by February 10, 2005 0 comments

E-governance is often considered as a seamless assembling of the government, citizens and governance processes through the medium of technology. Today the vistas of e-governance are very evident-from modest websites to ambitious RFID tracking of files and SMS based response to citizens. Most project managers, even at the cost of being branded strict task-masters agree that e-governance is still all about managing people, technology itself being secondary. However, this is only the forest view. If you zoom in, you will see many, many trees and the problems they pose. One of them is the intellectual property rights issues related to e-governance. 

Ironically, most governments in our country seem ill prepared to manage this aspect. This is not surprising, as even law-making related to IPR in IT has been an object of criticism worldwide. In a majority of countries, including India, copyright and patent laws (the latter more recently) have been suitably amended to cover IT. This, according to John Perry Barlow, an outspoken critic of copyrights, is like revising real estate law to cover allocation of the broadcasting spectrum! It is a strong contention that the intellectual property law cannot be patched, retrofitted or expanded to contain digitized expression. Thus, given the shaky footing that we are in, it is not surprising that governments get entangled in IT-related IPR issues in e-governance. Perhaps theses issues are only emerging gradually, and there could be enough and more pots boiling in many a project.

Dr Achuthsankar S. Nair

Former Director of C-DIT, is currently with the Department of Computer Science, University of Kerala

There have been projects in which the IPR aspect has been ignored, while involving various agencies, which throw up problems at a later stage. There have been instances of government departments in Kerala entrusting private agencies to run websites for a fixed term, where the work contract was silent on IPR ownership. After the term of the contract, when the agencies were replaced, they simply removed all the files from the servers and claimed IPR over the content. 

By commonsense, nobody should be able to claim rights over governmental information meant for public dissemination, whether creative or not. Many may not be aware that there are special provisions in the copyright law in the case of government works. In case of dispute, these provisions come to the aid of the government. But it would be a lot easier to clear this out in the work contract itself, so that scope for litigation is avoided. 

Case Study: Continuity
KS Lakshminarayanan:
Chief Technical Adviser and General Manager (ITP & D) Elcot

We need to find enterprising ways to ensure that the political system understands and sustains the neutrality of technology. It is better to bring ownership to the new minister.
In 1999-2000, the Government of Tamil Nadu set up the SARI (Sustainable Access in Rural India), a project involving the government of Tamil Nadu, Narvard University, Ministry of IT and IIT Madras.
By 2001, a new government was in place and the name of the project was changed to RASI (Rural Access to Services through Internet). The concept and scope of the project remained the same.

Content is not the only bone of contention. There have been cases of claims over database structures. Software developers may claim copyright over them in an attempt to prevent replacing the agencies for whatever reason. 

The FRIENDS Software Controversy in Kerala is one of the most interesting case studies. See box for the story of what happened. 

Sometimes the traditional short-sighted penny-pinching style of project evaluation without analyzing long term dependencies and cost implications could lead to longer term problems and could even cripple your project.

Opinion: Measurement
Nirmaljeet Singh Kalsi
IAS: DIrector cum Secretary, DIT, Punjab and MD, Punjab Information and Communication Technology Corporation

For the measurement of success of any e-governance project, you need a balanced scorecard, which has the following factors:
– Given a choice, percentage of citizens adopting the e-service
– Perceived value for citizens 
– Self sustainability
– Integration of good governance factors in the service

Open source solutions have at one-time been looked upon as an option to wiggle out of IPR issues. These hopes have, at least for the time being, diminished considerably. IPR violation claims have been raised against Linux and recently a top Microsoft official warned Asian countries about becoming entangled in litigation if they adopt Linux for e-governance. Even for application software on Linux, IPR issues are still possible. And there, in addition to copyright issues on application software, the possibility of breaking the General Public Licence (GPL) also exists. In the open source world, there are many licensing models that vary widely from each other. So, it is important that you understand the license of the software you are choosing to use.

Opinion: Capability
MN Chopra: Managing Director, IRCTC

The bureaucracy is a huge pool of manpower consisting of competent, willing and talented persons. They just have to be allowed to perform. They can, and will, do as well as, and better than anyone, anywhere, anytime, every time.

IPR violations in software are extremely difficult to prove (and defend) except in trivial explicit cases. With the sluggish legal machinery that governments are often credited with, it is likely that they could be at the receiving end in litigations. So, extra care needs to be taken by those involved in egovernance projects to ensure that they do all in their power to avoid being caught by deft interpretations of the law.

There is a case of explicit laws to be enacted for clarifying IPR issues in e-governance. In the law-making front in IT, Peru has stood out as a glittering exception. In Bill no 1609 titled “Free Software in Public Administration” moved by Senor Juan Alberto Gonzalez, Congressman of Republic of Peru, an attempt is made to address the issues of free access to public information by citizens and permanence of public data from an e-governance perspective. Perhaps we need to at least amend our IPR laws in the light of emerging concerns, some of which might cripple e-governance initiatives.

Case Study: IPR issues

Dr Achuthsankar S. Nair

FRIENDS Integrated Citizen Service Centre-the prestigious e-governance project of the Government of Kerala, which has won laurels from all quarters-got entangled in an IPR muddle in 2002. FRIENDS is a single window system where citizens can effect remittances for various government services including electricity charges, water charges, vehicle taxes, and university fees. The Govt. of Kerala, Kerala State IT Mission (a body floated by the IT Department) and C-DIT (Centre for development of Imaging Technology, an autonomous center of Govt of Kerala which is involved in many e-governance projects) were dragged into a controversy over the IPR of FRIENDS software when a private agency made a claim on the IPR of the software. 

The controversy is related to the pilot phase of the FRIENDS project, done in 1999. The State IT mission entrusted the work of setting up FRIENDS centers, including creating the software, to C-DIT. During this phase, two private agencies (including a multinational software firm) were brought into this flagship e-governance project of Government of Kerala, without any formal written agreement, specifically stating the implications, ownerships and future costs and dependencies. All the ‘services’ were to be ‘free of cost’. Subsequently, the local agency, which was involved in the pilot project, was asked to customize the software when FRIENDS was replicated in all districts. While at the pilot stage there were no MOUs, in this second stage an MOU and specific work order were released with certain ambiguous reference to IPR. Later in 2002, when an alternative software, with full rights to C-DIT and no future strings attached was attempted to be made by C-DIT, it was stalled based on a criminal complaint that the new software was a copy of the original one. 

An officer from the India office of the multinational software monopoly issued a certificate in support of the private agency’s claim over the FRIENDS software.
Even though C-DIT had clarified that the FRIENDS software will be used only by the government to collect revenue for the various arms of the government, and the same being a government work, Government. of Kerala is the exclusive owner of the software and the IPR involved, litigations continued. The height to which the claims went to can be gauged by the fact that the private agency made a representation to the Kerala IT mission to blacklist C-DIT and hand over the running of the full FRIENDS project to them!

Incidentally, C-DIT has been directly running the FRIENDS project without direct or indirect involvement of any private agency since the controversy arose, and has been successfully modifying and expanding the FRIENDs software as per the directions of the Kerala State IT Mission. 

On 23rd February 2004, the Hon High Court of Kerala declared the FRIENDS software to be exclusive property of the Government of Kerala, in OP No. 9071 of 2003. The court held that a computer software developed for Government purposes will always be a Government work falling under Section 2(k) of the Copy Right Act, irrespective of whether the author is a contractor or subcontractor appointed by the Government directly or through any agency. 

However, the private agency has filed an appeal against the orders of the single bench . 

If there were sufficient IPR awareness in this instance, an explicit and comprehensive MOU in the first phase would have avoided litigation. The lesson to be learned is basic-there is nothing called a free lunch, especially when software IPR is involved.

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