Centre for Internet and Society

Digital Futures: Internet Freedom and Millennials

nishant — 2012-02-15T04:25:50Z

Last year was a turbulent year for freedom of speech and online expression in India. Early in 2011 we saw the introduction of an Intermediaries Liability amendment to the existing Information Technologies Law in the country, which allowed intermediaries like internet service providers (ISPs), digital content platforms (like Facebook and Twitter) and other actors managing online content, to remove material that is deemed objectionable without routing it through a court of law. Effectively, this was an attempt at crowdsourcing censorship, where at the whim or fancy of any person who flags information as offensive, it could be removed from digital platforms, writes Nishant Shah in DMLcentral on 3 February 2012.

While we were still reeling from the potential abuse this could lead to – from weekend drunken games where people send take-down notices on an ad hoc basis to regressive fundamentalists using this to silence voices of protests – we encountered another shock. The Information and Technologies minister of India called some of the biggest social networking platforms that support user generated content to exercise a regime of self-regulation and censorship. Citing content that was considered slanderous to political leaders in the country and potentially offensive to the religious sentiments of certain groups, he called for a ‘pre-screening’ of online content – invoking visions of thought police, where an army of thousands will be trained to read your personal and private information, sift it for offensive content, and disallow it to be published online.

And while we deal with the aftermath of what this might mean to the future of openness and our constitutionally enshrined rights of freedom of speech and expression, there was another shock that awaited us in 2012. Even as I write this, Facebook and Google – two of the largest social media platforms in India – have been 'implicated' in a gamut of civil and criminal charges. It has been alleged that these companies knowingly allowed obscene and immoral material capable of inciting prurience, communal tension, hatred and violence, to proliferate in their systems because it helps generate revenue. Because the people who uploaded the information are outside the jurisdiction of the court, they cannot be punished but these intermediaries that have allowed this content that is deemed ‘obscene, lascivious, indecent and shocking’, are now being held responsible.

There has been a lot of debate in and outside the country about the implications this has for the form and nature of information online. Freedom of speech and expression, information regulation regimes in emerging information societies, resurgence of authoritative governmentality in the face of quickly eradicating sovereignty, and the diminishing openness of the web, have all been variously discussed, much like the debates around SOPA/PIPA discussions in the US. In all of these conversations, there has been talk about the future but not about the people whose futures are the most at stake – digital natives. Pulling from my research, here are some summarized reflections of members of a younger generation pondering their digital futures:

Innovation: One of the tropes that allows digital natives intimate relationships with their technology gadgets, platforms and environments is to innovate. Especially in the global south where we cannot take ubiquitous and affordable access to the internet for granted, innovation is not merely about creativity in producing new content. Innovation is in mobilizing meager resources in order to achieve large tasks. Innovation is in cutting through existing boundaries of inequity and building communities of learning and information. Innovation is in finding ways by which access can be facilitated for large user bases. Free and open information is the reward that follows innovation. There is consensus that restricting access to information is a negative incentive for those approaching the information superhighway. And for some it is also “a challenge to find ways of accessing that information. They can ban it, but by the time they will ban it, our way of accessing it will have changed!”

Information Read/Write: Sometimes the promise of digital networks providing abundant information and knowledge, which is free to access and consume, overrides the actual allure of speech and expression. As one interlocutor explained in Wikipedia terms, “more people access Wikipedia to consume information others have produced rather than contribute to it...and it is the same everywhere. It is fun to write, but it is fun to write only because there is somebody reading it. Sometimes I go online to read rather than write.” The censorship debates often restrict themselves to freedom of speech and expression, but what they overlook is that this also interferes with the freedom to read. Reading is a form of engagement, interaction, formation of trust and affection online. And when information can no longer be easily read, it will have drastic effects on how young people connect and form communities.

Mapping Learning: For many digital natives in my work, the digital domain is not only a playground but also a space of learning. Not learning in its didactic forms, replacing universities and offering abundance of knowledge. For some, the digital space is a new process of learning. It helps them negotiate and cope with their formal curricula and offers alternative sources to understand and analyze reality. As many in our research group mentioned, “we already have access to enough academic material through our libraries. What we find on the internet are things that help us understand ideas through things that are familiar to us.” When pressed for an example, I was shown a wide range of popular and academic, cultural and social spaces – blogs, videos, movies, music, commentaries, tweets, mashups, etc., which the students often map back to their existing curriculum. “Sometimes the textbooks talk about things that happened before we were born. Or belonging to countries we don’t know much about,” explained a 19-year-old. So as a group they try and pull different and more familiar objects back into their discussions, using the web, its search potential, and social networking sites as filters to gain access to relevant knowledge.

It is in the nature of information to be filtered or censored. Even at a personal level we constantly filter out information that is not desirable or useful to us. It is understandable that certain kinds of information that are produced with malicious intent needs to be controlled. However, the recent attempts attack the very structures that define the social web as we understand it now -- openness, distribution, sharing, collaboration, co-creation and interactivity. For digital natives, being digital is not just about infrastructure and access. It is an integral part of how they embed themselves and negotiate with our information society. Regulation of information is not just about resolving the crisis of the present but also about shaping the digital futures for a generation that is growing up digital.

Banner image credit: zebble http://www.flickr.com/photos/zebble/6080622/

Read the original published in DML Central

For more details visit https://cis-india.org/internet-governance/digital-futures-internet-freedom-and-millennials-2

Towards Algorithmic Transparency

Radhika Radhakrishnan, and Amber Sinha — 2020-07-15T13:16:44Z

This policy brief examines the issue of transparency as a key ethical component in the development, deployment, and use of Artificial Intelligence.

This brief proposes a framework that seeks to overcome the challenges in preserving transparency when dealing with machine learning algorithms, and suggests solutions such as the incorporation of audits, and ex ante approaches to building interpretable models right from the design stage. Read the full report here.

The Regulatory Practices Lab at CIS aims to produce regulatory policy suggestions focused on India, but with global application, in an agile and targeted manner and to promote transparency around practices affecting digital rights.
The Regulatory Practices Lab is supported by Google and Facebook.

For more details visit https://cis-india.org/internet-governance/blog/towards-algorithmic-transparency

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

2021-06-29T06:53:47Z

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

Report: Download (PDF)

Press Release: Download (PDF)

Press Release, August 25, 2020

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

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

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

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

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

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

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

Hear our voices and address our demands.

- Shaik Salauddin

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

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

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

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

2021-06-29T07:27:09Z

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

Report: Download (PDF)

Press Release: Download (PDF)

Press Release, 17 September, 2020

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

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

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

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

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

Hear our voices and address our demands.

Shaik Salauddin

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

Phone: +91 96424 24799

Indian Federation of App-based Transport Workers

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

Twitter: www.twitter.com/connect_ifat

YouTube: www.youtube.com/channel/UCA1AxGq0Fb_A_O_Ey44eiPg

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

Economic, Social and Cultural Rights in India: Opportunities for Advocacy in Intellectual Property

Sunil Abraham and Vidushi Marda — 2017-04-23T05:22:01Z

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.

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.

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.

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.

The report on digital protection of traditional knowledge was published by GIS Watch earlier and the rest of the reports have been published by the Association for Progressive Communications.

For more details visit https://cis-india.org/openness/apc-april-23-2017-sunil-abraham-and-vidushi-marda-economic-social-and-cultural-rights-in-india

Alt needs to Shift

nishant — 2012-12-14T10:03:30Z

People maybe talking more online, but they all seem to be talking about the same kind of thing.

Nishant Shah's column was published in the Indian Express on November 18, 2012.

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.

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.

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.

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”.

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.

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.

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.

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.

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

For more details visit https://cis-india.org/raw/digital-humanities/indian-express-nov-18-2012-nishant-shah-alt-needs-to-shift

A Question of Digital Humanities

sneha-pp — 2016-06-30T05:06:46Z

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.

Sections

01. Digital Humanities in India?

02. A Question of Digital Humanities

03. Reading from a Distance – Data as Text

04. The Infrastructure Turn in the Humanities

05. Living in the Archival Moment

06. New Modes and Sites of Humanities Practice

07. Digital Humanities in India – Concluding Thoughts

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.

The Problem of Definition

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 [1]. 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 for the digital humanities, but it would be important to first examine what would be the question/s of 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)

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:

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 Nature of the book, "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?
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 [2] as an identity meditated by digital and new media technologies, wherein technology is central to the practices that engender this subjectivity.
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.

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)

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.

The Problem of the Discipline

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.

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 [3]. 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.

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.

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.

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 [4] or the Vectors journal [5] 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.

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.

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.

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.

Notes

[1] For a more detailed overview of the different phases of DH, see Patrik Svensson in 'Landscape of Digital Humanities,' Digital Humanities Quarterly, Volume 4 Number 1, 2010, http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html.

[2] For more on the nature of the technosocial subject, see Nishant Shah, The Technosocial Subject: Cities, Cyborgs and Cyberspace, Manipal University, 2013. Indian ETD Repository @ INFLIBNET, http://hdl.handle.net/10603/8558.

[3] This is rather simple abstraction of ideas about discipline and reason as they have stemmed from Enlightenment thought. For a more elaborate understanding see Conflict of the Faculties (1798) by Immanuel Kant and Discipline and Punish (1975) by Michel Foucault.

[4] See: http://indiancine.ma/.

[5] See: http://vectors.usc.edu/journal/index.php.

References

Cutrofello, Andrew, Discipline and Critique: Kant, Poststructuralism and the Problem of Resistance, State University of New York Press, 1994.

Guru, Gopal, and Sundar Sarukkai, The Cracked Mirror: An Indian Debate on Experience and Theory, New Delhi: Oxford University Press India, 2012.

Johns, Adrian, The Nature of the Book: Print and Knowledge in the Making, Chicago: University of Chicago Press, 1998.

Latour, Bruno, 'Morality and Technology: The End of the Means,' Trans. Couze Venn, Theory Culture Society, 247-260, 2002.

Parry, Dave, 'The Digital Humanities or a Digital Humanism', Debates in the Digital Humanities, ed. Mathew K. Gold, University of Minnesota Press, 2012, http://dhdebates.gc.cuny.edu/debates/text/24.

Ramsay, Stephen, 'On Building,' 2010, http://lenz.unl.edu/papers/2011/01/11/on-building.html.

For more details visit https://cis-india.org/raw/a-question-of-digital-humanities

CIS's Position on Net Neutrality

sunil — 2015-12-09T13:06:06Z

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.

Net Neutrality violations can potentially have multiple categories of harms — competition harms, free speech harms, privacy harms, innovation and ‘generativity’ harms, harms to consumer choice and user freedoms, and diversity harms thanks to unjust discrimination and gatekeeping by Internet service providers.
Net Neutrality violations (including some those forms of zero-rating that violate net neutrality) can also have different kinds benefits — enabling the right to freedom of expression, and the freedom of association, especially when access to communication and publishing technologies is increased; increased competition [by enabling product differentiation, can potentially allow small ISPs compete against market incumbents]; increased access [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, reduced payments by those who already have access to the Internet especially if their usage is dominated by certain services and destinations.
Given the magnitude and variety of potential harms, complete forbearance from all regulation is not an option 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, CIS calls for the immediate formulation of Net Neutrality regulation 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.
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. Banning technical innovations and business model innovations is not an appropriate policy option. The regulation must toe a careful line to solve the optimization problem: 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.
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.

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: transparency, non-exclusivity, limiting unjust discrimination.
The harms emerging from walled gardens can be mitigated in a number of ways. On zero-rating the form of regulation must depend on the specific model and the potential harms that result from that model. 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 ‘equal rating’, CIS advocates for no regulation.
CIS believes that Net Neutrality regulation for mobile and fixed-line access must be different recognizing the fundamental differences in technologies.
On specialized services CIS believes that there should be logical separation 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.
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.
On reasonable network management CIS still does not have a common institutional position.

For more details visit https://cis-india.org/internet-governance/blog/cis-position-on-net-neutrality

Online Pre-Censorship is Harmful and Impractical

pranesh — 2011-12-12T17:00:50Z

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.

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 IT Rules that have been in force since April 2011.

Background

The New York Times scooped a story on Monday revealing that Mr. Sibal and the MCIT had been in touch with Facebook, Google, Yahoo, and Microsoft, 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 'vile' and capable of inciting riots as being problems. Lastly, Mr. Sibal defended this as not being "censorship" by the government, but "supervision" of user-generated content by the companies themselves.

Concerns

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 ICCPR and in Article 19(2) of our Constitution. My problem lies elsewhere.

Secrecy

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.

Making intermediaries responsible

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 in an interview with the Wall Street Journal. 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 (Janhit Manch v. Union of India) and Madras (R. Karthikeyan v. Union of India) refused to direct the government and intermediaries to police online content, saying that places an excessive burden on freedom of speech.

IT Rules, 2011

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.

For more details visit https://cis-india.org/internet-governance/online-pre-censorship-harmful-impractical

Hyper-connected, Hyper-lonely?

Nilofar Ansher — 2015-04-24T11:57:46Z

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

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

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

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

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

Responses to the DIPP's Discussion Paper on SEPs and their Availability on FRAND Terms

Anubha Sinha, Nehaa Chaudhari, and Rohini Lakshané — 2016-07-07T16:24:01Z

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.

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.

Download

Discussion Paper on Standard Essential Patents and their Availability on Frand Terms (Government of India, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, March 1, 2016)
Centre for Internet and Society
Centre for Internet and Society (hosted on Social Science Research Network)
Prof. Jorge L. Contreras
Joint Comments of the American Bar Association (ABA) Sections of Anti-Trust Law, Intellectual Property Law, International Law, and Science & Technology Law
Global Antitrust Institute, George Mason University School of Law
CMAI-TEMA (Communication Multimedia and Infrastructure Association of India - Telecom Equipment Manufacturers Association of India)
Software Freedom Law Centre (SFLC)
Yogesh Pai

For more details visit https://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms

Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms

Anubha Sinha, Nehaa Chaudhari and Rohini Lakshane — 2016-05-03T02:30:15Z

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.

Download the PDF To access other submissions to the DIPP Discussion Paper on SEP and FRAND, please click here

Authors

I. PRELIMINARY

1. This submission presents comments by the Centre for Internet and Society, India ("CIS") on the Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms (dated 01 March, 2016), released by the Department of Industrial Policy and Promotion ("the DIPP"), Ministry of Commerce and Industry, Government of India (" the discussion paper/ discussion paper").

2. 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.

3. This submission is divided into three 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.

II. ABOUT CIS

4. CIS is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cyber-security.

5. 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 and Digital India initiatives of the Government of India.

III. SUBMISSION ON THE ISSUES FOR RESOLUTION

6. The following sections provide CIS' views and recommendations on the issues enumerated in section 11 of the discussion paper:

a) 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 be addressed through appropriate amendments to such IPR-related legislations? If so, what changes should be affected?

A.1. The issues related to Standard Essential Patents ("SEPs") and their licensing on a fair, reasonable and non-discriminatory ("FRAND") basis lie at the intersection of intellectual property ("IP") law and competition law . As such, in India, the Patents Act, 1970 ("the Patents Act") and, the Competition Act, 2002 ("the Competition Act") are the relevant legislations to be studied. These have been recently discussed, most recently, by Justice Bakhru in his comprehensive order inTelefonaktiebolaget LM Ericsson (Publ) v. Competition Commission of India and Another.

A.2. 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, 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 ("the Controller") and the Competition Commission of India (" the CCI") for the Patents Act and for the Competition Act respectively - to seek inputs from each other.

A.3. 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 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, we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.

A.4. 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. As such, we would urge the Government of India to not enter into free trade agreements including, inter alia, the Regional Comprehensive Economic Partnership, that threaten our use of TRIPS flexibilities, and, impose 'TRIPS-plus' obligations.

A.5. 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.

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?

B.1. The discussion paper identifies four Standard Setting Organizations ("SSOs") in India, namely, the Telecom Standards Development Society of India ("TSDSI"), the Telecommunication Engineering Center ("TEC"), the Bureau of Indian Standards (" BIS"), the Global ICT Standardization Forum for India ("GISFI"), and, the Development Organization of Standards for Telecommunications in India ("DOSTI"). Comments on each of their policies have been made in the following paragraphs.

B.2. The BIS does not have an intellectual property rights ("IPR") policy of its own. The BIS Act, 2016 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 ("India specific requirements"). In addition, our comments on the IPR policy of the TSDSI in paragraph B.4. of this submission (below), may also be considered for the content of the BIS' future policy on IPR.

B.3 . 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 B.4. of this submission (below), may also be considered for the content of the BIS' future policy on IPR.

B.4. The TSDSI, a relatively new standards body, has defined an IPR policy . In respect of this policy, the following observations are presented. First, this policy notes that IPR owners should be adequately and fairly rewarded.Second, it requires members to disclose essential IPRs in a "timely fashion." Third, 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. At the same time, the policy also states that the (aforesaid) ask may be subject to the condition that licensees agree to reciprocate. 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. Fourth, the policy identifies two scenarios for the non availability of licences prior to publication, 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." The same is also true where the IPR owner is not a member of the TSDSI. Fifth, the policy also envisages a scenario of non-availability post publication. 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. Sixth, it is observed that the policy does not require a commitment from its members to refrain from seeking injunctive relief. Seventh, 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.

B.5. The IPR policy of GISFI, is substantially similar to the IPR policy of the TSDSI, discussed in paragraph B.4. of this submission (above). Inter alia, 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. Our recommendations on the IPR policy of the TSDSI in paragraph B.4. of this submission (above), may also be considered for the GISFI's IPR policy.

B.6. 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 B.4. of this submission (above). The aforesaid recommendations may also be considered to be relevant for the DOSTI's IPR policy.

B.7. 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 ("W3C") and the Open Mobile Alliance ("OMA") encourage royalty-free licensing.

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?

C.1. 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.

C.2. 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 B.2. 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.

C.3. 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 ("IPO"), the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.

C.4. 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.

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?

D.1. 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.

D.2. 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. Further details of this proposal have been enumerated in answer to question 'f' of the discussion paper (below).

D.3. Our motivations for this proposal are many-fold. 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 . 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 ("NPEs") 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.

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?

E.1. It is our submission that royalty rates for SEPs should be based on the smallest saleable patent practising component ("SSPPC"). 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 comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India. 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.

E.2. The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al 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 . 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 . 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.

E.3. 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. In his paper, Sidak(2015) notes that in determining royalties, the court relied, inter alia, on the decision of CSIRO v.Cisco ("the CSIRO case"), a 2015 decision of the US Court of Appeals for the Federal Circuit. 2015. 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.

E.4. It is our submission that the CSIRO case 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.

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?

F.1. 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.

F.2. 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". Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government.

F.3. 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.

F.4. 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.

F.5. 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.

F.6. 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.

F.7. In June, 2013, we had recommended to the erstwhile Hon'ble Minister for Human Resource Development 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. 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. 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."

F.8. We believe that such a measure is not in breach of our international obligations under the TRIPS Agreement.

g) Whether the practice of Non-Disclosure Agreements (NDA) leads to misuse of dominant position and is against the FRAND terms?

G.1. The issue of Non Disclosure Agreements ("NDAs") 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.

G.2. In India's SEP litigation, the use of NDAs has been raised as an issue in at least two cases - separately by Intex and by iBall , 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.

G.3. 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).

G.4. According to iBall, the parties had agreed to enter a global patent license agreement ("GPLA") 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.

G.5. 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 , 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.

G.6. 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 all instances. However, the following submissions are made: First, the determination of misuse/abuse of dominant position is influenced by a number of factors , i.e., such a determination should be made on a case to case basis. Second, 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. Third, 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 itself is abusive, irrespective of its terms and, (b) whether the use of certain specific terms renders the NDA abusive. Fourth, 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. Fifth, 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.

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?

H.1. 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.

H.2. Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser " 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. " Such an independent adviser may inform the court on the technical nuances of the matter.

H.3. Further, under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves first, a prima facie case of infringement; second, that the balance of convenience tilts in plaintiff's favour; and, third, that if an injunction is not granted the plaintiff shall suffer irreparable damage. H.4. However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. First, in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. Second, 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. Third, 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. Fourth, 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. Further, as Contreras (2015) 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.

i) What steps can be taken to make the practice of Cross-Licensing transparent so that royalty rates are fair & reasonable?

I.1. The Patents Act requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year. 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. Indeed, as the decision in Natco Pharma v. Bayer Corporation 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.

I.2. 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 (suo motu and in response to a public interest litigation filed in 2011 ), and, reminding the patentees that non-compliance is punishable with a heavy fine. Findings of research submitted by one of the parties in the writ of the 2011 public interest litigationShamnad Basheer v. Union of India and others reveal as follows. First, 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. Second, a large number of filings in the telecom sector remain incomplete.

I.3. In 2015, CIS queried the IPO website for Form 27s of nearly 4,400 patents. CIS' preliminary research (ongoing and unpublished) echoes findings similar to the ones disclosed in the case discussed in paragraph I.2. of this submission (above).

I.4. 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: first, that there be a strict enforcement of the submission of Form 27s on a regular and timely basis by the patentees; and, second, 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.

j) What steps can be taken to make the practice of Patent Pooling transparent so that royalty rates are fair & reasonable?

J.1. 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. 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 I.3. of this submission (above), which apply to the answer to the instant question.

J.2. In furtherance of the recommendation above, we also propose the alteration of the Form 27 template 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.

J.3. 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.

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?

K.1. We submit that several studies on the essentiality of SEPs indicate that only a small percentage of SEPs are actually essential. A study conducted byGoodman and Myers (2004) showed that only 21% of SEPs pertaining to the 3G standard in the US were deemed to be actually essential. Another study conducted by the same authors in 2009 for WCDMA patents showed that 28% SEPs were essential.

K.2. In our opinion, first, the methodology adopted by Goodman and Myers could be replicated to determine the "essential" nature of an SEP. Second, while adopting their methodology, it would be useful to address some of the issues over which these studies were critiqued. 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.

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?

L.1. 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).

L.2. 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.

L.3. We submit that in the absence of definitive Indian jurisprudence for determination of FRAND terms, American jurisprudence provides certain guidance. Contreras (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 Georgia-Pacific Corp. v. U.S. Plywood Corp . While this may be used as a guiding framework, the question of methodology remains far from settled.

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?

M.1. 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.

M.2. 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.

M.3. 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.

M.4. 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.

7. 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.

8. 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.

On behalf of the Centre for Internet and Society, 22 April, 2016

Anubha Sinha - anubha@cis-india.org | Nehaa Chaudhari - nehaa@cis-india.org

Rohini Lakshané - rohini@cis-india.org

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ANNEXURES

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● Anubha Sinha, Fuelling the Affordable Smartphone Revolution in India, available at 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 (last accessed 22 April, 2016).

● Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf (last accessed 22 April, 2016).

● Nehaa Chaudhari, Pervasive Technologies:Patent Pools, available at http://cis-india.org/a2k/blogs/patent-pools (last accessed 22 April, 2016).

● 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 http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-indi a (last accessed 22 April, 2016).

● Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low Cost Access Devices through Compulsory Licences, available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed 22 April, 2016).

● Prof Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486 (last accessed 22 April, 2016).

● Rohini Lakshané, CIS, List of technical standards and IP types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 22 April, 2016).

● Rohini Lakshané, Open Letter to Prime Minister Modi, February 2015, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 April, 2016).

● Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies (last accessed 22 April, 2016).

● Rohini Lakshané, Joining the dots in India's big-ticket mobile phone patent litigation, May 2015, last updated October 2015, available at http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation (last accessed 22 April, 2016).

● Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, March 2015, last updated April 2016, available at http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india , (last accessed April 22, 2016).

● 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 https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs (last accessed 22 April, 2016).

● Vikrant Narayan Vasudeva, Patent Valuation and Licence Fee Determination in the Context of Patent Pools, available at http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools (last accessed 22 April, 2016).

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This submission has been authored by (alphabetically) Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané, on behalf of the Centre for Internet and Society, India.

See The Centre for Internet and Society, available at http://cis-india.org (last accessed 22 April, 2016) for details of the organization, and, our work.

Make in India, available at http://www.makeinindia.com/home (last accessed 22 April, 2016).

Digital India, available at http://www.digitalindia.gov.in/ (last accessed 22 April, 2016).

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 http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india (last accessed 21 April, 2016) for further details on relevant provisions.

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.

Id.

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.

Agreement on Trade-Related Aspects of Intellectual Property Rights, available at https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm (last accessed 22 April, 2016).

KEI Staff, 2015 October 15 version: RCEP IP Chapter, available at http://keionline.org/node/2472 (last accessed 22 April, 2016).

BIS Act, 2016, available at http://www.bis.org.in/bs/bsindex.asp (last accessed 21 April, 2016).

TSDSI, Intellectual Property Rights Policy, available at http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf (last accessed 22 April, 2016).

Id at Clause 3.1.

Id at Clause 5.1.

Id at Clause 5.2.

Id at Clause 5.5.

Id at Clauses 7.1. and 7.2.

Id at Clause 7.2.1.a (iii).

Id at Clause 7.2.1.b(iii).

Id at Clause 7.3.

GISFI, Intellectual Property Rights Policy, available at http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm (last accessed 22 April, 2016).

Id at Clauses 6.2.1.a(iii) and 6.2.1.b(iii).

See W3C, Patent Policy, available at https://www.w3.org/Consortium/Patent-Policy-20040205/ (last accessed 22 April, 2016) for more details on their royalty-free licences.

See OMA, Use Agreement, available at http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/ (last accessed 22 April, 2016) for more details on their royalty-free licences.

See Rohini Lakshané, Open Letter to PM Modi, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 April, 2016) for further details of CIS' proposal.

Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 22 April, 2016).

Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, 85 Tex. L. Rev. at 2015; See also, for e.g., RPX Corporation, Amendment No. 3 to Form S-l, 11 Apr. 2011, at 59, available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm (last accessed 22 April, 2016), quoting - "Based on our research, we believe there are more than 250,000 active patents relevant to today's smartphones…".; See further Steve Lohr, Apple- Samsung Case Shows Smartphone as Legal Magnet, New York Times, 25 Aug. 2012, available at http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html (last accessed 22 April, 2016).

Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486 (last accessed 22 April, 2016).

Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The Smartphone- Royalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf (last accessed 22 April, 2016).

Florian Mueller, Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html (last accessed 22 April, 2016).

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 http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services (last accessed 22 April, 2016).

Nehaa Chaudhari, Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?, available at http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf (last accessed 22 April, 2016).

See part 10.2.2. of the Discussion Paper, at page 25.

J.Gregory Sidak, FRAND in India:The Delhi High Court's Emerging Jurisprudence on Royalties for Standard-Essential Patents, available at http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full (last accessed 22 April, 2016).

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. http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF (last accessed 22 April, 2016).

Id.

Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html (last accessed 21 April, 2016).

See Sanjana Govil, Putting a Lid on Royalty Outflows- How the RBI Can Help Reduce India's IP Costs, available at http://cis-india.org/a2k/blogs/lid-on-royalty-outflows (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.

Supra note 33.

Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses, available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed 21 April, 2016).

Supra note 26.

Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies (last accessed 22 April, 2016).

Id.

See the Ericsson-CCI case, supra note 6, for Intex's submissions as discussed by Justice Bakhru.

Id.

Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, available at http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india (last accessed 21 April, 2016).

See the Ericsson-CCI case, supra note 6, at paragraph 19.2.

Supra note 47.

See the Ericsson-CCI judgment, supra note 6, at paragraphs 88-105.

Section 19(4) of the Competition Act. See also Competition Commission of India v. Steel Authority of India and Another, (2010) 10 SCC 744.

Section 115 of the Patents Act, 1970.

Huawei Technologies Co. Ltd v. ZTE Corp. and ZTE Deutschland, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C-170/13.

Third Party United States Fed. Trade Commission's Statement on the Public Interest, In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof, U.S. Int'l Trade Comm'n, Inv. No. 337-TA-745 (Jun. 6, 2012).

Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens, 80 Antitrust Law Journal 39 (2015), available at http://ssrn.com/abstract=2374983 or http://dx.doi.org/10.2139/ssrn.2374983 (last accessed 22 April, 2016).

Section 146(2) of the Patents Act, 1970..

Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html (last accessed 22 April, 2016).

Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at http://www.ipab.tn.nic.in/045-2013.htm (last accessed 22 April, 2016).

Intellectual Property India, Public Notice, available at http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf (last accessed 22 April, 2016) and Intellectual Property India, Public Notice, available at http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf (last accessed 22 April, 2016).

Supra note 57.

Id.

See research findings available at http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf (last accessed 22 April, 2016).

In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, Patent Working in India: Delhi HC issues notice in Shamnad Basheer v. Union of India & Ors. - I, available at http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html (last accessed 22 April, 2016).

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.

WIPO Secretariat, Patent Pools and Antitrust - A Comparative Analysis, available at https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf (last accessed 22 April, 2016).

Form 27, The Patents Act, available at http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf (last accessed 22 April, 2016).

David J. Goodman and Robert A. Myers, 3G Cellular Standards and Patents, available at http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf (last accessed 22 April, 2016).

Darien CT, Review of Patents Declared as Essential to WCDMA through December, 2008, available at http://www.frlicense.com/wcdma1.pdf (last accessed 22 April, 2016).

Supra note 67.

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 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439 (last accessed 22 April, 2016).

Rohini Lakshané, Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation, available at http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation (last accessed 22 April, 2016). See also supra note 47 for more details.

Supra note 55.

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).

2015

They filed it in 2011

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.

For more details visit 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

National Resource Kit : The West Bengal Chapter (Call for Comments)

anandi — 2013-11-07T06:19:34Z

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.

Note: The chapter is an early draft and will undergo subsequent modifications. We welcome comments and feedback from our readers.

Executive Summary

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.

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.

Capital: Kolkata

Population: 91,347,736

Population of persons with disabilities: 1,847,184

Literacy: 77.08%

HDI: 0.625 Ranked: 19th (2005 status)

Department: Department of Women and Child Development and Social Welfare

Other authorities: Office of the Chief Commissioner for Persons with Disabilities

Click to download the West Bengal chapter (PDF, 344 Kb)

For more details visit https://cis-india.org/accessibility/blog/the-west-bengal-chapter

Privacy Matters — Analyzing the Right to "Privacy Bill"

natasha — 2012-02-15T04:27:28Z

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.

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.

Comments to the Right to Privacy Bill

Welcome

Prashant Iyengar 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 Kolkata on January 23, 2011, in Bangalore on February 5, 2011, in Ahmedabad on March 26, 2011, in Guwahati on June 23, 2011 and in Chennai on August 6, 2011.

Keynote Address

Na. Vijayashankar (popularly known as Naavi), a Bangalore based e-business consultant, delivered the key note address on the quest of a good privacy law in India.

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 here

Session I: Privacy and the Legal System

Dr. Sudhir Krishnaswamy, Assistant Professor at the National Law School of India

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.

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.

Privacy and the Constitutional Law

N S Nappinai, Advocate, High Court, Mumbai,

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.

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?

Shortcomings of the Draft Right to Privacy Bill falls include:

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.
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.
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.
The right to dignity is unaccounted for.

See Nappinai's presentation here

Session II: Privacy and Freedom of Expression

Apar Gupta, Advocate, Delhi

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.

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.

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.

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.

Sexual Minorities and Privacy

Danish Sheikh, researcher at Alternative Law Forum

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.

He outlined four key effects on the right to privacy due to the Naz Foundation judgment:

Prepared the understanding of privacy as a positive right and placed obligations on the state,
Discussed privacy as dealing with persons and not just places, it took into account decisional privacy as well as zonal privacy,
Connected privacy with dignity and the valuable worth of individuals, and
Included privacy on one’s autonomous identity.

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.

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.

Session III: Privacy and National Security

Menaka Guruswamy, Advocate, Supreme Court of India

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.

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:

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?
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?
Considering that constitutional rights are posited as a public facet of citizenship how does a right to privacy play in that context?

Privacy and UID

R. Ramakumar, professor at the Tata Institute of Social Sciences

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.

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.

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?”

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.

Conclusion

During the daylong consultation numerous questions and themes relating to privacy were discussed:

How is the right to privacy defined?
How can the Draft Privacy Bill redefine the right to privacy?
How can reasonable deterrence mechanisms be included?
Does duplication of the right to privacy exists in different statutes?
Is the Cyber Appellate Tribunal an ideal monitoring mechanism or authority?
What are the circumstances under which authorized persons can exercise the Right of privacy invasion?
How can the Draft Privacy Bill account for the right to dignity?
How much information should the State be allowed to collect?
How can citizens become more informed about the use of their information and the privacy implications involved?
What would be the appropriate balance or trade-off between security and civil liberties?
What are the dangers with permitting the needs of national security to trump competing values?
What are the consequences for the homosexual community, when faced with institutionalized disregard for privacy?

For more details visit https://cis-india.org/internet-governance/privacy-matters-analyzing-the-right-to-privacy-bill

Workshop on Open Data for Human Development - Sessions Report

sumandro — 2015-08-28T08:16:09Z

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.

Day 01, June 03, 2015

The first day of the workshop began with Mr. Prem Das Rai, 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. Dr. A.K. Shiva Kumar, Director of the International Centre for Human Development (IC4HD), UNDP India, welcomed the participants and initiated a panel discussion on data, ICTs and governance. The panel had three speakers: Mr. Srivatsa Krishna, IAS and Secretary, Department of Information Technology, Biotechnology, and Science and Technology, Government of Karnataka; Dr. B. Gangaiah, Additional Director General, Centre for Good Governance, Hyderabad; and Sunil Abraham, Executive Director, the Centre for Internet and Society, Bengaluru and Delhi.

Mr. Krishna 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 Bangalore One and Karnataka Mobile One.

Dr. Gangaiah 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 here.

Mr. Abraham’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.

The second session of the day started with a detailed presentation by Mr. T. Samdup, Joint Director, Department of Information Technology, Government of Sikkim, on the context, the making, and the salient features of the Sikkim Open Data Acquisition and Accessibility Policy (SODAAP), 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 here.

The presentation by Mr. Samdup was followed by one by Mr. Sumandro Chattapadhyay 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 here.

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.

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.

In the third session of the day, Joy Ghosh and Amitangshu Acharya of Akvo talked about the challenges of collecting structured born-digital data from the grassroots level, and how using mobile-based applications, like Akvo FLOW, 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 here.

Day 02, June 04, 2015

The second day started with two consecutive presentations by Mr. Thejesh GN of DataMeet, and Mr. Sivaram Ramachandran of Mapbox 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 PDF Tables and Tabula for converting PDF tables to spreadsheets, Open Refine for cleaning data, and RAW and DataWrapper 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 Mapbox Studio, Quantum GIS, and Leaflet JS. He also gave a brief introduction to OpenStreetMap, the wiki-like user-contributed global map data platform. Both the presentations can be accessed here and here, 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.

The group engaging in applications of various software tools for working with statistical and geospatial data was facilitated by Mr. Thejesh and Mr. Ramachandran. 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 Tableau 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 iD. 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.

The second group working on documenting data flows and identifying bottlenecks was facilitated by Mr. Chattapadhyay, Mr. Acharya, and Ms. Rajashi Mukherjee 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.

The major common challenges noted by these teams were: 1) delays in collection, verification, and digitisation of data, 2) inability of state government agencies to access data collected as part of centrally-funded welfare schemes, and 3) parallel systems of data collection employed by different departments leading to duplication of efforts and data.

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 website, 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.

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.

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.

In the final session of the day, Dr. Shiban Ganju 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 here.

Day 03, June 05, 2015

The final day started with a set of presentations from Mr. Garab Dorji, Deputy Chief IT Officer, Office of the Prime Minister, Thimphu, Bhutan of the Government of Bhutan, Mr. Birendra Tiwari, Senior Informatic Officer, Department of Information Technology, Government of Meghalaya, and Mr. Milan Chhetri of Melli Dara Paiyong Gram Panchayat Unit, Sikkim, on various technological solutions being explored, implemented, and practiced by the respective governments and administrative units.

Mr. Milan Chhetri’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, Pawan Kumar Chamling. 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.

The second session of the day started with a presentation from Mr. D. P. Misra, 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 National Data Sharing and Accessibility Policy 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 here.

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: 1) Governance Framework and Budgetary Support, 2) Data Inventory and Negative List, 3) Data Acquisition and Open Standards, 4) Data Publication Process, Licenses, and Timeframes, and 5) 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.

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.

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.

For more details visit https://cis-india.org/openness/workshop-on-open-data-for-human-development-2015-06-report