“India’s Personal Data Protection Bill and draft Non-Personal Data Governance Framework are examples of initiatives that potentially threaten innovation and economic growth,” read one of the concerns outlined by the office of the United State Trade Representative (USTR) Special 301 report that was released earlier this week.
The USTR’s office essentially looks to secure US trade interests across the world and its annual report compares the adequacy of Intellectual Property (IP) protections put in place by US trading partners like India which has been placed on a ‘Priority Watchlist’ in this year’s report.
Countries on the watchlist will be the subject of ‘extensive bilateral engagement’ over the year. Further, India’s name was included due to concerns following extensive consultations with various foreign governments and ‘non-government’ stakeholders, the report said.
Specific areas of concern raised in the report
Inclusion of non-personal data in the Data Protection Bill: “The United States on several occasions and in various fora has raised IP concerns regarding the potential implementation of India’s data governance regime,” the report said. It recommended a transparent consultation process so that stakeholders can get enough time to comment on the draft legislation, given acute IP concerns due to India’s “outdated and insufficient framework for protecting trade secrets”.
Prevalent online piracy practices like stream-ripping: The report flagged the popularity of ‘stream-ripping’ in India which is a method of creating unlawful copies of copyright-protected works distributed through licensed streaming sites. Other piracy practices, such as online piracy which involves illegitimately distributing copyright-protected works, camcording inside movie theatres, etc., were also flagged in the report as being particularly popular in India. Criticising existing measures to control such activities as ineffective, the report said that progress on the Cinematograph Amendment Bill which contains provisions to criminalise camcording in movie theatres and is pending parliamentary approval was being monitored by the USTR.
High customs duties for tech products: The issue of high customs duties on ‘IP-intensive’ products like information and communications technology products and medical devices was mentioned in the report as well.
Implications of Data Protection Bill on Intellectual Property
The USTR is not the first to raise concerns about how the latest draft of the Data Protection Bill weakens IP protections.
Internet and Mobile Association of India: In December 2021, the Internet and Mobile Association of India (IAMAI) issued a public statement shortly after the Joint Parliamentary Committee’s report on the Personal Data Protection Bill, 2019 was tabled in Parliament. “The Bill will impinge upon the IP rights of the companies as part of the new requirements on data portability and algorithmic transparency. These objectives can be achieved without compromising on trade secrets,” IAMAI said. The Bill requires companies to maintain transparency in processing personal data by including information on the fairness of the algorithm. Separately, the Bill also requires companies to ensure data portability for personal data. IAMAI objected to both these provisions in its statement.
Gaming companies: The Bill proposes sharing of information on the ‘fairness of algorithm’ with the Data Protection Authority. Swati Sudhakaran, Nazara’s AVP Public Policy & Government Affairs, had told MediaNama that the provision could carry implications for the IP rights of a business, especially if the algorithm is interpreted by the DPA to mean algorithmic source code.
Also Read:
- Data Protection Bill has changed fundamentally from 2019 version, needs consultations: IAMAI
- Deep Dive: How India’s Data Protection Bill will impact online advertising
- Deep Dive: How India’s Data Protection Bill 2021 impacts gaming companies
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