A student-run group at NALSAR University of Law
[Samraat Basu is a technology and data protection lawyer and Naveen Jain is a corporate lawyer specialising in M&A and PE/VC funding.]
The Indian regulatory landscape regarding the use of remotely piloted and autonomous drones has been evolving over the last few years. In June, the Government of India released the draft Unmanned Aircraft System Rules, 2020 (“UAS Rules”) to regulate the use of drones.
The RBI on 17th September released a discussion paper on comprehensive guidelines for the activities of payment aggregators and payment gateway providers. It was acknowledged that payment aggregators and payment gateways form a crucial link in the flow of transactions and therefore need to be regulated. The RBI has suggested that these entities be governed by the Payment and Settlement Systems Act, 2007 which requires all ‘payment systems’ (as defined in the Act) to be authorised by the RBI. Additionally, different frameworks have been proposed for regulating payment aggregators and payment gateways, and full and direct regulation has been discussed in detail. This would entail payment aggregators and gateway services to fully comply with any guidelines issued by the RBI.
Further Reading:
Political turmoil and instability in countries is majorly aggravated by the internet and various portals online. In light of this crisis, Twitter has decided to remove more than ten thousand accounts across six countries. These accounts were found to be actively spreading unrest in countries which were already in the wrath of a political turmoil. Twitter removed more than four thousand accounts in United Arab Emirates and China, around thousand in Ecuador, and more than two hundred in Spain.
Twitter has been making an active effort since the past one year to identify and remove accounts which were agitating sensitive issues in countries facing crisis. Online portals even have the power to sway the election processes in Democratic countries. In order to curb these impending threats, Twitter has been removing certain accounts on its platform. Even though thousands of new accounts are created everyday and several people have termed this removal process as arduous and never ending, these measures have to be taken.
Further Reading:
California legislators approved a landmark Bill on 11 September, 2019 that has the potential to disrupt the gig economy. The Bill known as “AB 5” requires companies like Uber and Lyft to treat contract workers as employees, which gives hundreds of thousands of California workers basic labour rights for the first time. Apart from its immediate impact, the move by the California legislature might set off a domino effect in New York, Washington State and Oregon, where stalled moves to reclassify drivers might witness renewed momentum. The move has been criticised by ride-hailing firms Uber and Lyft which built their businesses on inexpensive labour, and the companies have warned that recognizing drivers as employees could destroy their businesses.
Further Reading:
Microsoft has stated that most large tech law companies, will change the manner in which content is moderated on their social media platforms, irrespective of the US Congress implementing new laws. Their Chief Legal Officer and President, Brad Smith has indicated that most companies will take initiative, irrespective of U.S. Lawmakers. The statement has been made in light of the recent Christchurch shootings which were livestreamed on most social media platforms. Further, major tech companies are responding to the changes in laws around the world. S. 230 of the U.S. Communications Decency Act, 1996 presently protects these companies from being sued on the basis of the content that is uploaded by its users. Microsoft itself has claimed that it has refused the government’s requests for facial recognition software due to the fear that it may be misused. The President of Microsoft has called for other tech companies as well to stop following the “if it’s legal, its acceptable approach” since companies need to start refusing selling their products to certain clients, irrespective of the legality of the action. However, ACLU, senior legislative council has accused Microsoft of continuing to sell software that can track faces and fear in real-time, leading to violation of privacy.
Further Reading:
In a previous post, the concept of smart contracts as used in the legal field was explained comprehensively. Smart contracts are pieces of software that are formed when certain operational terms of a contract are written in the form of electronically executable codes. They were originally envisaged by Nick Szabo and theorized in a paper titled ‘Smart Contracts: Building Blocks for Digital Markets’. He used a rudimentary example of a vending machine to explain the concept. A consumer inserts cash into the machine and enters his preference. The machine then automates the execution of the contract and the goods are delivered to the consumer. The introduction of Blockchain technology has added another dimension to this concept and has exponentially increased its application. Self-executing contracts, based on the Blockchain are a reality now, and have found applications in a myriad of fields. An increasing popularity of the Blockhain and its uses has necessitated an overview of the progress made on this front, both, in terms of legal developments as well as feasibility of actual use.
One such innovative, immensely useful, and lucrative application is in the field of derivatives. Explained simply, a derivative contract is one whose value is based on an agreed underlying financial asset or a set of assets. Smart derivative contracts inculcate the advantages of smart legal contracts such as inalterability, self-enforcement and removal of intermediaries, while also providing the flexibility that comes with the written word, necessary for making derivative contracts viable. In September 2018, Bloomberg reported that Morgan Stanley, one of the world’s leading investment banks, would be offering Bitcoin swap trading for clients. CNBC, in a follow up piece, added that Goldman Sachs is working on a derivative for the Bitcoin. These derivatives have been developed on increasing client demand, and have gained traction despite Bitcoin losing a huge chunk of its value in months preceding September 2018.
Smart contracts derive utility from the automated and guaranteed enforcement of promises made ex ante more than anything else. The reduction in enforcement costs has been pegged as their greatest advantage. Researchers have tried to exploit these core advantages and come up with futures, options, and swap models of smart derivative contracts.
The most important work on taking the model comes from the International Swaps and Derivatives Association (“ISDA”). In a whitepaper published in October 2018, ISDA has developed the concept of a derivative smart contract and laid down a roadmap to their proper construction. In its introduction, the paper lays down that a smart derivative contract lies at the intersection between a smart legal contract, which in itself is a subset of a smart contract, and a derivative contract. The explanation appended to the Venn diagram reads as follows:
“Smart derivatives contracts are smart because they are derivatives contracts with some terms that can be automatically performed. Those terms are expressed in a form that enables their efficient automation. Other terms that are not automatically performed are expressed in natural language.”
Following this analysis, the paper talks about the actual applications of smart contracts to the derivatives market. Automation, as mentioned above, is the key advantage that smart contracts have to offer. A distinction is made between the parts of a derivative contract that can be automated, and the parts of a derivative contract that should be automated. In addition to highlighting that automating the entire contract is neither possible nor desirable, when viewed from a commercial perspective, it also elaborates on how certain ambiguous legal standards, such as ‘a reasonable person’ ought to be so for the proper functioning of private law. A previous paper from ISDA, elaborates on what operational clauses are. Explained simply, they are if-then functions in a derivatives contract. For example, ‘Pay X $100 per share brought on date B if condition Y is met’. These basic Boolean functions are encoded into a smart legal contract and the operational part of a derivative contract is automated.
The natural language of the contract, however, needs to be retained for certain non-operational parts of a derivative contract. Provisions such as the governing law of the contract, arbitration clause, a clause imposing a duty of best efforts on parties, et cetera are non-operational clauses that need the flexibility of the written word. The smart contract can be added as one of the terms to this written contract and integrated in a way that the performance of terms still stands guaranteed. The ISDA has concluded the paper with an effective model for the implementation of such a scenario.
A few other models have come up independently of ISDA. Future or forward options where a smart contract can be programmed to buy or sell security tokens at designated timelines; an options contract where the owner of a security token is given the right but is not burdened with an obligation to sell; a swap model with two different security tokens to hedge against market uncertainties. Their adoption on a commercial scale remains uncertain as of now. While banks and financial institutions have taken steps towards this direction, the solidification of legal frameworks stands in their way.
After an overwhelming response and a positive market reaction, ISDA followed the white paper up with another one titled ‘Legal Guidelines for Smart Derivatives Contracts: Introduction’. In this paper, ISDA has evolved four principles for the development of smart derivatives contracts. The first principle lays down that the smart contract framework needs to meet the existing legal and regulatory framework. While it says that the smart derivative contracts must comply with both, the standards governing smart contracts, and the standard governing derivative contracts, Indian jurisprudence has not developed on the functioning of smart contracts. Any smart legal contract, thus, need only satisfy the provisions of the Indian Contract Act, 1872. The second principle develops on the notion that only the part of the derivatives contract that is capable of being automated should be considered. This commonsensical principle does not need much further elaboration.
The third principle points out that effective automation should be based on legal validation. That is to say, lawyers and legal enforcement officers should be able to validate the legal effect of any coded or automated provision. The legal effect of the code must align with the intended legal effect of the contract. The mere fact of automation must not discount the nature and purpose of the contract. Lastly, leaning more on an economic point of view, the benefit of automation must outweigh the cost of such automation. This principle adds a cost benefit analysis to the feasibility of smart contracts and touches the core of their utility.
The derivatives market in India is still relatively new and undergoes change and development on a regular basis. Markets and technological operations have received the introduction of Blockchain and smart contracts positively. It has huge potential to alter how we think of the derivatives market. ISDA has taken the lead in venturing into tapping the potential that these technologies have in store for us. The whitepapers and other literature need further development and research, and this paper has sought to consolidate the existing works for better understanding in Indian context. No legal machinery or regulatory framework exists at this moment to make the fusion of smart legal contracts and derivative contracts a solid possibility. Until initiative is taken and more research is done in this area, India could fall behind the international trends in fully embracing this advancement. It is urged that foresight be exercised in attempting to make India friendly to such developments. The author sees this piece as a small step towards ensuring the same.
Smart contracts are a set of self-propelled contracts which use blockchain as a platform to complete the transactions. This concept was introduced by Nick Szabo back in 1996. Since then, a lot of nations have endorsed this concept for being a technological revolution. In this post, I will endeavour to show that smart contracts are not really a smart option as they are riddled with several unsolvable legal issues. The analysis is primarily focussed on the smart contracts made on ethereum blockchain.
Smart contracts are made on a platform called Solidity. To execute a contract, you need to pay transaction fees to a miner so that he can mine a block for your contract. The technical jargon for this transaction fees is Gas, which is bought by paying a digital currency called Ether.
This can be understood with the help of an analogy. Imagine you are in the food court of any mall which requires you to purchase a food court card. You go to the counter and pay a certain amount, which gets credited to your food court card. This amount can then be used to purchase a big cheesy burger for instance. In the smart contract universe, the counter is the blockchain, the amount paid is the Ether coins, the credit in the card is the Gas, the burger shop is the miner and the big cheesy burger is the execution of your smart contract.
Now imagine that the burger shop owner is slightly eccentric. Apart from the type of the burger, he varies his prices depending upon the number of customers his shop has. Also imagine that he is a greedy man, who first serves those who are willing to pay more. This is the case with the miner and the gas prices. The prices of Gas depend on the market and can fluctuate greatly. There have been multiple instances of increase in gas prices due to an increase in the number of users. The gas price also depends on the nature of your contract and the kind of computer programming you choose. Also, like the greedy burger shop owner, the miners execute the contracts based on the gas fees paid. The more gas you pay, the more incentivised the miner is to execute your contract before any other contract.
Hence, if the users of smart contracts increase in the near future, the miners will increase their price in all probability. Since the very execution of smart contract depends on the miners, this will increase the overall cost of executing the smart contract considerably. As soon as this happens, smart contract technology will become inaccessible to a lot of Indians. Currently, there are only 5,00,000 users of smart contracts but still, the simplest of the smart contract is of worth $7000. With the increase in the number of users, this price will go up considerably and would remain affordable to less than 1% of Indians. Therefore, if this technology is allowed to become popular without regulating the gas prices, it is bound to be a catalyst for a plutocratic economy. But then, the important question is that can the gas prices be regulated?
Regulation of gas prices is next to impossible. The concept of smart contracts uses a decentralised technology in which the servers are distributed globally. Hence, no country can put a price ceiling on the gas single-handedly. For the sake of argument, even if a governmental agency manages to regulate the prices within its country, the user can always resort to offshore platforms to nullify the regulations. To counter this, having a uniform regulation at international level is highly unlikely since the developed countries would have all the incentive to keep the prices unregulated and give their citizens the priority in executing the contracts over the citizens of other counties. In a press conference last year, RBI did show apprehensions regarding non-uniformity in international regulations of cryptocurrencies and said that it can disturb the whole economic balance of the country.
This is further complicated by the fact that the identities in the smart contracts remain anonymous. Most of the blocks do not have the name or identity of the miner and this identity cannot be traced even by the cognoscenti of blockchain technology. Therefore, even if the international community builds consensus on the price ceiling of the gas, locating and punishing the offender is next to impossible.
Though the Supreme Court is still in the process to gauge the possibility of regulating cryptocurrencies,[1] the aforementioned analysis shows that the regulation of at least gas prices is not possible. Hence it can be said that if smart contracts become popular in India, they are likely to increase the divide between rich and poor if nothing else.
One of the myths regarding smart contracts is that they are completely self-executing and can be directed to execute the transactions in a particular time frame. Though the contracts work on ‘If-Then’ logic, a timer cannot be set in these contracts. This is the inherent fault of proof-of-work blockchain (on which the smart contracts are based) because the transactions can arrive on different nodes at different times. For executing a smart contract on time, one needs the help of external service providers called ‘Oracles’. But there always remains a problem of trusting the oracles as they can easily misbehave and procrastinate. Therefore, it is highly probable that there occurs a delay in the execution of a smart contract. This probability will further increase in the future if the users of smart contract increase at a rate faster than Oracles, so as to create more workload for them.
A pertinent legal question which can be raised now is regarding the contracts for which time is of the essence. This is a kind of contract which the parties agree to abide by before a stipulated time. As per the Indian Contract Act, if any of the parties fail to comply with the time requirements, the contract becomes voidable at the option of the other party.
Now let’s imagine that the parties enter into a smart contract of which time is the essence. But because of the oracle, the execution of the smart contract gets delayed. The only option which the aggrieved party now has is to externally give the command to kill this contract. But since there is a risk that the contract can execute itself anytime, the aggrieved party needs to exercise this command immediately after the stipulated time is over. On that account, the problem arises in cases where the end of this stipulated time is ambiguous and was not fixed explicitly by the parties beforehand. In such cases, there may be legal complications as to whether time was of essence or not and what was the specific point at which the contract was to be executed. Therefore, the party exercising this command in such a scenario is unduly burdened with the risk of giving the command unjustifiably and bear the brunt of repaying the huge losses to the other party.
The problem does not end here. Even after assuming this extra burden, the option of making the contract void is still jeopardised in this technology. One, even after giving this command, the contract can still execute itself and can make you pay Ether unreasonably. Second, there is no guarantee that even after giving this command your money will be returned to you. In a very famous fiasco, one user lost $300 million when he gave this command. Hence, it can be concluded reasonably that it will be a nightmare for the parties if they choose smart contracts for building a contract where time is the essence.
On the account of arguments made in this post, it can be said that smart contracts do not seem to be a feasible option. This is especially true for developing countries like India, where people can’t afford the exorbitant gas prices and where people are still not aware of legal intricacies involving the essence of time in a contract. There is, therefore, a need for a sustained, nuanced and interdisciplinary study of the concept of smart contracts before adopting it into the marketplace.
[1] The matter is listed as Siddharth Dalmia v. UOI (Civil WP No. 1071 of 2017) for which, the Supreme Court’s website shows August 2, 2019 as the next date of hearing. (Last checked July 25, 2019).
Brief Facts and Monsanto’s Patent Claims
Through a Government notice from the Department of Agriculture, the trait fees, or the fees charged for seeds with genetic coding for a specific characteristic (such as pest resistance, or higher yield), were revised for certain seeds including Bollgard and Bollgard II of Monsanto, a Fortune 500 global conglomerate.You can also contact experts from pest control janesville wi to avail pest control services.
Subsequently, Monsanto terminated a contract with Nuziveedu, a seed distributor working in India, for the licensing of the seeds after Nuziveedu challenged the trait fee charged by Monsanto and demanded damages alleging breach. Nuziveedu in response challenged Monsanto’s patent claims on the ground that plants and essentially biological methods of making them may not be patented.
Of the several claims, which largely involved the multiple processes in creating the particular plant varieties, claims 25-27 are relevant as per the judgement.
Essentially, Monsanto’s claim was that of a patent over the specific gene sequences that enable the cotton variety to produce its resistance as vigorously as it does through the use of a toxin which it produces. Monsanto has applied for a patent over the genetic sequence, or the recipe, created to produce the toxin as well as a promoter, which is needed to induce the process of making the toxin. This creates a trait that enables cotton plants to produce a substance that is toxic to pests, such as bollworms. The plant with this trait is then crossbred with local varieties for creating a variety that inherits the characteristics that local species developed to thrive in the given area. To effectively reduce or eradicate the pests that are bugging you, it is advised to plan for your termite extermination with the help of a reputed pest control company like Pelican pest control.
The High Court decided that Monsanto could not patent Bt. Technology under the Indian Patents Act 2001 (Patents Act). However, Monsanto was granted protection for the plant varieties it claims a patent over under the Plant Variety Protection and Farmer’s Right Act 2002 (Plant Variety Act). It also decided that Monsanto had illegally terminated the contract, as mentioned earlier.
To elaborate, the court held that the patent granted was only for the identification of the event as opposed to the method of creating the seed. This implies that the patent extends to inventing the proper gene sequence and creating a cell with the same sequence. It does not extend to the cell creating a plant. Essentially, the Court has separated the creation of the modified cell and the creation of the modified plant as two separate events. The method of creating the seed involves what the court considers “essentially biological processes” as per Section 3(j) of the Patents Act. The phrase has not been defined in statutes, but in this context, it refers to reproduction and cell division.
Once we replace essentially biological processes with cell division and reproduction, it becomes much easier to understand the court’s fallacy. “Essentially Biological Processes” are those processes that naturally occur in organisms. Section 3(j) implies that patenting the production or creation of something is prohibited when those means are “essentially biological processes.”
Therefore, the Court has denied Monsanto its patent claim over the processes and products involved in creating the plant and has given them patent only over the event. The holding essentially means that Monsanto only has rights over a narrower construction than they claim of patent over both the identification of the event and the creation of the seed. In cross-breeding the Bt. Cotton variety with a local variety, the product is no longer a microorganism and cannot benefit from the exemption in 3(j) of the Patents Act. The significant part of the analysis was to show that plants could not be patented and that their product was at the end of the day, a plant, as it was created using essential biological processes such as reproduction.
Essential Biological processes and Genetic Modification: Is there a Difference?
I find that the general narrative, in the cases relied upon, involved protecting essential biological processes, for example, selective breeding to create a more robust variety. Such processes may occur naturally. However, the entire strain of seeds sown could not have been created without human intervention. While there was cross-breeding with local varieties, should such cross-breeding vitiate the entire right over property that was created by Monsanto? Such reasoning is fallacious because what may apply to one part of this process need not apply to the entire process. The process may have involved crossbreeding to make the product better suited to Indian conditions, that does not mean the entire process is a result of this single step. Faking an accent does not make one British or change one’s personality. Similarly using crossbreeding does not make the entire method an essentially biological process. It cannot be reduced to one single step.
Further, the court has drawn analogies between our laws and foreign decrees after disregarding relevant differences. Many of the cases do not specifically note the difference between crossbreeding and genetic modification. When the court asserts that Monsanto tried to patent what is an “essentially biological process”, it implies that such a hybrid can be created naturally through reproduction and cell division alone (cross-breeding between plants). However, looking at the progress in the field, it is astronomically unlikely that crossbreeding will result in bacterial genes expression in plants. Even if the claims of patents over the plant itself are invalid, the method of their development cannot be reduced to essentially biological.
Are There Adequate Protections Under the Plant Variety Act?
The High Court also suggests that protection under the Patents Act and protection under the Plant Variety Act are mutually exclusive and suggest the latter for protecting interests in transgenic plant species. Arguing that the Parliament enacted the latter shortly after adding s. 3(j) with the knowledge of both, there was legislative intent to make them mutually exclusive. However, the protections available under this act are not adequate. Simply because such a change would permit several groups to create their variety with such a trait, out of the transgenic crops, the biotechnology industry in India will see severe repercussions. Such products are quickly outdated; bollworms are reportedly becoming resistant to Bt crops. There is no longer an incentive to develop/sell such seed in India. Companies will respond by exiting the Indian market, taking away the option of using Bt. crops from farmers.
While an urge to protect or assist farmers who cannot afford such exorbitant pricing is noble, if indeed this was one of the motivating factors behind the decision, demolishing protections available to biotechnology and transgenic crops does nothing to ease their plight.
The Supreme Court has declined to stay the High Court’s Order in the previous listing in May; the case is likely to be listed again in mid-July. Whether or not there is a change in the court’s approach remains to be seen.
In a post-Snowden world, there has been relatively more awareness and interest in the right to privacy regarding digital communications; and in knowing when the government can snoop-in on personal conversations. A majority of the communications taking place today are digital and involve two crucial processes i.e. encryption and decryption. Encryption (which is conversion of information into a code) happens when a message/call is initiated. At the same time, decryption (conversion of code back into useful information) happens when the message/call is received by the recipient. There are multiple nuances in this process; both in the technological aspect and the legal aspect.
For quite a while now, WhatsApp chat pages show the message – “Messages and chats are now protected with end-to-end encryption.”. The end-to-end encryption or E2EE (first used in program called Pretty Good Privacy, by Phil Zimmermann in 1991) is a form of encryption that makes it improbable if not impossible to intercept a private conversation. Traditionally, there are 3 instances when a conversation can be intercepted – firstly, from the device of the sender before encryption, secondly, when the information code in is transmission and thirdly from the device of the recipient after decryption.
In 1790, the US Government started issuing patents under Patents Act 1790, with the motive of “Encouraging Arts and Sciences”. These intellectual property rights slowly became the biggest statutory safeguards of research and investment in a democracy. Edible business cards, nicotine infused coffee, a rock-paper-scissors card game for people too lazy to use their hands and finally thong diapers which make up the list of some rather amusing patents the USPTO has issued to protect intellectual property.
In initial days, this IPR regime was under huge criticism from ethical and moral firewalls which questioned how the right of commercial exploitation of resources can be rested at the hands of a selected few [link found here]. But the intensification of competition in industries (especially the biotechnological industry in this case) called for some sort of incentive creation for investment in research which came in the form of patents.
SCIENTIFIC DIFFERENTIATION OF FORMS OF DNA IN QUESTION
Genes as we have pointed out before are units of heredity. A gene is a segment of DNA that codes for a specific protein or set of proteins. In this article, we will talk about legal framework of gene patenting with respect to the following three forms DNA in its natural cellular environment, isolated genomic DNA, modified synthetic cDNA. Scientists have discovered methods of extracting DNA from its natural cellular environment which is later used for purpose of diagnosis through gene sequencing. This isolated genomic DNA is sometimes modified by splicing and removing the non-coding introns to make a DNA made of only exons. This kind of modified DNA is called cDNA and the same is used to express particular proteins by scientists in human body. The difference between isolated genomic DNA and cDNA is that there is human modification involved in the later while there is none in the earlier [link here].
HISTORY – CASE LAWS SURROUNDING GENE PATENTING IN USA
The landmark decision of Diamond vs Chakrabarty in 1980- opened the floodgates for patenting of microorganisms where the judge ruled that human-made living matter is
. Anything under the sun made by man was considered to be patent worthy as long as they were not discoveries or manifestations of nature. The court clarified the threshold required for obtaining a patent as: “relevant distinction was not between living and inanimate things but between products of nature, whether living or not, and human-made inventions.”
“Thus, a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc2; nor could Newton have patented the law of gravity. Such discoveries are “manifestations of . . . nature, free to all men and reserved exclusively to none.”
The United States Patents and Trademarks Office though seemed to have paid little attention to the limitations under the patent regime which in no way allowed patents to products of nature. The Patents Office undertook an expansive interpretation of law and went on to grant patents to a number of “engineered DNA molecules”. It handed patents for isolated DNA on the ground that since these molecules had been secluded from their natural cellular environment they were no longer “products of nature”.
This standing USPTO practice was challenged for the first time in a 2009 case against the grant of patents to Myriad Genetics. Myriad Genetics had after extensive investment and research discovered locations of BRCA 1 and BRCA 2 genes on the human chromosome which was landmark in the medical science. Mutation of BRCA 1 and BRCA 2 genes could lead to breast and ovarian cancer in women (it increases the chances of contracting breast cancer by 50-80% and ovarian cancer by 20-50% approximately according to case reports of Myriad Genetics vs. AMU). Though the scientific community was aware of threat of cancer from heredity, they were clueless as to the exact location of the BRCA 1 and BRCA 2 genes on the human chromosome. USPTO gave Myriad Genetics the exclusive rights to isolate these genes and carry diagnostic tests. The problem started when Myriad tried to enforce these patent rights against organisations which tried to test such gene mutation since they had an exclusive right over the isolation process which is an essential step in any diagnostic testing.
The case of Association of Molecular Pathologies vs. Myriad Genetics can be contextualised as a case of civil rights versus intellectual property rights. The company’s patents on BRCA 1 and BRCA 2 genes were ruled invalid on March 29, 2010 by Judge Robert W. Sweet in a U.S. District Court. On an appeal, the Court of Appeals for the Federal Circuit reversed the trial court judgment on July 29, 2011 and held that the genes were eligible for patents.
On December 7, 2011, the ACLU (fighting the case on behalf of petitioners) filed a petition for a writ of certiorari to the Supreme Court. On March 26, 2012, the Supreme Court vacated the Federal Circuit’s judgment and remanded the case for further consideration in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc. in which the Supreme Court had ruled, just six days earlier, that more restrictive rules were required to patent observations about natural phenomena.
Myriad Genetics vs. AMP
“Myriad did not create or alter either the genetic information encoded in the BCRA1 and BCRA2 genes or the genetic structure of the DNA. It found an important and useful gene, but ground-breaking, innovative, or even brilliant discovery does not by itself satisfy the §101 inquiry.”
One of the greatest problems for the Indian Economy faces today is the problem of financial inclusion and the lack of credit in rural areas and for micro industries. In 2013, the Reserve Bank released a paper based on the findings of a committee under the chairmanship of Nachiket Mor. This committee said that services provided through mobiles and other internet portals are a low-cost method and under the right regulatory setup would have the potential bringing financial services to places where the formal banking setups find it unviable or unprofitable to setup branches. This is because having both credit and savings functions is necessary. The committee suggested that allowing non-banking businesses with huge customer bases and comprehensive data about the consumers will be able to increase the reach of the requisite facilities in regions where they are not available.
Payment banks would provide be able to provide services such as payments and holding demand deposits to their customers. The concept of payment banks also brings with it the benefits of having a robust payment mechanism at your fingertips and yet not having to spend on the costly infrastructure and manpower required to maintain an actual bank.
The RBI issued in December 2014 released guidelines for payment banks for an entity to register itself as a payment bank. Eligible promoters should be in pre-paid payment instrument (PPI), Non-banking financial institutions (NBFC’s), telecom operators and supermarkets. Another factor was that these entities should have a good track record and having had properly run their business for a minimum period of 5 years.
Each individual account would be allowed to deposit a maximum sum of 1 lakh rupees; they would be given interest on these savings. These banks would be allowed to issue debit-cards and ATM cards. All their services have to be accessible through mobile; and will be used for automatic cashless and chequeless payment of bills. Payment banks cannot undertake lending activities. They will also provide services like being able to transfer money from the accounts via mobile. RBI has also, with TRAI issued rules for telecom operators on the charges for the services of these payment banks.
Payment banks would have to maintain CRR and SLR based on RBI guidelines. The minimum paid-up capital would be 100 crores and their outside liabilities should not exceed more than 33.33 percentage of their net worth. The minimum initial capital requirement paid by the promoter has to be 40% of the entire investment made and the foreign investment would vary according to that private sector banks. Each of these banks has to have a fully networked and technology driven system of functioning from the beginning. Presently 11 payment banks have been issued licenses; this includes Vodafone m-pesa, Aditya Birla Nuvo Ltd, Department of Posts, etc.
These ‘banks’ will go a long way in shaping the financial sector in the nation and will lead to inclusion of presently uncared for section of the Indian economy. This will though not change the monopoly the traditional banks have over the credit supply. It will also go on to promote the goals of both Pradhan Mantri Jan Dhan Yojana and Digital India of including more and more Indians in the organised sector of finance but also make cashless payments more accessible for the poorer sections. This is because the chances of creating a branch in remote village are far lesser than being able to take a mobile phone there. The system though has its promises and will change the dynamics of this sector, assessing the true potential of the system will not be possible till it is implemented in its entirety.
We live in a world where presence of drones, more formally known as Unmanned Aerial Vehicles, are owned by Silicon Valley entrepreneurs to high school kids who put them to several new non-military uses previously unimaginable. We live in a world where drones are conceptualized to do something as simple as delivery of items by Amazon to your doorstep to delivering radioactive vials to the office of the Japanese Prime Minister, from monitoring crops to capturing heart stopping footages which you would see circulating on social media platforms. In a world where these gadgets have flown uncomfortably close to US airspaces as many as 650 times, been used to smuggle contraband into prison cells, used to take pictures of inner premises of temples in India which are prohibited, interfered in police and firefighting operations and lastly crashed into civilian populations causing injuries. This article is placed in such a paradigm where clear absence of regulations have led to imposition of blanket bans post freak accidents and subsequent media hysteria leading to isolation of these progressive gadgets from our daily lives. If you are injured in an accident caused by negligence like drunk driving, contact an expert lawyer who will help with DUI first offense claim, give you legal counseling, and fight for your rights.
Some of the gravest legal concerns surrounding use of civilian drones are as follows:-
The lack of existence of a clear framework regulating use of commercial and non-commercial drones in most countries across the world has led to imposition of blanket bans on their very use. For instance, in October 2014 in India, the Directorate General of Civil Aviation (DGCA) announced that until proper rules and regulations are formulated, Unmanned Aerial Vehicles (UAV) are forbidden from taking to Indian airspace for any non-government agency, organization or individual without prior authorisation. The use is only permitted if permission is obtained from a number of governmental agencies which are usually out of civilian reach like the DGCA, Air Navigation Service Provider, the Ministry of Defence, the Ministry of Home Affairs and other concerned agencies. The fact on paper is that no private organization has been given license to use drones. Toy stores and other private markets continue to sell drones and consumers buy them, unaware of the fact that such transaction and use is illegal.
In another provision the Indian government adopts a one size fits all policy wherein the draft guidelines distinguishes civilian drones into four weight categories: micro (less than 2kg), mini (less than 20kg), small (less than 150kg) and large (greater than 150 kgs). The draft mandates that all drones are to be registered irrespective of their weight. A huge error lies in not distinguishing Nano Drones in the said process which have limited commercial usage in terms of distance they can travel and the uses they serve. The nano drones in its very nature should be exempted from registration formalities, third party insurance policies, the minimum 18 year old age limit of piloting which are relevant only for heavier drones.
The United States of America came up with a set of progressive regulations which try to do away with the blanket ban system and fixes a central law for use of civilian drones earlier this year. The Federal Aviation Administration’s new commercial drone rules allow a broad range of businesses to use drones under 55 pounds(approximately 25 kgs), but with several restrictions:
The perception surrounding use of drones in general doing day to day human work is that of apprehension. The negativity surrounding use of drones develops from the side effects of legalizing it like privacy breaches and freak accidents.Thus whenever an accident is reported, the media highlights only that portion and it becomes the generalized picture surrounding use of drones. This becomes problematic on two levels:-
For instance, in Florida, after a few cases of privacy breaches were reported, legislation prohibiting unmanned aerial vehicles from taking pictures of citizens was passed. On the basis of singular events the broader benefits of drones taking pictures like active citizen journalism, contribution to photography, contribution to science were completely ignored. Also the same legislation was a breach of freedom of expression according to rights bestowed by First Amendment as it drew an unfair distinction only extended to drones.
In a diverse geopolitical and mostly rural background like in India, where a balance between technology and individual rights need to be made, it is necessary that there is a need of presence of regulation mechanisms and not a complete blanket ban on the technology as whole which stops the very basic right of access to technology. Till the time we get used to the usefulness of the machines that we have built, drones will be perceived negatively. Till the time a proper regulation mechanism comes into being you can be sure that if Amazon executives are testing a drone delivery system so are prison inmates.
Source: xk
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Liability in law arises to persons who are considered rational and have control over their actions. Techonology is advancing at a rapid pace; machines have taken over a lot of jobs requiring manual labour. Some argue that this is beneficial as it means humans as a race would be able to focus on other activities/specialize. However, with the rate at which things are developing, one wonders what kind of activity would be left for humans. We already have a ‘robot lawyer’ hired by a law firm, a robot which helped people with their traffic tickets and has already successfully challenged 160,000 tickets, there are also robots writing stories for news agencies, one wrote a movie, another drew art. Robots have already defeated us in chess and go. Though they might not be completely ‘intelligent’, there’s no doubt that someday they could catch up to us.
However, does such a fear of robots ‘taking over our jobs’ make us Luddites? As robots become more advanced and autonomous, the chain of causality becomes complex. Which brings us to the question of who becomes liable when a robot commits a crime, or more crucially, can a robot commit a crime or is it merely following orders or is its action simply a malfunction. Companies are considered to be non-human legal entities which can be made liable for their offences through fines or revocation of licences. Could we take an action in a similar direction?
Ethics in and of itself is a widely debated philosophical subject, so is the concept of personhood and consciousness. To bring in a third factor, robots, as ‘beings’ having the potential to possess ‘ethics’ or whether ‘artificial intelligence’ could be termed as consciousness is a legal quagmire. When the action of a robot causes the death of a person or an accident, the question arises, who should be liable, the manufacturer, the owner or the user?
As earlier mentioned, the idea of being liable for an action arises from the fact that the actor is considered to be autonomous. For self-driving cars, therefore, the trolley problem becomes relevant and the question of liability in cases of driverless cars crashing is pertinent.
Ethics, however, are not limited to drivers, and robots are not limited to such a function. There’s a plethora of situations which we must consider. If a robot, for example is to be truly autonomous and yet follow Asimov’s laws, what then, when there are multiple orders which are contradictory, how should a robot react if it’s owner who is in great pain and there is no scope for her to live, requests the robot to kill her? If a General is fighting in war and knows that if he were to be turned over be tortured and forced to spill secrets, requests a robot to kill him, should it? Who would decide what is ethical for robots used in war or war-like situations?
The question therefore arises, when our idea of what is ‘ethical’ or ‘moral’ itself differs among people, can we enforce such an idea on robots? Before we ask if we can trust robots with making moral decisions, can we trust humankind to make the same decisions?
If we make robots liable for their actions, do they deserve any rights? It would not be a first to give rights to non-humans. Animals, for example, have a number of people advocating for their rights. Questions are aplenty, in a trolley problem, if one had to choose between a human being and 5 robots who could through their research cure cancer or some other illness, who should be destroyed? What if the human being were the President of a country?
As time passes, AI will only develop further, when we have autonomous robots who have learnt to say no. The question of who should teach when it should say no also arises. What is morality but one programming oneself or being programmed subconsciously or otherwise to behave in a particular manner in a particular circumstance. How different then, would it be from teaching a child what is moral and programming a robot to act in a particular manner in a particular circumstance, is that not ‘right’ for it?
When we have more and more humanoid robots, and start to treat them like humans and have relationships with them. Questions of how they can be used will eventually arise. How would we view a relationship between a robot and a human? (The movie ‘Her’ comes to mind) What about robots used for sex? What if said robot is looks like a child? An animal? Does it matter only if they have ‘conscience’?
The ethics of robotics, is a difficult to address, and before we are overwhelmed with the advancement of technology, we must address these concerns.
For further information;
http://www.economist.com/node/21556234, Morals and the machine, The Economist.
https://www.youtube.com/watch?v=7Pq-S557XQU, Humans need not apply.
https://www.youtube.com/watch?v=Umk7nQiaqkA, Should we give robots rights?
http://www.bartneck.de/publications/2015/anthropomorphismOpportunitiesChallenges/, Anthropomorphism: Opportunities and Challenges in Human-Robot Interaction.
http://www.androidscience.com/Ro-Man2006/1Kahn2006Ro-ManWhatIsAHuman.pdf, What is a Human? – Toward Psychological Benchmarks in the Field of Human-Robot Interaction.
