*Specific issues with version 2.4 of Draft Policy on Open Standards for e­Governance (India)*

This document examines the Draft Policy on Open Standards for e­Government v2.4 dated 25.11.2009 and the process followed in adopting the same. You can download from http://fosscomm.in/OpenStandards .

If v2.4 is adopted as official policy, it will result in:

1. The legitimization of proprietary standards that entail the payment of royalty fees and huge foreign exchange outflows. This cost will be paid by Indian taxpayers and pocketed by monopolistic vendors located in foreign countries, since most proprietary standards are controlled by entities outside India. Unlike royalty­free open standards, the usage of proprietary standards will mean that users will, directly or indirectly, pay a royalty to a private entity for the privilege of communicating with the government. 2. Reduce e­Government in India to a mess of incompatible systems that cannot communicate with each other, thus defeating the very purpose of e­Government, if multiple standards for the same purpose are allowed.

*Logical inconsistencies in v2.4* This section points out some of the most apparent flaws in v2.4 though it is not an exhaustive list. In particular, we would like to draw attention to the utterly lax manner in which one of the key clauses in section 4.1 titled "Mandatory Characteristics," has been drafted. "4.1.2 The essential patent claims necessary to implement the Identified Standard should preferably be available on a Royalty­Free (no payment and no restrictions) basis for the life time of the standard. However, if such Standards are not found feasible and in the wider public interest, then RF on Fair, Reasonable and Non Discriminatory terms and conditions (FRAND) or Reasonable and Non Discriminatory terms and conditions (RAND) could be considered."

*Inconsistency #1:* The use of a phrase like, "should preferably be available on a Royalty­Free (no payment and no restrictions) basis," contradicts the title of the section, which is, "Mandatory Characteristics" and makes the usage of the Identified Standard non­binding. This renders the entire policy meaningless. By wording this clause in such a casual manner, the government is surrendering its policy making responsibilities to market forces that are driven to extract maximum profits from tax payers. *

Inconsistency #2: *The government has a serious long­term responsibility of safeguarding its citizens data. E­government data remains valid for decades, if not centuries and the archival and preservation of this data is critical. In this context, we would like to point out that v2.4 does not even explain or define "essential patent claims," which is one of the most important terms in this policy. The implementation of a standard cannot be bifurcated into "essential" and non­essential" parts. The policy v2.4 is also silent on how the government will distinguish "essential patent claims" from non­essential patent claims. E­government data stored in formats with such unclear rights could be subject to litigation. Therefore, we would like to submit that ALL patent claims on a standard should be made available on a royalty­free basis so that there are no problems in the foreseeable future. * Procedural issues with v2.4*

1. Apart from these above mentioned inconsistencies, there is also no change log that explains the reasons for introducing new terms in v2.4 and the major directional changes made in this version, as compared to v2.0. 2. It has also been brought to our notice that the expert committee constituted by Department of Information Technology that was involved in drafting this policy since 2007 and was responsible for creating v2.0 that was acclaimed by Civil Society Organizations, was not even informed of the creation and adoption of v2.4. This is a significant disservice to the expert committee Such undemocratic actions will only dissuade public spirited citizens from participating in national policy making processes, especially if these process are marked by lack of transparency and accountability on the part of the government. 3. While Department of Information Technology has invited industry lobbies and trade associations to be part of Apex Committee on Open Standards, it has given no representation to Civil Society Organizations. In fact, the inputs sent in by organizations like National Campaign for People's Right to Information, IT For Change, Center for Internet and Society, Knowledge Commons and others have been completely ignored by Department of Information Technology.

*Financial Issues * From an e­Government perspective, when royalty­free standards are available, or can be created, it is perfectly rational, economic behavior to opt for such standards. There are very few situations where the government will be able to justify the use of proprietary standards that are controlled by monopolies and entail the payment of huge royalties. Our national data should not be stored in formats that are trade secrets of vendors or controlled by vendors through patents and other forms of protection that enable them to extract royalties and other rents. Furthermore, it has to be recognized that open standards do not preclude anyone from implementing them. If India's e­gov data is stored in proprietary data formats, the cost of using these formats will grow as we get more and more invested in e­governance. Therefore the government must draw strict rules in favor of open, royalty­free standards and mandate that ALL stakeholders involved in e­ Governance adhere strictly to these standards. * Policy issues* As an emerging software superpower, the IT policies formulated in India are closely monitored and emulated. If a poorly worded, logically inconsistent draft like v2.4 becomes national policy, India will be a laughing stock in the community of nations. From a policy­making perspective, the government has repeatedly appealed to educated Indians to contribute to national goals and policy making. However, if software monopolies can so easily defeat policies that are aimed at protecting national interests, this is a serious discouragement to all the public spirited academics and citizens who have volunteered their time and effort to drafting this policy. This will send a strong negative signal to those who wish to contribute to policy making and dissuade them from participating in such policy making processes.

We therefore request urgent corrective steps to ensure that the Draft Policy on Open Standards for e­ Government results in the creation of a meaningful policy that protects the interests of the country.

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