It has been an explosive opening quarter for investments in early stage ventures. The information technology sector alone has attracted a whopping US$612 million of the over US$1 billion reported investments from January to March, 2015. Indeed, this must be music to the ears of the technocrats behind the Digital India (DI) project. The DI project was launched with much fanfare and an eye popping budgetary overlay of Rupees One lakh crores (about US$16 billion) in August 2014. Since then, the Department of Electronics and Information Technology (DeitY), the coordinator for the DI project, has published draft policies on adoption of Open source Software (OSS) for Government of India and the policy on Internet of Things (IoT). DeitY’s efforts have to be commended for setting out the Government’s vision and objectives in these policy documents. However, on closer inspection, these policy documents fail to address certain key aspects that may preclude the realization of the DI dream.
The DI vision calls for an eKranti for the electronic delivery of services. The OSS adoption policy mandates government agencies to select solutions based on OSS for the electronic delivery of services to minimize costs. Software service providers are required to justify the use of proprietary code which can only be adopted when there is an urgent or strategic need. By naively equating OSS with low costs, the OSS adoption policy has conflated software copyright issues with costs in developing software solutions.
Open Source Software generally refers to software that is distributed along with a copyright license to use, modify and further distribute the software. The Open Source Initiative recognizes over 60 types of OSS licenses. Some OSS licenses require any changes to the source code to be re-distributed or provided back to the OSS community. Others allow the owner of the modified source code to retain proprietorship in the modified source code.
Complex e-governance solutions can rarely be implemented using readily available OSS modules alone. Even if this is possible, typically, modules with different OSS licenses may have to be used within a solution. However, in most instances hybrid solutions using OSS and proprietary code would have to be implemented. A thorough review of the solution would have to be undertaken to determine the extent of compatibility of the terms of the OSS licenses as well as the proprietary code owners’ rights. Violating the terms of the OSS licenses or the owners’ rights could result in copyright infringement. Cost savings from using stock OSS modules may be offset in legal fees associated with such reviews.
The OSS adoption policy fails to recognize that, at times, proprietary solutions may well be the less expensive option. Moreover, free distribution of source code of e-governance solutions may make the platform vulnerable to cyber attacks. Adequate safeguards must be put in place to secure private and confidential information of citizens using the e-governance platforms.
The DI project also envisions empowering every citizen in a safe and secure cyberspace. The exponential growth of internet-connected devices is expected to deliver services in real time. The DeitY, through the draft policy on IoT, seeks to develop a connected, secure, and smart IoT-based system for the benefit of our society and the economy.
The draft IoT policy seeks to create a US$15 billion IoT industry in India on the back of programs such as the Smart Cities initiative and the DI project. The IoT policy makes all the right noises with respect to multi-stakeholder participation to achieve a “value up and cost down” goal. The policy also sets out several mechanisms for providing incentives for nurturing and scaling up the IoT industry. Other commendable features of the policy include setting up a nodal organization for IoT standardization; providing technical and financial assistance for patenting and standards creation related to IoT technologies; and assisting industry in the commercialization of IoT products.
While the DeitY aggressively promotes the DI project and the associated policy framework, other governmental agencies should proactively integrate their departmental policies to further common goals. In fact, the draft National Intellectual Property Rights (IPR) policy released in December 2014 by the Department of Industrial Policy and Promotion (DIPP) seeks to integrate IP with the Make in India and Digital India initiatives. The draft IPR policy highlights the government’s commitment to a “strong, balanced, predictable, and transparent IP regime.”
However, this is sadly in contrast to the Search and Examination Guidelines issued by the Indian Patent Office (under the DIPP) in February 2015. Specifically, the search and examination guidelines do little to clarify the scope of protection afforded to computer-related inventions. The sections related to computer-related inventions in the search and examination guidelines are a mere repetition of draft guidelines issued as early as June 2013. Despite several rounds of stakeholder meetings and written submissions, the Patent Office has failed to provide a logical and cohesive framework to determine patent eligible subject matter for computer-related inventions. While other countries like the United States, Canada, etc., are also grappling with the issue of delineating the boundaries of what is patentable vs. mere fundamental principles, the European Patent Office (EPO) seems to have evolved a somewhat settled examination framework. Perhaps, the Indian Patent Office could benefit from procedures adopted by the EPO.
There is no doubt that the government is keen on leveraging internet-based technologies to transform India into a digitally empowered society and knowledge economy. To accomplish this, we need clear, transparent and reliable procedures in place so that companies can make informed decisions about incurring IP related expenses. In the meantime, technology poster children like Flipkart, Zipdial and Druva will continue to get incorporated outside India to leverage their IP and to improve their valuations.
While the initiatives of DeitY to implement the DI project are laudable, much needs to be done to develop a cohesive policy platform to realize the dream of Digital India.
[The author is Director, IPR Practice, Lakshmikumaran & Sridharan, New Delhi]