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The ‘Digital India’ slogan has not been enough to pull the government out of its digital data doldrums. India’s rank in the Global Open Data Index, which ranks countries on openness across various sets of government data, dropped 15 places to No. 32 between 2015 and 2016. While some gains have been made in the implementation of the data.gov.in portal under the National Data Sharing and Accessibility Policy (“NDSAP”), these are fledgling in relation to the expectations and pace at which the enabling technology is growing. Besides obvious problems in the implementation mechanisms, the legal framework for open data in India deserves a relook.
Legal Framework for Open Data
As per the ‘open’ definition, Open Data is ‘data that can be freely used, re-used and redistributed by anyone – subject only, at most, to the requirement to attribute and sharealike.’
The National Data Sharing and Accessibility Policy of 2012 was introduced keeping in mind the government’s responsibility for transparency in governance under the Right to Information Act and its constitutional and international commitments, and applies to all ‘shareable data’ (as described by various departments) ‘created, generated, collected and archived’ by the government. The policy explicitly states that access to data under the policy would not be in violation of any law of the government of India. This policy has several limitations. Most glaringly, it is limited to ‘access’ to data. The exact scope of this access has not been described in the policy, and it is unclear as to whether or not the data can be freely used, re-used or redistributed, to qualify as open data. Secondly, the classification of what data should be shareable or not shareable is entirely discretionary with no apparent guidance or oversight. Thirdly, the NDSAP does not provide for open access in the sense of mandating that data should be accessible without registration or authentication requirements from the user. Fourthly, the NDSAP does not go far enough in encouraging open data in India, particularly among industry and civil society, restricting its scope to government data. Data.gov.in launched in collaboration with the United States Government, currently provides access to over 100,000 data sets collected by the government of India under the NDSAP. However, the terms of use for this data were unclear. Consequently, innovative end-uses of the open data were circumscribed by the legal uncertainty.
Much of the data published by governments is covered by copyright. As per Section 17(d) of the Copyright Act, the government is the first owner of copyright in all government works, which, as per Section 2(k), includes any work made or published by or under the direction or control of (i) the Government or any department of the Government; (ii) any legislature in India; (iii) any court, tribunal or other judicial authority in India. There is a narrow exception to this under Section 52(1)(q) of the Act, which allows the use of specific government works, such as laws and judgments.
While the Indian Supreme Court, in Eastern Book Company v. D.B. Modak, rejected the ‘sweat of the brow’ approach to originality, and moved towards requiring a ‘modicum of creativity’, arguably several original data sets and representations published by the government can, by default, be a ‘government work’ under the Copyright Act. There have been reports of organisations publishing government data receiving takedown notices from the Government.
To clarify the legal position on the use of government data, the government introduced the Open Data License (“ODL”) released in February of this year. Under the ODL, all users are given a ‘worldwide, royalty-free, non-exclusive license to use, adapt, publish (either in original, or in adapted and/or derivative forms), translate, display, add value, and create derivative works (including products and services), for all lawful commercial and non-commercial purposes, and for the duration of existence of such rights over the data or information’ for all data covered under the NDSAP. The ODL is an important step in resolving the issues under the NDSAP. However, the ODL too has several flaws, which need to be highlighted, starting from drafting, which ignored public comments to the insertion of problematic clauses into the license.
The ODL foists obligations on users, which should technically be the responsibility of the data provider (i.e. the government) regarding the legality of published data sets and whether or not they have been validly shared under the NDSAP. Further, the data limits any liability (and therefore accountability) of the data provider, for ensuring the integrity of such data. The scope of the data also appears to conflict with other policies like the Map Policy of India, and therefore, it is unclear whether geospatial data (a critical data source for many new applications) can be openly used (particularly since the Geospatial Information Bill indicates that the government seeks to heavily regulate this particular kind of data).
Teething Problems or Institutional Apathy?
India seems to be letting opportunity slip through its fingers. After taking up Open Data with much enthusiasm, progress is apparently faltering, not only stemming from issues with the legal framework, but an inconsistent and unenthusiastic approach to the issue from the Government and civil society. A recent article in The Ken points towards CAPTCHA’s, paywalls hindering accessibility to data, as well as non-machine readability of the data leading to a loss of integrity in its use, particularly for large scale data analysis. More recent initiatives of the government towards making data more available, like the ‘Open Maps’ initiative also seem to be failing to meet the high standards of Open Data or even the NDSAP and the ODL. The governmental apathy seems to be a part of a larger trend undermining openness and transparency of the Government of India
, such as the Government’s continuing use of ‘trade secrets’ as an excuse to deny access to information under the Right to Information Act. Recently, for example, as reported on this blog, the government denied information on GM Mustard field trials for biosafety research, under the same pretext of it being a ‘trade secret’ of the Government of India.
Open data is closely related to the concept of open innovation, a principle which describes how a freer exchange of ideas, information and technology between firms, individuals, academia and the government, can be used for innovation and growth, subverting a traditional view of innovation dependent on internal processes and proprietary information. A report by Mckinsey estimated that the use of open data in seven sectors alone could generate an additional 3 trillion dollars of value. The World Bank has documented thousands of instances of government data being utilized for innovative services in developing countries. If the government truly wants to foster an environment of innovation and creativity, it needs to look beyond merely the stronger protection of IP laws and start engaging with critical issues like ensuring the promise of the NDSAP and ODL.
