Centre for Internet and Society

Clarification on the Information Security Practices of Aadhaar Report

Amber Sinha and Srinivas Kodali — 2018-11-05T12:08:06Z

We are issuing a second clarificatory statement on our report titled “Information Security Practices of Aadhaar (or lack thereof): A documentation of public availability of Aadhaar numbers with sensitive personal financial information” published on May 1, 2017.

The report concerned can be accessed here, and the first clarificatory statement (dated May 16, 2017) can be accessed here.

This clarificatory statement is being issued in response to reports that misrepresent our research. In light of repeated questions we have received, which seem to emanate from a misunderstanding of our report, we would like to make the following clarifications.

Our research involved documentation and taking illustrative screenshots (included in our report) of public webpages on the four government websites listed in our report. These screenshots were taken to demonstrate that the vulnerability existed.
The figure of 130-135 million Aadhaar Numbers quoted in our Report are, as clearly stated, derived directly by adding the aggregate numbers (of beneficiaries/individuals whose data were listed in the three government websites concerned) and published by the portals themselves in the MIS reports publicly available on the portals. The numbers are as follows:
- 10,97,60,343 from NREGA,
- 63,95,317 from NSAP, and
- 2,05,60,896 from Chandranna Bima (screenshots included in the report).
We did not arrive at this number by downloading data ourselves but by adding the figures on the government websites. To our knowledge, no harm, financial or otherwise has been caused to anyone due to the public availability. Further, it must be noted that we published the report only after ascertaining that the websites in questions had masked or removed the data. Therefore our report only points to the possibility that there could be harm caused by malicious actors before the data was taken down. However, we are not aware of any such cases of exploitation, nor do we suggest so anywhere in our report.

We sincerely hope that this clarification helps with a clearer comprehension of the argument and implications of the said report. We urge those who are using our report in their research to reach out to us to prevent the future misinterpretation of the report.

— Amber Sinha and Srinivas Kodali

For more details visit https://cis-india.org/internet-governance/blog/clarification-on-the-information-security-practices-of-aadhaar-report

Pervasive Technologies: Access to Knowledge in the Market Place — A Presentation by Sunil Abraham

sunil — 2013-02-13T07:05:15Z

The 2012 Global Congress on Intellectual Property and the Public Interest was organized in Rio de Janeiro from December 15 to 17, 2012. The Centre for Internet & Society partnered FGV, Washington College of Law, the American Embassy, African Information Research and Training and International Centre for Trade and Sustainable Development in this event. Sunil Abraham made a presentation on Pervasive Technologies on the opening day, December 15, 2012.

Sunil Abraham presented on 13 different smartphones from the Indian market such as: The Classroom in a Box, The Supercharger, The Networker, The Linguist, TV on the Go, The Spy, The Semi-Smartphone, The Trendy, The Boombox, 3D, The Mighty Mini, The Pianist, and the Indian Experience.

Most of the above devices are manufactured in China and imported into India through local companies for domestic consumption and made available for its 900 million mobile subscribers.

Download the presentation [PDF, 4.61 Mb]

For more details visit https://cis-india.org/a2k/blogs/access-to-knowledge-in-market-place

CIS's Closing Statement at Marrakesh on the Treaty for the Blind

pranesh — 2013-07-03T12:01:25Z

Pranesh Prakash read out an abridged version of this statement as his closing remarks in Marrakesh, where the WIPO Treaty for the Blind (the "Marrakesh Treaty") has been successfully concluded. The Marrakesh Treaty aims to facilitate access to published works by blind persons, persons with visual impairment, and other print disabled persons, by requiring mandatory exceptions in copyright law to enable conversions of books into accessible formats, and by enabling cross-border transfer of accessible format books.

Thank you, Mr. President.

I am truly humbled to be here today representing the Centre for Internet and Society, an Indian civil society organization. If I may assume the privilege of speaking on behalf of my blind colleagues at CIS who led much of our work on this treaty, and the many blindness organizations we have been working with over the past five years who haven't the means of being here today, I would like to thank you and all the delegates here for this important achievement. And especially, I would like to thank the World Blind Union and Knowledge Ecology International who renewed focus on this issue more than 2 decades after WIPO and UNESCO first called attention to this problem and created a "Working Group on Access by the Visually and Auditory Handicapped to Material Reproducing Works Produced by Copyright".

While doing so, I would like to remember my friend Rahul Cherian — a young, physically impaired lawyer from India — who co-founded Inclusive Planet, was a fellow with the Centre for Internet and Society, and was a legal adviser to the World Blind Union. He worked hard on this treaty for many years, but very unfortunately did not live long enough to see it becoming a reality. His presence here is missed, but I would like to think that by concluding this treaty, all the distinguished delegations here managed to honour his memory and work.

I am grateful to all the distinguished delegations here for successfully concluding a reasonably workable treaty, but especially those — such as Brazil, India, Ecuador, Nigeria, Uruguay, Egypt, South Africa, Switzerland, and numerous others — who realized they were negotiating with blind people's lives, and regarded this treaty as a means of ensuring basic human rights and dignity of the visually impaired and the print disabled, instead of regarding it merely as "copyright flexibility" to be first denied and then grudgingly conceded. The current imbalance in terms of global royalty flows and in terms of the bargaining strength of richer countries within WIPO — many of who strongly opposed the access this treaty seeks to facilitate right till the very end — is for me a stark reminder of colonialism, and I see the conclusion of this treaty as a tiny victory against it.

It is historic that today WIPO and its members have collectively recognized in a treaty that copyright isn't just an "engine of free expression" but can pose a significant barrier to access to knowledge. Today we recognize that blind writers are currently curtailed more by copyright law than protected by it. Today we recognize that copyright not only may be curtailed in some circumstances, but that it must be curtailed in some circumstances, even beyond the few that have been listed in the Berne Convention. One of the original framers of the Berne Convention, Swiss jurist and president, Numa Droz, recognized this in 1884 when he emphasized that "limits to absolute protection are rightly set by the public interest". And as Debabrata Saha, India's delegate to WIPO during the adoption of the WIPO Development Agenda noted, "intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare."

When copyright doesn't serve public welfare, states must intervene, and the law must change to promote human rights, the freedom of expression and to receive and impart information, and to protect authors and consumers. Importantly, markets alone cannot be relied upon to achieve a just allocation of informational resources, as we have seen clearly from the book famine that the blind are experiencing. Marrakesh was the city in which, as Debabrata Saha noted, "the damage [of] TRIPS [was] wrought on developing countries". Now it has redeemed itself through this treaty.

This treaty is an important step in recognizing that exceptions and limitations are as important a part of the international copyright acquis as the granting of rights to copyright holders. This is an important step towards fulfilling the WIPO Development Agenda. This is an important step towards fulfilling the UN Convention on the Rights of Persons with Disabilities. This is an important step towards fulfilling Article 27 of the Universal Declaration of Human Rights, Article 15 of the International Covenant on Economic Social and Cultural Rights and Article 30 of the UN Convention on Persons with Disabilities, all of which affirm the right of everyone — including the differently-abled — to take part in cultural life of the community.

While this treaty is an important part of overcoming the book famine that the blind have faced, the fact remains that there is far more that needs to be done to bridge the access gap faced by persons with disabilities, including the print disabled.

We need to ensure that globally we tackle societal and economic discrimination against the print disabled, as does the important issue of their education. This treaty is a small but important cog in a much larger wheel through which we hope to achieve justice and equity. And finally, blind people can stop being forced to wear an eye-patch and being pirates to get access to the right to read.

I also thank the WIPO Secretariat, Director General Francis Gurry, Ambassador Trevor Clark, Michelle Woods, and the WIPO staff for pushing transparency and inclusiveness of civil society organizations in these deliberations, in stark contrast to the way many bilateral and plurilateral treaties such as Anti-Counterfeiting Trade Agreement, the India-EU Free Trade Agreement, and the Trans-Pacific Partnership Agreement have been, and are being, conducted. I hope we see even more transparency, and especially non-governmental participation in this area in the future.

I call upon all countries, and especially book-exporting countries like the USA, UK, France, Portugal, and Spain to ratify this treaty immediately, and would encourage various rightholders organizations, and the MPAA who have in the past campaigned against this treaty and now welcome this treaty, to show their support for it by publicly working to get all countries to ratify this treaty and letting us all know about it.

I congratulate you all for the "Miracle of Marrakesh", which shows, as my late colleague Rahul Cherian said, "when people are demanding their basic rights, no power in the world is strong enough to stop them getting what they want".

For more details visit https://cis-india.org/a2k/blogs/cis-closing-statement-marrakesh-treaty-for-the-blind

Indian Language Wikipedia Statistics (September 2012 – April 2013)

T.Vishnu Vardhan, Nitika Tandon and Subhashish Panigrahi — 2013-08-23T01:48:16Z

The Access to Knowledge team carried out a quantitative analysis to identify trends and growth patterns in Indian Language Wikipedias over the time period from September 2012 to April 2013.

It is difficult for the CIS-A2K programme to either take direct credit for the growth or direct blame for the lack of it in the Indian language Wikimedia projects. However, we believe that we have been one of the factors — and sometimes a key factor — in impacting the growth of the Wikimedia projects and communities in India since the commencement of the project.

Though the A2K programme has done some amount of work with almost all Indian language Wikipedias, the A2K team has had relatively more involvement in 10 Indic languages: Assamese, Bengali, Gujarati, Hindi, Kannada, Malayalam, Marathi, Odia, Punjabi and Telugu.

In addition to this based on the various outreach work done by A2K we have attempted to present an analysis of direct new Wikipedia users that have emerged in languages impacted by the A2K programme, keeping in mind that community mobilisation will always be an autonomous activity to some extent.


Graph 1: Growth of Articles in Indian Language Wikipedias from September 2012 to April 2013

The growth momentum in Indian languages over the eight month period from September 2012 to April 2013 looks healthy.
Some language Wikipedias have been growing at a phenomenal rate than others in terms of percentage change since September 2012.
Assamese, Punjabi, Kannada and Odia Wikipedias have a growth rate of 58 per cent, 55 per cent, 30 per cent and 26 per cent respectively. These were the top four Indian language Wikipedia projects during the eight month period.
In terms of absolute number of articles, Tamil, Malayalam, Kannada and Hindi Wikipedias have grown by about 4,200; 3,600; 3,300; and 2,300 articles respectively.
However, given the small size of the Wikipedia communities in Assamese, Punjabi, Kannada and Odia (as given in Graph 2 below) the growth achieved by them is much commendable and all efforts have to be put to ensure that this momentum continues by strengthening these communities and also expanding them.


Graph 2: Active Editors in Indian Language Wikipedias from September 2012 to April 2013

There is a fluctuation in the number of active editors in majority of the Indian language Wikipedias, except for Punjabi Wikipedia, which has seen a consistent growth. Starting from July 2012, the Wikimedia India Programs Team began working with the Punjabi community, an activity which we have continued at the A2K programme.
The active editors on Hindi, Marathi and Sanskrit Wikipedias have been consistently coming down, which is a cause of concern.
It is important to note that Kannada and Telugu Wikipedias where the number of Active Editors were in a declining trend as of September 2012 have shown a remarkable turnaround. The A2K programme has spent the last 3-4 months working closely with both the Kannada and Telugu communities.
Overall the active editors on Malayalam Wikipedia have crossed the 100 mark numerous times, making it the first Indian language Wikipedia to reach this benchmark.
Looking at the trends Tamil Wikipedia may soon reach the 100 active editor mark.
Even Bengali Wikipedia community could cross 100 active editors if concerted efforts are put in.
The Assamese Wikipedia, which received support from A2K programme until January 2013, had a consistent active editor population which was around 20 people. However, once the support from the A2K programme dwindled a declining trend (since February 2013) has set in. This is worrying as it gives rise to the possibility of building dependencies through the A2K programme. Going forward we need to address this and rectify by creating self-sustaining momentum in our outreach work that lasts beyond our involvement.


Graph 3: Monthly growth of New Editors on Indian Language Wikipedias from September 2012 to April 2013

On an average 96 new editors have joined Indian language Wikipedias every month.
Bengali, Hindi, Malayalam and Tamil Wikipedias have consistently seen more than 10 new editors joining every month.
Assamese, Odia and Sanskrit Wikipedias did have many new editors joining.
A total of 673 new people have become editors for Indian language Wikipedia since September 2012.
However, the conversion rate of new editors into active editors is still a challenge across all Indian language Wikipedias.


Graph 4: Snapshot of “Page Views” of Indian Language Wikipedias in September 2012 & March 2013

Overall the “Page View” trends of Indian Language Wikipedias look positive.
Bengali, Odia and Punjabi Wikipedias have shown the highest percentage growth in page views since August 2012.
In absolute numbers Bengali Wikipedia has seen a spectacular growth of 14,00,000  page-views, Marathi and Tamil Wikipedias witnessed a growth of about 10,00,000 and 8,00,000 page-views respectively.
These clearly indicate the demand for knowledge and information in Indian languages on the internet.

In the below given Graph 5, we have also looked at the direct impact the A2K programme had in cultivating new editors on Indian language Wikipedias through various outreach programmes conducted during September 2012 to April 2013.

It should be noted that a total of 1,275 participants were reached out by the A2K programme. However, the username data for more than 700 participants could not be ascertained, due to inefficient data collection and input. This includes participants giving wrong usernames, trouble with the handwriting of some of the participants, etc. We have already taken note of this issue and have put in measures to efficiently capture the new user data. Hence, we have only presented an analysis of 558 participants, whose usernames are valid.

Of this it can be noted that more than 120 users have done more than 5 edits, which is 21 per cent of the participants. Further, 24 participants have done more than 100 edits on English and various Indian language Wikipedias, which constitutes 4 per cent of the total participants that the A2K programme has reached out to.


Graph 5: Snapshot of “New editors from outreach” of English & Indian Language Wikipedias in September 2012 and March 2013

For more details visit https://cis-india.org/a2k/blogs/indian-language-wikipedia-statistics

Are Indian Consumer Laws Ready for the Digital Age?

vipul — 2013-08-08T11:52:40Z

The Economic and Social Council of the United Nations, recognizing the need for protection of the rights of consumers, drafted a set of model guidelines on consumer protection which were adopted by the General Assembly in 1985. The United Nations Guidelines for Consumer Protection (UNGCP) act as an international reference point of the consumer movement, however since it has been over a quarter of a century since they were first drafted, there is a strong argument for revising them to bring them in line with new developments in technology and business practices.

It is for this reason that that United Nations Conference on Trade and Development has undertaken a revision of the UNGCP. Consumers International, an international consumer rights organization has along with CIS and other groups been trying to represent the voice of consumers at the negotiations for this revision. As part of this effort, Consumers International has produced a book titled "Updating the UN Guidelines for Consumer Protection for Consumers in the Digital Age". This blog has been produced through a filteration of the essence of some of the arguments and issues addressed in that book.

In December 2012 there was a news report that pegged the market for online commerce in India at roughly USD 14 billion,[1] which is why some of the poster children of online retail in India are getting stratospheric valuations even though they are yet to show any major profits, case in point, Flipkart had a valuation of around USD 800 million[2] in 2012 and is looking for an IPO in around three to four years. Such huge numbers give a sneak peek into the size and scope of the Indian e-commerce marketplace which begs the question, if there are so many transactions occurring in the online marketplace and since a large number of those transactions are between retailers and domestic consumers, then are there any specific laws out there protecting the interests of consumers in the online world.

Apart from the Information Technology Act, 2000 and various circulars by the Reserve Bank of India regarding online banking and money transfer activities which are more generic in nature trying to secure the online space as a whole, there are no specific laws that seek to protect consumers in the online space. However, that does not necessarily mean that the consumers are left without any recourse and in this post we shall examine whether it is possible to use the Consumer Protection Act, 1986 to protect consumer rights in the online environment as well.

The Consumer Protection Act, 1986 (“COPRA”) was enacted with the purpose of empowering consumers to take on the might of large corporations and preventing unscrupulous businessmen from taking undue advantage of the weak position which consumers are inherently placed in under the archaic Indian judicial system. It set up special tribunals, simpler procedures and enacted special provisions to help consumers get a better bargaining position vis-à-vis manufacturers and retailers, etc. However, since this law was enacted more than a quarter of a century ago and it is not entirely geared towards protecting consumer rights in the digital era. However, that does not mean it is entirely toothless in the online environment although it certainly needs some major provisions to come to grasp with the special circumstances and practices of the online marketplace, as the rest of the discussion will demonstrate.

For any transaction to come under the purview of COPRA, it should have the following three essential requirements:

There should be a ‘good’ or ‘service’ sold or provided to a consumer;
Such good or service must be ‘sold’ i.e. there must be a ‘sale’;
There should be a ‘defect’ in the good or ‘deficiency’ in the service;

We will now examine different types of e-commerce transactions and discuss whether they fulfill the requirements given above and therefore are amenable to the jurisdiction of COPRA.

There should be a ‘good’ or ‘service’
This is issue is not very complicated so far as digital purchases of physical items are concerned. Since a book or a mobile phone is considered as a ‘good’ then it will always be considered as a ‘good’ irrespective of whether it has been bought from a physical shop or an online retailer. However, the question does take on an air of some complexity when dealing with digital items such as mp3 files and software programmes. The General Clauses Act, 1897 states that all property which is not immovable property is considered as movable property. Since immovable property is defined as land and things attached to the land, therefore it is pretty clear that ‘computer software’ would in all likelihood be considered as movable property. Whether such movable property can be considered as a ‘good’ or not is a question which is yet to be tested in the courts of law in India, however it must be mentioned that in the context of the Sales Tax Act, the Supreme Court of India has held canned software to be a ‘good’. Laying down a test for determining whether a property is a ‘good’ or not, the Supreme Court in that case laid down the following test:

“A 'goods' may be a tangible property or an intangible one. It would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of transmitted, transferred, delivered, stored and possessed. If a software whether customized or non-customized satisfies these attributes, the same would be goods.”[3]

It must be emphasized again that the Supreme Court’s ruling was given in the context of the Sales Tax Act and it may not be accepted by a court deciding a case on COPRA. This is one issue which could and should be addressed under Indian laws to ensure that the large numbers of Indian consumers who buy items in the online marketplace are not left in a lurch and without the protection of the COPRA.

There must be a “Sale” of the good or service
Just as the previous issue, this question again can be simple when asked in relation to sale of physical goods using the internet but may not be so when talking about digital goods. When a physical item is purchased using the internet, a sale may be said to have occurred when the ownership of the good passes from the seller (online retailer) to the buyer (consumer) and the payment and delivery are complete. However, the question whether sale of software (here we are using this generic term for all sorts of computer programmes and data because the reasoning and legal analysis can be applied to both types of data) in an online environment would actually constitute a ‘sale’ requires a little more analysis. A huge problem in labeling online software purchases as a ‘sale’ is that most of these ‘sales’ are made in the form of a license. The manufacturers or retailers would argue that such an online purchase is not really a sale since the consumer usually only gets a license to use the product under strict conditions and does not buy the product as an owner, further this is really the industry standard when it comes to software purchases. The argument on the other side is that most websites advertise these products as an outside sale, for example, if you go to the Quick Heal antivirus website today and go to the page for “Home Users”[4] the page clearly shows a “Buy Now” tab and indicates the price at Rs. 1549/-. In fact in a number of cases you can actually buy the file containing the software without ever being shown the contractual terms of the agreement. These terms usually specify that you are only getting a license to use the product and may not have the right to resell or lend the product to others, rights which a traditional buyer of a product enjoys under law.

This issue was also discussed by a Full Bench of the Supreme Court of India in the case of Tata Consultancy Services v. State of Andhra Pradesh,[5] which ultimately held that the ‘sale’ of canned software (the term the court used for non customized software which is sold off the shelf) would be a sale of goods and therefore liable to be taxed under the Sales Tax Act. As is evident this decision was given in the context of the Sales Tax Act, but it could be argued that since tax statues are anyways supposed to be interpreted strictly and beneficial statutes such as the COPRA are required to be interpreted broadly, as per the accepted rules of legal interpretation, therefore it is possible that such a ‘license’ for computer software bought by an ordinary consumer could be considered as a ‘sale’ so as to bring the item within the ambit of the COPRA.

Here again we see that although there might be arguments which could be made to justify such licences for computer software as a ‘sale’, however it is still an untested issue and the COPRA certainly needs to take these issues into account if we want to protect the rights of the ever growing number of online consumers.

There should be a “defect” in the goods
If I order a pair of shoes from flpikart.com and the shoes arrive with one of the soles torn off, it’s a pretty straightforward case of there being a defect. In such a scenario unless the retailer has a specified return policy (which incidentally flipkart has) the consumer would have a right to approach the consumer forum to lodge a compliant. Similarly, if I buy a software from a manufacturer for my personal use and the file has a bug in it, it can fairly easily be considered as a defect since any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard or the good can be considered as a defect.

This is where things get a little interesting. What if we argue that stringent Digital Rights Management techniques by some online retailers are actually a defect in the goods since they do give the consumer all the rights that a buyer of goods would traditionally have. For example, if I buy an e-book with DRMs which restrict lending and on-selling, then two of my rights as a traditional book buyer are straightaway rescinded. Let us now examine the issue in the traditional context of the term ‘defect’.

If an article bought has any fault, imperfection or shortcoming in the quality, etc., then it would be considered as a defective good. For example, if a person buys a generator which is creating excessive noise, then it can be said that there is a shortcoming in the quality or the standard which is required to be maintained. A generator may supply electricity perfectly well and there may not be any fault at the time of running the machine but while operating the machine if it is creating more noise than the prescribed level, it can be said that there is a defect in the manufacture. An e-book with DRMs may also let a consumer read its contents but that may not be the only criteria to determine whether an item is defective or not. Using the traditional definition of a ‘buyer’, we can argue that a traditional buyer commonly has rights such as the right to resale, the right to make copies for personal use, the right to lend, the right to gift, etc., which may not exist in a an e-book with DRMs. Thus, an argument could be made that such measures constitute a ‘defect’ in the goods under the COPRA.

Again, this is only an argument and it is entirely possible that a court of law may reject such an argument, especially in light of the fact that the consumer has entered into a license agreement while completing the transaction which specifically grants the consumer only specific and limited rights in regard to the item being purchased. A possible counter to this argument could be that the agreement is generally long and verbose and is only presented to the consumer towards the end of the transaction when the consumer generally does not have the time to read it. Further, there is hardly ever a situation where the consumer can negotiate the terms of the contract, it is usually a standard form of contract which is heavily tilted in favour of the seller and the consumer is given no real choice in this regard. This is why in common law jurisdictions the courts have laid down certain principles or extra conditions which a standard form of contract has to abide by for it to be enforceable viz.,:

Sufficient notice: This principle requires that the major and specially the unusual terms in a contract should be displayed in a sufficiently highlighted manner so that a reasonable consumer is not likely to miss these unusual terms.[6]
Fundamental breach of contract: If the contract is so drafted that it would impose additional obligations on the consumer or restrict the liability and obligations of the seller in such a way that it would result in breaching any of the fundamental or main terms or obligations that one expects in such a contract, then such a contract may not be enforceable.[7]
Exclusion of unreasonable terms: Another type of protection that is available to consumers is the principle which seeks to exclude unreasonable terms from a contract i.e. a term which would defeat the very purpose of the contract or if it is repugnant to the public policy.[8]

Relying on the above principles of standard form contracts, it is possible to at least argue that highly strict and limiting terms which are put into a long verbose standard form contract which backs the Technology Protection Measures on a protected software may not be entirely enforceable, in which case the alleged consent of the consumer for such DRMs gets negated and the software with all its DRM limitations could be considered as ‘defective’.

Conclusion
From the discussion above it is clear that the nature of online transactions and digital goods presents certain unique problems for the legal regime which seeks to protect consumer rights. The law needs to be amended to take into account the unique circumstances of this fledging marketplace that exists online and ensure that the legal regime is fully capable of facing the challenges thrown up by e-commerce. One of the initiatives in this regard is the effort by Consumers International to include amendments in the Model United Nations Guidelines for Consumer Protection to include various provisions which deal with the online marketplace and its unique challenges as well as issues relating to access to knowledge (A2K). Perhaps it is time for the establishment in India to also take this into account and bring our quarter of a century old consumer protection legislation in line with the digital age.

[1]. http://goo.gl/Mh74vB

[2]. http://goo.gl/By5x3i

[3]. Tata Consultancy Services v. State of Andhra Pradesh, 5 November, 2004, available at http://goo.gl/Bn7KRp

[4]. http://goo.gl/lMdoI

[5].http://goo.gl/Bn7KRp

[6]. Henderson & others v. Stevenson, 1875 2 R (HL) 71, Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd. [1988] 1 All ER 348.

[7]. Harbutt's "Plasticine" Ltd. v. Wayne Tank and Pump Co Ltd [1970] 1 QB 447.

[8]. Lily White v. R. Mannuswami, AIR 1966 Mad.13.

For more details visit https://cis-india.org/a2k/blogs/are-indian-consumers-laws-ready-for-digital-age

Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 2)

ananth — 2014-03-06T16:48:18Z

In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the second part, he looks at the law laid down by the U.S. Supreme Court and the Delhi High Court on secondary and contributory copyright infringement, and finds that those wouldn't allow Indian courts to grant "John Doe" orders against ISPs.

In the second part of his study, Ananth Padmanabhan proceeds to examine applying a general theory of secondary or contributory copyright infringement against ISPs. He traces the basis for holding a third party liable as a contributory by closely examining the decisions of the U.S. Supreme Court in Sony Corp. v Universal City Studios[1] and MGM Studios, Inc. v Grokster, Ltd.[2] and concludes that this basis does not hold good in the case of a mere conduit intermediary such as an ISP.

[1]. 464 U.S. 417 (1984). Hereinafter referred to as Betamax.

[2]. 545 U.S. 913 (2005). Hereinafter referred to as Grokster.

Primary and Secondary Infringement

Liability for copyright infringement can either be primary or secondary in character. In the case of ISPs, liability as primary infringers does not arise at all, and it is in their capacity as conduit pipes facilitating the transmission of information that they could be held secondarily liable. Even in such cases, the contention of copyright owners is that once the ISP is notified of infringing content, it has the primary responsibility of preventing access to such content. This contention is essentially rooted in a theory of secondary infringement based on knowledge and awareness, and the means to prevent further infringement.

The controversy around a suitable model of secondary infringement is reflected in two judicial pronouncements – separated by a gap of more than two decades – delivered by the U.S. Supreme Court. In Sony Corp. v Universal City Studios,[3] the US Supreme Court held that the manufacturers of home video recording devices known in the market as Betamax would not be liable to copyright owners for secondary infringement since the technology was capable of substantially non-infringing and legitimate purposes. The U.S. Supreme Court even observed that these time-shifting devices would actually enhance television viewership and hence find favour with majority of the copyright holders too. The majority did concede that in an appropriate situation, liability for secondary infringement of copyright could well arise. In the words of the Court, “vicarious liability is imposed in virtually all areas of the law, and the concept of contributory infringement is merely a species of the broader problem of identifying the circumstances in which it is just to hold one individual accountable for the actions of another”. However, if vicarious liability had to be imposed on the manufactures of the time-shifting devices, it had to rest on the fact that they sold equipment with constructive knowledge of the fact that their customers may use that equipment to make unauthorized copies of copyrighted material. In the view of the Court, there was no precedent in the law of copyright for the imposition of vicarious liability merely on the showing of such fact.

Notes of dissent were struck by Justice Blackmun, who wrote an opinion on behalf of himself and three other judges. The learned Judge noted that there was no private use exemption in favour of making of copies of a copyrighted work and hence, unauthorised time-shifting would amount to copyright infringement. He also concluded that there was no fair use in such activity that would exempt it from the purview of infringement. The dissent held the manufacturer liable as a contributory infringer and reasoned that the test for contributory infringement would only be whether the contributory infringer had reason to know or believe that infringement would take place and not whether he actually knew of the same. Off-the-air recording was not only a foreseeable use for the Betamax, but also its intended use, for which Sony would be liable for copyright infringement.

This dissent has considerably influenced the seemingly contrarian position taken by the majority in the subsequent decision, MGM Studios, Inc. v Grokster, Ltd.[4] This case called into question the liability of websites that facilitated peer-to-peer (P2P) file-sharing. Re-formulating the test for copyright infringement, the US Supreme Court held that ‘one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties’. In re-drawing the boundaries of contributory infringement, the Court observed that contributory infringement is committed by any person who intentionally induces or encourages direct infringement, and vicarious infringement is committed by those who profit from direct infringement while declining to exercise their right to limit or stop it. When an article of commerce was good for nothing else but infringement, there was no legitimate public interest in its unlicensed availability and there would be no injustice in presuming or imputing intent to infringe in such cases. This doctrine would at the same time absolve the equivocal conduct of selling an item with substantial lawful as well as unlawful uses and would limit the liability to instances of more acute fault than the mere understanding that some of the products shall be misused, thus ensuring that innovation and commerce are not unreasonably hindered.

The Court distinguished the case at hand from Betamax, and noted that there was evidence here of active steps taken by the respondents to encourage direct copyright infringement, such as advertising an infringing use or instructing how to engage in an infringing use. This evidence revealed an affirmative intent that the product be used to infringe, and an active encouragement of infringement. Without reversing the decision in Betamax, but holding that it was misinterpreted by the lower court, the Court observed that Betamax was not an authority for the proposition that whenever a product was capable of substantial lawful use, the producer could never be held liable as a contributory for the use of such product for infringing activity by third parties. In the view of the Court, Betamax did not displace other theories of secondary liability. This other theory of secondary liability applicable to the case at hand was held to be the inducement rule, as per which any person who distributed a device with the object of promoting its use to infringe copyright, as evidenced by clear expression or other affirmative steps taken to foster infringement, would be liable for the resulting acts of infringement by third parties. However, the Court clarified that mere knowledge of infringing potential or of actual infringing uses would not be enough under this rule to subject a distributor to liability. Similarly, ordinary acts incident to product distribution, such as offering customers technical support or product updates, support liability etc. would not by themselves attract the operation of this rule. The inducement rule, instead, premised liability on purposeful, culpable expression and conduct, and thus did nothing to compromise legitimate commerce or discourage innovation having a lawful promise.

These seemingly divergent views on secondary infringement expressed by the U.S. Supreme Court are of significant relevance for India, due to the peculiar language used in the Indian Copyright Act, 1957.[4]

Section 51 of the Act, which defines infringement, bifurcates the two types of infringement – ie. primary and secondary infringement – without indicating so in as many words. While Section 51(a)(i) speaks to primary infringers, 51(a)(ii) and 51(b) renders certain conduct to be secondary infringement. Even here, there is an important distinction between 51(a)(ii) and 51(b). The former exempts the alleged infringer from liability if he could establish that he was not aware and had no reasonable ground for believing that the communication to the public, facilitated through the use of his “place”, would amount to copyright infringement. The latter on the other hand permits no such exception. Thus, any person, who makes for sale or hire, or by way of trade displays or offers for sale or hire, or distributes for the purpose of trade, or publicly exhibits by way of trade, or imports into India, any infringing copies of a work, shall be liable for infringement, without any specific mens rea required to attract such liability. It is in the context of the former provision, ie. 51(a)(ii) that the liability of certain file-sharing websites for copyright infringement has arisen.[5]

Mere Conduit ISPs – Secondary Infringement Absent

In MySpace, the Delhi High Court examined the liability for secondary infringement on the part of a website that provides a platform for file-sharing. While holding the website liable, the Single Judge considered material certain facts such as the revenue model of the defendant, which depended largely on advertisements displayed on the webpages, and automatically generated advertisements that would come up for a few seconds before the infringing video clips started playing. Shockingly, the Court even considered relevant the fact that the defendant did provide for safeguards such as hash block filters, take down stay down functionality, and rights management tools operational through fingerprinting technology, to prevent or curb infringing activities being carried on in their website. This, in the view of the Court, made it evident that the defendant had a reasonable apprehension or belief that the acts which were being carried on in the website could infringe someone else’s copyright including that of the plaintiff. The logic employed by the Court to attribute liability for secondary infringement on file-sharing websites is befuddling and reveals complete disregard for the degree of regulatory authority available on the internet even where the space, i.e., the website, is supposedly “under the control” of a person. However, a critical examination of this decision is not relevant in understanding the liability of mere conduit ISPs. This is for the reason that none of the factual considerations relied on by the Single Judge to justify imposition of liability on a file-sharing website under Section 51(a)(ii) arise when the defendant is an ISP that only provides the path for content-neutral transmission of data.

This was completely ignored by the Madras High Court in R.K.Productions v. B.S.N.L.,[6] where the producers of the Tamil film “3”, which enjoyed considerable pre-release buzz due to its song “Kolaveri Di”, sought an omnibus order of injunction against all websites that host torrents or links facilitating access to, or download of, this film. Though this was worded as a John Doe plaint by branding the infringers as unknown administrators of different torrent sites and so on, the real idea was to look to the resources and wherewithal of the known defendants, ie. the ISPs, to block access to the content hosted by the unknown defendants.

This prompted the ISPs to file applications under Or. VII, Rule 11 of the Civil Procedure Code, seeking rejection of the plaint on the ground that the suit against them was barred by law. The Single Judge of the Madras High Court dismissed these applications for rejection of the plaint, after accepting the contention that the ISPs are necessary parties to the suit as the act of piracy occurs through the channel or network provided by them. The High Court heavily, and incorrectly, relied on MySpace without appreciating the distinction between a mere conduit ISP and a file-sharing website such as MySpace or YouTube, as regards their respective roles and responsibilities, the differing degrees of regulatory control over content enjoyed by them, and most importantly, the recognition and formalisation of these distinctions in the Copyright Act, 1957, vide the Copyright (Amendment) Act, 2012.

[3]. 464 U.S. 417 (1984). Hereinafter referred to as Betamax.

[4]. 545 U.S. 913 (2005). Hereinafter referred to as Grokster.

[5]. Hereinafter the Act.

[6]. Super Cassette Industries Ltd. v MySpace Inc., MIPR 2011 (2) 303 (hereinafter referred to as MySpace). This decision of the Delhi High Court has been rightly criticised. See http://cis-india.org/a2k/blog/super-cassettes-v-my-space (last accessed on 24.03.2013).

For more details visit https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-2

Can Judges Order ISPs to Block Websites for Copyright Infringement? (Part 3)

ananth — 2014-02-14T05:13:36Z

In a three-part study, Ananth Padmanabhan examines the "John Doe" orders that courts have passed against ISPs, which entertainment companies have used to block dozens, if not hundreds, of websites. In this, the third and concluding part, he looks at the Indian law in the Copyright Act and the Information Technology Act, and concludes that both those laws restrain courts and private companies from ordering an ISP to block a website for copyright infringement.

In the third part of his study, Ananth Padmanabhan looks into the fair use provisions recently introduced in respect of mere conduit intermediaries by the Copyright (Amendment) Act, 2012, and concludes that there is no scope for any general, or specific, access blocking orders at the behest of the plaintiff in a civil suit, in India. He also argues that the Information Technology Act, 2000 read with the Information Technology (Intermediaries Guidelines) Rules, 2011 do not in any manner permit the Government to override the provisions of the Copyright Act, 1957 (as amended) while facilitating the denial of access to websites on grounds of copyright infringement, because the Copyright Act, 1957, is a complete code by itself.

Fair Use Provisions Introduced by the Copyright (Amendment) Act, 2012

In 2010, the controversial Copyright (Amendment) Bill came up for deliberation before the Parliamentary Standing Committee on Human Resource Development headed by Mr. Oscar Fernandes. While a major part of the discussion on this amendment revolved around the altered royalty structure and rights allocation between music composers and lyricists on the one hand and film producers on the other, it can be safely stated that this is the most significant amendment to the Copyright Act, 1957 for more than this one reason. The amendment seeks to reform the Copyright Board, bring in a scheme of statutory licenses, expand the scope of performers’ rights and introduce anti-circumvention measures to check copyright piracy. As part of its ambitious objective, the amendment also attempts a new fair use model to protect intermediaries and file-sharing websites.

The Copyright (Amendment) Act, 2012, which gives expression to this fair use model through Sections 52(1)(b) and (c), reads thus:

52. Certain acts not to be infringement of copyright. - (1) The following acts shall not constitute an infringement of copyright, namely:

(a) to (ad) - *****

(b) the transient or incidental storage of a work or performance purely in the technical process of electronic transmission or communication to the public;

(c) transient or incidental storage of a work or performance for the purpose of providing electronic links, access or integration, where such links, access or integration has not been expressly prohibited by the right holder, unless the person responsible is aware or has reasonable grounds for believing that such storage is of an infringing copy:

Provided that if the person responsible for the storage of the copy has received a written complaint from the owner of copyright in the work, complaining that such transient or incidental storage is an infringement, such person responsible for the storage shall refrain from facilitating such access for a period of twenty-one days or till he receives an order from the competent court refraining from facilitating access and in case no such order is received before the expiry of such period of twenty-one days, he may continue to provide the facility of such access;

From a plain reading, it is clear that two important exceptions are carved out: one, in respect of the technical process of electronic transmission and the other, in respect of providing electronic links, access or integration. The material distinction between these exceptions is the presence of a take-down proviso in respect of the latter kind of activity, ie. when providing electronic links, access or integration. This window of opportunity is not provided to the copyright owner when the third party is an ISP involved in the pure technical process of electronic transmission of data.

In R.K. Productions, the court was not informed of the introduction of these provisions vide the Copyright (Amendment) Act, 2012, despite the hearing happening on a date subsequent to the amendment coming into force. This probably influenced the outcome as well, since the court held that ISPs were liable to block access to infringing content, once the specific webpage was brought to the notice of the concerned ISP. Newly introduced Section 52(1)(b) however makes it abundantly clear that ISPs cannot, in any manner, be held liable when they are acting as mere conduit pipes for the transmission of information. This legal position is also materially different from jurisdictions such as the United Kingdom where, the ISPs though not liable for copyright infringement, are statutorily mandated to lend all possible assistance such as take-down or blocking of access upon notice of infringement being furnished to them. This dichotomy between liability for infringement on the one hand and a general duty to assist in the prevention of infringement on the other is explained clearly by the Chancery Division in Twentieth Century Fox Film Corporation v. British Telecommunications Plc.[1]

In Newzbin2, the Chancery Division took note of the safe harbour provisions created by the E-Commerce Directive,[2] particularly Articles 12 to 14 that dealt with acting as a “mere conduit”, caching and hosting respectively. The interesting feature with the “mere conduit” exception, which in all other respects is akin to the exception contained in Section 52(1)(b) of the Copyright Act, 1957, is the additional presence of Article 12(3). This provision clarifies that the “mere conduit” exception shall not stand in the way of a court or administrative authority requiring the service provider to terminate or prevent an infringement. Article 18 of this Directive also casts an obligation upon Member States to ensure that court actions available under national law permit the rapid adoption of measures, including interim measures, designed to terminate any alleged infringement and to prevent any further impairment of the interests involved. Similarly, the court looked into the Information Society Directive,[3]

Article 8(3) of which provides that “Member States shall ensure that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.” This Directive was transposed into the domestic law in UK by the Copyright and Related Rights Regulations 2003, SI 2003/2498, resulting in the insertion of Section 97A in the Copyright, Designs and Patents Act 1988. This provision empowers the court to grant an injunction against a service provider who has actual knowledge of another person using their service to infringe copyright, such as where the service provider is given sufficient notice of the infringement. Finally, the Chancery Division also took note of the Enforcement Directive,[4]

Article 11 of which provided that Member States shall ensure that copyright owners are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe an intellectual property right. This entire legislative scheme compelled the court in Newzbin2 to conclude that an order of injunction could be granted against ISPs who are “mere conduits”, restraining them from providing access to websites that indulged in mass copyright infringement. The court reasoned that the language used in Section 97A did not require knowledge of any particular infringement but only a more general kind of knowledge about certain persons using the ISPs’ services to infringe copyright. Thus, it is seen that in the United Kingdom, though a “mere conduit” activity is not infringement at all, the concerned ISP can be directed by the court to block access to a website that hosts infringing content on the basis of the above legislative scheme. The enquiry should therefore be directed towards whether India has a similar scheme for copyright enforcement.

The Information Technology Act – An Inapplicable Scheme for Website Blocking

The Information Technology Act, 2000[5]read with certain recently framed guidelines provides for a duty that could be thrust upon even “mere conduit” ISPs to disable access to copyrighted works. This is due to the presence of Section 79(2)(c) of this Act, which makes it clear that an intermediary shall be exempt from liability only where the intermediary observes due diligence as well as complies with the other guidelines framed by the Central Government in this behalf. Moreover, Section 79(3) provides that the intermediary shall not be entitled to the benefit of the exemption in Section 79(1) in a situation where the intermediary, upon receiving actual knowledge that any information, data, or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit an unlawful act, fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner. In pursuance of Section 79(2)(c), the Central Government has also framed the Information Technology (Intermediaries Guidelines) Rules, 2011, which came into effect on 11.04.2011. Rule 4 of these Rules, when read along with Rule 2(d), casts obligation on an intermediary on whose computer system, copyright infringing content has been stored, hosted or published, to disable such information within thirty six hours from when it is brought to actual knowledge of the existence of such content by any affected person.

One way of understanding and interpreting in harmonious fashion, the provisions of the IT Act and the Rules therein and the recent amendments to the Copyright Act, is to contend that the issue of infringement of copyright by “mere conduit” ISPs is governed by Section 52(1)(b), which completely absolves them of any liability, while that of enforcement of copyright through the medium of such ISPs is governed by the IT Act. This bifurcation suffers from the difficulty that Section 79 of the IT Act is not an enforcement provision. It is a provision meant to exempt intermediaries from certain kinds of liability, in the same way as Section 52 of the Copyright Act. This provision, read with Section 81, makes it clear that the IT Act does not speak to liability for copyright infringement. From this, it has to necessarily follow that all issues pertaining to liability for such infringement have to be decided by the provisions of the Copyright Act. Therefore, the scheme in the IT Act read with the Intermediaries Guidelines Rules cannot confer additional liability for copyright infringement on ISPs where the Copyright Act exempts them from liability. More to the point, the intermediary cannot be liable for copyright infringement in the event of non-compliance with Section 79(3) or Rule 4 of the Intermediaries Guidelines Rules read with Section 79(1)(c) of the IT Act. Rule 4 of the Intermediaries Guidelines Rules, 2011, to the extent that it renders intermediaries outside the protective ambit of Section 79(1) upon failure to disable access to copyrighted content, is of no relevance as “mere conduits” have already been exempted from liability under Section 52(1)(b). Moreover, since these provisions in the IT Act do not deal with enforcement measures such as injunction orders from the court to disable access to infringing content in particular or infringing websites in general, it would be wrong to contend that the scheme in India is similar to the one in the United Kingdom where the issue of infringement has been divorced from that of enforcement.

To conclude, Section 52(1)(b) is a blanket “mere conduit” exemption from liability for copyright infringement that stands uninfluenced by the presence of Section 79 of the IT Act or the Intermediaries Guidelines Rules. In the absence of a legislative scheme for enforcement in India akin to Section 97A of the UK Copyright, Designs and Patents Act 1988, Indian Courts cannot grant an injunction directing such “mere conduit” ISPs to block access to websites in general or infringing content in particular and any such action is not even maintainable in law post the insertion of Section 52(1)(b). The decision to the contrary in the R.K.Productions case is incorrect.

[1]. [2011] EWHC 1981 (Ch.). Hereinafter referred to as Newzbin2.

[2]. European Parliament and Council Directive 2000/31/EC on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (8 June 2000). This Directive was transposed into the domestic law in UK by the Electronic Commerce (EC Directive) Regulations 2002, SI 2002/2013.

[3]. European Parliament and Council Directive 2001/29/EC on the harmonisation of certain aspects of copyright and related rights in the information society (22 May 2001).

[4]. European Parliament and Council Directive 2004/48/EC on the enforcement of intellectual property rights (29 April 2004). This Directive was transposed into the UK domestic law primarily by the Intellectual Property (Enforcement, etc.) Regulations 2006, SI 2006/1028.

[5]. Hereinafter referred to as the IT Act.

For more details visit https://cis-india.org/a2k/blogs/john-doe-orders-isp-blocking-websites-copyright-3

App Developers Series: Products-Services Dichotomy & IP (Part I)

samantha — 2014-07-21T01:43:06Z

Recently, the Centre for Internet and Society (CIS) held a series of interviews in attempts to better understand the ecosystem in which India's mobile app industry is emerging, how it is governed by India's current laws, and how mobile app developers are affected as a result. The following written series maps out the given responses and presents our findings from these interviews and accompanying conversations.

This preliminary round consisted of 10 interviews with app developers and an additional 6 with other individuals from differing perspectives within the mobile app development space; these being designers, lawyers, financial and legal advisers, and developer community mobilizers. Much insight was gained on the current legal practices of app developers within their work related to intellectual property rights (IPR), licensing, infringement and ownership. Through this preliminary research exercise, such practices are found to arise out of personal business models, sentiments towards the law, and how they are situated within the ecosystem to begin with.

Question 1: “What is your IP?”

In the legal realm, mobile apps aren't simply mobile apps, but a final product composite of numerous forms of intellectual property (IP)—background processes, source code, user interface, brand, content and more. But who owns the apps that are being made? Are they protected, and if so, is this protection enforced? And how much do developers know about IP anyway?

The first of the predetermined set of interview questions begins to address these questions. Upon asking developers what it is exactly that constituted their intellectual property, the most frequent immediate responses consisted of “nothing” or one's own coding for their mobile app product. Other responses included created content, background processes, and works unpublished, as well as trademark and a pending patent. Discussions to follow often pertained to one's business model, as well as their different types of mobile app IP for clients and of their own products.

So what did these responses reveal then?

70% of app developers interviewed generally do not own the products they create, and instead assign ownership of their IP over to their clients
80% of app developers interviewed have either moved away from the services sector to create their own products or would like to
75% of app developers interviewed within services have their own mobile app products, two thirds of which are in an early product phase

Services for SMEs

Across developers carrying out app development services, clients were often said to be based all over India, as well as the US and Europe. Despite this occurring trend within our interviews sample, Business Financial Strategist and CEO of Out Sourced CFO & Business Advisory Services, Jayant Tewari stresses that out-sourced 'mobile app services' is marginal as a business model here in India. Due to the fact that “apps are reasonably small in terms of code length and complexity, the concept is more important to and deliverable by a small skilled team,” he says. For this reason, mobiles apps is relatively a small-medium enterprise (SME) space: “some SMEs have grown but the ethos and challenges faced are entirely distinct from the Large Corporate.”

Tewari's insights reflect the few of the larger mobile app enterprises that had participated within our interviews. Of all app developers interviewed, it has been found that 80% have either moved away from the services sector to create their own products or would like to. The remaining 20%, on the other hand, represent larger enterprises that have now scaled up with teams from 70 to over 200 developers—one of which focus strictly on services for social enterprises and non-profits as clients.

Tewari continues in saying that “unless you're a 1000 man enterprise, there's no economic benefit in services; as competition has driven pricing so low, everyone's struggling to deliver $12-14 per hour.”

So then, if this is the case in India's mobile app economy and off-shore app development is marginal, why have we found developers are doing it then?

Vivek Durai, formerly a lawyer and now Founder of startup, HumblePaper, implies that this business model is not by first choice: “every startup in mobile development, especially, is doing services to stay afloat and would like to move toward a product model.” Accordingly and as mentioned above, 75% of those interviewed within services had their own mobile app products, the majority of which were only in an early product phase—suggesting the inclination for app developers to gradually move away from the services sector in pursuit of their own projects, as they are able to.

Understandings of IP (and lack of)

Come the time for this transition away from services, however, app developer enterprises may be ill-equipped to sufficiently navigate this mobile app product space. Due to the fact that those within services assign ownership to their clients with the mere signing of a contract (if any), mobile app developers do not have any need to concern themselves with all the legal nuances related to ownership and licensing of IP. Put simply by Durai, “when you ask a question about IP to developers, they don't know what it means, because it doesn't have anything to do with what they're doing.”

Within the responses received, we have found that across those interviewed exist different personal understandings of the meaning of “IP.” Badrinath Kulkarni, Google Developer Group (GDG) Bangalore Coordinator, shares his concern regarding this area of greyed understanding in saying that “developers often do not know what part of their app is IP... there is a gap in understanding with respect to IP.”

For the most part, it seems, IP was considered to refer to content or code across interviews, and was even confused at one point with IPR within a response referring to an SME's trademark and pending pending. Although a subtle error, such may reflect the lack of a comprehensive understanding across individuals—even those that are applying for a patent.

For those who appeared to be better versed in matters related to IP, a recurring theme seemed to be the need for developers to broaden their understanding of what parts of their work are IP. Within a conversation with Samuel Mani, Founding Partner of Mani Chengappa & Mathur, Mani stresses that developers should recognize the value within not just the product or software itself, but the background business processes. According to Mani, the execution of the idea is the true source of innovation; how one accesses the market, and maybe who the market is as well.

IP understanding in services: irrelevant or important?

So what is the importance of having a concrete understanding of notions of intellectual property to begin with? Does it matter at all that those within development services are not as familiar with the concept since IP is irrelevant to them? Or can knowledge of IP work to one's advantage within a services agreement?

As we continue to examine the responses given across interviews pertaining to protection of one's intellectual property, perhaps these questions will answer themselves.

For more details visit https://cis-india.org/a2k/blogs/app-developers-series-services-products-dichotomy-ip-2013-part-i

Mapping Institutions of Intellectual Property (Part A): India's National Programme on Intellectual Property Management

nehaa — 2014-06-10T07:34:34Z

This blog post discusses India’s National Program on Intellectual Property Management, including the establishment of a National Institute of Intellectual Property Rights.

On the 21^st of February, 2014, the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India organized a Stakeholders Consultation at New Delhi (“the Consultation”). I attended this meeting on behalf of CIS. The discussion was centred around devising a strategy for India’s National Program on Intellectual Property Management under our 12^th Five Year Plan (2012 to 2017). On the agenda were two key issues:

Evaluating and rethinking the role of IPR Chairs established by the MHRD
Establishing a National Institute of Intellectual Property Rights

Pawan Agarwal, Advisor, Higher Education, Planning Commission, Government of India made a detailed presentation on both of these issues. The key parts of his presentation and the ensuing discussions have been reproduced below.

Presentation and Ensuing Discussions

The diagrams in this section correspond to those in Pawan. Agarwal’s presentation.

Ecosystem

In Figure 1, the proposed structure of the national intellectual property system has been outlined. Those government departments and ministries that would have a role to play have been identified, as well as the functions expected to be performed.

In the discussion that followed it was observed that traditional knowledge should also be included within this ecosystem. The Department of Industrial Policy and Promotion (“DIPP”) could coordinate and seek inputs from the Ministry of Culture and the Ministry of Health and Family Welfare.


Figure 1

Education: Programs and Courses

Figure 2 details the proposed structure of IPR education, including courses, financial aid and the nature of the program. Members attending the Consultation were of the opinion that having ten centres for doctoral education was an ambitious target. They were also of the opinion that there was need to integrate IPR education with more courses, for instance, MBA and MSc.


Figure 2

Education: Various Elements

Figure 3 deals with other elements of the IP education universe- curriculum development (envisaged as a joint effort), faculty development (of selected faculty) and funding. Various suggestions emerged on the role of the IP Chairs. This has been examined in greater detail subsequently in this blog post. A key suggestion was made regarding the establishment of more law schools in the IITs, along the lines of the Rajiv Gandhi School of Intellectual Property Law at the Indian Institute of Technology (“IIT”), Kharagpur.


Figure 3

Research and Policy Support

Figure 4 lays out the details of the research and policy support to be provided by the Government towards developing this IPR ecosystem. The Government seeks to achieve this through the existing institutions of the IP Chairs, by way of awarding fellowships and research grants. Once again, concerns and questions were raised regarding the role of MHRD IP Chairs, which will be discussed subsequently in this blog post.


Figure 4

Training & Capacity building

Training and capacity building has been visualised on two levels- basic awareness building about intellectual property rights in institutions of higher education and on the advanced level, dealing with specialised courses on trademark/patent drafting or technology licensing, among others.


Figure 5

Creation/ Protection and Management

For the creation, protection and management of intellectual property, a two pronged approach has been envisaged- the establishment of cells for the management of intellectual property in institutions of higher education and an increased focus on patents, including the creation of incentives for patenting for researchers. Figure 6 lays out the scheme.


Figure 6

National/ Regional Centres/ Chairs

This program on intellectual property outlines a proposal for the establishment of one national centre, five regional centres and twenty chairs, with a distinct role outlined for each. Details are available in Figure 7.


Figure 7

Governance

The National Program on intellectual Property Management lays out a three tiered governance structure, headed by the National Steering Committee on IPR, assisted by the Advisory and Project Approval Committees, with five Regional Committees constituting the final tier. This has been represented in Figure 8.


Figure 8

Funding Arrangements


Figure 9

The discussion that occurred after Pawan Agarwal’s presentation was centred around the issues of intellectual property education, revisiting the role of the MHRD IPR Chair Professor and on the establishment of a National Institute of Intellectual Property Rights.

Intellectual Property Education

On a broader level, the Consultation dealt with the subject of intellectual property education, which the proposed plan envisaged on a generic basic level as well as a more advanced technical level. Narendra Sabharwal, former Deputy Director General, World Intellectual Property Organization (“WIPO”) was had a three pronged opinion on intellectual property education- first, that intellectual property education had to be mainstreamed, and that this mainstreaming should be a part of the vision and strategy of any national plan on intellectual property; second, that intellectual property education should be used to synergise and encourage the creation of more IP assets and third that the proposed national institute should play an advisory role in the intellectual property education framework.

Evaluating and Rethinking the Role of IPR Chairs Established by the MHRD

Background

The MHRD has, under the Scheme for Intellectual Property Education, Research and Public Outreach (“the Scheme”), established twenty IPR Chairs in various universities and other institutions of higher learning across the country. According to the MHRD IPR Chairs website, six of these Chairs have been set up in Universities (University of Delhi, University of Madras, Tezpur University, CUSAT- Kochi, JNU- Delhi and the Delhi School of Economics); five in National Law Universities (NLSIU- Bangalore, NALSAR- Hyderabad, NLU- Jodhpur, NLIU- Bhopal and WBNUJS- Kolkata); six in the Indian Institutes of Technology (IIT- Delhi, IIT- Madras, IIT- Kanpur, IIT- Kharagpur, IIT- Bombay and IIT- Roorkee) and three in the Indian Institutes of Management (IIM- Bangalore, IIM- Kolkata and IIM- Ahmedabad).

With the purpose of creating awareness among the “general public intelligentsia etc. on IPR Copyright and WTO Studies”[1] , the Scheme has been implemented with the objectives of encouraging the study of intellectual property rights in universities and other institutions of higher learning and developing and encouraging study in specialized courses of IPR; creating awareness about IPRs; organizing activities such as seminars and workshops for IPR awareness; creating knowledge resources, developing policy inputs and negotiating strategies and course awareness- all on WTO matters and evolving strategies of Regional Cooperation and Regional Trading Agreements. Expenditure under the Scheme may be incurred by the MHRD (directly or indirectly) for a wide array of purposes including inter alia, the institution of “Chairs” for IPR Studies for higher education and “also on WTO Studies” (sic.).

At the Consultation

There was a general consensus on the need to restructure the existing ‘MHRD Chair’ institutions and questions were raised regarding their longevity and the sustainability. Veena Ish, Joint Secretary, Department of Higher Education, MHRD, Government of India, spoke of the need to strengthen the existing IPR Chairs and bring about changes in the funding scheme. She also sought inputs on what form and structure the institutions should adopt.

Faculty members of various educational institutions present at the meeting were of the opinion that there was an urgent need to set norms clarifying the role of Chairs. Out of the various suggestions put forth, some of them were as under:

Specify the number of hours (if any) that a Chair was expected to teach. This proved to be a contentious issue at the meeting, with various members of the faculty raising questions on how one was to balance teaching requirements with research and policy feedback obligations.
Envisage the role of the Chair as that of a mentor who would not teach except for the occasional guest lecture, but would guide younger faculty in teaching. The Chairs would then instead produce at least three research outputs in a year based on topic inputs from the National Institute/Centre for Intellectual Property Rights. These research outputs would then act as policy inputs to the government.
The Chair would liaison with industry, academia and policy makers to identify issues of policy concern and research interest.
The institution of the MHRD Chair should be delinked from the university set up. Chairs should be appointed directly by the MHRD through a transparent and accountable process, distinct from the present state of affairs where the Vice Chancellors of universities were allowed to exercise discretion in appointments.

Establishment of a National Institute of Intellectual Property Rights

Context
The present circumstances that might necessitate the establishment of a National Institute of Intellectual property Rights were highlighted at the Consultation by D.V. Prasad, Joint Secretary, Department of Industrial Policy and Promotion (“DIPP”), Ministry of Commerce and Industry, Government of India. He said that there was a need for a nodal agency for World Intellectual Property Organization (“WIPO”) matters. He also said that there was a need for a body to focus on government policy and provide policy inputs to the DIPP and other departments and ministries working on intellectual property law and policy issues. At the moment, he said, there were no formal mechanisms in place though which the DIPP sought policy input, and instead relied on basic inputs from paid external consultants.

At the Consultation

The discussion at the Consultation pertained to the form and functions of this proposed institution. D.V. Prasad emphasised that this institution ought not to become an academic exercise or a university and that the focus should remain policy inputs to the government. This view was echoed by Shilpi Jha of the Confederation of Indian Industries. V.C .Vivekanandan, MHRD Chair Professor, NALSAR University of Law, Hyderabad, was also in agreement with D.V. Prasad and Shilpi Jha, and said that the proposed institution ought to be a ‘stand alone model’. Narendra Sabharwal envisaged this institution as a think-tank that would research on legal and policy issues and international relations on emerging areas of technology. This would be distinct from university research undertaken by MHRD Chairs, although some of the university research ought to feed into the think-tank. N.S. Gopalakrishnan, former MHRD Chair Professor at CUSAT, Kochi was of the opinion that this proposed institution ought not to be within the aegis of the University Grants Commission. Further, he said that it was critical to develop capacity for policy research within the country, but until that time, it was critical to attract people from both within as well as outside India to undertake policy research. Sunita Tripathy, Assistant Professor, Jindal Global Law School was also of the opinion that there was a need to build capacity for policy research in India.

Concluding Observations

From the conversation at the Consultation it seems evident that there is a need to revisit the institution of the MHRD Chair Professor, but what remains moot is the form that it should take. The viability of the proposed national institute would also have to be studied in further detail, against similar models in other countries.

This is an exercise that we shall continue to undertake in subsequent blog posts as a part of this series of mapping institutions of intellectual property.

[1].See Scheme for Intellectual Property Education, Research and Public Outreach, available at http://copyright.gov.in/Documents/scheme.pdf (last accessed 03 June, 2014) at page 1.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-a

Mapping Institutions of Intellectual Property: Part B — India's National Program on Intellectual Property Management

nehaa — 2014-06-26T15:27:18Z

As a second part in the series on Mapping Institutions of Intellectual Property this blog post deals with the documents introduced at the Stakeholders’ Consultation for India’s National Program on Intellectual Property.

Many thanks to CIS interns Jessamine Matthew, Tanvi Mani and Upasana Chauhan for their support on this.

On the 21st of February, 2014, the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India organized a Stakeholders Consultation at New Delhi (“the Consultation”) to discuss India’s National Program on Intellectual Property Management. (Click here: http://cis-india.org/a2k/blog/mapping-institutions-of-intellectual-property-part-a to read our post about this, the first in this series on mapping institutions of intellectual property). I attended this Consultation on behalf of CIS. Discussions were informed by three documents introduced at this meeting, the important parts of which have been summarized below:

Report of the Evaluation Committee on Continuation of the Scheme of Intellectual Property Education, Research and Public Outreach (IPERPO) (“the Scheme”) in the XII Five Year Plan Period 2012-2017 (PDF, 21378 Kb)

Introduction

The Evaluation Committee involved in the preparation of this report comprised of Prof. Sudhir K. Jain, Shri T.C. James and Shri J.R. Agarwal. The rationale behind such scrutiny was to yield recommendations with regard to whether the Scheme should be continued or not. And if the answer was found to be in affirmative, to analyze the scope for improvement, phasing of expenditure and setting of targets for each component of the Scheme.

Essentially the report seeks to analyze the overall impact of the Scheme in the discipline of IP rights with respect to education and awareness. It examines the trajectory of progress of the MHRD-IP Chairs and assesses ways to monitor them more efficiently. In addition to that it also analyzes the procedure adopted to release grants to the Chairs and to recognized universities and explores the possibility of widening the scope of the Scheme.

Genesis of the Scheme

The Scheme was formulated to encourage study of IP rights and research, and create awareness about copyright and IP matters. It also aimed to develop specialized courses, train enforcement personnel, organize seminars and workshops on IPR matters, develop inputs, awareness on WTO matters and evolve strategies of regional cooperation.

Under the Scheme, the purposes for which expenditure is to be incurred by the Ministry are clearly chalked out. The details of the same are given in the Report of the Committee. It also lays down the eligibility of Institutions/ Organizations that are to be selected under the Scheme.

MHRD-IPR Chairs

Around 20 MHRD-IPR Chairs have been set up across various universities, IITs and National Law Universities for growth and development of IPR education, research and training. The staff –pattern followed for MHRD-IPR chair is one Chair Professor, two Research associates, one Steno-cum- Documentation assistant and one group-D employee. Such appointments are supposed to be made in accordance with the rules and guidelines of the UGC. Apart from the recurring expenditure towards salaries of the above-mentioned staff, the Chairs have also been given a non-recurring provision for library, equipments and ancillary items. However, such grants are to be given upon fulfilment of certain conditions imposed under the Scheme.

The working of MHRD-IPR Chairs is overlooked by two committees-namely, the ‘Coordinating Committee’ and ‘Review Committee’. The Coordinating Committee is responsible for discussing proposed activities and resolving pending disputes while the Review Committee review their progress periodically.

Observations on Performance of IPR Chairs

Inability to find a suitable Professor level person to occupy the IPR Chair.
Absence of qualification- criteria for the IPR Chair in the Scheme.
Less focus on research component, development of human resource and teaching.
Few IPR-Chairs have appointed full staff which is complementary to their working.
Flow of fund to IPR-Chairs is interrupted dur to lack of proper documentation.
Uncertainty about the continuation of IPR Chairs which has a detrimental effect on their performance.
Active participation in seminars and workshops organized by universities, institutes and colleges on IPR awareness.

Plan Allocation and Expenditure

There exists variations with respect to allocation and actual expenditure of funds due to various reasons.

New Initiatives to be taken during XII Plan

New IPR-Chairs should be established to encourage research in the field of IPR and create a pool of trained human resources.
IPR Centres/ Cells should be set up and they should be linked to the IPR-Chairs.
Internal Monitoring and Information Systems should exist for effective implementation of the Scheme.
National Seminars/ Conference should be held annually.
World Intellectually Property Day should be celebrated annually with various themes as decided by WIPO.
Awareness about copyright and IPR should be spread through print and electronic media.
Copyright Office should be strengthened and modernized to bring it at par with offices in the USA, UK.

Specific Recommendations

The Committee recommended that the post of IPR-Chairs needs to be incentivized and given full functional autonomy. Moreover, the support provided by Government to the Chairs should be long-term.
The appointment of academic and administrative staff needs to be revised periodically.
Only publicly funded universities and institutes of higher learning should be beneficiaries to this Scheme.
The proposed activities and achievements of the IPR Chairs should be made public.
IPR Chairs should provide assistance to the Central Government by way of research and providing solutions to policy problems and issues.
Some flexibility should be allowed with respect to documentation for uninterrupted flow of accounts.
Provision for replacement/ purchase of equipments.
It should be made mandatory for IPR-Chairs to appoint full staff and conduct lon term training programmes in advanced areas of IPR at the national level.
The work of the IPR Chairs needs to be chalked out explicitly by the Scheme.
Having a scheme for converting the well-functioning Chairs into Specialized IPR Centres with the participation of MHRD.
Raising awareness on IPR issues and problems by holding workshops and seminars. Moreover, universities and colleges should ensure adequate participation in such seminars/ workshops.
School-curriculum should include Chapters on IPR.
Modernization of the Copyright Office should be considered to be a priority to ensure easy access and to make copyright registration easier.

Note on the establishment of an Inter-University Centre for Intellectual Property Rights

Background

The Inter-University Centre for Intellectual Property Rights (“the Centre”) will be established under UGC/ Ministry of HRD, Government of India. Broadly, the mission of this independent autonomous Policy Research Centre is to provide research and policy inputs in the arena of IPR. The targeted audience for these inputs will be the State and Central Governments. In addition to that, it also seeks to serve as a connecting bridge for dialogue between developing countries on IPR. To actualize the mission, it will work on inter-disciplinary research and disseminate information on various socio-legal and other aspects of IPR. It will also promote, integrate and develop models and mechanisms associated with IPR.

Functions

In order to make IPR resources more accessible, the Centre will establish a repository of such resources by entering into collaboration with other organizations and institutions. It will also provide assistance to stakeholders by ways of and not limited to organization of seminars, awareness programmes. As a means to encourage inter-disciplinary research which is quintessential for this Centre, it would offer visiting fellowships and forge links with national and international research institutions. As a nodal centre with respect to interfacing government on IP matters, it will also have the added responsibility of reviewing performance of MHRD-IP chairs.

Broad Deliverables and Outcomes of the Centre

The Deliverables of this Centre world would include Policy Research Inputs, Research Publications, Research Monographs, Treaty Analysis, Sensitization Programmes and National and International Conferences. On the other hand, the outcomes would include Research on thrust areas, Knowledge Management in IPRs, IPR Online Resources and discussions.

Linkages

The Centre seeks to link MHRD-IP Chairs, Industry Associations, Civil Society Advocacy Groups and Public Institutes with IPR research capacity.

Organizational Structure and Funding

The organizational structure of the Centre would include the Governing Council, Governing Board and the Research Advisory Council. Each Council/ Board will comprise of Chairman, Ex-Officio Members and Nominated Members. The individuals who are responsible for the nomination of members to these structures are the President, Chairman of the GB and Chairman of the Centre respectively. It has laid down the specification of such composition in its note on establishment.

For the purpose of funding, the Centre would depend on UGC for its building infrastructure, salary and non-salary components. In addition to that it will also aim to create its own corpus by means of consultancy and other grant-in-aids. Towards capital expenditure, the required allocation would be Rs. 65 crores. While the revenue expenditure is estimated at Rs. 25 crores annually. A detailed break-down of the expenditure also been laid down by the Centre in its note.

Discussion Paper for the Establishment of a National Institute for Intellectual Property Rights

Introduction

The National Institute for Intellectual Property Rights (“the Institute’) will be established as an autonomous policy research institute under the Department of Higher Education, Ministry of Human Resource Development, Government of India. It envisages a specialization in policy research and development cooperation in the field of IP rights. Further, it aims to provide multi-stakeholder collaborations in the fields of IPRs. It will provide policy inputs to the government of India for formulating legislations and international agreements. The Institute will serve as a common platform for dialogue among developing countries on IPR issues. Moreover, it will act as a ‘Hub and ‘spoke’ model to connect and coordinate with the MHRD IPR Chairs/ other institutions working in the field of IPRs.

Vision: To be an institute of excellence in policy research and advocacy of IPR.

Mission: To provide effective research and policy inputs in the field of IPR.

Objectives

The Institute would serve as a think-tank to provide policy inputs on IPR at a regional, national and international level. It would work on interdisciplinary research involving multi-stakeholders and focus on IPR trade related issues and their impact on socio-economic aspects at regional, national and international levels. Further, it would disseminate information regarding the social, legal, ethical and economic aspects of IPR. It would endeavour to promote, integrate and develop ‘Academia-Industry’ knowledge structures. Models and mechanisms associated with IPR. Further, it would coordinate the activities of ‘MHRD-IPR’ chairs on behalf of the Ministry of HRD. Lastly, it would engage in capacity building and provide inputs on IPR policy makers including the judiciary.

Functions

In order to realize the objectives elucidated, the Institute would perform the following functions. It would undertake inter-disciplinary research and provide necessary inputs to the State and Central governments to formulate the required policy in IPR. It would further establish a repository of IPR resources in collaboration with various academic institutions, organizations, chairs and stakeholders engaged in IPRs. It would also offer visiting fellowships to encourage multi-disciplinary research. It would organize and participate in seminars, conferences and awareness programs. It would also undertake consultancy and conduct training in IPR to assist various stakeholders. Additionally, it would forge links with national and international IP research institutions/ organizations and act as a nodal institute to interface various Ministries/Departments of the Government on IP related matters. In furtherance of its adjudicative functions it would also undertake a review on the performance of MHRD-IPR chairs on behalf of the Ministry of Human Resource Development. Lastly, it would offer a Ph.D program in IPR in association with reputed Universities/ Institutions in India and abroad.

The Institute will mainly focus on: (I) Research, (ii) Policy and Advocacy, (iii) International Collaboration and (iv) Developmental Agenda

The Broad Deliverables and outcomes of the Institute include:

Deliverables : (i) Policy Research Inputs (ii) Research Publications (iii) Research Monographs (iv) Treaty Analysis (v) Sensitization Programs (vi) National and International Conclaves/Conferences/Roundtables

Outcomes: (i) Research on thrust areas: Preparation of occasional briefs/ annual briefs and discussion papers/ books/journals. (ii) Knowledge and Management of IPRs: Documenting and mapping the competencies on various segments of IP (iii) IPR Online resources: Online documents relating to IPR policy inputs (iv) National/ International Conferences/ Public Debate and Distinguished Lectures: To provide a common platform for deliberation on contemporary IPR practices, issues and critical analysis.

Linkages and Network

The Institute will establish linkages and network with:

MHRD-IPR Chairs
Industry Associations (National and International)
Civil Society Advocacy Groups
Public Institutes with IPR research capacity

Organizational Structure

The organizational structure of the Institute would include the following sub committees:

Steering Committee: Ex-Officio Members: The Secretary, DHE,MHRD would be the president of the Committee. The members would include the Secretary of The DIPP,MOC, The Secretaries of the Ministry of Environment and Forests and The Department of Science and Technology, The Joint Secretaries of the (BP&CR),MHRD and the DIPP. MOC, GOI, The Director of (BP&CR),MHRD, The Vice Chancellor, Delhi University (Host Institution) and the Director of the NIIPR. The Members nominated by the President are the Two Members from the governing board, the two vice- chancellors of Universities having MHRD Chairs, the two directors of IITs/IIMs having MHRD IP Chairs and the two experts from the regulatory/ research councils.
Governing Board: The Chairman of the governing board shall be appointed by the president of the Steering Committee as per the procedure given in Rule 33.
Ex-Officio Members: These members include the Joint Secretary (BP&CR),MHRD, Joint Secretary (DIPP),GOI, The Director (BP&CR),MHRD and The Director, NIIPR who will be the member Secretary.The members nominated by the Chairman of the GB includes the Two Faculty Members of the Institute, The Two MHRD IPR Chair professors and Three National and International Experts in the field of IPR.
The Research Advisory Council: The Director of the Institute is the Chairman of the Research Advisory Council. The Ex-Officio Members include the Deans and Two Professors of the Institute. The members nominated by the Chairman include two IP experts and one representative each from The Ministry of Culture, Arts, Agriculture, Information technology, Environment and Forests, Science and Technology and External Affairs, Two representatives from Civil Society Advocacy Groups and the Administrative Officer of the Institute would be a Non Member Secretary.

Funding

The Institute will be established by UGC funding for its building, infrastructure salary and non-salary components. The institute will also strive to create its own corpus by way of consultancy and other grant-in aids from relevant National/ International Organizations to compliment the UGC funding. Required allocation is estimated at Rs 65 crore towards capital expenditure relating to acquisition of land, building (Academic Block, Conference Halls, Guest House, Administrative Block, Faculty Quarters, Equipment, IT infrastructure etc) The revenue expenditure is estimated at Rs. 25 crore annually, towards meeting the operating activities of the proposed Institute.

The report also contains particulars with respect to staff requirements. It also contains estimates with respect to Non-recurring Capital Expenditure and Recurring Expenditure per annum.

Lastly, attached along with the report is the Memorandum of Association for the National Institute for Intellectual Property Rights.

The memorandum contains the objectives, functions, members of the Steering Committee and the Rules of the Institute.

The Rules include the functions and powers of the Governing Board. The Board is to carry out the objectives of the Institute. It will be subject to the limitations of the Department of Higher Education, MHRD (the Department will also have the power to inspect the Institute at any time). The Governing Board will have the power to:

Manage the affairs of the Institute, consider annual and supplementary budgets,
Create and abolish emoluments structures of various posts,
Appoint staff to these posts,
Enter into agreements with the Central or State Governments or public or private organisations or individuals for grants, donations etc,
Appoint Committees or Sub-Committees,
Delegate any administrative or financial powers to the Director,
Prepare budget estimate and sanction expenditure,
Prepare for the recruitment of offices, faculty and establishment of the Insitute, terms and conditions of scholarships, fellowships, etc.

It also contains details regarding meetings and the powers and functions of the chairman.There are guidelines for the appointment of the Director and Staff Employees.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-b

Atmanirbhar Bharat Meets Digital India: An Evaluation of COVID-19 Relief for Migrants

ankan — 2021-06-03T12:53:57Z

With the onset of the national lockdown on 24th March 2020 in response to the outbreak of COVID-19, the fate of millions of migrant workers was left uncertain. In addition, lack of enumeration and registration of migrant workers became a major obstacle for all State Governments and the Central Government to channelize relief and welfare measures.

A majority of workers were dependent on relief provided by NGOs, Civil Society Organizations and individuals or credit via kinship networks. With mounting domestic and international pressures, various relief and welfare schemes were rolled out but they were too little, too late and more often than not characterised by poor implementation.

The aim of this report is to qualitatively assess health conditions of migrant workers and access to welfare during the first COVID-19 lockdown. The primary focus is on the host states of Tamil Nadu, Maharashtra and Haryana. 20 in-depth interviews were conducted remotely with migrant workers working in various sectors. Their access to welfare schemes of the Central Government as well as of their host states was ascertained. Emphasis was also laid on their access to healthcare facilities in relation to COVID-19 and non-COVID-19 ailments.

The findings of the report showcase a dismal state of affairs. No one in our sample group received any kind of dry ration or cooked food in a sustained manner and, in the rare occasions when they did, it was woefully inadequate. Of the three states considered, we found that relief distribution was the best in Tamil Nadu followed by Maharashtra and then Haryana. Even the Direct Cash Transfer Scheme of the Central Government under ‘Atmanirbhar Bharat’ did not reach the migrant workers. Moreover, the migrant workers were apprehensive to report any COVID-19 related symptom due to the draconian treatment that followed therein and the crumbling healthcare sector made it impossible to avail facilities in non-COVID-19 related issues. Lastly, a case has been made for the creation of bottom-level infrastructures to further dialogue between various stakeholders, including associations of migrant workers, for the implementation of schemes and policies which can consolidate migrant workers as a relevant political subject. As migrant workers reel from the impact of the second wave, pushing for on-ground infrastructure and supporting community-based organisations becomes even more urgent.

Click here to read the report authored by Ankan Barman and edited by Ayush Rathi. [PDF, 882 kb]

For more details visit https://cis-india.org/raw/migrant-workers-solidarity-network-and-cis-ankan-barman-atmanirbhar-bharat-meets-digital-india-an-evaluation-of-covid-19-relief-for-migrants

World Narrow Web

pranesh — 2012-03-27T16:00:24Z

Censorship and how govt reacts to it may push us to country-specific networks, writes Pranesh Prakash in an article published in the Indian Express on 4 February 2012.

Twitter, a popular micro-blogging service, recently announced that “[today] we give ourselves the ability to reactively withhold content from users in a specific country — while keeping it available in the rest of the world”. In a move a few weeks ago, Blogger, Google’s blogging service, in effect announced something similar, by saying that default they would redirect Blogger users trying to get to Blogspot.com addresses (like http://example.blogspot.com) to their respective country sites (like http://example.blogspot.in). Twitter’s announcement was greeted with much disapproval by many Twitter users, as a move towards censorship, with some talking (on Twitter) about a boycott. Blogger’s move was hidden away, deep within a help page, and is being noticed now, and is causing quite a stir as caving in to censorship. Are these concerns justified? Before answering that question, let’s look at what the platforms’ announcements really say.

Twitter has given itself the ability to withhold specific tweets and users in particular countries where that content is legally required to be removed (generally with a court order). Their earlier option, they inform us, was to block the offending tweets and users in all countries. Apart from this, they will publish a notice for each tweet/ user that is blocked in a country. They will also be proactively publishing every removal request they receive at ChillingEffects.org, which allows us to hold them to account and question their decision to remove tweets.

Google, by redirecting you to the country-specific Blogger, is allowing for country-level removal of both blogs and individual blog posts. However, they also note that you can circumvent this by using a special “no redirect” address. Google currently forwards all search-related removals, but does not do so for Blogger-related requests, and all copyright-related complaints to ChillingEffects.org. Google does publish aggregate data relating to censorship of Blogger, on which free-speech advocates have been asking them to provide more granular information.

There are three problems. First, while Twitter was just as open to repressive governments’ requests last week, by making this change, they are advertising this fact to such governments. Thailand has noted it, and has congratulated Twitter.

Second, as Rob Beschizza, managing editor of the website Boing Boing, pointed out, there have been no instances of political content having been removed by Twitter. Even British courts’ super-injunctions (injunctions on speech, that prevent you from mentioning the fact that there is an injunction) were defeated by Twitter users, which only showed that attempts to censor material results in even more attention being drawn to it (which is popularly known as the “Streisand Effect”). So, does this now mean that Twitter will start applying local laws to judge “valid and applicable legal requests”, instead of American laws? What if the law is as bad as that which exists in India, where they are required to remove content within 36 hours based on any affected person’s complaint — without a court order? Will they still act on it? If they don’t, will the government or courts order Twitter.com to be blocked in India, finding it liable for illegal omissions?

Third, this trend points increasingly to the fact that we are witnessing a Balkanisation of the Web as more countries start asserting their sovereignty online. As Chinese dissident journalist Michael Anti pointed out recently, it seems we now need visas (read “circumvention techniques”) to visit the international Web. But even then, there is no longer a singular “international” Web, but an Indian Web and a Guatemalan Web, and an Angolan Web. And the government’s recent proposal of requiring companies to locate their servers in India is a move towards this (apart from being a move towards killing cloud computing).

That having been said, the reality is that the CEOs of Google, Google India, and Microsoft have been summoned to appear in Indian courts for allowing their users to publish material which they don’t know about, which is in a sealed envelope (and most of the accused companies haven’t been shown yet), and which they weren’t even asked once to remove.

The Intermediary Guidelines Rules passed by the Department of Information Technology in April 2011 do not require the user, whose content it is, to be told that there is a complaint, nor to be given a chance to defend themselves. It does not even require public notice that the content has been removed.

The truth is, the transparency around censorship that Google and Twitter are providing is far better than what most other companies are providing. For instance, Big Rock, an Indian DNS provider, suspended the CartoonsAgainstCorruption.com web address on the basis of a seemingly not legal request by the Cyber Cell of the Mumbai Crime Branch, and did so without any public notice and without even informing the cartoonist whose web address it was. At least Google and Twitter are pushing back against non-legal requests, and refusing to remove content that doesn’t violate local laws. Single-mindedly criticising them will only put off other companies from following in their footsteps.

Instead of criticising those who are actually working towards transparency in censorship, we should encourage them and others, push intermediaries not to cave in to unreasonable censorship requests, prevent them from over-censoring on their own, and push hard for the government to incorporate their best practices as part of the Intermediary Guidelines Rules.

The original article was published in the Indian Express

For more details visit https://cis-india.org/internet-governance/world-narrow-web

Deconstructing Digital Natives: Young People, Technology and the New Literacies

nishant — 2015-04-24T11:51:06Z

Nishant Shah was invited to do a book review of a new anthology 'Deconstructing Digital Natives', edited by Michael Thomas. The review was published in Routledge's Journal of Children and Media on July 18, 2012.

Deconstructing Digital Natives: Young People, Technology and the New Literacies is an anthology that revisits the debates and scholarship that have arisen around youth and technology in the last decade or so. It is a timely intervention that invites some of the most influential scholars who have contributed to and shaped the discourse around “digital natives” to come and revisit their original ideas from the last decade. The term “digital native” probably bears witness to the strident discourses that, more often than not, fall into the trap of exotically glorifying or despairingly vilifying young peoples’ engagement with digital technologies. As Buckingham points out in his foreword to the book, these conversations either take up the language of a “generation gap [that] entails a narrative of transformation and even of rupture, in which fundamental continuities between the past and the future have been destroyed” or they guise themselves in an “almost utopian view of technology—a fabulous story about technology liberating and empowering young people, enabling them to become global citizens, and to learn and communicate and create in free and unfettered ways” (p. ix). The essays seek a point of departure from these tried and tested arguments in order to provide a “balanced view” on the topic. And so we have a distinguished author list from the world of digital natives scholarship, coming together not only to ponder on their own contributions to the field and how those ideas need to be upgraded, but also to provide new contexts, concepts, and frameworks to understand who, or indeed, what, is a “digital native,” often in tension with their earlier work.

In its ambition of revisiting existing debates and providing a “research-based approach by presenting empirical evidence and argument from international researchers in the field,” the book succeeds unevenly (p. xi). Despite its efforts to chart a point of departure, some of the essays end up falling into some usual traps. For example, despite the fact that the oldest digital natives are probably in their thirties, they are thought of as being young. They are defined only as “students” within formal learning institutions without looking at the radical potential of learning outside organized education, embedded in their everyday practices. The digital natives remain an object of research and the peer-to-peer structures that are supposed to shape them, but do not feature in the methodologies of researching them. This notwithstanding, the essays still offer a historical and social perspective on the debates around digital natives in certain developed pockets of the world.

In the first section, “Reflecting on the Myth,” Thomas’ essay “Technology, Education and the Discourse of the Digital Native” introduces a tension between the techno-euphorists and the “digital luddites,” which replays itself through the rest of the contributions. While Thomas places himself between “technoevangelism” and “technoskepticism,” Prensky, who coined the term “Digital Natives” in 2001, then introduces to us a new binary of “digitally wise” and “digitally dumb” (p. 4). Prensky reviews the responses that his opposition of “digital natives” and “digital immigrants” have produced over the last decade and emphasizes that his coinage was at the level of a metaphor, and was not to be taken seriously. Prensky agrees that the earlier opposition might be discarded because it evokes too many simple responses based on skills with technology. Digital wisdom, for Prensky, is in the ways in which digital technologies enhance the human brain “to anticipate second- and third-order effects to which the unaided mind may be blind” as the world becomes too complex for the “unenhanced human brain” to cope with it (p. 23). Typically, Prensky’s argument creates a dichotomy of those who can (and will) and those who will be outside of this web of digital enhancements. His analysis tries to complicate the idea of human wisdom by looking at questions of ethics and agency, but the final formulations appear cliche´d, merely re-creating the older tensions rather than thinking through them. Jones’ following essay on the “Net Generation” is more persuasive, where he argues for dismissing the idea that “nature of certain technologies . . . has affected the outlook of an entire age cohort in advanced economies” and instead should unpack how “new technologies emerging with this generation have particular characteristics that afford certain types of social engagement” (p.42).

In the second section, titled “Perspectives,” the essays take up two different tones.The first is about looking at digital literacy, skill, and fluency in everyday practices of digital natives, and how they shape our contemporary and future sociopolitical and cultural landscapes. Banaji, in exploring the EU Civic Web Project, echoes Jones’ ideas. The presumptions within education about an entire generation as “born with technologies” has consequences in the field of civic action, where programs for citizen action are designed with expectations that the young people will have core digital competencies and literacy. She does not push that argument further, but in her study of the two Scottish e-initiatives, one can see the promise of a radical reconstruction of civic engagement movements, where the young participants are not going to be satisfied as mere participators, and will demand a space for their voice to be heard.

Takahashi’s essay on the oyaubibunka (“thumb culture”) mobile generations in Japan stands alone in its analysis of an Asian context—though many might argue that Japan, with its developed economy, can hardly be counted as a typically “Asian” perspective. Takahashi is rooted, both in practice and discourse, in youth and technology in Japan, where the youth often experience close-knit community experiences through mobile interfaces, in their otherwise alienated modern habitats. Almost as a response to Turkle’s Alone Together (2011), Takahashi shows how collaborative and cocreation cultures ranging from the mobile novels on Mixi to everyday interaction on Social Networking Systems is bringing in new kinds of social spaces of belonging. The essay, however, resists simply celebrating this space and works in complex ideas of freedom, control, risks, and the tensions between traditionalization and modernity in Japan.

Zimic and Dalin, writing from a similar heavily connected Nordic region, pose a different set of questions in their essay, “Actual and Perceived Online Participation Among Young People in Sweden.” For Zimic and Dalin, in a space where connectivity can be taken for granted, the further question to ask is not whether digital natives participate online or not, but whether they participate in ways that are expected of “a digital citizen in the information age” (p. 137). Through empirical data and case studies, the essay shows the different kinds of activities that youth engage with and also concludes that though engaging in civic issues is important to the young people’s sense of belonging to participatory cultures, using the Internet does not provide an “automatic guarantee” toward participation, and “assistance is required in order to engage them in relevant activities” (p. 148).

The second set of essays in this section all cluster around the digital native as a student. Locating the digital native within educational institutions, they look at the ways in which the ideas of learning, pedagogy and engagement with the text are changing with the rise of digital technologies. Levy and Michael look at two case studies involving students in Australian high schools, to “facilitate a deeper understanding of products and processes in multimodal text construction,” which they think is core to interactive communication technology literacy skills (p. 85). The data is rigorous and rich, but the conclusions are a bit of a disappointment: digital natives need to better manage their time and resources and they need to learn traditional skills in order to cope with their educational environment.

The trend of an exciting hypothesis and conclusion, which do not necessarily leave you with anything more than what you already knew, continues in this section. Erstad sets out on a journey to see how digital literacy posits challenges to educating the digital generation and ends by suggesting that the digital divide should address questions of “how to navigate in the information jungle on the Internet, to create, to communicate, and so forth” (p. 114). Similarly, Kennedy and Judd want to unravel the mystery of why “students, who are so clearly familiar and apparently adept with Internet tools, are at times so poor at using the Internet academically” (p. 119). Through empirical research and interaction with students, they end up making an argument against the Googlization of everything (Vaidhyanathan, 2011), suggesting that “satisficing strategies” of information search, defined by a need for instant gratification and not looking beyond the first information sets, has produced “a generation of students that has grown up with Google [who] may over-value expediency when locating and selecting appropriate scholarly information” (p. 132). On similar trends, Levy proposes to question the assumption of whether all “young children are inherently ‘native’ users of digital technology” for implications on our future pedagogy within the new textual landscape (p. 152). The case studies and the frameworks built are interesting, but they reveal nothing more than the claim that the essay begins with by Marsh et al. (2005) and Bearne et al. (2007) that “young children are immersed in ‘digital practices’ from an early age and that they often develop skills in handling screen texts even when they are not exposed directly to computers at their own homes” (Levy, 2011, p. 163). The implication is clear: change our schools to accommodate for these new textual practices and help children capitalize on their digital competence and develop “digital wisdom.” But it is a recommendation that has been around for at least a decade, if not more.

The third and concluding section of the book, “Beyond Digital Natives,” is possibly the most promising part of the book. Bennett and Maton seek to look beyond “nuanced versions of the idea” and move the debate on to firmer grounds of how the rise of the digital natives is going to affect the policies around educational technology” (p. 169). They engage with a body of work that is specifically oriented toward building empirical evidence-based frameworks for understanding the potential role of technology in education. With a fine conceptual tool that makes distinctions between access and usage, they systemically dismiss the “academic moral panic” that characterizes conversations around youth-technology-change.

For Bennett and Maton, the object of inquiry is not the digital native but the body of discourse that surrounds this particular entity—and they make a plea for research rather than imaginings, showing how the influential work in the area has been plagued by unsupported claims, unevidenced observations, and futuristic imaginations, which paint a poetic picture of digital natives but offer very little in terms of furthering the argument. It is also noteworthy that they do not flinch from critiquing the colleagues who also feature in the same book, as an idealizing and homogenizing group that has shown “diversity rather than conformity” (p. 181).

Palfrey and Gasser, whose Born Digital (2008) has been the guide for lay readers to understand the nuances and complexities of the area, in their essay, begin by acknowledging that “digital natives” is an awkward term. However, they argue, it is still a term that resonates deeply with parents and educators, and that this resonance should not be taken lightly by researchers. Their decision was to use this term, albeit with caution and discretion, strategically to refer to a small subset of young people and the gamut of relationships and engagements they have with digital technologies. The suggestion is to use the term and in every usage, look at the unevennesses and awkwardness it creates, thus actually unpacking an otherwise opaque relationship which is reduced to “usage” or “access.” Their concerns are more about the quality of information and access, infrastructure for critical literacy and digital fluency, and making legible these everyday practices to larger implications for a future that they posit is bright and hopeful.

Deconstructing Digital Natives is an interesting revisit of a term that has grown in different ways through the first decade of the new millennium. However, the book still remains located in the same geopolitics in which the early discourse of digital natives were grounded—developed, privileged locations where connectivity, affordability, and ubiquitous digital literacy are taken for granted—reminiscent of the frantic cries one hears in piracy markets in Bangkok, “same, same, but different.” The revisiting does not seem to feel the need to explore other contexts. A few essays talk about factoring in local and contextual information in understanding digital natives, but the scholarship reinforces the idea of how technologies shape and are shaped by identities in some parts of the world, and that these identities can be heralded as universally viable, with a little nuancing.

The questions that have emerged in this discourse in the recent years, remain ignored. What does a digital native look like in the Global South? Can we have new concepts and frameworks which emerge from these contexts? Is it possible to produce accounts in languages and ideas that are embedded in everyday practices rather than forcing them to become legible in existing vocabularies? One would hope that the next book that deconstructs digital natives would also deconstruct the prejudices, presumptions, and methodological processes that are embedded in this field.

References

Bearne, E., Clark, C., Johnson, A., Manford, P., Motteram, M., & Wolsencroft, H. (2007). Reading on screen. Leicester: UKLA.
Marsh, J., Brookes, G., Hughes, J., Ritchie, L, Roberts, S., & Wright, K. (2005). Digital beginnings: Young children’s use of popular culture, media and new technologies. Sheffield: Literacy Research Centre, University of Sheffield.
Palfrey, J., & Gasser, U. (2008). Born digital. New York, NY: Basic Books.
Turkle, S. (2011). Alone together: Why we expect more from technology and less from each other, NY. New York: Basic Books.
Vaidhyanthan, S. (2011). The Googlization of everything: (And why we should worry). Berkeley, CA: University of California Press.

Nishant Shah is the Director-Research at the Bangalore-based Centre for Internet and Society. He is the principal researcher for a Global South inquiry into digital natives and sociopolitical change, and recently edited four-volume book, Digital AlterNatives with a Cause?, which is available as a free download at http://cis-india.org/digital-natives/blog/dnbook. Correspondence to: Nishant Shah, Centre for Internet and Society, Bangalore, India. E-mail: nishant@cis-india.org

Download the file (originally published by Taylor & Francis) here [PDF, 66 Kb]

Read the original published by Taylor & Francis here

For more details visit https://cis-india.org/digital-natives/young-people-technology-new-literacies

Fill The Gap: Global Discussion on Digital Natives

nishant — 2010-01-22T10:54:13Z

More often than not people don't understand the new practices inspired by Internet and digital technologies. As such a series of accusations have been leveled against the Digital Natives. Educators, policy makers, scholars, and parents have all raised their worries without hearing out from the people they are concerned about. Hivos has initiated an online global discussion about Digital Natives. So, to voice your opinion, start tweeting with us now #DigitalNatives.

If you cannot attend Fill The Gap, you can also join us in a global discussion on some of the issues being discussed at #DigitalNatives

1. Are you an apolitical consumer, or do you have ambitions?

http://www.tweetworks.com/groups/view/DigitalNatives

2. Are you a little prince or princess, who only wants to talk to like minded people or are you different?

http://www.tweetworks.com/groups/view/DigitalNativesPrincess

3. Is Wikipedia your bible or do you really know something?

http://www.tweetworks.com/groups/view/DigitalNativesWiki

4. Are you a digital dinosaur? They say you don’t know anything about ICT!

http://www.tweetworks.com/groups/view/DigitalDinosaur

5. Why use the Internet, why don’t you march the streets?

http://www.tweetworks.com/groups/view/DigitalNativesProtest

6. Plans to change the world? What do you need?

http://www.tweetworks.com/groups/view/DigitalNativesChanceTheWorld

If you are in Amsterdam, here is the information you will need to attend the event:

Fill the Gap! - 7

R U Online?

Date: 15 January 2010

Time: 12.30 until 17.00 hour

Location: Het Sieraad, Postjesweg 1, Amsterdam

The seventh edition of Fill the Gap! is all about the power of youth and IT in developing countries. How can their skills be strengthened and put to use for a better world? Hivos, apart from cohosting the event, will be involving digital natives to hear their stories about ICT and engagement.

An Open Space event on the potential of new (mobile) media and youth in developing countries. For everyone in politics, the profit and the non-profit sectors who is interested in ICT and international development cooperation.

The use of new (mobile) technology is the most natural thing in the world for the youth of today.

Shaped by the digital era and at ease with creativeity, these innovators use new media to change the world. Just think of the Twitter revolution in Iran. What can the international development sector learn from this? How could international development cooperation use the potential power of youth to tackle development problems?

The seventh edition of Fill the Gap! is all about the power of youth and IT in developing countries. How can their skills be strengthened and put to use for a better world? The kick-off will be hosted by Jennifer Corriero, co-founder of Taking IT Global: the international platform for youth and the use of new media for a better world. Then the floor is open to discuss your own ideas with people from new media, the business world and the international development sector during the Open Space sessions. Join in: come to Amsterdam on Friday January 15th and be inspired during Fill the Gap!

Registration is free. The programme is in English.

» Fill the Gap

For more details visit https://cis-india.org/research/grants/digital-natives-with-a-cause/dntweet

Open Data Hackathons are Great, but Address Privacy and License Concerns

sumandro — 2016-02-05T20:37:18Z

This is to cross-publish a blog post from DataMeet website regarding a letter shared with the organisers of Urban Hack 2015, Bangalore, in response to a set of privacy and license concerns identified and voiced during the hackathon by DataMeet members. Sumandro Chattapadhyay co-authored and co-signed the letter. The blog post is written by Nisha Thompson.

Hackathons are a source of confusion and frustration for us. DataMeet actively does not do them unless there is a very specific outcome the community wants like freeing a whole dataset or introducing open data to a new audience. We feel that they cause burn out, are not productive, and in general don't help create a healthy community of civic tech and open data enthusiasts.

That is not to say we feel others shouldn't do them, they are very good opportunities to spark discussion and introduce new audiences to problems in the social sector. DataKind and RHOK and numerous others host hackathons or variations of them regularly to stir the pot, bring new people into civic tech and they can be successful starts to long term connections and experiments. A lot of people in the DataMeet community participate and enjoy hackathons.

However, with great data access comes great responsibility. We always want to make sure that even if no output is achieved when a dataset is opened at least no harm should be done.

Last October an open data hackathon, Urban Hack, run by Hacker Earth, NASSCOM, XEROX, IBM and World Resource Institute India wanted to bring out open data and spark innovation in the transport and crime space by making datasets from Bangalore Metropolitan Transport Corporation (BMTC) and the Bangalore City Police available to work with. A DataMeet member (Srinivas Kodali) was participating, he is a huge transport data enthusiast and wanted to take a look at what is being made available.

In the morning shortly after it started I received a call from him that there is a dataset that was made available that seems to be violating privacy and data security. We contacted the organizers and they took it down, later we realized it was quite a sensitive dataset and a few hundred people had already downloaded it. We were also distressed that they had not clarified ownership of data, license of data, and had linked to sources like Open Bangalore without specifying licensing, which violated the license.

The organizers were quite noted and had been involved with hackathons before so it was a little distressing to see these mistakes being made. We were concerned that the government partners (who had not participated in these types of events before) were also being exposed to poor practices. As smart cities initiatives take over the Indian urban space, we began to realize that this is a mistake that shouldn't happen again.

Along with Centre for Internet and Society and Random Hacks of Kindness we sent the organizers, Bangalore City Police and BMTC a letter about the breach in protocol. We wanted to make sure everyone was aware of the issues and that measures were taken to not repeat these mistakes.

You can see the letter here:

We are very proud of the DataMeet community and Srinivas for bringing this violation to the attention of the organizers. As people who participate in hackathons and other data events it is imperative that privacy and security are kept in mind at all times. In a space like India where a lot of these concepts are new to institutions, like the Government, it is essential that we are always using opportunities not only to showcase the power of open data but also good practices for protecting privacy and ensuring security.

Originally posted on DataMeet website: http://datameet.org/2016/02/02/to-hack-or-not-to-hack/.

For more details visit https://cis-india.org/openness/open-data-hackathons-are-great-but-address-privacy-and-license-concerns