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All Posts | Feb 21,2018

[Press release] India needs to challenge narratives that claim data protection will stifle innovation

In a round table discussion hosted by SFLC.in, Mouthshut.com, IIT Bombay and Ananta Aspen Centre yesterday, several law and technology experts from industry, civil society, and academia, discussed how India’s data protection law should shape up. There was a good representation from the industry with representatives of Reliance Jio, DCB
Bank, TCS and Fintech participating in the discussion.

This closed-door discussion under the Chatham House Rule covered the key tenets and frameworks to be included in a future law that tackles data protection while safeguarding the right to privacy of the people of India. Thoughts and concerns were exchanged on how the masses, who are bound to be compliant with government laws and norms of private companies, are effectively forced to give up a lot of their personal data. Many participants highlighted the need for clearer regulatory frameworks overseeing the technology industry. Simplification and standardisation of terms and conditions were flagged as essential steps in engaging a customer to make an informed consent. The issue of informed consent was debated with participants divided on the practicality of shifting the onus of a decision to private citizens and individuals who may not always have the time, patience or ability to comprehend the key issues at stake.

Many raised concerns on the fact India currently has a massive possibility of circumventing legal obligations and accountability principles by both state and non-state actors, . The lack of a clear data protection framework also creates other problems like allowing service providers to get away with inadequate responses to data breaches. Most participants agreed that a policy of no harm should be followed rigorously by the private sector keeping the interest of the individual consumer at the forefront.

It was pointed out that the popular narrative against strict data security is “If you bring regulations about data protection, companies will not be able to innovate.” The discussion brought forth divided views on the issue of data being collected and used in the name of innovation. The consensus among the participants was that we should move away from
advertising-innovation and focus on innovation for personal privacy.

The round-table discussion concluded with discussions on GDPR (General Data Protection Regulation) followed in the EU and the extent to which its principles may be imported into India. Focusing specifically on extra-territorial applicability clause of the GDPR, most discussants agreed that if a data controller or processor is offering goods and services or monitoring the behaviour of data subjects, they should fall under the purview on Indian jurisdiction, be it an Indian provider or foreign company.

Organizing partners

SFLC.in

SFLC.in is a donor-supported legal services organisation that brings together lawyers, policy analysts, technologists, and students to protect freedom in the digital world. SFLC.in promotes innovation and open access to knowledge by helping developers make great Free and Open Source Software, protect privacy and civil liberties for citizens in the digital world by educating and providing free legal advice and help policy makers make informed and just decisions with
the use and adoption of technology.
For more information, please visit http://sflc.in

Ananta Aspen Centre

An independent organization, Ananta Centre is registered under the Indian Trust Act. It focuses on leadership development and encourages frank and open dialogue on the most important issues facing Indian society, to help foster its transformation. The Centre also engages civil society, business, governments and other key stake – holders on issues of importance to India's development, foreign policy, strategic affairs and national security. The Centre serves as a convening body for exchange of ideas, broadening perspectives and enhancing capacity to create sustainable solutions on a wide variety of issues.

MouthShut.com

MouthShut.com is a meeting place for consumers to exchange ideas, opinions and feedback on products they have used or are considering buying. MouthShut.com serves the critical mission of helping consumers make the most informed decision based on feedback of peers and other consumers like them.It gives users the opportunity to exchange ideas, thoughts, and create buzz about brands and products. MouthShut.com facilitates brands and brand managers to gain real-time direct consumer insights, study consumer preferences, and in turn shape their marketing approach. MouthShut.com has earned the reputation of being a vital tool for every marketer’s handbook, influencing most product strategies and communication plans. Started as a simple review interface, MouthShut.com has morphed into a comprehensive platform with more than 3 6 million registered users and millions of reviews on hundreds of thousands of products. It gives users the opportunity to connect with other like-minded individuals, exchange ideas, thoughts, and create buzz about brands and products.

IIT Bombay

Established in 1958, the second of its kind, IIT Bombay was the first to be set up with foreign assistance. The funds from UNESCO came as Roubles from the then Soviet Union. In 1961 Parliament decreed the IITs as ‘Institutes of National Importance'. Since then, IITB has grown from strength to strength to emerge as one of the top technical universities in the world. The institute is recognised worldwide as a leader in the field of engineering education and research. Reputed for the outstanding calibre of students graduating from its undergraduate and postgraduate programmes, the institute attracts the best students from the country for its bachelor's, master's and doctoral programmes. Research and academic programmes at IIT Bombay are driven by an outstanding faculty, many of whom are reputed for their research
contributions internationally.

All Posts | Jan 06,2016

SFLC.in At Global IP Congress 2015

SFLC.in was represented on two of the panels on Global IP Congress 2015 held at National Law School, New Delhi between 15th and 17th of December 2015.

Panel on Collaborative Innovations - 16 December 2015

The diverse panel that represented the publishing industry, free software industry and Wikipedia as the knowledge repository, began with talking about their experiences as a part of the group that went beyond the traditional structure of copyrights and made their material available with a license that was open to further development. The panel consisted of Asaf Bardov, head of Wikimedia Foundation, Manisha Choudhary, Editorial head of Pratham Books, Sunil Mohan, developer of Freedom Box and Mishi Choudhary, Legal Director, Software Freedom Law Centre as the chair. The panel began with initial comments from the panelists about their experiences about how the copyright law was always about collaborative innovations and not only the enrichment of the publishers. Asaf Bardov, head of the Wikimedia Foundation, said that Wikimedia was working on a sister project, WikiData which will be a huge repository of structured data. One could ask very specific questions in that repository that may otherwise not be possible in other search engines. Highlighting the importance of community in Wikipedia, Asaf highlighted how the core of their organization were the volunteers and it was the community of volunteers that created Wikipedia, and not vice versa. The volunteers helped re-licensing material and approached people to encourage them to use creative common licenses. Thanks to the re-licensing, Wikimedia and WikiCommons has a repository of 25 million re-usable material. Manisha Choudhary, the editorial dead of Pratham Books talked about the interesting perspective of working in a not for profit publishing industry. Pratham Books, publishes books under CC-BY licenses and Ms. Choudhary pointed out that Pratham encourages authors to publish books under creative common licenses and it was possible in their experience to multiply the efforts of non profit publishing industry through CC-BY licenses. She mentioned that Pratham has a new initiative, ‘Story Weaver’, an online portal where people can upload children’s stories that are readily downloadable and can be translated by people on their will. This will help solve the reading crisis in the country, that has emerged due to a lack of books for kids to read in their mother tongue. Manisha believed that creative ideas can never be held hostage to intellectual property. Sunil Mohan, a software developer credited for his work on the FreedomBox, which is a simple device for reclaiming privacy and anonymity on the itnernet. He gave a short presentation on the working of FreedomBox and its heightened need at this hour. Freedom Box has a simple user interface and interaction that can be used as a smartphone for server application. He mentioned that this device is available for the public and supports many platforms, one can bring in an old computer and it can work as a server. Sunil exclaimed that the idea behind this device is to take back computing in our own hands from Google and Facebook, who do not respect anyone's privacy. Highlighting the importance of community, he remarked, resonating true for the panel's point of view that the projects that are in favor of the public, and alternative soluntions can only be built by the community.

Panel on "Software Patents: Stymieing Innovation for 25+ years" - 17 December 2015

The discussion was chaired by Mishi Choudhary, Executive Director, SFLC India. The panel featured eminent personalities from diverse backgrounds; namely Peter Maybarduk, Director of Public Citizen’s Access to Medicine Program, Rajiv Kr. Choudhary, a patent agent and lawyer practicing both in the US and India and SpicyIP author, Biju Nair of the Open Invention Network (OIN), Sharad Sharma, co-founder of iSpirit and a well-respected tech angel investor, and Shagun Belwal, Counsel at SFLC.in. Suffice to say, the panel was well represented from most stakeholders in the software patent industry. Mishi Choudhary sparked the debate by establishing ground zero of the current software patent regime in India. She cited a PwC empirical report that reflected the dark realities of patent litigation, highlighting the increasing amounts of damages awarded to NPEs (Non-practising entities), so much so that NPEs are awarded 4.5x the damages than PEs in the US. In this context, she commented on Section 3(k) of the Indian Patent Act and the 2015 guidelines to the effect that India is a much better environment for software freedom to prevail. This statutory provision ensures a clear impetus to innovate by protecting developers from getting out-casted. However, in light of the recent 2015 guidelines, she expressed concerns about these creating a method to circumvent the protection offered by statute for patenting computer programs 'per se'. Peter Maybarduk along with his colleague Burcu Kilic of Public Citizen’s Access to Medicine program voiced their concerns about the current pharma regime, which is reducing the accessibility to medicines. Big pharma giants, who are holders of important medicinal patents, raise the prices to an unaffordable level. Peter used the example of pharma giant Abbott, responsible for the AIDS medication, which jacked up the prices of it’s booster drug and also tried to evergreen that patent due to a lack of suitable alternatives in the market. India being a generic-heavy country is a haven for producing cheaper variants of patented medicines. Coming to the nexus between pharma and software, Peter advocated the need to harness the efforts of software freedom activists and those who oppose the current pharma patent regime. He opined that modern day medicine uses software components in the R&D stage and thus is very crucial to the development of the final product. Hence, they are symbiotic and not disjunctive, as most of us perceive them to be. Considering that pharma giants are not inclined towards creating drugs for poor population, he also put forth an important question before the panel that whether innovation is going to target the actual medical needs of the population? Rajiv Kr. Choudhary, a well respected patent litigator and author, commented on the need to have differing time limits for software patents when compared to other patentable subject matter due to the low shelf life of the former. He remarked that where the lifetime of a software is 5 years and that of a patent He corroborated his views with the case of GSM patents which are expiring now in 2015 after enjoying their 20 years of protection, despite being obsolete for practically most of the term of the patent due to the rise of better, more usable tech. In this light, he compared the mobile industry with the semiconductor industry in that both products are of a developmental in nature and they are bound to be replaced in a short period of time by their improved versions. This calls for sui generis protection scheme, which caters to the volatile nature of software patents. Also, he claimed that granting the same patent duration to tech has stifled innovation in the tech industry. Coming back to the GSM example, the mobile industry hasn’t reinvented the wheel, since they have just come up with better versions, but the very basic structure is still the original GSM platform. Hence the patentees are in a position to exploit the market and charge royalties for any GSM-based product, which is almost every mobile now. He also expressed his views on the licensing of patents. According to him, portfolio licensing, which is basically a generalized licensing technique, isn’t beneficial from the licensee’s point of view. The best way to go about it is to adopt a patent-by-patent approach and treat each patent on its merit independently. Biju Nair represented the Open Invention Network (OIN), which concerns itself with patents developed using only the Linux platform. It has a diverse portfolio of companies, startups etc. with differing patenting regimes, but the one thing they all have in common is that they all use the Linux platform. They have accumulated all patents built on Linux to create a patent pool, which is basically a hack to the problems created by patent thicket cross-licensing, fencing etc., so as to encourage any new developer to freely develop their software without fear of stepping on any toes. Their USP is that all the big players have come on board and the members of OIN are free to use each others patents without having to pay any royalties. This encourages the smaller developers to innovate freely without fearing the big players and they all pool in their resources and enjoy mutual benefits. It was repeatedly insisted by Biju that there are no costs, explicit or hidden behind running this network, nor are there any membership charges. Therefore, any patent holder willing to join the movement can do so for free and feel empowered in the company of their 1000+ patents and 1840 licensees. Shagun Belwal of Software Freedom Law Centre, India brought forward evidence to highlight the low percentage of Indian entities winning patent grants as opposed to the majority foreign MNCs which still dominate the Indian patent scene. For an emperical study being conducted by SFLC.in on software patents, the data for granting of patents to Indian entities in the year 2009-10 is 3.55%, whereas for 2010-11 is 3.76%. She also mentioned that for the years 2012-15, over 95% of the software patents granted in India were to foreign entities. The left over 5% had been granted to Samsung India Pvt. Ltd. Indian entities apply as much, if not more than the foreign entities and still there is such a huge grants gap between the two. The Indian scenario is mostly characterized by small-scale developers who have been systematically muscled out by US based giants like Microsoft in India itself. She put the current state of software patenting in context by describing in detail the history of the contentious 3(k) provision and the many modifications made to it since its inception. Sharad Sharma dons many hats as the co-founder of iSpirit- a non-profit organization, being a R&D visionary, and technology angel investor. He took a new direction in this discussion by talking about India’s burgeoning software developer scene and the bright future of startups like Uber who have benefitted from public 'building blocks'. In response to Shagun’s report he remarked that the low percentage of Indian patentees was not an accurate reflection of the inventive capabilities of Indian R&D entities. He used the example of the popular accounting software Tally, developed by Indians, to indicate the mentality of Indian developers to generate community good rather than guard their work and allow selective use through barriers of licensing and damages. He heavily criticized the centralized nature of R&D in the world. Lastly, he suggested that real change can only be brought about by community initiatives like the development of the SIP technology where individuals come together in their own way create simplistic technology and deliberately did not patent it. SIP is now used to make every call on modern day mobiles. The panel concluded its discussion by closing comments made from Mishi. She posited the Chinese treatment of patents as food for thought for our eminent panelists and guest viewers.