The Curious Case of the Robolawyer (No, it's not a Perry Mason Novel!)

With the advent of technology, there is a drastic increase in the use of AI (Artificial Intelligence) which has significantly altered the way technology is perceived and will have a far-reaching impact in the future. Hence, it becomes necessary to try to minimize its shortcomings and make prudent use of the technology.

I do not know how many of you have heard of Joshua Browder, the 26-year-old founder of DoNotPay, a US-based venture that has developed a “robolawyer”- essentially an AI-powered bot that helps users in use cases such as appealing vehicle parking tickets, negotiating airline ticket refunds, and contesting service provider bills. Although the app was first released in 2015, to be honest, until recently, I too had not heard of him or the app!

My curiosity was piqued when I recently read the news that his company is willing to pay a million US dollars to any person or lawyer willing to repeat verbatim in front of the Supreme Court judge all that their robolawyer asks them to. It remains to be seen whether someone will take Josh up on that offer, whether the US Supreme Court will grant permission and what the outcome will be. However, it is being reported in the media that the DoNotPay app will help two defendants argue speeding tickets in US courts next month. The company has promised to pay the fines on behalf of the users if the robolawyer loses their appeals.

The app runs on the AI model known as “Generative Pre-trained Transformer” or GPT. This is the same technology that runs ChatGPT, which reportedly hit a million users in less than a week of its launch. AI technologies are constantly improving, and there is now greater emphasis on “ethics” and “explainability.” Essentially, the software must be able to explain how it arrived at a certain conclusion or output. This is important to minimize, if not altogether eliminate, the risk of biases and prejudices that creep into AI software simply because it is trained using hundreds of millions of content elements on the web (articles, images, reports, videos, etc.) that were all created by humans, and as such, carry the individual beliefs, prejudices, convictions, etc. of their original creators.

Over the coming decades, AI will shake up many fields including legal practice, healthcare, finance, etc. Not all fields will be impacted at the same pace or to the same extent but change they will. Already, AI is being used by healthcare professionals in improving the efficacy of diagnosis and confirmation of lines of treatment. Law firms too are beginning to use AI to simplify the tedium of the process of trawling through case laws and legal judgments to identify precedents and the reasoning of the benches involved. Soon, lawyers will simply be able to type in questions into ChatGPT, which will provide well-reasoned answers in a matter of minutes. Of course, the real skill will be to ask the right questions and figure out how sensible the answers are, and decide on further courses of action. Think of it as an advocate briefing a senior lawyer before the latter argues in court.

Half-baked knowledge is dangerous. For many years, patients (and/or caregivers) have used search engines to find information about symptoms, diagnostic tests, and lines of treatment and then argue with qualified medical professionals about their choices, at times forcing doctors to explain their hypotheses and reasoning. It is quite likely that in the foreseeable future, clients of lawyers and law firms too will be tempted to adopt a similar approach, which means lawyers too will end up spending time and effort on educating clients on matters of law and jurisprudence. Maybe it is worth coming up with new pricing models to dissuade frivolous “brainstorming” and “legal strategy” sessions!

Note to myself: Try out ChatGPT to explore the kind of responses it provides and start preparing for a future that will undoubtedly be more closely linked with AI tools.

References:

[1] Design Application Numbers 274917, 274918, 284680, 276736, 260403

[2] 24 U.S.P.Q.2d (BNA) 1614 (BPAI Apr. 2, 1992)

[3] Apple, Inc. v. Samsung Elecs. Co., 926 F. Supp. 2d 1100 (N.D. Cal. 2013) (partially affirming jury damages award).

[4] US6763497B1

[5] US10915243B2

Image Credits:

Photo by cottonbro studio: https://www.pexels.com/photo/person-using-macbook-3584994/

Over the coming decades, AI will shake up many fields including legal practice, healthcare, finance, etc. Not all fields will be impacted at the same pace or to the same extent but change they will. Already, AI is being used by healthcare professionals in improving the efficacy of diagnosis and confirmation of lines of treatment. Law firms too are beginning to use AI to simplify the tedium of the process of trawling through case laws and legal judgments to identify precedents and the reasoning of the benches involved.

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Regulating Online Gaming Intermediaries - The Rules and their Implications

  • January 11, 2023
  • Padma Sinha
  • Ojasvi Agarwal

The Ministry of Electronics and Information Technology (MeitY) has released the draft Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules to bring online gaming intermediaries within the ambit of the IT Rules, 2021.

Background

Online gaming is one of the fastest-growing industries in India with the number of gamers expected to increase by 30 million from 2022 to 2023[1]. Following the increase in the number of users, it has become imperative that appropriate laws are introduced to regularize the online gaming industry. On January 02, 2023, the Ministry of Electronics and Information Technology (“MeitY”) proposed an amendment to the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“IT Rules”). The IT Rules, in its current structure, provide regulation for social media intermediaries and significant social media intermediaries. The Draft[2] “Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules” (the “Draft”), which is open for consultation from the public, proposes to extend its ambit to ‘online gaming intermediaries’ forming a part of Part II (that relates to other intermediaries).

The Draft defines “online gaming intermediaries” and “online games” but lacks to provide a clear distinction between “games of chance” and “games of skill”, which has been a sticky issue over the years. The Draft further proposes (inter alia) the following changes –

  • All online games would be required to be registered with a ministry-approved self-regulated body by creating a self-regulatory framework, to be registered with MeitY. The self-regulatory body will be responsible for reviewing and registering the online games offered by its members, subject to certain prescribed factors. Games approved by the self-regulatory body may be offered with a visible mark signifying their registration.
  • The proposed rules also mention certain compliances that need to be made by the social media firms such as checking the registration of the online gaming intermediary and consulting the self-regulatory officer before allowing any advertisement on their platform.
  • The online gaming intermediary shall comply with the requirement of due diligence and shall additionally ensure they do not host any online game that does not conform with Indian laws and shall make additional disclosures to the users including the refund and withdrawal policy, financial risks, and other risks associated with gaming, measures that are in place to ensure the safeguarding of deposits, etc.
  • In addition to the above, a new set of due diligence requires compliance with mandatory know-your-customer(KYC) norms for user verification as per Reserve Bank of India norms.
  • Similar to the requirement for social media intermediaries, requirements of appointment of a resident ‘compliance officer’ and ‘grievance officer’ have been mandated along with ‘nodal officers’ for round-the-clock coordination with law enforcement agencies and officers.
  • The online gaming intermediaries need to have a physical address in India and the same is required to be published on their website.

Purpose of the Draft

The purpose of the Draft, if it becomes the law, is to protect the interests of different stakeholders, ensure the safety of players and encourage responsible gaming.  The Draft is also put together to bring about uniformity of laws that online gaming intermediaries may be required to follow by reducing the burden of following state-specific gaming measures making it, not just easier for online gaming intermediaries to comply with the law, but also helps the enforcement agencies since it becomes difficult for the governments of different states to ensure geographical checks are in place. According to the ministry, the final amendments to the IT rules would be notified by April 2023.

Discussions & Implications

While the Draft seems to have been aiming at shaping a burgeoning gaming industry, the concerns around the Draft seem to be supplementing the already existing questions on the existing IT Rules.

At the outset, the question of whether ‘online gaming’ should remain a subject of the ‘States’ (as betting and gambling have traditionally been) or the ‘Centre’, remains unresolved. MeitY had earlier, in affidavits before the High Courts, consistently stated that is not within its purview and power to legislate on the subject and that rests solely on the states. Therefore, the introduction of the Draft without consultation and consensus amongst states seems not quite in line.

The ambiguity further extends to a lack of clarity on whether the Draft bans ‘gambling’. While IT Minister, Rajeev Chandrasekhar stated that “online games that allow wagering on the outcome are effectively a no-go area” there is no clear prohibition on ‘gambling’. The Rules only state, as a part of due diligence, online gaming intermediaries shall make reasonable efforts to ensure that online gaming platforms do not contravene any gambling or betting laws in India, which again differs from state to state.

An online game has been defined in the Draft as a “game that is offered on the Internet and is accessible by a user through a computer resource if he makes a deposit (in cash or in-kind) with the expectation of earning winnings”- In the absence of a definition of “gambling” and “betting” in the Draft and clarity on which category of games are sought to be regulated if the online game for consideration is sought to be regulated on one hand and gambling or betting content is prohibited on the other hand, remains a question[3]. While it may be assumed that the ‘kind’ component in the definition has been introduced to cover ‘non-monetary token’ or ‘online gaming currencies’, it may lead to the consequence where games that do not require any monetary incentive may also be included within the meaning of online games here. The definition can almost broadly cover all ‘gambling games’ within the purview of ‘makes a deposit (in cash or in-kind) with the expectation of earning winnings’. Would that mean that ‘gambling’ is brought within the purview of these Rules?

The Draft classifies online gaming platforms as ‘intermediaries’. Our understanding of the term ‘intermediary’ includes one that acts on behalf of another entity. However, in the case of online gaming platforms, we notice that most of them publish the gaming content themselves and do not host games on behalf of another. In view of the above, in an earlier debate, a government task force submitted a study stating that gaming platforms should be categorized as ‘publishers’ and not as ‘intermediaries’[4]. The question that remains unanswered is why we now bring online platforms within the purview of intermediaries thereby giving them passage to ‘safe harbour protection’ under Section 79 of the IT Act.

Apart from the few above-mentioned points, the Draft may expect push-back from various industry stakeholders on the Government’s over-arching power on issues of revocation of registration of self-regulatory bodies and exercising regulatory power for KYC. It is to be observed therefore how MeitY resolves the already existing issues on the IT Rules pending before the courts and accordingly brings about an amendment to the current online gaming Draft Rules catering to the purpose it mentioned in its notes[5] accompanying the Draft Rules.

References:

[1] https://www.indiatimes.com/explainers/news/how-rapidly-is-the-gaming-industry-growing-in-india-589059.html

[2]https://www.meity.gov.in/writereaddata/files/Draft%20notification%20for%20amendment%20to%20IT%20Rules%202021%20for%20Online%20Gaming.pdf

[3] https://g2g.news/online-gaming-laws/draft-online-gaming-rules-have-contradictory-provisions-ambiguity-can-still-continue/

[4] https://www.hindustantimes.com/india-news/govt-task-force-restarts-debate-on-status-of-online-gaming-platforms-101666896702910.html

[5] https://pib.gov.in/PressReleaseIframePage.aspx?PRID=1888143

Image Credits:

Photo by Yan Krukau: https://www.pexels.com/photo/gaming-chairs-and-computers-9072216/

An online game has been defined in the Draft as a “game that is offered on the Internet and is accessible by a user through a computer resource if he makes a deposit (in cash or in-kind) with the expectation of earning winnings”- In the absence of a definition of “gambling” and “betting” in the Draft and clarity on which category of games are sought to be regulated if the online game for consideration is sought to be regulated on one hand and gambling or betting content is prohibited on the other hand, remains a question.

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Generative AI: Generating Legal Headaches?

The year 2022 saw major breakthroughs in the field of “generative” Artificial Intelligence. This field is different from the more traditional “discriminatory” AI models, whose algorithms rely on the datasets they are fed during “training” to make decisions. By contrast, “generative” AI models are forced to make conclusions and draw inferences from datasets based on a limited number of parameters given to them during training. In other words, generative AI uses “unsupervised” learning algorithms to create synthetic data. The output of generative AI includes digital images and videos, audio, text or even programming code. In recent days, even poetry, stories, blog posts and art work have been created by AI tools.  

Generative AI: The Socio-Economic and Legal Problems

Like every technology, generative AI too has pros and cons. While it has made it easy to create various kinds of content at scale and in much shorter timeframes, the same technology has also been used to create “deep fakes” that then go viral on social media.  

OpenAI’s image generator platform “DALL-E 2” and automatic text generator GPT-3 have already been used to create art work and other text-based content. GPT-4, which is expected to be far more powerful and advanced, is expected to be released in 2023. Until recently, Open AI did not allow commercial usage of images created using the platform. But it has now begun to grant “full usage rights”- which includes the rights to sell the images, reprint them and use them on merchandise.  

Generative AI has the potential to open a Pandora’s Box of litigation. A class action suit has already been filed against OpenAI, Microsoft and Github alleging copyright violations by Copilot, Github’s AI-based code generator that uses OpenAI’s Codex model. The argument behind the suit is this: the tool uses hundreds of millions of lines of Open-Source code written, debugged, or improved by tens of thousands of programmers from around the world. While these individuals support the Open- Source concept, code generators like Copilot draw on their code (which was fed to it during its training) to generate code that may well be used for commercial purposes. The original authors of the code remain unrecognized and do not get any compensation.  

A similar situation can easily occur with art work created using AI-based tools because all that such tools need to create a digital image is a text prompt. For example, Polish artist Greg Rutkowski, known for creating fantasy landscapes, has complained about the fact that just typing a simple text like “Wizard with sword and a glowing orb of magic fire fights a fierce dragon Greg Rutkowski” will create an image that looks quite close to his original work. The smarter text recognition and generative AI get, the simpler it will be for even lay people to use. Karla Ortiz, a San Francisco based illustrator is concerned at the potential loss of income that she and her fellow professionals might suffer due to generative AI.[1]

 Sooner than later, this challenge will be faced by playwrights, novelists, poets, photographers and pretty much all creative professionals. Indeed, AI tools could conceivably put writers out of business in the next few years! AI generators are “trained” using millions of poems, images, paintings etc that were created by persons dead or alive. Their creators or their legal heirs do not currently have the option to exclude their works from the training datasets. In fact, they do not even usually know that their works have been included.  

The creative industry itself is taking various steps to protect the rights of various categories of creative professionals. Such measures include the use of digital watermarking for authentication, banning the use of AI-generated images, and building tools that allow artists to check if their works have been used as part of any training datasets and then opt out if they so choose.  

A more pernicious problem could conceivably arise when deliberately or inadvertently, misleading content is created and posted- and consumed by innocent users. Some early examples of such misuse have already emerged, and there is a genuine concern that if these activities are not nipped in the bud and information on the internet is not somehow authenticated, serious, unexpected, and large-scale damage may be caused.  

Overhauling the Laws

In the US, AI tools may, for now, take legal cover under the fair use doctrine. But that applies only to non-commercial usage. Arguably, the current situation where researchers and companies building AI tools freely use massive datasets to “train” their tools violate the spirit of ownership and protection of IPR because these AI generators are also being used for commercial benefit. Also, as various lawsuits are already underway, changes to IPR and related laws will need to be made to explicitly enable AI. Not doing so will only impede the use of AI in various fields where such algorithms can deliver significant benefits by speeding up innovation.  

References:

[1] https://www.technologyreview.com/2022/09/16/1059598/this-artist-is-dominating-ai-generated-art-and-hes-not-happy-about-it/

Image Credits:

Photo by Tara Winstead: https://www.pexels.com/photo/robot-fingers-on-blue-background-8386369/

Like every technology, generative AI too has pros and cons. While it has made it easy to create various kinds of content at scale and in much shorter timeframes, the same technology has also been used to create “deep fakes” that then go viral on social media.  

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Private Sector Fuels India’s Space Economy

The Indian National Space Promotion and Authorization Centre (IN-SPACe) was set up in 2020 as an independent body to oversee regulation of all space related activities in India, including the authorization of private rocket launches. The government’s decision to allow the private sector into India’s space sector was aimed at broad-basing innovation capabilities and speeding up India’s ability to compete in the global market for space technologies- a high-growth market that has historically been dominated by a small number of players from the US and Europe.

This decision seems to be paying off, because India’s private sector has already become quite active across the value chain in the space sector. Nearly 300 entities are already registered with IN-SPACe, of which 30% are startups. On 18th November 2022, Vikram-S, a small single-stage rocket developed by Hyderabad-based startup Skyroot Aerospace, was successfully flight tested. This marks the beginning of “Prarambh”, the company’s sub-orbital mission. By year-end, Chennai-based Agnikul Cosmos expects to launch its small rocket too. Pixxel, another space startup, has already launched Shakuntala, India’s first privately built earth imaging satellite and a second satellite Anand. A consortium of L&T and HAL has been awarded a contract to build five PSLVs. This is the first time anyone other than ISRO has been tasked with this key responsibility- an indication of the government’s rising confidence in our private sector. The success is testament to the robust space sector ecosystem being built as a result of close collaboration between ISRO, IN-SPACe, academic institutions, and the private sector (both startups and established companies).

 

Why the Private Sector is Important for India’s Space Economy?

The capability to launch small rockets is critical because smaller rockets can place their payloads in more precise orbits. Also, they can be produced in shorter timelines by using 3D printing technologies. Miniaturization of components means that required functional capabilities can be achieved through smaller satellites. All this means that satellites with specific functional capabilities can be quickly assembled and launched. Smaller rockets can be easily fueled by liquid propellants, which are inherently easier to manage; they are also less prone to vibrations, which can become a challenge for launch vehicles that carry sensitive payloads.

Given rising geopolitical uncertainties, there is now a higher risk of conflicts between countries arising at short notice. Increasingly, wars will be fought using cyberattacks and directed energy weapons to degrade the enemy’s vital assets such as communication satellites and missile defence batteries. Swarms of weaponized drones too will be deployed to target and destroy vital military installations in remote, hard-to-access areas. In such a scenario, it becomes critical that as a country we can launch new satellites and other space assets quickly to replace lost capacities or augment and complement new space-based capabilities that are needed.

ISRO has successfully designed, developed, and launched heavy, multi-stage rockets into space. These technologies/capabilities have helped place many satellites in orbit and in turn, these are playing a key role in India’s development. ISRO has also developed the SSLV (Small Satellite Launch Vehicle), but unfortunately, its technology demonstration mission failed earlier this year. It is this gap that the private sector can help plug at short notice.

 

Public-Private Cooperation is Vital to Power India’s Space Economy

As various countries seek to build/enhance their space-based defence capabilities, countries like India can benefit from commercial contracts to launch satellites/other payloads and conduct defence missions in space. With defence capabilities increasingly relying on assets deployed in space, the evolution of India’s private sector space capabilities will also boost our credibility as a builder of solutions and not just as a provider of reliable, cost-effective space launch services. While ISRO continues to build its reputation as a reliable partner, it needs to scale up its ability to launch satellites for its customers. In October 2022, ISRO successfully launched 36 satellites for UK-based OneWeb (partly owned by the Bharti group), marking the use of the LVM3 rocket; this was also one of ISRO’s largest commercial orders. More such opportunities can come ISRO’s way because satellite-based internet services are rapidly becoming cost-competitive and an easy way to deliver connectivity to far-flung areas where building fibre-based infrastructure is difficult due to terrain and weather conditions.

It is estimated that by 2025, India’s space business will grow to US$12.8 Billion from US$9.6 Billion in 2020 (source: https://timesofindia.indiatimes.com/india/how-indias-space-startups-are-aiming-high/articleshow/95637043.cms). ISRO is a shining example of a public sector entity that has consistently overcome huge odds (including sanctions from time to time) to indigenously develop world-class capabilities in frontier areas like space technologies. Its ability to do much more has arguably been limited by budgetary support. And although launches are the most visible part of a space economy, they are by no means the only facet: design, development, manufacturing, building technology demonstration prototypes etc. are all just as important. Now, with the innovative energies and other resources available to the country’s private sector, significant synergies can be unleashed through public-private partnerships in the space sector.

References: 

Image Credits: Photo by Pixabay: https://www.pexels.com/photo/space-technology-research-science-41006/

With defence capabilities increasingly relying on assets deployed in space, the evolution of India’s private sector space capabilities will also boost our credibility as a builder of solutions and not just as a provider of reliable, cost-effective space launch services. While ISRO continues to build its reputation as a reliable partner, it needs to scale up its ability to launch satellites for its customers.

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The Energy Conservation (Amendment) Bill, 2022 – A Retort to Increasing Emissions

On August 9, 2022, the Energy Conservation (Amendment) Bill, 2022 (the “Bill”) passed the muster of the Lok Sabha (lower house of the Indian Parliament). The Government of India had identified new areas to achieve higher levels of penetration of Renewable energy and the bill sought to enhance demand for renewable energy at the end- use sectors such as Industry, buildings, transport etc.

What demanded the introduction of the Bill?

Decarbonization. The Bill, which amends the Energy Conservation Act, 2001 (the “Act”), introduces a series of modifications that opens the door for sustainable development. According to Bill’s statement of objects and reasons, it aims to, among other things, promote the use of green fuels and the growing renewable energy sector, ensure industrial energy efficiency, and establish a domestic “carbon market”, and carbon trading scheme to fulfil the commitments made by India at COP-26 (Conference of Parties -26) in Glasgow in 2021.

 

What are the major changes proposed in the Bill?

 

The Penalty


To enhance the effectiveness of the law and create stronger deterrence, the bill introduced stricter enforcement mechanisms. The changes include new penalties and aggravation of existing penalties for violations of certain provisions relating to the efficient use of energy and its conservation[1], use of deceptive names (introduced in the Bill)[2], and provision of information[3].

A new penalty introduced, for instance, is that if a vehicle manufacturer fails to comply with fuel consumption standards, he will be liable to pay an additional penalty (in addition to the penalties he is liable to under the Act) per unit of vehicles sold in the corresponding year, as follows:

  • twenty-five thousand rupees per vehicle for non-compliance with norms up to 0.2 litres per 100 km.
  • fifty thousand rupees per vehicle for non-compliance with norms above 0.2 litres per 100 km.[4]


Carbon Credit Trading


The Bill seeks to reduce carbon emissions by creating a carbon credit trading scheme. The Central Government is empowered under Section 14AA of the Bill to specify such a scheme.

Interestingly, the Act has enumerated a scheme through which energy savings certificates are issued by the Central Government to those plants or industrial units whose energy consumption is less than the prescribed norms and standards. Units that are unable to comply with the set energy consumption norms are entitled to purchase the energy savings certificate to ensure compliance. The industrial units that fail to meet the energy savings targets even after purchasing the energy saving certificates are liable to be punished with a fine as per the provisions of the Act.

To understand how a carbon credit trading scheme would aid in reducing emissions, we must understand what a carbon credit trading scheme is. A carbon credit is a certificate/permit that gives its holder the right to emit a certain amount (usually a tonne) of carbon dioxide. Based on historical emissions, carbon credits are provided to an organisation in a particular sector. If the organisation goes over its allocated amount of carbon credits, then it would have to purchase more credits from the carbon market, where carbon credits are bought and sold. And the price of the carbon credit is determined by the market forces of supply and demand. Additional factors that influence the pricing of carbon credits include regulations established by the government, international climate change protocols, emission trading schemes, and a carbon tax. This scheme or system of buying and selling carbon credits is, in simplistic terms, a carbon trading scheme. Hence, the carbon trading scheme aims to reduce carbon/greenhouse gas emissions by assigning a financial cost for causing pollution. This implies that for such units, carbon emissions will now be equivalent to any other capital investment like raw materials or labour.


Expanding, Enlarging, and Empowering


  1. Vehicles and Vessels– The Act, under Section 14, empowers the Central Government to set standards to enable efficient use of energy and its conservation for any equipment, appliance that consumes, generates, transmits, or supplies energy. The Bill seeks to include vehicles (as defined under the Motor Vehicles Act) and vessels into the scope of Section 14. Corresponding provisions for penalties have also been included in the Bill for violations of the provisions of the Act.
  1. Buildings- Under the Act, the Central Government and the Bureau of Energy Efficiency have the authority to lay down energy conservation standards for buildings, ascertained in terms of area. The Bill seeks to amend the provision to the effect that, now, the Bureau and the government shall set energy conservation and sustainable building codes, that shall elaborate upon standards for energy efficiency and conservation, use of renewable energy, and other requirements for green buildings.
  1. Residential Buildings– The energy conservation code in the Act has only been made applicable to commercial buildings. The Bill seeks to include residential buildings along with commercial buildings under the scope of the Code. As per the amended provision of the Bill, the State Governments have also been empowered to lower the load threshold. By bringing residential buildings under the scope of the energy conservation code, the responsibility for ensuring mindful energy consumption would effectively fall on citizens as well as industries.
  1. Composition of BEE Governing Council– The governing council of the Bureau of Energy Efficiency (BEE) created under the Act has twenty, not exceeding twenty-six members, which is intended to be expanded to thirty-one, but not exceeding thirty-seven members by the Bill. This expansion is likely intended to improve bureaucratic efficiency in the administration and enforcement of the provisions of the Act.
  2. State Electricity Regulatory Commission– The Act empowers the Bureau of Energy Efficiency to make regulations as necessitated, with the approval of the Central Government[5]. The Bill also envisages empowering the State Commission to make regulations for discharging its functions under this Act[6].


Concluding Thoughts


The amendments that are envisioned under the Bill are strides in the right direction for enabling better regulation of carbon emissions and promoting the objective of sustainable development by encouraging a switch from fossil fuels to renewable energy sources. While the carbon trading scheme under the Bill has the right intentions, it is still lacking in clarifications pertaining to the market structure and incentive scheme for facilitating carbon trading in the country.

As with any other law, strict enforcement and alignment of all the relevant stakeholders contingent on the success of proposed policies under the Bill would be key in ensuring that India achieves its goals towards facilitating a steady shift from fossil fuels to promotion of new and renewable energy (wind, solar, etc.), accomplishes milestones contemplated in the National Green Hydrogen Mission, and actualizes its vision to meet 50 per cent of its energy requirements from renewable sources by 2030, as envisaged under the ‘Panchamrit’ strategy announced at the COP 26 conference in Glasgow.  

References:

[1] Section 14 clause (c) or clause (d) or clause (h) or clause (i) or clause (k) or clause (l) or clauses (n) and (x); and Section 15 clause (b) or clause (c) or clause (h) of the Act.

[2] Sub-section (1) of Section 13A of the Bill.

[3] Section 52 of the Act.

[4] Second proviso to Section 26 (2) of the Bill.

[5] Section 58 of the Act.

[6] Section 13 of the Bill.

Image Credits: Photo by catazul from Pixabay 

The amendments that are envisioned under the Bill are strides in the right direction for enabling better regulation of carbon emissions and promoting the objective of sustainable development by encouraging a switch from fossil fuels to renewable energy sources. While the carbon trading scheme under the Bill has the right intentions, it is still lacking in clarifications pertaining to the market structure and incentive scheme for facilitating carbon trading in the country.

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The Indian Telecommunication Bill, 2022: An Au Courant Approach

Telegraph was first introduced in India in the year 1851 and telephone exchanges were set up in the early 1880s. The Indian Telegraph Act, 1885; the Indian Wireless Telegraphy Act, 1933; the Telegraph Wires (Unlawful Possession) Act, 1950, were enacted to suit the needs of the day. The usage of the telegraph as a telecommunication mode became obsolete in 2013, and today technologies such as 4G and 5G, the Internet of Things, Industry 4.0, M2M communications, Mobile Edge Computing, etc. are revolutionising the sector.

While these technologies create new opportunities for social and economic growth, issues relating to dispute resolution and penalties, data privacy, the infrastructural needs of the industry, etc. become more complex.

With the objective of reforming the telecommunication law and making it more sensitive towards the concerns of this ever-evolving sector, a consultation paper on the “Need for a new legal framework governing Telecommunication in India”[1] was issued by the Department of Telecommunication on July 23, 2022, inviting comments.

The Consultation Paper proposed a new legal framework to address the following:

  1. Simplification of the regulatory framework while ensuring regulatory certainty, minimising policy disruption, promoting investment, and preventing retrospective application.
  2. Spectrum assignment should be to best serve the common good and widespread access, with utilisation of spectrum liberally and neutrally allowed, as should the deployment of new technologies, the repurposing and rearrangement of frequency range, and the authorisation of the central government to share, trade, lease, and surrender spectrum.
  3. Provide a robust regulatory framework to obtain Right of Way and resolve disputes thereby ensuring the deployment of new technologies and ensuring continuous connectivity.
  4. Simplify the framework for mergers, acquisitions, or other restructuring.
  5. Ensure the license is not suspended or terminated during Insolvency while services are being provided, and ensure there is no default on license or spectrum dues.
  6. Expanding the scope of the Universal Service Obligation Fund to address delivery of telecommunications service to underserved rural and urban areas.
  7. Proportionate penalty for offences.
  8. Address situations of public emergency, public safety, or national security.

The draft Telecommunication Bill 2022 was created in response to public feedback on the consultation paper [2].  Further comments on the draft have been invited till 20th October 2022. It intends to replace the Indian Telegraph Act, 1885; the Indian Wireless Telegraphy Act, 1933; and the Telegraph Wires (Unlawful Possession) Act, 1950.

 

Key Takeaways of the Draft Telecommunication Bill, 2022

 

Over-the-top (OTT)

 

There was an interpretational discord as to whether OTT is regulated under the current legal system. The government is of the opinion that OTT is adequately covered under the definition of “Telegraph” in the Telegraph Act. However, there is no explicit legal backing. The proposed bill explicitly clarifies that OTT communication services are a telecommunication service. The bill’s definition of telecommunication service incorporates current technological trends in the industry and includes voice and video communication services, machine-to-machine services, and broadcasting services. Any transmission and receipt of a message through a wire, radio, optical, or electromagnetic system would be telecommunication. Such telecommunication, when intended to be received by the general public, becomes a broadcasting service. Therefore, an OTT service provider, be it broadcasting/streaming services or data/video call services, falls explicitly within the ambit of the Telecommunications Bill, 2022.

 

User-Beneficial Provisions

The bill requires that the identity of the person sending a message be made available to the user receiving the message at all times. Therefore, any call recipient from a landline, cellular, or through OTT platforms like WhatsApp, Facetime, or Zoom calls will have information about the caller. To achieve this end, the KYC of all the users has to be obtained by all service providers, including OTT platforms.  Users are prohibited from providing false information about their identity when obtaining telecommunications services. Any misrepresentation of identity is punishable with imprisonment for one year or a fine of up to 50,000 rupees. An advertisement or promotional message, whether fictitious or real, shall not be sent unless consent is procured from the recipient. Any unsolicited message shall be an offense, and the sender is liable to be penalized. The Bill formulates a mechanism for the preparation and maintenance of the ‘Do Not Disturb’ register. The user-beneficial provisions and the penalty for violation are not substantial enough. When the losses caused to the public because of cyber frauds are more than 1 lakh crore each year, the penalty for such fraud of INR 50,000 is not a deterrent. It is ideal that such offenders are abstained from providing telecommunication services so that repeated cyber frauds or impersonations can be avoided.

 

Spectrum Allocation

 

The Bill provides that spectrum allocation can be done only through auction, directly under circumstances specified in the schedule, such as national security, or in such a manner as mentioned in the rules. The Hon’ble Supreme Court of India, in “Union of India & Ors v. Centre for Public Interest Litigation and other” decided on February 2, 2012, stated that:

“When it comes to the alienation of scarce natural resources like spectrum, etc., it is the burden of the State to ensure that a non-discriminatory method is adopted for distribution and alienation, which would necessarily result in protection of national/public interest. In our view, a duly publicised auction conducted fairly and impartially is perhaps the best method for discharging this burden and the methods like first-come-first-served when used for alienation of natural resources/public property are likely to be misused by unscrupulous people who are only interested in garnering maximum financial benefit and have no respect for the constitutional ethos and values. In other words, while transferring or alienating the natural resources, the State is duty bound to adopt the method of auction by giving wide publicity so that all eligible persons can participate in the process.”

The Hon’ble Supreme court’s order mandates spectrum allocation only via auction. However, allocation of Spectrum under extraordinary circumstances such as national security and defence by the Central Government is understandable. Nevertheless, the entire list of Schedule I activities wherein the government is authorized to allocate spectrum to BSNL/MTNL or can assign it to “any other function or purpose as determined” is far too wide to defeat the very purpose of the order.  Further, it is ideal that such spectrum allotted under Schedule I, shall not be resaleable but only returnable to the government.

The Bill provides the Central Government rights to repurpose the spectrum frequency for a different use (“re-farm”), rearrange the frequency range (harmonization), or assign part of the assigned spectrum to another entity for efficient spectrum utilization, or if the spectrum remains unutilized.

 

Seamless Transition 

There is a new set of terms and conditions that will be formed after the Act and rules come into force. A telecom service provider and telecom infrastructure provider have a choice on whether to migrate to the new set of terms and conditions under this bill or the existing terms as per their existing license. A wireless equipment provider has to procure new authorisation (instead of a license). The existing spectrum licenses shall continue to remain valid for a period of 5 years or until the date of expiry, whichever is earlier. The existing rules under the old Telegraph enactments shall continue until superseded by the new rules. All Telecommunication Bill provisions are prospective in nature. These mechanisms would allow greater acceptance of the new Act and a seamless transition.

 

Penalties and Offences

In casesof breach of the terms and conditions of a license, registration, authorisation, or assignment, the government can revoke, suspend, or curtail such approvals. Further, the government can impose a penalty based on the severity of the breach after considering whether it is severe, major, moderate, minor, or non-severe. A licensee can provide a voluntary undertaking to the authority with respect to any breach or delay. Acceptance of a voluntary undertaking will put the proceedings on hold. An alternative dispute resolution mechanism for resolving certain disputes or classes of disputes is envisaged. The Bill provides a list of offences covered by it, the imprisonment or fine imposed, and whether such offences are bailable or cognizable.

 

Right of Way

The mechanism for Right of way is differentiated on the basis of whether it is public property or private property. In the case of public property, the authority has to provide permission in a time-bound manner.  In the case of private property, parties may mutually negotiate an agreement. To overcome the issues of the sale of property along with the telecom infrastructure, an explicit provision has been enshrined to state telecom infrastructure is different from the property it is installed on. Therefore, the property owner cannot claim ownership of the tower in his/her property, and it remains independent of any sale or lease. It is ideal that the Right of Way arrangements/agreements be standardized. Further, the legal framework should also encompass penalties in case of violation of the Right of Way by either the telecom infrastructure provider or the property owner.

 

Common Ducts & Cable Corridors

An express provision is planned under which the Central Government will require infrastructure projects to have common cable ducts and cable corridors established and such cable made available to facility providers on an open access basis.

 

Restructuring & Insolvency

A licensee entity undergoing restructuring/merger/acquisition has to merely inform the authority and an explicit prior approval is not required. The restructured entity has to thereafter follow the rules therein. In case of insolvency, service continuity is given priority, and the entity retains control over Spectrum. An enabling framework has been made for the Central Government to intervene and revert the control of the Spectrum to the Central Government in case the entity fails to provide telecommunications services, and has promptly paid the spectrum licensing fees/charges.

 

Regulatory Sandbox

A regulatory framework of simplified license terms and conditions to empower the start-up ecosystem is formulated, whereby such entities can live-test their products and services in a controlled environment.

 

The Telecommunication Bill is a framework that intends to create a comprehensive and centralised legal ecosystem for an industry that is rapidly expanding with the addition of new players in the market, investments, and technology. How the Telecommunication Act, Digital Data Protection Act, and Digital India Act finally shape up to create a legal landscape to address the new technological challenges remains to be seen. The proposed Telecommunications Bill has addressed the concerns of the present while keeping an eye on the future in its simple, light-touch approach- a concrete step in the right direction.

References:

[1] https://dot.gov.in/sites/default/files/Consultation%20Paper%20final%2023072022-1.pdf?download=1

[2] https://dot.gov.in/sites/default/files/Draft%20Indian%20Telecommunication%20Bill%2C%202022.pdf

 

Image Credits: Photo by Mario Caruso on Unsplash

The Telecommunication Bill is a framework that intends to create a comprehensive and centralised legal ecosystem for an industry that is rapidly expanding with the addition of new players in the market, investments, and technology. How the Telecommunication Act, Digital Data Protection Act, and Digital India Act finally shape up to create a legal landscape to address the new technological challenges remains to be seen.

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TRAI’s Framework for Data Centres, Interconnect Exchanges and Content Delivery Networks- An Update

Communication services such as voice, video, data, internet, and wideband multimedia have become indispensable in the modern society. Information communication technology (ICT) has become a vital resource in development of various economic sectors enabling the various participants in economic and social spheres to have a quick and easy access to information and knowledge. ICT makes communication efficient in all spheres of life- in companies fostering increased efficiency, allowing access to human resource, promoting sustainable development of entrepreneurship.

At present, most sectors and organizations are generating mountains of data on a daily basis. Therefore, to stay competitive, organizations are constantly working to optimize data to leverage it to their advantage. For instance, the banking sector uses data extensively to understand how their customers use data to identify potential security risks. Data plays a vital role in the real estate and property management sector by extending an improved property analysis mechanism, understanding the customers and deciphering the market trends. The telecom industry is also utilizing data to improve in several key service areas, including customer experience, fraud reduction, churn prediction, and dynamic pricing. Further, with the rollout of 5G, data plays a key role in network planning, monitoring and management. Hence, data is the central force for driving crucial innovative and advanced industry solutions for the systematic growth of the economy.

Digital advances have generated enormous wealth in record time, but that wealth has been concentrated around a small number of individuals, companies and countries. Under current policies and regulations, this trajectory is likely to continue, further contributing to rising inequality, not only at the country level between developed and developing economies but also at the level of big online players, controlling data acting as an entry barrier for new entrants, leading to near monopoly in global digital markets. The effect of globalization and the development of the telecommunication sector has also affected the Indian market vitally.

On 21 December 2021 TRAI- the Telecommunication Authority of India released a consultation paper on the ‘Regulatory Framework for Promoting Data Economy through Establishment of Data Centres, Content Delivery Networks, and Interconnect Exchanges in India’ where it discussed and opined thoroughly on the markets of data economy, its challenges and its growth and future opportunities in the sector.


The TRAI Consultation Paper and Data Centres  

 

The new era of digitization has rolled out 5G, Internet of Things (IoT), and Artificial Intelligence (AI) leading to the creation of data via widespread, geographically distributed networks and new-age devices. Further, Enhanced Mobile Broadband (eMBB), Ultra-Reliable Low Latency Communications (URLLC), and Massive Machine Type Communications (MMTC) are set to emerge as dominant storage interfaces. 5G, along with edge computing, is set to fulfil the needs for ultra-reliable, low-latency, and high-throughput communication. Use cases driven by this intelligence-centric connectivity will catalyse computing at the edge as they effectively become mini data centres and bring a completely new paradigm to storage at the edge. This brings with it a need for advanced networking, computing and storage in edge devices and endpoints.

The main theme of the TRAI consultation paper is the development of a regulatory framework to make the data market more abiding and regulated for systematic development and protection of its users. While competing with the world data economy the need for a proper regulatory framework that can encourage the development of 5G, IoT, data centres, and associated services, data analytics, edge computing, digital platforms, and applications were discussed and their effect on the growth are discussed in the paper.  For any economy to be competitive, it has become essential to become reliable and self-sufficient in terms of futuristic technology. This has bought the Indian government’s inaction to bring in various initiatives and policies to bring digitalisation to the forefront of the market. Policies like Digital India Programme 2015 and National Digital Communication Policy 2018 contributed tremendously to the development and population of the data economy and digitalization.

The TRAI paper clearly emphasized and questioned the potential of growth of data centres in India in light of various challenges in terms of economic/infrastructure and financial aspects. The paper sought views on:

(i) incentives and long-term measures to facilitate growth and investment in data centres, Content Delivery Networks (“CDN”s), and Interconnect Exchanges (“IXP”s).

(ii) building, safety, disaster recovery, and security standards for data centres.

(iii) access to facilities such as dedicated fibre and electricity, and provision of concessional tariffs or subsidies.

(iv) need for a unified data centre policy in India and centre-state coordination.

(v) need for a regulatory framework for CDN and interconnect exchanges in India.

Additionally, it was noted in the paper that the mere establishment of data centres will not efficiently meet the country’s data requirements.  Initiatives to address challenges of data penetration in Tire 2 and Tire 3 cities also has to be addressed. The paper also discussed and opened itself to comments on the green data certification, building norms for data centres and other aspects important for the development of an economically efficient data economy. The paper further discusses the impact of Covid-19 on the digital economy that resulted in a data surge arising out of increased digital social interactions and online transactions.


The Infrastructure of the Data Economy

 

The paper recognises the following three main infrastructures for boosting the data ecosystem and facilities

  • Data Centres
  • Content Delivery Networks
  • Internet Exchange Points

Together these three form the part of what can be termed as “Digital communication infrastructure and services”. It is important to note that with CDN the delivery of the data sought by the users is established and the players like Netflix, Youtube and Amazon establish their own CDN  in locations that are near to users to make the use of the internet bandwidth less which ultimately reduces the cost and make it more economical for them. These CDN networks are not adequately regulated in the Indian market. TRAI with the consultation paper has sought opinions on the same and has also highlighted the point of whether the lack of a regulatory framework for these CDN networks in India affects the growth of the CDN market in the country.

The main mission of the paper was to connect India with proper digital communication infrastructure, propel India with the latest technology including 5G, AI, IoT Cloud, and empower India by securing its digital sovereignty and data protection.

The consultation paper further analysed the idea of the dark fibre cable network, data centre and the regulatory framework or other limitations these data centre companies are facing and how these avenues can be incentivised. 


Infrastructure Requirements for Data Centres

 

The paper discussed the resources which are required for the establishment of the data centres and how their availability or shortage can add to the hardships of the establishment of economical units of the data centre. While opting for and establishing a data centre it’s essential to look into the availability of the power supply and water. India faces an energy deficit of 1,44,1 Million Units (MU). The most affected areas are the rural areas in India. The cost of power can also not be overlooked. The major cost which is approximately 50-60% of the total operating cost of these data centres is the cost of power. The power and cooling segment of the Indian Data Centre power and cooling market is expected to reach $1,065.5 million by 2025, growing at a Compound Annual Growth Rate (CAGR) of 9.4% during the forecast period 2019–2025. 

Water resources were another facility for which data centres might face challenges. The major work of the water is to cool off. As per the report around 15- megawatt of energy in a Data Centre can use up to 360,000 gallons of water a day as the scale of the data centre will rise more reliable sources of water has to be looked into. In the process of cooling off some amount of water is also evaporated leading to loss of water. The question which arose is whether India is ready to meet these power and water supply requirements for the establishment of a highly popularizing segment of data centres. This remains a question of concern to meet the cooking up future requirements

Looking into the matter the TRAI suggested developing renewable energy and development of green data centres. In Europe, the climate-Neutral Data Centre pact is the law that aims to make all of the European Union Climate-neutral by 2050. These green data centres will have low emission rates. A vision to create such data centres and emphasis on the establishment of data centres driven by renewable energy was also emphasised.


Telecom Data and its Security Issues


 

Telecom data is the first digital footprint created by any household. For proper functioning of the services collecting such user data and establishing robust infrastructure for the services providers to proffer better services becomes very essential. For this, the mechanisms of the consented sharing of telecom data and data empowerment and protection Architecture were explained in the paper.

Even though the intention of the Personal Data Protection (Bill) 2019 was to extend legislative protection to users wherein purpose-driven collection of data, user consent to sharing of personal data etc. were addressed, it is yet to be seen how the law progresses in the future. 


Telecom Industry and the OTT Platforms

 

The functioning of the telecom industry and its importance and assistance in the development of Over the Top (OTT) platforms like ‘Netflix’, ‘Amazon’, ‘Hotstar’ can be understood easily. The telecom industry provides the oil to these OTT industry players for smooth functioning and better market reach. In the recent paper released by the Competition Commission of India (CCI) on the market study of the telecom sector, it highlighted the raising trends of a partnership between the telecom Industry and these platforms and how this can act as an entry barrier. 


CCI’s Concern over the Growth of the Telecom Market and its Nexus with TRAI

 

The market study of the telecom sector released by the CCI on 22nd January 2021, highlighted various contemporary competition issues, including upcoming competition issues as the telecom sector is set to see further transformation and innovations with 5G around the corner, discussing:

(a) Financial stability and competition

(b) Vertical integration and competition.

(c) Data privacy and competition.

(d) Infrastructure and competition.

The CCI raised concerns over the data privacy of the users from deals like Jio- Facebook, where the users are robbed of their right to data privacy. Raising concerns of such kind in its study, the TRAI also channelized its discussions on similar lines in its paper where a huge threat to the data privacy of the users was discussed and a strong need to regulate and limit the data sharing and purpose-driven data collection was identified. 


Regulatory Framework for the Data Centres, Current Scenario and the Way Forward

 

A strong surge in the consumption of data has been projected for the coming years. This massive increase in the use of data shall require a robust mechanism for data management, data security, and good data infrastructure. However, India still lacks a centralized regulatory framework that properly regulates or prescribes compliance standards with respect to the establishment of such data centres. This consultation paper by TRAI is the first concrete step in this direction.

The paper received comments from various significant stakeholders. While addressing the issue of data penetration at Tier 1 and Tier 2 cities, Vodafone Idea Limited (‘VIL’), one of the stakeholders, suggested that the Government should extend tax benefits to Service Providers that are building disaster recovery sites to ensure reliable services. Development of Special Economic Zones (‘SEZ’) in TIER 2 & 3 cities should be undertaken to motivate data centre players, rationalization of electricity tariffs across all states and ready infrastructure facilities inclusive of power, transport, water supply, fibre connectivity etc. should be set up in those Tier 2 & 3 cities. VIL further observed that a central law governing data construction and operation should address aspects relating to the entire lifecycle of data centres. Since the National Broadcasting Company (‘NBC’) covers maximum data centre related guidelines, it is recommended to form a single regulatory body under NBC, which should develop India-specific building standards for the construction of data centres operating in India.

Internet freedom foundation, another stakeholder, has also provided its comments and suggestions on the considerations raised in the Paper. The foundation advocated the urgent need for the creation of a multi-stakeholder body for the enforcement of net neutrality. The need for a more efficient data policy specifically designed for the telecom industry was also put forward promoting evidence-based policymaking for the CDNs. In order to ensure a more streamlined functioning of the telecom industry, the foundation emphasized overall sectoral transparency. It raised concerns over data monetization and its threats. Additionally, it placed stress on proper surveillance of these data centres as sensitive data of users would be involved.

The National Association of Software and Service Companies (‘NASSCOM’) in their comments on the paper focused on the development of the CDN market and its growth potential in India. NASSCOM raised concerns over regulatory compliances that can potentially make the Indian CDN market less competitive and advised on initiating strategies to combat the same. It also raised concerns over the reduced network efficiency because of the regulatory requirement of interconnection with Telecom Service Provider (TSP) and Internet Service Providers (ISP) and network neutrality. It opined that both will be affected negatively by the criteria proposed by the paper. It urged TRAI to refrain from imposing ex-ante obligations for mandatory interconnection between CDNs and ISPs.

With all these regulatory challenges the stakeholders also provided their point of view on the issues and challenges of the data centres, from advocating for the establishment of special economic zones and providing some tax benefits for the establishment of the data centres to the need for proper authority for the certification of the data centre as adopted globally has been highlighted. The stakeholders also highlighted the portions wherewith not much effort skilled labour can be found and up-gradation of the existing skills can be done. Data privacy matters took the spotlight in almost all the stakeholders’ comments. They advocated for the implementation of a comprehensive law to deal with the matter at hand. Further, on compliance, the stakeholders emphasized structuring an all-encompassing competent channel for the use and availability of the resources such as power, land, and water for smooth functioning of the data centres.

In 2020, Singapore imposed a moratorium on the establishment of the data centres because of the disparity in the use of resources by 7%. India is already facing challenges in sustainable development and is aiming to become a global hub for data centres, without a practical mechanism in place. It is interesting to note that, states like Karnataka and Tamil Nadu have formulated their policy on the same. They have also sought amendments in the state legislations to incorporate congenial provisions for the establishment of the data centres but until now no steps have been taken.

As per some of the suggestions, in addition to notifying a national policy on data centres, the government should also identify and proffer various incentives for the players keen on undertaking the establishment of such data centres, especially with respect to considerations like electricity, water resources, infrastructure, technology and Research and Development. Before formulating and enforcing anything it’s evident for the government to into consideration all the aspects of labour, resources, real estate etc. before devising a perfectively addresses the challenges of the sector and works in concert towards the benefits of its stakeholders.

In 2020 the Ministry of Information Technology formulated a Data Centre Policy, 2020 discussing the challenges and how a centralised system for clearance and approval for the establishment of data centres has to be structured and new building norms specifically dealing with the construction of the data centres are to be developed. More stress on a smooth regulatory framework for ease of doing business was emphasised.

While the central government is yet to formulate comprehensive legislation to govern data centres, various state governments have undertaken the initiative to regulate the sector within their jurisdiction.

Maharashtra’s Data policy extends fiscal incentives such as stamp duty exemption, electricity duty exemption, value-added-tax refund and property tax benefits for data centres that comply with specific criteria. 

Telangana’s Policy extends fiscal incentives like power, building fee rebates and land at subsidized costs. Additionally, other non-fiscal incentives like exemption from the purview of the Telangana Pollution Control Act, exemption from statutory power cuts and from inspection under specified labour legislation and permissions to file self-certificates have also been offered.

The Tamil Nadu Data Centre Policy 2021 has established a single-window facilitation portal to maintain time-bound processing of applications and coordination with various agencies and departments. Further, incentives such as electricity tax subsidies on power, concessional open access charges and cross-subsidies, dual power and stamp duty concessions and permits for self-certificates pertaining to compliance with respect to statutory registrations and forms under respective labour legislation are provided. 

The Data Centre Policy 2021 of Uttar Pradesh provides incentives with respect to data centre park developers and data centre units. Interest/capital subsidy, land subsidy, stamp duty exemptions and dual power grid network, as well exemption from inspection under labour legislation and permissions to file self-certificates have also been provided for under the legislation.

West Bengal data centre policy 2021 is a 5-year plan providing various power, water and infrastructure facility for the smooth functioning of the data centres. 

Haryana and Karnataka are still finalising their state policy while the Odisha government has also rolled out a policy that needs further development and the status of its implementation is not yet confirmed.

As per some of the suggestions of the stakeholders, in addition to notifying a national policy on data centres, the government should also identify and proffer various incentives for the players keen on undertaking the establishment of such data centres especially with respect to considerations like electricity, water resources, infrastructure, technology and Research and Development. Before formulating and enforcing anything it’s evident for the government to into consideration all the aspects of labour, resources, real estate etc. before devising a perfectively addresses the challenges of the sector and works in concert towards the benefits of its stakeholders.

 

Image Credits: Photo by Ian Battaglia on Unsplash

A strong surge in the consumption of data has been projected for the coming years. This massive increase in the use of data shall require a robust mechanism for data management, data security, and good data infrastructure. However, India still lacks a centralized regulatory framework that properly regulates or prescribes compliance standards with respect to the establishment of such data centres. This consultation paper by TRAI is the first concrete step in this direction.

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India's Own Crypto Asset Regulations Soon: Plugging an Important Gap

Till last year, most people (at least in India) had probably only heard of cryptocurrencies such as Bitcoin and Ethereum; now, many other names such as Dogecoin, Solana, Polkadot, XRP, Tether, Binance etc. are being spoken of commonly in media. The global cryptocurrency market cap is estimated at over US$2.5 Trillion.

India too is witnessing a surge in investment in cryptotokens – especially by millennials. There is a correspondingly increase in the number of advertisements for cryptocurrencies on national television as well as on various web sites; mainstream media reports extensively on the daily price movement of cryptocurrencies. One estimate puts the number of crypto investors in India at between 15-20 million, and the total holdings to be in excess of US$5.3Billion. 

This surge in unregulated cryptoassets is a matter of rising concern globally. Recently, PM Modi urged democracies around the world to work together to ensure that cryptocurrencies do not “end up in the wrong hands, as this can “spoil our youth”. His exhortation came just days after RBI Governor Shaktikanta Das spoke of “serious concerns” around cryptocurrencies.

The RBI’s 2018 blanket ban on cryptocurrencies was lifted by the Supreme Court in 2020. However, the time has now come for the government and regulators to act quickly, and there are indications that regulations are just around the corner. At the time of writing, the government has already announced its intention to table The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021 in parliament in the winter session.

It is expected that through this legislation, the Indian government will seek to ban private cryptoassets. This means that those trade in such cryptoassets may be liable for penalties and/or other punishment. It is also expected that there will be tighter regulations around advertising such products and platforms where cryptoassets can be bought and sold. Another regulatory salvo could be around taxing cryptogains at a higher rate (although such notifications may have to wait for the next budget due to be announced in another three months). The bill is also expected to deny the status of “currency” to cryptoassets because the prevailing ones are issued by private enterprises, and not backed by any sovereign.

The government has also acknowledged the potential of sovereign digital currencies (or CBDC- Central Bank Digital Currency, as they are officially called) in the days ahead. Countries such as China and the USA, are at various stages of launching their own digital currencies, and experts predict that such CBDC will be the “future of money”. In this context, the proposed bill is expected to create a “facilitative framework” to pave the way for the RBI to launch India’s sovereign digital currency in the days ahead by. In fact, the RBI is already working on India’s CBDC, and some media reports suggest that such a launch may happen in the next couple of months (which may also explain the timing of tabling the The Cryptocurrency and Regulation of Official Digital Currency Bill, 2021, at this time). CBDCs too require crypto and blockchain technologies that are similar to those that underpin cryptoassets, so the bill is also expected to promote these technologies for specific purposes. Indeed, not doing so would be akin to throwing out the baby with the bathwater.

Given their wide global reach, cryptoassets arguably will have a role to play in the world’s financial system. However, countries such as India must ensure proper regulation because by their very nature, cryptoassets can easily be misused for various activities that can destabilize the nation. They will allow for free inward/outward remittances that will make it harder to trace; being encrypted, the origins of such wealth too will become easier to hide. All this will make cryptoassets even more convenient ideal for nefarious activities such as money laundering, terror-funding, drugs-financing etc. In the absence of appropriate regulations, the rising supply of cryptocurrencies can hobble the RBI’s ability to perform its basic role. Its ability to manage the Rupee’s value against global currencies too will weaken, as will its ability to use domestic interest rates as a means to balance the economy’s twin needs of inflation management and providing growth impetus. This is a scary scenario, but not one that could unfold in the short-term. Even so, India needs to be prepared.

PS: The Indian government’s announcement to regulate cryptoassets has already triggered a significant (8-10%) correction in the prices of various cryptoassets. It’s therefore a good idea for resident Indians holding cryptoassets to sell them. They can decide on their future course of action once there is clarity on the specific regulatory impact of the proposed bill.

 

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Photo by Worldspectrum from Pexels

Given their wide global reach, cryptoassets arguably will have a role to play in the world’s financial system. However, countries such as India must ensure proper regulation because by their very nature, cryptoassets can easily be misused for various activities that can destabilize the nation.

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Frequently Asked Questions (FAQs) on Flying Drones in India 2021

Drones have been buzzing to become the next significant tech-fascination. Owing to their sleek build, agile mobility and ability to access areas of topography beyond the reach of humans; they are increasingly relevant in today’s innovation and utility-driven technology trends. However, as with any pioneering design, the value of drones largely depends upon the intention of their use. For instance, they can be employed to perform illegal or destructive activities by terrorist groups as was evident from the June drone attack at the Indian Airforce Station in Jammu.[1] Additionally, they can easily malfunction and cause unintended harm to human life or the environment.

In view of their heightened demand and novelty, governing their usage and ownership became imperative and consequently, in March 2021, the Ministry of Civil Aviation published the Unmanned Aircraft System (UAS) Rules, 2021. However, the UAS rules were perceived as restrictive and complex. Based on the feedback from various stakeholders the UAS Rules, 2021 were repealed and the new Drone Rules, 2021 were notified under the Aircraft Act, 1934;  their scope excluded the actions done or omitted before the enforcement of these rules. Here are a few pertinent questions that we have tried to answer in light of the new rules:

Do I need a drone pilot license for flying drones in India?

 

One would require a remote pilot license to fly a drone in India unless exempted. The exceptions include the operation of nano drones and the non-commercial operation of micro-drones (i.e., drones weighing between 250 grams and 2kg). 

Additionally, no remote pilot license is required for drones operated for testing purposes within the premises of a research and development entity / educational entity under the Central government, drone manufacturer with a GST, Start-up recognized by the DPIIT, or an authorized testing entity when operated within the green zone.

Are there any restrictions on flying drones at night or over people in India?

 

The current regulations are silent on the timing at which drones can be flown. However, as night-time flying of drones will have additional safety implications and may require drones to be fitted with other mandatory safety features such as anti-collision lighting, we will have to wait for further clarification/notifications from the Ministry in this regard.

Is there a last date for registering my drone in India?

 

As per the Drone Rules 2021, a person owning an unmanned aircraft system manufactured in India or imported into India on or before the 30th day of November 2021 must make an application to register the drone and obtain a UIN by 31st December 2021. But, as per the Digital sky platform, the last date to obtain a Drone Acknowledgment Number (“DAN”) for an unlisted drone is 30th November 2021. Therefore, there seems to be a conflict between the dates specified on the website and the new drone rules. Also, as per the digital sky platform and the press release by the ministry of civil aviation one must have a DAN, a GST-paid invoice and must be part of the list of DGCA-approved drones to enlist an existing drone. 

Do I need permission to fly toy drone in India?

 

Under the guidelines to enlist an existing drone, it clearly specifies that all unmanned aircraft needs to be enlisted and it has been clarified that this includes models, prototypes, toys, RC aircraft, autonomous and remotely piloted aircraft systems, etc. [2] From these guidelines on the enlistment of drones it can be inferred that unmanned aircraft also includes toys. Thus, toy drone manufacturers/operators would need to obtain the compulsory permissions under the rules.

A remote pilot license is not required to operate nano drones and micro drones (i.e., drones weighing between 250 grams and 2kg) used for non-commercial purposes.  Type certification is not required for nano drones and model remotely piloted aircraft systems (i.e., drones used for educational, research, testing, design, and recreational purposes weighing below 25 kgs and operated within the visual line of sight). All drones need to obtain a UIN except drones used for testing purposes within the green zone and premises of the testing entity.

Hence, toy drones would require a UIN and, may require a remote pilot license and type certification depending on the size and nature of the drone. It would also need to be ensured that the drone is being flown in the green zone and that there are no notifications/restriction on the digital sky platform for drone operation in the intended area of operation.

Are there any restrictions on flying drones remotely over the internet?

 

“Remotely piloted aircraft” is defined by Drone Rules as an unmanned aircraft that is piloted from a remote pilot station. One must obtain a remote drone pilot license and type certify drones unless exempted to operate drones. Model remotely piloted aircrafts have to be operated within the visual line of sight. 

Other than the type certification and the remote pilot license, all drones need to obtain a UIN. They should not carry dangerous goods or arms, ammunitions etc. unless permitted by the concerned authority. They have to fly within the permitted zones and not violate the right of way of a manned aircraft.

The current regulations are silent on the operation of drones Beyond Visual line of sight (BVLOS). However, it is observed that entities are still availing conditional exemption for BVLOS operation from the Ministry.

What are the customs regulations for entering India with a drone?

 

Under the Drone rules, import of Drones is to be regulated by the Directorate General of Foreign Trade (DGFT) or any other authorised entity. The DGFT has not released any specific import policy on drones after the release of the rules. Under the existing Import Policy by the DGFT, import of Unmanned Aircraft System is “Restricted” and requires prior clearance of the Directorate General of Civil Aviation (DGCA) and import license from DGFT.  Nano drones (i.e., drones weighing up to 250 grams) and operating below 50ft/ 15 meters above ground level are exempted from the requirement of an import clearance from the DGCA or import license from the DGFT.[3]

Although the new rules have eliminated the requirement for import clearance from the DGCA, the DGFT is yet to update the import policy and remove the requirement from the import policy.

Further, the Import Policy by the DGFT refers to the Guidelines issued by the Directorate General of Civil Aviation. These guidelines mandate that anyone wishing to import must obtain Equipment type approval from the Wireless Planning and Co-ordination Wing, Department of Telecommunication for operating in de-licensed frequency bands. [4]  An application has to be made for a Unique Identification Number (UIN) post the necessary approvals are obtained to operate a drone in India.

Can drones be used for food/package delivery/advertisements in India?

 

The current rules prohibit the carriage of arms, ammunitions munitions of war, implements of war, explosives and military stores, etc. unless permitted by Central Government. It also regulates the carriage of dangerous goods as per the Carriage of Dangerous Goods Rules, 2003. Other than the above, the current regulations are silent on the aspect of permitted payloads.

When it comes to drones, unlike aeroplanes that generally take-off from an airport, there are no specific ports from which drones are flown. The new rules mention the development of policy framework for developing corridors for safe and seamless transfer of goods by drones. As goods on a drone could have potential dangers such as accidental drops during flight and difficulty in regulation, it is possible that these will require further regulation. The 2018 CAR and UAS Rules, 2021 required drone operators to get special approval to drop/discharge substances. Such conditions are not specified in the current rules. It would be advisable to get special clarification from the DGCA on permitted payloads as there are additional safety implications associated with it.

Are there any other initiatives in place other than the liberalized Drone Rules 2021 to achieve the target of making India a drone hub by 2030?

 

In furtherance to the initiative of the liberalization of the regulations governing Drones, the Indian government approved the Production Linked Incentive scheme (PLI) for drones and drone components in India. The net fund assigned under the scheme is Rs. 120 crores over three financial years.

It provides relaxed criteria for MSMEs and startups to encourage them to avail the benefits of the scheme. The rate of PLI is fixed at 20% of the value addition throughout the scheme. Depending on the value added by the manufacturer, their eligible PLI will be 20% of the addition. The minimum addition is set at 40% of the eligible sales turnover of the FY. Value addition is calculated as the eligible sales minus the eligible purchase cost.

It is the responsibility of the component manufacturers to show that the components are exclusively used in manufacture of drones. The scheme is for three years from 2021-2022 . The amount will be disbursed in the subsequent financial year to which it is claimed . An applicant is eligible for three consecutive years but up to FY 2023-2024.[5]

 

What steps are being taken for traffic management and avoidance of collision between manned and unmanned aircraft?

 

On the 25th of October the Unmanned Aircraft System (UAS) Traffic Management (UTM) policy framework was published by the Ministry of Civil Aviation. To achieve UTM-ATM (Air Traffic Management) interoperability and integration, the policy suggests aligning with the framework of the International Civil Aviation Organisation for UTMs. It invites studies/ proposals on real -time tracking mechanisms as real -time identification and tracking (RIT) via Bluetooth or wifi is not practical owing to the low operational range. As per the policy, all unmanned aircrafts may implement RIT via network for successful separation from manned aircrafts. However, it does recognise that this facility will not be available in areas without telecommunication network.

 

The Future Lies in the Sky

 

The new drone rules have liberalised and simplified the regulations pertaining to drones. Instead of having all the regulations and certifications within these rules, powers have either been delegated or separate authorities and platforms have been established to deal with specific issues. The new rules also facilitate self-certification and self-monitoring as well as provide an easier process for transfer and deregistration. Further, they have done away with the approvals required for unique authorisation number, unique prototype identification number, certificate of conformance, certificate of maintenance, import clearance, acceptance of existing drones, operator permit, authorisation of R&D organisation, student remote pilot licence, remote pilot instructor authorisation, drone port authorisation etc. Forms have been reduced from 25 to 6.  There is no specific criteria or approvals for drone ports, instead, the current rules have proposed that a policy be developed with a framework for corridors for the delivery of goods.

All these accompanied with the considerable reduction in the fees with respect to the remote pilot license and other registrations/certifications (wherever applicable) will set new grounds and open up a plethora of opportunities for start-ups, SMEs and research organisations who want to venture into the field of aviation, avionics and related interests. As an effect, the future will soon see Amazon, Zomato deliveries through drones, site verification for insurance organisations, crime patrolling, disaster assessment etc. eventually, as Union Minister for Civil Aviation, Jyotiraditya Scindia told, make India a global drone hub by 2030.

The future lies in the sky and beyond, and it is going to get crowded than ever!

References 

[1] https://www.thehindu.com/news/national/two-explosions-rock-technical-area-of-jammu-airport/article34997389.ece

[2] https://dronenlisting.dgca.gov.in/

[3] https://www.dgft.gov.in/CP/?opt=itchs-import-export

[4] F.No.05-13/2014-AED Vol. IV dated 27th August, 2018.

[5] https://egazette.nic.in/WriteReadData/2021/230076.pdf

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Photo by Dose Media on Unsplash

The new drone rules have liberalised and simplified the regulations pertaining to drones. Instead of having all the regulations and certifications within these rules, powers have either been delegated or separate authorities and platforms have been established to deal with specific issues

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Strong Tailwinds for India’s Technology Sector Entrepreneurs and Startups

Venture Capital (VC) investments in Indian startups in the period January – July 2021 were reported at around US$17.2 Billion. Although this figure is lower than the quantum of investments made in China in the same period, it is a healthy 55% more than the US$11.1 Billion VCs invested in India in the year 2020. Here’s an even more interesting data point: in July 2021, VCs invested around US$8 Billion in India, in comparison, their investments in China were approximately US$5 Billion. This was the first time since 2013 that India attracted more VC investments than China.

One swallow does not make a summer, but there are many reasons to believe that significantly higher levels of risk capital will become available to Indian entrepreneurs- and especially to those in the tech space. While most of these have to do with India’s intrinsic strengths, there are also some external forces at work. Here is what I believe will fuel India’s tech entrepreneurs over the course of the next five years or so.

  • Steep increase in the number of Indian unicorns:

The first 9 months of 2021 alone have seen 28 new unicorns (a term that denotes startups with valuations of US$1Billion or more) emerge in India. This number stood at 38 at the end of 2020.

  • Fintech innovation:

India has seen several innovative fintech come up in the last ten years, many of which are already unicorns or on their way there. As the global banking and financial services industry look for disruptive solutions and new ways of building ecosystems, many of these “Made in India” innovations will become globally relevant and hence attractive investment opportunities.

  • The rise and rise of Edtech:

As a result of the pandemic and the emergence of interactive technologies, the learning and education space has undergone a massive transformation in the last two years. Not just in the early school years but also coaching for various entrance exams. Byju’s for example, is valued at almost US$16.5 Billion, and has already acquired 9 other Edtech companies in recent months. Like fintech, the Edtech opportunity too has the potential to tap global business opportunities.

  • Rising interest amongst western VC funds:

Existing investors are looking to expand their Indian portfolio, with some big-name investors like Tiger Global making 25 investments in India between January and August 2021 (in 2020, they invested in 18 startups). New VC firms that have not previously invested in India too are also entering the market. Andreessen Horowitz (a16z) fund, for example, recently closed a US$260 Million investment in crypto player CoinSwitch Kuber (valuing it US$1.9 Billion). Reports suggest a 60% increase in participation by US investors in Indian fintech startups over the last three years. The Unacademy group, another major Edtech player in India, recently raised US$440 million (investors included non-US funds as well)- valuing the startup at almost US$3.5 Billion.

  • Many global giants already have an Indian presence:

It was recently reported that one in 12 global unicorns have their technology centers based in India (source: August report of the IVCA). As Indian ventures and their innovations gain global visibility, I believe many more global organizations will set up shop in India (As elaborated in my earlier blog – Global Captive Centers in India: Can add Value If Set Up Differently).

  • Strong talent base:

India has a large, trained pool of tech and managerial talent that can be attracted to startups both by higher compensation made possible by Venture Capital backing and the thrill of creating something new. Such talent can form the crucial leadership and middle layers as these startups scale and grow rapidly.

  • Entrepreneurship on the ascent:

Increasingly, young graduates are turning entrepreneurs– and choosing this avenue instead of the safety of “safe” jobs with established companies. And of course, there are senior leaders from various companies who are also getting bitten by the startup bug and leaving to start/mentor various early-stage ventures.

 

Conclusion

 

Of course, there’s also the elephant (more accurately, the dragon) in the room. The Chinese Communist Party leadership has, in the past year or so, made a number of major policy changes with the apparent intention of targeting China’s home-grown Big businesses (tech and others). The Chinese government’s seeming unwillingness to come to the rescue of defaulting real estate majors is another event that has muddied waters for investors. Western investors have significant exposure to many of these companies whose wings have clearly been clipped. Strains in diplomatic and economic ties between China and the west are expected to trigger a slowdown in fresh investments, if not cause an exit from Chinese businesses.

Capital chases the best risk-adjusted returns and so will always gravitate to where investors expect the best outcomes. India, with its relative political stability, acknowledged track record of democracy, continuing commitment to reforms, and growing stature as a global innovation hub makes it an attractive alternative.

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Photo by ThisisEngineering RAEng on Unsplash

Capital chases the best risk-adjusted returns and so will always gravitate to where investors expect the best outcomes. India, with its relative political stability, acknowledged track record of democracy, continuing commitment to reforms and growing stature as a global innovation hub makes it an attractive alternative.

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