Geo-information (GI) science is moving away from traditional mapping or “inventory” type of science to understand the processes that shape our environment and to predict their future impact, while also providing improved information for planning and policy making. GI is rapidly becoming an essential decision making tool for the government, academia, NGOs and individual users. They are emerging as a valuable resource for developing new commercial opportunities and for management of System Earth.
National GI policy for India
Expressing that GI is an essential component of the national information infrastructure, the government of India has proposed a national GI policy. There is no doubt that a robust policy will enable R&D and value addition in GI applications, bringing in lucrative returns. Therefore, the national GI policy must prescribe an institutional mechanism (National GI Organisation) to administer a responsive regulatory regime which makes GI data available to the widest range of users. This policy should set forth such ground rules that making it work is in the best interest of those who are charged with its implementation. The fundamental pillar of a national GI policy must be the establishment of a national spatial data infrastructure based on technology platforms which are interactively connected to end users.
Undoubtedly, the proposed policy will provide for the protection of GI data related to national security. In such a scenario, the proposed policy should prescribe the use of technology solutions to achieve this objective, instead of importing the current policy of blanket prohibition or severe restriction on access to government-held GI by Indian citizens. Failure to prescribe technology-driven, anti-circumvention measures will strangle the possibility of letting India develop market leadership in international trade and commerce in GI products/services.
Geospatial information is an essential part of government-held IPR (intellectual property rights) because its acquisition, processing and dissemination is subject to the same kinds of rules and procedures that govern other forms or types of government-held information. As such, the inevitable focus of the GI community will be on the regulatory regime that will govern GI distribution. The issue of public access to GI can only be understood in the broader context of public access to government-held information. In such a scenario, it is not difficult to predict that national GI policy may inevitably bring to focus the conflict between government-imposed restrictions/prohibitions on access to GI data by Indian citizens qua their ‘ right to information’ entitlement under Right to Information Act, 2005. Government in the context of this article includes public sector agencies, authorities and departments at national, state and municipal levels.
Legal consequences flow out of copyright issues. Thus the government will be liable for rights and obligations arising from copyright regarding GI datasets. The most important entitlement in the hands of the government is the right to control. Presently, access to GI is controlled by two arms of the government: Ministry of Defence and Department of Space (DoS). The National Map Policy 2005 issued by Survey of India restricts access to maps/data with more than 5 metre accuracy and prohibits unauthorised copying. The Spatial Data Distribution Policy 2011 issued by the National Remote Sensing Centre, Department of Space, liberalised access to spatial data upto 1 metre accuracy but set in place procedures that are tilted in favour of government entities or persons working on government projects. The common man, unconnected with the government, is apparently viewed with suspicion. That may be the reason why ordinary citizens find it easier to access high resolution GI data from foreign satellite data service providers like Google in the comfort of their homes. Indeed, the fact that the National Informatics Centre (NIC), under the Ministry of Communications & Information Technology, the enormously successful national service provider of IT solutions for e-governance and economic, scientific, technological and cultural projects for other ministries, uses the required GI from open sources including Google, because it cannot access necessary GI under current policies, is a telling commentary.
Although the government often reiterates ‘national security concerns’ to restrict or prohibit access, the fact is that foreign spatial data service providers have been freely operating in India to provide spatial images with accuracy higher than 1 metre to Indian citizens via the Internet for over a decade, without restriction by the government, questions the logic of the present access policies. A review of the current access polices to evaluate whether they are, in fact, serving the purpose for which they were framed, seems quite obvious.
In this context, it is unfortunate that the current access policies do not recognise the distinction between unauthorised copying and unauthorised access. Unauthorised copying is in the nature of copyright infringement. The current copyright law is adequate to deal with such infringements. On the other hand, unauthorised access pertains to a breach in security. It is the unauthorised access to data by unauthorised persons. This implies a security risk which requires technological solutions like encryption. The Copyright (Amendment) Act, 2012, not yet notified, has for the first time provided the legal basis for the use of technological solutions by introducing anti-circumvention provisions (e.g. encryption) to overcome security challenges in the digital environment. Regrettably, though, the amending law does not distinguish between the two prongs of anti-circumvention provisions, i.e. unauthorised access and unauthorised copying. In other words, there is no distinction between technological measures which prevent unauthorised access to a copyrighted work and technological measures that prevent unauthorised copying of a copyrighted work. This is a serious flaw. It is important to understand that unauthorised access and unauthorised copying of data are not interchangeable concepts. This serious infirmity is bound to negatively impact the government’s ability to balance national security objectives with its ability to generate revenue from license fees by granting licenses to enable various types of value-added GI products that can compete in the international market, without compromising on national security.
Intrinsic to the government’s ability to employ anti-circumvention provision to prevent unauthorised access is the need to provide a statutory basis for deployment of encryption levels at a minimum 128-258 bit length, as per international norms, to protect data and communications from interception. This is especially critical in view of rampant global instances of cyber attacks, particularly on government sites. However, the current Information Technology Act, 2000 restricts the use of encryption technology at 40 bits length level. The use of higher encryption levels requires prior approval from the Department of Information Technology (DIT). It would be in national interest for the government to announce the first national encryption policy, if only to acknowledge the fact that banks, including Reserve Bank of India are already using 128/higher bit length. In so doing, Survey of India, National Remote Sensing Centre, and National GI Organisation (NGIO) will be provided the legal basis to embed appropriate levels of encryption to prevent unauthorised access to geo-information. It will also give impetus to e-commerce including the banking, insurance and information security sectors by providing protection to personal data.
The Right to Control has certain obligations. Failure to fulfill these obligations may result in product liability action against NGIO. NGIO has an obligation to ensure privacy of information pertaining to individuals that may be contained in GI datasets. This is, of course, in addition to the obligation to protect GI information connected to national security. A breach of privacy of an individual will invite product liability action.
Obligations specific to GI include accuracy, integrity and quality of GI data. In general, a user’s perception of GIS data, particularly when sourced from government agency, is that it is accurate and reliable, even though this may not always be the case. Thus, product liability litigation that questions the accuracy, integrity and quality of spatial data and pins liability on NGIO for harm caused to the user from the: (i) use (ii) misuse (iii) inappropriate use of GI data and information and (iv) consequences of implementing flawed public policies and decisions based on inaccurate GI data, is bound to surface.
A national GI policy may not succeed without a technology convergence across sectors in terms of policies and regulations. The present style of governance in India clearly indicates that successful implementation will depend on overcoming the first challenge – to get the different arms of the government to understand that governance in the satellite-enabled digital world is essentially horizontally connected across sectors. Governance can no longer remain an amalgam of un-connected independent vertical turfs. In specific context of GI, notwithstanding the reluctance to review the relevance of existing GI data access policy, it is imperative to understand that national security and national interest would be best served through appropriate convergence of technologies. Perhaps the beginning of convergence in sector-specific governance as the way to achieve stated objectives has already been made. The National Telecom Policy-2012 has proposed, in the context establishing ‘telecom infrastructure,’ a strategy to mandate mapping and submission of information on infrastructure assets on the standards-based inter-operable GIS platform by all telecom infrastructure/ service providers to the licensor. Clearly, the time is right to roll out a national GI Policy in India.