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Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response
http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions
<b>The procedure and tests surrounding software patenting in India have remained ambiguous since the Parliament introduced the term “per se” through the Patent (Amendment) Act, 2002. In 2013, the Indian Patent Office released Draft Guidelines for the Examination of Computer Related Inventions, in an effort to clarify some of the ambiguity. Through this post, CIS intern, Shashank Singh, analyses the various responses by the stakeholders to these Guidelines and highlights the various issues put forth in the responses. </b>
<p style="text-align: justify; "><b> I. </b> <b>Introduction </b></p>
<p style="text-align: justify; ">In June, 2013 the Office of Controller General of Patents, Designs and Trademarks ('IPO'), released the <a href="http://ipindia.nic.in/iponew/draft_Guidelines_CRIs_28June2013.pdf">Draft Guidelines for Examination of Computer Related Inventions</a> ('Guidelines'). The aim of the Guidelines was to provide some much needed clarity around patentability of Computer Related Inventions ('CRI'). The Guidelines discuss the procedure to be adopted by the examiners while examining CRI patent applications. In response to the Guidelines, several stakeholders submitted their comments to either accept, reject or modify the interpretation provided by the IPO. Most of the comments circled around the phraseology of Section 3(k), Patents Act, 1970 ('Act'). In its current form, Section 3(k) reads as "a mathematical or business method or a computer programme per se or algorithms", and comes under Chapter III of the Act which lists inventions that are not patentable. Simply put, this means that software cannot be patented in India, unless it is embedded/combined in with some hardware. While this is the <a href="http://nopr.niscair.res.in/bitstream/123456789/14456/1/JIPR%2017(4)%20284-295.pdf">most widely accepted interpretation of this Section 3(k)</a>, there have been contradictory interpretations as well.</p>
<p style="text-align: justify; ">In this note, I shall look at the various ambiguities surrounding patent application for CRIs. The note has been divided into five parts. Part II briefly reiterates the legislative history behind Section 3(k) and CRI patenting. Part III would briefly summarize the various parts of the Guidelines where the IPO has given their interpretation and opinion on the various issues surrounding CRI patenting. Part IV would then map the <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/CRI%20Comments-index.html">position of the stakeholders</a> on each ambiguous point. Lastly, Part V would give the conclusion.</p>
<p style="text-align: justify; "><b> II. </b> <b>Legislative History </b></p>
<p style="text-align: justify; ">Under the Patent Act, 1970, prior to the 2002 Amendment, there was no specific provision under which software could be patented. Nonetheless, there was no explicit embargo on software patenting either. For an invention to be patentable, under Section 2(1) (j) of the Act, which defines an invention, general criteria of novelty, non-obviousness and usefulness must be applied. Software is generally in the form of a mathematical formula or algorithm, both of which are not patentable under the Act as they <a href="http://nopr.niscair.res.in/bitstream/123456789/14456/1/JIPR%2017(4)%20284-295.pdf">do not produce anything tangible.</a> However, if combined or embedded in a machine or a computer, the resultant product can be patented as it would pass the aforementioned criteria.</p>
<p style="text-align: justify; ">The Parliament, in 1999, sought to amend the Act to bring it in conformity with the changing technological landscape. Consequently, the Patent (Second Amendment) Bill, 1999 was introduced in the Parliament which was then referred to a <a href="http://164.100.47.5/webcom/MoreInfo/PatentReport.pdf">Joint Parliamentary Committee</a> ('JPC'). The ensuing Bill proposed Section 3(k) in its current phraseology. It reasoned that:</p>
<p style="text-align: justify; ">" <i> In the new proposed clause (k) the words ''per se" have been inserted. This change has been proposed because sometimes the computer programme may include certain other things, <b>ancillary thereto or developed thereon.</b> The intention here is not to reject them for grant of patent if they are inventions. However, the <b>computer programmes as such</b> are not intended to be granted patent. This amendment has been proposed to clarify the purpose. </i> "</p>
<p style="text-align: justify; ">The Bill was then enacted as the <a href="http://www.ipindia.nic.in/ipr/patent/patentg.pdf">Patent (Amendment) Act, 2002</a> and reads in its current form as:</p>
<p style="text-align: justify; ">Section 3(k) - <i>"a mathematical or business method or a computer programme per se or algorithm"</i></p>
<p style="text-align: justify; ">This created some ambiguity with respect to the interpretation of the term "per se". It was interpreted to mean that software cannot be patented unless it is combined with some hardware. This combination would then have to comply with all the tests of patentability under the Act.</p>
<p style="text-align: justify; ">In December, 2004 the <a href="http://lawmin.nic.in/Patents%20Amendment%20Ordinance%202004.pdf">Patent (Amendment) Ordinance, 2004</a> ('Ordinance') was enacted which amended Section 3(k) to divide it into two parts, namely Section 3(k) and Section 3(ka).</p>
<p style="text-align: justify; ">"<i>(k) a computer programme per se other than its technical application to industry or a combination with hardware;</i></p>
<p style="text-align: justify; "><i>(ka) a mathematical method or a business method or algorithms;</i> ".</p>
<p style="text-align: justify; ">In February, 2005 the Ordinance was introduced in the Parliament as the <a href="http://pib.nic.in/newsite/erelease.aspx?relid=8096">Patent (Amendment) Bill, 2005</a>.This included the amendment to Section 3(k) as under the Ordinance. In the Objects and Reasons it clarified that the intention behind the amendment was to " <i> modify and clarify the provisions relating to patenting of software related inventions when they have technical application to industry or in combination with hardware </i> ". However, the final amending Act did not divide Section 3(k) as proposed by the Ordinance. In the <a href="http://pib.nic.in/newsite/erelease.aspx?relid=8096">press note, by the Ministry of Commerce and Industry</a> it was noted that:</p>
<p style="text-align: justify; "><i> "It is proposed to omit the clarification relating to patenting of software related inventions introduced by the Ordinance as Section 3(k) and 3 (ka). The clarification was objected to on the ground that this may give rise to monopoly of multinationals." </i></p>
<p style="text-align: justify; ">Later, in the same year the IPO release a <a href="http://ipindia.nic.in/ipr/patent/manual-2052005.pdf">Manual of Patent Office Practice and Procedure, 2005</a>. Here, it noted that "a computer readable storage medium having a program recorded thereon…irrespective of the medium of its storage are not patentable". This did nothing to clarify the ambiguity that existed.</p>
<p style="text-align: justify; ">Similarly, the <a href="http://164.100.47.5/newcommittee/reports/EnglishCommittees/Committee%20on%20Commerce/88th%20Report.htm"> Parliamentary Standing Committee on Commerce, 88<sup>th</sup> Report on the Patent and Trademark System in India (2008) </a> noted the uncertainty surrounding the term 'per se' and said that there was a need to clarify the same. It did not do anything in furtherance of pointing this out.</p>
<p style="text-align: justify; ">The 2011 <a href="http://www.ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20pdf/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure.pdf"> Manual of Patent Office and Procedure, 2011 </a> tried to elaborately deal with the ambiguity. Nonetheless, substantively it did not change the uncertainty. It stated that<b>:</b></p>
<p style="text-align: justify; "><i> "If the claimed subject matter in a patent application is only a computer programme, it is considered as a computer programme per se and hence not patentable. Claims directed at computer programme products' are computer programmes per se stored in a computer readable medium and as such are not allowable. Even if the claims, inter alia, contain a subject matter which is not a computer programme, it is examined whether such subject matter is sufficiently disclosed in the specification and forms an essential part of the invention." </i></p>
<p style="text-align: justify; "><b> III. </b> <b>Draft Guidelines for Examination of Computer Related Inventions, 2013</b></p>
<p style="text-align: justify; ">The Draft Guidelines were released on June 28, 2013, following which stakeholders were invited to give comments.</p>
<p style="text-align: justify; "><b><i>Terms/ Definitions used while dealing with CRIs </i></b></p>
<p style="text-align: justify; ">At the outset, the IPO put a caveat to say that the Guidelines do not constitute 'rule making'. Consequently, in case of a conflict between the Guidelines and the Act, the Act shall prevail. After the Introduction and Background, in Part I and Part II respectively, the Guidelines looked at the various definitions/terms that correspond to CRI patent claims in Part III. In all, there were 21 such definitions/terms that were sought to be clarified. These definitions can be branched into three categories.</p>
<p style="text-align: justify; ">Category I- Where the definition/term was borrowed from some other Indian stature. <br /> Category II- Where the definition/term was construed according to the plain dictionary meaning. Category III- Where the Guidelines tried to give their interpretation to the term/definition.</p>
<p style="text-align: justify; ">Under Category I, there were seven definitions whose meaning was derived from some other stature. The meaning of Computer Network, Computer System, Data, Information and Function were derived from <a href="http://www.dot.gov.in/sites/default/files/itbill2000_0.pdf">Information Technology Act, 2000</a> ('IT Act'). The definition of Computer Programme was taken from <a href="http://copyright.gov.in/documents/copyrightrules1957.pdf">Copyright Act, 1957</a>. Lastly, the definition of Computer was taken from both Copyright Act and IT Act.</p>
<p style="text-align: justify; ">Under Category II, the Guidelines underscored five definitions whose meaning was to be borrowed from the Oxford Dictionary. These were algorithm, software, per se, firm ware and hardware. Importantly, it was noted that these definitions have not been defined anywhere in Indian legislations. Lastly, under Category III the Guidelines tried to interpret certain terms according to their understanding. These terms included, Embedded Systems, Technical Effects, Technical Advancement, Mathematical Methods, Business Methods etc.</p>
<p style="text-align: justify; "><b><i>Categorization of CRI claims </i></b></p>
<p style="text-align: justify; ">In Part IV, the Guidelines tried to broadly group the various CRI patent applications under four heads. These categorizations tried to give an insight into what the patent examiners look for while rejecting a patent application.</p>
<ul style="text-align: justify; ">
<li> Method/process: </li>
</ul>
<p style="text-align: justify; ">Without defining what a method or process would entail, the Guidelines stated that any claim carrying a preamble with "method/process for..." shall not be patentable. It clarified that claims relating to mathematical methods, business methods, computer programme per se, algorithm or mental act are cannot be patented as they are prime illustrations of claims under this category. Further, the Guidelines gave specific examples of each of the aforementioned claims.</p>
<ul style="text-align: justify; ">
<li> Apparatus/system </li>
</ul>
<p style="text-align: justify; ">The second category consisted of claims whose preamble stated that the patent application was for an "apparatus/system". Under this, the patent application must not only comply with the standard tests of patentability- novelty, inventive step and industrial applicability, but also define the inventive constructional or hardware feature of the CRI. However, in contradictory statements, the Guidelines try to narrow down the prerequisites for a claim under this category, only to state that such claims cannot be patented.</p>
<ul style="text-align: justify; ">
<li> Computer readable medium </li>
</ul>
<p style="text-align: justify; ">While stating this as a category, the Guidelines do not elaborate on what this exactly means and what types of claims would be rejected being under this category.</p>
<ul style="text-align: justify; ">
<li> Computer program product </li>
</ul>
<p style="text-align: justify; ">This category includes computer programs that are expressed on a computer readable medium (CD, DVD, Signal etc.). Further, infusing ambiguity to the debate, the Guidelines failed to differentiate between Computer Readable Medium and Computer Program Product.</p>
<p style="text-align: justify; "><b><i>Examination Procedure used by IPO </i></b></p>
<p style="text-align: justify; ">The examination procedure for CRI patent application in the Guidelines is similar to other patent applications which look at novelty, inventive step and industrial applicability. However, claims relating to determination of specific subject matter under the excluded categories (Method/Process, Computer Readable Medium, Apparatus/system, and Computer Program Product) require specific examination skills from the examiner.</p>
<p style="text-align: justify; ">Under the excluded category itself, Method/Process requires subjective judgement by the examiner as to whether such a claim qualifies to be classified under this category or not. For investigating the inventive step involved in the 'method/process', the technical advancement over existing knowledge in the technological field has to be analyzed. Any patent claim from a non-technological field shall not be considered.</p>
<p style="text-align: justify; ">The Guidelines then tried to clarify the controversial Section 3(k) which eliminates the patenting of computer programmes per se. While previously stating that the definition of the term 'per se' as borrowed from the Oxford dictionary meant 'by itself', the Guidelines stated that computer programme loaded on a general purpose computer or related device cannot be patented. Nonetheless, while filing patent application for a novel hardware, with a loaded computer programme, the likelihood patenting the combination cannot be ruled out. Further, the stated hardware must be something more than a general purpose machine. Essentially, a patent for a novel computer programme combined with a novel hardware, which must be more than a general purpose machine, may be considered for patenting. It then gave several examples which were followed by flowcharts to further clarify ambiguities surrounding CRI patentability. Interestingly, all these examples and flowcharts only listed the inventions that are not patentable.</p>
<p style="text-align: justify; "><b> IV. </b> <b>Response by Stakeholders</b></p>
<p style="text-align: justify; ">Many and various comments were received from 36 stakeholders that including lawyers, civil society members, law firms, students, global and national trade bodies and industry representatives.</p>
<p style="text-align: justify; ">Our compilation (and the first level of analysis) of the Stakeholders' Responses is <a href="http://editors.cis-india.org/a2k/blogs/cri-comments-comparison-table.xlsx" class="internal-link">available here</a>.</p>
<table class="listing">
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<th><img src="http://editors.cis-india.org/home-images/DivisionofStakeholdersComments.png" alt="Division of Stakeholders' Comments" class="image-inline" title="Division of Stakeholders' Comments" /></th>
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</tbody>
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<p style="text-align: justify; ">While all the stakeholders' applauded the much needed transparency in the IPO, substantively they differed considerably on various issues and highlighted some inconsistencies. In this part, I shall map the responses of the various stakeholders'. While doing so, I shall also try and find specific patterns to the responses corresponding to the following segments:</p>
<p style="text-align: justify; ">1. Civil Society</p>
<p style="text-align: justify; ">2. Law Firm/Advocates ('law Firms')</p>
<p style="text-align: justify; ">3. Industry/ Industry Representatives/Global Trade Body (Industry)</p>
<p style="text-align: justify; ">4. Students</p>
<p style="text-align: justify; ">These segments have been created on the assumption that each of the aforementioned segment would lobby for similar kind of policy.</p>
<p style="text-align: justify; "><b><i>Interpretation of Section 3(k) </i></b></p>
<p style="text-align: justify; ">One of the major points of deviation between the stakeholders was regarding the interpretation of Section 3(k) which encapsulates the term "computer programme per se".</p>
<p style="text-align: justify; ">The industry responded by critiquing the current CRI patenting regime in India as being "restrictive" ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/NASSCOM-feedback%20to%20CRI%20guidance.pdf">NASSCOM</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/USIBC%20Final%20Comments%20on%20CRI%20Guidelines%20July%2026,%202013.pdf"> US India Business Council </a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch </a> ). While some industry representatives sought clarifications due to uncertain phraseology, there was no industry representative that favored restricted interpretation to exclude software patenting altogether. While opposing the Guidelines, they sought assistance from the legislative history behind introduction of Section 3(k). It was pointed out that the term 'per se' was included to raise the threshold of patentability to something higher than the previous patentability standard, but it did not explicitly exclude patent protection for software.</p>
<p style="text-align: justify; ">The general perception of the stakeholders, keeping in mind the current Guidelines, was that for patenting software it had to be combined with some hardware. This combination would then be scrutinized against the triple test of novelty, inventive step and industrial application.</p>
<p style="text-align: justify; ">While the Guidelines noted that the hardware involved must not be general purpose hardware and that the chances of software patentability would increase significantly if novelty resides in the hardware; however, most of the industry and global trade bodies disagreed with this interpretation. They argued that if software in combination of hardware technically advances the existing technology, then such an innovation must be patentable, despite being combined with a general purpose machine (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>). Another explanation supporting expanded interpretation was that much of the technological innovation is accomplished through software development as compared to hardware innovation and novel software can achieve technical effect without the hardware developments ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL%20BSA%20comments%20on%20India%20Patent%20Office%20Guidelines%20for%20CII.pdf"> BSA- The Software Alliance </a> ). Consequently, software development that allows a general purpose machine to perform tasks that were once performed by a special machine must be incentivized. Some stakeholders interpreted the Guidelines to reason that hardware must be completely disregarded while examining patentability of software (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20the%20Recent%20guidelines%20on%20CRI.pdf">Majumdar & Co.</a> ).</p>
<p style="text-align: justify; ">Most of the responses from the civil society argued for a restricted interpretation of Section 3(k) ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI%20Comment%20CIS.pdf">Centre for Internet & Society</a>). They concurred with the interpretation provided by the IPO to exclude software patentability. Most of the stakeholders responded seeking further clarification on the subject (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI_Comments_SFLC.pdf">Software Freedom Law Centre</a><a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20comments%20on%20CRI%20guidelines_Gabrial.pdf">, K&S Partners</a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Rachna.pdf">Xellect IP Solutions</a>).</p>
<table class="listing">
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<th><img src="http://editors.cis-india.org/home-images/StakeholdersOpinion.png" alt="Stakeholders' Opinion" class="image-inline" title="Stakeholders' Opinion" /></th>
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</tbody>
</table>
<p style="text-align: justify; ">However, within each segments itself there was difference of opinion on the interpretation of Section 3(k). For instance, out of the five civil society members, four wanted to restrictive interpretation while one of them favoured expansive interpretation to include software patenting. Similarly, 13 law firms sought further clarification on the subject matter, while seven argued for expansive interpretation and one of them argued for restricted interpretation. The most consistent response was from the industry that clearly favoured software patenting and called the Guidelines "restrictive". Seven out of the nine industry representatives supported expansive interpretation and the other two sought further clarifications on the subject.</p>
<p style="text-align: justify; "><b><i>Section 5.4.6- Hardware </i></b></p>
<p style="text-align: justify; ">The interpretation of Section 3(k) until the release of the Guidelines was that software in combination with some hardware could be considered for patenting. However, the Guidelines increased the threshold stating that this hardware must be "something more than a general purpose machine". A stakeholder pointed out that increasing this threshold would go against the legislative intent as the requirement of a novel hardware has not been mentioned anywhere in the Act ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ).</p>
<p style="text-align: justify; ">The industry's perspective on this matter was largely uniform. They pointed out the large technological field that would be eliminated from the scope of patentability if the interpretation provided by the Guidelines is adopted ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>). Also, the investigation of novelty in the hardware would disincentives inventors in the field of CRIs ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Kan & Krishme </a> ). Most of the stakeholders, across segments, sought more clarification on the role of hardware under Section 3(k) (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20the%20Recent%20guidelines%20on%20CRI.pdf">Majumdar & Co.</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI%20Comment%20CIS.pdf">Centre for Internet & Society</a>).</p>
<p style="text-align: justify; "><b><i>Comparative Analysis </i></b></p>
<p style="text-align: justify; ">Much of the criticism surrounding CRI patenting policy in India is based on the comparative inconsistency with similar laws in other jurisdictions. Comparative analysis on the subject has only been provided by the stakeholders that support software patentability. They point out that most countries like US, UK, Japan and the European Patent Convention allow patenting of software, and India must also do the same in order to comply with its international obligations under the TRIPs Agreement. Paradoxically, stakeholders who supported the current practice chose not to comparatively analyze CRI policy of other jurisdictions. While most of the stakeholders simply jumped to analyze comparative jurisprudence on the subject, only one of them gave a reasonable explanation for such a comparison ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>). It was noted that the Supreme Court of India and the Intellectual Property Appellate Board regularly borrow from foreign decisions to either accept or deny patents. Therefore, while formulating any policy on the matter, the position in other jurisdictions must be considered.</p>
<p style="text-align: justify; ">It was reasoned that the term 'per se' used in the Act, is similar to the European Patent Convention and <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/354942/patentsact1977011014.pdf">UK Patent Act, 1977</a> where the term 'as such' has been used. Therefore, while juxtaposing both the terms, the interpretation of 'per se' must be similar to 'as such'. Consequently, software patenting must be allowed subject to the tests evolved by the courts. Similarly, the term 'as such' has been used by several Asian countries including China, Taiwan, South Korea and Japan. In these countries, software in concert with a specific hardware that resolves a technical problem thereby achieving a technical result can be patented ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20draft%20Guidelines%20for%20CRI_Krishna.pdf"> Krishna and Saurastri Associates </a> ).</p>
<p style="text-align: justify; ">Likewise, while comparing the jurisprudence of US, the landmark case <a href="http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=450&invol=175"><i>Diamond vs. Diehr</i></a>, which marked the beginning of software patenting was cited ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Shubhojeet_Comments_CRI%20(1).pdf">Subhojeet Ghosh</a> and <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/USIBC%20Final%20Comments%20on%20CRI%20Guidelines%20July%2026,%202013.pdf"> US India Business Council </a> ). Several others argued that India must align their laws with global standards ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/2013-07-26%20PEIL_comments%20on%20draft%20guidelines%20on%20examination%20of%20computer%20related%20inventions.pdf"> Phillips Intellectual Property and Standards </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments_to_India_Draft_Guidelines_for_Computer_Related_Inventions.pdf"> Sun Smart IP Services </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Guideline1.pdf">United Overseas Patent Firm</a>).</p>
<table class="listing">
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<th><img src="http://editors.cis-india.org/home-images/ComparativeAnalysis.png" alt="Comparative Analysis" class="image-inline" title="Comparative Analysis" /></th>
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<p style="text-align: justify; "><b><i>Business Method</i></b></p>
<p style="text-align: justify; ">The Guidelines tried to narrow down the definition of 'Business Method' to clarify that such claims cannot be patented. It was urged that the Guidelines reconsider such a blanket embargo ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20CRIs.pdf">Legasis Partners- Advocates and Solicitors</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ). While judging patentability, a patent must not be rejected simply because it mentions business method or business method related terminology. What must be examined is whether the inventive step resides in the technical or non-technical part of the claim ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20CRIs.pdf">Legasis Partners- Advocates and Solicitors</a>). A distinction must be made differentiating as to what software implementing business method and a software relating to the technical aspect of the transaction ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ). While the former can be rejected, the latter must be accepted subject to the triple test of patenting.</p>
<p style="text-align: justify; ">It was pointed out that reevaluating a business method claim apart from a method involving financial transaction; monopoly claim over trade and new business strategies; monopoly claim over new types of carrying out business and method of increasing revenue; must be rejected (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20on%20draft%20CRI.pdf">Law Offices of Mohan Associates</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/REMFRY%20&%20SAGAR%20COMMENTS%20FOR%20CRI'S.pdf">, Remfry and Sagar</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> ). The more overarching opinion of the stakeholders was there is no objection to the exclusion of business method patents, but what constitutes business methods need more clarity (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/COMMENTS.pdf">D. Moses Jeyakaran</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20thappeta%20Jul%2026%202013%20comments%20on%20CRI%20Examination.pdf"> Law Firm of Naren Thappeta </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/JIPA%20Opinions%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Japan Intellectual Property Association </a> ).</p>
<p style="text-align: justify; "><b><i>Critique of Examples and Flowcharts </i></b></p>
<p style="text-align: justify; ">The Guidelines provided for several examples and flowcharts to foster a better understanding of the subject matter. However, a notable feature of each of these was that they only gave examples of what claims would be rejected. This was sufficiently pointed out by most of the stakeholders who sought more positive examples (<a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/%5bUntitled%5d.pdf">Bosch</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL%20BSA%20comments%20on%20India%20Patent%20Office%20Guidelines%20for%20CII.pdf"> BSA- The Software Alliance </a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Final%20comments%20on%20CRI%20guidelines_Gabrial.pdf">, K&S Partners</a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Rachna.pdf">Xellect IP Solutions</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/JIPA%20Opinions%20Draft%20Guidelines%20for%20Examination%20of%20CRIs.pdf"> Japan Intellectual Property Association </a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/FINAL_I-HIPP_submission_on_CRI_Guidelines.pdf"> In-House Intellectual Property Professional Forum, </a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/NASSCOM-feedback%20to%20CRI%20guidance.pdf">NASSCOM</a> <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/O&A-Comments%20on%20Guidelines%20for%20CRI.pdf">, Obhan & Associates</a> , <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/REMFRY%20&%20SAGAR%20COMMENTS%20FOR%20CRI'S.pdf">Remfry & Sagar</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/TCS%20Response%20to%20Draft%20CRI%20Guidelines.pdf">Tata Consultancy Services</a> ). It was pointed out that the examples have not sufficiently elaborated on their relation with Section 3(k) ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Draft%20Guidelines%20for%20Computer%20Related%20Inventions-updated-20130715-1.pdf"> FICCI </a> ), and some of them are "weak, obscure and incorrect" ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/CRI_Comments_SFLC.pdf">Software Freedom Law Centre</a>). These examples also fail to elaborate on the tests that have previously been applied by the Patent Office ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>). Overall, the general perception was that, the examples were confusing and greater clarity along with positive examples was needed ( <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/RP-Comments-on_Guidelines_for_CRI-Main_26jul13_clean.pdf">LKS</a>, <a href="http://ipindia.nic.in/iponew/CRI_Comments_Feedbacks/related_doc/Comments%20to%20Guidelines%20for%20Examination%20of%20CRIs%20-%20Anand%20and%20Anand.pdf"> Anand & Anand </a> ).</p>
<table class="listing">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/PositionofStakeholdersIllustrations.png" alt="Position of Stakeholders' Illustrations" class="image-inline" title="Position of Stakeholders' Illustrations" /></th>
</tr>
</tbody>
</table>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; ">Interestingly, out of the 25 stakeholders' who commented on the illustrations, 16 sought positive examples. Further, most of the positive examples were sought by industry representatives and law firms who supported software patenting.</p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; "><b> V. </b> <b>Conclusion </b></p>
<p style="text-align: justify; "><b> </b></p>
<p style="text-align: justify; ">It has been over a year since IPO released the CRI Guidelines. On release, it invited suggestions in order to revise the Guidelines, but the revised version has still not been released by the IPO. The Guidelines were authored from a patent examiner's perspective; however, while doing so it obscured the matter further. It was argued that in totality the application of the Guidelines would now make the patentability of software stricter. It was also pointed out that the Guidelines have not taken into account the legislative history and the specific rejection of the Ordinance in the 2005 Amendment.</p>
<p style="text-align: justify; ">The responses received by IPO gave conflicting opinion on the same issue. In general, it can be concluded that the industry and law firms were in favour of allowing software patenting. They sought removal of the hardware requirement for software patentability. Most of the stakeholder's who favoured software patenting also undertook a comparative study of jurisdictions like US, UK, EU and Japan to point out the difference in the software patenting policy. Further, they also wanted the Guidelines to give positive examples wherein CRIs patenting has previously been allowed.</p>
<p style="text-align: justify; ">Admittedly, the Guidelines have no legal standing and much like the Patent Manual, they serve merely to guide the patent applicants and provide transparency patent examination. Overall, the Guidelines failed to explain the previous inconsistencies surrounding the subject matter. In conclusion the Guidelines mention that it would periodically release and update the Guidelines incorporating the stakeholder's comments. Considering the diverse set of opinions received by the IPO, it now needs to be seen which suggestions are accepted until the next round of comments.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions'>http://editors.cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions</a>
</p>
No publishernehaaFeaturedHomepageSoftware PatentsAccess to Knowledge2015-01-05T17:01:50ZBlog EntryStrategies to Organise Platform Workers
http://editors.cis-india.org/raw/strategies-to-organise-platform-workers-rightscon
<b>In 2022, the Centre for Internet and Society hosted a panel with Akkanut Wantanasombut, Ayoade Ibrahim, Rikta Krishnaswamy, and Sofía Scasserra at RightsCon, an annual summit on technology and human rights. </b>
<p><b><a class="external-link" href="http://cis-india.org/raw/strategies-to-organise-platform-workers/at_download/file">Click</a></b> to download the full report</p>
<hr />
<h3>Event Report</h3>
<p style="text-align: justify; ">This event report is based on proceedings from a panel hosted at the 2022 edition of RightsCon. Hosted by the labour and digitalisation team at CIS, the panel brought together seasoned labour organisers, activists, and researchers working across Thailand, Nigeria, India, and Argentina. The panellists represented a diverse group of worker organisations, including transnational federations, national unions, and informally organised movements.<br /><br />Their experiences of organising in research and practice infused our discussion with insight into collective action struggles across varied sectors and platform economies in the global south. Collective resistance among platform workers has witnessed a sustained rise in these economies over the past three years, with demands for transparency and accountability from platforms, and for a guarantee of rights and protections from governments.<br /><br />Through this panel, we sought to answer:</p>
<ol>
<li>How have workers’ organisations overcome challenges in sustained collective action?</li>
<li>What have been unique aspects of organising in the global south?</li>
<li>Which strategies have been gaining traction for organising workers and mobilising other stakeholders?</li>
</ol>
<p style="text-align: justify; "><br />Placing workers’ participation front and centre, the panellists incorporated common threads around campaigning, education, and mobilisation for increasing worker participation, as well as bargaining with the government for legal and social protections. The panellists highlighted that it’s the resilience and resistance led by workers that drive the way for sustained organising. This panel hoped to spotlight steps taken in that direction, where organising efforts strive to form, sustain, and champion worker-led movements.</p>
<h3 style="text-align: justify; ">Contributors</h3>
<p><b>Panellists: </b><br />Akkanut Wantanasombut<br />Ayoade Ibrahim<br />Rikta Krishnawamy <br />Sofía Scasserra</p>
<p><b>Worker organisations in focus:</b><br />Tamsang-Tamsong<br />National Union of Professional App-based Transport Workers<br />International Alliance of App-based Transport Workers<br />All India Gig Workers’ Union <br />Federación Argentina de Empleados de Comercio y Servicios<br />Asociación de Personal de Plataformas</p>
<p><b>Conceptualisation and planning</b>: Ambika Tandon, Chiara Furtado, Aayush Rathi, and Abhishek Sekharan</p>
<p><b>Author</b>: Chiara Furtado<br /><b>Reviewers</b>: Ambika Tandon and Nishkala Sekhar<br /><b>Designer</b>: Annushka Jaliwala<br /><br />This event report is part of research supported by the Internet Society Foundation under the ‘Labour futures’ grant.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/strategies-to-organise-platform-workers-rightscon'>http://editors.cis-india.org/raw/strategies-to-organise-platform-workers-rightscon</a>
</p>
No publisherfurtadoLabour FuturesDigital EconomyResearchers at WorkGig WorkPlatform-WorkFeaturedRAW ResearchHomepage2023-10-22T09:54:52ZBlog EntryAvailability and Accessibility of Government Information in Public Domain
http://editors.cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain
<b>The information provided on most Government websites such as Acts, notifications, rules, orders, minutes of meetings and consultations, etc. is usually in the form of electronic documents. However, these lack authenticity and accessibility and cannot be (text) searched., This policy brief identifies the problem areas with the current work flow being used to publish documents and proposes suitable modifications to make them easy to locate, authentic and accessible.</b>
<p style="text-align: justify; ">Prepared by Sunil Abraham, Nirmita Narasimhan, Beliappa, and Anandhi Viswanathan and with inputs from Dipendra Manocha, Saksham, and Deepak Maheshwari, Symantec. Download the text as<b> <a href="http://editors.cis-india.org/accessibility/blog/policy-brief-availability-accessibility-govt-information-public-domain.pdf" class="external-link">PDF here</a></b>. (96 Kb)</p>
<hr />
<p style="text-align: justify; "><b>Problem Statement</b>: The information published on most government websites exist in the form of document files [including but not limited to the Acts, Rules and Regulations, Government Orders and Notifications, Consultation Papers, Reports etc.] which, even when published, more often than not lack authenticity and accessibility and cannot be (text) searched.</p>
<p style="text-align: justify; ">Analysis: The current workflow towards publishing documents on government websites is broadly as follows:</p>
<ol style="text-align: justify; ">
<li>The document is born digital – that means it is created on a computer.</li>
<li>The document is printed.</li>
<li>The document is stamped with the official seal and signed in ink by the authorized person(s).</li>
<li>The paper document is scanned.</li>
<li>The scanned image is converted into a PDF file.</li>
<li>The document is uploaded on the website and thereby published in the public domain.</li>
</ol>
<p style="text-align: justify; ">In fact, at times, even gazette notifications and other printed documents are also scanned as images.</p>
<p style="text-align: justify; ">This approach has numerous problems, including the following:</p>
<ol style="text-align: justify; ">
<li>First and foremost, such a practice is against the letter and spirit of Section 4 (1) (a) of the Right to Information Act, 2005.<a href="#fn1" name="fr1">[1] </a>that inter alia, mandates every public authority to “maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”.</li>
<li>This does not realize the enabling provision of the Information Technology Act, 2000<a href="#fn2" name="fr2">[2]</a> which gives legal sanctity to digital signatures. The digital image of a physical signature is not a digital signature in the eye of the law, though at times it is mistakenly believed to be so.</li>
<li>This does not address the problem of repudiation. That means a government official can say “I didn't sign that document” and there is no way to tell whether what he or she is saying is true. One of the key features of digital signatures is non-repudiability.</li>
<li>Scanned images of printed text cannot be searched for specific text (character, word or phrase) even by people without disabilities but for people with disabilities, the documents become totally inaccessible since the accessibility software cannot parse such scanned images – against the underlying tenets and objectives of the National Universal Electronic Accessibility Policy 2013.<a href="#fn3" name="fr3">[3] </a></li>
<li>As an extension, content of such documents cannot be indexed by search engines (such as Google, Bing and Raftaar, etc.) and hence, unlikely to be located even if technically the same are in the public domain.</li>
</ol>
<p style="text-align: justify; "><b>Proposed Solution</b>: The following work flow is proposed for publishing documents electronically on government websites:</p>
<ol style="text-align: justify; ">
<li>The document is born digital by preparing it in or through a computer system. Documents in Indian languages should be produced using Unicode based fonts.</li>
<li>The government official authorized to sign the same, must sign it digitally.</li>
<li>The document is uploaded in an open standard based format such as EPUB using a content management system and made available on the website such that it is available, accessible, indexable and searchable.</li>
</ol>
<p style="text-align: justify; ">This will ensure democratization of information in its truest sense – making available information to the public at large and ensuring that it can be easily located and remains accessible to one and all.</p>
<p style="text-align: justify; ">The process of formatting should be standardized in such a way that semantics (such as heading styles, lists and tables) can be added to the text of the document. The Web Style Guide provides information on good practices for creating well-structured documents:</p>
<p style="text-align: justify; ">Standardizing the formatting process by creating different templates for different types of documents will ensure uniform accessibility of the documents as well as provide a standard look and feel across government documents.</p>
<p style="text-align: justify; ">India became a global pioneer by making the legal provision for computerised, indexed and duly catalogued public records. It is high time that India takes the lead by living up to the legislative intent under the Right to Information Act, Information Technology Act and the National University of Educational Planning and Administration, and thereby establishes a global best practice.</p>
<p style="text-align: justify; ">Admittedly, legacy documents should also be converted electronically to accessible formats though before such a rendering, due editorial oversight may be necessary along with use of technologies such as Optical Character Recognition (OCR).</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. Government of India. The Right to Information Act, 2005. No. 22 of 2005. Retrieved on November 30, 2014 from <a class="external-link" href="http://rti.gov.in/webactrti.htm">http://rti.gov.in/webactrti.htm</a>.</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. Government of India. The Information Technology Act, 2000. No. 21 of 2000. Retrieved on November 30, 2014 from <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf">http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf</a></p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Government of India. National Policy on Universal Electronic Accessibility. 2013. Retrieved on November 30, 2014 from <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf">http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain'>http://editors.cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain</a>
</p>
No publishersunilGovernment InformationAccessibilityFeaturedDigitisationHomepage2014-12-30T01:25:12ZBlog EntryMapping Digital Humanities in India - Concluding Thoughts
http://editors.cis-india.org/raw/mapping-digital-humanities-in-india-concluding-thoughts
<b>This final blog post on the mapping exercise undertaken by CIS-RAW summarises some of the key concepts and terms that have emerged as significant in the discourse around Digital Humanities in India. </b>
<p><em> </em></p>
<p style="text-align: justify;">The present exercise in mapping Digital Humanities (henceforth DH) in India has brought to the fore several learnings, and challenges in trying to locate the domain of enquiry even as our understanding of what constitutes new objects, methods and forms of research and pedagogy constantly undergo change and redefinition. Even as we wrap up this study, some of the key questions or problems of definition, ontology and method remain with us, as the 'field' as such is incipient in India, as with other parts of the world and the term itself is yet to find a resonance in many quarters, other than a few institutions and a number of individuals. However, what it does do for us immediately, is throw open several questions about how we understand the idea of the 'digital', and what may be the new areas of enquiry for the humanities at large.</p>
<p style="text-align: justify;">We began with the understanding that DH is a new space of interdisciplinary research, scholarship and practice with several possibilities for thinking about the nature of the intersection of the humanities and technology. The term was a little more than a found name of sorts, which since then has taken on various meanings and undergone some form of creative re-appropriation. The ubiquitous history of the term in humanities computing in the Anglo-American context has helped in locating and defining the field globally within the ambit of certain kinds of practices and scholarship in the contemporary moment. As most of the literature around DH even globally has pointed out, the problem with arriving at a definition is ontological, more than epistemological. The conditions of its emergence and existence are yet to be completely understood, although if one is to take into account the larger history of science and technology studies or even cyber/digital culture studies, these 'epistemic shifts' have been in the making for some time now. In India particularly, where a clear picture of the 'field' as such is still to emerge in the form of a theorisation of its key concerns, areas of focus or object of enquiry, it is only through a practice-mapping that one may locate what are at best certain discursive shifts in the way we understand content, structures and methods in the humanities, within the context of the digital. The fundamental premise of the nature of the digital and its relation to the human subject still lacks adequate exploration which would be required to define the contours of the field. The inherited separation of humanities and technology further makes this a complex space to negotiate, when the term may now actually indicate the need to decode the rather tenuous relationship between the two supposedly separate domains.</p>
<p style="text-align: justify;">The question of methodology then comes in as the next most important aspect here, as the method of DH is yet to be clearly defined. At present it looks like a combination and creative appropriation of methodologies drawn from different disciplines and creative practices. The change in the methodology of the humanities and social sciences itself as now longer remaining discipline-specific has been a contributory factor to the evolving methodology of DH. The practice itself is still evolving, and while DH in the Anglo-American context can trace a history in humanities computing, with now an active interest in other spaces where the digital is an inherent part of the discourse, in India there has been little work in mainstream academic spaces such as universities or research centres, and some interest from the information and technology sector. As such the skills and infrastructure needed to work with large data sets and new technologised processes of interpretation and visualisation still remain outside the ambit of the mainstream humanities. This mapping exercise largely relied on interviews as part of its methodology, without any engagement with the actual practice, mainly because of a lack of consensus on what constitutes DH practice. However, through an exploration of allied fields such as media, archival practice, design and education technology, the study tries to locate how certain practices in these areas inform what we understand of DH today.</p>
<p style="text-align: justify;">The archive, media and now to a certain extent art and design have become the sites for most of the discussions around DH in India, primarily because of the nature of institutions and people who have engaged with the question so far. Archival practice has seen a vast change with the onset of digitisation, and the growth of more public and collaborative archival spaces will also bring forth new questions and concepts around the nature of the archive and its imagination as a dynamic space of knowledge production. At a more abstract level, the nature of the text as an unstable object itself, now increasingly being mediated and negotiated in different ways through digital spaces, tools and methods would be one way of locating an object of enquiry in DH and tracing its connection to the humanities, which are essentially still seen as 'text-based disciplines'. What has been a definite shift is the emphasis on process which has become an important point of enquiry, and one of the many axes around which the discourse around DH is constructed. The rethinking of existing processes of knowledge production, including traditional methods of teaching-learning, and the emergence of new tools and methods such as visualisation, data mapping, distant reading and design-thinking at a larger level would be some of the interesting prospects of enquiry in the field. The method of DH is however, necessarily collaborative and distributed at the same time, as evidenced by its practice in these various areas and disciplines.</p>
<p style="text-align: justify;">While in the Anglo-American context the predominant narrative or <em>raison d'etre</em> of DH seems to be the so-called 'crisis' in the humanities, it may after all be just one of reasons, and not a primary cause, at least in the Indian context. Moreover, in a paradoxical sense the emergence of DH has been seen as endangering the future of the traditional humanities, in terms of a move away from certain conventional methods and forms of research and pedagogy. While this may be relevant to our understanding of the emergence of DH, understanding the emergence of the field as resolving a crisis also renders the discourse into a uni-dimensional, problem-solving approach, thus making invisible other factors, such as the technologised history of the humanities or several other factors that have contributed to these changes. The complex and somewhere problematic history of science and technology in India and the growth of the IT sector also forms part of this context, and will inform the manner in which DH grows as a concept, area of enquiry or even as a discipline. DH is yet another manifestation of changes that we have seen in the existing objects, processes, spaces and figures of learning, particularly the open, collaborative and participatory nature of knowledge production and dissemination that has come about with the advent of the internet and digital technologies. More importantly, they also point towards the larger changes in what where earlier considered unifying notions for the university, namely that of reason and culture, which have now moved towards an idea of excellence based on a certain techno-bureaucratic impulse, as noted by Bill Readings in his work on the rise of the post-modern university<a name="_ftnref1" href="#_ftn1">[1]</a>.</p>
<p style="text-align: justify;">If one may try to locate within this the debates around DH, the subject of this new discourse around the digital is also now rather unclear. One could explore the notion of the digital humanist, or in a more abstract manner the digital subject as one example of this lack of clarity or the distance between the practice and the subject, which is also why it has been of much concern for several scholars. As Prof. Amlan Dasgupta, with English Department at the University of Jadavpur says, it is difficult to identify such a category of scholars, although a person who is able to situate his work in the digital space with the same kind of ease and confidence that people of a different generation could do in manuscripts and books would perhaps fit this description, and he is sure that such a person may be found. For example someone who knows Shakespeare well and can write a programme, and he is sure a day will come when this is a possibility. It is a familiarity in which the inherent distance between these two pursuits becomes lesser - DH is at that moment - a composite of these two approaches rather than the difference.</p>
<p style="text-align: justify;">While many scholars concur with this explanation, others find the term misleading - humanities scholars do not call themselves 'humanists'. Also, by virtue of being a digital subject, anybody engaged with some form of digital practice is already a digital humanist of some sort. The problem also is in the rather unclear nature of the practice, all of which is not unanimously identified as DH, as a result of which not many scholars would want to identify with the term. As Patrik Svensson (2010) points out "The individual term digital humanist may be problematic because it may seem both too general in not relating to a specific discipline or competence (thus deemphasizing the discipline-specific or professional) and too specific in emphasizing the "digital" part of the scholarly identity (if you are scholar) or giving too much prominence to the humanities part of your professional identity (if you are a digital humanities programmer or a system architect). The more general and non-personal term digital humanities is more inclusive, but somewhat limited because of its lack of specificity and relatively weak disciplinary anchorage. For both variants, there is also a question of whether "the digital" needs to be specified at all, and it is not uncommon <a href="http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html#N10309">[9]</a> to encounter the argument that technology and the digital are part or will be part of any academic area, and hence the denotation "digital" is not required" <a name="_ftnref2" href="#_ftn2">[2]</a>. Svensson further points out that since the term, like digital humanities, has proliferated so much in academic spaces, through publishing and funding initiatives that it has become a term of self-identification, but it could be a reference to the digital as 'tool' rather that the object of study itself. However, he also speculates that given digital humanists work across several disciplines, their understanding of humanities as a construct is stronger as the identity is linked to it at large. <a name="_ftnref3" href="#_ftn3">[3]</a></p>
<p style="text-align: justify;">This debate is importantly, symptomatic of a larger conflict over the authority of knowledge, because of what seems to be a move away from the university to alternate spaces and modes of knowledge production. As Immanuel Wallerstein (1996) suggests, such a conflict of authority has already been documented earlier, in terms of the displacement of theology first and then Newtonian mechanics as dominant sources of knowledge, and the now in the manner in which the separation of disciplines is being challenged. The potential of technology in general and the internet in particular in democratising knowledge has been explored in several cases, with many such online spaces now becoming a suitable 'alternate' to the university mode of teaching and learning. What they have also given rise to are questions about the authenticity of knowledge produced and disseminated and who are the stakeholders in the process. The debates over MOOC's and the Wikipedia, and at some level the criticism that DH and certain methods like distant reading have attracted from traditional humanities scholars are a case in point. However, many of these alternate or liminal spaces have always existed; they are perhaps becoming more visible and acknowledged now. DH, with its emphasis on interdisciplinarity and different kinds of knowledge drawn from a diverse set of practices definitely opens up space for a new mode of questioning; whether all of these different modes of questioning can coalesce as a new discipline or interdisciplinary field in itself will remain to be seen.</p>
<p><strong> </strong></p>
<p><strong>References</strong></p>
<ol>
<li>Patrik, Svensson, "The Landscape of Digital Humanities". <em>Digital Humanities Quarterly</em>,4:1 <a href="http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html">http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html</a> 2010.</li>
<li>Readings, Bill, <em>The University in Ruins</em> Cambridge: Harvard University Press, 1997, pp 1-20.</li>
<li>Wallerstein, Immanuel, "The Structures of Knowledge, or How Many Ways May We Know?" Presentation at "Which Sciences for Tomorrow? Dialogue on the Gulbenkian Report: <em>Open the Social Sciences</em>," Stanford University, June 2-3, 1996 http://www.binghamton.edu/fbc/archive/iwstanfo.htm </li></ol>
<hr />
<p style="text-align: justify;"><em> The author would like to thank the Higher Education Innovation and Research Applications (HEIRA) programme at the Centre for the Study of Culture and Society (CSCS), Bangalore for support towards the fieldwork conducted as part of this mapping exercise, and colleagues at CIS and CSCS for their feedback and inputs<strong>. </strong> </em></p>
<p><strong> </strong></p>
<p><strong>Concepts/Glossary of terms </strong></p>
<ol>
<li style="text-align: justify;"> Ontology - A lot of the work being done to define DH is in fact to understand its ontological status, the nature of its being and existence. As pointed out in the part of this section, the difficulty in arriving at a consensus on a definition is largely due to a lack of clarity over the ontological basis of such a field, rather than its epistemological stake, which one may already be able to discern in a few years. There is a slippage due to a lack of connection between the history of the term and its practice, particularly in India, where DH is still a 'found term' of sorts. See <a href="http://cis-india.org/raw/digital-humanities/a-question-of-digital-humanities"> http://cis-india.org/raw/digital-humanities/a-question-of-digital-humanities</a></li>
<li style="text-align: justify;">Humanities - The predominant discourse in the Anglo-American context on DH seems to have set it up in a conflict with or as a threat to the traditional humanities disciplines, the causal link here being the 'crisis' of the disciplines. While there is such a narrative of crisis in the Indian con text as well, anything 'digital' is understood in terms of a problem-solving approach, and at another level seeks to further existing concerns of the humanities themselves, such as around the text. The important shift that DH may open up here is in terms of thinking about the inherited separation of technology and the humanities, and if it indeed possible now to think of a technologised history of the humanities.See <a href="http://cis-india.org/raw/digital-humanities/a-question-of-digital-humanities"> http://cis-india.org/raw/digital-humanities/a-question-of-digital-humanities</a></li>
<li style="text-align: justify;">Digital - the debate around and interest in DH has reinforced the need for a larger and more elaborate exploration of the 'digital' itself, and as mentioned in an earlier post, deciphering the nuances of the current state of digitality we inhabit will be key to understanding the field of DH much better. This is challenging because India is a mutli-layered technological landscape, which is also quite dynamic, ever-changing and in a period of transition to the digital. Taking this back to more fundamental questions of technology and its relation to the subject would also provide more insights into DH.See <a href="http://cis-india.org/raw/digital-humanities/digital-humanities-problem-of-definition"> http://cis-india.org/raw/digital-humanities/digital-humanities-problem-of-definition</a></li>
<li style="text-align: justify;">Subject - DH is a manifestation of the relationship between technology and the human subject, and provides different ways to negotiate the same. The 'digital humanist' as the likely subject of this discourse has remained largely undefined in this series of explorations, partly because of the lack of resonance with the term among humanities scholars and the fact that everybody at some level is already a digital subject, and therefore a digital humanist. An exploration of how the digital constitutes or constructs a subject position is likely to reveal better the nuances of this term and the reason for its relation to or distance from the practice.</li>
<li style="text-align: justify;">Method - the methodology of a discipline is the connection between theory and field of practice, and the method of DH is still being developed. Whether it is data mining, distant reading, cultural informatics, sentiment analysis or creative visualisations of data sets drawing from aspects of media, art and design, the methodology and interests of DH are necessarily diverse and interdisciplinary. In many a case the distinction among methods, content and forms do blur as newer modes or approaches to DH come into being. This becomes a particular problem in understanding DH in the context of pedagogy and curricular resources, and would therefore require a rethinking of the understanding of a singular methodology itself.</li>
<li style="text-align: justify;">Archive - A large part of the DH work in India seems to be focussed around the archive - both as a concept and practice. With the digital becoming in a sense the default mode of documentation across the humanities disciplines, and the opening up of the archive due to more public and digital archival efforts, the concept of the archive and archival practice have undergone several changes in terms of becoming now more networked and accessible. As mentioned earlier, we are living in an archival moment where there is a transition from analogue to digital, and it is in this moment of transition that a lot of new questions around data and knowledge will emerge. See http://cis-india.org/raw/digital-humanities/living-in-the-archival-moment.</li>
<li style="text-align: justify;">Text - the text has been one of significant aspects of the DH debate, given that the academic discourse on DH in the West and now in India is primarily located in English departments. The understanding of the text as object, method and practice as mediated through digital spaces and tools is an important part of the discourse around DH, and has implications for how we understand changes in the nature of the text, and reading and writing as technologised processes in the digital context. See http://cis-india.org/raw/digital-humanities/reading-from-a-distance.</li>
<li style="text-align: justify;">Process: An important point of emphasis in DH has been that of process, perhaps even more than content or outcomes. Given that the method of DH is collaborative and peer-to-peer, the processes of doing, making or teaching-learning etc become increasingly visible and important to understanding the nature of the field and knowledge production itself. More importantly, it also seeks to bring in the practitioner's experience into the realm of research and pedagogy.</li>
<li style="text-align: justify;">Liminal : DH is a good example of a liminal space; which is a space that is on both sides of a threshold or boundary, and is therefore at some level undefined and transitional. The liminal space is often located at the margin of a body of knowledge or discipline, and it is at the margins of disciplines that new knowledge is produced. The discourse and even criticism around DH highlights the difficulties with defining the present nebulous nature of these liminal spaces and what they could transform into in the future. See http://cis-india.org/raw/digital-humanities/digital-humanities-and-alt-academy.</li>
<li style="text-align: justify;">Interdisciplinarity - Closely tied to the notion of liminal spaces is the notion of interdisciplinarity. DH by nature is interdisciplinary, given that it draws upon methods and concerns from the other disciplines, but instead of limiting the definition to just this, it also provides a space to understand the challenges of negotiating and using an interdisciplinary approach to the humanities and other disciplines and develop these questions further. See http://cis-india.org/raw/digital-humanities/digital-humanities-and-alt-academy. </li></ol>
<hr align="left" size="1" width="100%" />
<div id="ftn1">
<p><a name="_ftn1" href="#_ftnref1">[1]</a> See Bill Readings, <em>The University in Ruins</em> Cambridge: Harvard University Press, 1997, pp 1-20.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2" href="#_ftnref2">[2]</a> See Patrik Svensson. "The Landscape of Digital Humanities". <em>Digital Humanities Quarterly</em>,4:1 <a href="http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html">http://digitalhumanities.org/dhq/vol/4/1/000080/000080.html</a></p>
</div>
<div id="ftn3">
<p><a name="_ftn3" href="#_ftnref3">[3]</a> <em> Ibid.</em></p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/mapping-digital-humanities-in-india-concluding-thoughts'>http://editors.cis-india.org/raw/mapping-digital-humanities-in-india-concluding-thoughts</a>
</p>
No publishersneha-ppDigital KnowledgeMapping Digital Humanities in IndiaResearchFeaturedDigital HumanitiesResearchers at Work2015-11-13T05:36:10ZBlog EntryCIS Comments on TRAI Consultation Paper on Promoting Local Telecom Equipment Manufacturing
http://editors.cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing
<b>The Centre for Internet & Society (CIS) sent comments to the TRAI Consultation Paper on promoting telecom equipment manufacturing. CIS submission drew primarily from the research done in the Pervasive Technologies project.</b>
<p><b><a class="external-link" href="http://trai.gov.in/sites/default/files/CP_on_Manufacturing_18_09_17.pdf">Read TRAI's Consultation Paper on Promoting Local Telecom Equipment Manufacturing </a></b></p>
<hr />
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b><span>Preliminary</span></b></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b><span> </span></b></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><span>This submission presents comments by the Centre for Internet and Society, India ("<b>CIS</b>") on the <i>Consultation Paper on Promoting Local Telecom Equipment Manufacturing </i>dated 18.09. 2017, released by the Telecom Regulatory Authority of India (TRAI), under Department of Telecom, Ministry of Communications and Information Technologies (“<b>the TRAI Consultation Paper</b>”).</span><span> </span></li>
<li style="text-align: justify; "><span>We commend TRAI for its efforts at seeking inputs from various stakeholders on this important and timely issue and are thankful for the opportunity to put forth our views.</span></li>
<li style="text-align: justify; "><span>We have addressed questions 3 and 5 of the TRAI Consultation Paper. Question numbers referred to in our submission correspond to those in the TRAI Consultation Paper.</span><span> </span></li>
<li style="text-align: justify; "><span>Further, the Department of Industrial Planning and Promotion (DIPP) invited comments on SEPs and their availability on FRAND terms on 01. 03. 2016.<a href="#_ftn1" name="_ftnref1"><span>[1]</span></a> CIS submitted a detailed response to the consultation, and our present submission will draw significantly from our earlier response<a href="#_ftn2" name="_ftnref2"><span>[2]</span></a>, as well as new empirical research concluded in the since the time of the consultation.</span></li>
</ol>
<p style="text-align: justify; "><span> </span></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><b><span>About CIS<br /></span></b></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><span> </span></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><span>CIS<a href="#_ftn3" name="_ftnref3"><span>[3]</span></a> is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. Our areas of focus include IP rights, openness, internet governance, telecommunication reform, free speech, intermediary liability, digital privacy, cyber-security, and accessibility for persons with diverse abilities.</span><span> </span></li>
<li style="text-align: justify; "><span>We strive to maximise public benefit, useful innovation, vibrant competition and consumer welfare. This submission is consistent with our commitment to the domestic goals (as enumerated in Make in India and Digital India), and the protection of India's national interest at the international level. </span></li>
</ol>
<p style="text-align: justify; "><span> </span></p>
<ul style="text-align: justify; ">
</ul>
<p style="text-align: justify; "><b><span>Submission on the Issues for Resolution<br /></span></b></p>
<ul style="text-align: justify; ">
</ul>
<p style="text-align: justify; "><b><i><span>“Q.3 Are the existing patent laws in India sufficient to address the issues of local manufacturers? If No, then suggest the measures to be adopted and amendments that need to be incorporated for supporting the local telecom manufacturing industry.</span></i></b><span>”</span></p>
<p style="text-align: justify; "><span>We submit that amendments to the Patents Act, 1970 may not be preferred, presently. It may be noted that there have been no judgments concluded by Indian courts on disputes relating to licensing of SEPs, yet. Justice Bakhru’s landmark order in <i>Telefonaktiebolaget LM Ericsson (Publ) </i>v. <i>Competition Commission of India (2016) </i>provided valuable clarity on the issue of conflict between remedies under Patents Act, 1970 and Competition Act, 1970. As various other matters are yet to be conclusively decided, and given the complex legal questions involved around the interpretation of Patents Act, 1970 and Competition Act, 2002, and constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts, we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.</span></p>
<p style="text-align: justify; "><span>However, to support the local telecom manufacturing industry the Government of India may adopt and implement the following measures: </span></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><b><span> <span>Develop Model Guidelines to improve the working of Indian Standard Setting Organisations (SSOs</span>): </span></b><span>Given the increasing complexity and time-consuming nature of SEP litigation in India, there is a tangible threat of the abuse of the FRAND process, it might be useful for the government to make suggestions on the working of Indian SSOs. The functioning of Indian SSOs has not been satisfactory and it is suggested that the government develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements. The India specific requirements include a large and exponentially growing mobile device market which has made it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin. We believe that this measure will also enable the fulfillment of the objectives of the Make in India and Digital India initiatives.</span><span><br /><br />We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the Indian Patent Office, the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.</span><span><br /><br />In our opinion, the Model Guidelines may cover (a) the composition of the SSO; (b) the process of admitting members; (c) the process of the determination of a standard or technical specification; (d) the process of declassification of a standard or technical specification; (e) the IPR Policy; (f) resolution of disputes; (g) applicable law.<br /><br /></span></li>
<li style="text-align: justify; "><b><span><span>Initiate the formation of a patent pool of critical mobile technologies and cap royalty payments</span></span></b><span><span>:</span></span><span> In light of the observed inadequacies in the IPR policies of various SSOs in India, as well the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the government intervene in the setting of royalties and FRAND terms by setting up a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty. Further, patent pools should be required to offer FRAND licenses on the same terms to both members and nonmembers of the pool.</span><span> </span><span><br /><br />Our motivations for this proposal are manifold. In our opinion, it is nearly impossible for potential licensees to avoid inadvertent patent infringement. As a part of our research on technical standards applicable to mobile phones sold in India, we have found nearly 322 standards so far.<a href="#_ftn4" name="_ftnref4"><span>[4]</span></a> It is submitted that carrying out patent searches for all the standards would be extremely expensive for potential licensees. Further, even if such searches were to be carried out, different patent owners, SSOs and potential licensees disagree on valuation, essentiality, enforceability, validity, and coverage of patents. In addition, some patent owners are non-practising entities and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, homegrown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.</span><span> </span><span><br /><br />Further, how did we arrive at a cap of 5 percent? The rationale for this figure is the royalty cap imposed by India in the early 1990s. As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to “high priority industries”.<a href="#_ftn5" name="_ftnref5"><span>[5]</span></a> Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government. While the early 1990s (specifically, 1991) was too early for the mobile device manufacturing industry to be listed among high priority industries, the public announcement by the government covered computer software, consumer electronics, and electrical and electronic appliances for home use. The cap on royalty rates was lifted by the DIPP in 2009.<a href="#_ftn6" name="_ftnref6"><span>[6]</span></a> It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other’s patent portfolios. Dynamics in the Indian market differ – with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, homegrown.</span><span><br /><br />In June, 2013, we had recommended to the erstwhile Hon’ble Minister for Human Resource Development<a href="#_ftn7" name="_ftnref7"><span>[7]</span></a> that a patent pool of essential technologies be established, with the compulsory licensing mechanism. Subsequently, in February, 2015, we reiterated this request to the Hon’ble Prime Minister.<a href="#_ftn8" name="_ftnref8"><span>[8]</span></a> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and mandate a five percent compulsory license.<a href="#_ftn9" name="_ftnref9"><span>[9]</span></a> As we have stated in our request to the Hon’ble Prime Minister, we believe that such a pool would “<i>possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anticompetitive practices.</i>”<a href="#_ftn10" name="_ftnref10"><span>[10]</span></a> We believe that such a measure will not be in breach of our international obligations under the TRIPS Agreement.<br /><br /></span></li>
<li style="text-align: justify; "><b><span><span>Increase transparency in the patent system by making patentees comply with the law</span></span></b><span>: </span><span>The Patents Act, 1970 requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year.<a href="#_ftn11" name="_ftnref11"><span>[11]</span></a> Form 27 under section 146(2) of the Act lists the details necessary to be disclosed for compliance of the requirement of “working”. A jurisprudential analysis reveals the rationale and objective behind this mandatory requirement. Undeniably, the scheme of the Indian patent regime makes it amply clear that “working” is a very important requirement, and the public as well as competitors have a right to access this information in a timely manner, without undue hurdles. Indeed, as the decision<a href="#_ftn12" name="_ftnref12"><span>[12]</span></a> in <i>Natco Pharma </i>v. <i>Bayer Corporation<a href="#_ftn13" name="_ftnref13"><b><span>[13]</span></b></a></i> reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. <b>Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent “working” information in a timely manner</b>.</span><span> </span><span><br /><br />However, there has been little compliance of this requirement by the patentees, despite the Indian Patent Office (<b>IPO</b>) reiterating the importance of compliance through the issuance of multiple public notices<a href="#_ftn14" name="_ftnref14"><span>[14]</span></a> (suo motu and in response to a public interest litigation filed in 2011<a href="#_ftn15" name="_ftnref15"><span>[15]</span></a>), and, reminding the patentees that noncompliance is punishable with a heavy fine.<a href="#_ftn16" name="_ftnref16"><span>[16]</span></a> Findings of research submitted by one of the parties<a href="#_ftn17" name="_ftnref17"><span>[17]</span></a> in the writ of the 2011 public interest <i>litigation Shamnad Basheer v. Union of India</i> <i>and others</i><a href="#_ftn18" name="_ftnref18"><span>[18]</span></a> reveal as follows. First, a large number of Form 27s are unavailable for download from the website of the IPO. This possibly indicates that the forms have either not been filed by the patentees with the IPO, or have not been uploaded (yet) by the IPO. Second, a large number of filings in the telecom sector remain incomplete.</span><span><br /><br />In 2015, CIS queried the IPO website for Form 27s of mobile device patents to arrive at a similar conclusion. We obtained 4,916 valid Form 27s, corresponding to 3,126 mobile device patents from public online records. These represented only 20.1% of all Forms 27 that should have been filed and corresponded to only 72.5% of all mobile device patents for which Forms 27 should have been filed. Forms 27 were missing for almost all patentees, and even among Forms 27 that were obtained, almost none contained useful information regarding the working of the subject patents or fully complying with the informational requirements of the Indian Patent Rules.<a href="#_ftn19" name="_ftnref19"><span>[19]</span></a></span><span><br /><br />Further, in our study, we observed that patentees adopted drastically different positions regarding the definition of patent working, some arguing that importation of products into India or licensing of Indian suppliers constituted working, while others even went so far as to argue that the granting of a worldwide license to a non-Indian firm constituted working in India. Several significant patentees claimed that they or their patent portfolios were simply too large to enable the provision of information relating to individual patents, and instead provided gross revenue and product sale figures, together with historical anecdotes about their long histories in India.</span><span><br /><br />The Indian government has made little or no effort to monitor or police compliance with Form 27 filings, undoubtedly leading to significant non-compliance. We also propose the alteration of the Form 27 template<a href="#_ftn20" name="_ftnref20"><span>[20]</span></a> to include more disclosures.<a href="#_ftn21" name="_ftnref21"><span>[21]</span></a> Presently, patentees are required to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.<br /><br /></span></li>
<li style="text-align: justify; "><span><b>Require royalty rates to be decided on the basis of the Smallest Saleable Patent Practicing Component: </b>Most modern telecommunication and IT devices are complex with numerous technologies working in tandem. Different studies indicate that the number of patents in the US applicable to smartphones is between 200,000 and 250,000.<a href="#_ftn22" name="_ftnref22"><span>[22]</span></a> A comprehensive patent landscape of mobile device technologies conducted by CIS reveals that nearly 4,000 patents are applicable to mobile phones sold in India.<a href="#_ftn23" name="_ftnref23"><span>[23]</span></a> It is thus extremely difficult to quantify the exact extent of interaction and interdependence between technologies in any device, in such a way that the exact contribution of the patented technology to the entire device can be determined. Thus, we submit that royalty rates for SEPs should be based on the <i>smallest saleable patent practising component</i>, and not on the net price of the downstream product.</span><span><br /><br />The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al<a href="#_ftn24" name="_ftnref24"><span>[24]</span></a> have found that the cost of a 4G baseband chip costs up to $20 including royalties in a hypothetical $400 phone sold in the US. One of the litigating parties in the ongoing patent infringement lawsuits in India has stated that one of the reasons for preferring to leverage its patents as downstream as possible in the value chain is that it will earn the company more royalties.<a href="#_ftn25" name="_ftnref25"><span>[25]</span></a> In instances where patent exhaustion occurs much earlier in the value chain, such as in the case of the company’s cross-licenses with Qualcomm (another company that owns patents to chip technologies), the company does not try to obtain royalties from the selling prices of devices for the cross-licensed technologies. It is submitted that such market practices could be detrimental to the government’s objectives such as providing a mobile handset to every Indian by 2020 as a part of the Digital India programme.<a href="#_ftn26" name="_ftnref26"><span>[26]</span></a> It is also worth noting in this context that the mobile device is the first and only medium of access to the Internet and telecom services for a large number of Indians, and, consequently, the only gateway to access to knowledge, information and critical services, including banking.<a href="#_ftn27" name="_ftnref27"><span>[27]</span></a></span><b><i><span><br /><br /> “Q.5 Please suggest a dispute resolution mechanism for determination of royalty distribution on FRAND (Fair Reasonable and Non Discriminatory) basis.”</span></i></b><span><br /><br />The licensing of SEPs on FRAND terms requires the parties to negotiate “reasonable” royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into <b>binding arbitration</b>. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.</span><span><br /><br />Section 115 of the Patents Act empowers the court to appoint an independent scientific adviser “<i>to assist the court or to inquire and report upon any such question of fact or of opinion (not involving a question of interpretation of law) as it may formulate for the purpose.</i>”<a href="#_ftn28" name="_ftnref28"><span>[28]</span></a> Such an independent adviser may inform the court on the technical nuances of the matter.</span><span><br /><br />Further<b>, </b>under the Patents Act, pending the decision of infringement proceedings the Court may provide interim relief, if the plaintiff proves <i>first, </i>a prima facie case of infringement; <i>second, </i>that the balance of convenience tilts in plaintiff’s favour; and, <i>third, </i>that if an injunction is not granted the plaintiff shall suffer irreparable damage. However, it is our suggestion that courts adopt a more cautious stance towards granting injunctions in the field of SEP litigation. <i>First, </i>in our opinion, injunctions may prove to be a deterrent to arrive at a FRAND commitment, in particular, egregiously harming the willing licensee. <i>Second, </i>especially in the Indian scenario, where litigating parties operate in vastly different price segments (thereby targeting consumers with different purchasing power), it is difficult to establish that “irreparable damage” has been caused to the patent owner on account of infringement. <i>Third, </i>we note the approach of the European Court of Justice, which prohibited the patent holder from enforcing an injunction provided a willing licensee makes an offer for the price it wishes to pay to use a patent under the condition that it deposited an amount in the bank as a security for the patent holder.<a href="#_ftn29" name="_ftnref29"><span>[29]</span></a> <i>Fourth, </i>we also note the approach of the Federal Trade Commission in the USA, which only authorizes patent holders to seek injunctive relief against potential licensees who have either stated that they will not license a patent on any terms, or refuse to enter into a license agreement on terms that have been set in the final ruling of a court or arbitrator.<a href="#_ftn30" name="_ftnref30"><span>[30]</span></a> Further, as Contreras (2015)<a href="#_ftn31" name="_ftnref31"><span>[31]</span></a> observes, that the precise boundaries of what constitutes as an unwilling licensee remains to be seen. We observe a similar ambiguity in Indian jurisprudence, and accordingly submit that courts should carefully examine the conduct of the licensee to injunct them from the alleged infringement.</span></li>
</ol>
<p style="text-align: justify; "><b>Concluding Remarks</b></p>
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><span>We are thankful to TRAI for the opportunity to make these submissions. It would be our pleasure and privilege to discuss these comments with the TRAI; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.</span></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><span>[1]</span></a> Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms, available at <a href="https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms">https://cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a> (last accessed November 13, 2017)</p>
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2"><span>[2]</span></a> Anubha Sinha, Nehaa Chaudhari and Rohini Lakshane, “CIS’ Comments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms” (April 23, 2016); available at <a href="https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms">https://cis-india.org/a2k/blogs/comments-on-department-of-industrial-policy-and-promotion-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms</a></p>
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3"><span>[3]</span></a> <a href="http://www.cis-india.org">www.cis-india.org</a></p>
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4"><span>[4]</span></a> Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5"><span>[5]</span></a> Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at http://www.businessstandard.com/article/economypolicy/newsonroyaltypaymentbringscheerinnewyear11001 0400044_1.html (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><span>[6]</span></a> See Sanjana Govil, Putting a Lid on Royalty Outflows How the RBI Can Help Reduce India’s IP Costs <i>, </i>available at <a href="http://cisindia.org/a2k/blogs/lidonroyaltyoutflows">http://cisindia.org/a2k/blogs/lidonroyaltyoutflows</a> (last accessed 13 November, 2017) for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.</p>
<p style="text-align: justify; "><a href="#_ftnref7" name="_ftn7"><span>[7]</span></a> Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low cost Access Devices through Compulsory</p>
<p style="text-align: justify; ">Licenses, available at <a href="http://cisindia.org/a2k/blogs/letterforestablishmentofpatentpoolforlowcostaccessdevices">http://cisindia.org/a2k/blogs/letterforestablishmentofpatentpoolforlowcostaccessdevices </a>(last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref8" name="_ftn8"><span>[8]</span></a> See Rohini Lakshané, Open Letter to PM Modi, available at <a href="http://cisindia.org/a2k/blogs/openlettertoprimeministermodi">http://cisindia.org/a2k/blogs/openlettertoprimeministermodi</a> (last accessed 13 November, 2017) for further details of CIS’ proposal.</p>
<p style="text-align: justify; "><a href="#_ftnref9" name="_ftn9"><span>[9]</span></a> Rohini Lakshané, FAQ: CIS’ proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cisindia.org/a2k/blogs/faqcisproposalforcompulsorylicensingofcriticalmobiletechnologies">http://cisindia.org/a2k/blogs/faqcisproposalforcompulsorylicensingofcriticalmobiletechnologies </a>(last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10"><span>[10]</span></a> Id.</p>
<p style="text-align: justify; "><a href="#_ftnref11" name="_ftn11"><span>[11]</span></a> Section 146(2) of the Patents Act, 1970.</p>
<p style="text-align: justify; "><a href="#_ftnref12" name="_ftn12"><span>[12]</span></a> Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at <a href="http://spicyip.com/2013/02/patentofficefinallytakesform27s.html">http://spicyip.com/2013/02/patentofficefinallytakesform27s.html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref13" name="_ftn13"><span>[13]</span></a> Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at <a href="http://www.ipab.tn.nic.in/0452013.htm">http://www.ipab.tn.nic.in/0452013.htm</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref14" name="_ftn14"><span>[14]</span></a> Intellectual Property India, Public Notice, available at</p>
<p style="text-align: justify; "><a href="http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf">http://www.ipindia.nic.in/iponew/publicNotice_Form27_12Feb2013.pdf</a> ((last accessed 13 November, 2017) <i>and </i>Intellectual Property India, Public Notice, available at <a href="http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf">http://ipindia.nic.in/iponew/publicNotice_24December2009.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref15" name="_ftn15"><span>[15]</span></a> Supra note 11.</p>
<p style="text-align: justify; "><a href="#_ftnref16" name="_ftn16"><span>[16]</span></a> Id.</p>
<p style="text-align: justify; "><a href="#_ftnref17" name="_ftn17"><span>[17]</span></a> See research findings available at <a href="http://spicyip.com/wpcontent/uploads/2015/05/FORM27WP1Rcopy.pdf">http://spicyip.com/wpcontent/uploads/2015/05/FORM27WP1Rcopy.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref18" name="_ftn18"><span>[18]</span></a> In the High Court of Delhi, W.P.(C) 5590/2015. This litigation is currently ongoing. See, illustratively, Mathews P. George, <i>Patent Working in India: Delhi HC issues notice in Shamnad Basheer </i>v<i>. Union of India & Ors. – I </i>, available at <a href="http://spicyip.com/2015/09/patentworkinginindiadelhihcissuesnoticeinshamnadbasheervunionofindiaorsi.html">http://spicyip.com/2015/09/patentworkinginindiadelhihcissuesnoticeinshamnadbasheervunionofindiaorsi.html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref19" name="_ftn19"><span>[19]</span></a> Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: <a href="https://ssrn.com/abstract=3004283">https://ssrn.com/abstract=3004283</a></p>
<p style="text-align: justify; "><a href="#_ftnref20" name="_ftn20"><span>[20]</span></a> Form 27, The Patents Act, available at <a href="http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20%20html/Forms/Form27.pdf">http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20%20html/Forms/Form27.pdf</a> (last accessed November 13, 10`7).</p>
<p style="text-align: justify; "><a href="#_ftnref21" name="_ftn21"><span>[21]</span></a> However, we came across some complaints raised by patentees and industry observers regarding the structure of the Form 27 requirement - namely, patents covering complex, multi-component products that embody dozens of technical standards and thousands of patents are not necessarily amenable to the individual-level data requested by Form 27. See Contreras, Jorge L. and Lakshané, Rohini and Lewis, Paxton, Patent Working Requirements and Complex Products (October 1, 2017). NYU Journal of Intellectual Property & Entertainment Law, Forthcoming. Available at SSRN: <a href="https://ssrn.com/abstract=3004283">https://ssrn.com/abstract=3004283</a></p>
<p style="text-align: justify; "><a href="#_ftnref22" name="_ftn22"><span>[22]</span></a> Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking, <i>85 Tex. L. Rev. at 2015 </i>; See also, for e.g.,</p>
<p style="text-align: justify; ">RPX Corporation, Amendment No. 3 to Form Sl,11 Apr. 2011, at 59, available at http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm (last accessed 22 April, 2016), quoting <i>“Based on our research, we believe there are more than 250,000 active patents relevant to today’s</i></p>
<p style="text-align: justify; "><i>smartphones…” </i>.; See further Steve Lohr, Apple Samsung Case Shows Smartphone as Legal Magnet, New York Times, 25 Aug. 2012, available at <a href="http://www.nytimes.com/2012/08/26/technology/applesamsungcaseshowssmartphoneaslawsuitmagnet">http://www.nytimes.com/2012/08/26/technology/applesamsungcaseshowssmartphoneaslawsuitmagnet</a>.html (last accessed November13, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref23" name="_ftn23"><span>[23]</span></a> Jorge L. Contreras and Rohini Lakshané, Patents and Mobile Devices in India: An Empirical Survey, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref24" name="_ftn24"><span>[24]</span></a> Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The SmartphoneRoyalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at <a href="https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/TheSmartphoneRoyaltyStackArmstrongMuellerSyrett.pdf">https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/TheSmartphoneRoyaltyStackArmstrongMuellerSyrett.pdf</a> (last accessed 13 November, 2017)</p>
<p style="text-align: justify; "><a href="#_ftnref25" name="_ftn25"><span>[25]</span></a> Florian Mueller, Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at <a href="http://www.fosspatents.com/2014/01/ericssonexplainedpubliclywhyits.Html">http://www.fosspatents.com/2014/01/ericssonexplainedpubliclywhyits.Html</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref26" name="_ftn26"><span>[26]</span></a> Romit Guha and Anandita Singh Masinkotia, PM Modi’s Digital India Project:Government to Ensure that Every Indian has a Smartphone by 2019, available at <a href="http://articles.economictimes.indiatimes.com/20140825/news/53205445_1_digitalindiaindiatodayfinancialservices">http://articles.economictimes.indiatimes.com/20140825/news/53205445_1_digitalindiaindiatodayfinancialservices</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref27" name="_ftn27"><span>[27]</span></a> Nehaa Chaudhari, Standard Essential Patents on Low Cost Mobile Phones in India: A Case to Strengthen Competition Regulation? available at <a href="http://www.manupatra.co.in/newsline/articles/Upload/08483340C1B94BA4B6A9D6B6494391B8.pdf">http://www.manupatra.co.in/newsline/articles/Upload/08483340C1B94BA4B6A9D6B6494391B8.pdf</a> (last accessed 13 November, 2017).</p>
<p style="text-align: justify; "><a href="#_ftnref28" name="_ftn28"><span>[28]</span></a> Section 115 of the Patents Act, 1970.</p>
<p style="text-align: justify; "><a href="#_ftnref29" name="_ftn29"><span>[29]</span></a> <i>Huawei Technologies Co. Ltd </i>v. <i>ZTE Corp. and ZTE Deutschland </i>, Judgment of the Court (Fifth Chamber) of 16 July 2015 in GmbH C170/13.</p>
<p style="text-align: justify; "><a href="#_ftnref30" name="_ftn30"><span>[30]</span></a> Third Party United States Fed. Trade Commission’s Statement on the Public Interest, <i>In re Certain Wireless Communication Devices, Portable Music and Data Processing Devices, Computers and Components Thereof</i>, U.S. Int’l Trade Comm’n, Inv. No. 337TA745 (Jun. 6, 2012).</p>
<p style="text-align: justify; "><a href="#_ftnref31" name="_ftn31"><span>[31]</span></a> Jorge L. Contreras, A Brief History of FRAND: Analyzing Current Debates in Standard Setting and Antitrust Through a Historical Lens <i>, </i>80 Antitrust Law Journal 39 (2015), available at h ttp://ssrn.com/abstract=2374983 or <a href="http://dx.doi.org/10.2139/ssrn.2374983">http://dx.doi.org/10.2139/ssrn.2374983</a> (last accessed 13 November, 2017).</p>
<p>
For more details visit <a href='http://editors.cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing'>http://editors.cis-india.org/telecom/blog/cis-comments-on-promoting-local-telecom-equipment-manufacturing</a>
</p>
No publishersinhaTelecomFeaturedHomepage2017-11-26T02:56:15ZBlog EntryInternet Researchers' Conference 2016 (IRC16)
http://editors.cis-india.org/raw/irc16
<b>The first Internet Researchers' Conference (IRC16) will be organised at the Jawaharlal Nehru University (JNU), Delhi, on February 26-28, 2016. The focus of the Conference is on the experiences, adventures, and methods of 'studying internet in India.' We are deeply grateful to the Centre for Political Studies (CPS), JNU, for hosting the Conference, and to the CSCS Digital Innovation Fund (CDIF) for the generous support. It is a free and open conference. Please use the form to register.</b>
<p> </p>
<h4>It is our great pleasure to announce the beginning of the Internet Researchers' Conference (IRC), an annual conference series initiated by the Researchers at Work (RAW) programme at CIS to gather researchers, academic or otherwise, studying internet in/from India to congregate, share insights and tensions, and chart the ways forward.</h4>
<p> </p>
<h4>This conference series is specifically driven by the following interests: 1) creating discussion spaces for researchers studying internet in India and in other comparable regions, 2) foregrounding the multiplicity, hierarchies, tensions, and urgencies of the digital sites and users in India, 3) accounting for the various layers, conceptual and material, of experiences and usages of internet and networked digital media in India, and 4) exploring and practicing new modes of research and documentation necessitated by new (digital) forms of objects of power/knowledge.</h4>
<p> </p>
<h4>The first edition of the Conference, IRC16, is engaging with the theme of 'studying internet in India.' The word <em>study</em> here is a shorthand for a range of tasks, from documentation and theory-building, to measurement and representation.</h4>
<p> </p>
<h2>Dates and Venue</h2>
<p>The IRC16 will take place during <strong>February 26-28, 2016</strong>, at the Convention Centre of the <a href="http://jnu.ac.in/">Jawaharlal Nehru University (JNU)</a>, Delhi. We are grateful to <a href="http://www.jnu.ac.in/SSS/CPS/">Centre for Political Studies (CPS)</a> at JNU for hosting the Conference, and to the <a href="http://cis-india.org/raw/cscs-digital-innovation-fund">CSCS Digital Innovation Fund (CDIF)</a> for its generous support.</p>
<p> </p>
<iframe src="https://www.google.com/maps/embed?pb=!1m14!1m12!1m3!1d1752.512135244194!2d77.16642650602853!3d28.53899019877363!2m3!1f0!2f0!3f0!3m2!1i1024!2i768!4f13.1!5e0!3m2!1sen!2s!4v1455124383423" frameborder="0" height="300" width="600"></iframe>
<p> </p>
<h2>Registration and Programme</h2>
<p>Conference programme: <a href="https://github.com/cis-india/IRC16/raw/master/IRC16_Programme-v.2.2.pdf">Download</a> (PDF).</p>
<p>Programme booklet: <a href="https://github.com/cis-india/IRC16/raw/master/IRC16_Programme-Booklet.pdf">Download</a> (PDF).</p>
<p><strong>[Important]</strong> Invitation letter to help you enter JNU campus: <a href="https://github.com/cis-india/IRC16/raw/master/IRC16_Invitation-Letter.pdf">Download</a> (PDF).</p>
<p>Please register for the Conference here: <a href="http://goo.gl/forms/uu0HjXWbxK" target="_blank">Form</a> (Google).</p>
<p>We apologise for not being able to provide travel or accommodation support.</p>
<p> </p>
<h2>Etherpads</h2>
<p>#Methods&ToolsForInternetResearch : <a class="external-link" href="https://public.etherpad-mozilla.org/p/IRC16-InternetResearch">https://public.etherpad-mozilla.org/p/IRC16-InternetResearch</a></p>
<p>#DigitalDesires: <a href="https://public.etherpad-mozilla.org/p/IRC16-DigitalDesires">https://public.etherpad-mozilla.org/p/IRC16-DigitalDesires</a>.</p>
<p>#InternetMovements: <a href="https://public.etherpad-mozilla.org/p/IRC16-InternetMovements">https://public.etherpad-mozilla.org/p/IRC16-InternetMovements</a>.</p>
<p>#WebOfGenealogies: <a href="https://public.etherpad-mozilla.org/p/IRC16-WebOfGenealogies">https://public.etherpad-mozilla.org/p/IRC16-WebOfGenealogies</a>.</p>
<p>#MinimalComputing: <a href="https://public.etherpad-mozilla.org/p/IRC16-MinimalComputing">https://public.etherpad-mozilla.org/p/IRC16-MinimalComputing</a>.</p>
<p>#STSDebates: <a href="https://public.etherpad-mozilla.org/p/IRC16-STSDebates">https://public.etherpad-mozilla.org/p/IRC16-STSDebates</a>.</p>
<p>#ArchiveAnarchy: <a href="https://public.etherpad-mozilla.org/p/IRC16-ArchiveAnarchy">https://public.etherpad-mozilla.org/p/IRC16-ArchiveAnarchy</a>.</p>
<p>#ManyPublicsOfInternet: <a href="https://public.etherpad-mozilla.org/p/IRC16-ManyPublicsOfInternet">https://public.etherpad-mozilla.org/p/IRC16-ManyPublicsOfInternet</a>.</p>
<p>#DigitalLiteraciesAtTheMargins: <a href="https://public.etherpad-mozilla.org/p/IRC16-DigitalLiteraciesAtTheMargins">https://public.etherpad-mozilla.org/p/IRC16-DigitalLiteraciesAtTheMargins</a>.</p>
<p>#FutureBazaars: <a href="https://public.etherpad-mozilla.org/p/IRC16-FutureBazaars">https://public.etherpad-mozilla.org/p/IRC16-FutureBazaars</a>.</p>
<p>#PoliticsOnSocialMedia: <a href="https://public.etherpad-mozilla.org/p/IRC16-PoliticsOnSocialMedia">https://public.etherpad-mozilla.org/p/IRC16-PoliticsOnSocialMedia</a>.</p>
<p>#SpottingData: <a href="https://public.etherpad-mozilla.org/p/IRC16-SpottingData">https://public.etherpad-mozilla.org/p/IRC16-SpottingData</a>.</p>
<p>#WikiShadows: <a href="https://public.etherpad-mozilla.org/p/IRC16-WikiShadows">https://public.etherpad-mozilla.org/p/IRC16-WikiShadows</a>.</p>
<p>#FollowTheMedium: <a href="https://public.etherpad-mozilla.org/p/IRC16-FollowTheMedium">https://public.etherpad-mozilla.org/p/IRC16-FollowTheMedium</a>.</p>
<p>#AFCinema2.0: <a href="https://public.etherpad-mozilla.org/p/IRC16-AFCinema2.0">https://public.etherpad-mozilla.org/p/IRC16-AFCinema2.0</a>.</p>
<p>#LiterarySpaces: <a href="https://public.etherpad-mozilla.org/p/IRC16-LiterarySpaces">https://public.etherpad-mozilla.org/p/IRC16-LiterarySpaces</a>.</p>
<p> </p>
<h2>Resources</h2>
<p>Call for sessions: <a href="http://cis-india.org/raw/irc16-call" target="_blank">http://cis-india.org/raw/irc16-call</a>.</p>
<p>Proposed sessions: <a href="http://cis-india.org/raw/irc16-proposed-sessions" target="_blank">http://cis-india.org/raw/irc16-proposed-sessions</a>.</p>
<p>Selected sessions: <a href="http://cis-india.org/raw/irc16-selected-sessions" target="_blank">http://cis-india.org/raw/irc16-selected-sessions</a>.</p>
<p>Please join the <a href="https://lists.ghserv.net/mailman/listinfo/researchers">researchers@cis-india</a> mailing list to take part in pre- and post-conference conversations.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/irc16'>http://editors.cis-india.org/raw/irc16</a>
</p>
No publishersumandroConferenceCDIFInternet Researcher's ConferenceFeaturedLearningIRC16Researchers at WorkEvent2016-02-27T06:19:33ZEventThe new Guidelines for Computer Related Inventions are a big win for FOSS in India!
http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india
<b>India is one of the few countries which permits patenting of software – a monopolization that has only benefited established corporations and largely throttled innovation in the software industry, worldwide. CIS has consistently advocated against patentablity of software and in a major victory last week, software patenting in India died a little more. This happened via the newly issued Guidelines for the Examination of Computer Related Inventions, which introduces a new test to restrict software patenting – in essence the same legal test that CIS had been proposing since 2010. This post highlights the new test and other noteworthy changes in the Guidelines. </b>
<p> </p>
<p>When
the Guidelines for examination of Computer Related Inventions(“
2015 Guidelines”) were released last year, it became <a href="http://www.livemint.com/Industry/XGBbgNllmvuEUhJWs2cWgK/Revised-guidelines-for-software-patents-put-on-hold.html">obvious
that they would have an adverse impact on innovation in the Indian
software industry</a>. Further, the 2015 Guidelines were legally
defective since they ran counter to the object of Section 3(k) of the
Patents Act, 1970, which is to unconditionally exclude mathematical
and business methods, computer programs per se, and algorithms from
patentable subject matter. To stop and prevent egregious harms, <a href="http://sflc.in/wp-content/uploads/2015/09/Letter_CRIGuidelines2015-Prime-Minister.pdf">civil
society organisations collectively wrote to the Prime Minister's
Office</a> flagging off the defects and requested for a recall of the
Guidelines. In
December 2015, the Indian Patent Office <a href="http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions-in-abeyance">promptly
recalled the 2015 Guidelines</a> and held a consultation to discuss
the concerns raised in the letter.</p>
<p>Based
on submissions by various stakeholders, the Patent Office released a
<a href="http://ipindia.nic.in/iponew/GuidelinesExamination_CRI_19February2016.pdf">new
set of Guidelines</a>(“Guidelines”), which are not only a
staggering improvisation from all previous versions, but also
introduce a new three step test to determine applicability of section
3(k), an area of Indian patent law that has been notoriously full of
uncertainties:</p>
<blockquote>
<p>5.
Tests/ Indicators to determine Patentability of CRIs (“Computer
Related inventions”):</p>
<p>Examiners
may rely on the following three stage test in examining CRI
applications:</p>
<p>(1)
Properly construe the claim and identify the actual contribution;</p>
<p>(2)
If the contribution lies only in mathematical method, business method
or algorithm, deny the claim;</p>
<p>(3)
If the contribution lies in the field of computer programme, check
whether it is claimed in conjunction with a novel hardware and
proceed to other steps to determine patentability with respect to the
invention. The computer programme in itself is never patentable. If
the contribution lies solely in the computer programme, deny the
claim. If the contribution lies in both the computer programme as
well as hardware, proceed to other steps of patentability.</p>
</blockquote>
<p> </p>
<p>CIS
had proposed the exact same test in its <a href="http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010">earlier
submissions(2010)</a> to the Patent Office, albeit worded differently. We
submitted:</p>
<blockquote>
<p><em>"We
propose a new part to the above test to make the clause clearer. The
Manual should specify that “the computer programme portions of any
claimed invention should be treated as if it were covered by prior
art and patentability should thus be determined with respect to the
other features of the invention”. This way, we can ensure that an
invention which merely uses or implements a computer programme is not
granted patent on the basis of the inventiveness of the computer
programme </em>per
se<em>."</em></p>
</blockquote>
<p>Further,
the Guidelines also recognise that CRIs may fall under sections 3(k), 3(l), 3(m) and 3(n):</p>
<blockquote>
<p>2.2. The Patents (Amendment) Act, 2002 also introduced explicit exclusions from patentability under section 3 for CRIs as under:</p>
<p>3(k)
a mathematical or business method or a computer programme per se or
algorithms;</p>
<p>(l)
a literary, dramatic, musical or artistic work or any other aesthetic
creation whatsoever including cinematographic works and television
productions;</p>
<p>(m)
a mere scheme or rule or method of performing mental act or method of
playing game;</p>
<p>(n)
a presentation of information;</p>
</blockquote>
<p>And thus CRIs as such cannot be patentable, if they fall in either of the above
mentioned exclusions. Overall,
the new Guidelines offer more clarity and stick to the Patents Act,
1970's intention of disqualifying patentability of computer
programmes per se. We will soon post a detailed analysis of the Guidelines. In the meantime, you may read CIS' research on the subject in the section below.</p>
<h3><br /></h3>
<h3>CIS' Research and Submissions against Software Patenting<br /></h3>
<p>Over
the past years, CIS has produced research and consistently made
submissions advocating the roll- back of software patenting:</p>
<p><a name="parent-fieldname-title4"></a><a href="http://cis-india.org/a2k/blogs/arguments-against-software-patents">Arguments
Against Software Patents in India, 2010</a></p>
<p><a name="parent-fieldname-title"></a><a href="http://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010">CIS
Submission on Draft Patent Manual, 2010</a></p>
<p><a name="parent-fieldname-title1"></a><a href="http://cis-india.org/a2k/blogs/comments-on-draft-guidelines-for-computer-related-inventions">Comments
on the Draft Guidelines for Computer Related Inventions, 2013</a></p>
<p><a name="parent-fieldname-title3"></a><a href="http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions">Guidelines
for Examination of Computer Related Inventions: Mapping the
Stakeholders' Response</a>, 2014</p>
<p><a name="parent-fieldname-title2"></a><a href="http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computer-related-inventions-cris">Comments
on the Guidelines for Examination of Computer Related Inventions
(CRIs), 2015</a></p>
<p><a href="http://cis-india.org/a2k/blogs/cis-submission-to-indian-patent-office-on-examples-of-excluded-patentable-subject-matter-under-section-3-k-for-incorporation-in-the-yet-to-be-released-guidelines-for-computer-related-inventions">CIS'
submission to Indian Patent Office on Examples of Excluded Patentable
subject-matter under Section 3(k) for incorporation in the
yet-to-be-released Guidelines for Computer Related Inventions</a>,
2016</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india'>http://editors.cis-india.org/a2k/blogs/the-new-guidelines-for-computer-related-inventions-are-a-big-win-for-foss-in-india</a>
</p>
No publishersinhaFeaturedPatentsAccess to KnowledgeSoftware Patents2016-02-24T06:30:37ZBlog EntryComments by the Centre for Internet and Society on the Report of the Committee on Medium Term Path on Financial Inclusion
http://editors.cis-india.org/internet-governance/blog/comments-by-the-centre-for-internet-and-society-on-the-report-of-the-committee-on-medium-term-path-on-financial-inclusion
<b>Apart from item-specific suggestions, CIS would like to make one broad comment with regard to the suggestions dealing with linking of Aadhaar numbers with bank accounts. Aadhaar is increasingly being used by the government in various departments as a means to prevent fraud, however there is a serious dearth of evidence to suggest that Aadhaar linkage actually prevents leakages in government schemes. The same argument would be applicable when Aadhaar numbers are sought to be utilized to prevent leakages in the banking sector.</b>
<p> </p>
<p style="text-align: justify;">The Centre for Internet and Society (CIS) is a non-governmental organization which undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives.</p>
<p style="text-align: justify;">In the course of its work CIS has also extensively researched and witten about the Aadhaar Scheme of the Government of India, specially from a privacy and technical point of view. CIS was part of the Group of Experts on Privacy constituted by the Planning Commission under the chairmanship of Justice AP Shah Committee and was instrumental in drafting a major part of the report of the Group. In this background CIS would like to mention that it is neither an expert on banking policy in general nor wishes to comment upon the purely banking related recommendations of the Committee. We would like to limit our recommendations to the areas in which we have some expertise and would therefore be commenting only on certain Recommendations of the Committee.</p>
<p style="text-align: justify;">Before giving our individual comments on the relevant recommendations, CIS would like to make one broad comment with regard to the suggestions dealing with linking of Aadhaar numbers with bank accounts. Aadhaar is increasingly being used by the government in various departments as a means to prevent fraud, however there is a serious dearth of evidence to suggest that Aadhaar linkage actually prevents leakages in government schemes. The same argument would be applicable when Aadhaar numbers are sought to be utilized to prevent leakages in the banking sector.</p>
<p style="text-align: justify;">Another problem with linking bank accounts with Aadhaar numbers, even if it is not mandatory, is that when the RBI issues an advisory to (optionally) link Aadhaar numbers with bank accounts, a number of banks may implement the advisory too strictly and refuse service to customers (especially marginal customers) whose bank accounts are not linked to their Aadhaar numbers, perhaps due to technical problems in the registration procedure, thereby denying those individuals access to the banking sector, which is contrary to the aims and objectives of the Committee and the stated policy of the RBI to improve access to banking.</p>
<h3 style="text-align: justify;">Individual Comments</h3>
<p style="text-align: justify;"><em>Recommendation 1.4 - Given the predominance of individual account holdings, the Committee recommends that a unique biometric identifier such as Aadhaar should be linked to each individual credit account and the information shared with credit information companies. This will not only be useful in identifying multiple accounts, but will also help in mitigating the overall indebtedness of individuals who are often lured into multiple borrowings without being aware of its consequences.</em></p>
<p style="text-align: justify;"><strong>CIS Comment</strong>: The discussion of the committee before making this recommendation revolves around the total incidence of indebtedness in rural areas and their Debt-to-Asset ratio representing payment capacity. However, the committee has not discussed any evidence which indicates that borrowing from multiple banks leads to greater indebtedness for individual account holders in the rural sector. Without identifying the problem through evidence the Committee has suggested linking bank accounts with Aadhaar numbers as a solution.</p>
<p style="text-align: justify;"><em>Recommendation 2.2 - On the basis of cross-country evidence and our own experience, the Committee is of the view that to translate financial access into enhanced convenience and usage, there is a need for better utilization of the mobile banking facility and the maximum possible G2P payments, which would necessitate greater engagement by the government in the financial inclusion drive.</em></p>
<p style="text-align: justify;"><strong>CIS Comment</strong>: The drafting of the recommendation suggests that RBI is batting for the DBT rather than the subsidy model. However an examination of the discussion in the report suggests that all that the Committee has not discussed or examined the subsidy model vis-à-vis the direct benefit transfer (DBT) model here (though it does recommend DBT in the chapter on G-2-P payments), but only is trying to say is that where government to people money transfer has to take place, it should take place using mobile banking, payment wallets or other such technologies, which have been known to be successful in various countries across the world.</p>
<p style="text-align: justify;"><em>Recommendation 3.1 - The Committee recommends that in order to increase formal credit supply to all agrarian segments, the digitization of land records should be taken up by the states on a priority basis.</em></p>
<p style="text-align: justify;"><em>Recommendation 3.2 - In order to ensure actual credit supply to the agricultural sector, the Committee recommends the introduction of Aadhaar-linked mechanism for Credit Eligibility Certificates. For example, in Andhra Pradesh, the revenue authorities issue Credit Eligibility Certificates to Tenant Farmers (under ‘Andhra Pradesh Land Licensed Cultivators Act No 18 of 2011'). Such tenancy /lease certificates, while protecting the owner’s rights, would enable landless cultivators to obtain loans. The Reserve Bank may accordingly modify its regulatory guidelines to banks to directly lend to tenants / lessees against such credit eligibility certificates.</em></p>
<p style="text-align: justify;"><strong>CIS Comment</strong>: The Committee in its discussion before the recommendation 3.2 has discussed the problems faced by landless farmers, however there is no discussion or evidence which suggests that an Aadhaar linked Credit Eligibility Certificate is the best solution, or even a solution to the problem. The concern being expressed here is not with the system of a Credit Eligibility Certificate, but with the insistence on linking it to an Aadhaar number, and whether the system can be put in place without linking the same to an Aadhaar number.</p>
<p style="text-align: justify;"><em>Recommendation 6.11 - Keeping in view the indebtedness and rising delinquency, the Committee is of the view that the credit history of all SHG members would need to be created, linking it to individual Aadhaar numbers. This will ensure credit discipline and will also provide comfort to banks.</em></p>
<p style="text-align: justify;"><strong>CIS Comment</strong>: There is no discussion in the Report on the reasons for increase in indebtedness of SHGs. While the recommendation of creating credit histories for SHGs is laudable and very welcome, however there is no logical reason that has been brought out in the Report as to why the same needs to be linked to individual Aadhaar numbers and how such linkage will solve any problems.</p>
<p style="text-align: justify;"><em>Recommendation 6.13 - The Committee recommends that bank credit to MFIs should be encouraged. The MFIs must provide credit information on their borrowers to credit bureaus through Aadhaar-linked unique identification of individual borrowers.</em></p>
<p style="text-align: justify;"><strong>CIS Comment</strong>: Since the discussion before this recommendation clearly indicates multiple lending practices as one of the problems in the Microfinance sector and also suggests better credit information of borrowers as a possible solution, therefore this recommendation per se, seems sound. However, we would still like to point out that the RBI may think of alternative means to get borrower credit history rather than relying upon just the Aadhaar numbers.</p>
<p style="text-align: justify;"><em>Recommendation 7.3 - Considering the widespread availability of mobile phones across the country, the Committee recommends the use of application-based mobiles as PoS for creating necessary infrastructure to support the large number of new accounts and cards issued under the PMJDY. Initially, the FIF can be used to subsidize the associated costs. This will also help to address the issue of low availability of PoS compared to the number of merchant outlets in the country. Banks should encourage merchants across geographies to adopt such applicationbased mobile as a PoS through some focused education and PoS deployment drives.</em></p>
<p style="text-align: justify;"><em>Recommendation 7.5 - The Committee recommends that the National Payments Corporation of India (NPCI) should ensure faster development of a multi-lingual mobile application for customers who use non-smart phones, especially for users of NUUP; this will address the issue of linguistic diversity and thereby promote its popularization and quick adoption.</em></p>
<p style="text-align: justify;"><em>Recommendation 7.8 - The Committee recommends that pre-paid payment instrument (PPI) interoperability may be allowed for non-banks to facilitate ease of access to customers and promote wider spread of PPIs across the country. It should however require non-bank PPI operators to enhance their customer grievance redressal mechanism to deal with any issues thereof.</em></p>
<p style="text-align: justify;"><em>Recommendation 7.9 - The Committee is of the view that for non-bank PPIs, a small-value cashout may be permitted to incentivize usage with the necessary safeguards including adequate KYC and velocity checks.</em></p>
<p style="text-align: justify;"><strong>CIS Comments</strong>: While CIS supports the effort to use technology and mobile phones to increase banking penetration and improve access to the formal financial sector for rural and semi-rural areas, sufficient security mechanisms should be put in place while rolling out these services keeping in mind the low levels of education and technical sophistication that are prevalent in rural and semi-rural areas.</p>
<p style="text-align: justify;"><em>Recommendation 8.1 - The Committee recommends that the deposit accounts of beneficiaries of government social payments, preferably all deposits accounts across banks, including the ‘inprinciple’ licensed payments banks and small finance banks, be seeded with Aadhaar in a timebound manner so as to create the necessary eco-system for cash transfer. This could be complemented with the necessary changes in the business correspondent (BC) system (see Chapter 6 for details) and increased adoption of mobile wallets to bridge the ‘last mile’ of service delivery in a cost-efficient manner at the convenience of the common person. This would also result in significant cost reductions for the government besides promoting financial inclusion.</em></p>
<p style="text-align: justify;"><strong>CIS Comment</strong>: While the report of the Committee has already given several examples of how cash transfer directly into the bank accounts (rather than requiring the beneficiaries to be at a particular place at a particular time) could be more efficient as well as economical, the Committee is making the same point again here under the chapter that deals specifically with government to person payments. However even before this recommendation, there has been no discussion as to the need for linking or “seeding” the deposit accounts of the beneficiaries with Aadhaar numbers, let alone a discussion of how it would solve any problems.</p>
<p style="text-align: justify;"><em>Recommendation 10.6 - Given the focus on technology and the increasing number of customer complaints relating to debit/credit cards, the National Payments Corporation of India (NPCI) may be invited to SLBC meetings. They may particularly take up issues of Aadhaar-linkage in bank and payment accounts.</em></p>
<p style="text-align: justify;"><strong>CIS Comment</strong>: There is no discussion on why this recommendation has been made, more particularly; there is no discussion at all on why issues of Aadhaar linkage in bank and payment accounts need to be taken up at all.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/comments-by-the-centre-for-internet-and-society-on-the-report-of-the-committee-on-medium-term-path-on-financial-inclusion'>http://editors.cis-india.org/internet-governance/blog/comments-by-the-centre-for-internet-and-society-on-the-report-of-the-committee-on-medium-term-path-on-financial-inclusion</a>
</p>
No publishervipulPrivacyInternet GovernanceFeaturedFinancial InclusionAadhaarHomepage2016-03-01T13:53:38ZBlog EntryAnnouncement of a Three-Region Research Alliance on the Appropriate Use of Digital Identity
http://editors.cis-india.org/internet-governance/blog/appropriate-use-of-digital-identity-alliance-announcement
<b>Omidyar Network has recently announced its decision to invest in establishment of a three-region research alliance — to be co-led by the Institute for Technology & Society (ITS), Brazil, the Centre for Intellectual Property and Information Technology Law (CIPIT) , Kenya, and the CIS, India — on the Appropriate Use of Digital Identity. As part of this Alliance, we at the CIS will look at the policy objectives of digital identity projects, how technological policy choices can be thought through to meet the objectives, and how legitimate uses of a digital identity framework may be evaluated.</b>
<p> </p>
<p>As governments across the globe are implementing new, digital foundational identification systems or modernizing existing ID programs, there is a dire need for greater research and discussion about appropriate design choices for a digital identity framework. There is significant momentum on digital ID, especially after the adoption of UN Sustainable Development Goal 16.9, which calls for legal identity for all by 2030. Given the importance of this subject, its implications for both the development agenda as well its impact on civil, social and economic rights, there is a need for more focused research that can enable policymakers to take better decisions, guide civil society in different jurisdictions to comment on and raise questions about digital identity schemes, and provide actionable material to the industry to create identity solutions that are privacy enhancing and inclusive.</p>
<p> </p>
<h4>Excerpt from the <a href="https://www.omidyar.com/blog/appropriate-use-digital-identity-why-we-invested-three-region-research%C2%A0alliance" target="_blank">blog post by Subhashish Bhadra</a> announcing this new research alliance</h4>
<p>...In the absence of any widely-accepted thinking on this issue, we run the risk of digital identity systems suffering from mission creep, that is being made mandatory or being used for an ever-expanding set of services. We believe this creates several risks. First, people may be excluded from services if they do not have a digital identity or because it malfunctions. Second, this approach creates a wider digital footprint that can be used to create a profile of an individual, sometimes without consent. This can increase privacy risk. Third, this approach increases the power of institutions versus individuals and can be used as rationale to intentionally deny services, especially to vulnerable or persecuted groups.</p>
<p>Three exceptional research groups have undertaken the effort of answering this complex and important question. Over the next six months, these think tanks will conduct independent research, as well as involve experts from across the globe. Based in South America, Africa, and Asia, these institutions represent the collective wisdom and experiences of three very distinct geographies in emerging markets. While drawing on their local context, this research effort is globally oriented. The think tanks will create a set of recommendations and tools that can be used by stakeholders to engage with digital identity systems in any part of the world...</p>
<p>This research will use a collaborative and iterative process. The researchers will put out some ideas every few weeks, with the objective of seeking thoughts, questions, and feedback from various stakeholders. They will participate in several digital rights and identity events across the globe over the next several months. They will also organize webinars to seek input from and present their interim findings to interested communities from across the globe. Each of these provide an opportunity for you to provide your thoughts and help this research program provide an independent, rigorous, transparent, and holistic answer to the question of when it’s appropriate for digital identity to be used. We need a diversity of viewpoints and collaborative dissent to help solve the most pressing issues of our times.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/appropriate-use-of-digital-identity-alliance-announcement'>http://editors.cis-india.org/internet-governance/blog/appropriate-use-of-digital-identity-alliance-announcement</a>
</p>
No publisheramberDigital IDInternet GovernanceAppropriate Use of Digital IDFeaturedDigital IdentityHomepage2019-05-13T09:06:23ZBlog EntryInternet Researchers' Conference 2017 (IRC17)
http://editors.cis-india.org/raw/irc17
<b>With great pleasure we announce the second edition of the Internet Researchers' Conference (IRC), an annual conference series initiated by the Researchers at Work (RAW) programme at CIS to gather researchers, academic or otherwise, studying internet in/from India to congregate, share insights and tensions, and chart the ways forward. The Internet Researchers' Conference 2017 (IRC17) will be held at the International Institute of Information Technology Bangalore (IIIT-B) campus on March 03-05, 2017. It is being organised by the Centre for Information Technology and Public Policy (CITAPP) at IIIT-B and the CIS.</b>
<p> </p>
<h4>Registration is closed now.</h4>
<h4>Propose open sessions <a href="https://public.etherpad-mozilla.org/p/IRC17-OpenSessionProposals">here</a>.</h4>
<h4>Agenda (final): <a href="https://github.com/cis-india/irc/raw/master/irc17/IRC17_Agenda.pdf">Download</a> (PDF)</h4>
<h4>Programme: <a href="https://github.com/cis-india/irc/raw/master/irc17/IRC17_Programme.pdf">Download</a> (PDF)</h4>
<h4>Poster (high resolution): <a href="https://github.com/cis-india/irc/raw/master/irc17/IRC17_Poster-HighRes.jpg">Download</a> (JPG)</h4>
<hr />
<img src="http://cis-india.org/raw/irc17/leadImage" alt="IRC17 Poster" height="400" />
<h3><strong>IRC17: Key Provocations</strong></h3>
<p>Two critical questions that emerged from the conversations at the previous edition of the Conference (IRC16) were about the digital objects of research, and the digital/internet experiences in Indic languages. As we discussed various aspects and challenges of 'studying internet in India', it was noted that we have not sufficiently explored how ongoing research methods, assumptions, and analytical frames are being challenged (if at all) by the becoming-digital of the objects of research across disciplines: from various artifacts and traces of human and machinic interactions, to archival entries and sites of ethnography, to practices and necessities of collaboration.</p>
<p>We found that the analyses of such digital objects of research often tend to assume either an aesthetic and functional uniqueness or sameness vis-à-vis the pre-/proto-digital objects of research, while neither of these positions are discussed in detail. Further, we tend to universalise the English-speaking user's/researcher's experience of working with such digital objects, without sufficiently considering their lives and functions in other (especially, Indic) languages.</p>
<p>These we take as the key provocations of the 2017 edition of IRC:</p>
<ul><li>
<p>How does the becoming-digital of the research objects challenge our current research practices, concerns, and assumptions?</p>
</li>
<li>
<p>How do we appreciate, study, and theorise the functioning of and meaning-making by digital objects in Indic languages?</p>
</li>
<li>
<p>What research tools and infrastructures are needed to study, document, annotate, analyse, archive, cite, and work with (in general) digital objects, especially those in Indic languages?</p>
</li></ul>
<p>This conference series is specifically driven by the following interests: 1) creating discussion spaces for researchers studying internet in India and in other comparable regions, 2) foregrounding the multiplicity, hierarchies, tensions, and urgencies of the digital sites and users in India, 3) accounting for the various layers, conceptual and material, of experiences and usages of internet and networked digital media in India, and 4) exploring and practicing new modes of research and documentation necessitated by new (digital) forms of objects of power/knowledge.</p>
<h3><strong>Dates and Venue</strong></h3>
<p>The conference is being hosted by the International Institute of Information Technology Bangalore (IIIT-B) during March 03-05, 2017.</p>
<p><strong>Address:</strong> 26/C, Electronics City, Hosur Road, Bangalore, 560100, <a href="https://goo.gl/maps/chHchxAMkrK2">location on Google Map</a>.</p>
<h3><strong>Session Details and Notes</strong></h3>
<p>Day 01, Friday, March 03</p>
<p><strong>#DigitalIdentities:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/digitalidentities.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-DigitalIdentities">Etherpad</a></p>
<p><strong>#IndicLanguagesAndInternetCohabitation:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/indiclanguagesandinternetcohabitation.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-IndicLanguagesAndInternetCohabitation">Etherpad</a></p>
<p><strong>#SelfiesFromTheField:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/selfiesfromthefield-revised.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-SelfiesFromTheField">Etherpad</a></p>
<p><strong>#HookingUp:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/hookingup-revised.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-HookingUp">Etherpad</a></p>
<p>Day 02, Saturday, March 04</p>
<p><strong>#DotBharatAdoption:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/dotbharatadoption.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-DotBharatAdoption">Etherpad</a></p>
<p><strong>#DigitalPedagogies:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/digitalpedagogies.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-DigitalPedagogies">Etherpad</a></p>
<p><strong>#MaterializingWriting:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/materializingwriting.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-MaterializingWriting">Etherpad</a></p>
<p><strong>#RenarrationWeb:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/renarrationweb.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-RenarrationWeb">Etherpad</a></p>
<p>Day 03, Sunday, March 05</p>
<p><strong>#ArchivesForStorytelling:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/archivesforstorytelling.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-ArchivesForStorytelling">Etherpad</a></p>
<p><strong>#ObjectsOfDigitalGovernance:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/objectsofdigitalgovernance.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-ObjectsOfDigitalGovernance">Etherpad</a></p>
<p><strong>#OpenAccessScholarlyPublishing:</strong> <a href="https://cis-india.github.io/irc/irc17/sessions/openaccessscholarlypublishing.html">Details</a> and <a href="https://public.etherpad-mozilla.org/p/IRC17-OpenAccessScholarlyPublishing">Etherpad</a></p>
<h3><strong>Session Selection Process</strong></h3>
<p>Call for sessions: <a href="http://cis-india.org/raw/irc17-call">http://cis-india.org/raw/irc17-call</a>.</p>
<p>Selected sessions: <a href="http://cis-india.org/raw/irc17-selected-sessions">http://cis-india.org/raw/irc17-selected-sessions</a>.</p>
<p>Please join the <a href="https://lists.ghserv.net/mailman/listinfo/researchers">researchers@cis-india</a> mailing list to take part in pre- and post-conference conversations.</p>
<h3><strong>About the IRC Series</strong></h3>
<p>The Researchers at Work (RAW) programme at the Centre for Internet and Society (CIS) initiated the Internet Researchers' Conference (IRC) series to address these concerns, and to create an annual temporary space in India, for internet researchers to gather and share experiences.</p>
<p>The IRC series is driven by the following interests:</p>
<ul>
<li>
<p>creating discussion spaces for researchers and practitioners studying internet in India and in other comparable regions,</p>
</li>
<li>
<p>foregrounding the multiplicity, hierarchies, tensions, and urgencies of the digital sites and users in India,
accounting for the various layers, conceptual and material, of experiences and usages of internet and networked digital media in India, and</p>
</li>
<li>
<p>exploring and practicing new modes of research and documentation necessitated by new (digital) objects of power/knowledge.</p>
</li></ul>
<p>The first edition of the Internet Researchers' Conference series was held in <a href="http://editors.cis-india.org/raw/cis-india.org/raw/irc16">February 2016</a>. It was hosted by the <a href="http://www.jnu.ac.in/SSS/CPS/">Centre for Political Studies</a> at Jawaharlal Nehru University, and was supported by the <a href="http://cis-india.org/raw/cscs-digital-innovation-fund">CSCS Digital Innovation Fund</a>. The Conference was constituted by eleven discussion sessions (majority of which were organised around presentation of several papers), four workshop sessions (which involved group discussions, activities, and learnings), a book sprint over three sessions to develop an outline of a (re)sourcebook for internet researchers in India, and a concluding round table. The audio recordings and notes from IRC16 are now being compiled into an online Reader. A detailed <a href="http://cis-india.org/raw/iirc-reflections-on-irc16">reflection note on IRC16</a> has been published.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/irc17'>http://editors.cis-india.org/raw/irc17</a>
</p>
No publishersumandroInternet Researcher's ConferenceFeaturedIRC17Researchers at WorkEvent2018-07-02T18:29:55ZEventSurvey on Data Protection Regime
http://editors.cis-india.org/internet-governance/blog/survey-on-data-protection-regime
<b>We request you to take part in this survey aimed at understanding how various organisations view the changes in the Data Protection Regime in the European Union. Recently the General Data Protection Regulation (EU) 2016/679 was passed, which shall replace the present Data Protection Directive DPD 95/46/EC. This step is likely to impact the way of working for many organisations. We are grateful for your voluntary contribution to our research, and all information shared by you will be used for the purpose of research only. Questions that personally identify you are not mandatory and will be kept strictly confidential. </b>
<p> </p>
<h4>The survey form below can also be accessed <a href="https://goo.gl/forms/61d4W0kPQ8SqNaMO2" target="_blank">here</a>.</h4>
<hr />
<iframe src="https://docs.google.com/forms/d/e/1FAIpQLSepvhTUkkc7s3jFDfJZ90wFJAIuVexrbVSO5icV4kW0-1uyNA/viewform?embedded=true" frameborder="0" marginwidth="0" marginheight="0" height="800" width="600">Loading...</iframe>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/survey-on-data-protection-regime'>http://editors.cis-india.org/internet-governance/blog/survey-on-data-protection-regime</a>
</p>
No publisherAditi Chaturvedi and Elonnai HickokGeneral Data Protection RegulationInternet GovernanceFeaturedData ProtectionHomepage2017-02-10T10:47:00ZBlog EntryDigital AlterNatives with a Cause?
http://editors.cis-india.org/digital-natives/blog/dnbook
<b>Hivos and the Centre for Internet and Society have consolidated their three year knowledge inquiry into the field of youth, technology and change in a four book collective “Digital AlterNatives with a cause?”. This collaboratively produced collective, edited by Nishant Shah and Fieke Jansen, asks critical and pertinent questions about theory and practice around 'digital revolutions' in a post MENA (Middle East - North Africa) world. It works with multiple vocabularies and frameworks and produces dialogues and conversations between digital natives, academic and research scholars, practitioners, development agencies and corporate structures to examine the nature and practice of digital natives in emerging contexts from the Global South. </b>
<p></p>
<p><strong>I</strong><strong>ntroduction</strong></p>
<p>In the 21<sup>st</sup>
Century, we have witnessed the simultaneous growth of internet and digital
technologies on the one hand, and political protests and mobilisation on the
other. Processes of interpersonal relationships, social communication, economic
expansion, political protocols and governmental mediation are undergoing a
significant transition, across in the world, in developed and emerging
Information and Knowledge societies.</p>
<p>The young
are often seen as forerunners of these changes because of the pervasive and
persistent presence of digital and online technologies in their lives. The “
Digital Natives with a Cause?” is a research inquiry that uncovers the ways in
which young people in emerging ICT contexts make strategic use of technologies
to bring about change in their immediate environments. Ranging from personal
stories of transformation to efforts at collective change, it aims to identify
knowledge gaps that existing scholarship, practice and popular discourse around
an increasing usage, adoption and integration of digital technologies in
processes of social and political change.</p>
<p><strong>Methodology</strong></p>
<p>In 2010-11,
three workshops in Taiwan, South Africa and Chile, brought together around 80
people who identified themselves as Digital Natives from Asia, Africa and Latin
America, to explore certain key questions that could provide new insight into
Digital Natives research, policy and practice. The workshops were accompanied
by a ‘Thinkathon’ – a multi-stakeholder summit that initiated conversations
between Digital Natives, academic researchers, scholars, practitioners,
educators, policy makers and corporate representatives to share learnings on
new questions: Is one born digital or does one become a Digital Native? How do
we understand our relationship with the idea of a Digital Native? How do
Digital Natives redefine ‘change’ and how do they see themselves implementing
it? What is the role that technologies play in defining civic action and social
movements? What are the relationships
that these technology based identities and practices have with existing social
movements and political legacies? How do we build new frameworks of sustainable
citizen action outside of institutionalisation?</p>
<strong>
</strong>
<p><strong>Rationale</strong></p>
<p>One of the
knowledge gaps that this book tries to address is the lack of digital natives’
voices in the discourse around them. In the occasions that they are a part of
the discourse, they are generally represented by other actors who define the
frameworks and decide the issues which are important. Hence, more often than
not, most books around digital natives concentrate on similar sounding areas
and topics, which might not always resonate with the concerns that digital
natives and other stake-holders might be engaged with in their material and
discursive practice. The methodology of the workshops was designed keeping this
in mind. Instead of asking the digital natives to give their opinion or recount
a story about what we felt was important, we began by listening to their
articulations about what was at stake for them as e-agents of change. As a
result, the usual topics like piracy, privacy, cyber-bullying, sexting etc.
which automatically map digital natives discourse, are conspicuously absent
from this book. Their absence is not deliberate, but more symptomatic of how
these themes that we presumed as important were not of immediate concerns to
most of the participants in the workshop who are contributing to the book<strong>.</strong></p>
<strong>
</strong>
<p><strong>Structure</strong></p>
<p>The
conversations, research inquiries, reflections, discussions, interviews, and
art practices are consolidated in this four part book which deviates from the
mainstream imagination of the young people involved in processes of change. The
alternative positions, defined by geo-politics, gender, sexuality, class,
education, language, etc. find articulations from people who have been engaged
in the practice and discourse of technology mediated change. Each part
concentrates on one particular theme that helps bring coherence to a wide
spectrum of style and content.</p>
<p><strong>Book 1: To Be: Digital AlterNatives with a Cause? Download <a href="http://editors.cis-india.org/digital-natives/dnbook1/at_download/file" class="external-link">here</a></strong></p>
<strong>
</strong>
<p>The first
part, <em>To Be</em>, looks at the questions
of digital native identities. Are digital natives the same everywhere? What
does it mean to call a certain population ‘Digital Natives”? Can we also look
at people who are on the fringes – Digital Outcasts, for example? Is it
possible to imagine technology-change relationships not only through questions
of access and usage but also through personal investments and transformations?
The contributions help chart the history, explain the contemporary and give ideas
about what the future of technology mediated identities is going to be.</p>
<strong>Book 2: To Think: Digital AlterNatives with a Cause? Download <a href="http://editors.cis-india.org/digital-natives/dnbook2/at_download/file" class="external-link">here</a></strong><strong>
</strong>
<p>In the
second section, <em>To Think,</em> the
contributors engage with new frameworks of understanding the processes,
logistics, politics and mechanics of digital natives and causes. Giving fresh
perspectives which draw from digital aesthetics, digital natives’ everyday
practices, and their own research into the design and mechanics of technology
mediated change, the contributors help us re-think the concepts, processes and
structures that we have taken for granted. They also nuance the ways in which
new frameworks to think about youth, technology and change can be evolved and
how they provide new ways of sustaining digital natives and their causes.</p>
<p><strong>Book 3: To Act: Digital AlterNatives with a Cause? Download <a href="http://editors.cis-india.org/digital-natives/dnbook3/at_download/file" class="external-link">here</a></strong></p>
<p><em>To Act</em> is the third part that concentrates on stories
from the ground. While it is important to conceptually engage with digital
natives, it is also, necessary to connect it with the real life practices that
are reshaping the world. Case-studies, reflections and experiences of people
engaged in processes of change, provide a rich empirical data set which is
further analysed to look at what it means to be a digital native in emerging
information and technology contexts.</p>
<strong>
</strong>
<p><strong>Book 4: To Connect : Digital AlterNatives with a Cause? Download <a href="http://editors.cis-india.org/digital-natives/dnbook4/at_download/file" class="external-link">here</a></strong></p>
<p>The last
section, <em>To Connect</em>, recognises the
fact that digital natives do not operate in vacuum. It might be valuable to
maintain the distinction between digital natives and immigrants, but this
distinction does not mean that there are no relationships between them as
actors of change. The section focuses on the digital native ecosystem to look
at the complex assemblage of relationships that support and are amplified by
these new processes of technologised change.</p>
<p>We see this
book as entering into a dialogue with the growing discourse and practice in the
field of youth, technology and change. The ambition is to look at the digital
(alter)natives as located in the Global South and the potentials for social
change and political participation that is embedded in their interactions
through and with digital and internet technologies. We hope that the book
furthers the idea of a context-based digital native identity and practice,
which challenges the otherwise universalist understanding that seems to be the
popular operative right now. We see this as the beginning of a knowledge
inquiry, rather than an end, and hope that the contributions in the book will
incite new discussions, invoke cross-sectorial and disciplinary debates, and
consolidate knowledges about digital (alter)natives and how they work in the
present to change our futures<strong>.</strong></p>
<p><strong><a class="external-link" href="https://www.surveymonkey.com/MyAccount_Login.aspx">Click here</a> to order your copy. We invite readers to contribute reviews of an essay they found particularly interesting. Contact us: nishant@cis-india.org and fjansen@hivos.nl if you want more information, resources, or dialogues</strong></p>
<p>Nishant
Shah</p>
<p>Fieke
Jansen</p>
<p><strong>For media coverage and book reviews,</strong> <a href="http://editors.cis-india.org/digital-natives/media-coverage" class="external-link">read here</a>.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/digital-natives/blog/dnbook'>http://editors.cis-india.org/digital-natives/blog/dnbook</a>
</p>
No publishernishantSocial mediaDigital ActivismRAW PublicationsCampaignDigital NativesAgencyBlank Noise ProjectFeaturedCyberculturesFacebookPublicationsBeyond the DigitalDigital subjectivitiesBooksResearchers at Work2015-04-10T09:22:29ZBlog EntryLocating Constructs of Privacy within Classical Hindu Law
http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law
<b>This white paper seeks to locate privacy in Classical Hindu Law, and by doing so, displace the notion that privacy is an inherently ‘Western’ concept that is the product of a modernist legal system. </b>
<h3 style="text-align: justify; ">Introduction: Conceptions of Privacy</h3>
<p style="text-align: justify; ">Because of the variance exhibited by the various legal, social, and cultural aspects of privacy, it cannot be easily defined. <a name="_ftnref1"></a> As a legal concept, privacy may form a constitutional claim, a statutory entitlement, a tortious action or an equitable remedy. As a constitutional claim, privacy is either an explicitly recognised right<a name="_ftnref2"></a> that is capable of independent enforcement,<a name="_ftnref3"></a> read into a pre-existing right <a name="_ftnref4"></a>, or located within the penumbra of a larger right.<a name="_ftnref5"></a> Statutory recognition of privacy may be afforded by both criminal and civil statutes. The offence of criminal defamation for instance, is perceived as an act of violating an individual's privacy by tarnishing his or her reputation.<a name="_ftnref6"></a> Similarly the provision of in camera trials for divorce proceedings is an illustration of a civil statute implicitly recognising privacy. <a name="_ftnref7"></a> As a tortious claim the notion of privacy is commonly understood in terms of the right against trespass of property. Equity, co-terminus with a statutory mandate or in isolation, may also be a source of privacy.</p>
<p style="text-align: justify; ">Most legal conceptions of privacy in everyday use in India originated from the English common law. Other constitutional and statutory constructions of privacy, even when not found in the common law, arise within a broader modernist system of law and justice that originated in Europe.<a name="_ftnref8"></a> During the European colonisation of India, the British (and, in a different manner, the French <a name="_ftnref9"></a>) attempted to recreate the common law in India through the establishment of a new legal and courts system, and the wholesale importation of the European idea of law<a name="_ftnref10"></a>. The very notion of privacy, as well as its legal conception, is a product of this legal modernity.<a name="_ftnref11"></a> In post-colonial societies, the argument against the right to privacy is usually premised on its perceived alien-ness - as a foreign idea brought by colonisers and imposed on a traditionalist society that favoured communitarian living over individual rights - in an effort to discredit it.<a name="_ftnref12"></a></p>
<p style="text-align: justify; ">The fallacy of this argument lies in its ignorance of the cultural plurality of privacy.<a name="_ftnref13"></a> To begin with, the idea that is connoted by the modernist notion of privacy pre-dated the introduction of common law in India. By the time of the Enlightenment, Hindu law and Islamic law were established legal systems with rich histories of jurisprudence and diverse schools of law within them, each with their own juristic techniques and rules of interpretation.<a name="_ftnref14"></a> While neither Hindu law nor Islamic law use a term that readily translates to "privacy", thereby precluding a neat transposition of meanings between them, the notion of privacy existed and can be located in both the legal traditions. In this paper, the term 'privacy' is used to describe both the modernist notion that arises from the principle of personal autonomy as well as the diverse pre-modern concepts in Hindu and Islamic jurisprudence that resemble or relate to this notion. These pre-modern concepts are diverse, and do not permit an easy analysis. For instance, the <i>Manusmriti,</i> which is a source of classical Hindu law, prohibits bathing in tanks that belong to other men.<a name="_ftnref15"></a> Additionally it prohibits the use of wells, gardens, carriages, beds, seats and houses without the owner's permission.<a name="_ftnref16"></a> These prohibitions are not driven by the imperatives of privacy alone. The rationale is that in using others' belongings one appropriates a portion of their sins.<a name="_ftnref17"></a> Hence, these privacy protections are linked to an ideal of purity. Islamic law also restricts the use or misappropriation of another's property. <a name="_ftnref18"></a> However, this prohibition is designed to protect private property; it has no ideological link to purity.</p>
<p style="text-align: justify; ">This paper attempts to locate constructs of privacy in classical Hindu law. The purpose of this exercise is not to privilege one legal system over another. Therefore, we do not intend to normatively assess the existing modernist discourse on privacy. We simply seek to establish the existence of alternate notions of privacy that pre-date modernity and the common law.</p>
<p style="text-align: justify; ">The scope of the paper is confined to locating privacy in classical Hindu law. The materials within the realm of classical Hindu law, relevant to this exercise are- the <i>sruti</i>, <i>smriti</i>, and <i>acara</i>. <i>Sruti</i> comprises of the <i>Vedas, Brahmanas, Aranyakas and the Upanishads.</i> It is considered to symbolise the spirit of Hindu law and is not the source of any positivist command as such.<a name="_ftnref19"></a> <i>Smriti</i> involves various interpretations of the <i>sruti</i>, We have however restricted ourselves to the <i>Dharmashastras </i>in this realm. Acara refers to the body of customary practices.</p>
<p style="text-align: justify; ">The review of the material at hand however, is not exhaustive. The reasons for this are twofold- <i>first</i>, given the vast expanse of Hindu jurisprudence, the literature review has been limited; <i>second, </i>there is a limited availability of reliable English translations of ancient legal treatises.</p>
<p style="text-align: justify; ">This paper is divided into two parts. The first part of this paper deals with the interface of colonisation with Hindu law and elucidates the nature of Hindu law. With the advent of colonialism, classical Hindu law was gradually substituted by a modernist legal system. <a name="_ftnref20"></a> Exploring the characteristics of modernity, the factors that contributed to the displacement of classical Hindu law will be identified.</p>
<p style="text-align: justify; ">One of the factors that contributed to the displacement was the uncertainty that characterised classical Hindu law. <a name="_ftnref21"></a> Classical Hindu law was an amalgamation of three sources, as. In an attempt to rule out the uncertainty, and the lack of positive command, the modernisation of Hindu law was brought about.<a name="_ftnref22"></a> Accordingly this part shall also examine the nature of Hindu law. Furthermore it shall determine whether the application of codified modern Hindu law, is informed by the precepts of classical Hindu law.</p>
<p style="text-align: justify; ">Having explicated the nature of Hindu law, the next part will focus on identifying instances of privacy in classical Hindu law.</p>
<p style="text-align: justify; ">Before ascertaining specific instances, however, this part will lay down a general understanding of privacy as it existed then. It will be demonstrated that regardless of the absence of an equivalent term, an expectation of privacy existed.</p>
<p style="text-align: justify; ">The specific illustrations of privacy will then be mapped out.</p>
<p style="text-align: justify; ">Given the different aspects wherein an expectation of privacy exists, there is also a possibility of competing claims. In the event that such conflicts arise, this part will attempt to resolve the same.</p>
<h3 style="text-align: justify; ">Part 1: The Transmogrification of the Nature of Hindu Law</h3>
<p> </p>
<p>The evolution of Hindu jurisprudence can be charted through three phases- classical, colonial, and modern.</p>
<p style="text-align: justify; ">In the classical phase, it was embodied by the Dharmashastra which elaborated on customary practices, legal procedure, as well as punitive measures. The Dharamshastra was accompanied by the Vedas, and acara. Whether this body of jurisprudence could be called 'law' in the strict modernist sense of the term is debatable.<a name="_ftnref23"></a></p>
<p style="text-align: justify; ">Modernity has multifarious aspects.<a name="_ftnref24"></a> However, we are concerned with modernity in the context of legal systems, for the purpose of this paper. The defining attribute of a modernist legal system is the need for positivist precepts that are codified by a legislature.<a name="_ftnref25"></a> The underlying rationale for formalised legislation is the need for certainty in law.<a name="_ftnref26"></a> Law is to be uniformly applied within the territory.<a name="_ftnref27"></a> The formalised legislation is to be enforced by hierarchized courts.<a name="_ftnref28"></a> Furthermore this codified law can be modified through provisions for amendment, if need be. <a name="_ftnref29"></a></p>
<p style="text-align: justify; ">This modernist understanding is what informs the English common law. With the advent of colonialism, common law was imported to India. The modernist legal system was confronted by plural indigenous legal systems here that were starkly different in nature.<a name="_ftnref30"></a> In the given context, the relevant indigenous system is classical Hindu law. The classical precepts were interpreted by the British. These interpretations coupled with the sources of Classical Hindu law, constituted colonial Hindu law.<a name="_ftnref31"></a></p>
<p style="text-align: justify; ">It is pertinent to note that these interpretations were undertaken through a modernist lens. The implication was the attempted modernisation of a traditional legal system.</p>
<p style="text-align: justify; ">The traditional system of Classical Hindu law did not exhibit any of the introduced features. To begin with not all of classical Hindu law was text based. <a name="_ftnref32"></a> The problem with the textual treatises was threefold. First, they were not codes enacted by a legislature, but written by various scholars. Second, they were not phrased as positivist precepts. Third, their multiplicity was accompanied with the lack of an established hierarchy between these texts.</p>
<p style="text-align: justify; ">Additionally classical Hindu law was the embodiment of <i>dharma</i>, which in itself was an amorphous concept. The constitutive elements of<i>dharma</i> were law, religious rites, duties and obligations of members of a community, as well as morality.<a name="_ftnref33"></a> These elements do not however, exhaustively define <i>dharma</i>. There exist varying definitions of <i>dharma</i>,<a name="_ftnref34"></a> and in some cases even ancient texts dealing with <i>dharma</i> fail to articulate its definition.<a name="_ftnref35"></a> This is on account of the fact that the meaning of <i>dharma</i>, varied depending on the in which it is used<a name="_ftnref36"></a> Owing to the fact that classical Hindu jurisprudence was informed by <i>dharma, </i>the former was an amalgamation of law, religion and morality. Therefore it was categorised as jurisprudence that lacked the secularity exhibited by modern positivist law.<a name="_ftnref37"></a></p>
<p style="text-align: justify; ">The co-existence of law and morality in classical Hindu law has led to various debates regarding its nature. <a name="_ftnref38"></a> Before explicating the nature of classical Hindu law, its sources must be elaborated on. As referred to, the sources are <i>sruti</i>, <i>smriti</i>,<i> </i>and<i> acara</i>.</p>
<p style="text-align: justify; ">Sruti is constituted by the <i>Vedas</i>,<i> Brahmanas</i>,<i> Aranyakas</i>,<i> </i>and<i> Upanishads</i>. Vedas are divine revelations that contain no positive precept <i>per se</i>. They are considered as the spirit of law, and believed to be the source of the rules of dharma.<a name="_ftnref39"></a> The Vedas are constituted by the Rigveda, Samveda, Yajurveda and Athravaveda.<a name="_ftnref40"></a> Based on the Vedic texts, treatises have been written elucidating religious practices. <a name="_ftnref41"></a> These texts are known as the Brahmanas.<a name="_ftnref42"></a> The Aranyakas and the Upanishads engage in philosophical enquiries of the revelation in the Vedas.</p>
<p style="text-align: justify; ">Interpretations of the Sruti by various scholars are embodied in the Smriti. The connotations of smriti are twofold. <a name="_ftnref43"></a> First, it implies knowledge transmitted through memory, as opposed to knowledge directly revealed by divinity.<a name="_ftnref44"></a> Additionally, it is the term used to collectively reference the Dharmasutras and Dharmashastra.<a name="_ftnref45"></a></p>
<p style="text-align: justify; ">Dharmasutras were essentially interpretations of revelation in only prose form, or a mixture of prose and verse. <a name="_ftnref46"></a> They detailed the duties and rituals to be carried out by a person, through the four stages, of his or her life. The duties laid down also varied depending on the caste of a person.<a name="_ftnref47"></a> They also laid down guidelines for determining punishments.<a name="_ftnref48"></a></p>
<p style="text-align: justify; ">Dharmasastras on the other hand were in the verse form. Though their subject matter coincided with the Dharmasutra in terms of domestic duties and rituals, they had a wider ambit. The Dharmasastras also dealt with subjects such as statecraft, legal procedure for adjudicating disputes. In a limited way, they marked the diversification from strictly religious precepts, from those that were legal in nature. For instance the Manusmriti was an amalgamation of law and ritual. The Yajnawalkya Samhita however, has separate parts that deal with customary practices, legal procedure, and punitive measures. The Narada Smriti, in turn deals only with legal procedure and rules of adjudication.</p>
<p style="text-align: justify; ">It is opined that in due course of time, the Aryan civilisation diversified.<a name="_ftnref49"></a> Their life and literature were no longer limited to sacrificial practices, but took on a more 'secular' form.<a name="_ftnref50"></a> The Arthashastra is evidence of such diversification.<a name="_ftnref51"></a> Unlike the Dharmashastra, it deals with strategies to be employed in governance, regulations with regard to urban planning, commercialisation of surrogacy, espionage, among other things. <a name="_ftnref52"></a></p>
<p style="text-align: justify; ">The third source of classical Hindu law, acara refers to customary practices and their authoritativeness was determined by the people.<a name="_ftnref53"></a> Their prevalence over textual tradition is contentious. <a name="_ftnref54"></a> Some opine that acara prevails over textual traditions. However, the opposing school of thought believes that customary practices prevail only if the text is unclear or disputed.<a name="_ftnref55"></a></p>
<p style="text-align: justify; ">Other sources of classical Hindu law include the <i>itihas </i>(epics such as the Mahabharata and Ramayana), and digests written by scholars.</p>
<p style="text-align: justify; ">Given the diversity of sources and its non-conformity to positivism, the nature of classical Hindu law is a heavily contested issue. For instance, with regard to the legal procedure in the Dharmashastra, Maynes opines that these rules qualified as law in the modernist sense.<a name="_ftnref56"></a> Ludo Rocher however, opines that textual treatises would not qualify as law. <a name="_ftnref57"></a> Classical Hindu law can admittedly not be identified as strictly legal or strictly moral. However, it does in a limited way recognise the distinction between legal procedure and morality.<a name="_ftnref58"></a> This is to say, it is not merely a source of rituals, but also lays down precepts that are jurisprudentially relevant.</p>
<p style="text-align: justify; ">On account of its non-conformity with characteristics of a modernist legal system, classical Hindu law was displaced by its colonial version. The British attempted to accomplish this though the process of codification.<a name="_ftnref59"></a> The colonial attempts to codify Hindu law were carried forward by the Indian government post-independence. The result was the Hindu Code Bill. The context in which this codification took place must be examined in order to better comprehend this transmogrification. Post-independence, the idea of a Uniform Civil Code had been debated.<a name="_ftnref60"></a> However it was at odds with the Nehruvian notion of secularity. <a name="_ftnref61"></a> The codification of Hindu personal law was an attempt at modernising it, without infringing on the religious freedom of Hindus.<a name="_ftnref62"></a> The idea was to confine the influence of religion to the private sphere. <a name="_ftnref63"></a> What emerged was the Hindu Code Bill, which served as the blueprint for the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and, the Hindu Adoption and Maintenance Act. <a name="_ftnref64"></a> Colonial Hindu law was thus displaced by modern Hindu law.</p>
<p style="text-align: justify; ">As Galanter observes however, modernisation through legislations may formalise or even modify classical precepts, but cannot erase them completely. <a name="_ftnref65"></a> For instance, Section 7 of the Hindu Marriage Act, which prescribes the ceremonial requirements for a Hindu marriage, replicates those prescribed in Classical Hindu law.<a name="_ftnref66"></a> Additionally a plethora of judicial decisions have relied on or taken into consideration, precepts of ancient Hindu jurisprudence.<a name="_ftnref67"></a></p>
<p style="text-align: justify; ">It is evident thus that ancient precepts still inform modern Hindu law. Given their relevance, it would be erroneous to write off classical Hindu law as completely irrelevant in a modernist context.</p>
<h3 style="text-align: justify; ">Part II: Precepts of Privacy in Classical Hindu Law</h3>
<p style="text-align: justify; ">As referred to, we have not come across a terminological equivalent of the term 'privacy' in the course of our research. The linguistic lacuna is admittedly a hurdle in articulating the pre-modern understanding of privacy as found in Hindu jurisprudence. It is not however, an argument against the very existence of privacy. The lack of pre-modern terminology necessitates the usage of modern terms in classifying the aspects of privacy detailed in Hindu jurisprudence.</p>
<p style="text-align: justify; ">Thus, broadly speaking, the aspects of privacy we have culled out from the material at hand are those of physical space/ property, thought, bodily integrity, information, communication, and identity. As will be demonstrated these aspects overlap on occasion and are by no means an exhaustive indication. In order to contextualise these aspects within the realm of Hindu jurisprudence, they are detailed below through specific illustrations.</p>
<p align="left"><i>A. </i> <i>Privacy of physical Space/ property</i></p>
<p style="text-align: justify; ">Akin to the modern legal system that first understood privacy in proprietary terms,<a name="_ftnref68"></a> Hindu jurisprudence too accorded importance to privacy in terms of physical space. This is further illustrated by the similarity between the common law notion of a man's house being his castle,<a name="_ftnref69"></a> and the institutional primacy accorded by the Naradsmriti to the household <a name="_ftnref70"></a>. The common denominator here is the recognition of a claim to privacy against the sovereign. This claim operated against society at large as well. For instance, an individual caught trespassing on someone else's property was liable to be fined. <a name="_ftnref71"></a></p>
<p style="text-align: justify; ">These religious precepts were supplemented by those reflected in texts such as the Arthashastra. By way of illustration the house building regulations prescribed by it are largely informed by the recognition of a need for privacy. To begin with, a person's house should be built at a suitable distance from a neighbour's house, to prevent any inconvenience.<a name="_ftnref72"></a> In addition the house's doors and windows should ideally not face a neighbours doors and windows directly.<a name="_ftnref73"></a> The occupants of the house should ensure the doors and windows are suitably covered.<a name="_ftnref74"></a> Furthermore in the absence of a compelling justification, interference in a neighbour's affairs is penalised.<a name="_ftnref75"></a>Juxtaposed to religious texts that often perceived privacy as a concept driven by the imperative of purity,<a name="_ftnref76"></a> the Arthashastra is reflective of a secular connotation of privacy.</p>
<p style="text-align: justify; ">Though the household was privileged as the foundational institution in Hindu jurisprudence, claims of privacy extend beyond one's house to other physical objects as well, regardless of whether they were extensions of the household or not. For instance, both the Yajnawalkya Samhita and the Manusmriti condemn the usage of another person's property without his or her permission.<a name="_ftnref77"></a></p>
<p style="text-align: justify; ">What is noteworthy in the context of personal property is that in an era infamous for the denigration of women, Hindu jurisprudence recognised a woman's claim over property. This property, also known as Stridhana, had varied definitions. In the Yajnawalkya Samhita for instance, it is conceptualised as, "What has been given to a woman by the father, the mother, the husband or a brother, or received by her at the nuptial fire, or given to her on her husband's marriage with another wife, is denominated Stridhana or a woman's property".<a name="_ftnref78"></a> In the Manusmriti, it is defined as "What was given before the nuptial fire, what was given on the bridal procession, what was given in token of love, and what was received from her brother, mother, or father, that is called the sixfold property of a woman".<a name="_ftnref79"></a></p>
<p style="text-align: justify; ">Beyond mere cognizance of proprietary rights however, these precepts were also informed by the notion of exclusivity. Consequently, a woman's husband or his family were precluded from using her Stridhana, unless they were in dire straits. Additionally it was a sin for a woman's relatives to use her wealth even if the same was done unknowingly.<a name="_ftnref80"></a></p>
<p><i>B. </i> <i>Privacy of Thought</i></p>
<p style="text-align: justify; ">In addition to the aspect of physical space, a claim to privacy vis-a-vis the intangible realm of thought was afforded by Hindu jurisprudence. In the modern context the link between solitude and privacy has been recognised as early as 1850 by Warren and Brandeis. <a name="_ftnref81"></a> The key distinction is that in the modern era this need for solitude was seen as a function of the increasing invasion of privacy.<a name="_ftnref82"></a> In the pre-modern era however, solitude was considered essential for self-actualisation, and not as a response to the increasing invasion of the private realm. Meditation in solitude was perceived as enabling existence in the highest state of being.<a name="_ftnref83"></a> In fact a life in solitude was identified as a pre-requisite for being liberated.<a name="_ftnref84"></a></p>
<p style="text-align: justify; ">Though solitude itself is intangible, engaging in meditation would require a tangible solitary space.<a name="_ftnref85"></a> This is where the privacy of thought overlapped with the aspect of privacy of space. Accordingly, the Arthashastra prescribed that forest areas be set aside for meditation and introspection.<a name="_ftnref86"></a> It also recognised the need for ascetics to live within these spaces harmoniously, without disturbing each other.<a name="_ftnref87"></a></p>
<p style="text-align: justify; ">It is evident, that as far as the aspects of privacy were concerned, there were no watertight compartments.</p>
<p><i>C. </i> <i>Privacy with respect to bodily integrity</i></p>
<p style="text-align: justify; ">A claim to privacy of thought can only be substantively realised when complemented by the notion of privacy with respect to bodily integrity, as corporeal existence serves as a precursor to mental well-being. The inference drawn from the relevant precepts concerning this aspect is that they were largely women-centric. Arguably they were governed by a misplaced patriarchal notion that women's modesty needed to be protected. At best they could be considered as implicit references to an expectation of privacy.</p>
<p style="text-align: justify; ">The Manusmriti states, "But she who…goes to public spectacles or assemblies, shall be fined six krishnalas". <a name="_ftnref88"></a> Restrictions operating during a woman's menstruation were twofold. Her family was prohibited from seeing her. Additionally cohabitation with such a woman was also forbidden.<a name="_ftnref89"></a> It should be pointed out that that these constructs had little to do with a woman's expectation of privacy. They were forbidden due to the attached implications of impurity that would vest in the defaulter. A woman's autonomy with regard to her body was not regarded as a factor meriting consideration.</p>
<p style="text-align: justify; ">However, there were constructs, albeit limited, which were more egalitarian in their approach and did recognise her autonomy. They established that women do have an expectation of privacy in terms of bodily integrity. Sexual assault was considered as an offence. <a name="_ftnref90"></a> Evidence of this is found in the Yajnawalkya Samhita which states, "If many persons know a woman against her will, each of them should be made to pay a fine of twenty four panas".<a name="_ftnref91"></a> In addition, the Arthashastra vested in commercial sex workers the right to not be held against their will.<a name="_ftnref92"></a> Further it expressly states that even a commercial sex worker cannot be forced to engage in sexual intercourse.<a name="_ftnref93"></a></p>
<p style="text-align: justify; ">Women could make a claim to privacy not only against society at large, but also against their husbands. Ironically, while our contemporary legal system (i.e., the Indian legal system) fails to criminalise marital rape, the <i>Manusmriti</i> considered it an offence. <a name="_ftnref94"></a> Additionally, husbands were also prohibited from looking at their wives when the latter were in a state of relaxation.</p>
<p style="text-align: justify; "><i>D. </i> <i>Privacy of Information and Communication</i></p>
<p style="text-align: justify; ">While the three aspects explicated above were by and large restricted to the individual, the privacy of information and communication has been largely confined by Hindu jurisprudence to the realm of the sovereign. Both the Manusmriti and the Arthashastra acknowledge the importance of a secret council that aids the king in deliberations.<a name="_ftnref95"></a> These deliberations are to be carried on in a solitary place that was well-guarded.<a name="_ftnref96"></a> The decisions made in these deliberations are to be revealed on a need to know basis. <a name="_ftnref97"></a> That is to say, only persons concerned with the implementation of these decisions are to be informed. The Manusmriti also provides for private deliberation by the king on matters not involving governance. It provides, "At midday or midnight , when his mental and bodily fatigues are over, let him deliberate, either with himself alone or with his ministers on virtue, pleasure, and wealth".</p>
<p style="text-align: justify; ">Apart from governance, privacy of information also pertained to certain types of documents that were considered private in nature. These are documents that involve transactions such as partition, giving of a gift, purchase, pledge and debt. What is interesting about this precept is the resemblance it bears to the common law notion of privity. The common characteristic of the documents referred to, is that they concerned transactions undertaken between two or more persons. The rights or obligations arising from these transactions were confined to the signatories of these documents. It could be possible that the privatisation of these documents was aimed at guarding against disruption of transactions via third party intrusions.</p>
<p style="text-align: justify; ">The limited reference to private communications is found within the realm of governance, within the context of privacy of information. The only illustration of this that we have come across is the precept in the Arthashastra that requires intelligence to be communicated in code. <a name="_ftnref98"></a></p>
<p><i>E. </i> <i>Privacy of Identity </i></p>
<p style="text-align: justify; ">The final aspect that warrants detailing is the privacy of identity. The notion of privacy of identity can be understood in two ways. The first deals with protection of personal information that could be traced back to someone, thus revealing his or her identity. The second recognises the component of reputation. It seeks to prevent the misappropriation or maligning of a person's identity and thus reputation. In ancient Hindu jurisprudence there is evidence of recognition of the latter. An illustration of the same is offered by the precept which states "For making known the real defects of a maiden, one should pay a fine of a hundred panas".<a name="_ftnref99"></a> Another precept prescribes that false accusations against anyone in general are punishable by a fine. Additionally, there is also a restriction operating against destroying or robbing a person of his or her virtue.<a name="_ftnref100"></a> In the modern context, the above would be understood under the rubric of defamation. These precepts are indicative of the fact that defamation was recognised as an offence way before the modern legal system afforded cognizance to the same.</p>
<h3 style="text-align: justify; ">Conclusion</h3>
<p style="text-align: justify; ">The dominant narrative surrounding the privacy debate in India is that of the alien-ness of privacy. This paper has attempted to displace the notion that privacy is an inherently 'Western' concept that is the product of a modernist legal system. No doubt the common understanding of the legal conception of privacy is informed by modernity. In fact, the research conducted in support of this paper has been synthesised from privacy information through a modernist lens. The fact still remains however, that privacy is an amorphous context, and its conceptions vary across cultures.</p>
<p style="text-align: justify; ">To better appreciate the relevance of Classical Hindu law in a modernist context, the nature of Hindu law must be examined first. While Hindu jurisprudence might not qualify as law in the positivist sense of the term, its precepts continue to inform India's statues and judicial pronouncements.</p>
<p style="text-align: justify; ">Privacy is subjective and eludes a straitjacketed definition. On occasion this elusiveness is a function of its overlapping and varying aspects. At other times it stems from a terminological lacuna that complicates the explication of privacy. These impediments notwithstanding, it is abundantly clear that the essence of privacy is reflected in Hindu culture and jurisprudence. This may give pause to thought to those who seek to argue that 'collectivist' cultures do not value privacy or exhibit the need for it.</p>
<div></div>
<div>
<hr />
<div id="ftn1">
<p><a name="_ftn1"></a> Daniel J. Solove, <i>A Taxonomy of Privacy</i>, University of Pennsylvania Law Review, Vol. 154(3), January 2006.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2"></a> <i>Id.</i></p>
</div>
<div id="ftn3">
<p style="text-align: justify; "><a name="_ftn3"></a> Upendra Baxi, <i>Who Bothers About the Supreme Court: The Problem of Impact of Judicial Decisions</i>, available at http://clpr.org.in/wp-content/uploads/2013/08/whobothersabouttheSupremeCourt.pdf (Last visited on December 23, 2014) (The enforceability of rights often sets their individual enjoyment apart from their jurisprudential value); In India, the reading of privacy into Article 21 has not resulted in a mechanism to enforce a standalone right to privacy, See R.H. Clark, Constitutional Sources of the Penumbral Right to Privacy, available at http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=2046&context=vlr (Last visited on December 23, 2014) (In the United States, the right to privacy was located in the penumbra of the right to personal autonomy).</p>
</div>
<div id="ftn4">
<p><a name="_ftn4"></a> See PUCL v. Union of India, AIR 1997 SC 568.</p>
</div>
<div id="ftn5">
<p><a name="_ftn5"></a> See Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 558 (2003).</p>
</div>
<div id="ftn6">
<p><a name="_ftn6"></a> See The Indian Penal Code, 1850, Section 499.</p>
</div>
<div id="ftn7">
<p><a name="_ftn7"></a> See The Hindu Marriage Act, 1955 Section 22; The Special Marriage Act, 1954, Section 33.</p>
</div>
<div id="ftn8">
<p style="text-align: justify; "><a name="_ftn8"></a> Bhairav Acharya & Vidushi Marda, <i>Identifying Aspects of Privacy in Islamic Law</i>, available at http://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law (Last visited on December 23, 2014).</p>
</div>
<div id="ftn9">
<p><a name="_ftn9"></a> See Robert Lingat, The Classical Law of India (1973).</p>
</div>
<div id="ftn10">
<p style="text-align: justify; "><a name="_ftn10"></a> Donald R. Davis, Jr., The Spirit of Hindu Law (2010) (This importation must be viewed against the backdrop of the characteristics of the era of Enlightenment wherein primacy was accorded to secular reason and the positivist conception of law. Davis observes "One cannot deny the increasing global acceptance of a once parochial notion of law as rules backed by sanctions enforced by the state. This very modern, very European notion of law is not natural, not a given; it was produced at a specific moment in history and promulgated systematically and often forcibly through the institutions of what we now call the nation-state, especially those nations that were also colonial powers.)"; But see Alan Gledhill, <i>The Influence of Common Law and Equity on Hindu Law Since 1800</i>, available at http://www.jstor.org/stable/755588 (Last visited on December 23, 2014); Werner Menski, <i>Sanskrit Law: Excavating Vedic Legal Pluralism</i>, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1621384 (Last visited on December 23, 2014) (However, this replacement of traditional legal systems did not extend to personal laws. Personal laws in India continue to be community-based, sometimes un-codified, draw from a diverse set of simultaneously applicable sources and traditional schools of jurisprudence.).</p>
</div>
<div id="ftn11">
<p><a name="_ftn11"></a> <i>Supra </i> note 8, Acharya & Marda.</p>
</div>
<div id="ftn12">
<p style="text-align: justify; "><a name="_ftn12"></a> Privacy International, <i>A New Dawn: Privacy in Asia</i>, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013) ("It is only recently that the debate around privacy was stuck in this "collectivist" vs. "individualistic" cultural discourse…we discovered that privacy concerns and the need for safeguards were often embedded deeply in a nation, and <i>not just as a response to a modern phenomenon.</i>").</p>
</div>
<div id="ftn13">
<p style="text-align: justify; "><a name="_ftn13"></a> Privacy International, <i>A New Dawn: Privacy in Asia</i>, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013)</p>
</div>
<div id="ftn14">
<p style="text-align: justify; "><a name="_ftn14"></a> J. Duncan M. Derrett, <i>The Administration of Hindu Law by the British</i>, available at http://www.jstor.org/stable/177940 (Last visited on December 23, 2014).</p>
</div>
<div id="ftn15">
<p><a name="_ftn15"></a> Manusmriti, Chapter IV, 201.</p>
</div>
<div id="ftn16">
<p><a name="_ftn16"></a> Manusmriti, Chapter IV, 202.</p>
</div>
<div id="ftn17">
<p><a name="_ftn17"></a> <i>Id.</i></p>
</div>
<div id="ftn18">
<p><a name="_ftn18"></a> Wael B. Hallaq, An Introduction to Islamic Law 31 (2009).</p>
</div>
<div id="ftn19">
<p><a name="_ftn19"></a> Donald R. Davis, Jr., The Spirit of Hindu Law (2010).</p>
</div>
<div id="ftn20">
<p style="text-align: justify; "><a name="_ftn20"></a> Marc Galanter, <i>The Displacement of Traditional Law in Modern India</i>, Journal of Social Issues, Vol. XXIV, No. 4, 1968.</p>
</div>
<div id="ftn21">
<p><a name="_ftn21"></a> <i>Id.</i></p>
</div>
<div id="ftn22">
<p><a name="_ftn22"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn23">
<p><a name="_ftn23"></a> <i>Supra </i> note 10, Menski.</p>
</div>
<div id="ftn24">
<p><a name="_ftn24"></a> Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).</p>
</div>
<div id="ftn25">
<p><a name="_ftn25"></a> <i>Id.</i></p>
</div>
<div id="ftn26">
<p><a name="_ftn26"></a> Ashcroft as cited in Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).</p>
</div>
<div id="ftn27">
<p><a name="_ftn27"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn28">
<p><a name="_ftn28"></a> <i>Id.</i></p>
</div>
<div id="ftn29">
<p><a name="_ftn29"></a> <i>Id.</i></p>
</div>
<div id="ftn30">
<p><a name="_ftn30"></a> <i>Id</i> .</p>
</div>
<div id="ftn31">
<p><a name="_ftn31"></a> <i>Id</i> .</p>
</div>
<div id="ftn32">
<p><a name="_ftn32"></a> <i>Id</i> .</p>
</div>
<div id="ftn33">
<p><a name="_ftn33"></a> <i>Supra</i> note 19, Davis.</p>
</div>
<div id="ftn34">
<p><a name="_ftn34"></a> <i>Id.</i></p>
</div>
<div id="ftn35">
<p><a name="_ftn35"></a> <i>Id.</i></p>
</div>
<div id="ftn36">
<p><a name="_ftn36"></a> <i>Id</i> .</p>
</div>
<div id="ftn37">
<p><a name="_ftn37"></a> <i>Id</i> .</p>
</div>
<div id="ftn38">
<p><a name="_ftn38"></a> J. Duncan M. Derrett, Introduction to Modern Hindu Law (1963); <i>Supra</i> note 19, Davis.</p>
</div>
<div id="ftn39">
<p><a name="_ftn39"></a> <i>Supra</i> note 9, Lingat.</p>
</div>
<div id="ftn40">
<p><a name="_ftn40"></a> <i>Id.</i></p>
</div>
<div id="ftn41">
<p><a name="_ftn41"></a> <i>Id.</i></p>
</div>
<div id="ftn42">
<p><a name="_ftn42"></a> <i>Id.</i></p>
</div>
<div id="ftn43">
<p><a name="_ftn43"></a> <i>Id.</i></p>
</div>
<div id="ftn44">
<p><a name="_ftn44"></a> <i>Id.</i></p>
</div>
<div id="ftn45">
<p><a name="_ftn45"></a> <i>Id.</i></p>
</div>
<div id="ftn46">
<p><a name="_ftn46"></a> <i>Id.</i></p>
</div>
<div id="ftn47">
<p><a name="_ftn47"></a> <i>Id.</i></p>
</div>
<div id="ftn48">
<p><a name="_ftn48"></a> <i>Id.</i></p>
</div>
<div id="ftn49">
<p><a name="_ftn49"></a> John D. Mayne, Hindu Law (1875).</p>
</div>
<div id="ftn50">
<p><a name="_ftn50"></a> <i>Id.</i></p>
</div>
<div id="ftn51">
<p><a name="_ftn51"></a> <i>Supra </i> note 49, Mayne.</p>
</div>
<div id="ftn52">
<p><a name="_ftn52"></a> <i>Id.</i></p>
</div>
<div id="ftn53">
<p><a name="_ftn53"></a> <i>Supra </i> note 19, Davis.</p>
</div>
<div id="ftn54">
<p><a name="_ftn54"></a> <i>Id.</i></p>
</div>
<div id="ftn55">
<p><a name="_ftn55"></a> <i>Id.</i></p>
</div>
<div id="ftn56">
<p><a name="_ftn56"></a> <i>Supra </i> note 49, Mayne.</p>
</div>
<div id="ftn57">
<p><a name="_ftn57"></a> Ludo Rocher, Studies in Hindu Law and Dharamasastra (2012).</p>
</div>
<div id="ftn58">
<p style="text-align: justify; "><a name="_ftn58"></a> For instance the Yajnawalkya Samhita has clear delineations in its chapters, segregating customary practices, legal procedure and punitive measures.</p>
</div>
<div id="ftn59">
<p style="text-align: justify; "><a name="_ftn59"></a> Madhu Kishwar, <i>Codified Hindu Law: Myth and Reality</i>, available at http://www.jstor.org/stable/4401625 (Last visited on December 23, 2014).</p>
</div>
<div id="ftn60">
<p><a name="_ftn60"></a> <i>Id</i> .</p>
</div>
<div id="ftn61">
<p><a name="_ftn61"></a> <i>Supra </i> note 59.</p>
</div>
<div id="ftn62">
<p><a name="_ftn62"></a> <i>Id.</i></p>
</div>
<div id="ftn63">
<p><a name="_ftn63"></a> <i>Id.</i></p>
</div>
<div id="ftn64">
<p><a name="_ftn64"></a> <i>Id.</i></p>
</div>
<div id="ftn65">
<p><a name="_ftn65"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn66">
<p><a name="_ftn66"></a> See The Hindu Marriage Act, 1955, Section 7.</p>
</div>
<div id="ftn67">
<p style="text-align: justify; "><a name="_ftn67"></a> Saroj Rani v. Sudarshan Kumar Chadda, AIR 1984 SC 1562 (reflected the importance accorded by classical Hindu law to marital stability); M Govindaraju v. K Munisami Goundu 1996 SCALE (6) 13(The Supreme Court looked to ancient Shudra custom to adjudicate on a matter of adoption); Rajkumar Patni v. Manorama Patni, II (2000) DMC 702 (The Madhya Pradesh High Court, relied on the definition of Stridhan by Manu.).</p>
</div>
<div id="ftn68">
<p><a name="_ftn68"></a> <i>Supra</i> note 8, Acharya & Marda.</p>
</div>
<div id="ftn69">
<p><a name="_ftn69"></a> Semayne v. Gresham, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604).</p>
</div>
<div id="ftn70">
<p style="text-align: justify; "><a name="_ftn70"></a> As cited in Julius Jolly, The Minor Law Books 164 (1889), ("A householder's house and field are considered as the two fundamentals of his existence. Therefore let not the king upset either of them; for that is the root of the householders").</p>
</div>
<div id="ftn71">
<p style="text-align: justify; "><a name="_ftn71"></a> Manmath Nath Dutt, The Dharamshastra - Hindu Religious Codes, Volume 1, 103 (1978) (Yajnawalkya Samhita, Chapter II 235-236: "He…who opens the doors of a closed house [without the permission of the master]…should be punished with fifty panas. Such is the law.").</p>
</div>
<div id="ftn72">
<p style="text-align: justify; "><a name="_ftn72"></a> L.N. Rangarajan, Kautalya: The Arthashastra 371 (1992) ("O be built at a suitable distance from the neighbours property so as not to cause inconvenience to the neighbour").</p>
</div>
<div id="ftn73">
<p style="text-align: justify; "><a name="_ftn73"></a> <i>Id</i> ., ("…doors and windows shall be made so as not to cause annoyance by facing a neighbour's door or window directly").</p>
</div>
<div id="ftn74">
<p style="text-align: justify; "><a name="_ftn74"></a> <i>Supra </i> note 72, Rangarajan, ("when the house is occupied the doors and windows shall be suitably covered").</p>
</div>
<div id="ftn75">
<p><a name="_ftn75"></a> <i> Id.</i>, 376.</p>
</div>
<div id="ftn76">
<p><a name="_ftn76"></a> See Manusmriti, Chapter IV, 201-202.</p>
</div>
<div id="ftn77">
<p style="text-align: justify; "><a name="_ftn77"></a> <i>Supra </i> note 71, Dutt, 27 (Yajnawalkya Samhita, Chapter I , 160: "One should avoid the bed, seat, garden-house and the conveyance belonging to another person.").</p>
</div>
<div id="ftn78">
<p><a name="_ftn78"></a> <i>Supra </i> note 71, Dutt, 89 (Yajnawalkya Samhita, Chapter II, 146).</p>
</div>
<div id="ftn79">
<p><a name="_ftn79"></a> Manusmriti, Chapter IX, 194.</p>
</div>
<div id="ftn80">
<p><a name="_ftn80"></a> <i>Supra </i> note 71, Dutt Volume 2, 276 (Angiras Samhita, Chapter I, 71).</p>
</div>
<div id="ftn81">
<p><a name="_ftn81"></a> Samuel D. Warren & Louis D. Brandeis, <i>The Right to Privacy</i>, Harvard Law Review, Vol. IV, December 15, 1890, No.5.</p>
</div>
<div id="ftn82">
<p><a name="_ftn82"></a> <i>Id.</i></p>
</div>
<div id="ftn83">
<p style="text-align: justify; "><a name="_ftn83"></a> Manusmriti, Chapter IV, 258; <i>Supra </i>note 71, Dutt, 134 (Yajnawalkya Samhita Chapter III, 111: "Having withdrawn the mind, understanding, retentive faculty and the senses from all their objects, the soul, the lord…should be meditated upon.").</p>
</div>
<div id="ftn84">
<p><a name="_ftn84"></a> Manu Chapter VI, 44.</p>
</div>
<div id="ftn85">
<p style="text-align: justify; "><a name="_ftn85"></a> <i>Supra </i> note 71, Dutt, 186 (Harita Chapter VII, 6: "Situated in a solitary place with a concentrated mind, he should, till death mediate on the <i>atman</i>, that is situated both in the mind and the external world… ").</p>
</div>
<div id="ftn86">
<p><a name="_ftn86"></a> <i>Supra </i> note 72, Rangarajan, (Arthashastra, 2.2.2).</p>
</div>
<div id="ftn87">
<p><a name="_ftn87"></a> Supra note72, Rangarajan, (Arthashastra 3.16.33-36).</p>
</div>
<div id="ftn88">
<p><a name="_ftn88"></a> Manusmriti IX, 84</p>
</div>
<div id="ftn89">
<p><a name="_ftn89"></a> <i>Supra </i> note 71, Dutt, Volume 2, 350 (Samvarta Samhita,163).</p>
</div>
<div id="ftn90">
<p><a name="_ftn90"></a> <i>Supra</i> note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 291).</p>
</div>
<div id="ftn91">
<p><a name="_ftn91"></a> <i>Supra</i> note 71, Dutt, Volume 1, 113 (Yajnawalkya Samhita, Chapter II, 294).</p>
</div>
<div id="ftn92">
<p><a name="_ftn92"></a> <i>Supra </i> note 72, Ranjarajan (Arthashastra 2.27.14).</p>
</div>
<div id="ftn93">
<p><a name="_ftn93"></a> Supra note 72, Rangarajan (Arthashastra 4.13.38).</p>
</div>
<div id="ftn94">
<p><a name="_ftn94"></a> Manusmriti, X, 62</p>
</div>
<div id="ftn95">
<p><a name="_ftn95"></a> Manusmriti Part VII, <i>Supra </i>note 101, Rangarajan (Arthashastra 1.15.2-5, 1.15.13-17).</p>
</div>
<div id="ftn96">
<p style="text-align: justify; "><a name="_ftn96"></a> <i>Supra </i> note 72, Rangarajan (Arthashastra 1.15.2-5 : The scrutiny of governance related affairs was take place in a secluded and well-guarded spot, where it could not be overheard. No unauthorised person was allowed to approach these meetings.).</p>
</div>
<div id="ftn97">
<p style="text-align: justify; "><a name="_ftn97"></a> <i>Supra </i> note 72, Rangarajan (Arthashastra 1.15.13-17: "…Only those who have to implement it should know when the work is begun or when it has been completed.").</p>
</div>
<div id="ftn98">
<p><a name="_ftn98"></a> <i>Supra</i> note 72, Rangarajan.</p>
</div>
<div id="ftn99">
<p><a name="_ftn99"></a> <i>Supra</i> note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 292).</p>
</div>
<div id="ftn100">
<p><a name="_ftn100"></a> <i>Supra </i> note 71, Dutt, Volume 4, 919 (Vishnu Samhita, Chapter LII, 16).</p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law'>http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law</a>
</p>
No publisherAshna Ashesh and Bhairav AcharyaFeaturedHomepageInternet GovernancePrivacy2015-01-01T13:56:04ZBlog EntryNational IPR Policy Series : CIS Comments to the First Draft of the National IP Policy
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy
<b>The Department of Industrial Policy and Promotion, Government of India invited comments on the First Draft of India's National IPR Policy. The Centre for Internet & Society (CIS) made this submission. The comments were prepared by Nehaa Chaudhari, Pranesh Prakash and Anubha Sinha. We also thank our intern, Varnika Chawla for her assistance.</b>
<p style="text-align: justify; ">The press release from the Department of Industrial Policy and Promotion in which it invited comments is <a class="external-link" href="http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf">here</a>. The First Draft of India's National IPR Policy is <a class="external-link" href="http://www.dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf">here</a>. Click to <a href="http://editors.cis-india.org/a2k/blogs/cis-comments_first-draft-of-national-ipr-stategy.pdf" class="external-link">view the PDF</a>. Note: <i>In some places there might be references to paragraph/page numbers (of the document) and for that readers should refer to the PDF since the formatting in HTML is slightly different</i>.</p>
<hr />
<ol type="I"> </ol>
<h2 align="JUSTIFY">Preliminary</h2>
<ol>
<li style="text-align: justify; ">This submission presents comments from the Centre for Internet and Society, India (<b>"CIS"</b>)<a href="#sdfootnote1sym" name="sdfootnote1anc"><sup>1</sup></a> on the proposed National Intellectual Property Rights Policy <b>("the Policy") </b>to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.<b>("DIPP"</b>).</li>
<li>This submission is made in response to the requests and suggestions from stakeholders sought by the DIPP in its Press Release. <a href="#sdfootnote2sym" name="sdfootnote2anc"><sup>2</sup></a> </li>
<li>
<p align="JUSTIFY">CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.</p>
<hr />
</li>
</ol> <ol type="I"> <ol> </ol></ol>
<h3 align="JUSTIFY">About CIS</h3>
<ol type="I">
<li style="text-align: justify; ">CIS<a href="#sdfootnote3sym" name="sdfootnote3anc"><sup>3</sup></a> is a non-profit research organization that works on among others, issues of intellectual property law reform,<a href="#sdfootnote4sym" name="sdfootnote4anc"><sup>4</sup></a> openness,<a href="#sdfootnote5sym" name="sdfootnote5anc"><sup>5</sup></a> privacy, freedom of speech and expression and internet governance,<a href="#sdfootnote6sym" name="sdfootnote6anc"><sup>6</sup></a> accessibility for persons with disabilities,<a href="#sdfootnote7sym" name="sdfootnote7anc"><sup>7</sup></a> and engages in academic research on digital humanities<a href="#sdfootnote8sym" name="sdfootnote8anc"><sup>8</sup></a> and digital natives. <a href="#sdfootnote9sym" name="sdfootnote9anc"><sup>9</sup></a></li>
<li style="text-align: justify; ">CIS is an accredited Observer<a href="#sdfootnote10sym" name="sdfootnote10anc"><sup>10</sup></a> at the World Intellectual Property Organization ("WIPO"), enabling us to attend formal meetings of member states and participate in debates and consultations on various issues. CIS has been attending meetings of the WIPO Standing Committee on Copyright and Related Rights since 2010. At these sessions, CIS has actively participated through various interventions, emphasizing the adoption of an approach balancing the rights holders' perspective with public interest. CIS has also attended sessions of some other committees at WIPO, made interventions wherever applicable, produced reports of these meetings, and profiled the work of other non-governmental organizations engaging in similar work on intellectual property law and policy reform. <a href="#sdfootnote11sym" name="sdfootnote11anc"><sup>11</sup></a></li>
<li style="text-align: justify; ">CIS undertakes research in other fields of intellectual property, in addition to WIPO-related work. Over the past five years since our inception, some of our key research has included analyses of intellectual property issues of the proposed Indo-EU Free Trade Agreement<a href="#sdfootnote12sym" name="sdfootnote12anc"><sup>12</sup></a> and other free trade agreements,<a href="#sdfootnote13sym" name="sdfootnote13anc"><sup>13</sup></a> the US Special 301 Report,<a href="#sdfootnote14sym" name="sdfootnote14anc"><sup>14</sup></a> the (2010) amendment to the Copyright Act, 1957,<a href="#sdfootnote15sym" name="sdfootnote15anc"><sup>15</sup></a> the (draft) Science, Technology and Innovation Policy,<a href="#sdfootnote16sym" name="sdfootnote16anc"><sup>16</sup></a> parallel importation, <a href="#sdfootnote17sym" name="sdfootnote17anc"><sup>17</sup></a> the (draft) Patent Manual and the subsequent Guidelines for Computer Related Inventions,<a href="#sdfootnote18sym" name="sdfootnote18anc"><sup>18</sup></a> royalty caps,<a href="#sdfootnote19sym" name="sdfootnote19anc"><sup>19</sup></a> copyright exceptions and limitations for education, <a href="#sdfootnote20sym" name="sdfootnote20anc"><sup>20</sup></a> and the preparation of the India Report for the Consumers International IP Watch List.<a href="#sdfootnote21sym" name="sdfootnote21anc"><sup>21</sup></a> </li>
</ol>
<h3>Structure of this Submission</h3>
<ol>
<li>
<p align="JUSTIFY">This submission is divided into 4 parts. The first<i> </i>part gives a preliminary overview of the suggestions submitted by CIS. The second part highlights the principles that should be followed in the formulation of a National IPR Policy, the third part provides detailed comments and recommendations for the National IPR Policy and the last part provides certain concluding remarks.</p>
</li>
</ol>
<h2 align="JUSTIFY">Principles</h2>
<ol>
<li>
<p align="JUSTIFY">The characterization of intellectual property rights may be two-fold - first<i>,</i> at their core, intellectual property rights, are temporary monopolies granted to <i>inter alia,</i> authors and inventors; and <i>second, </i>they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders.<a href="#sdfootnote22sym" name="sdfootnote22anc"><sup>22</sup></a> It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those that promote freedom of expression, research, education and access to medicines, cultural rights, data mining, use of governmental works, etc.</p>
</li>
</ol> <ol type="I"> </ol>
<h2>Detailed Comments</h2>
<ol type="I"> </ol> <ol>
<li>
<p align="JUSTIFY">This section will detail CIS' submissions on various aspects of the National IPR Policy. Submissions have been categorised thematically.</p>
</li>
</ol> <ol type="I"> <ol> </ol></ol>
<h3>On the Vision</h3>
<ol>
<li style="text-align: justify; ">It is submitted that the Vision of the National IPR Policy (<b>"Vision"</b>) in encouraging growth for the 'benefit of all' and in accepting the philosophy that knowledge owned 'is transformed into knowledge shared' <a href="#sdfootnote23sym" name="sdfootnote23anc"><sup>23</sup></a> is commendable.However, the vision is at odds with the methods proposed in the document. True advancement in science and technology, arts and culture, protection of traditional knowledge as well as bio-diverse resources and the true sharing of knowledge would be impaired by a system centred only around the development and maximization of intellectual property.</li>
<li style="text-align: justify; ">An attractive social culture would be one where citizens had access to a cornucopia of ideas and information, thereby fostering an environment of cultural diversity, which would enable individuals to shape themselves. Indeed, this is not just an ideal, but is a right recognized under Article 27(1) of the Universal Declaration of Human Rights, and Article 15 of the .<a href="#sdfootnote24sym" name="sdfootnote24anc"><sup>24</sup></a> However, an IP maximization approach, which the draft stategy seems to embrace, hinders the growth of such a culture, creating a protectionist environment while preventing access to various resources which may be of use for further innovations.</li>
<li style="text-align: justify; ">The question of whether IP rights given to innovators are the most effective tools to promote innovation in society has been widely discussed in economics, politics and law, especially in the last four decades.<a href="#sdfootnote25sym" name="sdfootnote25anc"><sup>25</sup></a> Traditional arguments in favour of temporary monopolies incentivising innovation have been effectively questioned as creating monopolies on innovation, contributing to increasing prices and a distorted allocation of resources, inefficiency and a net loss of welfare. <a href="#sdfootnote26sym" name="sdfootnote26anc"><sup>26</sup></a> It has also been effectively established that most innovation is incremental and cumulative, necessitating the access to pre-existing data and works.<a href="#sdfootnote27sym" name="sdfootnote27anc"><sup>27</sup></a> It would be welcome if the huge amount of academic literature on these matter were taken into consideration by the expert group. While intellectual property rights are not <i>per se</i> antithetical to innovation, creativity, and cultural development, an IP-maximalist policy and law has been shown to harm those very objectives.</li>
<li style="text-align: justify; ">CIS therefore submits that the vision of the policy also reflect the commitment to the creation of a holistic and balanced framework of intellectual property rights in the nation with the recognition that an intellectual property-centric system would not necessarily be the best means of promoting creativity, innovation and access, the promotion of which are part of the stated desire of the policy.</li>
<li style="text-align: justify; ">Further, we believe that the principles of freedom of expression and of due process of law, both of which are constitutionally-recognized rights in India, should be recognized in the vision as principles that any intellectual property rights regime should respectively seek to promote and respect. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On the Mission</h3>
<ol>
<li style="text-align: justify; ">CIS appreciates the commitment to establish a balanced, dynamic and vibrant intellectual property system in India.<a href="#sdfootnote28sym" name="sdfootnote28anc"><sup>28</sup></a> We recommend that the mission of the policy also include a commitment to<i>foster </i><i>a</i><i>ccess to </i><i>k</i><i>nowledge </i>as well as the commitment to creating a<i>system of intellectual property rights </i><i>which serve the public interest by strengthening </i><i>limitations and exceptions </i> <i>to IP regimes, which are aimed to provide a public interest oriented counterbalance to the monopoly rights granted under IPR laws.</i></li>
<li style="text-align: justify; ">We believe that preventing unreasonable and disproportionate remedies to IPR law violations are an important part of ensuring that these laws serve the public interest rather than subvert them for purely private interests. This important principle ought to find reflection in the policy's mission statement.</li>
<li style="text-align: justify; ">It is suggested that in addition to public health, food security and the environment<a href="#sdfootnote29sym" name="sdfootnote29anc"><sup>29</sup></a>, other areas of socio-economic and cultural importance, including <i> inter alia,</i>foundational scientific research, education, disability rights, and access to knowledge, be added as additional areas that warrant special protection , in the mission statement.</li>
<li style="text-align: justify; ">It is submitted that these commitments are essential to the creation and working of a balanced intellectual property framework that the Policy seeks to achieve. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On Objective 1: IP Awareness and Promotion</h3>
<ol>
<li style="text-align: justify; ">The first objective of the Policy lays out a detailed action plan for creating awareness about intellectual property as well as for the promotion of intellectual property. The underlying rationale for this endeavour has been identified on various levels - that there are economic, social and cultural benefits of intellectual property;<a href="#sdfootnote30sym" name="sdfootnote30anc"><sup>30</sup></a> that intellectual property protection accelerates development, promotes entrepreneurship as well as increases competitiveness; <a href="#sdfootnote31sym" name="sdfootnote31anc"><sup>31</sup></a> and that the global regime is one of strongly protected intellectual property rights.<a href="#sdfootnote32sym" name="sdfootnote32anc"><sup>32</sup></a></li>
<li style="text-align: justify; ">It is submitted that the identification of this underlying rationale is not backed by sufficient evidence. These justifications, in their pursuit of a favourable intellectual property regime do not present a balanced picture of all the facts.</li>
<li style="text-align: justify; ">Current existing empirical research does not show an unambiguous nexus between the granting of IP rights and an increase in innovation and productivity, as innovation and productivity cannot not identified with the number of patents awarded. <a href="#sdfootnote33sym" name="sdfootnote33anc"><sup>33</sup></a> This can be seen in the US economy, where despite an enormous increase in the number of patents, there has been no dramatic acceleration in technological progress. <a href="#sdfootnote34sym" name="sdfootnote34anc"><sup>34</sup></a> In fact, studies prove the contrary to be true. In the United States, patenting increased drastically over the last few decades, quadrupling from 59,715 patents being issued in 1983, to 244,341 in 2010. However, according to the Bureau of Labour Statistics, annual growth in the total factor productivity reduced from 1.2% in 1970-79 to below 1% in 2000-09, <a href="#sdfootnote35sym" name="sdfootnote35anc"><sup>35</sup></a> whereas the annual expenditure on research and development saw hardly any change, oscillating in a band of 2.5% of the GDP for over three decades.<a href="#sdfootnote36sym" name="sdfootnote36anc"><sup>36</sup></a> In relatively new industries such as software and biotechnology, still in their nascent stages of development, patenting has been introduced without any positive contributions to innovation. In fact, in their empirical work described in <i>Patent Failure</i> (2008), <a href="#sdfootnote37sym" name="sdfootnote37anc"><sup>37</sup></a> Bessen and Meurer have argued that increased patenting has resulted in decreased social welfare.</li>
<li style="text-align: justify; ">Further, no unambiguous connections have been found between innovation and intellectual property rights in academic studies. In a meta-study conducted in 2006,<a href="#sdfootnote38sym" name="sdfootnote38anc"><sup>38</sup></a> Boldrin and Levine observed that there was weak or no evidence which suggested that strengthening the patent regime led to an increase in innovation. Similarly, it was observed by Jaffe that "despite the significance of policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this possibility." <a href="#sdfootnote39sym" name="sdfootnote39anc"><sup>39</sup></a></li>
<li style="text-align: justify; ">In his study of 60 nations over the past 150 years, Josh Lerner concluded that "the impact of patent protection-enhancing on innovation was in fact negative, thereby running counter to assumptions made by economists that incentives affect behavior and that stronger property rights encourage economic growth.<a href="#sdfootnote40sym" name="sdfootnote40anc"><sup>40</sup></a></li>
<li style="text-align: justify; ">Even in those studies, where support is found for a positive correlation between patents and innovation, it is made clear that this correlation is not applicable to developing and least-developed countries. This, for instance, is the conclusion of the United Nations Industrial Development Organization's meta-study titled "The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence". <a href="#sdfootnote41sym" name="sdfootnote41anc"><sup>41</sup></a></li>
<li>It is crucial that all policy be based on evidence, and not ideology.</li>
<li style="text-align: justify; ">Thus, it is submitted that any program that seeks to create awareness about intellectual property must necessarily be one that presents a balanced view, clearly stating all facts and as many diverse opinions as possible; avoiding the current situation where public interest groups and academics are sidelined in favour of rights-holders groups.</li>
<li style="text-align: justify; ">CIS submits that the nation-wide program of promotion on the benefits of intellectual property <a href="#sdfootnote42sym" name="sdfootnote42anc"><sup>42</sup></a> must be based on evidence. Crucially, the importance of the public domain, for which a great deal of evidence exists,<a href="#sdfootnote43sym" name="sdfootnote43anc"><sup>43</sup></a> must highlighted in any such also equally promote the importance the role of limitations and exceptions and clearly identify the issues with the intellectual property system, including the fact that it has not been proven that there is a nexus between intellectual property and innovation. The nation wide program should convey the role of different stakeholders, including libraries and archives, organizations working with persons with disabilities and educational institutions and the negative effects of a rights centric intellectual property system on such important institutions.</li>
<li style="text-align: justify; ">It is important that public-funded research organizations should be engaged in neutral - non-industry funded -research, and not campaigns (as identified in the policy).<a href="#sdfootnote44sym" name="sdfootnote44anc"><sup>44</sup></a> This will help identify the issues of the present intellectual property system as well as the potential for reform, tailored to the Indian context. We have to ensure that campaigns - as with policymaking and pedagogic material - are based on research rather than faith or ideology. It is further submitted that course materials to be created for educational institutions at all levels as well as for online and distance learning programs <a href="#sdfootnote45sym" name="sdfootnote45anc"><sup>45</sup></a> should include a discussion on the drawbacks of a maximalist intellectual property system, a discussion on limitations and exceptions, alternatives to intellectual property, as well as case studies from different parts of the world highlighting the use of intellectual property as well as alternatives in a socio-economic and culture specific environment. Particularly in the case of education institutions as well as online and distance learning mechanisms, which are often faced with great challenges as a result of rights-holders centric intellectual property laws, the irony in promoting a system that only acts to their detriment would be great. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On Objective 2: Creation of IP</h3>
<ol type="I"><ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">The second objective of the Policy seeks to stimulate the creation and growth of intellectual property through measures that encourage IP generation.<a href="#sdfootnote46sym" name="sdfootnote46anc"><sup>46</sup></a> This objective seeks to encourage IP generation and creation across various sectors, including the introduction of the system of 'utility models' in India. There are several problems with this objective, primarily that it assumes IP generation is necessarily a means to innovation, whereas it is submitted that the emphasis should be on innovation holistically, including by incentive mechanisms other than IP. </li>
</ol><ol> </ol> <ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On the IP-Innovation/ Creativity Nexus</h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">It is submitted that similar to the earlier objective relating to the promotion and the creation of awareness about intellectual property, the underlying rationale behind this objective too seems to be the perception that there is a positive correlation between greater amounts of intellectual property and greater innovation, and the belief that intellectual property protection necesarrily promotes innovation. However, there is relatively little research to back this assumption. Illustratively, the following example may be considered. In a study conducted by Heidi L. Williams,<a href="#sdfootnote47sym" name="sdfootnote47anc"><sup>47</sup></a> the sequencing of the human genome was used to provide an empirical context to showcase the deterioration in development due to the presence of IP. It was concluded by Williams that the presence of IP rights in the sequencing of the human genome resulted in reductions in subsequent scientific research and product development by up to 20-30%. <a href="#sdfootnote48sym" name="sdfootnote48anc"><sup>48</sup></a> Williams further observed that "if more socially valuable technologies are more likely to be held with IP, then the welfare costs for the same could be substantial." The presence of intellectual property rights, it is argued, stifles subsequent product development by restricting access to the data or technology required for further development. <a href="#sdfootnote49sym" name="sdfootnote49anc"><sup>49</sup></a></li>
<li style="text-align: justify; ">Prof. Petra Moser of Stanford has conducted a large volume of research on economic evidence on the linkages between patents and innovation. Her research, which shows that in the 19th century the majority of inventions happened outside the patent system <a href="#sdfootnote50sym" name="sdfootnote50anc"><sup>50</sup></a> indicates that alternative explanations might explain inventions better, including "the importance of a culture of entrepreneurship,<a href="#sdfootnote51sym" name="sdfootnote51anc"><sup>51</sup></a> experimentation,<a href="#sdfootnote52sym" name="sdfootnote52anc"><sup>52</sup></a> the free exchange of knowledge, <a href="#sdfootnote53sym" name="sdfootnote53anc"><sup>53</sup></a> and science.<a href="#sdfootnote54sym" name="sdfootnote54anc"><sup>54</sup></a> In a paper titled, "How do Patent Laws Influence Innovation", she concludes that "I find no evidence that patent laws increased levels of innovative activity but strong evidence that patent systems influenced the distribution of innovative activity across industries."</li>
<li style="text-align: justify; ">Prof. Bryan Mercurio, in a paper written for the World Economic Forum and the International Centre for Trade and Sustainable Development, concludes, "The empirical evidence suggests that increasing levels of patent protection have not resulted in increased innovation. Instead, it has limited competition, and increased the cost of business, to the detriment of the world economy. Innovation has also suffered, as increasing protection has inhibited the ability of many firms to innovate." He further recommends that we "conduct further research on the correlation or causal relationship between patents and innovation, including the indirect benefits for innovation that patent protection may provide". Petra Moser notes, "Patent laws that existed in the mid-nineteenth century had been adopted in a relatively ad-hoc manner, dependent more on legal traditions than economic considerations".<a href="#sdfootnote55sym" name="sdfootnote55anc"><sup>55</sup></a></li>
<li style="text-align: justify; ">The empirical data collected by scholars, as provided above is goes to show that innovation is not necessarily benefitted by stronger patent regimes. Further, even the literature that asserts a positive correlation between the two acknowledge that this doesn't apply to developing countries. In addition, whilepatents may provide revenue to patent owners, it also makes further innovation more costly, thereby discouraging competitors from entering the arena due to high prices, and due to the large number of pre-existing patents. This effect, known as the</li>
<li style="text-align: justify; ">The Supreme Court of Canada, has for instance, has on multiple occasions recognized the importance of the public domain. In "2002, Justice Binne, writing for the majority in Théberge v. Galerie d'Art du Petit Champlain inc., stated: 'Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).' Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be 'room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).'"<a href="#sdfootnote56sym" name="sdfootnote56anc"><sup>56</sup></a></li>
<li>Lastly, there is even evidence that in multiple sectors - including fashion, finance, font design, and software - lesser IP protection in the form of patents, trademarks, and copyright, actual encourages increased innovation.<a href="#sdfootnote57sym" name="sdfootnote57anc"><sup>57</sup></a></li>
</ol> <ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On Utility Models</h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">On the question of introduction of a new on utility models<a href="#sdfootnote58sym" name="sdfootnote58anc"><sup>58</sup></a> CIS observes that DIPP has previously considered developing a framework for granting Utility Models for 'innovations' and invited suggestions on a discussion paper on the subject.<a href="#sdfootnote59sym" name="sdfootnote59anc"><sup>59</sup></a> Reports <a href="#sdfootnote60sym" name="sdfootnote60anc"><sup>60</sup></a> suggest that Small, Medium and Micro Enterprises are in favour of the Utility Model Protection system in India because developing countries such as China and Korea have demonstrated a corresponding economic growth attributable to the introduction of the system. However, there is no evidentiary data to support this hypothesis. Studies suggest that there exist only correlations and not causal links between heightened innovative activity and implementation of utility model protection. <a href="#sdfootnote61sym" name="sdfootnote61anc"><sup>61</sup></a> Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive.<a href="#sdfootnote62sym" name="sdfootnote62anc"><sup>62</sup></a> Reports also suggest that in China, the abundance of Utility Model has led to lowering of quality of innovation. <a href="#sdfootnote63sym" name="sdfootnote63anc"><sup>63</sup></a> In Australia, an "innovation patent" - the Australian version of utility model protection - was awarded for a "circular transportation facilitation device", i.e., a wheel. <a href="#sdfootnote64sym" name="sdfootnote64anc"><sup>64</sup></a></li>
<li style="text-align: justify; ">It is this submitted that whether the ushering of a 2nd tier of protection model for lower and incremental innovations would have a positive impact on innovation in India is extremely debatable. There have been several criticisms of utility models, <i>inter alia</i>, explosion in litigation of poor quality patents and legal uncertainty - which impact small business the maximum in terms of costs <a href="#sdfootnote65sym" name="sdfootnote65anc"><sup>65</sup></a>; the system may be more utilised by foreign companies rather than local firms, in which case there is a possibility that this will lead to an increase in a flow of royalties and licensing fees to overseas producers. Utility model rights can be, and have been, used by companies to cordon off entire areas of research. <a href="#sdfootnote66sym" name="sdfootnote66anc"><sup>66</sup></a></li>
<li style="text-align: justify; ">CIS submits that as the policy 'intends to harness the full benefits of creation and innovation in the larger interest of society and citizens' <a href="#sdfootnote67sym" name="sdfootnote67anc"><sup>67</sup></a> the introduction of a law on utility models would be antithetical to this objective. </li>
</ol><ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On Improving IP Output of National Research Laboratories, Universities <i>et al</i><b> </b></h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">The Policy seeks to improve the output of national research laboratories, universities and technical institutions, among others.<a href="#sdfootnote68sym" name="sdfootnote68anc"><sup>68</sup></a> It is submitted that these institutions are public funded institutions, <a href="#sdfootnote69sym" name="sdfootnote69anc"><sup>69</sup></a> and in effect, this recommendation of the Policy seeks to therefore promote intellectual property creation in public funded institutions.</li>
<li style="text-align: justify; ">A significant chunk of research and development occurs at public funded academic and research institutions and, excessive use of IPR as a tool to creating private ownership rights over inventions may preclude use of such innovation by the public. This may also create a barrier to access the best technologies and research- which were funded by taxpayers' money to begin with. CIS supports the principle that IPRs resulting from of publicly funded research should automatically belong to the funder.<a href="#sdfootnote70sym" name="sdfootnote70anc"><sup>70</sup></a></li>
<li style="text-align: justify; ">Further, it is submitted that there exists a danger of public funded research institutions re-orienting their objectives focus only on areas of commercial value. This may lead to neglect of certain research areas. A stringent policy will create an unfavourable conflict between revenue generation and sharing of public good. The policy must ensure that it is flexible and compensates the inventors whilst permitting public access to research.</li>
<li style="text-align: justify; ">CIS submits that there should be no encumbrances over public funded research and inventions. The Policy must also ensure that such proposed IP creation does not prevent or interfere with dissemination of public funded research. <a href="#sdfootnote71sym" name="sdfootnote71anc"><sup>71</sup></a></li>
<li style="text-align: justify; ">CIS strongly supports the recent steps by government agencies (including the Department of Science and Technology and the Department of Biotechnology<a href="#sdfootnote72sym" name="sdfootnote72anc"><sup>72</sup></a> as well as other institutions including the Council of Scientific and Industrial Research<a href="#sdfootnote73sym" name="sdfootnote73anc"><sup>73</sup></a>, Indian Council of Agricultural Research<a href="#sdfootnote74sym" name="sdfootnote74anc"><sup>74</sup></a> and Institute of Mathematical Sciences <a href="#sdfootnote75sym" name="sdfootnote75anc"><sup>75</sup></a>) in making scholarly research openly accessible. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society.</li>
<li style="text-align: justify; ">It is thus submitted that the Policy should adopt a more nuanced, cautious and balanced take on the creation of intellectual property, particularly taking into consideration India's economic status as an emerging economy and our international position. The Policy must recognise that there is no inherent societal merit in the mere creation of intellectual property and that innovation flourishes even in the absence of intellectual property protections. </li>
</ol><ol> </ol>
<h3>On Objective 3: Legal and Legislative Framework</h3>
<ol>
<li style="text-align: justify; ">According to the Policy, the objective sought to be achieved is the creation of strong and effective laws on intellectual property, consistent with national priorities as well as our international obligations, balancing the interest of the rights holders with public interest. <a href="#sdfootnote76sym" name="sdfootnote76anc"><sup>76</sup></a></li>
<li style="text-align: justify; ">CIS fully supports the view that the legislative framework on intellectual property must balance the rights of all stakeholders and be in public interest. CIS is also appreciates the importance of national priorities in the framing of India's legislative framework. CIS also notes with appreciation that the discussion in the Policy reiterates that India's laws are in compliance with the TRIPS Agreement <a href="#sdfootnote77sym" name="sdfootnote77anc"><sup>77</sup></a> as well as the stance that India will continue to utilize the flexibilities available in international treaties as well as the TRIPS Agreement<a href="#sdfootnote78sym" name="sdfootnote78anc"><sup>78</sup></a> while creating its legal framework.</li>
<li style="text-align: justify; ">CIS also supports the acknowledgement of the fact that India's laws need to be updated periodically, depending on various factors.<a href="#sdfootnote79sym" name="sdfootnote79anc"><sup>79</sup></a> CIS fully supports the process proposed for amendments to the law, including,<i>inter alia, </i>the conduction of objective and analytical studies and inputs from various stakeholders. <a href="#sdfootnote80sym" name="sdfootnote80anc"><sup>80</sup></a> It is submitted however, that equal weightage must be given to the inputs from all stakeholders and measures must be taken to ensure that the interests and demands of rights-holders do not outweigh the interests and demands of other stakeholders, particularly those at the other end of the spectrum, who greatly rely on the existence and guarantee of flexibilities, limitations and exceptions to intellectual property. </li>
</ol><ol> </ol>
<h3 align="JUSTIFY">On Utility Models and Intellectual Property in Public Funded Research</h3>
<ol>
<li>The Policy envisages significant changes to India's intellectual property system, including the creation of a law for the protection of utility models as well as introduction of intellectual property in public funded research.</li>
<li style="text-align: justify; ">CIS recommends that it would not be advisable to introduce intellectual property in public funded research as well as cautions against the introduction of a law on utility patents. A detailed submission on these issues has been made earlier in this document, in Section 3.4.3. at page 7 for intellectual property in public funded research as well as in Section 3.4.2. at page 6 on utility models. </li>
</ol><ol> </ol>
<h3 align="JUSTIFY">On the Negotiation of International Treaties and Agreements</h3>
<ol>
<li>CIS commends the recommendation of the Policy that the negotiation of international treaties and agreements will be in consultation with various stakeholders. However, CIS cautions against entering into bilateral or plurilateral international agreements which increase India's IPR obligations beyond our current obligations under multilateral agreements. It was only in 2006 that</li>
<li style="text-align: justify; ">It is submitted that FTAs often levy standards which are beyond those found in the TRIPS Agreement, and have thus been criticized. <a href="#sdfootnote81sym" name="sdfootnote81anc"><sup>81</sup></a> A central aspect of this criticism is that TRIPS-plus-FTAs reduce policy space for the implementation of TRIPS flexibilities. This also creates the impression that TRIPS only imposes a "minimum level" of protection, which must be available in all national laws of its Member States, without any apparent limitation to a further extension of such protection or intervention which one country may impose on another. The World Health Organization enunciated that "bilateral trade agreements should not seek to incorporate TRIPS-plus protection in ways that may reduce access to medicines in developing countries.<a href="#sdfootnote82sym" name="sdfootnote82anc"><sup>82</sup></a> Further, WHO members were urged in the Fifty-Seventh World Health Assembly "to take into account in bilateral trade agreements the flexibilities contained in the Agreement on Trade-related Aspects of Intellectual Property Rights and recognized by the Declaration on the TRIPS Agreement and Public Health adopted by the WTO Ministerial Conference."<a href="#sdfootnote83sym" name="sdfootnote83anc"><sup>83</sup></a></li>
<li style="text-align: justify; ">Furthermore, TRIPS-plus initiatives consequent in the dilution into a bilateral forum, as opposed to the plurality provided in multilateral fora, provided by the TRIPS. The imposition of standards by FTAs may ultimately disturb the balance of rights and obligations which are enshrined in the TRIPS Agreement,<a href="#sdfootnote84sym" name="sdfootnote84anc"><sup>84</sup></a> and also have the potential to constrain the flexibilities provided to Member States in the TRIPS, particularly in areas which are of extreme significance to developing countries, such as transfer of technology, socio-economic development, promotion of innovation, public health and access to knowledge. Furthermore, they also tend to negate decisions which were taken multilaterally such as the Doha Declaration on the TRIPS Agreement and Public Health.</li>
<li style="text-align: justify; ">It is therefore submitted that the Policy must caution against entering into any international agreement that seeks to enforce TRIPS-plus standards, contrary to India's stance (as noted by the Policy itself) that its laws were compliant with international obligations.</li>
</ol>
<h3 align="JUSTIFY">On Limitations and Exceptions</h3>
<ol>
<li style="text-align: justify; ">It is observed that the Policy recommends that laws be enacted to address national needs, <a href="#sdfootnote85sym" name="sdfootnote85anc"><sup>85</sup></a> but the only mentions limitations and exceptions as an area of study for future policy development.<a href="#sdfootnote86sym" name="sdfootnote86anc"><sup>86</sup></a>It is submitted that while it is indeed necessary for further research to be undertaken in the area of limitations and exceptions, it is also critical to enact new laws and amend existing ones to foster a rich environment for limitations and exceptions, in order to achieve a holistic and balanced intellectual property framework. It is further submitted that this would also be in consonance with the objective of the negotiation of international treaties and agreements in consultation with stakeholders.</li>
<li style="text-align: justify; ">While the granting of exclusive rights over intellectual property is considered to be an incentive for further investments into innovative activities and the production of knowledge, allowing the exercise of the full scope of this exclusion in all circumstances may not meet the end goal of the enhancement of public welfare, using the intellectual property system. Therefore, it is essential that an intellectual property system be flexible allowing for certain limitations and exceptions in order to strike a balance between right holders, the public and third parties. The need for such flexibility in the intellectual property system of a country has also been highlighted by the <a href="http://www.wipo.int/patents/en/topics/exceptions_limitations.htm">World Intellectual Property Organization</a>.</li>
<li style="text-align: justify; ">It is therefore suggested that the Policy include an additional recommendation for the inclusion, adoption and periodic renewal of limitations and exceptions in India's intellectual property laws, either be enacting new legislations or by amending existing legislations wherever applicable. It is further suggested that this recommendation also inform India's negotiations at the international level, where any agreement that India might potentially sign, not invalidate or narrow in any form any limitations and exceptions and provide for their continued exercise in the broadest possible scope and manner.</li>
</ol> <ol> </ol>
<h3 align="JUSTIFY">On Standard Setting</h3>
<ol>
<li style="text-align: justify; ">CIS commends the Policy's focus on standards in technology and standard setting organisations. CIS strongly supports the adoption of open standards as a measure that helps stimulate active competition amongst implementors of various standards, and thereby encourages innovation. The Department of IT finalized its Policy on Open Standards for e-Governance in 2010,<a href="#sdfootnote87sym" name="sdfootnote87anc"><sup>87</sup></a> and CIS strongly supports this policy, and would encourage it be adopted by all state governments as well.</li>
<li style="text-align: justify; ">CIS strongly recommends developing and supporting the evolution of open standards. The Policy must not encourage use of IPR to limit access to standards, because these are the foundational rules any technology must adhere to enter the market or ensure quality. <a href="#sdfootnote88sym" name="sdfootnote88anc"><sup>88</sup></a> CIS submits that access to these standards must not be limited by making them proprietary through IPR protection. Further, the Policy must support transparent standard setting processes and procedures in national and at international for a for all participants.</li>
<li>CIS further appreciates the endeavor to encourage the development of global standards influenced by technologies developed in India.</li>
<li style="text-align: justify; ">CIS submits that it is also important to ensure that India emerges as a global player in the technology sector, not just in the development of indigenous standards, but also in the equally important space of manufacturing using existing standards, particularly in light of the Government's recent "Make In India" and "Digital India" initiatives. It is further submitted however, that in most instances, these standards are protected by patents; where patents essential to a standard would be standard essential patents. CIS suggests that the Policy recommend measures that might be adopted to ensure access to standards essential patents, including, for instance, the establishment of a government aided patent pool. It is submitted that addressing the question of access to standards and not just their development would be a holistic approach that the Policy should adopt.</li>
</ol>
<h3>On Objective 5: Commercialization of IP</h3>
<ol type="I"><ol> </ol> </ol> <ol>
<li style="text-align: justify; ">CIS appreciates that the Policy seeks to promote licensing and technology transfer for intellectual property, and notes that the Policy also seeks to promote reasonable and non-discriminatory patent pooling to maximise the ability of smaller companies to commercialise IP and bring innovative solutions based on standards to the market.</li>
<li style="text-align: justify; ">CIS believes that the government establishing patent pools for digital technologies will promote access to knowledge and stimulate manufacturing in the information technology and electronics sectors in India, in line with the government's "Make In India" and "Digital India" initiatives. CIS has earlier urged the government to enable access to low cost access devices by establishing a government-aided patent pool of essential technologies, without which there is a high likelihood of such devices getting caught up in the 'patent wars' that have happened elsewhere around the world over smartphones.<a href="#sdfootnote89sym" name="sdfootnote89anc"><sup>89</sup></a> CIS submits that the creation of government-aided patent pools and facilitation of cross-licensing will also be helpful in resolving issues created by patent thickets and gridlocks by reducing transaction costs for licensees and solving an economic cooperation problem.</li>
</ol> <ol type="I"> </ol>
<h2 align="JUSTIFY">Concluding Remarks</h2>
<ol>
<li style="text-align: justify; ">Debabrata Saha, the Deputy Permanent Representative of India to the United Nations, while speaking on the introduction of the Development Agenda at the World Intellectual Property Organization, with admirable clarity noted, "Let me start on a positive note by asking: with all the damage that TRIPS has wrought on developing countries could it possibly have a silver lining? Maybe - if we want to be generous. TRIPS, one might argue, did bring intellectual property to the forefront of consciousness of people everywhere, and, over time made them aware of the dangers inherent in a protective regime that takes little account of either public policy, or the state of development of a member country." It is thus imperative that when we fashion our public policy, we take account of the dangers he mentioned. He went on to note, "Intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." We wholeheartedly support this position of the Indian government, and would encourage the IPR Think Tank to seek to maximize public welfare and creativity and innovation rather than maximizing IPR alone. Importantly, as Mr. Saha, speaking on behalf of the Indian government noted, IP is not an end in itself, contrary to what the current draft of the National IPR Policy seems to promote.</li>
<li style="text-align: justify; ">Flexibility is considered to be an essential characteristic in defining and shaping the intellectual property system of countries around the world. Such flexibility allows scope for further innovations and creations, thereby subserving the common good. As per Article 39 of the Constitution of India, "the State shall in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good." It is therefore submitted that the National IPR Policy of India should be contoured in such a manner that it encourages greater use of exceptions and limitations to the otherwise exclusionary use of intellectual property, encourages the expansion of the public domain, secures proportionality in enforcement of IP rights, promotes alternatives to IP - including open access to scholarly literature, open educational resources, free/open source software, open standards, open data, and aims to create a regime of intellectual property that aims to serve the public interest and not just the narrow interest of private right holders. Such an approach should not be merely rights-based, but look at interests of the general public, especially the poor, as well, in order to further the aim of the nation to create a more egalitarian society, and adopt the Directive Principles in the Constitution.</li>
<hr />
</ol><ol></ol>
<div id="sdfootnote1">
<p style="text-align: justify; "><a href="#sdfootnote1anc" name="sdfootnote1sym">1</a> <a href="http://www.cis-india.org/">www.cis-india.org</a> (last accessed 30 November, 2014).</p>
</div>
<div id="sdfootnote2">
<p><a href="#sdfootnote2anc" name="sdfootnote2sym">2</a> http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf.</p>
</div>
<div id="sdfootnote3">
<p><a name="_GoBack"></a> <a href="#sdfootnote3anc" name="sdfootnote3sym">3</a> <i>See </i> http://cis-india.org/ (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote4">
<p><a href="#sdfootnote4anc" name="sdfootnote4sym">4</a> <i>See </i> http://cis-india.org/a2k (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote5">
<p><a href="#sdfootnote5anc" name="sdfootnote5sym">5</a> <i>See </i> http://cis-india.org/openness (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote6">
<p><a href="#sdfootnote6anc" name="sdfootnote6sym">6</a> <i>See</i> http://cis-india.org/internet-governance (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote7">
<p><a href="#sdfootnote7anc" name="sdfootnote7sym">7</a> <i>See </i> http://cis-india.org/accessibility (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote8">
<p><a href="#sdfootnote8anc" name="sdfootnote8sym">8</a> <i>See </i> http://cis-india.org/digital-natives (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote9">
<p><a href="#sdfootnote9anc" name="sdfootnote9sym">9</a> <i>See</i> http://cis-india.org/raw (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote10">
<p><a href="#sdfootnote10anc" name="sdfootnote10sym">10</a> <i>See</i> http://www.wipo.int/members/en/admission/observers.html (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote11">
<p><a href="#sdfootnote11anc" name="sdfootnote11sym">11</a> <i>See </i> http://cis-india.org/a2k/blog/ngo-profile-knowledge-ecology-international (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ngo-profile-third-world-network (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote12">
<p style="text-align: justify; "><a href="#sdfootnote12anc" name="sdfootnote12sym">12</a> <i>See illustratively </i> http://cis-india.org/a2k/blog/analysis-copyright-expansion-india-eu-fta (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/india-eu-fta-copyright-issues (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/a-guide-to-the-proposed-india-european-union-free-trade-agreement (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote13">
<p><a href="#sdfootnote13anc" name="sdfootnote13sym">13</a> <i>See illustratively</i> http://cis-india.org/news/inet-bangkok-june-8-2013-governance-in-the-age-of-internet-and-fta (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote14">
<p><a href="#sdfootnote14anc" name="sdfootnote14sym">14</a> <i>See illustratively</i> http://cis-india.org/a2k/blog/2010-special-301 (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote15">
<p style="text-align: justify; "><a href="#sdfootnote15anc" name="sdfootnote15sym">15</a> <i>See illustratively</i> http://cis-india.org/a2k/blog/analysis-copyright-amendment-bill-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/sc-report-on-amendments (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-parliament (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/tpm-copyright-amendment (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-privacy (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-analysis (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote16">
<p><a href="#sdfootnote16anc" name="sdfootnote16sym">16</a> <i>See</i> http://cis-india.org/a2k/blog/comments-on-science-technology-and-innovation-policy-draft (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote17">
<p><a href="#sdfootnote17anc" name="sdfootnote17sym">17</a> <i>See</i> http://cis-india.org/a2k/blog/exhaustion (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/parallel-importation-of-books (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote18">
<p style="text-align: justify; "><a href="#sdfootnote18anc" name="sdfootnote18sym">18</a> <i>See</i> http://cis-india.org/a2k/blog/cis-submission-draft-patent-manual-2010 (last accessed 18 January, 2015) and http://cis-india.org/a2k/blog/comments-on-draft-guidelines-for-computer-related-inventions (last accessed 18 January, 2015) respectively.</p>
</div>
<div id="sdfootnote19">
<p><a href="#sdfootnote19anc" name="sdfootnote19sym">19</a> <i>See</i> http://cis-india.org/a2k/blog/lid-on-royalty-outflows (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote20">
<p><a href="#sdfootnote20anc" name="sdfootnote20sym">20</a> <i>See</i> http://cis-india.org/a2k/blog/exceptions-and-limitations (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote21">
<p style="text-align: justify; "><a href="#sdfootnote21anc" name="sdfootnote21sym">21</a> <i>See illustratively</i> http://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012 (last accessed 18 January, 2015);<i> </i> http://cis-india.org/a2k/blog/ip-watch-list-2011 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/consumers-international-ip-watch-list-2009 (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote22">
<p style="text-align: justify; "><a href="#sdfootnote22anc" name="sdfootnote22sym">22</a> The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: <a href="http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf"> http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf </a> (Last Accessed: 29 November, 2014).</p>
</div>
<div id="sdfootnote23">
<p><a href="#sdfootnote23anc" name="sdfootnote23sym">23</a> IPR Think Tank, National IPR Policy (First Draft) at page 5.</p>
</div>
<div id="sdfootnote24">
<p><a href="#sdfootnote24anc" name="sdfootnote24sym">24</a> Article 27(1) of the Universal Declaration of Human Rights states: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."</p>
</div>
<div id="sdfootnote25">
<p style="text-align: justify; "><a href="#sdfootnote25anc" name="sdfootnote25sym">25</a> Julia Brüggemann, Paolo Crosetto <i>et al</i>, <i>Intellectual Property Rights Hinder Sequential Innovation - Experimental Evidence</i>, Center for European, Governance and Economic Development Research, Number 227, January 2015.</p>
</div>
<div id="sdfootnote26">
<p><a href="#sdfootnote26anc" name="sdfootnote26sym">26</a> Joseph E. Stiglitz, <i>Economic Foundations of Intellectual Property Rights</i>, Duke Law Journal, 57(6): 1693-1724.</p>
</div>
<div id="sdfootnote27">
<p><a href="#sdfootnote27anc" name="sdfootnote27sym">27</a> Graham M. Dutfield, Uma Suthersanen, <i>The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity</i>, Intellectual Property Quarterly, 2004 at 379.</p>
</div>
<div id="sdfootnote28">
<p><a href="#sdfootnote28anc" name="sdfootnote28sym">28</a> IPR Think Tank, National IPR Policy (First Draft) at page 5.</p>
</div>
<div id="sdfootnote29">
<p><a href="#sdfootnote29anc" name="sdfootnote29sym">29</a> IPR Think Tank, National IPR Policy (First Draft) at page 5<i>.</i></p>
</div>
<div id="sdfootnote30">
<p><a href="#sdfootnote30anc" name="sdfootnote30sym">30</a> IPR Think Tank, National IPR Policy (First Draft) at page 6.</p>
</div>
<div id="sdfootnote31">
<p><a href="#sdfootnote31anc" name="sdfootnote31sym">31</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote32">
<p><a href="#sdfootnote32anc" name="sdfootnote32sym">32</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote33">
<p><a href="#sdfootnote33anc" name="sdfootnote33sym">33</a> Michele Boldrin and David K. Levine, <i>The Case Against Patents</i>, Journal of Economic Perspectives, Vol. 27, No.1 - Winter 2013, 3-22.</p>
</div>
<div id="sdfootnote34">
<p><a href="#sdfootnote34anc" name="sdfootnote34sym">34</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote35">
<p><a href="#sdfootnote35anc" name="sdfootnote35sym">35</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote36">
<p><a href="#sdfootnote36anc" name="sdfootnote36sym">36</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote37">
<p><a href="#sdfootnote37anc" name="sdfootnote37sym">37</a> James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats and Lawyers Put Innovation at Risk, March 2008.</p>
</div>
<div id="sdfootnote38">
<p><a href="#sdfootnote38anc" name="sdfootnote38sym">38</a> Michele Boldrin and David K. Levine<i> Supra </i>Note 32.</p>
</div>
<div id="sdfootnote39">
<p><a href="#sdfootnote39anc" name="sdfootnote39sym">39</a> B.J. Jaffe, <i>The US Patent System in Transition: Innovation and the Innovation Process</i>, Research Policy, 29, 531-557, 2000.</p>
</div>
<div id="sdfootnote40">
<p><a href="#sdfootnote40anc" name="sdfootnote40sym">40</a> Josh Lerner, <i>The Empirical Impact of Intellectual Property Rights on Innovation: Puzzles and Clues</i>, Intellectual Property Rights and Economic Growth in the Long-Run: A Discover Model (2009).</p>
</div>
<div id="sdfootnote41">
<p><a href="#sdfootnote41anc" name="sdfootnote41sym">41</a> Rod Falvey & Neil Foster, The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence (UNIDO Working Paper,</p>
</div>
<div id="sdfootnote42">
<p><a href="#sdfootnote42anc" name="sdfootnote42sym">42</a> <b>¶</b> 1.2 IPR Think Tank, National IPR Policy (First Draft) at page 6.</p>
</div>
<div id="sdfootnote43">
<p><a href="#sdfootnote43anc" name="sdfootnote43sym">43</a> See</p>
</div>
<div id="sdfootnote44">
<p><a href="#sdfootnote44anc" name="sdfootnote44sym">44</a> <b>¶</b> 1.3 IPR Think Tank, National IPR Policy (First Draft) at page 7.</p>
</div>
<div id="sdfootnote45">
<p><a href="#sdfootnote45anc" name="sdfootnote45sym">45</a> <b>¶</b> 1.5 IPR Think Tank, National IPR Policy (First Draft) at page 8.</p>
</div>
<div id="sdfootnote46">
<p><a href="#sdfootnote46anc" name="sdfootnote46sym">46</a> IPR Think Tank, National IPR Policy (First Draft) at page 8.</p>
</div>
<div id="sdfootnote47">
<p><a href="#sdfootnote47anc" name="sdfootnote47sym">47</a> Heidi L. Williams, <i>Intellectual Property Rights and Innovation: Evidence from the Human Genome</i>, National Bureau of Economic Research. Working Paper 16213, July 2010.</p>
</div>
<div id="sdfootnote48">
<p><a href="#sdfootnote48anc" name="sdfootnote48sym">48</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote49">
<p><a href="#sdfootnote49anc" name="sdfootnote49sym">49</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote50">
<p><a href="#sdfootnote50anc" name="sdfootnote50sym">50</a> Petra Moser, <i>Innovations and Patents in</i> Oxford Handbook of Economic History (Cain et al., eds., forthcoming), http://ssrn.com/abstract=2503503.</p>
</div>
<div id="sdfootnote51">
<p><a href="#sdfootnote51anc" name="sdfootnote51sym">51</a> <i>See generally</i> , David. S. Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (1969).</p>
</div>
<div id="sdfootnote52">
<p><a href="#sdfootnote52anc" name="sdfootnote52sym">52</a> <i>See generally</i> , Joel Mokyr. The Lever of Riches: Technological Creativity and Economic Progress (1990).</p>
</div>
<div id="sdfootnote53">
<p style="text-align: justify; "><a href="#sdfootnote53anc" name="sdfootnote53sym">53</a> <i>See generally</i> , Alessandro Nuvolari <i>Collective Invention during the British Industrial Revolution: the Case of the Cornish Pumping Engine,</i> 28 Cambridge J. Econ. 347 (2004). <i>See also</i>, Robert C. Allen, <i>Collective Invention</i>, 4 J. Econ. Behavior & Org. 1 (1983).</p>
</div>
<div id="sdfootnote54">
<p style="text-align: justify; "><a href="#sdfootnote54anc" name="sdfootnote54sym">54</a> A. Arora & N. Rosenberg, <i>Chemicals: A US Success Story</i> in Chemicals and Long-Term Economic Growth 71 (Arora et al., eds., 1998); see also, David C. Mowery & Nathan Rosenberg, Paths of Innovation. Technological Change in 20th-century America (1998).</p>
</div>
<div id="sdfootnote55">
<p><i><a href="#sdfootnote55anc" name="sdfootnote55sym">55</a></i> Petra Moser, <i>How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs</i>, NBER Working Paper Series 9909, http://www.nber.org/papers/w9909.</p>
</div>
<div id="sdfootnote56">
<p><a href="#sdfootnote56anc" name="sdfootnote56sym">56</a> Meera Nair, <i>A Short-Lived Celebration</i>, Fair Duty (Jan. 8, 2012), https://fairduty.wordpress.com/2012/01/08/a-short-lived-celebration/</p>
</div>
<div id="sdfootnote57">
<p><a href="#sdfootnote57anc" name="sdfootnote57sym">57</a> See generally, Kal Raustiala & Christopher Sprigman, The Knockoff Economy (2012).</p>
</div>
<div id="sdfootnote58">
<p><a href="#sdfootnote58anc" name="sdfootnote58sym">58</a> <b>¶</b> 2.10 IPR Think Tank, National IPR Policy (First Draft) at page 10.</p>
</div>
<div id="sdfootnote59">
<p><a href="#sdfootnote59anc" name="sdfootnote59sym">59</a> <i>See</i> <i>FICCI Suggestions on Discussion Paper on Utility Model</i> available at <a href="http://www.ficci.com/Sedocument/20179/UM.pdf">http://www.ficci.com/Sedocument/20179/UM.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote60">
<p><a href="#sdfootnote60anc" name="sdfootnote60sym">60</a> <i>See</i> <i>FICCI Suggestions on Discussion Paper on Utility Model</i> available at <a href="http://www.ficci.com/Sedocument/20179/UM.pdf">http://www.ficci.com/Sedocument/20179/UM.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote61">
<p><a href="#sdfootnote61anc" name="sdfootnote61sym">61</a> <i>See</i> <i>Utility Model: A Tool for Economic and Technological Development: A Case Study of Japan</i> available at <a href="http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf">http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote62">
<p><a href="#sdfootnote62anc" name="sdfootnote62sym">62</a> U. Suthersanen, <i>Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development </i>(ICTSD), Issue Paper No. 13 (2006), available at <a href="http://www.unctad.org/en/docs/iteipc20066_en.pdf">http://www.unctad.org/en/docs/iteipc20066_en.pdf</a> , (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote63">
<p><a href="#sdfootnote63anc" name="sdfootnote63sym">63</a> <i>See</i> <i>China's great leap forward in patents</i> , available at <a href="http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/"> http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/ </a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote64">
<p><a href="#sdfootnote64anc" name="sdfootnote64sym">64</a> Will Knight, <i>Wheel Patented in Australia</i>, New Scientist (July 3, 2001), <a href="http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html"> http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html </a> .</p>
</div>
<div id="sdfootnote65">
<p><a href="#sdfootnote65anc" name="sdfootnote65sym">65</a> Keith E. Maskus, <i>Beyond the Treaties: A Symposium on Compliance with International Intellectual Property </i>Law, February 6, 2000.</p>
</div>
<div id="sdfootnote66">
<p><a href="#sdfootnote66anc" name="sdfootnote66sym">66</a> U. Suthersanen, <i>Utility Models and Innovation in Developing Countries</i>, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at <a href="http://www.unctad.org/en/docs/iteipc20066_en.pdf">http://www.unctad.org/en/docs/iteipc20066_en.pdf</a> , (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote67">
<p><a href="#sdfootnote67anc" name="sdfootnote67sym">67</a> IPR Think Tank, National IPR Policy (First Draft) at page 1.</p>
</div>
<div id="sdfootnote68">
<p><a href="#sdfootnote68anc" name="sdfootnote68sym">68</a> <b>¶</b> 2.3 IPR Think Tank, National IPR Policy (First Draft) at page 10.</p>
</div>
<div id="sdfootnote69">
<p><a href="#sdfootnote69anc" name="sdfootnote69sym">69</a> <i>See </i> <a href="http://mhrd.gov.in/technical-education-1">http://mhrd.gov.in/technical-education-1</a> (last accessed 30 January, 2015).</p>
</div>
<div id="sdfootnote70">
<p><a href="#sdfootnote70anc" name="sdfootnote70sym">70</a> <i>See</i> <i>'Expert Group Report on Role and Strategic Use of IPR (Intellectual Property Rights) in International Research Collaborations'</i> by European Commission 'available at <a href="http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf">http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote71">
<p style="text-align: justify; "><a href="#sdfootnote71anc" name="sdfootnote71sym">71</a> <i>See</i> <i>'Ministry of Science makes Open Access to Research Mandatory</i> ', available at <a href="http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory"> http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory </a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote72">
<p style="text-align: justify; "><a href="#sdfootnote72anc" name="sdfootnote72sym">72</a> DBT and DST Open Access Policy - Policy on Open Access to DBT and DST Funded Research, Department of Biotechnology and Department of Science and Technology, Ministry of Science and Technology, Government of India.</p>
</div>
<div id="sdfootnote73">
<p><a href="#sdfootnote73anc" name="sdfootnote73sym">73</a> <i>Id.</i></p>
</div>
<div id="sdfootnote74">
<p><a href="#sdfootnote74anc" name="sdfootnote74sym">74</a> <i>Id.</i></p>
</div>
<div id="sdfootnote75">
<p><a href="#sdfootnote75anc" name="sdfootnote75sym">75</a> <i>Id.</i></p>
</div>
<div id="sdfootnote76">
<p><a href="#sdfootnote76anc" name="sdfootnote76sym">76</a> IPR Think Tank, National IPR Policy (First Draft) at page 11.</p>
</div>
<div id="sdfootnote77">
<p><a href="#sdfootnote77anc" name="sdfootnote77sym">77</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote78">
<p><a href="#sdfootnote78anc" name="sdfootnote78sym">78</a> IPR Think Tank, National IPR Policy (First Draft) at pages 10, 11.</p>
</div>
<div id="sdfootnote79">
<p><a href="#sdfootnote79anc" name="sdfootnote79sym">79</a> IPR Think Tank, National IPR Policy (First Draft) at page 12.</p>
</div>
<div id="sdfootnote80">
<p><a href="#sdfootnote80anc" name="sdfootnote80sym">80</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote81">
<p style="text-align: justify; "><a href="#sdfootnote81anc" name="sdfootnote81sym">81</a> The Doha Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilateral and Regional Free Trade Agreements (2004), Available at http://www.quno.org/geneva/pdf/ec onomic/Occasional/TRIPS-Public-Health-FTAs.pdf.</p>
</div>
<div id="sdfootnote82">
<p style="text-align: justify; "><a href="#sdfootnote82anc" name="sdfootnote82sym">82</a> World Health Organization, Report of the Commission on Intellectual Property Rights, Innovation and Public Health, Recommendation 4.26 (2006), available at http://www.who.int/intellectualproperty/ documents/thereport/CIPIHReport23032006.pdf [hereinafter WHO].</p>
</div>
<div id="sdfootnote83">
<p><a href="#sdfootnote83anc" name="sdfootnote83sym">83</a> Fifty-Seventh World Health Assembly, May17-22,2004, (May 22, 2004), available at http:// apps.who.int/gb/ebwha/pdf_files/WHA57/A57_R14-en.pdf;</p>
</div>
<div id="sdfootnote84">
<p><a href="#sdfootnote84anc" name="sdfootnote84sym">84</a> Preamble, Articles 7, 8, TRIPS Agreement, 1994.</p>
</div>
<div id="sdfootnote85">
<p><a href="#sdfootnote85anc" name="sdfootnote85sym">85</a> <b>¶</b> 3.2 IPR Think Tank, National IPR Policy (First Draft) at page 12.</p>
</div>
<div id="sdfootnote86">
<p><a href="#sdfootnote86anc" name="sdfootnote86sym">86</a> <b>¶</b> 3.6 IPR Think Tank, National IPR Policy (First Draft) at page 13.</p>
</div>
<div id="sdfootnote87">
<p><a href="#sdfootnote87anc" name="sdfootnote87sym">87</a> <i>See</i> <i>'Open Standards Policy'</i> , available at <a href="http://cis-india.org/news/open-standards-policy">http://cis-india.org/news/open-standards-policy</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote88">
<p><a href="#sdfootnote88anc" name="sdfootnote88sym">88</a> <i>See</i> <i>'The BIS, Standards and Copyright'</i> , available at <a href="http://spicyip.com/2014/11/the-bis-standards-and-copyright.html">http://spicyip.com/2014/11/the-bis-standards-and-copyright.html</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote89">
<p style="text-align: justify; "><a href="#sdfootnote89anc" name="sdfootnote89sym">89</a> <i>See</i> <i>CIS' Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses</i> , available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> <span>http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices</span> </a> (last accessed January 29, 2015).</p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy</a>
</p>
No publishernehaaCall for CommentsAccess to KnowledgeIntellectual Property RightsFeaturedHomepage2015-02-09T00:59:10ZBlog EntryPreliminary Submission on "Internet Governance Issues" to the Associated Chambers of Commerce & Industry of India
http://editors.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="http://editors.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>
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<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>
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<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>
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<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>
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<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>
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<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>
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<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/preliminary-submission-on-internet-governance-issues-to-assocham'>http://editors.cis-india.org/internet-governance/blog/preliminary-submission-on-internet-governance-issues-to-assocham</a>
</p>
No publishergeethaFeaturedInternet Governance2015-02-12T14:52:04ZBlog Entry