Following up on Prashant’s detailed coverage of certain commercial associations making representations to the US Trade Representative on its Special 301 Report, I looked into the representations made by prominent software and internet industry associations. Below, I summarise the India-specific recommendations of the following bodies – the Business Software Alliance (BSA), Internet Association and the International Intellectual Property Association (IIPA).
India Continues to be a ‘Piracy Priority’ for the Special 301 Lobbies
The business associations had little love for India in their submissions, with the BSA and IIPA specifically calling for India to continue to be on the ‘priority watch list’ in the USTR’s Special 301 Report, due to come out later this year, citing the unlicensed use of software and ‘piracy’ as major concerns.
While the inclusion does not by itself trigger any retaliation or statutory action affecting US-India Trade, countries in this category are subject to increased scrutiny and possible retaliatory trade action if found to be in breach of international agreements. The threat of retaliatory action is intended to force foreign jurisdictions to rectify identified deficiencies in their legal regimes. If the recommendations of these trade bodies are accepted, India would be on the Priority Watch List for the 28th year running.
Impending Internet Regulations Loom Large
A major fear across the submissions was the impending Personal Data Protection Bill. Nominally framed as a measure to increase privacy and data security, the submissions pointed out some aspects of the Bill which could affect cross-border data flow of internet businesses (and members of the alliances). The BSA specifically took issue with the PDP Bill’s data localisation categories as well as the RBI’s payment data storage regulations, while the Internet Association pointed out the possible expropriation of protected IP under the PDP Bill’s scheme for acquisition of ‘non-personal data’ for government use. The BSA was also concerned about India’s trade policy efforts at securing better deals on the taxation of digital products and the DPIIT’s Make In India procurement policies prioritising domestic software and hardware manufacturers.
The Internet Association additionally identified concerns relating to intermediary liability protections in India, however, it wrongly stated the present law by claiming that intermediaries were required to remove copyrighted information within 36 hours of a person notifying the intermediary. This is contrary to the present law which requires a government or judicial order for removal of any content.
BSA Lobbies for Stronger Patent Protections for Software
The BSA, in particular, expended significant effort deliberating on India’s patent regimes. It praised the Computer Related Inventions Guidelines, 2017 (which were recently invoked by the Delhi High Court) for expanding the scope of protection of software patents in India. Additionally, it claimed that its members would find it ‘impracticable’ to comply with the patent working requirements under the Patents Act under Form 27.
Overall, it appears that the digital industry bodies are not ecstatic about India’s proposed revamps to its data and internet governance regimes, with the focus for this year shifting to specific data governance concerns over the larger, more regular efforts and attempts to counter ‘piracy’ in India.