The Peninsula Foundation

Tag: Law

  • How Do We Make the Wheels of the Police and Criminal Justice System Run Faster?

    How Do We Make the Wheels of the Police and Criminal Justice System Run Faster?

    The system of law enforcement in India encourages illegality and checks it only when it is in the interest of the rulers.

    The end of April 2022 saw three significant news items about justice delivery in the nation.

    Attorney General K.K. Venugopal said that 4.8 crore cases are in the courts and it had become a hopeless situation since “… litigants’ fundamental right to speedy justice lay in tatters …”.

    The Chief Justice of India, at the conference of chief ministers and Chief Justices, said that courts are burdened since the executive and the legislature are not doing their job.

    Finally, Barpeta District Court Judge while granting bail to Gujarat MLA Jignesh Mevani castigated police functioning. He appealed to the high court to “prevent registration of false FIRs like the present one… Otherwise, our state will become a police state.” He suggested that policemen be required to wear body cameras and CCTV cameras installed in police vehicles to prevent fake encounters and registration of false cases.

    These three news items are interlinked. A large number of cases in the courts are a result of the lack of proper functioning of the executive, poorly drafted laws, and worse, their misuse. The Mevani case points to the registration of a false case. Anticipating that he may get bail, a false case was lodged in advance to arrest him as soon as he got bail.

    Clearly, politics was at play which ended up wasting the time of the judiciary and the executive. The case was perhaps meant to send a signal to other opponents of the ruling dispensation, and as the judge noted, it weakens the “hard earned democracy”.

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  • Does Facial Recognition Tech in Ukraine’s War Bring Killer Robots Nearer?

    Does Facial Recognition Tech in Ukraine’s War Bring Killer Robots Nearer?

    Clearview AI is offering its controversial tech to Ukraine for identifying enemy soldiers – while autonomous killing machines are on the rise

    Technology that can recognise the faces of enemy fighters is the latest thing to be deployed to the war theatre of Ukraine. This military use of artificial intelligence has all the markings of a further dystopian turn to what is already a brutal conflict.

    The US company Clearview AI has offered the Ukrainian government free use of its controversial facial recognition technology. It offered to uncover infiltrators – including Russian military personnel – combat misinformation, identify the dead and reunite refugees with their families.

    To date, media reports and statements from Ukrainian government officials have claimed that the use of Clearview’s tools has been limited to identifying dead Russian soldiers in order to inform their families as a courtesy. The Ukrainian military is also reportedly using Clearview to identify its own casualties.

    This contribution to the Ukrainian war effort should also afford the company a baptism of fire for its most important product. Battlefield deployment will offer the company the ultimate stress test and yield valuable data, instantly turning Clearview AI into a defence contractor – potentially a major one – and the tool into military technology.

    If the technology can be used to identify live as well as dead enemy soldiers, it could also be incorporated into systems that use automated decision-making to direct lethal force. This is not a remote possibility. Last year, the UN reported that an autonomous drone had killed people in Libya in 2020, and there are unconfirmed reports of autonomous weapons already being used in the Ukrainian theatre.

    Our concern is that hope that Ukraine will emerge victorious from what is a murderous war of aggression may cloud vision and judgement concerning the dangerous precedent set by the battlefield testing and refinement of facial-recognition technology, which could in the near future be integrated into autonomous killing machines.

    To be clear, this use is outside the remit of Clearview’s current support for the Ukrainian military; and to our knowledge Clearview has never expressed any intention for its technology to be used in such a manner. Nonetheless, we think there is real reason for concern when it comes to military and civilian use of privately owned facial-recognition technologies.

    Clearview insists that its tool should complement and not replace human decision-making. A good sentiment but a quaint one

    The promise of facial recognition in law enforcement and on the battlefield is to increase precision, lifting the proverbial fog of war with automated precise targeting, improving the efficiency of lethal force while sparing the lives of the ‘innocent’.

    But these systems bring their own problems. Misrecognition is an obvious one, and it remains a serious concern, including when identifying dead or wounded soldiers. Just as serious, though, is that lifting one fog makes another roll in. We worry that for the sake of efficiency, battlefield decisions with lethal consequences are likely to be increasingly ‘blackboxed’ – taken by a machine whose working and decisions are opaque even to its operator. If autonomous weapons systems incorporated privately owned technologies and databases, these decisions would inevitably be made, in part, by proprietary algorithms owned by the company.

    Clearview rightly insists that its tool should complement and not replace human decision-making. The company’s CEO also said in a statement shared with openDemocracy that everyone who has access to its technology “is trained on how to use it safely and responsibly”. A good sentiment but a quaint one. Prudence and safeguards such as this are bound to be quickly abandoned in the heat of battle.

    Clearview’s systems are already used by police and private security operations – they are common in US police departments, for instance. Criticism of such use has largely focused on bias and possible misidentification of targets, as well as over-reliance on the algorithm to make identifications – but the risk also runs the other way.

    The more precise the tool actually is, the more likely it will be incorporated into autonomous weapons systems that can be turned not only on invading armies but also on political opponents, members of specific ethnic groups, and so on. If anything, improving the reliability of the technology makes it all the more sinister and dangerous. This doesn’t just apply to privately owned technology, but also to efforts by states such as China to develop facial recognition tools for security use.

    Outside combat, too, the use of facial recognition AI in the Ukrainian war carries significant risks. When facial recognition is used in the EU for border control and migration purposes – and it is, widely – it is public authorities that are collecting the sensitive biomarker data essential to facial recognition, the data subject knows that it is happening and EU law strictly regulates the process. Clearview, by contrast, has already repeatedly fallen foul of the EU’s GDPR (General Data Protection Regulation) and has been heavily sanctioned by data security agencies in Italy and France.

    If privately owned facial recognition technologies are used to identify Ukrainian citizens within the EU, or in border zones, to offer them some form of protective status, a grey area would be established between military and civilian use within the EU itself. Any such facial recognition system would have to be used on civilian populations within the EU. A company like Clearview could promise to keep its civil and military databases separate, but this would need further regulation – and even then would pose the question as to how a single company can be entrusted with civil data which it can easily repurpose for military use. That is in fact what Clearview is already offering the Ukrainian government: it is building its military frontline recognition operation on civil data harvested from Russian social media records.

    Then there is the question of state power. Once out of the box, facial recognition may prove simply too tempting for European security agencies to put back. This has already been reported in the US where the members of the New York Police Department are reported to have used Clearview’s tool to circumvent data protection and privacy rules within the department and to have installed Clearview’s app on private devices in violation of NYPD policy.

    This is a particular risk with relation to the roll-out and testing in Ukraine. If Ukrainian accession to the European Union is fast-tracked, as many are arguing it should be, it will carry into the EU the use of Clearview’s AI as an established practice for military and potentially civilian use, both initially conceived without malice or intention of misuse, but setting what we think is a worrying precedent.

    The Russian invasion of Ukraine is extraordinary in its magnitude and brutality. But throwing caution to the wind is not a legitimate doctrine for the laws of war or the rules of engagement; this is particularly so when it comes to potent new technology. The defence of Ukraine may well involve tools and methods that, if normalised, will ultimately undermine the peace and security of European citizens at home and on future fronts. EU politicians should be wary of this. The EU must use whatever tools are at its disposal to bring an end to the conflict in Ukraine and to Russian aggression, but it must do so ensuring the rule of law and the protection of citizens.

    This article was published earlier in openDemocracy, and is republished under Creative Commons Licence. 

    Feature Image Credit: www.businessinsider.in

  • Bonded Labour in India: Prevalent, Yet Overlooked

    Bonded Labour in India: Prevalent, Yet Overlooked

    In 1976, India stood out as the first country in South Asia to enact legislation prohibiting bonded labour. However, the system has not been uprooted owing to the different barriers posed by socio-cultural norms and administrative and legislative incompetency. The country’s most vulnerable and disadvantaged sections of society are at risk of being trapped into such a form of modern slavery. The prevalence of this system over the decades necessitates the need to understand the root causes of the emergence of such bonded labour situations and why it is still prevalent in the country.

    Bonded labour in India

    The Bonded Labour System Abolition Act (1976) defines a bonded labour system as a relationship evolved out of a debtor-creditor agreement. It is identified as a form of forced labour where the debtor comes into an agreement, oral or written, with the creditor and receives a loan amount in exchange for his labour or that of his family members. The obligation need not just be an economic consideration such as a loan or an advance amount received from the creditor. People also become bonded with social, customary, hereditary or caste obligations and often agree to enter service with no wages or for nominal wages. The labourer finds it difficult to settle the debt amount as the provided wages are too low even to meet their basic sustenance needs. Eventually, they end up in the same form of labour again and again. Thus their choice to join such a system is out of distress or coercion to some extent. They may also be restricted from switching to another job or to ask for the provision of minimum wages given the conditions of the contract and the lack of awareness of their rights.

    Indebtedness is identified as a major trigger for people to join as bonded labour, especially migrants from poor rural households. However, the need for money arises out of the existing disadvantages in society that these communities are subjected to. Caste, unequal distribution of resources, increased dependence on agriculture, low levels of education and food insecurity pushes them into such unfree labour choices.

    We can identify that this system was prevalent in the country from the pre-colonial era characterised by class hierarchies. Such class hierarchies and high caste exploitations are continuing to function even in this democratic era and consequently, has pushed certain groups of the society to be economically weaker; weak in terms of assets, income and bargaining power. Globalisation and industrialisation have only resulted in the further exclusion of such groups of labour from mainstream jobs.  Indebtedness is identified as a major trigger for people to join as bonded labour, especially migrants from poor rural households. However, the need for money arises out of the existing disadvantages in society that these communities are subjected to. Caste, unequal distribution of resources, increased dependence on agriculture, low levels of education and food insecurity pushes them into such unfree labour choices. Owing to these social and economic factors, marginalised communities in the lower strata of the society, especially the women and children, are trapped in such a system.

    Over the years, the system of bonded labour has existed and evolved under different names and forms across India. Bonded labour arising out of traditionally accustomed social relations is one of the oldest forms and is still prevalent in the country. For example, the system of “jajamani” wherein the workers receive food grains in exchange for working as barbers and washermen for the upper caste. Labourers in agriculture, seasonal inter and intrastate migrants and child labour in informal sectors of brick kiln, rice mills, quarries, domestic work etc. are the other areas where debt bondage is currently more persistent. There has been a considerable shift from traditional debt bondage relation to aneo-bondage labour system among migrant workers. The former was characterised by an element of patronage amongst the considerable amount of exploitation. However the latter is at a higher tone of exploitation and eliminates patronage relations. This has made employers deny the responsibility of employee’s welfare and the labourers have lost the minimum livelihood security which they had secured under the patronage system. The neo-bondage system is further manipulated by the role of intermediaries.

    Thus, with structural transformation in the economy, the system of bonded labour has evolved into a much worse form of exploitation in the country and specifically marginal and backward communities are the main victims of this system.

    Interventions to abolish bonded labour

    Upon identifying the prevalence and exploitation of bonded labour in the pre-independence era, constitutional provisions prohibiting forced labour were assigned under Article 23. Under the Directive Principle of State Policy, Article 42 and 43 ensured fair and humane working conditions and living wages to workers.

    Post-independence, legislation against bonded labour was enacted at a regional level.  Orissa, Rajasthan and Kerala were the first states to enact state legislation against bonded labour.  In 1954, India ratified the International labour organization (ILO) Convention on forced labour (C029). Despite the constitutional provisions, regional and international interventions in bonded labour, construction and implementation of a uniform law took time.

    In 1976, the Bonded Labour System (Abolition) Act was enacted to abolish any form of bonded labour system arising out of debt, customary or hierarchical obligations. In brief, the act has identified and defined bonded labour, provided for extinguishment of past or existing debt, established duties of district magistrate in implementing the provisions of the act, sanctioned the state governments to form a vigilance committee in each district to guide and ensure competent implementation of the act by the magistrate and stated the penal actions against those compelling people into bonded labour. The act was amended in 1985 to bring contract and migrant workers under its ambit.

    In 1978, a new centrally sponsored scheme for Rehabilitation of Bonded Labour was enacted to provide financial assistance to the state government for rehabilitating rescued bonded labourers, to conduct surveys, evaluation studies and awareness campaigns across districts. In 2016, the government restructured the scheme. The restructuring involved an increase in the provision of funds to bonded labour for rehabilitation and to states for conducting surveys. Under the restructured scheme, rescued bonded labour is only provided with the full amount of financial assistance after the conviction of the accused and a Bonded Labour Rehabilitation Fund corpus was to be created at every district.

    The interplay of caste-based exploitation and subsequent impoverishment in terms of resources and assets combined with underdeveloped rural areas devoid of standard education, health and employment opportunities push marginalised people into bonded labour.

    Why and how does the system still sustain?

    Many factors contributing to the prevalence of bonded labour continue to prevail despite after years of legislative action to abolish the same. The interplay of caste-based exploitation and subsequent impoverishment in terms of resources and assets combined with underdeveloped rural areas devoid of standard education, health and employment opportunities push marginalised people into bonded labour. Such an environment accompanied by the inept implementation of legislations and schemes further aids in sustaining bonded labour systems.

    BLS(A) act 1976 failed to be effectively implemented owing to apathy, corruption, lack of administrative and political will. The vigilance committees were often defunct and working for the employer. The act was criticised on the grounds that it stated only mediocre and minor punitive actions and the rates of prosecution were also low. Moreover, some states remain in denial of accepting the existence of bonded labour. This indifference results in the loss of comprehensive data on bonded labour hindering the further implementation of provisions of the act.

    The Central Sector Scheme for Rehabilitation of Bonded Labour also has its loopholes. After the restructuring of the scheme, financial aid is provided only after the accused is convicted and convictions are rare owing to poor implementation of the BLS(A) Act and the absence of a review of cases. Thus, in most cases the rescued labourers do not receive the full financial aid they are entitled to immediately after the rescue. Often, it takes years to receive the full amount or may not even receive any.

    The situation is even grave as the rescued labourers have asymmetric knowledge of the rights and entitlements they can avail themselves of. Even when they are fully aware, most of them lack the will to attain these entitlements due to the dismal behaviour of officials and delayed processes.

    Moving towards Abolishment

    First and foremost, recognition and acceptance of the prevalence of bonded labour should be ensured. Only then the bonded labourers could be identified, rescued and rehabilitated effectively. The collection of comprehensive data is essential for further implementation of the provisions of the legislation. Also apart from the vigilance committee, a new committee composed of the magistrate, members of the marginalised communities, NGO’s and other civil bodies working in the field would enable to get a more comprehensive view of the issues in the sector.

    From a long term perspective, there is a need to address the caste induced structural inequalities. One way through which this could be attained is through land redistribution.

    Mere financial aid is not sufficient for the rescued labourers to foster a livelihood plan. The Human rights law network suggests the same and recommends a comprehensive rehabilitation package providing for education and job security.

    From a long term perspective, there is a need to address the caste induced structural inequalities. One way through which this could be attained is through land redistribution. Apart from this, the government should also focus on skill development and training of rural poor, especially migrants caught up in bonded labour. Varied skills can enhance their employment opportunities and provide more freedom to move towards other areas of work.

     

     

    References

    1. B.L.S., A. (2020, June 30). Telangana: Two Years After Rescue From Bonded Labour, 12 Tribals Receive Compensation. The Wire. https://thewire.in/rights/telangana-bonded-labour-rescue-tribals-compensation
    2. Breman, J. (2010). Neo-bondage: A fieldwork-based account. International Labor and Working-Class History, 78(1), 48-62. https://www.jstor.org/stable/40931303
    3. Gabra, L. (2021, March 21). Will Bonded Labor in India Ever Come To An End? BORGEN. https://www.borgenmagazine.com/bonded-labor-in-india/
    4. Human Rights Law Network. (n.d.). Release and Rehabilitation of Bonded Labour — HRLN. Human Rights Law Network (HRLN). Retrieved August 15, 2021, from https://hrln.org/initiative/release-and-rehabilitation-of-bonded-labour
    5. Human Rights Watch. (n.d.). Small Change. Human Rights Watch (HRW). Retrieved August 6, 2021, from https://www.hrw.org/reports/2003/india/India0103-05.htm
    6. J, S. (2019, September 15). Rescue of bonded labourers up, convictions rare. Times of India Blog. https://timesofindia.indiatimes.com/blogs/tracking-indian-communities/rescue-of-bonded-labourers-up-convictions-rare/
    7. Khan, J. A. (2019, April 30). How effective are the Policies for Rehabilitations of Bonded Labour in India? CBGA India. https://www.cbgaindia.org/blog/effective-policies-rehabilitations-bonded-labour-india/
    8. Mantri, G., & Suresh, H. (2020, January 31). The News Minute | Delve. The News Minute. https://www.thenewsminute.com/article/it-s-2020-bonded-labour-still-reality-india-here-s-why-116977.
    9. Molfenter, C. (2013). Overcoming bonded labour and slavery in South Asia: the implementation of anti-slavery laws in India since its abolition until today. Südasien-Chronik-South Asia Chronicle, 3, 358-82. https://edoc.hu-berlin.de/bitstream/handle/18452/9122/358.pdf?sequence=1&isAllowed=y
    10. Murugesan, D (2018). HANDBOOK ON BONDED LABOUR. NATIONAL HUMAN RIGHTS COMMISSION (NHRC), New Delhi. https://nhrc.nic.in/sites/default/files/Hand_Book_Bonded_Labour_08022019.pdf
    11. NCABL. (2016). Joint Stakeholders’ Report on Situation of Bonded Labour in India for Submission to United Nations Universal Periodic Review III. NATIONAL COALITION FOR ABOLITION OF BONDED LABOUR (NCABL), Bhubaneswar Odisha. https://www.upr-info.org/sites/default/files/document/india/session_27_-_may_2017/js34_upr27_ind_e_main.pdf
    12. Prasad, K. K. (2015). Use of the Term’Bonded Labour’ is a Must in the Context of India. Anti-Trafficking Review, (5), 162.
    13. Sabhapathi, V. (2020, June 11). An Analysis of Bonded Labour System in India. Legal Bites – Law And Beyond. https://www.legalbites.in/bonded-labour-system-in-india/
    14. S, B. (2016, April 2). Caught in a vicious cycle of bonded labour. The Hindu. https://www.thehindu.com/news/national/karnataka/caught-in-a-vicious-cycle-of-bonded-labour/article7720754.ece
    15. Sethia, S. The Changing Nature of Bonded Labour in India.
    16. Srivastava, R. S. (2005). Bonded labour in India: Its incidence and pattern.https://www.ilo.org/wcmsp5/groups/public/—ed_norm/—declaration/documents/publication/wcms_081967.pdf 

    17. THE BONDED LABOUR SYSTEM (ABOLITION) ACT, 1976. (ACT NO. 19 OF 1976). (India). https://labour.gov.in/sites/default/files/TheBondedLabourSystem(Abolition)Act1976.pdf

     

    Image Credits: starfishasia.com

  • Comparing School Education in India and Singapore

    Comparing School Education in India and Singapore

    Introduction

    The United Nations has recognised the right to education as a basic human right, and in most countries, education is compulsory up to a certain age. In India education is primarily provides education in India by private schools, which run independently of the government, and public schools administered and funded by the government at three levels; central, state and local. Under the Indian Constitution, education is a fundamental right to children aged 6 to 14, however, there is no law in place that makes education compulsory. India has a literacy rate of 74.04%, and according to the world bank, Indian schools face challenges in primary enrollment, quality of teachers and application-based learning. Comparatively, Singapore has a literacy rate of 98.3% where education is primarily in the public sector and is fully controlled by the government. Under the Laws of Singapore, every child needs to complete at least 6 years of education, not doing so is a punishable offence. Though the education system in Singapore can be competitive, it ensures every child is well rounded and balanced and can apply their learnings critically. Through this paper, I will explore the fundamental difference between the education system in India and Singapore.

    Singapore has evolved from a third world into a first world country within 10 years, and one of the main attributes to this rapid growth has been education. The Singapore education system is one of the most advanced systems in the world.

    Importance of Education in Development

    Singapore has evolved from a third world into a first world country within 10 years, and one of the main attributes to this rapid growth has been education. The Singapore education system is one of the most advanced systems in the world. The country consistently ranks at the top of the OECD’s Programme for International Student Assessment (PISA), a triennial test of 15-year-olds in dozens of countries, in the main three categories of maths, reading and science. Singapore also has very strict penalties for breaking the law. According to the Compulsory Education Act of 2000, all Singaporean students must attend 6 years of compulsory education, and it imposes a $5000 fine per year for failure to do so. According to the law, all local Singaporean students must attend schools run by the government to maintain equal education opportunities for all. Private schools in Singapore are predominantly for foreign students, while government schools are for the citizens, this incentivises the government to invest in public schools, which improves the overall quality of education.

    According to the Compulsory Education Act of 2000, all Singaporean students must attend 6 years of compulsory education, and it imposes a $5000 fine per year for failure to do so.

    India has a child labour rate of 3.9%, and yet there is no law in place that makes education compulsory. The Indian parliament passed the Right of Children to Free and Compulsory Education Act in 2009 (9 years after Singapore), wherein it’s a constitutional right for all children to attend school from ages 6 to 14, however, is not a law with penalties if not complied to. The lack of enforcement of education is one of the principal reasons India’s literacy rate, especially among women (65.5%), is so low. Local students can attend either public or private schools, however, government schools are usually considered predominantly for marginalized sections of the community. Hence, there is a lack of funding for public schools, which lacks in both quantity and quality. In 2018/19 India spent roughly 2% of its total GDP on education, which was US $72 billion, from a GDP of US $2.7 trillion, additionally one must take into consideration the high levels of corruption experienced in India. Comparatively, Singapore spent US $13 billion, which was 3.2% of its total GDP of US $372 billion, mostly spent on infrastructure development and updating the curriculum.

     

    Teachers: Quality, Training, Accountability, and Creativity

    The process of hiring teachers varies drastically in the two countries. Singapore has many regulations to hire teachers, for example, to become a primary school teacher one needs to be a graduate, with additional special teaching training given by the government. Subsequently, the government monitors their performances closely and continuously. The government also ensures that the teacher-student ratio is better than 1:20, to provide customised care and attention to each student. Teachers have strict rules on behaviour and etiquette, from the language they use to the style of teaching they adopt, the government monitors all teacher-student interactions. It also provides regular training to ensure they learn new skills to share with their students. A study by the Singapore Management University claims that the quality of teaching and teacher’s pay has a direct correlation. Thus, school teachers in Singapore are well paid where the average annual salary of a teacher is anywhere between US $31,539  to US $56,543. According to Imperial college, paying teachers more means more educated and talented people would want to become teachers, which improves the quality of education.

    According to the Indian NGO, Child’s Rights and You (CRY), the checks and surveys by the government to monitor the quality of education are very irregular, and teachers rarely face any consequences.

     India has no special requirements for becoming a government school teacher apart from having a graduate degree. The average teacher to student ratio in Indian government schools is 1:40, which is significantly higher than the recommended ratio suggested by the UN. According to the UN, the maximum teacher to pupil ratio should be around 1:30, to give each child the care and attention they need. According to the Indian NGO, Child’s Rights and You (CRY), the checks and surveys by the government to monitor the quality of education are very irregular, and teachers rarely face any consequences. The cases of child abuse by teachers i.e. hitting or sexual assault are reducing but the numbers are still quite high, because of lack of teacher accountability. This proves to be a major setback for government schools, since one of the principal reasons families do not send their kids to public schools is the fear of child abuse. Last, the average yearly salary of a teacher is anywhere between US $5,400 to US $7440, which is considerably low and can lead to teachers being frustrated and uninterested in the job. According to ‘The Hindu’, teachers being underpaid is one of the leading factors to the lack of quality in public education in India. Through this, it is clear why Singapore has a more advanced education system, not only is it well funded but also well monitored, the government ensures quality education for each child by investing in good teachers.

    Curriculum and Pedagogy

    According to Child physiology research by the University of California, which is more important than the curriculum itself, is the methods of teaching and the spirit in which the teaching is given. Singapore has moulded its curriculum to allow students to explore their interests through research-based projects and activities, rather than a strict textbook method of teaching. According to the Psychology department in UCL, project and research-based learning stimulates cognitive skills and boosts creativity and the ability for children to innovate, which is a much more effective way of education rather than traditional textbook-based learning. The government invests largely in labs and other technology to enable application-based learning to develop analytical skills in students, which is then paired with classroom theory-based learning. Singapore achieves application-based learning firstly through a flexible yet focused curriculum, wherein students may choose matters that interest them and are given a range of options on how they want to be tested. Second, through Pedagogy, which is most commonly understood as the approach to teaching, and to the theory and practice of learning, and how this process influences, and is influenced by the social, political and psychological development of learners. Examples would be where students and teachers produce work and learning together. The teacher becomes more of a mentor or coach helping students achieve the learning goal. Students also work together and use each other’s skills and expertise to accomplish a set of learning tasks. This enables students to feel like they are more involved in their education, which makes them more interested and invested in what they are learning and hence is one of the most effective methods of education. Lastly, by prioritising quality over quantity, which means that education is pedagogically and developmentally sound and educates the student in becoming an active and productive member of society. Quality education is not one that is measured purely by a test score or by how many words per minute a 5-year-old can read, but rather how many words it can understand. It involves critical thinking, learning to work with others independently and learning to face the realities of life applying the knowledge learnt in their academic life. Singapore does not require its students to take many subjects and activities, but rather focuses on a high standard of teaching and engagement, thus creating a more productive society.

    The fundamental difference between the Singaporean and Indian education system is creativity, while the creativity of children is barely given any importance in the Indian education system, Singapore cultivates the creative ability of its students.

    However, India has a system more focused on theory-based learning, rather than using the practical application. According to the Center for Child Research Singapore, the education system in India does not prepare most young adults for employability because of the lack of ability to critically think and solve unfamiliar problems. The system gives a disproportionate amount of importance to rote learning rather than creativity. The Indian education system hasn’t been updated in several years and thus seems extremely backward. The fundamental difference between the Singaporean and Indian education system is creativity, while the creativity of children is barely given any importance in the Indian education system, Singapore cultivates the creative ability of its students. According to former Singaporean Prime minister, Mr Lee Kuan Yew, Singapore could transition from the third world to a first world country within 10 years because of creativity. This creativity shows in new businesses, in groundbreaking policies, and even in city planning. Singapore is constantly innovating and adapting to better their standards of living, and research-based learning is extremely essential to produce an innovative community. The Indian system does not pay adequate attention to pedagogy, since there is a very rigid curriculum set in place with little room for students to mould according to their interests. Lastly, there is a lack of investment for technology-based learning which can help improve application and research-based teaching. For example, Singapore ensures laptops are available in all classrooms for research, they also use a cloud computing system with all the assignments and textbooks available for students to access even if they are unable to attend school.

    Education for Children with Special Needs

    Singapore has also invested in a speech to text option for blind students and ones who have any learning disabilities such as ADHD. Through these investments, every student has an equal opportunity to learn.

    Students with special needs often need more care and attention than the average student. Singapore ensures every school has a set of teachers specially trained to assist children with learning disabilities. However, Singapore still does not have enough public schools specialised for special needs students. According to the World Bank, 71% of children with autism still attend mainstream schools. Research has shown that mainstream schools are frequently neither fully educated nor equipped to deal with the needs of an autistic child and give them the support. There are over 2,500 schools for children with special needs in India some are run or supported by the government, while many are run by registered NGOs or private institutions. However, there are only 20 special needs schools in Singapore which offer different programmes that cater to distinct disability groups of children. However, Singapore has increased investment in building more schools and opportunities in the workplace for people with special needs or any learning disabilities.

    Conclusion

    In conclusion, one can argue that it is unfair to compare a city (Singapore) to a country like India, since Singapore is way smaller and has a higher GDP per capita. However, the comparison is mainly based on the methods of education. Through this paper, we understood the difference in teaching methods, which India could easily adopt by updating the curriculum. By updating the Indian system to enable kids to be more creative and research-oriented, India will produce generations of critical thinking and productive workforce that would eventually boost the Indian economy and the nation.

    Feature Image Credit: akshayapatrafoundation from pixabay
    Image Credit: A Singapore classroom  www.todayonline.com

  • Contemporary and Upcoming Issues In the Field of Intellectual Property Rights

    Contemporary and Upcoming Issues In the Field of Intellectual Property Rights

    1.1   Contemporary Issues: IP Awareness and Drug Price Caps

    1.1.1. Introduction

    The realm of intellectual property (IP) rights has been in existence and been a driving force for novelty and innovation for centuries and can be dated back to at least 500 BC when a state in Greece provided protection for 1 year to innovators of ‘a new refinement in luxury’, ensuring innovators can monopolize and reap benefits out of their innovations.[i] That being the case, the first international convention (known as the ‘Paris Convention’) was enforced much later in the year 1883, establishing a union for the protection of ‘industrial property’. Since then, we have seen rapid growth in the field of IP rights. It goes without saying that till the time entrepreneurs are incorporating companies, innovators are inventing technology or artists are creating their works of art and/or literature, the domain of IP will only progress further.

    Although the evolution of international IP regime has been rapid and the laws have become a lot more complicated than they initially were, it appears that we have only scratched the surface of the extent and reach of IP rights. It cannot be stressed enough that IP rights are crucial to every company, creator and inventor since it ensures that their rights and interests are protected and gives them the right to claim relief against any violation.

    Insofar as the Indian IP regime is concerned, we have seen a gradual but crucial development in our laws which has now motivated not only foreign corporations to seek IP protection in India but has also supported start-ups in seeking protection of their IP to the extent that these enterprises have the liberty to seek the protection of their IP at significantly reduced fees (barring copyright and geographical indications). The Indian Intellectual Property Office (IPO) has also taken measures to promote e-filing by reducing costs associated therewith and improving its e-filing system/mechanism. However, the issues arise when start-ups and small enterprises seek to register their IP and are unaware of these common, but cost-effective mechanisms in place.

    Besides, our intellectual property policies (especially patent policies) have been a subject matter of criticism for a long time at a global stage due to the government’s intervention in the enforcement of patent rights. One of the primary concerns for foreign corporations and organizations have been related to working of patented inventions in India and the issue of compulsory licensing.

    1.1.2. Lack of Awareness of Intellectual Property Rights

    Launched by the Government of India in 2014, the ‘Make in India’ project has motivated entrepreneurs to establish their business with the help of government funding and foreign direct investments (FDI) of up to 100%.[ii] This step has led to a boost in people exploiting their entrepreneurial skills to establish a successful business (in most cases). Although the Make in India project also focuses on the importance of IP rights by attempting to educate the entrepreneurial minds of the importance and benefits of their IP, it appears that small businesses are yet to benefit from the IP aspect of the project. These businesses/start-ups do not realize the importance of their IP and tend to often misuse violate another’s. This leads to the institution of a lawsuit seeking infringement (or passing off) against such businesses by big corporations and since defending such Suits is an expensive and time-consuming process, it becomes an uphill task for the entrepreneurs to defend the Suits and run their business effectively. Entrepreneurs are often misinformed and miseducated of the basics of IP by professionals who do not have an expertise in the area of IP law, which leads them to believe that their acts of adopting an identical or deceptively similar trademark would go unnoticed or would not constitute infringement or passing off. Due to their lack of knowledge in the domain of IP and lack of proper guidance by professionals, these entrepreneurs tend to believe that: –

    • Adopting an identical mark (intentionally) in a different class does not constitute infringement or passing off;
    • Adopting a similar mark in the same (or allied and cognate) class does not constitute infringement or passing off;
    • Even if the competing marks are identical or deceptively similar, filing a trademark application with a user claim would give them a defensible stand against the true proprietor’s claim.

    Needless to say, these are some of the common misconceptions which lead to a claim of infringement or passing off being raised by true proprietors of the marks. Also, the possibility of the Court of law imposing damages and/or costs on a defendant cannot be ruled out either. In such a scenario, due to the limited funding of these start-ups, they are often forced to reconsider their entire business strategy in-line with the pending lawsuit. This can, however, be avoided if the entrepreneurs are either well-educated in the field of IP law or take necessary steps to ensure that they receive proper guidance regarding risks involved in registration and use of their mark, from a professional with expertise in the field of IP laws. Instances of start-ups adopting a similar or identical mark of a big corporation/start-up are quite common nowadays with some of the known cases being instituted by ‘Bookmyshow’ against ‘Bookmyoffer’, ‘Shaadi.com’ seeking relief against use of ‘Secondshaadi.com’, ‘Naukri.com’ suing ‘naukrie.com’, etc.[iii]

    In instances involving the pharmaceutical industry, the issue becomes far severe since adopting a similar or identical mark can result not only in infringement of IP but can only be extremely harmful to the patients/consumers. Unlike any other consumable item, patients/consumers are at much greater risk if they consume wrong medication and such instances where corporations adopt a similar or identical mark for its pharmaceutical drug, the consequence can be fatal to the extent that it may even lead to death. In one such famous instance in India where the Defendant was a repeated/hardened infringer, the High Court of Bombay while imposing exemplary costs of INR 1.5 crores stated “Drugs are not sweets. Pharmaceutical companies which provide medicines for the health of the consumers have a special duty of care towards them. These companies have a greater responsibility towards the general public. However, nowadays, the corporate and financial goals of such companies cloud the decision of its executives whose decisions are incentivized by profits, more often than not, at the cost of public health. This case is a perfect example of just that”.

    Another issue these entrepreneurs/start-ups tend to face in the realm of IP law is vis-a-vis use of copyrighted material without knowledge/intention to infringe upon someone else’s IP rights. For instance, when start-ups launch their online portals, they tend to use images/GIFs or music for their videos which are copyrighted and use thereof without permission is illegal. On account of lack of knowledge of IP laws and consequences of such misuse, they often violate rights residing in the copyrighted work and are then subject to either a legal notice from the owner/proprietor of the copyrighted material or a lawsuit before the Court of law.

    The United States of America’s (USA) Chamber of Global Innovation Policy Center (GIPC) which promotes innovation and creativity through intellectual property standards, in its 2019 list of countries performing in the field of IP law, places India at a substantially low rank of 40 out of 53[iv] which indicates that USA considers India as a major threat when it comes to development and investment the field of IP rights in India (especially in the field of patents). Additionally, India also lacks in the number of patent applications filed before the Indian Patent Office, averaging at around 9,500 filings per year, compared to 2,69,000 filings in the USA.[v] One of the primary reason behind this difference might have something to do with India’s lack of support towards the encouragement of IP protection, especially for start-ups.

    1.1.3. Raising Awareness on Intellectual Property Laws for Entrepreneurs

    With almost 50% of litigations within the domain of IP pertaining to trademark infringement and passing off,[vi] entrepreneurs and small businesses must take the following necessary steps to ensure that their rights and interests in their business are protected: –

    • Entrepreneurs/Business owners must entrust lawyers/law firms specializing in the field of IP rights to advise and prosecute their trademark applications;
    • Understand or attempt to understand each and every step involved in prosecuting and registering a trademark application and participate in discussions leading to every step taken in the prosecution of their IP; and,
    • Approach IP lawyers/law firms to get a gist of importance of IP protection along-with freedom to use a mark either before registering it or using the said mark for goods in classes not forming part of the trademark registration.

    It is also the duty of IP lawyers/law firms to promote IP protection for entrepreneurs and small businesses by organizing interactive sessions with new and/or domestic clients and providing competitive charges for prosecuting and enforcing IP rights of these entrepreneurs and businesses.

    Statistics reflect that majority of IP infringement cases in India involve a small enterprise being unaware of the basics of IP rights and therefore, using an IP that is either deceptively similar or virtually identical to a registered and/or well-known IP.[vii] Often businesses expanding their presence in the online portal (either through their website or a social media page) use copyrighted material without realizing that their use of the same would tantamount infringement.   Raising awareness of the importance of IP and consequences of infringement (and passing off) would ensure that start-ups avoid misusing an IP belonging to someone else.

    1.1.4. The imposition of Price Caps on pharmaceutical drugs in India and its work-around

    One of the primary reasons why the USA considers India’s IP regime a major threat has something to do with India’s patent laws, especially vis-à-vis the pharmaceutical industry. Albeit the US Trade Representative (USTR) last year stated that the USA is attempting to restrict patentability for new pharmaceutical drugs which are “essentially mere discoveries of a new form of a known substance which does not result in enhancement of the known efficacy of that substance ….. machine or apparatus” (which is identical to Section 3(d) of the Indian Patents Act, 1970),[viii] it still considers India as a threat to its IP regime, especially due of India’s patent laws.

    To better understand the problems faced in the Indian pharmaceutical industry, it would be prudent to point out that unlike developed nations, the Indian government (through its Patents Act and policies) keeps strict control over the drug pricing with an intention to make healthcare (specifically medication) accessible amongst all States and income groups. This can especially be observed in pharmaceutical drugs for cancer and diabetes medication. The Government of India has imposed strict price restrictions for its pharmaceutical drugs, thereby diluting IP rights and causing a severe impact on IP valuation of those pharmaceutical drugs.[ix]Although the impact might seem insignificant to consumers since they benefit from these price reductions, making cancer medicines 90% cheaper due to price control would not make IP holders happy or promote invention. Simply put, once the government slashes prices of pharmaceutical drugs intending to make them easily accessible to the majority of patients, it severely impacts the profit margin of the pharmaceutical industries, forcing them to invest more into the industry of generic drug manufacturers because of a bigger profit margin and lesser costs, rather than invest into inventing new drugs, which might although tackle a currently incurable disease (or a curable disease more effectively), but would at the same time, lead the corporation into losses. These price cuts would also force the pharmaceutical corporations to compromise on the quality of drugs which might, in a longer run, have a severe impact on healthcare.

    India’s investment in its healthcare sector has been a major concern since the Indian States ideally spend as low as 1.3% of their gross domestic product (GDP) on healthcare which results in a substantial increase in out-of-pocket expenses and placement of poor healthcare mechanisms.[x] India’s heavy reliance on generic drugs supporting the lesser privileged consumers has been expressed as a concern by the USTR[xi] and global pharmaceutical giants to the extent that investors and pharmaceutical corporations have restricted their investment into the Indian pharmaceutical industry since their price margin would result in government either forcing price caps on the drugs or implement compulsory licensing for the expensive and life-saving drugs.

    As stated above, this approach of placing price caps towards the Indian and global (vis-à-vis their sale of drugs in India) pharmaceutical industry has a major impact on India’s patent laws since it affects innovation, and since innovation is an essential part of the invention in the healthcare sector, pharmaceutical industries tend to focus more on generic drug production, profit from out-of-pocket expenses of consumers/patients, hospitalization costs, etc.[xii] The imposition of price caps has shown to have no significant improvement in accessibility of pharmaceutical drugs.

    Although the imposition of price caps is necessary for a developing nation, the same should be practiced to a limited extent. For instance, instead of capping the price of a pharmaceutical drug and dropping its price by 90%, the price caps should be dependent on the situation and need for the drug. For instance, cancer and diabetes medication are in high requirements in India[xiii] (and other nations) and therefore, the government can impose price caps and reduce the cost of the drugs by 50%. Insofar as other (less crucial/critical) pharmaceutical drugs are concerned, the government can either refrain from price caps or impose a price cap of a maximum of 20%. This would not only promote investment in innovating patented drugs but would also increase FDI in the Indian pharmaceutical sector, thereby permitting Indian pharmaceutical corporations to invent new and possibly better pharmaceutical drugs.

    At the same time, a concerned person always reserves their right under Section 84(1)[xiv] of the Indian Patents Act, 1970 to request for issuance of a compulsory license (after the expiry of three years from the date of grant of the patent) against the said pharmaceutical drug in case it does not comply with the guidelines issued under Section 83[xv]  of the afore-mentioned Act like in the case of Bayer Corporation v. Union of India.[xvi] In essence, the Indian government must invest more in its healthcare sector policies to reduce out-of-pocket expenses incurred by patients/consumers and reduce the price caps by a significant amount to promote innovation in the field of patent laws, especially in the pharmaceutical sector.

    1.2. A Global Upcoming Issue: Impact of Use/Commercialization of Artificial Intelligence on Intellectual Property Rights

    1.2.1. Introduction

    “Can machines think?” – Alan Turing, 1950

    A few years after Alan Mathiso Turing, a renowned English mathematician, cryptanalyst and computer scientist played a pivotal role in defeating Hitler’s Nazi Germany, he wrote a paper titled ‘Computing Machinery and Intelligence’ (1950) where he asked a simple, yet intriguing question: “Can machines think?”. His paper and subsequent research established the basis of what we refer to as ‘Artificial Intelligence’ (AI) or machine learning/intelligence. Fast forward to today, the concept of AI has become a lot more complex than what had been imagined by researchers around half a century ago. AI or a machine which reflects the ability to think and act in as close of a manner as a human mind is as of date, an exciting new development in the field of technology.

    From ‘The Turin Test’ in the year 1950 to creation of Sophia, a humanoid robot created by Hanson Robotics in the year 2016, technology, especially in the field of AI has progressed at a drastic rate, with some of the major developments being the creation of Google’s Home device (2016), Apple’s virtual assistant ‘Siri’ (2011), Microsoft’s virtual assistant ‘Cortana’ (2014), Amazon’s home assistant ‘Alexa’ (2014), etc. occurring in the past decade (2010 to 2019) itself. It is safe to say that with this progress, it is not far-fetched to assume that we may soon see the age of commercialization of much smarter versions of currently existing machine learning devices. The technology relating to AI has seen explosive growth in recent times with the number of patent applications for technologies relating to AI exceeding 1,00,000.[xvii]

    Today, AI can be dissected into two types of intelligence, namely:

    • Weak AI: This is a more common type of AI which is used amongst major corporations like Google, Apple, Microsoft, etc. and although it is being used widely, its abilities are limited to performing tasks that it has been trained to perform. Such AI can store data and present it to the consumer upon enquiry or on need-basis. However, the algorithms do not permit this AI to think and act in a manner a human mind would and therefore, this AI does not pose a threat within the domain of IP.
    • Strong AI: Unlike weak AI, this form of AI would perform more cognitive functions that imitate a human mind more closely as against weak AI. Even though weak AI is known to perform basic functions more efficiently (when compared to humans), the strong AI will not only perform those basic functions of a weak AI but also will also perform more complex tasks such as inventing or creating a new IP (like a new copyrightable sound or video or a unique design, etc.).

    To a certain extent, researchers worry about the consequences of AI in case its goals end up being misaligned to ours. But at this stage, AI seems to be more promising than dangerous, especially in the field of healthcare and agriculture which is a critical industry for India.

    Needless to say, corporations are investing a lot of resources to develop this field of technology which is said to have revolutionary impacts including prediction of epidemics, advanced disaster warnings and damage prevention methods, increased productivity in all industries, etc. The possibilities and benefits (and in many cases, risks) of AI are innumerable and at the current rate of its development, it will quite possibly be overwhelming. Regardless of its pros and cons, commercialization of AI is inevitable and therefore, this raises a material question: Do we have the appropriate laws in place to tackle issues arising out of commercialization (or use) of AI? The answer, unfortunately, is no.

    1.2.2. The Current Scenario

    Being an upcoming digital frontier, it is apparent that AI will have a huge impact on our current laws and practices. For instance, our current world IP regime only permits a ‘person’ to be a proprietor and/or owner of an IP (see Naruto v. Slater[xviii]) which implies that any form of IP that is generated/invented by an AI cannot be a subject matter of registration. However, a recent decision by the Chinese Court wherein a tech giant ‘Tencent’ claimed copyright infringement against a local financial news company overwork created by its Dreamwriter robot might reflect a contrary view. The Court in the said case held that an article generated by AI is protectable under Chinese copyright law.[xix] Holding a contrary view, the European Patent Office (EPO) in the case pertaining to patent applications filed by ‘DABUS’ an AI technology, gave a finding similar to the Naruto case wherein it held that application has to be filed by a human being.[xx] Professor Ryan Abbott along-with his multi-disciplinary team at the University of Surrey had filed (through their AI called DABUS) the first-ever patent application without a human inventor[xxi] indicating that the move towards AI-based IP filing is underway, however, given that the laws are currently not in place, the application was, unfortunately, refused.

    Although an old principle, the Courts around the world at times rely (either directly or indirectly) on the principle of “sweat of the brow”, which indicates the inventor’s effort and hard work invested in creating an IP. However, the application of the said principle becomes rather complicated when the issue of IP generated by AI comes into the picture. At the same time, the commercialization of AI might also lead to dilution of IP rights, given that the possibility of AI being better and quicker at generating IP than human beings cannot be ruled out. Undoubtedly, AI might eventually be considered as a ‘smarter’ variant of a human inventor since an AI would require a significantly less amount of time and effort to generate a registrable IP. Apart from the ones already mentioned above, several unknown issues are likely to arise upon commercialization of AI (to generate IP) and there is a dire need to highlight and resolve these issues at the earliest.

    The World Intellectual Property Organization (WIPO) has recently taken an initiative to invite public feedback on possible impacts of AI on the world IP regime[xxii] by conducting press conferences to tackle the impending issues vis-à-vis IP laws upon commercialization or use of AI. Although the topic of discussion during the previous conference was somewhat restricted to Patent laws and did not tackle IP laws holistically, the next round of sessions might emphasize on all IP laws and be more holistic towards progress. Needless to say, AI will impact our IP regime all the way from the creation of an IP to valuation, commercialization, transfer/assignment, etc. thereof, which would require a complete overhaul of our current laws in order to inculcate and appreciate the investment (in terms of time and costs) and labour involved in the creation of the AI, as well as use/transfer/assignment of an IP generated by that AI.

    1.2.3. India’s Approach towards Artificial Intelligence

    India has seen rapid growth in its information technology (IT) sector which has further contributed to other primary sectors like agricultural sector, healthcare sector, etc. by developing various mechanisms such as a system for online trading or integrated crop management system (amongst other things). It is safe to say that technology has a big role to play in India’s growth. Apart from the agricultural industry, the software industry has played a pivotal role in India’s move towards becoming the fastest-growing trillion-dollar economy.[xxiii]

    Being amongst the most profitable investment jurisdictions, India has recently been a hub for tech-related start-ups. Understanding the importance of technology, Indian entrepreneurs, along-with government support, have started to invest heavily in the technology field and with the help of FDI, there has been a substantial boom in the field of technology. Since other fields such as agriculture, healthcare and education are all somewhat dependent on this field, the scope of AI transforming all the other sectors through the tech sector is clearly perceivable.

    As discussed earlier, India’s healthcare sector is in a dire need for investment and development and on account of lack of funding and need to make medication accessible, reliance on AI would drastically reduce costs incurred in labour, research and development, trials, etc., which would eventually reduce the costs of pharmaceutical drugs themselves, thereby impacting the final sale price of the drug. Reliance on AI (by developing the tech sector) would extinguish the need for State governments to invest heavily in their healthcare programmes. Although the current investment might not cut it, a substantial investment, in that case, would not be required. AI support in the development and marketing of pharmaceutical drugs, thereby reducing the overall costs and increasing production and sale would also invite more FDI in India’s healthcare sector. This will also eventually make healthcare more accessible in less developed regions in India. Statistics indicate that healthcare is majorly accessible/available in limited States/Cities like Bengaluru, Chennai, Gurugram, etc.[xxiv] while cities like Singrauli continue to suffer.[xxv] With the major impediment of drug pricing out of the way, access to healthcare will become more of a focus and would eventually thrive with AI support.

    Insofar as the agricultural sector is concerned, the same plays an essential role in our developing economy. According to a report issued by India Brand Equity Foundation (IBEF), around 58% of Indian population relies on India’s agricultural sector with a contribution of an estimated $265.51 billion (approximately INR 18.55 lakh crore) of gross value added to its economy (in Financial Year 2019).[xxvi] This implies that majority of the lesser developed States and Cities in India rely solely on production and sale of their agricultural produce.[xxvii] With an FDI inflow of up to 100% and an increasing reliance on technology, the sector keeps looking for methods to increase crop yields in a cost-effective manner. Having said that, the agricultural sector still faces some major issues like weather instability and fluctuations, condition of agricultural labourers, poor farming techniques, inadequate irrigation facilities, etc.[xxviii]  Unlike the healthcare sector, the agricultural sector is already witnessing the impact of AI from companies like Microsoft India and Intello Labs which have introduced mechanisms to maximize crop yield and reduce wastage/infestation. For instance, Microsoft India has introduced an AI-based sowing app which determines and informs the farmers of the best time to sow their crop based on analysis of climate data for the specific area and amount of rainfall and soil moisture the crops have received.[xxix]  Farmers can benefit from these AI-based apps without spending any additional costs on installing sensors.

    Indian (and foreign) tech industries have already played an important role in providing ease of business through reliance on weak AI and therefore, if India invests and conducts thorough research into strong AI, the implications of AI can be countless. However, since research and investment in the field of strong AI are extremely limited in India, commercialization thereof seems far-fetched as of date. Due to lack of expertise in the field of AI, it has been difficult to conduct research and yield any result. Colleges/Universities often refrain from investing in the field of AI research due to lack of participation and heavy research costs. Also, since the education system in the majority of institutions is somewhat traditional, graduates (or post-graduates) lack the required skill set to work in this technical field.[xxx]

    In contrast, however, the Chinese government is already taking steps to become a leader in the AI space by 2030s. It has adopted a three-step method which involves appreciating AI-based applications by the year 2020, making cutting edge breakthroughs in the said field by 2025 and leading in the industry by 2030. To support this process, a Chinese Court has already ruled in favour of AI-generated copyright work in its decision favouring Tencent,[xxxi] a tech company focusing on communication and social platforms. Since India (through its tech industry) has started taking steps to work towards its AI technology (albeit weak AI for now) and has also entrusted its think-tank ‘NITI (National Institution for Transforming India ) Aayog’ for assistance in such development through the National Program on AI,[xxxii] we hope to see India catch-up to tech giants like China, USA and Europe.

    1.2.4. Development of Intellectual Property Laws on Artificial Intelligence: An Indian Perspective

     Since WIPO has only recently started discussing the implications of AI on global IP laws, the member states of WIPO are yet to come out with laws pertaining to AI-based IP. While beginning its public consultation process on AI and IP policy, Director General of WIPO Mr Francis Gurry said: “Artificial intelligence is set to radically alter the way in which we work and live, with great potential to help us solve common global challenges, but it is also prompting policy questions and challenges,”.[xxxiii]  On December 13, 2019 WIPO also published ‘Draft Issues Paper on Intellectual Property Policy and Artificial Intelligence’ with an intent to invite feedback/opinion on the most pressing issues IP policymakers will face in the near future. One of the most crucial questions where jurisdictions conflict is whether AI can be an inventor/owner of an IP. While the EPO held that an AI cannot be the inventor of a patent application, the Chinese Court observed the contrary, holding that an AI can be an inventor of a copyrightable subject matter. Apart from the issues arising vis-à-vis prosecution of such applications (assuming an AI can be an inventor/originator of an IP), another important issue would pertain to enforcement by or against IP owned by an AI. For instance, if an AI generates a copyrightable subject matter which is deceptively similar or identical to a copyrighted matter, against whom will a Suit claiming infringement and damages lie? Further, in case of a finding against the AI wherein damages have been awarded, will the AI be expected to bear the damages or the owner of the AI? To answer these complex questions, WIPO has invited inputs from member States on issues (not exhaustive) published on December 13, 2019.[xxxiv]

    In view afore-mentioned development, India should establish a team of technical and legal (IP) experts to review the current laws and issues drafted by the WIPO Secretariat, draft possible answers to the issues and suggest required amendments to our current laws to inculcate rights of AI in the best way possible and then discuss the same at a larger stage, i.e., at the 25th Session of the WIPO Committee on Development and Intellectual Property (CDIP). Until now, India’s role/participation in WIPO’s sessions/meetings has been passive and considering how AI would impact its various sectors, especially the agricultural and healthcare sector (a sector which needs an improvement), India must play an active role in the development of IP laws to support AI. Given the fact that India is one of the fastest-growing economies and one of its cities is also considered as the ‘Silicon Valley’ of India,[xxxv] commercialization/use of AI would greatly benefit its economy to the extent that it would substantially reduce labour costs and at the same time, benefit a lot of entrepreneurs in the tech industry. Additionally, AI would also be crucial for government offices as it would greatly reduce delay in processing time and errors. For instance, the use of AI in Indian Intellectual Property Offices would enable machines to review applications for basic defects such as non-filing of an essential document or improper authentication, etc. In case strong AI is adopted by these departments, it would also enable machines to raise basic objections on applications and upon clearance thereof, advertise or register the same, thereby reducing significant costs and time.

    It goes without saying that AI is the next big thing in the field of technology and once it is commercialized at a large scale, it is going to have a huge impact on our laws (especially IP laws). Given India’s interests and possible benefits in the field of AI, its involvement in the development of our current IP regime is pivotal.

     

    Notes

    [i] Jeff Williams, The Evolution of Intellectual Property, Law Office of Jeff Williams PLLC; link: https://txpatentattorney.com/blog/the-history-of-intellectual-property(published on November 11, 2015).

    [ii] Foreign Direct Investment, published by Make in India; link: http://www.makeinindia.com/policy/foreign-direct-investment.

    [iii] Top 17 Startup Legal Disputes, published by Wazzeer; link: https://wazzeer.com/blog/top-17-startup-legal-disputes (published on May 02, 2017).

    [iv] GIPC IP Index 2020, published by Global Innovation Policy Center; link: https://www.theglobalipcenter.com/ipindex2020-details/?country=in.

    [v] Darrell M. West, India-U.S. relations: Intellectual property rights, Brookings India; link: https://www.brookings.edu/opinions/india-u-s-relations-intellectual-property-rights (published on June 04, 2016).

    [vi] Thehasin Nazia & Rajarshi Choudhuri, The Problem of IPR Infringement in India’s Burgeoning Startup Ecosystem, IPWatchdog; link: https://www.ipwatchdog.com/2019/11/16/problem-ipr-infringement-indias-burgeoning-startup-ecosystem/id=116019 (published on November 16, 2019).

    [vii] Press Trust of India, Absence of legal awareness root cause of rights’ deprivation, Business Standard, Nagpur; link: https://www.business-standard.com/article/pti-stories/absence-of-legal-awareness-root-cause-of-rights-deprivation-119081800664_1.html (published on August 18, 2019).

    [viii] Kristina M. L. Acri née Lybecker, India’s Patent Law is No Model for the United States: Say No to No Combination Drug Patents Act, IP Watch Dog; link: https://www.ipwatchdog.com/2019/06/26/indias-patent-law-no-model-united-states/id=110727 (published on June 26, 2019).

    [ix] Amir Ullah Khan, India’s drug price fix is hurting healthcare, Live Mint; link: https://www.livemint.com/politics/policy/india-s-drug-price-fix-is-hurting-healthcare-11572334594083.html (published on October 29, 2019).

    [x] Ibid.

    [xi] E Kumar Sharma, Hard bargaining ahead, Business Today; link: https://www.businesstoday.in/magazine/focus/us-to-pressure-india-change-intellectual-property-ipr-regime/story/214440.html (published on February 01, 2015).

    [xii] Amir, supra note 9 at __(page No.)__.

    [xiii] Key diabetes, anti-cancer drugs among 92 in price-ceiling list, published by ET Bureau, The Economic Times; link: https://economictimes.indiatimes.com/industry/healthcare/biotech/pharmaceuticals/key-diabetes-anti-cancer-drugs-among-92-in-price-ceiling-list/articleshow/65433283.cms?from=mdr (published on August 17, 2018).

    [xiv] Section 84(1) of the Patents Act, 1970 :-

    Compulsory licenses –

    (1) At any time after the expiration of three years from the date of the 170 [grant] of a patent, any person interested may make an application to the Controller for grant of compulsory license on patent on any of the following grounds, namely:-

    (a) that the reasonable requirements of the public with respect to the patented invention have not been satisfied, or

    (b) that the patented invention is not available to the public at a reasonably affordable price, or

    (c) that the patented invention is not worked in the territory of India.

    [xv] Section 83 of the Patents Act, 1970:-

    General principles applicable to working of patented inventions –

    Without prejudice to the other provisions contained in this Act, in exercising the powers conferred by this Chapter, regard shall be had to the following general considerations, namely;-

    (a) that patents are granted to encourage inventions and to secure that the inventions are worked in India on a commercial scale and to the fullest extent that is reasonably practicable without undue delay;

    (b) that they are not granted merely to enable patentees to enjoy a monopoly for the importation of the patented article;

    (c) that the protection and enforcement of patent rights contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations;

    (d) that patents granted do not impede protection of public health and nutrition and should act as instrument to promote public interest specially in sectors of vital importance for socio-economic and technological development of India;

    (e) that patents granted do not in any way prohibit Central Government in taking measures to protect public health;

    (f) that the patent right is not abused by the patentee or person deriving title or interest on patent from the patentee, and the patentee or a person deriving title or interest on patent from the patentee does not resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology; and

    (g) that patents are granted to make the benefit of the patented invention available at reasonably affordable prices to the public.

    [xvi] Special Leave to Appeal (C) No(S). 30145 of 2014.

    [xvii] Ryan N. Phelan, Artificial Intelligence & the Intellectual Property Landscape, Marshall Gerstein & Borun LLP, published by Lexology; link: https://www.lexology.com/library/detail.aspx?g=8c2b5986-95bb-4e8e-9057-e4481bfaa471 (published on September 14, 2019).

    [xviii] No. 16-15469 (9th Cir. 2018).

    [xix] Stefano Zaccaria, AI-written articles are copyright-protected, rules Chinese court, World Intellectual Property Review (WIPR); published on January 10, 2020 (link:https://www.worldipreview.com/news/ai-written-articles-are-copyright-protected-rules-chinese-court-19102).

    [xx] EPO refuses DABUS patent applications designating a machine inventor, European Patent Office; link: https://www.epo.org/news-issues/news/2019/20191220.html(published on December 20, 2019).

    [xxi] Laura Butler, World first patent applications filed for inventions generated solely by artificial intelligence, University of Surrey; published on 01 August, 2019 (link: https://www.surrey.ac.uk/news/world-first-patent-applications-filed-inventions-generated-solely-artificial-intelligence).

    [xxii] WIPO Begins Public Consultation Process on Artificial Intelligence and Intellectual Property Policy, published by World Intellectual Property Organization (WIPO); PR/2019/843; published on December 13, 2019 (link: https://www.wipo.int/pressroom/en/articles/2019/article_0017.html).

    [xxiii] Caleb Silver, The Top 20 Economies in the World, Investopedia; link: https://www.investopedia.com/insights/worlds-top-economies/#5-india (published on November 19, 2019).

    [xxiv] Akriti Bajaj, Working towards building a healthier India, Invest India; link: https://www.investindia.gov.in/sector/healthcare (published on January 18, 2020).

    [xxv] Leroy Leo, Niti Aayog calls healthcare system a ‘sinking ship,’ urges private participation in Ayushman Bharat, Live Mint; link: https://www.livemint.com/news/india/niti-aayog-calls-healthcare-system-a-sinking-ship-urges-private-participation-in-ayushman-bharat-11574948865389.html (published on November 29, 2019).

    [xxvi] Agriculture in India: Information About Indian Agriculture & Its Importance, Indian Brand Equity Foundation (IBEF); link: https://www.ibef.org/industry/agriculture-india.aspx (published on November 2019).

    [xxvii] Ayushman Baruah, Artificial Intelligence in Indian Agriculture – An Industry and Startup Overview, Emerj; link: https://emerj.com/ai-sector-overviews/artificial-intelligence-in-indian-agriculture-an-industry-and-startup-overview (published on November 22, 2019).

    [xxviii] Vidya Sethy, Top 13 Problems Faced by Indian Agriculture, Your Article Library; link: http://www.yourarticlelibrary.com/agriculture/top-13-problems-faced-by-indian-agriculture/62852.

    [xxix] Ibid.

    [xxx] Neha Dewan, In the race for AI supremacy, has India missed the bus?, The Economic Times; link: https://economictimes.indiatimes.com/small-biz/startups/features/in-the-race-for-ai-supremacy-has-india-missed-the-bus/articleshow/69836362.cms (published on June 19, 2019).

    [xxxi] Rory O’Neill and Stefano Zaccaria,

    AI-written articles are copyright-protected, rules Chinese court, World Intellectual Property Review (WIPR); link: https://www.worldipreview.com/news/ai-written-articles-are-copyright-protected-rules-chinese-court-19102 (published on January 10, 2020).

    [xxxii] National Strategy On Artificial Intelligence, published by NITI Aayog; link: https://niti.gov.in/national-strategy-artificial-intelligence.

    [xxxiii] WIPO Begins Public Consultation Process on Artificial Intelligence and Intellectual Property Policy, PR/2019/843, World Intellectual Property Organization (WIPO), Geneva; link: https://www.wipo.int/pressroom/en/articles/2019/article_0017.html (published on December 13, 2019).

    [xxxiv] WIPO Secretariat, WIPO Conversation on Intellectual Property (IP) and Artificial Intelligence (AI), Second Session, WIPO/IP/AI/2/GE/20/1, World Intellectual Property Organization (WIPO); link: https://www.wipo.int/edocs/mdocs/mdocs/en/wipo_ip_ai_ge_20/wipo_ip_ai_2_ge_20_1.pdf (published on December 13, 2019).

    [xxxv] Bangalore, published by Wikipedia; link: https://en.wikipedia.org/wiki/Bangalore (last updated on February 07, 0220).

     

    Image Credit: WIPO