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CIS Submission to TRAI Consultation on Free Data
http://editors.cis-india.org/internet-governance/blog/cis-submission-trai-consultation-free-data
<b>The Telecom Regulatory Authority of India (TRAI) held a consultation on Free Data, for which CIS sent in the following comments.</b>
<p> </p>
<p>The Telecom Regulatory Authority of India (TRAI) asked for <a href="http://trai.gov.in/WriteReadData/ConsultationPaper/Document/CP_07_free_data_consultation.pdf">public comments on free data</a>. Below are the comments that CIS submitted to the four questions that it posed.</p>
<p> </p>
<h2 id="question-1">Question 1
<p><em>Is there a need to have TSP agnostic platform to provide free data or suitable reimbursement to users, without violating the principles of Differential Pricing for Data laid down in TRAI Regulation? Please suggest the most suitable model to achieve the objective.</em></p>
</h2>
<h3 id="is-there-a-need-for-free-data">Is There a Need for Free Data?</h3>
<p>No, there is no <em>need</em> for free data, just as there is no <em>need</em> for telephony or Internet. However, making provisions for free data would increase the amount of innovation in the Internet and telecom sector, and there is a good probability that it would lead to faster adoption of the Internet, and thus be beneficial in terms of commerce, freedom of expression, freedom of association, and many other ways.</p>
<p>Thus the question that a telecom regulator should ask is not whether there is a <em>need</em> for TSP agnostic platforms, but whether such platforms are harmful for competition, for consumers, and for innovation. The telecom regulator ought not undertake regulation unless there is evidence to show that harm has been caused or that harm is likely to be caused. In short, TRAI should not follow the precautionary principle, since the telecom and Internet sectors are greatly divergent from environmental protection: the burden of proof for showing that something ought to be prohibited ought to be on those calling for prohibition.</p>
<h3 id="goal-regulating-gatekeeping">Goal: Regulating Gatekeeping</h3>
<p>TRAI wouldn’t need to regulate price discrimination or Net neutrality if ISPs were not “gatekeepers” for last-mile access. “Gatekeeping” occurs when a single entity establishes itself as an exclusive route to reach a large number of people and businesses or, in network terms, nodes. It is not possible for Internet services to reach their end customers without passing through ISPs (generally telecom networks). The situation is very different in the middle-mile and for backhaul. Even though anti-competitive terms may exist in the middle-mile, especially given the opacity of terms in “transit agreements”, a packet is usually able to travel through multiple routes if one route is too expensive (even if that is not the shortest network path, and is thus inefficient in a way). However, this multiplicity of routes is generally not possible in the last mile.<a id="fnref1" class="footnoteRef" href="#fn1"><sup>1</sup></a> This leaves last mile telecom operators (ISPs) in a position to unfairly discriminate between different Internet services or destinations or applications, while harming consumer choice.</p>
<p>However, the aim of regulation by TRAI cannot be to prevent gatekeeping, since that is not possible as long as there are a limited number of ISPs. For instance, even by the very act of charging money for access to the Internet, ISPs are guilty of “gatekeeping” since they are controlling who can and cannot access an Internet service that way. Instead, the aim of regulation by TRAI should be to “regulate gatekeepers to ensure they do not use their gatekeeping power to unjustly discriminate between similarly situated persons, content or traffic”, as we proposed in our submission to TRAI (on OTTs) last year.</p>
<h3 id="models-for-free-data">Models for Free Data</h3>
<p>There are multiple models possible for free data, none of which TRAI should prohibit unless it would enable OTTs to abuse their gatekeeping powers.</p>
<h4 id="government-incentives-for-non-differentiated-free-data">Government Incentives For Non-Differentiated Free Data</h4>
<p>The government may opt to require all ISPs to provide free Internet to all at a minimum QoS in exchange for exemption from paying part of their USO contributions, or the government may pay ISPs for such access using their USO contributions.</p>
<p>TRAI should recommend to DoT that it set up a committee to study the feasibility of this model.</p>
<h4 id="isp-subsidies">ISP subsidies</h4>
<p>ISP subsidies of Internet access only make economic sense for the ISP under the following ‘Goldilocks’ condition is met: the experience with the subsidised service is ‘good enough’ for the consumers to want to continue to use such services, but ‘bad enough’ for a large number of them to want to move to unsubsidised, paid access.</p>
<ol style="list-style-type: decimal;">
<li>Providing free Internet to all at a low speed.
<ol style="list-style-type: lower-alpha;">
<li>This naturally discriminates against services and applications such as video streaming, but does not technically bar access to them.</li></ol>
</li>
<li>Providing free access to the Internet with other restrictions on quality that aren’t discriminatory with respect to content, services, or applications.</li></ol>
<h4 id="rewards-model">Rewards model</h4>
<p>A TSP-agnostic rewards platform will only come within the scope of TRAI regulation if the platform has some form of agreement with the TSPs, even if it is collectively. If the rewards platform doesn’t have any agreement with any TSP, then TRAI does not have the power to regulate it. However, if the rewards platform has an agreement with any TSP, it is unclear whether it would be allowed under the Differential Data Tariff Regulation, since the clause 3(2) read with paragraph 30 of the Explanatory Memorandum might disallow such an agreement.</p>
<p>Assuming for the sake of argument that platforms with such agreements are not disallowed, such platforms can engage in either post-purchase credits or pre-purchase credits, or both. In other words, it could be a situation where a person has to purchase a data pack, engage in some activity relating to the platform (answer surveys, use particular apps, etc.) and thereupon get credit of some form transferred to one’s SIM, or it could be a situation where even without purchasing a data pack, a consumer can earn credits and thereupon use those credits towards data.</p>
<p>The former kind of rewards platform is not as useful when it comes to encouraging people to use the Internet, since only those who already see worth in using in the Internet (and can afford it) will purchase a data pack in the first place. The second form, on the other hand is quite useful, and could be encouraged. However, this second model is not as easily workable, economically, for fixed line connections, since there is a higher initial investment involved.</p>
<h4 id="recharge-api">Recharge API</h4>
<p>A recharge API could be fashioned in one of two ways: (1) via the operating system on the phone, allowing a TSP or third parties (whether OTTs or other intermediaries) to transfer credit to the SIM card on the phone which have been bought wholesale. Another model could be that of all TSPs providing a recharge API for the use of third parties. Only the second model is likely to result in a “toll-free” experience since in the first model, like in the case of a rewards platform that requires up-front purchase of data packs, there has to be a investment made first before that amount is recouped. This is likely to hamper the utility of such a model.</p>
<p>Further, in the first case, TRAI would probably not have the powers to regulate such transactions, as there would be no need for any involvement by the TSP. If anti-competitive agreements or abuse of dominant position seems to be taking place, it would be up to the Competition Commission of India to investigate.</p>
<p>However, the second model would have to be overseen by TRAI to ensure that the recharge APIs don’t impose additional costs on OTTs, or unduly harm competition and innovation. For instance, there ought to be an open specification for such an API, which all the TSPs should use in order to reduce the costs on OTTs. Further, there should be no exclusivity, and no preferential treatment provided for the TSPs sister concerns or partners.</p>
<h4 id="example-sites">“0.example” sites</h4>
<p>Other forms of free data, for instance by TSPs choosing not to charge for low-bandwidth traffic should be allowed, as long as it is not discriminatory, nor does it impose increased barriers to entry for OTTs. For instance, if a website self-certifies that it is low-bandwidth and optimized for Internet-enabled feature phones and uses 0.example.tld to signal this (just as wap.* were used in for WAP sites and m.* are used for mobile-optimized versions of many sites), then there is no reason why TSPs should be prohibited from not charging for the data consumed by such websites, as long as the TSP does so uniformly without discrimination. In such cases, the TSP is not harming competition, harming consumers, nor abusing its gatekeeping powers.</p>
<h4 id="ott-agnostic-free-data">OTT-agnostic free data</h4>
<p>If a TSP decides not to charge for specific forms of traffic (for example, video, or for locally-peered traffic) regardless of the Internet service from which that traffic emanates, as as long as it does so with the end customer’s consent, then there is no question of the TSP harming competition, harming consumers, nor abusing its gatekeeping powers. There is no reason such schemes should be prohibited by TRAI unless they distort markets and harm innovation.</p>
<h4 id="unified-marketplace">Unified marketplace</h4>
<p>One other way to do what is proposed as the “recharge API” model is to create a highly-regulated market where the gatekeeping powers of the ISP are diminished, and the ISP’s ability to leverage its exclusive access over its customers are curtailed. A comparison may be drawn here to the rules that are often set by standard-setting bodies where patents are involved: given that these patents are essential inputs, access to them must be allowed through fair, reasonable, and non-discriminatory licences. Access to the Internet and common carriers like telecom networks, being even more important (since alternatives exist to particular standards, but not to the Internet itself), must be placed at an even higher pedestal and thus even stricter regulation to ensure fair competition.</p>
<p>A marketplace of this sort would impose some regulatory burdens on TRAI and place burdens on innovations by the ISPs, but a regulated marketplace harms ISP innovation less than not allowing a market at all.</p>
<p>At a minimum, such a marketplace must ensure non-exclusivity, non-discrimination, and transparency. Thus, at a minimum, a telecom provider cannot discriminate between any OTTs who want similar access to zero-rating. Further, a telecom provider cannot prevent any OTT from zero-rating with any other telecom provider. To ensure that telecom providers are actually following this stipulation, transparency is needed, as a minimum.</p>
<p>Transparency can take one of two forms: transparency to the regulator alone and transparency to the public. Transparency to the regulator alone would enable OTTs and ISPs to keep the terms of their commercial transactions secret from their competitors, but enable the regulator, upon request, to ensure that this doesn’t lead to anti-competitive practices. This model would increase the burden on the regulator, but would be more palatable to OTTs and ISPs, and more comparable to the wholesale data market where the terms of such agreements are strictly-guarded commercial secrets. On the other hand, requiring transparency to the public would reduce the burden on the regulator, despite coming at a cost of secrecy of commercial terms, and is far more preferable.</p>
<p>Beyond transparency, a regulation could take the form of insisting on standard rates and terms for all OTT players, with differential usage tiers if need be, to ensure that access is truly non-discriminatory. This is how the market is structured on the retail side.</p>
<p>Since there are transaction costs in individually approaching each telecom provider for such zero-rating, the market would greatly benefit from a single marketplace where OTTs can come and enter into agreements with multiple telecom providers.</p>
<p>Even in this model, telecom networks will be charging based not only on the fact of the number of customers they have, but on the basis of them having exclusive routing to those customers. Further, even under the standard-rates based single-market model, a particular zero-rated site may be accessible for free from one network, but not across all networks: unlike the situation with a toll-free number in which no such distinction exists.</p>
<p>To resolve this, the regulator may propose that if an OTT wishes to engage in paid zero-rating, it will need to do so across all networks, since if it doesn’t there is risk of providing an unfair advantage to one network over another and increasing the gatekeeper effect rather than decreasing it.</p>
<h2 id="question-2">Question 2</h2>
<p><em>Whether such platforms need to be regulated by the TRAI or market be allowed to develop these platforms?</em></p>
<p>In many cases, TRAI would have no powers over such platforms, so the question of TRAI regulating does not arise. In all other cases, TRAI can allow the market to develop such platforms, and then see if any of them violates the Discriminatory Data Tariffs Regualation. For government-incentivised schemes that are proposed above, TRAI should take proactive measure in getting their feasibility evaluated.</p>
<h2 id="question-3">Question 3</h2>
<p><em>Whether free data or suitable reimbursement to users should be limited to mobile data users only or could it be extended through technical means to subscribers of fixed line broadband or leased line?</em></p>
<p>Spectrum is naturally a scarce resource, though technological advances (as dictated by Cooper’s Law) and more efficient management of spectrum make it less so. However, we have seen that fixed-line broadband has more or less stagnated for the past many years, while mobile access has increased. So the market distortionary power of fixed-line providers is far less than that of mobile providers. However, competition is far less in fixed-line Internet access services, while it is far higher in mobile Internet access. Switching costs in fixed-line Internet access services are also far higher than in mobile services. Given these differences, the regulation with regard to price discrimination might justifiably be different.</p>
<p>All in all, for this particular issue, it is unclear why different rules should apply to mobile users and fixed line users.</p>
<h2 id="question-4">Question 4</h2>
<p><em>Any other issue related to the matter of Consultation.</em></p>
<p>None.</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1">
<p>In India’s mobile telecom sector, according to a Nielsen study, an estimated 15% of mobile users are multi-SIM users, meaning the “gatekeeping” effect is significantly reduced in both directions: Internet services can reach them via multiple ISPs, and conversely they can reach Internet services via multiple ISPs. <em>See</em> Nielsen, ‘Telecom Transitions: Tracking the Multi-SIM Phenomena in India’, http://www.nielsen.com/in/en/insights/reports/2015/telecom-transitions-tracking-the-multi-sim-phenomena-in-india.html<a href="#fnref1">↩</a></p>
</li></ol>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/cis-submission-trai-consultation-free-data'>http://editors.cis-india.org/internet-governance/blog/cis-submission-trai-consultation-free-data</a>
</p>
No publisherpraneshTelecomHomepageTRAINet NeutralityFeaturedInternet GovernanceSubmissions2016-07-01T16:04:27ZBlog EntryPublic Consultation for the First Draft of 'Government Open Data Use License - India' Announced
http://editors.cis-india.org/openness/public-consultation-for-the-first-draft-of-government-open-data-use-license-india-announced
<b>The first public draft of the open data license to be used by Government of India was released by the Department of Legal Affairs earlier this week. Comments are invited from general public and stakeholders. These are to be submitted via the MyGov portal by July 25, 2016. CIS was a member of the committee constituted to develop the license concerned, and we contributed substantially to the drafting process.
</b>
<p> </p>
<h4>Please read the call for comments <a class="external-link" href="https://www.mygov.in/group-issue/public-consultation-government-open-data-use-license-india/">here</a>.</h4>
<h4>The PDF version of the draft license document can be accessed <a class="external-link" href="https://www.mygov.in/sites/default/files/mygov_1466767582190667.pdf">here</a>.</h4>
<h4><em>Comments are to be submitted by July 25, 2016.</em></h4>
<hr />
<h4 style="text-align: center;"><strong>Government Open Data Use License - India</strong></h4>
<h4 style="text-align: center;"><strong>National Data Sharing and Accessibility Policy</strong></h4>
<h4 style="text-align: center;"><strong>Government of India</strong></h4>
<h2>1. Preamble</h2>
<p style="text-align: justify;">Structured data available in open format and open license for public access and use, usually termed as “Open Data,” is of prime importance in the contemporary world. Data also is one of the most valuable resources of modern governance, sharing of which enables various and non-exclusive usages for both commercial and non-commercial purposes. Licenses, however, are crucial to ensure that such data is not misused or misinterpreted (for example, by insisting on proper attribution), and that all users have the same and permanent right to use the data.</p>
<p style="text-align: justify;">The open government data initiative started in India with the notification of the National Data Sharing and Accessibility Policy (NDSAP), submitted to the Union Cabinet by the Department of Science and Technology, on 17th March 2012 <strong>[1]</strong>. The NDSAP identified the Department of Electronics & Information Technology (DeitY) as the nodal department for the implementation of the policy through National Informatics Centre, while the Department of Science and Technology continues to be the nodal department on policy matters. In pursuance of the Policy, the Open Government Data Platform India <strong>[2]</strong> was launched in 2012.</p>
<p style="text-align: justify;">While, the appropriate open formats and related aspects for implementation of the Policy has been defined in the “NDSAP Implementation Guidelines” prepared by an inter- ministerial Task Force constituted by the National Informatics Centre <strong>[3]</strong>, the open license for data sets published under NDSAP and through the OGD Platform remained unspecified till now.</p>
<h2>2. Definitions</h2>
<p style="text-align: justify;">a. <strong>“Data”</strong> means a representation of Information, numerical compilations and observations, documents, facts, maps, images, charts, tables and figures, concepts in digital and/or analog form, and includes metadata <strong>[4]</strong>, that is all information about data, and/or clarificatory notes provided by data provider(s), without which the data concerned cannot be interpreted or used <strong>[5]</strong>.</p>
<p style="text-align: justify;">b. <strong>“Information”</strong> means processed data <strong>[6]</strong>.</p>
<p style="text-align: justify;">c. <strong>“Data Provider(s)”</strong> means person(s) publishing and providing the data under this license.</p>
<p style="text-align: justify;">d. <strong>“License”</strong> means this document.</p>
<p style="text-align: justify;">e. <strong>“Licensor”</strong>means any data provider(s) that has the authority to offer the data concerned under the terms of this licence.</p>
<p style="text-align: justify;">f. <strong>“User”</strong> means natural or legal persons, or body of persons corporate or incorporate, acquiring rights in the data (whether the data is obtained directly from the licensor or otherwise) under this licence.</p>
<p style="text-align: justify;">g. <strong>“Use”</strong> includes lawful distribution, making copies, adaptation, and all modification and representation of the data, subject to the provisions of this License.</p>
<p style="text-align: justify;">h. <strong>“Adapt”</strong> means to transform, build upon, or to make any use of the data by itsre-arrangement or alteration <strong>[7]</strong>.</p>
<p style="text-align: justify;">i. <strong>“Redistribute”</strong> means sharing of the data by the user, either in original or in adapted form (including a subset of the original data), accompanied by appropriate attribute statement, under the same or other suitable license.</p>
<p style="text-align: justify;">j. <strong>“Attribution Statement”</strong> means a standard notice to be published by all users of data published under this license, that contains the details of the provider, source, and license of the data concerned <strong>[8]</strong>.</p>
<p style="text-align: justify;">k. <strong>“Personal Information”</strong> means any Information that relates to a natural person,which, either directly or indirectly, in combination with other Information available or likely to be available with a body corporate, is capable of identifying such person <strong>[9]</strong>.</p>
<h2>3. Permissible Use of Data</h2>
<p style="text-align: justify;">Subject to the conditions listed under section 7, the user may:</p>
<p style="text-align: justify;">a. Access, use, adapt, and redistribute data published under this license for all lawful and non-exclusive purposes, without payment of any royalty or fee;</p>
<p style="text-align: justify;">b. Apply this license worldwide, and in perpetuity;</p>
<p style="text-align: justify;">c. Access, study, copy, share, adapt, publish, redistribute and transmit the data in any medium or format; and</p>
<p style="text-align: justify;">d. Use, adapt, and redistribute the data, either in itself, or by combining it with other data, or by including it within a product/application/service, for all commercial and/or non-commercial purposes.</p>
<h2>4. Terms and Conditions of Use of Data</h2>
<p style="text-align: justify;">a. <strong>Attribution:</strong> The user must acknowledge the provider, source, and license of data by explicitly publishing the attribution statement, including the DOI (Digital Object Identifier), or the URL (Uniform Resource Locator), or the URI (Uniform Resource Identifier) of the data concerned.</p>
<p style="text-align: justify;">b. <strong>Attribution of Multiple Data:</strong> If the user is using multiple data together and/or listing of sources of multiple data is not possible, the user may provide a link to a separate page/list that includes the attribution statements and specific URL/URI of all data used.</p>
<p style="text-align: justify;"> c. <strong>Non-endorsement:</strong> The User must not indicate or suggest in any manner that the data provider(s) endorses their use and/or the user.</p>
<p style="text-align: justify;">d. <strong>No Warranty:</strong> The data provider(s) are not liable for any errors or omissions, and will not under any circumstances be liable for any direct, indirect, special, incidental, consequential, or other loss, injury or damage caused by its use or otherwise arising in connection with this license or the data, even if specifically advised of the possibility of such loss, injury or damage. Under any circumstances, the user may not hold the data provider(s) responsible for: i) any error, omission or loss of data, and/or ii) any undesirable consequences due to the use of the data as part of an application/product/service (including violation of any prevalent law).</p>
<p style="text-align: justify;">e. <strong>Permanent Disclosure and Versioning:</strong> The data provider(s) will ensure that a data package once published under this license will always remain publicly available for reference and use. If an already published data is updated by the provider, then the earlier appropriate version(s) must also be kept publicly available with accordance with the archival policy of the National Informatics Centre.</p>
<p style="text-align: justify;">f. <strong>Continuity of Provision:</strong>The data provider(s) will strive for continuously updating the data concerned, as new data regarding the same becomes available. However, the data provider(s) do not guarantee the continued supply of updated or up-to-date versions of the data, and will not be held liable in case the continued supply of updated data is not provided.</p>
<h2>5. Template for Attribution Statement</h2>
<p style="text-align: justify;">Unless the user is citing the data using an internationally accepted data citation format <strong>[10]</strong>, an attribution notice in the following format must be explicitly included:</p>
<p>“Data has been published by [Name of Data Provider] and sourced from Open Government Data (OGD) Platform of India: [Name of Data]. ([date of Publication: dd/mm/yyyy]) .[DOI / URL / URI]. Published under Open Government Data License - India: [URL of Open Data License – India].”</p>
<p>For example, “Data has been published by Ministry of Statistics and Programme Implementation and sourced from Open Government Data (OGD) Platform of India: Overall Balance of Payments. (08/09/2015). <a href="https://data.gov.in/catalog/overall-balance-payments">https://data.gov.in/catalog/overall-balance-payments</a>. Published under Open Government Data License - India: [URL of Open Data License - India].”</p>
<h2>6. Exemptions</h2>
<p style="text-align: justify;">The license does not grant the right to access, use, adapt, and redistribute the following kinds of data:</p>
<p style="text-align: justify;">a. Personal information;</p>
<p style="text-align: justify;">b. Data that the data provider(s) is not authorised to licence;</p>
<p style="text-align: justify;">c. Names, crests, logos and other official symbols of the data provider(s);</p>
<p style="text-align: justify;">d. Data subject to other intellectual property rights, including patents, trade-marks and official marks;</p>
<p style="text-align: justify;">e. Military insignia;</p>
<p style="text-align: justify;">f. Identity documents; and</p>
<p style="text-align: justify;">g. Any data publication of which may violate section 8 of the Right to Information Act, 2005 <strong>11</strong>.</p>
<h2>7. Termination</h2>
<p style="text-align: justify;">a. Failure to comply with stipulated terms and conditions will cause the user’s rights under this license to end automatically.</p>
<p style="text-align: justify;">b. Where the user’s rights to use data have terminated under the aforementioned clauses or any other Indian law, it reinstates:</p>
<p style="text-align: justify;">i. automatically, as of the date the violation is cured, provided it is cured within 30 days of the discovery of the violation; or</p>
<p style="text-align: justify;">ii. upon express reinstatement by the Licensor.</p>
<p style="text-align: justify;">c. For avoidance of doubt, this section does not affect any rights the licensor may have to seek remedies for violation of this license.</p>
<h2>8. Dispute Redressal Mechanism</h2>
<p style="text-align: justify;">This license is governed by Indian law, and the copyright of any data shared under this license vests with the licensor, under the Indian Copyright Act.</p>
<h2>9. Endnotes</h2>
<p><strong>[1]</strong> Ministry of Science and Technology. 2012. National Data Sharing and Accessibility Policy (NDSAP) 2012. Gazette of India. March 17. <a href="http://data.gov.in/sites/default/files/NDSAP.pdf">http://data.gov.in/sites/default/files/NDSAP.pdf</a>.</p>
<p><strong>[2]</strong> See: <a href="https://data.gov.in/">https://data.gov.in/</a>.</p>
<p><strong>[3]</strong> See section 3.2 of the Implementation Guidelines for National Data Sharing and Accessibility Policy (NDSAP) Version 2.2. <a href="https://data.gov.in/sites/default/files/NDSAP_Implementation_Guidelines_2.2.pdf">https://data.gov.in/sites/default/files/NDSAP_Implementation_Guidelines_2.2.pdf</a>.</p>
<p><strong>[4]</strong> See section 2.1 of NDSAP 2012.</p>
<p><strong>[5]</strong> See section 2.6 of NDSAP 2012.</p>
<p><strong>[6]</strong> See section 2.7 of NDSAP 2012.</p>
<p><strong>[7]</strong> See section 2 (a) of Indian Copyright Act 1957. <a href="http://copyright.gov.in/Documents/CopyrightRules1957.pdf">http://copyright.gov.in/Documents/CopyrightRules1957.pdf</a>.</p>
<p><strong>[8]</strong> The template of the attribution statement is given in section 5 of the license.</p>
<p><strong>[9]</strong> See section 2 (i) of Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011. <a href="http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511%281%29.pdf">http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511%281%29.pdf</a>.</p>
<p><strong>[10]</strong>For example, those listed in the DOI Citation Formatter tool developed by DataCite, CrossRef and others: <a href="http://crosscite.org/citeproc/">http://crosscite.org/citeproc/</a>.</p>
<p><strong>[11]</strong> See: <a href="http://rti.gov.in/webactrti.htm">http://rti.gov.in/webactrti.htm</a>.</p>
<div> </div>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/public-consultation-for-the-first-draft-of-government-open-data-use-license-india-announced'>http://editors.cis-india.org/openness/public-consultation-for-the-first-draft-of-government-open-data-use-license-india-announced</a>
</p>
No publishersinhaOpen Government DataOpen LicenseOpen DataNDSAPFeaturedOpenness2016-06-30T09:41:07ZBlog EntrySubmission by the Centre for Internet and Society on Revisions to ICANN Expected Standards of Behavior
http://editors.cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior
<b>Prepared by Vidushi Marda, with inputs from Dr. Nirmita Narasimhan and Sunil Abraham.</b>
<p> </p>
<p>We at the Centre for Internet and Society (“CIS”) are grateful for the opportunity to comment on the proposed revisions to ICANN’s Expected Standards of Behavior (“Standards”).</p>
<p>Before providing specific comments on the proposed revisions, CIS would like to state for the record our extreme disappointment while noting that there is no indication of the intention to draft and adopt a dedicated anti - harassment policy. We are of the firm opinion that harassment, and particularly sexual harassment, is not only a sensitive topic, but also a deeply complex one. Such a policy should consider scope, procedural questions, redressal and remedies in cases of harassment in general and sexual harassment in particular. A mere change in language to these Standards, however well intentioned, cannot go too far in preventing and dealing with cases of harassment in the absence of a framework within which such instances can be addressed.</p>
<p>Some of the issues that arose at ICANN55 were confusion surrounding the powers and limits of the Ombudsman’s office in dealing with cases of harassment, the exact procedure to be followed for redressal surrounding such incidents, and the appropriate conduct of parties to the matter. There will be no clarity in these respects, even if these proposed changes are to be adopted.</p>
<p>Specifically, the proposed language is problematic and completely inadequate for the following reasons:</p>
<ol><li>
<p><strong>Vague</strong></p>
<p>Terms like “professional conduct” and “appropriate behavior” mean little in the absence of a definition that entails such conduct. These terms could mean vastly different things to each community member and such language will only encourage a misalignment of expectation of conduct between community members. The “general” definition of harassment is at best, an ineffective placeholder, as it does not encompass exactly what kind of behavior would fall under its definition.</p>
</li>
<li>
<p><strong>Fails to consider important scenarios</strong></p>
<p>The proposed language fails to consider situations where some attempts or advances at communication, sexual or otherwise, occur. For example, consider a situation in which one community member stalks another online, and catalogues his/her every move. This is most certainly foreseeable, but will not be adequately covered by the proposed language. Further, terms like “speech or behavior that is sexually aggressive or intimidates” could or could not include types of speech such as art, music, photography etc, depending on who you ask. It also does not explain the use of the word behavior - physical, emotional, professional, online behavior are all possible, but the scope of this term would depend on the interpretation one chooses to apply. In part 4 below, we will demonstrate how ICANN has applied a far more detailed framework for harassment elsewhere.</p>
</li>
<li>
<p><strong>Ignores complexity</strong></p>
<p>In discussions surrounding the incident at ICANN55, a number of issues of arose. These included, inter alia, the definition of harassment and sexual harassment, what constituted such conduct, the procedure to be followed in such cases, the appropriate forum to deal with such incidents and the conduct that both parties are expected to maintain. These questions cannot, and have not been answered or addressed in the proposed change to the Standards. CIS emphasizes the need to understand this issue as one that must imbibe differences in culture, expectation, power dynamics, and options for redressal. If ICANN is to truly be a safe space, such issues must be substantively and procedurally fair for both the accused and the victim. This proposed definition is woefully inadequate in this regard.</p>
</li>
<li>
<p><strong>Superficial understanding of harassment, sexual harassment</strong></p>
<p>The proposed changes do not define harassment, and sexual harassment in an adequate fashion. The change currently reads, “Generally, harassment is considered unwelcome hostile or intimidating behavior -- in particular, speech or behavior that is sexually aggressive or intimidates based on attributes such as race, gender, ethnicity, religion, age, color, national origin, ancestry, disability or medical condition, sexual orientation, or gender identity.” These are subject to broad interpretation, and we have already highlighted the issues that may arise due to this in 1, above. Here, we would like to point to a far more comprehensive definition.</p>
</li></ol>
<p>ICANN’s own Employment Policy includes within the scope of sexual harassment “verbal, physical and visual conduct that creates an intimidating, offensive or hostile working environment, or interferes with work performance.” The policy also states:</p>
<blockquote>Harassing conduct can take many forms and includes, but is not limited to, the following:<br />
<ol><li>Slurs, jokes, epithets, derogatory comments, statements or gestures;</li>
<li>Assault, impeding or blocking another’s movement or otherwise physically interfering with normal work;</li>
<li>Pictures, posters, drawings or cartoons based upon the characteristics mentioned in the first paragraph of this policy.</li></ol>
Sexually harassing conduct includes all of the above prohibited actions, as well as other unwelcome conduct, such as requests for sexual favors, conversation containing sexual comments, and unwelcome sexual advances.”</blockquote>
<p>This definition is not perfect, it does not comprehensively consider advances or attempts at communication, sexual or otherwise, which are unwelcome by the target. Nonetheless, CIS believes that this is a far more appropriate definition that does not include vague metrics that the proposed changes do. Since it is one ICANN has already adopted, it can act as an important stepping stone towards a comprehensive framework.</p>
<p>Like ICANN, UNESCO’s organisational approach has been to adopt a comprehensive <a href="http://www.un.org/womenwatch/osagi/UN_system_policies/(UNESCO)Anti-harassment_Policy.pdf">Anti-Harassment Policy</a> which lays down details of definition, prevention, complaint procedure, investigations, sanctions, managerial responsibility, etc. Acknowledging the cultural sensitivity of harassment particularly in international situations, the policy also recognizes advances or attempts at communication, sexual or otherwise. Most importantly, it states that for conduct to come within the definition of sexual harassment, it “must be unwelcome, i.e. unsolicited and regarded as offensive or undesirable by the victim.”</p>
<h3>Conclusion</h3>
<p>In conclusion, we would like to reiterate the importance of adopting and drafting a dedicated anti-harassment policy and framework. The benefits of safety, certainty and formal redressal mechanisms in cases of harassment cannot be over emphasized.</p>
<p>Importantly, such measures have already been taken elsewhere. The IETF has adopted an <a href="http://tools.ietf.org/html/rfc7776">instrument</a> to address issues of harassment that occur at meetings, mailing lists and social events. This instrument contemplates in detail, problematic behavior, unacceptable conduct, the scope of the term harassment, etc. It further envisages a framework for redressal of complaints, remediation, and even contemplates issues that may arise with such remediation. It is particularly important to note that while it provides a definition of harassment, it also states that "[a]ny definition of harassment prohibited by an applicable law can be subject to this set of procedures, recognising harassment as a deeply personal and subjective experience, and thus encouraging members to take up issues of harassment as per their cultural norms and national laws, which are then considered as per procedures laid down."</p>
<p>A similar effort within the ICANN community is critical.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior'>http://editors.cis-india.org/internet-governance/submission-by-the-centre-for-internet-and-society-on-revisions-to-icann-expected-standards-of-behavior</a>
</p>
No publishervidushiPublic AccountabilityInternet GovernanceFeaturedICANNIANA TransitionHomepage2016-06-30T06:07:37ZBlog EntryJurisdiction: The Taboo Topic at ICANN
http://editors.cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann
<b>The "IANA Transition" that is currently underway is a sham since it doesn't address the most important question: that of jurisdiction. This article explores why the issue of jurisdiction is the most important question, and why it remains unaddressed.</b>
<br />
<p>In March 2014, the <a href="https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions">US government announced</a> that they were going to end the contract they have with ICANN to run the <a href="https://www.iana.org/">Internet Assigned Numbers Authority</a> (IANA), and hand over control to the “global multistakeholder community”. They insisted that the plan for transition had to come through a multistakeholder process and have stakeholders “across the global Internet community”.</p>
<h2 id="why-is-the-u.s.-government-removing-the-ntia-contract">Why is the U.S. government removing the NTIA contract?</h2>
<p>The main reason for the U.S. government's action is that it will get rid of a political thorn in the U.S. government's side: keeping the contract allows them to be called out as having a special role in Internet governance (with the Affirmation of Commitments between the U.S. Department of Commerce and ICANN, the IANA contract, and the cooperative agreement with Verisign), and engaging in unilateralism with regard to the operation of the root servers of the Internet naming system, while repeatedly declaring that they support a multistakeholder model of Internet governance.</p>
<p>This contradiction is what they are hoping to address. Doing away with the NTIA contract will also increase — ever so marginally — ICANN’s global legitimacy: this is something that world governments, civil society organizations, and some American academics have been asking for nearly since ICANN’s inception in 1998. For instance, here are some demands made <a href="https://www.itu.int/net/wsis/docs2/pc3/contributions/sca/hbf-29.doc">in a declaration by the Civil Society Internet Governance Caucus at WSIS, in 2005</a>:</p>
<blockquote>
<p>“ICANN will negotiate an appropriate host country agreement to replace its California Incorporation, being careful to retain those aspects of its California Incorporation that enhance its accountability to the global Internet user community. "ICANN's decisions, and any host country agreement, must be required to comply with public policy requirements negotiated through international treaties in regard to, inter alia, human rights treaties, privacy rights, gender agreements and trade rules. … "It is also expected that the multi-stakeholder community will observe and comment on the progress made in this process through the proposed [Internet Governance] Forum."</p>
</blockquote>
<p>In short: the objective of the transition is political, <a href="http://editors.cis-india.org/internet-governance/blog/">not technical</a>. In an ideal world, we <em>should</em> aim at reducing U.S. state control over the core of the Internet's domain name system.<a href="#fn1" class="footnoteRef" id="fnref1"><sup>1</sup></a></p>
<p>It is our contention that <strong>U.S. state control over the core of the Internet's domain name system is <em>not</em> being removed</strong> by the transition that is currently underway.</p>
<h2 id="why-is-the-transition-happening-now">Why is the Transition Happening Now?</h2>
<p>Despite the U.S. government having given commitments in the past that were going to finish the IANA transition by "September 30, 2000", (the <a href="https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en">White Paper on Management of Internet Names and Addresses</a> states: "The U.S. Government would prefer that this transition be complete before the year 2000. To the extent that the new corporation is established and operationally stable, September 30, 2000 is intended to be, and remains, an 'outside' date.") and later by "fall of 2006",<a href="#fn2" class="footnoteRef" id="fnref2"><sup>2</sup></a> those turned out to be empty promises. However, this time, the transition seems to be going through, unless the U.S. Congress manages to halt it.</p>
<p>However, in order to answer the question of "why now?" fully, one has to look a bit at the past.</p>
<p>In 1998, through the <a href="https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en">White Paper on Management of Internet Names and Addresses</a> the U.S. government <a href="http://www.icannwatch.org/archive/mueller_icann_and_internet_governance.pdf">asserted it’s control over the root</a>, and asserted — some would say arrogated to itself — the power to put out contracts for both the IANA functions as well as the 'A' Root (i.e., the Root Zone Maintainer function that Network Solutions Inc. then performed, and continues to perform to date in its current avatar as Verisign). The IANA functions contract — a periodically renewable contract — was awarded to ICANN, a California-based non-profit corporation that was set up exclusively for this purpose, but which evolved around the existing IANA (to placate the Internet Society).</p>
<p>Meanwhile, of course, there were criticisms of ICANN from multiple foreign governments and civil society organizations. Further, despite it being a California-based non-profit on contract with the government, domestically within the U.S., there was pushback from constituencies that felt that more direct U.S. control of the DNS was important.</p>
<p>As Goldsmith and Wu summarize:</p>
<blockquote>
<p>"Milton Mueller and others have shown that ICANN’s spirit of “self-regulation” was an appealing label for a process that could be more accurately described as the U.S. government brokering a behind-the-scenes deal that best suited its policy preferences ... the United States wanted to ensure the stability of the Internet, to fend off the regulatory efforts of foreign governments and international organizations, and to maintain ultimate control. The easiest way to do that was to maintain formal control while turning over day-to-day control of the root to ICANN and the Internet Society, which had close ties to the regulation-shy American technology industry." [footnotes omitted]</p>
</blockquote>
<p>And that brings us to the first reason that the NTIA announced the transition in 2014, rather than earlier.</p>
<h3 id="icann-adjudged-mature-enough">ICANN Adjudged Mature Enough</h3>
<p>The NTIA now sees ICANN as being mature enough: the final transition was announced 16 years after ICANN's creation, and complaints about ICANN and its legitimacy had largely died down in the international arena in that while. Nowadays, governments across the world send their representatives to ICANN, thus legitimizing ICANN. States have largely been satisfied by participating in the Government Advisory Council, which, as its name suggests, only has advisory powers. Further, unlike in the early days, there is <a href="http://www.internetgovernance.org/2012/05/24/threat-analysis-of-itus-wcit-part-1-historical-context/">no serious push for states assuming control of ICANN</a>. Of course they grumble about the ICANN Board not following their advice, but no government, as far as I am aware, has walked out or refused to participate.</p>
<h3 id="laffaire-snowden">L'affaire Snowden</h3>
<p>Many within the United States, and some without, believe that the United States not only plays an exceptional role to play in the running of the Internet — by dint of historical development and dominance of American companies — but that <em>it ought to</em> have an exceptional role because it is the best country to exercise 'oversight' over 'the Internet' (often coming from <a href="http://www.wsj.com/articles/SB10001424052702303563304579447362610955656">clueless commentators</a>), and from dinosaurs of the Internet era, like <a href="http://www.circleid.com/posts/20140316_if_the_stakeholders_already_control_the_internet_netmundial_iana/">American IP lawyers</a> and <a href="http://www.lawfareblog.com/2014/03/who-controls-the-internet-address-book-icann-ntia-and-iana/">American 'homeland' security hawks</a>, Jones Day, who are ICANN's lawyers, and other <a href="http://homepages.wmich.edu/~cooneys/poems/cummings.nextto.html">jingoists</a> and those policymakers who are controlled by these narrow-minded interests.</p>
<p>The Snowden revelations were, in that way, a godsend for the NTIA, as it allowed them a fig-leaf of <a href="http://www.ft.com/cms/s/0/4529516c-c713-11e3-889e-00144feabdc0.html">international</a> <a href="https://www.rt.com/usa/nsa-fallout-relinquish-internet-oversight-002/">criticism</a> <a href="https://twitter.com/carolinegreer/status/454253411576598528">with which</a> to counter these domestic critics and carry on with a transition that they have been seeking to put into motion for a while. The Snowden revelations led Dilma Rousseff, President of Brazil, to state in September 2013, at the 68th U.N. General Assembly, that Brazil would "present proposals for the establishment of a <a href="https://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf">civilian multilateral framework for the governance and use of the Internet</a>", and as <a href="https://icannwiki.com/Diego_Canabarro">Diego Canabarro</a> points out this catalysed the U.S. government and the technical community into taking action.</p>
<p>Given this context, a few months after the Snowden revelations, the so-called <a href="https://www.apnic.net/community/ecosystem/i*orgs">I* organizations</a> met — seemingly with the blessing of the U.S. government<a href="#fn3" class="footnoteRef" id="fnref3"><sup>3</sup></a> — in Montevideo, and put out a <a href="https://www.apnic.net/publications/news/2013/montevideo-statement-on-future-of-internet-cooperation">'Statement on the Future of Internet Governance'</a> that sought to link the Snowden revelations on pervasive surveillance with the need to urgently transition the IANA stewardship role away from the U.S. government. Of course, the signatories to that statement knew fully well, as did most of the readers of that statement, that there is no linkage between the Snowden revelations about pervasive surveillance and the operations of the DNS root, but still they, and others, linked them together. Specifically, the I* organizations called for "accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing."</p>
<p>One could posit the existence of two other contributing factors as well.</p>
<p>Given political realities in the United States, a transition of this sort is probably best done before an ultra-jingoistic President steps into office.</p>
<p>Lastly, the ten-yearly review of the World Summit on Information Society was currently underway. At the original WSIS (as seen from the civil society quoted above) the issue of US control over the root was a major issue of contention. At that point (and during where the 2006 date for globalization of ICANN was emphasized by the US government).</p>
<h2 id="why-jurisdiction-is-important">Why Jurisdiction is Important</h2>
<p>Jurisdiction has a great many aspects. <em>Inter alia</em>, these are:</p>
<ul>
<li>Legal sanctions applicable to changes in the root zone (for instance, what happens if a country under US sanctions requests a change to the root zone file?)</li>
<li>Law applicable to resolution of contractual disputes with registries, registrars, etc.</li>
<li>Law applicable to labour disputes.</li>
<li>Law applicable to competition / antitrust law that applies to ICANN policies and regulations.</li>
<li>Law applicable to disputes regarding ICANN decisions, such as allocation of gTLDs, or non-renewal of a contract.</li>
<li>Law applicable to consumer protection concerns.</li>
<li>Law applicable to financial transparency of the organization.</li>
<li>Law applicable to corporate condition of the organization, including membership rights.</li>
<li>Law applicable to data protection-related policies & regulations.</li>
<li>Law applicable to trademark and other speech-related policies & regulations.</li>
<li>Law applicable to legal sanctions imposed by a country against another.</li>
</ul>
<p>Some of these, but not all, depend on where bodies like ICANN [the policy-making body], the IANA functions operator [the proposed "Post-Transition IANA"], and the root zone maintainer are incorporated or maintain their primary office, while others depend on the location of the office [for instance, Turkish labour law applies for the ICANN office in Istanbul], while yet others depend on what's decided by ICANN in contracts (for instance, the resolution of contractual disputes with ICANN, filing of suits with regard to disputes over new generic TLDs, etc.).</p>
<p>However, an issue like sanctions, for instance, depends on where ICANN/PTI/RMZ are incorporated and maintain their primary office.</p>
<p>As <a href="http://content.netmundial.br/contribution/roadmap-for-globalizing-iana-four-principles-and-a-proposal-for-reform-a-submission-to-the-global-multistakeholder-meeting-on-the-future-of-internet-governance/96">Milton Mueller notes</a>, the current IANA contract "requires ICANN to be incorporated in, maintain a physical address in, and perform the IANA functions in the U.S. This makes IANA subject to U.S. law and provides America with greater political influence over ICANN."</p>
<p>He further notes that:</p>
<blockquote>
<p>While it is common to assert that the U.S. has never abused its authority and has always taken the role of a neutral steward, this is not quite true. During the controversy over the .xxx domain, the Bush administration caved in to domestic political pressure and threatened to block entry of the domain into the root if ICANN approved it (Declaration of the Independent Review Panel, 2010). It took five years, an independent review challenge and the threat of litigation from a businessman willing to spend millions to get the .xxx domain into the root.</p>
</blockquote>
<p>Thus it is clear that even if the NTIA's role in the IANA contract goes away, jurisdiction remains an important issue.</p>
<h2 id="u.s.-doublespeak-on-jurisdiction">U.S. Doublespeak on Jurisdiction</h2>
<p>In March 2014, when NTIA finally announced that they would hand over the reins to “the global multistakeholder community”. They’ve laid down two procedural condition: that it be developed by stakeholders across the global Internet community and have broad community consensus, and they have proposed 5 substantive conditions that any proposal must meet:</p>
<ul>
<li>Support and enhance the multistakeholder model;</li>
<li>Maintain the security, stability, and resiliency of the Internet DNS;</li>
<li>Meet the needs and expectation of the global customers and partners of the IANA services; and,</li>
<li>Maintain the openness of the Internet.</li>
<li>Must not replace the NTIA role with a solution that is government-led or an inter-governmental organization.</li>
</ul>
<p>In that announcement there is no explicit restriction on the jurisdiction of ICANN (whether it relate to its incorporation, the resolution of contractual disputes, resolution of labour disputes, antitrust/competition law, tort law, consumer protection law, privacy law, or speech law, and more, all of which impact ICANN and many, but not all, of which are predicated on the jurisdiction of ICANN’s incorporation), the jurisdiction(s) of the IANA Functions Operator(s) (i.e., which executive, court, or legislature’s orders would it need to obey), and the jurisdiction of the Root Zone Maintainer (i.e., which executive, court, or legislature’s orders would it need to obey).</p>
<p>However, Mr. Larry Strickling, the head of the NTIA, in his <a href="https://www.youtube.com/watch?v=8v-yWye5I0w&feature=youtu.be">testimony before the U.S. House Subcommittee on Communications and Technology</a>, made it clear that,</p>
<blockquote>
<p>“Frankly, if [shifting ICANN or IANA jurisdiction] were being proposed, I don't think that such a proposal would satisfy our criteria, specifically the one that requires that security and stability be maintained.”</p>
</blockquote>
<p>Possibly, that argument made sense in 1998, due to the significant concentration of DNS expertise in the United States. However, in 2015, that argument is hardly convincing, and is frankly laughable.<a href="#fn4" class="footnoteRef" id="fnref4"><sup>4</sup></a></p>
<p>Targetting that remark, in ICANN 54 at Dublin, we asked Mr. Strickling:</p>
<blockquote>
<p>"So as we understand it, the technical stability of the DNS doesn't necessarily depend on ICANN's jurisdiction being in the United States. So I wanted to ask would the US Congress support a multistakeholder and continuing in the event that it's shifting jurisdiction."</p>
</blockquote>
<p>Mr. Strickling's response was:</p>
<blockquote>
<p>"No. I think Congress has made it very clear and at every hearing they have extracted from Fadi a commitment that ICANN will remain incorporated in the United States. Now the jurisdictional question though, as I understand it having been raised from some other countries, is not so much jurisdiction in terms of where ICANN is located. It's much more jurisdiction over the resolution of disputes.</p>
<p>"And that I think is an open issue, and that's an appropriate one to be discussed. And it's one I think where ICANN has made some movement over time anyway.</p>
<p>"So I think you have to ... when people use the word jurisdiction, we need to be very precise about over what issues because where disputes are resolved and under what law they're resolved, those are separate questions from where the corporation may have a physical headquarters."</p>
</blockquote>
<p>As we have shown above, jurisdiction is not only about the jurisdiction of "resolution of disputes", but also, as Mueller reminds us, about the requirement that ICANN (and now, the PTI) be "incorporated in, maintain a physical address in, and perform the IANA functions in the U.S. This makes IANA subject to U.S. law and provides America with greater political influence over ICANN."</p>
<p>In essence, the U.S. government has essentially said that they would veto the transition if the jurisdiction of ICANN or PTI's incorporation were to move out of the U.S., and they can prevent that from happening <em>after</em> the transition, since as things stand ICANN and PTI will still come within the U.S. Congress's jurisdiction.</p>
<h2 id="why-has-the-icg-failed-to-consider-jurisdiction">Why Has the ICG Failed to Consider Jurisdiction?</h2>
<p>Will the ICG proposal or the proposed new ICANN by-laws reduce existing U.S. control? No, they won't. (In fact, as we will argue below, the proposed new ICANN by-laws make this problem even worse.) The proposal by the names community ("the CWG proposal") still has a requirement (in Annex S) that the Post-Transition IANA (PTI) be incorporated in the United States, and a similar suggestion hidden away as a footnote. Further, the proposed by-laws for ICANN include the requirement that PTI be a California corporation. There was no discussion specifically on this issue, nor any documented community agreement on the specific issue of jurisdiction of PTI's incorporation.</p>
<p>Why wasn't there greater discussion and consideration of this issue? Because of two reasons: First, there were many that argued that the transition would be vetoed by the U.S. government and the U.S. Congress if ICANN and PTI were not to remain in the U.S. Secondly, the ICANN-formed ICG saw the US government’s actions very narrowly, as though the government were acting in isolation, ignoring the rich dialogue and debate that’s gone on earlier about the transition since the incorporation of ICANN itself.</p>
<p>While it would be no one’s case that political considerations should be given greater weightage than technical considerations such as security, stability, and resilience of the domain name system, it is shocking that political considerations have been completely absent in the discussions in the number and protocol parameters communities, and have been extremely limited in the discussions in the names community. This is even more shocking considering that the main reason for this transition is, as has been argued above, political.</p>
<p>It can be also argued that the certain IANA functions such as Root Zone Management function have a considerable political implication. It is imperative that the political nature of the function is duly acknowledged and dealt with, in accordance with the wishes of the global community. In the current process the political aspects of the IANA function has been completely overlooked and sidelined. It is important to note that this transition has not been a necessitated by any technical considerations. It is primarily motivated by political and legal considerations. However, the questions that the ICG asked the customer communities to consider were solely technical. Indeed, the communities could have chosen to overlook that, but they did not choose to do so. For instance, while the IANA customer community proposals reflected on existing jurisdictional arrangements, they did not reflect on how the jurisdictional arrangements should be post-transition , while this is one of the questions at the heart of the entire transition. There were no discussions and decisions as to the jurisdiction of the Post-Transition IANA: the Accountability CCWG's lawyers, Sidley Austin, recommended that the PTI ought to be a California non-profit corporation, and this finds mention in a footnote without even having been debated by the "global multistakeholder community", and subsequently in the proposed new by-laws for ICANN.</p>
<h2 id="why-the-by-laws-make-things-worse-why-work-stream-2-cant-address-most-jurisdiction-issues">Why the By-Laws Make Things Worse & Why "Work Stream 2" Can't Address Most Jurisdiction Issues</h2>
<p>The by-laws could have chosen to simply stayed silent on the matter of what law PTI would be incorporated under, but instead the by-law make the requirement of PTI being a California non-profit public benefit corporation part of the <em>fundamental by-laws</em>, which are close to impossible to amend.</p>
<p>While "Work Stream 2" (the post-transition work related to improving ICANN's accountability) has jurisdiction as a topic of consideration, the scope of that must necessarily discount any consideration of shifting the jurisdiction of incorporation of ICANN, since all of the work done as part of CCWG Accountability's "Work Stream 1", which are now reflected in the proposed new by-laws, assume Californian jurisdiction (including the legal model of the "Empowered Community"). Is ICANN prepared to re-do all the work done in WS1 in WS2 as well? If the answer is yes, then the issue of jurisdiction can actually be addressed in WS2. If the answer is no — and realistically it is — then, the issue of jurisdiction can only be very partially addressed in WS2.</p>
<p>Keeping this in mind, we recommended specific changes in the by-laws, all of which were rejected by CCWG's lawyers.</p>
<h2 id="the-transition-plan-fails-the-netmundial-statement">The Transition Plan Fails the NETmundial Statement</h2>
<p>The <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">NETmundial Multistakeholder Document</a>, which was an outcome of the NETmundial process, states:</p>
<blockquote>
<p>In the follow up to the recent and welcomed announcement of US Government with regard to its intent to transition the stewardship of IANA functions, the discussion about mechanisms for guaranteeing the transparency and accountability of those functions after the US Government role ends, has to take place through an open process with the participation of all stakeholders extending beyond the ICANN community</p>
<p>[...]</p>
<p>It is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that satisfy requirements from both internal stakeholders and the global community.</p>
<p>The active representation from all stakeholders in the ICANN structure from all regions is a key issue in the process of a successful globalization.</p>
</blockquote>
<p>As our past analysis has shown, the IANA transition process and the discussions on the mailing lists that shaped it <a href="http://editors.cis-india.org/internet-governance/blog/cis-india.org/internet-governance/blog/global-multistakeholder-community-neither-global-nor-multistakeholder">were neither global nor multistakeholder</a>. The DNS industry represented in ICANN is largely US-based. 3 in 5 registrars are from the United States of America, whereas less than 1% of ICANN-registered registrars are from Africa. Two-thirds of the Business Constituency in ICANN is from the USA. While ICANN-the-corporation has sought to become more global, the ICANN community has remained insular, and this will not change until the commercial interests involved in ICANN can become more diverse, reflecting the diversity of users of the Internet, and a TLD like .COM can be owned by a non-American corporation and the PTI can be a non-American entity.</p>
<h2 id="what-we-need-jurisdictional-resilience">What We Need: Jurisdictional Resilience</h2>
<p>It is no one's case that the United States is less fit than any other country as a base for ICANN, PTI, or the Root Zone Maintainer, or even as the headquarters for 9 of the world's 12 root zone operators (Verisign runs both the A and J root servers). However, just as having multiplicity of root servers is important for ensuring technical resilience of the DNS system (and this is shown in the uptake of Anycast by root server operators), it is equally important to have immunity of core DNS functioning from political pressures of the country or countries where core DNS infrastructure is legally situated and to ensure that we have diversity in terms of legal jurisdiction.</p>
<p>Towards this end, we at CIS have pushed for the concept of "jurisdictional resilience", encompassing three crucial points:</p>
<ul>
<li>Legal immunity for core technical operators of Internet functions (as opposed to policymaking venues) from legal sanctions or orders from the state in which they are legally situated.</li>
<li>Division of core Internet operators among multiple jurisdictions</li>
<li>Jurisdictional division of policymaking functions from technical implementation functions</li>
</ul>
<p>Of these, the most important is the limited legal immunity (akin to a greatly limited form of the immunity that UN organizations get from the laws of their host countries). This kind of immunity could be provided through a variety of different means: a host-country agreement; a law passed by the legislature; a U.N. General Assembly Resolution; a U.N.-backed treaty; and other such options exist. We are currently investigating which of these options would be the best option.</p>
<p>And apart from limited legal immunity, distribution of jurisdictional control is also valuable. As we noted in our submission to the ICG in September 2015:</p>
<blockquote>
<p>Following the above precepts would, for instance, mean that the entity that performs the role of the Root Zone Maintainer should not be situated in the same legal jurisdiction as the entity that functions as the policymaking venue. This would in turn mean that either the Root Zone Maintainer function be taken up Netnod (Sweden-headquartered) or the WIDE Project (Japan-headquartered) [or RIPE-NCC, headquartered in the Netherlands], or that if the IANA Functions Operator(s) is to be merged with the RZM, then the IFO be relocated to a jurisdiction other than those of ISOC and ICANN. This, as has been stated earlier, has been a demand of the Civil Society Internet Governance Caucus. Further, it would also mean that root zone servers operators be spread across multiple jurisdictions (which the creation of mirror servers in multiple jurisdictions will not address).</p>
</blockquote>
<p>However, the issue of jurisdiction seems to be dead-on-arrival, having been killed by the United States government.</p>
<p>Unfortunately, despite the primary motivation for demands for the IANA transition being those of removing the power the U.S. government exercises over the core of the Internet's operations in the form of the DNS, what has ended up happening through the IANA transition is that these powers have not only not been removed, but in some ways they have been entrenched further! While earlier, the U.S. had to specify that the IANA functions operator had to be located in the U.S., now ICANN's by-laws themselves will state that the post-transition IANA will be a California corporation. Notably, while the Montevideo Declaration speaks of "globalization" of ICANN and of the IANA functions, as does the NETmundial statement, the NTIA announcement on their acceptance of the transition proposals speaks of "privatization" of ICANN, and not "globalization".</p>
<p>All in all, the "independence" that IANA is gaining from the U.S. is akin to the "independence" that Brazil gained from Portugal in 1822. Dom Pedro of Brazil was then ruling Brazil as the Prince Regent since his father Dom João VI, the King of United Kingdom of Portugal, Brazil and the Algarves had returned to Portugal. In 1822, Brazil declared independence from Portugal (which was formally recognized through a treaty in 1825). Even after this "independence", Dom Pedro continued to rule Portugal just as he had before indepedence, and Dom João VI was provided the title of "Emperor of Brazil", aside from being King of the United Kingdom of Portugal and the Algarves. The "indepedence" didn't make a whit of a difference to the self-sufficiency of Brazil: Portugal continued to be its largest trading partner. The "independence" didn't change anything for the nearly 1 million slaves in Brazil, or to the lot of the indigenous peoples of Brazil, none of whom were recognized as "free". It had very little consequence not just in terms of ground conditions of day-to-day living, but even in political terms.</p>
<p>Such is the case with the IANA Transition: U.S. power over the core functioning of the Domain Name System do not stand diminished after the transition, and they can even arguably be said to have become even more entrenched. Meet the new boss: same as the old boss.</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1"><p>It is an allied but logically distinct issue that U.S. businesses — registries and registrars — dominate the global DNS industry, and as a result hold the reins at ICANN.<a href="#fnref1">↩</a></p></li>
<li id="fn2"><p>As Goldsmith & Wu note in their book <em>Who Controls the Internet</em>: "Back in 1998 the U.S. Department of Commerce promised to relinquish root authority by the fall of 2006, but in June 2005, the United States reversed course. “The United States Government intends to preserve the security and stability of the Internet’s Domain Name and Addressing System (DNS),” announced Michael D. Gallagher, a Department of Commerce official. “The United States” he announced, will “maintain its historic role in authorizing changes or modifications to the authoritative root zone file.”<a href="#fnref2">↩</a></p></li>
<li id="fn3"><p>Mr. Fadi Chehadé revealed in an interaction with Indian participants at ICANN 54 that he had a meeting "at the White House" about the U.S. plans for transition of the IANA contract before he spoke about that when <a href="http://articles.economictimes.indiatimes.com/2013-10-22/news/43288531_1_icann-internet-corporation-us-centric-internet">he visited India in October 2013</a> making the timing of his White House visit around the time of the Montevideo Statement.<a href="#fnref3">↩</a></p></li>
<li id="fn4"><p>As an example, <a href="https://www.nlnetlabs.nl/projects/nsd/">NSD</a>, software that is used on multiple root servers, is funded by a Dutch foundation and a Dutch corporation, and written mostly by European coders.<a href="#fnref4">↩</a></p></li>
</ol>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann'>http://editors.cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann</a>
</p>
No publisherpraneshIANAInternet GovernanceFeaturedICANNIANA Transition2016-06-29T07:51:05ZBlog EntrySmart City Policies and Standards: Overview of Projects, Data Policies, and Standards across Five International Smart Cities
http://editors.cis-india.org/internet-governance/blog/policies-and-standards-overview-of-five-international-smart-cities
<b>This blog post aims to review five Smart Cities across the globe, namely Singapore, Dubai, New York City, London and Seoul, the Data Policies and Standards adopted. Also, the research seeks to point the similarities, differences and best practices in the development of smart cities across jurisdictions.</b>
<p> </p>
<h4>Download the brief: <a href="http://cis-india.org/internet-governance/files/SmartCitiesPoliciesStandards-20160608/at_download/file">PDF</a>.</h4>
<hr />
<h2 style="text-align: justify;">Introduction</h2>
<p style="text-align: justify;">Smart City as a concept is evolutionary in nature, and the key elements like Information and Communication Technology (ICT), digitization of services, Internet of Things (IoT), open data, big data, social innovation, knowledge, etc., would be intrinsic to defining a Smart City <a href="#_ftn1">[1]</a>.</p>
<p style="text-align: justify;">A Smart City, as a “system of systems”, can potentially generate vast amounts of data, especially as cities install more sensors, gain access to data from sources such as mobile devices, and government and other agencies make more data accessible. Consequently, Big Data techniques and concepts are highly relevant to the future of Smart Cities. It was noted by Kenneth Cukier, Senior Editor of Digital Products at The Economist, that Big Data techniques can be used to enhance a number of processes essential to cities - for example, big data can be used to spot business trends, determine quality of research, prevent diseases, tack legal citations, combat crime, and determine real-time roadway traffic conditions <a href="#_ftn2">[2]</a>. Having said this, data is deemed to be the lifeblood of a Smart City and its availability, use, cost, quality, analysis, associated business models and governance are all areas of interest for a range of actors within a smart city <a href="#_ftn3">[3]</a></p>
<p style="text-align: justify;">This blog reviews five Smart Cities namely Singapore, Dubai, New York City, London and Seoul. In doing so, the research seeks to point the similarities, differences and best practices in the development of smart cities across jurisdictions. To achieve this, the research reviews:</p>
<ul style="text-align: justify;">
<li>The definition of a Smart City in a given context or project (if any).</li>
<li>Existing policy/regulations around data or notes the lack thereof.</li>
<li>The cities adherence to the International standards and providing an update on the current status of the Smart City programme.</li></ul>
<p> </p>
<h2 style="text-align: justify;">Singapore</h2>
<h3 style="text-align: justify;"><strong> </strong><strong>Introduction</strong></h3>
<p style="text-align: justify;"><strong> </strong>The Smart Nation programme in Singapore was launched on 24th November, 2014. The programme is being driven by the Infocomm Development Authority of Singapore, through which Singapore seeks to harness ICT, networks and data to support improved livelihoods, stronger communities and creation of new opportunities for its residents <a href="#_ftn4">[4]</a> According to the IDA, a Smart Nation is a city where <em>“people and businesses are empowered through increased access to data, more participatory through the contribution of innovative ideas and solutions, and a more anticipatory government that utilises technology to better serve citizens’ needs”</em> <a href="#_ftn5">[5]</a>. The Smart Nation programme is driven by a designated Office in the Prime Minister’s Office <a href="#_ftn6">[6]</a>. As a core component to the Smart Nation Programme, the Smart Nation Platform has been developed as the technical architecture to support the Programme. This Platform enables greater pervasive connectivity, better situational awareness through data collection, and efficient sharing and access to collected sensor data, allowing public bodies to use such data to develop policy and practical interventions <a href="#_ftn7">[7]</a> Such access would allow for anticipatory governance - a goal of the Smart Nation Programme as noted by Dr. Yaacob Ibrahim, Minister for Communications and Information stating “Insights gained from this data would enable us to better anticipate citizens’ needs and help in better delivery of services” <a href="#_ftn8">[8]</a>.</p>
<h3 style="text-align: justify;"><strong>Status of the Project</strong></h3>
<div style="text-align: justify;"><strong> </strong>The Smart Nation Programme is an ongoing initiative, being built on the past programme Intelligent Nation 2015 (iN2015 masterplan). The plan involves putting in place the infrastructure, policies, ecosystem and capabilities to enable a Smart Nation, by adopting a people-centric approach <a href="#_ftn9">[9]</a>. A number of co-creating solutions adopted by the Government include:</div>
<ul style="text-align: justify;">
<li>Development of Mobile Apps to facilitate communication between the public and the providers of public services.</li>
<li>Organization of Hackathons by government agencies or corporations in collaboration with schools and industry partners to ideate and develop solutions to tackle real-world challenges.</li>
<li>Adopt measure for smart mobility to create a more seamless transport experience and providing greater access to real-time transport information so that citizens can better plan their journeys.</li>
<li>Smart technologies are also being introduced to the housing estates <a href="#_ftn10">[10]</a>.</li></ul>
<h3 style="text-align: justify;"><strong>Policies and Regulations</strong></h3>
<p style="text-align: justify;"><strong> </strong>The Smart Nation plan derives its legitimacy from the constitution of Singapore, holding the Prime Minister responsible to take charge of the subject ‘Smart Nation’ blueprint under the Statutory body of ‘Smart Nation’ Programme Office <a href="#_ftn11">[11]</a>. Singapore has a comprehensive data protection law – the Personal Data Protection Act 2012, rules governing the collection, use, disclosure and care of personal data. The Personal Data Protection Commission of Singapore has committed to work closely with the private sector, and also to support the Smart Nation vision on data privacy and cyber security ecosystem <a href="#_ftn12">[12]</a> <a href="#_ftn13">[13]</a>.</p>
<p style="text-align: justify;">Towards achieving the Smart Nation vision the government has also promoted the use of open data. In 2015 the Department of Statistics has made a vast amount of data available (across multiple themes say transport, infocomm, population, etc.) for free to the public in order to encourage innovation and facilitate the Smart Nation <a href="#_ftn14">[14]</a>. Prior to this initiative, the government had adopted the Open Data Policy in 2011, enabling public data for analysis, research and application development <a href="#_ftn15">[15]</a>. The concept of Virtual Singapore, which is a part of the Smart Nation Initiative, has been developed to adopt and simulate solutions on a virtual platform using big data analytics <a href="#_ftn16">[16]</a>.</p>
<h3 style="text-align: justify;"><strong>Adoption of International Standards</strong></h3>
<p style="text-align: justify;"><strong> </strong>The Smart Nation initiative follows the standards laid under the purview of the Singapore Standards Council (SSC). It specifies three types of Internet of Things (IoT) Standards – sensor network standards (TR38 - for public areas & TR40 - for homes), IoT foundational standards (common set of guidelines for IoT requirements and architecture, information and service interoperability, security and data integrity) and domain-specific standards (healthcare, mobility, urban living, etc.) <a href="#_ftn17">[17]</a>.</p>
<p style="text-align: justify;">Singapore is part of ISO/IEC JTC 1/WG7 Sensor Networks and ISO/IEC JTC 1/WG10 Internet of Things (IoT) <a href="#_ftn18">[18]</a>. <a href="https://www.itsc.org.sg/standards/singapore-it-standards">Singapore IT standards</a> abides to the international standards as defined by ISO, ITU, etc.Singapore is a member of many international standards forums (see <a href="https://www.itsc.org.sg/international-participation/memberships-in-iso-iec-jtc1">Singapore International Standards Committee</a>) which includes JTC1/WG9 - Big Data; JTC1/WG10 - Internet of Things; JTC1/WG11 - Smart Cities.</p>
<p> </p>
<h2 style="text-align: justify;">Dubai, United Arab Emirates</h2>
<h3><strong> </strong><strong>Introduction</strong></h3>
<p style="text-align: justify;"><strong> </strong>The Dubai Smart City strategy was launched as part of the Dubai Plan 2021 vision, in the year 2015 <a href="#_ftn19">[19]</a>. Dubai Plan 2021 describes the future of Dubai evolving through holistic and complementary perspectives, starting with the people and the society and places the government as the custodian of the city’s development. Within the Plan, the smart city theme envisions a platform that is fully connected and integrated infrastructure that enables easy mobility for all residents and tourists, and provides easy access to all economic centers and social services, in line with the world’s best cities <a href="#_ftn20">[20]</a>. Center to the smart city platform is data and data analytics, particularly cross functional data and big data techniques to give a complete view of the city <a href="#_ftn21">[21]</a> As envisioned, the Dubai Data portal would provide a gateway to empower relevant stakeholders to understand the nuances of the city and pursue questions that will result in the greatest impact from the city’s data <a href="#_ftn22">[22]</a>. The platform will be based on current data and existing services, initiatives, and networks to identify opportunities for a smart city <a href="#_ftn23">[23]</a>. The Smart City Plan also includes a framework for aligning districts of Dubai with the Smart City vision and dimensions <a href="#_ftn24">[24]</a>.</p>
<p style="text-align: justify;">The Smart Dubai roadmap 2015 provides a consolidated report and planned smart city services, its status and the stage of its implementation, for e.g. Smart Grid, Mobile Payment, Smart Water, Health applications, Public Wi-Fi, Municipality, E-Traffic solutions, etc <a href="#_ftn25">[25]</a>.</p>
<h3 style="text-align: justify;"><strong>Status of the Project</strong></h3>
<p style="text-align: justify;"><strong> </strong>The Smart Dubai strategy is envisioned to be completed by the year 2020, and currently it’s ongoing. The first phase of Smart Dubai masterplan is expected to end by 2016. Between 2017 and 2019, the plan aims to deliver new initiatives and services. The second phase of the masterplan is expected to be completed by the year 2020 <a href="#_ftn26">[26]</a>.</p>
<h3 style="text-align: justify;"><strong>Policies and Regulations</strong></h3>
<p style="text-align: justify;">The Smart City Plan is being driven by the <strong>Dubai Smart City Office</strong> – which has been established under Law No. (29) of 2015 on the establishment of Dubai Smart City Office; Law No. (30) of 2015 on the establishment of Dubai Smart City Establishment; Decree No. (37) of 2015 on the formation of the Board of the Dubai Smart City Office; and Decree No (38) of 2015- appointing a Director General for the Office, which will develop overall policies and strategic plans, supervise the smart transformation process and approve joint initiatives, projects and services <a href="#_ftn27">[27]</a>. Also, an open data law called <strong>Dubai Open Data Law</strong> was issued to complete the legislative framework for transforming Dubai into a Smart City <a href="#_ftn28">[28]</a>. This law will enable the sharing of non-confidential data between public entities and other stakeholders.</p>
<h3 style="text-align: justify;"><strong>Adoption of International Standards</strong></h3>
<p style="text-align: justify;">In 2015 the Smart Dubai Executive Committee has collaborated through an agreement with the International Telecommunications Union (ITU) adopt the performance indicators by the ITU Focus Group on Smart Sustainable Cities to evaluate the feasibility of the indicators <a href="#_ftn29">[29]</a>. The Focus Group is working towards identifying global best practices for the development of smart cities <a href="#_ftn30">[30]</a>.</p>
<p> </p>
<h2 style="text-align: justify;">New York City, United States of America</h2>
<h3 style="text-align: justify;"><strong>Introduction</strong></h3>
<p style="text-align: justify;">The ‘One New York Plan’ announced in the year 2015 is a comprehensive plan for a sustainable and resilient city. It includes the adoption of digital technology and considers the importance of the role of data in transforming every aspect of the economy, communications, politics, and individual and family life <a href="#_ftn31">[31]</a>. Furthermore, through a publication on '<a href="http://www1.nyc.gov/site/forward/innovations/smartnyc.page">Building a Smart+Equitable City</a>', the Mayor’s Office of Technology and Innovation (MOTI) describes efforts to leverage new technologies to build Smart city.</p>
<p style="text-align: justify;">Accordingly, the plan seeks to establish better lives through establishing principles and strategic frameworks to guide connected device and Internet of Things (IoT) implementation; MOTI serving as the coordinating entity for new technology and IoT deployments across all City agencies; collaborating with academia and the private sector on innovative pilot projects, and partnering with municipal governments and organizations around the world to share best practices and leverage the impact of technological advancements <a href="#_ftn32">[32]</a>.</p>
<h3 style="text-align: justify;"><strong>Status of the Project</strong></h3>
<p style="text-align: justify;">OneNYC represents a unified vision for a sustainable, resilient, and equitable city developed with cross-cutting interagency collaboration, public engagement, and consultation with leading experts in their respective fields. The Mayor’s Office of Sustainability oversees the development of OneNYC and now shares responsibility with the Mayor’s Office of Recovery and Resiliency for ensuring its implementation <a href="#_ftn33">[33]</a>.</p>
<h3 style="text-align: justify;"><strong>Policies and Regulations</strong></h3>
<p style="text-align: justify;">As per the Local Law 11 of 2012, each City entity must identify and ultimately publish all of its digital public data for citywide aggregation and publication by 2018. In adherence to this law, there exists a NYC Open Data Plan which requires annual data updation <a href="#_ftn34">[34]</a>.</p>
<p style="text-align: justify;">The LinkNYC initiative, one of the key projects to make New York a ‘smart’ city, aims to connect everyone through a city wide wi-fi network. The LinkNYC initiative will retrofit payphones with kiosks to provide high-speed WiFi hotspots and charging stations for increased connectivity <a href="#_ftn35">[35]</a>. Data Privacy in the initiative is addressed through the customer first privacy policy, which considers user’s privacy on priority and will not sell any personal information or share with third parties for their own use. LinkNYC will use anonymized, aggregate data to make the system more efficient and to develop insights to improve your Link experience <a href="#_ftn36">[36]</a>.</p>
<h3 style="text-align: justify;"><strong>Adoption of International Standards</strong></h3>
<p style="text-align: justify;">The ANSI Network on Smart and Sustainable Cities (ANSSC) is a forum for information sharing and coordination on voluntary standards, conformity assessment and related activities for smart and sustainable cities in the US <a href="#_ftn37">[37]</a>. The US is a signatory of the ISO/ITU defined standards on smart cities <a href="#_ftn38">[38]</a>.</p>
<p> </p>
<h2 style="text-align: justify;">London, United Kingdom</h2>
<h3><strong>Introduction</strong></h3>
<p style="text-align: justify;">The Smart London Plan was unveiled in the year 2013 by the Mayor of London. The plan is being driven through the Greater London Authority, with the advice of the Smart London Board. The Smart London Plan envisions <em>‘Using the creative power of new technologies to serve London and improve Londoner’s lives</em>’ <a href="#_ftn39">[39]</a>. ‘Smart London’ is about harnessing new technology and data so that businesses, Londoners and visitors experience the city in a better way, and do not face bureaucratic hassle and congestion. Smart London seeks to improve the city as a whole and focuses on city macro functions that result from the interplay between city subsystems - such as local labour markets to financial markets, from local government to education, healthcare, transportation and utilities. According to strategy documents, a smarter London recognises and employs data as a service and will leverage data to enable informed decision making and the design of new activities.</p>
<h3 style="text-align: justify;"><strong>Status of the Project</strong></h3>
<p style="text-align: justify;">This project is currently ongoing. Since its formation in March 2013, the Smart London Board has been advising the Greater London Authority.The Plan sits within the overarching framework of the Mayor’s Vision 2020 <a href="#_ftn40">[40]</a>.</p>
<h3 style="text-align: justify;"><strong>Policies and Regulations</strong></h3>
<p style="text-align: justify;">The Smart London Plan incorporates the existing open data platform called ‘London DataStore’. The rules and guidelines for this platform are defined by the Greater London Authority, which includes working with public and private sector organisations to create, maintain and utilise it, enabling common data standards, identify and prioritise which data are needed to address London’s growth challenges, establish a Smart London Borough Partnership to encourage boroughs to free up London’s local level data. Also, privacy is protected and there is transparent use of data - to ensure data use is managed in the best interests of the public rather than private enterprise.<sup>42</sup> The Smart London Plan aims to build on this existing datastore to identify and publish data that addresses specific growth challenges, with an emphasis on working with companies and communities to create, maintain, and use this data <a href="#_ftn41">[41]</a>.</p>
<p style="text-align: justify;">The Open Data White Paper, issued by the Office of Paymaster General, seeks to build a transparent society by releasing public data through open data platforms and leveraging the potential of emerging technologies <a href="#_ftn42">[42]</a>. The Greater London Authority processes personal data in accordance with the Data Protection Act 1998 <a href="#_ftn43">[43]</a>.</p>
<h3 style="text-align: justify;"><strong>Adoption of International Standards</strong></h3>
<p style="text-align: justify;">The British Standards Institution (BSI) has already established Smart City standards and has associated with the ISO Advisory Group on smart city standards. The UK subscribes to the BSI standards for smart cities and has adopted the same <a href="#_ftn44">[44]</a>. The following standards and publications help address various issues for a city to become a smart city:</p>
<ul style="text-align: justify;">
<li>The development of a standard on <a href="http://www.bsigroup.com/en-GB/smart-cities/Smart-Cities-Standards-and-Publication/PAS-180-smart-cities-terminology/">Smart city terminology (PAS 180)</a></li>
<li>The development of a <a href="http://www.bsigroup.com/en-GB/smart-cities/Smart-Cities-Standards-and-Publication/PAS-181-smart-cities-framework/">Smart city framework standard (PAS 181)</a></li>
<li>The development of a <a href="http://www.bsigroup.com/en-GB/smart-cities/Smart-Cities-Standards-and-Publication/PAS-182-smart-cities-data-concept-model/">Data concept model for smart cities (PAS 182)</a></li>
<li>A <a href="http://www.bsigroup.com/en-GB/smart-cities/Smart-Cities-Standards-and-Publication/PD-8100-smart-cities-overview/">Smart city overview document (PD 8100)</a></li>
<li>A <a href="http://www.bsigroup.com/en-GB/smart-cities/Smart-Cities-Standards-and-Publication/PD-8101-smart-cities-planning-guidelines/">Smart city planning guidelines document (PD 8101)</a></li>
<li>BS 8904 Guidance for community sustainable development provides a decision-making framework that will help setting objectives in response to the needs and aspirations of city stakeholders</li>
<li>BS 11000 Collaborative relationship management</li>
<li>BSI BIP 2228:2013 Inclusive urban design - A guide to creating accessible public spaces.</li></ul>
<p style="text-align: justify;">Further, the Smart London Plan incorporates open data standards in accordance with London DataStore <a href="#_ftn45">[45]</a>. Various government reports – Smart Cities background paper, Open Data White Paper, etc., have suggested the use of standards related to Internet of Things (IoT), open data standards, etc <a href="#_ftn46">[46]</a>.</p>
<p> </p>
<h2 style="text-align: justify;">Seoul, Korea</h2>
<h3 style="text-align: justify;"><strong>Introduction</strong></h3>
<p style="text-align: justify;"><strong></strong>Smart Seoul 2015 was announced in June 2011 by the Seoul Metropolitan Government, which envisions integrating IT services into every field, including administration, welfare, industry and living. Through this, the Seoul Metropolitan Government plans to create a Seoul that uses smart technologies by 2015 <a href="#_ftn47">[47]</a>. Towards this, the Seoul Metropolitan Government plans to make use of Big Data in policy development, and through scientific analytics, will provide customized administrative services and reduce wasteful spending. Also, the government is utilising Big Data to analyse trends emerging from existing services <a href="#_ftn48">[48]</a>. Examples of projects that leverage big data that the government has undertaken include the Taxi Matchmaking Project – analyzes the data related to taxi stands and passengers, the Owl Bus <a href="#_ftn49">[49]</a> - maps the bus routes, etc.</p>
<h3 style="text-align: justify;"><strong>Status of the Project</strong></h3>
<p style="text-align: justify;"><strong></strong>Building on the Smart Seoul 2015, the Seoul Metropolitan Government plans to establish 'Global Digital Seoul 2020 – New Connections, Different Experiences' vision in next five-years. In this multi-objective plan, it aims to establish a ’Big Data campus’ providing win-win cooperation among public, private, industry and university <a href="#_ftn50">[50]</a>.</p>
<h3 style="text-align: justify;"><strong>Policies and Regulations </strong></h3>
<p style="text-align: justify;"><strong></strong>The Smart Seoul 2015 aims to create a ‘Seoul Data Mart’, which will be an open platform that makes public information available for data processing <a href="#_ftn51">[51]</a>. Furthermore, Seoul has opened the Seoul Open Data Plaza <a href="#_ftn52">[52]</a>, an online channel to share and provide citizens with all of Seoul’s public data, such as real-time bus operation schedules, subway schedules, non-smoking areas, locations of public Wi-Fi services, shoeshine shops, and facilities for disabled people, and the information registered in Seoul Open Data Plaza is provided in the open API format.<sup>45</sup></p>
<p style="text-align: justify;">South Korea has a comprehensive law governing data privacy – Personal Information Protection Act, 2011. The law includes data protection rules and principles, including obligations on the data controller and the consent of data subjects, rights to access personal data or object to its collection, and security requirements. It also covers cookies and spam, data processing by third parties and the international transfer of data <a href="#_ftn53">[53]</a>.</p>
<h3 style="text-align: justify;"><strong>International Standards</strong></h3>
<p style="text-align: justify;"><strong></strong>The smart city standards are adopted in the development of smart cities in Korea <a href="#_ftn54">[54]</a>. Korea has adopted the ISO/TC 268, which is focused on sustainable development in communities. Korea also has one working group developing city indicators and another working group developing metrics for smart community infrastructures <a href="#_ftn55">[55]</a>.</p>
<p> </p>
<h2>Conclusion</h2>
<p style="text-align: justify;">The smart city projects studied are at different levels of implementation and have both similarities and differences. Below is an analysis of some of the key similarities and differences between smart city projects, a comparison of these points to India’s 100 Smart City Mission, and a summary of best practices around the development of smart city frameworks.</p>
<h3><strong>Nodal Agency</strong></h3>
<p style="text-align: justify;">All cities studied have nodal agencies driving the smart city initiatives and many have policies in place backing these initiatives. For example, while the Smart Nation programme in Singapore is being driven by the Infocomm Development Authority, in London the smart city project is governed by the Great London Authority. The Smart Seoul Project in Korea is governed by the Seoul Metropolitan Government and New York has the Mayor’s Office of Technology and Innovation serving as the coordinating entity for new technology and IoT deployments across all City agencies. In India, the nodal agency driving the 100 Smart Cities Project is the Ministry of Urban Development under the Indian Government. In India, the implementation of the Mission at the City level will be done by a Special Purpose Vehicle (SPV), which will be a limited company and will plan, appraise, approve, release funds, implement, manage, operate, monitor and evaluate the Smart City development projects.</p>
<h3><strong>Policies</strong></h3>
<p style="text-align: justify;">Many of the cities had open data policies and data protection policies that pertain to the Smart City initiatives. In Dubai, an open data law called Dubai Open Data Law has been issued to complete the legislative framework for transforming Dubai into a Smart City and the Smart City Establishment will develop policies for the project. New York also has an Open Data Plan in place and LinkNYC will use anonymized, aggregate data to address data privacy of users. In London, the Smart London Plan incorporates the existing open data platform called ‘London DataStore’, the rules for which are defined by the Greater London Authority, which also ensures privacy and transparent use of data by processing personal data in accordance with the Data Protection Act 1998. For regulation of data in Seoul, a ‘Seoul Data Mart’ will be established to make public information available for data processing and the Seoul Open Data Plaza is an existing online channel to share and provide citizens with all of Seoul’s public data. South Korea has a comprehensive law governing data privacy in place as well. In Singapore, the Personal Data Protection Commission has committed to work and support the Smart Nation vision on data privacy and cyber security ecosystem. To achieve the vision of the project, the government has also promoted the use of open data. It can be said the these countries , with clearly laid out policies to support and guide the project, have well planned ecosystem for regulation and governance of systems, technologies and cities. All cities have incorporated open data into smart cities and many have developed guidelines for its use. All cities have similar goals of enhancing the lives of citizens and developing anticipatory regulation, however, there appears to be little discussion on the need to amend existing law or enable new law around privacy and data protection in light of data collection through smart cities. In India, no enabling legislation or policy has been formulated by the Government, apart from releasing “Mission Statement and Guidelines”, which provides details about the Project and vision, excluding a definition of a ‘smart city’ or the relevant applicable laws and policies. No information is publicly available regarding deployment of open data, use of specific technologies like cloud, big data, etc., the relevant policies and applicability of laws. Unlike India, all cities recognize the importance of big data techniques in enabling smart city visions, technology and policies. On the lines of these cities, India must work towards addressing the need for an open data framework in light of the 100 Smart Cities Mission to enable the sharing of non-confidential data between public entities and other stakeholders. This requires co-ordination to incorporate, enable and draw upon open data architecture in the cities by the Government with the existing open data framework in India, like the National Data Sharing and Accessibility Policy, 2012. Use of technology in the form of IoT and Big Data entails access to open data, bringing another policy area in its ambit which needs consideration. Also, identification and development of open standards for IoT must be looked at. Also, as data in smart cities will be generated, collected, used, and shared by both the public and private sector. It is essential that India’s existing data protection standards and regime must be amended to extend the data regulation beyond a body corporate and oversee the collection and use of data by the Government, and its agencies.</p>
<h3><strong>Standards</strong></h3>
<p style="text-align: justify;">In Singapore, the Smart Nation initiative follows the standards laid under the purview of the Singapore Standards Council (SSC)and the <a href="https://www.itsc.org.sg/standards/singapore-it-standards">Singapore IT standards</a> abides to the international standards as defined by ISO, ITU, etc. The Country is also a member of many international standards forums (see <a href="https://www.itsc.org.sg/international-participation/memberships-in-iso-iec-jtc1">Singapore International Standards Committee</a>) which includes JTC1/WG9- Big Data; JTC1/WG10 - Internet of Things; JTC1/WG11 - Smart Cities. In Dubai, the Smart Dubai Executive Committee with the International Telecommunications Union (ITU) to adopt the performance indicators by the ITU Focus Group on Smart Sustainable Cities to evaluate the feasibility of the indicators. For the purpose of standards, the ANSI Network on Smart and Sustainable Cities (ANSSC) in New York is a forum smart and sustainable cities, along with US being a signatory of the ISO/ITU defined standards on smart cities. Also, The British Standards Institution (BSI) has already established Smart City standards and has associated with the ISO Advisory Group on smart city standards. The UK subscribes to the BSI standards for smart cities and has adopted the same and the Smart London Plan incorporates open data standards in accordance with London DataStore. For development of smart cities, Korea has adopted the ISO/TC 268, which is focused on sustainable development in communities and also has one working group developing city indicators and another working group developing metrics for smart community infrastructures. However, in India, the Bureau of Indian Standards (BIS) has undertaken the task to formulate standardised guidelines for central and state authorities in planning, design and construction of smart cities by setting up a technical committee under the Civil engineering department of the Bureau. However, adoption of the standards by implementing agencies would be voluntary and intends to complement internationally available documents in this area. Also, The Global Cities Institute (GCI) has undertaken a mission in the year 2015 to align with the Bureau of Indian Standards regarding development of standards of smart cities and also to forge relationships with Indian cities in light of ISO 37120. It can be said that India has currently not yet adopted international standards, but is in the process of developing national standards and adopting key international standards. Unlike other cities,which are adopting standards - national, ISO, or ITU, Indian cities are yet to adopt standards for regulation of the future smart cities.</p>
<h3><strong>Notes for India</strong></h3>
<p style="text-align: justify;">India is in the nascent stages of developing smart cities across the country. Drawing from the practices adopted by cities across the world, smart cities in India should adopt strong regulatory and governance frameworks regarding technical standards, open data and data security and data protection policies. These policies will be essential in ensuring the sustainability and efficiency of smart cities while safeguarding individual rights. Some of these policies are already in place - such as India’s Open Data Policy and India’s data protection standards under section 43A of the ITA. It will be important to see how these policies are adopted and applied to the context of smart cities.</p>
<p> </p>
<h2>References</h2>
<p><a name="_ftn1">[1]</a> Smart Cities and Transparent Evolution, <a href="http://www.posterheroes.org/Posterheroes3/_mat/PH3_eng.pdf">http://www.posterheroes.org/Posterheroes3/_mat/PH3_eng.pdf</a>.</p>
<p><a name="_ftn2">[2]</a> "Data, Data Everywhere." The Economist, February 25, 2010. Accessed March 17, 2016, <a href="http://www.economist.com/node/15557443">http://www.economist.com/node/15557443</a>.</p>
<p><a name="_ftn3">[3]</a> "Smart Cities." ISO. 2015. Accessed March 17, 2016, <a href="http://www.iso.org/iso/smart_cities_report-jtc1.pdf">http://www.iso.org/iso/smart_cities_report-jtc1.pdf</a>.</p>
<p><a name="_ftn4">[4]</a> Transcript of Prime Minister Lee Hsien Loong's speech at Smart Nation launch on 24 November, <a href="http://www.pmo.gov.sg/mediacentre/transcript-prime-minister-lee-hsien-loongs-speech-smart-nation-launch-24-november">http://www.pmo.gov.sg/mediacentre/transcript-prime-minister-lee-hsien-loongs-speech-smart-nation-launch-24-november</a>.</p>
<p><a name="_ftn5">[5]</a> Smart Nation Vision, <a href="https://www.ida.gov.sg/Tech-Scene-News/Smart-Nation-Vision">https://www.ida.gov.sg/Tech-Scene-News/Smart-Nation-Vision</a>.</p>
<p><a name="_ftn6">[6]</a> Smart Nation, <a href="http://www.pmo.gov.sg/smartnation">http://www.pmo.gov.sg/smartnation</a>.</p>
<p><a name="_ftn7">[7]</a> Smart Nation Platform, <a href="https://www.ida.gov.sg/~/media/Files/About%20Us/Newsroom/Media%20Releases/2014/0617_smartnation/AnnexA_sn.pdf">https://www.ida.gov.sg/~/media/Files/About%20Us/Newsroom/Media%20Releases/2014/0617_smartnation/AnnexA_sn.pdf</a>.</p>
<p><a name="_ftn8">[8]</a> Transcript of Prime Minister Lee Hsien Loong's speech at Smart Nation launch on 24 November, <a href="https://www.ida.gov.sg/blog/insg/featured/singapore-lays-groundwork-to-be-worlds-first-smart-nation/">https://www.ida.gov.sg/blog/insg/featured/singapore-lays-groundwork-to-be-worlds-first-smart-nation/</a>.</p>
<p><a name="_ftn9">[9]</a> Prime Ministers’ Office Singapore-Smart Nation, <a href="http://www.pmo.gov.sg/smartnation">http://www.pmo.gov.sg/smartnation</a>.</p>
<p><a name="_ftn10">[10]</a> Prime Ministers’ Office Singapore-Smart Nation, <a href="http://www.pmo.gov.sg/smartnation">http://www.pmo.gov.sg/smartnation</a>.</p>
<p><a name="_ftn11">[11]</a> Constitution of the Republic of Singapore (Responsibility of the Prime Minister) Notification 2015, <a href="http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=Status%3Acurinforce%20Type%3Aact,sl%20Content%3A%22smart%22;rec=4;resUrl=http%3A%2F%2Fstatutes.agc.gov.sg%2Faol%2Fsearch%2Fsummary%2Fresults.w3p%3Bquery%3DStatus%253Acurinforce%2520Type%253Aact,sl%2520Content%253A%2522smart%2522;whole=yes">http://statutes.agc.gov.sg/aol/search/display/view.w3p;page=0;query=Status%3Acurinforce%20Type%3Aact,sl%20Content%3A%22smart%22;rec=4;resUrl=http%3A%2F%2Fstatutes.agc.gov.sg%2Faol%2Fsearch%2Fsummary%2Fresults.w3p%3Bquery%3DStatus%253Acurinforce%2520Type%253Aact,sl%2520Content%253A%2522smart%2522;whole=yes</a>.</p>
<p><a name="_ftn12">[12]</a> Personal Data Protection Singapore-Annual Report 2014-15, <a href="https://www.pdpc.gov.sg/docs/default-source/Reports/pdpc-ar-fy14---online.pdf">https://www.pdpc.gov.sg/docs/default-source/Reports/pdpc-ar-fy14---online.pdf</a>.</p>
<p><a name="_ftn13">[13]</a> Balancing Innovation and Personal Data Protection, <a href="https://www.ida.gov.sg/Tech-Scene-News/Tech-News/Digital-Government/2015/9/Balancing-innovation-and-personal-data-protection">https://www.ida.gov.sg/Tech-Scene-News/Tech-News/Digital-Government/2015/9/Balancing-innovation-and-personal-data-protection</a>.</p>
<p><a name="_ftn14">[14]</a> Department of Statistics Singapore- Free Access to More Data on the SingStat Website from 1 March 2015, <a href="http://www.singstat.gov.sg/docs/default-source/default-document-library/news/press_releases/press27022015.pdf">http://www.singstat.gov.sg/docs/default-source/default-document-library/news/press_releases/press27022015.pdf</a>.</p>
<p><a name="_ftn15">[15]</a> Singapore Marks 50th Birthday With Open Data Contest, <a href="https://blog.hootsuite.com/singapore-open-data/">https://blog.hootsuite.com/singapore-open-data/</a>.</p>
<p><a name="_ftn16">[16]</a> Virtual Singapore - a 3D city model platform for knowledge sharing and community collaboration, <a href="http://www.sla.gov.sg/News/tabid/142/articleid/572/category/Press%20Releases/parentId/97/year/2014/Default.aspx">http://www.sla.gov.sg/News/tabid/142/articleid/572/category/Press%20Releases/parentId/97/year/2014/Default.aspx</a>.</p>
<p><a name="_ftn17">[17]</a> Internet of Things (IoT) Standards Outline to Support Smart Nation Initiative Unveiled, <a href="http://www.spring.gov.sg/NewsEvents/PR/Pages/Internet-of-Things-(IoT)-Standards-Outline-to-Support-Smart-Nation-Initiative-Unveiled-20150812.aspx">http://www.spring.gov.sg/NewsEvents/PR/Pages/Internet-of-Things-(IoT)-Standards-Outline-to-Support-Smart-Nation-Initiative-Unveiled-20150812.aspx</a>.</p>
<p><a name="_ftn18">[18]</a> Information Technology Standards Committee, <a href="https://www.itsc.org.sg/technical-committees/internet-of-things-technical-committee-iottc">https://www.itsc.org.sg/technical-committees/internet-of-things-technical-committee-iottc</a> and <a href="https://www.ida.gov.sg/~/media/Files/Infocomm%20Landscape/iN2015/Reports/realisingthevisionin2015.pdf">https://www.ida.gov.sg/~/media/Files/Infocomm%20Landscape/iN2015/Reports/realisingthevisionin2015.pdf</a>.</p>
<p><a name="_ftn19">[19]</a> Government of Dubai-2021 Dubai Plan-Purpose, <a href="http://www.dubaiplan2021.ae/the-purpose/">http://www.dubaiplan2021.ae/the-purpose/</a>.</p>
<p style="text-align: justify;"><a name="_ftn20">[20]</a> Government of Dubai-2021 Dubai Plan, <a href="http://www.dubaiplan2021.ae/dubai-plan-2021/">http://www.dubaiplan2021.ae/dubai-plan-2021/</a>.</p>
<p><a name="_ftn21">[21]</a> Smart Dubai, <a href="http://www.smartdubai.ae/foundation_layers.php">http://www.smartdubai.ae/foundation_layers.php</a>.</p>
<p><a name="_ftn22">[22]</a> The Internet of Things: Connections for People’s happiness, <a href="http://www.smartdubai.ae/story021002.php">http://www.smartdubai.ae/story021002.php</a>.</p>
<p><a name="_ftn23">[23]</a> Smart Dubai - Current State, <a href="http://www.smartdubai.ae/current_state.php">http://www.smartdubai.ae/current_state.php</a>.</p>
<p><a name="_ftn24">[24]</a> Smart Dubai - District Guidelines, <a href="http://smartdubai.ae/districtguidelines/Smart_Dubai_District_Guidelines_Public_Brief.pdf">http://smartdubai.ae/districtguidelines/Smart_Dubai_District_Guidelines_Public_Brief.pdf</a>.</p>
<p><a name="_ftn25">[25]</a> See; <a href="http://roadmap.smartdubai.ae/search-services-public.php">http://roadmap.smartdubai.ae/search-services-public.php</a> and <a href="http://roadmap.smartdubai.ae/search-initiatives-public.php">http://roadmap.smartdubai.ae/search-initiatives-public.php</a>.</p>
<p><a name="_ftn26">[26]</a> Smart Dubai-Smart District Guidelines, <a href="http://smartdubai.ae/districtguidelines/Smart_Dubai_District_Guidelines_Public_Brief.pdf">http://smartdubai.ae/districtguidelines/Smart_Dubai_District_Guidelines_Public_Brief.pdf</a>.</p>
<p><a name="_ftn27">[27]</a> Dubai Ruler issues new laws to further enhance the organisational structure and legal framework of Dubai Smart City, <a href="https://www.wam.ae/en/news/emirates/1395288828473.html">https://www.wam.ae/en/news/emirates/1395288828473.html</a>.</p>
<p><a name="_ftn28">[28]</a> See: <a href="http://slc.dubai.gov.ae/en/AboutDepartment/News/Lists/NewsCentre/DispForm.aspx?ID=147&ContentTypeId=0x01001D47EB13C23E544893300E8367A23439">http://slc.dubai.gov.ae/en/AboutDepartment/News/Lists/NewsCentre/DispForm.aspx?ID=147&ContentTypeId=0x01001D47EB13C23E544893300E8367A23439</a> and <a href="http://www.smartdubai.ae/dubai_data.php">http://www.smartdubai.ae/dubai_data.php</a>.</p>
<p><a name="_ftn29">[29]</a> Dubai first city to trial ITU key performance indicators for smart sustainable cities, <a href="http://www.itu.int/net/pressoffice/press_releases/2015/12.aspx#.VtaYtlt97IU">http://www.itu.int/net/pressoffice/press_releases/2015/12.aspx#.VtaYtlt97IU</a>.</p>
<p><a name="_ftn30">[30]</a> Smart Dubai Benchmark Report 2015 Executive Summary, <a href="http://smartdubai.ae/bmr2015/methodology-public.php">http://smartdubai.ae/bmr2015/methodology-public.php</a>.</p>
<p><a name="_ftn31">[31]</a> Building a Smart + Equitable City, <a href="http://www1.nyc.gov/assets/forward/documents/NYC-Smart-Equitable-City-Final.pdf">http://www1.nyc.gov/assets/forward/documents/NYC-Smart-Equitable-City-Final.pdf</a></p>
<p><a name="_ftn32">[32]</a> Building a Smart + Equitable City, <a href="http://www1.nyc.gov/site/forward/innovations/smartnyc.page">http://www1.nyc.gov/site/forward/innovations/smartnyc.page</a>.</p>
<p><a name="_ftn33">[33]</a> One New York: The Plan for a Strong and Just City, <a href="http://www1.nyc.gov/html/onenyc/about.html">http://www1.nyc.gov/html/onenyc/about.html</a></p>
<p><a name="_ftn34">[34]</a> Open Data for All, <a href="http://www1.nyc.gov/assets/home/downloads/pdf/reports/2015/NYC-Open-Data-Plan-2015.pdf">http://www1.nyc.gov/assets/home/downloads/pdf/reports/2015/NYC-Open-Data-Plan-2015.pdf</a>.</p>
<p><a name="_ftn35">[35]</a> 7 public projects that are turning New York into a “smart city”, <a href="http://www.builtinnyc.com/2015/11/24/7-projects-are-turning-new-york-futuristic-technology-hub">http://www.builtinnyc.com/2015/11/24/7-projects-are-turning-new-york-futuristic-technology-hub</a>.</p>
<p><a name="_ftn36">[36]</a> LinkNYC, <a href="https://www.link.nyc/faq.html#privacy">https://www.link.nyc/faq.html#privacy</a>.</p>
<p><a name="_ftn37">[7]</a> ANSI Network on Smart and Sustainable Cities, <a href="http://www.ansi.org/standards_activities/standards_boards_panels/anssc/overview.aspx?menuid=3">http://www.ansi.org/standards_activities/standards_boards_panels/anssc/overview.aspx?menuid=3</a></p>
<p><a name="_ftn38">[38]</a> IoT-Enabled Smart City Framework, <a href="http://publicaa.ansi.org/sites/apdl/Documents/News%20and%20Publications/Links%20Within%20Stories/IoT-EnabledSmartCityFrameworkWP20160213.pdf">http://publicaa.ansi.org/sites/apdl/Documents/News%20and%20Publications/Links%20Within%20Stories/IoT-EnabledSmartCityFrameworkWP20160213.pdf</a>.</p>
<p><a name="_ftn39">[39]</a> Smart London (UK) Plan: Digital Technologies, London and Londoners, <a href="http://munkschool.utoronto.ca/ipl/files/2015/03/KleinmanM_Smart-London-UK-v5_30AP2015.pdf">http://munkschool.utoronto.ca/ipl/files/2015/03/KleinmanM_Smart-London-UK-v5_30AP2015.pdf</a>.</p>
<p><a name="_ftn40">[40]</a> Smart London Plan, <a href="http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf">http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf</a>.</p>
<p><a name="_ftn41">[41]</a> Smart London Plan, <a href="http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf">http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf</a>.</p>
<p><a name="_ftn42">[42]</a> Open Data White Paper, <a href="https://data.gov.uk/sites/default/files/Open_data_White_Paper.pdf">https://data.gov.uk/sites/default/files/Open_data_White_Paper.pdf</a>.</p>
<p><a name="_ftn43">[43]</a> London Datastore-Privacy, <a href="http://data.london.gov.uk/about/privacy/">http://data.london.gov.uk/about/privacy/</a>.</p>
<p><a name="_ftn44">[44]</a> Future Cities Standards Centre in London, <a href="https://eu-smartcities.eu/commitment/5937">https://eu-smartcities.eu/commitment/5937</a>.</p>
<p><a name="_ftn45">[45]</a> Smart London Plan, <a href="http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf">http://www.london.gov.uk/sites/default/files/smart_london_plan.pdf</a>.</p>
<p><a name="_ftn46">[46]</a> Smart Cities background paper, October 2013, <a href="https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/246019/bis-13-1209-smart-cities-background-paper-digital.pdf">https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/246019/bis-13-1209-smart-cities-background-paper-digital.pdf</a>.</p>
<p><a name="_ftn47">[47]</a> Presentation of 2015 Blueprint of Seoul as ‘State-of-the-art Smart City’, <a href="http://english.seoul.go.kr/presentation-of-2015-blueprint-of-seoul-as-%E2%80%98state-of-the-art-smart-city%E2%80%99/">http://english.seoul.go.kr/presentation-of-2015-blueprint-of-seoul-as-%E2%80%98state-of-the-art-smart-city%E2%80%99/</a>.</p>
<p><a name="_ftn48">[48]</a> “Policy Where There is Demand,” Seoul Utilizes Big Data, <a href="http://english.seoul.go.kr/policy-demand-seoul-utilizes-big-data/">http://english.seoul.go.kr/policy-demand-seoul-utilizes-big-data/</a></p>
<p><a name="_ftn49">[49]</a> Seoul’s “Owl Bus” Based on Big Data Technology, <a href="http://www.citiesalliance.org/sites/citiesalliance.org/files/Seoul-Owl-Bus-11052014.pdf">http://www.citiesalliance.org/sites/citiesalliance.org/files/Seoul-Owl-Bus-11052014.pdf</a></p>
<p><a name="_ftn50">[50]</a> Seoul Launches “Global Digital Seoul 2020”, <a href="http://english.seoul.go.kr/seoul-launches-global-digital-seoul-2020/">http://english.seoul.go.kr/seoul-launches-global-digital-seoul-2020/</a></p>
<p><a name="_ftn51">[51]</a> Smart Seoul 2015, <a href="http://english.seoul.go.kr/wp-content/uploads/2014/02/SMART_SEOUL_2015_41.pdf">http://english.seoul.go.kr/wp-content/uploads/2014/02/SMART_SEOUL_2015_41.pdf</a></p>
<p><a name="_ftn52">[52]</a> Disclosing public data through the Seoul Open Data Plaza, <a href="http://english.seoul.go.kr/policy-information/key-policies/informatization/seoul-open-data-plaza/">http://english.seoul.go.kr/policy-information/key-policies/informatization/seoul-open-data-plaza/</a></p>
<p><a name="_ftn53">[53]</a> Data protection in South Korea: overview, <a href="http://uk.practicallaw.com/2-579-7926">http://uk.practicallaw.com/2-579-7926</a>.</p>
<p><a name="_ftn54">[54]</a>Smart Cities Seoul: a case study, <a href="https://www.itu.int/dms_pub/itu-t/oth/23/01/T23010000190001PDFE.pdf">https://www.itu.int/dms_pub/itu-t/oth/23/01/T23010000190001PDFE.pdf</a></p>
<p><a name="_ftn55">[55]</a> Smart Cities-ISO, <a href="http://www.iso.org/iso/livelinkgetfile-isocs?nodeid=16193764">http://www.iso.org/iso/livelinkgetfile-isocs?nodeid=16193764</a>.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/policies-and-standards-overview-of-five-international-smart-cities'>http://editors.cis-india.org/internet-governance/blog/policies-and-standards-overview-of-five-international-smart-cities</a>
</p>
No publisherKiran A. B., Elonnai Hickok and Vanya RakeshBig DataInternet GovernanceFeaturedSmart CitiesPoliciesHomepage2016-06-11T13:29:04ZBlog EntryComments on the National Geospatial Policy (Draft, V.1.0), 2016
http://editors.cis-india.org/openness/comments-on-the-national-geospatial-policy-draft-v-1-0-2016
<b>The Department of Science and Technology published the first public draft of the National Geospatial Policy (v.1.0) on May 05, 2016, and invited comments from the public. CIS submitted the following comments in response. The comments were authored by Adya Garg, Anubha Sinha, and Sumandro Chattapadhyay.</b>
<p> </p>
<h2>1. Preliminary</h2>
<p><strong>1.1.</strong> This submission presents comments and recommendations by the Centre for Internet and Society (<strong>"CIS"</strong>) on the proposed draft of the National Geospatial Policy 2016 (<strong>"the draft Policy / the draft NGP"</strong>) <strong>[1]</strong>. This submission is based on Version 1.0 of the draft Policy released by the Department of Science and Technology (<strong>"DST"</strong>) on May 5, 2016.</p>
<p><strong>1.2.</strong> CIS commends the DST under the aegis of the Ministry of Science and Technology, Government of India, for its efforts at seeking inputs from various stakeholders to draft a National Geospatial Policy. CIS is thankful for this opportunity to provide a clause-by-clause submission.</p>
<h2>2. The Centre for Internet and Society</h2>
<p><strong>2.1.</strong> The Centre for Internet and Society, CIS, <strong>[2]</strong> is a non-profit organisation that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, digital privacy, and cyber-security. The academic research at CIS seeks to understand the reconfiguration of social processes and structures through the internet and digital media technologies, and vice versa.</p>
<p><strong>2.2.</strong> This submission is consistent with CIS’ commitment to safeguarding general public interest, and the interests and rights of various stakeholders involved. The comments in this submission aim to further the principle of citizens’ right to information, instituting openness-by-default in governmental activities, and the various kinds of public goods that can emerge from greater availability of open (geospatial) data created by both public and private agencies and crucially, by the citizens. The submission is limited to those clauses that most directly have an impact on these principles.</p>
<h2>3. Comments and Recommendations</h2>
<p><em>This section presents comments and recommendations directed at the draft policy as a whole, and in certain places, directed at specific clauses of the draft policy.</em></p>
<p><strong>3.1.</strong> The draft policy should make references to five policies applicable to geospatial data, products, services, and solutions</p>
<p><strong>3.1.1.</strong> CIS observes that the draft policy lists the key policies related to geospatial information and sharing of government data, namely the National Map Policy 2005, the Civil Aviation Requirement 2012, the Remote Sensing Data Policy 2011 and 2012, and the National Data Sharing and Accessibility Policy 2012 (“NDSAP”).</p>
<p><strong>3.1.2.</strong> CIS submits that apart from the policies mentioned above, Geospatial Data,Products, Services and Solutions (“GDPSS”) are also intricately linked to concepts of “open standards,” “open source software,” “open API,” “right to information,” and prohibited places” These concepts are governed by specific acts and policies, and are applicable to geospatial data, as follows:</p>
<ul><li>Adoption of Open Standards: CIS observes that the draft policy captures the importance of open standards in the section 1.4 of the draft policy. It states that “A very high resolution and highly accurate framework to function as a national geospatial standard for all geo-referencing activity through periodically updated National Geospatial Frame [NGF] and National Image Frame [NIF] by ensuring open standards based seamless interoperable geospatial data.”<br /><br />CIS submits that the Policy on Open Standards for e-Governance <strong>[3]</strong> which establishes the Guidelines for usage of open standards to ensure seamless interoperability, and the Implementation Guidelines of the National Data Sharing and Accessibility Policy, 2012 <strong>[4]</strong> listing two key open standards for geospatial data - KML and GML, should be mentioned in the draft policy.<br /><br />CIS recommends that the final version of the NGP embrace open standards as a key principle of all software projects and infrastructures within the purview of the Policy. This is essential for easier sharing and reuse of open (geospatial) data.<br /><br /></li>
<li>Adoption of Open Source Software: The Policy on Adoption of Open Source Software for Government of India states that the “Government of India shall endeavour to adopt Open Source Software in all e-Governance systems implemented by various Government organisations, as a preferred option in comparison to Closed Source Software” <strong>[5]</strong>. As the draft policy proposed to guide the development of GDPSS being developed and implemented both by the Government of India and by other agencies (academic, commercial, and otherwise), it must include an explicit reference and embracing of this mandate for adoption of Open Source Software, for reasons of reducing expenses, avoiding vendor lock-ins, re-usability of software components, enabling public accountability, and greater security of software systems.<br /><br /></li>
<li>Implementation of Open APIs: To actualise the stated principle to “[e]nable promotion, adoption and implementation of emerging / state of the art technologies” as well as to ensure the “[a]vailability of all geospatial data collected through public funded mechanism to all users,” CIS suggests that final version of the NGP must refer to and operationalise the Policy on Open Application Programming Interfaces (APIs) for Government of India <strong>[6]</strong>. This will ensure that the openly available geospatial data is available to the public, as well as to all the government agencies, in a structured digital format that is easy to consume and use on one hand, and is available for various forms of value addition and innovation on the other.<br /><br /></li>
<li>Right to Information Act 2005: The framework for reactive disclosure of information and data collected and held by the Government of India, as well as the basis for proactive disclosure of the same, is enshrined in the Right to Information Act 2005 <strong>[7]</strong>. The draft NGP, CIS proposes, should refer to this Act, and ensure that whenever an Indian citizen request for such government data and/or information that is of geospatial in nature, and the requested data and/or information is both shareable and non-sensitive, the citizen must be provided with the geospatial data and/or information in an open standard and under open license, as applicable.<br /><br /></li>
<li>Refer to Official Secrets Act, 1923: The Official Secrets Act defines “Prohibited Places” and prohibits all activities involving “sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly; or indirectly, useful to an enemy or (c) obtains collects, records or publishes or communicates to any other person any secret official code or password, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy” <strong>[8]</strong>. This provides the fundamental legal basis for regulation, expunging, and stopping circulation of geospatial data containing information about Vulnerable Points and Vulnerable Areas. CIS submits that this Act should be referred to in this context of ensuring non-publication of sensitive geospatial data (that is geospatial data related to Prohibited Places).<br /><br /></li></ul>
<h3>3.2. Grant adequate permissions to the public to re-use geospatial data</h3>
<p><strong>3.2.1.</strong> CIS observes that section 1.4 of the draft policy states that, “Geospatial data of any resolution being disseminated through agencies and service providers, both internationally and nationally be treated as unclassified and made available and accessible by Indian Mapping and imaging agencies.”</p>
<p><strong>3.2.2.</strong> CIS recommends the abovementioned section be broadened to include not only availability and accessibility of geospatial data, but also its re-use. Further, such accessibility, availability and re-use should not be only limited to public and private entities such as Indian mapping and imaging agencies, but as well as to Indian people in general.</p>
<p><strong>3.2.3.</strong> CIS further submits that section 1.4 be revised as “[g]eospatial data of any resolution being disseminated through agencies and service providers, both internationally and nationally be treated as unclassified and made available, accessible, and reusable by Indian mapping and imaging agencies in particular, and by the people of India in general.”</p>
<h3>3.3. Ensure Open Access to shareable and non-sensitive geospatial data</h3>
<p><strong>3.3.1.</strong> CIS observes that the draft policy directs all “geospatial data generating agencies” to classify their data into “open access,” “registered access,” and “restricted access.” The document, however, neither defines “geospatial data generating agencies”, nor does it clarify what conditions the data must satisfy to be classified as one of the three types. Without a listing of such conditions (at least necessary, and not sufficient, conditions), nothing restricts the agencies from classifying all generated geospatial data as “restricted.”</p>
<p><strong>3.3.2.</strong> Further, CIS observes that the draft policy aims to provide geospatial data acquired through public funded mechanism to be made available to the public at free of cost. It is submitted that the policy should not only be made available for free of cost, but it should also be made available in open standard format under an open license.</p>
<p><strong>3.3.3.</strong> As defined in the section 1.3, the National Data Sharing and Accessibility Policy (“NDSAP”) applies to “all shareable non-sensitive data available either in digital or analog forms but generated using public funds” <strong>[9]</strong>. Clearly all shareable <strong>[10]</strong> and non-sensitive <strong>[11]</strong> geospatial data, either in digital or analog forms, and generated using public funds should be proactively disclosed by the government agency concerns in accordance to the NDSAP. CIS recommends that the draft policy makes an explicit reference to NDSAP when discussing the topic of Open Access geospatial data, and re-iterates the mandate of proactive publication of shareable and non-sensitive government data.</p>
<p><strong>3.3.4.</strong> Further, the process for defining an open government data license to be applied to all open government data sets being published under the NDSAP, and through the Open Government Data Platform India, is in progress. Given this, it is absolutely crucial important that the draft NGP takes this into consideration, and mandates that Open Access geospatial data must be published using the open government data license to be defined by the Implementation Guidelines of the NDSAP, when applicable.</p>
<h3>3.4. Lack of clarity regarding the clearances and permits required for data acquisition and dissemination, and the procedures thereof</h3>
<p><strong>3.4.1.</strong> Section 1.8 of the draft policy states that “[a]ll clearances / permits, as necessary, for data acquisition and dissemination be through a single window, online portal. These clearances be provided within a time span of 30 days of filing the online request.” CIS observes that the draft policy does not specify the kind of clearances/permits needed before a public or private entity, or an individual, can undertake acquisition and dissemination of geospatial data. It neither clarifies under what circumstances and conditions application for such clearance / permits would be required for users.</p>
<p><strong>3.4.2.</strong> Since the recently published draft Geospatial Information Regulation Bill (“GIRB”) 2016, directly addresses this topic of clearance / permit required to acquire and share geospatial information <strong>[12]</strong>, it will be effective if the NGP can refer to this Bill and provide an overall governance framework for the same. Further, CIS noted that the time span of 30 days mentioned in the draft policy is inconsistent with the time period specified in the GIRB (which is 90 days).</p>
<p><strong>3.4.3.</strong> CIS recommends that the draft policy also be amended suitably to include the circumstances and conditions under which required permissions shall be issued. Accordingly, the draft policy should reference the standardised and time bound security vetting process envisaged in the GIRB.</p>
<h3>3.5. Clarification Needed regarding “Cybersecurity is to be ensured through … use of Digital Watermarks for authentication of GDPSS”</h3>
<p><strong>3.5.1.</strong> CIS submits that the draft policy does not elaborate on the use of “Digital Watermarks” to ensure cybersecurity, neither it is explained who will authenticate GDPSS, under what conditions, and for what reasons. CIS recommends that the draft policy be amended suitably to specify the same.</p>
<h3>3.6. Remove Classification of Non-Public (at Present) Satellite / Aerial Imagery as Restricted by Default</h3>
<p><strong>3.6.1.</strong> CIS observes that the draft policy recommends that “[s]atellite/aerial images of resolution other than those currently made available on websites” should all be “classified for restricted access.”</p>
<p><strong>3.6.2.</strong> CIS submits that blanket categorisation of all satellite / aerial imagery of resolution that is not currently available through a public website (for whatever reason it might be) as “restricted access” should be re-evaluated, given the immense importance of such imagery to mapping agencies and industry participants using GDPSS.</p>
<p><strong>3.6.3.</strong> CIS recommends that the section be revised to define clear principles for defining satellite /aerial imagery as “open,” “registered,” and “restricted.”</p>
<h3>3.7. Governance of User-contributed Geospatial Data</h3>
<p><strong>3.7.1.</strong> A key resource and feature of contemporary geospatial industry in particular, and the digital economy in general, is the proliferation of user-contributed and user-generated geospatial data and information. CIS observes that this crucial topic, as well as the unique governance concerns that it raises, has not been addressed in the draft policy at all. CIS requests the DST to consider this matter with due attention to the specific nature and values of such user-contributed and user-generated in the digital economy on one hand, and in emergency contexts such as natural disasters on the other, and prepare a framework for its appropriate governance as part of the NGP itself.</p>
<h3>3.8. Protect Geospatial Privacy of Citizens by Defining Sensitive Personal Geospatial Data and Information</h3>
<p><strong>3.8.1.</strong> CIS observes that the draft policy lacks rules for collection, use, storage, and distribution of geospatial data from an individual’s privacy standpoint. Further, neither does the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 address these concerns <strong>[13]</strong>. Section 3 of the Rules define “Sensitive personal data or information”, which do not include geospatial information.</p>
<p><strong>3.8.2.</strong> The argument of violation of constitutional right to privacy was pleaded in a case against Google and other private mapping agencies in 2008 <strong>[14]</strong>. In the judgment, Madras HIgh Court noted that there existed no legislation/guidelines to prohibit mapping programmes from conducting their activities indiscriminately, and the lack of one thereof prevented the Court from injuncting such activities. Thus, there exists a judicial ambiguity on the aspect of collection and use of geospatial data.</p>
<p><strong>3.8.3.</strong> CIS submits that the draft policy may be suitably amended to ensure that collection, processing and dissemination of geospatial information is in consonance with the constitutionally protection of an individual’s privacy.</p>
<h3>3.9. Clarification Needed regarding “Mechanisms to be put in place to evaluate / audit GDPSS creation, consumption and distribution”</h3>
<p><strong>3.9.1.</strong> The draft policy suggests that “mechanisms to be put in place to evaluate/audit GDPSS creation, consumption and distribution” without clarifying the scope, purpose, and purview of this mechanism, and most crucially it does not describe what exactly will be evaluated / audited. CIS submits that this section is revised and expanded.</p>
<p><strong>3.9.2.</strong> The same section also identifies the need for a “framework to be put in place to assess the data collection versus its utilization towards government program and socio-economic development.” CIS observes that this is a very promising and much welcome gesture by the DST, but this section must be developed as a separate and detailed mandate. At the least, the NGP may suggest that a more detailed guideline document regarding this framework will be developed in near future.</p>
<h3>3.10. Data Taxation and Geospatial Cess</h3>
<p><strong>3.10.1.</strong> The draft policy refers to imposition of “data taxation (geospatial cess)” and use of “licensing” of geospatial data to raise money for geospatial activities of the Government of India. CIS is of the opinion will severely affect the geospatial industry in the country in particular, and will raise the monetary barrier to public use of geospatial data and maps in general; and hence must be strictly avoided.</p>
<h3>3.11. Data Dissemination Cell</h3>
<p><strong>3.11.1.</strong> CIS submits that instead of development of a separate Data Dissemination Cell within all government agencies to operationalise the mandate of the NGP, the Chief Data Officers within all government agencies identified under the implementation process of the NDSAP be given this complementary responsibility. This would ensure effective channelisation of human and financial resources to take forward the joint mandate of NGP and NDSAP towards greater public availability and use of (shareable and non-sensitive) government data.</p>
<h3>3.12. Special Infrastructure for Governance, Management, and Publication of Real-time Geospatial Data</h3>
<p><strong>3.12.1.</strong> A key term that the draft policy does not talk about is “big data.” The static or much-slowly-changing geospatial data such as national boundaries and details of Vulnerable Points and Vulnerable Areas are really a very small part of of the global geospatial information. The much larger and crucial part is the real-time (that is continuously produced, stored, analysed, and used in almost real-time) big geospatial data – from geo-referenced tweets, to GPS systems of cars, to mobile phones moving through the cities and regions. Addressing such networked data systems, where all data collected by digital devices can quite easily be born-georeferenced, and the security and privacy concerns that are engendered by them, should be the ultimate purpose of, and challenge for, a future-looking NGP.</p>
<p><strong>3.12.2.</strong> Further, with increasing number of government assets being geo-referenced for the purpose of more effective and real-time management, especially in the transportation sector, the corresponding agencies (which are often not mapping agencies) are acquiring a vast amount of high-velocity geospatial data, which needs to be analysed and (sometimes) published in the real-time. CIS submits a sincere request to DST to highlight the crucial need for special infrastructure for such data, as well as its governance, and identify the key principles concerned in the next version of the draft NGP.</p>
<h3>3.13. Sincere Request for Preparation and Circulation of a Second Public Draft of the National Geospatial Policy</h3>
<p><strong>3.13.1.</strong> CIS commends the DST for publishing the draft policy, and facilitating a consultation process inviting stakeholders and civil society to submit feedback. The NGP envisages to address crucial concepts of privacy, licensing, intellectual property rights, liability, national security, open data, which cut across and impact various technology platforms, industries and the citizens.</p>
<p><strong>3.13.2.</strong> In view of the multifarious issues highlighted that arise at the intersection of various legal and ethical concepts, CIS respectfully requests the DST to conduct another round of consultation after the publication of the second draft of the NGP. Multiple rounds of consultation and feedback would contribute to the robustness of the lawmaking process and ensure that the final policy safeguards the general public interest, and the interests and rights of various stakeholders involved.</p>
<p><strong>3.13.3.</strong> CIS is thankful to DST for the opportunity to provide comments, and would be privileged to provide further assistance on the matter to DST.</p>
<p> </p>
<h2>Endnotes</h2>
<p><strong>[1]</strong> See: <a href="http://www.dst.gov.in/sites/default/files/Draft-NGP-Ver%201%20ammended_05May2016.pdf">http://www.dst.gov.in/sites/default/files/Draft-NGP-Ver%201%20ammended_05May2016.pdf</a>.</p>
<p><strong>[2]</strong> See: <a href="http://cis-india.org/">http://cis-india.org/</a>.</p>
<p><strong>[3]</strong> See: <a href="https://egovstandards.gov.in/sites/default/files/Published%20Documents/Policy_on_Open_Standards_for_e-Governance.pdf">https://egovstandards.gov.in/sites/default/files/Published%20Documents/Policy_on_Open_Standards_for_e-Governance.pdf</a>.</p>
<p><strong>[4]</strong> See: <a href="http://data.gov.in/sites/default/files/NDSAP.pdf">http://data.gov.in/sites/default/files/NDSAP.pdf</a>.</p>
<p><strong>[5]</strong> See: <a href="http://deity.gov.in/sites/upload_files/dit/files/policy_on_adoption_of_oss.pdf">http://deity.gov.in/sites/upload_files/dit/files/policy_on_adoption_of_oss.pdf</a>.</p>
<p><strong>[6]</strong> See: <a href="http://deity.gov.in/sites/upload_files/dit/files/Open_APIs_19May2015.pdf">http://deity.gov.in/sites/upload_files/dit/files/Open_APIs_19May2015.pdf</a>.</p>
<p><strong>[7]</strong> See: <a href="http://rti.gov.in/webactrti.htm">http://rti.gov.in/webactrti.htm</a>.</p>
<p><strong>[8]</strong> See: <a href="http://www.archive.india.gov.in/allimpfrms/allacts/3314.pdf">http://www.archive.india.gov.in/allimpfrms/allacts/3314.pdf</a>, sections 2(d) and 3(b).</p>
<p><strong>[9]</strong> See: <a href="https://data.gov.in/sites/default/files/NDSAP.pdf">https://data.gov.in/sites/default/files/NDSAP.pdf</a>.</p>
<p><strong>[10]</strong> See section 2.11 of NDSAP.</p>
<p><strong>[11]</strong> See section 2.10 of NDSAP.</p>
<p><strong>[12]</strong> See: <a href="http://mha.nic.in/sites/upload_files/mha/files/GeospatialBill_05052016_eve.pdf">http://mha.nic.in/sites/upload_files/mha/files/GeospatialBill_05052016_eve.pdf</a>.</p>
<p><strong>[13]</strong> See: <a href="http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511%281%29.pdf">http://deity.gov.in/sites/upload_files/dit/files/GSR313E_10511%281%29.pdf</a>.</p>
<p><strong>[14]</strong> J. Mohanraj v (1) Secretary To Government, Delhi; (2) Indian Space Research Organisation, Bangalore; (3) Google India Private Limited, Bangalore, 2008 Indlaw MAD 3562.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/comments-on-the-national-geospatial-policy-draft-v-1-0-2016'>http://editors.cis-india.org/openness/comments-on-the-national-geospatial-policy-draft-v-1-0-2016</a>
</p>
No publishersumandroOpen StandardsOpen DataOpen Government DataFeaturedGeospatial DataNational Geospatial PolicyOpenness2016-06-30T09:40:59ZBlog Entry Call for Essays: Studying Internet in India
http://editors.cis-india.org/raw/call-for-essays-studying-internet-in-india-2016
<b>As Internet makes itself comfortable amidst everyday lives in India, it becomes everywhere and everyware, it comes in 40 MBPS Unlimited and in chhota recharges – though no longer in zero flavour – the Researchers at Work (RAW) programme at the Centre for Internet and Society invites abstracts for essays that explore how do we study internet in India today. </b>
<p> </p>
<h3>Submission deadline extended to <strong>Sunday, July 03</strong>.</h3>
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<img src="https://github.com/cis-india/website/raw/master/img/RAW_Morpheus-Meme-Digital-Genre.png" alt="What if I told you memes are a new digital genre?" />
<p> </p>
<h6>Source: <a href="http://leonardoflores.net/blog/new-digital-genres-writing-for-social-media/">Leonardo Flores</a>.</h6>
<p> </p>
<p>How do we move beyond a fascination with new digital things and interfaces that we engage with on the internet, which are increasingly becoming the objects and sites of our research and creative practices? How do we engage with these on their own terms, and perhaps also against the grain? What "new" is being brought in, performed, and afforded by these digital artefacts in our daily lives? How can our concerns and practices benefit from developing an awareness of their aesthetics, functions, and politics?</p>
<p>This call is for researchers, workers, and others interested in closely – or from a distance – commenting on these topics and questions.</p>
<p>Please send abstracts (200 words) to <a href="mailto:raw@cis-india.org">raw@cis-india.org</a> by <strong>Sunday, July 03, 2016</strong>. The subject of the email should be 'Studying Internet in India.'</p>
<p>We will select up to 10 abstracts and announce them on <strong>Tuesday, July 05, 2016</strong>.</p>
<p>The selected authors will be asked to submit the final longform essay (3,000-4,000 words) by <strong>Sunday, July 31, 2016</strong>. The final essays will be published on the RAW Blog. The authors will be offered an honourarium of Rs. 6,000.</p>
<p>We understand that not all essays can be measured in words. The authors are very much welcome to work with text, images, sounds, videos, code, and other mediatic forms that the internet offers. We will not be running a Word Count on the final 'essay.' The basic requirement is that the 'essay' must offer an <em>argument</em> – through text, or otherwise.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/raw/call-for-essays-studying-internet-in-india-2016'>http://editors.cis-india.org/raw/call-for-essays-studying-internet-in-india-2016</a>
</p>
No publishersumandroInternet StudiesRAW BlogFeaturedNoticesResearchers at Work2016-07-04T12:48:15ZBlog EntryComments on Department of Industrial Policy and Promotion Discussion Paper on Standard Essential Patents and their Availability on Frand Terms
http://editors.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
<b>The Centre for Internet & Society gave its comments to the Department of Industrial Policy and Promotion. The comments were prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.</b>
<p><strong><a href="http://editors.cis-india.org/a2k/blogs/dipp-comments.pdf" class="external-link">Download the PDF </a></strong><strong>To access other submissions to the DIPP Discussion Paper on SEP and FRAND, please <a class="external-link" href="http://cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms">click here</a></strong><strong><br /></strong></p>
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<p style="text-align: justify; "><strong>Authors <a name="_ftnref1"></a> </strong></p>
<div style="text-align: justify; "></div>
<p style="text-align: justify; "><strong>I. PRELIMINARY</strong></p>
<p style="text-align: justify; "><strong>1. </strong> This submission presents comments by the Centre for Internet and Society, India ("<strong>CIS</strong>") on the <i>Discussion Paper on Standard Essential Patents and their Availability on FRAND Terms</i> (dated 01 March, 2016), released by the Department of Industrial Policy and Promotion ("<strong>the</strong> <strong>DIPP</strong>"), Ministry of Commerce and Industry, Government of India (" <strong>the discussion paper/ discussion paper</strong>").</p>
<p style="text-align: justify; "><strong>2. </strong> CIS commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views.</p>
<p style="text-align: justify; "><strong>3. </strong> This submission is divided into three main parts. The <i>first </i>part, 'Preliminary', introduces the document; the <i>second</i> part, 'About CIS', is an overview of the organization; and, the <i>third </i>part, 'Submissions on the Issues', answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document.</p>
<p style="text-align: justify; "><strong>II. ABOUT CIS</strong></p>
<p style="text-align: justify; "><strong>4. </strong> CIS is a non-profit organisation <a name="_ftnref2"></a> that undertakes interdisciplinary research on internet and digital technologies from policy and academic perspectives. The areas of focus include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), internet governance, telecommunication reform, freedom of speech and expression, intermediary liability, digital privacy, and cyber-security.</p>
<p style="text-align: justify; "><strong>5. </strong> CIS values the fundamental principles of justice, equality, freedom and economic development. This submission is consistent with CIS' commitment to these values, the safeguarding of general public interest and the protection of India's national interest at the international level. Accordingly, the comments in this submission aim to further these principles. In addition, the comments are in line with the aims of the Make in India<a name="_ftnref3"></a> and Digital India <a name="_ftnref4"></a> initiatives of the Government of India.</p>
<p style="text-align: justify; "><strong>III. SUBMISSION ON THE ISSUES FOR RESOLUTION</strong></p>
<p style="text-align: justify; "><strong>6. </strong> The following sections provide CIS' views and recommendations on the issues enumerated in section 11 of the discussion paper:</p>
<p style="text-align: justify; "><strong> a) <i> Whether the existing provisions in the various IPR-related legislations, especially the Patents Act, 1970 and antitrust legislations, are adequate to address the issues related to SEPs and their availability on FRAND terms? If not, then can these issues </i> <i>be addressed through appropriate amendments to such IPR-related legislations? If so, what changes should be affected?</i> </strong></p>
<p style="text-align: justify; "><strong>A.1. </strong> The issues related to Standard Essential Patents ("<strong>SEPs</strong>") and their licensing on a fair, reasonable and non-discriminatory ("<strong>FRAND</strong>") basis lie at the intersection of intellectual property ("<strong>IP</strong>") law and competition law <a name="_ftnref5"></a>. As such, in India, the Patents Act, 1970 ("<strong>the Patents Act</strong>") and, the Competition Act, 2002 ("<strong>the Competition Act</strong>") are the relevant legislations to be studied. These have been recently discussed, most recently, by Justice Bakhru in his comprehensive order in<i>Telefonaktiebolaget LM Ericsson (Publ)</i> v. <i>Competition Commission of India and Another.</i> <a name="_ftnref6"></a></p>
<p style="text-align: justify; "><strong>A.2. </strong> It is our submission that at the moment, amendments to the Patents Act and the Competition Act may not be preferred. As Justice Bakhru has noted in the aforesaid decision,<a name="_ftnref7"></a> there is no conflict between the remedies in the Patents Act and in the Competition Act, and, the pursuit of rights and remedies under one of these legislations does not bar a party from pursuing rights and remedies in the other. Further, under both legislations, there are scenarios for the respective authorities - the Controller General of Patents, Designs and Trademarks ("<strong>the Controller</strong>") and the Competition Commission of India (" <strong>the CCI</strong>") for the Patents Act and for the Competition Act respectively - to seek inputs from each other.</p>
<p style="text-align: justify; "><strong>A.3. </strong> We also note that the CCI is a fairly nascent regulator; one whose jurisdiction is not yet a settled matter of law. While the judgment in the Ericsson-CCI case<a name="_ftnref8"></a> is indeed a good beginning, we do not believe that the matter has been conclusively decided. Accordingly, given the complex legal questions involved, over not just the interpretation of the Patents Act and the Competition Act, but also constitutional issues around the jurisdiction of regulators and the power of judicial review of the courts,<a name="_ftnref9"></a> we believe that it would be prudent to examine the ruling of the courts on these issues in some detail, before considering amendments.</p>
<p style="text-align: justify; "><strong>A.4. </strong> In addition, we are of the opinion that our IP law, and, our competition law, fully honor our international commitments, including the requirements under the TRIPS Agreement.<a name="_ftnref10"></a> As such, we would urge the Government of India to not enter into free trade agreements including, <i>inter alia,</i> the Regional Comprehensive Economic Partnership,<a name="_ftnref11"></a> that threaten our use of TRIPS flexibilities, and, impose 'TRIPS-plus' obligations.</p>
<p style="text-align: justify; "><strong>A.5. </strong> We also urge the Government of India to adopt a balanced National IPR Policy, and, a National Competition Policy, both of which has been in abeyance for a considerable amount of time. We believe that these policies are crucial to realize the objectives of the Make in India and Digital India initiatives. At the same time, we submit that these policies be balanced, taking into account the interests of all stakeholders, developed through an extensive consultative process, and, suitably modified based on feedback.</p>
<p style="text-align: justify; "><strong> <i> b) What should be the IPR policy of Indian Standard Setting Organizations in developing Standards for Telecommunication sector and other sectors in India where Standard Essential Patents are used? </i> </strong></p>
<p style="text-align: justify; "><strong>B.1.</strong> The discussion paper identifies four Standard Setting Organizations ("<strong>SSOs</strong>") in India, namely, the Telecom Standards Development Society of India ("<strong>TSDSI</strong>"), the Telecommunication Engineering Center ("<strong>TEC</strong>"), the Bureau of Indian Standards (" <strong>BIS</strong>"), the Global ICT Standardization Forum for India ("<strong>GISFI</strong>"), and, the Development Organization of Standards for Telecommunications in India ("<strong>DOSTI</strong>"). Comments on each of their policies have been made in the following paragraphs.</p>
<p style="text-align: justify; "><strong>B.2.</strong> The BIS does not have an intellectual property rights ("<strong>IPR</strong>") policy of its own. The BIS Act, 2016 <a name="_ftnref12"></a> does not include one either. As the discussion paper notes, the BIS refers to the IPR policies of the relevant international SSO in the context of technology implemented in India, that is the same or equivalent to the ones developed or maintained by the respective SSOs.We recommend that BIS adopt an IPR policy at the earliest, factoring in India specific requirements differences: a large and exponentially growing mobile device market makes it possible for manufacturers, patent owners and implementers alike to achieve financial gains even with a low margin ("<strong>India specific requirements</strong>"). In addition, our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (below), may also be considered for the content of the BIS' future policy on IPR.</p>
<p style="text-align: justify; "><strong>B.3</strong> . According to the discussion paper, the TEC considers the IPR policies of the International Telecommunication Union. We recommend that like the BIS, the TEC also adopt its own IPR policy, factoring in the India specific requirements detailed above. In addition, our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (below), may also be considered for the content of the BIS' future policy on IPR.</p>
<p style="text-align: justify; "><strong>B.4. </strong> The TSDSI, a relatively new standards body, has defined an IPR policy <a name="_ftnref13"></a>. In respect of this policy, the following observations are presented. <i>First, </i>this policy notes that IPR owners should be adequately and fairly rewarded.<i>Second, </i>it requires members to disclose essential IPRs in a "timely fashion." <a name="_ftnref14"></a> <i>Third, </i>as per its policy, the TSDSI can request the owner of an essential IPR to undertake, within three months, to license it irrevocably on FRAND terms. <a name="_ftnref15"></a> At the same time, the policy also states that the (aforesaid) ask may be subject to the condition that licensees agree to reciprocate. <a name="_ftnref16"></a> Should such an undertaking not be forthcoming, the TSDSI may suspend work on the standard or technical specification in question, or, adopt another course of action. <a name="_ftnref17"></a> <i>Fourth, </i>the policy identifies two scenarios for the non availability of licences prior to publication, <a name="_ftnref18"></a> based on the existence, or, the lack thereof, of alternative technologies. In the event of a lack of alternative technology, the policy requires a member to disclose in writing its reasons for not licensing its patents. Following this, it is submitted that there is no clarity on the concrete steps that the TSDSI would adopt in case the efforts to convince a member to license their essential IPRs, fail. The policy only states that "the TSDSI shall take further action as deemed fit."<a name="_ftnref19"></a> The same is also true where the IPR owner is not a member of the TSDSI. <a name="_ftnref20"></a> <i>Fifth, </i>the policy also envisages a scenario of non-availability post publication. <a name="_ftnref21"></a> The procedure for dealing with this is akin to the one detailed above, with the TSDSI asking for a written explanation, considering further action, including the possible withdrawal of the standard or technical specification in question. <i>Sixth, </i>it is observed that the policy does not require a commitment from its members to refrain from seeking injunctive relief. <i>Seventh, </i>it is accordingly recommended that the policy be suitably modified (a) to include India specific requirements discussed above; (b) to require a commitment from its members, that they refrain from seeking injunctive relief; (c) to delete the condition where FRAND negotiations may be subject to a condition of reciprocity; (d) to identify in detail the procedure to be followed in case of patent 'hold-ups' and patent 'hold-outs'; (e) to identify in detail the procedure to be followed in case of refusal to license by TSDSI members, and, non-members, both; and, (f) to include a detailed process on the declassification of a standard or technical specification.</p>
<p style="text-align: justify; "><strong>B.5. </strong> The IPR policy of GISFI<a name="_ftnref22"></a>, is substantially similar to the IPR policy of the TSDSI, discussed in paragraph <strong>B.4.</strong> of this submission (above). <i>Inter alia, </i> GISFI's IPR policy also does not indicate the specific steps to be taken in case an IPR owner refuses to license essential IPRs for which no alternative technology is available. This is true in the cases both, where the refusal is by a member, and, by a non-member. <a name="_ftnref23"></a>Our recommendations on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (above), may also be considered for the GISFI's IPR policy.</p>
<p style="text-align: justify; "><strong>B.6. </strong> According to the discussion paper, the IPR policy of the DOSTI resembles that of the GIFSI. It is submitted that these policies are similar in the context of refusal to license by a member or non-member, and, like the TSDSI and the GISFI, the DOSTI also requires the patent holder to license its IPR irrevocably on FRAND terms. Accordingly, we reiterate our comments on the IPR policy of the TSDSI in paragraph <strong>B.4.</strong> of this submission (above). The aforesaid recommendations may also be considered to be relevant for the DOSTI's IPR policy.</p>
<p style="text-align: justify; "><strong>B.7.</strong> We are also of the opinion that it would be useful for Indian SSOs to consider recommending the use of royalty-free licenses for IPRs. Illustratively, the World Wide Web Consortium ("<strong>W3C</strong>") <a name="_ftnref24"></a> and the Open Mobile Alliance ("<strong>OMA</strong>") <a name="_ftnref25"></a> encourage royalty-free licensing.</p>
<p style="text-align: justify; "><strong> <i> c) Whether there is a need for prescribing guidelines on working and operation of Standard Setting Organizations by Government of India? If so, what all areas of working of SSOs should they cover? </i> </strong></p>
<p style="text-align: justify; "><strong>C.1. </strong> In our opinion, in a milieu where instances of SEP litigation are becoming increasingly complex, and, there is a tangible threat of the abuse of the FRAND process, it might be useful for the Government of India to make suggestions on the working of Indian SSOs.</p>
<p style="text-align: justify; "><strong>C.2. </strong> It is suggested that the Government of India develop Model Guidelines that may be adopted by Indian SSOs, taking into account India specific requirements, including the ones detailed in paragraph <strong>B.2.</strong> of this submission (above). We believe that this measure will also enable the fulfilment of the objectives of the Make in India and Digital India initiatives.</p>
<p style="text-align: justify; "><strong>C.3. </strong> We recommend that various stakeholders, including IP holders, potential licensees and users of IP, civil society organizations, academics, and, government bodies, including the the Indian Patent Office ("<strong>IPO</strong>"), the Department of Telecommunications, the DIPP, TRAI, and, the CCI be consulted in the creation of these Model Guidelines.</p>
<p style="text-align: justify; "><strong>C.4.</strong> 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.</p>
<p style="text-align: justify; "><strong> <i> d) Whether there is a need for prescribing guidelines on setting or fixing the royalties in respect of Standard Essential Patents and defining FRAND terms by Government of India? If not, which would be appropriate authority to issue the guidelines and what could be the possible FRAND terms? </i> </strong></p>
<p style="text-align: justify; "><strong>D.1. </strong> In light of the inadequacies in the IPR policies (discussed above) of various SSOs in India, as well the the spate of ongoing patent infringement lawsuits around mobile technologies, we recommend that the Government of India intervene in the setting of royalties and FRAND terms.</p>
<p style="text-align: justify; "><strong>D.2. </strong> We propose that the Government of India initiate the formation of a patent pool of critical mobile technologies and apply a compulsory license with a five per cent royalty<a name="_ftnref26"></a>. Further details of this proposal have been enumerated in answer to question 'f' of the discussion paper (below).</p>
<p style="text-align: justify; "><strong>D.3.</strong> Our motivations for this proposal are many-fold.<i> </i>In our opinion, it is near-impossible for potential licensees to avoid inadvertent patent infringement. As a part of our ongoing research on technical standards applicable to mobile phones sold in India, we have found nearly 300 standards so far <a name="_ftnref27"></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 ("<strong>NPEs</strong>") and may not be members of SSOs. The patents held by them are not likely to be disclosed. More importantly, home-grown manufacturers that have no patents to leverage and may be new entrants in the market would be especially disadvantaged by such a scenario. Budget phone manufacturers, standing to incur losses either as a result of heavy licensing fees, or, potential litigation, may close down. Alternatively, they may pass on their losses to consumers, driving the now-affordable phones out of their financial reach. With the objectives of Make in India and Digital India in sight, it is essential that Indian consumers continue to have access to devices within their purchasing power.</p>
<p style="text-align: justify; "><strong> <i> e) On what basis should the royalty rates in SEPs be decided? Should it be based on Smallest Saleable Patent Practicing Component (SSPPC), or on the net price of the Downstream Product, or some other criterion? </i> </strong></p>
<p style="text-align: justify; "><strong>E.1. </strong> It is our submission that royalty rates for SEPs should be based on the smallest saleable patent practising component ("<strong>SSPPC</strong>"). 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 name="_ftnref28"></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 name="_ftnref29"></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.</p>
<p style="text-align: justify; "><strong>E.2. </strong> The net cost of the device is almost always several times that of the chipset that implements the patented technology. Armstrong et al <a name="_ftnref30"></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 name="_ftnref31"></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 name="_ftnref32"></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 name="_ftnref33"></a></p>
<p style="text-align: justify; "><strong>E.3. </strong> The discussion paper notes that J. Gregory Sidak, having studied the proceedings before the Delhi High Court, approved of the manner in which the court determined royalties.<a name="_ftnref34"></a> In his paper, Sidak(2015)<a name="_ftnref35"></a> notes that in determining royalties, the court relied, <i>inter alia, </i>on the decision of <i>CSIRO</i> v.<i>Cisco</i> ("<strong>the CSIRO case</strong>"), a 2015 decision of the US Court of Appeals for the Federal Circuit. 2015. <a name="_ftnref36"></a> We humbly disagree with the opinion of the Delhi High Court on the manner of determining royalties, and, with Sidak's approval of the same.</p>
<p style="text-align: justify; "><strong>E.4.</strong> It is our submission that the CSIRO case <a name="_ftnref37"></a> relied on a previous judgment, which we disagree with. The decision, a 2014 district court judgment, analogises the determination of royalties on SEPs to the determination of royalties on a copyrighted book. The court notes, "[b]asing a royalty solely on chip price is like valuing a copyrighted book based only on the costs of the binding, paper, and ink needed to actually produce the physical product. While such a calculation captures the cost of the physical product, it provides no indication of its actual value." In our opinion, this analogy is flawed. While a book is a distinct product as a whole, a mobile phone is a sum-total of its parts. If at all, a mobile phone could be compared with a book with several authors, as multiple technologies belonging to several patent holders are implemented in it. This judgement bases valuation for one set of technologies on the whole device, thus awarding compensation to the licensor even for those technologies implemented in the device that are not related to the licensed technologies. In our opinion, charging royalty on the net selling price of a device for one technology or one set of technologies is thus more like a referral scheme and less like actual compensation for the value added. Accordingly, royalties must be charged on the SSPPC principle.</p>
<p style="text-align: justify; "><strong> <i> f) Whether total payment of royalty in case of various SEPs used in one product should be capped? If so, then should this limit be fixed by Government of India or some other statutory body or left to be decided among the parties? </i> </strong></p>
<p style="text-align: justify; "><strong>F.1. </strong> CIS has proposed a compulsory licensing fee of five per cent on a patent pool of critical mobile technologies. The rationale for this figure is the royalty cap imposed by India in the early 1990s.</p>
<p style="text-align: justify; "><strong>F.2.</strong> As part of regulating foreign technology agreements, the (former) Department of Industrial Development (later merged with the DIPP) capped royalty rates in the early 1990s. Payment of royalties was capped at either a lump sum payment of $2 million, or, 5 percent on the royalty rates charged for domestic sale, and, 8 percent for export of goods pertaining to "high priority industries". <a name="_ftnref38"></a> Royalties higher than 5 percent or 8 percent, as the case may be, required securing approval from the government.</p>
<p style="text-align: justify; "><strong>F.3.</strong> 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 name="_ftnref39"></a></p>
<p style="text-align: justify; "><strong>F.4.</strong> It is submitted in the case of mobile device technology, we are witnessing a situation similar to that of the 1990s. In this sphere, most of the patent holders are multinational corporations which results in large royalty amounts leaving India. At the same time, in our opinion, litigation over patent infringement in India has limited the manufacture and sale of mobile devices of homegrown brands.</p>
<p style="text-align: justify; "><strong>F.5.</strong> We believe that the aforementioned developments are detrimental to the Make in India and Digital India initiatives of the Government of India, and, the government's aim of encouraging local manufacturing, facilitating indigenous innovation, as well as strengthening India's intellectual property regime. It is our submission, therefore, that the payment of royalties on SEPs be capped.</p>
<p style="text-align: justify; "><strong>F.6.</strong> We submit that such a measure is particularly important, given the nature of SEP litigation in India. While SEP litigation in India is indeed comparable to international SEP litigation on broader issues raised, specifically competition law concerns, but differs crucially where the parties are concerned. International SEP litigation is largely between multinational corporations with substantial patent portfolios, capable of engaging in long drawn out litigations, or engaging in other strategies including setting off against each other's patent portfolios. Dynamics in the Indian market differ - with a larger SEP holder litigating against smaller manufacturers, many of whom are indigenous, home-grown. <a name="_ftnref40"></a></p>
<p style="text-align: justify; "><strong>F.7.</strong> In June, 2013, we had recommended to the erstwhile Hon'ble Minister for Human Resource Development <a name="_ftnref41"></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 name="_ftnref42"></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 name="_ftnref43"></a> As we have stated in our request to the Hon'ble Prime Minister, we believe that such a pool would "possibly avert patent disputes by ensuring that the owners' rights are not infringed on, that budget manufacturers are not put out of business owing to patent feuds, and that consumers continue to get access to inexpensive mobile devices. Several countries including the United States issue compulsory licenses on patents in the pharmaceutical, medical, defence, software, and engineering domains for reasons of public policy, or to thwart or correct anti-competitive practices." <a name="_ftnref44"></a></p>
<p style="text-align: justify; "><strong>F.8.</strong> We believe that such a measure is not in breach of our international obligations under the TRIPS Agreement.</p>
<p style="text-align: justify; "><strong><i>g) Whether the practice of Non-Disclosure Agreements (NDA) leads to misuse of dominant position and is against the FRAND terms?</i></strong></p>
<p style="text-align: justify; "><strong>G.1.</strong> The issue of Non Disclosure Agreements ("<strong>NDAs</strong>") in SEP/FRAND litigation is a contentious one. Patent holders argue that they are essential to the license negotiation process to protect confidential information, whereas potential licensees submit that NDAs result in the imposition of onerous conditions.<a name="_ftnref45"></a></p>
<p style="text-align: justify; "><strong>G.2.</strong> In India's SEP litigation, the use of NDAs has been raised as an issue in at least two cases - separately by Intex<a name="_ftnref46"></a> and by iBall <a name="_ftnref47"></a>, in their cases against Ericsson. Intex and iBall have both claimed that the NDAs that Ericsson asked them to sign were onerous, and favoured Ericsson.</p>
<p style="text-align: justify; "><strong>G.3.</strong> According to Intex, the NDA in question would result in high legal costs for Intex, and, would render it unable to disclose crucial information to its vendors (who had agreed to supply to Intex on the condition that Intex was not infringing on any patents). <a name="_ftnref48"></a></p>
<p style="text-align: justify; "><strong>G.4.</strong> According to iBall, the parties had agreed to enter a global patent license agreement ("<strong>GPLA</strong>") but Ericsson insisted on an NDA. Upon receiving the terms of the NDA, iBall claimed before the CCI that Ericsson's refusal to identify the allegedly infringed SEPs; the threat of patent infringement proceedings; the attempt to coax iBall to enter into a "one-sided and onerous NDA"; the tying and bundling patents irrelevant to iBall's products by way of a GPLA; demanding unreasonably high royalties by way of a certain percentage value of handset as opposed to the cost of actual patented technology used all constituted abuse of Ericsson's dominant position under Section 4 of the Competition Act. <a name="_ftnref49"></a></p>
<p style="text-align: justify; "><strong>G.5.</strong> In India, the law on misuse (abuse) of dominant position by an 'enterprise' is found primarily in Section 4 of the Competition Act (read with Section 2(h) of the Competition Act, which defines 'enterprise'). In its recent decision in the Ericsson-CCI case <a name="_ftnref50"></a>, the Delhi High Court has found Ericsson to be an 'enterprise' for the purposes of the Competition Act, and hence subject to an inquiry under Section 4 of the same legislation. In the same decision, the court has also recognised the jurisdiction of the CCI to examine Ericsson's conduct for abuse of behaviour, based on complaints by Micromax and Intex. The use of NDAs is one of the grounds on which the parties have complained to the CCI.</p>
<p style="text-align: justify; "><strong>G.6.</strong> Pending a final determination by the CCI (and subsequent appeals), it would be premature to make an absolute claim on whether the use of NDAs results in an abuse of dominant position in <i>all</i> instances. However, the following submissions are made: <i>First, </i>the determination of misuse/abuse of dominant position is influenced by a number of factors <a name="_ftnref51"></a>, i.e., such a determination should be made on a case to case basis. <i>Second, </i>the market regulator, the CCI, is best situated to determine (a) abuse of dominance, and (b) whether the use of NDAs by an enterprise constitutes an abuse of its dominance. <i>Third, </i>the question of whether the use of NDAs constitutes misuse of dominance needs to be addressed in two parts - (a) whether the use of the NDA <i>itself </i>is abusive, irrespective of its terms and, (b) whether the use of certain specific terms renders the NDA abusive. <i>Fourth, </i>NDAs could potentially lead to the patent owner abusing its dominant position in the market, as well as result in an invalidation of FRAND commitments and terms. NDAs make it impossible to determine if a patent holder is engaging in discriminatory licensing practices. <i>Fifth, </i>NDAs are especially harmful in the case of NPEs-- companies that hold patents and monetise them but don't build or manufacture the components or devices that implement the technology associated with the patents.</p>
<p style="text-align: justify; "><strong> <i> h) What should be the appropriate mode and remedy for settlement of disputes in matters related to SEPs, especially while deciding FRAND terms? Whether Injunctions are a suitable remedy in cases pertaining to SEPs and their availability on FRAND terms? </i> </strong></p>
<p style="text-align: justify; "><strong>H.1.</strong> The licensing of SEPs on FRAND terms requires the parties to negotiate "reasonable" royalty rates in good faith, and apply the terms uniformly to all willing licensees. It is our submission that if the parties cannot agree to FRAND terms, they may enter into binding arbitration. Further, if all efforts fail, there exist remedies under the Patents Act and the Competition Act, 2002 to address the issues.</p>
<p style="text-align: justify; "><strong>H.2.</strong> 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 name="_ftnref52"></a> Such an independent adviser may inform the court on the technical nuances of the matter.</p>
<p style="text-align: justify; "><strong>H.3. </strong> Further<strong>, </strong>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. <strong>H.4. </strong>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 name="_ftnref53"></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 name="_ftnref54"></a> Further, as Contreras (2015)<a name="_ftnref55"></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.</p>
<p style="text-align: justify; "><strong><i>i) What steps can be taken to make the practice of Cross-Licensing transparent so that royalty rates are fair & reasonable?</i></strong></p>
<p style="text-align: justify; "><strong>I.1.</strong> The Patents Act requires patentees and licensees to submit a statement on commercial working of the invention to the Controller every year. <a name="_ftnref56"></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. <a name="_ftnref57"></a> Indeed, as the decision in <i>Natco Pharma</i> v. <i>Bayer Corporation</i> <a name="_ftnref58"></a> reveals, the disclosures in Form 27 were crucial to determining the imposition of a compulsory license on the patentee. Thus, broadly, Form 27 disclosures can critically enable willing licensees to access patent "working" information in a timely manner.</p>
<p style="text-align: justify; "><strong>I.2.</strong> However, there has been little compliance of this requirement by the patentees, despite the IPO reiterating the importance of compliance through the issuance of multiple public notices <a name="_ftnref59"></a> (suo motu and in response to a public interest litigation filed in 2011 <a name="_ftnref60"></a>), and, reminding the patentees that non-compliance is punishable with a heavy fine. <a name="_ftnref61"></a> Findings of research submitted by one of the parties<a name="_ftnref62"></a> in the writ of the<a></a><a></a><a>2011</a><a name="_msoanchor_1"></a><a name="_msoanchor_2"></a><a name="_msoanchor_3"></a> public interest litigation<i>Shamnad Basheer </i>v. <i>Union of India and others</i><a name="_ftnref63"></a> reveal as follows. <i>First, </i>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. <i>Second, </i>a large number of filings in the telecom sector remain incomplete.</p>
<p style="text-align: justify; "><strong>I.3. </strong> In 2015, CIS queried the IPO website for Form 27s of nearly 4,400 patents. CIS' preliminary research (ongoing and unpublished) echoes findings <a name="_ftnref64"></a> similar to the ones disclosed in the case discussed in paragraph <strong>I.2.</strong> of this submission (above).</p>
<p style="text-align: justify; "><strong>I.4.</strong> In view of the submissions above, CIS makes the following recommendations to make the practice of cross-licensing transparent so that royalty rates are fair & reasonable: <i>first, </i>that there be a strict enforcement of the submission of Form 27s on a regular and timely basis by the patentees; and, <i>second, </i>that guidelines may be drawn up on whether it was discriminatory to charge no royalties (whether on the SSPPU or on the whole device) for a patent holder in a cross-licensing arrangement with another, when it charges royalty on the selling price of the device from a non-cross-licensor.</p>
<p style="text-align: justify; "><strong><i>j) What steps can be taken to make the practice of Patent Pooling transparent so that royalty rates are fair & reasonable?</i></strong></p>
<p style="text-align: justify; "><strong>J.1.</strong> Patent pools can be understood as an agreement between two or more patent owners to license one or more of their patents to one another or to third parties.<a name="_ftnref65"></a> Thus, the creation of a patent pool makes use of the legal instrument of licensing, similar to the practice of cross-licensing. Insofar, we reiterate our recommendations made in paragraph <strong>I.3. </strong>of this submission (above), which apply to the answer to the instant question.</p>
<p style="text-align: justify; "><strong>J.2.</strong> In furtherance of the recommendation above, we also propose the alteration of the Form 27 template <a name="_ftnref66"></a> to include more disclosures. Presently, patentees are required to to declare number of licensees and sub-licensees. We specifically propose that the format of Form 27 filings be modified to include patent pool licenses, with an explicit declaration of the names of the licensees and not just the number.</p>
<p style="text-align: justify; "><strong>J.3. </strong> It is also our submission that patent pools be required to offer FRAND licenses on the same terms to both members and non-members of the pool.</p>
<p style="text-align: justify; "><strong> <i> k) How should it be determined whether a patent declared as SEP is actually an Essential Patent, particularly when bouquets of patents are used in one device? </i> </strong></p>
<p style="text-align: justify; "><strong>K.1.</strong> We submit that several studies on the essentiality of SEPs indicate that only a small percentage of SEPs are actually essential. A study conducted by<i>Goodman </i>and <i>Myers </i>(2004) showed that only 21% of SEPs pertaining to the 3G standard in the US were deemed to be actually essential. <a name="_ftnref67"></a> Another study conducted by the same authors in 2009 for WCDMA patents showed that 28% SEPs were essential. <a name="_ftnref68"></a></p>
<p style="text-align: justify; "><strong>K.2.</strong> In our opinion, <i>first, </i>the methodology adopted by <i>Goodman </i>and <i>Myers</i> <a name="_ftnref69"></a><i> </i>could be replicated to determine the "essential" nature of an SEP. <i>Second, </i>while adopting their methodology, it would be useful to address some of the issues over which these studies were critiqued. <a name="_ftnref70"></a> Accordingly, we suggest that (a) laboratory tests may be conducted by an outside expert or by a commercial testing laboratory, and not at an in-house facility owned by either parties, so as to eliminate in the lab results; and, (b) expert opinions may be considered in order to determine essentiality.</p>
<p style="text-align: justify; "><strong> <i> l) Whether there is a need of setting up of an independent expert body to determine FRAND terms for SEPs and devising methodology for such purpose? </i> </strong></p>
<p style="text-align: justify; "><strong>L.1.</strong> In our opinion, there is no need for an independent expert body to determine FRAND terms for SEPs and devising the methodology for such a purpose. The existing legal and regulatory framework is reasonably equipped to determine FRAND terms. A more detailed submission on the existing framework and suggested changes has been made in our answer to question 'a' of the discussion paper (above).</p>
<p style="text-align: justify; "><strong>L.2.</strong> However, we observe that Indian courts, tribunals and the CCI are yet to endorse a methodology for making FRAND determinations. The judgments of the Delhi High Court do not provide a conclusive rationale or methodology for the imposition of royalty rates in the respective matters. <a name="_ftnref71"></a> <strong> </strong></p>
<p style="text-align: justify; "><strong>L.3. </strong> We submit that<strong> </strong>in the absence of definitive Indian jurisprudence for determination of FRAND terms, American jurisprudence provides certain guidance. Contreras<a name="_ftnref72"></a> (2015) informs us about the various case law American courts and regulators have developed and adhered to whilst making such determinations.The dominant analytical framework for determining "reasonable royalty" patent damages in the United States today was set out in 1970 by the District Court for the Southern District of New York in <i>Georgia-Pacific Corp. </i>v. <i> U.S. Plywood Corp <a name="_ftnref73"></a> </i> . While this may be used as a guiding framework, the question of methodology remains far from settled.</p>
<p style="text-align: justify; "><strong> <i> m) If certain Standards can be met without infringing any particular SEP, for instance by use of some alternative technology or because the patent is no longer in force, what should be the process to declassify such a SEP? </i> </strong></p>
<p style="text-align: justify; "><strong>M.1. </strong> In our opinion, if a standard can be met without infringing a patent declared to be "essential" to it, then the patent is not actually "essential". In this instance, the methods suggested in response to question 'k' of the discussion paper (above) could be used to declassify the SEP.</p>
<p style="text-align: justify; "><strong>M.2. </strong> We further submit that if a patent is no longer in force, that is, if it has expired, then it ceases to be patent, and therefore an SEP. The process to declassify such an SEP could be simply to declare it an expired patent.</p>
<p style="text-align: justify; "><strong>M.3. </strong> In addition, if it is possible to implement a certain standard by using an alternative technology, then the SEP for such a standard is not actually an SEP. However, the scale of operations and that of mass manufacturing and compatibility requirements in devices and infrastructure mean that it is unlikely to have different methods of implementing the same standard.</p>
<p style="text-align: justify; "><strong>M.4.</strong> In general, it is our submission that an Indian SSO could maintain a publicly accessible database of SEPs found to be invalid or non-essential in India.</p>
<p style="text-align: justify; "><strong>7. </strong> We reiterate our gratitude to the DIPP for the opportunity to make these submissions. In addition to our comments above, we have shared some of our research on this issue, in the 'Annexures', below.</p>
<p style="text-align: justify; "><strong>8. </strong> It would be our pleasure and privilege to discuss these comments with the DIPP; and, supplement these with further submissions if necessary. We also offer our assistance on other matters aimed at developing a suitable policy framework for SEPs and FRAND in India, and, working towards the sustained innovation, manufacture and availability of mobile technologies in India.</p>
<p style="text-align: justify; "><strong>On behalf of the Centre for Internet and Society, 22 April, 2016</strong></p>
<p style="text-align: justify; ">Anubha Sinha - <a>anubha@cis-india.org</a> | Nehaa Chaudhari - <a>nehaa@cis-india.org</a></p>
<p style="text-align: justify; ">Rohini Lakshané - <a>rohini@cis-india.org</a></p>
<p style="text-align: justify; "><strong>___________________________________________________________________________</strong></p>
<p style="text-align: justify; ">___________________________________________________________________________</p>
<p style="text-align: justify; "><strong>ANNEXURES</strong></p>
<p style="text-align: justify; "><strong>___________________________________________________________________________</strong></p>
<p style="text-align: justify; ">● Anubha Sinha, Fuelling the Affordable Smartphone Revolution in India, available at <a href="http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india"> http://cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● 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/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf"> http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Pervasive Technologies:Patent Pools, available at <a href="http://cis-india.org/a2k/blogs/patent-pools">http://cis-india.org/a2k/blogs/patent-pools</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, <span>available </span>at <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india"> http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-indi </a> <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india">a</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low Cost Access Devices through Compulsory Licences, available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Prof 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 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, CIS, List of technical standards and IP types (Working document), available at <a href="https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing"> https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Open Letter to Prime Minister Modi, February 2015, available at <a href="http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi">http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies"> http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Joining the dots in India's big-ticket mobile phone patent litigation, May 2015, last updated October 2015, available at <a href="http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation"> http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, March 2015, last updated April 2016, available at <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"> http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india </a> , (last accessed April 22, 2016).</p>
<p style="text-align: justify; ">● Rohini Lakshané, Patent landscaping in the Indian Mobile Device Marketplace, presented at the 4th Global Congress on Intellectual Property and Public Interest, December 2015, available at <a href="https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs">https://drive.google.com/open?id=0B8SgjShAjhbtME45N245SmowOGs</a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">● Vikrant Narayan Vasudeva, Patent Valuation and Licence Fee Determination in the Context of Patent Pools, available at <a href="http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools"> http://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools </a> (last accessed 22 April, 2016).</p>
<p style="text-align: justify; ">************</p>
<div style="text-align: justify; "><br clear="all" />
<hr size="1" width="33%" align="left" />
<div id="ftn1">
<p><a name="_ftn1"></a> This submission has been authored by (alphabetically) Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané, on behalf of the Centre for Internet and Society, India.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2"></a> See The Centre for Internet and Society, available at <a href="http://cis-india.org/">http://cis-india.org</a> (last accessed 22 April, 2016) for details of the organization, and, our work.</p>
</div>
<div id="ftn3">
<p><a name="_ftn3"></a> Make in India, available at <a href="http://www.makeinindia.com/home">http://www.makeinindia.com/home</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn4">
<p><a name="_ftn4"></a> Digital India, available at <a href="http://www.digitalindia.gov.in/">http://www.digitalindia.gov.in/</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn5">
<p><a name="_ftn5"></a> See Nehaa Chaudhari, The Curious Case of the CCI:Competition Law and SEP Regulation in India, presented at the 4th Global Congress on Intellectual Property and the Public Interest, available at <a href="http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india"> http://cis-india.org/a2k/blogs/the-curious-case-of-the-cci-competition-law-and-sep-regulation-in-india </a> (last accessed 21 April, 2016) for further details on relevant provisions.</p>
</div>
<div id="ftn6">
<p><a name="_ftn6"></a> In the High Court of Delhi, W.P.(C) 464/2014 & CM Nos. 911/2014 & 915/2014, judgment delivered on 30 March, 2016. Hereafter referred to as the Ericsson-CCI judgment.</p>
</div>
<div id="ftn7">
<p><a name="_ftn7"></a> Id.</p>
</div>
<div id="ftn8">
<p><a name="_ftn8"></a> Id.</p>
</div>
<div id="ftn9">
<p><a name="_ftn9"></a> Under Articles 226 and 227 of the Constitution of India, and, under Article 32 of the Constitution of India, for the High Courts and the Supreme Court, respectively.</p>
</div>
<div id="ftn10">
<p><a name="_ftn10"></a> Agreement on Trade-Related Aspects of Intellectual Property Rights, available at <a href="https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm">https://www.wto.org/english/tratop_e/trips_e/t_agm0_e.htm</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn11">
<p><a name="_ftn11"></a> KEI Staff, 2015 October 15 version: RCEP IP Chapter, available at <a href="http://keionline.org/node/2472">http://keionline.org/node/2472</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn12">
<p><a name="_ftn12"></a> BIS Act, 2016, available at <a href="http://www.bis.org.in/bs/bsindex.asp">http://www.bis.org.in/bs/bsindex.asp</a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn13">
<p><a name="_ftn13"></a> TSDSI, Intellectual Property Rights Policy, available at <a href="http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf"> http://www.tsdsi.org/media/Help/2014-12-17/TSDSI-PLD-40-V1.0.0-20141217.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn14">
<p><a name="_ftn14"></a> Id at Clause 3.1.</p>
</div>
<div id="ftn15">
<p><a name="_ftn15"></a> Id at Clause 5.1.</p>
</div>
<div id="ftn16">
<p><a name="_ftn16"></a> Id at Clause 5.2.</p>
</div>
<div id="ftn17">
<p><a name="_ftn17"></a> Id at Clause 5.5.</p>
</div>
<div id="ftn18">
<p><a name="_ftn18"></a> Id at Clauses 7.1. and 7.2.</p>
</div>
<div id="ftn19">
<p><a name="_ftn19"></a> Id at Clause 7.2.1.a (iii).</p>
</div>
<div id="ftn20">
<p><a name="_ftn20"></a> Id at Clause 7.2.1.b(iii).</p>
</div>
<div id="ftn21">
<p><a name="_ftn21"></a> Id at Clause 7.3.</p>
</div>
<div id="ftn22">
<p><a name="_ftn22"></a> GISFI, Intellectual Property Rights Policy, available at <a href="http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm"> http://www.gisfi.org/ipr_policy/gisfi_intellectual_property_righ.htm </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn23">
<p><a name="_ftn23"></a> Id at Clauses 6.2.1.a(iii) and 6.2.1.b(iii).</p>
</div>
<div id="ftn24">
<p><a name="_ftn24"></a> See W3C, Patent Policy, available at <a href="https://www.w3.org/Consortium/Patent-Policy-20040205/">https://www.w3.org/Consortium/Patent-Policy-20040205/</a> (last accessed 22 April, 2016) for more details on their royalty-free licences.</p>
</div>
<div id="ftn25">
<p><a name="_ftn25"></a> See OMA, Use Agreement, available at <a href="http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/"> http://openmobilealliance.org/about-oma/policies-and-terms-of-use/use-agreement/ </a> (last accessed 22 April, 2016) for more details on their royalty-free licences.</p>
</div>
<div id="ftn26">
<p><a name="_ftn26"></a> See Rohini Lakshané, Open Letter to PM Modi, available at <a href="http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi">http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a> (last accessed 22 April, 2016) for further details of CIS' proposal.</p>
</div>
<div id="ftn27">
<p><a name="_ftn27"></a> Rohini Lakshané, CIS, List of Technical Standards and IP Types (Working document), available at <a href="https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing"> https://drive.google.com/file/d/0B8SgjShAjhbtaml5eW50bS01d2s/view?usp=sharing </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn28">
<p><a name="_ftn28"></a> Mark Lemley and Carl Shapiro, Patent Holdup and Royalty Stacking,<i> 85 Tex. L. Rev. at 2015</i>; See also, for e.g., RPX Corporation, Amendment No. 3 to Form S-l, 11 Apr. 2011, at 59, available at <a href="http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm"> http://www.sec.gov/Archives/edgar/data/1509432/000119312511101007/ds1a.htm </a> (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 smartphones…"</i>.; See further Steve Lohr, Apple- Samsung Case Shows Smartphone as Legal Magnet,<i> </i>New York Times, 25 Aug. 2012, available at <a href="http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html"> http://www.nytimes.com/2012/08/26/technology/apple-samsung-case-shows-smartphone-as-lawsuit-magnet.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn29">
<p><a name="_ftn29"></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 22 April, 2016).</p>
</div>
<div id="ftn30">
<p><a name="_ftn30"></a> Ann Armstrong, Joseph J. Mueller and Timothy D. Syrett, The Smartphone- Royalty Stack:Surveying Royalty Demands for the Components Within Modern Smartphones, available at <a href="https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf"> https://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/The-Smartphone-Royalty-Stack-Armstrong-Mueller-Syrett.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn31">
<p><a name="_ftn31"></a> Florian Mueller,<i> </i>Ericsson Explained Publicly why it Collects Patent Royalties from Device (Not Chipset) Makers, available at <a href="http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html"> http://www.fosspatents.com/2014/01/ericsson-explained-publicly-why-its.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn32">
<p><a name="_ftn32"></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/2014-08-25/news/53205445_1_digital-india-india-today-financial-services"> http://articles.economictimes.indiatimes.com/2014-08-25/news/53205445_1_digital-india-india-today-financial-services </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn33">
<p><a name="_ftn33"></a> Nehaa Chaudhari,<i> </i>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/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf"> http://www.manupatra.co.in/newsline/articles/Upload/08483340-C1B9-4BA4-B6A9-D6B6494391B8.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn34">
<p><a name="_ftn34"></a> See part 10.2.2. of the Discussion Paper, at page 25.</p>
</div>
<div id="ftn35">
<p><a name="_ftn35"></a> J.Gregory Sidak, FRAND in India:The Delhi High Court's Emerging Jurisprudence on Royalties for Standard-Essential Patents, available at <a href="http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full"> http://jiplp.oxfordjournals.org/content/early/2015/06/11/jiplp.jpv096.full </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn36">
<p><a name="_ftn36"></a> Appeal from the United States District Court for the Eastern District of Texas in No. 6:11-cv-00343-LED, decided on 03 December, 2015, available at. <a href="http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF"> http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1066.Opinion.12-1-2015.1.PDF </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn37">
<p><a name="_ftn37"></a> Id.</p>
</div>
<div id="ftn38">
<p><a name="_ftn38"></a> Kumkum Sen, News on Royalty Payments Brings Cheer in New Year, available at <a href="http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html"> http://www.business-standard.com/article/economy-policy/news-on-royalty-payment-brings-cheer-in-new-year-110010400044_1.html </a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn39">
<p><a name="_ftn39"></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://cis-india.org/a2k/blogs/lid-on-royalty-outflows">http://cis-india.org/a2k/blogs/lid-on-royalty-outflows</a> (last accessed 21 April, 2016), for a discussion on the introduction of royalty caps in the early 1990s, and its success in reducing the flow of money out of India.</p>
</div>
<div id="ftn40">
<p><a name="_ftn40"></a> Supra note 33.</p>
</div>
<div id="ftn41">
<p><a name="_ftn41"></a> Nehaa Chaudhari, Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses, available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices </a> <span> </span> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn42">
<p><a name="_ftn42"></a> Supra note 26.</p>
</div>
<div id="ftn43">
<p><a name="_ftn43"></a> Rohini Lakshané, FAQ: CIS' proposal to form a patent pool of critical mobile technology, September 2015, available at <a href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies"> http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn44">
<p><a name="_ftn44"></a> Id.</p>
</div>
<div id="ftn45">
<p><a name="_ftn45"></a> See the Ericsson-CCI case, supra note 6, for Intex's submissions as discussed by Justice Bakhru.</p>
</div>
<div id="ftn46">
<p><a name="_ftn46"></a> Id.</p>
</div>
<div id="ftn47">
<p><a name="_ftn47"></a> Rohini Lakshané, Compilation of Mobile Phone Patent Litigation Cases in India, available at <a href="http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india"> http://cis-india.org/a2k/blogs/compilation-of-mobile-phone-patent-litigation-cases-in-india </a> (last accessed 21 April, 2016).</p>
</div>
<div id="ftn48">
<p><a name="_ftn48"></a> See the Ericsson-CCI case, supra note 6, at paragraph 19.2.</p>
</div>
<div id="ftn49">
<p><a name="_ftn49"></a> Supra note 47.</p>
</div>
<div id="ftn50">
<p><a name="_ftn50"></a> See the Ericsson-CCI judgment, supra note 6, at paragraphs 88-105.</p>
</div>
<div id="ftn51">
<p><a name="_ftn51"></a> Section 19(4) of the Competition Act. See also <i>Competition Commission of India</i> v. <i>Steel Authority of India and Another</i>, (2010) 10 SCC 744.</p>
</div>
<div id="ftn52">
<p><a name="_ftn52"></a> Section 115 of the Patents Act, 1970.</p>
</div>
<div id="ftn53">
<p><a name="_ftn53"></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 C-170/13.</p>
</div>
<div id="ftn54">
<p><a name="_ftn54"></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. 337-TA-745 (Jun. 6, 2012).</p>
</div>
<div id="ftn55">
<p><a name="_ftn55"></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 <span>h</span><a href="http://ssrn.com/abstract=2374983">ttp://ssrn.com/abstract=2374983</a><span> or</span> <a href="http://dx.doi.org/10.2139/ssrn.2374983">http://dx.doi.org/10.2139/ssrn.2374983</a><a href="http://dx.doi.org/10.2139/ssrn.2374983"> </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn56">
<p><a name="_ftn56"></a> Section 146(2) of the Patents Act, 1970..</p>
</div>
<div id="ftn57">
<p><a name="_ftn57"></a> Sai Vinod, Patent Office Finally Takes Form 27s Seriously, available at <a href="http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html"> http://spicyip.com/2013/02/patent-office-finally-takes-form-27s.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn58">
<p><a name="_ftn58"></a> Order No. 45/2013 (Intellectual Property Appellate Board, Chennai), available at <a href="http://www.ipab.tn.nic.in/045-2013.htm">http://www.ipab.tn.nic.in/045-2013.htm</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn59">
<p><a name="_ftn59"></a> Intellectual Property India, Public Notice, available at <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 22 April, 2016) <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 22 April, 2016).</p>
</div>
<div id="ftn60">
<p><a name="_ftn60"></a> Supra note 57.</p>
</div>
<div id="ftn61">
<p><a name="_ftn61"></a> Id.</p>
</div>
<div id="ftn62">
<p><a name="_ftn62"></a> See research findings available at <a href="http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf"> http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn63">
<p><a name="_ftn63"></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/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html"> http://spicyip.com/2015/09/patent-working-in-india-delhi-hc-issues-notice-in-shamnad-basheer-v-union-of-india-ors-i.html </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn64">
<p><a name="_ftn64"></a> In response to an RTI request made to the IPO in Mumbai for forms unavailable on the website, CIS received a reply stating, "As thousand [sic] of Form -27 are filed in this office, it is very difficult to segregate Form-27 for the patent numbers enlisted in your RTI application as it needs diversion of huge official staff/ manpower and it will affect day to day [sic] work of this office." This research is ongoing and unpublished. Please contact us for a copy of the RTI application and the response received.</p>
</div>
<div id="ftn65">
<p><a name="_ftn65"></a> WIPO Secretariat<i>, </i>Patent Pools and Antitrust - A Comparative Analysis, available at <a href="https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf"> https://docs.google.com/viewer?url=http%3A%2F%2Fwww.wipo.int%2Fexport%2Fsites%2Fwww%2Fip-competition%2Fen%2Fstudies%2Fpatent_pools_report.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn66">
<p><a name="_ftn66"></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/Form-27.pdf"> http://ipindia.nic.in/ipr/patent/manual/HTML%20AND%20PDF/Manual%20of%20Patent%20Office%20Practice%20and%20Procedure%20-%20html/Forms/Form-27.pdf </a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn67">
<p><a name="_ftn67"></a> David J. Goodman and Robert A. Myers, 3G Cellular Standards and Patents, available at <a href="http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf">http://patentlyo.com/media/docs/2009/03/wirelesscom2005.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn68">
<p><a name="_ftn68"></a> Darien CT, Review of Patents Declared as Essential to WCDMA through December, 2008, available at <a href="http://www.frlicense.com/wcdma1.pdf">http://www.frlicense.com/wcdma1.pdf</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn69">
<p><a name="_ftn69"></a> Supra note 67.</p>
</div>
<div id="ftn70">
<p><a name="_ftn70"></a> Donald L. Martin and Carl De Meyer, Patent Counting, a Misleading Index of Patent Value: A Critique of Goodman & Myers and its Uses, available at <a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439">http://papers.ssrn.com/sol3/papers.cfm?abstract_id=949439</a> (last accessed 22 April, 2016).</p>
</div>
<div id="ftn71">
<h5><a name="h.b6s0l5evilsq"></a> <a name="_ftn71"></a> Rohini Lakshané, Joining the Dots in India's Big-Ticket Mobile Phone Patent Litigation<i>,</i> available at <a href="http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation"> http://cis-india.org/a2k/blogs/joining-the-dots-in-indias-big-ticket-mobile-phone-patent-litigation </a> (last accessed 22 April, 2016). See also supra note 47 for more details.</h5>
</div>
<div id="ftn72">
<p><a name="_ftn72"></a> Supra note 55.</p>
</div>
<div id="ftn73">
<p><a name="_ftn73"></a> 318 F. Supp. 1116, 1120 (S.D.N.Y. 1970), modified and aff'd, 446 F. 2d 295 (2d Cir. 1971), cert. denied, 404 U.S. 870 (1971).</p>
</div>
</div>
<div style="text-align: justify; ">
<hr size="1" width="33%" align="left" />
<div>
<div id="_com_1"><a name="_msocom_1"></a>
<p>2015</p>
</div>
</div>
<div>
<div id="_com_2"><a name="_msocom_2"></a>
<p>They filed it in 2011</p>
</div>
</div>
<div>
<div id="_com_3"><a name="_msocom_3"></a>
<p>The 2011 filing only includes pharma, BTW: http://spicyip.com/docs/Form%2027s.pdf. Also, this writ is from May 2015: http://spicyip.com/wp-content/uploads/2015/05/FORM-27-WP-1R-copy.pdf Anyway, I'll leave it as it is.</p>
</div>
</div>
</div>
<p>
For more details visit <a href='http://editors.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'>http://editors.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>
No publisherAnubha Sinha, Nehaa Chaudhari and Rohini LakshaneAccess to KnowledgePervasive TechnologiesCompetitionFeaturedPatents2016-05-03T02:30:15ZBlog EntryResponses to the DIPP's Discussion Paper on SEPs and their Availability on FRAND Terms
http://editors.cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms
<b>The Department of Industrial Policy and Promotion (DIPP), Government of India, requested comments through its "Discussion Paper on Standard Essential Patents and Their Availability on FRAND Terms" on March 1, 2016. This post is a compilation of various comments submitted in response to it.</b>
<p style="text-align: justify; ">The Centre for Internet & Society (CIS) commends the DIPP for its efforts at seeking inputs from various stakeholders on this important and timely issue. CIS is thankful for the opportunity to put forth its views. The submission is divided in 3 main parts. The first part, ‘Preliminary’, introduces the document; the second part, ‘About CIS’, is an overview of the organization; and, the third part, ‘Submissions on the Issues’, answers the questions raised in the discussion paper. A list of annexures and their URLs is included at the end of the document. The submission to the DIPP was prepared by Anubha Sinha, Nehaa Chaudhari and Rohini Lakshané.</p>
<hr style="text-align: justify; " />
<div style="text-align: justify; "><b><a href="http://editors.cis-india.org/a2k/blogs/dipp-comments.pdf" class="internal-link"> </a></b></div>
<h3 style="text-align: justify; ">Download</h3>
<table class="plain" style="text-align: justify; ">
<tbody>
<tr>
<th>
<ul>
<li><a href="http://editors.cis-india.org/a2k/blogs/discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms" class="internal-link"><span style="text-decoration: underline;">Discussion Paper on Standard Essential Patents and their Availability on Frand Terms</span></a> (Government of India, Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, March 1, 2016)</li>
<li><a href="http://editors.cis-india.org/a2k/blogs/dipp-comments.pdf" class="internal-link">Centre for Internet and Society</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2769239">Centre for Internet and Society (hosted on Social Science Research Network)</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2768496">Prof. Jorge L. Contreras</a></li>
<li><a href="http://editors.cis-india.org/a2k/blogs/aba-comments.pdf" class="internal-link">Joint Comments of the American Bar Association (ABA) Sections of Anti-Trust Law, Intellectual Property Law, International Law, and Science & Technology Law</a></li>
<li><a href="http://editors.cis-india.org/a2k/blogs/g-mason-dipp-response" class="internal-link">Global Antitrust Institute, George Mason University School of Law</a></li>
<li><a href="http://editors.cis-india.org/a2k/blogs/cmai-tema" class="internal-link">CMAI-TEMA (Communication Multimedia and Infrastructure Association of India - Telecom Equipment Manufacturers Association of India)</a></li>
<li><a class="external-link" href="http://sflc.in/comments-on-dipp-discussion-paper-on-standard-essential-patents-and-their-availability-on-frand-terms/">Software Freedom Law Centre (SFLC)</a></li>
<li><a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2779696">Yogesh Pai</a></li>
</ul>
</th>
</tr>
</tbody>
</table>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms'>http://editors.cis-india.org/a2k/blogs/responses-to-the-dipps-discussion-paper-on-seps-and-their-availability-on-frand-terms</a>
</p>
No publisherAnubha Sinha, Nehaa Chaudhari, and Rohini LakshanéDIPPFeaturedAccess to Knowledge2016-07-07T16:24:01ZBlog EntryFAQ on the Aadhaar Project and the Bill
http://editors.cis-india.org/internet-governance/blog/aadhaar-project-and-bill-faq
<b>This FAQ attempts to address the key questions regarding the Aadhaar/UIDAI project and the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill, 2016 (henceforth, Bill). This is neither a comprehensive list of questions, nor does it contain fully developed answers. We will continue to add questions to this list, and edit/expand the answers, based on our ongoing research. We will be grateful to receive your comments, criticisms, evidences, edits, suggestions for new answers, and any other responses. These can either be shared as comments in the document hosted on Google Drive, or via tweets sent to the information policy team at @CIS_InfoPolicy. </b>
<p> </p>
<h4>To comment on and/or download the file, click <a href="https://docs.google.com/document/d/1ib5bQUgZZ7PABurMHlzmfwZK6932DFQI6hUlad-vwfI/edit?usp=sharing" target="_blank">here</a>.</h4>
<hr />
<iframe src="https://docs.google.com/document/d/1ib5bQUgZZ7PABurMHlzmfwZK6932DFQI6hUlad-vwfI/pub?embedded=true" height="500" width="100%"></iframe>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/aadhaar-project-and-bill-faq'>http://editors.cis-india.org/internet-governance/blog/aadhaar-project-and-bill-faq</a>
</p>
No publisherElonnai Hickok, Vanya Rakesh, and Vipul KharbandaUIDPrivacyInternet GovernanceFeaturedDigital IndiaAadhaarBiometricsHomepage2016-04-13T14:06:43ZBlog EntryCIS - A2K Work Plan: July 2016 - June 2017
http://editors.cis-india.org/a2k/blogs/cis-a2k-work-plan-july-2016-june-2017
<b>One of the key mandates of the Access to Knowledge (A2K) program at the Centre for Internet and Society (CIS) is to work towards catalyzing the growth of the free and open knowledge movement in Indic languages. CIS has been a steward of the Wikimedia movement in India since December 2008. Since September 2012, we at CIS-A2K, have been actively involved in growing the movement in India through (i) a grant received from the Wikimedia Foundation (WMF) for the period September 2012 - June 2014, (ii) the FDC Grant received for the period July 2014 - June 2015 and (iii) the FDC Grant received for the period July 2015 - June 2016. Based on the productive experience of working with various Indic Wikimedia communities, CIS-A2K has developed this work plan for July 2016 to June 2017.</b>
<p>This was originally published on <a class="external-link" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017">Meta-wiki</a> on April 2, 2016.</p>
<hr />
<p style="text-align: justify;">We have revised the work plan template taking into account the changed proposal plan sent out by WMF and in light of the feedback that we have received from FDC assessment during last proposal application. The FDC feedback is taken into account at the level of design, RoI and ensuring quality for all our activities.</p>
<h3 style="text-align: justify;">CIS-A2K responses towards Indic communities concerns</h3>
<p style="text-align: justify;">During the last plan period CIS-A2K received the following complaints, suggestions, and feedback. We have attempted to address the concerns under redesigned CIS-A2K 2.0. This table was first prepared during our progress report for the current grant and A2K would like to acknowledge the learnings derived out of the suggestions and feedback it received during the last plan. Please see the table <strong><a title="Grants:APG/Proposals/2014-2015 round2/The Centre for Internet and Society/Progress report form" href="https://meta.wikimedia.org/wiki/Grants:APG/Proposals/2014-2015_round2/The_Centre_for_Internet_and_Society/Progress_report_form#CIS-A2K_responses_towards_Indic_communities_concerns">here.</a></strong></p>
<h3 style="text-align: justify;"><strong>Background to CIS-A2K Program</strong></h3>
<p style="text-align: justify;"><strong>CIS-A2K is working with the Indic Wikimedia communities since December 2008, when Jimbo Wales came to India and visited Bangalore. In mid-2012 CIS-A2K received a financial grant from the Wikimedia Foundation (WMF) and since then it has been actively involved in growing the Wikimedia and free knowledge movement in India. Following a grant received from WMF for the period September 2012 to June 2014, CIS-A2K received FDC Grant for the periods July 2014 to June 2015 and July 2015 to June 2016. Based on the 41-month experience of working with various Indic Wikimedia communities, CIS-A2K has prepared this year's work plan for July 2016 to June 2017.</strong></p>
<h3 style="text-align: justify;"><strong>Objective</strong></h3>
<p style="text-align: justify;"><strong>CIS-A2K is committed to improve Wikimedia movement in India by supporting Indic Wikimedia communities and working on Wikimedia projects and collaborating with FOSS and other like minded movement partners. It also strives to catalyse the growth of open and free knowledge movement in South Asia and especially in India. Our main objectives are:</strong></p>
<ol style="text-align: justify;">
<li>
<div style="text-align: justify;"><strong>Bringing content under Creative Commons and similar free licenses;</strong></div>
</li>
<li>
<div style="text-align: justify;"><strong>Supporting and empowering Indic Wikimedia communities;</strong></div>
</li>
<li>
<div style="text-align: justify;"><strong>Building and maintaining institutional partnerships in order to support the open knowledge movement and creation of open knowledge resources;</strong></div>
</li>
<li>
<div style="text-align: justify;"><strong>Planning and executing Wikimedia projects with wider community participations and effective consultation;</strong></div>
</li>
<li>
<div style="text-align: justify;"><strong>Fostering and enabling an appropriate legal and technological ecosystem;</strong></div>
</li>
<li>
<div style="text-align: justify;"><strong>Building sustainable communities and grooming potential leaders to represent the communities and projects globally.</strong></div>
</li></ol>
<h3 style="text-align: justify;"><strong>Context</strong></h3>
<p style="text-align: justify;"><strong> </strong></p>
<p style="text-align: justify;">CIS-A2K has focussed on creating sustainable programmes and capacity development for communities in the last few years. CIS-A2K intends to continue its work during the proposed grant period and would continue to focus on the following Indian language Wikimedia projects: Kannada, Konkani, Marathi, Odia, Telugu (Focus Language Areas, FLA). In order to achieve higher RoI, A2K will be including Tulu in its language plan from this plan period.</p>
<p style="text-align: justify;">CIS-A2K will continue to provide general support and service to all other Indian language Wikimedia communities for all Wikimedia projects as necessary and as requested by the communities or individuals from the community through its request page and needs assessment workshops.</p>
<p style="text-align: justify;">Community strengthening initiatives will be prioritised in order to address the poor participation of Wikimedians from Indian sub continent in particular and global south in general. CIS-A2K has rolled out initiatives such as Train the Trainer and MediaWiki training, focused edit-a-thons and GLAM activities.</p>
<p style="text-align: justify;">CIS-A2K and Indian language Wikimedia communities would greatly benefit from collaborating with these initiatives and CIS-A2K during this grant period would attempt to bring these communities closer with a series of interactions, hack-a-thons and training sessions.</p>
<p style="text-align: justify;">Our institutional partnerships have played a very important role in content donation, generation of content, attracting new readers and editors and collaborating opportunities with existing community members. They have provided much needed press coverage towards Indian language Wikimedia projects. The institution partnerships and WEP have been redesigned as per community suggestions.</p>
<h3 style="text-align: justify;">Methodology</h3>
<p style="text-align: justify;">This work plan has been prepared based on an extensive engagement with various Wikimedia movement participants and enthusiasts in India. These include:</p>
<ol style="text-align: justify;">
<li>
<div style="text-align: justify;">Wikimedia community members across all Indic communities: We have talked to a large number of Indic Wikimedia community members and specially community members of our focused language areas;</div>
</li>
<li>
<div style="text-align: justify;">Institutional Partners of CIS-A2K: We have taken feedback and suggestions from our institutional partners regarding the challenges of conducting WEP;</div>
</li>
<li>
<div style="text-align: justify;">Like-minded advocates of free and open knowledge;</div>
</li>
<li>
<div style="text-align: justify;">Surveys and Interviews.</div>
</li></ol>
<h3 style="text-align: justify;">Performance against plans and projected targets</h3>
<p style="text-align: justify;"><strong>Overall</strong></p>
<p style="text-align: justify;"><img src="http://editors.cis-india.org/home-images/w1.jpg" alt="null" class="image-inline" title="w1" /></p>
<p style="text-align: justify;"><strong>Kannada</strong></p>
<p style="text-align: justify;"><img src="http://editors.cis-india.org/home-images/copy_of_w1.jpg" alt="null" class="image-inline" title="w2" /></p>
<p style="text-align: justify;"><strong>Konkani</strong></p>
<p style="text-align: justify;"><img src="http://editors.cis-india.org/home-images/copy2_of_w1.jpg" alt="null" class="image-inline" title="w3" /></p>
<p style="text-align: justify;"><strong>Marathi</strong></p>
<p style="text-align: justify;"><img src="http://editors.cis-india.org/home-images/copy3_of_w1.jpg" alt="null" class="image-inline" title="w4" /></p>
<p style="text-align: justify;"><strong>Odia</strong></p>
<p style="text-align: justify;"><img src="http://editors.cis-india.org/home-images/copy4_of_w1.jpg" alt="null" class="image-inline" title="Odia" /></p>
<p style="text-align: justify;"><strong>Telugu</strong></p>
<p style="text-align: justify;"><img src="http://editors.cis-india.org/home-images/copy6_of_w1.jpg" alt="null" class="image-inline" title="w6" /></p>
<p style="text-align: justify;"><strong>Progress against goals set</strong></p>
<p style="text-align: justify;"><img src="http://editors.cis-india.org/home-images/copy7_of_w1.jpg" alt="null" class="image-inline" title="Progress" /></p>
<h3 style="text-align: justify;">Language Area Work Plans</h3>
<table class="plain">
<tbody>
<tr>
<td style="text-align: justify;">
<p>CIS-A2K has put in significant efforts across four focus language areas Kannada, Konkani, Odia and Telugu during the previous work plans. CIS-A2K proposed and initiated Marathi as a focus language project during the last proposal plan. As A2K's strategy of working with FLA has resulted in community building and sustainable outreach efforts, we intend to work with the nascent Tulu community towards making Tulu Wikipedia live.</p>
<p style="text-align: justify;">The <a title="CIS-A2K/Work plan July 2016 - June 2017/Tulu" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Tulu">Tulu Wikipedia</a> plan is a 'minimal cost program' and is not budgeted same as the other FLA. A2K has been able to build a strong community in Mangalore for the Kannada and Konkani Wikimedia projects. Tulu community draws its editor base and institutional support from Mangalore, hence A2K's plans towards Kannada and Konkani Wikimedia projects can also have the added dimension of Tulu Wikipedia incubation activities.</p>
<p style="text-align: justify;">Detailed work-plan for each of these language areas may be seen here (in alphabetical order):</p>
<ul style="text-align: justify;">
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Kannada" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Kannada">Kannada</a></li>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Konkani" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Konkani">Konkani</a></li>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Marathi" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Marathi">Marathi</a></li>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Odia" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Odia">Odia</a></li>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Telugu" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Telugu">Telugu</a></li></ul>
<p> </p>
</td>
<td>
<p><img src="http://editors.cis-india.org/home-images/copy8_of_w1.jpg/@@images/ab0f737d-8061-40d7-bcad-f3850817771a.jpeg" alt="null" class="image-inline" title="Women's Wikipedia Editathon" /></p>
<p style="text-align: center;">Woman's day editathon at Christ University</p>
</td>
</tr>
</tbody>
</table>
<p style="text-align: justify;"><strong>Some of the key factors that determined the July 2016-June 2017 work plan:</strong></p>
<ol style="text-align: justify;">
<li><strong>Development of Focus Language Area Plan:</strong> A2K's strategy of building a plan along with the consultation of the community and further customised as per the feedback received by communities and FDC Staff have resulted well across five languages. CIS-A2K is pleased to inform that during July 2015-June 2016 it engaged with all the five focus language area plans as it has been able to recruit program officers and program associates for the vacant positions. It is important to note that while we are engaging with Tulu Wikipedia community with intentions of making Tulu Wikipedia live, it is also a 'minimal cost' program. It helps A2K in acheiving higher RoI for monetary resources and optimisation of staff and volunteer expertise.</li>
<li><strong>A2K 2.0 as a response to FDC and Indic Wikimedians' Feedback:</strong> As a learning derived out of FDC, WMF Board and Indic Wikimedians suggestions, CIS-A2K has revised its program structure and composition of work. Please find details of revised divisional of responsibilities of A2K team.</li>
<li><strong>Partnership and networking with institutions and groups:</strong> CIS-A2K has had the privilege of partnering with educational institutions and developmental organisations. These partnerships and collaborations not only resulted in significant quality-content contributions, but also lead to the diversification and expansion of that particular language Wikimedia community. In order to strengthen the communities, increase participation and conduct GLAM activities and attract content donation A2K would look out for possible institutional partnerships.</li>
<li><strong>Providing sustainability and developing leadership skills:</strong> A2K has always worked towards enabling Indian Language Wikimedia communities to achieve sustainability and visibility amongst the global communities. We have been greatly privilege to work with the Focus Language Communities and would like to pass on our learning through collaborations with other language communities, while exiting few of our current FLA programs. Through our skill building initiatives such as Train-the-Trainer, Media Wiki Training and Train-a-Wikipedian A2K has also been able to support growth of a new community of volunteers to support the existing community.</li></ol>
<h3><span id="Community_Strengthening_Initiatives" class="mw-headline">Community Strengthening Initiatives</span></h3>
<p style="text-align: justify;"><span id="Community_Strengthening_Initiatives" class="mw-headline"><strong> </strong></span><span class="mw-headline">CIS-A2K started two community strengthening initiatives— <a title="TTT" class="mw-redirect" href="https://meta.wikimedia.org/wiki/TTT">Train-the-Trainer</a> and <a title="MWTTT" class="mw-redirect" href="https://meta.wikimedia.org/wiki/MWTTT">MediaWiki Training</a> to grow and strengthen the Indic Wikimedia projects and the associated communities, both qualitatively and quantitatively. The earlier iteration of these two programs played an important role in connecting the Indian language Wikimedia communities and fostering multi-lingual projects. This year also CIS-A2K proposes to undertake these two successful community strengthening initiatives. In mid-March 2016, CIS-A2K conducted a 2-day-long nationwide Wikipedia Education Program review workshop that brought students and faculty members from institutions that are running WEP in partnership with CIS-A2K and several important topics such as structural challenges such as academic schedule, institutional interest, faculty buy-in and more importantly response by the students were discussed. This year also CIS-A2K proposes to conduct such a workshop.</span></p>
<h3><span id="Creating_Movement_Resources" class="mw-headline">Creating Movement Resources</span></h3>
<p><span id="Creating_Movement_Resources" class="mw-headline"> </span>CIS-A2K has been creating resources to help Indic Wikimedia communities. All the resources are created after assessing the communities' need assessment and close interactions with many of the active community members.</p>
<p>CIS-A2K proposed to create the following resources (this also include printed resources):</p>
<ul>
<li>Wikipedia editing tutorials</li>
<li>PEG and IEG application handbooks;</li>
<li>Handbook on how apply for various WMF scholarships;</li>
<li>Handbook on best practices for Wiki-events, workshops, meetup, outreach and other programs;</li>
<li>FAQ for content donors –give this job to a law school intern. No need of this handbook to be translated to Indian languages.</li>
<li>Bookmarks creation to increase awareness about Indian Wikimedia Projects;</li></ul>
<h3>General Support and Service to the Movement</h3>
<p style="text-align: justify;">CIS-A2K regularly supports Indic-language Wikimedia communities to conduct workshops, edit-a-thons and events to improve their projects. All these requests are placed at <a title="Talk:CIS-A2K/Requests" href="https://meta.wikimedia.org/wiki/Talk:CIS-A2K/Requests">CIS-A2K request page</a> and fulfilled after extensive community discussion and needs assessment.</p>
<p style="text-align: justify;">Currently CIS-A2K is working on a program named <a title="CIS-A2K/Train-a-Wikipedian" href="https://meta.wikimedia.org/wiki/CIS-A2K/Train-a-Wikipedian">Train-a-Wikipedian</a> (TAW) to identify enthusiastic Indic Wikipedians and train and groom them to develop their editing skills. We'll continue empowering Indic Wikimedia community members through this program.</p>
<h3 style="text-align: justify;">Learning and Evaluation</h3>
<p style="text-align: justify;">Following the <a title="Grants:Learning & Evaluation/Global metrics" href="https://meta.wikimedia.org/wiki/Grants:Learning_%26_Evaluation/Global_metrics">Global metrics</a> and discussions some members of the Wikimedia community, the A2K program had put together some evaluation tools to assess the impact of its work during the last year. We have included some more metrics for evaluation this year.</p>
<p style="text-align: justify;"><strong>Evaluation tools</strong></p>
<dt>Participation</dt>
<ol>
<li>Number of active editors involved</li>
<li>Number of newly registered users</li>
<li>Number of individuals involved</li></ol>
<dl><dt>Content</dt></dl>
<ol>
<li>Number of new images/media added to Wikimedia article pages</li>
<li>Number of new images/media uploaded to Wikimedia Commons</li>
<li>Number of articles added or improved on Wikimedia projects</li>
<li>Number of bytes added to and/or deleted from Wikimedia projects</li></ol>
<h3>Reports</h3>
<p style="text-align: justify;">CIS-A2K will undertake monthly and annually review of our work using the above evaluation tools. CIS-A2K report activities and progress to Wikimedia foundation in monthly meetings.<sup><a href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017#cite_note-1">[1]</a></sup> CIS-A2K team will also report the successes and learnings to the Wikimedia India & the Global Community. CIS-A2K team will actively review progress of each language area plan in collaboration with the respective Wikimedia community. Based on this feedback we will undertake mid-course corrections, should there be a need. To summarize following reports will be published in the year of 2016 - 2017:</p>
<ul>
<li>Progress report (for the current grant)</li>
<li>Impact Report (July 2016 - June 2017)</li>
<li>Monthly report to Wikimedia foundation;</li>
<li>Monthly Newsletters</li>
<li>Annual report to CIS</li></ul>
<h3>Monthly Review and Learning Sessions</h3>
<p style="text-align: justify;">Last year we <a title="CIS-A2K/Work plan July 2015 - June 2016" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2015_-_June_2016#Monthly_review_and_learning_sessions">wrote about</a> conducting monthly review and learning sessions. Currently CIS-A2K is conducting monthly learning sessions to critically reflect on the successes and failures of our work internally. The learnings are shared with Wikimedia Foundation for their feedback and suggestion. We'll continue conducting monthly reviews and learnings and progress will be shared with Wikimedia Foundation. We will try to share the same the Wikimedia India members.</p>
<h3 style="text-align: justify;">Budget</h3>
<p>Please find link to CIS-A2K program budget for proposed grant period July 2016-June 2017 <a title="CIS-A2K/Work plan July 2016 - June 2017/Budget" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Budget">here</a></p>
<h3>Feedback</h3>
<p>We appreciate your valuable feedback. However, for the sake of structured engagement by everyone, we request you to consider the following before you share your feedback.</p>
<ul>
<li>For feedback on the overall A2K Work Plan you can write <a title="Talk:CIS-A2K/Work plan July 2016 - June 2017" href="https://meta.wikimedia.org/wiki/Talk:CIS-A2K/Work_plan_July_2016_-_June_2017"><strong>here</strong></a>.</li>
<li>For feedback on respective Language area plans, please write on the discussion page of the respective language plan.</li></ul>
<dl><dd>
<ul>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Kannada" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Kannada"><strong>Kannada</strong></a> plan (<a title="Talk:CIS-A2K/Work plan July 2016 - June 2017/Kannada" href="https://meta.wikimedia.org/wiki/Talk:CIS-A2K/Work_plan_July_2016_-_June_2017/Kannada"><strong>discussions</strong></a>)</li>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Konkani" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Konkani"><strong>Konkani</strong></a> plan (<a title="Talk:CIS-A2K/Work plan July 2016 - June 2017/Konkani" href="https://meta.wikimedia.org/wiki/Talk:CIS-A2K/Work_plan_July_2016_-_June_2017/Konkani"><strong>discussions</strong></a></li>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Marathi" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Marathi"><strong>Marathi</strong></a> plan (<a title="Talk:CIS-A2K/Work plan July 2016 - June 2017/Marathi" href="https://meta.wikimedia.org/wiki/Talk:CIS-A2K/Work_plan_July_2016_-_June_2017/Marathi"><strong>discussions</strong></a>)</li>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Odia" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Odia"><strong>Odia</strong></a> plan (<a title="Talk:CIS-A2K/Work plan July 2014 - June 2015/Odia" href="https://meta.wikimedia.org/wiki/Talk:CIS-A2K/Work_plan_July_2014_-_June_2015/Odia"><strong>discussions</strong></a>)</li>
<li><a title="CIS-A2K/Work plan July 2016 - June 2017/Telugu" href="https://meta.wikimedia.org/wiki/CIS-A2K/Work_plan_July_2016_-_June_2017/Telugu"><strong>Telugu</strong></a> plan (<a title="Talk:CIS-A2K/Work plan July 2014 - June 2015/Telugu" href="https://meta.wikimedia.org/wiki/Talk:CIS-A2K/Work_plan_July_2014_-_June_2015/Telugu"><strong>discussions</strong></a>)</li></ul>
</dd></dl>
<ul>
<li>Alternatively you could also share your feedback over e-mail at tanveer@cis-india.org. Please use the subject line Feedback on Work Plan.</li>
<li>Should you feel the need to discuss any aspect of the plan before sharing your feedback, please write to us and we can set up a telephone/Skype call.</li></ul>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/cis-a2k-work-plan-july-2016-june-2017'>http://editors.cis-india.org/a2k/blogs/cis-a2k-work-plan-july-2016-june-2017</a>
</p>
No publishersunilCIS-A2KAccess to KnowledgeWikimediaWikipediaFeatured2016-04-29T09:36:45ZBlog EntryDataset: Patent Landscape of Mobile Device Technologies in India
http://editors.cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india
<b>Patent landscape of mobile technology patents and patent applications held by 50 companies operating in India. Licensed CC-BY-SA 4.0.</b>
<p><a href="http://editors.cis-india.org/a2k/blogs/cis-mobile-device-patent-landscape" class="internal-link">Dataset: Patent Landscape of Mobile Device Technologies in India</a></p>
<p>This dataset contains a landscape of 23,569 patents and patent applications registered in India and relevant to the domain of mobile technology. These patents and patent applications are held by 50 Indian and non-Indian companies operating in the country. The patent landscape has been released under the Creative Commons-Attribution-Share Alike 4.0 (CC-BY-SA 4.0) License as a part of the ongoing Pervasive Technologies research project.</p>
<p>For the detailed methdology used for drawing up this landscape, read: <a class="external-link" href="http://cis-india.org/a2k/blogs/patent-landscaping-in-the-indian-mobile-device-market">Methodology: Patent Landscaping in the Indian Mobile Device Marketplace</a></p>
<p>A paper titled <a class="external-link" href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2756486">"Patents and Mobile Devices in India: An Empirical Survey"</a> published on SSRN in March 2016 presents an analyis of this patent landscape.</p>
<p>For queries regarding the dataset or its reuse, write to <a class="mail-link" href="mailto:rohini@cis-india.org">rohini@cis-india.org</a>.</p>
<h3>Using this dataset:</h3>
<p><b>Assignee:</b> The assignee is one of 50 companies specified in<a class="external-link" href="http://cis-india.org/a2k/blogs/fifty-companies.pdf"> Annexure 4</a> of the methodology document. Where two assignees are mentioned, the patent was transferred from the second assignee to the first on account of sale of the patent, company merger, etc. For example, "Huawei|NEC" indicates that a patent that belonged to NEC was transferred to Huawei.</p>
<p><b>Patent Number:</b> This column contains the patent number in the case of granted patents and the application number in case of patent applications. Patent numbers have been coded in the Thomson Reuters database as IN<6 digit number>B. For example, the patent number 247760 in the Indian Patent Office database is coded as IN247760B in this dataset. The application number is coded as well. However, there is a separate column (Column R) for the application number as given in the Indian Patent Office database.</p>
<p><b>Level 1: </b>Patents and patent applications in the landscape have been categorised into: Body Design, Communication, Connectable Interfaces, Display, Energy Storage, Memory, Operational Blocks, Sensors, Software, and Sound, image and video.</p>
<p><b>Level 2: </b>Almost all categories have further been divided into sub-categories, i.e., Level 2 categories.</p>
<p><b>Infrastructure/ UE: </b>Refers to whether the patent pertains to infrastructure and the user equipment (IUE) or only the user equipment (UE).</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india'>http://editors.cis-india.org/a2k/blogs/dataset-patent-landscape-of-mobile-device-technologies-in-india</a>
</p>
No publisherrohiniFeaturedAccess to KnowledgePervasive Technologies2016-05-03T20:06:43ZBlog EntryConsultation on 'National Geospatial Policy' - Notes and Submission
http://editors.cis-india.org/openness/consultation-on-national-geospatial-policy-03022016
<b>The Department of Science and Technology, Government of India, has constituted a National Expert Committee for developing a draft National Geospatial Policy (NGP) to provide appropriate guidelines for collection, analysis, use, and distribution of geospatial information across India, and to assure data availability, accessibility and quality. A pre-drafting consultation meeting for the NGP was organised in Delhi on February 03, 2016. Ms. Anubha Sinha represented CIS at the meeting, and shares her notes.</b>
<p> </p>
<h3>National Geospatial Policy - Pre-Drafting Consultation Meeting</h3>
<p>Keeping in mind the importance of geospatial data in the context of national development, the Department of Science and Technology, Government of India, has constituted a National Expert Committee for developing a draft National Geospatial Policy (NGP). The Committee is Chaired by Major General Dr. R Siva Kumar, former Head of Natural Resources Data Management System (NRDMS) and CEO of National Spatial Data Infrastructure (NSDI), and Dr. Bhoop Singh, Head of NRDMS and NSDI Division at Department of Science and Technology, as Member Secretary. The Policy aims at providing appropriate guidelines for collection, analysis, use, and distribution of geospatial information across India, and to assure data availability, accessibility and quality.</p>
<p>A pre-drafting consultation meeting for the NGP was organised in Delhi by Dr. Valli Manickam, Professor at the Academic Staff College of India, on February 03, 2016, and CIS was invited to take part in it as the only participant from the civil society. The other participants included representatives from the geospatial industry and industry associations (like FICCI and CII), and Ms. Ranjana Kaul, Partner at Dua Associates. Among the drafting committee members, Major General Dr. R Siva Kumar, Dr. Bhoop Singh, Dr. Sandeep Tripathi (IFS), and Wing Commander Satyam Kushwaha were present.</p>
<p> </p>
<h3>National Geospatial Policy - Concept Note</h3>
<p>The purpose of the meeting was to hear the stakeholders' response to a Concept Note on the NGP, circulated prior to the meeting <strong>[1]</strong>. The Note sets out the principles and concerns of the proposed policy, which plans to guarantee geospatial data availability, accessibility, quality and in consonance with the imperatives of national security and intellectual property rights. The applicability of the policy is aimed at:</p>
<blockquote>all geospatial data created, generated and collected using public funds provided by Central and State Governments and International donor organizations, directly or through authorized agencies.</blockquote>
<p>The note suggests establishment of an "empowered body" to ensure proper creation, updates, management, dissemination, and sharing of the data, and management of an online portal for the same. The institutional mechanism to implement the policy will be composed of an Appellate authority / National High Power Implementation Committee, the NGP Implementation Committee, and the NGP Steering Committee.</p>
<p> </p>
<h3>Notes from the Meeting</h3>
<p>The Welcome Address was delivered by Dr. Bhoop Singh (Head of NRDMS and NSDI Division, DST) who informed the participants that the Expert Committee had already met National Security Council and heard their concerns on the policy. The principles on which the proposed policy is to be based were also shared. The policy resulted from an exercise started two years ago to fix quality and accuracy of geospatial data, which was when it was realised that there were significant gaps that need urgent redressal. It was also identified that in previous initiatives to manage geospatial data at the national level, some data-generating organisations had been left behind. The chief concerns for the Expert Committee are 1) tailoring a policy suited to India's unique security issues, 2) avoiding a blanket open policy that may lead to misuse of low resolution data, 3) heeding restrictions on mapping, considering that 43% of landmass was not represented on maps presently (a probable solution was to do feature based mapping), and 4) clarifying government regulation of drone-based mapping. Security concerns were raised frequently throughout the meeting. The Committee also recognised that for development, data sharing should be made more open. The Committee was keen to have the private industry as a partner in generation of geospatial data.</p>
<p>Private industry representatives agreed with the objectives of the policy and were willing to contribute to geospatial data generation. The Expert Committee mulled over the possibility of creating a Public Private Partnership to cater to data generation. The private industry complained about the lack of efforts in popularising geospatial technologies and making the process of tenders more transparent.</p>
<p>There were suggestions to examine the policies of other jurisdictions facing similar internal security threats as India, and delineating the types of data that could be openly shared (for instance, geospatial data from border regions versus non-border regions). Segregation of restricted and open geospatial data can also be done on the basis of its end-application, such as for military and engineering purposes. Participants also requested the creation of a clear Do's and Don'ts guideline. CIS presented a written submission that raised seven key concerns. These are listed in the section below.</p>
<p>On the question of making an open data policy, it was suggested that the committee needs to decide the fundamental approach of the policy first - whether the policy should be based on prohibition and restriction, or focus on identifying and regulating open and free geospatial. The UN General Assembly document on Principles relating to remote sensing of the Earth from space provides an appropriate international point of reference <strong>[2]</strong>.</p>
<p>After listening to the concerns and comments of the stakeholders, the core committee made the following concluding remarks:</p>
<ul><li>Existing policies of government and defence should be mapped out to avoid conflict or overlap with the proposed NGP policy</li>
<li>The sharing of data vests with government agencies and other organisations recommended by them – there needs to be a transparent mechanism for such recommendation based sharing</li>
<li>Industry should come up with self-regulatory mechanisms, do's and don'ts, and code of conduct</li>
<li>Develop a secure mechanism for providing data on sensitive areas (in terms of national security;</li>
<li>Even the defence agencies sometimes cannot access maps due to policies of the National Remote Sensing Centre and other agencies – such inconsistencies need to be fixed</li></ul>
<p>It was announced that the next consultation will occur in a couple of months, and will be open to the public at large, including representatives of industry, defence, and civil society.</p>
<p> </p>
<h3>Key Concerns about the NGP Concept Note</h3>
<p><strong>1. Complete lack of availability of open geospatial data from Indian government agencies:</strong> No government agency in India publish open geospatial data. While maps are often sold, both in printed and in digital form, they are not provided in a machine-readable open format and under an open license. The concept note towards NGP has made strong commitments towards changing this situation. There is an immediate need to participate in the NGP drafting process, with coordination among various civil society actors interested in open geospatial data, to ensure that these principles are carried into and operationalised in the actual NGP document.</p>
<p><strong>2. Need for explicit and comprehensive set of criteria to determine if a set of geospatial data is sensitive for national security reasons:</strong> In formal and informal conversations with various agencies collecting and creating geospatial data in India, the role played by security agencies in blocking proactive and reactive public disclosure of geospatial data, and even intra-governmental sharing of such data, has been highlighted. Addressing this issue requires development of an explicit and comprehensive list of criteria that will establish a clear and rule-based system for identifying if a specific geospatial data set is to be categorised as “shareable” or “non-shareable.”</p>
<p><strong>3. No clarity regarding legal status of citizen/crowd-sourced geospatial data, and initiatives to generate them:</strong> Open user-contributed geospatial data, especially through the OpenStreetMap platform, has emerged as a key driver of the global geospatial services industry. There is a legal ambiguity created by the National Mapping Policy regarding generation of such data in India, which came into focus when Survey of India filed a case against Google for organising a Mapathon contest, which invited Indian users to add metadata about physical and built features through Google Maps platform.1 The NGP needs to expressly provide legal sanction (and perhaps framework) for citizen/crowd-sourcing of geospatial data.</p>
<p><strong>4. Fragmented institutional structure for collection, management, and distribution of different kinds of geospatial data:</strong> Survey of India, Indian Institute of Remote Sensing, and Indian Space Research Organisation are all key government agencies involved in creating and managing geospatial data. Further, Election Commission of India is involved in preparing geospatial data about electoral units and their boundaries. The National Spatial Data Infrastructure was conceptualised to harmonise and centralise the geospatial data management processes, but is yet to be implemented with the backing of a policy or an Act. The NSDI can be institutionalised via the NGP as the national archive, aggregator, and distributor of open geospatial data, being originally collected and created by a range of government agencies.</p>
<p><strong>5. Integration of National Geospatial Policy with National Data Sharing and Accessibility Policy (NDSAP):</strong> The proactive disclosure of “shareable” geospatial data using open geospatial standards and under open licenses must be carried out under the purview of the NDSAP, and through the open government data platform established through NDSAP. The decisions regarding licensing of open government data, as being discussed by the a committee set up under NDSAP, must also be applicable to open geospatial data that will be published following the instructions of the NGP. Further, instead of multiple online sources of open geospatial data collected by various Indian government agencies, must be identified as the primary and necessary source for publication of open geospatial data.</p>
<p><strong>6. Integration of National Geospatial Policy with Right to Information (RTI) Act:</strong> Geospatial data must be treated as a special category of information under the RTI Act, which necessitates that if an Indian citizen requests for geospatial data from a government agency under the purview of RTI Act, the agency must provide the data in a human-readable and machine-readable open geospatial standard, and not only in the printed format, as key qualities of digital geospatial data can be substantially lost when printed in paper.</p>
<p><strong>7. Need for special infrastructure for management and publication of real-time geospatial (big) data, and governance of the same:</strong> With increasing number of government assets being geo-referenced for the purpose of more effective and real-time management, especially in the transportation sector, the corresponding agencies (which are often not mapping agencies) are acquiring a vast amount of high-velocity geospatial data, which needs to be analysed and (sometimes) published in the real-time. The need for special infrastructure for such data, as well as its governance, has not been discussed in the concept note for NGP, which is a major omission.</p>
<p> </p>
<h3>Endnotes</h3>
<p><strong>[1]</strong> See: <a href="https://github.com/cis-india/website/raw/master/docs/DST_National-Geospatial-Policy_Concept-Note_2016.01.21.pdf">https://github.com/cis-india/website/raw/master/docs/DST_National-Geospatial-Policy_Concept-Note_2016.01.21.pdf</a>.</p>
<p><strong>[2]</strong> UNGA 41/65. Principles Relating to Remote Sensing of the Earth from Space: <a href="http://www.unoosa.org/pdf/gares/ARES_41_65E.pdf">http://www.unoosa.org/pdf/gares/ARES_41_65E.pdf</a>.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/consultation-on-national-geospatial-policy-03022016'>http://editors.cis-india.org/openness/consultation-on-national-geospatial-policy-03022016</a>
</p>
No publishersinhaOpen DataOpen Government DataFeaturedGeospatial DataOpennessDigital India2016-03-29T17:03:31ZBlog EntryAnalysis of Aadhaar Act in the Context of A.P. Shah Committee Principles
http://editors.cis-india.org/internet-governance/blog/analysis-of-aadhaar-act-in-context-of-shah-committee-principles
<b>Whilst there are a number of controversies relating to the Aadhaar Act including the fact that it was introduced in a manner so as to circumvent the majority of the opposition in the upper house of the Parliament and that it was rushed through the Lok Sabha in a mere eight days, in this paper we shall discuss the substantial aspects of the Act in relation to privacy concerns which have been raised by a number of experts. In October 2012, the Group of Experts on Privacy constituted by the Planning Commission under the chairmanship of Justice AP Shah Committee submitted its report which listed nine principles of privacy which all legislations, especially those dealing with personal should adhere to. In this paper, we shall discuss how the Aadhaar Act fares vis-à-vis these nine principles.</b>
<p> </p>
<h2>Introduction</h2>
<p>The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (the “Aadhaar Act”) was introduced in the Lok Sabha (lower house of the Parliament) by Minister of Finance, Mr. Arun Jaitley, in on March 3, 2016, and was passed by the Lok Sabha on March 11, 2016. It was sent back by the Rajya Sabha with suggestions but the Lok Sabha rejected those suggestions, which means that the Act is now deemed to have been passed by both houses as it was originally introduced as a Money Bill. Whilst there are a number of controversies relating to the Aadhaar Act including the fact that it was introduced in a manner so as to circumvent the majority of the opposition in the upper house of the Parliament and that it was rushed through the Lok Sabha in a mere eight days, in this paper we shall discuss the substantial aspects of the Act in relation to privacy concerns which have been raised by a number of experts. In October 2012, the Group of Experts on Privacy constituted by the Planning Commission under the chairmanship of Justice AP Shah Committee submitted its report which listed nine principles of privacy which all legislations, especially those dealing with personal should adhere to. In this paper, we shall discuss how the Aadhaar Act fares vis-à-vis these nine principles.</p>
<p>In order for the reader to better understand the frame of reference on which we shall analyse the Aadhaar Act, the nine principles contained in the report of the Group of Experts on Privacy are explained in brief below:</p>
<ul><li><strong>Principle 1: Notice</strong> - Does the legislation/regulation require that entities governed by the Act give simple to understand notice of its information practices to all individuals, in clear and concise language, before any personal information is collected from them.</li>
<li><strong>Principle 2: Choice and Consent</strong> - Does the legislation/regulation require that entities governed under the Act provide the individual with the option to opt in/opt out of providing their personal information.</li>
<li><strong>Principle 3: Collection Limitation</strong> - Does the legislation/regulation require that entities governed under the Act collect personal information from individuals only as is necessary for a purpose identified.</li>
<li><strong>Principle 4: Purpose Limitation</strong> - Does the legislation/regulation require that personal data collected and processed by entities governed by the Act be adequate and relevant to the purposes for which they are processed.</li>
<li><strong>Principle 5: Access and Correction</strong> - Does the legislation/regulation allow individuals: access to personal information about them held by an entity governed by the Act; the ability to seek correction, amendments, or deletion of such information where it is inaccurate, etc.</li>
<li><strong>Principle 6: Disclosure</strong> - Does the legislation ensure that information is only disclosed to third parties after notice and informed consent is obtained. Is disclosure allowed for law enforcement purposes done in accordance with laws in force.</li>
<li><strong>Principle 7: Security</strong> - Does the legislation/regulation ensure that information that is collected and processed under that Act, is done so in a manner that protects against loss, unauthorized access, destruction, etc.</li>
<li><strong>Principle 8: Openness</strong> - Does the legislation/regulation require that any entity processing data take all necessary steps to implement practices, procedures, policies and systems in a manner proportional to the scale, scope, and sensitivity to the data that is collected and processed and is this information made available to all individuals in an intelligible form, using clear and plain language?</li>
<li><strong>Principle 9: Accountability</strong> - Does the legislation/regulation provide for measures that ensure compliance of the privacy principles? This would include measures such as mechanisms to implement privacy policies; including tools, training, and education; and external and internal audits.</li></ul>
<p> </p>
<h2>Analysis of the Aadhaar Act</h2>
<p>The Aadhaar Act has been brought about to give legislative backing to the most ambitious individual identity programme in the world which aims to provide a unique identity number to the entire population of India. The rationale behind this scheme is to correctly identify the beneficiaries of government schemes and subsidies so that leakages in government subsidies may be reduced. In furtherance of this rationale the Aadhaar Act gives the Unique Identification Authority of India (“UIDAI”) the power to enroll individuals by collecting their demographic and biometric information and issuing an Aadhaar number to them. Below is an analysis of the Act based on the privacy principles enumerated I the A.P. Shah Committee Report.</p>
<h3>Collection Limitation</h3>
<p><strong>Collection of Biometric and Demographic Information:</strong> The Aadhaar Act entitles every “resident”
<strong>[1]</strong> to obtain an Aadhaar number by submitting his/her biometric (photograph, finger print, Iris scan) and demographic information (name, date of birth, address <strong>[2]</strong>) <strong>[3]</strong>. It must be noted that the Act leaves scope for further information to be included in the collection process if so specified by regulations. It must be noted that although the Act specifically provides what information can be collected, it does not specifically prohibit the collection of further information. This becomes relevant because it makes it possible for enrolling agencies to collect extra information relating to individuals without any legal implications of such act.</p>
<p><strong>Authentication Records:</strong> The UIDAI is mandated to maintain authentication records for a period which is yet to be specified (and shall be specified in the regulations) but it cannot collect or keep any information regarding the purpose for which the authentication request was made <strong>[4]</strong>.</p>
<p><strong>Unauthorized Collection:</strong> Any person who in not authorized to collect information under the Act, and pretends that he is authorized to do so, shall be punishable with imprisonment for a term which may extend to three years or with a fine which may extend to Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/- <strong>[5]</strong>. It must be noted that the section, as it is currently worded seems to criminalize the act of impersonation of authorized individuals and the actual collection of information is not required to complete this offence. It is not clear if this section will apply if a person who is authorized to collect information under the Act in general, collects some information that he/she is not authorized to collect.</p>
<h3>Notice</h3>
<p><strong>Notice during Collection:</strong> The Aadhaar Act requires that the agencies enrolling people for distribution of Aadhaar numbers should give people notice regarding: (a) the manner in which the information shall be used; (b) the nature of recipients with whom the information is intended to be shared during authentication; and (c) the existence of a right to access information, the procedure for making requests for such access, and details of the person or department in-charge to whom such requests can be made <strong>[6]</strong>. A failure to comply with this requirement will make the agency liable for imprisonment of upto 3 years or a fine of Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/- <strong>[7]</strong>. It must be noted that the Act leaves the manner of giving such notice in the realm of regulations and does not specify how this notice is to be provided, which leaves important specifics to the realm of the executive.</p>
<p><strong>Notice during Authentication:</strong> The Aadhaar Act requires that authenticating agencies shall give information to the individuals whose information is to be authenticated regarding (a) the nature of information that may be shared upon authentication; (b) the uses to which the information received during authentication may be put by the requesting entity; and (c) alternatives to submission of identity information to the requesting entity <strong>[8]</strong>. A failure to comply with this requirement will make the agency liable for imprisonment of upto 3 years or a fine of Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/- <strong>[9]</strong>. Just as in the case of notice during collection, the manner in which the notice is required to be given is left to regulations leaving an unclear picture as to how comprehensive, accessible, and frequent this notice must be.</p>
<h3>Access and Correction</h3>
<p><strong>Updating Information:</strong> The Aadhaar Act give the UIDAI the power to require residents to update their demographic and biometric information from time to time so as to maintain its accuracy <strong>[10]</strong>.</p>
<p><strong>Access to Information:</strong> The Aadhaar Act provides that Aadhaar number holders may request the UIDAI to provide access to their identity information expect their core biometric information <strong>[11]</strong>. It is not clear why access to the core biometric information <strong>[12]</strong> is not provided to an individual. Further, since section 6 seems to place the responsibility of updation and accuracy of biometric information on the individual, it is not clear how a person is supposed to know that the biometric information contained in the database has changed if he/she does not have access to the same. It may also be noted that the Aadhaar Act provides only for a request to the UIDAI for access to the information and does not make access to the information a right of the individual, this would mean that it would be entirely upon the discretion of the UIDAI to refuse to grant access to the information once a request has been made.</p>
<p><strong>Alteration of Information:</strong> The Aadhaar Act gives individuals the right to request the UIDAI to alter their demographic if the same is incorrect or has changed and biometric information if it is lost or has changed. Upon receipt of such a request, if the UIDAI is satisfied, then it may make the necessary alteration and inform the individual accordingly. The Act also provides that no identity information in the Central database shall be altered except as provided in the regulations <strong>[13]</strong>. This section provides for alteration of identity information but only in the circumstances given in the section, for example demographic information cannot be changed if it has been lost, similarly biometric information cannot be changed if it is inaccurate. Further, the section does not give a right to the individual to get the information altered but only entitles him/her to request the UIDAI to make a change and the final decision is left to the “satisfaction” of the UIDAI.</p>
<p><strong>Access to Authentication Record:</strong> Every individual is given the right to obtain his/her authentication record in a manner to be specified by regulations. [14]</p>
<h3>Disclosure</h3>
<p><strong>Sharing during Authentication:</strong> The UIDAI is entitled to reply to any authentication query with a positive, negative or any other response which may be appropriate and may share identity information except core biometric information with the requesting entity <strong>[15]</strong>. The language in this provision is ambiguous and it is unclear what 'identity information' may be shared and why it would be necessary to share such information as Aadhaar is meant to be only a means of authentication so as to remove duplication.</p>
<p><strong>Potential Disclosure during Maintenance of CIDR:</strong> The UIDAI has been given the power to appoint any one or more entities to establish and maintain the Central Identities Data Repository (CIDR) <strong>[16]</strong>. If a private entity is involved in the maintenance and establishment of the CIDR it can be presumed that there is the possibilty that they would, to some degree, have access to the information stored in the CIDR, yet there are no clear standards in the Act regarding this potential access. And the process for appointing such entities. The fact that the UIDAI has been given the freedom to appoint an outside entity to maintain a sensitive asset such as the CIDR raises security concerns.</p>
<p><strong>Restriction on Sharing Information:</strong> The Aadhaar Act creates a blanket prohibition on the usage of core biometric information for any purpose other than generation of Aadhaar numbers and also prohibits its sharing for any reason whatsoever <strong>[17]</strong>. Other identity information is allowed to be shared in the manner specified under the Act or as may be specified in the regulations <strong>[18]</strong>. The Act further provides that the requesting entities shall not disclose the identity information except with the prior consent of the individual to whom the information relates <strong>[19]</strong>. There is also a prohibition on publicly displaying Aadhaar number or core biometric information except as specified by regulations <strong>[20]</strong>. Officers or the UIDAI or the employees of the agencies employed to maintain the CIDR are prohibited from revealing the information stored in the CIDR or authentication record to anyone <strong>[21]</strong>. It is not clear why an exception has been carved out and what circumstances would require publicly displaying Aadhaar numbers and core biometric information, especially since the reasons for which such important information may be displayed has been left up to regulations which have relatively less oversight. The section also provides the requesting entities with an option to further disclose information if they take consent of the individuals. This may lead to a situation where a requesting entity, perhaps the of an essential service, may take the consent of the individual to disclose his/her information in a standard form contract, without the option of saying no to such a request. It may lead to situations where the option is between giving consent to disclosure or denial or service altogether. For this reason it is necessary that there should be an opt in and opt out provision wherever a requesting entity has the power to ask for disclosure of information, so that people are not coerced into giving consent.</p>
<p><strong>Disclosure in Specific Cases:</strong> The prohibition on disclosure of information (except for core biometric information) does not apply in case of any disclosure made pursuant to an order of a court not below that of a District Judge <strong>[22]</strong>. There is another exception to the prohibition on disclosure of information (including core biometric information) in the interest of national security if so directed by an officer not below the rank of a Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government. Before any such direction can take effect, it will be reviewed by an oversight committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology. Any such direction shall be valid for a period of three months and may be extended by another three months after the review by the Oversight Committee <strong>[23]</strong>. Although this provision has been criticized, and rightly so, for the lack of accountability since the entire process is being handled within the executive and there is no independent oversight, however it must be mentioned that the level of oversight provided here is similar to that provided to interception requests, which involve a much graver if not the same level of invasion of privacy.</p>
<p><strong>Penalty for Disclosure:</strong> Any person who intentionally and in an unauthorized manner discloses, transmits, copies or otherwise disseminates any identity information collected in the course of enrolment or authentication shall be punishable with imprisonment of upto 3 years or a fine of Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/ <strong>[24]</strong>. Further any person who intentionally and in an unathorised manner, accesses information in the CIDR <strong>[25]</strong>, downloads, copies or extracts any data from the CIDR <strong>[26]</strong>, or reveals or shares or distributes any identity information, shall be punishable with imprisonment of upto 3 years and a fine of not less than Rs. 10,00,000/-.</p>
<h3>Consent</h3>
<p><strong>Consent for Authentication:</strong> A requesting entity has to take the consent of the individual before collecting his/her identity information for the purposes of authentication and also has to inform the individual of the alternatives to submission of the identity information <strong>[27]</strong>. Although this provision requires entities to take consent from the individuals before collecting information for authentication, however how useful this requirement of consent would be, still remains to be seen. There may be instances where a requesting entity may take the consent of the individual in a standard form contract, without the individual realizing what he/she is consenting to.</p>
<p><strong>Note:</strong> The Aadhaar Act provides no requirement or standard for the form of consent that must be taken during enrollment. This is significant as it is the point at which individuals are providing raw biometric material and during previous enrollment, has been a point of weakness as the consent taken is an enabler to function creep as it allows the UIDAI to share information with engaged in delivery of welfare services <strong>[28]</strong>.</p>
<h3>Purpose</h3>
<p><strong>Use of Information:</strong> The authenticating entities are allowed to use the identity information only for the purpose of submission to the CIDR for authentication <strong>[29]</strong>. Further, the Act specifies that identity information available with a requesting entity shall not be used for any purpose other than that specified to the individual at the time of submitting the information for authentication <strong>[30]</strong>. The Act also provides that any authentication entity which uses the information for any purpose not already specified will be liable to punishment of imprisonment of upto 3 years or a fine of Rs. 10,000/- or both. In case of companies the maximum fine amount would be increased to Rs. 10,00,000/ <strong>[31]</strong>.</p>
<h3>Security</h3>
<p><strong>Security and Confidentiality of Information:</strong> It is the responsibility of the UIDAI to ensure the security and confidentiality of the identity and authentication information and it is required to take all necessary action to ensure that the information in the CIDR is protected against unauthorized access, use or disclosure and against accidental or intentional destruction, loss or damage <strong>[32]</strong>. The UIDAI is required to adopt and implement appropriate technical and organisational security measures and also ensure that its contractors do the same <strong>[33]</strong>. It is also required to ensure that the agreements entered into with its contractors impose the same conditions as are imposed on the UIDAI under the Act and that they shall act only upon the instructions of the UIDAI <strong>[34]</strong>.</p>
<p><strong>Biometric Information to be Electronic Record:</strong> The biometric information collected by the UIDAI has been deemed to be an “electronic record” as well as “sensitive personal data or information”, which would mean that in addition to the provisions of the Aadhaar Act, the provisions contained in the Information Technology Act, 2000 will also apply to such information <strong>[35]</strong>. It must be noted that while the Act lays down the principle that UIDAI is required to ensure the saecurity of the information, it does not lay down any guidelines as to the minimum security standards to be implemented by the Authority. However, through this section the legislature has linked the security standards contained in the IT Act to the information contained in this Act. While this is a clean way of dealing with the issue, some people may argue that the extremely sensitive nature of the information contained in the CIDR requires the standards for security to be much stricter than those provided in the IT Act. However, a perusal of Rule 8 of the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 shows that the Rules themselves provide that the standard of security must be commensurate with the information assets being protected. It would thus seem that the Act provides enough room to protect such important information, but perhaps leaves too much room for interpretation for such an important issue.</p>
<p><strong>Penalty for Unauthorised Access:</strong> Apart from the security provisions included in the legislation, the Aadhaar Act also provides for punishment of imprisonment of upto 3 years and a fine which shall not be less than Rs. 10,00,000/-, in case of the following offences:</p>
<ol><li>introduction of any virus or other computer contaminant in the CIDR <strong>[36]</strong>;</li>
<li>causing damage to the data in the CIDR <strong>[37]</strong>;</li>
<li>disruption of access to the CIDR <strong>[38]</strong>;</li>
<li>denial of access to any person who is authorised to access the CIDR <strong>[39]</strong>;</li>
<li>destruction, deletion or alteration of any information stored in any removable storage media or in the CIDR or diminishing its value or utility or affecting it injuriously by any means <strong>[40]</strong>;</li>
<li>stealing, concealing, destroying or altering any computer source code used by the Authority with an intention to cause damage <strong>[41]</strong>.</li></ol>
<p>Further, unauthorized usage or tampering with the data in the CIDR or in any removable storage medium with the intent of modifying information relating to Aadhaar number holder or discovering any information thereof, is also punishable with imprisonment for a term which may extend to 3 years and also a fine which may extend to Rs. 10,000/- <strong>[42]</strong>.</p>
<h3>Accountability</h3>
<p><strong>Inspections and Audits:</strong> One of the functions listed in the powers and functions of the UIDAI is the power to call for information and records, conduct inspections, inquiries and audit of the operations of the CIDR, Registrars, enrolling agencies and other agencies appointed under the Aadhaar Act <strong>[43]</strong>.</p>
<p><strong>Grievance Redressal:</strong> Another function of the UIDAI is to set up facilitation centres and grievance redressal mechanisms for redressal of grievances of individuals, Registrars, enrolling agencies and other service providers <strong>[44]</strong>. It must be said here that considering the importance that the government has given to and intends to give to Aadhaar in the future, an essential task such as grievance redressal should not be left entirely to the discretion of the UIDAI and some grievance redressal mechanism should be incorporated into the Act itself.</p>
<h3>Openness</h3>
<p>There does not seem to be any provision in the Aadhaar Act which requires the UIDAI to make its privacy policies and procedure available to the public in general even though the UIDAI has the responsibility to maintain the security and confidentiality of the information.</p>
<p> </p>
<h2>Endnotes</h2>
<p><strong>[1]</strong> A resident is defined as any person who has resided in India for a period of atleasy 182 days in the previous 12 months.</p>
<p><strong>[2]</strong> It has been specified that demographic information will not include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history.</p>
<p><strong>[3]</strong> Section 3(1) of the Aadhaar Act.</p>
<p><strong>[4]</strong> Section 32(1) and 32(3) of the Aadhaar Act.</p>
<p><strong>[5]</strong> Section 36 of the Aadhaar Act.</p>
<p><strong>[6]</strong> Section 3(2) of the Aadhaar Act.</p>
<p><strong>[7]</strong> Section 41 of the Aadhaar Act.</p>
<p><strong>[8]</strong> Section 8(3) of the Aadhaar Act.</p>
<p><strong>[9]</strong> Section 41 of the Aadhaar Act.</p>
<p><strong>[10]</strong> Section 6 of the Aadhaar Act.</p>
<p><strong>[11]</strong> Section 28, <em>proviso</em> of the Aadhaar Act.</p>
<p><strong>[12]</strong> Core biometric information is defined as fingerprints, iris scan or other biological attributes which may be specified by regulations.</p>
<p><strong>[13]</strong> Section 31 of the Aadhaar Act.</p>
<p><strong>[14]</strong> Section 32(2) of the Aadhaar Act.</p>
<p><strong>[15]</strong> Section 8(4) of the Aadhaar Act.</p>
<p><strong>[16]</strong> Section 10 of the Aadhaar Act.</p>
<p><strong>[17]</strong> Section 29(1) of the Aadhaar Act.</p>
<p><strong>[18]</strong> Section 29(2) of the Aadhaar Act.</p>
<p><strong>[19]</strong> Section 29(3)(b) of the Aadhaar Act.</p>
<p><strong>[20]</strong> Section 29(4) of the Aadhaar Act.</p>
<p><strong>[21]</strong> Section 28(5) of the Aadhaar Act.</p>
<p><strong>[22]</strong> Section 33(1) of the Aadhaar Act.</p>
<p><strong>[23]</strong> Section 33(2) of the Aadhaar Act.</p>
<p><strong>[24]</strong> Section 37 of the Aadhaar Act.</p>
<p><strong>[25]</strong> Section 38(a) of the Aadhaar Act.</p>
<p><strong>[26]</strong> Section 38(b) of the Aadhaar Act.</p>
<p><strong>[27]</strong> Section 8(2)(a) and (c) of the Aadhaar Act.</p>
<p><strong>[28]</strong> For example, see: <a href="http://www.karnataka.gov.in/aadhaar/Downloads/Application%20form%20-%20English.pdf">http://www.karnataka.gov.in/aadhaar/Downloads /Application%20form%20-%20English.pdf</a>.</p>
<p><strong>[29]</strong> Section 8(2)(b) of the Aadhaar Act.</p>
<p><strong>[30]</strong> Section 29(3)(a) of the Aadhaar Act.</p>
<p><strong>[31]</strong> Section 37 of the Aadhaar Act.</p>
<p><strong>[32]</strong> Section 28(1), (2) and (3) of the Aadhaar Act.</p>
<p><strong>[33]</strong> Section 28(4)(a) and (b) of the Aadhaar Act.</p>
<p><strong>[34]</strong> Section 28(4)(c) of the Aadhaar Act.</p>
<p><strong>[35]</strong> Section 30 of the Aadhaar Act.</p>
<p><strong>[36]</strong> Section 38(c) of the Aadhaar Act.</p>
<p><strong>[37]</strong> Section 38(d) of the Aadhaar Act.</p>
<p><strong>[38]</strong> Section 38(e) of the Aadhaar Act.</p>
<p><strong>[39]</strong> Section 38(f) of the Aadhaar Act.</p>
<p><strong>[40]</strong> Section 38(h) of the Aadhaar Act.</p>
<p><strong>[41]</strong> Section 38(i) of the Aadhaar Act.</p>
<p><strong>[42]</strong> Section 39 of the Aadhaar Act.</p>
<p><strong>[43]</strong> Section 23(2)(l) of the Aadhaar Act.</p>
<p><strong>[44]</strong> Section 23(2)(s) of the Aadhaar Act.</p>
<p> </p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/analysis-of-aadhaar-act-in-context-of-shah-committee-principles'>http://editors.cis-india.org/internet-governance/blog/analysis-of-aadhaar-act-in-context-of-shah-committee-principles</a>
</p>
No publisherVipul KharbandaBig DataPrivacyInternet GovernanceFeaturedDigital IndiaAadhaarBiometricsHomepage2016-03-17T19:43:53ZBlog EntryFueling the Affordable Smartphone Revolution in India
http://editors.cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india
<b>Smartphones have emerged as the exemplar of mankind's quest for shrinking technologies. They embody the realization of a simple premise – that computing devices would do more and cost less. This realization has been responsible for modern society's profound transformations in communication, governance, and knowledge distribution.</b>
<p>The essay was published as part of the <a class="external-link" href="http://www.digitalasiahub.org/thegoodlife/">The Good Life in Asia's Digital 21st Century essay collection</a>.</p>
<hr />
<p style="text-align: justify; ">The launch of the iPhone in 2007 is often credited with ushering in an era of smartphones. Ever since, the world's best tech R&D has focused on increasing the capabilities of these devices. And as a result, less than a decade later, we have sub-hundred dollar smartphones. The low-cost smartphone has found an enthusiastic and insatiable market in developing countries, especially Asia. India is no exception to the Asian narrative – Micromax, Spice, and Lava (low cost smartphone manufacturers) are household names in the Indian smartphone market, which accounted for 65% of internet traffic in 2014 (Meeker, 2015).</p>
<p style="text-align: justify; ">The Indian Prime Minister, carrying the twin aspirations of catalyzing the growth of indigenous manufacturing and bridging the digital divide, launched the “Digital India” and “Make in India” campaigns last year. During his US visit, Google, Apple, Microsoft, Facebook extended their support to the campaigns' vision (Guynn, 2011). The campaigns outline the government's elaborate initiatives to, inter alia, bridge the digital divide and build indigenous manufacturing capacity. While all these developments bode well for the indigenous smartphone, there remain some serious concerns affecting the growth of the industry – for instance, patent infringement litigations and the absence of clear legal and regulatory solutions.</p>
<p style="text-align: justify; ">From the state of the industry and its implications, it can be concluded that: first, growing access to smartphones has been influenced by their phenomenal affordability; second, smartphones are an excellent example of technology for development (UNDP, 2001) and a facilitator of access to knowledge; and third, domestic smartphone production has occurred in an imprecise legal and regulatory environment.</p>
<p style="text-align: justify; ">This essay attempts to build an appreciation for the role that smartphones are playing in development, specifically, by fostering Access to Knowledge. Conversations around development by public-interest groups and emerging industries often espouse Access to Knowledge to address concerns in international development, communications, technology, education, and intellectual property policy. Whereas the principle can be regarded as in-theworks, two theories inform us about the role of mobile phones in fostering Access to Knowledge. Lea Sheaver's theory classifies mobile as an Access-toKnowledge good. Lea enumerates the five key components of a robust Access to Knowledge framework, viz., education for information literacy, access to the global knowledge commons, access to knowledge goods, an enabling legal framework, and effective innovation systems (Sheaver, 2007). According to her, affordability of the good is the ultimate indicator of its efficacy as an access to knowledge good. Furthermore, inventions in microchip technology, electronics manufacturing, and software need to be supported by enabling legal and policy frameworks coupled with effective innovation systems.</p>
<p style="text-align: justify; ">Yochai Benkler's framework classifies mobile-devices as both informationembedded goods and information-embedded tools (Benkler, 2006). He says, “Information-embedded goods are those goods which are ‘better, more plentiful or cheaper because of some technological advance embedded in them or associated with their production,’ such as medicines, movies, and improved crop seed. Information-embedded tools, in turn, are those technologies necessary for research, innovation, and communication of knowledge” (Benkler, 2006). A smartphone qualifies as both because it can be used to obtain knowledge, and it depends on discoveries in microchip technology, electronics manufacturing, and software to function.</p>
<p style="text-align: justify; ">To date, there has been no formal, theoretical or evidentiary investigation on the emergence of smartphones as an Access-to-Knowledge good. In the following sections, I will attempt to explain the smartphone’s dependence on an enabling legal framework and effective innovation systems (Lea's components). It must be borne in mind that globally, discussions affecting access to knowledge have aimed at creating balanced and inclusive systems related to intellectual property (Kapczynski & Krikorian, 2010). Therefore, the essay will focus on: first, the relationship between constituent mobile technologies and intellectual property as a function of production/deployment of smartphones in India; and second, the relationship between innovation and access.</p>
<h3 style="text-align: justify; ">Creating an Enabling Legal Framework to Foster Access to Knowledge</h3>
<p style="text-align: justify; ">The adage “the only lesson you can learn from history is that it repeats itself” is worth bearing in our narrative. The emergence of the smartphones industry in Asia has commonalities with the flourishing Asian piracy trade – which remains an essential access solution for low-income societies constantly barraged by expensive western media goods. The prohibitive cost of acquiring brand-name devices (e.g. Apple, HTC, Samsung, Sony) drove local production to imitate and innovate cheaper substitutes (WIPO, 2010). This occurred within the lenient and flexible intellectual property regimes prevalent in Asian countries, which continue to be constantly criticized for their failure to enact stricter intellectual property law. The hubs of smartphone production – China, Taiwan, and India – have flexible intellectual property protection law and lax enforcement measures (Centre for Internet and Society, 2012).</p>
<p style="text-align: justify; ">Concerns of intellectual property center around patent and copyright legislation, which have yet to be fully developed to address intellectual property in high-tech industries (since trademark issues remain unchanged, they will not be discussed in the essay.) As a result, constituent smartphone technologies have been shaped and governed by a blend of formal and informal rules and legal and illegal practices. This is why they are often referred to as “gray market” technologies. A smartphone in terms of constituent intellectual property can be broadly divided into hardware and software technologies. This piece will first deal with hardware, followed by software technologies.</p>
<h3 style="text-align: justify; ">Hardware Technologies and Their Relationship with IP Law</h3>
<p style="text-align: justify; ">Presently, most Indian manufacturers import hardware from China and Taiwan, and assemble the phones in India. A few key Indian domestic players are Maxx Mobile, Intex, Spice, and Lava, whose dominance have not gone unnoticed by foreign manufacturers. A couple of these domestic manufacturers are now embroiled in patent litigation threats or infringement suits. And as litigation piles up in Indian courts, the judiciary is slowly waking up to mobile patent litigation, but is yet to rule comprehensively. To make matters worse, the jurisdiction of the Indian antitrust regulator remains unclear, and to a certain extent overlaps with the judiciary, adding to the ambiguity. For instance, when an appellate court ruled in favor of the Swedish tech-giant Ericsson, it ordered Micromax to pay a flat 1.25 – 2% of its devices' selling price to Ericsson (Lakshane, 2015). The ruling was devoid of a more rational and reasoned approach developed by courts of other jurisdictions in similar matters, which prescribed that the infringers pay damages based on the price of the patented components only, and not the retail price of the phones. This decision risks causing a significant increase in the price of phones and potentially threatens local innovation.</p>
<p style="text-align: justify; ">The Indian government's Make in India and Digital India campaigns aim to fulfill the vision of a digitally empowered India, and the 2015 Indian Union budget also targets boosting the electronics manufacturing industry. Despite these broad initiatives, there needs to be a more focused policy in place to ensure domestic companies do not get weighed down by patent related concerns. The root cause of litigation is the vesting of a majority of critical mobile patents (Standard Essential Patents, or SEPs) by a handful tech-giants. For instance, Qualcomm owns 5700 patents around CDMA technology (qualcomm.com). In another instance, the DVD format constitutes 311 SEPs for DVD players and 272 SEPs for DVD recorders (CIS, 2012). Such a dense concentration of patents around SEPs creates a patent thicket and thereby compels Smartphone manufacturers to acquire multiple licenses, and to pay high transaction costs and huge royalties to the owner. To reduce conflict and protect domestic players from being arm-twisted into paying high royalties, the government can potentially identify critical technologies and initiate the formation of a patent pool of such technologies. The concept of a patent pool mandates that the patent holders issue licenses on fair, reasonable, and nondiscriminatory basis to interested parties. However, a nuanced and cautious approach to setting up such pools is necessary (Shapiro, 2001).</p>
<p style="text-align: justify; ">There are interesting lessons in China's steps to encourage local innovation of Smartphone hardware as well, specifically in the form of standardized technologies. The Chinese government has actively supported the development of indigenous standards to shield domestic manufacturers from royalty exposure. In fact, the China Blue High-definition Disc (CBHD) standard was built as an alternative to the Blu-ray disc and was duly adopted by the Chinese government, which reportedly caused the royalty rates for the Blu-ray format to dip. Much later, Warner Bros, Paramount, and other motion picture producers adopted the CBHD standard as well for distribution in China.</p>
<h3 style="text-align: justify; ">Software Technologies and Their Relationship with IP Law</h3>
<p style="text-align: justify; ">Unlike hardware technology, where India is struggling to build manufacturing capacity, the success of the Indian software industry has already been realized. The software-as-a-service (SaAS) industry is led by Infosys, TCS, and Wipro in software exports. The prevailing trend in the industry since the 1980s was to assign ownership of their products to offshore clients. However, in the past decade, there has been a conscious shift by the Indian software development workforce to build products for Smartphone platforms. This is in response to the shift in local populations to accessing content and services online. Reports indicate that India has the second largest population of mobile applications developers (approx. 3 million) in the world, second only to the US (Livemint, 2015). The Indian government has recognized the potential of mobile application-based ventures and created funds to encourage app development in India (IAMAI, 2015).</p>
<p style="text-align: justify; ">Intellectual property protection around software is fairly ambiguous. A piece of code is potentially capable of gaining both patent and copyright protection. In the area of mobile application development, preliminary research findings indicate that coding occurs with an agnostic attitude towards intellectual property laws (Cassar, 2014). One of the reasons is ambiguity on a multitude of issues around the protection of software because Indian legislation on patent and copyright is frustratingly insufficient. There is a growing discontentment about long-term patent protection over software code, which could be detrimental to innovation – particularly, to the start-up segment of software industry. In more technologically advanced economies, software patenting has emerged as a scourge – last year, the US Supreme Court in Alice Corporation Pty Ltd v. CLS Bank International Et Al narrowed the eligibility of software inventions to gain patent protection. The activist discourse has shifted in favor of eliminating software patenting because of the incremental and obsolescent nature of a software invention, inter alia (Lapowsky, 2015). However, in a recent disappointing move, the Indian patent office widened the scope of patent-eligible subject matter for software-related inventions – a move that was decried by free software activists and industry alike. This widening of scope can only benefit tech-giants in building bigger patent portfolios, which is unnecessary and unhealthy for innovation by small and mid-tier entities (Sinha, 2015).</p>
<h3 style="text-align: justify; ">Effective Innovation Systems</h3>
<p style="text-align: justify; ">Innovation ensures fresh creation of knowledge. A society cannot premise itself on the mere importation of knowledge; it must also strive to use the knowledge to meet its own local needs and environment. Innovation depends on a variety of factors – there is no singular path or factor to build an innovative and enterprising society. The patent system is often incorrectly credited with “promoting” innovation. The discourse around innovation was extremely patent-centric until studies disproved the assumptive correlation between high patenting activity and innovation. Continuing in the same vein, Lea states, “From the A2K perspective, however, relying on patents – which represent the right to exclude others from access to the innovation – is particularly problematic. Patents likely represent the segment of innovation of least value for expanding access to knowledge: improvements in the knowledge stock whose application is limited by exclusive property rights” (Shaver, 2007).</p>
<p style="text-align: justify; ">In this framework, it is also important to shed light on the growing movement of openness. Openness as a movement has been captured by various fields - Big data, software, education, media, etc. Free and Open Source Software has emerged as a key agent in information technology policy-making in India, with the Indian government adopting an open standards policy and an open software policy for its own purposes.</p>
<p style="text-align: justify; ">In the context of smartphone technologies, preliminary findings also support the shift towards openness (Huang, 2014). Industry participants have observed that openness will lead to greater benefits in private production of hardware technologies. Similarly, mobile applications developers have also voiced support of open source software (Cassar, 2014).</p>
<h3 style="text-align: justify; ">Conclusion</h3>
<p style="text-align: justify; ">The discussion above identified a limited set of legal and regulatory concerns affecting the state of production/deployment of smartphones in India. These issues and findings are backed by preliminary research, and purport to sustain the emergence of the smartphone as an enabler of access to knowledge. The proposed solutions direct industry and the government alike to take immediate steps to fix problems impeding pervasive access to this knowledge good.</p>
<p style="text-align: justify; ">The experience of the smartphone industry with an imprecise legal and regulatory environment, akin to piracy, has thus far been a success story of affordability, quality substitution, and innovation. However, this narrative is now threatened by messy litigation, jurisdictional uncertainties between the anti-trust regulator and judicial system, SEP licensing issues, rise of software patents, inter alia. Despite these issues, the industry continues to grow. The future of access to knowledge is therefore bright, provided that stakeholders make efforts to meet the needs of this emerging industry and the public, including development and consumer interests.</p>
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<p><strong> References / Links / Resources</strong></p>
<ol>
<li>Benkler, Y. (2006). The Wealth Of Networks: How Social Production Transforms Markets And Freedom. Retrieved from http://www.benkler.org/wealth_of_networks/index.php?title=Chapter_9%2C_section_3.</li>
<li>Cassar, S. (2014). Interviews with App Developers: Open Source, Community, and Contradictions – Part III. Retrieved from: http://cis-india.org/a2k/blogs/interviews-with-app-developers-open-sourcecommunity-and-contradictions-iii</li>
<li>Cassar, S. (2014) Ambiguity in the App Store: Understanding India’s emerging IT sector in light of IP. Retrieved from http://cis-india.org/a2k/blogs/ambiguity-in-the-app-store</li>
<li>Centre for Internet and Society, Pervasive Technologies: Access to Knowledge in the Marketplace(2012, September). Retrieved from http://cis-india.org/a2k/pervasive-technologies-research-proposal.pdf/view</li>
<li>Guynn, J. (2015, September 28). Facebook, Silicon Valley like Indian Prime Minister Narendra Modi. Retrieved from http://www.usatoday.com/story/tech/2015/09/27/narendra-modi-india-facebook-markzuckerberg-google-sundar-pichai-silicon-valley/72936544/</li>
<li>Huang, M. (2014). [Open] Innovation and Expertise > Patent Protection & Trolls in a Broken Patent Regime (Interviews with Semiconductor Industry - Part 3). Retrieved from: http://cis-india.org/a2k/blogs/ interviews-with-semi-conductor-industry-part-3</li>
<li>IAMAI (2015). An inquiry into India's app economy.</li>
<li>Kapczynski, A., Krikorian, G., (2010). Access to Knowledge in the Age of Intellectual Property. Retrieved from: https://mitpress.mit.edu/sites/default/files/titles/free_download/9781890951962_Access_to_ Knowledge_in_the_Age_of_Intellectual_Property.pdf</li>
<li>Lakshane, R. (2015, September). FAQ: CIS Proposal for Compulsory Licensing of Critical Mobile Technologies. Retrieved from: http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-ofcritical-mobile-technologies</li>
<li>Lakshane, R. (2015, February). Open Letter to Prime Minister Modi. Retrieved from: http://cis-india.org/ a2k/blogs/open-letter-to-prime-minister-modi</li>
<li>Lapowsky, I. (2015, February). If You Want to Fix Software Patents, Eliminate Software Patents. Retrieved from https://www.eff.org/mention/follow-wired-twitter-facebook-rss-eff-if-you-want-fix-software-patentseliminate-software</li>
<li>Meeker, M. (2015). 2015 Internet Trends. Retrieved from http://www.kpcb.com/partner/mary-meeker</li>
<li>PTI (2015). Google aims to make India a hub for app development. Livemint. Retrieved from: http:// www.livemint.com/Industry/rwWUfp30YezONe0WnM1TIO/Google-aims-to-make-India-a-hub-for-appdevelopment.html</li>
<li>Qualcomm Enters Into CDMA Modem Card License Agreement with Seiko Instruments Incorporated. (n.d.). Retrieved November 13, 2015, from https://www.qualcomm.com/news/releases/2000/06/20/ qualcomm-enters-cdma-modem-card-license-agreement-seiko-instruments</li>
<li>Shapiro, C. (2001). Navigating the Patent Thicket: Cross Licenses, Patent Pools, and Standard Setting. Innovation Policy and the Economy, 1, 119-150. Retrieved from: http://www.nber.org/chapters/c10778.pdf</li>
<li>Shaver, L. (2007). Defining and Measuring Access to Knowledge: Towards an A2K Index. Faculty Scholarship Series. Paper 22. retrieved from: http://digitalcommons.law.yale.edu/fss_papers/22</li>
<li>Sinha, A. (2015). Comments on the Guidelines for Examination of Computer Related Inventions (CRIs). Retrieved from http://cis-india.org/a2k/blogs/comments-on-the-guidelines-for-examination-of-computerrelated-inventions-cris</li>
<li>United Nations Development Programme, Human Development Report 2001: Making New Technologies Work for Human Development (2001). Retrieved from http://hdr.undp.org/reports/global/2001/en/</li>
<li>World Intellectual Property Organisation. (2010, Dec 1-2). Media Piracy in Emerging Economies: Price, Market Structure and Consumer Behavior. Retrieved from the WIPO website: http://www.wipo.int/edocs/ mdocs/enforcement/en/wipo_ace_6/wipo_ace_6_5.pdf</li>
</ol>
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For more details visit <a href='http://editors.cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india'>http://editors.cis-india.org/a2k/blogs/digital-asia-hub-the-good-life-in-asias-21-st-century-anubha-sinha-fueling-the-affordable-smartphone-revolution-in-india</a>
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No publishersinhaFeaturedIntellectual Property RightsAccess to KnowledgePervasive Technologies2016-03-16T15:23:43ZBlog Entry