Centre for Internet and Society

Response by the Centre for Internet and Society to the Draft Proposal to Transition the Stewardship of the Internet Assigned Numbers Authority (IANA) Functions from the U.S. Commerce Department’s National Telecommunications and Information Administration

pranesh — 2015-11-29T06:35:12Z

This proposal was made to the Global Multistakeholder Community on August 9, 2015. The proposal was drafted by Pranesh Prakash and Jyoti Panday. The research assistance was provided by Padmini Baruah, Vidushi Marda, and inputs from Sunil Abraham.

For more than a year now, the customers and operational communities performing key internet functions related to domain names, numbers and protocols have been negotiating the transfer of IANA stewardship. India has dual interests in the ICANN IANA Transition negotiations: safeguarding independence, security and stability of the DNS for development, and promoting an effective transition agreement that internationalizes the IANA Functions Operator (IFO). Last month the IANA Stewardship Transition Coordination Group (ICG) set in motion a public review of its combined assessment of the proposals submitted by the names, numbers and protocols communities. In parallel to the transition of the NTIA oversight, the community has also been developing mechanisms to strengthen the accountability of ICANN and has devised two workstreams that consider both long term and short term issues. This 2 is our response to the consolidated ICG proposal which considers the proposals for the transition of the NTIA oversight over the IFO.

Click to download the submission.

For more details visit https://cis-india.org/internet-governance/blog/response-by-the-centre-for-internet-and-society-to-the-draft-proposal-to-transition-the-stewardship-of-the-internet-assigned-numbers-authority-iana-functions-from-the-u-s-commerce-department2019s-national-telecommunications-and-information-administration

Response by Knowledge Commons

pranesh — 2008-09-30T15:07:50Z

Arguments on why section 4.11 of the Patents Manual needs to be modified.

1. A patent is a state granted monopoly on an invention. As with any other monopoly, a patent must be treated with great discretion, especially since this particular monopoly is bestowed by the state itself. The original intent of the patent system was to encourage disclosure by the inventor, in exchange for exclusive rights to the invention. This ensured that inventors did not take their inventions to the grave and that society could build on existing knowledge rather than re-invent the wheel. As with any other policy instrument, we need to examine whether patents meet their intended objectives.

2. In this context, the degree of patent protection in India should be seen with the following in mind:

The desirable form of IPR protection is very much a function of development. Currently, the developed economies feel they should protect their IPR and restrict their dissemination. But these same countries have historically had much more lax IPR regimes that have allowed imitation to promote more rapid industrialization. For example, the US actively encouraged copying of European innovation in the 19th century and even “nationalised” wireless patents - claiming national interest. Even late 20th century rapid developers such as Japan and South Korea benefited greatly from relatively lax patent regimes. So there is a strong case for providing less IPR protection in the development phase, especially in those areas where domestic innovation is less advanced.

There is no clear correlation between high IPR protection and innovation[1], and much historical evidence to the contrary. A significant number of studies have shown that patents are important primarily in chemicals, chemical materials and pharmaceuticals, where patents can protect specific molecules or well defined but small slices of technology. In other areas, patents tend to be relatively less important in promoting innovation.

This means that India should first identify what are its national interests and then calibrate the IPR protection accordingly. For example, in pharmaceuticals, the current national interest lies clearly in restricting patents. This is also why the Indian Parliament has taken advantage of the flexibility of TRIPs to raise the bar of what is patentable. Indeed, other countries including the US are now copying some of these measures.[2]

An important example is in the area of software where India has a major interest, and where patents are being opposed by all Small and Medium sized companies. In Europe, this opposition led to the proposed directive on software patents to be defeated overwhelmingly in the European Parliament.

3. There are now attempts being made in India to bring in software patents using either the EPO or the USPTO practice. This attempt is being supported by a small number of large international software companies, who had earlier benefited from software being free from patents and are now trying to obstruct others who are entering the field. It is not in the interest of India's software industry to have restrictive patent regime, particularly as they switch from being service providers to product developers.

4. The EPO in fact has followed much of the USPTO practice, the only area that it differs with USPTO being in the business method patenting. However, as a number of observers have pointed out, this means drafting a business method patent as a technical application: it is the form of the patent rather than its content that changes with the EPO approach. Therefore, both EPO and USPTO have erred in accepting patents that are either algorithms or methods, dressed up as software patents.

5. The crisis of the US Patent Office is well known and many critics have pointed out that the US is facing effectively a broken patent system. They have pointed out that granting patents to objects that have existed for years, or patents that are patently ridiculous, does not serve any purpose whatsoever. A case in point is US Patent 20060071122, granted for a ‘full body teleportation system’. The abstract for this reads, ‘A pulsed gravitational wave wormhole generator system that teleports a human being through hyperspace from one location to another.’ Of course, there is no functional version of this. There are innumerable examples of this kind of patent being granted. Another kind of patent that serves no useful purpose is where the patented product or process is something that has been used for years and years, and is known to the whole world, such as the wheel, or swinging on a swing.[3] This undermines the entire basis of the patent system and has the potential to cause havoc. The rapid dilution of the tripartite test of novelty, non-obviousness and utility that led to such patents being granted is finally being halted in the USA, with the US Supreme Court ruling recently that obviousness cannot be constrained by a legal formulation, and the use of common sense is necessary in determining whether a patent be granted or not.[4]

6. Courts in all parts of the world have held that subject matter which would have the practical effect of pre-empting laws of nature, abstract ideas or mathematical algorithms is ineligible for patent protection. This age-old and time-tested precedent effectively establishes the ineligibility for patent protection to laws of nature, abstract ideas and mathematical algorithms. If these could be patented, then in effect one would be patenting the tools of scientific enquiry itself, something no patent law allows as it would lead to halting scientific progress.

7. In the past, the courts have also held that regarding patentable subject that the inquiry into whether subject matter is eligible for patenting is one of substance, not form. This requires that the patent office look, not simply at the language of the patent claim to see if it recites a structure of multiple steps or components, but also at the practical effect of the claim to see if it in fact covers -- or otherwise would restrict the public’s access to -- a principle, law of nature, abstract idea, mathematical formula, mental process, algorithm or other abstract intellectual concept. Otherwise, it would make the determination of patentable subject matter depend simply on the draftsman’s art and would ill serve the principles underlying the prohibition against patents for 'ideas' or phenomena of nature. By skilled patent drafting, one should not be able to start patenting essentially abstract ideas, mental processes and newly discovered laws of nature or mathematical algorithms.

8. However, a number of patent offices, particularly the USPTO and the EPO have been granting patents recently for software also. This is without taking into consideration that all software is ultimately the expression of algorithms or mathematical methods. This has already created a situation which Tim Berners-Lee, one of the founders of the World Wide Web and director of the World Wide Web Consortium that sets global standards for the Internet, calls the biggest threat to software development.

All companies developing emerging technology are threatened by the prospect of patent licensing royalties. You could never find out what patent could possibly apply to what technology. You could never guess what things people might have the gall to say they have patented already. It really is a universal fear.’ (Tim Berners-Lee at Emerging Technologies Conference at the Massachusetts Institute of Technology, September 29, 2004.)

9. In the US, recent studies have shown that the only sector of the economy in which royalties are more than legal costs are pharmaceuticals[5]. In their recently published book, Bessen and Meurer have analysed the numbers in terms of revenues generated from patents as against cost of filing, maintaining and defending patents in courts. In their view, the data shows that except in the case of pharmaceuticals, patents generate far more litigation costs than revenue. The numbers are clear: domestic litigation costs --16 billion dollars in 1999 alone -- was about twice the revenue for patents. Even in this, almost two thirds of the revenue was from pharmaceuticals and chemicals. Worse, the more innovative the company, more was the likelihood of it being sued. The software and business method patents fared the worst, with costs far outstripping the benefits of patenting. The sector with the worst royalty to costs record is software, with most high technology firms being opposed now to software patents.

10. Apart from the reasons given above, the software patents have the problem of being ill defined and capable of very broad scope. It is difficult to build around as is possible in other areas of technology, precisely because of the vagueness of the claims. Novelty and inventive step is again much more difficult to disprove unlike pharmaceuticals, where it is the molecule with a clearly defined structure which is being patented. No company in the world can conduct patent searches for software, given the number of such patents being filed and the inability to identify the defining characteristic of the product being patented. Therefore, the provision of copyright is more than adequate for protecting IPR in software.

11. The other problem with software patents is that any large software project uses a large number of software components. Any one of them can be subjected litigation claiming patent violations. This would open the company to costly lawsuits and against the interests of all but the biggest global corporations who have deep pockets.

12. Today, even companies such as IBM, Sun, Texas Instruments, CISCO have joined the growing Free and Open Source Software (FOSS) community opposing software patents. Most of these companies have publicly stated that they are filing patents only for defensive purposes. Indian law also bars software patents. With regards to proprietary versus FOSS, India needs to analyse and define what should be its trajectory. There is enough grounds to believe that if Indian companies want to move from services model to a product model, software patents and proprietary software will not be the route to take instead, India should promote FOSS, as Brazil and China are doing.

13. Apart from the lack of natural reason for granting software patents, there are potential adverse consequences to the Indian economy in other areas should such patents are granted. The current explosion in bio-pharmaceutical development is increasingly dependent on the ability to perform large-scale data mining from huge amounts of genetic-genomic data. Highly specialised software is developed from pre-existing 'generic' software by bio-informatic technologists for this purpose. Allowing the patenting of the generic basic software will increase the costs of data mining substantially, and will have an extremely adverse impact on the competitive ability of small, knowledge-based entrepreneurial ventures of the kind that India excels in.

14. In India, it has been considered patents should be granted only when public good demands granting of such state protected monopolies. This was the practice also in the UK and the US. It is still the basis of the practice in most countries. It is only in the last few decades that the US, followed by the UK, Japan and now the European Patent Office has tried to change the interpretation of their Patents Acts to expand the scope of patentability. This attempt to enlarge the scope is from their national interest as they hold the largest number of patents. Therefore, their belief that strengthening the patent regime internationally will help their companies to build worldwide monopolies.

15. It is not in India’s national interest or in the interests of its people to expand the scope of state protected monopolies through expanding the patent scope. India’s national interest is best served by restricting the scope of such monopolies. Therefore, the patent regime in India should work on the presumption that patents are to be given only when there is a decisive case for patents. This has been the basis of the Indian Patents Act and is in tune with fundamentals of such legislation world over. It is only the deviation in patent interpretation that has produced a scenario where business methods, software and also mathematical methods are also being patented.

16. The US Supreme Court has now been correcting some of the excesses that has occurred in the US patents interpretation by the Court of Appeals of the Federal Circuit (CAFC). We see no reason why India should change it understanding of patentability following in the footsteps of the US and the EPO and subsequently need to correct such excesses.

17. The US Supreme Court had ruled earlier that Supreme Court has held that patent protection may not be granted for “laws of nature, natural phenomena, and abstract ideas.” Diamond v. Diehr, 450 U.S. 175, 185 (1981). The case has frequently been misread as a basis for patenting subject matter that is abstract and intangible. In fact, however, Diehr confirms that intangible subject matter may not be patented, whether directly or indirectly through artful claim drafting.

18. Diehr also re-affirmed its holding in Gottschalk v.Benson, 409 U.S. 63 (1972), that algorithms, or procedures for solving mathematical problems—the building blocks of computer programs—cannot be patented. Likewise, it reaffirmed its holding in Parker v. Flook, 437 U.S. 584 (1984), that an algorithm for computing a number that served as an alarm limit was not patentable by adding insignificant post-solution activity added to a unpatentable principle to a patenable process. Diehr reaffirmed that only tangible processes – in this case vulcanizing rubber-- and not abstract ideas are patentable.

19. In alignment with Benson and Flook, the US Supreme Court in Diehr held that structures or processes must, when considered as a whole, perform functions intended to be covered by patent law in order to be eligible for patent protection. Diehr followed and upheld the core holdings of both Benson and Flook.

20. The US Supreme Court therefore has not pronounced on software patents after Diehr and therefore Diehr still remains the definitive interpretation of software patents in the US.

21. The CAFC deviated from the Supreme Court ruling in Diehr in At&T vs Excel Communications and in State Street Bank. There, CAFC held that though abstract ideas were not patentable, they could be patented if they produced “a useful, concrete and tangible result.” This was inconsistent with the Supreme Court’s earlier rulings on this matter.

22. In a number of recent cases, the US Supreme Court has overruled the CAFC. In all these cases, the US Supreme Court has narrowed the definition of what is patentable. We have already quoted the KSR Vs Teleflex case in this context.

23. It is in this context that the CAFC is revisiting the State Street and AT&T Vs Excel Communications sitting in en banc. Significantly, it has posed the following questions on which it wants to re-examine the two cases. These are:

(1) Whether claim 1 of the [Bilski] patent application claims patent-eligible subject matter under 35 U.S.C. § 101?

(2) What standard should govern in determining whether a process is patent-eligible subject matter under section 101?

(3) Whether the claimed subject matter is not patent-eligible because it constitutes an abstract idea or mental process; when does a claim that contains both mental and physical steps create patent-eligible subject matter?

(4) Whether a method or process must result in a physical transformation of an article or be tied to a machine to be patent-eligible subject matter under section 101?

(5) Whether it is appropriate to reconsider State Street Bank & Trust Co. v. Signature Financial Group, Inc., 149 F.3d 1368 (Fed. Cir. 1998), and AT&T Corp. v. Excel Communications, Inc., 172 F.3d 1352 (Fed. Cir. 1999), in this case and, if so, whether those cases should be overruled in any respect?

24. Obviously, the US Courts are re-thinking software patents in the light of its difficulty in establishing clear boundaries and tying all future innovation in a morass of litigation. With patent trolls entering the picture, it has become clear to the industry as well as the larger public in the US that the patent system is not being well served by software patents. The CAFC en banc review is only one such indication. Patent reforms are also being discussed in US Congress to address such issues.

25. Therefore, we would urge the patent office to take cognizance off the above and reconsider the paras in the Draft Patent Manual that allows software patents if they are seen to have technical applications.

26. We believe that the lawmakers have done their job and have defined clearly that software patents per se are not admissible in India. It is now incumbent on the patent office to make this clear and not admit such patents.

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US CASES

Diamond v. Diehr,

450 U.S. 175 (1981)

Gottschalk v. Benson,

409 U.S. 63 (1972)

Parker v. Flook,

437 U.S. 584 (1984)

Alappat,

33 F.3d 1526 (Fed. Cir. 1994)

State Street Bank & Trust Co. v. Signature Financial Group, Inc.,

149 F.3d 1368 (Fed. Cir. 1998), 525 U.S. 1093 (1999)

AT&T Corp. v. Excel Communications, Inc.,

172 F.3d 1352 (Fed. Cir. 1999),

KSR International v. Teleflex

127 US 1727 (2007)

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[1] Against Intellectual Monopoly, Michele Boldrin and David K. Levine, http://www.dklevine.com/general/intellectual/againstnew.htm)

[2] Thus, while the US Trade Representative calls for Indian Patent Law to conform to US practices, patent reform is now being pushed aggressively within the US by the high tech industries that are complaining of grant opposition and post grant opposition (as exist in Indian Law) are being put forward as patent reforms in the US Congress. The US Supreme Court has now made combining two existing innovations into a “new” one invalid for patenting (again already barred under Indian Law). The US Court of Appeals for the Federal Circuit has now ruled in what is not patentable virtually in the same language for what is not patentable a broken patent system. Both pre according to the Indian Patent Act (Section 3 d, challenged by Novartis in Chennai High Court).

[3] US Patent 6368227, “Method for swinging on a swing”, filed by a five year old child; http://news.bbc.co.uk/2/hi/asia-pacific/1418165.stm, How an Australian lawyer patented the wheel. There are many other examples.

[4] "We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts. See U. S. Const., Art. I, §8, cl. 8. These premises led to the bar on patents claiming obvious subject matter established in Hotchkiss and codified in §103. Application of the bar must not be confined within a test or formulation too constrained to serve its purpose." KSR International v Telefax US Supreme Court

[5] James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats, and Lawyers

Put Innovators at Risk, Princeton University Press, March 2008.

For more details visit https://cis-india.org/openness/publications/software-patents/response-by-knowledge-commons-1

Resources

pranesh — 2009-10-20T03:29:16Z

A collection of resources that will help one navigate through the arguments and evidence for and against the Indian "Bayh-Dole" bill.

PUPFIP

Bayh-Dole

Technology Transfer

Innovation's Golden Goose (The Economist)

Improving Innovation(The Economist)

Scientific Culture

Patents and America's Universities(The Economist)

When Academia Puts Profits Ahead of Wonder(The New York Times)

Bayhing for blood or Doling out cash?(The Economist)

Evaluative Pieces

University Licensing under Bayh-Dole: What are the Issues and Evidence?(Thursby and Thursby)

Is Bayh-Dole Good for Developing Countries? Lessons from the US Experience(So et al.)

The Law of Unintended Consequences(Fortune Magazine)

The Growth of patenting and licensing by U.S. universities and the Bayh-Dole Act (Mowery et al.)

Overall Assessment of the Bayh-Dole Act (Nelson, Mowery, et al.)

General Resources

Joint Ventures and Intellectual Property(Andreas Panagopoulos)

Patents vs. Other Knowledge Transfer(Agrawal and Henderson)

Incentives Structure and Licensing Success(Dan Elfenbein)

University Licensing and Research Behavior(Lach and Schankerman)

Open Science and Private Property(Paul David)

IP Alternatives

New Approaches to Filling the Gap in TB Drug Discovery (Casenghi, Cole and Nathan)

The Role of Prizes in Developing Low-Cost Point-of-Care Rapid Diagnostic Tests and Better Drugs for TB(James Love)

How to boost R&D for essential drugs and diagnostics

Scrooge and intellectual property rights (BMJ January 2006)

For more details visit https://cis-india.org/a2k/publications/pupfip/resources

Research Project on Open Video in India

pranesh — 2011-08-23T02:51:36Z

Open Video Alliance and the Centre for Internet and Society are calling for researchers for a project on open video in India, its potentials, limitations, and recommendations on policy interventions.

Project Timeline

From mid-April to mid-July.

Summary of Outputs

A 15-20 page paper surveying the online video environment in India and the opportunities it presents for creative expression, political participation, social justice, and other such concerns. The paper should deal with the structural limitations of the medium (e.g.: limited bandwidth, IP lobbies discourage re-appropriation of cultural materials, online video is inaccessible to the deaf, and so on) and how they can be addressed. Recommendations should be bold but in touch with the real policy and business frameworks of present-day India.
Several 1-2 page briefs on specific policy matters like: where is jurisdiction being exercised? what are the policy inflections? and, what interventions are needed to solve the structural limitations of the medium?

Survey Paper

The survey paper should describe the online video scenario in India, and three or more policy tensions. The paper should focus on areas of intellectual property rights, network issues, standards, device freedom and interoperability, accessibility, etc. The Open Video Alliance website[ova] for a complete list of relevant issues.

Overall, it should paint both a qualitative as well as a quantitative picture of online video in India, and in which structural improvements are needed (if any) to empower individuals.This paper should not be viewed as a recommendation to policymakers but instead as a general interest document which will inform and appeal to many audiences. While we expect the paper to span several distinct issues, there should be a prevailing narrative to weave them together.

Basic Assumptions

We want online video to be a participatory and collaborative social medium powered by open source. We also value the ability of individuals to express themselves using these tools, and the ability of new entrants to challenge incumbents and innovate on top of existing technologies. No time is needed to be spent establishing these values—instead, through this paper we try to identify structural improvements to the online video medium. How do we get from the status quo to the ideal open video environment? What investments must be made? What protections must be put into place for users, producers, etc.? Further, we should be able to make some broad recommendations to governments, foundations, and big institutions.

Because the network and IP enforcement environment in India are still malleable, we want to stress that there are many possible shapes that the online video medium could take. Our goal is to shine some light on how a medium that privileges the values outlined above could take shape.

Suggested Methodology

First, you would need to carry out a basic survey of the literature. Second, you should talk to various organizations using video, discover what they consider the structural limitations of online video, and what might be considered open video practices: some are legal, some are technical. You would use this data to direct original research and weave your findings into an engaging narrative.

Next Steps

You send 2 writing samples, a CV, and letter of recommendation;
We'll discuss the unifying themes and identify a more detailed timeline;
We produce a contract;
We Pick a regular time to meet every other week, to track progress.

For more details visit https://cis-india.org/openness/blog-old/open-video-research

Representation by Knowledge Commons

pranesh — 2008-09-30T14:47:25Z

Representation by Knowledge Commons to the Office of the Controller General of Patents, Designs and Trade Marks on the Draft Manual of Patent Practice and Procedure (2008)

Representation on Modifying Section 4.11 of the Draft Patents Manual

1. Scope of 3 k) and the Amendment of 2004

3 k) A mathematical or business method or a computer programme per se or

algorithms are not patentable.

The Amendment that was a part of the Ordinance in December 2004 on 3 k) above was as follows:

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

3 (ka) a mathematical method or a business method or algorithms;

Comment: From the above, it is clear that Parliament did not believe that the exceptions to computer programme per se as an exception needed to be put in a different category and qualified as suggested in the Ordinance. Computer programmes per se, a mathematical or business method or algorithms were all treated as similar. The similarity here was based on the fact that they are all abstract ideas and therefore should not be patentable. The Draft Manual seeks to circumvent Parliament's definition of what is not patentable in the section on 3 k). We will give a para by para submission on the Draft Manual section on 3 k), namely, Sections 4.11.1 to 4.11.11.

2. Clause 4.11.1 A computer implemented invention mean any invention the performance of which involves the use of computer, computer network or other programmable apparatus, or an invention one or more features which are realized wholly or partially by means of a computer programme/ programmes.

Comment: The Clause above introduces a new category called computer implemented invention. The Patents Act cannot make an exception for inventions merely because the performance of this invention requires a computer. There is no provision in patents law for such exceptions to be created.

3. 4.11.5 Applications related to computer inventions may broadly fall under the following categories:

(a) Method/process:

(b) Apparatus/system:

(c) Computer program product.

The following aspects should be looked into while dealing with such applications.

Comment: The way this clause is phrased, it appears to accept that computer program products can have valid claims with regards to patents. It should have been made clear in this clause that computer program(me) products are not patentable as they come under computer programme per se.

4. 4.11.6 The method claim should clearly define the steps involved in carrying out the invention. It should have a technical character. In other words, it should solve a technical problem. The claims should incorporate the details regarding the mode of the implementation of the invention via. hardware or software, for better clarity. The claim orienting towards a “process/method” should contain a hardware or machine limitation. Technical applicability of the software claimed as a process or method claim, is required to be defined in relation with the particular hardware components. Thus, the “software per se” is differentiated from the software having its technical application in the industry. A claim directed to a technical process which process is carried out under the control of a programme (whether by means of hardware or software), cannot be regarded as relating to a computer programme as such.

For example, “a method for processing seismic data, comprising the steps of collecting the time varying seismic detector output signals for a plurality of seismic sensors placed in a cable.” Here the signals are collected from a definite recited structure and hence allowable.

Comment: Here, the Draft Manual clearly deviates from the Legislative intent that was expressed in rejecting the Amendment of the Patents Act as discussed in point 1 above. The Patent Office is now bringing back the Amendment of 3 k) by an interpretation that was denied by the Parliament.

There are two major departures that it makes from 3 k). In one, it expresses “the mode of the implementation of the invention via. hardware or software, for better clarity” treating software inventions to be on par with hardware inventions. This violates 3 k), which explicitly bars software per se. The argument that any software that solves a technical problem is not software per se is not sustainable as every problem solved can be claimed to be technical in nature by virtue of suitable drafting. It then makes software patents a matter of drafting skills and not a matter of content. The statement “the “software per se” is differentiated from the software having its technical application in the industry” has the problem that software can be claimed to solve problems in the data processing or in the video gaming or in multimedia industry. This definition renders software per se as devoid of any meaning and therefore is in violation of 3 k).

Software is machine implementation of an algorithm and by implementing on a computer an algorithm cannot become patentable. We have given detailed notes on this issue and have also shown that the US is currently revising some of these notions of software patenting.

The second issue is when software is combined with hardware. Here, the Draft Manual seems to argue that if the method is connected to physical signals, this in itself is enough to make the method allowable for patenting. The key question that the Draft Manual does not address that if the method has insignificant pre or post processing activity, in that case the method does not become eligible for patenting merely because it is connected to some real structures. Otherwise, a software which cannot be patented under current patent law would become eligible merely by adding some trivial pre or post processing features. It again becomes a way of “dressing” up software to escape from the bar of 3 k) and making this a drafting art rather than real content in terms of invention. A number of applications would need to be separately shown in the Patent Application to cover all possible applications of a method or an algorithm to convert a non-patentable idea to a patentable one.

5. 4.11.10 A mathematical method is one which is carried out on numbers and provides a result in numerical form (the mathematical method or algorithm therefore being merely an abstract concept prescribing how to operate on the numbers) and not patentable. However, its application may well be patentable, for example, in Vicom/Computer-related invention [1987] 1 OJEPO 14 (T208/84) the invention concerned a mathematical method for manipulating data representing an image, leading to an enhanced digital image. Claims to a method of digitally filtering data performed on a conventional general-purpose computer were rejected, since those claims were held to define an abstract concept not distinguished from a mathematical method. However, claims to a method of image processing which used the mathematical method to operate on numbers representing an image can be allowed. The reasoning was that the image processing performed was a technical (i.e. non- excluded) process which related to technical quality of the image and that a claim directed to a technical process in which the method used does not seek protection for the mathematical method as such. Therefore the allowable claims as such went beyond a mathematical method.

Comment: By virtue of the above, the Draft Manual is stating that the allowable claim goes beyond a mathematical method as it specifies a physical entity (signals) and the technical process (image processing) and therefore can be patented. Simply put, what the patent office is claiming is that while a mathematical method cannot be patented, however its application to a specific technical field – image processing in the Vicom case – is patentable.

The problem with this approach is that while the patent office may regard image or signal processing as a technical application, what is being patented is still a mathematical method. The mere fact that it is a mathematical algorithm applied to a specific application with specific physical entities does not change the content of what is being patented, which is still the mathematical algorithm. Only the scope of the patent is being narrowed by limiting it to image processing.

If the above is accepted, all that would be required for securing software patents for the actual mathematical method is to file separate applications for each of the application of the mathematical method, in this case the digital filtering algorithm. This is merely changing the form of the patent application and not its substance. We find such an interpretation completely contrary to the patent law that has been framed in this country.

The Image Processing case is particularly important, because if it is accepted, all compression techniques would also be patentable on similar grounds. Already, the practices of USPTO and EPO have led to a situation that a number of standard formats such as MPEG (MPEG4) and GIF have come under patents. Since any company that uses digital pictures – cameras, images on the web, etc., can be sued for infringing such patents, the potential economic consequence of such patents is enormous. This is why software patents under any garb, are particularly pernicious.

One of the earliest software patents was that of the LMZ compression, which was used in the GIF format. It is now widely accepted in the software industry that such patents are in fact patents of mathematical algorithms. It was because the GIF format came under a patent threat that other formats became popular. However, similar threats now exist for other formats for image processing. In most such cases, the software industry has had to file review applications in USPTO to invalidate such patents. We see no reason why we should follow this tortuous path, when we have a clear law on this on our statute books disallowing software patents.

The Indian Government has taken numerous policy decisions to promote open source software wherever it is available. One of the major threats to open source software is patents and the use of these patents in proprietary formats such as the GIF example noted above. This will effectively mean that Open Source software will be threatened by such patent claims making interoperability between two formats difficult to achieve. This will strike a body blow against the policies that the Government has been promoting on open source software in the country.

Instead, what needs to be done is to define the software in any invention in the manner of prior art. If the inventive criteria are satisfied outside of the software then the invention would be considered patent eligible. In the next para we have defined what in our view constitutes software per se, which is not patent eligible and allows for devices to be patented even if they have software as a component provided certain criteria are satisfied.

6. We give below what we believe is a clear and an unambiguous definition of software per se, which is therefore not patentable. This should replace the entire section 4.11.

Computer programme per se in clause 3 k) Computer programme per se in the relevant clause means (a) any computer programme in the abstract, (b) any computer programme expressed in source code form, including source code recorded on an information storage medium, or (c) any computer programme that can be executed or executes on a general purpose computer, including computer programme object code designed for execution on a general purpose computer that is recorded on an information storage medium. An information storage medium means any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information, other than an information storage medium that itself represents an inventive contribution to the art. A general-purpose computer here means a device capable of running multiple unrelated programs, often simultaneously for different purposes. It will comprise at least of: (1) one or more central processing units, (2) one or more input devices that are not specific to any one program, (3) memory, (4) one or more non volatile mass storage devices, and (5) one or more output devices. However, a general-purpose computer does not include a device that itself represents an inventive contribution to the art.

Under the foregoing definitions, a claim that merely recites software elements without any reference to hardware is per se unpatentable. If a claim recites both software elements and hardware elements, but the hardware elements amount to nothing more than reference to the components of a general purpose computer on which the software is executed, or an information storage medium in which the software is stored, such that the only possibly inventive aspect of the claim resides in the software elements, then the claim is not patentable. If the software/general purpose computer is combined with other hardware, and the inventive contribution resides primarily in the software or in the software in combination either with components of the general-purpose computer or in an information storage medium, then the claim is not patentable. If the claim recites software elements and hardware elements, and the hardware elements themselves are an inventive contribution to the art, then the claim may be patentable, provided that the claim as a whole is such that the pre-requisites of novelty, non-obviousness and utility are met.

For more details visit https://cis-india.org/openness/publications/software-patents/representation-by-knowledge-commons

Representation by Knowledge Commons

admin — 2008-09-21T14:40:57Z

Representation by Knowledge Commons to the Patent Office.

For more details visit https://cis-india.org/openness/publications/software-patents/Representation%20by%20Knowledge%20Commons.pdf

Report on the Fourth Internet Governance Forum for Commonwealth IGF

pranesh — 2012-02-29T05:42:27Z

This report by Pranesh Prakash reflects on the question of how useful the IGF is in the light of meetings on the themes of intellectual property, freedom of speech and privacy.

The first Internet Governance Forum was held in Athens in 2006, as a follow on to the 2005 Tunis World Summit on the Information Society, and to fulfil the principles drawn up at there. Its explicit objective is to “promote and assess, on an ongoing basis the embodiment of WSIS principles in Internet governance processes”. Those principles still form the basis of the talks that happen at the IGF, and are frequently referred to by the various groups that attend the IGF as the basis for their positions and claims. Sometimes, some of the values promoted by the principles are claimed by opposing groups (child safety vs. freedom of expression). Thus, in a way the negotiation of those principles were what really set the tone for the IGF, which in and of itself is a process by which those principles could be furthered. The one question that formed part of people’s conversations through the fourth Internet Governance Forum (IGF) at Sharm el Sheik, as it had in third IGF at Hyderabad, and no doubt ever since the first edition, was “How
useful is the IGF?” This report shall reflect on that question, particularly based on the workshops and meetings that happened around the themes of intellectual property, freedom of speech, and privacy.

There are not many meetings of the nature of the IGF. It is not a governmental meeting, though it is sponsored by the United Nations. It is not a meeting of civil society groups, nor of academics nor industry. It is a bit like the Internet: large and unwieldy, allowing for participation of all while privileging those with certain advantages (rich, English-speaking), and a place where a variety of interests (government, civil society, academia and industry) clash, and where no one really has the final word. While the transformational potential of the Internet and the World Wide Web have been felt by a great many, the potential of the Internet Governance Forum is still to be felt. This report, in part, seeks to present an apology of the IGF process, though it is the belief of this reporter that it could do with a few modifications.

DAY 0 (Saturday, November 14, 2009)

This reporter arrived with his colleagues at Sharm el Sheik late in the afternoon on Saturday, November 14, 2009, with the IGF set to begin the next day. Though we had been advised to register that evening itself, the fatigue of travel (in the case of my colleagues) and the requirement of purchasing new clothes to replace those in the suitcase that had been lost (in my case) kept us from doing so.

DAY 0 (Sunday, November 15, 2009)

The IGF began on Sunday, November 15, 2009, with a large delay. The registration desks seemed to have a bit of difficulty handling the number of people who were pouring in for registration that morning. By the time this reporter was done with registration, the first set of workshops were already under way, and nearing completion, leaving not much time before the commencement of Workshop 361 (Open Standards: A Rights-Based Framework), which was being organized by this reporter.

That workshop had as speakers Sir Tim Berners-Lee (World Wide Web Consortium), Renu Budhiraja (Department of IT, Government of India), Steve Mutkoski (Microsoft), Rishab Ghosh (UNU-MERIT), and Sunil Abraham (Centre for Internet and Society), with Aslam Raffee (Sun Microsystems, formerly with the Government of South Africa) chairing the session thus representing government, industry, civil society, and academia. The theme of the workshop (rights-based framework for open standards) was explored in greatest depth by Tim Berners-Lee, Sunil Abraham, and Rishab Ghosh, while Renu Budhiraja and Steve Mutkoski decided to explore the fault-lines, and the practicalities of ensuring open standards (as well as the interoperability, e-governance, and other promises of open standards). Rishab Ghosh pointed out that while a government could not make it a requirement that your car be a Ford to be granted access to the parking lot of the municipality, it often made such arbitrary requirements when it came to software and electronic access to the government.

Open standards, most of the panellists agreed, had to be royalty-free, and built openly with free participation by anyone who wished to. This model, Sir Tim pointed out, was what made the World Wide Web the success that it is today. This would ensure that different software manufacturers could ensure interoperability which would encourage competition amongst them; that all governments -- even the less developed ones -- would have equal access to digital infrastructure; that citizen-government and intragovernment interaction would be made much more equitable and efficient; and that present-day electronic information would be future-proofed and safeguard against software obsolescence.

Renu Budhiraja in a very useful and practically-grounded presentation pointed out some of the difficulties that governments faced when deciding upon definitions of “open standards”, as well as the limited conditions under which governments may justify using proprietary standards. She spoke of the importance of governments not following the path laid out by market forces, but rather working to lead the market in the direction of openness. Governments, she reminded the audience, are amongst the foremost consumers of software and standards, and have to safeguard the interests of their citizens while making such decisions. Steve Mutkoski challenged the audience to not only think about the importance of open standards, but also think of the role it plays in ensuring efficient e-governance. Standards, he contended, are but one part of e-governance, and that often the reason that e-governance models fail are not because of standards but because of other organizational practices and policies. Pointing to academic studies, he showed that open standards by themselves were not sufficient to ensure

Sunil Abraham pointed out examples of citizens’ rights being affected by lack of open standards, and pointed out the concerns made public by ‘right to information’ activists in India on the need they perceived for open standards. He also pointed out an example from South Africa where citizens wishing to make full use of the Election Commission’s website were required to use a particular browser, since it was made with non-standard proprietary elements that only company’s browser could understand. Since that browser was not a cross-platform browser like Firefox, users also had to use a particular operating system to interact with the government. The session ended with a healthy interaction with the audience.

The importance of having this discussion at the IGF was underscored by Rishab Ghosh who noted that issues of defining and choosing technical standards are often left to technical experts, while they have ramifications much further than that field. That, he opined, is the reason that discussing open standards at a forum like the IGF is important. A more complete report of this workshop may be found at <http://cis-india.org/advocacy/openness/blog/dcos-workshop-09>.

Post the workshop was the opening ceremony which had Mr. Sha Zukang, U.N. Under-Secretary General for Economic and Social Affairs, Tarek Kamel, the Egyptian Minister for Communications and Information Technology, Dr. Ahmed Nazif, the Prime Minister of Egypt, Tim Berners-Lee, and Jerry Yang. The theme of this year’s IGF was the rather unwieldy “access, diversity, openness, security, and critical Internet resources”. The spread of the Internet, as noted by Sha Zukang, is also quite revealing: In 2005, more than 50% of the people in developed regions were using the Internet, compared to 9% in developing regions, and only 1% in least developed countries. By the year 2009, the number of people connecting in developing countries had expanded by an impressive 475 million to 17.5%, and by 4 million in LDCs to 1.5%, while Internet penetration in developed regions increased to 64%. All in all (Jerry Yang pointed out), around 1.6 billion people, or about 25 per cent of the world, is online. Mr. Kamel noted that “the IGF has
proved only over four years that it is not just another isolated parallel process but it has rather managed to bring on board all the relevant stakeholders and key players”.

Of importance in many of the speeches were the accountability structures of the Internet due to the Affirmation of Commitment that the U.S. Department of Commerce signed with ICANN, and the growing internationalisation of the World Wide Web due to ICANN’s decision to allow for domain names in multiple languages. Tim Berners-Lee again pointed out the need to keep the Web universal, and in particular highlighted the role that royalty-free open standards play in building the foundations of the World Wide Web. Other than small remarks, privacy and freedom of expression did not really figure greatly in the opening ceremony. Jerry Yang, through his talk of the Global Net Initiative, was the one who most forcefully pointed out the need for both online. The Prime Minister of Egypt, in passing, pointed out the need to safeguard intellectual property rights online, but that note was (in a sense) countered by Sir Tim’s warning about the limiting effect of strong intellectual property would have on the very foundations of the World Wide Web and the Internet.

DAY 2 (Monday, November 16, 2009)

On the second day was begun by attending the Commonwealth IGF Open Forum. This open forum was most enlightening as in it one truly got to see Southern perspectives on display. Speakers (both on the dais as well as from the audience) were truly representative of the diversity of the Commonwealth, which presently includes 54 states and around 2.1 billion people (including 1.1 billion from India). Issues of concern included things such as the lack of voice of whole regions like East and West Africa in the international IG policy-making arena. Some of the participants noted that issues such as music piracy, which is a favourite topic of conversation in the West, is of no relevance to most in Africa where the pressing copyright- related issues those of education, translation rights, etc. One participant noted that “Intellectual property issues need developing countries to speak in one voice at international fora; the Commonwealth IGF might allow that.”

A number of people also brought up the issue of youth, and pointing towards children as both the present and the future of the Internet. This attitude also showed up in the session that was held later that day at Workshop 277 (IGF: Activating and Listening to the Voice of Tweens) in which not only were youth and IG issues discussed, but the discussion was also by youth. The formation of the new Dynamic Coalition on Youth and Internet Governance with Rafik Dammak as the coordinator also underlines the importance of this issue which came up at the CIGF open forum.

Other concerns were that of sharing ICT best practices and examples, and the need to urgently bridge the rural-urban divide that information and communication technologies often highlight, and sometimes end up precipitating. This divide is, in many ways, similar to the divide between developing and developed nations, and this point was also highlighted by many of the participants. One strength that the CIGF has as a platform, which the IGF possibly lacks, is the commonality of the legal systems of most of the Commonwealth countries, and hence the possibility that arises of joint policy-making. It was heartening to see that British Parliamentarians, apart from bureaucrats from many countries, were in attendance. This strong focus on developing countries and Southern perspective is, this reporter believes, one of the strengths of the CIGF, which needs to be pushed into the global IGF.

The next workshop attended was Workshop 92: A Legal Survey of Internet Censorship and Filtering, which was organized by UNESCO. A large number of very interesting people presented here, and panellists included IFLA/Bibliotheca Alexandrina (whose Sohair Washtawi was surprisingly critical of the Egyptian government), UNESCO (Mogens Schmidt), Freedom House (Robert Guerra), and Frank La Rue, U.N. Special Rapporteur for Freedom of Opinion and Expression. What came of this workshop was the need to engage with to study the online state of freedom of expression as fully as “offline” state of press freedoms are studied, as an interesting fact that came out of this workshop was that there are currently more online journalists behind bars around the world than traditional journalists. A critique of the Freedom House’s online freedom report, which was not sufficiently voiced at the workshop itself, is that it represents a very Western, state-centric idea of freedom of speech and expression, and often looks at the more direct forms of censorship (state censorship) rather than private censorship (via advertising revenue, copyright law, and “manufactured consent”) and self-censorship. This reporter also intervened from the audience to point out that copyright is often a way of curbing freedom of speech (as was the case with the newspaper scholarly reprints of Nazi-era newspapers in Germany recently, or with the Church of Scientology wishing
to silence its critics). The panellists, including Mogens Schmidt and Frank La Rue agreed, and responded by noting that this dimension of copyright requires greater reflection by those groups involved in promoting and safeguarding freedom of speech and expression both online and offline.

The time before the meeting of the Dynamic Coalition on Open Standards was spent listening to Bruce Schneier, Marc Rotenberg, Frank La Rue, Namita Malhotra, and others at the Openness, Security and Privacy Session. Bruce Schneier, one of the most astute and insightful thinkers on issues of security and privacy, focussed on a topic that anyone who reads his blog/newsletters would be familiar with: that openness, security and privacy are not really, contrary to popular perception, values that are inimical to each other. Mr. Schneier instead sees them as values that complement each other, and argued that one cannot ensure security by invading privacy of citizens and users. He noted that “privacy, security, liberty, these aren’t salient. And usually whenever you have these sort of non-salient features, the way you get them in society is through legislation.” On the same note, he held the view that privacy should not be a saleable commodity, but an inalienable fundamental right of all human beings (a position that Frank La Rue agreed with).

Apart from the traditional focus area of states, there was also a lot of focus on corporations and their accountability to their users. On the issue of corporations versus states, Frank La Rue made it clear that he believed the model that some corporations were advocating of first introducing technologies into particular markets, expanding, and then using that to push for human rights, was not a viable model. Human rights, he reiterated, were not alienable, and stated: “You [internet companies] strengthen democracy and democratic principles and then you bring up the technology. Otherwise, it will never work, and it is a self defeating point.”

The meeting of the Dynamic Coalition on Open Standards was next. This meeting served as a ground to build a formal declaration from Sharm el Sheik for DCOS. The meeting was held in the room Luxor, the seating in which was rectangular, promoting a vibrant discussion rather than making some people “presenters” and the rest “audience”. Many of the members of the Dynamic Coalition on Accessibility and Disability were in attendance, seeing common purpose with the work carried out by DCOS. There was spirited discussion on how best to move from a formulation of open standards as “principles” to more citizen- centric “rights”. This shift, pointed out as an important one because they allow for claims to be made in a way that principles and concessions do not. One of the participants helped re-draft the entire statement, based on suggestions that came from him and the rest of the participants. This was, in a sense, the IGF’s multi-stakeholderism (to coin a phrase) at its best.

Because of the late ending to the DCOS meeting, this reporter arrived late for the Commonwealth IGF follow-up meeting. It seemed that the meeting took its time in finding its raison d’être. It was, for a long while, unclear what direction the meeting was headed in because the suggestions from the audience members were of different types: programmatic actionable items, general thematic focus area suggestions, as well as general wishlists. However, in the end, this came together and became productive thanks to the focus that the chairperson and the rapporteur brought to the discussion. Furthermore, it was a great opportunity to connect with the various young people who had been brought together from various backgrounds to attend the IGF by the CIGF travel bursary. It will be interesting to see the shape that CIGF’s future work takes.

Day 3 (Tuesday, November 17, 2009)

The first session attended on the third day was the meeting on “Balancing the Need of Security with the Concerns for Civil Liberties”. The speakers included Alejandro Pisanty (Workshop Chair), Wolfgang Benedek, Steve Purser, Simon Davies, and Bruce Schneier. Once again, the one point that everyone agreed on is that those pitting security against privacy are creating a false dichotomy, and that for security to exist, privacy must be safeguarded. Steve Purser pointed out that common sense takes a long while to develop and that we, as a human collective, have not yet developed “electronic common sense”. Simon Davies’ main point was that accountability must necessarily be appended to all breaches of privacy in the name of security. Indeed, he lamented that oftentimes the situation is such that people have to justify their invocation of privacy, though the state’s invocation of security to trample privacy does not require any such justification. Security, he pointed out, is not something that is justified by the government, judged by the people, and to which the government is held accountable for its breaches of civil liberties.

Bruce Schneier, as usual, was quite brunt about things. He noted that only identity-based security have anything to do with privacy, and that there are a great many ways of ensuring security (metal detectors in a building, locks in a hotel room) that do not affect privacy. At the meeting, this reporter made a comment noting that a lot of debate is happening at a theoretical level, and that while a lot of good ideas are coming out of that discussion, those ideas have to be translated into good systems of governance in countries like India. Some organizations internationally are trying to make human readable privacy signs such as the human readable copyright licences used by Creative Commons. Concerning citizens’ privacy, a lot of systems (such as key escrow) that have been discredited by knowledgeable people (such as Bruce Schneier) are still being considered or adopted by many countries such as India (where this blew up because of a perceived security threat due to RIM BlackBerry’s encryption). National ID schemes are also being considered in many countries, without their privacy implications being explored. In the name of combatting terrorism, unregistered open wireless networks are being made illegal in India. While there have been informed debates on these issues at places like the IGF, these debates need to find actual recognition in the governance systems. That translation is very important.

The next session this reporter attended was the meeting of the Dynamic Coalition on Freedom of Expression of the Media on the Internet. Amongst the other items of discussion during the session, the site Global Voices Online was showcased, and many of the speakers gave their opinions on whether freedom of speech online required a new formulation of the rights, or just new applications of existing rights. The consensus seemed to be that tying up with the Internet Rights and Principles DC would be useful, but that the project need not be one of reformulation of existing rights, since the existing formulations (as found in a variety of international treaties, including the UDHR) were sufficient. One of the participants stressed though that it was important to extend freedom of press guarantees to online journalists (in matters such as defamation, or copyright violation, where news organizations might be granted protection over and above that which an ordinary citizen would receive). Citizen-led initiatives for circumventing censorship were also discussed.

Two very important points were raised during the Openness main session on Day 2 when someone noted that the freedom of expression was not only an individual right but it also a collective right: the right of peoples to express not only ideas but to express their cultures, their traditions, their language and to reproduce those cultures and languages and traditions without any limitation or censorship. This aspect of the freedom of expression finds much resonance in many Southern countries where collective and cultural rights are regarded as being as important as individual and civil-political rights. Secondly, Frank La Rue pointed out that freedom of speech and expression went beyond just giving out information and opinion: it extended to the right to receive information and opinion. Excessively harsh copyright regimes harm this delicate balance, and impinge on the free speech.

One of the issues that was not explored sufficiently was that of the changes wrought by the Internet on the issues raised by the participants. For instance, while there was much talk about defamation laws in many countries and their grave faults (criminal penalties, defamation of ideas and not just persons), there was no talk of issues such as forum-shopping that arises due to online defamation being viewable around the world with equal ease. Thankfully, the coordinators of the Dynamic Coalition urged people to register on the DC’s Ning site (http://dcexpression.ning.com) and keep the conversation alive there and on the DC’s mailing list.

The session held on Research on Access to Knowledge and Development, organized by the A2K Global Academy was most informative. It brought together many recent surveys of copyright law systems from around the world and their provisions for access to knowledge, including the Africa Copyright and Access to Knowledge project with which this reporter is very familiar. The three main focus areas of discussion were Access to Education (A2E), Open Source Software (OSS) and Access to Medicines (A2M). The best presentation of the day was that made by Carlos Affonso of FGV (Brazil) who made an impassioned case for access to knowledge in the developing world, showcasing many practical examples from Brazil. He noted that many of the examples he was showing were plainly illegal under Brazilian laws, which had very limiting limitations and exceptions. He showcased the usage of Creative Commons licensing, Technobrega music, usage of common ICT infrastructure (such as cybercafes), which are often only semi-legal, and the general acceptance of commons-based peer production. The conclusion of the Egyptian study was that more work is needed to expand access to educational materials, including expansion of the limitations and
exceptions to copyright law for educational purposes. The overall consensus of all the various studies was that open source software was playing a very useful and crucial role in promotion of access to knowledge, but pointed out that the main barrier that open source software was facing was that of anti-competitive practices and not something related to copyright law.

Day 4 (Wednesday, November 18, 2009)

On the last day, this reporter was a presenter in a workshop on the “Global State of Copyright and Access to Knowledge”. This session had the following panellists: Tobias Schonwetter, Faculty of Law, University of Cape Town; Bassem Awad, Chief Judge at the Egyptian Ministry of Justice and IP Expert; Perihan Abou Zeid, Faculty of Legal Studies and International Relations, Pharos University; Pranesh Prakash, Programme Manager, Centre for Internet and Society; Jeremy Malcolm, Project Coordinator, Consumers International; and Lea Shaver, Associate Research Scholar and Lecturer in Law at Yale Law School.

This workshop was the result of the merger of workshops proposed by the African Copyright and Access to Knowledge project, and by Consumers International (to showcase their IP Watch List). Lea Shaver noted that the purpose of copyright law is to encourage creativity and the diffusion of creative works, and not as an industrial subsidy. If copyright law gets in the way of creativity and access to knowledge, then it is in fact going against its purpose. She asserted that copyright law should be assessed by touchstones of access, affordability and participation. “Copyright shapes affordability and access because as the scope of rights expands, the more control is centralised and the less competition. It also shapes participation, because under current law the amateur who wants to build upon existing works is at a disadvantage, and risks running afoul of others’ rights.” Rent-seeking behaviour is what is driving the expansion that we see globally in the coverage of copyright law, and not the costs of production and distribution (which are ever becoming cheaper).

Dr. Abou Zeid noted that technology grants copyright holders (and even non-holders) great control over knowledge, and that strong safeguards are required against this control in the form of limitations to technological protection methods (TPMs). Further, copyright law must take advantage of the benefits offered by technology, such as distance education, granting access to the disabled, and must extend present day E&L to cover these as well. Tobias Schonwetter presented the findings of the ACA2K project, and noted that most countries granted greater protection to rights holders than international law required. Amongst the survey countries, none dealt with distance and e-learning, and only one (Uganda) dealt with the needs of the disabled. He hoped that the extended dissemination phase would assist other projects to build on ACA2K’s work. Thus, “legal systems worldwide are not meeting consumers’ needs for access to knowledge. A better legal system, the research suggests, would support non-commercial sharing and reuse of material, which in turn would drive down costs and increase sales of licensed material, and could also increase consumers’ respect for the law overall.”

The present reporter started by asking why this abstract phrase “access to knowledge” is so important. A2K actually effects almost all areas of concern to citizens and consumers: education, industry, food security, health, amongst many more areas. Mark Getty notes that “IP is the oil of the 21st century”. By creating barriers through IP, there is less scope for expansion and utilization of knowledge, and this most affect “IP poor” nations of the South. In India, there is a new copyright amendment that will introduce DRMs, even though India is not bound by international law to do so. There is also a very worrisome movement to pass state-level criminal statutes that class video pirates in the same category as “slum lords, drug peddlers and goonda”, which includes measures for preventative detention without warrant.

One tool to help change the mindsets of the public is the Consumers International IP Watch List, which can help policy makers and academics and advocates compare the best and worst practices of various countries. At an earlier session, Carlos Affonso of FGV had used the Watch List to demonstrate the weakness of Brazil’s copyright law on the educational front. Copyright is often characterised as a striking of balance between the interests of creators and consumers, but this rhetoric might be misplaced. In fact creators often benefit from freer sharing by users. Knowledge is an input into creation of works, not just an output from it. Given this, it is important to counter IP expansionism by using laws promoting freedom of speech, competition law, consumer law, privacy law, while framing them within the context of development (as appropriate in various countries), to eventually produce a change in mindsets of people.

Stock-Taking

As Jeremy Malcolm of Consumers International notes in his response to the formal stock-taking process, “the IGF is yet to develop from a simple discussion forum into a body that helps to develop public policy in tangible ways.” This reporter, writing for the Dynamic Coalition on Open Standards, also voted for the continuation of the IGF, “in order to ensure that the WSIS Declaration of Principles, specifically in the important area of open standards, be realised through a multi-stakeholder process.” The IGF is, in a sense, the least bureaucratic of the UN’s endeavours. But certain rules, evolved in inter-governmental settings, might require careful reconsiderations to suit the multi-stakeholder approach that the IGF embodies. The IGF also needs to reach out from being a conference for a few to becoming a place/process for the many.

General Reflections

While this year there were more remote participation hubs (13) than last (11), and the Remote Participation Working Group seems to have done much work and some serious reflection on that work, individual experiences sometimes did not match up with what was perceived as the collective experience (via RPWG’s feedback survey). As a workshop organizer, this reporter was not provided any information about the remote participation tools, nor was there any screening of remote participants’ comments. With the shift from a single (open-source) product DimDim, to two products, WebEx (sponsored by Cisco) and Elluminate, much confusion was created even amongst those in the know since there were two separate tools being used. It is this reporter’s perception that live captioning from the main sessions has been a great success, and will have to be used much more extensively, especially if places where the bandwidth to download streaming video does not exist. Further, they help create very useful quasi-official records of the various workshops and open fora that are held at the IGF. That apart, the suggestions offered by the
RPWG (live video feedback from the remote hubs, dedicated remote participation chair in each workshop,
etc.) should be worked upon this year to enable those who cannot travel to Vilnius to participate more effectively.

All the sessions that happened around intellectual property rights were highly critical of the present state of IP laws around the world, and were calling for a reversal of the IP expansionism we see from various perspectives (access to knowledge, competition law, etc.) However, it was often felt by this reporter that these workshops were cases of the choir being preached to. Of course, many new people were being introduced to these ideas, but generally there was appreciation but not as much opposition as one is used to hearing outside the IGF. An exception (in the IP arena) was the workshop on open standards, in which there was much heat as well as illumination. Perhaps, a greater effort could be made to engage with people who are critical of the Access to Knowledge movement, those who are critical of privacy being regarded as a fundamental right, and those who believe that cultural relativism (for instance) must find a central place while talking about the right to free speech. After all, when one leaves the IGF, these voices
are heard. Those voices must be engaged with at the IGF itself, and a way forward (in terms of concrete policy recommendations, whether at the local level or the international level) must be found. Of course, the problem with the above suggestion is that many of these values are embedded in the WSIS principles, and are taken as a granted. But, still, if such debate is not had at the IGF, it might become something much worse than a ‘talking shop’: a forum where not much meaningful talk happens.

Appendix I: Tweets and Dents During the IGF

This is list of some posts made by the reporter on the microblogging sites Twitter
(http://twitter.com/pranesh_prakash) and Identi.ca (http://identi.ca/pranesh) during the IGF.
# @leashaver: Recording of yesterday’s session by the Access to Knowledge ♺ Global Academy:
http://trunc.it/3dldl #a2kga #IGF09 #yaleisp 8:55 PM Nov 18th, 2009
# “Great possibilities of #foss, but a disabling, anti-competitive environment has stunted growth of
open source software in #Egypt.” #igf09 6:47 PM Nov 17th, 2009
# Excellent set of resources on Access to Knowledge, from @YaleISP: http://tr.im/F8At #igf09 6:37 PM
Nov 17th, 2009
# “Tecno brega in Brazil can only be bought from street vendors: good relationship between artists
and street vendors.” #igf09 6:30 PM Nov 17th, 2009
# “There is not even a private copying exception in Brazil”, but is still part of “axis of IP evil” for
rightsholders #igf09 6:26 PM Nov 17th, 2009
# Tobias: “Even though s/w patents are not allowed by SA law, some large MNC s/w comps found
ways of bypassing that & getting patents” #igf09 6:19 PM Nov 17th, 2009
# Case studies from SA: CommonSense project, Freedom to Innovate SA, OOXML v. ODF struggle #igf09
6:18 PM Nov 17th, 2009
# 2 new studies on #a2k from Brazil (http://tr.im/F8tI)and SA (http://tr.im/F8uJ). Also see ACA2K’s
outputs: http://tr.im/F8uQ #igf09 6:13 PM Nov 17th, 2009
# ♺ @sunil_abraham: RT @mathieuweill: #igf09 Dardailler : Internet standards are open standards
and that makes a difference! 3:57 PM Nov 17th, 2009
# Oops. Wrong URL. It should be: http://threatened.globalvoicesonline.org/ #igf09 3:46 PM Nov 17th,
2009
# Mogens Schmidt of UNESCO praises Global Voices Online. Says defamation & libel laws should not
be *criminal* offences. #igf09 3:40 PM Nov 17th, 2009
# http://threatened.globalvoices.org/ helps report on FoE issues with bloggers through crowdsourcing.
#igf09 3:24 PM Nov 17th, 2009
# “Along with the right to give out information and opinion is the right to receive information and
opinion”: Frank La Reu #a2k #igf09 3:13 PM Nov 17th, 2009
# Schneier: “Before we die, we will have a US President who’ll send a lolcat to the Russian PM” #igf09
2:06 PM Nov 17th, 2009
# Privacy vs. security is a false dichotomy. But any privacy that is taken away in name of security
must be turned into accountability. #igf09 1:50 PM Nov 17th, 2009
# All wireless networks now have to be registered in India, and we talk of privacy? @schneier #igf09
1:47 PM Nov 17th, 2009
# RT @rmack Free Expression Online dynamic coalition meeting at 11:30am Egypt time in Siwa Room.
http://dcexpression.ning.com #igf09 1:36 PM Nov 17th, 2009
# @OWD: E Daniel, (http://bit.ly/3oFYqu), takes on the myth of the Digital Native, ♺ reveals the shallowness
of their native knowledge. #igf09 12:05 AM Nov 17th, 2009
# Commonwealth IGF’s follow-up meeting took time to find out its raison d’etre, but ended on a productive
note. #igf09 11:34 PM Nov 16th, 2009
# #schneierfact : Bruce Schneier actually exists! I can see him! 6:53 PM Nov 16th, 2009
# @timdavies: You might then be interested at a report by @cis_india on a different take at DNs:
http://tr.im/F3tk 3:29 PM Nov 16th, 2009 from Gwibber in reply to timdavies
# Estonia & Georgia DDoS are famous, but individual NGOs are also being targetted by DoSes. #igf09
3:08 PM Nov 16th, 2009
# Now more online journalists are behind bars than offline ones. #freespeech #igf09 3:07 PM Nov 16th,
2009
# ♺ @aslam: if you get an email from nigeria people will block it because they think that it is spam -
reputation #fail #igf09 2:14 PM Nov 16th, 2009
# Many are saying: listen to children; document and share best ICT practices and examples; bridge
rural-urban divide as also devel’d-devel’g. 1:57 PM Nov 16th, 2009
# Several British Parliamentarians in the room at the Commonwealth IGF event #igf09 1:56 PM Nov
16th, 2009
# CIGF should look at gaps at IGF and speak to them. Our common legal systems allow for focus on legislations
(ie, on data protection) #igf09 1:36 PM Nov 16th, 2009
# “We need to get to a point where access to the Internet is seen as a human right” #igf09 1:27 PM
Nov 16th, 2009
# “Intellectual property issues need developing countries to speak in one voice at intl fora. Commonwealth
IGF might allow that.” #igf09 1:24 PM Nov 16th, 2009
# “Music aspects of the Internet debates, which gets so much focus, doesn’t have as much relevance
in W. Africa as education & health.” #igf09 1:21 PM Nov 16th, 2009
# Commonwealth covers more than 2 billion people. Some whole regions, like E. & W. Africa “have no
voice in Geneva & global IGF” #igf09 1:18 PM Nov 16th, 2009

For more details visit https://cis-india.org/internet-governance/blog/report-on-fourth-IGF

Report on Open Standards for GISW2008

pranesh — 2009-01-05T06:52:54Z

In this report, Sunil Abraham lays out the importance and the policy implications of Open Standards.

[PDF copy]

Most computer users today remain “digitally colonised” (Bhattacharya, 2008) due to our unquestioning use of proprietary standards. As users of proprietary standards we usually forget that we lose the right to access our own files the moment the licence for the associated software expires. For example, if I were to store data, information or knowledge in .doc, .xls or .ppt format, my ability to read my own files expires the moment the licence for my copy of Microsoft Office expires.

Definition

Unlike the terms “free software” or “open source software”, the term “open standard” does not have a universally accepted definition. The free and open source software (FOSS) community largely believes that an open standard is:

[S]ubject to full public assessment and use without constraints [royalty-free] in a manner equally available to all parties; without any components or extensions that have dependencies on formats or protocols that do not meet the definition of an open standard themselves; free from legal or technical clauses that limit its utilisation by any party or in any business model; managed and further developed independently of any single vendor in a process open to the equal participation of competitors and third parties; available in multiple complete implementations by competing vendors, or as a complete implementation equally available to all parties (Greve, 2007).

The controversy

Proprietary software manufacturers, vendors and their lobbyists often provide a definition of open standards that is not in line with the above definition on two counts (Nah, 2006).

One, they do not think it is necessary for an open standard to be available on a royalty-free basis as long as it is available under a “reasonable and non-discriminatory” (RAND) licence. This means that there are some patents associated with the standard and the owners of the patents have agreed to license them under reasonable and non-discriminatory terms (W3C, 2002). One example is the audio format MP3, an ISO/IEC [International Organisation for Standardisation/International Electrotechnical Commission] standard where the associated patents are owned by Thomson Consumer Electronics and the Fraunhofer Society of Germany. A developer of a game with MP3 support would have to pay USD 2,500 as royalty for using the standard. While this may be reasonable in the United States (US), it is unthinkable for an entrepreneur from Bangladesh. Additionally, RAND licences are incompatible with most FOSS licensing requirements. Simon Phipps of Sun Microsystems says that FOSS “serves as the canary in the coalmine for the word ‘open’. Standards are truly open when they can be implemented without fear as free software in an open source community” (Phipps, 2007). RAND licences also retard the growth of FOSS, since they are patented in a few countries. Despite the fact that software is not patentable in most parts of the world, the makers of various distributions of GNU/Linux do not include reverse-engineered drivers, codecs, etc., in the official builds for fear of being sued. Only the large corporation-backed distributions of GNU/Linux can afford to pay the royalties needed to include patented software in the official builds (in this way enabling an enhanced out-of-the-box experience). This has the effect of slowing the adoption of GNU/Linux, as less experienced users using community-backed distributions do not have access to the wide variety of drivers and codecs that users of other operating systems do (Disposable, 2004). This vicious circle effectively ensures negligible market presence of smaller community-driven projects by artificial reduction of competition.

Two, proprietary software promoters do not believe that open standards should be “managed and further developed independently of any single vendor,” as the following examples will demonstrate. This is equally applicable to both new and existing standards.

Microsoft’s Office Open XML (OOXML) is a relatively new standard which the FOSS community sees as a redundant alternative to the existing Open Document Format (ODF). During the OOXML process, delegates were unhappy with the fact that many components were specific to Microsoft technology, amongst other issues. By the end of a fast-track process at the ISO, Microsoft stands accused of committee stuffing: that is, using its corporate social responsibility wing to coax non-governmental organisations to send form letters to national standards committees, and haranguing those who opposed OOXML. Of the twelve new national board members that joined ISO after the OOXML process started, ten voted “yes” in the first ballot (Weir, 2007). The European Commission, which has already fined Microsoft USD 2.57 billion for anti-competitive behaviour, is currently investigating the allegations of committee stuffing (Calore, 2007). Microsoft was able to use its financial muscle and monopoly to fast-track the standard and get it approved. In this way it has managed to subvert the participatory nature of a standards-setting organisation. So even though Microsoft is ostensibly giving up control of its primary file format to the ISO, it still exerts enormous influence over the future of the standard.

HTML, on the other hand, is a relatively old standard which was initially promoted by the Internet Engineering Task Force (IETF), an international community of techies. However, in 2002, seven years after the birth of HTML 2.0, the US Department of Justice alleged that Microsoft used the strategy of “embrace, extend, and extinguish” (US DoJ, 1999) in an attempt to create a monopoly among web browsers. It said that Microsoft used its dominance in the desktop operating system market to achieve dominance in the web-authoring tool and browser market by introducing proprietary extensions to the HTML standard (Festa, 2002). In other words, financial and market muscle have been employed by proprietary software companies – in these instances, Microsoft – to hijack open standards.

The importance

There are many technical, social and ethical reasons for the adoption and use of open standards. Some of the reasons that should concern governments and other organisations utilising public money – such as multilaterals, bilaterals, civil society organisations, research organisations and educational institutions – are listed below.

Innovation/competitiveness: Open standards are the bases of most technological innovations, the best example of which would be the internet itself (Raymond, 2000). The building blocks of the internet and associated services like the world wide web are based on open standards such as TCP/IP, HTTP, HTML, CSS, XML, POP3 and SMTP. Open standards create a level playing field that ensures greater competition between large and small, local and foreign, and new and old companies, resulting in innovative products and services. Instant messaging, voice over internet protocol (VoIP), wikis, blogging, file-sharing and many other applications with large-scale global adoption were invented by individuals and small and medium enterprises, and not by multinational corporations.
Greater interoperability: Open standards ensure the ubiquity of the internet experience by allowing different devices to interoperate seamlessly. It is only due to open standards that consumers are able to use products and services from competing vendors interchangeably and simultaneously in a seamless fashion, without having to learn additional skills or acquire converters. For instance, the mail standard IMAP can be used from a variety of operating systems (Mac, Linux and Windows), mail clients (Evolution, Thunderbird, Outlook Express) and web-based mail clients. Email would be a completely different experience if we were not able to use our friends’ computers, our mobile phones, or a cybercafé to check our mail.
Customer autonomy: Open standards also empower consumers and transform them into co-creators or “prosumers” (Toffler, 1980). Open standards prevent vendor lock-in by ensuring that the customer is able to shift easily from one product or service provider to another without significant efforts or costs resulting from migration.
Reduced cost: Open standards eliminate patent rents, resulting in a reduction of total cost of ownership. This helps civil society develop products and services for the poor.
Reduced obsolescence: Software companies can leverage their clients’ dependence on proprietary standards to engineer obsolescence into their products and force their clients to keep upgrading to newer versions of software. Open standards ensure that civil society, governments and others can continue to use old hardware and software, which can be quite handy for sectors that are strapped for financial resources.
Accessibility: Operating system-level accessibility infrastructure such as magnifiers, screen readers and text-to-voice engines require compliance to open standards. Open standards therefore ensure greater access by people with disabilities, the elderly, and neo-literate and illiterate users. Examples include the US government’s Section 508 standards, and the World Wide Web Consortium’s (W3C) WAI-AA standards.
Free access to the state: Open standards enable access without forcing citizens to purchase or pirate software in order to interact with the state. This is critical given the right to information and the freedom of information legislations being enacted and implemented in many countries these days.
Privacy/security: Open standards enable the citizen to examine communications between personal and state-controlled devices and networks. For example, open standards allow users to see whether data from their media player and browser history are being transmitted along to government servers when they file their tax returns. Open standards also help prevent corporate surveillance.
Data longevity and archiving: Open standards ensure that the expiry of software licences does not prevent the state from accessing its own information and data. They also ensure that knowledge that has been passed on to our generation, and the knowledge generated by our generation, is safely transmitted to all generations to come.
Media monitoring: Open standards ensure that the voluntary sector, media monitoring services and public archives can keep track of the ever-increasing supply of text, audio, video and multimedia generated by the global news, entertainment and gaming industries. In democracies, watchdogs should be permitted to reverse-engineer proprietary standards and archive critical ephemeral media in open standards.

Policy implications

Corporations have a right to sell products based on proprietary standards just as consumers have a right to choose between products that use open standards, proprietary standards, or even a combination of such standards. Governments, however, have a responsibility to use open standards, especially for interactions with the public and where the data handled has a direct impact on democratic values and quality of citizenship. In developing countries, governments have greater responsibility because most often they account for over 50% of the revenues of proprietary software vendors. Therefore, by opting for open standards, governments can correct an imbalanced market situation without needing any additional resources. Unfortunately, many governments lack the expertise to counter the campaigns of fear, uncertainty and doubt unleashed by proprietary standards lobbyists with unlimited expense accounts.

Most governments from the developing world do not participate in international standard-setting bodies. On the other hand, proprietary software lobbyists like the Business Software Alliance (BSA) and Comptia attend all national meetings on standards. This has forced many governments to shun these forums and exacerbate the situation by creating more (totally new) standards. Therefore, governments need the support of academic and civil society organisations in order to protect the interests of the citizen. For example, the Indian Institute of Technology in Kanpur (IIT-K) helped the government of India develop the open standard Smart Card Operating System for Transport Applications (SCOSTA) for smart card-based driving licences and vehicle registration documents. Proprietary vendors tried to jettison the move by saying that the standard was technically not feasible. IIT-K developed a reference implementation on FOSS to belie the vendor's claims. As a consequence, the government of India was able to increase the number of empanelled smart-card vendors from four to fifteen and reduce the price of a smart card by around USD 7 each (UNDP, 2007a). This will hopefully result in enormous savings during the implementation of a national multi-purpose identification card in India.

In some instances, proprietary standards are technically superior or more universally supported in comparison to open standards. In such cases the government may be forced to adopt proprietary and de facto standards in the short and medium term. But for long-term technical, financial and societal benefits, many governments across the world today are moving towards open standards. The most common policy instruments for implementation of open standards policy are government interoperability frameworks (GIFs). Governments that have published GIFs include the United Kingdom, Denmark, Brazil, Canada, the European Union, Malaysia, Hong Kong, Malaysia, New Zealand, and Australia (UNDP, 2007b).

While challenges to the complete adoption of open standards in the public sector and civil society remain, one thing is certain: the global march towards openness, though slow, is irreversible and inevitable.

References

Bhattacharya, J. (2008) Technology Standards: A Route to Digital Colonization. Open Source, Open Standards and Technological Sovereignty. .
Available at:
knowledge.oscc.org.my/practice-areas/‌government‌/oss-seminar-putrajaya-2008/technology-standards-a-route-to-digital/at_download/file

Calore, M. (2007) Microsoft Allegedly Bullies and Bribes to Make Office an International Standard. Wired, 31 August.
Available at: www.wired.com/software/coolapps/news/2007/08/ooxml_vote

Disposable (2004) Ubuntu multimedia HOWTO.
Available at: www.oldskoolphreak.com/tfiles/‌hack/‌ubuntu.txt

Festa, P. (2002) W3C members: Do as we say, not as we do. CNET News, 5 September.
Available at: news.cnet.com/2100-1023-956778.html

Greve, G. (2007) An emerging understanding of open standards.
.
Available at: www.fsfe.org/‌fellows‌/greve/freedom_bits/an_emerging_understanding_of_open_standards

Nah, S.H. (2006) FOSS Open Standards Primer. New Delhi: UNDP-APDIP.
Available at: www.iosn.net/open-standards/foss-open-standards-primer/foss-openstds-withnocover.pdf

Phipps, S. (2007) Roman Canaries..
Available at: blogs.sun.com/webmink/entry/‌roman_canaries‌

Raymond, E.S. (2000) The Magic Cauldron.
Available at: www.catb.org/~esr/writings/‌cathedral-‌bazaar/‌magic-‌cauldron/‌index.html

Toffler, A. (1980) The Third Wave. New York: Bantam.

UNDP (United Nations Development Programme) (2007a) e-Government Interoperability: A Review of Government Interoperability Frameworks in Selected Countries.
Available at: www.apdip.net/projects/gif/gifeprimer

UNDP (2007b) e-Government Interoperability: Guide.
Available at: www.apdip.net/projects/gif/GIF-Guide.pdf

US DoJ (Department of Justice) (1999) Proposed Findings of Fact – Revised.
Available at: www.usdoj.gov/‌atr/‌cases/‌f2600/v-a.pdf

W3C (World Wide Web Consortium) (2002) Current patent practice.
Available at: www.w3.org/TR/patent-practice#def-RAND

Weir, R. (2007) How to hack ISO.
Available at: www.robweir.com/blog/2007/09/how-to-hack-iso.html

For more details visit https://cis-india.org/openness/publications/standards/report-on-open-standards-for-gisw2008

Report on Open Standards for GISW 2008

pranesh — 2011-08-23T02:57:53Z

A report on Open Standards prepared by Sunil Abraham, for the Global Information Society Watch 2008. As on their site, GISWatch focuses on monitoring progress made towards implementing the World Summit on the Information Society (WSIS) action agenda and other international and national commitments related to information and communications. It also provides analytical overviews of institutions involved in implementation.

For more details visit https://cis-india.org/publications-automated/cis/sunil/Open-Standards-GISW-2008.pdf

Regulatory Perspectives on Net Neutrality

pranesh — 2015-07-18T02:46:30Z

In this paper Pranesh Prakash gives an overview on why India needs to put in place net neutrality regulations, and the form that those regulations must take to avoid being over-regulation.

With assistance by Vidushi Marda (Programme Officer, Centre for Internet and Society) and Tarun Krishnakumar (Research Volunteer, Centre for Internet and Society). I would like to specially thank Vishal Misra, Steve Song, Rudolf van der Berg, Helani Galpaya, A.B. Beliappa, Amba Kak, and Sunil Abraham for extended discussions, helpful suggestions and criticisms. However, this paper is not representative of their views, which are varied.

Today, we no longer live in a world of "roti, kapda, makaan", but in the world of "roti, kapda, makaan aur broadband". ^{^[1]} This is recognized by the National Telecom Policy IV.1.2, which states the need to "recognise telecom, including broadband connectivity as a basic necessity like education and health and work towards 'Right to Broadband'."^{^[2]} According to the IAMAI, as of October 2014, India had 278 million internet users. ^{^[3]} Of these, the majority access Internet through their mobile phones, and the WEF estimates only 3 in 100 have broadband on their mobiles.^{^[4]} Thus, the bulk of our population is without broadband. Telecom regulation and net neutrality has a very important role in enabling this vision of Internet as a basic human need that we should aim to fulfil.

1. Why should we regulate the telecom sector?

All ICT regulation should be aimed at achieving five goals: achieving universal, affordable access; ^{^[5]} ensuring and sustaining effective competition in an efficient market and avoiding market failures; protecting against consumer harms; ensuring maximum utility of the network by ensuring interconnection; and addressing state needs (taxation, security, etc.). Generally, all these goals go hand in hand, however some tensions may arise. For instance, universal access may not be provided by the market because the costs of doing so in certain rural or remote areas may outweigh the immediate monetary benefits private corporations could receive in terms of profits from those customers. In such cases, to further the goal of universal access, schemes such as universal service obligation funds are put in place, while ensuring that such schemes either do not impact competition or very minimally impact it.

It is clear that to maximise societal benefit, effective regulation of the ICT sector is a requirement, which otherwise, due to the ability of dominant players to abuse network effect to their advantage, is inherently prone towards monopolies. For instance, in the absence of regulation, a dominant player would charge far less for intra-network calls than inter-network calls, making customers shift to the dominant network. This kind of harm to competition should be regulated by the ICT regulator. However, it is equally true that over-regulation is as undesirable as under-regulation, since over-regulation harms innovation - whether in the form of innovative technologies or innovative business models. The huge spurt of growth globally of the telecom sector since the 1980s has resulted not merely from advancements in technology, but in large part from the de-monopolisation and deregulation of the telecom sector.^{^[6]} Similarly, the Internet has largely flourished under very limited technology-specific regulation. For instance, while interconnection between different telecom networks is heavily regulated in the domestic telecom sector, interconnection between the different autonomous systems (ASes) that make up the Internet is completely unregulated, thereby allowing for non-transparent pricing and opaque transactions. Given this context, we must ensure we do not over-regulate, lest we kill innovation.

2. Why should we regulate Net Neutrality? And whom should we regulate?

We wouldn't need to regulate Net Neutrality if ISPs were not "gatekeepers" for last-mile access. "Gatekeeping" occurs when a single company establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes. It is not possible for Internet services to reach the customers of the telecom network without passing through the telecom network. The situation is very different in the middle-mile and for backhaul. Even though anti-competitive terms may exist in the middle-mile, especially given the opacity of terms in "transit agreements", a packet is usually able to travel through multiple routes if one route is too expensive (even if that is not the shortest network path, and is thus inefficient in a way). However, this multiplicity of routes is not possible in the last mile.

This leaves last mile telecom operators (ISPs) in a position to unfairly discriminate between different Internet services or destinations or applications, while harming consumer choice. This is why we believe that promoting the five goals mentioned above would require regulation of last-mile telecom operators to prevent unjust discrimination against end-users and content providers.

Thus, net neutrality is the principle that we should regulate gatekeepers to ensure they do not use their power to unjustly discriminate between similarly situated persons, content or traffic.

3. How should we regulate Net Neutrality?

3.1. What concerns does Net Neutrality raise? What harms does it entail?

Discriminatory practices at the level of access to the Internet raises the following set of concerns:

1. Freedom of speech and expression, freedom of association, freedom of assembly, and privacy.

2. Harm to effective competition

a. This includes competition amongst ISPs as well as competition amongst content providers.

b. Under-regulation here may cause harm to innovation at the content provider level, including through erecting barriers to entry.

c. Over-regulation here may cause harm to innovation in terms of ISP business models.

3. Harm to consumers

a. Under-regulation here may harm consumer choice and the right to freedom of speech, expression, and communication.

b. Over-regulation on this ground may cause harm to innovation at the level of networking technologies and be detrimental to consumers in the long run.

4. Harm to "openness" and interconnectedness of the Internet, including diversity (of access, of content, etc.)

a. Exceptions for specialized services should be limited to preserve the open and interconnectedness of the Internet and of the World Wide Web.

It might help to think about Net Neutrality as primarily being about two overlapping sets of regulatory issues: preferential treatment of particular Internet-based services (in essence: content- or source-/destination-based discrimination, i.e., discrimination on basis of 'whose traffic it is'), or discriminatory treatment of applications or protocols (which would include examples like throttling of BitTorrent traffic, high overage fees upon breaching Internet data caps on mobile phones, etc., i.e., discrimination on the basis of 'what kind of traffic it is').

Situations where the negative or positive discrimination happens on the basis of particular content or address should be regulated through the use of competition principles, while negative or positive discrimination at the level of specific class of content, protocols, associated ports, and other such sender-/receiver-agnostic features, should be regulated through regulation of network management techniques . The former deals with instances where the question of "in whose favour is there discrimination" may be asked, while the latter deals with the question "in favour of what is there discrimination".

In order to do this, a regulator like TRAI can use both hard regulation - price ceilings, data cap floors, transparency mandates, preventing specific anti-competitive practices, etc. - as well as soft regulation - incentives and disincentives.

3.1.1 Net Neutrality and human rights

Any discussion on the need for net neutrality impugns the human rights of a number of different stakeholders. Users, subscribers, telecom operators and ISPs all possess distinct and overlapping rights that are to be weighed against each other before the scope, nature and form of regulatory intervention are finalised. The freedom of speech, right to privacy and right to carry on trade raise some of the most pertinent questions in this regard.

For example, to properly consider issues surrounding the practice of paid content-specific zero-rating from a human rights point of view, one must seek to balance the rights of content providers to widely disseminate their 'speech' to the largest audiences against the rights of consumers to have access to a diverse variety of different, conflicting and contrasting ideas.

This commitment to a veritable marketplace or free-market of ideas has formed the touchstone of freedom of speech law in jurisdictions across the world as well as finding mention in pronouncements of the Indian Supreme Court. Particular reference is to be made to the dissent of Mathew, J. inBennett Coleman v. Union of India^{^[7]} and of the majority Sakal Papers v. Union of India^{^[8]} which rejected the approach.

Further, the practice of deep-packet inspection, which is sometimes used in the process of network management, raises privacy concerns as it seeks to go beyond what is "public" information in the header of an IP packet, necessary for routing, to analysing non-public information. ^{^[9]}

3.2 What conditions and factors may change these concerns and the regulatory model we should adopt?

While the principles relating to Net Neutrality remain the same in all countries (i.e., trying to prevent gatekeepers from unjustly exploiting their position), the severity of the problem varies depending on competition in the market, on the technologies, and on many other factors. One way to measure fair or stable allocation of the surplus created by a network - or a network-of-networks like the Internet - is by treating it as a convex cooperation game and thereupon calculating that game's Shapley value:^{^[10]} in the case of the Internet, this would be a game involving content ISPs, transit ISPs, and eyeball (i.e., last-mile) ISPs. The Shapley value changes depending on the number of competitors there are in the market: thus, the fair/stable allocation when there's vibrant competition in the market is different from the fair/stable allocation in a market without such competition. That goes to show that a desirable approach when an ISP tries to unjustly enrich itself by charging other network-participants may well be to increase competition, rather than directly regulating the last-mile ISP. Further, it shows that in a market with vibrant last-mile competition, the capacity of the last-mile ISP to unjustly are far diminished.

In countries which are remote and have little international bandwidth, the need to conserve that bandwidth is high. ISPs can regulate that by either increasing prices of Internet connections for all, or by imposing usage restrictions (such as throttling) on either heavy users or bandwidth-hogging protocols. If the amount of international bandwidth is higher, the need and desire on part of ISPs to indulge in such usage restrictions decreases. Thus, the need to regulate is far higher in the latter case, than in the former case.

The above paragraphs show that both the need for regulation and also the form that the regulation should take depend on a variety of conditions that aren't immediately apparent.

Thus, the framework that the regulator sets out to tackle issues relating to Net Neutrality are most important, whereas the specific rules may need to change depending on changes in conditions. These conditions include:

● last-mile market

○ switching costs between equivalent service providers

○ availability of an open-access last-mile

○ availability of a "public option" neutral ISP

○ increase or decrease in the competition, both in wired and mobile ISPs.

● interconnection market

○ availability of well-functioning peering exchanges

○ availability of low-cost transit

● technology and available bandwidth

○ spectrum efficiency

○ total amount of international bandwidth and local network bandwidth

● conflicting interests of ISPs

○ do the ISPs have other business interests other than providing Internet connectivity? (telephony, entertainment, etc.)

3.3 How should we deal with anti-competitive practices?

Anti-competitive practices in the telecom sector can take many forms: Abuse of dominance, exclusion of access to specific services, customer lock-in, predatory pricing, tying of services, cross-subsidization, etc., are a few of them. In some cases the anti-competitive practice targets other telecom providers, while in others it targets content providers. In the both cases, it is important to ensure that ensure that telecom subscribers have a competitive choice between effectively substitutable telecom providers and an ability to seamlessly switch between providers.

3.3.1 Lowering Switching Costs

TRAI has tackled many of these issues head on, especially in the mobile telephony space, while competitive market pressures have helped too:

● Contractual or transactional lock-in. The easiest way to prevent shifting from one network to another is by contractually mandating a lock-in period, or by requiring special equipment (interoperability) to connect to one's network. In India, this is not practised in the telecom sector, with the exception of competing technologies like CDMA and GSM. Non-contractual lock-ins, for instance by offering discounts for purchasing longer-term packages, are not inherently anti-competitive unless that results in predatory pricing or constitutes an abuse of market dominance. In India, switching from one mobile provider to another, though initiated 15 years into the telecom revolution, is in most cases now almost as easy as buying a new SIM card.^{^[11]} TRAI may consider proactive regulation against contractual lock-in.

● Number of competitors. Even if switching from one network to another is easy, it is not useful unless there are other equivalent options to switch to. In the telecom market, coverage is a very important factor in judging equivalence. Given that last mile connectivity is extremely expensive to provide, the coverage of different networks are very different, and this is even more true when one considers wired connectivity, which is difficult to lay in densely-populated urban and semi-urban areas and unprofitable in sparsely-populated areas. The best way to increase the number of competitors is to make it easier for competitors to exist. Some ways of doing this would be through enabling spectrum-sharing, lowering right-of-way rents, allowing post-auction spectrum trading, and promoting open-access last-mile fibre carriers and to thereby encourage competition on the basis of price and service and not exclusive access to infrastructure.

● Interconnection and mandatory carriage. The biggest advantage a dominant telecom player has is exclusive access to its customer base. Since in the telecom market, no telco wants to not connect to customers of another telco, they do not outright ban other networks. However, dominant players can charge high prices from other networks, thereby discriminating against smaller networks. In the early 2000s, Airtel-to-Airtel calls were much cheaper than Airtel-to-Spice calls. However, things have significantly changed since then. TRAI has, since the 2000s, heavily regulated interconnection and imposed price controls on interconnection ("termination") charges.^{^[12]} Thus, now, generally, inter-network calls are priced similarly to intra-network calls. And if you want cheaper Airtel-to-Airtel calls, you can buy a special (unbundled) pack that enables an Airtel customer to take advantage of the fact that her friends are also on the same network, and benefits Airtel since they do not in such cases have to pay termination charges. Recently, TRAI has even made the interconnection rates zero in three cases: landline-to-landline, landline-to-cellular, and cellular-to-landline, in a bid to decrease landline call rates, and incentivise them, allowing a very low per call interconnection charges of 14 paise for cellular-to-cellular connections. ^{^[13]}

○ With regard to Net Neutrality, we must have a rule that no termination charges or carriage charges may be levied by any ISP upon any Internet service. No Internet service may be discriminated against with regard to carriage conditions or speeds or any other quality of service metric. In essence all negative discrimination should be prohibited. This means that Airtel cannot forcibly charge WhatsApp or any other OTT (which essentially form a different "layer") money for the "privilege" of being able to reach Airtel customers, nor may Airtel slow down WhatsApp traffic and thus try to force WhatsApp to pay. There is a duty on telecom providers to carry any legitimate traffic ("common carriage"), not a privilege. It is important to note that consumer-facing TSPs get paid by other interconnecting Internet networks in the form of transit charges (or the TSP's costs are defrayed through peering). There shouldn't be any separate charge on the basis of content (different layer from the carriage) rather than network (same layer as the carriage). This principle is especially important for startups, and which are often at the receiving end of such discriminatory practices.

● Number Portability. One other factor that prevents users from shifting between one network and another is the fact that they have to change an important aspect of their identity: their phone number (this doesn't apply to Internet over DSL, cable, etc.). At least in the mobile space, TRAI has for several years tried to mandate seamless mobile number portability. The same is being tried by the European Commission in the EU. ^{^[14]} While intra-circle mobile number portability exists in India - and TRAI is pushing for inter-circle mobile number portability as well^{^[15]} - this is nowhere as seamless as it should be.

● Multi-SIM phones. The Indian market is filled with phones that can accommodate multiple SIM cards, enabling customers to shift seamlessly between multiple networks. This is true not just in India, but most developing countries with extremely price-sensitive customers. Theoretically, switching costs would approach zero if in a market with full coverage by n telecom players every subscriber had a phone with n SIM slots with low-cost SIM cards being available.

The situation in the telecom sector with respect to the above provides a stark contrast to the situation in the USA, and to the situation in the DTH market. In the USA, phones get sold at discounts with multi-month or multi-year contracts, and contractual lock-ins are a large problem. Keeping each of the above factors in mind, the Indian mobile telecom space is far more competitive than the US mobile telecom space.

Further, in the Indian DTH market, given that there is transactional lock-in (set-top boxes aren't interoperable in practice, though are mandated to be so by law^{^[16]}), there are fewer choices in the market; further, the equivalent of multi-SIM phones don't exist with respect to set-top boxes. Further, while there are must-carry rules with respect to carriage, they can be of three types: 1) must mandatorily provide access to particular channels^{^[17]} (positive obligation, usually for government channels); 2) prevented from not providing particular channels (negative obligation, to prevent anti-competitive behaviour and political censorship); and 3) must mandatorily offer access to at least a set number of channels (positive obligation for ensuring market diversity). ^{^[18]} Currently, only (1) is in force, since despite attempts by TRAI to ensure (3) as well.^{^[19]}

If the shifting costs are low and transparency in terms of network practice is reported in a standard manner and well-publicised, then that significantly weakens the "gatekeeper effect", which as we saw earlier, is the reason why we wish to introduce Net Neutrality regulation. This consequently means, as explained above in section 3.2, that despite the same Net Neutrality principles applying in all markets and countries, the precise form that the Net Neutrality regulations take in a telecom market with low switching costs would be different from the form that such regulations would take in a market with high switching costs.

3.3.2 Anti-competitive Practices

Some potential anti-competitive practices, which are closely linked, are cross-subsidization, tying (anti-competitive bundling) of multiple services, and vertical price squeeze. All three of these are especial concerns now, with the increased diversification of traditional telecom companies, and with the entry into telecom (like with DTH) of companies that create content. Hence, if Airtel cross-subsidizes the Hike chat application that it recently acquired, ^{^[20]} or if Reliance Infocomm requires customers to buy a subscription to an offering from Reliance Big Entertainment, or if Reliance Infocomm meters traffic from another Reliance Big Entertainment differently from that from Saavn, all those would be violative of the principle of non-discrimination by gatekeepers. This same analysis can be applied to all unpaid deals and non-commercial deals, including schemes such as Internet.org and Wikipedia Zero, which will be covered later in the section on zero-rating.

While we have general rules such as sections 3 and 4 of the Competition Act, we do not currently have specific rules prohibiting these or other anti-competitive practices, and we need Net Neutrality regulation that clearly prohibit such anti-competitive practices so that the telecom regulator can take action for non-compliance . We cannot leave these specific policy prescriptions unstated, even if they are provided for in section 3 of the Competition Act. These concerns are especial concerns in the telecom sector, and the telecom regulator or arbitrator should have the power to directly deal with these, instead of each case going to the Competition Commission of India. This should not affect the jurisdiction of the CCI to investigate and adjudicate such matters, but should ensure that TRAI both has suo motu powers, and that the mechanism to complain is made simple (unlike the current scenario, where some individual complainants may fall in the cracks between TRAI and TDSAT).

3.3.3 Zero-rating

Since a large part of the net neutrality debate in India involves zero-rating practices, we deal with that in some length. Zero-rating is the practice of not counting (aka "zero-rating") certain traffic towards a subscriber's regular Internet usage. The zero-rated traffic could be zero-priced or fixed-price; capped or uncapped; subscriber-paid, Internet service-paid, paid for by both, or unpaid; content- or source/destination-based, or agnostic to content or source/destination; automatically provided by the ISP or chosen by the customer . The motivations for zero-rating may also be varied, as we shall see below. Further, depending on the circumstances, zero-rating could be competitive or anti-competitive. All forms of zero-rating result in some form of discrimination, but not all zero-rating is harmful, nor does all zero-rating need to be prohibited.

While, as explained in the section on interconnection and carriage above, negative discrimination at the network level should be prohibited, that leaves open the question of positive discrimination. It follows from section 3.1 that the right frame of analysis of this question is harm to competition, since the main harm zero-rating is, as we shall see below, about discriminating between different content providers, and not discrimination at the level of protocols, etc.

Whether one should allow for any form of positive discrimination at the network level or not depends on whether positive discrimination of (X) has an automatic and unfair negative impact on all (~X). That, in turn, depends on whether (~X) is being subject to unfair competition. As Wikipedia notes, "unfair competition means that the gains of some participants are conditional on the losses of others, when the gains are made in ways which are illegitimate or unjust." Thus, positive discrimination that has a negative impact on effective competition shall not be permitted, since in such cases it is equivalent to negative discrimination ("zero-sum game") . Positive discrimination that does not have a negative impact on effective competition may be permitted, especially since it results in increased access and increases consumer benefit, as long as the harm to openness and diversity is minimized .

While considering this, one should keep in mind the fact that startups were, 10-15 years ago, at a huge disadvantage with regard to wholesale data purchase. The marketplaces for data centres and for content delivery networks (which speed up delivery of content by being located closer, in network terms, to multiple last-mile ISPs) were nowhere near as mature as they are today, and the prices were high. There was a much higher barrier to startup entry than there is today, due to the prices and due to larger companies being able to rely on economies of scale to get cheaper rates. Was that unfair? No. There is no evidence of anti-competitive practices, nor of startups complaining about such practices. Therefore, that was fair competition, despite specific input costs that were arguably needed (though not essential) for startups to compete being priced far beyond their capacity to pay.

Today the marketplace is very different, with a variety of offerings. CDNs such as Cloudflare, which were once the preserve of rich companies, even have free offerings, thus substantially lowering barriers for startups that want faster access to customers across the globe.

Is a CDN an essential cost for a startup? No. But in an environment where speed matters and customers use or don't use a service depending on speed; and where the startup's larger competitors are all using CDNs, a startup more or less has to. Thankfully, given the cheap access to CDNs these days, that cost is not too high for a startup to bear. If the CDN market was not competitive enough, would a hypothetical global regulator have been justified in outright banning the use of CDNs to 'level' the playing field? No, because the hypothetical global regulator instead had the option to (and would have been justified in) regulating the market to ensure greater competition.

A regulator should not prohibit an act that does not negatively impact access, competition, consumer benefit, nor openness (including diversity), since that would be over-regulation and would harm innovation.

3.3.3.1 Motivations for Zero-Rating

3.3.3.1.1 Corporate Social Responsibility / Incentivizing Customers to Move Up Value Chain

There exist multiple instances where there is no commercial transaction between the OTT involved and the telecom carrier, in which zero-priced zero-rating of specific Internet content happens. We know that there is no commercial transaction either through written policy (Wikipedia Zero) or through public statements (Internet.org, a bouquet of sites). In such cases, the telecom provider would either be providing such services out of a sense of public interest, given the social value of those services, or would be providing such services out of self-interest, to showcase the value of particular Internet set the same time.

The apprehended risk is that of such a scheme creating a "walled garden", where users would be exposed only to those services which are free since the search and discovery costs of non-free Internet (i.e., any site outside the "walled garden") would be rather high. This risk, while real, is rather slim given the fact that the economic incentives for those customers who have the ability to pay for "Internet packs" but currently do not find a compelling reason to do so, or out of both a sense of public interest and self-interest of the telecom providers works against this.

In such non-commercial zero-priced zero-rating, a telecom provider would only make money if and only if subscribers start paying for sites outside of the walled garden. If subscribers are happy in the walled garden, the telecom provider starts losing money, and hence has a strong motivation to stop that scheme. If on the other hand, enough subscribers start becoming paying customers to offset the cost of providing the zero-priced zero-rated service(s) and make it profitable, that shows that despite the availability of zero-priced options a number of customers will opt for paid access to the open Internet and the open Web, and the overall harms of such zero-priced zero-rating would be minimal. Hence, the telecom providers have an incentive to keep the costs of Internet data packs low, thus encouraging customers who otherwise wouldn't pay for the Internet to become paying customers.

There is the potential of consumer harm when users seek to access a site outside of the walled garden, and find to their dismay that they have been charged for the Internet at a hefty rate, and their prepaid balance has greatly decreased. This is an issue that TRAI is currently appraised of, and a suitable solution would need to be found to protect consumers against such harm.

All in all, given that the commercial interests of the telecom providers align with the healthy practice of non-discrimination, this form of limited positive discrimination is not harmful in the long run, particularly because it is not indefinitely sustainable for a large number of sites. Hence, it may not be useful to ban this form of zero-priced zero-rating of services as long as they aren't exclusive, or otherwise anti-competitive (a vertical price-squeeze, for instance), and the harm to consumers is prohibited and the harm to openness/diversity is minimized.

3.3.3.1.2 Passing on ISP Savings / Incentivizing Customers to Lower ISP's Cost

Suppose, for instance, an OTT uses a CDN located, in network distance terms, near an eyeball ISP. In this case, the ISP has to probably pay less than it would have to had the same data been located in a data centre located further away, given that it would have fewer interconnection-related charges.

Hence the monetary costs of providing access to different Web destinations are not equal for the ISP. This cost can be varied either by the OTT (by it locating the data closer to the ISP - through a CDN, by co-locating where the ISP is also present, or by connecting to an Internet Exchange Point which the ISP is also connected to - or by it directly "peering" with the ISP) or by the ISP (by engaging in "transparent proxying" in which case the ISP creates caches at the ISP level of specific content (usually by caching non-encrypted data the ISP's customers request) and serves the cached content when a user requests a site, rather than serving the actual site). None of the practices so far mentioned are discriminatory from the customer's perspective with regard either to price or to prioritization, though all of them enable faster speeds to specific content. Hence none of the above-mentioned practices are considered even by the most ardent Net Neutrality advocates to be violations of that principle. ^{^[21]} However, if an ISP zero-rates the content to either pass on its savings to the customer^{^[22]} or to incentivize the customer to access services that cost the ISP less in terms of interconnection costs, that creates a form of price discrimination for the customer, despite it benefiting the consumer.

The essential economic problem is that the cost to the ISP is variable, but the cost to the customer is fixed. Importantly, this problem is exacerbated in India where web hosting prices are high, transit prices are high, peering levels are low, and Internet Exchange Points (IXPs) are not functioning well. ^{^[23]} These conditions create network inefficiencies in terms of hosting of content further away from Indian networks in terms of network distance, and thus harms consumers as well as local ISPs. In order to set this right, zero-rating of this sort may be permitted as it acts as an incentive towards fixing the market fundamentals. However, once the market fundamentals are fixed, such zero-rating may be prohibited.

This example shows that the desirability or otherwise of discriminatory practices depends fully on the conditions present in the market, including in terms of interconnection costs.

3.3.3.1.3 Unbundling Internet into Services ("Special Packs")

Since at least early 2014, mobile operators have been marketing special zero-rating "packs". These packs, if purchased by the customer, allow capped or in some instances uncapped, zero-rating of a service such as WhatsApp or Facebook, meaning traffic to/from that service will not be counted against their regular Internet usage.

For a rational customer, purchasing such a pack only makes sense in one of two circumstances:

● The person has Internet connectivity on her Internet-capable phone, but has not purchased an "Internet data pack" since she doesn't find the Internet valuable. Instead, she has heard about "WhatsApp", has friends who are on it, and wishes to use that to reduce her SMS costs (and thereby eat into the carriage provider's ability to charge separately for SMSes). She chooses to buy a WhatsApp pack for around ₹25 a month instead of paying ₹95 for an all-inclusive Internet data pack.

● The person has Internet connectivity on her Internet-capable phone, and has purchased an "Internet data pack". However, that data pack is capped and she has to decide between using WhatsApp and surfing web sites. She is on multiple WhatsApp groups and her WhatsApp traffic eats up 65% of her data cap. She thus has to choose between the two, since she doesn't want to buy two Internet data packs (each costing around ₹95 for a month). She chooses to buy a WhatsApp pack for ₹25 a month, paying a cumulative total of ₹120 instead of ₹190 which she would have had to had she bought two Internet data packs. In this situation, "unbundling" is happening, and this benefits the consumer. Such unbundling harms the openness and integrity of the Internet.

If users did not find value in the "special" data packs, and there is no market demand for such products, they will cease to be offered. Thus, assuming a telco's decision to offer such packs is purely customer-demand driven - and not due to deals it has struck with service providers - if Orkut is popular, telcos would be interested in offering Orkut packs and if Facebook is popular, they would be interested in offering a Facebook pack. Thus, clearly, there is nothing anti-competitive about such customer-paid zero-rating packs, whereas they clearly enhance consumer benefit. Would this increase the popularity of Orkut or Facebook? Potentially yes. But to prohibit this would be like prohibiting a supermarket from selectively (and non-collusively) offering discounts on popular products. Would that make already popular products even more popular? Potentially, yes. But that would not be seen as a harm to competition but would be seen as fair competition. This contravenes the "openness" of the Internet (i.e., the integral interconnected diversity that an open network like the Internet embodies) as an independent regulatory goal. The Internet, being a single gateway to a mind-boggling variety of services, allows for a diverse "long tail", which would lose out if the Internet was seen solely as a gateway to popular apps, sites, and content. However, given that this is a choice exercised freely by the consumer, such packs should not be prohibited, as that would be a case of over-regulation.

The one exception to the above analysis of competition, needless to say, is if that these special packs aren't purely customer-demand driven and are the product of special deals between an OTT and the telco. In that case, we need to ensure it isn't anti-competitive by following the prescriptions of the next section.

3.3.3.1.4 Earning Additional Revenues from Content Providers

With offerings like Airtel Zero, we have a situation where OTT companies are offering to pay for wholesale data access used by their customers, and make accessing their specific site or app free for the customer. From the customer's perspective, this is similar to a toll-free number or a pre-paid envelope or free-to-air TV channel being offered on a particular network.

However, from the network perspective, these are very different. Even if a customer-company pays Airtel for the toll-free number, that number is accessible and toll-free across all networks since the call terminates on Airtel networks and Airtel pays the connecting network back the termination charge from the fee they are paid by the customer-company. This cannot happen in case of the Internet, since the "call" terminates outside of the reach of the ISP being paid for zero-rating by the OTT company; hence unless specific measures are taken, zero-rating has to be network-specific.

The comparison to free-to-air channels is also instructive, since in 2010 TRAI made recommendations that consumers should have the choice of accessing free-to-air channels à-la-carte, without being tied up to a bouquet.^{^[24]} This would, in essence, allow a subscriber to purchase a set-top box, and without paying a regular subscription fee watch free-to-air channels. ^{^[25]} However, similar to toll-free numbers, these free-to-air channels are free-to-air on all MSO's set-top boxes, unlike the proposed Airtel Zero scheme under which access to a site like Flipkart would be free for customers on Airtel's network alone.

Hence, these comparisons, while useful in helping think through the regulatory and competition issues, should not be used as instructive exact analogies, since they aren't fully comparable situations.

3.3.3.1.5 Market Options for OTT-Paid Zero-Rating

As noted above, a competitive marketplace already exists for wholesale data purchase at the level of "content ISPs" (including CDNs), which sell wholesale data to content providers (OTTs). This market is at present completely unregulated. The deals that exist are treated as commercial secrets. It is almost certain that large OTTs get better rates than small startups due to economies of scale.

However, at the eyeball ISP level, it is a single-sided market with ISPs competing to gain customers in the form of end-users. With a scheme like "Airtel Zero", this would get converted into a double-sided market, with a gatekeeper without whom neither side can reach the other being in the middle creating a two-sided toll. This situation is ripe for market abuse: this situation allows the gatekeeper to hinder access to those OTTs that don't pay the requisite toll or to provide preferential access to those who pay, apart from providing an ISP the opportunity to "double-dip".

One way to fix this is to prevent ISPs from establishing a double-sided market. The other way would be to create a highly-regulated market where the gatekeeping powers of the ISP are diminished, and the ISP's ability to leverage its exclusive access over its customers are curtailed. A comparison may be drawn here to the rules that are often set by standard-setting bodies where patents are involved: given that these patents are essential inputs, access to them must be allowed through fair, reasonable, and non-discriminatory licences. Access to the Internet and common carriers like telecom networks, being even more important (since alternatives exist to particular standards, but not to the Internet itself), must be placed at an even higher pedestal and thus even stricter regulation to ensure fair competition.

A marketplace of this sort would impose some regulatory burdens on TRAI and place burdens on innovations by the ISPs, but a regulated marketplace harms ISP innovation less than not allowing a market at all.

At a minimum, such a marketplace must ensure non-exclusivity, non-discrimination, and transparency. Thus, at a minimum, a telecom provider cannot discriminate between any OTTs who want similar access to zero-rating. Further, a telecom provider cannot prevent any OTT from zero-rating with any other telecom provider. To ensure that telecom providers are actually following this stipulation, transparency is needed, as a minimum.

Transparency can take one of two forms: transparency to the regulator alone and transparency to the public. Transparency to the regulator alone would enable OTTs and ISPs to keep the terms of their commercial transactions secret from their competitors, but enable the regulator, upon request, to ensure that this doesn't lead to anti-competitive practices. This model would increase the burden on the regulator, but would be more palatable to OTTs and ISPs, and more comparable to the wholesale data market where the terms of such agreements are strictly-guarded commercial secrets. On the other hand, requiring transparency to the public would reduce the burden on the regulator, despite coming at a cost of secrecy of commercial terms, and is far more preferable.

Beyond transparency, a regulation could take the form of insisting on standard rates and terms for all OTT players, with differential usage tiers if need be, to ensure that access is truly non-discriminatory. This is how the market is structured on the retail side.

Since there are transaction costs in individually approaching each telecom provider for such zero-rating, the market would greatly benefit from a single marketplace where OTTs can come and enter into agreements with multiple telecom providers.

Even in this model, telecom networks will be charging based not only on the fact of the number of customers they have, but on the basis of them having exclusive routing to those customers. Further, even under the standard-rates based single-market model, a particular zero-rated site may be accessible for free from one network, but not across all networks: unlike the situation with a toll-free number in which no such distinction exists.

To resolve this, the regulator may propose that if an OTT wishes to engage in paid zero-rating, it will need to do so across all networks, since if it doesn't there is risk of providing an unfair advantage to one network over another and increasing the gatekeeper effect rather than decreasing it.

However, all forms of competitive Internet service-paid zero-priced zero-rating, even when they don't harm competition, innovation amongst content providers, or consumers, will necessarily harm openness and diversity of the Internet. For instance, while richer companies with a strong presence in India may pay to zero-rate traffic for their Indian customers, decentralized technologies such as XMPP and WebRTC, having no central company behind them, would not, leading to customers preferring proprietary networks and solutions to such open technologies, which in turn, thanks to the network effect, leads to a vicious cycle. These harms to openness and diversity have to be weighed against the benefit in terms of increase in access when deciding whether to allow for competitive OTT-paid zero-priced zero-rating, as such competition doesn't exist in a truly level playing field . Further, it must be kept in mind that there are forms of zero-priced zero-rating that decrease the harm to openness / diversity, or completely remove that harm altogether: that there are other options available must be acknowledged by the regulator when considering the benefit to access from competitive OTT-paid zero-priced zero-rating.

3.3.3.1.6 Other options for zero-rating

There are other models of zero-priced zero-rating that either minimize the harm is that of ensuring free Internet access for every person. This can take the form of:^{^[26]}

● A mandatorily "leaky" 'walled garden':

○ The first-degree of all hyperlinks from the zero-rated OTT service are also free.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers during specified hours.

○ The zero-rated OTT service provider has to mandatorily provide free access to the whole of the World Wide Web to all its customers based on amount on usage of the OTT service.^{^[27]}

● Zero-rating of all Web traffic

○ In exchange for viewing of advertisements

○ In exchange for using a particular Web browser

○ At low speeds on 3G, or on 2G.

3.3.3.2. What kinds of zero-rating are good

The majority of the forms of zero-rating covered in this section are content or source/destination-based zero-rating. Only some of the options covered in the "other options for zero-rating" section cover content-agnostic zero-rating models. Content-agnostic zero-rating models are not harmful, while content-based zero-rating models always harm, though to varying degrees, the openness of the Internet / diversity of OTTs, and to varying degrees increase access to Internet-based services. Accordingly, here is an hierarchy of desirability of zero-priced zero-rating, from most desirable to most harmful:

1. Content- & source/destination-agnostic zero-priced zero-rating.^{^[28]}

2. Content- & source/destination-based non-zero-priced zero-rating, without any commercial deals, chosen freely & paid for by users. ^{^[29]}

3. Content- & source/destination-based zero-priced zero-rating, without any commercial deals, with full transparency. ^{^[30]}

4. Content- & source/destination-based zero-priced zero-rating, on the basis of commercial deal with partial zero-priced access to all content, with non-discriminatory access to the same deal by all with full transparency.^{^[31]}

5. Content- & source/destination-based zero-priced zero-rating, on the basis of a non-commercial deal, without any benefits monetary or otherwise, flowing directly or indirectly from the provider of the zero-rated content to the ISP, with full transparency. ^{^[32]}

6. Content- & source-destination-based zero-priced zero-rating, across all telecom networks, with standard pricing, non-discriminatory access, and full transparency.

7. Content- & source-destination-based zero-priced zero-rating, with standard pricing, non-discriminatory access, and full transparency.

8. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and full transparency.

9. Content- & source-destination-based zero-priced zero-rating, with non-discriminatory access, and transparency to the regulator.

10. Content- & source-destination-based zero-priced zero-rating, without any regulatory framework in place.

3.3.4 Cartels and Oligopoly

While cartels and oligopolies may have an impact on Net Neutrality, they are not problems that any set of anti-discrimination rules imposed on gatekeepers can fix. Further, cartels and oligopolies don't directly enhance the ability of gatekeepers to unjustly discriminate if there are firm rules against negative discrimination and price ceilings and floors on data caps are present for data plans. Given this, TRAI should recommend that this issue be investigated and the Competition Commission of India should take this issue up.

3.4 Reasonable Network Management Principles

Reasonable network management has to be allowed to enable the ISPs to manage performance and costs on their network. However, ISPs may not indulge in acts that are harmful to consumers in the name of reasonable network management. Below are a set of guidelines for when discrimination against classes of traffic in the name of network management are justified.

● Discrimination between classes of traffic for the sake of network management should only be permissible if:

○ there is an intelligible differentia between the classes which are to be treated differently, and

○ there is a rational nexus between the differential treatment and the aim of such differentiation, and

○ the aim sought to be furthered is legitimate, and is related to the security, stability, or efficient functioning of the network, or is a technical limitation outside the control of the ISP^{^[33]}, and

○ the network management practice is the least harmful manner in which to achieve the aim.

● Provision of specialized services (i.e., "fast lanes") is permitted if and only if it is shown that

○ The service is available to the user only upon request, and not without their active choice, and

○ The service cannot be reasonably provided with "best efforts" delivery guarantee that is available over the Internet, and hence requires discriminatory treatment, or

○ The discriminatory treatment does not unduly harm the provision of the rest of the Internet to other customers.

These principles are only applicable at the level of ISPs, and not on access gateways for institutions that may in some cases be run by ISPs (such as a university network, free municipal WiFi, at a work place, etc.), which are not to be regulated as common carriers.

These principles may be applied on a case-by-case basis by a regulator, either suo motu or upon complaint by customers.

^{^[1]} Report of the Special Rapporteur on the Promotion and Protection of the right to freedom of opinion and expression, (19 May 2011), http://www2.ohchr.org/english/bodies/hrcouncil/docs/17session/A.HRC.17.27_en.pdf.

^{^[2]} Available at http://www.trai.gov.in/WriteReadData/userfiles/file/NTP%202012.pdf.

^{^[3]} IAMAI, India to Cross 300 million internet users by Dec 14, (19 November, 2014), http://www.iamai.in/PRelease_detail.aspx?nid=3498&NMonth=11&NYear=2014.

^{^[4]} World Economic Forum, The Global Information Technology Report 2015, http://www3.weforum.org/docs/WEF_Global_IT_Report_2015.pdf.

^{^[5]} http://www.ictregulationtoolkit.org/4.1#s4.1.1

^{^[6]} See R.U.S. Prasad, The Impact of Policy and Regulatory Decisions on Telecom Growth in India (July 2008), http://web.stanford.edu/group/siepr/cgi-bin/siepr/?q=system/files/shared/pubs/papers/pdf/SCID361.pdf.

^{^[7]} 1973 AIR 106

^{^[8]} 1962 AIR 305

^{^[9]} "When ISPs go beyond their traditional use of IP headers to route packets, privacy risks begin to emerge." Alissa Cooper, How deep must DPI be to incur privacy risk? http://www.alissacooper.com/2010/01/25/how-deep-must-dpi-be-to-incur-privacy-risk/

^{^[10]} Richard T.B. Ma & Vishal Misra, The Public Option: A Non-Regulatory Alternative to Network Neutrality, http://dna-pubs.cs.columbia.edu/citation/paperfile/200/netneutrality.pdf

^{^[11]} Mobile number portability was launched in India on January 20, 2011 in the Haryana circle. See http://indiatoday.intoday.in/story/pm-launches-nationwide-mobile-number-portability/1/127176.html . Accessed on April 24, 2015.

^{^[12]} For a comprehensive list of all TRAI interconnection regulations & subsequent amendments, see http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[13]} See Telecommunication Interconnection Usage Charges (Eleventh Amendment) Regulations, 2015 (1 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[14]} Article 30 of the Universal Service Directive, Directive 2002/22/EC.

^{^[15]} See Telecommunication Mobile Number Portability (Sixth Amendment) Regulations, 2015 (3 of 2015), available at http://www.trai.gov.in/Content/Regulation/0_1_REGULATIONS.aspx.

^{^[16]} The Telecommunication (Broadcasting and Cable) Services (Seventh) (The Direct to Home Services) Tariff Order, 2015 (2 of 2015).

^{^[17]} Section 8, Cable Television Networks Act, 1995.

^{^[18]} TRAI writes new rules for Cable TV, Channels, Consumers, REAL TIME NEWS, (August 11, 2014), http://rtn.asia/rtn/233/1220_trai-writes-new-rules-cable-tv-channels-consumers.

^{^[19]} An initial requirement for all multi system operators to have a minimum capacity of 500 channels was revoked by the TDSAT in 2012. For more details, see http://www.televisionpost.com/cable/msos-not-required-to-have-500-channel-headends-tdsat/.

^{^[20]} Aparna Ghosh, Bharti SoftBank Invests $14 million in Hike, LIVE MINT, (April 2, 2014), http://www.livemint.com/Companies/nI38YwQL2eBgE6j93lRChM/Bharti-SoftBank-invests-14-million-in-mobile-messaging-app.html.

^{^[21]} Mike Masnick, Can We Kill This Ridiculous Shill-Spread Myth That CDNs Violate Net Neutrality? They Don't, https://www.techdirt.com/articles/20140812/04314528184/can-we-kill-this-ridiculous-shill-spread-myth-that-cdns-violate-net-neutrality-they-dont.shtml.

^{^[22]} Mathew Carley, What is Hayai's stance on "Net Neutrality"?, https://www.hayai.in/faq/hayais-stance-net-neutrality?c=mgc20150419

^{^[23]} Helani Galpaya & Shazna Zuhyle, South Asian Broadband Service Quality: Diagnosing the Bottlenecks, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1979928

^{^[24]} DTH players told to offer pay channels on la carte basis, HINDU BUSINESS LINE (July 22, 2010), http://www.thehindubusinessline.com/todays-paper/dth-players-told-to-offer-pay-channels-on-la-carte-basis/article999298.ece.

^{^[25]} The Telecommunication (Broadcasting and Cable) Services (Fourth) (Addressable Systems) Tariff Order, 2010.

^{^[26]} These suggestions were provided by Helani Galpaya and Sunil Abraham, based in some cases on existing practices.

^{^[27]} This is what is being followed by the Jana Loyalty Program: http://www.betaboston.com/news/2015/05/06/with-a-new-loyalty-program-mobile-app-marketplace-jana-pushes-deeper-into-the-developing-world/

^{^[28]} Example: free Internet access at low speeds, with data caps.

^{^[29]} Example: special "packs" for specific services like WhatsApp.

^{^[30]} Example: zero-rating of all locally-peered settlement-free traffic.

^{^[31]} Example: "leaky" walled gardens, such as the Jana Loyalty Program that provide limited access to all of the Web alongside access to the zero-rated content.

^{^[32]} Example: Wikipedia Zero.

^{^[33]} A CGNAT would be an instance of such a technology that poses network limitations.

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

Rebuttal of DIT's Misleading Statements on New Internet Rules

pranesh — 2012-07-11T13:18:04Z

The press statement issued on May 11 by the Department of Information Technology (DIT) on the furore over the newly-issued rules on 'intermediary due diligence' is misleading and is, in places, plainly false. We are presenting a point-by-point rebuttal of the DIT's claims.

In its press release on Wednesday, May 11, 2011, the DIT stated:

The attention of Government has been drawn to news items in a section of media on certain aspects of the Rules notified under Section 79 pertaining to liability of intermediaries under the Information Technology Act, 2000. These items have raised two broad issues. One is that words used in Rules for objectionable content are broad and could be interpreted subjectively. Secondly, there is an apprehension that the Rules enable the Government to regulate content in a highly subjective and possibly arbitrary manner.

There are actually more issues than merely "subjective interpretation" and "arbitrary governmental regulation".

The Indian Constitution limits how much the government can regulate citizens’ fundamental right to freedom of speech and expression. Any measure afoul of the constitution is invalid.
Several portions of the rules are beyond the limited powers that Parliament had granted the Department of IT to create interpretive rules under the Information Technology Act. Parliament directed the Government to merely define what “due diligence” requirements an intermediary would have to follow in order to claim the qualified protection against liability that Section 79 of the Information Technology Act provides; these current rules have gone dangerously far beyond that, by framing rules that insist that intermediaries, without investigation, has to remove content within 36-hours of receipt of a complaint, keep records of a users' details and provide them to law enforcement officials.

The Department of Information Technology (DIT), Ministry of Communications & IT has clarified that the Intermediaries Guidelines Rules, 2011 prescribe that due diligence need to be observed by the Intermediaries to enjoy exemption from liability for hosting any third party information under Section 79 of the Information Technology Act, 2000. These due diligence practices are the best practices followed internationally by well-known mega corporations operating on the Internet. The terms specified in the Rules are in accordance with the terms used by most of the Intermediaries as part of their existing practices, policies and terms of service which they have published on their website.

We are not aware of any country that actually goes to the extent of deciding what Internet-wide ‘best practices’ are and actually converting those ‘best practices’ into law by prescribing a universal terms of service that all Internet services, websites, and products should enforce.
The Rules require all intermediaries to include the government-prescribed terms in an agreement, no matter what services they provide. It is one thing for a company to choose the terms of its terms of service agreement, and completely another for the government to dictate those terms of service. As long as the terms of service of an intermediary are not unlawful or bring up issues of users’ rights (such as the right to privacy), there is no reason for the government to jump in and dictate what the terms of service should or should not be.
The DIT has not offered any proof to back up its assertion that 'most' intermediaries already have such terms. Google, a ‘mega corporation’ which is an intermediary, does not have such an overarching policy. Indiatimes, another ‘mega corporation’ intermediary, does not either. Just because a company like Rediff and Blizzard's World of Warcraft have some of those terms does not mean a) that they should have all of those terms, nor that b) everyone else should as well.

In attempting to take different terms of service from different Internet services and products—the very fact of which indicate the differing needs felt across varying online communities—the Department has put in place a one-size-fits-all approach. How can this be possible on the Internet, when we wouldn't regulate the post-office and a book publisher under the same rules of liability for, say, defamatory speech.
There is also a significant difference between the effect of those terms of service and that of these Rules. An intermediary-framed terms of service suggest that the intermediary may investigate and boot someone off a service for violation, while the Rules insist that the intermediary simply has to mandatorily remove content, keep records of users' details and provide them to law enforcement officials, else be subject to crippling legal liability.

So to equate the effect of these Rules to merely following ‘existing practices’ is plainly wrong. An intermediary—like the CIS website—should have the freedom to choose not to have terms of service agreements. We now don’t.“In case any issue arises concerning the interpretation of the terms used by the Intermediary, which is not agreed to by the user or affected person, the same can only be adjudicated by a Court of Law. The Government or any of its agencies have no power to intervene or even interpret. DIT has reiterated that there is no intention of the Government to acquire regulatory jurisdiction over content under these Rules. It has categorically said that these rules do not provide for any regulation or control of content by the Government.”

The Rules are based on the presumption that all complaints (and resultant mandatory taking down of the content) are correct, and that the incorrectness of the take-downs can be disputed in court. Why not just invert that, and presume that all complaints need to be proven first, and the correctness of the complaints (instead of the take-downs) be disputed in court?

Indeed, the courts have insisted that presumption of validity is the only constitutional way of dealing with speech. (See, for instance, Karthikeyan R. v. Union of India, a 2010 Madras High Court judgment.)

Further, only constitutional courts (namely High Courts and the Supreme Court) can go into the question of the validity of a law. Other courts have to apply the law, even if it the judge believes it is constitutionally invalid. So, most courts will be forced to apply this law of highly questionable constitutionality until a High Court or the Supreme Court strikes it down.

What the Department has in fact done is to explicitly open up the floodgates for increased liability claims and litigation - which runs exactly counter to the purpose behind the amendment of Section 79 by Parliament in 2008.

“The Government adopted a very transparent process for formulation of the Rules under the Information Technology Act. The draft Rules were published on the Department of Information Technology website for comments and were widely covered by the media. None of the Industry Associations and other stakeholders objected to the formulation which is now being cited in some section of media.”

This is a blatant lie.

Civil society voices, including CIS, Software Freedom Law Centre, and individual experts (such as the lawyer and published author Apar Gupta) sent in comments. Companies such as Google, E2E Networks, and others had apparently raised concerns as well. The press has published many a cautionary note, including editorials, op-ed and articles in the Hindu, the Hoot, Medianama.com, and Kafila.com, well before the new rules were notified. We at CIS even received a 'read notification' from the email account of the Group Coordinator of the DIT’s Cyber Laws Division—Dr. Gulshan Rai—on Thursday, March 3, 2011 at 12:04 PM (we had sent the mail to Dr. Rai on Monday, February 28, 2011). We never received any acknowledgement, though, not even after we made an express request for acknowledgement (and an offer to meet them in person to explain our concerns) on Tuesday, April 5, 2011 in an e-mail sent to Mr. Prafulla Kumar and Dr. Gulshan Rai of DIT.

The process can hardly be called 'transparent' when the replies received from 'industry associations and other stakeholders' have not been made public by the DIT. Those comments which are public all indicate that serious concerns were raised as to the constitutionality of the Rules.

The Government has been forward looking to create a conducive environment for the Internet medium to catapult itself onto a different plane with the evolution of the Internet. The Government remains fully committed to freedom of speech and expression and the citizen’s rights in this regard.

The DIT has limited this statement to the rules on intermediary due diligence, and has not spoken about the controversial new rules that stifle cybercafes, and restrict users' privacy and freedom to receive information.

If the government is serious about creating a conducive environment for innovation, privacy and free expression on the Internet, then it wouldn’t be passing Rules that curb down on them, and it definitely will not be doing so in such a non-transparent fashion.

For more details visit https://cis-india.org/internet-governance/blog/rebuttal-dit-press-release-intermediaries

PUPFIP Bill

pranesh — 2011-08-20T15:15:08Z

A new bill which tries to promote innovation through privatization of public-funded research and is unnecessary, misguided, and will prove harmful to Indian research, innovation, and will harm the interests of taxpayers and consumers.

For more details visit https://cis-india.org/a2k/publications/pupfip

Proxies and VPNs: Why govt can't ban porn websites?

pranesh — 2015-09-13T08:26:17Z

The government's move to block more than 800 pornographic websites has led experts to question whether this latest attempt to police the internet is even feasible.

The article by Siladitya Ray was published in the Hindustan Times on August 3, 2015. Pranesh Prakash was quoted.

Internet service providers (ISPs) have confirmed they received letters from the Department of Telecommunications (DoT) on Saturday that directed them to block certain websites. But can the government stop users from visiting porn sites?

The answer seems to be no.

"It is extremely easy to circumvent these blocks, using virtual private networks (VPNs) and proxies that anonymise your traffic," said Pranesh Prakash, policy director at the Centre for Internet and Society in Bengaluru.

A cursory Google search on how to unblock porn websites throws up millions of how-tos and guides on using proxies and VPNs to get around restrictions set by authorities. All these services anonymise users’ web traffic by routing them through foreign servers.

According to data from Pornhub, one of the world's biggest porn sites, India ranks fifth for the most daily visitors to the website. Pornhub saw a total of 78.9 billion video views globally in 2014.

The government can try to keep up with proxies and block them too. But as proxies change on a daily basis and there are always dozens of functioning proxies to choose from across, blocking all of them will be a near impossible task.

Tor, an anonymity network, is also a popular way to surf blocked sites.

But is it legal to circumvent blocks put in place by authorities by using VPNs and proxies?

There is no law in India that prohibits viewing pornography, experts say. Section 67 of the Information Technology Act only deals with "publishing obscene information in electronic form".

This provision has been interpreted as a measure to criminalise the posting of pornographic content online. However, accessing "obscene" content privately – such as within the four walls of a person’s home – is not illegal, say experts.

In July, while hearing a petition seeking the blocking of pornographic websites, Supreme Court Chief Justice HL Dattu wondered whether the court could restrain an adult from watching pornography within his home and described such a ban as a violation of Article 21 of the Constitution, which grants the right to personal liberty to its citizens.

But what about the legality of using VPNs and proxies? “There are no laws preventing the use of VPNs and proxies in India," said Prakash.

Are proxies and VPNs safe?

While the use of proxies and VPNs is very simple, they do come with their own set of problems. These services have access to all your browsing data and may push adware and other forms of malware.

Prakash advised that users should only choose services that are well known and have a good reputation.

"Sites like TorrentFreak put out annual lists of the top VPNs available," he said. These can be used as a guide to determine what services are safe.

For more details visit https://cis-india.org/internet-governance/news/hindustan-times-august-3-2015-siladitya-ray-proxies-and-vpns

pranesh — 2010-01-09T15:06:53Z

The version of the proposed Copyright Act amendments that was released for public comments in 2006. Archived here, since it has since been removed from the Indian Copyright Office's website.

For more details visit https://cis-india.org/a2k/publications/copyright-amendments-2006

Problems Remain with Standing Committee's Report on Copyright Amendments

pranesh — 2011-09-06T07:50:12Z

The Rajya Sabha Standing Committee on Human Resource Development (under which ministry copyright falls) recently tabled their report on the Copyright (Amendment) Bill, 2010 before Parliament. There is much to be applauded in the report, including the progressive stand that the Committee has taken on the issue of providing access by persons with disabilities. This post, however, will concern itself with highlighting some of the problems with that report, along with some very important considerations that got missed out of the entire amendment debate.

Fair Dealings and Intermediary Liability

The amendments make a number of changes to s.52(1) of the Act, including to the fair dealing provisions under s.52(1)(a), and introduction of two new sub-sections (s.52(1)(b) and (c)) with s.52(1)(c) introducing a modicum of protection for intermediaries involved in "transient and incidental storage for the purpose of providing electronic links, access or integration" (but only if the copyright holder has not expressed any objections, and if the intermediary believes it to be non-infringing). The provision allows the intermediary to ask the person complaining against it to provide a court order within 14 days, since the intermediary is in no position to determine the judicial question of whether the copyright holder holds copyright and if the third party has violated that copyright. However this provision was opposed tooth and nail by the copyright holders' associations that dominated the representations, while intermediaries and consumers remained woefully under-represented before the Standing Committee.

Predictably, the Standing Committee dealt a blow against intermediaries and consumers by asking the government to review the "viability of the duration of 14 days... by way of balancing the views of the stakeholders as well as the legal requirement in the matter". They recommended a relatively minor change of changing the phrase "transient and incidental" to "transient or incidental". By doing this, they failed to address the concerns raised by Yahoo India, Google India, and also failed to acknowledge the submissions made by 22 civil society organizations (available here: http://cis-india.org/advocacy/ipr/upload/copyright-bill-submission).

Technological Protection Measures and Rights Management Information Provision

The amendments aim to bring about two new criminal provisions, and seek to make circumvention of technological protection measures (digital locks) and alteration of rights management information (which are embedded into digital files and signals) illegal.

The Standing Committee heard a number of organizations on technological protection measures, which we had argued are harmful as they a) cannot distinguish between fair dealing and infringement, and b) are harmful even if a legal right to circumvent for fair dealings is provided because the technological means to circumvent doesn't necessarily exist. (Imagine a law that says that breaking a lock using lock-breaking implements isn't a crime if it is done to enter into your own house. Such a law doesn't help you if you can't get your hands on the lock-breaking implements in the first place.) The Indian Broadcasting Federation, the Business Software Alliance, and the Motion Picture Association (which represents six studios, all American), the Indian Music Industry, and the Indian Performing Right Society Limited all felt that this provision did not go far enough. The Motion Picture Association, for instance, wants not just controls over that which copyright covers

Yahoo India and Google India on the other hand thought that provision went too far. Google made it clear that they thought having criminal repercussions for circumvention was clearly disproportionate. Thus, a clearer split is established between old media companies; the old media companies clutching on to straws that they feel will save them from adapting their business practices to the digital environment, and online companies that understand the digital environment better having a markedly different idea.

Currently section 65B (read with the definition of "Rights Management Information" in section 2(xa)) of the proposed amendments ensures that Rights Management Information cannot be used to spy on users. The Indian Reprographic Rights Organization however believes that this is wrong: it believes that copyright owners should have the ability to track users without their consent. Yahoo India, on the other hand, believes that this is a harmful provision, and state that "the imposition of criminal and monetary liability could adversely affect consumers", and cites the instance of difficulties that would be faced by "entities engaged in creating copies of any copyright material into a format specially designed for persons suffering from disability" because of the language of the provision that requires knowledge instead of intention. The committee responds to this by summing up with a tautology, stating:

The Committee is of the view that the parties responsible for distribution or broadcasting or communication to the public through authorized licence from the author or rights holder and who do not remove any rights management information deliberately for making unauthorized copies need not worry about this provision as long as their act is as per the framework of this provision.

Implications of Standing Committee's Report Unclear

Many of the comments made by the Standing Committee are unclear. On compulsory licensing, the committee states:

The Committee also takes note of the proposed amendments in section 31 A relating to compulsory licence in unpublished Indian works. The provision of compulsory licence for orphaned works available under this section is proposed to be extended to published works as well. Like in the case of section 31, extension of applicability to all foreign works (including film, DVDs, etc.) could be violative of Berne Convention and TRIPS Agreement and seem to fall short of the minimum obligations imposed by such instruments. The Committee is of the view that future implication of proposed amendment in Section 31A vis-à-vis India's commitment to international agreement needs to be free from any ambiguity so as to prevent any negative fallout.

However, the usage of the phrase "could be violative" leaves it unclear whether the Standing Committee believes the proposed amendments to be violative of the TRIPS Agreement or not. All that the Standing Committee says is that the provision needs to be unambiguous, and that TRIPS compliance must be ensured. That word of caution does not directly rebut the government's contention that the proposed amendment is TRIPS-compliant.

Similarly, the Committee's views on increase of copyright term for cinematograph films is unclear. While commenting on the clause that introduces the term increase (as part of the proposal to include the principal director as an author of the film along with the producer), the Committee states:

It, therefore, recommends that the proposal to include principal director as author of the film along with producer may be dropped altogether.

While this presumably means that the proposal to increase term is also being rejected, that is not made clear by the Committee's comments.

Increased Copyright Duration, Expansive Moral Rights and Other Negative Changes

In the submission of CIS and twenty-one other civil society organizations to the Standing Committee, we highlighted all of the below concerns. However, our submission was not tabled before the Standing Committee for reasons unknown to us.

WCT and WPPT compliance: India has not signed either of these two treaties, which impose TRIPS-plus copyright protection, but without any corresponding increase in fair dealing / fair use rights. Given that the Standing Committee has recommended against some aspects of WCT compliance (such as the move to change "hire" to "commercial rental") and that without such changes India cannot be a signatory to the WCT, it is unclear why other forms of WCT compliance (such as TPMs) should be implemented.
Increase in duration of copyright: The duration of copyright of photographs and video recordings is sought to be increased. The term of copyright for photographs is being increased from sixty years from creation to sixty years from death of the photographer. This will significantly reduce the public domain, which India has been arguing for internationally, especially through its push for the Development Agenda at the World Intellectual Property Organization.
Moral rights: Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without requisite safeguards.
Version recordings: The amendments make cover version much more difficult to produce, and while the Standing Committee has addressed the concerns of some in the music industry, it hasn't addressed the concerns of artists and consumers.

Criminal Provisions, Government Works, and Other Missed Opportunities

The following important changes should have been made by the government, but haven't. While on some issues the Standing Committee has gone beyond the proposed amendments, it hasn't touched upon any of the following, which we believe are very important changes that are required to be made.

Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.
Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection would except "the reproduction, communication to the public, or publication of any government work" as being non-infringing uses.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled.
Fair dealing and fair use: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions.

For more details visit https://cis-india.org/a2k/blogs/sc-report-on-amendments

Centre for Internet and Society

Response by the Centre for Internet and Society to the Draft Proposal to Transition the Stewardship of the Internet Assigned Numbers Authority (IANA) Functions from the U.S. Commerce Department’s National Telecommunications and Information Administration

Response by Knowledge Commons

Resources

PUPFIP

News-related/General Coverage

Scientific Culture

Analytical Pieces

Bayh-Dole

Technology Transfer

Scientific Culture

Evaluative Pieces

General Resources

IP Alternatives

Research Project on Open Video in India

Project Timeline

Summary of Outputs

Survey Paper

Basic Assumptions

Suggested Methodology

Next Steps

Representation by Knowledge Commons

Representation by Knowledge Commons

Report on the Fourth Internet Governance Forum for Commonwealth IGF

DAY 0 (Saturday, November 14, 2009)

DAY 0 (Sunday, November 15, 2009)

DAY 2 (Monday, November 16, 2009)

Day 3 (Tuesday, November 17, 2009)

Day 4 (Wednesday, November 18, 2009)

Stock-Taking

General Reflections

Appendix I: Tweets and Dents During the IGF

Report on Open Standards for GISW2008

Definition

The controversy

The importance

Policy implications

References

Report on Open Standards for GISW 2008

Regulatory Perspectives on Net Neutrality

1. Why should we regulate the telecom sector?

2. Why should we regulate Net Neutrality? And whom should we regulate?

3. How should we regulate Net Neutrality?

3.1. What concerns does Net Neutrality raise? What harms does it entail?

3.1.1 Net Neutrality and human rights

3.2 What conditions and factors may change these concerns and the regulatory model we should adopt?

3.3 How should we deal with anti-competitive practices?

3.3.1 Lowering Switching Costs

3.3.2 Anti-competitive Practices

3.3.3 Zero-rating

3.3.3.1 Motivations for Zero-Rating

3.3.3.1.1 Corporate Social Responsibility / Incentivizing Customers to Move Up Value Chain

3.3.3.1.2 Passing on ISP Savings / Incentivizing Customers to Lower ISP's Cost

3.3.3.1.3 Unbundling Internet into Services ("Special Packs")

3.3.3.1.4 Earning Additional Revenues from Content Providers

3.3.3.1.5 Market Options for OTT-Paid Zero-Rating

3.3.3.1.6 Other options for zero-rating

3.3.3.2. What kinds of zero-rating are good

3.3.4 Cartels and Oligopoly

3.4 Reasonable Network Management Principles

Rebuttal of DIT's Misleading Statements on New Internet Rules

PUPFIP Bill

Proxies and VPNs: Why govt can't ban porn websites?

Proposed Copyright Amendments from 2006

Problems Remain with Standing Committee's Report on Copyright Amendments

Fair Dealings and Intermediary Liability

Technological Protection Measures and Rights Management Information Provision

Implications of Standing Committee's Report Unclear

Increased Copyright Duration, Expansive Moral Rights and Other Negative Changes

Criminal Provisions, Government Works, and Other Missed Opportunities