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Rebuttal of DIT's Misleading Statements on New Internet Rules
https://cis-india.org/internet-governance/blog/rebuttal-dit-press-release-intermediaries
<b>The press statement issued on May 11 by the Department of Information Technology (DIT) on the furore over the newly-issued rules on 'intermediary due diligence' is misleading and is, in places, plainly false. We are presenting a point-by-point rebuttal of the DIT's claims.</b>
<p>In its <a class="external-link" href="http://pib.nic.in/newsite/erelease.aspx?relid=72066">press release on Wednesday, May 11, 2011</a>, the DIT stated:
<blockquote>The
attention of Government has been drawn to news items in a section of
media on certain aspects of the Rules notified under Section 79
pertaining to liability of intermediaries under the Information
Technology Act, 2000. These items have raised two broad issues. One is
that words used in Rules for objectionable content are broad and could
be interpreted subjectively. Secondly, there is an apprehension that the
Rules enable the Government to regulate content in a highly subjective
and possibly arbitrary manner. <br /></blockquote>
<p>There are actually more issues than merely "subjective interpretation" and "arbitrary governmental regulation".</p>
<ul><li style="list-style-type: disc;">The
Indian Constitution limits how much the government can regulate
citizens’ fundamental right to freedom of speech and expression. Any
measure afoul of the constitution is invalid. </li><li style="list-style-type: disc;">Several
portions of the rules are beyond the limited powers that Parliament had
granted the Department of IT to create interpretive rules under the
Information Technology Act. Parliament directed the Government to merely
define what “due diligence” requirements an intermediary would have to
follow in order to claim the qualified protection against liability that
Section 79 of the Information Technology Act provides; these current
rules have gone dangerously far beyond that, by framing rules that
insist that intermediaries, without investigation, has to remove content within 36-hours of receipt of a
complaint, keep records of a users' details and provide them to
law enforcement officials.</li></ul>
<p>The Department of Information Technology (DIT), Ministry of
Communications & IT has clarified that the Intermediaries Guidelines
Rules, 2011 prescribe that due diligence need to be observed by the
Intermediaries to enjoy exemption from liability for hosting any third
party information under Section 79 of the Information Technology Act,
2000. These due diligence practices are the best practices followed
internationally by well-known mega corporations operating on the
Internet. The terms specified in the Rules are in accordance with the
terms used by most of the Intermediaries as part of their existing
practices, policies and terms of service which they have published on
their website.</p>
<ol><li>We are not aware of any country that actually goes to the extent of
deciding what Internet-wide ‘best practices’ are and actually converting
those ‘best practices’ into law by prescribing a universal terms of
service that all Internet services, websites, and products should enforce.</li><li>The Rules require all intermediaries to include the
government-prescribed terms in an agreement, no matter what services
they provide. It is one thing for a company to choose the terms of its
terms of service agreement, and completely another for the government to
dictate those terms of service. As long as the terms of service of an
intermediary are not unlawful or bring up issues of users’ rights (such
as the right to privacy), there is no reason for the government to jump
in and dictate what the terms of service should or should not be.</li><li>The DIT has not offered any proof to back up its assertion that 'most'
intermediaries already have such terms. Google, a ‘mega corporation’
which is an intermediary, <a class="external-link" href="http://www.google.com/accounts/TOS?hl=en">does not have such an overarching policy</a>. Indiatimes, another ‘mega
corporation’ intermediary, <a class="external-link" href="http://www.indiatimes.com/policyterms/1555176.cms">does not either</a>. Just because <a class="external-link" href="http://www.rediff.com/termsofuse.html">a
company like Rediff</a> and <a class="external-link" href="http://us.blizzard.com/en-us/company/legal/wow_tou.html">
Blizzard's World of Warcraft</a> have some of those terms does not mean a) that they should have all of those terms, nor that b) everyone else should as well.<br /><br />In
attempting to take different terms of service from different Internet
services and products—the very fact of which indicate the differing
needs felt across varying online communities—the Department has put in
place a one-size-fits-all approach. How can this be possible on the Internet, when we wouldn't regulate the post-office and a book publisher under the same rules of liability for, say, defamatory speech.</li><li>There is also a significant difference between the effect of those
terms of service and that of these Rules. An intermediary-framed terms of service
suggest that the intermediary <em>may</em> investigate and boot someone off a service for violation, while the Rules insist that
the intermediary simply has to mandatorily remove content, keep records of users' details and provide them to law enforcement officials,
else be subject to crippling legal liability.</li></ol>
<p>So
to equate the effect of these Rules to merely following ‘existing
practices’ is plainly wrong. An intermediary—like the CIS website—should have the freedom to choose not to have terms of service
agreements. We now don’t.“In case any issue arises concerning the interpretation of the terms
used by the Intermediary, which is not agreed to by the user or affected
person, the same can only be adjudicated by a Court of Law. The
Government or any of its agencies have no power to intervene or even
interpret. DIT has reiterated that there is no intention of the
Government to acquire regulatory jurisdiction over content under these
Rules. It has categorically said that these rules do not provide for any
regulation or control of content by the Government.”</p>
<p>The
Rules are based on the presumption that all complaints (and resultant
mandatory taking down of the content) are correct, and that the
incorrectness of the take-downs can be disputed in court. Why not just
invert that, and presume that all complaints need to be proven first, and the correctness of the complaints (instead of the take-downs) be disputed in court? </p>
<p>Indeed,
the courts have insisted that presumption of validity is the only
constitutional way of dealing with speech. (See, for instance, <em>Karthikeyan R. v. Union
of India</em>, a 2010 Madras High Court judgment.)</p>
<p>Further,
only constitutional courts (namely High Courts and the Supreme Court)
can go into the question of the validity of a law. Other courts have to
apply the law, even if it the judge believes it is constitutionally
invalid. So, most courts will be forced to apply this law of highly
questionable constitutionality until a High Court or the Supreme Court
strikes it down.</p>
<p>What
the Department has in fact done is to explicitly open up the floodgates
for increased liability claims and litigation - which runs exactly
counter to the purpose behind the amendment of Section 79 by Parliament
in 2008.</p>
<blockquote>“The
Government adopted a very transparent process for formulation of the
Rules under the Information Technology Act. The draft Rules were
published on the Department of Information Technology website for
comments and were widely covered by the media. None of the Industry
Associations and other stakeholders objected to the formulation which is
now being cited in some section of media.”<br /></blockquote>
<p>This is a blatant lie.</p>
<p>Civil
society voices, including <a href="https://cis-india.org/internet-governance/blog/2011/02/25/intermediary-due-diligence" class="external-link">CIS</a>, <a class="external-link" href="http://www.softwarefreedom.in/index.php?option=com_idoblog&task=viewpost&id=86&Itemid=70">Software Freedom Law Centre</a>, and
individual experts (such as the lawyer and published author <a class="external-link" href="http://www.iltb.net/2011/02/draft-rules-on-intermediary-liability-released-by-the-ministry-of-it/">Apar Gupta</a>)
sent in comments. Companies <a class="external-link" href="http://online.wsj.com/article/SB10001424052748704681904576314652996232860.html?mod=WSJINDIA_hps_LEFTTopWhatNews">such as Google</a>, <a class="external-link" href="http://e2enetworks.com/2011/05/13/e2e-networks-response-to-draft-rules-for-intermediary-guidelines/">E2E Networks</a>, and others had apparently
raised concerns as well. The press has published many a cautionary note, including editorials, op-ed and articles in <a class="external-link" href="http://www.thehindu.com/opinion/lead/article1487299.ece">the</a> <a class="external-link" href="http://www.thehindu.com/opinion/editorial/article1515144.ece">Hindu</a>, <a class="external-link" href="http://www.thehoot.org/web/home/story.php?sectionId=6&mod=1&pg=1&valid=true&storyid=5163">the Hoot</a>, Medianama.com, and Kafila.com, well before the new rules were notified. We at CIS even received a 'read notification'
from the email account of the Group Coordinator of the DIT’s Cyber Laws
Division—Dr. Gulshan Rai—on Thursday, March 3, 2011 at 12:04 PM (we had
sent the mail to Dr. Rai on Monday, February 28, 2011). We never
received any acknowledgement, though, not even after we made an express
request for acknowledgement (and an offer to meet them in person to
explain our concerns) on Tuesday, April 5, 2011 in an e-mail sent to Mr.
Prafulla Kumar and Dr. Gulshan Rai of DIT.</p>
<p>The
process can hardly be called 'transparent' when the replies received
from 'industry associations and other stakeholders' have not been made
public by the DIT. Those comments which are public all indicate that
serious concerns were raised as to the constitutionality of the Rules.</p>
<p>The Government has been forward looking to create a conducive
environment for the Internet medium to catapult itself onto a different
plane with the evolution of the Internet. The Government remains fully
committed to freedom of speech and expression and the citizen’s rights
in this regard.</p>
<p><span id="internal-source-marker_0.8528041979429147">The DIT has limited this statement to the rules on intermediary due
diligence, and has not spoken about the controversial new rules that
stifle cybercafes, and restrict users' privacy and freedom to receive
information.<br /></span></p>
<p><span id="internal-source-marker_0.8528041979429147"></span>If
the government is serious about creating a conducive environment for
innovation, privacy and free expression on the Internet, then it wouldn’t be
passing Rules that curb down on them, and it definitely will not be
doing so in such a non-transparent fashion.</p></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/rebuttal-dit-press-release-intermediaries'>https://cis-india.org/internet-governance/blog/rebuttal-dit-press-release-intermediaries</a>
</p>
No publisherpraneshFreedom of Speech and ExpressionIT ActFeaturedIntermediary Liability2012-07-11T13:18:04ZBlog EntryRBI Directions on Account Aggregators
https://cis-india.org/internet-governance/blog/rbi-directions-on-account-aggregators
<b>The Reserve Bank of India's (RBI) Directions for account aggregator services in India seem to lay great emphasis on data security by allowing only direct access between institutions and do away with data scraping techniques.</b>
<p style="text-align: justify; ">These days’ people have access to various financial services and manage their finances in a diverse manner while dealing with a large number of financial service providers, each providing one or more services that the user may need such as banking, credit card services, investment services, etc. This multiplicity of financial service providers could make it inconvenient for the users to keep track of their finances since all the information cannot be provided at the same place. This problem is sought to be solved by the account aggregators by providing all the financial data of the user at a single place. Account aggregation is the consolidation of online financial account information (e.g., from banks, credit card companies, etc.) for online retrieval at one site. In a typical arrangement, an intermediary (e.g., a portal) agrees with a third party service provider to provide the service to consumers, the intermediary would then generally privately label the service and offer consumers access to it at the intermediary’s website.<a href="#_ftn1" name="_ftnref1">[1]</a> There are two major ways in which account aggregation takes place, (i) <i>direct access</i>: wherein the account aggregator gets direct access to the data of the user residing in the computer system of the financial service provider; and (ii) <i>scraping</i>: where the user provides the account aggregator the username and password for its account in the different financial service providers and the account aggregator scrapes the information off the website/portal of the different financial service providers.</p>
<p style="text-align: justify; ">Since account aggregation involves the use and exchange of financial information there could be a number of potential risks associated with it such as (i) loss of passwords; (ii) frauds; (iii) security breaches at the account aggregator, etc. It is for this reason that on the advice of the Financial Stability and Development Council,<a href="#_ftn2" name="_ftnref2">[2]</a> the Reserve Bank of India (“<b>RBI</b>”) felt the need to regulate this sector and on September 2, 2016 issued the Non-Banking Financial Company - Account Aggregator (Reserve Bank) Directions, 2016 to provide a framework for the registration and operation of Account Aggregators in India (the “<b>Directions</b>”). The Directions provide that no company shall be allowed to undertake the business of account aggregators without being registered with the RBI as an NBFC-Account Aggregator. The Directions also specify the conditions that have to be fulfilled for consideration of an entity as an Account Aggregator such as:</p>
<ol style="text-align: justify; ">
<li>the company should have a net owned fund of not less than rupees two crore, or such higher amount as the Bank may specify;</li>
<li>the company should have the necessary resources and wherewithal to offer account aggregator services;</li>
<li>the company should have adequate capital structure to undertake the business of an account aggregator;</li>
<li>the promoters of the company should be fit and proper individuals;</li>
<li>the general character of the management or proposed management of the company should not be prejudicial to the public interest;</li>
<li>the company should have a plan for a robust Information Technology system;</li>
<li>the company should not have a leverage ratio of more than seven;</li>
<li>the public interest should be served by the grant of certificate of registration; and</li>
<li>Any other condition that made be specified by the Bank from time to time.<a href="#_ftn3" name="_ftnref3">[3]</a></li>
</ol>
<p style="text-align: justify; ">The Direction further talk about the responsibilities of the Account Aggregators and specify that the account aggregators shall have the duties such as: (a) Providing services to a customer based on the customer’s explicit consent; (b) Ensuring that the provision of services is backed by appropriate agreements/ authorisations between the Account Aggregator, the customer and the financial information providers; (c) Ensuring proper customer identification; (d) Sharing the financial information only with the customer or any other financial information user specifically authorized by the customer; (e) Having a Citizen's Charter explicitly guaranteeing protection of the rights of a customer.<a href="#_ftn4" name="_ftnref4">[4]</a></p>
<p style="text-align: justify; ">The Account Aggregators are also prohibited from indulging in certain activities such as: (a) Support transactions by customers; (b) Undertaking any other business other than the business of account aggregator; (c) Keeping or “residing” with itself the financial information of the customer accessed by it; (d) Using the services of a third party for undertaking its business activities; (e) Accessing user authentication credentials of customers; (f) Disclosing or parting with any information that it may come to acquire from/ on behalf of a customer without the explicit consent of the customer.<a href="#_ftn5" name="_ftnref5">[5]</a> The fact that there is a prohibition on the information accessed from actually residing with the Account Aggregator will ensure greater security and protection of the information.</p>
<p style="text-align: justify; "><b>Consent Framework</b></p>
<p style="text-align: justify; ">The Directions specify that the function of obtaining, submitting and managing the customer’s consent should be performed strictly in accordance with the Directions and that no information shall be retrieved, shared or transferred without the explicit consent of the customer.<a href="#_ftn6" name="_ftnref6">[6]</a> The consent is to be taken in a standardized artefact, which can also be obtained in electronic form,<a href="#_ftn7" name="_ftnref7">[7]</a> and shall contain details as to (i) the identity of the customer and optional contact information; (ii) the nature of the financial information requested; (iii) purpose of collecting the information; (iv) the identity of the recipients of the information, if any; (v) URL or other address to which notification needs to be sent every time the consent artefact is used to access information; (vi) Consent creation date, expiry date, identity and signature/ digital signature of the Account Aggregator; and (vii) any other attribute as may be prescribed by the RBI.<a href="#_ftn8" name="_ftnref8">[8]</a> The account aggregator is required to inform the customer of all the necessary attributes to be contained in the consent artefact as well as the customer’s right to file complaints with the relevant authorities.<a href="#_ftn9" name="_ftnref9">[9]</a> The customers shall also be provided an option to revoke consent to obtain information that is rendered accessible by a consent artefact, including the ability to revoke consent to obtain parts of such information.<a href="#_ftn10" name="_ftnref10">[10]</a></p>
<p style="text-align: justify; ">Comments: While the Directions have specific provisions regarding how the financial data shall be dealt with, it is pertinent to note that the actual consent artefact also has personal information and it is not clear whether Account Aggregators are allowed disclose that information to third parties are not.</p>
<p style="text-align: justify; "><b>Disclosure and sharing of financial information</b></p>
<p style="text-align: justify; ">Financial information providers such as banks, mutual funds, etc. are allowed to share information with account aggregators only upon being presented with a valid consent artifact and also have the responsibility to verify the consent as well as the credentials of the account aggregator.<a href="#_ftn11" name="_ftnref11">[11]</a> Once the verification is done, the financial information provider shall digitally sign the financial information and transmit the same to the Account Aggregator in a secure manner in real time, as per the terms of the consent.<a href="#_ftn12" name="_ftnref12">[12]</a> In order to ensure smooth flow of data, the Directions also impose an obligation on financial information providers to:</p>
<ul style="text-align: justify; ">
<li>implement interfaces that will allow an Account Aggregator to submit consent artefacts, and authenticate each other, and enable secure flow of financial information;</li>
<li>adopt means to verify the consent including digital signatures;</li>
<li>implement means to digitally sign the financial information; and</li>
<li>maintain a log of all information sharing requests and the actions performed pursuant to such requests, and submit the same to the Account Aggregator.<a href="#_ftn13" name="_ftnref13">[13]</a></li>
</ul>
<p style="text-align: justify; ">Comments: The Directions provide that the Account Aggregator will not support any transactions by the customers and this seems to suggest that in case of any mistakes in the information the customer would have to approach the financial information provider and not the Account Aggregator.</p>
<p style="text-align: justify; "><b>Use of Information</b></p>
<p style="text-align: justify; ">The Directions provide that in cases where financial information has been provided by a financial information provider to an Account Aggregator for transferring the same to a financial information user with the explicit consent of the customer, the Account Aggregator shall transfer the same in a secure manner in accordance with the terms of the consent artefact only after verifying the identity of the financial information user.<a href="#_ftn14" name="_ftnref14">[14]</a> Such information, as well as information which may be provided for transferring to the customer, shall not be used or disclosed by the Account Aggregator or the Financial Information user except as specified in the consent artefact.<a href="#_ftn15" name="_ftnref15">[15]</a></p>
<p style="text-align: justify; "><b>Data Security</b></p>
<p style="text-align: justify; ">The Directions specify that the business of an Account Aggregator will be entirely Information Technology (IT) driven and they are required to adopt <b>required IT framework</b> and interfaces to ensure secure data flows from the financial information providers to their own systems and onwards to the financial information users.<a href="#_ftn16" name="_ftnref16">[16]</a> This technology should also be scalable to cover any other financial information or financial information providers as may be specified by the RBI in the future.<a href="#_ftn17" name="_ftnref17">[17]</a> The IT systems should also have adequate safeguards to ensure they are protected against unauthorised access, alteration, destruction, disclosure or dissemination of records and data.<a href="#_ftn18" name="_ftnref18">[18]</a> Information System Audit of the internal systems and processes should be in place and be conducted at least once in two years by CISA certified external auditors whose report is to be submitted to the RBI.<a href="#_ftn19" name="_ftnref19">[19]</a> The Account Aggregators are prohibited from asking for or storing customer credentials (like passwords, PINs, private keys) which may be used for authenticating customers to the financial information providers and their access to customer’s information will be based only on consent-based authorisation (for scraping).<a href="#_ftn20" name="_ftnref20">[20]</a></p>
<p style="text-align: justify; "><b>Grievance Redressal</b></p>
<p style="text-align: justify; ">The Directions require the Account Aggregator to put in place a policy for handling/ disposal of customer grievances/ complaints, which shall be approved by its Board and also have a dedicated set-up to address customer grievances/ complaints which shall be handled and addressed in the manner prescribed in the policy.<a href="#_ftn21" name="_ftnref21">[21]</a> The Account Aggregator also has to display the name and details of the Grievance Redressal Officer on its website as well as place of business.<a href="#_ftn22" name="_ftnref22">[22]</a></p>
<p style="text-align: justify; "><b>Supervision</b></p>
<p style="text-align: justify; ">The Directions require the Account Aggregators to put in place various internal checks and balances to ensure that the business of the Account Aggregator does not violate any laws or regulations such as constitution of an Audit Committee, a Nomination Committee to ensure the “fit and proper” status of its Directors, a Risk Management Committee and establishment of a robust and well documented risk management framework.<a href="#_ftn23" name="_ftnref23">[23]</a> The Risk Management Committee is required to (a) give due consideration to factors such as reputation, customer confidence, consequential impact and legal implications, with regard to investment in controls and security measures for computer systems, networks, data centres, operations and backup facilities; and b) have oversight of technology risks and ensure that the organisation’s IT function is capable of supporting its business strategies and objectives.<a href="#_ftn24" name="_ftnref24">[24]</a> Further the RBI also has the power to inspect any Account Aggregator at any time.<a href="#_ftn25" name="_ftnref25">[25]</a></p>
<p style="text-align: justify; "><b>Penalties</b></p>
<p style="text-align: justify; ">The Directions themselves do not provide for any penalties for non compliance, however since the Directions are issued under Section 45JA of the Reserve Bank of India Act, 1934 (“<b>RBI Act</b>”), this means that any contravention of these directions will be punishable under Section 58B of the RBI Act which provides for an imprisonment of upto 3 years as well as a fine for any contravention of such directions.</p>
<p style="text-align: justify; "><b>Conclusion</b></p>
<p style="text-align: justify; ">The Directions by the RBI provide a number of regulations and checks on Account Aggregators with the view to ensure safety of customer financial data. These Directions appear to be quite trendsetting in the sense that in most other jurisdictions such as the United States or even Europe there are no specific regulations governing Account Aggregators but their activities are mainly being governed under existing privacy or consumer protection legislations.<a href="#_ftn26" name="_ftnref26">[26]</a></p>
<p style="text-align: justify; ">The entire regulatory regime for Account Aggregators seems to suggest that the RBI wants Account Aggregators to be like funnels to channel information from various platforms right to the customer (or financial information user) and it does not want to take a chance with the information actually residing with the Account Aggregators. Further, by prohibiting Account Aggregators from accessing user authentication credentials, the RBI is trying to eliminate the possibility of this information being leaked or stolen. Although this may make it more onerous for Account Aggregators to provide their services, it is a great step to ensure the safety and security of customer data.</p>
<p style="text-align: justify; ">In recent months the RBI has been trying to actively engage with the various new products being introduced in the financial sector owing to various technological advancements, be it the circular informing the public about the risks of virtual currencies including Bitcoin, the consultation paper on P2P lending platforms or these current guidelines on Account Aggregators. These recent actions of the RBI seem to suggest that the RBI is well aware of various technological advancements in the financial sector and is keeping a keen eye on these technologies and products, but appears to be taking a cautious and weighted approach regarding how to deal with them.</p>
<hr />
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1">[1]</a> Ann S. Spiotto, <i>Financial Account Aggregation: The Liability Perspective</i>, Fordham Journal of Corporate & Financial Law, 2006, Volume 8, Issue 2, Article 6, available at <a href="http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1181&context=jcfl">http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=1181&context=jcfl</a></p>
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2">[2]</a> <a href="https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=34345">https://rbi.org.in/scripts/BS_PressReleaseDisplay.aspx?prid=34345</a></p>
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3">[3]</a> Clause 4.2.2 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4">[4]</a> Clause 5 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5">[5]</a> Clause 5 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref6" name="_ftn6">[6]</a> Clauses 6.1 and 6.2 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref7" name="_ftn7">[7]</a> Clause 6.4 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref8" name="_ftn8">[8]</a> Clause 6.3 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref9" name="_ftn9">[9]</a> Clause 6.5 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10">[10]</a> Clause 6.6 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref11" name="_ftn11">[11]</a> Clauses 7.1 and 7.2 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref12" name="_ftn12">[12]</a> Clauses 7.3 and 7.4 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref13" name="_ftn13">[13]</a> Clause 7.5 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref14" name="_ftn14">[14]</a> Clause 7.6.1 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref15" name="_ftn15">[15]</a> Clause 7.6.2 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref16" name="_ftn16">[16]</a> Clause 9(a) of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref17" name="_ftn17">[17]</a> Clause 9(c) of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref18" name="_ftn18">[18]</a> Clause 9(d) of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref19" name="_ftn19">[19]</a> Clause 9(f) of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref20" name="_ftn20">[20]</a> Clause 9(b) of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref21" name="_ftn21">[21]</a> Clauses 10.1 and 10.2 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref22" name="_ftn22">[22]</a> Clause 10.3 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref23" name="_ftn23">[23]</a> Clauses 12.2, 12.3 and 12.4 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref24" name="_ftn24">[24]</a> Clause 12.4 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref25" name="_ftn25">[25]</a> Clause 15 of the Directions.</p>
<p style="text-align: justify; "><a href="#_ftnref26" name="_ftn26">[26]</a> <a href="http://www.canadiancybersecuritylaw.com/2016/07/german-regulator-finds-banks-data-rules-impede-non-bank-competitors/">http://www.canadiancybersecuritylaw.com/2016/07/german-regulator-finds-banks-data-rules-impede-non-bank-competitors/</a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/rbi-directions-on-account-aggregators'>https://cis-india.org/internet-governance/blog/rbi-directions-on-account-aggregators</a>
</p>
No publisherVipul Kharbanda and Elonnai HickokBankingFeaturedInternet GovernancePrivacy2016-10-21T15:25:01ZBlog EntryPublic Consultation for the First Draft of 'Government Open Data Use License - India' Announced
https://cis-india.org/openness/public-consultation-for-the-first-draft-of-government-open-data-use-license-india-announced
<b>The first public draft of the open data license to be used by Government of India was released by the Department of Legal Affairs earlier this week. Comments are invited from general public and stakeholders. These are to be submitted via the MyGov portal by July 25, 2016. CIS was a member of the committee constituted to develop the license concerned, and we contributed substantially to the drafting process.
</b>
<p> </p>
<h4>Please read the call for comments <a class="external-link" href="https://www.mygov.in/group-issue/public-consultation-government-open-data-use-license-india/">here</a>.</h4>
<h4>The PDF version of the draft license document can be accessed <a class="external-link" href="https://www.mygov.in/sites/default/files/mygov_1466767582190667.pdf">here</a>.</h4>
<h4><em>Comments are to be submitted by July 25, 2016.</em></h4>
<hr />
<h4 style="text-align: center;"><strong>Government Open Data Use License - India</strong></h4>
<h4 style="text-align: center;"><strong>National Data Sharing and Accessibility Policy</strong></h4>
<h4 style="text-align: center;"><strong>Government of India</strong></h4>
<h2>1. Preamble</h2>
<p style="text-align: justify;">Structured data available in open format and open license for public access and use, usually termed as “Open Data,” is of prime importance in the contemporary world. Data also is one of the most valuable resources of modern governance, sharing of which enables various and non-exclusive usages for both commercial and non-commercial purposes. Licenses, however, are crucial to ensure that such data is not misused or misinterpreted (for example, by insisting on proper attribution), and that all users have the same and permanent right to use the data.</p>
<p style="text-align: justify;">The open government data initiative started in India with the notification of the National Data Sharing and Accessibility Policy (NDSAP), submitted to the Union Cabinet by the Department of Science and Technology, on 17th March 2012 <strong>[1]</strong>. The NDSAP identified the Department of Electronics & Information Technology (DeitY) as the nodal department for the implementation of the policy through National Informatics Centre, while the Department of Science and Technology continues to be the nodal department on policy matters. In pursuance of the Policy, the Open Government Data Platform India <strong>[2]</strong> was launched in 2012.</p>
<p style="text-align: justify;">While, the appropriate open formats and related aspects for implementation of the Policy has been defined in the “NDSAP Implementation Guidelines” prepared by an inter- ministerial Task Force constituted by the National Informatics Centre <strong>[3]</strong>, the open license for data sets published under NDSAP and through the OGD Platform remained unspecified till now.</p>
<h2>2. Definitions</h2>
<p style="text-align: justify;">a. <strong>“Data”</strong> means a representation of Information, numerical compilations and observations, documents, facts, maps, images, charts, tables and figures, concepts in digital and/or analog form, and includes metadata <strong>[4]</strong>, that is all information about data, and/or clarificatory notes provided by data provider(s), without which the data concerned cannot be interpreted or used <strong>[5]</strong>.</p>
<p style="text-align: justify;">b. <strong>“Information”</strong> means processed data <strong>[6]</strong>.</p>
<p style="text-align: justify;">c. <strong>“Data Provider(s)”</strong> means person(s) publishing and providing the data under this license.</p>
<p style="text-align: justify;">d. <strong>“License”</strong> means this document.</p>
<p style="text-align: justify;">e. <strong>“Licensor”</strong>means any data provider(s) that has the authority to offer the data concerned under the terms of this licence.</p>
<p style="text-align: justify;">f. <strong>“User”</strong> means natural or legal persons, or body of persons corporate or incorporate, acquiring rights in the data (whether the data is obtained directly from the licensor or otherwise) under this licence.</p>
<p style="text-align: justify;">g. <strong>“Use”</strong> includes lawful distribution, making copies, adaptation, and all modification and representation of the data, subject to the provisions of this License.</p>
<p style="text-align: justify;">h. <strong>“Adapt”</strong> means to transform, build upon, or to make any use of the data by itsre-arrangement or alteration <strong>[7]</strong>.</p>
<p style="text-align: justify;">i. <strong>“Redistribute”</strong> means sharing of the data by the user, either in original or in adapted form (including a subset of the original data), accompanied by appropriate attribute statement, under the same or other suitable license.</p>
<p style="text-align: justify;">j. <strong>“Attribution Statement”</strong> means a standard notice to be published by all users of data published under this license, that contains the details of the provider, source, and license of the data concerned <strong>[8]</strong>.</p>
<p style="text-align: justify;">k. <strong>“Personal Information”</strong> means any Information that relates to a natural person,which, either directly or indirectly, in combination with other Information available or likely to be available with a body corporate, is capable of identifying such person <strong>[9]</strong>.</p>
<h2>3. Permissible Use of Data</h2>
<p style="text-align: justify;">Subject to the conditions listed under section 7, the user may:</p>
<p style="text-align: justify;">a. Access, use, adapt, and redistribute data published under this license for all lawful and non-exclusive purposes, without payment of any royalty or fee;</p>
<p style="text-align: justify;">b. Apply this license worldwide, and in perpetuity;</p>
<p style="text-align: justify;">c. Access, study, copy, share, adapt, publish, redistribute and transmit the data in any medium or format; and</p>
<p style="text-align: justify;">d. Use, adapt, and redistribute the data, either in itself, or by combining it with other data, or by including it within a product/application/service, for all commercial and/or non-commercial purposes.</p>
<h2>4. Terms and Conditions of Use of Data</h2>
<p style="text-align: justify;">a. <strong>Attribution:</strong> The user must acknowledge the provider, source, and license of data by explicitly publishing the attribution statement, including the DOI (Digital Object Identifier), or the URL (Uniform Resource Locator), or the URI (Uniform Resource Identifier) of the data concerned.</p>
<p style="text-align: justify;">b. <strong>Attribution of Multiple Data:</strong> If the user is using multiple data together and/or listing of sources of multiple data is not possible, the user may provide a link to a separate page/list that includes the attribution statements and specific URL/URI of all data used.</p>
<p style="text-align: justify;"> c. <strong>Non-endorsement:</strong> The User must not indicate or suggest in any manner that the data provider(s) endorses their use and/or the user.</p>
<p style="text-align: justify;">d. <strong>No Warranty:</strong> The data provider(s) are not liable for any errors or omissions, and will not under any circumstances be liable for any direct, indirect, special, incidental, consequential, or other loss, injury or damage caused by its use or otherwise arising in connection with this license or the data, even if specifically advised of the possibility of such loss, injury or damage. Under any circumstances, the user may not hold the data provider(s) responsible for: i) any error, omission or loss of data, and/or ii) any undesirable consequences due to the use of the data as part of an application/product/service (including violation of any prevalent law).</p>
<p style="text-align: justify;">e. <strong>Permanent Disclosure and Versioning:</strong> The data provider(s) will ensure that a data package once published under this license will always remain publicly available for reference and use. If an already published data is updated by the provider, then the earlier appropriate version(s) must also be kept publicly available with accordance with the archival policy of the National Informatics Centre.</p>
<p style="text-align: justify;">f. <strong>Continuity of Provision:</strong>The data provider(s) will strive for continuously updating the data concerned, as new data regarding the same becomes available. However, the data provider(s) do not guarantee the continued supply of updated or up-to-date versions of the data, and will not be held liable in case the continued supply of updated data is not provided.</p>
<h2>5. Template for Attribution Statement</h2>
<p style="text-align: justify;">Unless the user is citing the data using an internationally accepted data citation format <strong>[10]</strong>, an attribution notice in the following format must be explicitly included:</p>
<p>“Data has been published by [Name of Data Provider] and sourced from Open Government Data (OGD) Platform of India: [Name of Data]. ([date of Publication: dd/mm/yyyy]) .[DOI / URL / URI]. Published under Open Government Data License - India: [URL of Open Data License – India].”</p>
<p>For example, “Data has been published by Ministry of Statistics and Programme Implementation and sourced from Open Government Data (OGD) Platform of India: Overall Balance of Payments. (08/09/2015). <a href="https://data.gov.in/catalog/overall-balance-payments">https://data.gov.in/catalog/overall-balance-payments</a>. Published under Open Government Data License - India: [URL of Open Data License - India].”</p>
<h2>6. Exemptions</h2>
<p style="text-align: justify;">The license does not grant the right to access, use, adapt, and redistribute the following kinds of data:</p>
<p style="text-align: justify;">a. Personal information;</p>
<p style="text-align: justify;">b. Data that the data provider(s) is not authorised to licence;</p>
<p style="text-align: justify;">c. Names, crests, logos and other official symbols of the data provider(s);</p>
<p style="text-align: justify;">d. Data subject to other intellectual property rights, including patents, trade-marks and official marks;</p>
<p style="text-align: justify;">e. Military insignia;</p>
<p style="text-align: justify;">f. Identity documents; and</p>
<p style="text-align: justify;">g. Any data publication of which may violate section 8 of the Right to Information Act, 2005 <strong>11</strong>.</p>
<h2>7. Termination</h2>
<p style="text-align: justify;">a. Failure to comply with stipulated terms and conditions will cause the user’s rights under this license to end automatically.</p>
<p style="text-align: justify;">b. Where the user’s rights to use data have terminated under the aforementioned clauses or any other Indian law, it reinstates:</p>
<p style="text-align: justify;">i. automatically, as of the date the violation is cured, provided it is cured within 30 days of the discovery of the violation; or</p>
<p style="text-align: justify;">ii. upon express reinstatement by the Licensor.</p>
<p style="text-align: justify;">c. For avoidance of doubt, this section does not affect any rights the licensor may have to seek remedies for violation of this license.</p>
<h2>8. Dispute Redressal Mechanism</h2>
<p style="text-align: justify;">This license is governed by Indian law, and the copyright of any data shared under this license vests with the licensor, under the Indian Copyright Act.</p>
<h2>9. Endnotes</h2>
<p><strong>[1]</strong> Ministry of Science and Technology. 2012. National Data Sharing and Accessibility Policy (NDSAP) 2012. Gazette of India. March 17. <a href="http://data.gov.in/sites/default/files/NDSAP.pdf">http://data.gov.in/sites/default/files/NDSAP.pdf</a>.</p>
<p><strong>[2]</strong> See: <a href="https://data.gov.in/">https://data.gov.in/</a>.</p>
<p><strong>[3]</strong> See section 3.2 of the Implementation Guidelines for National Data Sharing and Accessibility Policy (NDSAP) Version 2.2. <a href="https://data.gov.in/sites/default/files/NDSAP_Implementation_Guidelines_2.2.pdf">https://data.gov.in/sites/default/files/NDSAP_Implementation_Guidelines_2.2.pdf</a>.</p>
<p><strong>[4]</strong> See section 2.1 of NDSAP 2012.</p>
<p><strong>[5]</strong> See section 2.6 of NDSAP 2012.</p>
<p><strong>[6]</strong> See section 2.7 of NDSAP 2012.</p>
<p><strong>[7]</strong> See section 2 (a) of Indian Copyright Act 1957. <a href="http://copyright.gov.in/Documents/CopyrightRules1957.pdf">http://copyright.gov.in/Documents/CopyrightRules1957.pdf</a>.</p>
<p><strong>[8]</strong> The template of the attribution statement is given in section 5 of the license.</p>
<p><strong>[9]</strong> See section 2 (i) of Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. <a href="http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511%281%29.pdf">http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511%281%29.pdf</a>.</p>
<p><strong>[10]</strong>For example, those listed in the DOI Citation Formatter tool developed by DataCite, CrossRef and others: <a href="http://crosscite.org/citeproc/">http://crosscite.org/citeproc/</a>.</p>
<p><strong>[11]</strong> See: <a href="http://rti.gov.in/webactrti.htm">http://rti.gov.in/webactrti.htm</a>.</p>
<div> </div>
<p>
For more details visit <a href='https://cis-india.org/openness/public-consultation-for-the-first-draft-of-government-open-data-use-license-india-announced'>https://cis-india.org/openness/public-consultation-for-the-first-draft-of-government-open-data-use-license-india-announced</a>
</p>
No publishersinhaOpen Government DataOpen LicenseOpen DataNDSAPFeaturedOpenness2016-06-30T09:41:07ZBlog EntryPrivacy vs. Transparency: An Attempt at Resolving the Dichotomy
https://cis-india.org/openness/blog-old/privacy-v-transparency
<b>The right to privacy has been articulated in international law and in some national laws. In a few countries where the constitution does not explicitly guarantee such a right, courts have read the right to privacy into other rights (e.g., the right to life, the right to equal treatment under law and also the right to freedom of speech and expression).</b>
<hr />
<p><i>With feedback and inputs from Sumandro Chattapadhyay, Elonnai Hickok, Bhairav Acharya and Geetha Hariharan</i>. I would like to apologize for not providing proper citation to Julian Assange when the first version of this blog entry was published. I would also like to thank Micah Sifry for drawing this failure to his attention. The blog post originally published by Omidyar Network <a class="external-link" href="http://www.openup2014.org/privacy-vs-transparency-attempt-resolving-dichotomy/">can be read here</a>. Also see <a class="external-link" href="http://newint.org/features/2015/01/01/privacy-transparency/">http://newint.org/features/2015/01/01/privacy-transparency/</a></p>
<hr />
<p style="text-align: justify; ">In other countries where privacy is not yet an explicit or implicit right, harm to the individual is mitigated using older confidentiality or secrecy law. After the Snowden affair, the rise of social media and the sharing economy, some corporations and governments would like us to believe that “privacy is dead”. Privacy should not and cannot be dead, because that would mean that security is also dead. This is indeed the most dangerous consequence of total surveillance as it is technically impossible to architect a secure information system without privacy as a precondition. And conversely, it is impossible to guarantee privacy without security as a precondition.</p>
<p style="text-align: justify; ">The right to transparency [also known as the right to information or access to information] – while unavailable in international law – is increasingly available in national law. Over the last twenty years this right has become encoded in national laws – and across the world it is being used to hold government accountable and to balance the power asymmetry between states and citizens. Independent and autonomous offices of transparency regulators have been established. Apart from increasing government transparency, corporations are also increasingly required to be transparent as part of generic or industry specific regulation in the public interest. For instance, India’s Companies Act, 2013, requires greater transparency from the private sector. Other areas of human endeavor such as science and development are also becoming increasingly transparent though here it is still left up to self-regulation and there isn’t as much established law. Within science and research more generally, the rise of open data accompanied the growth of the Open Access and citizen science movement.</p>
<p style="text-align: justify; ">So the question before us is: Are these two rights – the right to transparency and the right to privacy – compatible? Is it a zero-sum game? Do we have to sacrifice one right to enforce the other? Unfortunately, many privacy and transparency activists think this is the case and this has resulted in some conflict. I suggest that these rights are completely compatible when it comes to addressing the question of power. These rights do not have to be balanced against one another. There is no need to settle for a sub-optimal solution. <b>Rather this is an optimization problem and the solution is as follows: privacy protections must be inversely proportionate to power and as Julian Assange says transparency requirements should be directly proportionate to power.</b><a href="#fn*" name="fr*">[*] </a></p>
<p style="text-align: justify; ">In most privacy laws, the public interest is an exception to privacy. If public interest is being undermined, then an individual privacy can be infringed upon by the state, by researchers, by the media, etc. And in transparency law, privacy is the exception. If the privacy of an individual can be infringed, transparency is not required unless it is in the public interest. In other words, the “public interest” test allows us to use privacy law and transparency law to address power asymmetries rather than exacerbate them. What constitutes “public interest” is of course left to courts, privacy regulators, and transparency regulators to decide. Like privacy, there are many other exceptions in any given transparency regime including confidentiality and secrecy. Given uneven quality of case law there will be a temptation by the corrupt to conflate exceptions. Here the old common-law principle of “there is no confidence as to the disclosure of iniquity” – which prevents confidentiality law from being used to cover malfeasance or illegality – can be adopted in appropriate jurisdictions.</p>
<p style="text-align: justify; ">Around 10 years ago, the transparency movement gave birth to yet another movement – the open government data movement. The tension between privacy and transparency is most clearly seen in the open government data movement. The open government data movement in some parts of the world is dominated by ahistorical and apolitical technologists, and some of them seem intent on reinventing the wheel. In India, ever since the enactment of the Right to Information Act, 2003, 30 transparency activists are either killed, beaten or criminally intimidated every year. This is the statistic from media coverage alone. Many more silently suffer. RTI or transparency is without a doubt one of the most dangerous sectors within civil society that you could choose to work in. In contrast, not a single open data activist has ever been killed, beaten or criminally intimidated. I suspect this is because open data activists do not sufficiently challenge power hierarchies. Let us look a little bit closely at their work cycle. When a traditional transparency activist asks a question, that is usually enough to get them into trouble. When an open data activist publishes an answer [a dataset nicely scrubbed and machine readable, or a visualization, or a tool] they are often frustrated because nobody seems interested in using it. Often even the activist is unclear what the question is. This is because open data activist works where data is available. Open data activists are obsessed with big datasets, which are easier to find at the bottom of the pyramid. They contribute to growing surveillance practices [the nexus between Internet giants, states, and the security establishment] rather that focusing on sousveillance [citizen surveillance of the state, also referred to as citizen undersight or inverse surveillance]. They seem to be obsessed only with tools and technologies, rather than power asymmetries and injustices.</p>
<p style="text-align: justify; ">Finally, a case study to make my argument easier to understand – Aadhaar or UID, India’s ambitious centralized biometric identity and authentication management system. There are many serious issues with its centralized topology, proprietary technology, and dependence on biometrics as authentication factors – all of which I have written about in the past. In this article, I will explain how my optimization solution can be applied to the project to make it more effective in addressing its primary problem statement that corruption is a necessary outcome of power asymmetries in India.</p>
<p style="text-align: justify; ">In its current avatar – the Aadhaar project hopes to assign biometric-based identities to all citizens. The hope is that, by doing authentication in the last mile, corruption within India’s massive subsidy programmes will be reduced. This, in my view, might marginally reduce retail corruption at the bottom of the pyramid. It will do nothing to address wholesale corruption that occurs as subsidies travel from the top to the bottom of the pyramid. I have advocated over the last two years that we should abandon trying to issue biometric identities to all citizens, thereby making them more transparent to the state. Let us instead issue Aadhaar numbers to all politicians and bureaucrats and instead make the state more transparent to citizens. There is no public interest in reducing privacy for ordinary citizens – the powerless – but there are definitely huge public interest benefits to be secured by increasing transparency of politicians and bureaucrats, who are the powerful.</p>
<p style="text-align: justify; ">The Indian government has recently introduced a biometric-based attendance system for all bureaucrats and has created a portal that allows Indian citizens to track if their bureaucrats are arriving late or leaving early. This unfortunately is just bean counting [for being corrupt and being punctual are not mutually exclusive] and public access to the national portal was turned off because of legitimate protests from some of the bureaucrats. What bureaucrats do in office, who they meet, and which documents they process is more important than when they arrive at or depart from work. The increased transparency or reduced privacy was not contributing to the public interest.</p>
<p style="text-align: justify; ">Instead of first going after small-ticket corruption at the bottom of the pyramid, maximization of public interest requires us to focus on the top, for there is much greater ROI for the anti-corruption rupee. For example: constructing a digital signature based on audit trails that track all funds and subsidies as they move up and down the pyramid. These audit trails must be made public so that ordinary villagers can be supported by open data activists, journalists, social entrepreneurs, and traditional civil society in verification and course correction.</p>
<p style="text-align: justify; ">I hope open data activists, data scientists, and big data experts will draw inspiration from the giants of the transparency movement in India. I hope they will turn their attention to power, examine power asymmetries and then ask how the Aadhaar project can be leveraged to make India more rather than less equal.</p>
<h3 style="text-align: justify; ">Videos</h3>
<table class="plain">
<tbody>
<tr>
<th>
<p style="text-align: justify; ">Open Up? 2014: Risky Business: Transparency, Technology, Security, and Human Rights</p>
</th>
</tr>
<tr>
<td><iframe frameborder="0" height="315" src="http://www.youtube.com/embed/tDf8TFjxqiQ" width="560"></iframe></td>
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<td><b>Open Up? 2014: Data Collection and Sharing: Transparency and the Private Sector</b></td>
</tr>
<tr>
<td><iframe frameborder="0" height="315" src="http://www.youtube.com/embed/lPHWkYZjqzo" width="560"></iframe></td>
</tr>
</tbody>
</table>
<p>The videos can also be watched on Vimeo:</p>
<ol>
<li><a class="external-link" href="http://vimeo.com/111729069">Open Up? 2014: Risky Business: Transparency, Technology, Security, and Human Rights </a></li>
<li><a class="external-link" href="http://vimeo.com/111748146">Open Up? 2014: Data Collection and Sharing: Transparency and the Private Sector </a></li>
</ol>
<hr />
<p>[<a href="#fr*" name="fn*">*</a>].<a class="external-link" href="http://prospect.org/article/real-significance-wikileaks">http://prospect.org/article/real-significance-wikileaks</a> “Transparency should be proportional to the power that one has.”</p>
<p>Read the presentation on Risky Business: Transparency, Technology, Security and Privacy made at the Pecha Kucha session <a href="https://cis-india.org/openness/blog-old/risky-business.odp" class="internal-link">here</a>. (ODP File, 35 kb)</p>
<p style="text-align: justify; "><i>Disclaimer: The views, opinions, and positions expressed by the author(s) of this blog are theirs alone, and do not necessarily reflect the views, opinions, or positions of Omidyar Network. We make no representations as to accuracy, completeness, timeliness, suitability or validity of any information presented by individual authors of the blogs and will not be liable for any errors, omissions, or delays in this information or any losses, injuries or damages arising from its display or use.</i></p>
<p>
For more details visit <a href='https://cis-india.org/openness/blog-old/privacy-v-transparency'>https://cis-india.org/openness/blog-old/privacy-v-transparency</a>
</p>
No publishersunilPrivacyFeaturedVideoAadhaarOpennessOpen Access2015-03-08T06:26:21ZBlog EntryPrivacy Protection Bill, 2013 (With Amendments based on Public Feedback)
https://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-with-amendments-based-on-public-feedback
<b>In 2013 CIS drafted the Privacy Protection Bill as a citizens' version of a privacy legislation for India. Since April 2013, CIS has been holding Privacy Roundtables in collaboration with FICCI and DSCI, with the objective of gaining public feedback to the Privacy Protection Bill and other possible frameworks for privacy in India.</b>
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<p><i>This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC</i></p>
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<p>As a part of this process, CIS has been amending the Privacy Protection Bill based on public feedback. Below is the text of the Bill as amended according to feedback gained from the New Delhi, Bangalore, and Chennai Roundtables.</p>
<p style="text-align: center; "><b><a href="https://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-amendments.pdf" class="internal-link">Click to download the Privacy Protection Bill, 2013 with latest amendments</a></b> (PDF, 196 Kb).</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-with-amendments-based-on-public-feedback'>https://cis-india.org/internet-governance/blog/privacy-protection-bill-2013-with-amendments-based-on-public-feedback</a>
</p>
No publisherelonnaiFeaturedSAFEGUARDSInternet GovernancePrivacy2013-07-12T10:50:22ZBlog EntryPrivacy Matters — Conference Report
https://cis-india.org/internet-governance/blog/privacy/privacy-nujsconference-summary
<b>A one-day conference on Privacy Matters was held on Sunday, 23 January 2011 at the National University of Juridical Sciences (NUJS) Law School in Kolkata. This was the first of a series of eleven conferences on ‘privacy’ that Privacy India is scheduled to host in different Indian cities from January to June this year. Members of Parliament, Sri Manoj Bhattacharya from the Revolutionary Socialist Party (RSP) and Sri Nilotpal Basu from the Communist Party of India (Marxist) CPI (M) spoke in the conference. Students, the civil society and lawyers also participated in it.</b>
<h3>Introduction<br /></h3>
<p>The conference was held to discuss elements of the privacy legislation that has been proposed to the Parliament of India, and the UID Bill and project. The conference focused on the tensions between privacy and society that exist in India today, and acted as a space for opinion sharing and discussion. Privacy India which was formed under the auspices of Privacy International, a UK based organization that works to protect the right of privacy around the world, the Centre for Internet and Society (CIS), an NGO based in Bangalore, and Society in Action Group (SAG), an NGO based in Delhi joined hands to host this event.</p>
<p>Rajan Gandhi, founder of SAG opened the conference with an explanation of the mandate of Privacy India, the objective of which is of raising awareness, sparking civil action and promoting democratic dialogue around privacy challenges and violations in India. One of Privacy India's goals is to build consensus towards the promulgation of comprehensive privacy legislation in India through consultations with the public, legislators and the legal and academic community.</p>
<h3>Keynote</h3>
<p>The keynote speech was delivered by Dr. Sudhir Krishnaswamy professor of law and governance. Dr. Krishnaswamy began by outlining the present situation of privacy in India. The right to privacy has been read into Sections 19 and 21 of the Constitution of India through case law, which has defined privacy — among other things — as the right to personal autonomy, the right against unreasonable search and seizure, and as a fundamental right that is critical to the person, but does not supersede public or national interest. Dr. Krishnaswamy also raised many intriguing questions including: what does privacy mean to India — is it linked to a person’s dignity and their honour? Or is it purely concerned with misappropriation of information, and further is privacy in India an issue of the individual or an issue of the family and the community? He also described the philosophical groundings of privacy as being in the right to dignity, the right to autonomy, and the misappropriation of information. </p>
<h3>Privacy Challenges</h3>
<p>The conference was spread into three sessions. In the first session Prashant Iyengar, head researcher of the project at Privacy India, spoke about the challenges that India specifically is facing in shaping a privacy legislation including: the need to balance the right to information/transparency and privacy, the need to create a definition of privacy that does not exclude lower classes and is not a negative right, but instead a positive right, and the problem of ubiquitous surveillance that is happening in society today. Elonnai Hickok, policy analyst at Privacy India, spoke specifically on wire tapping, and the Nira Radia tapes. In her presentation she first outlined other countries definitions of privacy which include: the right to be left alone, the protection from unauthorized searches, and the right to control information about oneself through consent. Using the case study of Nira Radia and Ratan Tata she spoke about the rising concern of wire tapping in the country as being indicative of a social change and relationship of the state and government. Elonnai also raised questions concerning whether privacy should be made inversely proportional to public figures, and if public interest will always supersede the private right of individuals.</p>
<h3>UID and Privacy</h3>
<p>The second session of the conference focused on the UID Bill and privacy. Presentations from NUJS student Amba Kak and Sai Vinod raised concerns about the UID project and privacy. Their presentation also compared and contrasted identity schemes of other countries with the UID. A few similarities that they found amongst all scheme were: the collection of data, the processing of data, and the storing of data. Deva Prasad from the National Law School of Bangalore presented on constitutional elements of the UID scheme ranging from loopholes in the Bill to connections that can be made when the UID Bill is placed in the larger picture. Sri Manoj Bhattacharya (MP) from RSP voiced his concerns of the UID, and emphasized that by giving an individual a number which acts as their fundamental identity which they use to function in society, the government in fact is eroding an individual’s actual identity, and that is an invasion of privacy. Sri Nilotpal Basu (MP) from CPI (M) spoke out strongly against the UID, voicing that his greatest concern with the UID is that it will be a way for corporate bodies to target individuals as consumers, and that privacy legislation could be used as a way for corporate bodies to hide from the public eye.</p>
<h3>Conclusion</h3>
<p>In the concluding session the floor was opened up to the public for questions and opinion sharing. Many participants shared what they believed needed to be included in privacy legislation, and what issues a privacy legislation needs to address. A few of these include: privacy rights and the media, privacy and the right to information, the privacy rights of minorities, and the privacy rights of the government. Also types of regulatory models for privacy were discussed. For instance, should privacy in India be represented and protected through a data protection law, or should privacy be seen as a fundamental right to privacy? Should privacy be represented through a broad framework, or through sector specific statutes? What should the redressal and enforcement mechanisms look like? </p>
<p>As seen from the presentations and the comments at the conference one thing which is clear is that privacy is an issue that concerns every person in India. Over the next six months Privacy India will be conducting ten more conferences in different Indian cities to engage the public in dialogues of privacy and raise awareness around the issues of privacy. The next workshop will be held on 5 February 2011 in Bangalore.</p>
<p>Download the conference summary <a href="https://cis-india.org/internet-governance/blog/privacy-kolkata-report" class="internal-link" title="Privacy India Calcutta Conference">here</a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/privacy/privacy-nujsconference-summary'>https://cis-india.org/internet-governance/blog/privacy/privacy-nujsconference-summary</a>
</p>
No publisherpraskrishnaFeaturedPrivacy2011-01-27T10:22:55ZBlog EntryPrivacy Matters — Analyzing the Right to "Privacy Bill"
https://cis-india.org/internet-governance/privacy-matters-analyzing-the-right-to-privacy-bill
<b>On January 21, 2012 a public conference “Privacy Matters” was held at the Indian Institute of Technology in Mumbai. It was the sixth conference organised in the series of regional consultations held as “Privacy Matters”. The present conference analyzed the Draft Privacy Bill and the participants discussed the challenges and concerns of privacy in India.</b>
<p>The conference was organized by Privacy India in partnership with the Centre for Internet & Society, International Development Research Centre, Indian Institute of Technology, Bombay, the Godrej Culture Lab and Tata Institute of Social Sciences. Participants included a wide range of stakeholders that included the civil society, NGO representatives, consumer activists, students, educators, local press, and advocates.</p>
<p><a href="https://cis-india.org/internet-governance/high-level-summary-and-critique-to-the-leaked-right-to-privacy-bill-2011" class="internal-link" title="High Level Summary and Critique to the Leaked Right to Privacy Bill 2011">Comments to the Right to Privacy Bill</a></p>
<h2>Welcome</h2>
<p><strong>Prashant Iyengar</strong> was the Lead Researcher with Privacy India, opened the conference with an explanation of Privacy India’s mandate to raise awareness, spark civil action and promote democratic dialogue around privacy challenges and violations in India. He summarized the five “Privacy Matters” series previously organised across India in <a href="https://cis-india.org/internet-governance/blog/privacy/privacy-nujsconference-summary" class="external-link">Kolkata</a> on January 23, 2011, in <a href="https://cis-india.org/internet-governance/blog/privacy/privacy-conferencebanglaore" class="external-link">Bangalore</a> on February 5, 2011, in <a href="https://cis-india.org/internet-governance/blog/privacy/privacy-matters-report-from-ahmedabad" class="external-link">Ahmedabad</a> on March 26, 2011, in <a href="https://cis-india.org/internet-governance/blog/privacy/privacy-guwahati-report" class="external-link">Guwahati</a> on June 23, 2011 and in<a href="https://cis-india.org/internet-governance/privacy-chennai-report.pdf/view" class="external-link"> Chennai </a>on August 6, 2011.</p>
<h2>Keynote Address</h2>
<p><strong>Na. Vijayashankar</strong> (popularly known as <strong>Naavi</strong>), a Bangalore based e-business consultant, delivered the key note address on the quest of a good privacy law in India. </p>
<table class="plain">
<tbody>
<tr>
<td><img src="https://cis-india.org/home-images/Naavi.jpg/image_mini" title="Naavi" height="171" width="155" alt="Naavi" class="image-inline" /></td>
<td>
<p>He described the essential features of good privacy legislation. In
analyzing the Draft Privacy Bill’s definition of the right to privacy,
he suggested it should be defined through the “right to personal
liberty” rather than through what constitutes “infringements”. Mr.
Vijayashankar went on to explain that the “privacy right” should be
taken beyond “information protection” and defined as a “personal privacy
or a sense of personal liberty without constraints by the society”. He
explained the various classifications and levels of protection
associated with the availability and disclosure of data. He expressed
concerns regarding monitoring of data processors and suggested that data
controllers have contractual agreements between data processors, so as
to ensure an obligation of data security practices. He also called for
the simplification and division of offences and suggested numerous
reasons as to why the Cyber Appellate Tribunal would not be an ideal
monitoring mechanism or authority. See Naavi's presenation <a href="https://cis-india.org/internet-governance/proposed-privacy-bill" class="internal-link" title="Proposed Privacy Bill">here</a></p>
</td>
</tr>
</tbody>
</table>
<h2>Session I: Privacy and the Legal System</h2>
<p> <strong>Dr. Sudhir Krishnaswamy</strong>, Assistant Professor at the National Law School of India</p>
<table class="plain">
<tbody>
<tr>
<td>Dr. Krishnaswamy started off the presentation by questioning the
normative assumptions the Draft Privacy Bill makes. He referred to the
controversy of Newt Gingrich's second marriage, to question the range of
moral interests that were involved. The Bill falls short in accounting
for dignity in relation to privacy.<br /><br />He described the Draft Privacy Bill as a reasonable advance, given where
privacy laws were before. Although, he feels that it does fall short,
in terms of a narrow position, on what privacy law should do. He also
questioned if it satisfies constitutional standards. He stressed the
importance of philosophical work around the Draft Privacy Bill
considering that the nature of privacy is not neat and over-arching.<br /></td>
<td><img src="https://cis-india.org/home-images/sudhir.jpg/image_mini" title="Sudhir Krishnaswamy" height="144" width="152" alt="Sudhir Krishnaswamy" class="image-inline image-inline" /></td>
</tr>
</tbody>
</table>
<h3>Privacy and the Constitutional Law</h3>
<p><strong>N S Nappinai</strong>, Advocate, High Court, Mumbai,</p>
<table class="plain">
<tbody>
<tr>
<td><img src="https://cis-india.org/home-images/nappinai.jpg/image_preview" title="Nappinai" height="172" width="157" alt="Nappinai" class="image-inline image-inline" /></td>
<td>Nappinai spoke on the constitutional right to privacy. She explained the
substantial development of Article 21 of the Constitution of India to
include the ‘right to privacy’ with regards to its interpretation and
application. She described the different shift of the application of the
right to privacy in the West in comparison to India. The West has moved
from the right to privacy pertaining to property to the right to
privacy concerning personal rights, whereas India moved from personal
rights to property rights. She outlined three aspects of privacy:
dignity, liberty and property rights. <br /><br />Ms. Nappinai dissected the Bill in its major components: interception,
surveillance, method and manner of personal data, health information,
collection, processing and use of personal data. Using these components,
she questioned what precedence exists? What should be further protected
or reversed? What lessons should legislators draw from?<br /></td>
</tr>
</tbody>
</table>
<p>Shortcomings of the Draft Right to Privacy Bill falls include:</p>
<ol><li>The objects and reasons section in the Draft Privacy Bill declares the right to privacy to every citizen as well as delineates the collection and dissemination of data. Nappinai dismisses the need for this delineation on the grounds that data protection is an inherent part of the right to privacy, it is not exclusive.</li><li>Large focus on transmission of data. The provisions do not account for property rights pertaining to the right to privacy. Therefore, the ‘knock-and-enter’ rule, the ‘right to be left alone’ and the ‘right to happiness’ should be included.</li><li>Applicability of the Bill should extend to all persons as well as data residing within the territory. It would be self-defeating if it only includes citizens, considering that the Constitution extends to all persons within the territory.</li><li>The right to dignity is unaccounted for.<br /><br />See Nappinai's presentation <a href="https://cis-india.org/internet-governance/privacy-and-the-constitution" class="internal-link" title="Privacy and the Constitution">here</a><br /></li></ol>
<h2>Session II: Privacy and Freedom of Expression</h2>
<p><strong>Apar Gupta</strong>, Advocate, Delhi</p>
<table class="plain">
<tbody>
<tr>
<td>Apar Gupta is an advocate based in Delhi who specializes in IP and
electronic commerce law, spoke predominantly on the interplay between
privacy and freedom of expression. He used the example of an advocate
tweeting about his criticism of a judges’ ruling, to illustrate how
different realms of online anonymity enable freedom of speech. He went
beyond the traditional realm of journalistic architecture such as
television channels or newspapers and explained online community
disclosure.
<p>Mr. Gupta provided a practical example of Indian Kanoon, a popular
online database of Indian court decisions. Because Indian Kanoon is
linked to the Google search engine, many individuals involved in civil
and criminal matters have requested Indian Kanoon to remove the court
judgments, under privacy claims. This particularly occurs with
individuals involved in matrimonial cases. However, as court judgment
constitute public records India Kanoon only removes court judgments when
requested by a court order.</p>
<p>He described the several ways legislators can define privacy and
freedom of expression. Considering that the privacy of an individual may
border upon freedom of speech and expression, he questioned whether or
not privacy should override the right to freedom of speech and
expression. In addition, Mr. Gupta discussed the debate on whether or
not the Privacy Bill should override all existing provisions in other
laws.</p>
</td>
<td><img src="https://cis-india.org/home-images/Gupta.jpg/image_preview" alt="Apar Gupta" class="image-inline image-inline" title="Apar Gupta" /></td>
</tr>
</tbody>
</table>
<p>Additionally, he analyzed the provisions of the Draft Privacy Bill
using three judgments. In these judgments, different entities sought of
various forms of speech to be blocked under privacy claims. He spoke
about the dangers of a statutory right for privacy that does not
safeguard freedom of speech and expression. Considering that the privacy
statute may allow for a form of civil action permitting private parties
to approach courts to stop certain publications, he stressed the
importance for legislators to ensure balanced privacy legislation
inclusive of freedom of speech and expression.</p>
<h3>Sexual Minorities and Privacy<br /></h3>
<p><strong>Danish Sheikh</strong>, researcher at Alternative Law Forum</p>
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<tbody>
<tr>
<td><img src="https://cis-india.org/home-images/danish.jpg/image_preview" alt="Danish " class="image-inline image-inline" title="Danish " /></td>
<td>Danish examined the status of sexual minorities in the light of privacy
framework in India. The tag of decriminalization has served to greatly
alter the way institutions approach the question of privacy when it
comes to sexual minorities. He used the Naz Foundation judgment as a
chronological marker to map the developments in the right to privacy and
sexual minorities over the years.
<p>He outlined four key effects on the right to privacy due to the Naz Foundation judgment:</p>
<ul><li>Prepared the understanding of privacy as a positive right and placed obligations on the state,</li><li>Discussed privacy as dealing with persons and not just places, it took into account decisional privacy as well as zonal privacy,</li><li>Connected privacy with dignity and the valuable worth of individuals, and</li><li>Included privacy on one’s autonomous identity.</li></ul>
</td>
</tr>
</tbody>
</table>
<p>He described various incidents that took place before the Naz Foundation judgment, pre-Naz, that altered the way we conceived of queer rights in general and privacy in particular, including the Lucknow incidents, transgender toilets, passport forms, the medical establishment and lesbian unions. Post-Naz, he described two incidents including the Allahabad Muslim University sting operation as well as the TV9 “Expose” that captured public imagination. </p>
<p>He concluded by asking: “What do these stories tell us about privacy?” The issues faced by the transgender community tell us that privacy doesn’t necessarily encompass a one-size-fits-all approach, and can raise as many questions as it answers. The issues faced by the Lucknow NGOs display the institutionalized disrespect for privacy and that has marginally more devastating consequences for the homosexual community by the spectre of outing. The issues faced by lesbian women evidence yet another need for breaching the public/private divide, demonstrating how the protection of the law might be welcome in the family sphere. Alternate sexual orientation and gender identity might bring the community under a common rubric, but distilling the components of that rubric is essential for engaging in any kind of useful understanding of the community and the kind of privacy violations it suffers – or engage with situations when the lack of privacy is empowering.</p>
<h2>Session III: Privacy and National Security</h2>
<p><strong>Menaka Guruswamy</strong>, Advocate, Supreme Court of India</p>
<table class="plain">
<tbody>
<tr>
<td>Menaka explored national security and its relationship to privacy. In
her presentation, she compared the similar manner in which the courts
approach national security and privacy issues. The courts feel national
security and privacy issues are too complex to define, therefore, they
take a case-by-case approach.<br />
<br />
<p>Ms. Guruswamy described three incidents that urged her to question
national security and privacy. First, she was interested in the lack of
regulation surrounding intelligence agencies and was involved in the
introduction of the Regulations of Intelligence Agencies Bill as a
private members bill. Second, national security litigation between the
Salwa Judum judgment and the State of Chhattisgarh is an example of how
national security triumphs constitutional rights and values. Third,
privacy in the context of the impending litigation of Naz Foundation in
the Supreme Court. She described the larger conversation of national security focus on
values of equality and privacy. She discussed the following questions
that serve in advancing certain conception of rights:</p>
<ul><li>How do we posit privacy which necessarily, philosophically as
well as judicially, is carved out as the right of an individual to be
left alone?</li><li>What are the consequences when national security,
which is posited as the rights of the nation, is in conflict with the
right of the individual to be left alone?</li><li>Considering that
constitutional rights are posited as a public facet of citizenship how
does a right to privacy play in that context?</li></ul>
</td>
<td><img src="https://cis-india.org/home-images/copy_of_menaka.jpg/image_preview" alt="Menaka" class="image-inline image-inline" title="Menaka" /></td>
</tr>
</tbody>
</table>
<h3>Privacy and UID</h3>
<p><strong>R. Ramakumar</strong>, professor at the Tata Institute of Social Sciences</p>
<table class="plain">
<tbody>
<tr>
<td><img src="https://cis-india.org/home-images/ramkumar.jpg/image_preview" title="Ramakumar" height="171" width="202" alt="Ramakumar" class="image-inline image-inline" /></td>
<td>Prof. Ramakumar spoke on UID, its collection of information and the
threat to individual privacy. First, he provided a historical trajectory
of national security that has led to increased identity card schemes.
He described the concrete connection between UID and national security.
<p><br />He briefed the gathering on the objectives of the UID project. He
described several false claims as proposed by the UIDAI. He explicitly
disproved the UIDAI claim that Aadhaar is voluntary. He did this by
comparing various legislations associated with the National Population
Registrar that had provisions mandating the inclusion of the UID number.</p>
<p> </p>
</td>
</tr>
</tbody>
</table>
<p>He went on to explain that the misplaced emphasis of technology to
handle large populations remains unproven. He described two specific
violations of privacy inherent in the UID system: convergence of
information and consent. The UID database makes it possible for the
linking or convergence of information across silos. In addition, consent
is unaccounted for in the UID system. The UID enrollment form requires
consent from a person to share their information. However, the software
of the enrollment form automatically checks ‘yes’, therefore you are not
asked. Even if you disagree, it automatically checks ‘yes’. Default
consent raises the important question, “to what extent are we the owners
of our information?” and “what are the privacy implications?”</p>
<p>Mr. Ramakumar was once asked, by Yashwant Sinha in a Parliamentary Standing Committee meeting, “Is the Western concept of privacy important in developing country like India?”. Using this question posed to him, he stressed the importance of privacy to be understood as a globally valued right, entitlement and freedom. He also referred to Amartya Sen’s work on individual freedoms.</p>
<h2>Conclusion</h2>
<p>During the daylong consultation numerous questions and themes relating to privacy were discussed:</p>
<table class="plain">
<tbody>
<tr>
<td>
<ul><li>How is the right to privacy defined?</li><li>How can the <a href="https://cis-india.org/internet-governance/draft-bill-on-right-to-privacy" class="internal-link" title="Draft Bill on Right to Privacy">Draft Privacy Bill</a> redefine the right to privacy?</li><li>How can reasonable deterrence mechanisms be included?</li><li>Does duplication of the right to privacy exists in different statutes?</li><li>Is the Cyber Appellate Tribunal an ideal monitoring mechanism or authority? <br /></li><li>What are the circumstances under which authorized persons can exercise the Right of privacy invasion?</li><li>How can the Draft Privacy Bill account for the right to dignity?</li><li>How much information should the State be allowed to collect?</li><li>How can citizens become more informed about the use of their information and the privacy implications involved?</li><li>What would be the appropriate balance or trade-off between security and civil liberties?</li><li>What are the dangers with permitting the needs of national security to trump competing values?</li><li>What are the consequences for the homosexual community, when faced with institutionalized disregard for privacy? </li></ul>
</td>
<td><img src="https://cis-india.org/home-images/copy_of_usha.jpg/image_preview" alt="Usha " class="image-inline image-inline" title="Usha " /></td>
</tr>
</tbody>
</table>
<p> <img src="https://cis-india.org/home-images/contests.jpg/image_preview" alt="Participants" class="image-inline image-inline" title="Participants" /></p>
<p> </p>
<p> </p>
<p><a href="https://cis-india.org/internet-governance/proposed-privacy-bill" class="internal-link" title="Proposed Privacy Bill"><br /></a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/privacy-matters-analyzing-the-right-to-privacy-bill'>https://cis-india.org/internet-governance/privacy-matters-analyzing-the-right-to-privacy-bill</a>
</p>
No publishernatashaPrivacyFreedom of Speech and ExpressionPublic AccountabilityInternet GovernanceFeatured2012-02-15T04:27:28ZBlog EntryPrivacy in Healthcare: Policy Guide
https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide
<b>The Health Policy Guide seeks to understand what are the legal regulations governing data flow in the health sector — particularly hospitals, and how are these regulations implemented. Towards this objective, the research reviews data practices in a variety of public and private hospitals and diagnostics labs. The research is based on legislation, case law, publicly available documents, and anonymous interviews.</b>
<p><a href="https://cis-india.org/internet-governance/blog/privacy-healthcare.pdf" class="external-link">Click to download the PDF</a> (320 Kb)</p>
<hr />
<h2 style="text-align: justify; ">Introduction</h2>
<p style="text-align: justify; ">To this date, there exists no universally acceptable definition of the right to privacy. It is a continuously evolving concept whose nature and extent is largely context driven. There are numerous aspects to the right to privacy, each different from the other in terms of the circumstance in which it is invoked. Bodily privacy however, is to date, the most guarded facet of this vastly expansive right. The privacy over one’s own body including the organs, genetic material and biological functions that make up one’s health is an inherent right that does not; as in the case of other forms of privacy such as communication or transactional privacy, emanate from the State. It is a right that has its foundations in the Natural Law conceptions of The Right to Life, which although regulated by the State can at no point be taken away by it except under extreme circumstances of a superseding Right to Life of a larger number of people.</p>
<p style="text-align: justify; ">The deliberation leading to the construction of a universally applicable Right to Privacy has up until now however only been in terms of its interpretation as an extension of the Fundamental Right to Life and Liberty as guaranteed under Article 21 as well as the freedom of expression and movement under Articles 19(1)(a) and (b) of the Constitution of India. While this may be a valid interpretation, it narrows the ambit of the right as one that can only be exercised against the State. The Right to privacy however has much larger implications in spheres that are often removed from the State. There is thus an impending need to create an efficient and durable structure of Law and policy that regulates the protection of privacy in Institutions that may not always be agents of the State.</p>
<p style="text-align: justify; ">It is in this regard that the following analysis studies the existing conceptions of privacy in the Healthcare sector. It aims to study the existing mechanisms of privacy protection and their pragmatic application in everyday practices. Further, it determines definitive policy gaps in the existing framework and endeavors to provide effective recommendations to not only redress these shortcomings but also create a system that is efficient in its fulfillment of the larger objective of the actualization of the Right to Privacy at an individual, state and institutional level.</p>
<h2 style="text-align: justify; ">Purpose</h2>
<p style="text-align: justify; ">The purpose of this research study is to formulate a comprehensive guide that maps the synthesis, structure and implementation of privacy regulations within the healthcare sector in India. It traces the domestic legislation pertaining to various aspects of the healthcare sector and the specific provisions of the law that facilitate the protection of the privacy of individuals who furnish their personal information as well as genetic material to institutions of healthcare, either for the purpose of seeking treatment or to contribute to research studies. It is however imperative that the nature and extent of the information collected be restricted through the establishment of requisite safeguards at an institutional level that percolate down to everyday practices of data collection, handling and storage within healthcare institutions. The study thus aims to collate the existing systems of privacy protection in the form of laws, regulations and guidelines and compare these with actual practices in government and private hospitals and diagnostic laboratories to determine whether these laws are in fact effective in meeting the required standards of privacy protection. Further, the study also broadly looks at International practices of privacy protection and offers recommendations to better the existing mechanisms of delimiting unnecessary intrusions on the privacy of patients.</p>
<h2 style="text-align: justify; ">Importance</h2>
<p style="text-align: justify; ">The Indian Healthcare sector although at par with international standards in its methods of diagnosis, treatment and the use of contemporary technology, is still nascent in the nature and extent of its interaction with the Law. There are a number of aspects of healthcare that lie on the somewhat blurred line between the interest of the public and the sole right of the individual seeking treatment. One such aspect is the slowly evolving right to privacy. The numerous facets of this right have come to the fore largely through unique case laws that are reflective of a dynamic social structure, one that seeks to reconcile the socio economic rights that once governed society with individual interests that it has slowly come to realize. The right of an individual to disclose the nature of his disease, the liberty of a woman not to be compelled to undergo a blood test, the bodily autonomy to decide to bear children or not, the decisional privacy with regards to the termination of a pregnancy and the custodial rights of two individuals to their child are certain contentious aspects of healthcare that have constructed the porous interface between the right to privacy and the need for medical treatment. It is in this context that this study aims to delve into the existing basic structure of domestic legislation, case laws and regulations and their subsequent application in order to determine important gaps in the formulation of Law and Policy. The study thus aims to draw relevant conclusions to fill these gaps through recommendations sourced from international best practice in order to construct a broad framework upon which one can base future policy considerations and amendments to the existing law.</p>
<h2 style="text-align: justify; ">Methodology</h2>
<p style="text-align: justify; ">This research study was undertaken in two major parts. The first part assesses domestic legislation and its efficacy in the current context. This is done through the determination of relevant provisions within the Act that are in consonance with the broader privacy principles as highlighted in the A.P Shah Committee report on Privacy Protection<a href="#_ftn1" name="_ftnref1">[1]</a>. This part of the research paper is based on secondary sources, both in terms of books as well as online resources. The second part of the paper analyses the actual practices with regard to the assimilation, organization, use and storage of personal data as practiced in Government and Private hospitals and Diagnostic laboratories. Three Private hospitals, a prominent Government hospital and a Diagnostic laboratory were taken into consideration for this study. The information was provided by the concerned personnel at the medical records department of these institutions of healthcare through a survey conducted on the condition of anonymity. The information provided was analyzed and collated in accordance with the compliance of the practices of these institutions with the Principles of privacy envisioned in the Report of the Group of Experts on Privacy.</p>
<h3 style="text-align: justify; ">The Embodiment of Privacy Regulation within Domestic Legislation</h3>
<p style="text-align: justify; ">This section of the study analyses the viability of an approach that takes into account the efficacy of domestic legislation in regulating practices pertaining to the privacy of individuals in the healthcare sector. This approach perceives the letter and spirit of the law as the foundational structure upon which internal practices, self regulation and the effective implementation of policy considerations that aim to create an atmosphere of effective privacy regulation take shape, within institutions that offer healthcare services. To this effect, domestic legislationthat provides for the protection of a patient’s privacy has been examined. The law has been further studied with respect to its tendency to percolate into the everyday practices, regulations and guidelines that private and government hospitals adhere to. The extent of its permeation into actual practice; in light of its efficacy in fulfilling the perambulatory objectives of ensuring safe and unobtrusive practices,within the construct of which a patient is allowed to recover and seek treatment, has also been examined.</p>
<p style="text-align: justify; ">The term ‘<b>Privacy’</b> is used in a multitude of domestic legislations primarily in the <b>context of the foundation of the fiduciary relationship between a doctor and a patient.</b>This fiduciary relationship emanates from a reasonable expectation of mutual trust between the doctor and his patients and is established through the Indian Medical Council Act of 1952, specifically section 20(A) of the Act which lays down the code of ethics which a doctor must adhere to at all times. Privacy within the healthcare sector includes a number of aspects including but not limited to <b>informational privacy</b> (e.g., confidentiality, anonymity, secrecy and data security); <b>physical privacy</b> (e.g., modesty and bodily integrity); <b>associational privacy</b> (e.g. intimate sharing of death, illness and recovery); <b>proprietary privacy</b> (e.g., self-ownership and control over personal identifiers, genetic data, and body tissues); and <b>decisional privacy</b> (e.g., autonomy and choice in medical decision-making).</p>
<p style="text-align: justify; "><b>Privacy Violations stem from policy and information gaps: </b> Violations in the healthcare sector that stem from policy formulation as well and implementation gaps<a href="#_ftn2" name="_ftnref2">[2]</a> include the disclosure of personal health information to third parties without consent, inadequate notification to a patient of a data breach, unlimited or unnecessary collection of personal health data, collection of personal health data that is not accurate or relevant, the purpose of collecting data is not specified, refusal to provide medical records upon request by client, provision of personal health data to public health, research, and commercial uses without de-identification of data and improper security standards, storage and disposal. The disclosure of personal health information has the potential to be embarrassing, stigmatizing or discriminatory.<a href="#_ftn3" name="_ftnref3">[3]</a> Furthermore, various goods such as employment, life, and medical insurance, could be placed at risk <a href="#_ftn4" name="_ftnref4">[4]</a>if the flow of medical information were not restricted. <a href="#_ftn5" name="_ftnref5"><sup><sup>[5]</sup></sup></a></p>
<p style="text-align: justify; ">Disclosure of personal health information is permitted and does not amount to a violation of privacy in the following situations: 1) during referral, 2) when demanded by the court or by the police on a written requisition, 3) when demanded by insurance companies as provided by the Insurance Act when the patient has relinquished his rights on taking the insurance, and 4) when required for specific provisions of workmen's compensation cases, consumer protection cases, or for income tax authorities,<a href="#_ftn6" name="_ftnref6"><sup><sup>[6]</sup></sup></a> 5) disease registration, 6) communicable disease investigations, 7) vaccination studies, or 8) drug adverse event reporting. <a href="#_ftn7" name="_ftnref7"><sup><sup>[7]</sup></sup></a></p>
<p style="text-align: justify; ">The following domestic legislations have been studied and relevant provisions of the Act have been accentuated in order to analyse their compliance with the basic principles of privacy as laid out in the A.P Shah Committee report on Privacy.</p>
<p style="text-align: justify; "><b>Mental Health Act, 1987</b><a href="#_ftn8" name="_ftnref8">[8]</a><br />The Provisions under the Act pertaining to the protection of privacy of the patient have been examined. The principles embodied within the Act include aspects of the Law that determine the nature and extent of oversight exercised by the relevant authorities over the collection of information, the limitation on the collection of data and the restrictions on the disclosure of the data collected. The principle of oversight is embodied under the legislation within the provisions that allow for the inspection of records in psychiatric hospitals and nursing homes only by officers authorized by the State Government.<a href="#_ftn9" name="_ftnref9"><sup><sup>[9]</sup></sup></a> The limitation on the Collection of information is imposed by the Inspection of living conditionsby a psychiatrist and two social workers are on a monthly basis. This would include analyzing the living condition of every patient and the administrative processes of the psychiatric hospital and/or psychiatric nursing home. <a href="#_ftn10" name="_ftnref10"><sup><sup>[10]</sup></sup></a>Additionally, Visitors must maintain a book regarding their observations and remarks.<a href="#_ftn11" name="_ftnref11"><sup><sup>[11]</sup></sup></a> Medical certificates may be issued by a doctor, containing information regarding the nature and degree of the mental disorder as reasons for the detention of a person in a psychiatric hospital or psychiatric nursing home. <a href="#_ftn12" name="_ftnref12"><sup><sup>[12]</sup></sup></a>Lastly, the disclosure of personal records of any facility under this Act by inspecting officers is prohibited<a href="#_ftn13" name="_ftnref13"><sup><sup>[13]</sup></sup></a></p>
<h2 style="text-align: justify; "></h2>
<p style="text-align: justify; "><b>Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994</b> <a href="#_ftn14" name="_ftnref14"><sup><sup>[14]</sup></sup></a><br />The Act was instituted in light of a prevalent public interest consideration of preventing female foeticide. However, it is imperative that the provision of the Act remain just shy of unnecessarily intrusive techniques and do not violate the basic human requirement of privacy in an inherently personal sphere. The procedure that a mother has to follow in order to avail of pre-natal diagnostic testing is mandatory consent of age, abortion history and family history. These conditions require a woman to reveal sensitive information concerning family history of mental retardation or physical deformities.<a href="#_ftn15" name="_ftnref15">[15]</a> A<b>special concern for privacy and confidentiality should be exercised with regards to disclosure of genetic information.</b> <a href="#_ftn16" name="_ftnref16">[16]</a><b> </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b>Medical Termination of Pregnancy Act, 1971</b> <a href="#_ftn17" name="_ftnref17"><sup><sup>[17]</sup></sup></a><br />Although, the right to an abortion is afforded to a woman within the construct of her inherent right to bodily privacy, decisional privacy (for e.g., autonomy and choice in medical decision-making) is not afforded to patients and their families with regards to determining the sex of the baby. The sections of the Act that have been examined lay down the provisions available within the Act to facilitate the protection of a woman’s right to privacy during the possible termination of a pregnancy. These include the principles pertaining to the choice and consent of the patient to undergo the procedure, a limit on the amount of information that can be collected from the patient, the prevention of disclosure of sensitive information and the security measures in place to prevent the unauthorized access to this information. The Medical Termination of Pregnancy Regulations, 2003 supplement the Act and provide relevant restrictions within every day practices of data collection use and storage in order to protect the privacy of patients. The Act mandates <i>Written Consent </i>of the patient in order to facilitate an abortion .Consent implies that the patient is aware of all her options, has been counselled about the procedure, the risks and post-abortion care.<a href="#_ftn18" name="_ftnref18">[18]</a>. The Act prohibits the disclosure of matters relating to treatment for termination of pregnancy to anyone other than the Chief Medical Officer of the State. <a href="#_ftn19" name="_ftnref19">[19]</a>The Register of women who have terminated their pregnancy, as maintained by the hospital, must be destroyed on the expiry of a period of five years from the date of the last entry.<a href="#_ftn20" name="_ftnref20">[20]</a> The Act also emphasizes upon the security of information collected. The medical practitioner assigns a serial number for the woman terminating her pregnancy.<a href="#_ftn21" name="_ftnref21">[21]</a>Additionally, the admission register is stored in safe custody of the head of the hospital. <a href="#_ftn22" name="_ftnref22">[22]</a><i> </i></p>
<p style="text-align: justify; "><b>Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (Code of Ethics Regulations, 2002)</b><br />The Medical Council of India (<b>MCI</b>) Code of Ethics Regulations<a href="#_ftn23" name="_ftnref23"><sup><sup>[23]</sup></sup></a> sets the professional standards for medical practice. These provisions regulate the nature and extent of doctor patient confidentiality. It also establishes universally recognized norms pertaining to consent to a particular medical procedure and sets the institutionally acceptable limit for intrusive procedure or gathering excessively personal information when it is not mandatorily required for the said procedure. The provisions addressed under these regulations pertain to the Security of the information collected by medical practitioners and the nature of doctor patient confidentiality.</p>
<p style="text-align: justify; ">Physicians are obliged to protect the confidentiality of patients<sup> 5</sup>during all stages of the procedure and with regard to all aspects of the information provided by the patient to the doctor, includinginformation relating to their personal and domestic lives. <a href="#_ftn24" name="_ftnref24"><sup><sup>[24]</sup></sup></a>The only exception to this mandate of confidentiality is if the law requires the revelation of certain information, or if there is a serious and identifiable risk to a specific person and / or community ofa notifiable disease.</p>
<p style="text-align: justify; "><b>Ethical Guidelines for Biomedical Research on Human Subjects</b> <a href="#_ftn25" name="_ftnref25">[25]</a><br />The provisions for the regulation of privacy pertaining to biomedical research include aspects of consent as well as a limitation on the information that may be collected and its subsequent use. The provisions of this act aim to regulate the protection of privacy during clinical trials and during other methods of research. The principal of informed consent is an integral part of this set of guidelines. ThePrivacy related information included in the participant/ patient information sheet includes: the choice to prevent the use of their biological sample, the extent to which confidentiality of records could be maintained and the consequences of breach of confidentiality, possible current and future uses of the biological material and of the data to be generated from the research and if the material is likely to be used for secondary purposes or would be shared with others, the risk of discovery of biologically sensitive information and publications, including photographs and pedigree charts.<a href="#_ftn26" name="_ftnref26">[26]</a> The Guidelines require special concern for privacy and confidentiality when conducting genetic family studies. <a href="#_ftn27" name="_ftnref27">[27]</a>The protection of privacy and maintenance of confidentiality, specifically surrounding the identity and records, is maintained whenusing the information or genetic material provided by participants for research purposes. <a href="#_ftn28" name="_ftnref28"><sup><sup>[28]</sup></sup></a>The Guidelines require investigators to maintain confidentiality of epidemiological data due to the particular concern that some population based data may also have implications on issues like national security or public safety.<a href="#_ftn29" name="_ftnref29">[29]</a>All documentation and communication of the Institutional Ethics Committee (IEC) must be dated, filed and preserved according to the written procedures.Data of individual participants can be disclosed in a court of law under the orders of the presiding judge, if there is a threat to a person’s life, communication to the drug registration authority regarding cases of severe adverse reaction and communication to the health authority if there is risk to public health.<a href="#_ftn30" name="_ftnref30">[30]</a></p>
<p style="text-align: justify; "><b>Insurance Regulatory and Development Authority (Third Party Administrators) Health Services Regulations, 2001<br /></b>The provisions of the Act that have been addressed within the scope of the study regulate the practices of third party administrators within the healthcare sector so as to ensure their compliance with the basic principles of privacy.An exception to the maintenance and confidentiality of information confidentiality clause in the code of conduct, requires TPAs to provide relevant information to any Court of Law/Tribunal, the Government, or the Authority in the case of any investigation carried out or proposed to be carried out by the Authority against the insurance company, TPA or any other person or for any other reason.<a href="#_ftn31" name="_ftnref31">[31]</a>In July 2010, the IRDA notified the<b>Insurance Regulatory and Development </b>Authority<b> (Sharing of Database for Distribution of Insurance Products) Regulations</b> <a href="#_ftn32" name="_ftnref32">[32]</a><b>. These regulations restrict referral companies from </b>providing details of their customers without their prior consent.<a href="#_ftn33" name="_ftnref33">[33]</a>TPAs must maintain the confidentiality of the data collected by it in the course of its agreement and maintain proper records of all transactions carried out by it on behalf of an insurance company and are also required to refrain from trading information and the records of its business<a href="#_ftn34" name="_ftnref34">[34]</a>.TPA’s must keep records for a period of not less than three years.<a href="#_ftn35" name="_ftnref35">[35]</a></p>
<p style="text-align: justify; "><b>IDRA Guidelines on Outsourcing of Activities by Insurance Companies</b> <a href="#_ftn36" name="_ftnref36">[36]</a><br />These guidelines require the insurer to take appropriate steps that require third party service providers protect confidential information of both the Insurer and its clients from intentional or inadvertent disclosure to unauthorized persons.<a href="#_ftn37" name="_ftnref37">[37]</a></p>
<p style="text-align: justify; "><b>Exceptions to the Protection of Privacy</b><br />The legal provisions with regard to privacy, confidentiality and secrecy are often superseded by Public Interest Considerations. The right to privacy, although recognized in the course of Indian jurisprudence and embodied within domestic legislation is often overruled prima facie when faced with situations or instances that involve a larger interest of a greater number of people. This policy is in keeping with India’s policy goals as a social welfare state to aid in the effectuation of its utilitarian ideals. This does not allow individual interest to at any point surpass the interest of the masses.</p>
<p style="text-align: justify; "><b>Epidemic Diseases Act, 1897</b> <a href="#_ftn38" name="_ftnref38">[38]</a><br />Implicit within this formulation of this Act is the assumption that in the case of infectious diseases, the right to privacy, of infected individuals must give way to the overriding interest of protecting public health.<a href="#_ftn39" name="_ftnref39">[39]</a> This can be ascertained not only from the black letter of the Law but also from its spirit. Thus, in the absolute positivist as well as a more liberal interpretation, at the crux of the legislation lies the undeniable fundamental covenant of the preservation of public health, even at the cost of the privacy of a select few individuals <a href="#_ftn40" name="_ftnref40">[40]</a>.</p>
<h2 style="text-align: justify; ">Policy and Regulations</h2>
<p style="text-align: justify; "><b>National Policy for Persons with Disabilities, 2006</b><a href="#_ftn41" name="_ftnref41">[41]</a><br />The following provisions of the Act provide for the incorporation of privacy considerations in prevalent practices with regard to persons with disabilities. The National Sample Survey Organization collects the <b>following information on persons with disabilities:</b> the socio- economic and cultural context, cause of disabilities, early childhood education methodologies and all matters connected with disabilities, at least once in five years.<a href="#_ftn42" name="_ftnref42">[42]</a>This data is collected by non-medical investigators. <a href="#_ftn43" name="_ftnref43">[43]</a>There is thus an inherent limit on the information collected. Additionally, this information is used only for the purpose for which it has been collected.</p>
<p style="text-align: justify; ">The Special Employment Exchange, as established under The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act, collects and furnishes information in registers, regarding provisions for employment. <b>Access to such data is limited to</b> any person who is authorized by the Special Employment Exchange as well as persons authorized by general or special order by the Government, to access, inspect, question and copy any relevant record, document or information in the possession of any establishment. <a href="#_ftn44" name="_ftnref44">[44]</a> When conducting research on persons with disabilities consent is required from the individual or their family members or caregivers.<a href="#_ftn45" name="_ftnref45">[45]</a><i> </i></p>
<p style="text-align: justify; "><b>HIV Interventions</b><br />In 1992, the Government of India instituted the National AIDS Control Organization (NACO) for the prevention and control of AIDS. NACO aims to control the spread of HIV in India through the implementation of Targeted Interventions (TIs) for most at risk populations (MARPs) primarily, sex workers, men having sex with men and people who inject drugs.<a href="#_ftn46" name="_ftnref46">[46]</a>The Targeted Interventions (TIs) system of testing under this organization has however raised numerous concerns about relevant policy gaps in the maintenance of the confidentiality and privacy of persons living with HIV/ AIDS. The shortcomings in the existing policy framework include: The Lack of a limitation and subsequent confidentiality in the amount of Information collected. Project staff inTIsrecordthe name, address and other contact information of MARPs and share this data with Technical Support Unit and State AIDS Control Societies.<a href="#_ftn47" name="_ftnref47">[47]</a> Proof of address and identity documents are required to get enrolled in government ART programs.<a href="#_ftn48" name="_ftnref48">[48]</a>Peer-educators operate under a system known as line-listing, used to make referrals and conduct follow-ups. Peer-educators have to follow-up with those who have not gone at regular intervals for testing. <a href="#_ftn49" name="_ftnref49">[49]</a> This practice can result in peer-educators noticing and concluding that the names missing are those who have tested positive. <a href="#_ftn50" name="_ftnref50">[50]</a> Although voluntary in nature, the policy encourage the fulfillment of fulfilling of numerical targets, and in doing so supports unethical ways of testing.<a href="#_ftn51" name="_ftnref51">[51]</a></p>
<p style="text-align: justify; ">The right to privacy is an essential requirement for persons living with HIV/AIDS due to the potential stigmatizing and discriminatory impact of the revelation of this sensitive information, in any form.<a href="#_ftn52" name="_ftnref52">[52]</a> The lack of privacy rights often fuels the spread of the disease and exacerbates its impact on high risk communities of individuals. Fears emanating from a privacy breach or a disclosure of data often deter people from getting tested and seeking medical care. The impact of such disclosure of sensitive information including the revelation of tests results to individuals other than the person being tested include low self esteem, fear of loss of support from family/peers, loss of earnings especially for female and transgender sex workers, fear of incrimination for illicit sex/drug use and the insensitivity of counselors. <a href="#_ftn53" name="_ftnref53">[53]</a>HIV positive individualslive in constant fear of their positive status being leaked. They also shy away from treatment as they fear people might see them taking their medicines and thereby guess their status. Thus breaches in confidentiality and policy gaps in privacy regulation, especially with respect to diseases such as HIV also prevents people from seeking out treatment. <a href="#_ftn54" name="_ftnref54">[54]</a></p>
<h2 style="text-align: justify; ">Case Law</h2>
<p style="text-align: justify; ">The following cases have been used to deliberate upon important points of contention within the ambit of the implementation and impact of Privacy Regulationsin the healthcare sector. This includes the nature and extent of privacy enjoyed by the patient and instances where in the privacy of the patient can be compromised in light of public interest considerations.</p>
<p style="text-align: justify; "><i>Mr. Surupsingh Hrya Naik vs. State of Maharashtra</i> ,<a href="#_ftn55" name="_ftnref55">[55]</a> (2007)</p>
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<p>The decision in this case held that The RTI Act 2005 would supersede The Medical Council Code of Ethics. The health records of an individual in judicial custody should be made available under the Act and can only be denied in exceptional cases, for valid reasons.</p>
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<p style="text-align: justify; ">Since the Code of Ethics Regulations are only delegated legislation, it was held in the case of <i>Mr. SurupsinghHrya Naik v.State Of Maharashtra</i><a href="#_ftn56" name="_ftnref56">[56]</a> that these would not prevail over the Right to Information Act, 2005 (<b>RTI Act</b>) unless the information sought falls under the exceptions contained in Section 8 of the RTI Act. This case dealt with the important point of contention of whether making the health records public under the RTI Act would constitute a violation of the right to privacy. These health records were required to determine why the convict in question was allowed to stay in a hospital as opposed to prison. In this context the Bombay High Court held thatThe Right to Information Act supersedes the regulation that mandate the confidentiality od a person, or in this case a convict’s medical records. It was held that the medical records of a a person sentenced or convicted or remanded to police or judicial custody, if during that period such person is admitted in hospital and nursing home, should be made available to the person asking the information provided such hospital nursing home is maintained by the State or Public Authority or any other Public Body. It is only in rare and in exceptional cases and for good and valid reasons recorded in writing can the information may be denied.</p>
<p style="text-align: justify; "><i>Radiological & Imaging Association v. Union of India</i> ,<a href="#_ftn57" name="_ftnref57"><sup><sup>[57]</sup></sup></a> (2011)<br />On 14 January 2011 a circular was issued by the Collector and District Magistrate, Kolhapur requiring the Radiologists and Sonologists to submit an on-line form “F” under the PNDT Rules. This was challenged by the Radiological and Imaging Association, <i>inter alia</i>, on the ground that it violates the privacy of their patients. Deciding the above issue the Bombay High Court held that .The images stored in the silent observer are not transmitted on-line to any server and thus remain embedded in the ultra-sound machine. Further, the silent observer is to be opened only on request of the Collector/ the civil surgeonin the presence of the concerned radiologist/sonologist/doctor incharge of the Ultra-sound Clinic. In light of these considerations and the fact that the `F' form submitted on-line is submitted only to the Collector and District Magistrate is no violation of the doctor's duty of confidentiality or the patient's right to privacy. It was further observed that The contours of the right to privacy must be circumscribed by the compelling public interest flowing through each and every provision of the PC&PNDT Act, when read in the background of the following figures of declining sex ratio in the last five decades.</p>
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<p>The use of a Silent Observer system on a sonograph has requisite safeguards and doesn’t violate privacy rights. The declining sex ratio of the country was considered a compelling public Interest that could supersede the right to privacy.</p>
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<p style="text-align: justify; "><i>Smt. Selvi and Ors. v.State of Karnataka </i>(2010)<br />The Supreme Court held that involuntary subjection of a person to narco analysis, polygraph test and brain-mapping violates the ‘right against self-incrimination' which finds its place in Article 20(3)<a href="#_ftn58" name="_ftnref58">[58]</a> of the Constitution. <a href="#_ftn59" name="_ftnref59">[59]</a> The court also found that narco analysis violated individuals’ right to privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent, and physically restraining a subject to the location of the tests and amounted to cruel, inhuman or degrading treatment.<a href="#_ftn60" name="_ftnref60">[60]</a></p>
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<p>The Supreme Court found that Narco-analysis violated an individuals’ right to privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent.</p>
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<p style="text-align: justify; "><i>Neera Mathur v. Life Insurance Corporation </i>(LIC),<a href="#_ftn61" name="_ftnref61">[61]</a> (1991)<br />In this casethe plaintiff contested a wrongful termination after she availed of maternity leave. LIC required women applicants to furnish personal details like their menstrual cycles, conceptions, pregnancies, etc. at the time of appointment. Such a requirement was held to go against the modesty and self respect of women. The Court held that termination was only because of disclosures in application, which was held to be intrusive, embarrassing and humiliating. LIC was directed to delete such questions.</p>
<p style="text-align: justify; ">The Court did not refer to the term privacy however it used the term personal details as well as modesty and self respect, but did not specifically link them to the right to life or any other fundamental right. These terms (modesty and self respect) are usually not connected to privacy but although they may be the harm which comes from an intrusion of one’s privacy.</p>
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<p>The Supreme Court held that Questions related to an individual’s reproductive issues are personal details and should not be asked in the service application forms.</p>
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<p style="text-align: justify; "><b><i> </i></b></p>
<p style="text-align: justify; "><b><i> </i></b></p>
<p style="text-align: justify; "><b><i> </i></b></p>
<p style="text-align: justify; "><i>Ms. X vs. Mr. Z &Anr</i> ,<a href="#_ftn62" name="_ftnref62">[62]</a> (2001)<br />In this case, the Delhi High Court held that an aborted foetus was not a part of the body of a woman and allowed the DNA test of the aborted foetus at the instance of the husband. The application for a DNA test of the foetus was contested by the wife on the ground of “Right to Privacy”.7In this regard the court held that The Supreme Court had previously decided that a party may be directed to provide blood as a DNA sample but cannot be compelled to do so. The Court may only draw an adverse interference against such party who refuses to follow the direction of the Court in this respect.The position of the court in this case was that the claim that the preservation of a foetus in the laboratory of the All India Institute of Medical Science, violates the petitioner’s right to privacy, cannot be entertained as the foetus had been voluntarily discharges from her body previously, with her consent. The foetus, that she herself has dischargedis claimed to be subjected to DNA test. Thus, in light of the particular facts and the context of the case, it was held that petitioner does not have any right of privacy.</p>
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<p>A woman’s right to privacy does not extend to a foetus, which is no longer a part of her body. The right to privacy may arise from a contract as well as a specific relationship, including a marital relationship. The principle in this case has been laid down in broad enough terms that it may be applied to other body parts which have been disassociated from the body of the individual.</p>
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<p style="text-align: justify; ">It is important to note here that the fact that the Court is relying upon the principles laid down in the case of <i>R. Rajagopal </i>seems to suggest that the Court is treating organic tissue preserved in a public hospital in the same manner as it would treat a public document, insofar as the exception to the right to privacy is concerned.</p>
<p style="text-align: justify; "><i>B.K Parthasarthi vs. Government of Andhra Pradesh</i> ,<a href="#_ftn63" name="_ftnref63">[63]</a> (1999)<br />In this case, the Andhra Pradesh High Court was to decide the validity of a provision in the Andhra Pradesh Panchayat Raj Act, 1994 which stipulated that any person having more than two children should be disqualified from contesting elections. This clause was challenged on a number of grounds including the ground that it violated the right to privacy. The Court, in deciding upon the right to privacy and the right to reproductive autonomy, held thatThe impugned provision, i.eSection 19(3) of the said Act does not compel directly anyone to stop procreation, but only disqualifies any person who is otherwise eligible to seek election to various public offices coming within the ambit of the Andhra Pradesh Panchayat Raj Act, 1994 or declares such persons who have already been holding such offices to be disqualified from continuing in such offices if they procreate more than two children.Therefore, the submission made on behalf of the petitioners 'right to privacy' is infringed, is untenable and must be rejected.”</p>
<p style="text-align: justify; "><i>Mr. X v. Hospital Z, Supreme Court of India</i> ,<a href="#_ftn64" name="_ftnref64">[64]</a> (1998 and 2002)<br />The petitioner was engaged to be married and thereafter during tests for some other illness in the hospital it was found that the petitioner was HIV positive. This information was released by the doctor to the petitioner’s family and through them to the family of the girl to whom the petitioner was engaged, all without the consent of the petitioner. The Court held that:</p>
<p style="text-align: justify; ">“The Right to privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.”</p>
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<p>Right to privacy and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.</p>
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<p style="text-align: justify; ">This decision of this case could be interpreted to extend the principle, of disclosure to the person at risk, to other communicable and life threatening diseases as well. However, a positivist interpretation would render these principle applicable to only to HIV+ cases.</p>
<p style="text-align: justify; "><i>M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd.</i> <a href="#_ftn65" name="_ftnref65">[65]</a> (2001)<br />The petitioner alleged that she had contracted the HIV virus due to the negligence of the authorities of Maternity and Family Welfare Hospital, Godavarikhani, a hospital under the control of Singareni Collieries Company Ltd., (SCCL), in conducting relevant precautionary blood tests before transfusion of blood of her brother (donor) into her body when she was operated for hysterectomy (Chronic Cervicitis) at the hospital. The petition was initially filed as a Public Interest Litigation,which the court duly expanded in order to address the problem of the lack of adequate precautionary measures in hospitals, thereby also dealing with issues of medical confidentiality and privacy of HIV patients. The court thus deliberated upon the conflict between the right to privacy of an HIV infected person and the duty of the state to prevent further transmission and held:</p>
<p style="text-align: justify; ">In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional. As under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India</p>
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<p>The right of reproductive autonomy is a component of the right to privacy .A provision disqualifying a person from standing for elections due to the number of children had, does not violate the right to privacy as the object of the legislation is not to violate the autonomy of an individual but to mitigate the population growth in the country. Measures to control population growth shall be considered legal unless they impermissibly violate a fundamental right.</p>
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<p style="text-align: justify; ">However, another aspect of the matter is whether compelling a person to take HIV test amounts to denying the right to privacy? The Court analyzed the existing domestic legislation to arrive at the conclusion that there is no general law that can compel a person to undergo an HIV-AIDS test. However, specific provisions under the Prison Laws<a href="#_ftn66" name="_ftnref66">[66]</a></p>
<p style="text-align: justify; ">provide that as soon as a prisoner is admitted to prison, he is required to be examined medically and the record of prisoner's health is to be maintained in a register. Further, Under the ITP Act, the sex workers can also be compelled to undergo HIV/ AIDS test.<a href="#_ftn67" name="_ftnref67">[67]</a></p>
<p style="text-align: justify; ">Additionally, under Sections 269 and 270 of the Indian Penal Code, 1860, a person can be punished for negligent act of spreading infectious diseases.</p>
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<p>The right to privacy of a person suspected to be HIV+ would be subordinate to the power and duty of the state to identify HIV+ patients in order to protect public interest and improve public health. However any law designed to achieve this object must be fair and reasonable. In a conflict between the individual’s privacy right and the public’s right in dealing with the cases of HIV-AIDS, the Roman Law principle 'SalusPopuliestSuprema' (regard for the public wealth is the highest law) applies when there is a necessity.</p>
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<p style="text-align: justify; ">After mapping legislation that permit the invasion of bodily privacy, the Court concluded that they are not comprehensive enough to enable the State to collect information regarding patients of HIV/AIDS and devise appropriate strategies and therefore the State should draft a new legislation in this regard. Further the Court gave certain directions to the state regarding how to handle the epidemic of HIV/AIDS and one of those directions was that the “Identity of patients who come for treatment of HIV+/AIDS should not be disclosed so that other patients will also come forward for taking treatment.”</p>
<p style="text-align: justify; "><i>Sharda v. Dharmpal</i> ,<a href="#_ftn68" name="_ftnref68">[68]</a> (2003)</p>
<p style="text-align: justify; ">The basic question in this case was whether a party to a divorce proceeding can be compelled to a medical examination. The wife in the divorce proceeding refused to submit herself to medical examination to determine whether she was of unsound mind on the ground that such an act would violate her right to personal liberty. Discussing the balance between protecting the right to privacy and other principles that may be involved in matrimonial cases such as the ‘best interest of the child’ in case child custody is also in issue, the Court held:</p>
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<p>If the best interest of a child is in issue in the case then the patient’s right to privacy and confidentiality would get limited. The right to privacy of an individual would be subordinate to the power of a court to arrive at a conclusion in a matrimonial dispute and the right of a party to protect his/her rights in a Court of law would trump the right to privacy of the other.</p>
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<p style="text-align: justify; ">"Privacy" is defined as "the state of being free from intrusion or disturbance in one's private life or affairs". However, the right to privacy in India, is only conferred through an extensive interpretation of Article 21 and cannot therefore in any circumstance be considered an absolute right. Mental health treatment involves disclosure of one's most private feelings However, like any other privilege the psychotherapist-patient privilege is not absolute and may only be recognized if the benefit to society outweighs the costs of keeping the information private. Thus if a child's best interest is jeopardized by maintaining confidentiality the privilege may be limited.” Thus, the power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to violate the petitioner’s right to privacy.</p>
<p style="text-align: justify; "><b> </b></p>
<h2 style="text-align: justify; ">Regulation of Privacy in Government and Private Hospitals and Diagnostic Laborataries</h2>
<p style="text-align: justify; "><b>A. Field Study</b><br />The Hospitals that have been chosen for the analysis of the efficacy of these legislations include prominent Government Hospitals, Private Hospitals and Diagnostic Centers. These Institutes were chosen because of their widely accredited status as centers of medical research and cutting edge treatment. They have also had a long standing reputation due to their staff of experienced and skilled on call doctors and surgeons. The Private Hospitals chosen had patient welfare centers that addressed the concerns of patients including questions and doubts relating to but not limited to confidentiality and consent. The Government hospitals had a public relations office that addressed the concerns of discharged patients. They also provided counseling services to patients to aid them in addressing concerns relate to the treatment that they might want to be kept confidential. Diagnostic laboratories also have an HR department that addresses similar concerns. The laboratory also has a patient welfare manager who addresses the concerns and queries of the patient prior to and during the procedure.</p>
<p style="text-align: justify; ">The following section describes the practices promulgated by Government and Private Hospitals, as well as Diagnostic Laboratories in their endeavor to comply with the basic principles of privacy as laid down in the A.P Shah Committee report on Privacy.</p>
<h5 style="text-align: justify; ">(i) Notice</h5>
<p style="text-align: justify; ">Through an analysis of the information provided by Government and Private hospitals and diagnostic laboratories, relevant conclusions were drawn with regard to the nature, process and method in which the patient information is recorded. Through interviews of various medical personnel including administrative staff in the patient welfare and medical records departments we observed an environment of openness and accountability within the structure of the patient registration system.</p>
<p style="text-align: justify; ">In Government Hospitals, the patient is notified of all types of information that is collected, in terms of both personal information as well as medical history. The Patient admission as well as the patient consent form is filled out by the patient or the attending relative accompanying the patient and assistance for the same is provided by the attending staff members, who explain the required details that need to be filled in a language that the patient is able to understand. The patient is notified of the purpose for which such information is collected and the procedure that he/ she might have to undergo depending on his injury or illness. The patient is not however, notified of the method in which he/she may correct or withdraw the information that is provided. There is no protocol provided for the correction or withdrawal of information, once provided. The patient is, at all times notified of the extent and nature of doctor patient confidentiality including the fact that his/her personal information would not be shared even with his/her immediate relatives , insurance companies, consulting doctors who are not directly involved with his/her treatment or any unauthorized third party without requisite consent from the patient. The patient is informed of the fact that in some cases the medical records of the patient will have to be shared with consulting doctors and that all the patient’s medical records would be provided to insurance companies, but this will only be done with the consent of the patient.</p>
<p style="text-align: justify; ">The same system of transparency and accountability transcends across private hospitals and diagnostic laboratories as well. In private hospitals, the patient is informed of all the information that is collected and the purpose for which such information may be collected. Diagnostic laboratories have specific patient consent forms for specific types of procedures which the patient will have to fill out depending on the required tests. These forms contain provisions with regard to the confidential nature of all the information provided. This information can only be accessed by the patient and the consulting doctor with the consent of the patient. Both private hospitals and diagnostic laboratories have a specific protocol and procedure in place to correct or withdraw information that has been provided. In order to do so the patient would have to contact the medical records department with requisite proof of the correct information. Private hospitals inform patients of the nature and extent of doctor patient confidentiality at every stage of the registration process. Some private hospitals contain patient safety brochures which inform patients about the nature and extent of consent and confidentiality, even with regard to consulting doctors and insurance agencies. If the patient does not want certain information revealed to insurance agencies the hospital will retain such records and refraining from providing them to third party insurance agencies. Thus, all information provided by the patient remains confidential at the behest of the patient.</p>
<h5 style="text-align: justify; ">(ii) Choice and Consent</h5>
<p style="text-align: justify; ">Choice and consent are two integral aspects of the regulation of privacy within the healthcare sector. Government and Private hospitals as well as diagnostic laboratories have specific protocols in place to ensure that the consent of the patient is taken at every stage of the procedure. The consent of the patient can also be withdrawn just prior to the procedure even if this consent has already been given by the patient in writing, previously. The choice of the patient is also given ample importance at all stages of the procedure. The patient can refuse to provide any information that may not mandatorily required for the treatment provided basic information regarding his identity and contact information in case of emergency correspondence has been given.</p>
<h5 style="text-align: justify; ">(iii) Collection Limitation</h5>
<p style="text-align: justify; ">The information collected from the patient in both government and private hospitals is used solely for the purpose that the patient has been informed of. In case this information is used for purposes other than for the purpose that the patient has been informed of, the patient is informed of this new purpose as well. Patient records in both Government and Private hospitals are stored in the Medical Records Department as hard copies and in some cases as scanned soft copies of the hard copy as well. These Medical Records are all stored within the facility. The duration for which the records are stored range from a minimum of two years to a maximum of ten years in most private hospitals. Some private hospitals store these records for life. Government hospitals store these records for a term of thirty years only as hard copies after which the records are discarded. Private hospitals make medical records accessible to any medical personnel who may ask for it provided the requisite proof of identity and reasons for accessing the same are provided, along with an attested letter of authorization of the doctor who is currently involved or had been involved in the treatment of the patient. Government hospitals however do not let any medical personnel access these records except for the doctor involved in the treatment of that particular patient. Both private and government hospitals are required to share the medical records of the patient with the insurance companies. Government Hospitals only share patient records with nationalized insurance agencies such as The Life Insurance Corporation of India (LIC) but not with private insurance agencies. The insurance claims forms that are required prior to providing medical records to the insurance companies mandatorily require the signature of the patient. The patient is thus informed that his records will be shared with the insurance agencies and his signature is a proof of his implied consent to the sharing of these records with the company with which he has filed a health insurance claim.</p>
<p style="text-align: justify; ">Diagnostic laboratories collect patient information solely for the purpose of the particular test that they have been asked to conduct by the treating or consulting doctor. Genetic samples (Blood, Semen, Urine etc) are collected at one time and the various tests required are conducted on these samples. In case of any additional testing that is required to be conducted on these samples, the patient is informed. Additional testing is conducted only in critical cases and in cases where the referral doctor requests for the same to be conducted on the collected samples. In critical cases, where immediate testing is required and the patient is unreachable, the testing is conducted without informing the patient. The patient is mandatorily informed after the test that such additional testing was conducted. The patient sample is stored for one week within the same facility. The Patient records are digitized. They can only be accessed by the patient, who is provided with a particular username and password using which he can access only his records. The information is stored for a minimum of two years. This information can be made available to a medical personnel only if such medical personnel has the required lab no, the patients name, and reason for which it needs to be accessed. He thus requires the permission of the authorities at the facility as well as the permission and consent of the patient to access such records. The Medical test records of a patient are kept completely confidential. Even insurance companies cannot access such records unless they are provided to the company by the patient himself. In critical cases however, the patient information and tests results are shared with the treating or referral doctor without the consent of the patient.</p>
<h5 style="text-align: justify; ">(iv) Purpose Limitation</h5>
<p style="text-align: justify; ">In Government and Private Hospitals, the information is only used for the purpose for which it is collected. There is thus a direct and relevant connection between the information collected and the purpose for which it used. Additional information is collected to gauge the medical history of the patient that may be relevant to the disease that has to be treated. The information is never deleted after it has been used for the purpose for which it had been collected. The Medical Records of the patient are kept for extended periods in hard copy as well as soft copy versions. There is a provision for informing the patient in case the information is used for any purpose other than the purpose for which it was collected. Consent of the patient is taken at all stages of collecting and utilizing the information provided by him.</p>
<p style="text-align: justify; ">Diagnostic Laboratories have a database of all the information collected which is saved in the server. The information is mandatorily deleted after it has been used for the purpose for which it was collected after a period of two years. In case the information is used for any purpose other than the purpose for which it was collected, for example, in critical cases where additional tests have to be conducted the patient is\ always informed of the same.</p>
<h5 style="text-align: justify; ">(v) Access and Correction</h5>
<p style="text-align: justify; ">In private hospitals, the patient is allowed to access his own records during his stay at the hospital. He is given a copy of his file upon his discharge from the hospital in the form of a discharge summary. However, if he needs to access the original records at a later stage, he can do so by filing a request for the same at the Medical Records Department of the hospital. A patient can make amendments or corrections to his records by providing requisite proof to substantiate the amended information. The patient however at no stage can confirm if the hospital is holding or processing personal information about him or her with the exception of the provisions provided for the amendment or correction to the information held.</p>
<p style="text-align: justify; ">The Medical records of a patient in a government hospital are completely sealed. A patient has no access to his own records. Only the concerned doctor who was treating the patient during his stay at the hospital can access the records of the patient. This doctor has to be necessarily associated with the hospital and had to have been directly involved in the patient’s treatment in order to access the records. The patient is allowed to amend information in his medical records but only generic information such as the spelling of his name, his address, telephone number etc. The patient is at no point allowed to access his own records and therefore cannot confirm if the hospital is holding or processing any information about him/her. The patient is only provided with a discharge summary that includes his personal information, the details of his disease and the treatment provided in simple language.</p>
<p style="text-align: justify; ">Diagnostic laboratories have an online database of patient records. The patient is given a username and a password and can access the information at any point. The patient may also amend or correct any information provided by contacting the Medical records department for the same. The patient can at any time view the status of his record and confirm if it is being held or processed by the hospital. A copy of such information can be obtained by the patient at any time.</p>
<h5 style="text-align: justify; ">(vi) Disclosure of Information</h5>
<p style="text-align: justify; ">Private Hospitals are extremely cautious with regard to the disclosure of patient information. Medical records of patients cannot be accessed by anyone except the doctor treating that particular patient or consulting on the case. The patient is informed whenever his records are disclosed even to doctors. Usually, even immediate relatives of the patient cannot access the patient’s records without the consent of the patient except in cases where the condition of the patient is critical. The patient is always informed about the type and extent of information that may be disclosed whenever it is disclosed. No information of the patient is made available publicly at any stage. The patient can refuse to consent to sharing of information collected from him/her with non-authorized agencies. However, in no circumstance is the information collected from him/her shared with non authorized agencies. Some private hospitals also provide the patient with patient’s safety brochures highlighting the extent of doctor patient confidentiality, the patient’s rights including the right to withdraw consent at any stage and refuse access of records by unauthorized agencies.</p>
<p style="text-align: justify; ">In government hospitals, the medical records of the patient can only be disclosed to authorized agencies with the prior approval of patient. The patient is made aware of the type and extent of information that is collected from him/her and is mandatorily shared with authorized bodies such as insurance agencies or the treating doctor. No information of the patient is made publicly available. In cases where the information is shared with insurance agencies or any such authorized body the patient gives an undertaking via a letter of his consent to such disclosure. The insurance companies only use medical records for verification purposes and have to do so at the facility. They cannot take any original documents or make copies of the records without the consent of the patient as provided in the undertaking.</p>
<p style="text-align: justify; ">Diagnostic Laboratories provide information regarding the patient’s medical records only to the concerned or referred doctor. The patient is always informed of any instance where his information may be disclosed and the consent of the patient is always taken for the same. No information is made available publicly or shared with unauthorized agencies at any stage. Information regarding the patient’s medical records is not even shared with insurance companies.</p>
<p style="text-align: justify; ">Government and Private Hospitals provide medical records of patients to the police only when a summons for the same has been issued by a judge. Diagnostic laboratories however do not provide information regarding a patient’s records at any stage to any law enforcement agencies unless there is summons from a judge specifying exactly the nature and extent of information required.</p>
<p style="text-align: justify; ">Patients are not made aware of laws which may govern the disclosure of information in private and government hospitals as well as in diagnostic laboratories. The patient is merely informed that the information provided by him to the medical personnel will remain confidential.</p>
<h5 style="text-align: justify; ">(vii) Security</h5>
<p style="text-align: justify; ">The security measures that are put in place to ensure the safety of the collected information is not adequately specified in the forms or during the collection of information from the patient in Government or Private Hospitals. Diagnostic laboratories however do provide the patient with information regarding the security measures put in place to ensure the confidentiality of the information.</p>
<h5 style="text-align: justify; ">(viii) Openness</h5>
<p style="text-align: justify; ">The information made available to the patient at government and private hospital and diagnostic laboratories is easily intelligible. At every stage of the procedure the explicit consent of the patient is obtained. In government and private hospitals the signature of the patient is obtained on consent forms at every stage of the procedure and the nature and extent of the procedure is explained to the patient in a language that he understands and is comfortable speaking. The information provided is detailed and is provided in simplistic terms so that the patient does at all stages understand the nature of any procedure he is consenting to undergo.</p>
<h5 style="text-align: justify; ">(ix) Accountability</h5>
<p style="text-align: justify; ">Private hospitals and Diagnostic laboratories have internal and external audit mechanisms in place to check the efficacy of privacy measures. They both have grievance redress mechanisms in the form of patient welfare cells and complaint cells. There is an assigned officer in place to take patient feedback and address and manage the privacy concerns of the patient.</p>
<p style="text-align: justify; ">Government hospitals do not have an internal or external audit mechanism in place to check the efficacy of privacy measures. There is however a grievance redressal mechanism in government hospitals in the form of a Public Relations Office that addresses the concerns, complaints, feedback and suggestions of the patients. There is an officer in charge of addressing and managing the privacy concerns of patients. This officer also offers counseling to the patients in case of privacy concerns regarding sensitive information.</p>
<h3 style="text-align: justify; ">International Best Practices and Recommendations</h3>
<p style="text-align: justify; "><b>A. European Union<br /></b>An official EU data protection regulation <a href="#_ftn69" name="_ftnref69">[69]</a>was issued in January 2012. A key objective of this was to introduce a uniform policy directive across all member states. The regulation, once implemented was to be applicable in all member states and left no room for alteration or amendments.</p>
<p style="text-align: justify; ">The regulation calls for <b>Privacy Impact Assessments</b><a href="#_ftn70" name="_ftnref70">[70]</a>when there are specific risks to privacy which would include profiling, sensitive data related to health, genetic material or biometric information. This is an important step towards evaluating the nature and extent of privacy regulation required for various procedures and would be effective in the creation of a systematic structure for the implementation of these regulations. The regulation also established the need for explicit consent for sensitive personal data. The basis for this is an inherent imbalance in the positions of the data subject and the data controller, or in simpler terms the patient and the hospital or the life sciences company conducting the research. Thus, implied consent is not enough <a href="#_ftn71" name="_ftnref71">[71]</a>and a need arises to proceed with the testing only when there is <b>explicit informed consent.</b></p>
<p style="text-align: justify; ">Embedded within the regulation is the <b>right to be forgotten </b><a href="#_ftn72" name="_ftnref72">[72]</a>wherein patients can request for their data to be deleted after they have been discharged or the clinical trial has been concluded. In the Indian scenario, patient information is kept for extended periods of time. This can be subject to unauthorized access and misuse. The deletion of patient information once it has been used for the purpose for which it was collected is thus imperative towards the creation of an environment of privacy protection.</p>
<p style="text-align: justify; ">Article 81 of the regulation specifies that health data may be processed only for three major processes<a href="#_ftn73" name="_ftnref73">[73]</a> :</p>
<p style="text-align: justify; ">a) In cases of Preventative or occupational medicine, medical diagnosis, the care, treatment or management of healthcare services, and in cases where the data is processed by the healthcare professionals, the data is subject to the obligation of professional secrecy;</p>
<p style="text-align: justify; ">b) Considerations of public interest bearing a direct nexus to public health, for example, the protection of legitimate cross border threats to health or ensuring a high standard of quality and safety for medicinal products or services;</p>
<p style="text-align: justify; ">c) Or other reasons of public interest such as social protection.</p>
<p style="text-align: justify; ">An added concern is the nature and extent of consent. The consent obtained during a clinical trial may not always be sufficient to cover additional research even in instances of data being coded adequately. Thus, it may not be possible to anticipate additional research while carrying out initial research. Article 83<a href="#_ftn74" name="_ftnref74">[74]</a> of the regulation prohibits the use of data collected for an additional purpose, other that the purpose for which it was collected.</p>
<p style="text-align: justify; ">Lastly, the regulation covers data that may be transferred outside the EEA, unless there is an additional level of data protection. If a court located outside the EU makes a request for the disclosure of personal data, prior authorization must be obtained from the local data protection authority before such transfer is made. It is imperative that this be implemented within Indian legislation as currently there is no mechanism to regulate the cross border transfer of personal data.</p>
<p style="text-align: justify; "><b>B. The United States of America<br /></b>The Health Maintenance Organizations Act, 1973 <a href="#_ftn75" name="_ftnref75">[75]</a>was enacted with a view to keep up with the rapid development in the Information Technology sector. The digitization of personal information led to new forms of threats with regard to the privacy of a patient. In the face of this threat, the overarching goal of providing effective and yet unobtrusive healthcare still remains paramount.</p>
<p style="text-align: justify; ">To this effect, several important federal regulations have been implemented. These include the Privacy and Security Ruled under the Health Insurance Portability and Accountability Act (HIPAA) 1996<a href="#_ftn76" name="_ftnref76">[76]</a> and the State Alliance for eHealth (2007) <a href="#_ftn77" name="_ftnref77">[77]</a>.The HIPAA privacy rules addressed the use and subsequent disclosure of a patient's personal information under various healthcare plans, medical providers, and clearinghouses. These insurance agencies were the primary agents involved in obtaining a patients information for purposes such as treatment, payment, managing healthcare operations, medical research and subcontracting. Under the HIPAA it is required of insurance agencies to ensure the implementation of various administrative safeguards such as policies, guidelines, regulations or rules to monitor and control inter as well as intra organizational access.</p>
<p style="text-align: justify; ">Apart from the HIPAA, approximately 60 laws related to privacy in the healthcare sector have been enacted in more than 34 states. These legislations have been instrumental in creating awareness about privacy requirements in the healthcare sector and improving the efficiency of data collection and transfer. Similar legislative initiative is required in the Indian context to aid in the creation of a regulated and secure atmosphere pertaining to the protection of privacy within the healthcare sector.</p>
<p style="text-align: justify; "><b>C. Australia<br /></b>Australia has a comprehensive law that deals with sectoral regulations of the right to privacy.An amendment to the Privacy Act1988 <a href="#_ftn78" name="_ftnref78">[78]</a>applies to all healthcare providers and was made applicable from 21st December 2001.The privacy Act includes the followingpractices:</p>
<p style="text-align: justify; ">a. A stringent requirement for informed consent prior to the collection of health related information</p>
<p style="text-align: justify; ">b. A provision regarding the information that needs to be provided to individuals before information is collected from them</p>
<p style="text-align: justify; ">c. The considerations that have to be taken into account before the transfer of information to third parties such as insurance agencies, including the specific instances wherein this information can be passed on</p>
<p style="text-align: justify; ">d. The details that must be included in the Privacy policy of the healthcare service providers' Privacy Policy</p>
<p style="text-align: justify; ">e. The securing and storing of information; and</p>
<p style="text-align: justify; ">f. Providing individuals with a right to access their health records.</p>
<p style="text-align: justify; ">These provisions are in keeping with the 13 National Privacy <a href="#_ftn79" name="_ftnref79">[79]</a>Principles that represent the minimum standards of privacy regulation with respect to the handling of personal information in the healthcare sector.These guidelines are advisory in nature and have been issued by the Privacy Commissioner in exercise of his power under Section 27(1)(e) <a href="#_ftn80" name="_ftnref80">[80]</a>of the Privacy Act.</p>
<p style="text-align: justify; ">The Act also embodiessimilar privacy principles which include a collection limitation, a definitive use and purpose for the information collected, a specific set of circumstance and an established protocol for the disclosure of information to third parties including the nature and extent of such disclosure, maintenance accuracy ofthe data collected, requisite security measures to ensure the data collected is at all times protected, a sense of transparency,accountability and openness in the administrative functioning of thehealthcare provider and accessibility of the patient to his ownrecords for the purpose of viewing, corroboration or correction.</p>
<p style="text-align: justify; ">Additionally, the Act includes the system of identifiers which includes a number assigned by the organization to an individual to identify the purpose of that person's data for the operation of the organization. Further, the Act provides for anonymity wherein individuals have the optionnot to identify themselves while entering into transactions with an organization. The Act also provides for restrictions on the transfer of personal data outside Australia and establishes conclusive and stringent barriers to the extent of collection of personal and sensitive data.These principles although vaguely similar to those highlighted in the A.P. Shah Committee report can be usedto streamline the regulations pertaining to privacy in the healthcare sector and make them more efficient.</p>
<h2 style="text-align: justify; ">Key Recommendations</h2>
<p style="text-align: justify; ">It is Imperative that Privacy concerns relating to the transnational flow of Private data be addressed in the most efficient way possible. This would involve international cooperation and collaboration to address privacy concerns including clear provisions and the development of coherent minimum standards pertaining to international data transfer agreements. This exchange of ideas and multilateral deliberation would result in creating more efficient methods of applying the provisions of privacy legislation even within domestic jurisdictions.</p>
<p style="text-align: justify; ">There is a universal need for the development of a foundational structure for the physical collection, use and storage of human biological specimens (in contrast to the personalinformation that may be derived from those specimens) as these are extremely important aspects of biomedical research and clinical trials. The need for Privacy Impact Assessments would also arise in the context of clinical trials, research studies and the gathering of biomedical data.</p>
<p style="text-align: justify; ">Further, there also arises the need for patients to be allowed to request for the deletion of their personal information once it has served the purpose for which it was obtained. The keeping of records for extended periods of time by hospitals and laboratories is unnecessary and can often result in the unauthorized access to and subsequent misuse of such data.</p>
<p style="text-align: justify; ">There is a definitive need to ensure the incorporation of safeguards to regulate the protection of patient’s data once accessed by third parties, such as insurance companies. In the Indian Context as well as insurance agencies often have unrestricted access to a patient's medical records however there is a definitive lack of sufficient safeguards to ensure that this information is not released to or access by unauthorized persons either within these insurance agencies or outsourced consultants</p>
<p style="text-align: justify; ">The system of identifiers which allocate specific numbers to an individual’s data which can only be accessed using that specific number or series of numbers can be incorporated into the Indian system as well and can simplify the administrative process thus increasing its efficacy. This would afford individuals the privilege of anonymity while entering into transactions with specific healthcare institutions.</p>
<p style="text-align: justify; ">An important means of responding to public concerns over potential unauthorized use ofpersonal information gathered for research, could be through the issuing of Certificates of confidentiality as issued in the United States to protectsensitive information on research participants from forced disclosure. <a href="#_ftn81" name="_ftnref81">[81]</a></p>
<p style="text-align: justify; ">Additionally, it is imperative that frequent discussions, deliberations, conferences and roundtables take place involving multiple stakeholders form the healthcare sector, insurance companies, patient’s rights advocacy groups and the government. This would aid in evolving a comprehensive policy that would aid in the protection of privacy in the healthcare sector in an efficient and collusive manner.</p>
<h2 style="text-align: justify; ">Conclusions</h2>
<p style="text-align: justify; ">The Right to Privacy has been embodied in a multitude of domestic legislations pertaining to the healthcare sector. The privacy principles envisioned in the A.P Shah Committee report have also been incorporated into the everyday practices of healthcare institutions to the greatest possible extent. There are however significant gaps in the policy formulation that essentially do not account for the data once it has been collected or its subsequent transfer. There is thus an imminent need for institutional collaboration in order to redress these gaps. Recommendations for the same have been made in the report. However, for an effective framework to be laid down there is still a need for the State to play an active role in enabling the engagement between different institutions both in the private and public domain across a multitude of sectors including insurance companies, online servers that are used to harbour a data base of patient records and civil action groups that demand patient privacy while at the same time seek to access records under the Right to Information Act. The collaborative efforts of these multiple stakeholders will ensure the creation of a strong foundational framework upon which the Right to Privacy can be efficiently constructed.</p>
<div style="text-align: justify; ">
<hr />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> . Report of the group of experts on Privacy chaired by Justice A.P Shah <http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf> [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> . Nissenbaum, H. (2004). Privacy as Contextual Integrity. <i>Washington Law Review</i>, <i>79</i>(1), 101-139.</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> . <i>Ibid.</i><i> </i></p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> . Thomas, J. (2009). Medical Records and Issues in Negligence, <i>Indian Journal of Urology : IJU : Journal of the Urological Society of India</i>, <i>25</i>(3), 384-388. doi:10.4103/0970-1591.56208.</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> <i>. Ibid </i></p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> . Plaza, J., &Fischbach, R. (n.d.). Current Issues in Research Ethics : Privacy and Confidentiality. Retrieved December 5, 2011, from http://ccnmtl.columbia.edu/projects/cire/pac/foundation/index.html.</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> . <i>Ibid.</i><i> </i></p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> . The Mental Health Act, 1987 <https://sadm.maharashtra.gov.in/sadm/GRs/Mental%20health%20act.pdf> [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> . The Mental Health Act, 1987, s. 13(1).</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> .The Mental Health Act, 1987, s. 38.</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> .The Mental Health Act, 1987, s. 40.</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> .The Mental Health Act, 1987, s. 21(2).</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> .The Mental Health Act, 1987, s. 13(1), <i>Proviso</i>.</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> . Also see the: Pre-Conception and and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> . Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(3).</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> . Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(2). Pre-natal diagnostic techniques shall be conducted for the purposes of detection of: chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies any other abnormalities or diseases as may be specified by the Central Supervisory Board.</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> .Medical Termination of Pregnancy Amendment Act, 2002, Notification on Medical Termination of Pregnancy (Amendment) Act, Medical Termination of Pregnancy Regulations, 2003 and Medical Termination of Pregnancy Rules, 2003.</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> .Medical Termination of Pregnancy Act, 1971 (Amended in 2002), s. 2(4) and 4, and Medical Termination of Pregnancy Rules, 2003, Rule 8</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> .Medical Termination of Pregnancy Regulations, 2003, Regulation 4(5).</p>
</div>
<div id="ftn20">
<p><a href="#_ftnref20" name="_ftn20">[20]</a> .Medical Termination of Pregnancy Regulations, 2003, Regulation 5.</p>
</div>
<div id="ftn21">
<p><a href="#_ftnref21" name="_ftn21">[21]</a> .Medical Termination of Pregnancy Regulations, 2003, Regulation 4(2).</p>
</div>
<div id="ftn22">
<p><a href="#_ftnref22" name="_ftn22">[22]</a> .Medical Termination of Pregnancy Regulations, 2003, Regulations 4(2) and 4(4).</p>
</div>
<div id="ftn23">
<p><a href="#_ftnref23" name="_ftn23">[23]</a> <i>. Code of Ethics Regulations, 2002</i> available at</p>
<p><a href="http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx"> http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx </a> .</p>
</div>
<div id="ftn24">
<p><a href="#_ftnref24" name="_ftn24">[24]</a> . <i>Code of Ethics Regulations,</i> 2002 Chapter 2, Section 2.2.</p>
</div>
<div id="ftn25">
<p><a href="#_ftnref25" name="_ftn25">[25]</a> .<i>Ethical Guidelines for Biomedical Research</i><i> on </i><i>Human Subjects</i>. (2006) Indian <i>Council</i> of Medical Research New Delhi.</p>
</div>
<div id="ftn26">
<p><a href="#_ftnref26" name="_ftn26">[26]</a> . Informed Consent Process, <i>Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2006)</i><i>.</i> Indian <i>Council</i> of Medical Research New Delhi.P. 21.</p>
</div>
<div id="ftn27">
<p><a href="#_ftnref27" name="_ftn27">[27]</a> . Statement of Specific Principles for Human Genetics Research, <i>Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2000)</i> <i>.</i> Indian <i>Council</i> of Medical Research New Delhi.P. 62.</p>
</div>
<div id="ftn28">
<p><a href="#_ftnref28" name="_ftn28">[28]</a> . General Ethical I<i>ssues. Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2006)</i><i>.</i> Indian <i>Council</i> of Medical Research New Delhi.P. 29.</p>
</div>
<div id="ftn29">
<p><a href="#_ftnref29" name="_ftn29">[29]</a> . Statement of Specific Principles for Epidemiological Studies, <i>Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2000)</i> <i>.</i> Indian <i>Council</i> of Medical Research New Delhi P. 56.</p>
</div>
<div id="ftn30">
<p><a href="#_ftnref30" name="_ftn30">[30]</a> . Statement of General Principles, Principle IV and Essential Information on Confidentiality for Prospective Research Participants, <i>Ethical Guidelines for Biomedical Research</i>on<i>Human Subjects (2006)</i><i>.</i> Indian <i>Council</i> of Medical Research New Delhi.P. 29.</p>
</div>
<div id="ftn31">
<p><a href="#_ftnref31" name="_ftn31">[31]</a> . The IRDA (Third Party Administrators - Health Services) Regulations 2001, (2001), Chapter 5. Section 2.</p>
</div>
<div id="ftn32">
<p><a href="#_ftnref32" name="_ftn32">[32]</a> . The IRDA (Sharing Of Database for Distribution of Insurance Products) Regulations 2010.</p>
</div>
<div id="ftn33">
<p><a href="#_ftnref33" name="_ftn33">[33]</a> . The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010.</p>
</div>
<div id="ftn34">
<p><a href="#_ftnref34" name="_ftn34">[34]</a> . The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010</p>
</div>
<div id="ftn35">
<p><a href="#_ftnref35" name="_ftn35">[35]</a> . List of TPAs Updated as on 19th December, 2011, Insurance Regulatory and Development Authority (2011), http://www.irda.gov.in/ADMINCMS/cms/NormalData_Layout.aspx?page=PageNo646 (last visited Dec 19, 2011).</p>
</div>
<div id="ftn36">
<p><a href="#_ftnref36" name="_ftn36">[36]</a> . The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011).</p>
</div>
<div id="ftn37">
<p><a href="#_ftnref37" name="_ftn37">[37]</a> . The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011), Section 9.11. P. 8. <i> </i></p>
</div>
<div id="ftn38">
<p><a href="#_ftnref38" name="_ftn38">[38]</a> .<i>The Epidemic Diseases Act</i>, 1897.</p>
</div>
<div id="ftn39">
<p><a href="#_ftnref39" name="_ftn39">[39]</a> .<i>The Epidemic Diseases Act</i>, 1897. s. 2.1.</p>
</div>
<div id="ftn40">
<p><a href="#_ftnref40" name="_ftn40">[40]</a> .<i>The Epidemic Diseases Act</i>, 1897, s. 2.2(b).</p>
</div>
<div id="ftn41">
<p><a href="#_ftnref41" name="_ftn41">[41]</a> . The National Policy for Persons with Disabilities, 2006, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996.</p>
</div>
<div id="ftn42">
<p><a href="#_ftnref42" name="_ftn42">[42]</a> . Research, National Policy for Persons with Disabilities, 1993.</p>
</div>
<div id="ftn43">
<p><a href="#_ftnref43" name="_ftn43">[43]</a> . Survey of Disabled Persons in India. (December 2003) National Sample Survey Organization. Ministry of Statistics and Programme Implementation. Government of India.</p>
</div>
<div id="ftn44">
<p><a href="#_ftnref44" name="_ftn44">[44]</a> .Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995, Section 35.</p>
</div>
<div id="ftn45">
<p><a href="#_ftnref45" name="_ftn45">[45]</a>. Research. National Policy for Persons with Disabilities, 2003.</p>
</div>
<div id="ftn46">
<p><a href="#_ftnref46" name="_ftn46">[46]</a>. http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf</p>
</div>
<div id="ftn47">
<p><a href="#_ftnref47" name="_ftn47">[47]</a>. http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf</p>
</div>
<div id="ftn48">
<p><a href="#_ftnref48" name="_ftn48">[48]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.22.</p>
</div>
<div id="ftn49">
<p><a href="#_ftnref49" name="_ftn49">[49]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.16.</p>
</div>
<div id="ftn50">
<p><a href="#_ftnref50" name="_ftn50">[50]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.16.</p>
</div>
<div id="ftn51">
<p><a href="#_ftnref51" name="_ftn51">[51]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.14.</p>
</div>
<div id="ftn52">
<p><a href="#_ftnref52" name="_ftn52">[52]</a>. http://www.hivaidsonline.in/index.php/HIV-Human-Rights/legal-issues-that-arise-in-the-hiv-context.html</p>
</div>
<div id="ftn53">
<p><a href="#_ftnref53" name="_ftn53">[53]</a>. Chakrapani et al, (2008) ‘HIV Testing Barriers and Facilitators among Populations at-risk in Chennai, India’, INP, p 12.</p>
</div>
<div id="ftn54">
<p><a href="#_ftnref54" name="_ftn54">[54]</a>. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.24.</p>
</div>
<div id="ftn55">
<p><a href="#_ftnref55" name="_ftn55">[55]</a> .<a href="http://www.indiankanoon.org/doc/570038/">http://www.indiankanoon.org/doc/570038/</a></p>
</div>
<div id="ftn56">
<p><a href="#_ftnref56" name="_ftn56">[56]</a> .<a href="http://www.indiankanoon.org/doc/570038/">http://www.indiankanoon.org/doc/570038/</a></p>
</div>
<div id="ftn57">
<p><a href="#_ftnref57" name="_ftn57">[57]</a> .<a href="http://www.indiankanoon.org/doc/680703/">http://www.indiankanoon.org/doc/680703/</a></p>
</div>
<div id="ftn58">
<p><a href="#_ftnref58" name="_ftn58">[58]</a> . No person accused of any offence shall be compelled to be a witness against himself’, (the 'right to silence').</p>
</div>
<div id="ftn59">
<p><a href="#_ftnref59" name="_ftn59">[59]</a> . http://indiankanoon.org/doc/338008/</p>
</div>
<div id="ftn60">
<p><a href="#_ftnref60" name="_ftn60">[60]</a> . http://www.hrdc.net/sahrdc/hrfeatures/HRF205.pdf</p>
</div>
<div id="ftn61">
<p><a href="#_ftnref61" name="_ftn61">[61]</a> . AIR 1992 SC 392.</p>
</div>
<div id="ftn62">
<p><a href="#_ftnref62" name="_ftn62">[62]</a> . 96 (2002) DLT 354.</p>
</div>
<div id="ftn63">
<p><a href="#_ftnref63" name="_ftn63">[63]</a> .AIR 2000 A.P 156.</p>
</div>
<div id="ftn64">
<p><a href="#_ftnref64" name="_ftn64">[64]</a> .<a href="http://indiankanoon.org/doc/382721/">http://indiankanoon.org/doc/382721/</a></p>
</div>
<div id="ftn65">
<p><a href="#_ftnref65" name="_ftn65">[65]</a> .<a href="http://indiankanoon.org/doc/859256/">http://indiankanoon.org/doc/859256/</a></p>
</div>
<div id="ftn66">
<p><a href="#_ftnref66" name="_ftn66">[66]</a> .See Sections 24, 37, 38 and 39 of The Prisons Act, 1894 (Central Act 9 of 1894) Rules 583 to 653 (Chapter XXXV) and Rules 1007 to 1014 (Chapter LVII) of Andhra Pradesh Prisons Rules, 1979</p>
</div>
<div id="ftn67">
<p><a href="#_ftnref67" name="_ftn67">[67]</a> .Section 10-A,17(4) ,19(2) Immoral Traffic (Prevention) Act 1956</p>
</div>
<div id="ftn68">
<p><a href="#_ftnref68" name="_ftn68">[68]</a> .<a href="http://www.indiankanoon.org/doc/1309207/">http://www.indiankanoon.org/doc/1309207/</a></p>
</div>
<div id="ftn69">
<p><a href="#_ftnref69" name="_ftn69">[69]</a> . http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf</p>
</div>
<div id="ftn70">
<p><a href="#_ftnref70" name="_ftn70">[70]</a> . Article 33, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL</p>
<p>on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14<sup>th</sup> May, 2014]</p>
</div>
<div id="ftn71">
<p><a href="#_ftnref71" name="_ftn71">[71]</a> .Article 4 (Definition of “Data Subject’s Consent”), Article 7, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL</p>
<p>on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14<sup>th</sup> May, 2014].</p>
</div>
<div id="ftn72">
<p><a href="#_ftnref72" name="_ftn72">[72]</a> . Article 17, “Safeguarding Privacy in a Connected World – A European Data Protection Framework for the 21st</p>
<p>Century” COM(2012) 9 final. Based on, Article 12(b), EU Directive 95/46/EC – The Data Protection Directive at <http://www.dataprotection.ie/docs/EU-Directive-95-46-EC-Chapter-2/93.htm> [Accessed on 14<sup>th</sup> May, 2014]</p>
</div>
<div id="ftn73">
<p><a href="#_ftnref73" name="_ftn73">[73]</a> . Article 81, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL</p>
<p>on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14<sup>th</sup> May, 2014]</p>
</div>
<div id="ftn74">
<p><a href="#_ftnref74" name="_ftn74">[74]</a> .Article 83, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL</p>
<p>on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14<sup>th</sup> May, 2014]</p>
</div>
<div id="ftn75">
<p><a href="#_ftnref75" name="_ftn75">[75]</a> . Health Maintainence and Organization Act 1973, Notes and Brief Reports available at http://www.ssa.gov/policy/docs/ssb/v37n3/v37n3p35.pdf [Accessed on 14th May 2014].</p>
</div>
<div id="ftn76">
<p><a href="#_ftnref76" name="_ftn76">[76]</a> . Health Insurance Portability and Accountability Act, 1996 available at http://www.hhs.gov/ocr/privacy/hipaa/administrative/statute/hipaastatutepdf.pdf [Accessed on 14th May 2014]</p>
</div>
<div id="ftn77">
<p><a href="#_ftnref77" name="_ftn77">[77]</a> . Illinois Alliance for Health Innovation plan available at http://www2.illinois.gov/gov/healthcarereform/Documents/Alliance/Alliance%20011614.pdf [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn78">
<p><a href="#_ftnref78" name="_ftn78">[78]</a> . The Privacy Act 1988 available at http://www.comlaw.gov.au/Series/C2004A03712 [Accessed on 14th May 2014]</p>
</div>
<div id="ftn79">
<p><a href="#_ftnref79" name="_ftn79">[79]</a> . Schedule 1, Privacy Act 1988 [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn80">
<p><a href="#_ftnref80" name="_ftn80">[80]</a> .Section 27(e), Privacy Act 1988 [Accessed on 14<sup>th</sup> May 2014]</p>
</div>
<div id="ftn81">
<p><a href="#_ftnref81" name="_ftn81">[81]</a> . Guidance on Certificates of Confidentiality, Office of Human Research Protections, U.S Department of Health and Human Services available at http://www.hhs.gov/ohrp/policy/certconf.pdf [Accessed on 14<sup>th</sup> May, 2014].</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide'>https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide</a>
</p>
No publishertanviFeaturedHomepageInternet GovernancePrivacy2014-08-31T15:18:12ZBlog EntryPreliminary Submission on "Internet Governance Issues" to the Associated Chambers of Commerce & Industry of India
https://cis-india.org/internet-governance/blog/preliminary-submission-on-internet-governance-issues-to-assocham
<b>On January 30, 2015, Associated Chambers of Commerce & Industry of India (ASSOCHAM) held a consultation on Internet governance. A committee was set up to draft a report on Internet governance, with a focus on issues relevant to India. The Centre for Internet and Society (CIS) is represented on the committee, and has provided its preliminary comments to ASSOCHAM.</b>
<p style="text-align: justify; ">ASSOCHAM convened a meeting of its members and other stakeholders, at which CIS was represented. At this meeting, inputs were sought on Internet governance issues relevant for India, on which the industry body proposed to make comments to the Ministry of External Affairs, Government of India. Such a discussion, proposing to consolidate the views of ASSOCHAM members in consultation with other stakeholders, is a commendable move. This submission presents preliminary comments from the Centre for Internet and Society (CIS) in light of ASSOCHAM's consultation on Internet governance.</p>
<p style="text-align: justify; "><b>I. </b> <b><span>About CIS</span></b></p>
<p style="text-align: justify; "><b>1. </b> CIS is a non-profit research organization that works, <i>inter alia</i>, on issues relating to privacy, freedom of expression, intermediary liability and internet governance, access to knowledge, open data and open standards, intellectual property law, accessibility for persons with disabilities, and engages in academic research on the budding Indian disciplines of digital natives and digital humanities.</p>
<p style="text-align: justify; "><b>2. </b> CIS engages in international and domestic forums for Internet governance. We are a Sector-D member of the International Telecommunications Union (ITU),<a href="#_ftn1" name="_ftnref1">[1]</a> and participated in the World Conference on International Telecommunications (WCIT), 2012 (Dubai) <a href="#_ftn2" name="_ftnref2">[2]</a> and the Plenipotentiary Conference, 2014 (Busan).<a href="#_ftn3" name="_ftnref3">[3]</a> We have also participated in the WSIS+10 Multistakeholder Preparatory Platform (MPP)<a href="#_ftn4" name="_ftnref4">[4]</a> and the WSIS+10 High Level Event, organized by the ITU.<a href="#_ftn5" name="_ftnref5">[5]</a></p>
<p style="text-align: justify; "><b>3. </b> CIS is also a member of the Non-Commercial Users Constituency (NCUC) at ICANN. Pranesh Prakash, our Policy Director, held a position on the NCUC Executive Committee from December 2013 to November 2014.<a href="#_ftn6" name="_ftnref6">[6]</a></p>
<p style="text-align: justify; "><b>4. </b> CIS has been engaging at the Internet Governance Forum (IGF) since 2008, and has organized and participated in over 60 panels to date.<a href="#_ftn7" name="_ftnref7">[7]</a> We have also organized panels at the Asia-Pacific Regional IGF (APrIGF). <a href="#_ftn8" name="_ftnref8">[8]</a> Our Executive Director Sunil Abraham is a member of the Multistakeholder Advisory Group (MAG) for the India-IGF, and has attended in its meetings.<a href="#_ftn9" name="_ftnref9">[9]</a> We are also in the process of developing international principles for intermediary liability, in collaboration with international civil society organisations like EFF and Article19. <a href="#_ftn10" name="_ftnref10">[10]</a></p>
<p style="text-align: justify; "><b>II. </b> <b><span>Structure of Submission</span></b></p>
<p style="text-align: justify; "><b>5. </b> In this submission, we identify issues in Internet governance where engagement from and within India is necessary. In particular, brief descriptions of issues such as freedom of expression and privacy online, cyber-security, critical Internet resources and ICANN, multistakeholderism and net neutrality are provided.</p>
<p style="text-align: justify; "><b>III. </b> <b><span>Internet Governance Issues</span></b></p>
<p style="text-align: justify; "><b><span> </span></b></p>
<p style="text-align: justify; "><b>6. </b> The history of the Internet is unique, in that it is not exclusively government-regulated. Though governments regulate the Internet in many ways (for instance, by ordering website blocking or filtering, licensing of ISPs, encryption controls, investment caps, etc.), the running of the Internet is largely in the hands of private businesses, technical organisations and end-users.</p>
<p style="text-align: justify; "><b>7. </b> International processes like the World Summit on Information Society (WSIS), and forums such as ICANN, the ITU, the IGF and the UN are involved in governing in the Internet in many ways. Regional organisations like the OECD, APEC and the Shanghai Cooperation Organisation (SCO) are also involved (for instance, in cyber-security matters).</p>
<p style="text-align: justify; "><b>8. </b> The issues surrounding Internet governance are many, and range from telecom infrastructure and technical coordination to human rights and access to information.</p>
<p style="text-align: justify; "><b><i><span>Rights Online</span></i></b></p>
<p style="text-align: justify; "><b>9. </b> The status of 'human rights online' has come under discussion, with the <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">NETmundial Outcome Document</a> affirming that offline rights must also be protected online. These issues are important in the context of, among others, the large scale violations of privacy in light of the Snowden Revelations,<a href="#_ftn11" name="_ftnref11">[11]</a> and increased instances of website blocking and takedowns in different parts of the world.<a href="#_ftn12" name="_ftnref12">[12]</a></p>
<p style="text-align: justify; "><b>10. </b> Internationally, issues of freedom of speech, privacy and access or the digital divide (though it is debatable that the latter is a human right) are discussed at the UN Human Rights Council, such as the <a href="http://geneva.usmission.gov/2012/07/05/internet-resolution/">resolution on human rights and the Internet</a>, and the UN Human Rights Commissioner's <a href="http://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session27/Documents/A.HRC.27.37_en.pdf">report on the right to privacy in the digital age</a> , which discusses the need for checks and balances on digital mass surveillance. During the Universal Periodic Review of India in 2012, India noted a <a href="http://www.upr-info.org/database/index.php?limit=0&f_SUR=77&f_SMR=All&order=&orderDir=ASC&orderP=true&f_Issue=All&searchReco=&resultMax=100&response=&action_type=&session=&SuRRgrp=&SuROrg=&SMRRgrp=&SMROrg=&pledges=RecoOnly"> recommendation from Sweden </a> to " <i> ensure that measures limiting freedom of expression on the internet is based on clearly defined criteria in accordance with international human rights standard </i> ".</p>
<p style="text-align: justify; "><b>11. </b> Freedom of speech and privacy are also relevant for discussion at the ITU.<a href="#_ftn13" name="_ftnref13">[13]</a> For instance, at the Plenipotentiary meeting in 2014 (Busan), India proposed a resolution that sought, among other things, complete traceability of all Internet communications. <a href="#_ftn14" name="_ftnref14">[14]</a> This has implications for privacy that are not yet addressed by our domestic laws. A Privacy Bill and such other protections are only in the pipeline in India.<a href="#_ftn15" name="_ftnref15">[15]</a></p>
<p style="text-align: justify; "><b>12. </b> At ICANN as well, the <a href="http://en.wikipedia.org/wiki/DNS_root_zone">root zone management</a> function may affect freedom of expression. If, for instance, a top level domain (TLD) such as <b>.com </b>is erased from the root zone file, hundreds of thousands of websites and their content can be wiped from the World Wide Web. A TLD can be erased by Verisign if a request to that effect is raised or accepted by ICANN, and signed off on by the National Telecommunications and Information Administration (NTIA) of the US government. Similarly,<a href="http://whois.icann.org/en/about-whois">the WHOIS database</a>, which contains information about the holders of domain names and IP addresses, has <a href="http://en.wikipedia.org/wiki/Domain_privacy">implications for privacy and anonymity</a>.</p>
<p style="text-align: justify; "><b>13. </b> In India, the judiciary is currently adjudicating the constitutionality of several provisions of the Information Technology Act, 2000 (as amended in 2008), including S. 66A, S. 69A and S. 79. A series of writ petitions filed, among others, by the Internet Service Providers Association of India (ISPAI) and Mouthshut.com, relate to the constitutionality of the nature of content controls on the Internet, as well as intermediary liability. <a href="#_ftn16" name="_ftnref16">[16]</a></p>
<p style="text-align: justify; "><b>14. </b> A judgment on the constitutionality of Ss. 66A, 69A and 79 are crucial for end-users and citizens, as well as companies in the Internet ecosystem. For instance, an uncertain intermediary liability regime with penalties for intermediaries - S. 79, IT Act and Intermediaries Guidelines Rules, 2011 - disincentivises ISPs, online news websites and other content providers like Blogger, Youtube, etc. from allowing free speech to flourish online. <a href="#_ftn17" name="_ftnref17">[17]</a> The ongoing cases of <i>Kamlesh Vaswani </i>v. <i>UOI </i>and <i>Sabu George </i>v. <i>UOI</i> also have consequences for ISPs and search engines, as well as for fundamental rights.<a href="#_ftn18" name="_ftnref18">[18]</a> International and domestic engagement is desirable, including in consultations with the Law Commission of India (for instance, the <a href="http://www.lawcommissionofindia.nic.in/views/Consultation%20paper%20on%20media%20law.doc">consultation on media laws</a>).</p>
<p style="text-align: justify; "><b><i><span>Critical Internet Resources</span></i></b></p>
<p style="text-align: justify; "><b>15. </b> Critical Internet Resources form the backbone of the Internet, and include management of IP addresses, the domain name system (DNS) and the root zone. <a href="#_ftn19" name="_ftnref19">[19]</a> ICANN, a global non-profit entity incorporated in California, manages the IANA functions (Internet Assigned Numbers Authority) for the global Internet. These functions include allocating the global pool of IP addresses (IPv4 and IPv6) to Regional Internet Registries (RIRs), administering the domain name system and maintaining a protocol registry.</p>
<p style="text-align: justify; "><b>16. </b> At present, the IANA functions are performed under a <a href="http://www.ntia.doc.gov/page/iana-functions-purchase-order">contract with the NTIA</a>. On March 14, 2014, the <a href="http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions">NTIA announced</a> its intention to transition oversight of the IANA functions to an as-yet-undetermined "global multi-stakeholder body". The deadline for this transition is September 30, 2015, though the NTIA has <a href="http://www.ntia.doc.gov/speechtestimony/2015/remarks-assistant-secretary-strickling-state-net-conference-1272015">expressed its willingness</a> to renew the IANA contract and extend the deadline. ICANN was charged with convening the transition process, and set up the <a href="https://www.icann.org/stewardship/coordination-group">IANA Coordination Group</a> (ICG), a team of 30 individuals who will consolidate community input to create a transition proposal. At the moment, the<a href="https://www.icann.org/en/system/files/files/cwg-naming-transition-01dec14-en.pdf">names (CWG-Names)</a>,<a href="https://www.nro.net/wp-content/uploads/ICG-RFP-Number-Resource-Proposal.pdf">numbers (CRISP)</a> and <a href="http://datatracker.ietf.org/doc/draft-ietf-ianaplan-icg-response/">protocols (IETF)</a> communities are debating existing draft proposals. A number of new entities with which ICANN will have contractual arrangements have been proposed. At ICANN's meetings in Singapore (February 7-12, 2015) and Buenos Aires (June 2015), these proposals will be discussed.</p>
<p style="text-align: justify; "><b>17. </b> At the same time, a parallel track to examine ICANN's own transparency and accountability has been introduced. The <a href="https://community.icann.org/display/acctcrosscomm/CCWG+on+Enhancing+ICANN+Accountability">CCWG-Accountability</a> is considering ICANN's accountability in two Workstreams: first, in light of the IANA transition and second, a revision of ICANN's policies and by-laws to strengthen accountability. ICANN's accountability and transparency are crucial to its continued role in Internet governance.</p>
<p style="text-align: justify; "><b>18. </b> Several issues arise here: Should ICANN continue to remain in the US? Should the IANA Functions Department be moved into a separate entity from ICANN? Ought ICANN's by-laws be amended to create oversight over the Board of Directors, which is now seen to have consolidated power? Ought ICANN be more transparent in its financial and operational matters, proactively and reactively?</p>
<p style="text-align: justify; "><b>19. </b> It is, for instance, beneficial to the stability of the Internet and to India if the IANA department is separate from ICANN - this will ensure a<a href="https://cis-india.org/internet-governance/blog/cis-india.org/internet-governance/blog/icann-accountability-iana-transition-and-open-questions">separation of powers</a>. Second, <a href="http://cis-india.org/internet-governance/blog/cis-comments-enhancing-icann-accountability">stronger transparency and accountability mechanisms</a> are necessary for ICANN; it is a growing corporate entity performing a globally Internet function. As such, <a href="http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014">granular information</a> about ICANN's revenues and expenses should be made public. See, for ex.,<a href="https://www.icann.org/en/system/files/files/cis-request-18dec14-en.pdf">CIS' request</a> for ICANN's expenses for travel and meetings, and <a href="https://www.icann.org/en/system/files/files/cis-response-17jan15-en.pdf">ICANN's response</a> to the same.</p>
<p style="text-align: justify; "><b>20. </b> The most ideal forum to engage in this is ICANN, and within India, working groups on Internet governance at the Ministry level. As such, ASSOCHAM may seek open, transparent and inclusive consultations with the relevant departments of the Government (the Ministry of External Affairs, DeitY, Department of Telecommunications). At ICANN, industry bodies can find representation in the Business Constituency or the Commercial Stakeholders Group. Additionally, comments and proposals can be made to the ICG and the CCWG-Accountability by anyone.</p>
<p style="text-align: justify; "><b><i><span>Cyber-security </span></i></b></p>
<p style="text-align: justify; "><b>21. </b> Cyber-security is often used as an umbrella-term, covering issues ranging from network security (DNSSEC and the ICANN domain), cyber-crime, and cyber-incidents such as the <a href="http://timesofindia.indiatimes.com/tech/it-services/How-to-fight-cyber-war-Estonia-shows-the-way/articleshow/24274994.cms"> Distributed Denial of Service attacks </a> on Estonian public institutions and the <a href="http://spectrum.ieee.org/telecom/security/the-real-story-of-stuxnet">Stuxnet virus</a> that attacked Iran's nuclear programme. Within the ITU, spam and child safety online are also assessed as security issues (See <a href="http://www.itu.int/en/ITU-T/about/groups/Pages/sg17.aspx">Study Group 17 under ITU-T</a>).</p>
<p style="text-align: justify; "><b>22. </b> At the international level, the UN Group of Governmental Experts has <a href="http://www.un.org/disarmament/topics/informationsecurity/">published three reports</a> to date, arguing also that in cyber-security incidents, international humanitarian law will apply. International humanitarian law applies during armed attacks on states, when special rules apply to the treatment of civilians, civilian and military buildings, hospitals, wounded soldiers, etc.</p>
<p style="text-align: justify; "><b>23. </b> The ITU also launched a <a href="http://www.itu.int/en/action/cybersecurity/Pages/gca.aspx">Global Cybersecurity Agenda</a> in 2007, aiming at international cooperation. Such cooperative methods are also being employed at the OSCE, APEC and the SCO, which have developed drafts of <a href="http://www.osce.org/pc/109168?download=true">Confidence Building Measures</a>. The Global Conferences on Cyberspace (London 2011, Budapest 2012, Seoul 2013, The Hague 2015) resulted in, <i>inter alia</i>, the <a href="http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm">Budapest Convention on Cybercrime</a>. India has not ratified the Convention, and remains tight-lipped about its security concerns.</p>
<p style="text-align: justify; "><b>24. </b> Surveillance and monitoring of online communications is a crucial issue in this regard. In India, the surveillance power finds its source in S. 5, Telegraph Act, 1888, and the <a href="http://cis-india.org/internet-governance/resources/rule-419-a-indian-telegraph-rules-1951">Rule 419A of the Telegraph Rules, 1951</a>. Further, S. 69 of the Information Technology Act, 2000 and the <a href="http://cis-india.org/internet-governance/resources/it-procedure-and-safeguards-for-interception-monitoring-and-decryption-of-information-rules-2009"> Interception Rules, 2009 </a> enable the government and authorized officers to intercept and monitor Internet traffic on certain grounds. Information regarding the implementation of these Rules is scant.</p>
<p style="text-align: justify; "><b>25. </b> In any event, the applicability of targeted surveillance should be <a href="http://cis-india.org/internet-governance/blog/nytimes-july-10-2013-pranesh-prakash-how-surveillance-works-in-india">subject to judicial review</a> , and a balance should be struck between fundamental rights such as freedom of speech and privacy and the needs of security. An <a href="http://cis-india.org/internet-governance/blog/uk-interception-of-communications-commissioner-a-model-of-accountability">accountability model</a> such as that present in the UK for the Interception of Communications Commissioner may provide valuable insight.</p>
<p style="text-align: justify; "><b>26. </b> In India, the government does not make public information regarding its policies in cyber-security and cybercrime. This would be welcome, as well as consultations with relevant stakeholders.</p>
<p style="text-align: justify; "><b><i><span>Models of Internet Governance</span></i></b> <b> </b></p>
<p style="text-align: justify; "><b>27. </b> Multi-stakeholderism has emerged as one of the catchphrases in Internet governance. With the display of a multi-stakeholder model at NETmundial (April 2014), controversies and opinions regarding the meaning, substance and benefits of multi-stakeholderism have deepened.</p>
<p style="text-align: justify; "><b>28. </b> The debates surrounding stakeholder-roles in Internet governance began with ¶49 of the Geneva Declaration of Principles and ¶35 of the <a href="http://www.itu.int/wsis/docs2/tunis/off/6rev1.html">Tunis Agenda</a>, which delineated clear roles and responsibilities. It created a 'contributory' multi-stakeholder model, where states held sovereign authority over public policy issues, while business and civil society were contributed to 'important roles' at the 'technical and economic fields' and the 'community level', respectively.</p>
<p style="text-align: justify; "><b>29. </b> As the WGEC meeting (April 30-May 2, 2014) demonstrated, there is as yet no consensus on stakeholder-roles. Certain governments remain strongly opposed to equal roles of other stakeholders, emphasizing their lack of accountability and responsibility. Civil society is similarly splintered, with a majority opposing the Tunis Agenda delineation of stakeholder-roles, while others remain dubious of permitting the private sector an equal footing in public policy-making.</p>
<p style="text-align: justify; "><b>30. </b> The positions in India are similarly divided. While there is appears to be high-level acceptance of "multi-stakeholder models" across industry, academia and civil society, there exists no clarity as to what this means. In simple terms, does a multi-stakeholder model mean that the government should consult industry, civil society, academia and the technical community? Or should decision-making power be split among stakeholders? In fact, the debate is <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2354377">more specific</a>.</p>
<p style="text-align: justify; "><b>31. </b> In India, the Multistakeholder Advisory Group (MAG) for the India-IGF was established in February 2014, and some meetings were held. Unfortunately, neither the minutes of the meetings nor action points (if any) are publicly available.</p>
<p style="text-align: justify; "><b>32. </b> The Indian government's position is more complex. At the 68<sup>th</sup> UN General Assembly session in 2011, India argued for a (multilateral) 50-member UN <a href="http://cis-india.org/internet-governance/blog/india-statement-un-cirp">Committee on Internet-related Policies (CIRP)</a>. However, the Ministry for Communications and Information Technology (MCIT) has, over the years, presented differing views at the IGF and ITU through its two departments: DeitY and DoT. Further, at the meetings of the Working Group on Enhanced Cooperation (WGEC), India has presented <a href="http://unctad.org/Sections/un_cstd/docs/WGEC_IndiaMission.pdf">more nuanced views</a>, suggesting that certain issues remain within the governmental domain (such as cyber-security and child online protection). At the 9<sup>th</sup> IGF (Istanbul, September 2014), Mr. R.S. Sharma of the DeitY <a href="http://www.intgovforum.org/cms/174-igf-2014/transcripts/1977-2014-09-04-ms-evolution-of-the-ig-main-room">echoed such a view</a> of delineated roles for stakeholders.</p>
<p style="text-align: justify; "><b>33. </b> A clear message from the Indian government, on whether it favours multistakeholderism or governmental policy authority for specific issues, would be invaluable in shaping opinion and domestic processes. In any event, a transparent consultative procedure to take into account the views of all stakeholders is desirable.</p>
<p style="text-align: justify; "><b><i><span>Emerging Issues</span></i></b></p>
<p style="text-align: justify; "><i><span>Net Neutrality</span></i></p>
<p style="text-align: justify; "><b>34. </b> In simple terms, net neutrality concerns differential treatment of packets of data by carriers such as ISPs, etc. over networks. The issue has gained international attention following the U.S. FCC's regulatory stance, and the U.S. Court of Appeal's 2014 decision in <a href="http://www.cadc.uscourts.gov/internet/opinions.nsf/3AF8B4D938CDEEA685257C6000532062/$file/11-1355-1474943.pdf">Verizon v. FCC</a>. Though this decision turned on the interpretation of 'broadband providers' under the Communications Act, 1934, net neutrality has since been debated in the US, both <a href="http://techcrunch.com/2015/02/09/fcc-chairman-tom-wheeler-defends-his-net-neutrality-proposal/">by the FCC</a> and other stakeholders. There is no international consensus in sight; the NETmundial Outcome Document <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">recognized</a> net neutrality as an emerging issue (page 11, no. IV).</p>
<p style="text-align: justify; "><b>35. </b> In India, a TRAI consultation on Over-The-Top Services on August 5, 2014 brought concerns of telecom and cellular operators to light. OTTs were seen as hijacking a portion of telcos' revenues, and as lacking consumer protection and privacy safeguards. While these concerns are legitimate, net neutrality regulation is not yet the norm in India. In any event, any such regulation must <a href="http://cis-india.org/telecom/blog/otts-eating-into-our-revenue-telcos-in-india">take into account</a> the consequences of regulation on innovation, competition, and consumer choice, as well as on the freedom of the medium (which may have detrimental impacts freedom of expression).</p>
<p style="text-align: justify; "><b>36. </b> Though net neutrality regulation is being mooted, there is as yet an<a href="http://cis-india.org/internet-governance/blog/collection-of-net-neutrality-definitions">array of definitions</a> of 'net neutrality'. The <a href="http://www.medianama.com/2014/11/223-net-neutrality-telcos-india/">views of telcos themselves differ</a> in India. Further study on the methods of identifying and/or circumventing net neutrality is necessary before a policy position can be taken.</p>
<p style="text-align: justify; "><b>IV. </b> <b><span>Conclusions</span></b></p>
<p style="text-align: justify; "><b>37. </b> CIS welcomes ASSOCHAM's initiative to study and develop industry-wide positions on Internet governance. This note provides brief descriptions of several issues in Internet governance where policy windows are open internationally and domestically. These issues include freedom of expression and privacy under Part III (Fundamental Rights) of the Constitution of India. The Supreme Court's hearing of a set of cases alleging unconstitutionality of Ss. 66A, 69, 69A and 79 (among others) of the IT Act, 2000, as well as consultations on issues such as pornography by the Rajya Sabha Parliamentary Committee and media laws by the Law Commission of India are important in this regard.</p>
<p style="text-align: justify; "><b>38. </b> International and domestic engagement is necessary in the transition of stewardship of the IANA functions, as well as ICANN's own accountability and transparency measures. Similarly, in the area of cyber-security, though several initiatives are afoot internationally, India's engagement has been cursory until now. A concrete position from India's stakeholders, including the government, on these and the question of multi-stakeholderism in Internet governance would be of immense assistance.</p>
<p style="text-align: justify; "><b>39. </b> Finally, net neutrality is an emerging issue of importance to industry's revenues and business models, and to users' rights such as access to information and freedom of expression.</p>
<div style="text-align: justify; ">
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a href="#_ftnref1" name="_ftn1">[1]</a> CIS gets ITU-D Sector Membership, <a href="http://goo.gl/PBGKWt">goo.gl/PBGKWt</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn2">
<p><a href="#_ftnref2" name="_ftn2">[2]</a> Letter for Civil Society Involvement in WCIT, <a href="http://goo.gl/gXpYQD">goo.gl/gXpYQD</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn3">
<p><a href="#_ftnref3" name="_ftn3">[3]</a> See, ex., Hariharan, <i>What India's ITU Proposal May Mean for Internet Governance</i>, <a href="http://goo.gl/hpWaZn">goo.gl/hpWaZn</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn4">
<p><a href="#_ftnref4" name="_ftn4">[4]</a> Panday, <i>WSIS +10 High Level Event: Open Consultation Process MPP: Phase Six: Fifth Physical Meeting</i>, <a href="http://goo.gl/3XR24X">goo.gl/3XR24X</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn5">
<p><a href="#_ftnref5" name="_ftn5">[5]</a> Hariharan, <i>WSIS+10 High Level Event: A Bird's Eye Report</i>, <a href="http://goo.gl/8XkwyJ">goo.gl/8XkwyJ</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn6">
<p><a href="#_ftnref6" name="_ftn6">[6]</a> Pranesh Prakash elected as Asia-Pacific Representative to the Executive Committee of NonCommercial Users Constituency, <a href="http://goo.gl/iJM7C0">goo.gl/iJM7C0</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn7">
<p><a href="#_ftnref7" name="_ftn7">[7]</a> See, ex., <i>CIS@IGF 2014</i>, <a href="http://goo.gl/Werdiz">goo.gl/Werdiz</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn8">
<p><a href="#_ftnref8" name="_ftn8">[8]</a> <i>Multi-stakeholder Internet Governance: The Way Ahead</i> , <a href="http://goo.gl/NuktNi">goo.gl/NuktNi</a>; <i>Minimising legal risks of online Intermediaries while protecting user rights,</i> <a href="http://goo.gl/mjQyww">goo.gl/mjQyww</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn9">
<p><a href="#_ftnref9" name="_ftn9">[9]</a> First Meeting of the Multistakeholder Advisory Group for India Internet Governance Forum, <a href="http://goo.gl/NCmKRp">goo.gl/NCmKRp</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn10">
<p><a href="#_ftnref10" name="_ftn10">[10]</a> See Zero Draft of Content Removal Best Practices White Paper, <a href="http://goo.gl/RnAel8">goo.gl/RnAel8</a> (l.a. 8 Feb. 2015).</p>
</div>
<div id="ftn11">
<p><a href="#_ftnref11" name="_ftn11">[11]</a> See, ex., <i>UK-US surveillance regime was unlawful 'for seven years'</i>, <a href="http://goo.gl/vG8W7i">goo.gl/vG8W7i</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn12">
<p><a href="#_ftnref12" name="_ftn12">[12]</a> See, ex., <i>Twitter: Turkey tops countries demanding content removal</i>, <a href="http://goo.gl/ALyO3B">goo.gl/ALyO3B</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn13">
<p><a href="#_ftnref13" name="_ftn13">[13]</a> See, ex., <i>The ITU convenes a programme on Child Online Protection</i>, <a href="http://goo.gl/qJ4Es7">goo.gl/qJ4Es7</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn14">
<p><a href="#_ftnref14" name="_ftn14">[14]</a> Hariharan, <i>Why India's Proposal at the ITU is Troubling for Internet Freedoms</i>, <a href="http://goo.gl/Sxh5K8">goo.gl/Sxh5K8</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn15">
<p><a href="#_ftnref15" name="_ftn15">[15]</a> Hickok, <i>Report of the Group of Experts on Privacy vs. The Leaked 2014 Privacy Bill</i>, <a href="http://goo.gl/454qA6">goo.gl/454qA6</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn16">
<p><a href="#_ftnref16" name="_ftn16">[16]</a> See, <i>Supreme Court Of India To Hear Eight IT Act Related Cases On 11th April 2014 - SFLC</i>, <a href="http://goo.gl/XLWsSq">goo.gl/XLWsSq</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn17">
<p><a href="#_ftnref17" name="_ftn17">[17]</a> See, Dara, <i>Intermediary Liability in India: Chilling Effects on Free Expression on the Internet</i>, <a href="http://goo.gl/bwBT0x">goo.gl/bwBT0x</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn18">
<p><a href="#_ftnref18" name="_ftn18">[18]</a> See, ex., Arun, <i>Blocking online porn: who should make Constitutional decisions about freedom of speech?</i>,<a href="http://goo.gl/NPdZcK">goo.gl/NPdZcK</a>; Hariharan & Subramanian, <i>Search Engine and Prenatal Sex Determination: Walking the Tight Rope of the Law</i>, <a href="http://goo.gl/xMj4Zw">goo.gl/xMj4Zw</a> (l.a. 9 Feb. 2015).</p>
</div>
<div id="ftn19">
<p><a href="#_ftnref19" name="_ftn19">[19]</a> CSTD, <i>The mapping of international Internet public policy issues</i>, <a href="http://goo.gl/zUWdI1">goo.gl/zUWdI1</a> (l.a. 9 Feb. 2015).</p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/preliminary-submission-on-internet-governance-issues-to-assocham'>https://cis-india.org/internet-governance/blog/preliminary-submission-on-internet-governance-issues-to-assocham</a>
</p>
No publishergeethaFeaturedInternet Governance2015-02-12T14:52:04ZBlog EntryPre-Budget Consultation 2016 - Submission to the IT Group of the Ministry of Finance
https://cis-india.org/openness/pre-budget-consultation-2016-submission-to-the-ministry-of-finance
<b>The Ministry of Finance has recently held pre-budget consultations with different stakeholder groups in connection with the Union Budget 2016-17. We were invited to take part in the consultation for the IT (hardware and software) group organised on January 07, 2016, and submit a suggestion note. We are sharing the note below. It was prepared and presented by Sumandro Chattapadhyay, with contributions from Rohini Lakshané, Anubha Sinha, and other members of CIS.</b>
<p> </p>
<p>It is our distinct honour to be invited to submit this note for consideration by the IT Group of the Ministry of Finance, Government of India, as part of the pre-budget consultation for 2016-17.</p>
<p>The Centre for Internet and Society is (CIS) is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. We receive financial support from Kusuma Trust, Wikimedia Foundation, MacArthur Foundation, IDRC, and other donors.</p>
<p>We have divided our suggestions into the different topics that our organisation has been researching in the recent years.</p>
<p> </p>
<h3>Free/Libre and Open Source Software (FLOSS) is the Basis for Digital India</h3>
<p> </p>
<p>We congratulate the policies introduced by the government to promote use of free/libre and open source software and that of open APIs for all e-governance projects and systems. This is not only crucial for the government to avoid vendor lock-in when it comes to critical software systems for governance, but also to ensure that the source code of such systems is available for public scrutiny and do not contain any security flaws.</p>
<p>We request the government to empower the implementation of these policies by making open sharing of source code a necessity for all software vendors hired by government agencies a necessary condition for awarding of tenders. The 2016-17 budget should include special support to make all government agencies aware and capable of implementing these policies, as well as to build and operate agency-level software repositories (with version controlling system) to host the source codes. These repositories may function to manage the development and maintenance of software used in e-governance projects, as well as to seek comments from the public regarding the quality of the software.</p>
<p>Use of FLOSS is not only important from the security or the cost-saving perspectives, it is also crucial to develop a robust industry of software development firms that specialise in FLOSS-based solutions, as opposed to being restricted to doing local implementation of global software vendors. A holistic support for FLOSS, especially with the government functioning as the dominant client, will immensely help creation of domestic jobs in the software industry, as well as encouraging Indian programmers to contribute to development of FLOSS projects.</p>
<p>An effective compliance monitoring and enforcement system needs to be created to ensure that all government agencies are Strong enforcement of the 2011 policy to use open source software in governance, including an enforcement task force that checks whether government departments have complied with this or not.</p>
<p> </p>
<h3>Open Data is a Key Instrument for Transparent Decision Making</h3>
<p> </p>
<p>With a wider set of governance activities being carried out using information systems, the government is increasingly acquiring a substantial amount of data about governance processes and status of projects that needs to be effectively fed back into the decision making process for the same projects. Opening up such data not only allows for public transparency, but also for easier sharing of data across government agencies, which reduces process delays and possibilities of duplication of data collection efforts.</p>
<p>We request the 2016-17 budget to foreground the National Data Sharing and Accessibility Policy and the Open Government Data Platform of India as two key enablers of the Digital India agenda, and accordingly budget for modernisation and reconfiguration of data collection and management processes across government agencies, so that those processes are made automatic and open-by-default. Automatic data management processes minimise the possibility of data loss by directly archiving the collected data, which is increasingly becoming digital in nature. Open-by-default processes of data management means that all data collected by an agency, once pre-recognised as shareable data (that is non-sensitive and anonymised), will be proactively disclosed as a rule.</p>
<p>Implementation of the National Data Sharing and Accessibility Policy has been hindered, so far, by the lack of preparation of a public inventory of data assets, along with the information of their collection cycles, modes of collection and storage, etc., by each union government agency. Specific budgetary allocation to develop these inventories will be crucial not only for the implementation of the Policy, but also for the government to get an extensive sense of data collected and maintained currently by various government agencies. Decisions to proactively publish, or otherwise, such data can then be taken based on established rules.</p>
<p>Availability of such open data, as mentioned above, creates a wider possibility for the public to know, learn, and understand the activities of the government, and is a cornerstone of transparent governance in the digital era. But making this a reality requires a systemic implementation of open government data practices, and various agencies would require targeted budget to undertake the required capacity development and work process re-engineering. Expenditure of such kind should not be seen as producing government data as a product, but as producing data as an infrastructure, which will be of continuous value for the years to come.</p>
<p>As being discussed globally, open government data has the potential to kickstart a vast market of data derivatives, analytics companies, and data-driven innovation. Encouraging civic innovations, empowered by open government data - from climate data to transport data - can also be one of the unique initiatives of budget 2016-17.</p>
<p>For maximising impact of opened up government data, we request the government to publish data that either has a high demand already (such as, geospatial data, and transport data), or is related to high-net-worth activities of the government (such as, data related to monitoring of major programmes, and budget and expenditure data for union and state governments).</p>
<p> </p>
<h3>Promotion of Start-ups and MSMEs in Electronics and IT Hardware Manufacturing</h3>
<p> </p>
<p>In line with the Make in India and Digital India initiatives, to enable India to be one of the global hubs of design, manufacturing, and exporting of electronics and IT hardware, we request that the budget 2016-17 focus on increasing flow of fund to start-ups and Medium and Small-Scale Manufacturing Enterprises (MSMEs) in the form of research and development grants (ideally connected to government, especially defense-related, spending on IT hardware innovation), seed capital, and venture capital.</p>
<p>Generation of awareness and industry-specific strategies to develop intellectual property regimes and practices favourable for manufacturers of electronics and IT hardware in India is an absolutely crucial part of promotion of the same, especially in the current global scenario. Start-ups and MSMEs must be made thoroughly aware of intellectual property concerns and possibilities, including limitations and exceptions, flexibilities, and alternative models such as open innovation.</p>
<p>We request the budget 2016-17 to give special emphasis to facilitation of technology licensing and transfer, through voluntary mechanisms as well as government intervention, such as compulsory licensing and government enforced patent pools.</p>
<p> </p>
<h3>Applied Mathematics Research is Fundamental for Cybersecurity</h3>
<p> </p>
<p>Recent global reports have revealed that some national governments have been actively involved in sponsoring distortion in applied mathematics research so as to introduce weaknesses in encryption standards used in for online communication. Instead of trying to regulate key-length or mandating pre-registration of devices using encryption, as suggested by the withdrawn National Encryption Policy draft, would not be able to address this core emerging problem of weak cybersecurity standards.</p>
<p>For effective and sustainable cybersecurity strategy, we must develop significant expertise in applied mathematical research, which is the very basis of cybersecurity standards development. We request the budget 2016-17 to give this topic the much-needed focus, especially in the context of the Digital India initiative and the upcoming National Encryption Policy.</p>
<p>Along with developing domestic research capacity, a more immediately important step for the government is to ensure high quality Indian participation in global standard setting organisations, and hence to contribute to global standards making processes. We humbly suggest that categorical support for such participation and contribution is provided through the budget 2016-17, perhaps by partially channeling the revenues obtained from spectrum auctions.</p>
<p> </p>
<p>
For more details visit <a href='https://cis-india.org/openness/pre-budget-consultation-2016-submission-to-the-ministry-of-finance'>https://cis-india.org/openness/pre-budget-consultation-2016-submission-to-the-ministry-of-finance</a>
</p>
No publishersumandroOpen StandardsOpen SourceCybersecurityOpen DataIntellectual Property RightsOpen Government DataFeaturedPatentsOpennessOpen InnovationEncryption Policy2016-01-12T13:34:41ZBlog EntryPolitical is as Political does
https://cis-india.org/digital-natives/blog/political
<b>The Talking Back workshop has been an extraordinary experience for me. The questions that I posed for others attending the workshop have hounded me as they went through the course of discussion, analysis and dissection. Strange nuances have emerged, certain presumptions have been questioned, new legacies have been discovered, novel ideas are still playing ping-pong in my mind, and a strange restless excitement – the kind that keeps me awake till dawning morn – has taken over me, as I try and figure out the wherefore and howfore of things. I began the research project on Digital Natives in a condition of not knowing, almost two years ago. Since then, I have taken many detours, rambled on strange paths, discovered unknown territories and reached a mile-stone where I still don’t know, but don’t know what I don’t know, and that is a good beginning.</b>
<p> <strong>The researcher in his heaven, all well with the world</strong></p>
<p> This first workshop is not merely a training lab. For me, it was the
extension of the research inquiry, and collaboratively producing some
frames of reference, some conditions of knowing, and some ways of
thinking about this strange, ambiguous and ambivalent category of
Digital Natives. The people who have assembled at this workshop have
identified themselves as Digital Natives as a response to the open call.
They all have practices which are startlingly unique and simultaneously
surprisingly similar. Despite the great dissonance in their
geo-political contexts and socio-cultural orientations, they seem to be
bound together by things beyond the technological.</p>
<p> Each one chose a definition for him/herself that straddles so many
different ideas of how technologies interact with us; there are writers
who offer a subjective position and affective relation to technologies
and the world around them; there are artists who seek to change the
world, one barcode at a time; there are optimist warriors who have waged
battles against injustice and discrimination in the worlds they occupy;
there are explorers who have made meaning out of socio-cultural
terrains that they live in; there are leaders who have mobilized
communities; there are adventurers who have taken on responsibilities
way beyond their young years; there are researchers who have sought
higher grounds and epistemes in the quest of knowledge. The varied
practice is further informed by their own positions as well as their
relationship with the different realities they engage with.</p>
<p> How, then, does one make sense of this babble of diversity? How does
one even begin to articulate a collective identity for people who are
so unique that sometimes they are the only ones in their contexts to
initiate these interventions? Where do I find a legacy or a context that
makes sense of these diversities without conflating or coercing their
uniqueness? This is not an easy task for a researcher, and I have
struggled over the two days to figure out a way in which I can start
develop a knowledge framework through which I can not only bring
coherence to this group but also do it without imposing my questions,
suggestions or agendas on you. And it is only now, at a quarter to dawn,
as I think and interact more with the different digital natives that
things get shapes for me – shapes that are not yet clear, probably
obscured by the blurriness of sleep and the rushed time that we have
been living in the last few days – and I now attempt to trace the
contours if not the details of these shapes.</p>
<p> <strong>Questioning the Question</strong></p>
<p> The first insight for me came from the fact that the Digital Natives
in the workshop talked back – not only to the structures that their
practice engages with, but also the questions that I posed to them.
“What does it mean to be Political?” I has asked on the first day,
knowing well that this wasn’t going to be an easy dialogue. Even after
years of thinking about the Political as necessarily the Personal (and
vice versa), it still is sometimes difficult to actually articulate the
process or the imagination of the Political. It is no wonder that so
many people take the easy recourse of talking about governments,
judiciaries, democracies and the related paraphernalia to talk about
Politics.</p>
<p> I knew, even before I posed the question, that this was going to
lead to confusion, to conditions of being lost, to processes of
destabilising comfort zones. However, what I was not ready for was a
schizophrenic moment of epiphany where I tried to ask myself what I
understood as the Political. And as I tried to explain it to myself, to
explain it to others, to push my own knowledge of it, to understand
others’ ideas and imaginations, I came up with a formulation which goes
beyond my own earlier knowledges. There are five different articulations
of the legacies and processes of the Political that I take with me from
the discussions (some were suggested by other people, some are my
flights of fancy based on our conversations), and it is time to reflect
on them:</p>
<p> <em><strong>Political as dialogue</strong></em></p>
<p> This was perhaps, the easiest to digest because it sounds like a
familiar formulation. To be political is to be in a condition of
dialogue. Which means that Talking Back was suddenly not about Talking
Against or Being Talked To. It was about Talking With. It was a
conversation. Sometimes with strangers. Sometimes with people made
familiar with time. Sometimes with people who we know but have not
realised we know. Sometimes with the self. The power of names, the
strength of being in a conversation – to talk and also to listen is a
condition of the Political. In dialogue (as opposed to a babble) is the
genesis of being political. Because when we enter a dialogue, we are no
longer just us. We are able to detach ourselves from US and offer a
point of engagement to the person who was, till now, only outside of us.</p>
<p> <em><strong>Political as concern</strong></em></p>
<p> This particular idea of the political as being concerned was a
surprise to me. I have, through discourses and practice within gender
and sexuality fields, understood affective relationships as sustaining
political concerns and subjectivities. However, I had overlooked the
fact that the very act of being concerned, what a young digital native
called ‘being burned’ about something that we notice in our immediate
(or extended) environments is already a political subjectivity
formation. To be concerned, to develop an empathetic link to the
problems that we identify, is a political act. It doesn’t always have to
take on the mantle of public action or intervention. Sometimes, just to
care enough, is enough.</p>
<p> <em><strong>Political as change</strong></em></p>
<p> This is a debate that needs more conversations for me. Politics,
Knowledge, Change, Transformation – these are the four keywords (further
complicated by self-society binaries) that have strange permutations
and combination. To Know is to be political because it produces a
subjectivity that has now found a new way of thinking about itself and
how it relates to the external reality. This act of Knowing, thus
produces a change in our self. However, this change is not always a
change that leads to transformation. Knowledge for knowledge’s sake can
often be indulgent. Even when the knowledge produces a significant and
dramatic change, often this change is restricted to the self.</p>
<p> When does this knowing self, which is in a condition of change,
become a catalyst for transformation? When does this knowing-changing
translate into a transformation for the world outside of us? Just to be
in a condition of knowing does not grant the agency required for the
social transformation that we are trying to understand. Where does this
agency come from? How do we understand the genesis and dissemination of
this agency? And what are the processes of change that embody and foster
the Political?</p>
<p> <em><strong>Political as Freedom</strong></em></p>
<p> On the first thought, the imagination of Political as Freedom seemed
to obvious; commonsense and perhaps commonplace. However, I decided put
the two in an epistemological dialogue and realised that there are many
prismatic relationships I had not talked about before I was privy to
these conversations. Here is a non-exhaustive list: Political Freedom,
Politics of Freedom, Free to be Political, Political as Freedom, Freedom
as Political... is it possible to be political without the quest of
freedom? Is the freedom we achieve, at the expense of somebody else’s
Political stance? How does the business of being Political come to be?
Not Why? But How? If Digital Natives are changing the state of being
political what are they replacing? What are they inventing? Where, in
all these possibilities lies Freedom?</p>
<p> <a href="http://northeastwestsouth.net/brief-treatise-despair-meaning-or-pointlessness-everything#comment-2131"><em><strong>Political as Reticence</strong></em></a></p>
<p> We all talked about voice – whose, where, for whom, etc. It was a
given that to give voice, to have voice, to speak, to talk, to talk back
were conditions of political dialogue and subversion, of intervention
and exchange. So many of us – participants or facilitators – talked
about how to speak, what technologies of speech, how to build conditions
of interaction... and then, like the noise in an otherwise seamless
fabric of empowerment came the idea of reticence. Is it possible to be
silent and still be political? If I do not speak, is it always only
because I cannot? What about my agency to choose not to speak? As
technologies – of governance, of self, and of the social constantly
force us to produce data and information, through ledgers and censuses
and identification cards – make speech a normative way of engagement,
isn’t the right of Refusal to Speak, political?</p>
<p> Sometimes, it is necessary to exercise silence as a tool or a weapon
of political resistance. The non-speaking subject holds back and
refuses to succumb to pressures and expectations of a dominant
erstwhile, and in his/her silence, produces such a cacophony of meaning
that it asks questions that the loudest voices would not have managed to
ask.</p>
<p> <strong>The Beginning of a Start; Perhaps also the other way round</strong></p>
<p> These are my first reflections on the conversations we have had over
the two days. I feel excited, inspired, moved and exhilarated as I
carry myself on these flights of ideation, thought and
conceptualisation. It is important for me that these are questions that I
did not think of in a vacuum but in conversation and dialogue with this
varied pool of people who have spent so much of their time and effort
to not only make their work intelligible but also to reflect on the
processes by which we paint ourselves political. I have learned to
sharpen questions of the political that I came with and I have learned
to ask new questions of Digital Natives practice. I don’t have a
definition that explains the work that these Digital Natives do. But I
now have a framework of what is their understanding of the political and
what are the various points of engagement and investment.</p>
<p>
For more details visit <a href='https://cis-india.org/digital-natives/blog/political'>https://cis-india.org/digital-natives/blog/political</a>
</p>
No publishernishantDigital ActivismDigital NativesPoliticalYouthFeaturedCyberculturesDigital subjectivitiesWorkshop2011-08-04T10:30:51ZBlog EntryPlatforms, Power, and Politics: Perspectives from Domestic and Care Work in India
https://cis-india.org/raw/platforms-power-and-politics-perspectives-from-domestic-and-care-work-in-india
<b>CIS has been undertaking a two-year project studying the entry of digital platforms in the domestic and care work in India, supported by the Association for Progressive Communications as part of the Feminist Internet Research Network. Implemented through 2019-21, the objective of the project is to use a feminist lens to critique platform modalities and orient platformisation dynamics in radically different, worker-first ways. Ambika Tandon and Aayush Rathi led the research team at CIS. The Domestic Workers’ Rights Union is a partner in the implementation of the project, as co-researchers. Geeta Menon, head of DWRU, was an advisor on the project, and the research team consisted of Parijatha G.P., Radha Keerthana, Zeenathunnisa, and Sumathi, who are office holders in the union and are responsible for organising workers and addressing their concerns.
</b>
<p><span>The Executive Summary for the project report is below.</span></p>
<p>The full report, ‘Platforms, power, and politics: Perspectives from domestic and care work in India’, can be found <a href="https://cis-india.org/raw/platforms-power-and-politics-pdf" class="external-link">here</a>.</p>
<p>The press release can be found <a href="https://cis-india.org/raw/platforms-power-and-politics-press-release-pdf" class="external-link">here</a>.</p>
<hr />
<h3></h3>
<h3><span>Introduction</span></h3>
<div></div>
<p style="text-align: justify; ">Paid domestic and care work is witnessing the entry of digital intermediaries over the past decade. More recently, there has been tremendous growth of digital platforms. This holds the potential to impact millions of workers in the sector, which is characterised by a long history of informality and exclusion from rights-according legal frameworks. Digital intermediation of domestic and care work has been a space of high-growth, but also high-attrition. In India, order books of digital platforms providing domestic and care work services were reported to have been growing by upto 60 percent month-on-month in 2016. This is expected to shift the organisation of workers and employment relations profoundly. <br /><br />Broadly, the discourse on digital platforms providing home-based services can be summarised as follows: proponents argue that digitisation will act as a step towards bringing formalisation to the sector, while critics argue that platforms could replicate the exploitation of workers by further disguising the employer-employee relationship. Similar debates around lack of protections and precarity have also taken place in other occupations in gig work such as transportation and food delivery. In fact, the similarity in precarity and the informal nature of this relationship across gig work and domestic work has led to domestic workers being labelled the original gig workers. Domestic work is a particularly vulnerable and unprotected sector, which makes work in the sector qualitatively different from most other sectors in the gig or sharing economy.<br /><br />Through a feminist approach to digital labour, our project aimed to examine the dynamics of platformisation in, and of domestic or reproductive care work. Our hypothesis was that platforms are reconfiguring labour conditions, which could empower and/or exploit workers in ways qualitatively different from non-standard work off the platform. In order to interrogate this further, we studied several aspects of the work relationship, including wages, conditions of work, social security, skill levels, and worker surveillance off platforms.</p>
<h3>Methodology</h3>
<p style="text-align: justify; ">We borrowed from ethnographic methods and feminist principles to co-design and implement the research tools with grassroots workers and organisers. Between June to November 2019, we conducted 65 in-depth semi-structured interviews primarily in New Delhi and Bengaluru. A majority of these were with domestic workers who were seeking or had found work through platforms. We also did interviews with workers who had found work through traditional placement agencies to compare our findings, and with representatives from platforms, government labour departments, and workers collectives. Of the workers we interviewed, a majority were women, but men were included as well. Interviews in New Delhi were undertaken by CIS, while interviews with workers in Bengaluru were undertaken by grassroots activists in Bengaluru, affiliated with the Domestic Workers Rights Union (DWRU).</p>
<div></div>
<p style="text-align: justify; ">In implementing the data collection approach, we employed feminist methodological principles of intersectionality, self-reflexivity, and participation. The methodology draws on standpoint theory, which encourages knowledge production that centres the lived experiences of marginalised groups. We were acutely aware of our own positionality as high income, Savarna researchers studying a sector dominated by Dalit, Bahujan and Adivasi women from low income groups. This power differential was softened partially by involving DWRU through the course of the project. Workers across both field sites were also interviewed in spaces familiar to them, most often their homes, in languages that they were comfortable with including Hindi, Kannada, and Tamil.</p>
<div></div>
<p style="text-align: justify; ">Feminist principles also instrumental during the data analysis, with focus on intersectionality and self-reflexivity. We highlighted the ways in which inequalities of gender, income, migration status, caste, and religion are replicated and amplified in the platform economy. In particular, we discussed the impact of the digital gender gap in access and skills on workers’ ability to find economic opportunities.</p>
<h3></h3>
<h3>Findings</h3>
<p style="text-align: justify; ">Our typology of platforms mediating domestic work finds three types of platforms – (i) marketplace, or platforms that list workers’ data on their profile, provide certain filters for automated selection of a pool of workers, and charge a fee from customers for access to workers’ contact details, (ii) digital placement agency, or platforms that provide an end-to-end placement service to customers, identify appropriate workers on the basis of selection criteria, and negotiate conditions of work on behalf of workers, and (iii) on-demand platforms, or companies that provide services or ‘gigs’ such as cleaning on an hourly basis, performed by a roster of workers who are characterised as ‘independent contractors’.</p>
<div></div>
<p style="text-align: justify; ">When it comes to the role played by platforms in determining employment relations, there is a wide variation within and across platform categories. There are both weak and strong models of intervention. On one end of the spectrum are marketplaces, with minimal intervention in the recruitment process, and on the other on-demand platforms, that exact control over each aspect of work. Digital platforms reconfigure the conception of intermediaries in the domestic work sector, functioning as next-generation placement agencies. All three platform types contain aspects that provide workers agency, as well as those that reinforce their positions of low-power. Platform design impacts the role platforms play in setting conditions of work, but does not determine it entirely.</p>
<div></div>
<p style="text-align: justify; "><strong>(Re)shaping the terms of work</strong><br />Across the three types of platforms, wages are slightly higher than or matching those of workers off platforms. Some marketplace platforms have incorporated features to nudge customers towards setting higher wages, such as enforcing minimum wage standards, or informing customers of expected wages in their locality. Conversely, on-demand platforms charge a high rate of commission from workers, despite refusing to recognise them as employees. This indicates that this is a misclassification of an employment relationship, given that workers are unable to set their own conditions or wages for work. Despite the high rates of commission and appropriation of labour by platforms, on-demand workers earn higher wages than workers on other platforms. The relatively high wage is a result of marketing on-demand cleaning as professionalised and more skilled than day-to-day cleaning. Tasks in the sector continue to be distributed along the lines of gender and caste, as has historically been the case. Dalit, Bahujan and Adivasi women are more likely to take up work such as cleaning and washing dishes, while men and women across castes are equally distributed in cooking work. Women dominate tasks such as elderly and childcare, as in the traditional economy. Workers in professionalised tasks such as deep cleaning that requires technical equipment and chemicals are almost entirely men.</p>
<div></div>
<p style="text-align: justify; "><strong>Digital divides and workers’ agency</strong><br />We find that workers are primarily onboarded onto platforms by learning about it from other workers, through onboarding camps held by platforms, or offline advertising by platforms. Such in-person onboarding techniques allows workers with no digital access or literacy to register themselves on marketplace platforms and digital placement agencies.</p>
<div></div>
<p style="text-align: justify; ">However, we find that low levels of education and digital literacy continue to impact platformed labour by creating a strong informational asymmetry between workers and platforms. For instance, we find that women workers from low income communities have very little information about how platforms work, causing deep distrust. Workers with digital devices and literacy (and therefore a relatively better understanding of the functionality of the platform), physical mobility and the resources to bear indirect costs that were outsourced to them were at a significant advantage in finding better-paying jobs. Workers who were seeking flexibility and were not necessarily dependent on the platform for their primary income were also better placed than those entirely dependent on platforms. Women workers tended to be disadvantaged on all these counts, limiting their agency and capacity to reap the benefits of the platform economy.</p>
<div></div>
<p style="text-align: justify; ">Across the three types of platforms, systems of placement and ratings add to the information asymmetry, as workers are not aware of the impact of ratings on their ability to find work or charge better wages. Ratings and filtering systems also hard-code the impact of workers’ social characteristics on their work. Workers are unable to exercise control over their data, further undermining their agency vis-a-vis platforms and employers. We identify a clear need for collective bargaining structures to protect workers’ rights, although platformed domestic workers remained distant from both domestic work unions and emergent unions of platform workers in other sectors.</p>
<div></div>
<p style="text-align: justify; "><strong>Intersectionalities of formalisation</strong><br />We find that inequalities of caste, class, and gender that have historically shaped the sector continue to be replicated or even amplified in the platform economy. What remains clear is that platforms in the domestic work sector adopt the logics of this sector, more than the converse. Platformisation is conflated with formalisation, and it is within this vector, from complete informality to piecemeal formalisation, that platforms operate. Labour benefits do not take the form of labour protections or welfare entitlements that are the central function of formalisation processes. Instead, the so-called benefits are intended to transform domestic workers to participate within the logics and vagaries of the market.</p>
<h3>Policy Recommendations</h3>
<p style="text-align: justify; "><strong>Recognise and implement labour protections for domestic workers </strong><br />Domestic workers have historically occupied the most vulnerable positions in the workforce, with limited legal protections. Exposed to the regulatory grey areas that platforms operate in, this doubly exposes domestic workers to precarious conditions of work. Despite an avowed move towards formalisation of domestic work, platform-mediated labour continues to retain characteristics of informal labour, even heightening some.</p>
<div></div>
<p style="text-align: justify; ">If pushed to do so, platform companies can be instrumental in resolving some of the implementation challenges that governments have faced in enforcing legislative protections sought to be made available to domestic workers. Platforms have databases of workers, which can be used to mandatorily register them for social security schemes offered by the government. This data can also be used for better policy making, in the absence of reliable statistics particularly on migrant workers in the informal economy.<em><strong><br /></strong></em></p>
<p style="text-align: justify; "><strong>Reduce the protective gap between employment and self-employment </strong><br />The (mis)classification of “gig” work within labour law frameworks is still a matter that continues to be hotly debated within policy practitioners, legal scholarship, and civil society actors. Three positions, in particular, have been taken—treating gig workers as employees, independent contractors, or occupying a third intermediate category. More recently, there have been some legal victories guaranteeing employment protections and increasing platform companies’ accountability. However, these successes have been more visible in Global North jurisdictions.</p>
<div></div>
<p style="text-align: justify; ">Regardless of the resolution of these ongoing debates over employment status, labour frameworks should provide some universal protections to all categories of labour. Such protections must include universal coverage of social security, in addition to rights such as freedom of association, collective bargaining, equal remuneration and anti-discrimination. Policies geared towards achieving this objective would be significant in reducing the protective gaps between different categories of labour, and would particularly help historical and emerging occupational categories of workers such as “gig” workers and domestic workers.</p>
<div></div>
<p style="text-align: justify; "><strong>Recognise the specific challenge(s) and potential of platformisation of domestic work </strong><br />Platforms hold the potential of acting as effective facilitators in informal labour markets. Even when they do not replace existing recruitment pathways, they provide alternate ones. Workers were more likely to register on a platform if they were entering the domestic work labour market recently (often distress and migration driven), or had not enjoyed success with informal, word-of-mouth networks. However, platforms also heighten labour market insecurities, and create new ones. These potential risks need to be specifically recognised through appropriate frameworks, such as social security, discrimination law and data protection.</p>
<div></div>
<p style="text-align: justify; "><strong>Tailor policy-making to platform models </strong><br />We identify three types of platforms, each of which intervene to varying degrees in the work relationship. We recommend that digital placement agencies and marketplace platforms be registered with governments and enforce basic protections for workers such as provision of minimum wage, preventing abuse (including non-payment of wages) and trafficking. On-demand companies on the other hand, must be treated as employers, and workers be accorded employment protections including social security.</p>
<div></div>
<p style="text-align: justify; ">In addition to rights-based policy actions, legal-regulatory mechanisms geared towards mitigating the precariousness of platform-based work are required. This can take the shape of clarifying and expanding existing legal-regulatory formulations, or preparing new ones. Such policy making should factor in the power and information asymmetry between domestic workers (and gig workers, generally) and platforms.</p>
<div></div>
<p style="text-align: justify; ">Further, in the absence of health or retirement benefits, risks and indirect costs of operations are shifted from employers to workers. For instance, workers provide capital in the form of tools or equipment, support the fluctuation of business and income, and can be ‘deactivated’ from an application as a result of poor ratings or periods of inactivity. Any regulation aiming to extend employee status should mandate platforms to support such indirect costs.</p>
<h3>Related Publications</h3>
<p>1. <a class="external-link" href="https://www.genderit.org/articles/digital-mediation-of-reproductive-and-care-work">Research notes</a> with reflections from union members. <br />2. The <a class="external-link" href="https://cis-india.org/raw/platformisation-of-domestic-work-in-india-report-from-a-multistakeholder-consultation">event report</a> from a stakeholder consultation with workers, unions, companies and government representatives. <br />3. A <a class="external-link" href="https://www.genderit.org/articles/doing-standpoint-theory">reflection note</a> on the participatory approach taken by the project. <br />4. A <a class="external-link" href="https://library.fes.de/pdf-files/bueros/singapur/17840.pdf">paper</a> with a comparative analysis of the policy landscape on domestic work in the platform economy.</p>
<p>
For more details visit <a href='https://cis-india.org/raw/platforms-power-and-politics-perspectives-from-domestic-and-care-work-in-india'>https://cis-india.org/raw/platforms-power-and-politics-perspectives-from-domestic-and-care-work-in-india</a>
</p>
No publisherAayush Rathi, and Ambika TandonDigital EconomyResearchers at WorkPlatform-WorkFeaturedRAW ResearchHomepageDigital Domestic Work2021-07-07T15:19:37ZBlog EntryPervasive Technologies: Access to Knowledge in the Market Place — A Presentation by Sunil Abraham
https://cis-india.org/a2k/blogs/access-to-knowledge-in-market-place
<b>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.</b>
<p style="text-align: justify; ">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.</p>
<p style="text-align: justify; ">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.</p>
<hr />
<p style="text-align: justify; "><a href="https://cis-india.org/a2k/blogs/pervasive-technologies.pdf" class="internal-link">Download the presentation</a> [PDF, 4.61 Mb]</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/access-to-knowledge-in-market-place'>https://cis-india.org/a2k/blogs/access-to-knowledge-in-market-place</a>
</p>
No publishersunilFeaturedAccess to KnowledgePervasive Technologies2013-02-13T07:05:15ZBlog EntryPervasive Mobile Technologies: Meet Our Mobile Devices!
https://cis-india.org/a2k/blogs/pervasive-mobile-technologies-meet-our-grey-market-devices
<b>As a part of the Pervasive Technologies: Access to Knowledge in the Marketplace research project, the Centre for Internet & Society (CIS) is researching 12 mobile phone devices to generate a better understanding of the intellectual property (IP) implications of pervasive mobile technologies available in the Indian market. This post is an introduction to our 12 mobile phones.</b>
<p style="text-align: justify; ">As detailed in my introductory blog on <a href="https://cis-india.org/a2k/pervasive-technologies-access-to-knowledge-in-the-market-place">Pervasive Technologies: Access to Knowledge in the Marketplace Research Initiative</a>, CIS will be conducting research on mobile technologies as a small off-shoot of the overall project. Pervasive technologies that can be purchased for less than USD 100 play an integral role in bringing access to knowledge to those that routinely face barriers to the consumption of information. However, their legality, particularly in terms of their use of IP, is unclear. In order to better understand the legal environment in which these technologies exist, CIS purchased 12 mobile phones to study the patent implications of their hardware, software and content.</p>
<p style="text-align: justify; ">Through examination, research, interviews and consultancies, we hope to create an in-depth documentation of each device, an extensive database or account of the patents implicated, and a number of narrower research avenues on topics related to IP, patents, and mobile technologies.</p>
<p style="text-align: justify; ">This blog post will serve as a brief introduction to our mobile devices. The information that I have compiled was discovered through shallow interaction with the phones — turning a device on and exploring the interface and content — which is why the documentation is not particularly extensive at this point. I have had difficulty identifying certain features of some of the phones, like which media formats they support or whether or not they are EDGE<a href="#fn2" name="fr2">[2]</a> — enable, but I am confident that I will be able to ascertain these specifications in the near future; however, certain features, like what OS (operating system) they run on and what chip set they are using, will require collaboration with experts to identify. The exploration is on-going, and more information will be posted as it is discovered.</p>
<p style="text-align: justify; ">Aside from all of the usual functions of a mobile phone (making calls, receiving calls, saving numbers, etc.), each of our mobiles devices possess what I have termed the "basics": dual GSM SIM capabilities with dual standby, the ability to connect to 2G networks, GPRS, a WAP browser (except device 011), bluetooth capabilities, a microSD slot, a dual camera (a camera that takes still photos and records video), an FM radio receiver and the ability to play .mp3 audio files and .mp4 video files, record audio and view .jpg images. Each phone also has a handful of various "utilities" and "extras" applications (such as an alarm, a calculator, a calendar, etc.) as well as at least one game. The full specifications of each phone will be provided in the near future, along with further pictures of each device.</p>
<p style="text-align: justify; ">As much of the research in this project pertains to the IP implications of the devices, we have decided to withhold the make and model of each device to shield the producers from any negative repercussions that could be the result of our research inquiries. They have been assigned the numeric code names 001 to 012.</p>
<p style="text-align: justify; ">Without further ado, I'd like to introduce you to our mobile phones:</p>
<h3 style="text-align: justify; ">001 - The Classroom in a Box</h3>
<div>
<p class="p1">Price: Rs. 6,300.00 / $113.00</p>
</div>
<p><b>KEY FEATURES</b></p>
<ul>
<li>Pico-Projector</li>
<li>Analog TV Receiver</li>
<li>MS Office Document Viewer</li>
</ul>
<table class="listing">
<tbody>
<tr>
<th>
<p style="text-align: center; "><img src="https://cis-india.org/home-images/001Front.png" alt="null" class="image-inline" title="001Front" /></p>
</th>
</tr>
<tr>
<td>
<p style="text-align: justify; ">This bar-design feature phone has all of the basics with a few added bonuses: an analog TV receiver, viewer, and a built-in pico-projector that projects the mobile's screen onto any surface. Though this phone does not technically fall into our definition of pervasive technologies because of its price, it was the first mobile phone with a built-in pico-projector as well as an analog TV receiver available on the Indian market for less than Rs. 10,000 when it was purchased more than a year ago. Since then, other sub-USD100 pico-projector mobile devices have made an appearance on the Indian market, but each of those devices appear to have been discontinued and 001 continues to be the cheapest pico-projector mobile phone available for purchase.</p>
</td>
</tr>
</tbody>
</table>
<h3 style="text-align: justify; ">002 - The Supercharger</h3>
<div>
<p class="p1">Price: Rs. 2,499.00 / $45.00</p>
<p class="p1"><span class="s1"><b>KEY FEATURES</b></span></p>
</div>
<ul>
<li>Solar Panel </li>
<li>Hindi Keyboard</li>
</ul>
<div></div>
<table class="listing">
<tbody>
<tr>
<th>
<p><img src="https://cis-india.org/home-images/002Front.jpg" alt="null" style="float: left; " class="image-inline" title="002Front" /></p>
</th>
<td style="text-align: justify; ">002 is a sleek candybar feature phone with a particularly interesting innovation. While it uses a standard lithium-ion battery that can be recharged via connection to a wall socket or electrical device (such as a laptop), it also has a built-in solar panel that can generate some charge as well. The solar panel technology is not yet very efficient—the panel would have to be placed in direct sunlight for multiple hours to fully charge the battery—but it represents an important step towards untethering mobile phones and mobile phone users from costly electricity infrastructure, a development that would have significant implications for rural populations who have unreliable access to electricity.</td>
<th>
<p><img src="https://cis-india.org/home-images/002Back.jpg" alt="null" style="float: right; " class="image-inline" title="002Back" /></p>
</th>
</tr>
</tbody>
</table>
<h3></h3>
<h3>003 - The Networker</h3>
<div>
<p class="p1">Price: Rs. 1,250.00 / $22.00</p>
</div>
<p class="p1"><span class="s1"><b>KEY FEATURES</b></span></p>
<ul>
<li>Wi-Fi</li>
<li>Optical Trackpad</li>
<li>Secondary Forward-facing Camera</li>
<li>Support for 8 Languages</li>
</ul>
<table class="listing">
<tbody>
<tr>
<th>
<p style="text-align: center; "><img src="https://cis-india.org/home-images/003Front.jpg" alt="null" class="image-inline" title="003Front" /></p>
</th>
</tr>
<tr>
<td style="text-align: justify; ">
<p>With a boxy, QWERTY-keyboard design and relatively small screen, 003 does not appear, at first glance, to be anymore than an average feature phone — but appearances can be deceiving. With a highly responsive optical trackpad, an analog TV receiver, BlackBerry-esque interface and WiFi capabilities, this mobile device packs some sophisticated technologies and features. Further, it is the only phone in our collection that can connect to the internet using WLAN networks.</p>
<p>Considering that some of the other devices are much more complex — and expensive — than 003, the wide-spread exclusion of WiFi capabilities in our collection is intriguing. Is the choice to include or exclude mobile technology a matter of economics? Are cellular WiFi components expensive, and producers are choosing to exclude WiFi as a method of cutting costs? Is it simply a response to patterns of consumer demand? The WiFi questions will be explored in more depth in up-coming blog posts.</p>
</td>
</tr>
</tbody>
</table>
<h3>004 - The Linguist</h3>
<div>
<p class="p1">Price: Rs. 2,250.00 / $40.00</p>
<p class="p2"><span class="s1"><b>KEY FEATURES</b></span></p>
<ul>
<li><span class="s1"> </span>Android-like OS</li>
<li>Support for 14 Languages</li>
<li>Secondary Forward-facing Camera</li>
<li>Large Number of Pre-loaded Apps</li>
</ul>
</div>
<table class="listing">
<tbody>
<tr>
<th>
<p style="text-align: center; "><img src="https://cis-india.org/home-images/004Front.jpg" alt="null" class="image-inline" title="004Front" /></p>
</th>
</tr>
<tr>
<td style="text-align: justify; ">Though it may be hard to believe at first glance, this mobile device was purchased for less than Rs. 2500. With its large internal memory, support for 14 different languages (including Tamil, Bengali and Hindi), and its large array of pre-loaded games and social media applications already set it apart from the less sophisticated mobiles in our collection, 004 also runs on a mysterious Android-like operating system similar to the popular MIUI Android ROM developed by the Chinese-based company Xiaomi Tech. This give it a very sophisticated interface with the look and feel of a smartphone, though the device itself lacks many of the capabilities that are often considered as smartphone criteria (GPS, high-speed internet access, push/pull email, Wi-Fi, an app store, etc.). Because this device, and others like it in our collection, have more sophisticated hardware, software and content than a generic feature phone, but are not as capable as a smartphone, I have taken to calling these devices "semi-smart". <br /></td>
</tr>
</tbody>
</table>
<h3>005 - TV on the Go</h3>
<div>
<p class="p1">Price: Rs. 1,450.00 / $26.00</p>
</div>
<p class="p2"><span class="s1"><b>KEY FEATURES</b></span></p>
<ul>
<li><span class="s1"> </span>Analog TV receiver</li>
<li>Arabic Keyboard</li>
<li>Secondary Forward-facing Camera</li>
</ul>
<table class="listing">
<tbody>
<tr>
<th style="text-align: center; "><img src="https://cis-india.org/home-images/005Front.jpg" alt="null" class="image-inline" title="005Front" /></th>
</tr>
<tr>
<td style="text-align: justify; ">Though it doesn't have any particular innovation that sets it apart from the other devices, 005 is a hardy QWERTY-design feature phone with all of the basics as well as a good collection of social media applications and an analog TV receiver. Though its keyboard can be programmed to write in English, Tamil, Arabic and Hindi script, the buttons have the Arabic <i>abjad</i> on them, which brings up the question of which market this mobile was originally designed for. <br /></td>
</tr>
</tbody>
</table>
<h3>006 - The Spy</h3>
<div>
<p class="p1">Price: Rs. 1,680.00 / $30.00</p>
</div>
<p><span class="s1"><b>KEY FEATURES:</b></span></p>
<div>
<ul>
<li>Secondary “Spy” Camera</li>
<li>Ability to behave as a modem via USB connection</li>
</ul>
</div>
<table class="listing">
<tbody>
<tr>
<th><img src="https://cis-india.org/home-images/006Camera.jpg" alt="null" class="image-inline" title="006Camera" /></th>
<td style="text-align: justify; ">006 is an interesting candy bar feature phone. On initial examination, this mobile appears to be a completely generic feature phones with all of the basics, but nothing auxiliary. However, a more careful inspection will reveal a secondary camera with an unusual placement — instead of being place at the top of the screen like all of the other secondary cameras found on our devices, this camera is situated on the right hand side of the phone. <br /></td>
<th><img src="https://cis-india.org/home-images/copy_of_006Front.jpg" alt="null" class="image-inline" title="006Front" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">The manufacturer of this device actually refers to this secondary camera as a "spy" camera, and it is truly an appropriate name; from a distance, it looks more like a headphone jack than a camera, and its placement allows for photo and video to be taken without any suspicious movement or positioning by the user. The secondary camera has 1.3 megapixels and can take relatively high resolution photos and videos.</p>
<h3>007 - The Semi-Smartphone</h3>
<div>
<p class="p1">Price: Rs. 2,150.00 / $39.00</p>
</div>
<p class="p1"><span class="s1"><b>KEY FEATURES</b></span></p>
<ul>
<li>Android-like OS (maybe MIUI)</li>
<li>USB Tethering</li>
<li>Push Email</li>
</ul>
<table class="listing">
<tbody>
<tr>
<th>
<p style="text-align: center; "><img src="https://cis-india.org/home-images/007Front.jpg" alt="null" class="image-inline" title="007Front" /></p>
</th>
</tr>
<tr>
<td>
<p style="text-align: justify; ">Device 007 is a semi-smart touchscreen phone, and by far the most sophisticated device in our collection. We believe that it uses MIUI OS, which gives it a very similar look to Android and a functionality that is reminiscent of iOSx. While it doesn't have an app store, 007 is jam-packed with pre-loaded applications and can support a wide variety of file formats. Further, while the phone cannot connect to WLAN networks on its own; it can connect to WiFi by tethering to a networked device via USB connection.</p>
</td>
</tr>
</tbody>
</table>
<h3>008 - The Trendy</h3>
<div>
<p class="p1">Price: Rs. 2,350.00 / $42.00</p>
</div>
<div>
<p class="p1"><span class="s1"><b>KEY FEATURES</b></span></p>
<ul>
<li>Android-like OS</li>
<li>Support for 9 languages</li>
</ul>
</div>
<table class="listing">
<tbody>
<tr>
<th>
<p style="text-align: center; "><img src="https://cis-india.org/home-images/008Front.jpg" alt="null" class="image-inline" title="008Front" /></p>
</th>
</tr>
<tr>
<td style="text-align: justify; ">Another mainstream look-alike, 008 runs the same unidentified OS as device 004 and has similar capabilities. Its plastic casing is a bit flimsy, but its "back", "home" and "list" buttons are touch sensitive. Its sophisticated OS and pre-loaded applications make it a semi-smart device.</td>
</tr>
</tbody>
</table>
<h3>009 - The Boombox</h3>
<div>
<p class="p1">Price: Rs. 1,420.00 / $26.00</p>
<p class="p1"><span class="s1"><b>KEY FEATURES</b></span></p>
<ul>
<li>Huge built-in speaker</li>
<li>Android-like OS</li>
</ul>
<table class="vertical listing">
<tbody>
<tr>
<th>
<p style="text-align: center; "><img src="https://cis-india.org/home-images/009.jpg" alt="null" class="image-inline" title="009Front" /></p>
</th>
<td style="text-align: justify; ">Though it is less recognizable than some of the other devices, this mobile may have one of the significant smartphone qualifiers that our other devices lack: an app store — or what appears to be an app store. The app store icon itself is actually the icon for the Android app store, but the interface is completely different, and the only thing available for download is a handful of games. Interestingly enough, many of these games also make appearances on some of the other mobile devices (like fishing joy and tear clothes). Further, I would not call this phone semi-smart, as its interface is not particularly any more sophisticated than some of the other feature phones in our collection.</td>
<th><img src="https://cis-india.org/home-images/009Back.png" alt="null" class="image-inline" title="009Back" /></th>
</tr>
</tbody>
</table>
</div>
<table class="invisible">
<tbody>
<tr>
<td>009 also features a large built-in speaker, the Opera Mini mobile browser and an Android-like OS, though this OS is less sophisticated than that of 004 and 008.</td>
</tr>
</tbody>
</table>
<h3>010 - 3D</h3>
<div>
<p class="p1">Price: Rs. 1,440.00 / $26.00</p>
</div>
<p class="p1"><span class="s1"><b>KEY FEATURES</b></span></p>
<ul>
<li>Android-like OS</li>
<li>Pre-loaded Stereoscopic (3D) videos</li>
<li>Support for 13 languages</li>
</ul>
<table class="listing">
<tbody>
<tr>
<th style="text-align: center; "><img src="https://cis-india.org/home-images/0010Front.jpg" alt="null" class="image-inline" title="0010Front" /></th>
</tr>
<tr>
<td style="text-align: justify; ">This semi-smart touchscreen phone also has an Android-like operating system. Though it lacks an app store and push-email, it comes pre-loaded with a veritable smorgasbord of games and social media applications and supports 13 different languages. It also comes with a pair of 3D glasses and two short, very basic pre-loaded stereoscopic videos.</td>
</tr>
</tbody>
</table>
<h3>011 - The Mighty Mini</h3>
<div>
<p class="p1">Price: Rs. 750.00 / $14.00</p>
<p class="p1"><b>KEY FEATURES</b></p>
<ul>
<li>Dual GSM SIM support</li>
<li>Best bang-for-your-buck for a basic mobile phone</li>
</ul>
</div>
<table class="listing">
<tbody>
<tr>
<th style="text-align: center; "><img src="https://cis-india.org/home-images/011.jpg" alt="null" class="image-inline" title="011" /></th>
</tr>
<tr>
<td>
<p style="text-align: justify; ">At Rs. 750, this little feature phone was the least expensive phone we could find that still had almost all of the basics. Even without any extra features, it is still almost Rs. 200 cheaper than the majority of the most basic GSM dual SIM mobiles available on the formal Indian market<a href="#fn3" name="fr3">[3]</a>— and, in most cases, 011 has more capabilities than most of those devices. With .mp3 and .mp4 file playback, a dual camera, colour display, a WAP browser, MMS messaging support, two charging ports and Urdu and Hindi language support, this mobile phone personifies affordable accessibility to knowledge and media.</p>
</td>
</tr>
</tbody>
</table>
<h3>012 - The Pianist</h3>
<div>
<p class="p1">Price: Rs. 1,550.00 / $28.00</p>
<p class="p1"><b>KEY FEATURES</b></p>
<ul>
<li>Touch piano</li>
<li>Two charging ports</li>
<li>Support for a multitude of audio, video and image formats</li>
</ul>
</div>
<table class="listing">
<tbody>
<tr>
<th><img src="https://cis-india.org/home-images/012.jpg" alt="null" class="image-inline" title="012" /></th>
<td style="text-align: justify; ">
<p> </p>
<p>012 is a basic candy bar feature phone with a particularly novel innovation: a touch piano. It is quite sensitive to touch and has a one octave range.</p>
</td>
<th><img src="https://cis-india.org/home-images/012Back.jpg" alt="null" class="image-inline" title="012Back" /></th>
</tr>
</tbody>
</table>
<hr />
<h3></h3>
<h3>013 - The Indian Experience</h3>
<div>
<p class="p1">Price: Rs. 2,100.00 / $38.00</p>
</div>
<p><b>KEY FEATURES</b></p>
<ul>
<li>India<b> </b>specific content</li>
<li>Proprietary App Store</li>
</ul>
<table class="vertical listing">
<tbody>
<tr>
<th><img src="https://cis-india.org/home-images/013Front.png" alt="null" class="image-inline" title="013Front" /></th>
<td style="text-align: justify; ">
<p>This little touchscreen mobile is chockfull of “Indian-specific” content, including an application that links directly to an online portal where consumers can download “Hungama” videos, music and movies onto the phone—for a price. Many of the games also charge a monthly user fee, though interestingly enough, Angry Birds and Talking Tom Cat are pre-loaded and free to play. This phone also has a proprietary app store with a limited amount of mBounce<a href="#fn4" name="fr4">4]</a> applications and games available for purchase. I am not yet sure if this app store can be remotely updated with new apps, but the device can receive data vis USB connection, so it is possible that new applications can be added through direct file transfer.</p>
<p>It also has keyboard support for English, Hindi and Tamil, but the interface cannot be set it appear in anything other than English.</p>
</td>
</tr>
</tbody>
</table>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. Enhanced Data rates for GSM Evolution, also known as Enchanced GPRS (EGPRS) is a mobile phone technology that also improved data transmission on GSM networks. It is considered a pre-3G radio technology. Read more about it here: <a class="external-link" href="https://en.wikipedia.org/wiki/Enhanced_Data_Rates_for_GSM_Evolution">https://en.wikipedia.org/wiki/Enhanced_Data_Rates_for_GSM_Evolution</a><br />[<a href="#fr3" name="fn3">3</a>]. Information retrieved from <a href="http://www.flipkart.com/">www.flipkart.com</a>. The prices shown here have been verified as being the same or very similar (though never more expensive) to the prices offered by each brand's official distributors. See Flipkart search links:</p>
<ul>
<li>Mircomax: <a class="external-link" href="http://bit.ly/UW3q0U">http://bit.ly/UW3q0U</a></li>
</ul>
<ul>
<li>Spice Mobility: <a class="external-link" href="http://bit.ly/V0DK9i">http://bit.ly/V0DK9i</a></li>
</ul>
<ul>
<li>Karbonn: <a class="external-link" href="http://bit.ly/10DKKbz">http://bit.ly/10DKKbz</a></li>
</ul>
<ul>
<li>Lava: <a class="external-link" href="http://bit.ly/TSxUzQ">http://bit.ly/TSxUzQ</a></li>
</ul>
<p style="text-align: justify; "><a href="#fn4" name="fr4">[4]</a> mBounce Ltd is a Hong Kong-based company that performs a variety of mobile phone application support services like proprietary in-house billing infrastructure for app stores, the pre-loading of applications and app stores, and application creation. They are MediaTek-nominated key partner in providing MRE (Maui Runtime Environment) App Store Solutions, but mBounce applications and software can also be placed on other mobile operating systems. You can read more about mBounce here: <a href="http://www.mbounce.com/?lang=eng&module=ltrbox&menu=m1&content=home">http://www.mbounce.com/?lang=eng&module=ltrbox&menu=m1&content=home</a> and here: http://developer.mediatek.com/mre/en/partner/335</p>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/pervasive-mobile-technologies-meet-our-grey-market-devices'>https://cis-india.org/a2k/blogs/pervasive-mobile-technologies-meet-our-grey-market-devices</a>
</p>
No publisherjdineFeaturedAccess to KnowledgePervasive Technologies2012-12-21T07:48:40ZBlog EntryPatent Valuation and License Fee Determination in Context of Patent Pools
https://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools
<b>The focus of this research paper is on an extremely limited though important aspect of patent pools — that of patent valuation and license fee determination. It is important to bear in mind that the concept of patent valuation and license fee determination as it exists independently is modified when it is applied in context of patent pools. </b>
<h2 class="WordSection1">I. Introduction</h2>
<p class="WordSection1" style="text-align: justify; ">A patent pool is essentially “An agreement between two or more patent owners to aggregate (pool) their patents and to license them to one another or third parties. Pools usually offer standard licensing terms to licensees and allocate a portion of the licensing fees (royalties) to patent owners according to a pre-set formula or procedure.<a href="#fn1" name="fr1">[1] </a></p>
<p class="MsoNormal" style="text-align:justify; ">A patent pool particularly faces intense scrutiny by way of competition/ antitrust law and each step of structuring of a patent pool has to be done keeping the prevalent norms of antitrust law in context. This article merely brushes with the antitrust aspect, as a discussion on that topic is beyond the scope of this particular article. However, suffice is to say that like other aspects of structuring of a patent pool, patent valuation and licensing fee determination is also subject to antitrust law concerns.</p>
<p class="MsoNormal" style="text-align:justify; ">Part II of this research paper is a discussion as regards factors which determine patent value in context of a patent pool. Similarly, Part III is a discussion as regards factors that determine license fee in context of a patent pool. Thereafter, Part IV discusses the methods which are applied for patent valuation and license fee determination. A number of these methods are independent evaluation methods and hence their dynamics when applied in context of patent pools may need to be altered in light of the discussion in Parts II and III. Part V discusses certain aspects of actual patent pools in the technological field to better understand the principles which have been discussed in Parts II-IV. Finally, Part VI concludes this research paper.</p>
<h2 class="MsoNormal" style="text-align: justify; ">II. Determination of Patent Value in a Patent Pool</h2>
<p class="MsoNormal" style="text-align: justify; ">One of the prominent pillars of a patent pool is an appropriate patent valuation process. Patent valuation is a difficult and subjective task.<a href="#_ftn3" name="_ftnref3"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[2]</span></span></span></a> Moreover, the result of a patent valuation independently outside of a pool might be quite different from when it is part of a pool transaction. A “pool regularizes the valuation of individual patents - making, as the United States Supreme Court put it, ‘a division of royalties according to the value attributed by the parties to their respective patent claims’”.<a href="#_ftn4" name="_ftnref4"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[3]</span></span></span></a> However, this value attribution process is not an arbitrary one but incredibly dynamic, and constantly evolving. This difficulty is furthered by the fact that the term “patent value” itself is subject to interpretation. Patent value essentially comprises of the economic benefit that the patent can bestow.<a href="#_ftn5" name="_ftnref5"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[4]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">A number of factors as discuss hereinafter determine the value of a patent. It is not necessary though that all the factors would come into play in context of every exercise of valuation of a patent in a pool. The factors determining patent value can be largely classified into a discussion as regards the types of patents in a patent pool in context of their relative importance and other complementary factors which further affect such importance.</p>
<h3 class="MsoNormal" style="text-align: justify; ">A. Categories of Patents in a Patent Pool</h3>
<p class="MsoNormal" style="text-align:justify; ">Patents in a pool can be classified based on their necessity and quality. Thus, arises the concept of essential and non-essential patents and strong and weak patents.<i><span> </span></i></p>
<p class="MsoNormal" style="text-align:justify; "><b><i><span><span> </span></span></i>Essential and Non-Essential Patents<br /></b>As the terms indicate, essential patents are those which are imperative for the success of pool creation and thus naturally have considerably more value. Non-essential patents on the other hand are patents which though not imperative may bring efficiency advantages to the pool. However, what exactly comprises an essential patent is a subjective and constantly evolving definition determined by each patent pool according to its commercial needs and capabilities. For example, the number of patents in the MPEG-2 pool, all of which are declared to be essential to the MPEG-2 standard, increased from 27 in 1997 to more than 900 in 2010.<a href="#_ftn6" name="_ftnref6"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[5]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">Essential patents naturally have more economic value than non-essential patents.<a href="#_ftn7" name="_ftnref7"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[6]</span></span></span></a> “A pool that includes non-essential patents can increase prices for some consumers, while decreasing prices for other consumers.”<a href="#_ftn8" name="_ftnref8"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[7]</span></span></span></a> Also, inclusion of inessential patents can raise potential concerns about foreclosure of alternative technologies and higher royalties for some licenses than would have occurred if these patents were excluded from the pool.<a href="#_ftn9" name="_ftnref9"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[8]</span></span></span></a> These concerns though should be balanced against the costs of excluding potentially essential patents from the pool.<a href="#_ftn10" name="_ftnref10"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[9]</span></span></span></a> Such concerns were raised in context of the DVD 3C patent pool.<a href="#_ftn11" name="_ftnref11"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[10]</span></span></span></a> Thus, it has to be decided on a case by case scenario as to whether the patent pool will include only essential patents or both essential as well as non-essential patents.</p>
<p class="MsoNormal" style="text-align:justify; ">“<span>Whether a patent pool improves a market’s transactional efficiency depends on the competitive characteristics of the patents included within the pool’s offering.”<a href="#_ftn12" name="_ftnref12"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[11]</span></span></span></a> Properly demarcating all required patents for a technology is important during patent pool formation. Otherwise it may create a “hold out” problem where a patent owner will “hold out” for higher royalties, “knowing that the manufacturer has individually negotiated for and already acquired the rest of the necessary … patent licenses, and that the value of all those licenses depends on obtaining a license to its own patent.”<a href="#_ftn13" name="_ftnref13"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[12]</span></span></span></a> </span>Essentiality of a patent can be determined based on certain characteristics of patents:</p>
<p style="text-align: justify; ">a. Blocking Patents<br />Blocking patents comprise of improvement patents on an existing technology. Thus, the improvement patent is deemed to be “subservient” to the earlier, “dominant’ patent”<a href="#_ftn14" name="_ftnref14"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[13]</span></span></span></a> and the subservient and dominant patents are said to block one another.<a href="#_ftn15" name="_ftnref15"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[14]</span></span></span></a> This is so because, the subservient patent cannot be exploited without infringing upon the dominant patent.<a href="#_ftn16" name="_ftnref16"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[15]</span></span></span></a> Likewise, the dominant patent cannot be developed in the improved embodiment without permission from the subservient patentee.<a href="#_ftn17" name="_ftnref17"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[16]</span></span></span></a> For example, the Wright brothers patents for aeroplane wings were improved upon by Glenn Curtiss and Alexander Graham Bell by using a set of wing flaps, or ailerons. The Curtiss patent, however, was found to infringe upon the Wright patent. As a result, Curtiss had no legal right to make, use, or sell his ailerons without a license from the Wright brothers, and the Wright brothers had no legal right to make, use, or sell Curtiss's commercially successful form of the stabilizing device. Their patents mutually infringed and blocked one another and they had to form a patent pool.<a href="#_ftn18" name="_ftnref18"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[17]</span></span></span></a> Similarly, public key encryption method was devised and patented at Stanford University, and licensed to Cylink. Soon thereafter, a team of scientists at the Massachusetts Institute of Technology developed and patented an algorithm, and licensed its use to RSA. The RSA algorithm was successfully commercialized and became an industry standard. Cylink and RSA constituted blocking rival patents and the issue was resolved by formation of a patent pool.<a href="#_ftn19" name="_ftnref19"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[18]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">b. Complementary Patents<br />Complementary patents cover technologies that are largely lacking or inefficient absent a license to a separate patented product.<a href="#_ftn20" name="_ftnref20"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[19]</span></span></span></a> They occur as a consequence of independent invention. Thus, value of <span>complementary patents increases when combined with a separate patented invention;</span> they act synergistically, each increasing the value of the other.<a href="#_ftn21" name="_ftnref21"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[20]</span></span></span></a> “Two products or technologies are complements if an increase in the price of one of them reduces the demand for the other.”<a href="#_ftn22" name="_ftnref22"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[21]</span></span></span></a> For example, production of a light bulb requires patent rights to both the vacuum bulb as well as the filament.<a href="#_ftn23" name="_ftnref23"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[22]</span></span></span></a> A patent pool that only contains complementary patents may have substantial market power if the pool does not face competition from alternative or substitutable technology.<a href="#_ftn24" name="_ftnref24"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[23]</span></span></span></a> This though, could lead to the occurrence of royally stacking i.e. double-marginalization, which can occur when firms sell or license complementary products or technologies and demand is sensitive to price.<a href="#_ftn25" name="_ftnref25"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[24]</span></span></span></a> It refers to the addition of successive mark-ups by suppliers in a vertical relationship.<a href="#_ftn26" name="_ftnref26"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[25]</span></span></span></a></p>
<div class="WordSection1">c. Competing Patents</div>
<p class="MsoNormal" style="text-align:justify; ">Competing patents result when there exist totally novel products or processes that provide market substitutes for patented goods, or when inventors sufficiently modify existing patented goods so that the original patent is deemed “invented around” and not infringed.<a href="#_ftn27" name="_ftnref27"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[26]</span></span></span></a> “Two products or technologies are substitutes if an increase in the price of one of them increases the demand for the other.”<a href="#_ftn28" name="_ftnref28"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[27]</span></span></span></a> A patent pool may obtain market power by obtaining control over substitutable patents too.<a href="#_ftn29" name="_ftnref29"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[28]</span></span></span></a> An individual who acquires the rights to a competing patent eliminates or significantly lessens his need for competing patents within or outside of the pool.<a href="#_ftn30" name="_ftnref30"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[29]</span></span></span></a> Thus, the value of a pool consisting of competing patents increases with acquisition of substitute patents.<a href="#_ftn31" name="_ftnref31"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[30]</span></span></span></a></p>
<p style="text-align: justify; "><b>Strong and Weak Patents<br /></b>A patent pool can comprise of strong as well as weak patents. The value accorded to the patents would naturally be in accordance with its “strength.” “‘Low patent quality’ is shorthand for such problems as overlapping claims, inappropriately broad claims, slow patent prosecution, and patents on obvious inventions.”<a href="#_ftn32" name="_ftnref32"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[31]</span></span></span></a> Patents are “probabilistic rights”<a href="#_ftn33" name="_ftnref33"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[32]</span></span></span></a> Their scope and extent often remains probabilistic until their claim determination which may often be done only upon adjudication. Similarly in situations of a patent flood,<a href="#_ftn34" name="_ftnref34"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[33]</span></span></span></a> the overall quality of patents may become lower.<a href="#_ftn35" name="_ftnref35"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[34]</span></span></span></a> The additional protection of the pool affords a weak patent enforcement rights that it may not have secured standing alone.<a href="#_ftn36" name="_ftnref36"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[35]</span></span></span></a> Thus, even weak and invalid patents become important and can be used to exclude competitors, for example for litigation threats.<a href="#_ftn37" name="_ftnref37"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[36]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">Some patent pools contain explicit agreements to support weak patents, such as covenants not to challenge patents, joint defense agreements, and allocation of patent rights to parties who are best able to defend them.<a href="#_ftn38" name="_ftnref38"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[37]</span></span></span></a> Some patent pools achieve a similar effect not by explicit agreements, but by creating an institutional environment where patentees find that it is mutually advantageous to recognize each other’s patents.<a href="#_ftn39" name="_ftnref39"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[38]</span></span></span></a></p>
<h3>B. Other Factors Determining Patent Value in Context of Patent Pool</h3>
<p>Besides the patents themselves, other complementary criteria impact on patent value. These comprise of the holistic environment in which the patents subsist, as discussed hereinafter.</p>
<p class="MsoNormal" style="text-align:justify; "><b>Subject matter of Invention<br /></b>“Value is highly dependent upon the subject matter of the invention.”<a href="#_ftn40" name="_ftnref40"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[39]</span></span></span></a> Certain subject matter fields or innovations do not have sufficient commercial importance or market demand to warrant investments.</p>
<p class="MsoNormal" style="text-align:justify; "><b>Scope of Invention<br /></b>A particular subject where there is extensive minefield of patents already in existence is less likely to have considerable patent value due to the limited patent scope as opposed to a field where patents are relatively lacking and there is possibility of a broader patent scope.<b> </b>Analogously, “value of a patent is derived from an ability to preclude others from practicing the unique innovation described by the words of the patent’s claims.”<a href="#_ftn41" name="_ftnref41"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[40]</span></span></span></a> “Generalizing, a patent employing broad claim language is typically more valuable than a patent of narrowly written claims in the same technology arena.”<a href="#_ftn42" name="_ftnref42"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[41]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Size of Patent Pool<br /></b>The size of a patent pool i.e. the number of its members and their patents is an important facet in determining the value of patents involved. Greater the number more are the governance issues as well as royalty determination issues, which in turn affect the valuation of the patents. This though does not imply that pools should be of a specific size, only that their size should meet efficiency demands.</p>
<p class="MsoNormal" style="text-align:justify; "><b>Value of Patent Pool<br /></b>The patents under the purview of a patent pool determine the pool’s value which in turn determines the value of the patents within as well as out of the pool. Value of a patent pool may be limited if certain holders of essential patents are not members.<a href="#_ftn43" name="_ftnref43"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[42]</span></span></span></a> This may occur due to various reasons such as if it was perceived that the patent may have more value as an independent entity, or due to strategic interests, or choice of joining different pools.<a href="#_ftn44" name="_ftnref44"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[43]</span></span></span></a> Correspondingly, if the patent pool does not contain all the patents it cannot curtail royalty stacking issues for the users. For example, Alcatel-Lucent pursued infringement claims for patents that it alleged covered the MPEG-2 standard and were not in the pool.<a href="#_ftn45" name="_ftnref45"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[44]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">While it is evident that collecting all necessary patents where the end product or standards is determined is extremely difficult, it becomes considerably more difficult where there is no predetermined or identifiable end-product.<a href="#_ftn46" name="_ftnref46"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[45]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>Patent Portfolio</span></span></span><br /></b>Certain academic studies are of the opinion that “the real value of patents lies not in their individual significance, but instead in their aggregation into a patent portfolio: a strategic collection of distinct-but-related individual patents that, when combined, confer an array of important advantages upon the portfolio holder.”<a href="#_ftn47" name="_ftnref47"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[46]</span></span></span></a> This theory has been applied to explain the patent paradox where the patent intensity, i.e. patents obtained per research and development dollar has risen dramatically even as the expected value of individual patents has diminished.<a href="#_ftn48" name="_ftnref48"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[47]</span></span></span></a> Thus, greater the control of an entity over a portfolio of patents, more would be its negotiation power in context of valuation.</p>
<p class="MsoNormal" style="text-align:justify; "><b>Signaling<br /></b>It has been opined that the value of patents inheres not so much in the exclusivity they confer upon inventors, but rather in their ability to serve as credible signals.<a href="#_ftn49" name="_ftnref49"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[48]</span></span></span></a> Firms use patents to credibly convey information about the invention to the market who otherwise might not be willing to expend the costs necessary to obtain the information.<a href="#_ftn50" name="_ftnref50"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[49]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><span> </span></p>
<p class="MsoNormal" style="text-align:justify; "><b><i> </i>Defensive Aspect<br /></b>Patent value is also ascertained based on its use to serve as an insurance, whereby competing firms use them as “bargaining chips” to negotiate and secure certain niches in the marketplace.<a href="#_ftn51" name="_ftnref51"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[50]</span></span></span></a> This is so especially from the negotiation as well as the litigation viewpoint.</p>
<p class="MsoNormal" style="text-align:justify; "><b>Valuation Dynamics<br /></b>In context of certain subject matters, inability of the patents to be valued or possibility of dynamic changes in value creates problems in structuring the patent pool, or it might lead to issues of according over-value or under-value. For example, in the process of biological research, where hypotheses are often adjusted and experimentation continually refined, it is impossible to anticipate the particular value of a given research tool for an investigative procedure.<a href="#_ftn52" name="_ftnref52"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[51]</span></span></span></a> Similarly, in context of the Human Genome Sciences, the patent for the gene that encodes CCR5 protein, was likely not valued very highly, because of unsurity of its utility, which changed when independent research established its importance in the fight against HIV.<a href="#_ftn53" name="_ftnref53"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[52]</span></span></span></a></p>
<h3 class="MsoNormal" style="text-align: justify; ">C. Role of Independent Evaluator</h3>
<p class="MsoNormal" style="text-align:justify; ">Often, independent experts in the relevant technology are employed for patent valuation purposes. Their role includes the responsibility of providing a mechanism for determining the market value of each participating patent for the purpose of setting appropriate royalty rates within the patent pool.<a href="#_ftn54" name="_ftnref54"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[53]</span></span></span></a> Also, they would evaluate the current state of the art and determine which patents are essential and which aren’t.<a href="#_ftn55" name="_ftnref55"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[54]</span></span></span></a> An evaluator’s is a continuing responsibility throughout the existence of the duration of the patent pool to monitor developments in the field so as to ensure each patent’s essentiality and incorporate additional patents if necessary.<a href="#_ftn56" name="_ftnref56"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[55]</span></span></span></a> Concerns though have been expressed as regards the expert’s ability and impartiality<span>.</span><a href="#_ftn57" name="_ftnref57"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[56]</span></span></span></a></p>
<h2><span><span class="MsoFootnoteReference"><span>III. Determination of License Fee for a Patent Pool</span></span></span></h2>
<p class="MsoNormal" style="text-align:justify; "><span>Theorists, have suggested criteria to gauge viability of patent pools.<a href="#_ftn58" name="_ftnref58"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[57]</span></span></span></a> The various elements involved in structuring of a patent pool do not function in a vacuum. Each has an impact on the other and ultimately they determine in totum, the licensing fees.</span></p>
<h3><span>A. Pool Dynamics</span></h3>
<p class="MsoNormal" style="text-align:justify; ">The factors catalyzing pool creation impact on the licensing fee that is set. A patent pool may primarily be structured due to government influence,<a href="#_ftn59" name="_ftnref59"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[58]</span></span></span></a> court influence,<a href="#_ftn60" name="_ftnref60"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[59]</span></span></span></a> commercial and business perspective,<a href="#_ftn61" name="_ftnref61"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[60]</span></span></span></a> to achieve or pursuant to standard setting,<a href="#_ftn62" name="_ftnref62"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[61]</span></span></span></a> and social objectives.<a href="#_ftn63" name="_ftnref63"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[62]</span></span></span></a> Accordingly, riders may be placed on creation of the pool and setting of licensing fees.</p>
<p class="MsoNormal" style="text-align:justify; ">Analogously, members comprising the patent pool affect royalty determinations. Different perspectives can be observed in commercial entities as opposed to research entities or voluntary organizations. Similarly, the negotiation capabilities are different for established commercial conglomerates as opposed to entrepreneurs, or smaller entities.<a href="#_ftn64" name="_ftnref64"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[63]</span></span></span></a> Similarly, patent pools may distinguish between patent contributing licensees and mere licensees in fixing royalty rates.<a href="#_ftn65" name="_ftnref65"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[64]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">Furthermore, pool governance as well as nature of the pool would have an impact on royalty determination. Pools can essentially be of two types based on regulation of members or licensing- open and closed.<a href="#_ftn66" name="_ftnref66"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[65]</span></span></span></a> Correspondingly, the patent holders themselves may have different perspectives or expectations of their rights.</p>
<p class="MsoNormal" style="text-align:justify; ">The negotiating entity too has an impact on royalty determination. “Agreements between the members of the patent pool and third parties can be established directly through patentees and licensees or indirectly through an entity specifically created to administer the pool.”<a href="#_ftn67" name="_ftnref67"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[66]</span></span></span></a> There are a considerable number of business models involved in context of a patent pool that define the parameters of the relationship between what are primarily classified as IP creators and IP consumers.<a href="#_ftn68" name="_ftnref68"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[67]</span></span></span></a> These dynamics have considerably altered with the strong and prolific emergence of IP intermediaries; they in turn affect the royalty rate negotiations.<a href="#_ftn69" name="_ftnref69"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[68]</span></span></span></a></p>
<h3 class="MsoNormal" style="text-align: justify; ">B. Negotiation Dynamics</h3>
<p class="MsoNormal" style="text-align:justify; ">License negotiations involve complicated factors, such as uncertain outcomes, asymmetric information about the values of technologies and the contributions of licensees to a technology's value, the credibility of disagreements, differential bargaining power and skill, and the individual circumstances of licensors and licensees.<a href="#_ftn70" name="_ftnref70"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[69]</span></span></span></a> Royalty determination depends on “the bargaining skills of patentees, their licensing objectives, the qualities of their patents, opportunity costs that patentees may have if they choose not to license their patents, the likelihood of injunctions, and the methods that courts apply to calculate infringement damages.”<span class="MsoFootnoteReference"> <a href="#_ftn71" name="_ftnref71"><span class="MsoFootnoteReference"><span>[70]</span></span></a></span> Pool members act strategically to maximize their share of the pool’s revenues.<a href="#_ftn72" name="_ftnref72"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[71]</span></span></span></a> “The defining characteristic of patent ownership has been described as the right to extract royalties ‘as high as [one] can negotiate with the leverage’ of exclusivity.”<a href="#_ftn73" name="_ftnref73"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[72]</span></span></span></a> <span>“The patent holder can ask for a high starting price; the potential infringer can counter by pointing to potential substitute technologies; and ultimately the process should yield a price that accurately reflects the marginal advantages of the patented technology.”<a href="#_ftn74" name="_ftnref74"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[73]</span></span></span></a> </span>Again, negotiation strategies include deploying a number of tactics by corporates to whittle down an independent inventor’s patience and his price, thus reducing the licensing fee from the desired amount.<a href="#_ftn75" name="_ftnref75"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[74]</span></span></span></a> <span>Correspondingly, there is no average length of time or amount of money needed for successfully creating a patent pool; it depends on the number of members involved in the negotiations and their commitment and willingness to negotiate an appropriate price.<a href="#_ftn76" name="_ftnref76"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[75]</span></span></span></a></span></p>
<p class="MsoNormal" style="text-align:justify; ">Timing of the license negotiation too has an impact on determination of the royalty scheme. Licensing can occur in two primary settings: ex ante licensing, i.e. prior to pool formation; and ex post, i.e. post pool formation. In ex ante licensing, the manufacturer has a choice to alter existing products to incorporate the patented features, and can thus perform a rational cost-benefit analysis prior to making any product alterations.<a href="#_ftn77" name="_ftnref77"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[76]</span></span></span></a> Analogously, a holdout who demands royalties prior to the final organization of the pool can only demand a royalty that reflects the additional value that his new patent adds to the collection.<a href="#_ftn78" name="_ftnref78"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[77]</span></span></span></a> If he demands more than this value, the pool will work around the holdout’s patent by adopting a different standard, adjusting the patent pool to cover slightly different technology, or dissolving itself.<a href="#_ftn79" name="_ftnref79"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[78]</span></span></span></a> In ex post licensing, on the other hand, a holdout is in a stronger negotiating position, and can demand not only the marginal value of his patent, but also the switching costs that would be incurred if the established standard or licensing regime were limited by a court injunction.<a href="#_ftn80" name="_ftnref80"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[79]</span></span></span></a> Complicating this situation are <span>licenses that are granted ex ante but negotiated ex post.</span></p>
<p class="MsoNormal" style="text-align:justify; ">Furthermore, patent pools are generally voluntary collaborations; however, it is also possible to compel parties to join the pool or risk losing revenue from a large segment of the industry.<a href="#_ftn81" name="_ftnref81"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[80]</span></span></span></a> Depending on the situation, the negotiation dynamics and hence the royalty scheme would be affected.</p>
<p class="MsoNormal" style="text-align:justify; ">Rules governing damages for patent infringement also affect patentees’ decision to join a pool or to license independently, as the threat of injunctive relief can provide a patentee with bargaining power that can be disproportional to the number of patents he owns.<a href="#_ftn82" name="_ftnref82"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[81]</span></span></span></a></p>
<h3 class="MsoNormal" style="text-align: justify; ">C. Terms of License</h3>
<p class="MsoNormal" style="text-align:justify; ">The terms of the license considerably influence royalty determination. These include, nature of licensed products,<a href="#_ftn83" name="_ftnref83"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[82]</span></span></span></a> character of license- whether exclusive or non-exclusive,<a href="#_ftn84" name="_ftnref84"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[83]</span></span></span></a> granting clause, geographic scope of the license, field of use governed by the license, provision of sublicensing, grantback provisions, future usage governance, non-assertion clauses, reach-through provisions, termination clause, and licensee’s ability to challenge patents in the pool.</p>
<p class="MsoNormal" style="text-align:justify; ">Included herein too would be the treatment of after-acquired patents, which in turn can be classified into two types: (1) improvement patents based on a patented technology licensed by another member of the patent pool; and (2) patents unrelated to patented technologies licensed to the members of the patent pool.<a href="#_ftn85" name="_ftnref85"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[84]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">License governance in context of graduated and progressive licensing would also influence royalty determination. This would include “provisions for pool members to license their patents without licensing all the patents in a pool”<a href="#_ftn86" name="_ftnref86"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[85]</span></span></span></a> And the freedom “to license their patents bilaterally, i.e., outside of the pool structure.”<a href="#_ftn87" name="_ftnref87"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[86]</span></span></span></a></p>
<h2 class="MsoNormal" style="text-align: justify; ">IV. Methods for Patent Valuation and License Fee Determination</h2>
<p class="MsoNormal" style="text-align:justify; ">There are three basic methods of valuation: the cost method,<a href="#_ftn88" name="_ftnref88"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[87]</span></span></span></a> the market method,<a href="#_ftn89" name="_ftnref89"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[88]</span></span></span></a> and the income method.<a href="#_ftn90" name="_ftnref90"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[89]</span></span></span></a> In context of patent valuation, these methods find varied expressions. “A truly accurate assessment of patent value requires intensive legal and technical evaluation of individual patents.”<a href="#_ftn91" name="_ftnref91"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[90]</span></span></span></a> The economics literature, however, has also proposed several proxies for patent value based on objective and readily available information.<a href="#_ftn92" name="_ftnref92"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[91]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">In context of patent pools the dynamics of patent valuation methods is altered and they need to be viewed through the prism of factors discussed in Part II. This doesn’t imply that approaches to objective patent valuation are not relevant.<a href="#_ftn93" name="_ftnref93"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[92]</span></span></span></a> “However, such valuation approaches focus only on characteristics of patents at the time of issue and neglect to consider what happens afterwards.”<a href="#_ftn94" name="_ftnref94"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[93]</span></span></span></a> <span>“Technology developments or price fluctuations, among many factors, may alter the relationship between two patents … In turn, this may decrease the value of any static analysis conducted by experts.”</span><a href="#_ftn95" name="_ftnref95"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[94]</span></span></span></a><span> </span></p>
<p class="MsoNormal" style="text-align:justify; ">Determination of the licensing fee of a patent pool is based on the joint affect of certain transactions. Again, as with patent valuation, so also with licensing fee determination, in context of patent pools, the factors discussed in Part III need to be given heed. The transactions influencing licensing fee determination essentially comprise of valuation of the patent, which in turn is used to set a royalty rate pertaining to allocation of various fees received by licensing of the pool patents. Thus, royalty payment is comprised of two components: a royalty rate and a royalty base, upon which the rate is applied.<a href="#_ftn96" name="_ftnref96"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[95]</span></span></span></span></a></p>
<h3 class="MsoNormal" style="text-align: justify; ">A. Determining an Appropriate Royalty Base</h3>
<p class="MsoNormal" style="text-align:justify; ">The scope of the royalty base can be determined in two principal ways- apportionment and entire market value rule.</p>
<p class="MsoNormal" style="text-align:justify; ">The apportionment principle implies that when a patent reads on the entirety of an infringing product, the royalty base should be the total value of the sales (or use) of that product.<a href="#_ftn97" name="_ftnref97"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[96]</span></span></span></a> When the patent at issue covers only a component of the infringing product, the value of the sales or uses of that item must be apportioned between the patented invention and the remaining unpatented components.<a href="#_ftn98" name="_ftnref98"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[97]</span></span></span></a> Thus, the principle aims at allocating awards in proportion to contribution, and is not based on any value attributable to the infringer’s or third parties’ inventions.<a href="#_ftn99" name="_ftnref99"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[98]</span></span></span></a> Thus, essentially, a licensor garners a royalty fee in proportion to the number of infringed patents owned by him.</p>
<p class="MsoNormal" style="text-align:justify; ">The entire market value rule, recognizes that the economic value added to a product by a patented component may be greater than the value of the component alone.<a href="#_ftn100" name="_ftnref100"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[99]</span></span></span></a> Thus, this rule focuses on whether the patented component drives demand for the entire product, and if it is so, then the patentee may treat all revenue from the infringing product as an appropriate royalty base.<a href="#_ftn101" name="_ftnref101"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[100]</span></span></span></a></p>
<h3 class="WordSection1">B. Setting Royalty Rates</h3>
<p class="MsoNormal" style="text-align:justify; ">Royalty rates are typically a percentage rate and thus reflects the proportion of the base value that the patented technology contributes.<a href="#_ftn102" name="_ftnref102"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[101]</span></span></span></a> Various approaches have emerged in determining royalty rates; these could be adapted in context of patent pools.</p>
<p class="MsoNormal" style="text-align:justify; "><b>Rule of Thumb<br /></b>This approach suggests that the licensor should receive 25 percent of the licensee’s gross profit from the licensed technology.<a href="#_ftn103" name="_ftnref103"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[102]</span></span></span></a><sup> </sup>Thus, this rule’s purpose is not the valuation of a technology per se, but rather the apportionment of a technology’s value between the licensor and licensee.<a href="#_ftn104" name="_ftnref104"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[103]</span></span></span></a> The percentage split between the licensor and licensee should be adjusted upwards or downwards to take into account the parties’ respective investment and risk in the licensed technology.<a href="#_ftn105" name="_ftnref105"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[104]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Numerical Proportionality<br /></b>According to this approach, royalty entitlement of the holder of patents essential to a standard should be calculated in light of the proportional contribution of that patent owner’s essential patents compared to the total contribution of all other essential patents reading on the standard.<a href="#_ftn106" name="_ftnref106"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[105]</span></span></span></span></a> This method rests on the proposition that every patent is of equal value.<a href="#_ftn107" name="_ftnref107"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[106]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Industry Standards / Market or Comparable Technology Method<br /></b>Under this approach, the worth of a patent is determined by examining the royalty rates garnered in similar past transactions.<a href="#_ftn108" name="_ftnref108"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[107]</span></span></span></a></p>
<p style="text-align: justify; "><b>Discounted Cash Flow<br /></b>This approach proposes that patent price can be expressed as the present value of the future stream of economic benefits derived from ownership, which includes projected sales of products (or components) based on the patent over its expected life or any increased share of sales as compared to competitors, net of any capital requirements of production.<a href="#_ftn109" name="_ftnref109"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[108]</span></span></span></span></a> To implement it, one must determine (1) the future cash flows generated by the patent in question and (2) an appropriate discount rate.<a href="#_ftn110" name="_ftnref110"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[109]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Ranking<br /></b>This approach compares the intellectual property asset to be valued to comparable intellectual property assets on a subjective or objective scale.<a href="#_ftn111" name="_ftnref111"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[110]</span></span></span></a> There are five components to a ranking method: (i) scoring criteria; (ii) scoring system; (iii) scoring scale; (iv) weighting factors; and (v) decision table; these components are used to calculate a composite score for an asset, which is then compared to the average score for a comparable intellectual property asset to determine the relative value.<a href="#_ftn112" name="_ftnref112"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[111]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Cost-based Rate Setting<br /></b>This approach proposes that the patent holder’s cost of obtaining the invention and its patent forms the basis of the royalty rate; a profit margin is simply tacked onto the innovation cost.<a href="#_ftn113" name="_ftnref113"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[112]</span></span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Surrogate Measures<br /></b>Surrogate measures value patents by reference to the patents themselves.<a href="#_ftn114" name="_ftnref114"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[113]</span></span></span></a> They can be largely categorized into: (1) the number of patents issued to a company; (2) payment of patent maintenance fees i.e. patents which are regularly renewed are more valuable; (3) prior art citations i.e. more a patent is cited, more is its value; (4) characteristics of litigated patents i.e. patents which are the subject matter of litigation are more valuable.<a href="#_ftn115" name="_ftnref115"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[114]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Disaggregation Methods<br /></b>There are two basic types of disaggregation methods - value disaggregation and income disaggregation.<a href="#_ftn116" name="_ftnref116"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[115]</span></span></span></a> The former apportions some fraction of total value to intellectual property assets by setting the value of intangible assets equal to the value of a firm minus the firm’s monetary and tangible assets from to determine the value of the intangible assets.<a href="#_ftn117" name="_ftnref117"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[116]</span></span></span></a> The latter apportions some fraction of total earnings of a firm, based upon various factors, to intellectual property assets.<a href="#_ftn118" name="_ftnref118"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[117]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Option Methods<br /></b>This approach views an investment in intellectual property as an option to develop the intellectual property further, or to abandon the intellectual property, depending upon future technical and market information.<a href="#_ftn119" name="_ftnref119"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[118]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><b>Competitive Advantage Valuation (R)<br /></b>The major premise of the CAV method is that intellectual property assets have no inherent value; the value of intellectual property assets resides entirely in the value of the tangible assets which incorporate them.<a href="#_ftn120" name="_ftnref120"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[119]</span></span></span></a> The minor premise of the CAV method is that the value of a given intellectual property asset can best be measured by the competitive advantage which that asset contributes to a product, process, or service.<a href="#_ftn121" name="_ftnref121"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[120]</span></span></span></a> In its most general form, CAV method consists of following six basic steps<a href="#_ftn122" name="_ftnref122"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[121]</span></span></span></a>:</p>
<ol>
<li style="text-align: justify; ">The intellectual property asset to be valued (IPA) is associated with a product and the product’s net present value is calculated.</li>
<li style="text-align: justify; ">The product's net present value is apportioned among tangible assets, intangible advantages and intellectual property assets. (There are three groups of intellectual property assets: technical [utility patents, functional software copyrights and technical trade secrets]; reputational [trademarks, service marks and brand names]; and operational [business method patents and proprietary business processes].</li>
<li style="text-align: justify; ">The product is associated with competition parameters which can be used to compare the product to substitute products and competition parameter weights are calculated. (There are three groups of competition parameters: technical [price and performance], reputational [recognition and impression], and operational [cost and efficiency]. Weights are calculated for each parameter group and for individual parameters within each group).</li>
<li style="text-align: justify; ">The IPA is associated with an individual competition parameter and the IPA's competitive advantage relative to substitute intellectual property assets is calculated. (Substitute intellectual property assets are assets which are incorporated in substitute products and associated with the same competition parameter as the IPA).</li>
<li style="text-align: justify; "><span> </span>The IPA is associated with complementary intellectual property assets and the IPA's competitive advantage relative to complementary intellectual property assets is calculated. (Complementary intellectual property assets are assets which are incorporated in the same product and associated with the same parameter group as the IPA).</li>
<li style="text-align: justify; "><span> </span>The value of the IPA is calculated by apportioning a share of the product's intellectual property asset value to the IPA based upon the IPA's competitive advantage contribution relative to substitute and complementary intellectual property assets. If the IPA is associated with multiple products, the IPA's relative competitive advantage contribution to each product is calculated and these contributions are summed to calculate the total value of the IPA. If the IPA is associated with multiple parameters, the IPA's relative competitive advantage contribution for each parameter is calculated and these contributions are summed to calculate the total value of the IPA.</li>
</ol>
<p><b>Georgia Pacific<br /></b>The fifteen factors enumerated in the Georgia Pacific case, several of which repeat approaches discussed above, are used in royalty rate determination:<a href="#_ftn123" name="_ftnref123"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[122]</span></span></span></a></p>
<ul>
</ul>
<ol>
<li style="text-align: justify; "><span> </span>The royalties received by the patentee for the licensing of the patent in suit, proving or tending to prove an established royalty.</li>
<li style="text-align: justify; "><span> </span>The rates paid by the licensee for the use of other patents comparable to the patent in suit.</li>
<li style="text-align: justify; "><span> </span>The nature and scope of the license, as exclusive or non-exclusive; or as restricted or non-restricted in terms of territory or with respect to whom the manufactured product may be sold.</li>
<li style="text-align: justify; "><span> </span>The licensor’s established policy and marketing program to maintain its patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly.</li>
<li style="text-align: justify; "><span> </span>The commercial relationship between the licensor and licensee, such as, whether they are competitors in the same territory in the same line of business; or whether they are inventor and promoter.</li>
<li style="text-align: justify; "><span> </span>The effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of its non-patented items; and the extent of such derivative or convoyed sales.</li>
<li style="text-align: justify; "><span> </span>The duration of the patent and the term of the license.</li>
<li style="text-align: justify; "><span> </span>The established profitability of the product made under the patent; its commercial success; and its current popularity.</li>
<li style="text-align: justify; "><span> </span> The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results.</li>
<li style="text-align: justify; "><span> </span>The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefits to those who have used the invention.</li>
<li style="text-align: justify; "><span> </span>The extent to which the infringer has made use of the invention; and any evidence probative of the value of that use.</li>
<li style="text-align: justify; "><span> </span>The portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or analogous inventions.</li>
<li style="text-align: justify; "><span> </span>The portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer.</li>
<li style="text-align: justify; "><span> </span>The opinion testimony of qualified experts.</li>
</ol>
<ul>
</ul>
<p class="MsoNormal" style="text-align:justify; "><span> </span>The amount that a licensor (such as the patentee) and a licensee (such as the infringer) would have agreed upon (at the time the infringement began) if both had been reasonably and voluntarily trying to reach an agreement; that is, the amount which a prudent licensee-which desired, as a business proposition, to obtain a license to manufacture and sell a particular article embodying the patented invention-would have been willing to pay as a royalty and yet be able to make a reasonable profit and which amount would have been acceptable by a prudent patentee who was willing to grant a license.</p>
<p class="MsoNormal" style="text-align:justify; ">Academics have prescribed modification to the approach towards these factors analyzing that the relevant questions in calculating a reasonable royalty fall into four basic categories: (1) whether the patentee in fact produces a product in the market; (2) the contribution made by the patented technology compared to the next best alternative; (3) the number and importance of other inputs necessary to make that technology work; and (4) evidence of how the market has actually valued the patent, to the extent it differs from the outcome of (1), (2), and (3).<a href="#_ftn124" name="_ftnref124"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[123]</span></span></span></a></p>
<h2><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>V. Patent Pool Examples<br /></span></span></span></h2>
<p class="MsoNormal" style="text-align:justify; ">The following discussion highlights certain aspects of patent pools from real world examples. These examples are restricted to the technological field. Study of these aspects is of value in understanding the concepts discussed hereinbefore.</p>
<h3 class="MsoNormal" style="text-align: justify; ">A. Manufacturers Aircraft Association (MAA)</h3>
<p class="MsoNormal" style="text-align:justify; ">The MAA was formed in 1917 in U.S.</p>
<p class="MsoNormal" style="text-align:justify; ">Apart from the “foundational” patents of Glenn Curtiss and the Wright Brothers, which had substantial royalty rates, most licensing was conducted on a royalty-free basis, with mutual forbearance from infringement suits as the real payment for the exchange.<a href="#_ftn125" name="_ftnref125"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[124]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><span>The MAA was open to anyone who wished to use the Wright-Curtiss designs for a $1000 initiation fee and a licensing fee of $200 per aircraft built; these funds were to be distributed primarily between the Wright and Curtiss interests until each received a sum of $2,000,000 or their key patents expired.<a href="#_ftn126" name="_ftnref126"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[125]</span></span></span></a> </span>MAA retained $ 25 (12.5%) to cover its administrative expenses, $ 135 (67.5%) was paid to the Wright-Martin Aircraft Corporation and $ 40 (20%) was paid to the Curtiss-Burgess Airplane & Motor Corporation.<a href="#_ftn127" name="_ftnref127"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[126]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">Patents added to the pool after its formation were divided into two classes- normal patents were licensed into the pool for all to use, with no special royalty payout going to the inventor or firm; exceptional patents earned ongoing royalties, in an amount determined by a formal arbitration procedure.<a href="#_ftn128" name="_ftnref128"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[127]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><span>The MAA also included a grant-back provision that applied to after-acquired patents.<a href="#_ftn129" name="_ftnref129"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[128]</span></span></span></a></span></p>
<p class="MsoNormal" style="text-align:justify; ">MAA’s members could license their patents to non-members if the terms were no more favorable than to members and any MAA member could withdraw at any time, but its patents in the pool at the time of withdrawal would remain.<a href="#_ftn130" name="_ftnref130"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[129]</span></span></span></a></p>
<h3><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>B. Moving Picture Experts Group (MPEG)</span></span></span></h3>
<p class="MsoNormal" style="text-align:justify; ">MPEG technology allows for transmission and storage of digital video and audio signals.<span> It was formed by the Trustees of Columbia University, Fujitsu Limited, General Instrument Corp., Lucent Technologies Inc., Matsushita Electric Industrial Co., Ltd., Mitsubishi Electric Corp., Philips Electronics N.C., Scientific Atlanta, Inc., and Sony Corp. in 1997. The patent pool for the MPEG-2 standard is administered by a common license administrator- MPEG-LA</span></p>
<p class="MsoNormal" style="text-align:justify; "><span>MPEG-LA is required to grant licenses to any potential licensees, without discrimination and at a reasonable royalty rate.</span></p>
<p class="MsoNormal" style="text-align:justify; ">MPEG LA offers a portfolio of MPEG-2 systems licenses with a fixed royalty for each licensed mobile MPEG-2 systems signal receiver and a different fixed royalty for all other MPEG-2 systems devices.<a href="#_ftn131" name="_ftnref131"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[130]</span></span></span></a> Additional patents, not included in the portfolio, are available for specific implementations.<a href="#_ftn132" name="_ftnref132"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[131]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">The pool offers a standardized five-year license to all prospective licensees.<a href="#_ftn133" name="_ftnref133"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[132]</span></span></span></a> The licensing royalties do not change if patents are added to the portfolio during the five-year licensing period, although the royalty rate may increase by up to 25% in a license renewal.<a href="#_ftn134" name="_ftnref134"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[133]</span></span></span></a> Each patent in the pool is valued equally.<a href="#_ftn135" name="_ftnref135"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[134]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><span>The license has a grant-back provision that requires the licensee to grant to the licensor and other portfolio licensees a nonexclusive license, under fair and reasonable terms and conditions, on any essential patent that the licensee has a right to license.<a href="#_ftn136" name="_ftnref136"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[135]</span></span></span></a> </span></p>
<p class="MsoNormal" style="text-align:justify; ">There exists a partial termination right given to licensors, who may request that MPEG-LA terminate the license of that licensor’s IPR to a particular licensee, if that licensee has sued the licensor for infringement of an MPEG-2 essential or “related” patent or refused to license a related patent on fair and reasonable terms.<a href="#_ftn137" name="_ftnref137"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[136]</span></span></span></a></p>
<h3 class="MsoNormal" style="text-align: justify; ">C. DVD</h3>
<p class="MsoNormal" style="text-align:justify; ">Sony, Philips and Pioneer organized the DVD3C patent pool in 1998 <span>for the licensing of patents that are “essential” to comply with the DVD-Video or DVD-ROM standard specifications.</span></p>
<p class="MsoNormal" style="text-align:justify; ">Royalty payments are allocated under guidelines set by the Ground Rules for Royalty</p>
<p class="MsoNormal" style="text-align:justify; ">Allocation rather than on subjective analysis by an expert.<a href="#_ftn138" name="_ftnref138"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[137]</span></span></span></a> The royalty rate in standard licenses is not related to fluctuations in the market price of a licensed product; also, the royalty rate is not computed on a per-patent basis and does not fluctuate as patents are added or removed, therefore, the same royalty rate is payable when using one essential patent as when using several.<a href="#_ftn139" name="_ftnref139"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[138]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; "><span>Hitachi</span><span>, Matsushita, Mitsubishi, Time Warner, Toshiba, and Victor organized the DVD6C patent pool in 1999 again for the licensing of patents that are “essential” to comply with the DVD-Video or DVD-ROM standard specifications.</span></p>
<p class="MsoNormal" style="text-align:justify; ">The DVD6C pool is also governed by the “Ground Rules for Royalty Allocation” guidelines.<a href="#_ftn140" name="_ftnref140"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[139]</span></span></span></a> The royalties are 4% of the net selling price of the product or U.S. $4.00 per product, whichever is higher. Royalties for DVD decoders are 4% of the net selling price of the product or U.S. $1.00 per product, whichever is higher.<a href="#_ftn141" name="_ftnref141"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[140]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">The DVD6C agreement contains a grant-back clause, which, requires licensees to grant each of the licensing companies of DVD6C (and their licensees) a non-exclusive license on fair, reasonable and non-discriminatory terms to use any of their patents that are deemed essential for the manufacture, use or sale of DVD Products; this grantback is restricted only to those DVD products actually licensed to the licensee.<a href="#_ftn142" name="_ftnref142"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[141]</span></span></span></a></p>
<h3 class="MsoNormal" style="text-align: justify; ">D. 3G Mobile Telephony</h3>
<p class="MsoNormal" style="text-align: justify; ">The 3G Patent Platform Partnership was formed in 1999. The purpose of the 3G Patent Platform Partnership is to allow for “fair, reasonable, and nondiscriminatory” access to rights essential for implementing the W-CDMA 3GPP standard.<a href="#_ftn143" name="_ftnref143"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[142]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">There are three form contracts associated with the Platform: the Framework Agreement, the Standard License, and the Interim License.<a href="#_ftn144" name="_ftnref144"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[143]</span></span></span></a> The Framework Agreement gives each member the choice either to license its essential patents according to the Standard License or to negotiate terms directly with a licensee.<a href="#_ftn145" name="_ftnref145"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[144]</span></span></span></a> The Standard License prescribes standardized royalties for licenses, to be determined by an independent commission.<a href="#_ftn146" name="_ftnref146"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[145]</span></span></span></a> If the patent owner foregoes the Standard License and fails to come to terms in bilateral negotiations, the Interim License comes into effect which has the same royalty terms as the Standard License.<a href="#_ftn147" name="_ftnref147"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[146]</span></span></span></a></p>
<h3 class="WordSection1">E. Bluetooth Special Interest Group (SIG)</h3>
<p class="MsoNormal" style="text-align:justify; ">The Bluetooth SIG was formed in 1997 to provide a technology for interconnection of mobile phones, computers, laptops, printers, PDAs, and other devices via a short-range radio frequency band; SIG oversees the development of Bluetooth standards and its licensing.<a href="#_ftn148" name="_ftnref148"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[147]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">SIG’s member companies are divided into three different classes- (1) promoter company, which are intensely engaged in the strategic and technical development of Bluetooth wireless technology; they include Agere, Ericsson, Intel, Lenovo, Microsoft, Motorola, Nokia, and</p>
<p class="MsoNormal" style="text-align:justify; ">Toshiba; (2) associate members, who are licensed to use Bluetooth specifications and trademarks; (3) adopted members, which use published specifications and trademarks, but do not influence the specification process, nor do they have early access to unpublished specifications.<a href="#_ftn149" name="_ftnref149"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[148]</span></span></span></a></p>
<p class="MsoNormal" style="text-align:justify; ">SIG licenses to member companies on a royalty-free basis, but, associate members pay an annual fee based on their company’s annual revenue, with “small” associates (less than $100 million USD/year) paying $7,500 USD/year and “large” associates (more than $100 million USD/year) paying $35,000 USD/year; adopted members are not required to pay an annual fee.<a href="#_ftn150" name="_ftnref150"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[149]</span></span></span></a></p>
<h2><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>VI. Conclusion<br /></span></span></span></h2>
<p class="MsoNormal" style="text-align:justify; ">As is evident, patent valuation and license fee determination are extremely subjective and case based. Moreover, their dynamics alter according to the situation, as in the context of patent pools. This dynamism is furthered by the fact that there are no strict or universal formulas or procedures which can be applied in such determinations. Furthermore, such determinations cannot be made in a vacuum but are subject to the cascading effect of a multitude of factors comprised of the holistic technological environment that may not be just restricted to the innovation in question.</p>
<div>
<hr align="left" size="1" width="100%" />
<div id="ftn2">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref2" name="_ftn2"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[1]</span></span></span></span></a><span> Krista L. Cox, The Medicines Patent Pool: Promoting Access and Innovation for Life-Saving Medicines Through Voluntary Licenses 4 Hastings Sci. & Tech. L.J. 293 (Summer, 2012) citing <i>IGWG Briefing Paper on Patent Pools: Collective Management of Intellectual Property--The Use of Patent Pools to Expand Access to Essential Medical Technologies</i>, Knowledge Ecology International, (June 3, 2007) quoting Robert P. Merges, Institutions for Intellectual Property Transactions: The Case of Patent Pools, in Expanding the Boundaries of Intellectual Property, Innovation Policy for the Knowledge Society 123 (Rochelle Cooper Dreyfuss et al. eds., 2001).</span></p>
</div>
<div id="ftn3">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref3" name="_ftn3"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[2]</span></span></span></span></a><span> Jer Rutton Kavasmaneck v Gharda Chemicals Ltd. and Ors. (Suit No.2932 of 2011; Decided On: 20.03.2012) Bombay H.C. (Intellectual Property Rights (IPRs) including the patent right is valuable right for all the commercial purposes. These intangible assets play important role in any financial assessment of the trade/commercial or the market. It changes from time to time, market to market, person to person based upon the situations. If valuation is always a complex and flexible issue and a matter of discussion and debate in business strategies. The patent valuation involves many described and undescribed elements).</span></p>
</div>
<div id="ftn4">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref4" name="_ftn4"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[3]</span></span></span></span></a><span>Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations 84 Calif. L. Rev. 1293 (October 1996) citing Standard Oil Co. v. United States, 283 U.S. 163, 171 (1931). </span></p>
</div>
<div id="ftn5">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref5" name="_ftn5"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[4]</span></span></span></span></a><span> Michael S. Kramer, Valuation and Assessment of Patents and Patent Portfolios Through Analytical Techniques 6 J. Marshall Rev. Intell. Prop. L. 463 (Spring, 2007). </span></p>
</div>
<div id="ftn6">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref6" name="_ftn6"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[5]</span></span></span></span></a><span> Richard J. Gilbert, Ties That Bind: Policies to Promote (Good) Patent Pools 77 Antitrust L.J. 1 (2010) MPEG LA Business Review Letter from Joel I. Klein, Ass’t Att’y Gen., U.S. Dep’t of Justice, to Garrard R. Beeney, Esq., Sullivan & Cromwell LLP (June 26, 1997), available at http://www.usdoj.gov/atr/public/busreview/215742.pdf; MPEG LA, MPEG-2 Patent Portfolio License Briefing (Aug. 4, 2010).</span></p>
</div>
<div id="ftn7">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref7" name="_ftn7"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[6]</span></span></span></span></a><span> See Kramer, <i>supra</i> n.4 at 463 (essential patents of technical standards are more valuable, on average, than the general population of patents).</span></p>
</div>
<div id="ftn8">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref8" name="_ftn8"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[7]</span></span></span></span></a><span> Gilbert, <i>supra</i> n.5.</span></p>
</div>
<div id="ftn9">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref9" name="_ftn9"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[8]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn10">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref10" name="_ftn10"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[9]</span></span></span></span></a><span> <i>Id.</i> </span></p>
</div>
<div id="ftn11">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref11" name="_ftn11"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[10]</span></span></span></span></a><span> <i>Id.</i>citing DVD 3C Business Review Letter from Joel I. Klein, Ass't Att'y Gen., U.S. Dep't of Justice, to Garrard R. Beeney, Esq., Sullivan & Cromwell LLP (Dec. 16, 1998), available at http://www.usdoj.gov/atr/public/busreview/2121.pdf.</span></p>
</div>
<div id="ftn12">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref12" name="_ftn12"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[11]</span></span></span></span></a><span>R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009). </span></p>
</div>
<div id="ftn13">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref13" name="_ftn13"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[12]</span></span></span></span></a><span> Daniel Lin, Research versus Development: Patent Pooling, Innovation And Standardization In The Software Industry 1 J. Marshall Rev. Intell. Prop. L. 274 (2002).</span></p>
</div>
<div id="ftn14">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref14" name="_ftn14"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[13]</span></span></span></span></a><span> Steven C. Carlson, Patent Pools and the Antitrust Dilemma 16 Yale J. on Reg. 359 (Summer, 1999).</span></p>
</div>
<div id="ftn15">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref15" name="_ftn15"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[14]</span></span></span></span></a><span> <i>Id.</i> </span></p>
</div>
<div id="ftn16">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref16" name="_ftn16"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[15]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn17">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref17" name="_ftn17"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[16]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn18">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref18" name="_ftn18"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[17]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn19">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref19" name="_ftn19"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[18]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn20">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref20" name="_ftn20"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[19]</span></span></span></span></a><span> <i>Id.</i> </span></p>
</div>
<div id="ftn21">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref21" name="_ftn21"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[20]</span></span></span></span></a><span> Michael A. Sanzo, Antitrust Law And Patent Misconduct In The Proprietary Drug Industry 39 Vill. L. Rev. 1209 (1994). </span></p>
</div>
<div id="ftn22">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref22" name="_ftn22"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[21]</span></span></span></span></a><span> Gilbert, <i>supra</i> n.5. </span></p>
</div>
<div id="ftn23">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref23" name="_ftn23"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[22]</span></span></span></span></a><span> Carlson, <i>supra</i> n.13. </span></p>
</div>
<div id="ftn24">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref24" name="_ftn24"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[23]</span></span></span></span></a><span> Philip B. Nelson, Patent Pools: An Economic Assessment Of Current Law And Policy 38 Rutgers L. J. 539 (Winter, 2007). </span></p>
</div>
<div id="ftn25">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref25" name="_ftn25"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[24]</span></span></span></span></a><span> Gilbert, <i>supra</i> n.5.</span></p>
</div>
<div id="ftn26">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref26" name="_ftn26"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[25]</span></span></span></span></a><span> <i>Id.</i> </span></p>
</div>
<div id="ftn27">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref27" name="_ftn27"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[26]</span></span></span></span></a><span> Carlson, <i>supra</i> n.13.</span></p>
</div>
<div id="ftn28">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref28" name="_ftn28"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[27]</span></span></span></span></a><span> Gilbert, <i>supra</i> n.5.</span></p>
</div>
<div id="ftn29">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref29" name="_ftn29"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[28]</span></span></span></span></a><span> Nelson, <i>supra</i> n.23.</span></p>
</div>
<div id="ftn30">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref30" name="_ftn30"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[29]</span></span></span></span></a><span> David S. Taylor, The Sinking Of The United States Electronics Industry Within Japanese Patent Pools 26 GW J. Int'l L. & Econ. 181 (1992). </span></p>
</div>
<div id="ftn31">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref31" name="_ftn31"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[30]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn32">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref32" name="_ftn32"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[31]</span></span></span></span></a><span> Michael J. Meurer, Business Method Patents and Patent Floods 8 Wash. U. J.L. & Pol'y 309 (2002).</span></p>
</div>
<div id="ftn33">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref33" name="_ftn33"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[32]</span></span></span></span></a><span> Mark A. Lemley & Carl Shapiro, Frontiers of Intellectual Property: Patent Holdup and Royalty Stacking 85 Tex. L. Rev. 1991 (June, 2007). </span></p>
</div>
<div id="ftn34">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref34" name="_ftn34"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[33]</span></span></span></span></a><span> Meurer, <i>supra</i> n.31 (A patent flood occurs when many inventors apply for patents on similar inventions during an interval of a few years).</span></p>
</div>
<div id="ftn35">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref35" name="_ftn35"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[34]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn36">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref36" name="_ftn36"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[35]</span></span></span></span></a><span> Robert P. Greenspoon and Catherine M. Cottle, Don't Assume A Can Opener: Confronting Patent Economic Theories With Licensing And Enforcement Reality 12 Colum. Sci. & Tech. L. Rev. 194 (2011). </span></p>
</div>
<div id="ftn37">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref37" name="_ftn37"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[36]</span></span></span></span></a><span> Meurer, <i>supra</i> n.31. </span></p>
</div>
<div id="ftn38">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref38" name="_ftn38"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[37]</span></span></span></span></a><span> Gilbert <i>supra</i> n.5 citing the cross-licensing arrangement between the Singer Manufacturing Company and Gegauf, contained provisions by which each of the parties agreed not to bring any infringement action against the other. United States v. Singer Mfg. Co., 374 U.S. 174, 178 (1963).</span></p>
</div>
<div id="ftn39">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref39" name="_ftn39"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[38]</span></span></span></span></a><span> Gilbert <i>supra</i> n.5.</span></p>
</div>
<div id="ftn40">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref40" name="_ftn40"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[39]</span></span></span></span></a><span> Kramer, <i>supra</i> n.4. </span></p>
</div>
<div id="ftn41">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref41" name="_ftn41"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[40]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn42">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref42" name="_ftn42"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[41]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn43">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref43" name="_ftn43"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[42]</span></span></span></span></a><span> Jorge L. Contreras, Standards, Patents, and the National Smart Grid 32 Pace L. Rev. 641 (Summer Issue, 2012). </span></p>
</div>
<div id="ftn44">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref44" name="_ftn44"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[43]</span></span></span></span></a><span> Gilbert, <i>supra</i> n.5 (To the extent that a patent pool successfully lowers total royalties relative to independent licensing, this leaves ‘headroom’ available for an independent licensor outside the pool to charge a high royalty for its patent).</span></p>
</div>
<div id="ftn45">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref45" name="_ftn45"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[44]</span></span></span></span></a><span> <i>Id.</i><i> </i>citing Multimedia Patent Trust v. Microsoft Corp., et al., 525 F. Supp. 2d 1200 (S.D. Cal. 2007). </span></p>
</div>
<div id="ftn46">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref46" name="_ftn46"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[45]</span></span></span></span></a><span> Chase A. Marshall, A Comparative Analysis: Current Solutions To The Anticommons Threat 12 J. High Tech. L. 487 (2012); Damien Geradin and Anne Layne-Farrar, Patent Value Apportionment Rules for Complex, Multi-Patent Products 27 Santa Clara Computer & High Tech. L.J. 763 (2010 / 2011) (the typical semiconductor chip likely involves hundreds, perhaps more, patents. In turn, that chip may be intended for use in a laptop computer, the other components of which involve hundreds, or more, patents. Without knowing how many patents actually read on a product, and how many have holders who will actively seek licensing fees, it can be exceedingly difficult to assign the contributed value to those that are known). </span></p>
</div>
<div id="ftn47">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref47" name="_ftn47"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[46]</span></span></span></span></a><span> Gideon Parchomovsky and R. Polk Wagner, Patent Portfolios 154 U. Pa. L. Rev. 1 (November, 2005); Elizabeth M. Bailey, Gregory K. Leonard and Mario A. Lopez, Making Sense Of “Apportionment” In Patent Damages 12 Colum. Sci. & Tech. L. Rev. 255 (2011) (combining patented technologies typically creates value that is greater than the sum of the parts. For example, patent pools often bring together various technologies that are necessary to create the product in question. The stand-alone value of any one patent in the pool may be low or close to zero unless combined with the other patents in the pool). </span></p>
</div>
<div id="ftn48">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref48" name="_ftn48"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[47]</span></span></span></span></a><span> Parchomovsky and Wagner, <i>supra</i> n.46.</span></p>
</div>
<div id="ftn49">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref49" name="_ftn49"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[48]</span></span></span></span></a><span> <i>Id.</i> </span></p>
</div>
<div id="ftn50">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref50" name="_ftn50"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[49]</span></span></span></span></a><span> <i>Id.</i> </span></p>
</div>
<div id="ftn51">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref51" name="_ftn51"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[50]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn52">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref52" name="_ftn52"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[51]</span></span></span></span></a><span> Scott Iyama, The USPTO's Proposal of a Biological Research Tool Patent Pool Doesn't Hold Water 57 Stan. L. Rev. 1223 (March, 2005). </span></p>
</div>
<div id="ftn53">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref53" name="_ftn53"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[52]</span></span></span></span></a><span> Bradley J. Levang, Evaluating the Use of Patent Pools For Biotechnology: A Refutation to the USPTO White Paper Concerning Biotechnology Patent Pools 19 Santa Clara Computer & High Tech. L.J. 229 (December, 2002). </span></p>
</div>
<div id="ftn54">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref54" name="_ftn54"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[53]</span></span></span></span></a><span> Courtney C. Scala, Making the Jump From Gene Pools to Patent Pools: How Patent Pools Can Facilitate the Development of Pharmacogenomics 41 Conn. L. Rev. 1631 (July, 2009). </span></p>
</div>
<div id="ftn55">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref55" name="_ftn55"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[54]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn56">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref56" name="_ftn56"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[55]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn57">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref57" name="_ftn57"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[56]</span></span></span></span></a><span> R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009) citing DVD-6 Business Review Letter from Joel I. Klein, Assistant Attorney General, to Carey R. Ramos, Esq., of Paul, Weiss, Rifkind, Wharton & Garrison (June 10, 1999), available at http://www.usdoj.gov/atr/public/busreview/2485.htm.</span></p>
</div>
<div id="ftn58">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref58" name="_ftn58"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[57]</span></span></span></span></a><span> Alexander Lee, Examining the Viability of Patent Pools for the Growing Nanotechnology Patent Thicket, 3 Nanotechnology L. & Bus. 317 (2006) suggests that to determine the viability of using a patent pool in a market, companies should ponder the following list of nine criteria: (1) product development driven by standards; (2) moderate fragmentation of patent landscape; (3) at least five pool members; (4) each member working on specific subcomponent of a product; (5) willingness of patent holders to negotiate; (6) commitment by members to create the pool; (7) an industry that is in the later stages of product development; (8) certainty of patent ownership; and (9) a patent pool clear of potential antitrust violations.</span></p>
</div>
<div id="ftn59">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref59" name="_ftn59"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[58]</span></span></span></span></a><span> See Gilbert, <i>supra</i> n.5 discussing the Manufacturers Aircraft Association, where the U.S. government used the threat of compulsory licensing to compel the pioneers of the aircraft industry to form a patent pool in 1917. The industry was enmeshed in litigation over the scope and validity of patents, and some patentees, particularly the Wright-Martin Company, were demanding royalties that the government and other aircraft manufacturers deemed excessive. Creation of the Manufacturers Aircraft Association patent pool resolved the litigation chaos. The government negotiated a portfolio license from the pool with a royalty of $ 200 per aircraft, which was a fraction of the royalty that Wright-Martin was demanding for a single patent ($ 1,000 per aircraft). </span></p>
</div>
<div id="ftn60">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref60" name="_ftn60"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[59]</span></span></span></span></a><span> See Carlson, <i>supra</i> n.13 discussing that pool agreements are frequently employed as a means of settling existing litigation, and citing examples including patent pools in the laser eye surgery, and the public key encryption industries;</span></p>
<p class="MsoNormal" style="text-align:justify; "><span>also see Lemley & Shapiro, Frontiers of Intellectual Property, <i>supra</i> n.32 discussing that the average royalty rate granted in all reasonable-royalty cases is 13.13% of the price of the infringing product, which is much higher than that of patent licenses negotiated without litigation.</span></p>
</div>
<div id="ftn61">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref61" name="_ftn61"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[60]</span></span></span></span></a><span> See Greenspoon and Cottle, <i>supra</i> n.35 discussing the value of patents as a form of currency that can be used to further goals unrelated to market creation or entry. Such goals can be to improve a firm's competitive position when trying to acquire start-up funds, to improve negotiating terms when licensing other patents, and to reduce the chance of paying excessive royalties to external patent owners;</span></p>
<p class="MsoNormal" style="text-align:justify; "><span>also see, Gilbert, <i>supra</i> n.5 discussing how different business strategies can cause firms to pool their patents with some firms, but not with others, citing the example of emergence of two pools to license DVD patents as a consequence of differing approaches to industry standards. One explanation offered for the existence of two separate pools is that the two groups could not reach an accord about their respective shares of joint royalty payments. </span></p>
</div>
<div id="ftn62">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref62" name="_ftn62"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[61]</span></span></span></span></a><span> See Gilbert, <i>supra</i> n.5 discussing how some pools license their patents royalty-free or at royalties that are deliberately held below profit-maximizing levels in an effort to promote adoption of new technologies covered by their patents, citing the example of the Bluetooth Special Interest Group and the Multimedia Home Platform. The article also discusses patent pools formed to license patents that are necessary to implement a defined standard, such as MPEG encoding, DVDs, or mobile telephony. </span></p>
</div>
<div id="ftn63">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref63" name="_ftn63"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[62]</span></span></span></span></a><span> See Gilbert, <i>supra</i> n.5 discussing pools that limit royalties to promote social objectives rather than to profit from new products citing examples of companies, universities, and research organizations such as Syngenta- an agricultural technology company, the Public Intellectual Property Resource for Agriculture, the SARS IP Working Group, and the UNITAID pool for AIDS medications.</span></p>
</div>
<div id="ftn64">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref64" name="_ftn64"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[63]</span></span></span></span></a><span> Yuichi Watanabe, Patent Licensing And The Emergence Of A New Patent Market 9 Hous. Bus. & Tax L.J. 445 (2009) (The current state of affairs shows that the patent licensing market strongly favors larger corporations over smaller ones, enabling the larger corporations to reap much of the market opportunities and benefits while limiting them to smaller patentees).</span></p>
</div>
<div id="ftn65">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref65" name="_ftn65"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[64]</span></span></span></span></a><span> Roger B. Andewelt, Practical Problems In Counseling And Litigating: Analysis Of Patent Pools Under The Antitrust Laws 53 Antitrust L.J. 611 (October 11, 1984/October 12, 1984) (Pools typically contain restrictions on those who join the pool by contributing patents and/or those who take licenses under the pooled patents).</span></p>
</div>
<div id="ftn66">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref66" name="_ftn66"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[65]</span></span></span></span></a><span>Chase A. Marshall, A Comparative Analysis: Current Solutions To The Anticommons Threat 12 J. High Tech. L. 487 (2012).</span></p>
</div>
<div id="ftn67">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref67" name="_ftn67"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[66]</span></span></span></span></a><span> Ann Weilbaecher, PSY.D., Diseases Endemic in Developing Countries: How to Incentivize Innovation 18 Ann. Health L. 281 (Summer, 2009).</span></p>
</div>
<div id="ftn68">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref68" name="_ftn68"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[67]</span></span></span></span></a><span> Greenspoon and Cottle, <i>supra</i> n.35 identify five general types of entities that license and enforce patents: (1) Individual inventors with a single patent; (2) Individual serial inventors; (3) Non-Practicing Entities; (4) Operating companies who practice inventions acquired from others; and (5) Operating companies who practice inventions developed in-house.</span></p>
</div>
<div id="ftn69">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref69" name="_ftn69"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[68]</span></span></span></span></a><span> See, Raymond Millien and Ron Laurie, A Survey Of Established & Emerging IP Business Models 9 Sedona Conf. J. 77 (2008) discussing various models, viz. Patent Licensing and Enforcement Companies, Institutional IP Aggregators/Acquisition Funds, IP/Technology Development Companies, Licensing Agents, Litigation Finance/Investment Firms, IP Brokers, IP-Based M&A Advisory Firms, IP Auction Houses, On-Line IP/Technology Exchanges, Clearinghouses, Bulletin Boards, and Innovation Portals, IP-Backed Lending, Royalty Stream Securitization Firms, Patent Rating Software and Valuation Services, University Technology Transfer Intermediaries, IP Transaction Exchanges & Trading Platforms/IP Transaction Best Practices Development Communities, Defensive Patent Pools, Funds and Alliances, Technology/IP Spinout Financing, and Patent-Based Public Stock Indexes.</span></p>
</div>
<div id="ftn70">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref70" name="_ftn70"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[69]</span></span></span></span></a><span> Richard J. Gilbert, Deal or No Deal? Licensing Negotiations In Standard-Setting Organizations 77 Antitrust L.J. 855 (2011).</span></p>
</div>
<div id="ftn71">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref71" name="_ftn71"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[70]</span></span></span></span></a><span> Gilbert, <i>supra</i> n.5 </span></p>
</div>
<div id="ftn72">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref72" name="_ftn72"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[71]</span></span></span></span></a><span> Merges, Contracting into Liability Rules, <i>supra</i> n.3. </span></p>
</div>
<div id="ftn73">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref73" name="_ftn73"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[72]</span></span></span></span></a><span> Alan Devlin, Standard-Setting And The Failure Of Price Competition 65 N.Y.U. Ann. Surv. Am. L. 217 (2009) citing Brulotte v. Thys Co., 379 U.S. 29, 33 (1964). </span></p>
</div>
<div id="ftn74">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref74" name="_ftn74"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[73]</span></span></span></span></a><span>Doug Lichtman, Understanding The Rand Commitment 47 Hous. L. Rev. 1023 (2010). </span></p>
</div>
<div id="ftn75">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref75" name="_ftn75"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[74]</span></span></span></span></a><span> Peter N. Detkin, Leveling The Patent Playing Field 6 J. Marshall Rev. Intell. Prop. L. 636 (Summer, 2007). </span></p>
</div>
<div id="ftn76">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref76" name="_ftn76"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[75]</span></span></span></span></a><span> Lee, <i>infra</i> n.57. </span></p>
</div>
<div id="ftn77">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref77" name="_ftn77"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[76]</span></span></span></span></a><span> Kelce Wilson, The Four Phases of Patent Usage 40 Cap. U.L. Rev. 679 (Summer, 2012). </span></p>
</div>
<div id="ftn78">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref78" name="_ftn78"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[77]</span></span></span></span></a><span>Gavin D. George, What is Hiding in the Bushes? eBay's Effect on Holdout Behavior in Patent Thickets, 13 Mich. Telecomm. Tech. L. Rev. 557 (2007). </span></p>
</div>
<div id="ftn79">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref79" name="_ftn79"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[78]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn80">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref80" name="_ftn80"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[79]</span></span></span></span></a><span> <i>Id</i></span></p>
</div>
<div id="ftn81">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref81" name="_ftn81"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[80]</span></span></span></span></a><span>Daniel R. Cahoy and Leland Glenna, Private Ordering and Public Energy Innovation Policy 36 Fla. St. U.L. Rev. 415 (Spring, 2009). </span></p>
</div>
<div id="ftn82">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref82" name="_ftn82"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[81]</span></span></span></span></a><span> Gilbert, <i>supra</i> n.5; See for example, Merges, Contracting into Liability Rules, <i>supra</i> n.3 describing how in the airplane cross-licensing agreement, it provides that a board of arbitrators may decide in any case what reward should be paid to individual patent owners and this is based not upon the official determination of patentability by the Patent Office, but upon the unofficial determination of the importance of the invention by a board of arbitrators.</span></p>
</div>
<div id="ftn83">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref83" name="_ftn83"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[82]</span></span></span></span></a><span> See Andewelt, <i>supra</i> n.64 (The scope and variety of patents included vary considerably from pool to pool. Some pools are limited to patents covering a single commercial device. Others contain numerous and diverse patents relating to different devices in different markets).</span></p>
</div>
<div id="ftn84">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref84" name="_ftn84"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[83]</span></span></span></span></a><span> See, Scala, <i>supra</i> n.53 discussing how the non-exclusive character of a license is particularly important for those firms holding patents whose full utility is unascertainable at the time of the formation of the pool.</span></p>
</div>
<div id="ftn85">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref85" name="_ftn85"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[84]</span></span></span></span></a><span> Dustin R. Szakalski, Progress In The Aircraft Industry And The Role Of Patent Pools And Cross-Licensing Agreements 2011 UCLA J.L. & Tech. 1 (Spring 2011). </span></p>
</div>
<div id="ftn86">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref86" name="_ftn86"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[85]</span></span></span></span></a><span> Ed Levy, et. al, Patent Pools And Genomics: Navigating A Course To Open Science? 16 B.U. J. SCI. & TECH. L. 75 (Winter, 2010). </span></p>
</div>
<div id="ftn87">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref87" name="_ftn87"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[86]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn88">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref88" name="_ftn88"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[87]</span></span></span></a> Ted Hagelin, Technology and Legal Practice Symposium Issue: Valuation of Intellectual Property Assets: An Overview 52 Syracuse L. Rev. 1133 (2002) (The cost method of valuation measures the value of an asset by the cost to replace the asset with an identical or equivalent asset. The assumption underlying the cost method of valuation is that the cost to purchase or develop a new asset is commensurate with the economic value that the asset can provide during its life).</p>
</div>
<div id="ftn89">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref89" name="_ftn89"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[88]</span></span></span></a> <i>Id.</i><i> </i>(The market method values an asset based upon comparable transactions between unrelated parties).</p>
</div>
<div id="ftn90">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref90" name="_ftn90"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[89]</span></span></span></span></a><span> <i>Id.</i> (The income method values an asset based upon the present value of the net economic benefit (net future income stream) expected to be received over the life of the asset).</span></p>
</div>
<div id="ftn91">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref91" name="_ftn91"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[90]</span></span></span></span></a><span> Sannu K. Shrestha, Trolls Or Market-Makers? An Empirical Analysis Of Nonpracticing Entities 110 Colum. L. Rev. 114 (January, 2010). </span></p>
</div>
<div id="ftn92">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref92" name="_ftn92"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[91]</span></span></span></span></a><i><span>Id.</span></i><span> </span></p>
</div>
<div id="ftn93">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref93" name="_ftn93"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[92]</span></span></span></span></a><span>Colleen V. Chien, From Arms Race to Marketplace: The Complex Patent Ecosystem and Its Implications for the Patent System 62 Hastings L.J. 297 (December, 2010). </span></p>
</div>
<div id="ftn94">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref94" name="_ftn94"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[93]</span></span></span></span></a><span> <i>Id.</i> </span></p>
</div>
<div id="ftn95">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref95" name="_ftn95"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[94]</span></span></span></span></a><span>R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009). </span></p>
</div>
<div id="ftn96">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref96" name="_ftn96"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[95]</span></span></span></span></a><span> Geradin and Layne-Farrar, <i>supra</i> n.45. </span></p>
</div>
<div id="ftn97">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref97" name="_ftn97"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[96]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn98">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref98" name="_ftn98"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[97]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn99">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref99" name="_ftn99"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[98]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn100">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref100" name="_ftn100"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[99]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn101">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref101" name="_ftn101"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[100]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn102">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref102" name="_ftn102"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[101]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn103">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref103" name="_ftn103"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[102]</span></span></span></span></a><span> Hagelin, <i>supra</i> n.87; also see, Geradin and Layne-Farrar, <i>supra</i> n.45.</span></p>
</div>
<div id="ftn104">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref104" name="_ftn104"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[103]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn105">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref105" name="_ftn105"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[104]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn106">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref106" name="_ftn106"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[105]</span></span></span></span></a><span> Geradin and Layne-Farrar, <i>supra</i> n.45. </span></p>
</div>
<div id="ftn107">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref107" name="_ftn107"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[106]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn108">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref108" name="_ftn108"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[107]</span></span></span></span></a><span> Hagelin, <i>supra</i> n.87; also see, Geradin and Layne-Farrar, <i>supra</i> n.45.</span></p>
</div>
<div id="ftn109">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref109" name="_ftn109"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[108]</span></span></span></span></a><span> Geradin and Layne-Farrar, <i>supra</i> n.45. </span></p>
</div>
<div id="ftn110">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref110" name="_ftn110"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[109]</span></span></span></span></a><span> Malcolm T. "Ty" Meeks & Charles A. Eldering, PhD, Patent Valuation: Aren’t We Forgetting Something? Making the Case for Claims Analysis in Patent Valuation by Proposing a Patent Valuation Method and a Patent-Specific Discount Rate Using the CAPM 9 Nw. J. Tech. & Intell. Prop. 194 (Fall, 2010).</span></p>
</div>
<div id="ftn111">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref111" name="_ftn111"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[110]</span></span></span></span></a><span> Hagelin, <i>supra</i> n.87.</span></p>
</div>
<div id="ftn112">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref112" name="_ftn112"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[111]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn113">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref113" name="_ftn113"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[112]</span></span></span></span></a><span> Geradin and Layne-Farrar, <i>supra</i> n.45. </span></p>
</div>
<div id="ftn114">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref114" name="_ftn114"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[113]</span></span></span></span></a><span> Hagelin, <i>supra</i> n.87.</span></p>
</div>
<div id="ftn115">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref115" name="_ftn115"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[114]</span></span></span></span></a><span> <i>Id.</i>; Meeks & Eldering, <i>supra</i> n.109.</span></p>
</div>
<div id="ftn116">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref116" name="_ftn116"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[115]</span></span></span></span></a><span> Hagelin, <i>supra</i> n.87. </span></p>
</div>
<div id="ftn117">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref117" name="_ftn117"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[116]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn118">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref118" name="_ftn118"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[117]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn119">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref119" name="_ftn119"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[118]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn120">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref120" name="_ftn120"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[119]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn121">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref121" name="_ftn121"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[120]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn122">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref122" name="_ftn122"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[121]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn123">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref123" name="_ftn123"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[122]</span></span></span></span></a><span> Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970). </span></p>
</div>
<div id="ftn124">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref124" name="_ftn124"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[123]</span></span></span></span></a><span> Daralyn J. Durie and Mark A. Lemley, A Structured Approach To Calculating Reasonable Royalties 14 Lewis & Clark L. Rev. 627 (Summer, 2010). </span></p>
</div>
<div id="ftn125">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref125" name="_ftn125"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[124]</span></span></span></a> Merges, Contracting into Liability Rules, <i>supra</i> n.3.</p>
</div>
<div id="ftn126">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref126" name="_ftn126"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[125]</span></span></span></a> Michael Mattioli, Communities Of Innovation 106 Nw. U.L. Rev. 103 (Winter, 2012).</p>
</div>
<div id="ftn127">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref127" name="_ftn127"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[126]</span></span></span></a> Szakalski, <i>supra</i> n.84.</p>
</div>
<div id="ftn128">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref128" name="_ftn128"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[127]</span></span></span></a> Merges, Contracting into Liability Rules, <i>supra</i> n.3.</p>
</div>
<div id="ftn129">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref129" name="_ftn129"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[128]</span></span></span></a> Mattioli, <i>supra</i> n.125.</p>
</div>
<div id="ftn130">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref130" name="_ftn130"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[129]</span></span></span></a> Szakalski, <i>supra</i> n.84.</p>
</div>
<div id="ftn131">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref131" name="_ftn131"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[130]</span></span></span></a> Gilbert, <i>supra</i> n.5.</p>
</div>
<div id="ftn132">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref132" name="_ftn132"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[131]</span></span></span></a> Carlson, <i>supra</i> n.13.</p>
</div>
<div id="ftn133">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref133" name="_ftn133"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[132]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn134">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref134" name="_ftn134"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[133]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn135">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref135" name="_ftn135"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[134]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn136">
<p class="MsoFootnoteText"><a href="#_ftnref136" name="_ftn136"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[135]</span></span></span></a> Lin, <i>supra</i> n.12.</p>
</div>
<div id="ftn137">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref137" name="_ftn137"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[136]</span></span></span></a> Dorothy Gill Raymond, Benefits and Risks Of Patent Pooling For Standard-Setting Organizations 16 Antitrust ABA 41 (Summer, 2002).</p>
</div>
<div id="ftn138">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref138" name="_ftn138"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[137]</span></span></span></span></a><span> David Serafino, Survey of Patent Pools Demonstrates Variety of Purposes and Management Structures, KEI Research Note 2007:6, Knowledge Ecology International, 4 June 2007.</span></p>
</div>
<div id="ftn139">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref139" name="_ftn139"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[138]</span></span></span></span></a><span> <i>Id.</i> </span></p>
</div>
<div id="ftn140">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref140" name="_ftn140"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[139]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn141">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref141" name="_ftn141"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[140]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn142">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref142" name="_ftn142"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[141]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn143">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref143" name="_ftn143"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[142]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn144">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref144" name="_ftn144"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[143]</span></span></span></a> Michael R. Franzinger, Latent Dangers in a Patent Pool: The European Commission's Approval of the 3G Wireless Technology Licensing Agreements 91 Calif. L. Rev. 1693 (December, 2003).</p>
</div>
<div id="ftn145">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref145" name="_ftn145"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[144]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn146">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref146" name="_ftn146"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[145]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn147">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref147" name="_ftn147"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[146]</span></span></span></span></a><span> <i>Id.</i></span></p>
</div>
<div id="ftn148">
<p class="MsoNormal" style="text-align:justify; "><a href="#_ftnref148" name="_ftn148"><span class="MsoFootnoteReference"><span><span class="MsoFootnoteReference"><span>[147]</span></span></span></span></a><span> David Serafino, Survey of Patent Pools Demonstrates Variety of Purposes and Management Structures, KEI Research Note 2007:6, Knowledge Ecology International, 4 June 2007.</span></p>
</div>
<div id="ftn149">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref149" name="_ftn149"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[148]</span></span></span></a> <i>Id.</i></p>
</div>
<div id="ftn150">
<p class="MsoFootnoteText" style="text-align:justify; "><a href="#_ftnref150" name="_ftn150"><span class="MsoFootnoteReference"><span class="MsoFootnoteReference"><span>[149]</span></span></span></a> <i>Id.</i></p>
</div>
</div>
<p>
For more details visit <a href='https://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools'>https://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools</a>
</p>
No publishervikrantFeaturedPatentsAccess to KnowledgePervasive Technologies2014-07-09T09:46:16ZBlog Entry