justify; "><b>A. European Union<br /></b>An official EU data protection regulation <a href="#_ftn69" name="_ftnref69">[69]</a>was issued in January 2012. A key objective of this was to introduce a uniform policy directive across all member states. The regulation, once implemented was to be applicable in all member states and left no room for alteration or amendments.</p>
<p style="text-align: justify; ">The regulation calls for <b>Privacy Impact Assessments</b><a href="#_ftn70" name="_ftnref70">[70]</a>when there are specific risks to privacy which would include profiling, sensitive data related to health, genetic material or biometric information. This is an important step towards evaluating the nature and extent of privacy regulation required for various procedures and would be effective in the creation of a systematic structure for the implementation of these regulations. The regulation also established the need for explicit consent for sensitive personal data. The basis for this is an inherent imbalance in the positions of the data subject and the data controller, or in simpler terms the patient and the hospital or the life sciences company conducting the research. Thus, implied consent is not enough <a href="#_ftn71" name="_ftnref71">[71]</a>and a need arises to proceed with the testing only when there is <b>explicit informed consent.</b></p>
<p style="text-align: justify; ">Embedded within the regulation is the <b>right to be forgotten </b><a href="#_ftn72" name="_ftnref72">[72]</a>wherein patients can request for their data to be deleted after they have been discharged or the clinical trial has been concluded. In the Indian scenario, patient information is kept for extended periods of time. This can be subject to unauthorized access and misuse. The deletion of patient information once it has been used for the purpose for which it was collected is thus imperative towards the creation of an environment of privacy protection.</p>
<p style="text-align: justify; ">Article 81 of the regulation specifies that health data may be processed only for three major processes<a href="#_ftn73" name="_ftnref73">[73]</a> :</p>
<p style="text-align: justify; ">a) In cases of Preventative or occupational medicine, medical diagnosis, the care, treatment or management of healthcare services, and in cases where the data is processed by the healthcare professionals, the data is subject to the obligation of professional secrecy;</p>
<p style="text-align: justify; ">b) Considerations of public interest bearing a direct nexus to public health, for example, the protection of legitimate cross border threats to health or ensuring a high standard of quality and safety for medicinal products or services;</p>
<p style="text-align: justify; ">c) Or other reasons of public interest such as social protection.</p>
<p style="text-align: justify; ">An added concern is the nature and extent of consent. The consent obtained during a clinical trial may not always be sufficient to cover additional research even in instances of data being coded adequately. Thus, it may not be possible to anticipate additional research while carrying out initial research. Article 83<a href="#_ftn74" name="_ftnref74">[74]</a> of the regulation prohibits the use of data collected for an additional purpose, other that the purpose for which it was collected.</p>
<p style="text-align: justify; ">Lastly, the regulation covers data that may be transferred outside the EEA, unless there is an additional level of data protection. If a court located outside the EU makes a request for the disclosure of personal data, prior authorization must be obtained from the local data protection authority before such transfer is made. It is imperative that this be implemented within Indian legislation as currently there is no mechanism to regulate the cross border transfer of personal data.</p>
<p style="text-align: justify; "><b>B. The United States of America<br /></b>The Health Maintenance Organizations Act, 1973 <a href="#_ftn75" name="_ftnref75">[75]</a>was enacted with a view to keep up with the rapid development in the Information Technology sector. The digitization of personal information led to new forms of threats with regard to the privacy of a patient. In the face of this threat, the overarching goal of providing effective and yet unobtrusive healthcare still remains paramount.</p>
<p style="text-align: justify; ">To this effect, several important federal regulations have been implemented. These include the Privacy and Security Ruled under the Health Insurance Portability and Accountability Act (HIPAA) 1996<a href="#_ftn76" name="_ftnref76">[76]</a> and the State Alliance for eHealth (2007) <a href="#_ftn77" name="_ftnref77">[77]</a>.The HIPAA privacy rules addressed the use and subsequent disclosure of a patient's personal information under various healthcare plans, medical providers, and clearinghouses. These insurance agencies were the primary agents involved in obtaining a patients information for purposes such as treatment, payment, managing healthcare operations, medical research and subcontracting. Under the HIPAA it is required of insurance agencies to ensure the implementation of various administrative safeguards such as policies, guidelines, regulations or rules to monitor and control inter as well as intra organizational access.</p>
<p style="text-align: justify; ">Apart from the HIPAA, approximately 60 laws related to privacy in the healthcare sector have been enacted in more than 34 states. These legislations have been instrumental in creating awareness about privacy requirements in the healthcare sector and improving the efficiency of data collection and transfer. Similar legislative initiative is required in the Indian context to aid in the creation of a regulated and secure atmosphere pertaining to the protection of privacy within the healthcare sector.</p>
<p style="text-align: justify; "><b>C. Australia<br /></b>Australia has a comprehensive law that deals with sectoral regulations of the right to privacy.An amendment to the Privacy Act1988 <a href="#_ftn78" name="_ftnref78">[78]</a>applies to all healthcare providers and was made applicable from 21st December 2001.The privacy Act includes the followingpractices:</p>
<p style="text-align: justify; ">a. A stringent requirement for informed consent prior to the collection of health related information</p>
<p style="text-align: justify; ">b. A provision regarding the information that needs to be provided to individuals before information is collected from them</p>
<p style="text-align: justify; ">c. The considerations that have to be taken into account before the transfer of information to third parties such as insurance agencies, including the specific instances wherein this information can be passed on</p>
<p style="text-align: justify; ">d. The details that must be included in the Privacy policy of the healthcare service providers' Privacy Policy</p>
<p style="text-align: justify; ">e. The securing and storing of information; and</p>
<p style="text-align: justify; ">f. Providing individuals with a right to access their health records.</p>
<p style="text-align: justify; ">These provisions are in keeping with the 13 National Privacy <a href="#_ftn79" name="_ftnref79">[79]</a>Principles that represent the minimum standards of privacy regulation with respect to the handling of personal information in the healthcare sector.These guidelines are advisory in nature and have been issued by the Privacy Commissioner in exercise of his power under Section 27(1)(e) <a href="#_ftn80" name="_ftnref80">[80]</a>of the Privacy Act.</p>
<p style="text-align: justify; ">The Act also embodiessimilar privacy principles which include a collection limitation, a definitive use and purpose for the information collected, a specific set of circumstance and an established protocol for the disclosure of information to third parties including the nature and extent of such disclosure, maintenance accuracy ofthe data collected, requisite security measures to ensure the data collected is at all times protected, a sense of transparency,accountability and openness in the administrative functioning of thehealthcare provider and accessibility of the patient to his ownrecords for the purpose of viewing, corroboration or correction.</p>
<p style="text-align: justify; ">Additionally, the Act includes the system of identifiers which includes a number assigned by the organization to an individual to identify the purpose of that person's data for the operation of the organization. Further, the Act provides for anonymity wherein individuals have the optionnot to identify themselves while entering into transactions with an organization. The Act also provides for restrictions on the transfer of personal data outside Australia and establishes conclusive and stringent barriers to the extent of collection of personal and sensitive data.These principles although vaguely similar to those highlighted in the A.P. Shah Committee report can be usedto streamline the regulations pertaining to privacy in the healthcare sector and make them more efficient.</p>
<h2 style="text-align: justify; ">Key Recommendations</h2>
<p style="text-align: justify; ">It is Imperative that Privacy concerns relating to the transnational flow of Private data be addressed in the most efficient way possible. This would involve international cooperation and collaboration to address privacy concerns including clear provisions and the development of coherent minimum standards pertaining to international data transfer agreements. This exchange of ideas and multilateral deliberation would result in creating more efficient methods of applying the provisions of privacy legislation even within domestic jurisdictions.</p>
<p style="text-align: justify; ">There is a universal need for the development of a foundational structure for the physical collection, use and storage of human biological specimens (in contrast to the personalinformation that may be derived from those specimens) as these are extremely important aspects of biomedical research and clinical trials. The need for Privacy Impact Assessments would also arise in the context of clinical trials, research studies and the gathering of biomedical data.</p>
<p style="text-align: justify; ">Further, there also arises the need for patients to be allowed to request for the deletion of their personal information once it has served the purpose for which it was obtained. The keeping of records for extended periods of time by hospitals and laboratories is unnecessary and can often result in the unauthorized access to and subsequent misuse of such data.</p>
<p style="text-align: justify; ">There is a definitive need to ensure the incorporation of safeguards to regulate the protection of patient’s data once accessed by third parties, such as insurance companies. In the Indian Context as well as insurance agencies often have unrestricted access to a patient's medical records however there is a definitive lack of sufficient safeguards to ensure that this information is not released to or access by unauthorized persons either within these insurance agencies or outsourced consultants</p>
<p style="text-align: justify; ">The system of identifiers which allocate specific numbers to an individual’s data which can only be accessed using that specific number or series of numbers can be incorporated into the Indian system as well and can simplify the administrative process thus increasing its efficacy. This would afford individuals the privilege of anonymity while entering into transactions with specific healthcare institutions.</p>
<p style="text-align: justify; ">An important means of responding to public concerns over potential unauthorized use ofpersonal information gathered for research, could be through the issuing of Certificates of confidentiality as issued in the United States to protectsensitive information on research participants from forced disclosure. <a href="#_ftn81" name="_ftnref81">[81]</a></p>
<p style="text-align: justify; ">Additionally, it is imperative that frequent discussions, deliberations, conferences and roundtables take place involving multiple stakeholders form the healthcare sector, insurance companies, patient’s rights advocacy groups and the government. This would aid in evolving a comprehensive policy that would aid in the protection of privacy in the healthcare sector in an efficient and collusive manner.</p>
<h2 style="text-align: justify; ">Conclusions</h2>
<p style="text-align: justify; ">The Right to Privacy has been embodied in a multitude of domestic legislations pertaining to the healthcare sector. The privacy principles envisioned in the A.P Shah Committee report have also been incorporated into the everyday practices of healthcare institutions to the greatest possible extent. There are however significant gaps in the policy formulation that essentially do not account for the data once it has been collected or its subsequent transfer. There is thus an imminent need for institutional collaboration in order to redress these gaps. Recommendations for the same have been made in the report. However, for an effective framework to be laid down there is still a need for the State to play an active role in enabling the engagement between different institutions both in the private and public domain across a multitude of sectors including insurance companies, online servers that are used to harbour a data base of patient records and civil action groups that demand patient privacy while at the same time seek to access records under the Right to Information Act. The collaborative efforts of these multiple stakeholders will ensure the creation of a strong foundational framework upon which the Right to Privacy can be efficiently constructed.</p>
<div style="text-align: justify; ">
<hr />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> . Report of the group of experts on Privacy chaired by Justice A.P Shah <http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf> [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> . Nissenbaum, H. (2004). Privacy as Contextual Integrity. <i>Washington Law Review</i>, <i>79</i>(1), 101-139.</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> . <i>Ibid.</i><i> </i></p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> . Thomas, J. (2009). Medical Records and Issues in Negligence, <i>Indian Journal of Urology : IJU : Journal of the Urological Society of India</i>, <i>25</i>(3), 384-388. doi:10.4103/0970-1591.56208.</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> <i>. Ibid </i></p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> . Plaza, J., &Fischbach, R. (n.d.). Current Issues in Research Ethics : Privacy and Confidentiality. Retrieved December 5, 2011, from http://ccnmtl.columbia.edu/projects/cire/pac/foundation/index.html.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> . <i>Ibid.</i><i> </i></p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> . The Mental Health Act, 1987 <https://sadm.maharashtra.gov.in/sadm/GRs/Mental%20health%20act.pdf> [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> . The Mental Health Act, 1987, s. 13(1).</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> .The Mental Health Act, 1987, s. 38.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> .The Mental Health Act, 1987, s. 40.</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> .The Mental Health Act, 1987, s. 21(2).</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> .The Mental Health Act, 1987, s. 13(1), <i>Proviso</i>.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> . Also see the: Pre-Conception and and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> . Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(3).</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> . Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(2). Pre-natal diagnostic techniques shall be conducted for the purposes of detection of: chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies any other abnormalities or diseases as may be specified by the Central Supervisory Board.</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> .Medical Termination of Pregnancy Amendment Act, 2002, Notification on Medical Termination of Pregnancy (Amendment) Act, Medical Termination of Pregnancy Regulations, 2003 and Medical Termination of Pregnancy Rules, 2003.</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> .Medical Termination of Pregnancy Act, 1971 (Amended in 2002), s. 2(4) and 4, and Medical Termination of Pregnancy Rules, 2003, Rule 8</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> .Medical Termination of Pregnancy Regulations, 2003, Regulation 4(5).</p>
</div>
<div id="ftn20">
<p><a href="#_ftnref20" name="_ftn20">[20]</a> .Medical Termination of Pregnancy Regulations, 2003, Regulation 5.</p>
</div>
<div id="ftn21">
<p><a href="#_ftnref21" name="_ftn21">[21]</a> .Medical Termination of Pregnancy Regulations, 2003, Regulation 4(2).</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> .Medical Termination of Pregnancy Regulations, 2003, Regulations 4(2) and 4(4).</p>
</div>
<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> <i>. Code of Ethics Regulations, 2002</i> available at</p>
<p><a href="http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx"> http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx </a> .</p>
</div>
<div id="ftn24">
<p><a href="#_ftnref24" name="_ftn24">[24]</a> . <i>Code of Ethics Regulations,</i> 2002 Chapter 2, Section 2.2.</p>
</div>
<div id="ftn25">
<p><a href="#_ftnref25" name="_ftn25">[25]</a> .<i>Ethical Guidelines for Biomedical Research</i><i> on </i><i>Human Subjects</i>. (2006) Indian <i>Council</i> of Medical Research New Delhi.</p>
</div>
<div id="ftn26">
<p><a href="#_ftnref26" name="_ftn26">[26]</a> . Informed Consent Process, <i>Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2006)</i><i>.</i> Indian <i>Council</i> of Medical Research New Delhi.P. 21.</p>
</div>
<div id="ftn27">
<p><a href="#_ftnref27" name="_ftn27">[27]</a> . Statement of Specific Principles for Human Genetics Research, <i>Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2000)</i> <i>.</i> Indian <i>Council</i> of Medical Research New Delhi.P. 62.</p>
</div>
<div id="ftn28">
<p><a href="#_ftnref28" name="_ftn28">[28]</a> . General Ethical I<i>ssues. Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2006)</i><i>.</i> Indian <i>Council</i> of Medical Research New Delhi.P. 29.</p>
</div>
<div id="ftn29">
<p><a href="#_ftnref29" name="_ftn29">[29]</a> . Statement of Specific Principles for Epidemiological Studies, <i>Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2000)</i> <i>.</i> Indian <i>Council</i> of Medical Research New Delhi P. 56.</p>
</div>
<div id="ftn30">
<p><a href="#_ftnref30" name="_ftn30">[30]</a> . Statement of General Principles, Principle IV and Essential Information on Confidentiality for Prospective Research Participants, <i>Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2006)</i><i>.</i> Indian <i>Council</i> of Medical Research New Delhi.P. 29.</p>
</div>
<div id="ftn31">
<p><a href="#_ftnref31" name="_ftn31">[31]</a> . The IRDA (Third Party Administrators - Health Services) Regulations 2001, (2001), Chapter 5. Section 2.</p>
</div>
<div id="ftn32">
<p><a href="#_ftnref32" name="_ftn32">[32]</a> . The IRDA (Sharing Of Database for Distribution of Insurance Products) Regulations 2010.</p>
</div>
<div id="ftn33">
<p><a href="#_ftnref33" name="_ftn33">[33]</a> . The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010.</p>
</div>
<div id="ftn34">
<p><a href="#_ftnref34" name="_ftn34">[34]</a> . The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010</p>
</div>
<div id="ftn35">
<p><a href="#_ftnref35" name="_ftn35">[35]</a> . List of TPAs Updated as on 19th December, 2011, Insurance Regulatory and Development Authority (2011), http://www.irda.gov.in/ADMINCMS/cms/NormalData_Layout.aspx?page=PageNo646 (last visited Dec 19, 2011).</p>
</div>
<div id="ftn36">
<p><a href="#_ftnref36" name="_ftn36">[36]</a> . The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011).</p>
</div>
<div id="ftn37">
<p><a href="#_ftnref37" name="_ftn37">[37]</a> . The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011), Section 9.11. P. 8. <i> </i></p>
</div>
<div id="ftn38">
<p><a href="#_ftnref38" name="_ftn38">[38]</a> .<i>The Epidemic Diseases Act</i>, 1897.</p>
</div>
<div id="ftn39">
<p><a href="#_ftnref39" name="_ftn39">[39]</a> .<i>The Epidemic Diseases Act</i>, 1897. s. 2.1.</p>
</div>
<div id="ftn40">
<p><a href="#_ftnref40" name="_ftn40">[40]</a> .<i>The Epidemic Diseases Act</i>, 1897, s. 2.2(b).</p>
</div>
<div id="ftn41">
<p><a href="#_ftnref41" name="_ftn41">[41]</a> . The National Policy for Persons with Disabilities, 2006, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996.</p>
</div>
<div id="ftn42">
<p><a href="#_ftnref42" name="_ftn42">[42]</a> . Research, National Policy for Persons with Disabilities, 1993.</p>
</div>
<div id="ftn43">
<p><a href="#_ftnref43" name="_ftn43">[43]</a> . Survey of Disabled Persons in India. (December 2003) National Sample Survey Organization. Ministry of Statistics and Programme Implementation. Government of India.</p>
</div>
<div id="ftn44">
<p><a href="#_ftnref44" name="_ftn44">[44]</a> .Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995, Section 35.</p>
</div>
<div id="ftn45">
<p><a href="#_ftnref45" name="_ftn45">[45]</a>. Research. National Policy for Persons with Disabilities, 2003.</p>
</div>
<div id="ftn46">
<p><a href="#_ftnref46" name="_ftn46">[46]</a>. http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf</p>
</div>
<div id="ftn47">
<p><a href="#_ftnref47" name="_ftn47">[47]</a>. http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf</p>
</div>
<div id="ftn48">
<p><a href="#_ftnref48" name="_ftn48">[48]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.22.</p>
</div>
<div id="ftn49">
<p><a href="#_ftnref49" name="_ftn49">[49]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.16.</p>
</div>
<div id="ftn50">
<p><a href="#_ftnref50" name="_ftn50">[50]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.16.</p>
</div>
<div id="ftn51">
<p><a href="#_ftnref51" name="_ftn51">[51]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.14.</p>
</div>
<div id="ftn52">
<p><a href="#_ftnref52" name="_ftn52">[52]</a>. http://www.hivaidsonline.in/index.php/HIV-Human-Rights/legal-issues-that-arise-in-the-hiv-context.html</p>
</div>
<div id="ftn53">
<p><a href="#_ftnref53" name="_ftn53">[53]</a>. Chakrapani et al, (2008) ‘HIV Testing Barriers and Facilitators among Populations at-risk in Chennai, India’, INP, p 12.</p>
</div>
<div id="ftn54">
<p><a href="#_ftnref54" name="_ftn54">[54]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.24.</p>
</div>
<div id="ftn55">
<p><a href="#_ftnref55" name="_ftn55">[55]</a> .<a href="http://www.indiankanoon.org/doc/570038/">http://www.indiankanoon.org/doc/570038/</a></p>
</div>
<div id="ftn56">
<p><a href="#_ftnref56" name="_ftn56">[56]</a> .<a href="http://www.indiankanoon.org/doc/570038/">http://www.indiankanoon.org/doc/570038/</a></p>
</div>
<div id="ftn57">
<p><a href="#_ftnref57" name="_ftn57">[57]</a> .<a href="http://www.indiankanoon.org/doc/680703/">http://www.indiankanoon.org/doc/680703/</a></p>
</div>
<div id="ftn58">
<p><a href="#_ftnref58" name="_ftn58">[58]</a> . No person accused of any offence shall be compelled to be a witness against himself’, (the 'right to silence').</p>
</div>
<div id="ftn59">
<p><a href="#_ftnref59" name="_ftn59">[59]</a> . http://indiankanoon.org/doc/338008/</p>
</div>
<div id="ftn60">
<p><a href="#_ftnref60" name="_ftn60">[60]</a> . http://www.hrdc.net/sahrdc/hrfeatures/HRF205.pdf</p>
</div>
<div id="ftn61">
<p><a href="#_ftnref61" name="_ftn61">[61]</a> . AIR 1992 SC 392.</p>
</div>
<div id="ftn62">
<p><a href="#_ftnref62" name="_ftn62">[62]</a> . 96 (2002) DLT 354.</p>
</div>
<div id="ftn63">
<p><a href="#_ftnref63" name="_ftn63">[63]</a> .AIR 2000 A.P 156.</p>
</div>
<div id="ftn64">
<p><a href="#_ftnref64" name="_ftn64">[64]</a> .<a href="http://indiankanoon.org/doc/382721/">http://indiankanoon.org/doc/382721/</a></p>
</div>
<div id="ftn65">
<p><a href="#_ftnref65" name="_ftn65">[65]</a> .<a href="http://indiankanoon.org/doc/859256/">http://indiankanoon.org/doc/859256/</a></p>
</div>
<div id="ftn66">
<p><a href="#_ftnref66" name="_ftn66">[66]</a> .See Sections 24, 37, 38 and 39 of The Prisons Act, 1894 (Central Act 9 of 1894) Rules 583 to 653 (Chapter XXXV) and Rules 1007 to 1014 (Chapter LVII) of Andhra Pradesh Prisons Rules, 1979</p>
</div>
<div id="ftn67">
<p><a href="#_ftnref67" name="_ftn67">[67]</a> .Section 10-A,17(4) ,19(2) Immoral Traffic (Prevention) Act 1956</p>
</div>
<div id="ftn68">
<p><a href="#_ftnref68" name="_ftn68">[68]</a> .<a href="http://www.indiankanoon.org/doc/1309207/">http://www.indiankanoon.org/doc/1309207/</a></p>
</div>
<div id="ftn69">
<p><a href="#_ftnref69" name="_ftn69">[69]</a> . http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf</p>
</div>
<div id="ftn70">
<p><a href="#_ftnref70" name="_ftn70">[70]</a> . Article 33, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL</p>
<p>on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14<sup>th</sup> May, 2014]</p>
</div>
<div id="ftn71">
<p><a href="#_ftnref71" name="_ftn71">[71]</a> .Article 4 (Definition of “Data Subject’s Consent”), Article 7, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL</p>
<p>on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14<sup>th</sup> May, 2014].</p>
</div>
<div id="ftn72">
<p><a href="#_ftnref72" name="_ftn72">[72]</a> . Article 17, “Safeguarding Privacy in a Connected World – A European Data Protection Framework for the 21st</p>
<p>Century” COM(2012) 9 final. Based on, Article 12(b), EU Directive 95/46/EC – The Data Protection Directive at <http://www.dataprotection.ie/docs/EU-Directive-95-46-EC-Chapter-2/93.htm> [Accessed on 14<sup>th</sup> May, 2014]</p>
</div>
<div id="ftn73">
<p><a href="#_ftnref73" name="_ftn73">[73]</a> . Article 81, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL</p>
<p>on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14<sup>th</sup> May, 2014]</p>
</div>
<div id="ftn74">
<p><a href="#_ftnref74" name="_ftn74">[74]</a> .Article 83, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL</p>
<p>on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14<sup>th</sup> May, 2014]</p>
</div>
<div id="ftn75">
<p><a href="#_ftnref75" name="_ftn75">[75]</a> . Health Maintainence and Organization Act 1973, Notes and Brief Reports available at http://www.ssa.gov/policy/docs/ssb/v37n3/v37n3p35.pdf [Accessed on 14th May 2014].</p>
</div>
<div id="ftn76">
<p><a href="#_ftnref76" name="_ftn76">[76]</a> . Health Insurance Portability and Accountability Act, 1996 available at http://www.hhs.gov/ocr/privacy/hipaa/administrative/statute/hipaastatutepdf.pdf [Accessed on 14th May 2014]</p>
</div>
<div id="ftn77">
<p><a href="#_ftnref77" name="_ftn77">[77]</a> . Illinois Alliance for Health Innovation plan available at http://www2.illinois.gov/gov/healthcarereform/Documents/Alliance/Alliance%20011614.pdf [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn78">
<p><a href="#_ftnref78" name="_ftn78">[78]</a> . The Privacy Act 1988 available at http://www.comlaw.gov.au/Series/C2004A03712 [Accessed on 14th May 2014]</p>
</div>
<div id="ftn79">
<p><a href="#_ftnref79" name="_ftn79">[79]</a> . Schedule 1, Privacy Act 1988 [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn80">
<p><a href="#_ftnref80" name="_ftn80">[80]</a> .Section 27(e), Privacy Act 1988 [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn81">
<p><a href="#_ftnref81" name="_ftn81">[81]</a> . Guidance on Certificates of Confidentiality, Office of Human Research Protections, U.S Department of Health and Human Services available at http://www.hhs.gov/ohrp/policy/certconf.pdf [Accessed on 14<sup>th</sup> May, 2014].</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide'>https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide</a>
</p>
No publishertanviFeaturedHomepageInternet GovernancePrivacy2014-08-31T15:18:12ZBlog EntryInternet Researchers' Conference 2017 (IRC17) - Call for Sessions
https://cis-india.org/raw/irc17-call
<b>It gives us great pleasure to announce that the second Internet Researchers' Conference (IRC17) will take place in Bengaluru on March 03-05, 2017. It will be organised by the Centre for Internet and Society (CIS) in partnership with the Centre for Information Technology and Public Policy at the International Institute of Information Technology Bangalore (IIIT-B). It is a free and open conference. Sessions must be proposed by teams of two or more members on or before Friday, October 28. All submitted session proposals will go though an open review process, followed by each team that has proposed a session being invited to select ten sessions of their choice to be included in the Conference agenda. Final sessions will be chosen through these votes, and be announced on January 09, 2017.</b>
<p> </p>
<h4>IRC17 Call for Sessions: <a href="https://github.com/cis-india/irc/raw/master/IRC17_Call-for-Sessions.pdf">Download</a> (PDF)</h4>
<h4>IRC17 Selection of Sessions: <a href="http://cis-india.org/raw/irc17-selection">http://cis-india.org/raw/irc17-selection</a></h4>
<h4><em>Deadline for submission was Friday, October 28.</em></h4>
<hr />
<h3><strong>IRC17: Key Provocations</strong></h3>
<p>Two critical questions that emerged from the conversations at the previous edition of the Conference (IRC16) were about the <strong>digital objects of research</strong>, and the <strong>digital/internet experiences in Indic languages</strong>. As we discussed various aspects and challenges of 'studying internet in India', it was noted that we have not sufficiently explored how ongoing research methods, assumptions, and analytical frames are being challenged (if at all) by the <strong>becoming-digital</strong> of the objects of research across disciplines: from various artifacts and traces of human and machinic interactions, to archival entries and sites of ethnography, to practices and necessities of collaboration.</p>
<p>We found that the analyses of such <strong>digital objects of research</strong> often tend to assume either an aesthetic and functional <strong>uniqueness</strong> or <strong>sameness</strong> vis-à-vis the pre-/proto-digital objects of research, while neither of these positions are discussed in detail. Further, we tend to universalise the English-speaking user's/researcher's experience of working with such digital objects, without sufficiently considering their lives and functions in other (especially, Indic) languages.</p>
<p>These we take as the key provocations of the 2017 edition of IRC:</p>
<ul>
<li>How does the <strong>becoming-digital</strong> of the research objects challenge our current research practices, concerns, and assumptions?</li>
<li>How do we appreciate, study, and theorise the functioning of and meaning-making by digital objects in <strong>Indic languages</strong>?</li>
<li>What <strong>research tools and infrastructures</strong> are needed to study, document, annotate, analyse, archive, cite, and work with (in general) digital objects, especially those in Indic languages?</li></ul>
<h3><strong>Call for Sessions</strong></h3>
<p>We invite teams of two or more researchers and practitioners to propose sessions for IRC17. We do understand that finding team members for a session you have in mind might be difficult in certain cases. Please feel free to share initial sessions ideas on the <strong>researchers@cis-india</strong> mailing list <strong>[1]</strong>. Also, please keep an eye on the list to see what potential topics are being discussed.</p>
<p>All sessions will be one and half hours long, and will be fully designed and facilitated by the team concerned, including moderation (if any). The sessions are expected to drive conversations on the topic concerned. They may include presentation of research papers but this is <strong>not at all</strong> mandatory.</p>
<p>If you plan to organise a session structured around presentation of research papers, please note that we are exploring potential publication outlets for a collection of full-length research papers. If your session is selected for IRC17, we will notify you of guidelines to be followed for the submission and review of full-length papers prior to the conference. If you are interested in this publication possibility, <strong>please indicate</strong> that in your session proposal submission.</p>
<p>Sessions that involve collaborative work (either in group or otherwise), including discussions, interactions, documentation, learning, and making, are <strong>most welcome</strong>.</p>
<p>Further, we look forward to sessions conducted in <strong>Indic languages</strong>. The proposing team, in such a case, should consider how participants who do not understand the language can participate in it. IRC organisers and other participants will play an active role in making such engagements possible.</p>
<p>The only <strong>eligibility criteria</strong> for proposing sessions are that they must be proposed by a <strong>team of at least two members</strong>, and that they must engage with <strong>one (or more) of the three key provocations</strong> mentioned above. Further, the teams whose sessions are selected for IRC17 must commit to producing at least <strong>one post-conference essay/documentation</strong> on the topic of their session.</p>
<p>The <strong>deadline</strong> for submission of sessions proposals for IRC17 is <strong>Friday, October 28</strong>.</p>
<p>To propose a session, please send the following documents (as attached text files) to <strong>raw[at]cis-india[dot]org</strong>:</p>
<ul>
<li><strong>Title and Description of the Session:</strong> The session should be named in the form of a hashtag (check the IRC16 sessions for reference <strong>[2]</strong>). The description of the session should clearly state what the key focus of the session is, and which of the three central concerns it will address. The description should be approximately <strong>300 words</strong> long.</li>
<li><strong>Session plan:</strong> This should describe how the session will be conducted and moderated. Any specific requirements (technical, language support, etc.) of the session should also be noted here. This should not be more than <strong>200 words</strong> long. If your session plan involves presentation of research papers, please indicate whether you would be interested in having these papers considered for academic publication.</li>
<li><strong>Documentation plan:</strong> This should indicate how documentation will be done during the session, and more importantly what form the post-conference essay/documentation will take and what issue(s) it will address. This should not be more than <strong>100 words</strong> long.</li>
<li><strong>Short Abstracts (Only for Sessions with Paper Presentations):</strong> If your session involves presentation of research papers, please share a <strong>250 words</strong> abstract for each paper.</li>
<li><strong>Details of the Team:</strong> Please share brief biographic notes of each member of the session team, and contact details.</li></ul>
<h3><strong>Session Selection Process</strong></h3>
<p><strong>October 28:</strong> Deadline of submission of session proposals.</p>
<p><strong>October 31:</strong> All submitted sessions will be posted on the CIS website, along with the names, biographic brief, and contact details of the members of the session teams.</p>
<p><strong>November 01 - December 24:</strong> Open review period. All session teams, as well as other interested contributors, may review the submitted proposals and share comments directly with the session teams, or discuss the session on the researchers@cis-india list. The session teams may fully and continuously edit the proposal during this period, including adding/changing session teams.</p>
<p><strong>December 25:</strong> Open review ends and voting begins. All session teams will select 10 sessions to be included in the IRC17 programme. The votes will be anonymous, that is which session team has voted for which set of sessions will not be made public.</p>
<p><strong>January 05:</strong> Voting ends.</p>
<p><strong>January 09:</strong> Announcement of selected sessions.</p>
<p><strong>February 12:</strong> Deadline for selected session teams to submit a detailed session plan, information about which will be shared later. If a selected session involves presentation of papers, then the draft papers are to be submitted by this date (no need to submit a detailed session plan in that case).</p>
<h3><strong>Venue, Accommodation, and Travel</strong></h3>
<p>The conference will take place at the International Institute of Information Technology Bangalore (IIIT-B) during March 03-05, 2017 <strong>[3]</strong>.</p>
<p>The conference does <strong>not</strong> have any participation fees. The organisers will cover <strong>all</strong> costs related to accommodation and hospitality during the conference. We look forward to offer a limited number of (domestic) travel fellowships for students and other deserving applicants. We will also confirm this on <strong>January 02, 2017</strong>.</p>
<h3><strong>About the IRC Series</strong></h3>
<p>The Researchers at Work (RAW) programme <strong>[4]</strong> at the Centre for Internet and Society (CIS) initiated the Internet Researchers' Conference (IRC) series to address these concerns, and to create an annual temporary space in India, for internet researchers to gather and share experiences.</p>
<p>The IRC series is driven by the following interests:</p>
<ul>
<li>creating discussion spaces for researchers and practitioners studying internet in India and in other comparable regions,</li>
<li>foregrounding the multiplicity, hierarchies, tensions, and urgencies of the digital sites and users in India,
accounting for the various layers, conceptual and material, of experiences and usages of internet and networked digital media in India, and</li>
<li>exploring and practicing new modes of research and documentation necessitated by new (digital) objects of power/knowledge.</li></ul>
<p>The first edition of the Internet Researchers' Conference series was held in February 2016 <strong>[5]</strong>. It was hosted by the Centre for Political Studies at Jawaharlal Nehru University <strong>[6]</strong>, and was supported by the CSCS Digital Innovation Fund <strong>[7]</strong>. The Conference was constituted by eleven discussion sessions (majority of which were organised around presentation of several papers), four workshop sessions (which involved group discussions, activities, and learnings), a book sprint over three sessions to develop an outline of a (re)sourcebook for internet researchers in India, and a concluding round table. The audio recordings and notes from IRC16 are now being compiled into an online Reader. A detailed reflection note on the IRC16 has already been published <strong>[8]</strong>.</p>
<h3><strong>Endnotes</strong></h3>
<p><strong>[1]</strong> See: <a href="https://lists.ghserv.net/mailman/listinfo/researchers">https://lists.ghserv.net/mailman/listinfo/researchers</a>.</p>
<p><strong>[2]</strong> See: <a href="http://cis-india.org/raw/irc16">http://cis-india.org/raw/irc16</a>.</p>
<p><strong>[3]</strong> See: <a href="http://iiitb.ac.in/">http://iiitb.ac.in/</a>.</p>
<p><strong>[4]</strong> See: <a href="http://cis-india.org/raw/">http://cis-india.org/raw/</a>.</p>
<p><strong>[5]</strong> See: <a href="http://cis-india.org/raw/irc16">http://cis-india.org/raw/irc16</a>.</p>
<p><strong>[6]</strong> See: <a href="http://www.jnu.ac.in/SSS/CPS/">http://www.jnu.ac.in/SSS/CPS/</a>.</p>
<p><strong>[7]</strong> See: <a href="http://cis-india.org/raw/cscs-digital-innovation-fund">http://cis-india.org/raw/cscs-digital-innovation-fund</a>.</p>
<p><strong>[8]</strong> See: <a href="http://cis-india.org/raw/iirc-reflections-on-irc16">http://cis-india.org/raw/iirc-reflections-on-irc16</a>.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/raw/irc17-call'>https://cis-india.org/raw/irc17-call</a>
</p>
No publishersumandroResearchers at WorkInternet Researcher's ConferenceFeaturedLearningIRC17Homepage2016-12-12T13:40:08ZBlog Entry