Handling IPR Issues

Before awarding a project, the IPR ownership should be clearly established

Thursday, February 10, 2005

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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.

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. 

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.

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.

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.

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Case Study: IPR issues

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