The Centre for Internet and Society
http://editors.cis-india.org
These are the search results for the query, showing results 61 to 75.
Konkani Wikipedia Goes Live After 'Nine Years' of Incubation
http://editors.cis-india.org/openness/blog-old/konkani-wikipedia-goes-live
<b>Konkani Wikipedia is the second Wikimedia project after Odia Wikisource that has gone live out of incubation. The project stayed in the incubation for nine long years and the community has gone through a long debate to have a Wikipedia of their own. Here is a blog highlighting three Konkani Wikimedians and an advocate of the Wikipedia movement whose efforts finally paid off.</b>
<p>Read the original blog entry published on Wikimedia Blog on July 15, 2015 <a class="external-link" href="http://blog.wikimedia.org/2015/07/15/konkani-wikipedia-goes-live/">here</a>.</p>
<hr />
<p style="text-align: justify;">The Goan Konkani Wikipedia (available at <a href="https://gom.wikipedia.org">gom.wikipedia.org</a>) has gone live after spending nine long years in incubation.</p>
<p style="text-align: justify;">An Indo-Aryan language, of the Indo-European family of languages, Konkani is the official language of <a title="w:Goa" href="https://en.wikipedia.org/wiki/Goa">Goa</a>. It is a minority language in other Indian states, such as <a title="w:Maharashtra" href="https://en.wikipedia.org/wiki/Maharashtra">Maharashtra</a>, <a title="w:Karnataka" href="https://en.wikipedia.org/wiki/Karnataka">Karnataka</a>, northern <a title="w:Kerala" href="https://en.wikipedia.org/wiki/Kerala">Kerala</a>, <a title="w:Dadra and Nagar Haveli" href="https://en.wikipedia.org/wiki/Dadra_and_Nagar_Haveli">Dadra and Nagar Haveli</a>, and <a title="w:Daman and Diu" href="https://en.wikipedia.org/wiki/Daman_and_Diu">Daman and Diu.</a> It is spoken by about 7.4 million people.</p>
<p style="text-align: justify;">Konkani can be written in five different scripts: Devanagari—officially used by the Government of Goa—as well as Latin (locally known as <a href="https://en.wikipedia.org/wiki/Konkani_in_the_Roman_script">Romi Konkani</a>), Kannada, Malayalam, and Persian. Of these, the Goan Antruz dialect of the language, in the Devanagari script, is considered <a title="en:Konkani alphabets" href="https://en.wikipedia.org/wiki/Konkani_alphabets">standard</a> by the Indian constitution.</p>
<p style="text-align: justify;">The Konkani Wikipedia has many heroes, as we see them. <a title="gom:User:Melissa Simoes" href="https://gom.wikipedia.org/wiki/User:Melissa_Simoes">Melissa Simoes</a> and <a title="gom:User:Darshan kandolkar" href="https://gom.wikipedia.org/wiki/User:Darshan_kandolkar">Darshan Kandolkar</a> are two of the many long-term contributors who joined during the <a href="https://meta.wikimedia.org/wiki/CIS-A2K/Konkani_Wikipedia_@Goa_University">Konkani Wikipedia @ Goa University</a> program and are still active even after the program formally concluded. Darshan is an assistant professor at the <a title="w:Government College Pernem" href="https://en.wikipedia.org/wiki/Government_College_Pernem">Government College Pernem</a> in Goa. His professor at <a title="w:Goa University" href="https://en.wikipedia.org/wiki/Goa_University">Goa University</a>, Dr. Madhavi Sardesai—who passed away last year—played a vital role in inspiring him to go for higher studies in Konkani. Darshan realized that there is a lot to be written in Konkani when he was introduced to Wikipedia, and after that, he became dedicated to contributing to the project.</p>
<p style="text-align: justify;">“I would like to bring more students as contributors to our Konkani Wikipedia,” Darshan says. “My aim is to start with my students at Government College Pernem. Being an alumnus of Goa University, I also want my juniors there to join our community and enrich Konkani Wikipedia.”</p>
<p style="text-align: justify;">“I have a dream to start a project for the freedom fighters of Goa and involve a diverse set of people, from students to journalists and columnists. I also want to build partnership with educational institutions so we could engage with the students for a longer run and the existing Konkani community could mentor them,” he continues.</p>
<p style="text-align: justify;">“Being a new Wikipedia project, Konkani Wikipedia needs more quality measures and the articles have to grow to good quality articles with more images and templates, I want to take it to the level of English Wikipedia with both quantitative and qualitative growth in articles!”</p>
<p style="text-align: justify;">The Konkani Wikimedia community has been using social media actively to promote the Konkani Wikipedia project, and to celebrate the successes of its contributors. After Melissa became the top contributor to the project, her fellow editor <a title="incubator:User:Konknni mogi 24" href="https://incubator.wikimedia.org/wiki/User:Konknni_mogi_24">Luis Gomes</a> <a href="https://www.facebook.com/groups/konkaniwikipedia/permalink/485802771575565">congratulated</a> her. That brought Melissa into the spotlight, gaining the attention of editors from the global Wikimedia community. The community is continuing a tradition to rewarding the most prolific contributor of each month as the “Wikipedian of the Month”.</p>
<p style="text-align: justify;">Melissa was introduced to the Wikipedia program at her university where the target for each participating student was to write one article each about a village in Goa. “I wrote my article just for the sake of the marks, but never bothered to think about why I am writing it. After the program was over, I became inactive on Wikipedia.</p>
<p style="text-align: justify;">“After some time, I met Father [Luis Gomes] in parish and then Darshan and Father inspired me to resume editing. Then, it became an addiction and I never stopped even for a day. I would come back from work and sit in front of my computer.</p>
<p style="text-align: justify;">“Now, I am a teacher, and my fellow teachers are mostly women. I would like to introduce the Goan Konkani Wikipedia to them so they could also contribute to Wikipedia,” Melissa says.</p>
<p style="text-align: justify;">As Konkani Wikipedia went live, long term Wikimedian Fredrick Noronha, an early advocate of Konkani Wikipedia, said, “It is a wonderful feeling to see the Goan Konkani Wikipedia live. I would like to congratulate all who have been involved in some or the other way with the making of Konkani Wikipedia live from the days of its inception and incubation.</p>
<p style="text-align: justify;">“I am not a great contributor or even a language expert. I come from a content background and found my interest in Wikipedia, Wikimedia Commons and Creative Commons long ago. But this helped me to associate myself in some way with the Konkani Wikipedia incubator. I am happy that CIS-A2K chipped in to help build a community and help it grow in collaboration with the Goa University.</p>
<p style="text-align: justify;">“Students of the Konkani department in the university are the real heroes to take this effort forward by filling the Wikipedia incubator with more editing activity to which the institutional backing acted as catalyst,” he added.</p>
<p style="text-align: justify;">Fredrick feels there are major challenges that the community now has to start taking measures for: “The macrolanguage is written in multiple scripts. Out of five of the scripts three—Devanagari, Romi/Latin and Kannada—are actively used in printing and publication currently. People using all the scripts should be equally participating in a movement like Wikipedia to take their languages to other native speakers using Wikipedia as a digital tool.</p>
<p style="text-align: justify;">“The second challenge is with the contributors. Goa, being home to majority of the Konkani language speakers, has English education from the primary level. This means many have a great level of technical ability. The technical contributor community here would be of great use to Konkani Wikipedia if tapped,” he adds.</p>
<p style="text-align: justify;">“The technical contributors are eager to contribute but have not been approached in a manner that would interest them. Similarly the Konkani authors who are helping propagate the language to masses have sadly no or very little clue about Wikipedia’s existence in Konkani. This disparity is stopping a massive flow of local encyclopedic content to the Konkani Wikipedia. Unless we tap into the technological and the linguistic groups it will be only a tip of the iceberg.”</p>
<p style="text-align: justify;">Fredrick explains that the the current Konkani Wikipedia community is primarily made up of students of Goa University. “This is both good and bad,” he says. “Having young and enthusiastic students as Wikipedia editors is helping the project to leap forward, which might not have happened if the faculty were targeted instead. There is, however, a great need for diversification.</p>
<p style="text-align: justify;">“The approach to bring in authors in the 60–70 years age group will vary from the approach to bring in, for example, technical people. Our outreach strategies should ultimately fulfill both the literary and technological contributors, so that their work can help us to both grow content and to solve the problem of the multiple scripts, respectively,” Fredrick adds.</p>
<p style="text-align: justify;">The Konkani Wikipedia community is organizing a <a href="https://www.facebook.com/events/1449555445347537/">public seminar</a> on July 18 at <a href="https://www.unigoa.ac.in/">Goa University</a> to celebrate the launch of the Konkani Wikipedia and to pay tribute to Dr. Madhavi Sardesai, who always dreamed of the Konkani Wikipedia getting out of incubation.</p>
<hr />
<h2>Video</h2>
<table class="invisible">
<tbody>
<tr>
<th style="text-align: center;"><iframe src="https://commons.wikimedia.org/wiki/File%3ADarshan_Kandolkar_talks_about_Konkani_Wikipedia.webm?embedplayer=yes" frameborder="0" height="288" width="512"></iframe><br /></th>
</tr>
<tr>
<th>
<p>Wikimedian <a title="w:gom:User:Darshan Kandolkar" href="https://en.wikipedia.org/wiki/gom:User:Darshan_Kandolkar">Darshan Kandolkar</a> shares his experience of contributing to Konkani Wikipedia. <br />Video in Konkani. <a href="https://commons.wikimedia.org/wiki/File:Darshan_Kandolkar_talks_about_Konkani_Wikipedia.webm">Video</a> by <a title="m:Wikimedia India" href="https://meta.wikimedia.org/wiki/Wikimedia_India">Wikimedia India</a>, freely licensed under <a href="https://creativecommons.org/licenses/by-sa/4.0/deed.en">CC-BY-SA 4.0.</a></p>
</th>
</tr>
</tbody>
</table>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/blog-old/konkani-wikipedia-goes-live'>http://editors.cis-india.org/openness/blog-old/konkani-wikipedia-goes-live</a>
</p>
No publishersubhaCreative CommonsAccess to KnowledgeWikimediaWikipediaFeaturedKonkani WikipediaHomepage2016-06-18T18:15:05ZBlog EntryDesiSec: Cybersecurity and Civil Society in India
http://editors.cis-india.org/internet-governance/blog/desi-sec-cybersecurity-and-civil-society-in-india
<b>As part of its project on mapping cyber security actors in South Asia and South East Asia, the Centre for Internet & Society conducted a series of interviews with cyber security actors. The interviews were compiled and edited into one documentary. The film produced by Purba Sarkar, edited by Aaron Joseph, and directed by Oxblood Ruffin features Malavika Jayaram, Nitin Pai, Namita Malhotra, Saikat Datta, Nishant Shah, Lawrence Liang, Anja Kovacs, Sikyong Lobsang Sangay and, Ravi Sharada Prasad.</b>
<p style="text-align: justify; ">Originally the idea was to do 24 interviews with an array of international experts: Technical, political, policy, legal, and activist. The project was initiated at the University of Toronto and over time a possibility emerged. Why not shape these interviews into a documentary about cybersecurity and civil society? And why not focus on the world’s largest democracy, India? Whether in India or the rest of the world there are several issues that are fundamental to life online: Privacy, surveillance, anonymity and, free speech. DesiSec includes all of these, and it examines the legal frameworks that shape how India deals with these challenges.</p>
<p style="text-align: justify; ">From the time it was shot till the final edit there has only been one change in the juridical topography: the dreaded 66A of the IT Act has been struck down. Otherwise, all else is in tact. DesiSec was produced by Purba Sarkar, shot and edited by Aaron Joseph, and directed by Oxblood Ruffin. It took our team from Bangalore to Delhi and, Dharamsala. We had the honour of interviewing: Malavika Jayaram, Nitin Pai, Namita Malhotra, Saikat Datta, Nishant Shah, Lawrence Liang, Anja Kovacs, Sikyong Lobsang Sangay and, Ravi Sharada Prasad. Everyone brought something special to the discussion and we are grateful for their insights. Also, we are particularly pleased to include the music of Charanjit Singh for the intro/outro of DesiSec. Mr. Singh is the inventor of acid house music, predating the Wikipedia entry for that category by five years. Someone should correct that.</p>
<p>DesiSec is released under the Creative Commons License Attribution 3.0 Unported (CC by 3.0). You can watch it on Vimeo: <a href="https://vimeo.com/123722680" target="_blank">https://vimeo.com/123722680</a> or download it legally and free of charge via torrent. Feel free to show, remix, and share with your friends. And let us know what you think!</p>
<hr />
<h2>Video</h2>
<p><iframe frameborder="0" height="315" src="https://www.youtube.com/embed/8N3JUqRRvys" width="560"></iframe></p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/desi-sec-cybersecurity-and-civil-society-in-india'>http://editors.cis-india.org/internet-governance/blog/desi-sec-cybersecurity-and-civil-society-in-india</a>
</p>
No publisherLaird BrownCensorshipPrivacyFreedom of Speech and ExpressionInternet GovernanceCyber Security FilmFeaturedChilling EffectCyber SecurityHomepageCyber Security Interview2015-06-29T16:25:43ZBlog Entry International Open Data Charter: First Public Draft
http://editors.cis-india.org/openness/blog-old/international-open-data-charter-first-public-draft
<b>The first public draft of the International Open Data Charter was released at the International Open Data Conference in Ottawa, Canada, May 28-29, 2015. It is being developed by a range of organisations led by the Open Government Partnership (OGP) Open Data Working Group (co-chaired by Government of Canada and the Web Foundation), the Government of Mexico, the Open Data for Development (OD4D) Network, and Omidyar Network. CIS has contributed comments to a previous version of the draft, and also took part in the pre-release meeting of potential stewards of the Charter on May 26 in Ottawa. Here is the text of the draft Charter. Please visit opendatacharter.net/charter/ to submit your comments.</b>
<p> </p>
<h2>Consultation Draft, May 2015</h2>
<p> </p>
<h3>Preamble</h3>
<p> </p>
<p style="text-align: justify;"><strong>1)</strong> The world is witnessing the growth of a global movement facilitated by technology and digital media and fuelled by information – one that contains enormous potential to create more accountable, efficient, responsive, and effective governments and businesses, and to spur economic growth.</p>
<p>Open data sit at the heart of this global movement.</p>
<p style="text-align: justify;"><strong>2)</strong> Building a more democratic, just, and prosperous society requires transparent, accountable governments that engage regularly and meaningfully with citizens. Accordingly, there is an ongoing effort to enable collaboration around key social challenges, to provide effective oversight of government activities, to support economic development through innovation, and to develop effective, efficient public policies and programmes.</p>
<p>Open data is essential to meeting these challenges.</p>
<p style="text-align: justify;"><strong>3)</strong> Effective access to data allows individuals and organisations to develop new insights and innovations that can generate social and economic benefits to improve the lives of people around the world, and help to improve the flow of information within and between countries. While governments collect a wide range of data, they do not always share these data in ways that are easily discoverable, useable, or understandable by the public.</p>
<p>This is a missed opportunity.</p>
<p style="text-align: justify;"><strong>4)</strong> Today, many people expect to be able to access high quality information and services, including government data, when and how they want. Others see the opportunity presented by government data as one which can provide innovative policy solutions and support economic and social benefits for all members of society. We have arrived at a point at which people can use open data to generate value, insights, ideas, and services to create a better world for all.</p>
<p style="text-align: justify;"><strong>5)</strong> Open data can increase transparency around what government is doing. Open data can also increase awareness about how countries’ natural resources are used, how extractives revenues are spent, and how land is transacted and managed – all of which promotes accountability and good governance, enhances public debate, and helps to combat corruption.</p>
<p style="text-align: justify;"><strong>6)</strong> Providing access to government data can drive sustainable and inclusive growth by empowering citizens, the media, civil society, and the private sector to identify gaps, and work toward better outcomes for public services in areas such as health, education, public safety, environmental protection, and governance. Open data can do this by:</p>
<ul>
<li style="text-align: justify;">showing how and where public money is spent, which provides strong incentives for governments to demonstrate that they are using public money effectively;</li>
<li style="text-align: justify;">supporting citizens, civil society organisations, governments and the private sector to collaborate on the design of policies and the delivery of better public services;</li>
<li style="text-align: justify;">supporting assessments of the impact of public programs, which in turn allows governments, civil society organisations, and the private sector to respond more effectively to the particular needs of local communities; and</li>
<li>enabling citizens to make better informed choices about the services they receive and the service standards they should expect.</li></ul>
<p style="text-align: justify;"><strong>7)</strong> Open government data can be used in innovative ways to create useful tools and products that help to navigate modern life more easily. Used in this way, open data are a catalyst for innovation in the private sector, supporting the creation of new markets, businesses, and jobs. These benefits can multiply as more private sector and civil society organisations adopt open data practices modelled by government and share their own data with the public.</p>
<p style="text-align: justify;"><strong>8)</strong> We, the adherents to the International Open Data Charter, agree that open data are an under-used resource with huge potential to encourage the building of stronger, more interconnected societies that better meet the needs of our citizens and allow innovation and prosperity to flourish.</p>
<p style="text-align: justify;"><strong>9)</strong> We therefore agree to follow a set of principles that will be the foundation for access to, and the release and use of, open government data. These principles are:</p>
<ul>
<li>Open Data by Default;</li>
<li>Quality and Quantity;</li>
<li>Accessible and Useable by All;</li>
<li>Engagement and Empowerment of Citizens;</li>
<li>Collaboration for Development and Innovation;</li></ul>
<p style="text-align: justify;"><strong>10)</strong> We will develop an action plan in support of the implementation of the Charter and its Technical Annexes, and will update and renew the action plan at a minimum of every two years. We agree to commit the necessary resources to work within our political and legal frameworks to implement these principles in accordance with the technical best practices and timeframes set out in our action plan.</p>
<p> </p>
<h3>Principle 1: Open Data by Default</h3>
<p> </p>
<p style="text-align: justify;"><strong>11)</strong> We recognise that free access to, and the subsequent use of, government data are of significant value to society and the economy, and that government data should, therefore, be open by default.</p>
<p style="text-align: justify;"><strong>12)</strong> We acknowledge the need to promote the global development and adoption of tools and policies for the creation, use, and exchange of open data and information.</p>
<p style="text-align: justify;"><strong>13)</strong> We recognise that the term ‘government data’ is meant in the widest sense possible. This could apply to data held by national, federal, and local governments, international government bodies, and other types of institutions in the wider public sector. This could also apply to data created for governments by external organisations, and data of significant benefit to the public which is held by external organisations and related to government programmes and services (e.g. data on extractives entities, data on transportation infrastructure, etc).</p>
<p style="text-align: justify;"><strong>14)</strong> We recognise that there is domestic and international legislation, in particular pertaining to security, privacy, confidentiality, intellectual property, and personally-identifiable and other sensitive information, which must be observed and/or updated where necessary.</p>
<p><strong>15)</strong> We will:</p>
<ul>
<li style="text-align: justify;">develop and adopt policies and practices to ensure that all government data is made open by default, as outlined in this Charter, while recognising that there are legitimate reasons why some data cannot be released;</li>
<li>provide clear justifications as to why certain data cannot be released;</li>
<li style="text-align: justify;">establish a culture of openness, not only through legislative or policy measures, but also with the help of training and awareness programs, tools, and guidelines designed to make government, civil society, and private sector representatives aware of the benefits of open data; and</li>
<li>develop the leadership, management, oversight, and internal communication policies necessary to enable this transition to a culture of openness.</li></ul>
<p> </p>
<h3>Principle 2: Quality and Quantity</h3>
<p> </p>
<p style="text-align: justify;"><strong>16)</strong> We recognise that governments and other public sector organisations hold vast amounts of information that may be of interest to citizens, and that it may take time to identify data for release or publication.</p>
<p style="text-align: justify;"><strong>17)</strong> We also recognise the importance of consulting with citizens, other governments, non-governmental organisations, and other open data users, to identify which data to prioritise for release and/or improvement.</p>
<p><strong>18)</strong> We agree, however, that governments’ primary responsibility should be to release data in a timely manner, without undue delay.</p>
<p><strong>19)</strong> We will:</p>
<ul>
<li style="text-align: justify;">create, maintain, and share public, comprehensive lists of data holdings to set the stage for meaningful public discussions around data prioritisation and release;</li>
<li style="text-align: justify;">release high-quality open data that are timely, comprehensive, and accurate in accordance with prioritisation that is informed by public requests. To the extent possible, data will be released in their original, unmodified form and at the finest level of granularity available, and will also be linked to any visualisations or analyses created based on the data, as well as any relevant guidance or documentation;</li>
<li>ensure that accompanying documentation is written in clear, plain language, so that it can be easily understood by all;</li>
<li style="text-align: justify;">make sure that data are fully described, and that data users have sufficient information to understand their source, strengths, weaknesses, and any analytical limitations;</li>
<li style="text-align: justify;">ensure that open datasets include consistent core metadata, and are made available in human- and machine-readable formats under an open and unrestrictive licence;</li>
<li>allow users to provide feedback, and continue to make revisions to ensure the quality of the data is improved as needed; and</li>
<li style="text-align: justify;">apply consistent information lifecycle management practices, and ensure historical copies of datasets are preserved, archived, and kept accessible as long as they retain value.</li></ul>
<p> </p>
<h3>Principle 3: Accessible and Usable by All</h3>
<p> </p>
<p><strong>20)</strong> We recognise that opening up data enables citizens, governments, civil society organisations, and the private sector to make better informed decisions.</p>
<p><strong>21)</strong> We recognise that open data should be made available free of charge in order to encourage their widest possible use.</p>
<p style="text-align: justify;"><strong>22)</strong> We recognise that when open data are released, they should be made available without bureaucratic or administrative barriers, such as mandatory user registration, which can deter people from accessing the data.</p>
<p><strong>23)</strong> We will:</p>
<ul>
<li style="text-align: justify;">release data in open formats and free of charge to ensure that the data are available to the widest range of users to find, access, and use them. In many cases, this will include providing data in multiple formats, so that they can be processed by computers and used by people; and</li>
<li style="text-align: justify;">ensure data can be accessed and used effectively by the widest range of users. This may require the creation of initiatives to raise awareness of open data, promote data literacy, and build capacity for effective use of open data.</li></ul>
<p> </p>
<h3>Principle 4: Engagement and Empowerment of Citizens</h3>
<p> </p>
<p style="text-align: justify;"><strong>24)</strong> We recognise that the release of open data strengthens our public and democratic institutions, encourages better development, implementation, and assessment of policies to meet the needs of our citizens, and enables more meaningful, better informed engagement between governments and citizens.</p>
<p><strong>25)</strong> We will:</p>
<ul>
<li>implement oversight and review processes to report regularly on the progress and impact of our open data initiatives;</li>
<li style="text-align: justify;">engage with community and civil society representatives working in the domain of transparency and accountability to determine what data they need to effectively hold governments to account;encourage the use of open data to develop innovative, evidence-based policy solutions that benefit all members of society, as well as empower marginalised groups; and</li>
<li>be transparent about our own data collection, standards, and publishing processes, by documenting all of these related processes online.</li></ul>
<p> </p>
<h3>Principle 5: Collaboration for Development and Innovation</h3>
<p> </p>
<p><strong>26)</strong> We recognise the importance of diversity in stimulating creativity and innovation. The more citizens, governments, civil society, and the private sector use open data, the greater the social and economic benefits that will be generated. This is true for government, commercial, and non-commercial uses.</p>
<p style="text-align: justify;"><strong>27)</strong> We recognise that the potential value of our open data is greatly increased when it can be used in combination with open data from other governments, the private sector, academic, media, civil society, and other non-governmental organisations.</p>
<p><strong>28)</strong> We will:</p>
<ul>
<li style="text-align: justify;">create or explore potential partnerships to support the release of open data and maximise their impact through effective use. This may include local, regional, and global partnerships between governments, civil society, and the private sector;</li>
<li>engage with civil society, the private sector, and academic representatives to determine what data they need to generate social and economic value;</li>
<li style="text-align: justify;">provide training programs, tools, and guidelines designed to ensure government employees are capable of using open data effectively in policy development processes;</li>
<li style="text-align: justify;">encourage non-governmental organisations to open up data created and collected by them in order to move toward a richer open data ecosystem with multiple sources of open data;</li>
<li style="text-align: justify;">share technical expertise and experience with other governments and international organisations around the world, so that everyone can reap the benefits of open data; and</li>
<li style="text-align: justify;">empower a future generation of data innovators inside and outside of government by supporting an environment optimised for increasing open data literacy and encouraging developers, civil society organisations, academics, media representatives, government employees, and other open data users, to unlock the value of open data.</li></ul>
<p style="text-align: justify;"><em>Crossposted from <a href="http://opendatacharter.net/charter/" target="_blank">http://opendatacharter.net/charter/</a>.</em></p>
<p>
For more details visit <a href='http://editors.cis-india.org/openness/blog-old/international-open-data-charter-first-public-draft'>http://editors.cis-india.org/openness/blog-old/international-open-data-charter-first-public-draft</a>
</p>
No publishersumandroOpen DataHomepageOpenness2015-06-02T15:51:12ZBlog EntryCall for Participation: Global Congress on Intellectual Property and the Public Interest
http://editors.cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest
<b>We are pleased to announce the call for participation for the fourth edition of the Global Congress on Intellectual Property and the Public Interest (“Global Congress”), being hosted at New Delhi from December 15 to 17, 2015. </b>
<p style="text-align: justify; ">The theme for this year’s Congress will be “<i>Three Decades of Openness; Two Decades of TRIPS</i>.” We are now inviting applications to participate in the Congress, including session participation and presentations. We are also welcoming proposals for panels and workshops.</p>
<p style="text-align: justify; ">The application form is available now at [<a href="http://form.jotformpro.com/form/50854976184973">http://form.jotformpro.com/form/50854976184973?</a>] Please note that this form is for application purposes, and does not amount to confirmation of participation. The registrations for the plenary sessions, which are open to the public, will open closer to the date of the Global Congress.</p>
<h3 style="text-align: justify; ">Deadlines</h3>
<p style="text-align: justify; "><b>August 1st: </b>Priority Deadline for Applications- Applicants will be considered on a rolling basis, with applications made by August 1st being given first consideration. Applications after August 1st to receive travel assistance will be considered only under exceptional circumstances (these details will be collected in a subsequent form).</p>
<p><b>November 1st: </b>All applications for session participation and paper submissions will close on November 1st.</p>
<h3>Application Information</h3>
<p><i>For applications to participate/host</i>: Applications to present or host workshops shall be considered based on the proposals to be submitted in the form.</p>
<p style="text-align: justify; "><i>For applications to attend sessions:</i> Applications to attend sessions as discussants will be considered based on the statement of purpose and/or any other relevant information provided by the applicant.</p>
<p style="text-align: justify; ">Limited travel grants to cover accommodation and/or travel to the Congress will be available, with priority to those from developing countries.</p>
<h3 style="text-align: justify; ">Background, Theme and Expected Outcomes</h3>
<p style="text-align: justify; ">The Global Congress on Intellectual Property and the Public Interest is the most significant event on the calendar for scholars and policy advocates working on intellectual property from a public interest perspective. By sharing their research and strategies, the network of experts and activists supported by the Global Congress are empowered to put forward a positive agenda for policy reform. The Global Congress began in Washington D.C. in 2011, moved to Rio de Janeiro in 2012, and was held in Cape Town in 2013. The fourth Global Congress will now be held in New Delhi, in December 2015. The event would be the largest convening of public interest-oriented intellectual property practitioners ever held in Asia, and would help link in the world's most populous region to these global debates around how intellectual property policy can best serve the public interest.</p>
<p style="text-align: justify; ">The fourth edition of the Global Congress brings research, civil society, industry and regulatory and policy-making communities together for active, intense engagement on key public-interest intellectual property issues. Opportunities for these groups to interact are rare but valuable; and have been proven to lead to successful policy outcomes. The 4<sup>th</sup> edition of the Congress, slated to be held in December, 2015 in New Delhi seeks to be one such opportunity.</p>
<p style="text-align: justify; ">The theme for the 2015 Congress is <i>Three Decades of Openness; Two Decades of TRIPS-</i>coming at a pivotal time for reflection, revision, and further strategizing. Specifically, the 2015 Congress seeks to produce three outcomes- <i>first, </i>the mobilization of existing scholarly research directly into the hands of civil society advocates, business leaders and policy makers, leading to evidence-based policies and practices; <i>second,</i> the collaborative identification of urgent, global and local research priorities and generation of a joint research/advocacy agenda; and <i>third</i>, the solidification of an inter-disciplinary, cross-sector and global networked community of experts focused on public interest aspects of IP policy and practice.</p>
<h3 style="text-align: justify; ">Participation Opportunities</h3>
<p style="text-align: justify; ">Discussions at the Global Congress will be carried out in the form of plenary sessions, thematic tracks, cross-track sessions, and the room of scholars. Participation is invited for the thematic track sessions, cross-track sessions and the room of scholars.</p>
<p style="text-align: justify; ">The thematic tracks at the Global Congress are: 1) Openness, 2) Access to Medicines, 3) User Rights, 4) IP and Development. Cross-track sessions will feature research that cuts across tracks in order to facilitate engagement between tracks on themes of mutual interest.</p>
<p style="text-align: justify; ">The Room of Scholars will feature presentations of research outputs such as draft works or white papers that may not fit directly within the thematic tracks but fall within the overall theme of the Global Congress.</p>
<p style="text-align: justify; ">Participation could be in the form of presenting / discussing conference papers or policy briefs, or by conducting workshops where they may share their own work and solicit feedback from peers, during the aforementioned sessions.</p>
<p style="text-align: justify; ">The application form for participation is available now at <a href="http://form.jotformpro.com/form/50854976184973">http://form.jotformpro.com/form/50854976184973?</a>. Please forward this invitation to interested lists and individuals. For more information or questions, you may contact <a href="mailto:global-congress@cis-india.org">global-congress@cis-india.org</a>.</p>
<h3 style="text-align: justify; ">Organisation</h3>
<p style="text-align: justify; ">The 4<sup>th</sup> Global Congress on Intellectual Property and Public Interest, is being organised in cooperation with <a href="http://www.nludelhi.ac.in/">National Law University, Delhi</a>, by the <a href="http://americanassembly.org/">American Assembly</a> at Columbia University, the <a href="http://cis-india.org/">Centre for Internet and Society</a>, <a href="http://www.openair.org.za/">Open A.I.R</a>., and the <a href="http://www.pijip.org/">Program on Information Justice and Intellectual Property</a> at American University Washington College of Law.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest'>http://editors.cis-india.org/a2k/blogs/call-for-participation-global-congress-on-intellectual-property-and-the-public-interest</a>
</p>
No publishersinhaIntellectual Property RightsHomepageGlobal CongressAccess to Knowledge2015-06-24T16:11:07ZBlog Entry2015 USTR Report: Old Wine in New Bottle
http://editors.cis-india.org/a2k/blogs/2015-ustr-report-old-wine-in-new-bottle
<b>Every year, the Office of the United States Trade Representative (USTR) undertakes an elaborate exercise to castigate countries' domestic intellectual property (IP) law and policy. The criticisms and recommendations are presented in a document called the Special 301 Report. This year's edition puts India on the Priority Watch List for the twenty-sixth time in a row. Below, I rebut the report's prejudicial claims and demands, and argue that the report puts free speech, innovation and public interest in jeopardy. </b>
<p> </p>
<a href="http://cis-india.org/a2k/blogs/2010-special-301">Keeping
in tradition </a>, the
2015 report yet again exposes US' hypocrisy by faithfully serving Hollywood and Big Pharma. In the past, countries
such as Israel and Canada have
publicly rejected the USTR's findings and derided the US for
unwarranted interference with domestic law and policy. Last year,
India too had refused to cooperate with a USTR initiated unilateral
investigation (Out of Cycle review) of its IP regime because the
investigation violated international law.
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">The
Electronic Frontier Foundation has released a hard-hitting response
to the report. It draws <a href="https://www.eff.org/special-404">case
studies of countries</a>
where overbroad IP law has affected public interest, free speech and
innovation. For instance, it mentions how Colombia's 'reformed'
copyright law has become a travesty. Colombia introduced extreme
enforcement and harsh criminal sanctions for unauthorised sharing of
works at the behest of the US. Last year, news surfaced that a
Colombian biodiversity researcher faced upto eight years in prison
for sharing an academic article on Scribd. Any balanced IP regime
(including India) permits such use of copyrighted works under the
fair use principle, however, Colombia's narrow fair use provision has
led to a situation where citizens now face prison for ordinary use of
academic works.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p>This
year the Special 301 Report in its section on India approves the
Prime Minister's statements to align IP law with international
standards, which is a cause for concern. Firstly, what are these
“international standards” that both US and India refer to
exactly? The most comprehensive international agreement on IP that
binds 160 member nations is the WTO Agreement on Trade related
aspects of Intellectual Property (TRIPS Agreement). Ergo, this
agreement would qualify as the most accepted “international
standard”, which India already complies with. Secondly, the TRIPS
Agreement sets down certain <em>global</em>
<em>minimum</em>
standards for protecting and enforcing IP, simultaneously providing
countries a certain degree of flexibility. However, the US has
consistently pushed India to enact tougher provisions known as TRIPS
Plus provisions. This is reflected in the report as well. Legally
speaking, under international law India is not obligated to accede to
such demands, and it should not if it wants a balanced IP regime to
protect and serve the interests both of rights holders and its
citizens.</p>
<p><strong>
</strong></p>
<p align="JUSTIFY">The
report shamelessly aligns its concerns with the financial interests
of foreign rights holders and American companies. It erroneously
projects IP as a tool to only maximise revenues, agnostic to public
interest. While
IP rights are temporary monopolies, they also are a tool to ensure
innovation, social, scientific and cultural progress and further
access to knowledge. It
is well established that flexible IP laws <a href="http://www.altlawforum.org/intellectual-property/publications/articles-on-the-social-life-of-media-piracy/reconsidering-the-pirate-nation">enable
access to knowledge and promote innovation</a>.
Such a flexible regime is critical to developing countries like
India. The USTR
conveniently forgets that lax
IP law and enforcement for a large part of the 19th century helped
the US to accelerate into an economic powerhouse and a front-runner
in innovation. It also
brazenly threatens to impose unilateral sanctions against a country
designated as a Priority Foreign Country on the list. This treatment
is usually reserved for the worst offender on the list. Such
unilateral threats and sanctions are again a direct violation of
international law.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">Unsurprisingly,
the report is critical of India's under-enforcement of copyright laws
and the impact of patent law on pharmaceuticals. It demands a
specific legislation to counter camcording and video piracy. The
prospective legislation is unnecessary because all movie theatres in
India prohibit camcorders and the prevailing Copyright Act, 1957
contains penalties to punish offenders. Instead of creating new
offences, we should re-evaluate the need of existing offences. <a href="http://cis-india.org/a2k/blogs/2010-special-301">For
instance, copyright infringement on non-commercial scales should not
be a criminal offence at all</a><a href="http://cis-india.org/a2k/blogs/2010-special-301">.</a>
Instead, the law should provide convenient and affordable access to
such works to counter petty infringement.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">India
is home to the world's largest apothecary. The Indian pharmaceutical
and medical device industry provides affordable healthcare to the
citizens, and also exports drugs to countries in need. In fact, the
compulsory licensing mechanism has ensured affordable access to life
saving liver and kidney drugs in India. The report comments on the
undesirability of section 3(d) and the compulsory licensing mechanism
in Indian patent law. With respect to section 3(d), the US wishes
India to to change its patent law to enable large pharma companies to
patent new forms of known substances that aren't even better. This
alarmist outlook smacks of hypocrisy because the US, in fact, has a
higher rate of patent invalidation and compulsory license grants! It
also demands data exclusivity – which would extend proprietary
rights to patentees over government mandated drug data, and would be
detrimental to the local pharma industry. Further, the report states
that the Indian system is biased against enforcement of foreign
patent rights holders - which is mere speculation. T<a href="http://spicyip.com/2015/04/modi-shames-india-calls-patent-laws-under-developed.html">here
is no evidence to draw such a conclusion.</a>
The claims relating to localisation trends in pharma are half- baked
and speculative again.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">The
report observes that at the UNFCCC negotiations, India recognised
patents as an obstacle to dissemination of climate change
technologies. It wishes India understood the critical role of patent
protection and competitiveness to ensure innovation, which is a
flawed co-relation. While strong IP rights may protect inventors
against infringement and provide return on investment, however,
<a href="https://www.american.edu/cas/faculty/wgpark/upload/Intellectual-Property-Rights.pdf">stronger
IP rights also raise the cost of innovation by raising the price of
technological inputs into innovation and lower the frequency of
innovation.</a></p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">As
far as the issue of counterfeit medicines is concerned, a better
remedy lies in health safety laws and consumer laws, than the
trademark law. The report also approves of state legislatures'
version of the Goondas Act. These Acts <a href="http://cis-india.org/a2k/blogs/fallacies-lies-and-video-pirates">provide
for detainment of criminals and lumpen elements in society,</a>
and with recent amendments have expanded to include video pirates and
digital offenders. Karnataka's Goonda Act <a href="http://spicyip.com/2014/08/guest-post-karnatakas-goondas-act-an-examination.html">enabling
preventive detention violates </a><a href="http://spicyip.com/2014/08/guest-post-karnatakas-goondas-act-an-examination.html">constitutional rights</a>.
While the Sixth Amendment to the United States Bill of rights
protects offenders against preventive detention, the US has no qualms
about approving such unconstitutional procedures in India.</p>
<p><strong>
</strong></p>
<p><strong>
</strong></p>
<p align="JUSTIFY">The
arguments above underscore the irrelevance of the report. The Prime
Minister may have made appeasing statements to the USA, however, in a
welcome development Commerce and Industry Minister Nirmala Sithraman
in response to the report stated <em>“I</em><em>ndia
is fully aligned with international intellectual property rights
standards and "there is no need for anyone to question us."”
</em>Our
IP
regime with its inherent flexibilities should be preserved and not
sacrificed at the altar of US' business interests. Using
compulsory licensing across sectors would indeed accelerate
technology transfer and diminish initial capex for manufacturers, a
move promoted by the National Manufacturing Policy. The ambitious
Make in India and Digital India campaigns are set to suffer if India
incorporates TRIPS plus standards into its IP regime. The <a href="https://opensource.com/government/10/11/open-standards-policy-india-long-successful-journey">government
supports opennes</a><a href="https://opensource.com/government/10/11/open-standards-policy-india-long-successful-journey">s</a>
and has implemented policies mandating use of open standards and open
source software as a part of the Digital India campaign. India should
not let foreign hands dictate its IPR Policy, and proceed to develop
a policy
which is informed by broader principles of fairness and equity,
balancing intellectual property protections with limitations and
exceptions/user rights such as those for research, education and
access to medicines.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/2015-ustr-report-old-wine-in-new-bottle'>http://editors.cis-india.org/a2k/blogs/2015-ustr-report-old-wine-in-new-bottle</a>
</p>
No publishersinhaIntellectual Property RightsHomepageLimitations & ExceptionsAccess to Knowledge2015-06-16T10:24:49ZBlog EntryInclusive Financial Services - Global Trends in Accessibility Requirements
http://editors.cis-india.org/accessibility/blog/inclusive-financial-services-global-trends-in-accessibility-requirements
<b>Inclusive Financial Services is a G3ict White Paper researched in cooperation with the Centre for Internet and Society. The research paper comprises a Foreword and Introduction, four chapters — Barriers to Access for Persons with Disabilities and Diverse Abilities, International Framework, Integrating Accessibility into the System, and State of Practice - Impact of the Convention on Inclusive Finance and Accessibility Efforts around the Globe.</b>
<h2>Foreword</h2>
<p style="text-align: justify; ">Global demand for accessibility continues to grow, due in part to the strengthening voice worldwide of more than one billion people with disabilities, including the aging population, and important frameworks, such as the United Nations Convention on the Rights of Persons with Disabilities. From a private sector standpoint, the Convention represents a unique opportunity to ensure equal access to information while achieving global harmonization of standards and economies of scale. Understanding that technology is the great equalizer for underserved populations and having a clear roadmap towards inclusive information and communications technologies (ICT), rather than simple compliance strategies, will benefit everyone in every industry.</p>
<p style="text-align: justify; ">Specifically, the financial services sector is faced with the need to transform operations while providing truly exceptional customer experiences. Disruptive trends -- such as the aging population, influx of mobile devices and global regulations – are driving demand for more human-centric technology, and creating an opportunity for innovation that are proving to be differentiators for the institutions embracing them. Consumer demand to be in control of interactions and information is forcing those in financial services to reconsider what’s important to stay competitive. By offering an online experience through any device personalized to individual needs, preferences and abilities, organizations can ensure they are reaching the broadest base of the population, especially the “unbanked” and “underbanked,” to enhance interactions and improve sales opportunities.</p>
<p style="text-align: justify; ">Customers with lifelong disabilities or age-related impairments represent an increasingly large population among the biggest markets in the world such as OECD countries and China. Also, in many countries aging persons are the holders of a majority of the assets and highly dependent on insurance, retirement and banking services. Ensuring they can use the services they need without encountering accessibility barriers is a powerful way to earn their loyalty in a highly competitive environment.</p>
<p style="text-align: justify; ">IBM has a long tradition and culture of accessibility and understands the importance of improving the user experience, managing accessibility compliance, and creating an inclusive workplace environment. Consistent with our own experience, this report highlights the organizational and process adjustments needed to ensure everyone has equal access to timely information they need for work and life.</p>
<p style="text-align: justify; ">By creating a holistic strategy for embedding accessible technology across the entire enterprise - from processes to product development to people – organizations can reinvigorate individual channels and harmonize them across the bank. G3ict has written this timely publication for the financial services sector that provides a clear picture of the global forces at work that are transforming how employee- and client-facing applications, products and services are delivered to reach the broadest set of customers. The report also serves as a useful benchmarking source for governments and advocates based on its review of existing solutions already implemented around the world. We applaud G3ict for taking this first step on the road of advocating for greater accessibility of financial services in cooperation with stakeholders from around the world.</p>
<p style="text-align: justify; ">Ian Hurst, General Manager, Global Financial Services Sector, IBM Corporation<br />Frances W. West, Chief Accessibility Officer, IBM Corporation</p>
<hr />
<h2 style="text-align: justify; ">Introduction</h2>
<p style="text-align: justify; ">Financial services play a necessary and important role in societies by enabling access to products, resources, and services, enabling savings and asset creation, and facilitating economic self-sufficiency. Access to financial services for all is a necessity in today’s world not simply at the community or household level, but at an individual level, to open doors to banking services, credit services, stocks and shares, insurance, and other markets. Access to and inclusion in financial services is crucial to poverty reduction and participation in economic prosperity and growth and development.</p>
<p style="text-align: justify; ">The increasing pervasiveness of technology in the delivery of financial services and the disruption of traditional channels of delivery through ‘FinTech’ (technology for financial service delivery) have generated new enthusiasm and newer ways for reaching out to persons who remain unbanked. Similarly, the increasing nature of services now available through technology has triggered growing demand among persons who remained marginalized from traditional paper-based banking services, as well as calls to ensure that they do not in turn create new barriers to access. Accompanying this growth spurt in technology there has also been an increasing recognition of the rights of persons with disabilities and the utmost importance of providing equal access to them to all services, including financial services.</p>
<p style="text-align: justify; ">Persons with disabilities and diverse abilities have been amongst those traditionally marginalized from the financial services sector through a mix of inaccessibility, presumptions of limited need and capacity to manage finances, and mindsets that did not view them as a profitable consumer base. This paradigm is now rapidly changing with growing evidence of their demand and need for access to services as well as the increasing income base of persons with disabilities around the world. Persons with disabilities and diverse abilities are demanding better and easier access to the entire range of financial services. Access to and inclusion in financial services is important to persons across the economic spectrum. And for persons with disabilities who live under the poverty line, it is essential that they are involved in financial inclusion initiatives and programs that will empower them and enable them to become financially independent.</p>
<p style="text-align: justify; ">A range of factors are serving as drivers to enhance the inclusion of persons with disabilities and diverse abilities through accessible financial services including demographics, attaining a competitive advantage and improving market share nationally and globally, Corporate Social Responsibility, regulations, legislation and compliance, enhancing business value, ensuring and increasing an inclusive workplace for employees with disabilities, maximizing on technology advances, and ensuring diversity and inclusion for all.</p>
<p style="text-align: justify; ">This report offers an introduction and overview to the need for, and mechanisms to achieve accessibility in financial services:</p>
<ul style="text-align: justify; ">
<li>Chapter 1 offers an understanding of the barriers posed by inaccessible financial services to persons with different disabilities.</li>
</ul>
<ul style="text-align: justify; ">
<li>Chapter 2 highlights the different international mandates and frameworks that are accelerating the promotion of financial inclusion for persons with disabilities.</li>
</ul>
<ul style="text-align: justify; ">
<li>Chapter 3 offers in-depth descriptions of the accessibility needs based on the type of technology in use, along with examples of effective practices and solutions to promote inclusion. It also offers a look at how different countries are striving to achieve the accessibility mandate.</li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; ">Chapter 4 focuses on the state of practice of financial inclusion for persons with disabilities across countries and the implementation of the Convention’s requirements for ICT accessibility and financial inclusion. This chapter describes findings from two major studies undertaken by G3ict that paint a picture of the state of financial accessibility today and offer a glimpse into the financial sector’s commitment to incorporate accessibility into their work and services in the future.</li>
</ul>
<p style="text-align: justify; ">Finally, in the Conclusions section, the report offers recommendations for relevant stakeholders to incorporate the principles of inclusion to drive accessibility through product design and delivery, policy and legal structures, and distribution channels and pathways.</p>
<p style="text-align: justify; "><a href="http://editors.cis-india.org/accessibility/blog/inclusive-financial-services.pdf" class="internal-link"><b>Download the report</b></a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/accessibility/blog/inclusive-financial-services-global-trends-in-accessibility-requirements'>http://editors.cis-india.org/accessibility/blog/inclusive-financial-services-global-trends-in-accessibility-requirements</a>
</p>
No publishernirmitaFeaturedHomepageAccessibility2015-05-03T06:55:49ZBlog EntryDeitY says 143 URLs have been Blocked in 2015; Procedure for Blocking Content Remains Opaque and in Urgent Need of Transparency Measures
http://editors.cis-india.org/internet-governance/blog/deity-says-143-urls-blocked-in-2015
<b>Across India on 30 December 2014, following an order issued by the Department of Telecom (DOT), Internet Service Providers (ISPs) blocked 32 websites including Vimeo, Dailymotion, GitHub and Pastebin.</b>
<p style="text-align: justify;">In February 2015, the Centre for Internet and Society (CIS) requested the Department of Electronics and Information Technology (DeitY) under the Right to Information Act, 2005 (RTI Act) to provide information clarifying the procedures for blocking in India. We have received a response from DeitY which may be <a href="http://editors.cis-india.org/internet-governance/blog/response-deity.clarifying-procedures-for-blocking.pdf" class="external-link">seen here</a>.</p>
<p style="text-align: justify;">In this post, I shall elaborate on this response from DeitY and highlight some of the accountability and transparency measures that the procedure needs. To stress the urgency of reform, I shall also touch upon two recent developments—the response from Ministry of Communication to questions raised in Parliament on the blocking procedures and the Supreme Court (SC) judgment in Shreya Singhal v. Union of India.</p>
<h2 style="text-align: justify;">Section 69A and the Blocking Rules</h2>
<p align="JUSTIFY" class="western">Section 69A of the Information Technology Act, 2008 (S69A hereinafter) grants powers to the central government to issue directions for blocking of access to any information through any computer resource. In other words, it allows the government to block any websites under certain grounds. The Government has notified rules laying down the procedure for blocking access online under the Procedure and Safeguards for Blocking for Access of Information by Public Rules, 2009 (Rules, 2009 hereinafter). CIS has produced a poster explaining the blocking procedure (<a href="http://cis-india.org/internet-governance/blog/blocking-websites.pdf/at_download/file">download PDF</a>, 2.037MB).</p>
<p align="JUSTIFY" class="western">There are <em>three key aspects</em> of the blocking rules that need to be kept under consideration:</p>
<h3 align="JUSTIFY" class="western">Officers and committees handling requests</h3>
<p style="text-align: justify;"><strong>Designated Officer (DO)</strong> – Appointed by the Central government, officer not below the rank of Joint Secretary.<br /><strong>Nodal Officer (NO)</strong> – Appointed by organizations including Ministries or Departments of the State governments and Union Territories and any agency of the Central Government. <br /><strong>Intermediary contact</strong>–Appointed by every intermediary to receive and handle blocking directions from the DO.<br /><strong>Committee for Examination of Request (CER)</strong> – The request along with printed sample of alleged offending information is examined by the CER—committee with the DO serving as the Chairperson and representatives from Ministry of Law and Justice; Ministry of Home Affairs; Ministry of Information and Broadcasting and representative from the Indian Computer Emergency Response Team (CERT-In). The CER is responsible for examining each blocking request and makes recommendations including revoking blocking orders to the DO, which are taken into consideration for final approval of request for blocking by the Secretary, DOT. <br /><strong>Review Committee (RC) </strong>– Constituted under rule 419A of the Indian Telegraph Act, 1951, the RC includes the Cabinet Secretary, Secretary to the Government of India (Legal Affairs) and Secretary (Department of Telecom). The RC is mandated to meet at least once in 2 months and record its findings and has to validate that directions issued are in compliance with S69A(1).</p>
<h3 style="text-align: justify;">Provisions outlining the procedure for blocking</h3>
<p>Rules 6, 9 and 10 create three distinct blocking procedures, which must commence within 7 days of the DO receiving the request.</p>
<p style="text-align: justify;">a) Rule 6 lays out the first procedure, under which any person may approach the NO and request blocking, alternatively, the NO may also raise a blocking request. After the NO of the approached Ministry or Department of the State governments and Union Territories and/or any agency of the Central Government, is satisfied of the validity of the request they forward it to the DO. Requests when not sent through the NO of any organization, must be approved by Chief Secretary of the State or Union Territory or the Advisor to the Administrator of the Union Territory, before being sent to the DO.</p>
<p style="text-align: justify;">The DO upon receiving the request places, must acknowledge receipt within 24 four hours and places the request along with printed copy of alleged information for validation by the CER. The DO also, must make reasonable efforts to identify the person or intermediary hosting the information, and having identified them issue a notice asking them to appear and submit their reply and clarifications before the committee at a specified date and time, within forty eight hours of the receipt of notice.</p>
<p style="text-align: justify;">Foreign entities hosting the information are also informed and the CER gives it recommendations after hearing from the intermediary or the person has clarified their position and even if there is no representation by the same and after examining if the request falls within the scope outlined under S69A(1). The blocking directions are issued by the Secretary (DeitY), after the DO forwards the request and the CER recommendations. If approval is granted the DO directs the relevant intermediary or person to block the alleged information.</p>
<p style="text-align: justify;" class="western">b) Rule 9 outlines a procedure wherein, under emergency circumstances, and after the DO has established the necessity and expediency to block alleged information submits recommendations in writing to the Secretary, DeitY. The Secretary, upon being satisfied by the justification for, and necessity of, and expediency to block information may issue an blocking directions as an interim measure and must record the reasons for doing so in writing.</p>
<p style="text-align: justify;" class="western">Under such circumstances, the intermediary and person hosting information is not given the opportunity of a hearing. Nevertheless, the DO is required to place the request before the CER within forty eight hours of issuing of directions for interim blocking. Only upon receiving the final recommendations from the committee can the Secretary pass a final order approving the request. If the request for blocking is not approved then the interim order passed earlier is revoked, and the intermediary or identified person should be directed to unblock the information for public access.</p>
<p style="text-align: justify;" class="western">c) Rule 10 outlines the process when an order is issued by the courts in India. The DO upon receipt of the court order for blocking of information submits it to the Secretary, DeitY and initiates action as directed by the courts.</p>
<h3 style="text-align: justify;" class="western">Confidentiality clause</h3>
<p style="text-align: justify;">Rule 16 mandates confidentiality regarding all requests and actions taken thereof, which renders any requests received by the NO and the DO, recommendations made by the DO or the CER and any written reasons for blocking or revoking blocking requests outside the purview of public scrutiny. More detail on the officers and committees that enforce the blocking rules and procedure can be found <a href="http://cis-india.org/internet-governance/blog/is-india2019s-website-blocking-law-constitutional-2013-i-law-procedure">here</a>.</p>
<h2>Response on blocking from the Ministry of Communication and Information Technology</h2>
<p style="text-align: justify;">The response to our RTI from E-Security and Cyber Law Group is timely, given the recent clarification from the Ministry of Communication and Information Technology to a number of questions, raised by parliamentarian Shri Avinash Pande in the Rajya Sabha. The questions had been raised in reference to the Emergency blocking order under IT Act, the current status of the Central Monitoring System, Data Privacy law and Net Neutrality. The Centre for Communication Governance (CCG), National Law University New Delhi have extracted a set of 6 questions and you can read the full article <a href="https://ccgnludelhi.wordpress.com/2015/04/24/governments-response-to-fundamental-questions-regarding-the-internet-in-india/">here</a>.</p>
<p align="JUSTIFY" class="western">The governments response as quoted by CCG, clarifies under rule 9—the Government has issued directions for emergency blocking of <em>a total number of 216 URLs from 1st January, 2014 till date </em>and that <em>a total of 255 URLs were blocked in 2014 and no URLs has been blocked in 2015 (till 31 March 2015)</em> under S69A through the Committee constituted under the rules therein. Further, a total of 2091 URLs and 143 URLs were blocked in order to comply with the directions of the competent courts of India in 2014 and 2015 (till 31 March 2015) respectively. The government also clarified that the CER, had recommended not to block 19 URLs in the meetings held between 1<sup>st</sup><sup> </sup>January 2014 upto till date and so far, two orders have been issued to revoke 251 blocked URLs from 1st January 2014 till date. Besides, CERT-In received requests for blocking of objectionable content from individuals and organisations, and these were forwarded to the concerned websites for appropriate action, however the response did not specify the number of requests.</p>
<p align="JUSTIFY" class="western">We have prepared a table explaining the information released by the government and to highlight the inconsistency in their response.</p>
<table class="grid listing">
<colgroup> <col width="331"> <col width="90"> <col width="91"> <col width="119"> </colgroup>
<tbody>
<tr>
<td rowspan="2">
<p align="LEFT"><strong>Applicable rule and procedure outlined under the Blocking Rules</strong></p>
</td>
<td colspan="3">
<p align="CENTER"><strong>Number of websites</strong></p>
</td>
</tr>
<tr>
<td>
<p align="CENTER"><em>2014</em></p>
</td>
<td>
<p align="CENTER"><em>2015</em></p>
</td>
<td>
<p align="CENTER"><em>Total</em></p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Rule 6 - Blocking requests from NO and others</p>
</td>
<td>
<p align="CENTER">255</p>
</td>
<td>
<p align="CENTER">None</p>
</td>
<td>
<p align="CENTER">255</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Rule 9 - Blocking under emergency circumstances</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">216</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Rule 10 - Blocking orders from Court</p>
</td>
<td>
<p align="CENTER">2091</p>
</td>
<td>
<p align="CENTER">143</p>
</td>
<td>
<p align="CENTER">2234</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Requests from individuals and orgs forwarded to CERT-In</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Recommendations to not block by CER</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">19</p>
</td>
</tr>
<tr>
<td>
<p align="LEFT">Number of blocking requests revoked</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">-</p>
</td>
<td>
<p align="CENTER">251</p>
</td>
</tr>
</tbody>
</table>
<p>In a <a href="http://sflc.in/deity-says-2341-urls-were-blocked-in-2014-refuses-to-reveal-more/">response </a>to an RTI filed by the Software Freedom Law Centre, DeitY said that 708 URLs were blocked in 2012, 1,349 URLs in 2013, and 2,341 URLs in 2014.</p>
<h2>Shreya Singhal v. Union of India</h2>
<p style="text-align: justify;">In its recent judgment, the SC of India upheld the constitutionality of 69A, stating that it was a narrowly-drawn provision with adequate safeguards. The constitutional challenge on behalf of the People’s Union for Civil Liberties (PUCL) considered the manner in which the blocking is done and the arguments focused on the secrecy present in blocking.</p>
<p style="text-align: justify;">The rules may indicate that there is a requirement to identify and contact the originator of information, though as an expert <a href="http://indianexpress.com/article/opinion/columns/but-what-about-section-69a/">has pointed out</a>, there is no evidence of this in practice. The court has stressed the importance of a written order so that writ petitions may be filed under Article 226 of the Constitution. In doing so, the court seems to have assumed that the originator or intermediary is informed, and therefore held the view that any procedural inconsistencies may be challenged through writ petitions. However, this recourse is rendered ineffective not only due to procedural constraints, but also because of the confidentiality clause. The opaqueness through rule 16 severely reigns in the recourse that may be given to the originator and the intermediary. While the court notes that rule 16 requiring confidentality was argued to be unconstitutional, it does not state its opinion on this question in the judgment. One expert, holds the <a href="https://indconlawphil.wordpress.com/2015/03/25/the-supreme-courts-it-act-judgment-and-secret-blocking/">view</a> that this, by implication, requires that requests cannot be confidential. However, such a reading down of rule 16 is yet to be tested.</p>
<p style="text-align: justify;">Further, Sunil Abraham has <a href="http://cis-india.org/internet-governance/blog/economic-and-political-weekly-sunil-abraham-april-11-2015-shreya-singhal-and-66a">pointed</a> out, “block orders are unevenly implemented by ISPs making it impossible for anyone to independently monitor and reach a conclusion whether an internet resource is inaccessible as a result of a S69A block order or due to a network anomaly.” As there are no comprehensive list of blocked websites or of the legal orders through which they are blocked exists, the public has to rely on media reports and filing RTI requests to understand the censorship regime in India. CIS has previously <a href="http://cis-india.org/internet-governance/blog/analysing-blocked-sites-riots-communalism">analysed</a> the leaked block lists and lists received as responses to RTI requests which have revealed that the block orders are full of errors and blocking of entire platforms and not just specific links has taken place.</p>
<p style="text-align: justify;">While the state has the power of blocking content, doing so in secrecy and without judical scrutiny, mark deficiencies that remain in the procedure outlined under the provisions of the blocking rules . The Court could read down rule 16 except for a really narrow set of exceptions, and in not doing so, perhaps has overlooked the opportunities for reform in the existing system. The blocking of 32 websites, is an example of the opaqueness of the system of blocking orders, and where the safeguards assumed by the SC are often not observed such as there being no access to the recommendations that were made by the CER, or towards the revocation of the blocking orders subsequently. CIS filed the RTI to try and understand the grounds for blocking and related procedures and the response has thrown up some issues that must need urgent attention.</p>
<h2>Response to RTI filed by CIS</h2>
<p align="JUSTIFY" class="western">Our first question sought clarification on the websites blocked on 30<sup>th</sup><sup> </sup>December 2014 and the response received from DeitY, E-Security and Cyber Law Group reveals that the websites had been blocked as “they were being used to post information related to ISIS using the resources provided by these websites”. The response also clarifies that the directions to block were issued on <em>18-12-2014 and as of 09-01-2015</em>, after obtaining an undertaking from website owners, stating their compliance with the Government and Indian laws, the sites were unblocked.</p>
<p align="JUSTIFY" class="western">It is not clear if ATS, Mumbai had been intercepting communication or if someone reported these websites. If the ATS was indeed intercepting communication, then as per the rules, the RC should be informed and their recommendations sought. It is unclear, if this was the case and the response evokes the confidentiality clause under rule 16 for not divulging further details. Based on our reading of the rules, court orders should be accessible to the public and without copies of requests and complaints received and knowledge of which organization raised them, there can be no appeal or recourse available to the intermediary or even the general public.</p>
<p align="JUSTIFY" class="western">We also asked for a list of all requests for blocking of information that had been received by the DO between January 2013 and January 2015, including the copies of all files that had accepted or rejected. We also specifically, asked for a list of requests under rule 9. The response from DeitY stated that since January 1, 2015 to March 31, 2015 directions to block 143 URLs had been issued based on court orders. The response completely overlooks our request for information, covering the 2 year time period. It also does not cover all types of blocking orders under rule 6 and rule 9, nor the requests that are forwarded to CERT-In, as we have gauged from the ministry's response to the Parliament. Contrary to the SC's assumption of contacting the orginator of information, it is also clear from DeitY's response that only the websites had been contacted and the letter states that the “websites replied only after blocking of objectionable content”. </p>
<p align="JUSTIFY" class="western">Further, seeking clarification on the functioning of the CER, we asked for the recent composition of members and the dates and copies of the minutes of all meetings including copies of the recommendations made by them. The response merely quotes rule 7 as the reference for the composition and does not provide any names or other details. We ascertain that as per the DeitY website Shri B.J. Srinath, Scientist-G/GC is the appointed Designated Officer, however this needs confirmation. While we are already aware of the structure of the CER which representatives and appointed public officers are guiding the examination of requests remains unclear. Presently, there are 3 Joint Secretaries appointed under the Ministry of Law and Justice, the Home Ministry has appointed 19, while 3 are appointed under the Ministry of Information and Broadcasting. Further, it is not clear which grade of scientist would be appointed to this committee from CERT-In as the rules do not specify this. While the government has clarified in their answer to Parliament that the committee had recommended not to block 19 URLs in the meetings held between 1st January 2014 to till date, it is remains unclear who is taking these decisions to block and revoke blocked URLs. The response from DeitY specifies that the CER has met six times between 2014 and March 2015, however stops short on sharing any further information or copies of files on complaints and recommendations of the CER, citing rule 16.</p>
<p align="JUSTIFY" class="western">Finally, answering our question on the composition of the RC the letter merely highlights the provision providing for the composition under 419A of the Indian Telegraph Rules, 1951. The response clarifies that so far, the RC has met once on 7th December, 2013 under the Chairmanship of the Cabinet Secretary, Department of Legal Affaits and Secretary, DOT. Our request for minutes of meetings and copies of orders and findings of the RC is denied by simply stating that “minutes are not available”. Under 419A, any directions for interception of any message or class of messages under sub-section (2) of Section 5 of the Indian Telegraph Act, 1885 issued by the competent authority shall contain reasons for such direction and a copy of such order shall be forwarded to the concerned RC within a period of seven working days. Given that the RC has met just once since 2013, it is unclear if the RC is not functioning or if the interception of messages is being guided through other procedures. Further, we do not yet know details or have any records of revocation orders or notices sent to intermediary contacts. This restricts the citizens’ right to receive information and DeitY should work to make these available for the public.</p>
<p align="JUSTIFY" class="western">Given the response to our RTI, the Ministry's response to Parliament and the SC judgment we recommend the following steps be taken by the DeitY to ensure that we create a procedure that is just, accountable and follows the rule of law.</p>
<p align="JUSTIFY" class="western">The revocation of rule 16 needs urgent clarification for two reasons:</p>
<ol>
<li>Under Section 22 of the RTI Act provisions thereof, override all conflicting provisions in any other legislation.</li>
<li style="text-align: justify;">In upholding the constitutionality of S69A the SC cites the requirement of reasons behind blocking orders to be recorded in writing, so that they may be challenged by means of writ petitions filed under <a href="http://indiankanoon.org/doc/1712542/">A</a><a href="http://indiankanoon.org/doc/1712542/">rticle 226</a> of the Constitution of India.</li></ol>
<p style="text-align: justify;">If the blocking orders or the meetings of the CER and RC that consider the reasons in the orders are to remain shrouded in secrecy and unavailable through RTI requests, filing writ petitions challenging these decisions will not be possible, rendering this very important safeguard for the protection of online free speech and expression infructuous. In summation, the need for comprehensive legislative reform remains in the blocking procedures and the government should act to address the pressing need for transparency and accountability. Not only does opacity curtial the strengths of democracy it also impedes good governance. We have filed an RTI seeking a comprehensive account of the blocking procedure, functioning of committees from 2009-2015 and we shall publish any information that we may receive.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/deity-says-143-urls-blocked-in-2015'>http://editors.cis-india.org/internet-governance/blog/deity-says-143-urls-blocked-in-2015</a>
</p>
No publisherjyotiCensorshipFreedom of Speech and ExpressionRTIIntermediary LiabilityAccountabilityFeatured69AInternet GovernanceChilling EffectTransparencyHomepageBlocking2015-04-30T07:37:40ZBlog EntryPervasive Technologies Project Working Document Series: Literature Review on IPR in Mobile app development
http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-literature-review-on-ipr-in-mobile-app-development
<b>This post is literature survey of material exploring and analysing the role of Application Platforms in the Mobile Applications Development ecosystem, albeit from an intellectual property perspective. The document is a work in progress. </b>
<p style="text-align: justify;"><strong>1. What are the decisions developers are making within their practice in terms of location of their enterprise and clients, scale of audience, funding, business models and mobile apps marketplace (app stores)? Who is the primary actor in the mobile applications development cycle in India?</strong></p>
<p style="text-align: justify;"><strong> 1.1. Is the mobile apps marketplace organically developing into a Bazaar model, or a Cathedral model?</strong></p>
<p style="text-align: justify;"><strong> 1.2. What are the contractual terms between the enterprise and the employee? What is the typical nature of agreements in the mobile apps development industry between enterprise- employee and enterprise- client?</strong></p>
<p style="text-align: justify;">The role of Mobile application developers (“developers”) is critical in the app market, especially when such markets are regarded as the key entry and dissemination point for mobile content. Developers are seen as innovation engines and the fastest route to innovation, so understanding factors that attract and retain third party mobile application developers is of importance to mobile platform providers in order to survive.</p>
<p style="text-align: justify;"><strong> Who are the primary actors in the mobile applications development cycle in India?</strong></p>
<p style="text-align: justify;">This chapter of the Pervasive Technologies Project (“Project”) aims to study developers who are key contributors to the mobile applications space within India; and the problems, those being faced by them as they attempt to navigate an emerging and ambiguous ecosystem. The results of our qualitative research give us insight into the characteristics of this new tribe. A majority of the developers do not own the products they innovate and instead assign ownership of their IP over to their clients. Innovating for the purpose of creating and retaining ownership is a key motivation and is reflected in the tendency of developers to move away from the services sector to develop their own products.<a name="_ftnref1" href="#_ftn1">[1]</a></p>
<p style="text-align: justify;">As one developer puts it, “unless you're a 1000 man enterprise, there's no economic benefit in services; as competition has driven pricing so low, everyone's struggling to deliver $12-14 per hour.”</p>
<p style="text-align: justify;">Every startup in mobile development, especially, is doing services to stay afloat and would like to move toward a product model.</p>
<p style="text-align: justify;"><em>Further, IAMAI conducted a survey<a name="_ftnref2" href="#_ftn2"><strong>[2]</strong></a> in 2013 and the report presents an analysis in four sections:</em></p>
<p style="text-align: justify;"><em>a) Who? The App Developer in India</em></p>
<p style="text-align: justify;"><em>b) What? The Preference of Users and Developers in India</em></p>
<p style="text-align: justify;"><em>c) Why? The Business of Apps in India</em></p>
<p style="text-align: justify;"><em>d) How? The Future of Apps in India</em></p>
<p style="text-align: justify;"><em>The Report states:</em></p>
<p style="text-align: justify;"><em>“The vast majority of app developers in India are male. In their survey of 454 developers, only 35 respondents were female reflecting the gender bias. On the demand side 80 percent of smartphone users in India are male reinforcing the male dominance. Geographically the respondents were all based in India except one developer of Indian origin residing in Malaysia. The well known and established IT cities in India are attractive for app developers because they provide with easy access to infrastructure, skill and a ready market for products. The survey shows the concentration of app developers in the cities of Bangalore, Mumbai, Delhi NCR, Hyderabad and Ahmedabad. A larger percentage of developers in such IT cities make apps on a full-time basis as compared to developers in other cities. The survey data also shows that Bangalore, Mumbai and NCR have the maximum number of companies (organized business operations) engaged in app development. Cities like Ahmedabad, Hyderabad and Chennai host many small teams of app developersas well as self-employed app professionals. In most of the other cities such as Bhubaneshwar, Cochin, Coimbatore, Gandhinagar and Kota, app development is done primarily on a part-time basis and is not the primary source of income. This could be the result of limited monetization options that make app development an unsustainable livelihood for many.</em></p>
<p style="text-align: justify;"><em>The popularity of international apps was evident in the survey data. The average download of ‘Indian’ apps was very low. Only 14 of the 454 developers has crossed the hundred thousand download mark, of which only 5 surpassed the one million milestone. These numbers do not pertain to a single app, but to the cumulative number of downloads across all the apps created by each developer, supporting the thesis of low visibility of apps developed domestically.</em></p>
<p style="text-align: justify;"><em>In their sample of 454 developers, entertainment apps including gaming and social networking are the dominant categories reflecting demand side preference. Utilities, health and education are the other important categories. The survey also below provided the number of apps developed under each category. The list does not include lifestyle and enterprise apps which are exceptions. One forceful result of their survey is the focus of app developers on foreign app demand in preference to producing locally-relevant content - as the latter is less profitable. Each respondent in their sample had developed an average of 38 apps. Of these 13 have developed 100 or more apps and these are the larger professional app companies. After excluding extreme values, the average number of apps developed by each respondent fell to 17.</em></p>
<p style="text-align: justify;"><em>Skewed revenue sharing models biased against content providers was one of the main reasons why Indian app developers focus on international app stores such as Apple App Store or Google PlayStore that offer a flat 70 percent of the total revenue to developers. This adversely affected development of India-specific apps and even popular apps such as Saavn and Zomato have expanded abroad because of this very reason.</em></p>
<p style="text-align: justify;"><em>Survey results indicated an Android dominated future for the app economy in India for two apparent reasons. One, Android devices are more affordable and two, the Android ecosystem is open allowing OEMs such as Samsung and HTC to manufacture mobile devices that use the Android OS. The drawback turns out to be the resulting fragmentation in screen sizes, resolution limits and hardware traits. Because of this, “developing apps that work across the whole range of Android devices can be extremely challenging and time-consuming.” Moreover, Indian app developers need to recognise the existence of an active market for used phones and thus the appeal of ‘backward compatibility’ i.e. an app that can work across old devices as well as new ones and also function across both old and new versions of operating systems will stand a better chance of success.</em></p>
<p style="text-align: justify;"><em>On the whole, app development was not considered to be a remunerative business opportunity. 17 percent of respondents who answered the question on choice of revenue model indicated that they did not have a specific revenue generation plan. While some developers are engaged in contractual development, there are few developers who self finance their project and do not actively market or promote their app. The business of app development in India seems to be at a stage in which it could be characterised as one based on a ‘hit and trial’ philosophy. Self financing is common in the industry. Only 7 and 13 developers approached banks or venture capitalists for financing. Funding an app developer was not an investor’s primary choice. Recognising the market failure and the utility of apps, the Department of Electronics and IT and Department of Telecommunication have both instituted funds to encourage mobile technology ventures</em></p>
<p style="text-align: justify;"><em>and app development in India.<a name="_ftnref3" href="#_ftn3"><strong>[3]</strong></a> One can argue on the efficacy of the use of limited public resources for app development, but not the fact that app development in India needs a boost. The industry is still very young and ‘unorganized’ and is largely dependent on own and informal sources for financing. The study presents presents the source of financing for app developers.”</em></p>
<p style="text-align: justify;"><strong>Understanding of IP</strong></p>
<p style="text-align: justify;">There is a lack of understanding of IP amongst the developers. During the course of interviews, IP was often thought of as mere content or code. There was also confusion between the terms IP and IPR. The few developers who understood the nuances of IP better, voiced a need for the developer community to deepen their understanding of what parts of their work are IP. Samuel Mani, Founding Partner of <a href="http://www.mcmlaw.in/">Mani Chengappa & Mathur, </a>stressed that developers should recognize the value within not just the product or software itself, but the background business processes. According to Mani, the execution of the idea is the true source of innovation; how one accesses the market, and maybe who the market is as well.<a name="_ftnref4" href="#_ftn4">[4]</a></p>
<p style="text-align: justify;">The IAMAI report<a name="_ftnref5" href="#_ftn5">[5]</a> had some observations on the impact of IP on the apps industry. According to the report, “<em>since the industry thrived on innovation, protection of intellectual property was important to developers. The balance between protection and sharing of innovation was part of a larger and often tendentious debate on open source versus proprietary software development.<a name="_ftnref6" href="#_ftn6"><strong>[6]</strong></a> The survey did not attempt to deconstruct that debate; merely reported that 70 percent of respondents were of the view that intellectual property protection was a concern for app developers. However, not all had taken steps to protect intellectual property. The lack of seriousness could be associated with poor revenue potential from apps. Among those who had, some obtained copyrights/patents, while others worked with individual checks on in-app piracy using code morphing, copy protection, server–based checks, or both etc (The study provides data on different IP protection measures).”</em></p>
<p style="text-align: justify;"><strong>Nature of their clients</strong></p>
<p style="text-align: justify;">Out-sourced 'mobile app services' is marginal as a business model here in India.<a name="_ftnref7" href="#_ftn7">[7]</a></p>
<p style="text-align: justify;"><strong>Ownership of their product/service:</strong></p>
<p style="text-align: justify;">Often, the lack in understanding can be traced to the developers working in isolation from the legalities involved in assigning the product to the client. Majority of those interviewed developed mobile app products for clients, and in turn assigned ownership of their products to their clients. As previously mentioned, they commonly shared an interest in leaving the services sector to create products of their own, with some of them already having made the transition within their business model.<a name="_ftnref8" href="#_ftn8">[8]</a></p>
<p style="text-align: justify;"><strong>Contractual clauses most important to mobile app developers: </strong>Delving deeper into the aspect of assigning ownership to clients, the most common practice is for developers to enter into a work-for-hire agreement with the client. Typically, a work-for-hire agreement mandates that if a worker is paid to carry out a particular project, whatever is created within the project belongs to the client.<a name="_ftnref9" href="#_ftn9">[9]</a></p>
<p style="text-align: justify;">For startups where team players are small in number, it is likely that all will have access to any contract agreements entered into with clients. For larger corporate software developer firms, there may be a specialized department for legal-related matters. In such cases, the mobile app developers themselves would seldom lay eyes on the legalese of contracts, for the primary reason being that it doesn't concern them. Instead, the terms of agreement more familiar to them would be those that they obliged to upon working for their employer. The interviews revealed that the importance of contract agreements was actually underestimated in the country.<a name="_ftnref10" href="#_ftn10">[10]</a></p>
<p style="text-align: justify;">Within a work-for-hire agreement, it is commonplace for developers to enter into restrictive agreements that obstruct the freedoms of what they can do with the code created for the client. Problematic areas proved to be those related to the time periods in which the developer was not allowed to take up future work for competing clients (i.e. the non-compete clause), or could not talk about their work for the client at all (the “quiet period”).<a name="_ftnref11" href="#_ftn11">[11]</a></p>
<p style="text-align: justify;">Developers are unable to license their work to other interested clients when one client retains ownership. “Clients typically do not want a perpetual license, but complete ownership”, says a website developer. He further explains that, “this means they could make a derivative work or use it for another project. Depending on how bad we want the project, we'll work out some middle ground.” But it does not seem to be so easy for he and his SME to do so: “The thing about contracts is it’s all about a sort of differential bargaining power that the two parties have... you’ll have very little control about what happens once you’ve got paid.”<a name="_ftnref12" href="#_ftn12">[12]</a></p>
<p style="text-align: justify;">To have any sort of bargaining power within a work-for-hire arrangement requires a lot of time for negotiating, and the space for communication to begin with. In many cases, contracts may not even be introduced into a work agreement, leaving a lot of intricacies to the unknown.</p>
<p style="text-align: justify;">The problems are further compounded by contract illiteracy, more so in second tier cities.<a name="_ftnref13" href="#_ftn13">[13]</a></p>
<p style="text-align: justify;"><strong>2. What is the nature of innovation emerging from the mobile app industry?</strong> <strong>What is the awareness of the "mobile applications developer and its enterprise on rules concerning code, content and design? How does re-use and sharing of code, content and design occur in the mobile application developer ecosystem ? What is the perceived impact of the Indian IPR regime on the aforementioned aspects? Finally, do the emerging trends in re-use and sharing of code run afoul of Indian IP law?</strong></p>
<p style="text-align: justify;">There is a marked shift towards using open source software amongst developers. According to a Gartner study, most software makers will have some open source applications or code in their portfolio by 2016. The study also reaches the conclusion that 99% of Forbes’ Global 2000 companies will be using some form of open source software.<a name="_ftnref14" href="#_ftn14">[14]</a></p>
<p style="text-align: justify;"><strong>Awareness</strong></p>
<p style="text-align: justify;">The interviews revealed different personal understandings of the meaning of IP. The most common responses were the following<a name="_ftnref15" href="#_ftn15">[15]</a>:</p>
<p style="text-align: justify;"><strong>A :</strong> When questioned about IP to developers, they did not know what it meant, because it didn’t have anything to do with what they were doing.</p>
<p style="text-align: justify;"><strong>B : </strong>Developers often did not know what part of their app was IP... there is was gap in understanding with respect to IP.</p>
<p style="text-align: justify;">For the most part, it seems, IP was considered to refer to content or code across interviews, and was even confused at one point with IPR (IP Rights) within a response referring to an SME's trademark and pending application.</p>
<p style="text-align: justify;">For those who appeared to be better versed in matters related to IP, they emphasised on the need for developers to be better acquainted with what parts of their work are IP. One interviewee stressed on the importance of developers to recognize the value of background business processes, apart from software and the product itself. <a name="_ftnref16" href="#_ftn16">[16]</a></p>
<p style="text-align: justify;">In certain cases, it took $1 million in sales for a medium-sized software development enterprise to start paying attention to IP. The enterprise tried to obtain patent protection for their application, but the effort turned out to be futile.<a name="_ftnref17" href="#_ftn17">[17]</a></p>
<p style="text-align: justify;"><strong>Protection of work (Speaks to awareness also)</strong></p>
<p style="text-align: justify;">When asked, those interviewed responded with a variance in answers. Some simply stated that their work is not protected, while a few mentioned that they acquired trademark or intend to apply for trademark protection. One interviewee had a patent pending in India and the US, as well. In many conversations, developers mentioned that their code for their apps is under open source licenses, and a couple others entailed sharing that the content is under creative commons licenses, “individual licenses,” or joint copyright. Additionally, within one interview, one mentioned the use of encryption tools as a technical means of protection for their work.<a name="_ftnref18" href="#_ftn18">[18]</a></p>
<p style="text-align: justify;">“<em>The concept of securing IP is relatively new within the Indian context... it becomes a question of priority between innovation and protection" — Aravind Krishnaswamy, Levitum.</em></p>
<p style="text-align: justify;">Of the developers interviewed, many exhibited some sort of confusion or misunderstanding related to the protection of their works by means of intellectual property rights (IPR). Those interviewed seemed to either express an interest to acquire IPR in the future for their products in the forms of patent or trademark protection, or expressed their appreciation for openness source licensing—or both! Beneath these immediate responses, however, many repeated patterns, as well as contradictions, are revealed. Conversations that followed within these interviewed entailed the opportunity to hear from personal experiences and opinions on different areas within their practice intersecting IPR.<a name="_ftnref19" href="#_ftn19">[19]</a></p>
<p style="text-align: justify;">Across interviews conducted, one particular observation entailed the tendency for developers to have worked in the past for corporate employers that have dealt with cases of infringement or have acquired IP protection. Almost half of those interviewed shared the fact that they worked for a corporate employer and became better familiar with different notions of intellectual property through that experience. It may not be too far-fetched to suggest, then, that for the developer the idea of acquiring IPR protection is one that may be reinforced from previous employers or other successful development companies with IPR of their own.<a name="_ftnref20" href="#_ftn20">[20]</a></p>
<p style="text-align: justify;"><strong>Impact of law & reasons for IPR Protection</strong></p>
<p style="text-align: justify;">One would assume that if a startup was bootstrapped with minimal cash flow, then it would place a low priority on getting IP protection for its products. Aravind Krishnaswamy of startup, <a href="http://levitum.in/">Levitum</a>, also stated that <em>“the concept of securing IP was relatively new within the Indian context.” <a name="_ftnref21" href="#_ftn21"><strong>[21]</strong></a></em></p>
<p style="text-align: justify;">Yet, many developers who were interviewed did express an interest in IPR. The main concerns developers believed IP protection would address, were proving ownership over their work or preventing problems in the future. One developer's commented on how the mobile app market is a “new and potentially volatile area for software development.” For this reason, it was imperative that he and his team attempted to avoid trouble in the future, and ensure that they going about mobile app development the right and moral way.<a name="_ftnref22" href="#_ftn22">[22]</a></p>
<p style="text-align: justify;">Within another interview, developer, John Paul of mobile app SME, Plackal, explained his motives for seeking to acquire patent protection, the application for which back then was pending in India and the US: "<strong>For us, applying for a patent is primarily defensive.</strong> And if it does get infringed upon, it would give us a good opportunity to generate revenue from it." For the company's trademark, they sought to be able to enforce their ownership over their product's brand: “As a precautionary, we've trademarked the app so that should there be a situation where the app is pirated, we can claim ownership for that app.”<a name="_ftnref23" href="#_ftn23">[23]</a></p>
<p style="text-align: justify;"><strong>Do the emerging trends run afoul of Indian law?</strong></p>
<p style="text-align: justify;">Yes. This was evident from the legal practices of mobile app developers and the resulting cases of infringement.</p>
<p style="text-align: justify;"><strong>Some instances of infringement (limited to Mobile app content (i.e. logos, pictures, etc.)) are<a name="_ftnref24" href="#_ftn24"><strong>[24]</strong></a>:</strong></p>
<p style="text-align: justify;">• Pirated apps in app stores</p>
<p style="text-align: justify;">• “Dummy apps” or imitations of another's app</p>
<p style="text-align: justify;">• Breaching app stores user agreement</p>
<p style="text-align: justify;">• Violation of License agreements of code created by another</p>
<p style="text-align: justify;">• Violation of Open source licenses</p>
<p style="text-align: justify;">• Breaching of terms of agreement for by commissioning clients</p>
<p style="text-align: justify;">• Breaching of terms of agreement for by those hired</p>
<p style="text-align: justify;">Some of the developers indicated that they weren't a fish big enough to be pursued for infringement. “The big companies do not go after small developers; it depends on how much money they're making.” said a developer. He added,“Patent lawsuits can cost something like millions of dollars, so unless they're going to get more back, they wouldn't go through the trouble of doing so... but that is true even in the US.”</p>
<p style="text-align: justify;">Some added that others who may have been apparently copying you, may have been working on the same content independently. Corporate players are in non-compliance knowingly than not, whereas more SMEs infringe upon others without being aware that they are. Just as well, the degree to which infringement takes place may differ between the two types of industry players: “At the corporate level, where they know they are not in compliance, the degree of non-compliance might be very small or specific, but it still exists.” On the other hand, for startup developers, a substantial amount of their code may not comply with the licenses and agreements they are obliged to—something that could pose problems for them later down the road if left unfixed. <a name="_ftnref25" href="#_ftn25">[25]</a></p>
<p style="text-align: justify;"><strong>3. The apps marketplace is extremely important since they are the gatekeepers enabling access to apps. What is the nature of the apps marketplace? What are the limitations associated with it ? How do the existing regulatory models intersect with this relatively new marketplace? What is the enforcement carried out by these app stores in terms of IP?</strong></p>
<p style="text-align: justify;">“<strong><em>The app platform is a gatekeeper which provides the consumer and developer a virtual space to buy and sell products (mobile apps). What is the nature of the app platform? What are the limitations associated with it?</em></strong></p>
<p style="text-align: justify;"><strong><em>An app dealing in pirated content or infringing intellectual property faces the risk of getting barred by the app platform. What is the enforcement carried out by app platforms to protect intellectual property?”</em></strong></p>
<p style="text-align: justify;"><strong>Firstly, what is an app platform?</strong></p>
<p style="text-align: justify;"><em>Iansteti and Levien<a name="_ftnref26" href="#_ftn26"><strong>[26]</strong></a></em> state that at the core of each innovation network is a focal organization known as <strong>platform owner</strong> (or keystone) that provides the platform to facilitate contribution by other members in the network.</p>
<p style="text-align: justify;">Hagiu<a name="_ftnref27" href="#_ftn27">[27]</a> defines a platform as a product, service or technology that provides a foundation for other parties to develop complementary products.</p>
<p style="text-align: justify;">Specifically<em>, I Kouris<a name="_ftnref28" href="#_ftn28"><strong>[28]</strong></a></em> defines an app platform as a special kind of electronic market which enable software developers to distribute their software applications(apps) among users of mobile devices like smartphones or tablets. An app platform owner dictates the entire infrastructure(like user interface, server space, etc.) and determines the rules for the interaction between the developers and users. They usually provide information about apps and developers and serve as a trusted third party by controlling app quality. <em>Fransman M<a name="_ftnref29" href="#_ftn29"><strong>[29]</strong></a></em> characterised the app platform as an 'innovation ecosystem incorporating app developers effectively.'</p>
<p style="text-align: justify;">Innovation can happen within the enterprise, or can take a more open route and benefit from external innovation. In order to gain the benefit of external innovation, platform owners must open their platforms up beyond their internal base of developers and provide resources to third party developers.<a name="_ftnref30" href="#_ftn30">[30]</a></p>
<p style="text-align: justify;"><strong>What is the platform concept in software?</strong></p>
<p style="text-align: justify;">Broadly, <em>Noori<a name="_ftnref31" href="#_ftn31"><strong>[31]</strong></a></em>, discusses the issues about the platform concept in software and attempts to address the subject of platform strategy. Tsai, Phal & Robert<a name="_ftnref32" href="#_ftn32">[32]</a> further the discussion by stating principles for an effective platform strategy.</p>
<p style="text-align: justify;">In mobile ecosystems <strong>building a developer community</strong> is one of the niches to attract the developers to join the ecosystem. However, health can mean differing things for different ecosystem members. In order to stimulate innovation<a name="_ftnref33" href="#_ftn33">[33]</a> the keystone company is often forced to relinquish much of their control over the platform to the development community. This involves a careful balancing act in relinquishing enough control to create a healthy environment for developers, and not stifling innovation while retaining a necessary and desired degree of control.<a name="_ftnref34" href="#_ftn34">[34]</a></p>
<p style="text-align: justify;">Baskin<a name="_ftnref35" href="#_ftn35">[35]</a> examines the problems concerning software patent under the mobile applications platform environment. The scope of the analysis is limited to two mobile applications platforms: Apple's iOS and Google's Android. The analysis throws light on the problems of innovation in software systems like iOS and Android. The note also proposes several changes to both antitrust and patent laws that will make it more difficult for established market players to prevent new competitors from entering high tech markets, thereby promoting greater openness and innovation. The part on software patents discusses the effects of enforcement of patent rights on open and closed systems. The note observes that the US Federal Circuit's decisions (Fonar Corp. v. Gen. Elec. Co., io7 F.3d 1543, 1549 (Fed. Cir. 1997)) have severely curtailed both the enablement and best mode requirements for successful software patents., thereby limiting the disclosure and preventing many of the invention's useful elements from reaching the public domain. Patentability issues have affected open systems such as Android more than Apple, owing to a greater dependency on third parties to run android systems, leading to more patent infringement issues. It recommends, that, intellectual property law should promote open systems above patent protection in high tech fields, allow reverse engineering of software and introduce an 'independent invention' defence in the law for innovators.</p>
<p style="text-align: justify;">A certain paper addresses rejection of apps in the AppStore on three grounds: rejection on content grounds (including some competition-driven restrictions), rejection on development grounds, and the regulation of transactions.</p>
<p style="text-align: justify;"><strong>Apple's and Google's foray into building a mobile development platform</strong></p>
<p style="text-align: justify;">Coming from the music and personal computer industry, Apple disrupted the mobile industry by making its mobile development platform available to third party developers and eliminating the barriers between those developers and customers. The main goal of Apple in the mobile world is to increase the cross-sales of its high-margin products by providing a continuous experience roaming (iPhone, iPad, Mac, and Apple TV) using complements such as mobile applications, content, services, and accessories.<a name="_ftnref36" href="#_ftn36">[36]</a> Google, on the other hand, is an online advertising company which provides an open source mobile operating system, in the shape of Android, on which mobile handset manufacturers can develop smartphones without paying software licensing fees. By commoditizing mobile device production under its unique governance structure and building a large developer community, Google secured a means of reducing the barriers to new users accessing their advertising through smartphones. Microsoft through its Windows Phone is the most recent addition to the leading mobile platform providers. Its motivations lie in trying to protect its core business of software licensing which has been disrupted by falling PC sales linked to the emergence of mobile technology and free cloud technology services provided by companies such as Google which have impacted respectively on its licensing fees for Windows OS and Microsoft Office<a name="_ftnref37" href="#_ftn37">[37]</a>.</p>
<p style="text-align: justify;">Luis H Hestres<a name="_ftnref38" href="#_ftn38">[38]</a> analyzes Apple’s guidelines and approval process on the App Store, discusses content-based rejections of apps, and outlines the consequences of this process for developers’ and consumers’ freedom of expression. It outlines a set of principles to ensure “app-neutrality” whilie ensuring device quality and safety. The article illustrates challenges faced by app developers working on the iOS platform. Criticisms have come forth about Apple's arbitrary and opaque review process. Apple has a rejection rate of 30% of the 26,000 apps submitted to the app store each week<a name="_ftnref39" href="#_ftn39">[39]</a>. Van Grove<a name="_ftnref40" href="#_ftn40">[40]</a> comments that the ambiguity, opaqueness, and susceptibility to outside pressures that seems to characterize Apple’s approval process do a disservice to a democratic online culture. With more than 400 million iOS devices sold worldwide since 2007<a name="_ftnref41" href="#_ftn41">[41]</a>, Apple’s devices and app store have become important online intermediaries for Internet users. The article proposes a few basic guidelines, anchored on widely accepted international laws and treaties, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.</p>
<p style="text-align: justify;"><strong>Statistics</strong></p>
<p style="text-align: justify;">A Report<a name="_ftnref42" href="#_ftn42">[42]</a> presents us with some important insights into the growth of Google Play. Following are the highlights of the report: There are now well over 1 million apps available on Google Play App downloads and revenue from Google Play increased dramatically over the past year; Markets such as Brazil, Russia, Mexico, Turkey and Indonesia are driving growth in app downloads from Google Play; Google Play is experiencing rapid expansion of monetization in established markets such as Japan, the United States and South Korea; Games played a major role in the acceleration of Google Play revenue growth, but almost all app categories experienced expansion and accounted for almost 90% of revenue in Q1 2014; The freemium business model advanced its domination of Google Play app revenue, and represents a growing proportion of downloads; Asian markets lead the way in generating freemium revenue. Another report8 reiterates the explosion of gaming apps.</p>
<p style="text-align: justify;"><strong>4. How does Indian copyright law and patent law apply to the mobile applications development ecosystem, in respect of the various business models operating in the industry?</strong></p>
<p style="text-align: justify;"><strong>4.1. The patent regime is grounded on a laboratory model of innovation. What does the niche mobile applications development industry (working on a micro-creativity model of innovation) require differently from the patent regime to foster growth?</strong></p>
<p style="text-align: justify;"><strong>4.2. Similarly, copyright law has a distinct design for digital objects. Examine the design and its suitability to regulate a mobile application.</strong></p>
<p style="text-align: justify;"><strong>A.</strong> The interviews reveal a dichotomy existing in the mobile app developer space. While some developers argued for strong IPR protections, several of app developers opposed strict IPR protection (patents, especially) and advocated use of open source software.<a name="_ftnref43" href="#_ftn43">[43]</a></p>
<p style="text-align: justify;"><strong>Open source for future protection (Applicable as literature to Research question 2)</strong></p>
<p style="text-align: justify;">Sometimes developers license for community values primarily, however, the assumption is that dominant reason is to retain the ability to use their own work across clients. A designer from a services enterprise gave a different reason for doing so: to guarantee their ability to use their work again. “Since we use a bunch of templates and things like that, those we license using a non-exclusive license, because we reuse those elements on different bits of code in different projects,” he explains, “so there are bits of it which is used over multiple projects and there are stuff that is built exclusively for the client.”<a name="_ftnref44" href="#_ftn44">[44]</a></p>
<p style="text-align: justify;">Here one can gather some insight, that perhaps developers do not necessarily license for community values primarily, but for the ability to use their own work across clients. That being said, we begin to wonder what the possibility that open source code may serve as a loophole for work-for-hire contracts, which require the developer to assign all written intellectual property to whoever is commissioning the project. If the code happened to “already be available by open source,” a developer may still be honouring any restrictive agreements with clients, and ensuring their ability to use their code in this future again.<a name="_ftnref45" href="#_ftn45">[45]</a></p>
<p style="text-align: justify;">As a developer suggests, that startups should first and foremost protect themselves by making wiser choices related to code in order to prevent being litigated against by others—such as using an open source equivalent to a piece of code that one does not have the rights to, or instead putting the extra time in to develop it from scratch.<a name="_ftnref46" href="#_ftn46">[46]</a></p>
<p style="text-align: justify;">Of those who expressed an interest in the open source movement, not all had said that their products were to be open licensed as well. One developer explicitly stated: “I like the idea of open source, and building upon others' work...but our app is not open source, it's proprietary.” It may be a given, then, that all or most developers within our interview sample rely on open source code within their practice, but not all may contribute their resulting product's source code back.<a name="_ftnref47" href="#_ftn47">[47]</a></p>
<p style="text-align: justify;">Vivek Durai, from Humble Paper said that despite the fact that “open source has really taken route... on the smaller levels, people will come to a point when philosophies begin to change the moment you start seeing commercial.”<a name="_ftnref48" href="#_ftn48">[48]</a></p>
<p style="text-align: justify;"><strong>B.</strong> A certain paper<a name="_ftnref49" href="#_ftn49">[49]</a> examines from various angles the complex relationship between intellectual-property rights and technological innovation. Following are the conclusions:</p>
<p style="text-align: justify;">1) Intellectual property rights are most likely to foster innovation when the following conditions converge in a particular industry: (a) high research-and-development costs; (b) a high degree of uncertainty concerning whether specific lines of research will prove fruitful; (c) the content of technological advances can be ascertained easily by competitors through “reverse engineering”; and (d) technological advances can be mimicked by competitors rapidly and inexpensively.</p>
<p style="text-align: justify;">2) The likelihood that intellectual-property rights will impede more than stimulate innovation increases as more and more of the following factors obtain in a particular field: (a) trade-secret protection or lead-time advantages reduce the ability of competitors to take advantage of technological advances; (b) innovation in the field tends to be highly cumulative; (c) researchers in the field are motivated primarily by non-monetary incentives; (d) the field is characterized by strong network externalities. The last three of these circumstances were all present during the development of the technical infrastructure of the Internet; it is thus not surprising that that development proceeded rapidly and effectively with little reliance upon intellectual-property systems.</p>
<p style="text-align: justify;">3) The following techniques may be employed to mitigate the economic side-effects of intellectual-property systems: (a) compulsory licenses; (b) facilitation of price discrimination; (c) strict enforcement of the “utility” requirement; (d) encouragement of appropriate cross-licensing agreements (provided that cartel behavior can be simultaneously discouraged); (e) narrow interpretations of “similarity”; (f) strict enforcement of “enablement” and “best-mode” requirements; and (g) the affirmative defenses of patent and copyright misuse.</p>
<p style="text-align: justify;">4) In contexts in which reliance upon these mitigating devices is not feasible, the following alternative ways of solving the public-goods problem may be superior to intellectual-property rights as ways of stimulating innovation:government research; government funding for private research; or post-hoc government rewards for private technological advances.</p>
<p style="text-align: justify;"><strong>C. </strong>In a paper<a name="_ftnref50" href="#_ftn50">[50]</a>, the authors study the determinants of patent quality and volume of patent applications when inventors care about perceived patent quality. They analyze the effects of various policy reforms, specifically, a proposal to establish a two‐tiered patent system. In the two‐tiered system, applicants can choose between a regular patent and a more costly, possibly more thoroughly examined, ‘gold‐plate’ patent. Introducing a second patent‐tier can reduce patent applications, reduce the incidence of bad patents, and sometimes increase social welfare. The gold‐plate tier attracts inventors with high ex‐ante probability of validity, but not necessarily applicants with innovations of high economic value.</p>
<p style="text-align: justify;"><strong>D. </strong>Copyrights related to apps are still being hashed out in the courts. Oracle, for example, sued Google<a name="_ftnref51" href="#_ftn51">[51]</a> for copyright infringement regarding the structure of Java APIs in its Android operating system<a name="_ftnref52" href="#_ftn52">[52]</a>, and the case was decided by the U.S. Supreme Court.</p>
<p style="text-align: justify;">E. Policy Levers in Patent Law<a name="_ftnref53" href="#_ftn53">[53]</a></p>
<p style="text-align: justify;">The paper argues that some industries should be the subject of patent tailoring – which can make them illustrative of certain policy levers. Use of obviousness and disclosure doctrines to modulate the scope and frequency of patents, as might be necessary where anti-commons to patent thicket theories are applicable.</p>
<p style="text-align: justify;"><strong>Nature of software vis-a-vis biological/chemical inventions</strong></p>
<p style="text-align: justify;">Software inventions tend to have a quick, cheap, and fairly straightforward post- invention development cycle. Most of the work in software development occurs in the initial coding, not in development or production. The lead time to market in the software industry tends to be short. Because innovation is less uncertain in software than in industries like biotechnology, Merges’ economic framework suggests that the non-obviousness bar should be rather high.</p>
<p style="text-align: justify;">Implementing a rational software policy obviously requires some significant changes to existing case law. A number of policy levers might be brought to bear on this problem. First, obviousness doctrine needs to be reformed, preferably by way of a more informed application of the level of skill in the art or alternatively by application of new secondary considerations of non-obviousness.</p>
<p style="text-align: justify;"><strong>Poor handling of software patents by the Federal Circuit</strong></p>
<p style="text-align: justify;">The paper argued that broad software patents were indeed what the existing Federal Circuit jurisprudence will likely produce. By relaxing the enablement requirement and permitting software inventions defined in broad terms, supported by very little in the way of detailed disclosure, the Federal Circuit has encouraged software patents to be drafted broadly and to be applied to allegedly infringing devices that are far removed from the original patented invention.</p>
<p style="text-align: justify;">By implication, the Federal Circuit’s standard also seems to suggest that many narrower software patents on low- level incremental improvements will be invalid for obviousness in view of earlier, more general disclosures. They may also be invalidated under the on- sale bar, because the Supreme Court’s view that a software invention is “ready for patenting” when it is the subject of a commercial order and when the inventor has described its broad functions, even if it is not clear how the code will be written or that it will work for its intended purpose, means that any patentee who waits until the code is written to file a patent application risks being time-barred for not filing earlier. Unfortunately, the Federal Circuit’s current standard seems to be precisely backwards. Software is an industry characterized by at least to a limited extent by competition theory and to a greater extent by cumulative innovation. Cumulative innovation theory suggests that patent protection for incremental software inventions should be relatively easy to acquire in order to reward incremental improvements, implying a somewhat lower obviousness threshold. It also suggests that the resulting patents should be narrow and, in particular, that they should not generally extend across several product generations for fear of stifling subsequent incremental improvements. This suggests that software patents should be limited in scope.</p>
<p style="text-align: justify;">Second, a higher disclosure requirement and restrictions on the doctrine of equivalents will help reduce patent scope. Additionally, the authors think software patents are the ideal candidate for a new policy lever: reverse engineering. Many commentators have explained the importance of permitting competitors to reverse engineer a product in order to see how it works and to figure out ways to design around it. In the case of copyright, courts have adapted the doctrine of fair use, together sometimes with copyright misuse, to allow competitors to engage in reverse engineering of computer software. Patent law includes no express provision allowing reverse engineering, nor is there any judicially developed exception akin to copyright’s fair use doctrine that might permit it. Indeed, patent law generally lacks provisions akin to fair use or other exceptions that might readily be pressed into the service of reverse engineering, although commentators have suggested that patent law may need such exceptions for precisely this reason.</p>
<p style="text-align: justify;">This does not mean that reverse engineering a patented product is necessarily illegal patent law. Some inventions, such as the paper clip, are readily apparent once embodied in a product. Improvers do not need to reverse engineer the paper clip and figure out how it works in order to improve it; they just need to look at it. Additionally, in many cases, the patentee has done all the work necessary for reverse engineering patented inventions by virtue of disclosing how to make and use the claimed invention in the patent specification. <em>In theory, an express </em> <em>provision authorizing reverse engineering would be superfluous if the enabling disclosures </em> <em>required to secure a patent were sufficiently strong – someone who wanted to learn how a </em> <em>patented device worked would only need to read the patent specification.</em> Patentable inventions in software, however, generally do not have these characteristics. Software devices typically cannot be readily understood by casual inspection, and particularly not without access to human-readable source code or other documentation. Examination of the patent itself is unlikely to yield information equivalent to a reverse engineered inspection because the Federal Circuit does not require would-be patentees of software inventions to disclose the implementing source code or, for that matter, very much at all about their inventions. Accordingly, software patents present unique obstacles to consummation of the patent law’s traditional rights-for-disclosure bargain with the public. The specific reverse engineering techniques commonly used for software, in turn, may raise some infringement problems that are unique to software. The definition of infringement in the patent statute is extremely broad, encompassing anyone who “makes, uses, offers to sell, ... sells..., or imports” a patented product. Reverse engineering a patented computer program by decompiling it likely fits within this broad category of prohibited conduct, at least where the program itself is claimed as an apparatus. Reverse engineering clearly constitutes a “use” of the patented software, though owners of a particular copy of the program surely have the right to use it. More significantly, decompilation may also constitute “making” the patented program by generating a temporary yet functional copy of it in RAM memory and, in certain instances, a longer-term (though still “intermediate”) copy in more permanent memory. Those copies probably constitute patent infringement unless protected by some defense. The result of all of this is that the nominally neutral patent law rule – no defense for reverse engineering – affects software more than other industries.</p>
<p style="text-align: justify;">The need for a reverse engineering exception in patent law militates in favor of adapting the existing doctrines of exhaustion or experimental use to that end. Patent misuse might also be adapted, as it has been in the copyright arena, to prevent patent holders from deterring or prohibiting reverse engineering related to their inventions. The exception might even be created out of whole cloth by reinterpreting the infringement provisions of section 271(a). The resulting patent doctrine would constitute a macro policy lever. As Cohen and Lemley observe, in most industries there is either no need to reverse engineer an invention or reverse engineering can be done without infringing the patent.</p>
<p style="text-align: justify;">The paper concludes by stating,<em> “Only in software is there a need for a particular doctrine to protect the right to reverse engineer —and therefore the ability of improvers to innovate. Thus, a judicially created reverse engineering defense would make sense across the board in software cases but not in other patent cases.”</em></p>
<hr style="text-align: justify;" />
<p style="text-align: justify;"><a name="_ftn1" href="#_ftnref1">[1]</a>Samantha Cassar, "<a href="http://cis-india.org/a2k/blogs/app-developers-series-services-products-dichotomy-ip-2013-part-i">App Developers Series: Products-Services Dichotomy & IP (Part I)</a>”, last accessed July 21, 2015</p>
<p style="text-align: justify;"><a name="_ftn2" href="#_ftnref2">[2]</a>IAMAI, “An inquiry into the impact of India's App economy”, 2015</p>
<p style="text-align: justify;"><a name="_ftn3" href="#_ftnref3">[3]</a>DoT has set up a 1000 crore app development centre called Application Development Infrastructure and 700 crores under the National E-Governance Plan have been allocated for mobile technology ventures</p>
<p style="text-align: justify;"><a name="_ftn4" href="#_ftnref4">[4]</a>Supra note 1</p>
<p style="text-align: justify;"><a name="_ftn5" href="#_ftnref5">[5]</a>Supra note 2</p>
<p style="text-align: justify;"><a name="_ftn6" href="#_ftnref6">[6]</a>Hippel, Eric von, and Georg von Krogh. "Open source software and the “private-collective” innovation model: Issues for organization science." Organization science 14.2 (2003): 209-223.</p>
<p style="text-align: justify;"><a name="_ftn7" href="#_ftnref7">[7]</a>Supra note 1</p>
<p style="text-align: justify;"><a name="_ftn8" href="#_ftnref8">[8]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn9" href="#_ftnref9">[9]</a> Samantha Cassar, “<a name="parent-fieldname-title"></a><a href="http://cis-india.org/a2k/blogs/mobile-app-developer-series-terms-of-agreement-iv">Mobile App Developer Series: Terms of Agreement – Part IV</a>”, last accessed July 21</p>
<p style="text-align: justify;"><a name="_ftn10" href="#_ftnref10">[10]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn11" href="#_ftnref11">[11]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn12" href="#_ftnref12">[12]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn13" href="#_ftnref13">[13]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn14" href="#_ftnref14">[14]</a>Gartner Data</p>
<p style="text-align: justify;"><a name="_ftn15" href="#_ftnref15">[15]</a>Supra note 1</p>
<p style="text-align: justify;"><a name="_ftn16" href="#_ftnref16">[16]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn17" href="#_ftnref17">[17]</a>Samantha Cassar, “<a name="parent-fieldname-title1"></a><a href="http://cis-india.org/a2k/blogs/interviews-with-app-developers-dis-regard-towards-ipr-vs-patent-hype-2013-part-ii">Interviews with App Developers: [dis]regard towards IPR vs. Patent Hype – Part II</a>”, last accesed July 21, 2015</p>
<p style="text-align: justify;"><a name="_ftn18" href="#_ftnref18">[18]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn19" href="#_ftnref19">[19]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn20" href="#_ftnref20">[20]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn21" href="#_ftnref21">[21]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn22" href="#_ftnref22">[22]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn23" href="#_ftnref23">[23]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn24" href="#_ftnref24">[24]</a>Samantha Cassar, “<a name="parent-fieldname-title2"></a><a href="http://cis-india.org/a2k/blogs/interviews-with-app-developers-name-of-the-game-part-iv">Interviews with App Developers: Name of the Game (Part IV)</a>”, last accessed July 21, 2015</p>
<p style="text-align: justify;"><a name="_ftn25" href="#_ftnref25">[25]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn26" href="#_ftnref26">[26]</a>"Strategy as Ecology," Harvard Business Review, Vol. 82, No. 3, March 2004.</p>
<p style="text-align: justify;"><a name="_ftn27" href="#_ftnref27">[27]</a> Evans, D. S., A. Hagiu and R. Schmalensee, 2006, Invisible Engines: How Software Platforms</p>
<p style="text-align: justify;">Drive Innovation and Transform Industries, Cambridge, MA: The MIT Press.</p>
<p style="text-align: justify;"><a name="_ftn28" href="#_ftnref28">[28]</a>Kouris, Iana and Kleer, Rob, "BUSINESS MODELS IN TWO-SIDED MARKETS: AN ASSESSMENT OF STRATEGIES FOR APP PLATFORMS" (2012). <em>2012 International Conference on Mobile Business.</em> Paper 22.<br /> http://aisel.aisnet.org/icmb2012/22</p>
<p style="text-align: justify;"><a name="_ftn29" href="#_ftnref29">[29]</a>Fransman, M. (2014) Models of Innovation in Global ICT Firms: The Emerging Global Innovation Ecosystems. JRC Scientific and Policy Reports –EUR 26774 EN. Seville: JRC-IPTS</p>
<p style="text-align: justify;"><a name="_ftn30" href="#_ftnref30">[30]</a> Deniz and Kehoe, Factors that attract and retain third party developers in mobile ecosystems, June 2013</p>
<p style="text-align: justify;"><a name="_ftn31" href="#_ftnref31">[31]</a>Nadea Saad Noori (2009) Managing External Innovation: The case of platform extension, available at <a href="http://www3.carleton.ca/tim/theses/2009/Noori2009.pdf">http://www3.carleton.ca/tim/theses/2009/Noori2009.pdf</a></p>
<p style="text-align: justify;"><a name="_ftn32" href="#_ftnref32">[32]</a>Tsai, Phal & Robert, Industry Platform Construction and Development in a changing environment: Evidence from the ICT Industry, available at <a href="http://druid8.sit.aau.dk/acc_papers/6s5aqckmne7ggybu0vfxryrynuog.pdf">http://druid8.sit.aau.dk/acc_papers/6s5aqckmne7ggybu0vfxryrynuog.pdf</a></p>
<p style="text-align: justify;"><a name="_ftn33" href="#_ftnref33">[33]</a> Supra note 9</p>
<p style="text-align: justify;"><a name="_ftn34" href="#_ftnref34">[34]</a> Ibid.</p>
<p style="text-align: justify;"><a name="_ftn35" href="#_ftnref35">[35]</a>John Baskin, Competitive Regulation of Mobile Software Systems: Promoting Innovation Through Reform of Antitrust and Patent Laws (2013)</p>
<p style="text-align: justify;"><a name="_ftn36" href="#_ftnref36">[36]</a> Constantinou, 2012b</p>
<p style="text-align: justify;"><a name="_ftn37" href="#_ftnref37">[37]</a>Ibid.</p>
<p style="text-align: justify;"><a name="_ftn38" href="#_ftnref38">[38]</a>Luis H Hestres (2013) App Neutrality: Apple’s App Store and Freedom of Expression Online , American University , International Journal of Communication 7 (2013), 1265–1280</p>
<p style="text-align: justify;"><a name="_ftn39" href="#_ftnref39">[39]</a>Supra note 9</p>
<p style="text-align: justify;"><a name="_ftn40" href="#_ftnref40">[40]</a>Ibid.</p>
<p style="text-align: justify;"><a name="_ftn41" href="#_ftnref41">[41]</a> Supra note 9</p>
<p style="text-align: justify;"><a name="_ftn42" href="#_ftnref42">[42]</a>App Annie Data</p>
<p style="text-align: justify;"><a name="_ftn43" href="#_ftnref43">[43]</a>Supra note 1</p>
<p style="text-align: justify;"><a name="_ftn44" href="#_ftnref44">[44]</a>Samantha Cassar, “<a name="parent-fieldname-title3"></a><a href="http://cis-india.org/a2k/blogs/interviews-with-app-developers-open-source-community-and-contradictions-iii">Interviews with App Developers: Open Source, Community, and Contradictions – Part III”</a>, last accessed July 21</p>
<p style="text-align: justify;"><a name="_ftn45" href="#_ftnref45">[45]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn46" href="#_ftnref46">[46]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn47" href="#_ftnref47">[47]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn48" href="#_ftnref48">[48]</a>Ibid</p>
<p style="text-align: justify;"><a name="_ftn49" href="#_ftnref49">[49]</a> William Fisher, INTELLECTUAL PROPERTY AND INNOVATION: THEORETICAL, EMPIRICAL, AND HISTORICAL PERSPECTIVES</p>
<p style="text-align: justify;"><a name="_ftn50" href="#_ftnref50">[50]</a><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2490195">Patent Quality and a Two‐Tiered Patent System</a> (Vidya Atal and Talia Brar, 2014)</p>
<p style="text-align: justify;"><a name="_ftn51" href="#_ftnref51">[51]</a><a href="http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google">http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google</a></p>
<p style="text-align: justify;"><a name="_ftn52" href="#_ftnref52">[52]</a>http://copyrightalliance.org/2014/05/federal_circuit_releases_decision_oracle_v_google#.VYf0i9Z5MxB</p>
<p style="text-align: justify;"><a name="_ftn53" href="#_ftnref53">[53]</a><a href="http://escholarship.org/uc/item/4qr081sg">http://escholarship.org/uc/item/4qr081sg</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-literature-review-on-ipr-in-mobile-app-development'>http://editors.cis-india.org/a2k/blogs/pervasive-technologies-project-working-document-series-literature-review-on-ipr-in-mobile-app-development</a>
</p>
No publishersinhaHomepageAccess to KnowledgePervasive Technologies2015-08-31T13:48:02ZBlog EntryNational IPR Policy Series: RTI Requests by CIS to DIPP + DIPP Responses
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses
<b>In earlier blog posts, we have discussed the development of India’s National IPR Policy (“the Policy”); comments by the Centre for Internet and Society (“CIS”) to the IPR Think Tank before the release of the first draft of the Policy and CIS’ comments to the IPR Think Tank in response to the first draft of the Policy. Continuing our National IPR Policy Series, this article documents our requests to the Department of Industrial Policy and Promotion (“DIPP” / “the Department”) under the Right to Information (“RTI”) Act, 2005 and the responses of the Department.</b>
<p><a href="http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-dipp-response.pdf" class="external-link">View the PDF here</a>.</p>
<hr />
<h3>Details of RTI Requests Filed by CIS</h3>
<p style="text-align: justify; ">In February, 2015, <a href="http://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank">CIS had filed three RTI requests</a> with the DIPP. <a href="http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-1-february-2015/view">The first request</a> was four-pronged, seeking information related to <i>first,</i> the process followed by the Department in the creation of the IPR Think Tank; <i>second, </i>details and documents of a meeting held to constitute the Think Tank; <i>third, </i>details and documents of all/multiple meetings held to constitute the Think Tank; <i>fourth</i>, details of a directive/directives received from any other Government Ministry/authority directing the constitution of the Think Tank and <i>fifth,</i> the process of shortlisting the members of the Think Tank by the DIPP.</p>
<p style="text-align: justify; "><a href="http://editors.cis-india.org/a2k/blogs/cis-rti-request-to-dipp-number-2-february-2015/view">In our second RTI request,</a> <i>first,</i> we requested details of the process followed by the Think Tank in the formulation of the Policy; <i>second, </i>we requested all documents relating to a meeting held for the formulation of the Policy; <i>third, </i>we requested all documents held for multiple meetings for the creation of the Policy and <i>fourth,</i> we requisitioned all suggestions and comments received by the Think Tank from stakeholders <b>before</b> the release of the Policy, that is, those suggestions/comments received in November, 2014.</p>
<p style="text-align: justify; ">In our <a href="http://editors.cis-india.org/a2k/blogs/cis-request-to-dipp-3.pdf" class="external-link">third RTI request</a>, also filed on also filed in February, 2015, we had asked the DIPP to indicate all suggestions and comments received by the IPR Think Tank from different stakeholders in response to the first draft of the National IPR Policy (to have been submitted on or before January 30, 2015 <a href="http://dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf">as per DIPP’s Public Notice</a>).</p>
<h3 style="text-align: justify; ">Responses by DIPP to CIS' RTI Requests</h3>
<p style="text-align: justify; ">The DIPP replied to our three RTI requests in multiple stages. At first, <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-improper-payment.pdf" class="external-link">in a letter dated 12 February, 2015</a>, we were directed to resubmit our application , seemingly because we hadn’t addressed the Postal Money Order to the correct authority, and were directed to do the same. Funnily enough, we received three other responses – one for each of our RTI requests (the first of these is not dated; the second one is dated 19 February, 2015 and then revised to 26 February, 2015; and the third is also dated 26 February, 2015).</p>
<h3 style="text-align: justify; ">The First Response: On the Constitution of the Think Tank</h3>
<p style="text-align: justify; ">In the <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-1.pdf" class="external-link">first of their responses</a> to these requests, the Department has grouped our queries into five questions and provided a point-wise response to these questions, as under:</p>
<ul>
<li style="text-align: justify; "><b>Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10 (22)/2013 –IPR-III dated November 13, 2014 (sic).</b></li>
</ul>
<p style="text-align: justify; ">In its response the Department notes that it convened an <i>interactive meeting on IPR issues</i> which was chaired by the Minister for Commerce and Industry (Independent Charge), i.e., Ms. Nirmala Sitharaman. As per the Department’s response, this meeting was held on 22 September, 2014 (<b>“the Meeting”</b>) and was aimed at discussing <i>issues related to IPRs, including finalization of the Terms of Reference for IPR Think-Tank proposed to be established </i>(sic.) The Department also notes that <i>representatives from various Ministries/Departments, Member of various Expert Committees constituted by the Department, besides IP experts and other Legal Practitioners</i> (sic) were invited to the meeting. The Department then states that the composition of the Think Tank was decided <i>on the basis of the discussions held in the department after the said interactive Meeting</i> (sic).</p>
<ul>
<li style="text-align: justify; "><b>If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders etc in which the constitution of the aforesaid mentioned IPR Think Tank was decided (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department has attached the Minutes of the Meeting held on 22 September, 2014 (<b>“the Minutes”</b>) and states that there were no documents or papers that were circulated at this meeting and that the participants were asked to present their views on various IP issues at this meeting.</p>
<p style="text-align: justify; "><span>Excerpts from the Minutes</span></p>
<p style="text-align: justify; ">The Secretary of the Department (Shri Amitabh Kant) refers to a (then) recent announcement made by the Minister of State for Commerce and Industry (<b>“the Minister”</b>) on the formulation of the National IPR Policy and the establishment of an IPR Think Tank and states that the meeting had been convened to <i>discuss on various IPR issues with IP experts and legal practitioners so that it would provide essential inputs to the policy needs of the department</i> (sic). The Minutes report that Mr. Kant further stated that the objective of the department was to have <i>a world class IP system</i> and that this included a comprehensive National IPR Policy and <i>which takes care of various issues like IP creation, protection, administration and capacity building </i>(sic). He is also reported to have said that such a stakeholder interaction was important for the government to seek inputs.</p>
<p style="text-align: justify; ">The Minister is reported to have said that the purpose of the meeting was to constitute an IP Think Tank that would <i>regularly provide inputs to all IP policy needs of this department as well as advice government in disparate legal aspects (sic). </i>The Minutes also report her to have said that the department would finalize an IP policy within ninety days of the Meeting, based on the inputs of the participants.</p>
<p style="text-align: justify; ">According to the Minutes, various issues emerged from the discussion. <i>Inter alia, </i>these include <i>first,</i> that the proposal to constitute the Think Tank was a welcome measure, along the lines of similar initiatives taken by Australia, South Kora, the United Kingdom and the United States of America; <i>second, </i>that in order to remove misconceptions held by <i>foreign stakeholders</i> about IP enforcement in India, there was a need to highlight judgments of Indian courts that were favorable to <i>foreign stakeholders and MNCs</i>; <i>third, </i>that the national policies on telecom, manufacturing and IP ought to be integrated; <i>fourth</i>, that the focus of the Policy should be <b><i>increase in creation of IP including commercialization of IP and strengthening human capital and IP management</i></b> and <i>fifth</i>, that empirical studies should be conducted to examine the feasibility of Utility Models protection, that there was a need to revise the law on Geographical Indications and that the Policy should include protection for traditional knowledge and guidelines for publicly funded research.</p>
<p style="text-align: justify; ">The Minister is then said to have identified six major areas during the discussion, including <i>IP institution, legislation, implementation, public awareness, international aspects and barriers in IP growth</i> as areas to be covered under the Policy.</p>
<p style="text-align: justify; "><span>Who attended the Meeting?</span></p>
<p style="text-align: justify; ">Attached with the Minutes was also a list of participants who attended the Meeting. Out of the thirty six attendees, <i>I have not been able to locate a single individual or organization representing civil society</i>. Participants include representatives from various government departments and ministries, including <i>inter alia,</i> the DIPP, the Department of Commerce, the Ministry of External Affairs, the Ministry of Information and Broadcasting, the Copyright Division from the Department of Higher Education of the Ministry of Human Resources Development, the Office of the Controller General of Patents, Designs and Trademarks and the Ministry of Culture. The Meeting was also attended by representatives of corporations and industry associations, including FICCI, CII and Cadila Pharmaceuticals; in addition to representatives from law firms including Luthra and Luthra, K&S Partners and Inventure IP and academics including, <i>inter alia,</i> faculty from the Asian School of Business, Trivandrum, Indian Law Institute, Delhi, Tezpur University, Assam, National Law University, Delhi, NALSAR University of Law, Hyderabad, the Indian Institute of Technology, Madras and the National Law School of India University, Bangalore.</p>
<ul>
<li style="text-align: justify; "><b>If there were multiple meetings held for the same please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders etc. for all such meetings held (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department answered, “No”; which I’m taking to mean that there weren’t other meetings held for the formulation of the Think Tank or the Policy. This is interesting, because the Minutes (referred to earlier) speak of another inter-ministerial meeting <i>including IP experts and legal practitioners</i> slated to be held around the 10<sup>th</sup> of October, 2014, to discuss the framework of the Policy.</p>
<ul style="text-align: justify; ">
<li><b>If a directive or directives were received by the Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the DIPP from any Government authority, to constitute such a Think Tank (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department answered, “No”; which I’m taking to mean that there was no communication received by the Department to constitute this Think Tank.</p>
<ul style="text-align: justify; ">
<li><b>Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department replied that the answer to this was the same as that to the first question.</p>
<h3 style="text-align: justify; ">The Second Response: The Drafting of the Policy</h3>
<p>The <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-2.pdf/" class="external-link">second of the Department's responses</a> to our requests came in the form of separate responses to each of our four questions, as under:</p>
<ul>
<li><b>Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated Dec. 19, 2014 (sic).</b></li>
</ul>
<p style="text-align: justify; ">The Department stated that the IPR Think Tank conducted its meetings independently without any interference from the Department. The Department then stated that the Think Tank had received comments from stakeholders via a dedicated email id and <i>conducted the interactive meeting with stakeholders while framing the draft on the National IPR Policy.</i></p>
<ul>
<li style="text-align: justify; "><b>If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinion, advices, press releases, circulars, orders, suggestions etc. related to drafting of such National IPR Policy Think Tank chaired by Justice Prabha Sridevan (sic). </b></li>
</ul>
<p style="text-align: justify; ">The Department replied that since the IPR Think Tank had decided <i>its process by themselves</i> (sic), the Department<i> do not have the minutes of the meeting etc. conducted by the IPR Think Tank </i>(sic). It attached with its reply a copy of the press releases announcing the composition of the Think Tank and asking stakeholders to submit comments to the first draft of the Policy.</p>
<ul>
<li style="text-align: justify; "><b>If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, order suggestions etc. for all such meetings held (sic).</b></li>
</ul>
<p>The Department replied that the response to this was the same as that to the earlier question above.</p>
<ul>
<li style="text-align: justify; "><b>Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the DIPP issued Public Notice No. 10/22/2013-IPR-III dated 13.11.2014 asking for suggestions and comments on or before November 30, 2014 (sic).</b></li>
</ul>
<p>The Department replied that the comments and suggestions were received by the Think Tank directly and that therefore, the Department was <i>not in a position to provide the same.</i></p>
<h3>The<i> </i>Third Response: Stakeholder Comments</h3>
<p>In its <a href="http://editors.cis-india.org/a2k/blogs/dipp-response-3.pdf" class="external-link">third and final response</a> to our requests, the DIPP replied to our query as under:</p>
<ul>
<li style="text-align: justify; "><b>Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.</b></li>
</ul>
<p>The Department said that <i>the suggestions and comments on the draft on National IPR Policy have been received by the IPR Think Tank directly. As such this Department is not in a position to provide the same (sic.).</i></p>
<h3>Observation on the DIPP's Responses</h3>
<p><i>Prima facie, </i>the responses by the Department are rather curious, leading to a range of oddities and unanswered questions.</p>
<h3>Who Will Watch the IPR Think Tank</h3>
<p style="text-align: justify; ">In its response to our first RTI request, the Department quite clearly stated that it decided the composition of the IPR Think Tank based on discussions in a meeting that it convened, which was also chaired by the Minister of State for Commerce and Industry, the parent ministry of the DIPP. In the same response, the Department also stated that it had not received any directive from any other ministry/government department directing the constitution of the IPR Think Tank, leading to the conclusion that this decision was taken by the DIPP/the Ministry of Commerce and Industry itself. Subsequently however, the Department justified its refusal to furnish us with documents leading to the development of the first draft of the National IPR Policy (contained in our second RTI request) by stating that the IPR Think Tank conducted its business without any interference from the Department, and that the Department did not have access to any of the submissions made to the IPR Think Tank or any of the internal minutes of the meetings etc. that were a part of the process of drafting the IPR Policy.</p>
<p style="text-align: justify; ">Various press releases by the DIPP have stated that it has constituted the IPR Think Tank, and that the purpose of the IPR Think Tank <a href="http://dipp.nic.in/English/acts_rules/Press_Release/ipr_PressRelease_24October2014.pdf">would be to advise the Department on IPR issues.</a> Visibly, the Department intends for the IPR Think Tank to play an active role in shaping India’s IP law and policy, including suggesting amendments to laws wherever necessary. It is concerning therefore that on the question of accountability of the IPR Think Tank, the DIPP remains silent. It may be argued perhaps, that the IPR Think Tank constitutes a ‘public authority’ under Section 2(h)(d) of the <a href="http://righttoinformation.gov.in/rti-act.pdf">Right to Information Act, 2005</a> (<b>“RTI Act”</b>). In that case, the IPR Think Tank would have to fulfill, <i>inter alia,</i> all of the obligations under Section 4 of the RTI Act as well as designate a Public Information Officer. Alternatively, given that the IPR Think Tank has been constituted by the DIPP and performs functions for the DIPP, the Public Information Officer of the DIPP would have to furnish <span>all</span> relevant information under the RTI Act (including the information that we sought in our requests, which was not provided to us).</p>
<h3 style="text-align: justify; ">Who are the Stakeholders</h3>
<p style="text-align: justify; ">Even a preliminary look at the list of participants at the Meeting (based on which the Department constituted the IPR Think Tank) reveals that not all stakeholders have been adequately represented. I haven’t been able to spot any representation from civil society and other organizations that might be interested in a more balanced intellectual property framework that is not rights-heavy. The following chart (based on a total sample size of 36 participants, as stated in the list of participants provided to us by the DIPP) will help put things in perspective.</p>
<table class="listing">
<tbody>
<tr>
<th><img src="http://editors.cis-india.org/home-images/Meeting.png" alt="Meeting" class="image-inline" title="Meeting" /></th>
</tr>
</tbody>
</table>
<h3 style="text-align: justify; ">What Could've Been Done?</h3>
<p style="text-align: justify; ">Setting aside arguments on its necessity, let us for the moment assume that this drafting of the National IPR Policy is an exercise that needed to have been undertaken. We must now examine what might possibly be the best way to go about this.</p>
<p style="text-align: justify; ">In 2014, the World Intellectual Property Organization (<b>“WIPO”</b>) (based on whose approach the Policy seems to have been based- at least in part), produced a detailed <a href="http://www.wipo.int/edocs/pubdocs/en/intproperty/958/wipo_pub_958_1.pdf">Methodology for the Development of National Intellectual Property Strategies</a>, outlining a detailed eight step process before a National IP Policy was implemented in a Member State. While this approach is one to be followed by the WIPO and might not be entirely suited to India’s drafting exercise, specific sections on the national consultation process as well as the drafting and implementation of national intellectual property strategies might prove to be a decent starting point.</p>
<p>(More on this in an upcoming article).d</p>
<h3>Where Do We Go From Here?</h3>
<p style="text-align: justify; ">The DIPP’s responses have left me with more questions, probably the subject of more RTI requests. Is the IPR Think Tank a public authority for the purposes of the Right to Information Act, 2005? To whom should questions of informational accountability of the IPR Think Tank be addressed, if there is no information available on the IPR Think Tank, and the DIPP claims to have no access to it? Do we need to re-examine the draft National IPR Policy given that there has been inadequate representation of all stakeholders? What were the suggestions made by different stakeholders, and (how) have these been reflected in the first draft of the Policy? Was there an evaluation exercise conducted before the first draft of the Policy was released in order to better inform the formulation of the Policy?</p>
<p style="text-align: justify; ">We will be looking at these and other questions as they arise, and sending some of these to the DIPP in the form of RTI requests. (Watch the blog for more).</p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses</a>
</p>
No publishernehaaAccess to KnowledgePervasive TechnologiesDIPPRTINational IPR PolicyAccountabilityFeaturedIPR Think TankHomepage2015-04-26T08:47:00ZBlog EntryNo more 66A!
http://editors.cis-india.org/internet-governance/blog/no-more-66a
<b>In a landmark decision, the Supreme Court has struck down Section 66A. Today was a great day for freedom of speech on the Internet! When Section 66A was in operation, if you made a statement that led to offence, you could be prosecuted. We are an offence-friendly nation, judging by media reports in the last year. It was a year of book-bans, website blocking and takedown requests. Facebook’s Transparency Report showed that next to the US, India made the most requests for information about user accounts. A complaint under Section 66A would be a ground for such requests.</b>
<p style="text-align: justify; ">Section 66A hung like a sword in the middle: Shaheen Dhada was arrested in Maharashtra for observing that Bal Thackeray’s funeral shut down the city, Devu Chodankar in Goa and Syed Waqar in Karnataka were arrested for making posts about Narendra Modi, and a Puducherry man was arrested for criticizing P. Chidambaram’s son. The law was vague and so widely worded that it was prone to misuse, and was in fact being misused.</p>
<p style="text-align: justify; ">Today, the Supreme Court struck down Section 66A in its judgment on a <a class="external-link" href="http://cis-india.org/internet-governance/blog/overview-constitutional-challenges-on-itact">set of petitions</a> heard together last year and earlier this year. Stating that the law is vague, the bench comprising Chelameshwar and Nariman, JJ. held that while restrictions on free speech are constitutional insofar as they are in line with Article 19(2) of the Constitution. Section 66A, they held, does not meet this test: The central protection of free speech is the freedom to make statements that “offend, shock or disturb”, and Section 66A is an unconstitutional curtailment of these freedoms. To cross the threshold of constitutional limitation, the impugned speech must be of such a nature that it incites violence or is an exhortation to violence. Section 66A, by being extremely vague and broad, does not meet this threshold. These are, of course, drawn from news reports of the judgment; the judgment is not available yet.</p>
<p style="text-align: justify; ">Reports also say that Section 79(3)(b) has been read down. Previously, any private individual or entity, and the government and its departments could request intermediaries to take down a website, without a court order. If the intermediaries did not comply, they would lose immunity under Section 79. The Supreme Court judgment states that both in Rule 3(4) of the Intermediaries Guidelines and in Section 79(3)(b), the "actual knowledge of the court order or government notification" is necessary before website takedowns can be effected. In effect, this mean that intermediaries <i>need not</i> act upon private notices under Section 79, while they can act upon them if they choose. This stops intermediaries from standing judge over what constitutes an unlawful act. If they choose not to take down content after receiving a private notice, they will not lose immunity under Section 79.</p>
<p style="text-align: justify; ">Section 69A, the website blocking procedure, has been left intact by the Court, despite infirmities such as a lack of judicial review and non-transparent operation. More updates when the judgment is made available.</p>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/no-more-66a'>http://editors.cis-india.org/internet-governance/blog/no-more-66a</a>
</p>
No publishergeethaCensorshipFreedom of Speech and ExpressionHomepageIntermediary LiabilityFeaturedChilling EffectSection 66AArticle 19(1)(a)Blocking2015-03-26T02:01:31ZBlog EntryIntellectual Property Rights — Open Access for Researchers
http://editors.cis-india.org/a2k/blogs/unesco-nehaa-chaudhari-march-19-2015-communication-and-information-resources-news-and-in-focus-articles-unesco-open-access-curriculum-is-now-online
<b>In the year 2013, Nehaa Chaudhari had worked on a module on Intellectual Property Rights for United Nations Educational, Scientific and Cultural Organization (UNESCO)'s Open Access Curriculum (Curriculum for Researchers) as part of a project for the Commonwealth Educational Media Centre for Asia. UNESCO published the module this year. Nehaa Chaudhari and Varun Baliga were among the Module preparation team. Nehaa Chaudhari was the writer for Units 1, 2 and 3: Understanding Intellectual Property Rights, Copyright and Alternative to a Strict Copyright Regime.</b>
<p style="text-align: justify; ">This publication is available in Open Access under the Attribution - ShareAlike 3.0 IGO (CC-BY-SA 3.0 IGO) license (<a class="external-link" href="http://creativecommons.org/licenses/by-sa/3.0/igo/">http://creativecommons.org/licenses/by-sa/3.0/igo/</a>). By using the content of this publication, the users accept to be bound by the terms of use of the UNESCO Open Access Repository (<a class="external-link" href="http://www.unesco.org/open-access/terms-use-ccbysa-en">http://www.unesco.org/open-access/terms-use-ccbysa-en</a>).</p>
<hr />
<h2 style="text-align: justify; ">Module Introduction</h2>
<p style="text-align: justify; ">Intellectual Property Rights (IPR) are set of rights associated with creations of the human mind. An output of the human mind may be attributed with intellectual property rights. These are like any other property, and the law allows the owner to use the same to economically profit from the intellectual work. Broadly IPR covers laws related to copyrights, patents and trademarks. While laws for these are different in different countries, they follow the international legal instruments. The establishment of the Wold Intellectual Property Organization (WIPO) has established the significance of IPR for the economic growth of nations in the knowledge economy.</p>
<p style="text-align: justify; ">This module has three units, and while the Unit 1 covers the basics of IPR, Unit 2 expands in detail the components of copyright and explains the origins and conventions associated with it. Unit 3 discusses the emergence of liberal licensing of copyrighted work to share human creation in the commons. In the last unit, we discuss the Creative Commons approach to licensing of creative works within the structures of the copyright regime that permits the authors to exercise their rights to share in the way they intend to. Creative Commons provides six different types of licenses, of which the Creative Commons Attribution license is the most widely used in research journals part of the Open Access framework.</p>
<p style="text-align: justify; ">At the end of this module, you are expected to be able to:</p>
<ul>
<li>Understand intellectual property rights and related issues </li>
<li>Explain copyright, authors’ rights, licensing and retention of rights; and</li>
<li>Use the Creative Commons licensing system</li>
</ul>
<h3>Acknowledgements</h3>
<p>Nehaa would like to thank Varun Baliga and Anirudh Sridhar for their research and writing support in Unit 1, and Samantha Cassar for Unit 2.</p>
<ul>
</ul>
<hr />
<p><a href="http://editors.cis-india.org/a2k/blogs/intellectual-property.pdf" class="internal-link">Click to download the PDF containing the Modules</a>. Also read <a class="external-link" href="http://www.unesco.org/new/en/communication-and-information/resources/news-and-in-focus-articles/all-news/news/unescos_open_access_oa_curriculum_is_now_online/#.VQo6Ho58h8e">UNESCO’s Open Access (OA) Curriculum is now online</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/unesco-nehaa-chaudhari-march-19-2015-communication-and-information-resources-news-and-in-focus-articles-unesco-open-access-curriculum-is-now-online'>http://editors.cis-india.org/a2k/blogs/unesco-nehaa-chaudhari-march-19-2015-communication-and-information-resources-news-and-in-focus-articles-unesco-open-access-curriculum-is-now-online</a>
</p>
No publishernehaaFeaturedHomepagePublicationsAccess to Knowledge2015-03-24T01:22:20ZBlog EntryOpen Letter to Prime Minister Modi
http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi
<b>After the government introduced the "Make in India" and "Digital India" programmes, the air is thick with the promise of reduced imports, new jobs, and goods for the domestic market. In light of the patent wars in India, the government can ill-afford to overlook the patent implications in indigenously manufactured mobile phones. CIS proposes that the Government of India initiate the formation of a patent pool of critical mobile technologies and a five percent compulsory license. </b>
<p dir="ltr" id="docs-internal-guid-741ac7e2-c01d-c02c-db3c-4cf2f2fdf6fc" style="text-align: justify; ">The blog post was <a class="external-link" href="http://www.medianama.com/2015/03/223-digital-india-make-in-india-form-a-patent-pool-of-critical-mobile-technologies-cis-india/">re-published by Medianama</a> on March 24, 2015.</p>
<hr />
<p dir="ltr" style="text-align: justify; ">Honourable Prime Minister Shri Narendra Modi,</p>
<p dir="ltr" style="text-align: justify; ">We at the Centre for Internet and Society support the "<a class="external-link" href="http://www.makeinindia.com/">Make in India</a>" and "<a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/Digital%20India.pdf">Digital India</a>" initiatives of the Indian government and share your <a class="external-link" href="https://www.youtube.com/watch?v=w8QLIuABSYk/">vision of a digitally empowered India</a> where “1.2 billion connected Indians drive innovation”, where “access to information knows no barriers”, and where knowledge is the citizens’ power. The government’s plan of incentivising the manufacturing of electronics hardware, including that of mobile phones in the 2015 Union Budget is equally encouraging. Towards this important goal of nation building, the Centre for Internet and Society is researching the patent and copyright implications of Internet-enabled mobile devices that are sold in the Indian market for Rs 6,000 or less.</p>
<p dir="ltr" style="text-align: justify; ">Bolstered by Make in India, several mobile phone manufacturers have started or ramped up their manufacturing facilities in India. Homegrown brands — such as <a href="http://articles.economictimes.indiatimes.com/2015-01-28/news/58546839_1_digital-india-spice-group-indian-cellular-association">Spice</a>, <a href="http://articles.economictimes.indiatimes.com/2015-02-04/news/58795672_1_devices-haridwar-april-2015">Maxx Mobile and Lava</a> — and foreign manufacturers alike are making humongous investments in mobile phone plants. Chip manufacturer <a href="http://www.mediatek.com/en/news-events/mediatek-news/mediatek-launches-rd-center-in-bengaluru/">Mediatek</a>; one of the newest entrants in the Indian smartphone market, <a href="http://timesofindia.indiatimes.com/tech/tech-news/Xiaomi-to-set-up-research-development-centre-in-India/articleshow/46043461.cms">Xiaomi</a>; and telecom company Huawei, all different links in the mobile phone manufacturing chain, are setting up research and development units in India having recognised its potential as a significant market. These developments promise to cut or substitute imports, cater to the domestic market, create millions of jobs, and stem the outflow of money from India.</p>
<p style="text-align: justify; ">However, mobile phone manufacturers, big and small, have also been embroiled in litigation in India for the past few years over patents pertaining to crucial technologies. Micromax, one of the several Indian mobile phone manufacturers with original equipment manufacturers in China <a class="external-link" href="http://delhihighcourt.nic.in/dhcqrydisp_o.asp?pn=57850&yr=2013">was ordered by the Delhi High Court late last year to pay a substantial 1.25 to 2 per cent of the selling price of its devices to Ericsson</a>, which has claimed infringement of eight of its standard essential patents. <a class="external-link" href="http://www.medianama.com/2014/04/223-ericsson-sues-intex-patents/">Intex </a>and Lava, two members of Micromax’s ilk, have been similarly sued and claim to have received the short end of the stick in the form of unreasonable and exorbitant compensations and royalty rates. Chinese budget phone manufacturers operating in India — Xiaomi, OnePlus, and Gionee — also have come under the sledgehammer of sudden suspension of the sale of their devices. The bigger companies such as Asus, Samsung and ZTE have faced the heat of patent litigation as well.</p>
<p dir="ltr" style="text-align: justify; ">The fear of litigation over patent infringement could thwart local innovation. Additionally, the expenses incurred due to litigation and compensation could lead to the smaller manufacturers shutting shop or passing on their losses to their consumers, and in turn, driving the price points of Internet-enabled mobile devices out of the reach of many. It could also become a stumbling block to the success of ambitious plans of the government, such as the one to provide free <a href="http://www.firstpost.com/business/modis-big-bang-digital-india-plan-2500-cities-to-get-free-4g-level-wifi-2060449.html">WiFi in 2,500 cities and towns</a> across India.</p>
<p dir="ltr" style="text-align: justify; "><b>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. </b>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 regularly 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 href="#fn1" name="fr1">[1] </a> <a href="#fn2" name="fr2">[2] </a> Unfortunately, we did not receive a response <a href="http://editors.cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices" class="internal-link" title="Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses">from the previous government to our suggestion</a> of establishing such a patent pool. We believe that our proposal falls in line with your ambitious programmes designed to work towards your vision of India, and we hope that you would consider it.</p>
<p dir="ltr" style="text-align: justify; ">Yours truly,<br />Rohini Lakshané,<br />Programme Officer,<br />The Centre for Internet and Society</p>
<p style="text-align: justify; ">Copies to:</p>
<ol>
<li>Shri Arun Jaitley, Minister for Finance</li>
<li>Shri Rajiv Mehrishi, Secretary to Ministry of Finance</li>
<li>Smt. Smriti Zubin Irani, Minister for Human Resource Development</li>
<li>Shri Satyanarayan Mohanty, Secretary to Ministry of Human Resources Development</li>
<li>Smt. Nirmala Sitharaman, Minister for Commerce and Industry</li>
<li>Shri Amitabh Kant, Secretary to Department of Industrial Policy and Promotion</li>
<li>Shri Ravi Shankar Prasad, Minister for Communication and Information Technology</li>
<li>Shri Rakesh Garg, Secretary to Department of Telecommunications</li>
<li>Shri R. S. Sharma, Secretary for Department of Electronics and Information Technology</li>
</ol>
<p> </p>
<p>Also read: <a class="external-link" href="http://cis-india.org/a2k/blogs/faq-cis-proposal-for-compulsory-licensing-of-critical-mobile-technologies">FAQ: CIS' Proposal for Compulsory Licensing of Critical Mobile Technologies </a></p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. <span id="docs-internal-guid-58b7fb82-db2b-7be3-83cf-b5045255b88c">James Love, Knowledge Ecology International (KEI) written comments and notice of intent to testify at the Special 301 Public Hearing, Page 6, "US use of compulsory licensing",<a class="moz-txt-link-freetext" href="http://keionline.org/sites/default/files/KEI_2014_Special301_7Feb20014_FRComments.pdf">http://keionline.org/sites/default/files/KEI_2014_Special301_7Feb20014_FRComments.pdf</a>, February 7, 2014, Last accessed February 10, 2015.</span></p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. <span id="docs-internal-guid-58b7fb82-db2b-7be3-83cf-b5045255b88c">Colleen Chien, Cheap Drugs at What Price to Innovation, Does the Compulsory Licensing of Pharmaceuticals Hurt Innovation, Berkeley Technology Law Journal, Volume 18, Issue 3, Article 3, Page 862, "Compulsory licensing in the United States", <a class="moz-txt-link-freetext" href="http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1429&context=btlj">http://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1429&context=btlj</a>, June 2003, Last accessed February 10, 2015.</span></p>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi'>http://editors.cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi</a>
</p>
No publisherrohiniFeaturedHomepageAccess to KnowledgePervasive Technologies2016-02-14T04:39:01ZBlog EntryNational IPR Policy Series : CIS Comments to the First Draft of the National IP Policy
http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy
<b>The Department of Industrial Policy and Promotion, Government of India invited comments on the First Draft of India's National IPR Policy. The Centre for Internet & Society (CIS) made this submission. The comments were prepared by Nehaa Chaudhari, Pranesh Prakash and Anubha Sinha. We also thank our intern, Varnika Chawla for her assistance.</b>
<p style="text-align: justify; ">The press release from the Department of Industrial Policy and Promotion in which it invited comments is <a class="external-link" href="http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf">here</a>. The First Draft of India's National IPR Policy is <a class="external-link" href="http://www.dipp.nic.in/English/Schemes/Intellectual_Property_Rights/IPR_Policy_24December2014.pdf">here</a>. Click to <a href="http://editors.cis-india.org/a2k/blogs/cis-comments_first-draft-of-national-ipr-stategy.pdf" class="external-link">view the PDF</a>. Note: <i>In some places there might be references to paragraph/page numbers (of the document) and for that readers should refer to the PDF since the formatting in HTML is slightly different</i>.</p>
<hr />
<ol type="I"> </ol>
<h2 align="JUSTIFY">Preliminary</h2>
<ol>
<li style="text-align: justify; ">This submission presents comments from the Centre for Internet and Society, India (<b>"CIS"</b>)<a href="#sdfootnote1sym" name="sdfootnote1anc"><sup>1</sup></a> on the proposed National Intellectual Property Rights Policy <b>("the Policy") </b>to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.<b>("DIPP"</b>).</li>
<li>This submission is made in response to the requests and suggestions from stakeholders sought by the DIPP in its Press Release. <a href="#sdfootnote2sym" name="sdfootnote2anc"><sup>2</sup></a> </li>
<li>
<p align="JUSTIFY">CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.</p>
<hr />
</li>
</ol> <ol type="I"> <ol> </ol></ol>
<h3 align="JUSTIFY">About CIS</h3>
<ol type="I">
<li style="text-align: justify; ">CIS<a href="#sdfootnote3sym" name="sdfootnote3anc"><sup>3</sup></a> is a non-profit research organization that works on among others, issues of intellectual property law reform,<a href="#sdfootnote4sym" name="sdfootnote4anc"><sup>4</sup></a> openness,<a href="#sdfootnote5sym" name="sdfootnote5anc"><sup>5</sup></a> privacy, freedom of speech and expression and internet governance,<a href="#sdfootnote6sym" name="sdfootnote6anc"><sup>6</sup></a> accessibility for persons with disabilities,<a href="#sdfootnote7sym" name="sdfootnote7anc"><sup>7</sup></a> and engages in academic research on digital humanities<a href="#sdfootnote8sym" name="sdfootnote8anc"><sup>8</sup></a> and digital natives. <a href="#sdfootnote9sym" name="sdfootnote9anc"><sup>9</sup></a></li>
<li style="text-align: justify; ">CIS is an accredited Observer<a href="#sdfootnote10sym" name="sdfootnote10anc"><sup>10</sup></a> at the World Intellectual Property Organization ("WIPO"), enabling us to attend formal meetings of member states and participate in debates and consultations on various issues. CIS has been attending meetings of the WIPO Standing Committee on Copyright and Related Rights since 2010. At these sessions, CIS has actively participated through various interventions, emphasizing the adoption of an approach balancing the rights holders' perspective with public interest. CIS has also attended sessions of some other committees at WIPO, made interventions wherever applicable, produced reports of these meetings, and profiled the work of other non-governmental organizations engaging in similar work on intellectual property law and policy reform. <a href="#sdfootnote11sym" name="sdfootnote11anc"><sup>11</sup></a></li>
<li style="text-align: justify; ">CIS undertakes research in other fields of intellectual property, in addition to WIPO-related work. Over the past five years since our inception, some of our key research has included analyses of intellectual property issues of the proposed Indo-EU Free Trade Agreement<a href="#sdfootnote12sym" name="sdfootnote12anc"><sup>12</sup></a> and other free trade agreements,<a href="#sdfootnote13sym" name="sdfootnote13anc"><sup>13</sup></a> the US Special 301 Report,<a href="#sdfootnote14sym" name="sdfootnote14anc"><sup>14</sup></a> the (2010) amendment to the Copyright Act, 1957,<a href="#sdfootnote15sym" name="sdfootnote15anc"><sup>15</sup></a> the (draft) Science, Technology and Innovation Policy,<a href="#sdfootnote16sym" name="sdfootnote16anc"><sup>16</sup></a> parallel importation, <a href="#sdfootnote17sym" name="sdfootnote17anc"><sup>17</sup></a> the (draft) Patent Manual and the subsequent Guidelines for Computer Related Inventions,<a href="#sdfootnote18sym" name="sdfootnote18anc"><sup>18</sup></a> royalty caps,<a href="#sdfootnote19sym" name="sdfootnote19anc"><sup>19</sup></a> copyright exceptions and limitations for education, <a href="#sdfootnote20sym" name="sdfootnote20anc"><sup>20</sup></a> and the preparation of the India Report for the Consumers International IP Watch List.<a href="#sdfootnote21sym" name="sdfootnote21anc"><sup>21</sup></a> </li>
</ol>
<h3>Structure of this Submission</h3>
<ol>
<li>
<p align="JUSTIFY">This submission is divided into 4 parts. The first<i> </i>part gives a preliminary overview of the suggestions submitted by CIS. The second part highlights the principles that should be followed in the formulation of a National IPR Policy, the third part provides detailed comments and recommendations for the National IPR Policy and the last part provides certain concluding remarks.</p>
</li>
</ol>
<h2 align="JUSTIFY">Principles</h2>
<ol>
<li>
<p align="JUSTIFY">The characterization of intellectual property rights may be two-fold - first<i>,</i> at their core, intellectual property rights, are temporary monopolies granted to <i>inter alia,</i> authors and inventors; and <i>second, </i>they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders.<a href="#sdfootnote22sym" name="sdfootnote22anc"><sup>22</sup></a> It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those that promote freedom of expression, research, education and access to medicines, cultural rights, data mining, use of governmental works, etc.</p>
</li>
</ol> <ol type="I"> </ol>
<h2>Detailed Comments</h2>
<ol type="I"> </ol> <ol>
<li>
<p align="JUSTIFY">This section will detail CIS' submissions on various aspects of the National IPR Policy. Submissions have been categorised thematically.</p>
</li>
</ol> <ol type="I"> <ol> </ol></ol>
<h3>On the Vision</h3>
<ol>
<li style="text-align: justify; ">It is submitted that the Vision of the National IPR Policy (<b>"Vision"</b>) in encouraging growth for the 'benefit of all' and in accepting the philosophy that knowledge owned 'is transformed into knowledge shared' <a href="#sdfootnote23sym" name="sdfootnote23anc"><sup>23</sup></a> is commendable.However, the vision is at odds with the methods proposed in the document. True advancement in science and technology, arts and culture, protection of traditional knowledge as well as bio-diverse resources and the true sharing of knowledge would be impaired by a system centred only around the development and maximization of intellectual property.</li>
<li style="text-align: justify; ">An attractive social culture would be one where citizens had access to a cornucopia of ideas and information, thereby fostering an environment of cultural diversity, which would enable individuals to shape themselves. Indeed, this is not just an ideal, but is a right recognized under Article 27(1) of the Universal Declaration of Human Rights, and Article 15 of the .<a href="#sdfootnote24sym" name="sdfootnote24anc"><sup>24</sup></a> However, an IP maximization approach, which the draft stategy seems to embrace, hinders the growth of such a culture, creating a protectionist environment while preventing access to various resources which may be of use for further innovations.</li>
<li style="text-align: justify; ">The question of whether IP rights given to innovators are the most effective tools to promote innovation in society has been widely discussed in economics, politics and law, especially in the last four decades.<a href="#sdfootnote25sym" name="sdfootnote25anc"><sup>25</sup></a> Traditional arguments in favour of temporary monopolies incentivising innovation have been effectively questioned as creating monopolies on innovation, contributing to increasing prices and a distorted allocation of resources, inefficiency and a net loss of welfare. <a href="#sdfootnote26sym" name="sdfootnote26anc"><sup>26</sup></a> It has also been effectively established that most innovation is incremental and cumulative, necessitating the access to pre-existing data and works.<a href="#sdfootnote27sym" name="sdfootnote27anc"><sup>27</sup></a> It would be welcome if the huge amount of academic literature on these matter were taken into consideration by the expert group. While intellectual property rights are not <i>per se</i> antithetical to innovation, creativity, and cultural development, an IP-maximalist policy and law has been shown to harm those very objectives.</li>
<li style="text-align: justify; ">CIS therefore submits that the vision of the policy also reflect the commitment to the creation of a holistic and balanced framework of intellectual property rights in the nation with the recognition that an intellectual property-centric system would not necessarily be the best means of promoting creativity, innovation and access, the promotion of which are part of the stated desire of the policy.</li>
<li style="text-align: justify; ">Further, we believe that the principles of freedom of expression and of due process of law, both of which are constitutionally-recognized rights in India, should be recognized in the vision as principles that any intellectual property rights regime should respectively seek to promote and respect. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On the Mission</h3>
<ol>
<li style="text-align: justify; ">CIS appreciates the commitment to establish a balanced, dynamic and vibrant intellectual property system in India.<a href="#sdfootnote28sym" name="sdfootnote28anc"><sup>28</sup></a> We recommend that the mission of the policy also include a commitment to<i>foster </i><i>a</i><i>ccess to </i><i>k</i><i>nowledge </i>as well as the commitment to creating a<i>system of intellectual property rights </i><i>which serve the public interest by strengthening </i><i>limitations and exceptions </i> <i>to IP regimes, which are aimed to provide a public interest oriented counterbalance to the monopoly rights granted under IPR laws.</i></li>
<li style="text-align: justify; ">We believe that preventing unreasonable and disproportionate remedies to IPR law violations are an important part of ensuring that these laws serve the public interest rather than subvert them for purely private interests. This important principle ought to find reflection in the policy's mission statement.</li>
<li style="text-align: justify; ">It is suggested that in addition to public health, food security and the environment<a href="#sdfootnote29sym" name="sdfootnote29anc"><sup>29</sup></a>, other areas of socio-economic and cultural importance, including <i> inter alia,</i>foundational scientific research, education, disability rights, and access to knowledge, be added as additional areas that warrant special protection , in the mission statement.</li>
<li style="text-align: justify; ">It is submitted that these commitments are essential to the creation and working of a balanced intellectual property framework that the Policy seeks to achieve. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On Objective 1: IP Awareness and Promotion</h3>
<ol>
<li style="text-align: justify; ">The first objective of the Policy lays out a detailed action plan for creating awareness about intellectual property as well as for the promotion of intellectual property. The underlying rationale for this endeavour has been identified on various levels - that there are economic, social and cultural benefits of intellectual property;<a href="#sdfootnote30sym" name="sdfootnote30anc"><sup>30</sup></a> that intellectual property protection accelerates development, promotes entrepreneurship as well as increases competitiveness; <a href="#sdfootnote31sym" name="sdfootnote31anc"><sup>31</sup></a> and that the global regime is one of strongly protected intellectual property rights.<a href="#sdfootnote32sym" name="sdfootnote32anc"><sup>32</sup></a></li>
<li style="text-align: justify; ">It is submitted that the identification of this underlying rationale is not backed by sufficient evidence. These justifications, in their pursuit of a favourable intellectual property regime do not present a balanced picture of all the facts.</li>
<li style="text-align: justify; ">Current existing empirical research does not show an unambiguous nexus between the granting of IP rights and an increase in innovation and productivity, as innovation and productivity cannot not identified with the number of patents awarded. <a href="#sdfootnote33sym" name="sdfootnote33anc"><sup>33</sup></a> This can be seen in the US economy, where despite an enormous increase in the number of patents, there has been no dramatic acceleration in technological progress. <a href="#sdfootnote34sym" name="sdfootnote34anc"><sup>34</sup></a> In fact, studies prove the contrary to be true. In the United States, patenting increased drastically over the last few decades, quadrupling from 59,715 patents being issued in 1983, to 244,341 in 2010. However, according to the Bureau of Labour Statistics, annual growth in the total factor productivity reduced from 1.2% in 1970-79 to below 1% in 2000-09, <a href="#sdfootnote35sym" name="sdfootnote35anc"><sup>35</sup></a> whereas the annual expenditure on research and development saw hardly any change, oscillating in a band of 2.5% of the GDP for over three decades.<a href="#sdfootnote36sym" name="sdfootnote36anc"><sup>36</sup></a> In relatively new industries such as software and biotechnology, still in their nascent stages of development, patenting has been introduced without any positive contributions to innovation. In fact, in their empirical work described in <i>Patent Failure</i> (2008), <a href="#sdfootnote37sym" name="sdfootnote37anc"><sup>37</sup></a> Bessen and Meurer have argued that increased patenting has resulted in decreased social welfare.</li>
<li style="text-align: justify; ">Further, no unambiguous connections have been found between innovation and intellectual property rights in academic studies. In a meta-study conducted in 2006,<a href="#sdfootnote38sym" name="sdfootnote38anc"><sup>38</sup></a> Boldrin and Levine observed that there was weak or no evidence which suggested that strengthening the patent regime led to an increase in innovation. Similarly, it was observed by Jaffe that "despite the significance of policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this possibility." <a href="#sdfootnote39sym" name="sdfootnote39anc"><sup>39</sup></a></li>
<li style="text-align: justify; ">In his study of 60 nations over the past 150 years, Josh Lerner concluded that "the impact of patent protection-enhancing on innovation was in fact negative, thereby running counter to assumptions made by economists that incentives affect behavior and that stronger property rights encourage economic growth.<a href="#sdfootnote40sym" name="sdfootnote40anc"><sup>40</sup></a></li>
<li style="text-align: justify; ">Even in those studies, where support is found for a positive correlation between patents and innovation, it is made clear that this correlation is not applicable to developing and least-developed countries. This, for instance, is the conclusion of the United Nations Industrial Development Organization's meta-study titled "The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence". <a href="#sdfootnote41sym" name="sdfootnote41anc"><sup>41</sup></a></li>
<li>It is crucial that all policy be based on evidence, and not ideology.</li>
<li style="text-align: justify; ">Thus, it is submitted that any program that seeks to create awareness about intellectual property must necessarily be one that presents a balanced view, clearly stating all facts and as many diverse opinions as possible; avoiding the current situation where public interest groups and academics are sidelined in favour of rights-holders groups.</li>
<li style="text-align: justify; ">CIS submits that the nation-wide program of promotion on the benefits of intellectual property <a href="#sdfootnote42sym" name="sdfootnote42anc"><sup>42</sup></a> must be based on evidence. Crucially, the importance of the public domain, for which a great deal of evidence exists,<a href="#sdfootnote43sym" name="sdfootnote43anc"><sup>43</sup></a> must highlighted in any such also equally promote the importance the role of limitations and exceptions and clearly identify the issues with the intellectual property system, including the fact that it has not been proven that there is a nexus between intellectual property and innovation. The nation wide program should convey the role of different stakeholders, including libraries and archives, organizations working with persons with disabilities and educational institutions and the negative effects of a rights centric intellectual property system on such important institutions.</li>
<li style="text-align: justify; ">It is important that public-funded research organizations should be engaged in neutral - non-industry funded -research, and not campaigns (as identified in the policy).<a href="#sdfootnote44sym" name="sdfootnote44anc"><sup>44</sup></a> This will help identify the issues of the present intellectual property system as well as the potential for reform, tailored to the Indian context. We have to ensure that campaigns - as with policymaking and pedagogic material - are based on research rather than faith or ideology. It is further submitted that course materials to be created for educational institutions at all levels as well as for online and distance learning programs <a href="#sdfootnote45sym" name="sdfootnote45anc"><sup>45</sup></a> should include a discussion on the drawbacks of a maximalist intellectual property system, a discussion on limitations and exceptions, alternatives to intellectual property, as well as case studies from different parts of the world highlighting the use of intellectual property as well as alternatives in a socio-economic and culture specific environment. Particularly in the case of education institutions as well as online and distance learning mechanisms, which are often faced with great challenges as a result of rights-holders centric intellectual property laws, the irony in promoting a system that only acts to their detriment would be great. </li>
</ol><ol> </ol> <ol type="I"> <ol> </ol></ol>
<h3>On Objective 2: Creation of IP</h3>
<ol type="I"><ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">The second objective of the Policy seeks to stimulate the creation and growth of intellectual property through measures that encourage IP generation.<a href="#sdfootnote46sym" name="sdfootnote46anc"><sup>46</sup></a> This objective seeks to encourage IP generation and creation across various sectors, including the introduction of the system of 'utility models' in India. There are several problems with this objective, primarily that it assumes IP generation is necessarily a means to innovation, whereas it is submitted that the emphasis should be on innovation holistically, including by incentive mechanisms other than IP. </li>
</ol><ol> </ol> <ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On the IP-Innovation/ Creativity Nexus</h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">It is submitted that similar to the earlier objective relating to the promotion and the creation of awareness about intellectual property, the underlying rationale behind this objective too seems to be the perception that there is a positive correlation between greater amounts of intellectual property and greater innovation, and the belief that intellectual property protection necesarrily promotes innovation. However, there is relatively little research to back this assumption. Illustratively, the following example may be considered. In a study conducted by Heidi L. Williams,<a href="#sdfootnote47sym" name="sdfootnote47anc"><sup>47</sup></a> the sequencing of the human genome was used to provide an empirical context to showcase the deterioration in development due to the presence of IP. It was concluded by Williams that the presence of IP rights in the sequencing of the human genome resulted in reductions in subsequent scientific research and product development by up to 20-30%. <a href="#sdfootnote48sym" name="sdfootnote48anc"><sup>48</sup></a> Williams further observed that "if more socially valuable technologies are more likely to be held with IP, then the welfare costs for the same could be substantial." The presence of intellectual property rights, it is argued, stifles subsequent product development by restricting access to the data or technology required for further development. <a href="#sdfootnote49sym" name="sdfootnote49anc"><sup>49</sup></a></li>
<li style="text-align: justify; ">Prof. Petra Moser of Stanford has conducted a large volume of research on economic evidence on the linkages between patents and innovation. Her research, which shows that in the 19th century the majority of inventions happened outside the patent system <a href="#sdfootnote50sym" name="sdfootnote50anc"><sup>50</sup></a> indicates that alternative explanations might explain inventions better, including "the importance of a culture of entrepreneurship,<a href="#sdfootnote51sym" name="sdfootnote51anc"><sup>51</sup></a> experimentation,<a href="#sdfootnote52sym" name="sdfootnote52anc"><sup>52</sup></a> the free exchange of knowledge, <a href="#sdfootnote53sym" name="sdfootnote53anc"><sup>53</sup></a> and science.<a href="#sdfootnote54sym" name="sdfootnote54anc"><sup>54</sup></a> In a paper titled, "How do Patent Laws Influence Innovation", she concludes that "I find no evidence that patent laws increased levels of innovative activity but strong evidence that patent systems influenced the distribution of innovative activity across industries."</li>
<li style="text-align: justify; ">Prof. Bryan Mercurio, in a paper written for the World Economic Forum and the International Centre for Trade and Sustainable Development, concludes, "The empirical evidence suggests that increasing levels of patent protection have not resulted in increased innovation. Instead, it has limited competition, and increased the cost of business, to the detriment of the world economy. Innovation has also suffered, as increasing protection has inhibited the ability of many firms to innovate." He further recommends that we "conduct further research on the correlation or causal relationship between patents and innovation, including the indirect benefits for innovation that patent protection may provide". Petra Moser notes, "Patent laws that existed in the mid-nineteenth century had been adopted in a relatively ad-hoc manner, dependent more on legal traditions than economic considerations".<a href="#sdfootnote55sym" name="sdfootnote55anc"><sup>55</sup></a></li>
<li style="text-align: justify; ">The empirical data collected by scholars, as provided above is goes to show that innovation is not necessarily benefitted by stronger patent regimes. Further, even the literature that asserts a positive correlation between the two acknowledge that this doesn't apply to developing countries. In addition, whilepatents may provide revenue to patent owners, it also makes further innovation more costly, thereby discouraging competitors from entering the arena due to high prices, and due to the large number of pre-existing patents. This effect, known as the</li>
<li style="text-align: justify; ">The Supreme Court of Canada, has for instance, has on multiple occasions recognized the importance of the public domain. In "2002, Justice Binne, writing for the majority in Théberge v. Galerie d'Art du Petit Champlain inc., stated: 'Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).' Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be 'room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).'"<a href="#sdfootnote56sym" name="sdfootnote56anc"><sup>56</sup></a></li>
<li>Lastly, there is even evidence that in multiple sectors - including fashion, finance, font design, and software - lesser IP protection in the form of patents, trademarks, and copyright, actual encourages increased innovation.<a href="#sdfootnote57sym" name="sdfootnote57anc"><sup>57</sup></a></li>
</ol> <ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On Utility Models</h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">On the question of introduction of a new on utility models<a href="#sdfootnote58sym" name="sdfootnote58anc"><sup>58</sup></a> CIS observes that DIPP has previously considered developing a framework for granting Utility Models for 'innovations' and invited suggestions on a discussion paper on the subject.<a href="#sdfootnote59sym" name="sdfootnote59anc"><sup>59</sup></a> Reports <a href="#sdfootnote60sym" name="sdfootnote60anc"><sup>60</sup></a> suggest that Small, Medium and Micro Enterprises are in favour of the Utility Model Protection system in India because developing countries such as China and Korea have demonstrated a corresponding economic growth attributable to the introduction of the system. However, there is no evidentiary data to support this hypothesis. Studies suggest that there exist only correlations and not causal links between heightened innovative activity and implementation of utility model protection. <a href="#sdfootnote61sym" name="sdfootnote61anc"><sup>61</sup></a> Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive.<a href="#sdfootnote62sym" name="sdfootnote62anc"><sup>62</sup></a> Reports also suggest that in China, the abundance of Utility Model has led to lowering of quality of innovation. <a href="#sdfootnote63sym" name="sdfootnote63anc"><sup>63</sup></a> In Australia, an "innovation patent" - the Australian version of utility model protection - was awarded for a "circular transportation facilitation device", i.e., a wheel. <a href="#sdfootnote64sym" name="sdfootnote64anc"><sup>64</sup></a></li>
<li style="text-align: justify; ">It is this submitted that whether the ushering of a 2nd tier of protection model for lower and incremental innovations would have a positive impact on innovation in India is extremely debatable. There have been several criticisms of utility models, <i>inter alia</i>, explosion in litigation of poor quality patents and legal uncertainty - which impact small business the maximum in terms of costs <a href="#sdfootnote65sym" name="sdfootnote65anc"><sup>65</sup></a>; the system may be more utilised by foreign companies rather than local firms, in which case there is a possibility that this will lead to an increase in a flow of royalties and licensing fees to overseas producers. Utility model rights can be, and have been, used by companies to cordon off entire areas of research. <a href="#sdfootnote66sym" name="sdfootnote66anc"><sup>66</sup></a></li>
<li style="text-align: justify; ">CIS submits that as the policy 'intends to harness the full benefits of creation and innovation in the larger interest of society and citizens' <a href="#sdfootnote67sym" name="sdfootnote67anc"><sup>67</sup></a> the introduction of a law on utility models would be antithetical to this objective. </li>
</ol><ol> </ol> <ol> <ol> <ol> </ol></ol></ol>
<h3>On Improving IP Output of National Research Laboratories, Universities <i>et al</i><b> </b></h3>
<ol><ol><ol> </ol> </ol> </ol> <ol> </ol><ol>
<li style="text-align: justify; ">The Policy seeks to improve the output of national research laboratories, universities and technical institutions, among others.<a href="#sdfootnote68sym" name="sdfootnote68anc"><sup>68</sup></a> It is submitted that these institutions are public funded institutions, <a href="#sdfootnote69sym" name="sdfootnote69anc"><sup>69</sup></a> and in effect, this recommendation of the Policy seeks to therefore promote intellectual property creation in public funded institutions.</li>
<li style="text-align: justify; ">A significant chunk of research and development occurs at public funded academic and research institutions and, excessive use of IPR as a tool to creating private ownership rights over inventions may preclude use of such innovation by the public. This may also create a barrier to access the best technologies and research- which were funded by taxpayers' money to begin with. CIS supports the principle that IPRs resulting from of publicly funded research should automatically belong to the funder.<a href="#sdfootnote70sym" name="sdfootnote70anc"><sup>70</sup></a></li>
<li style="text-align: justify; ">Further, it is submitted that there exists a danger of public funded research institutions re-orienting their objectives focus only on areas of commercial value. This may lead to neglect of certain research areas. A stringent policy will create an unfavourable conflict between revenue generation and sharing of public good. The policy must ensure that it is flexible and compensates the inventors whilst permitting public access to research.</li>
<li style="text-align: justify; ">CIS submits that there should be no encumbrances over public funded research and inventions. The Policy must also ensure that such proposed IP creation does not prevent or interfere with dissemination of public funded research. <a href="#sdfootnote71sym" name="sdfootnote71anc"><sup>71</sup></a></li>
<li style="text-align: justify; ">CIS strongly supports the recent steps by government agencies (including the Department of Science and Technology and the Department of Biotechnology<a href="#sdfootnote72sym" name="sdfootnote72anc"><sup>72</sup></a> as well as other institutions including the Council of Scientific and Industrial Research<a href="#sdfootnote73sym" name="sdfootnote73anc"><sup>73</sup></a>, Indian Council of Agricultural Research<a href="#sdfootnote74sym" name="sdfootnote74anc"><sup>74</sup></a> and Institute of Mathematical Sciences <a href="#sdfootnote75sym" name="sdfootnote75anc"><sup>75</sup></a>) in making scholarly research openly accessible. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society.</li>
<li style="text-align: justify; ">It is thus submitted that the Policy should adopt a more nuanced, cautious and balanced take on the creation of intellectual property, particularly taking into consideration India's economic status as an emerging economy and our international position. The Policy must recognise that there is no inherent societal merit in the mere creation of intellectual property and that innovation flourishes even in the absence of intellectual property protections. </li>
</ol><ol> </ol>
<h3>On Objective 3: Legal and Legislative Framework</h3>
<ol>
<li style="text-align: justify; ">According to the Policy, the objective sought to be achieved is the creation of strong and effective laws on intellectual property, consistent with national priorities as well as our international obligations, balancing the interest of the rights holders with public interest. <a href="#sdfootnote76sym" name="sdfootnote76anc"><sup>76</sup></a></li>
<li style="text-align: justify; ">CIS fully supports the view that the legislative framework on intellectual property must balance the rights of all stakeholders and be in public interest. CIS is also appreciates the importance of national priorities in the framing of India's legislative framework. CIS also notes with appreciation that the discussion in the Policy reiterates that India's laws are in compliance with the TRIPS Agreement <a href="#sdfootnote77sym" name="sdfootnote77anc"><sup>77</sup></a> as well as the stance that India will continue to utilize the flexibilities available in international treaties as well as the TRIPS Agreement<a href="#sdfootnote78sym" name="sdfootnote78anc"><sup>78</sup></a> while creating its legal framework.</li>
<li style="text-align: justify; ">CIS also supports the acknowledgement of the fact that India's laws need to be updated periodically, depending on various factors.<a href="#sdfootnote79sym" name="sdfootnote79anc"><sup>79</sup></a> CIS fully supports the process proposed for amendments to the law, including,<i>inter alia, </i>the conduction of objective and analytical studies and inputs from various stakeholders. <a href="#sdfootnote80sym" name="sdfootnote80anc"><sup>80</sup></a> It is submitted however, that equal weightage must be given to the inputs from all stakeholders and measures must be taken to ensure that the interests and demands of rights-holders do not outweigh the interests and demands of other stakeholders, particularly those at the other end of the spectrum, who greatly rely on the existence and guarantee of flexibilities, limitations and exceptions to intellectual property. </li>
</ol><ol> </ol>
<h3 align="JUSTIFY">On Utility Models and Intellectual Property in Public Funded Research</h3>
<ol>
<li>The Policy envisages significant changes to India's intellectual property system, including the creation of a law for the protection of utility models as well as introduction of intellectual property in public funded research.</li>
<li style="text-align: justify; ">CIS recommends that it would not be advisable to introduce intellectual property in public funded research as well as cautions against the introduction of a law on utility patents. A detailed submission on these issues has been made earlier in this document, in Section 3.4.3. at page 7 for intellectual property in public funded research as well as in Section 3.4.2. at page 6 on utility models. </li>
</ol><ol> </ol>
<h3 align="JUSTIFY">On the Negotiation of International Treaties and Agreements</h3>
<ol>
<li>CIS commends the recommendation of the Policy that the negotiation of international treaties and agreements will be in consultation with various stakeholders. However, CIS cautions against entering into bilateral or plurilateral international agreements which increase India's IPR obligations beyond our current obligations under multilateral agreements. It was only in 2006 that</li>
<li style="text-align: justify; ">It is submitted that FTAs often levy standards which are beyond those found in the TRIPS Agreement, and have thus been criticized. <a href="#sdfootnote81sym" name="sdfootnote81anc"><sup>81</sup></a> A central aspect of this criticism is that TRIPS-plus-FTAs reduce policy space for the implementation of TRIPS flexibilities. This also creates the impression that TRIPS only imposes a "minimum level" of protection, which must be available in all national laws of its Member States, without any apparent limitation to a further extension of such protection or intervention which one country may impose on another. The World Health Organization enunciated that "bilateral trade agreements should not seek to incorporate TRIPS-plus protection in ways that may reduce access to medicines in developing countries.<a href="#sdfootnote82sym" name="sdfootnote82anc"><sup>82</sup></a> Further, WHO members were urged in the Fifty-Seventh World Health Assembly "to take into account in bilateral trade agreements the flexibilities contained in the Agreement on Trade-related Aspects of Intellectual Property Rights and recognized by the Declaration on the TRIPS Agreement and Public Health adopted by the WTO Ministerial Conference."<a href="#sdfootnote83sym" name="sdfootnote83anc"><sup>83</sup></a></li>
<li style="text-align: justify; ">Furthermore, TRIPS-plus initiatives consequent in the dilution into a bilateral forum, as opposed to the plurality provided in multilateral fora, provided by the TRIPS. The imposition of standards by FTAs may ultimately disturb the balance of rights and obligations which are enshrined in the TRIPS Agreement,<a href="#sdfootnote84sym" name="sdfootnote84anc"><sup>84</sup></a> and also have the potential to constrain the flexibilities provided to Member States in the TRIPS, particularly in areas which are of extreme significance to developing countries, such as transfer of technology, socio-economic development, promotion of innovation, public health and access to knowledge. Furthermore, they also tend to negate decisions which were taken multilaterally such as the Doha Declaration on the TRIPS Agreement and Public Health.</li>
<li style="text-align: justify; ">It is therefore submitted that the Policy must caution against entering into any international agreement that seeks to enforce TRIPS-plus standards, contrary to India's stance (as noted by the Policy itself) that its laws were compliant with international obligations.</li>
</ol>
<h3 align="JUSTIFY">On Limitations and Exceptions</h3>
<ol>
<li style="text-align: justify; ">It is observed that the Policy recommends that laws be enacted to address national needs, <a href="#sdfootnote85sym" name="sdfootnote85anc"><sup>85</sup></a> but the only mentions limitations and exceptions as an area of study for future policy development.<a href="#sdfootnote86sym" name="sdfootnote86anc"><sup>86</sup></a>It is submitted that while it is indeed necessary for further research to be undertaken in the area of limitations and exceptions, it is also critical to enact new laws and amend existing ones to foster a rich environment for limitations and exceptions, in order to achieve a holistic and balanced intellectual property framework. It is further submitted that this would also be in consonance with the objective of the negotiation of international treaties and agreements in consultation with stakeholders.</li>
<li style="text-align: justify; ">While the granting of exclusive rights over intellectual property is considered to be an incentive for further investments into innovative activities and the production of knowledge, allowing the exercise of the full scope of this exclusion in all circumstances may not meet the end goal of the enhancement of public welfare, using the intellectual property system. Therefore, it is essential that an intellectual property system be flexible allowing for certain limitations and exceptions in order to strike a balance between right holders, the public and third parties. The need for such flexibility in the intellectual property system of a country has also been highlighted by the <a href="http://www.wipo.int/patents/en/topics/exceptions_limitations.htm">World Intellectual Property Organization</a>.</li>
<li style="text-align: justify; ">It is therefore suggested that the Policy include an additional recommendation for the inclusion, adoption and periodic renewal of limitations and exceptions in India's intellectual property laws, either be enacting new legislations or by amending existing legislations wherever applicable. It is further suggested that this recommendation also inform India's negotiations at the international level, where any agreement that India might potentially sign, not invalidate or narrow in any form any limitations and exceptions and provide for their continued exercise in the broadest possible scope and manner.</li>
</ol> <ol> </ol>
<h3 align="JUSTIFY">On Standard Setting</h3>
<ol>
<li style="text-align: justify; ">CIS commends the Policy's focus on standards in technology and standard setting organisations. CIS strongly supports the adoption of open standards as a measure that helps stimulate active competition amongst implementors of various standards, and thereby encourages innovation. The Department of IT finalized its Policy on Open Standards for e-Governance in 2010,<a href="#sdfootnote87sym" name="sdfootnote87anc"><sup>87</sup></a> and CIS strongly supports this policy, and would encourage it be adopted by all state governments as well.</li>
<li style="text-align: justify; ">CIS strongly recommends developing and supporting the evolution of open standards. The Policy must not encourage use of IPR to limit access to standards, because these are the foundational rules any technology must adhere to enter the market or ensure quality. <a href="#sdfootnote88sym" name="sdfootnote88anc"><sup>88</sup></a> CIS submits that access to these standards must not be limited by making them proprietary through IPR protection. Further, the Policy must support transparent standard setting processes and procedures in national and at international for a for all participants.</li>
<li>CIS further appreciates the endeavor to encourage the development of global standards influenced by technologies developed in India.</li>
<li style="text-align: justify; ">CIS submits that it is also important to ensure that India emerges as a global player in the technology sector, not just in the development of indigenous standards, but also in the equally important space of manufacturing using existing standards, particularly in light of the Government's recent "Make In India" and "Digital India" initiatives. It is further submitted however, that in most instances, these standards are protected by patents; where patents essential to a standard would be standard essential patents. CIS suggests that the Policy recommend measures that might be adopted to ensure access to standards essential patents, including, for instance, the establishment of a government aided patent pool. It is submitted that addressing the question of access to standards and not just their development would be a holistic approach that the Policy should adopt.</li>
</ol>
<h3>On Objective 5: Commercialization of IP</h3>
<ol type="I"><ol> </ol> </ol> <ol>
<li style="text-align: justify; ">CIS appreciates that the Policy seeks to promote licensing and technology transfer for intellectual property, and notes that the Policy also seeks to promote reasonable and non-discriminatory patent pooling to maximise the ability of smaller companies to commercialise IP and bring innovative solutions based on standards to the market.</li>
<li style="text-align: justify; ">CIS believes that the government establishing patent pools for digital technologies will promote access to knowledge and stimulate manufacturing in the information technology and electronics sectors in India, in line with the government's "Make In India" and "Digital India" initiatives. CIS has earlier urged the government to enable access to low cost access devices by establishing a government-aided patent pool of essential technologies, without which there is a high likelihood of such devices getting caught up in the 'patent wars' that have happened elsewhere around the world over smartphones.<a href="#sdfootnote89sym" name="sdfootnote89anc"><sup>89</sup></a> CIS submits that the creation of government-aided patent pools and facilitation of cross-licensing will also be helpful in resolving issues created by patent thickets and gridlocks by reducing transaction costs for licensees and solving an economic cooperation problem.</li>
</ol> <ol type="I"> </ol>
<h2 align="JUSTIFY">Concluding Remarks</h2>
<ol>
<li style="text-align: justify; ">Debabrata Saha, the Deputy Permanent Representative of India to the United Nations, while speaking on the introduction of the Development Agenda at the World Intellectual Property Organization, with admirable clarity noted, "Let me start on a positive note by asking: with all the damage that TRIPS has wrought on developing countries could it possibly have a silver lining? Maybe - if we want to be generous. TRIPS, one might argue, did bring intellectual property to the forefront of consciousness of people everywhere, and, over time made them aware of the dangers inherent in a protective regime that takes little account of either public policy, or the state of development of a member country." It is thus imperative that when we fashion our public policy, we take account of the dangers he mentioned. He went on to note, "Intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." We wholeheartedly support this position of the Indian government, and would encourage the IPR Think Tank to seek to maximize public welfare and creativity and innovation rather than maximizing IPR alone. Importantly, as Mr. Saha, speaking on behalf of the Indian government noted, IP is not an end in itself, contrary to what the current draft of the National IPR Policy seems to promote.</li>
<li style="text-align: justify; ">Flexibility is considered to be an essential characteristic in defining and shaping the intellectual property system of countries around the world. Such flexibility allows scope for further innovations and creations, thereby subserving the common good. As per Article 39 of the Constitution of India, "the State shall in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good." It is therefore submitted that the National IPR Policy of India should be contoured in such a manner that it encourages greater use of exceptions and limitations to the otherwise exclusionary use of intellectual property, encourages the expansion of the public domain, secures proportionality in enforcement of IP rights, promotes alternatives to IP - including open access to scholarly literature, open educational resources, free/open source software, open standards, open data, and aims to create a regime of intellectual property that aims to serve the public interest and not just the narrow interest of private right holders. Such an approach should not be merely rights-based, but look at interests of the general public, especially the poor, as well, in order to further the aim of the nation to create a more egalitarian society, and adopt the Directive Principles in the Constitution.</li>
<hr />
</ol><ol></ol>
<div id="sdfootnote1">
<p style="text-align: justify; "><a href="#sdfootnote1anc" name="sdfootnote1sym">1</a> <a href="http://www.cis-india.org/">www.cis-india.org</a> (last accessed 30 November, 2014).</p>
</div>
<div id="sdfootnote2">
<p><a href="#sdfootnote2anc" name="sdfootnote2sym">2</a> http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf.</p>
</div>
<div id="sdfootnote3">
<p><a name="_GoBack"></a> <a href="#sdfootnote3anc" name="sdfootnote3sym">3</a> <i>See </i> http://cis-india.org/ (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote4">
<p><a href="#sdfootnote4anc" name="sdfootnote4sym">4</a> <i>See </i> http://cis-india.org/a2k (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote5">
<p><a href="#sdfootnote5anc" name="sdfootnote5sym">5</a> <i>See </i> http://cis-india.org/openness (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote6">
<p><a href="#sdfootnote6anc" name="sdfootnote6sym">6</a> <i>See</i> http://cis-india.org/internet-governance (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote7">
<p><a href="#sdfootnote7anc" name="sdfootnote7sym">7</a> <i>See </i> http://cis-india.org/accessibility (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote8">
<p><a href="#sdfootnote8anc" name="sdfootnote8sym">8</a> <i>See </i> http://cis-india.org/digital-natives (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote9">
<p><a href="#sdfootnote9anc" name="sdfootnote9sym">9</a> <i>See</i> http://cis-india.org/raw (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote10">
<p><a href="#sdfootnote10anc" name="sdfootnote10sym">10</a> <i>See</i> http://www.wipo.int/members/en/admission/observers.html (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote11">
<p><a href="#sdfootnote11anc" name="sdfootnote11sym">11</a> <i>See </i> http://cis-india.org/a2k/blog/ngo-profile-knowledge-ecology-international (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ngo-profile-third-world-network (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote12">
<p style="text-align: justify; "><a href="#sdfootnote12anc" name="sdfootnote12sym">12</a> <i>See illustratively </i> http://cis-india.org/a2k/blog/analysis-copyright-expansion-india-eu-fta (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/india-eu-fta-copyright-issues (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/a-guide-to-the-proposed-india-european-union-free-trade-agreement (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote13">
<p><a href="#sdfootnote13anc" name="sdfootnote13sym">13</a> <i>See illustratively</i> http://cis-india.org/news/inet-bangkok-june-8-2013-governance-in-the-age-of-internet-and-fta (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote14">
<p><a href="#sdfootnote14anc" name="sdfootnote14sym">14</a> <i>See illustratively</i> http://cis-india.org/a2k/blog/2010-special-301 (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote15">
<p style="text-align: justify; "><a href="#sdfootnote15anc" name="sdfootnote15sym">15</a> <i>See illustratively</i> http://cis-india.org/a2k/blog/analysis-copyright-amendment-bill-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/sc-report-on-amendments (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-parliament (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/tpm-copyright-amendment (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-privacy (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-analysis (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote16">
<p><a href="#sdfootnote16anc" name="sdfootnote16sym">16</a> <i>See</i> http://cis-india.org/a2k/blog/comments-on-science-technology-and-innovation-policy-draft (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote17">
<p><a href="#sdfootnote17anc" name="sdfootnote17sym">17</a> <i>See</i> http://cis-india.org/a2k/blog/exhaustion (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/parallel-importation-of-books (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote18">
<p style="text-align: justify; "><a href="#sdfootnote18anc" name="sdfootnote18sym">18</a> <i>See</i> http://cis-india.org/a2k/blog/cis-submission-draft-patent-manual-2010 (last accessed 18 January, 2015) and http://cis-india.org/a2k/blog/comments-on-draft-guidelines-for-computer-related-inventions (last accessed 18 January, 2015) respectively.</p>
</div>
<div id="sdfootnote19">
<p><a href="#sdfootnote19anc" name="sdfootnote19sym">19</a> <i>See</i> http://cis-india.org/a2k/blog/lid-on-royalty-outflows (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote20">
<p><a href="#sdfootnote20anc" name="sdfootnote20sym">20</a> <i>See</i> http://cis-india.org/a2k/blog/exceptions-and-limitations (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote21">
<p style="text-align: justify; "><a href="#sdfootnote21anc" name="sdfootnote21sym">21</a> <i>See illustratively</i> http://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012 (last accessed 18 January, 2015);<i> </i> http://cis-india.org/a2k/blog/ip-watch-list-2011 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/consumers-international-ip-watch-list-2009 (last accessed 18 January, 2015).</p>
</div>
<div id="sdfootnote22">
<p style="text-align: justify; "><a href="#sdfootnote22anc" name="sdfootnote22sym">22</a> The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: <a href="http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf"> http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf </a> (Last Accessed: 29 November, 2014).</p>
</div>
<div id="sdfootnote23">
<p><a href="#sdfootnote23anc" name="sdfootnote23sym">23</a> IPR Think Tank, National IPR Policy (First Draft) at page 5.</p>
</div>
<div id="sdfootnote24">
<p><a href="#sdfootnote24anc" name="sdfootnote24sym">24</a> Article 27(1) of the Universal Declaration of Human Rights states: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."</p>
</div>
<div id="sdfootnote25">
<p style="text-align: justify; "><a href="#sdfootnote25anc" name="sdfootnote25sym">25</a> Julia Brüggemann, Paolo Crosetto <i>et al</i>, <i>Intellectual Property Rights Hinder Sequential Innovation - Experimental Evidence</i>, Center for European, Governance and Economic Development Research, Number 227, January 2015.</p>
</div>
<div id="sdfootnote26">
<p><a href="#sdfootnote26anc" name="sdfootnote26sym">26</a> Joseph E. Stiglitz, <i>Economic Foundations of Intellectual Property Rights</i>, Duke Law Journal, 57(6): 1693-1724.</p>
</div>
<div id="sdfootnote27">
<p><a href="#sdfootnote27anc" name="sdfootnote27sym">27</a> Graham M. Dutfield, Uma Suthersanen, <i>The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity</i>, Intellectual Property Quarterly, 2004 at 379.</p>
</div>
<div id="sdfootnote28">
<p><a href="#sdfootnote28anc" name="sdfootnote28sym">28</a> IPR Think Tank, National IPR Policy (First Draft) at page 5.</p>
</div>
<div id="sdfootnote29">
<p><a href="#sdfootnote29anc" name="sdfootnote29sym">29</a> IPR Think Tank, National IPR Policy (First Draft) at page 5<i>.</i></p>
</div>
<div id="sdfootnote30">
<p><a href="#sdfootnote30anc" name="sdfootnote30sym">30</a> IPR Think Tank, National IPR Policy (First Draft) at page 6.</p>
</div>
<div id="sdfootnote31">
<p><a href="#sdfootnote31anc" name="sdfootnote31sym">31</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote32">
<p><a href="#sdfootnote32anc" name="sdfootnote32sym">32</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote33">
<p><a href="#sdfootnote33anc" name="sdfootnote33sym">33</a> Michele Boldrin and David K. Levine, <i>The Case Against Patents</i>, Journal of Economic Perspectives, Vol. 27, No.1 - Winter 2013, 3-22.</p>
</div>
<div id="sdfootnote34">
<p><a href="#sdfootnote34anc" name="sdfootnote34sym">34</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote35">
<p><a href="#sdfootnote35anc" name="sdfootnote35sym">35</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote36">
<p><a href="#sdfootnote36anc" name="sdfootnote36sym">36</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote37">
<p><a href="#sdfootnote37anc" name="sdfootnote37sym">37</a> James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats and Lawyers Put Innovation at Risk, March 2008.</p>
</div>
<div id="sdfootnote38">
<p><a href="#sdfootnote38anc" name="sdfootnote38sym">38</a> Michele Boldrin and David K. Levine<i> Supra </i>Note 32.</p>
</div>
<div id="sdfootnote39">
<p><a href="#sdfootnote39anc" name="sdfootnote39sym">39</a> B.J. Jaffe, <i>The US Patent System in Transition: Innovation and the Innovation Process</i>, Research Policy, 29, 531-557, 2000.</p>
</div>
<div id="sdfootnote40">
<p><a href="#sdfootnote40anc" name="sdfootnote40sym">40</a> Josh Lerner, <i>The Empirical Impact of Intellectual Property Rights on Innovation: Puzzles and Clues</i>, Intellectual Property Rights and Economic Growth in the Long-Run: A Discover Model (2009).</p>
</div>
<div id="sdfootnote41">
<p><a href="#sdfootnote41anc" name="sdfootnote41sym">41</a> Rod Falvey & Neil Foster, The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence (UNIDO Working Paper,</p>
</div>
<div id="sdfootnote42">
<p><a href="#sdfootnote42anc" name="sdfootnote42sym">42</a> <b>¶</b> 1.2 IPR Think Tank, National IPR Policy (First Draft) at page 6.</p>
</div>
<div id="sdfootnote43">
<p><a href="#sdfootnote43anc" name="sdfootnote43sym">43</a> See</p>
</div>
<div id="sdfootnote44">
<p><a href="#sdfootnote44anc" name="sdfootnote44sym">44</a> <b>¶</b> 1.3 IPR Think Tank, National IPR Policy (First Draft) at page 7.</p>
</div>
<div id="sdfootnote45">
<p><a href="#sdfootnote45anc" name="sdfootnote45sym">45</a> <b>¶</b> 1.5 IPR Think Tank, National IPR Policy (First Draft) at page 8.</p>
</div>
<div id="sdfootnote46">
<p><a href="#sdfootnote46anc" name="sdfootnote46sym">46</a> IPR Think Tank, National IPR Policy (First Draft) at page 8.</p>
</div>
<div id="sdfootnote47">
<p><a href="#sdfootnote47anc" name="sdfootnote47sym">47</a> Heidi L. Williams, <i>Intellectual Property Rights and Innovation: Evidence from the Human Genome</i>, National Bureau of Economic Research. Working Paper 16213, July 2010.</p>
</div>
<div id="sdfootnote48">
<p><a href="#sdfootnote48anc" name="sdfootnote48sym">48</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote49">
<p><a href="#sdfootnote49anc" name="sdfootnote49sym">49</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote50">
<p><a href="#sdfootnote50anc" name="sdfootnote50sym">50</a> Petra Moser, <i>Innovations and Patents in</i> Oxford Handbook of Economic History (Cain et al., eds., forthcoming), http://ssrn.com/abstract=2503503.</p>
</div>
<div id="sdfootnote51">
<p><a href="#sdfootnote51anc" name="sdfootnote51sym">51</a> <i>See generally</i> , David. S. Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (1969).</p>
</div>
<div id="sdfootnote52">
<p><a href="#sdfootnote52anc" name="sdfootnote52sym">52</a> <i>See generally</i> , Joel Mokyr. The Lever of Riches: Technological Creativity and Economic Progress (1990).</p>
</div>
<div id="sdfootnote53">
<p style="text-align: justify; "><a href="#sdfootnote53anc" name="sdfootnote53sym">53</a> <i>See generally</i> , Alessandro Nuvolari <i>Collective Invention during the British Industrial Revolution: the Case of the Cornish Pumping Engine,</i> 28 Cambridge J. Econ. 347 (2004). <i>See also</i>, Robert C. Allen, <i>Collective Invention</i>, 4 J. Econ. Behavior & Org. 1 (1983).</p>
</div>
<div id="sdfootnote54">
<p style="text-align: justify; "><a href="#sdfootnote54anc" name="sdfootnote54sym">54</a> A. Arora & N. Rosenberg, <i>Chemicals: A US Success Story</i> in Chemicals and Long-Term Economic Growth 71 (Arora et al., eds., 1998); see also, David C. Mowery & Nathan Rosenberg, Paths of Innovation. Technological Change in 20th-century America (1998).</p>
</div>
<div id="sdfootnote55">
<p><i><a href="#sdfootnote55anc" name="sdfootnote55sym">55</a></i> Petra Moser, <i>How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs</i>, NBER Working Paper Series 9909, http://www.nber.org/papers/w9909.</p>
</div>
<div id="sdfootnote56">
<p><a href="#sdfootnote56anc" name="sdfootnote56sym">56</a> Meera Nair, <i>A Short-Lived Celebration</i>, Fair Duty (Jan. 8, 2012), https://fairduty.wordpress.com/2012/01/08/a-short-lived-celebration/</p>
</div>
<div id="sdfootnote57">
<p><a href="#sdfootnote57anc" name="sdfootnote57sym">57</a> See generally, Kal Raustiala & Christopher Sprigman, The Knockoff Economy (2012).</p>
</div>
<div id="sdfootnote58">
<p><a href="#sdfootnote58anc" name="sdfootnote58sym">58</a> <b>¶</b> 2.10 IPR Think Tank, National IPR Policy (First Draft) at page 10.</p>
</div>
<div id="sdfootnote59">
<p><a href="#sdfootnote59anc" name="sdfootnote59sym">59</a> <i>See</i> <i>FICCI Suggestions on Discussion Paper on Utility Model</i> available at <a href="http://www.ficci.com/Sedocument/20179/UM.pdf">http://www.ficci.com/Sedocument/20179/UM.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote60">
<p><a href="#sdfootnote60anc" name="sdfootnote60sym">60</a> <i>See</i> <i>FICCI Suggestions on Discussion Paper on Utility Model</i> available at <a href="http://www.ficci.com/Sedocument/20179/UM.pdf">http://www.ficci.com/Sedocument/20179/UM.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote61">
<p><a href="#sdfootnote61anc" name="sdfootnote61sym">61</a> <i>See</i> <i>Utility Model: A Tool for Economic and Technological Development: A Case Study of Japan</i> available at <a href="http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf">http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote62">
<p><a href="#sdfootnote62anc" name="sdfootnote62sym">62</a> U. Suthersanen, <i>Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development </i>(ICTSD), Issue Paper No. 13 (2006), available at <a href="http://www.unctad.org/en/docs/iteipc20066_en.pdf">http://www.unctad.org/en/docs/iteipc20066_en.pdf</a> , (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote63">
<p><a href="#sdfootnote63anc" name="sdfootnote63sym">63</a> <i>See</i> <i>China's great leap forward in patents</i> , available at <a href="http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/"> http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/ </a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote64">
<p><a href="#sdfootnote64anc" name="sdfootnote64sym">64</a> Will Knight, <i>Wheel Patented in Australia</i>, New Scientist (July 3, 2001), <a href="http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html"> http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html </a> .</p>
</div>
<div id="sdfootnote65">
<p><a href="#sdfootnote65anc" name="sdfootnote65sym">65</a> Keith E. Maskus, <i>Beyond the Treaties: A Symposium on Compliance with International Intellectual Property </i>Law, February 6, 2000.</p>
</div>
<div id="sdfootnote66">
<p><a href="#sdfootnote66anc" name="sdfootnote66sym">66</a> U. Suthersanen, <i>Utility Models and Innovation in Developing Countries</i>, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at <a href="http://www.unctad.org/en/docs/iteipc20066_en.pdf">http://www.unctad.org/en/docs/iteipc20066_en.pdf</a> , (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote67">
<p><a href="#sdfootnote67anc" name="sdfootnote67sym">67</a> IPR Think Tank, National IPR Policy (First Draft) at page 1.</p>
</div>
<div id="sdfootnote68">
<p><a href="#sdfootnote68anc" name="sdfootnote68sym">68</a> <b>¶</b> 2.3 IPR Think Tank, National IPR Policy (First Draft) at page 10.</p>
</div>
<div id="sdfootnote69">
<p><a href="#sdfootnote69anc" name="sdfootnote69sym">69</a> <i>See </i> <a href="http://mhrd.gov.in/technical-education-1">http://mhrd.gov.in/technical-education-1</a> (last accessed 30 January, 2015).</p>
</div>
<div id="sdfootnote70">
<p><a href="#sdfootnote70anc" name="sdfootnote70sym">70</a> <i>See</i> <i>'Expert Group Report on Role and Strategic Use of IPR (Intellectual Property Rights) in International Research Collaborations'</i> by European Commission 'available at <a href="http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf">http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote71">
<p style="text-align: justify; "><a href="#sdfootnote71anc" name="sdfootnote71sym">71</a> <i>See</i> <i>'Ministry of Science makes Open Access to Research Mandatory</i> ', available at <a href="http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory"> http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory </a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote72">
<p style="text-align: justify; "><a href="#sdfootnote72anc" name="sdfootnote72sym">72</a> DBT and DST Open Access Policy - Policy on Open Access to DBT and DST Funded Research, Department of Biotechnology and Department of Science and Technology, Ministry of Science and Technology, Government of India.</p>
</div>
<div id="sdfootnote73">
<p><a href="#sdfootnote73anc" name="sdfootnote73sym">73</a> <i>Id.</i></p>
</div>
<div id="sdfootnote74">
<p><a href="#sdfootnote74anc" name="sdfootnote74sym">74</a> <i>Id.</i></p>
</div>
<div id="sdfootnote75">
<p><a href="#sdfootnote75anc" name="sdfootnote75sym">75</a> <i>Id.</i></p>
</div>
<div id="sdfootnote76">
<p><a href="#sdfootnote76anc" name="sdfootnote76sym">76</a> IPR Think Tank, National IPR Policy (First Draft) at page 11.</p>
</div>
<div id="sdfootnote77">
<p><a href="#sdfootnote77anc" name="sdfootnote77sym">77</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote78">
<p><a href="#sdfootnote78anc" name="sdfootnote78sym">78</a> IPR Think Tank, National IPR Policy (First Draft) at pages 10, 11.</p>
</div>
<div id="sdfootnote79">
<p><a href="#sdfootnote79anc" name="sdfootnote79sym">79</a> IPR Think Tank, National IPR Policy (First Draft) at page 12.</p>
</div>
<div id="sdfootnote80">
<p><a href="#sdfootnote80anc" name="sdfootnote80sym">80</a> <i>Id</i> .</p>
</div>
<div id="sdfootnote81">
<p style="text-align: justify; "><a href="#sdfootnote81anc" name="sdfootnote81sym">81</a> The Doha Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilateral and Regional Free Trade Agreements (2004), Available at http://www.quno.org/geneva/pdf/ec onomic/Occasional/TRIPS-Public-Health-FTAs.pdf.</p>
</div>
<div id="sdfootnote82">
<p style="text-align: justify; "><a href="#sdfootnote82anc" name="sdfootnote82sym">82</a> World Health Organization, Report of the Commission on Intellectual Property Rights, Innovation and Public Health, Recommendation 4.26 (2006), available at http://www.who.int/intellectualproperty/ documents/thereport/CIPIHReport23032006.pdf [hereinafter WHO].</p>
</div>
<div id="sdfootnote83">
<p><a href="#sdfootnote83anc" name="sdfootnote83sym">83</a> Fifty-Seventh World Health Assembly, May17-22,2004, (May 22, 2004), available at http:// apps.who.int/gb/ebwha/pdf_files/WHA57/A57_R14-en.pdf;</p>
</div>
<div id="sdfootnote84">
<p><a href="#sdfootnote84anc" name="sdfootnote84sym">84</a> Preamble, Articles 7, 8, TRIPS Agreement, 1994.</p>
</div>
<div id="sdfootnote85">
<p><a href="#sdfootnote85anc" name="sdfootnote85sym">85</a> <b>¶</b> 3.2 IPR Think Tank, National IPR Policy (First Draft) at page 12.</p>
</div>
<div id="sdfootnote86">
<p><a href="#sdfootnote86anc" name="sdfootnote86sym">86</a> <b>¶</b> 3.6 IPR Think Tank, National IPR Policy (First Draft) at page 13.</p>
</div>
<div id="sdfootnote87">
<p><a href="#sdfootnote87anc" name="sdfootnote87sym">87</a> <i>See</i> <i>'Open Standards Policy'</i> , available at <a href="http://cis-india.org/news/open-standards-policy">http://cis-india.org/news/open-standards-policy</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote88">
<p><a href="#sdfootnote88anc" name="sdfootnote88sym">88</a> <i>See</i> <i>'The BIS, Standards and Copyright'</i> , available at <a href="http://spicyip.com/2014/11/the-bis-standards-and-copyright.html">http://spicyip.com/2014/11/the-bis-standards-and-copyright.html</a> (last accessed January 28, 2015).</p>
</div>
<div id="sdfootnote89">
<p style="text-align: justify; "><a href="#sdfootnote89anc" name="sdfootnote89sym">89</a> <i>See</i> <i>CIS' Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses</i> , available at <a href="http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices"> <span>http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices</span> </a> (last accessed January 29, 2015).</p>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy'>http://editors.cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy</a>
</p>
No publishernehaaCall for CommentsAccess to KnowledgeIntellectual Property RightsFeaturedHomepage2015-02-09T00:59:10ZBlog EntryLocating Constructs of Privacy within Classical Hindu Law
http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law
<b>This white paper seeks to locate privacy in Classical Hindu Law, and by doing so, displace the notion that privacy is an inherently ‘Western’ concept that is the product of a modernist legal system. </b>
<h3 style="text-align: justify; ">Introduction: Conceptions of Privacy</h3>
<p style="text-align: justify; ">Because of the variance exhibited by the various legal, social, and cultural aspects of privacy, it cannot be easily defined. <a name="_ftnref1"></a> As a legal concept, privacy may form a constitutional claim, a statutory entitlement, a tortious action or an equitable remedy. As a constitutional claim, privacy is either an explicitly recognised right<a name="_ftnref2"></a> that is capable of independent enforcement,<a name="_ftnref3"></a> read into a pre-existing right <a name="_ftnref4"></a>, or located within the penumbra of a larger right.<a name="_ftnref5"></a> Statutory recognition of privacy may be afforded by both criminal and civil statutes. The offence of criminal defamation for instance, is perceived as an act of violating an individual's privacy by tarnishing his or her reputation.<a name="_ftnref6"></a> Similarly the provision of in camera trials for divorce proceedings is an illustration of a civil statute implicitly recognising privacy. <a name="_ftnref7"></a> As a tortious claim the notion of privacy is commonly understood in terms of the right against trespass of property. Equity, co-terminus with a statutory mandate or in isolation, may also be a source of privacy.</p>
<p style="text-align: justify; ">Most legal conceptions of privacy in everyday use in India originated from the English common law. Other constitutional and statutory constructions of privacy, even when not found in the common law, arise within a broader modernist system of law and justice that originated in Europe.<a name="_ftnref8"></a> During the European colonisation of India, the British (and, in a different manner, the French <a name="_ftnref9"></a>) attempted to recreate the common law in India through the establishment of a new legal and courts system, and the wholesale importation of the European idea of law<a name="_ftnref10"></a>. The very notion of privacy, as well as its legal conception, is a product of this legal modernity.<a name="_ftnref11"></a> In post-colonial societies, the argument against the right to privacy is usually premised on its perceived alien-ness - as a foreign idea brought by colonisers and imposed on a traditionalist society that favoured communitarian living over individual rights - in an effort to discredit it.<a name="_ftnref12"></a></p>
<p style="text-align: justify; ">The fallacy of this argument lies in its ignorance of the cultural plurality of privacy.<a name="_ftnref13"></a> To begin with, the idea that is connoted by the modernist notion of privacy pre-dated the introduction of common law in India. By the time of the Enlightenment, Hindu law and Islamic law were established legal systems with rich histories of jurisprudence and diverse schools of law within them, each with their own juristic techniques and rules of interpretation.<a name="_ftnref14"></a> While neither Hindu law nor Islamic law use a term that readily translates to "privacy", thereby precluding a neat transposition of meanings between them, the notion of privacy existed and can be located in both the legal traditions. In this paper, the term 'privacy' is used to describe both the modernist notion that arises from the principle of personal autonomy as well as the diverse pre-modern concepts in Hindu and Islamic jurisprudence that resemble or relate to this notion. These pre-modern concepts are diverse, and do not permit an easy analysis. For instance, the <i>Manusmriti,</i> which is a source of classical Hindu law, prohibits bathing in tanks that belong to other men.<a name="_ftnref15"></a> Additionally it prohibits the use of wells, gardens, carriages, beds, seats and houses without the owner's permission.<a name="_ftnref16"></a> These prohibitions are not driven by the imperatives of privacy alone. The rationale is that in using others' belongings one appropriates a portion of their sins.<a name="_ftnref17"></a> Hence, these privacy protections are linked to an ideal of purity. Islamic law also restricts the use or misappropriation of another's property. <a name="_ftnref18"></a> However, this prohibition is designed to protect private property; it has no ideological link to purity.</p>
<p style="text-align: justify; ">This paper attempts to locate constructs of privacy in classical Hindu law. The purpose of this exercise is not to privilege one legal system over another. Therefore, we do not intend to normatively assess the existing modernist discourse on privacy. We simply seek to establish the existence of alternate notions of privacy that pre-date modernity and the common law.</p>
<p style="text-align: justify; ">The scope of the paper is confined to locating privacy in classical Hindu law. The materials within the realm of classical Hindu law, relevant to this exercise are- the <i>sruti</i>, <i>smriti</i>, and <i>acara</i>. <i>Sruti</i> comprises of the <i>Vedas, Brahmanas, Aranyakas and the Upanishads.</i> It is considered to symbolise the spirit of Hindu law and is not the source of any positivist command as such.<a name="_ftnref19"></a> <i>Smriti</i> involves various interpretations of the <i>sruti</i>, We have however restricted ourselves to the <i>Dharmashastras </i>in this realm. Acara refers to the body of customary practices.</p>
<p style="text-align: justify; ">The review of the material at hand however, is not exhaustive. The reasons for this are twofold- <i>first</i>, given the vast expanse of Hindu jurisprudence, the literature review has been limited; <i>second, </i>there is a limited availability of reliable English translations of ancient legal treatises.</p>
<p style="text-align: justify; ">This paper is divided into two parts. The first part of this paper deals with the interface of colonisation with Hindu law and elucidates the nature of Hindu law. With the advent of colonialism, classical Hindu law was gradually substituted by a modernist legal system. <a name="_ftnref20"></a> Exploring the characteristics of modernity, the factors that contributed to the displacement of classical Hindu law will be identified.</p>
<p style="text-align: justify; ">One of the factors that contributed to the displacement was the uncertainty that characterised classical Hindu law. <a name="_ftnref21"></a> Classical Hindu law was an amalgamation of three sources, as. In an attempt to rule out the uncertainty, and the lack of positive command, the modernisation of Hindu law was brought about.<a name="_ftnref22"></a> Accordingly this part shall also examine the nature of Hindu law. Furthermore it shall determine whether the application of codified modern Hindu law, is informed by the precepts of classical Hindu law.</p>
<p style="text-align: justify; ">Having explicated the nature of Hindu law, the next part will focus on identifying instances of privacy in classical Hindu law.</p>
<p style="text-align: justify; ">Before ascertaining specific instances, however, this part will lay down a general understanding of privacy as it existed then. It will be demonstrated that regardless of the absence of an equivalent term, an expectation of privacy existed.</p>
<p style="text-align: justify; ">The specific illustrations of privacy will then be mapped out.</p>
<p style="text-align: justify; ">Given the different aspects wherein an expectation of privacy exists, there is also a possibility of competing claims. In the event that such conflicts arise, this part will attempt to resolve the same.</p>
<h3 style="text-align: justify; ">Part 1: The Transmogrification of the Nature of Hindu Law</h3>
<p> </p>
<p>The evolution of Hindu jurisprudence can be charted through three phases- classical, colonial, and modern.</p>
<p style="text-align: justify; ">In the classical phase, it was embodied by the Dharmashastra which elaborated on customary practices, legal procedure, as well as punitive measures. The Dharamshastra was accompanied by the Vedas, and acara. Whether this body of jurisprudence could be called 'law' in the strict modernist sense of the term is debatable.<a name="_ftnref23"></a></p>
<p style="text-align: justify; ">Modernity has multifarious aspects.<a name="_ftnref24"></a> However, we are concerned with modernity in the context of legal systems, for the purpose of this paper. The defining attribute of a modernist legal system is the need for positivist precepts that are codified by a legislature.<a name="_ftnref25"></a> The underlying rationale for formalised legislation is the need for certainty in law.<a name="_ftnref26"></a> Law is to be uniformly applied within the territory.<a name="_ftnref27"></a> The formalised legislation is to be enforced by hierarchized courts.<a name="_ftnref28"></a> Furthermore this codified law can be modified through provisions for amendment, if need be. <a name="_ftnref29"></a></p>
<p style="text-align: justify; ">This modernist understanding is what informs the English common law. With the advent of colonialism, common law was imported to India. The modernist legal system was confronted by plural indigenous legal systems here that were starkly different in nature.<a name="_ftnref30"></a> In the given context, the relevant indigenous system is classical Hindu law. The classical precepts were interpreted by the British. These interpretations coupled with the sources of Classical Hindu law, constituted colonial Hindu law.<a name="_ftnref31"></a></p>
<p style="text-align: justify; ">It is pertinent to note that these interpretations were undertaken through a modernist lens. The implication was the attempted modernisation of a traditional legal system.</p>
<p style="text-align: justify; ">The traditional system of Classical Hindu law did not exhibit any of the introduced features. To begin with not all of classical Hindu law was text based. <a name="_ftnref32"></a> The problem with the textual treatises was threefold. First, they were not codes enacted by a legislature, but written by various scholars. Second, they were not phrased as positivist precepts. Third, their multiplicity was accompanied with the lack of an established hierarchy between these texts.</p>
<p style="text-align: justify; ">Additionally classical Hindu law was the embodiment of <i>dharma</i>, which in itself was an amorphous concept. The constitutive elements of<i>dharma</i> were law, religious rites, duties and obligations of members of a community, as well as morality.<a name="_ftnref33"></a> These elements do not however, exhaustively define <i>dharma</i>. There exist varying definitions of <i>dharma</i>,<a name="_ftnref34"></a> and in some cases even ancient texts dealing with <i>dharma</i> fail to articulate its definition.<a name="_ftnref35"></a> This is on account of the fact that the meaning of <i>dharma</i>, varied depending on the in which it is used<a name="_ftnref36"></a> Owing to the fact that classical Hindu jurisprudence was informed by <i>dharma, </i>the former was an amalgamation of law, religion and morality. Therefore it was categorised as jurisprudence that lacked the secularity exhibited by modern positivist law.<a name="_ftnref37"></a></p>
<p style="text-align: justify; ">The co-existence of law and morality in classical Hindu law has led to various debates regarding its nature. <a name="_ftnref38"></a> Before explicating the nature of classical Hindu law, its sources must be elaborated on. As referred to, the sources are <i>sruti</i>, <i>smriti</i>,<i> </i>and<i> acara</i>.</p>
<p style="text-align: justify; ">Sruti is constituted by the <i>Vedas</i>,<i> Brahmanas</i>,<i> Aranyakas</i>,<i> </i>and<i> Upanishads</i>. Vedas are divine revelations that contain no positive precept <i>per se</i>. They are considered as the spirit of law, and believed to be the source of the rules of dharma.<a name="_ftnref39"></a> The Vedas are constituted by the Rigveda, Samveda, Yajurveda and Athravaveda.<a name="_ftnref40"></a> Based on the Vedic texts, treatises have been written elucidating religious practices. <a name="_ftnref41"></a> These texts are known as the Brahmanas.<a name="_ftnref42"></a> The Aranyakas and the Upanishads engage in philosophical enquiries of the revelation in the Vedas.</p>
<p style="text-align: justify; ">Interpretations of the Sruti by various scholars are embodied in the Smriti. The connotations of smriti are twofold. <a name="_ftnref43"></a> First, it implies knowledge transmitted through memory, as opposed to knowledge directly revealed by divinity.<a name="_ftnref44"></a> Additionally, it is the term used to collectively reference the Dharmasutras and Dharmashastra.<a name="_ftnref45"></a></p>
<p style="text-align: justify; ">Dharmasutras were essentially interpretations of revelation in only prose form, or a mixture of prose and verse. <a name="_ftnref46"></a> They detailed the duties and rituals to be carried out by a person, through the four stages, of his or her life. The duties laid down also varied depending on the caste of a person.<a name="_ftnref47"></a> They also laid down guidelines for determining punishments.<a name="_ftnref48"></a></p>
<p style="text-align: justify; ">Dharmasastras on the other hand were in the verse form. Though their subject matter coincided with the Dharmasutra in terms of domestic duties and rituals, they had a wider ambit. The Dharmasastras also dealt with subjects such as statecraft, legal procedure for adjudicating disputes. In a limited way, they marked the diversification from strictly religious precepts, from those that were legal in nature. For instance the Manusmriti was an amalgamation of law and ritual. The Yajnawalkya Samhita however, has separate parts that deal with customary practices, legal procedure, and punitive measures. The Narada Smriti, in turn deals only with legal procedure and rules of adjudication.</p>
<p style="text-align: justify; ">It is opined that in due course of time, the Aryan civilisation diversified.<a name="_ftnref49"></a> Their life and literature were no longer limited to sacrificial practices, but took on a more 'secular' form.<a name="_ftnref50"></a> The Arthashastra is evidence of such diversification.<a name="_ftnref51"></a> Unlike the Dharmashastra, it deals with strategies to be employed in governance, regulations with regard to urban planning, commercialisation of surrogacy, espionage, among other things. <a name="_ftnref52"></a></p>
<p style="text-align: justify; ">The third source of classical Hindu law, acara refers to customary practices and their authoritativeness was determined by the people.<a name="_ftnref53"></a> Their prevalence over textual tradition is contentious. <a name="_ftnref54"></a> Some opine that acara prevails over textual traditions. However, the opposing school of thought believes that customary practices prevail only if the text is unclear or disputed.<a name="_ftnref55"></a></p>
<p style="text-align: justify; ">Other sources of classical Hindu law include the <i>itihas </i>(epics such as the Mahabharata and Ramayana), and digests written by scholars.</p>
<p style="text-align: justify; ">Given the diversity of sources and its non-conformity to positivism, the nature of classical Hindu law is a heavily contested issue. For instance, with regard to the legal procedure in the Dharmashastra, Maynes opines that these rules qualified as law in the modernist sense.<a name="_ftnref56"></a> Ludo Rocher however, opines that textual treatises would not qualify as law. <a name="_ftnref57"></a> Classical Hindu law can admittedly not be identified as strictly legal or strictly moral. However, it does in a limited way recognise the distinction between legal procedure and morality.<a name="_ftnref58"></a> This is to say, it is not merely a source of rituals, but also lays down precepts that are jurisprudentially relevant.</p>
<p style="text-align: justify; ">On account of its non-conformity with characteristics of a modernist legal system, classical Hindu law was displaced by its colonial version. The British attempted to accomplish this though the process of codification.<a name="_ftnref59"></a> The colonial attempts to codify Hindu law were carried forward by the Indian government post-independence. The result was the Hindu Code Bill. The context in which this codification took place must be examined in order to better comprehend this transmogrification. Post-independence, the idea of a Uniform Civil Code had been debated.<a name="_ftnref60"></a> However it was at odds with the Nehruvian notion of secularity. <a name="_ftnref61"></a> The codification of Hindu personal law was an attempt at modernising it, without infringing on the religious freedom of Hindus.<a name="_ftnref62"></a> The idea was to confine the influence of religion to the private sphere. <a name="_ftnref63"></a> What emerged was the Hindu Code Bill, which served as the blueprint for the Hindu Marriage Act, the Hindu Succession Act, the Hindu Minority and Guardianship Act and, the Hindu Adoption and Maintenance Act. <a name="_ftnref64"></a> Colonial Hindu law was thus displaced by modern Hindu law.</p>
<p style="text-align: justify; ">As Galanter observes however, modernisation through legislations may formalise or even modify classical precepts, but cannot erase them completely. <a name="_ftnref65"></a> For instance, Section 7 of the Hindu Marriage Act, which prescribes the ceremonial requirements for a Hindu marriage, replicates those prescribed in Classical Hindu law.<a name="_ftnref66"></a> Additionally a plethora of judicial decisions have relied on or taken into consideration, precepts of ancient Hindu jurisprudence.<a name="_ftnref67"></a></p>
<p style="text-align: justify; ">It is evident thus that ancient precepts still inform modern Hindu law. Given their relevance, it would be erroneous to write off classical Hindu law as completely irrelevant in a modernist context.</p>
<h3 style="text-align: justify; ">Part II: Precepts of Privacy in Classical Hindu Law</h3>
<p style="text-align: justify; ">As referred to, we have not come across a terminological equivalent of the term 'privacy' in the course of our research. The linguistic lacuna is admittedly a hurdle in articulating the pre-modern understanding of privacy as found in Hindu jurisprudence. It is not however, an argument against the very existence of privacy. The lack of pre-modern terminology necessitates the usage of modern terms in classifying the aspects of privacy detailed in Hindu jurisprudence.</p>
<p style="text-align: justify; ">Thus, broadly speaking, the aspects of privacy we have culled out from the material at hand are those of physical space/ property, thought, bodily integrity, information, communication, and identity. As will be demonstrated these aspects overlap on occasion and are by no means an exhaustive indication. In order to contextualise these aspects within the realm of Hindu jurisprudence, they are detailed below through specific illustrations.</p>
<p align="left"><i>A. </i> <i>Privacy of physical Space/ property</i></p>
<p style="text-align: justify; ">Akin to the modern legal system that first understood privacy in proprietary terms,<a name="_ftnref68"></a> Hindu jurisprudence too accorded importance to privacy in terms of physical space. This is further illustrated by the similarity between the common law notion of a man's house being his castle,<a name="_ftnref69"></a> and the institutional primacy accorded by the Naradsmriti to the household <a name="_ftnref70"></a>. The common denominator here is the recognition of a claim to privacy against the sovereign. This claim operated against society at large as well. For instance, an individual caught trespassing on someone else's property was liable to be fined. <a name="_ftnref71"></a></p>
<p style="text-align: justify; ">These religious precepts were supplemented by those reflected in texts such as the Arthashastra. By way of illustration the house building regulations prescribed by it are largely informed by the recognition of a need for privacy. To begin with, a person's house should be built at a suitable distance from a neighbour's house, to prevent any inconvenience.<a name="_ftnref72"></a> In addition the house's doors and windows should ideally not face a neighbours doors and windows directly.<a name="_ftnref73"></a> The occupants of the house should ensure the doors and windows are suitably covered.<a name="_ftnref74"></a> Furthermore in the absence of a compelling justification, interference in a neighbour's affairs is penalised.<a name="_ftnref75"></a>Juxtaposed to religious texts that often perceived privacy as a concept driven by the imperative of purity,<a name="_ftnref76"></a> the Arthashastra is reflective of a secular connotation of privacy.</p>
<p style="text-align: justify; ">Though the household was privileged as the foundational institution in Hindu jurisprudence, claims of privacy extend beyond one's house to other physical objects as well, regardless of whether they were extensions of the household or not. For instance, both the Yajnawalkya Samhita and the Manusmriti condemn the usage of another person's property without his or her permission.<a name="_ftnref77"></a></p>
<p style="text-align: justify; ">What is noteworthy in the context of personal property is that in an era infamous for the denigration of women, Hindu jurisprudence recognised a woman's claim over property. This property, also known as Stridhana, had varied definitions. In the Yajnawalkya Samhita for instance, it is conceptualised as, "What has been given to a woman by the father, the mother, the husband or a brother, or received by her at the nuptial fire, or given to her on her husband's marriage with another wife, is denominated Stridhana or a woman's property".<a name="_ftnref78"></a> In the Manusmriti, it is defined as "What was given before the nuptial fire, what was given on the bridal procession, what was given in token of love, and what was received from her brother, mother, or father, that is called the sixfold property of a woman".<a name="_ftnref79"></a></p>
<p style="text-align: justify; ">Beyond mere cognizance of proprietary rights however, these precepts were also informed by the notion of exclusivity. Consequently, a woman's husband or his family were precluded from using her Stridhana, unless they were in dire straits. Additionally it was a sin for a woman's relatives to use her wealth even if the same was done unknowingly.<a name="_ftnref80"></a></p>
<p><i>B. </i> <i>Privacy of Thought</i></p>
<p style="text-align: justify; ">In addition to the aspect of physical space, a claim to privacy vis-a-vis the intangible realm of thought was afforded by Hindu jurisprudence. In the modern context the link between solitude and privacy has been recognised as early as 1850 by Warren and Brandeis. <a name="_ftnref81"></a> The key distinction is that in the modern era this need for solitude was seen as a function of the increasing invasion of privacy.<a name="_ftnref82"></a> In the pre-modern era however, solitude was considered essential for self-actualisation, and not as a response to the increasing invasion of the private realm. Meditation in solitude was perceived as enabling existence in the highest state of being.<a name="_ftnref83"></a> In fact a life in solitude was identified as a pre-requisite for being liberated.<a name="_ftnref84"></a></p>
<p style="text-align: justify; ">Though solitude itself is intangible, engaging in meditation would require a tangible solitary space.<a name="_ftnref85"></a> This is where the privacy of thought overlapped with the aspect of privacy of space. Accordingly, the Arthashastra prescribed that forest areas be set aside for meditation and introspection.<a name="_ftnref86"></a> It also recognised the need for ascetics to live within these spaces harmoniously, without disturbing each other.<a name="_ftnref87"></a></p>
<p style="text-align: justify; ">It is evident, that as far as the aspects of privacy were concerned, there were no watertight compartments.</p>
<p><i>C. </i> <i>Privacy with respect to bodily integrity</i></p>
<p style="text-align: justify; ">A claim to privacy of thought can only be substantively realised when complemented by the notion of privacy with respect to bodily integrity, as corporeal existence serves as a precursor to mental well-being. The inference drawn from the relevant precepts concerning this aspect is that they were largely women-centric. Arguably they were governed by a misplaced patriarchal notion that women's modesty needed to be protected. At best they could be considered as implicit references to an expectation of privacy.</p>
<p style="text-align: justify; ">The Manusmriti states, "But she who…goes to public spectacles or assemblies, shall be fined six krishnalas". <a name="_ftnref88"></a> Restrictions operating during a woman's menstruation were twofold. Her family was prohibited from seeing her. Additionally cohabitation with such a woman was also forbidden.<a name="_ftnref89"></a> It should be pointed out that that these constructs had little to do with a woman's expectation of privacy. They were forbidden due to the attached implications of impurity that would vest in the defaulter. A woman's autonomy with regard to her body was not regarded as a factor meriting consideration.</p>
<p style="text-align: justify; ">However, there were constructs, albeit limited, which were more egalitarian in their approach and did recognise her autonomy. They established that women do have an expectation of privacy in terms of bodily integrity. Sexual assault was considered as an offence. <a name="_ftnref90"></a> Evidence of this is found in the Yajnawalkya Samhita which states, "If many persons know a woman against her will, each of them should be made to pay a fine of twenty four panas".<a name="_ftnref91"></a> In addition, the Arthashastra vested in commercial sex workers the right to not be held against their will.<a name="_ftnref92"></a> Further it expressly states that even a commercial sex worker cannot be forced to engage in sexual intercourse.<a name="_ftnref93"></a></p>
<p style="text-align: justify; ">Women could make a claim to privacy not only against society at large, but also against their husbands. Ironically, while our contemporary legal system (i.e., the Indian legal system) fails to criminalise marital rape, the <i>Manusmriti</i> considered it an offence. <a name="_ftnref94"></a> Additionally, husbands were also prohibited from looking at their wives when the latter were in a state of relaxation.</p>
<p style="text-align: justify; "><i>D. </i> <i>Privacy of Information and Communication</i></p>
<p style="text-align: justify; ">While the three aspects explicated above were by and large restricted to the individual, the privacy of information and communication has been largely confined by Hindu jurisprudence to the realm of the sovereign. Both the Manusmriti and the Arthashastra acknowledge the importance of a secret council that aids the king in deliberations.<a name="_ftnref95"></a> These deliberations are to be carried on in a solitary place that was well-guarded.<a name="_ftnref96"></a> The decisions made in these deliberations are to be revealed on a need to know basis. <a name="_ftnref97"></a> That is to say, only persons concerned with the implementation of these decisions are to be informed. The Manusmriti also provides for private deliberation by the king on matters not involving governance. It provides, "At midday or midnight , when his mental and bodily fatigues are over, let him deliberate, either with himself alone or with his ministers on virtue, pleasure, and wealth".</p>
<p style="text-align: justify; ">Apart from governance, privacy of information also pertained to certain types of documents that were considered private in nature. These are documents that involve transactions such as partition, giving of a gift, purchase, pledge and debt. What is interesting about this precept is the resemblance it bears to the common law notion of privity. The common characteristic of the documents referred to, is that they concerned transactions undertaken between two or more persons. The rights or obligations arising from these transactions were confined to the signatories of these documents. It could be possible that the privatisation of these documents was aimed at guarding against disruption of transactions via third party intrusions.</p>
<p style="text-align: justify; ">The limited reference to private communications is found within the realm of governance, within the context of privacy of information. The only illustration of this that we have come across is the precept in the Arthashastra that requires intelligence to be communicated in code. <a name="_ftnref98"></a></p>
<p><i>E. </i> <i>Privacy of Identity </i></p>
<p style="text-align: justify; ">The final aspect that warrants detailing is the privacy of identity. The notion of privacy of identity can be understood in two ways. The first deals with protection of personal information that could be traced back to someone, thus revealing his or her identity. The second recognises the component of reputation. It seeks to prevent the misappropriation or maligning of a person's identity and thus reputation. In ancient Hindu jurisprudence there is evidence of recognition of the latter. An illustration of the same is offered by the precept which states "For making known the real defects of a maiden, one should pay a fine of a hundred panas".<a name="_ftnref99"></a> Another precept prescribes that false accusations against anyone in general are punishable by a fine. Additionally, there is also a restriction operating against destroying or robbing a person of his or her virtue.<a name="_ftnref100"></a> In the modern context, the above would be understood under the rubric of defamation. These precepts are indicative of the fact that defamation was recognised as an offence way before the modern legal system afforded cognizance to the same.</p>
<h3 style="text-align: justify; ">Conclusion</h3>
<p style="text-align: justify; ">The dominant narrative surrounding the privacy debate in India is that of the alien-ness of privacy. This paper has attempted to displace the notion that privacy is an inherently 'Western' concept that is the product of a modernist legal system. No doubt the common understanding of the legal conception of privacy is informed by modernity. In fact, the research conducted in support of this paper has been synthesised from privacy information through a modernist lens. The fact still remains however, that privacy is an amorphous context, and its conceptions vary across cultures.</p>
<p style="text-align: justify; ">To better appreciate the relevance of Classical Hindu law in a modernist context, the nature of Hindu law must be examined first. While Hindu jurisprudence might not qualify as law in the positivist sense of the term, its precepts continue to inform India's statues and judicial pronouncements.</p>
<p style="text-align: justify; ">Privacy is subjective and eludes a straitjacketed definition. On occasion this elusiveness is a function of its overlapping and varying aspects. At other times it stems from a terminological lacuna that complicates the explication of privacy. These impediments notwithstanding, it is abundantly clear that the essence of privacy is reflected in Hindu culture and jurisprudence. This may give pause to thought to those who seek to argue that 'collectivist' cultures do not value privacy or exhibit the need for it.</p>
<div></div>
<div>
<hr />
<div id="ftn1">
<p><a name="_ftn1"></a> Daniel J. Solove, <i>A Taxonomy of Privacy</i>, University of Pennsylvania Law Review, Vol. 154(3), January 2006.</p>
</div>
<div id="ftn2">
<p><a name="_ftn2"></a> <i>Id.</i></p>
</div>
<div id="ftn3">
<p style="text-align: justify; "><a name="_ftn3"></a> Upendra Baxi, <i>Who Bothers About the Supreme Court: The Problem of Impact of Judicial Decisions</i>, available at http://clpr.org.in/wp-content/uploads/2013/08/whobothersabouttheSupremeCourt.pdf (Last visited on December 23, 2014) (The enforceability of rights often sets their individual enjoyment apart from their jurisprudential value); In India, the reading of privacy into Article 21 has not resulted in a mechanism to enforce a standalone right to privacy, See R.H. Clark, Constitutional Sources of the Penumbral Right to Privacy, available at http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=2046&context=vlr (Last visited on December 23, 2014) (In the United States, the right to privacy was located in the penumbra of the right to personal autonomy).</p>
</div>
<div id="ftn4">
<p><a name="_ftn4"></a> See PUCL v. Union of India, AIR 1997 SC 568.</p>
</div>
<div id="ftn5">
<p><a name="_ftn5"></a> See Griswold v. Connecticut, 381 U.S. 479 (1965); Lawrence v. Texas, 539 U.S. 558 (2003).</p>
</div>
<div id="ftn6">
<p><a name="_ftn6"></a> See The Indian Penal Code, 1850, Section 499.</p>
</div>
<div id="ftn7">
<p><a name="_ftn7"></a> See The Hindu Marriage Act, 1955 Section 22; The Special Marriage Act, 1954, Section 33.</p>
</div>
<div id="ftn8">
<p style="text-align: justify; "><a name="_ftn8"></a> Bhairav Acharya & Vidushi Marda, <i>Identifying Aspects of Privacy in Islamic Law</i>, available at http://cis-india.org/internet-governance/blog/identifying-aspects-of-privacy-in-islamic-law (Last visited on December 23, 2014).</p>
</div>
<div id="ftn9">
<p><a name="_ftn9"></a> See Robert Lingat, The Classical Law of India (1973).</p>
</div>
<div id="ftn10">
<p style="text-align: justify; "><a name="_ftn10"></a> Donald R. Davis, Jr., The Spirit of Hindu Law (2010) (This importation must be viewed against the backdrop of the characteristics of the era of Enlightenment wherein primacy was accorded to secular reason and the positivist conception of law. Davis observes "One cannot deny the increasing global acceptance of a once parochial notion of law as rules backed by sanctions enforced by the state. This very modern, very European notion of law is not natural, not a given; it was produced at a specific moment in history and promulgated systematically and often forcibly through the institutions of what we now call the nation-state, especially those nations that were also colonial powers.)"; But see Alan Gledhill, <i>The Influence of Common Law and Equity on Hindu Law Since 1800</i>, available at http://www.jstor.org/stable/755588 (Last visited on December 23, 2014); Werner Menski, <i>Sanskrit Law: Excavating Vedic Legal Pluralism</i>, available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1621384 (Last visited on December 23, 2014) (However, this replacement of traditional legal systems did not extend to personal laws. Personal laws in India continue to be community-based, sometimes un-codified, draw from a diverse set of simultaneously applicable sources and traditional schools of jurisprudence.).</p>
</div>
<div id="ftn11">
<p><a name="_ftn11"></a> <i>Supra </i> note 8, Acharya & Marda.</p>
</div>
<div id="ftn12">
<p style="text-align: justify; "><a name="_ftn12"></a> Privacy International, <i>A New Dawn: Privacy in Asia</i>, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013) ("It is only recently that the debate around privacy was stuck in this "collectivist" vs. "individualistic" cultural discourse…we discovered that privacy concerns and the need for safeguards were often embedded deeply in a nation, and <i>not just as a response to a modern phenomenon.</i>").</p>
</div>
<div id="ftn13">
<p style="text-align: justify; "><a name="_ftn13"></a> Privacy International, <i>A New Dawn: Privacy in Asia</i>, available at https://www.privacyinternational.org/reports/a-new-dawn-privacy-in-asia/background (Last visited on December 28, 2013)</p>
</div>
<div id="ftn14">
<p style="text-align: justify; "><a name="_ftn14"></a> J. Duncan M. Derrett, <i>The Administration of Hindu Law by the British</i>, available at http://www.jstor.org/stable/177940 (Last visited on December 23, 2014).</p>
</div>
<div id="ftn15">
<p><a name="_ftn15"></a> Manusmriti, Chapter IV, 201.</p>
</div>
<div id="ftn16">
<p><a name="_ftn16"></a> Manusmriti, Chapter IV, 202.</p>
</div>
<div id="ftn17">
<p><a name="_ftn17"></a> <i>Id.</i></p>
</div>
<div id="ftn18">
<p><a name="_ftn18"></a> Wael B. Hallaq, An Introduction to Islamic Law 31 (2009).</p>
</div>
<div id="ftn19">
<p><a name="_ftn19"></a> Donald R. Davis, Jr., The Spirit of Hindu Law (2010).</p>
</div>
<div id="ftn20">
<p style="text-align: justify; "><a name="_ftn20"></a> Marc Galanter, <i>The Displacement of Traditional Law in Modern India</i>, Journal of Social Issues, Vol. XXIV, No. 4, 1968.</p>
</div>
<div id="ftn21">
<p><a name="_ftn21"></a> <i>Id.</i></p>
</div>
<div id="ftn22">
<p><a name="_ftn22"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn23">
<p><a name="_ftn23"></a> <i>Supra </i> note 10, Menski.</p>
</div>
<div id="ftn24">
<p><a name="_ftn24"></a> Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).</p>
</div>
<div id="ftn25">
<p><a name="_ftn25"></a> <i>Id.</i></p>
</div>
<div id="ftn26">
<p><a name="_ftn26"></a> Ashcroft as cited in Werner Menski, Hindu Law: Beyond Tradition and Modernity (2003).</p>
</div>
<div id="ftn27">
<p><a name="_ftn27"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn28">
<p><a name="_ftn28"></a> <i>Id.</i></p>
</div>
<div id="ftn29">
<p><a name="_ftn29"></a> <i>Id.</i></p>
</div>
<div id="ftn30">
<p><a name="_ftn30"></a> <i>Id</i> .</p>
</div>
<div id="ftn31">
<p><a name="_ftn31"></a> <i>Id</i> .</p>
</div>
<div id="ftn32">
<p><a name="_ftn32"></a> <i>Id</i> .</p>
</div>
<div id="ftn33">
<p><a name="_ftn33"></a> <i>Supra</i> note 19, Davis.</p>
</div>
<div id="ftn34">
<p><a name="_ftn34"></a> <i>Id.</i></p>
</div>
<div id="ftn35">
<p><a name="_ftn35"></a> <i>Id.</i></p>
</div>
<div id="ftn36">
<p><a name="_ftn36"></a> <i>Id</i> .</p>
</div>
<div id="ftn37">
<p><a name="_ftn37"></a> <i>Id</i> .</p>
</div>
<div id="ftn38">
<p><a name="_ftn38"></a> J. Duncan M. Derrett, Introduction to Modern Hindu Law (1963); <i>Supra</i> note 19, Davis.</p>
</div>
<div id="ftn39">
<p><a name="_ftn39"></a> <i>Supra</i> note 9, Lingat.</p>
</div>
<div id="ftn40">
<p><a name="_ftn40"></a> <i>Id.</i></p>
</div>
<div id="ftn41">
<p><a name="_ftn41"></a> <i>Id.</i></p>
</div>
<div id="ftn42">
<p><a name="_ftn42"></a> <i>Id.</i></p>
</div>
<div id="ftn43">
<p><a name="_ftn43"></a> <i>Id.</i></p>
</div>
<div id="ftn44">
<p><a name="_ftn44"></a> <i>Id.</i></p>
</div>
<div id="ftn45">
<p><a name="_ftn45"></a> <i>Id.</i></p>
</div>
<div id="ftn46">
<p><a name="_ftn46"></a> <i>Id.</i></p>
</div>
<div id="ftn47">
<p><a name="_ftn47"></a> <i>Id.</i></p>
</div>
<div id="ftn48">
<p><a name="_ftn48"></a> <i>Id.</i></p>
</div>
<div id="ftn49">
<p><a name="_ftn49"></a> John D. Mayne, Hindu Law (1875).</p>
</div>
<div id="ftn50">
<p><a name="_ftn50"></a> <i>Id.</i></p>
</div>
<div id="ftn51">
<p><a name="_ftn51"></a> <i>Supra </i> note 49, Mayne.</p>
</div>
<div id="ftn52">
<p><a name="_ftn52"></a> <i>Id.</i></p>
</div>
<div id="ftn53">
<p><a name="_ftn53"></a> <i>Supra </i> note 19, Davis.</p>
</div>
<div id="ftn54">
<p><a name="_ftn54"></a> <i>Id.</i></p>
</div>
<div id="ftn55">
<p><a name="_ftn55"></a> <i>Id.</i></p>
</div>
<div id="ftn56">
<p><a name="_ftn56"></a> <i>Supra </i> note 49, Mayne.</p>
</div>
<div id="ftn57">
<p><a name="_ftn57"></a> Ludo Rocher, Studies in Hindu Law and Dharamasastra (2012).</p>
</div>
<div id="ftn58">
<p style="text-align: justify; "><a name="_ftn58"></a> For instance the Yajnawalkya Samhita has clear delineations in its chapters, segregating customary practices, legal procedure and punitive measures.</p>
</div>
<div id="ftn59">
<p style="text-align: justify; "><a name="_ftn59"></a> Madhu Kishwar, <i>Codified Hindu Law: Myth and Reality</i>, available at http://www.jstor.org/stable/4401625 (Last visited on December 23, 2014).</p>
</div>
<div id="ftn60">
<p><a name="_ftn60"></a> <i>Id</i> .</p>
</div>
<div id="ftn61">
<p><a name="_ftn61"></a> <i>Supra </i> note 59.</p>
</div>
<div id="ftn62">
<p><a name="_ftn62"></a> <i>Id.</i></p>
</div>
<div id="ftn63">
<p><a name="_ftn63"></a> <i>Id.</i></p>
</div>
<div id="ftn64">
<p><a name="_ftn64"></a> <i>Id.</i></p>
</div>
<div id="ftn65">
<p><a name="_ftn65"></a> <i>Supra</i> note 20, Galanter.</p>
</div>
<div id="ftn66">
<p><a name="_ftn66"></a> See The Hindu Marriage Act, 1955, Section 7.</p>
</div>
<div id="ftn67">
<p style="text-align: justify; "><a name="_ftn67"></a> Saroj Rani v. Sudarshan Kumar Chadda, AIR 1984 SC 1562 (reflected the importance accorded by classical Hindu law to marital stability); M Govindaraju v. K Munisami Goundu 1996 SCALE (6) 13(The Supreme Court looked to ancient Shudra custom to adjudicate on a matter of adoption); Rajkumar Patni v. Manorama Patni, II (2000) DMC 702 (The Madhya Pradesh High Court, relied on the definition of Stridhan by Manu.).</p>
</div>
<div id="ftn68">
<p><a name="_ftn68"></a> <i>Supra</i> note 8, Acharya & Marda.</p>
</div>
<div id="ftn69">
<p><a name="_ftn69"></a> Semayne v. Gresham, 77 Eng. Rep. 194, 195; 5 Co. Rep. 91, 195 (K.B. 1604).</p>
</div>
<div id="ftn70">
<p style="text-align: justify; "><a name="_ftn70"></a> As cited in Julius Jolly, The Minor Law Books 164 (1889), ("A householder's house and field are considered as the two fundamentals of his existence. Therefore let not the king upset either of them; for that is the root of the householders").</p>
</div>
<div id="ftn71">
<p style="text-align: justify; "><a name="_ftn71"></a> Manmath Nath Dutt, The Dharamshastra - Hindu Religious Codes, Volume 1, 103 (1978) (Yajnawalkya Samhita, Chapter II 235-236: "He…who opens the doors of a closed house [without the permission of the master]…should be punished with fifty panas. Such is the law.").</p>
</div>
<div id="ftn72">
<p style="text-align: justify; "><a name="_ftn72"></a> L.N. Rangarajan, Kautalya: The Arthashastra 371 (1992) ("O be built at a suitable distance from the neighbours property so as not to cause inconvenience to the neighbour").</p>
</div>
<div id="ftn73">
<p style="text-align: justify; "><a name="_ftn73"></a> <i>Id</i> ., ("…doors and windows shall be made so as not to cause annoyance by facing a neighbour's door or window directly").</p>
</div>
<div id="ftn74">
<p style="text-align: justify; "><a name="_ftn74"></a> <i>Supra </i> note 72, Rangarajan, ("when the house is occupied the doors and windows shall be suitably covered").</p>
</div>
<div id="ftn75">
<p><a name="_ftn75"></a> <i> Id.</i>, 376.</p>
</div>
<div id="ftn76">
<p><a name="_ftn76"></a> See Manusmriti, Chapter IV, 201-202.</p>
</div>
<div id="ftn77">
<p style="text-align: justify; "><a name="_ftn77"></a> <i>Supra </i> note 71, Dutt, 27 (Yajnawalkya Samhita, Chapter I , 160: "One should avoid the bed, seat, garden-house and the conveyance belonging to another person.").</p>
</div>
<div id="ftn78">
<p><a name="_ftn78"></a> <i>Supra </i> note 71, Dutt, 89 (Yajnawalkya Samhita, Chapter II, 146).</p>
</div>
<div id="ftn79">
<p><a name="_ftn79"></a> Manusmriti, Chapter IX, 194.</p>
</div>
<div id="ftn80">
<p><a name="_ftn80"></a> <i>Supra </i> note 71, Dutt Volume 2, 276 (Angiras Samhita, Chapter I, 71).</p>
</div>
<div id="ftn81">
<p><a name="_ftn81"></a> Samuel D. Warren & Louis D. Brandeis, <i>The Right to Privacy</i>, Harvard Law Review, Vol. IV, December 15, 1890, No.5.</p>
</div>
<div id="ftn82">
<p><a name="_ftn82"></a> <i>Id.</i></p>
</div>
<div id="ftn83">
<p style="text-align: justify; "><a name="_ftn83"></a> Manusmriti, Chapter IV, 258; <i>Supra </i>note 71, Dutt, 134 (Yajnawalkya Samhita Chapter III, 111: "Having withdrawn the mind, understanding, retentive faculty and the senses from all their objects, the soul, the lord…should be meditated upon.").</p>
</div>
<div id="ftn84">
<p><a name="_ftn84"></a> Manu Chapter VI, 44.</p>
</div>
<div id="ftn85">
<p style="text-align: justify; "><a name="_ftn85"></a> <i>Supra </i> note 71, Dutt, 186 (Harita Chapter VII, 6: "Situated in a solitary place with a concentrated mind, he should, till death mediate on the <i>atman</i>, that is situated both in the mind and the external world… ").</p>
</div>
<div id="ftn86">
<p><a name="_ftn86"></a> <i>Supra </i> note 72, Rangarajan, (Arthashastra, 2.2.2).</p>
</div>
<div id="ftn87">
<p><a name="_ftn87"></a> Supra note72, Rangarajan, (Arthashastra 3.16.33-36).</p>
</div>
<div id="ftn88">
<p><a name="_ftn88"></a> Manusmriti IX, 84</p>
</div>
<div id="ftn89">
<p><a name="_ftn89"></a> <i>Supra </i> note 71, Dutt, Volume 2, 350 (Samvarta Samhita,163).</p>
</div>
<div id="ftn90">
<p><a name="_ftn90"></a> <i>Supra</i> note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 291).</p>
</div>
<div id="ftn91">
<p><a name="_ftn91"></a> <i>Supra</i> note 71, Dutt, Volume 1, 113 (Yajnawalkya Samhita, Chapter II, 294).</p>
</div>
<div id="ftn92">
<p><a name="_ftn92"></a> <i>Supra </i> note 72, Ranjarajan (Arthashastra 2.27.14).</p>
</div>
<div id="ftn93">
<p><a name="_ftn93"></a> Supra note 72, Rangarajan (Arthashastra 4.13.38).</p>
</div>
<div id="ftn94">
<p><a name="_ftn94"></a> Manusmriti, X, 62</p>
</div>
<div id="ftn95">
<p><a name="_ftn95"></a> Manusmriti Part VII, <i>Supra </i>note 101, Rangarajan (Arthashastra 1.15.2-5, 1.15.13-17).</p>
</div>
<div id="ftn96">
<p style="text-align: justify; "><a name="_ftn96"></a> <i>Supra </i> note 72, Rangarajan (Arthashastra 1.15.2-5 : The scrutiny of governance related affairs was take place in a secluded and well-guarded spot, where it could not be overheard. No unauthorised person was allowed to approach these meetings.).</p>
</div>
<div id="ftn97">
<p style="text-align: justify; "><a name="_ftn97"></a> <i>Supra </i> note 72, Rangarajan (Arthashastra 1.15.13-17: "…Only those who have to implement it should know when the work is begun or when it has been completed.").</p>
</div>
<div id="ftn98">
<p><a name="_ftn98"></a> <i>Supra</i> note 72, Rangarajan.</p>
</div>
<div id="ftn99">
<p><a name="_ftn99"></a> <i>Supra</i> note 71, Dutt, Volume 1, 112 (Yajnawalkya Samhita, Chapter II, 292).</p>
</div>
<div id="ftn100">
<p><a name="_ftn100"></a> <i>Supra </i> note 71, Dutt, Volume 4, 919 (Vishnu Samhita, Chapter LII, 16).</p>
</div>
</div>
<p>
For more details visit <a href='http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law'>http://editors.cis-india.org/internet-governance/blog/loading-constructs-of-privacy-within-classical-hindu-law</a>
</p>
No publisherAshna Ashesh and Bhairav AcharyaFeaturedHomepageInternet GovernancePrivacy2015-01-01T13:56:04ZBlog EntryAvailability and Accessibility of Government Information in Public Domain
http://editors.cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain
<b>The information provided on most Government websites such as Acts, notifications, rules, orders, minutes of meetings and consultations, etc. is usually in the form of electronic documents. However, these lack authenticity and accessibility and cannot be (text) searched., This policy brief identifies the problem areas with the current work flow being used to publish documents and proposes suitable modifications to make them easy to locate, authentic and accessible.</b>
<p style="text-align: justify; ">Prepared by Sunil Abraham, Nirmita Narasimhan, Beliappa, and Anandhi Viswanathan and with inputs from Dipendra Manocha, Saksham, and Deepak Maheshwari, Symantec. Download the text as<b> <a href="http://editors.cis-india.org/accessibility/blog/policy-brief-availability-accessibility-govt-information-public-domain.pdf" class="external-link">PDF here</a></b>. (96 Kb)</p>
<hr />
<p style="text-align: justify; "><b>Problem Statement</b>: The information published on most government websites exist in the form of document files [including but not limited to the Acts, Rules and Regulations, Government Orders and Notifications, Consultation Papers, Reports etc.] which, even when published, more often than not lack authenticity and accessibility and cannot be (text) searched.</p>
<p style="text-align: justify; ">Analysis: The current workflow towards publishing documents on government websites is broadly as follows:</p>
<ol style="text-align: justify; ">
<li>The document is born digital – that means it is created on a computer.</li>
<li>The document is printed.</li>
<li>The document is stamped with the official seal and signed in ink by the authorized person(s).</li>
<li>The paper document is scanned.</li>
<li>The scanned image is converted into a PDF file.</li>
<li>The document is uploaded on the website and thereby published in the public domain.</li>
</ol>
<p style="text-align: justify; ">In fact, at times, even gazette notifications and other printed documents are also scanned as images.</p>
<p style="text-align: justify; ">This approach has numerous problems, including the following:</p>
<ol style="text-align: justify; ">
<li>First and foremost, such a practice is against the letter and spirit of Section 4 (1) (a) of the Right to Information Act, 2005.<a href="#fn1" name="fr1">[1] </a>that inter alia, mandates every public authority to “maintain all its records duly catalogued and indexed in a manner and form which facilitates the right to information under this Act and ensure that all records that are appropriate to be computerised are, within a reasonable time and subject to availability of resources, computerised and connected through a network all over the country on different systems so that access to such records is facilitated”.</li>
<li>This does not realize the enabling provision of the Information Technology Act, 2000<a href="#fn2" name="fr2">[2]</a> which gives legal sanctity to digital signatures. The digital image of a physical signature is not a digital signature in the eye of the law, though at times it is mistakenly believed to be so.</li>
<li>This does not address the problem of repudiation. That means a government official can say “I didn't sign that document” and there is no way to tell whether what he or she is saying is true. One of the key features of digital signatures is non-repudiability.</li>
<li>Scanned images of printed text cannot be searched for specific text (character, word or phrase) even by people without disabilities but for people with disabilities, the documents become totally inaccessible since the accessibility software cannot parse such scanned images – against the underlying tenets and objectives of the National Universal Electronic Accessibility Policy 2013.<a href="#fn3" name="fr3">[3] </a></li>
<li>As an extension, content of such documents cannot be indexed by search engines (such as Google, Bing and Raftaar, etc.) and hence, unlikely to be located even if technically the same are in the public domain.</li>
</ol>
<p style="text-align: justify; "><b>Proposed Solution</b>: The following work flow is proposed for publishing documents electronically on government websites:</p>
<ol style="text-align: justify; ">
<li>The document is born digital by preparing it in or through a computer system. Documents in Indian languages should be produced using Unicode based fonts.</li>
<li>The government official authorized to sign the same, must sign it digitally.</li>
<li>The document is uploaded in an open standard based format such as EPUB using a content management system and made available on the website such that it is available, accessible, indexable and searchable.</li>
</ol>
<p style="text-align: justify; ">This will ensure democratization of information in its truest sense – making available information to the public at large and ensuring that it can be easily located and remains accessible to one and all.</p>
<p style="text-align: justify; ">The process of formatting should be standardized in such a way that semantics (such as heading styles, lists and tables) can be added to the text of the document. The Web Style Guide provides information on good practices for creating well-structured documents:</p>
<p style="text-align: justify; ">Standardizing the formatting process by creating different templates for different types of documents will ensure uniform accessibility of the documents as well as provide a standard look and feel across government documents.</p>
<p style="text-align: justify; ">India became a global pioneer by making the legal provision for computerised, indexed and duly catalogued public records. It is high time that India takes the lead by living up to the legislative intent under the Right to Information Act, Information Technology Act and the National University of Educational Planning and Administration, and thereby establishes a global best practice.</p>
<p style="text-align: justify; ">Admittedly, legacy documents should also be converted electronically to accessible formats though before such a rendering, due editorial oversight may be necessary along with use of technologies such as Optical Character Recognition (OCR).</p>
<hr />
<p style="text-align: justify; ">[<a href="#fr1" name="fn1">1</a>]. Government of India. The Right to Information Act, 2005. No. 22 of 2005. Retrieved on November 30, 2014 from <a class="external-link" href="http://rti.gov.in/webactrti.htm">http://rti.gov.in/webactrti.htm</a>.</p>
<p style="text-align: justify; ">[<a href="#fr2" name="fn2">2</a>]. Government of India. The Information Technology Act, 2000. No. 21 of 2000. Retrieved on November 30, 2014 from <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf">http://deity.gov.in/sites/upload_files/dit/files/downloads/itact2000/itbill2000.pdf</a></p>
<p style="text-align: justify; ">[<a href="#fr3" name="fn3">3</a>]. Government of India. National Policy on Universal Electronic Accessibility. 2013. Retrieved on November 30, 2014 from <a class="external-link" href="http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf">http://deity.gov.in/sites/upload_files/dit/files/National Policy on Universal Electronics(1).pdf</a></p>
<p>
For more details visit <a href='http://editors.cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain'>http://editors.cis-india.org/accessibility/blog/availability-and-accessibility-of-government-information-in-public-domain</a>
</p>
No publishersunilGovernment InformationAccessibilityFeaturedDigitisationHomepage2014-12-30T01:25:12ZBlog Entry