Wednesday, February 2, 2011

A Technological Endeavour to Fulfill the Right to Work(MG NREGA): Bringing ICT to the door steps of the Common People of India

     Being a fellow of the Berkman Center (Berkman Center for Internet and Society, Harvard University) has been one of the best experiences of my academic life. The exposure to a wide variety of discussions taking place in and around Berkman Center on the impact of technology on society is both intimidating as well as inspiring. A novel feature which was introduced at the Center this year to encourage more interaction between the fellows was the concept of ‘Fellows Hour’ every Tuesday wherein each week a fellow is required to lead the discussion on a specific topic falling within the wide notion of ‘web exceptionalism’.
    When it was my turn for leading the discussions I was faced with the challenge of identifying an issue which would on one hand fall within the notion of ‘web exceptionalism’ and would also be linked to society. Being a research scholar from India it was an additional need to present Internet culture from the perspective of Indian people and their needs. An area which has always fascinated me was the  role of technology in the developmental aspects of human life. Hence it was of deep interest to me to look into the role of Information and Communication Technology (ICT) in the fundamental aspect of fulfilling the 'right to work' under the Mahatma Gandhi National Rural Employment Guarantee Act 2005.
     Initially I was not sure whether role of ICT in MG NREGA would fall within the general notion of ‘web exceptionalism’ but then I realised that the term ‘exceptionalism’ implies something unusual, out of ordinary and to that extent in a country where less than 7 percent of the population has access to Internet any endeavour to make the technology available to the vast majority of the uneducated, technologically illiterate and vulnerable people who are living in extreme hostile conditions, even if in a limited manner, is an extra-ordinary event. And if this technology helps in empowering this class of people, then it will be an exceptional event.   
     MG NREGA is a landmark legislation securing right to work for a period of 100 days for every rural household. The legislation attempts to fulfill a number of laudable goals like implementing the Gandhian ideal of development through progression in the rural economy, achieve the human development goals propounded by Mahbub ul Haq and Amartya Sen and it also attempts to fulfill the Indian Constitutional goal of a social welfare state wherein every individual has a right to live with dignity and it is the obligation of the State to provide necessary employment opportunities to all her people. This social security program is also India's flagship program to achieve the UN Millennium Developmental Goal of poverty reduction.
     But inspite of the immense potential benefits of this legislation different study reports have found out that large scale corruption has eaten away majority of the real benefits of this program. At every stage of implementation the government officials and the local political establishments have taken advantage of the ignorance of the people to deprive them of their entitlements. 
    Non-issuance of job cards at the time of registration, denial of work application receipts, delay in allocation of jobs, inadequate payment of wages, non-payment of unemployment allowances, and  fudging of the muster rolls and the work site reports are some of the many instances of corrupt practices under MG NREGA.  Lack of awareness amongst the common people about the details of the employment program aggravates the problem. Existence of laws like Right to Information Act and Prevention of Corruption Act are not adequate to protect the rights of the people as the legal procedures under these legislations are complicated, time consuming and expensive. 
   Absence of Transparency and Public Accountability are the primary causes of corruption and consequent failure of the legislation. Social activists have suggested different mechanisms like mandatory social auditing, appointment of regulatory authorities, payment of wages through banks etc. to deal with the problem of corruption. To my opinion the most important mechanism to deal with the problem of corruption is by making the ultimate beneficiaries or consumers of the program aware about their legal entitlements and creating a system whereby they can demand a fulfillment of their rights. In a vast country like India a mere top-down approach is not adequate to deal with corruption but has to be equally matched with a bottom-up approach which creates upward social pressure. Towards achievement of this objective the most innovative approach which the government has contemplated is the use of ICT.
     The use of ICT in MG NREGA can be classified into two stages.
     The first initiative was the creation of a centralized information system known as the Digital Knowledge Repository (www.nrega.nic). This website provides state-wise details of number of employment demanded, amount of work done, wages earned, number of days worked etc. Details relating to job cards, muster rolls and asset registers are also made available on the website. Individual beneficiaries by registering their job card number can apply online for allocation of work, receive work receipt as well as payment receipt, register their complaints and know other details about the program in their local area. 
    However this centralized information system is primarily beneficial for the purposes of government officials, policymakers and practitioners, and is of not much use to the actual rural beneficiaries. Lack of Internet connectivity, illiteracy and absence of adequate computer knowledge inhibit the use of this system by the rural people. The biggest shortcoming of this system is that  there is no mechanism to verify the accuracy of the data uploaded in the repository. In the absence of actual field study verifying the authenticity of the various data, it will be very difficult to identify the manipulation in the official records and prevent actual corrupt practices. 
    In light of the shortcoming of the centralized Digital knowledge Repository, the second initiative of the Ministry of Rural Development is far more important from the perspective of the actual beneficiaries as it attempts to bringing user-friendly technologies to the door steps of the people. This initiative was recently launched in August 2010 after the successful pilot study in few selected districts of Rajasthan. Proper implementation of the second phase of technologies has the potentiality of securing the people their true entitlements. This initiative involves five major components. 
   Soochna Seva Kendra - The Soochna Seva Kendra or Information Kiosk at the village level will provide text-to-voice and touch screen enabled computers with in-built bio-metric access system. A worker will receive automatic information about total number of days worked, days left to work and wages earned. Through touch screen facilities the computers will provide the users with additional information relating to the legislation, worker entitlements, unemployment allowances, prerequisites for work under the scheme, work site information and worker history. It will also act as a platform for job application, job receipt, payment slip receipt and grievance platform.  
    Unified Handheld device - To prevent falsification of muster rolls and official records a unified handheld device with biometric and GPS verified attendance tracking system will be provided at each work site. The GPS will help to verify the location of the workers and the biometric device will help to record his attendance. This will prevent fraudulent preparation of muster rolls and work sheet. The device is also being developed to issue work receipt, capture photographs of work in progress etc. Information collected through the UHD will automatically be transmitted to the Information Kiosk and the Digital Knowledge Repository.
    Community radio - For the purpose of creating awareness about the different entitlements under the legislation a community radio system is being initiated. 
    SMS job card retrieval - In light of the growing mobile subscriber base a low cost SMS job card retrieval option is also being initiated to receive job status information about number of days worked and number of workdays left under the program.
     Biometric enabled ATMs - To ensure easy but secure payment system low cost ATMs with biometric identification is being proposed. As soon as the work details are uploaded in the Digital Knowledge Repository the Central Government will directly transfer the wages to the bank accounts of the beneficiaries. This will ensure timely and correct payment of wages. 
     This second stage of ICT will help to transform the existing system into 'People's Information System' whereby the workers will be able to access information and demand for proper fulfillment of their rights and entitlements. Reduced opportunities of corruption will help in empowerment of the rural people. It will also help the Government in exercising better control over the funds and ensure better implementation of the program. 
    A little financial help goes a long way in improving the lives of millions of poor people. This fact is proved correct in the course of working of this legislation in the past four years as it has brought significant changes in the rural economy and in the lives of the people.  But corruption, illiteracy, ignorance and caste based social structure have long acted as the major impediments in the successful implementation of welfare programs.  If technology can help in overcoming these shortcomings then it will be a step towards the goals of rural economic progress and human development.  
      At present there are many hurdles in the successful implementation of ICT in developmental works – 
     (1) Huge financial expenditure (2) Adequate and regular training of the rural people in the workings of the computers and related technologies (3) Building up of a team of computer knowledgeable professionals who will be willing to work in rural places (4) Constant monitoring of the information systems (5) Attitude of accountability and transparency in the mindset of government functionaries (6) Prompt penal actions against corrupt officials  
   Bringing technologies to the door step of the people is a step towards the right direction. The importance of internet based system for the purpose of open, transparent and accountable government cannot be denied but it becomes crucial for the poor and vulnerable because they do not have the means or the knowledge to exercise their rights in other alternative ways. Thus if technology helps to fulfill the basic human right to work for 20 percent of the world's poor population, it will be an ‘exceptional’ event for mankind.    


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Monday, December 27, 2010

Rights of Users to Access New and Advanced Technologies

There are number of controversial issues in the area of Copyright law, but my research concerns with the impact of copyright legislations on the rights of general users of copyrighted works and new technologies. In other words, I am focusing in this paper the controversy relating to Rights of the Copyright holders vis-a-vis Rights of the Users to access new technologies, when such technologies have potentiality to infringe the rights granted to the copyright holders under the Copyright laws.
If a new technology has the capability to be used for multiple activities, some of which may result in infringing the rights of the copyright holders, then the question arises whether users of such technology should be allowed to use that technology irrespective of the fact that there will be some incidents of copyright violations during such usages or denied the right to use the same. A simple example is the Xerox machine. It has various beneficial uses like copying or making duplicates of important documents, but at the same time it can be used for copying a book in entirety thereby violating the rights of the author of that book.      
This question assumes great significance today because the society is faced with a large number of advanced technologies like Internet and other forms of digital technologies, which have numerous beneficial usages but can also adversely affect the rights of copyright holders like authors, musicians, film makers etc. by providing the users with an easy mechanism to copy and distribute digital files to unlimited number of people at extreme rapidity, without lowering of any quality and at negligible costs.
This issue of conflict of interest has not yet been debated before the Indian judiciary, but there is every possibility that with constant evolution of technologies such questions may soon be posed before the Indian courts. When such questions do arise before the courts, it is important for the court to adopt a balancing approach between the rights of the copyright holders and the rights of the users.  
In this regard the most rational approach has been taken by the US judiciary in the two leading cases of Sony Corporation of America v. Universal City Studios (1984) and Metro-Goldwyn-Mayer Studios v. Grokster Ltd. (2005).
In the Sony case a number of television production companies had sued Sony for violating their copyright protection. It was alleged that the Sony Betamax video tape recorders which enabled the users to copy copyrighted television programs for subsequent watching, infringed the production companies' right to regulate and control the manner of watching their programs and also depriving them of a potentially lucrative market for recorded television programs. The television companies did not sue individual users of Betamax recorders, but sued Sony on the ground of vicarious liability and contributory infringement of copyright law. 
Stevens J. while delivering the opinion for the majority recognized the social welfare objective of copyright law. The principle aim of copyright law is to ensure public good and reward the authors for their labor and contribution to social good. Hence copyright holders are not granted all the rights relating to their created work, a number of exceptions for social good are recognised through the fair use/fair dealing principles. 
Accordingly the private recording of television programs were justified on the ground of time-shifting, that is delaying the time of viewing a television program which a viewer was invited to watch free of charge does not amount to copyright infringement. Time-shifting increased the number of viewers and fell within the fair use exception.    
The Court further denied the claim of contributory liability of Sony corporation on three grounds - 1) Sony did not supply the viewers with copyright infringing materials, but only provided them with a recording device. The relationship between Sony and its users ended with the delivery of the recording device across the sale counter. Thus there was no direct involvement of Sony with the activities of its users. 2) Mere knowledge of the fact that its users may make unauthorized copies of copyrighted materials or knowledge thatsome users are making unauthorized copies is not adequate to make Sony corporation vicariously liable. 3) On the basis of doctrine of staple article of commerce, any equipment even if it was being used by some users for infringing purposes, so long as it is capable of other legitimate and unobjectionable purposes i.e. substantial non-infringing usages such articles should not be held liable for copyright infringement.
This principle of substantial non-infringing uses correctly balances the demand of copyright holders' claim for effective protection of their monopoly rights and the rights of the users to use advanced technologies for the betterment of their lives.
After a gap of twenty years the US Supreme Court revisited the Sony decision in the Grokster case in light of the controversy relating to users rights vis-a-vis copyright holders right to control the Internet and other related digital technologies. The Grokster and other companies had distributed a free software in the Internet which enabled easy file sharing between computers through peer to peer network (P2P network). The recording industry, film industry and television companies alleged that a large number of internet users were using the Grokster software to share a large number of copyright infringing materials like music files, movie files etc. The principle debate in this case revolved between the rights of copyright holders to retain control over their creative works and the rights of the users to use new and beneficial technologies. On the one hand strict upholding of the copyright holders' rights will limit the development of beneficial technologies and adversely affect the scientific progress in society and on the other hand easy copying through Internet and other advanced technologies can adversely affect the rights of the copyright holders and limit their creative incentive, thereby retarding the social and cultural progress of society. 
In spite of the strong arguments of the petitioners requesting the need to reconsider the Sony decision, the US Supreme Court reiterated the validity of their earlier ruling in Sony case and upheld the 'substantial non-infringing use' theory on the basis of staple article of commerce doctrine as the correct test to be adopted for determining the legality of new technologies. However the Court correctly introduced the 'inducement theory' in copyright jurisprudence in this case. If a technology, irrespective of the fact that it has both infringing and non-infringing usages, is distributed and promoted with the objective of copyright infringement it will give rise to liability for the person distributing the device for acts of infringement by third parties. 
In this case the Court recognized the beneficial aspects of P2P networks, but held Grokster liable for positive acts undertaken by it to encourage copyright infringement by its users. Unlike Sony, Grokster intentionally and actively encouraged its users to infringe copyright laws and participate in unauthorized distribution of copyrighted materials. 
Thus the US Supreme Court has recognized the competing claims of the copyright holders and the consumers at large and has correctly tried to balance both. Such an approach is the right approach when deciding issues of emerging technologies which have both potential advantages and disadvantages.
The Indian judiciary is yet to face any such controversial issues but the ever increasing instances of copyright infringement in entertainment products and the constant evolution of technologies may soon bring the parties before the courts to resolve their competing rights. In a culturally rich but economically developing country like India the judiciary will need to give special attention to the needs of the society without compromising with the rights and interests of copyright holders. Unlike the US Constitution, the Indian Constitution do not specifically provide an obligation on the Parliament "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries" (US Constitution Article 1 Section 8 cl. 8) but the preamble to the Indian Constitution imposes an obligation on all organs of the State, including the judiciary, to secure to its citizens "....Liberty of thought, expression, belief, faith and worship." By virtue of this obligation it is important that the judiciary should always try to protect the interests of all the citizens in a manner which will ensure social, economic, cultural and political well being of all.