B IG D ATA : L EGAL I SSUES BY: P RANAV K UMAR M YSORE S ENIOR A SSOCIATE K&S P ARTNERS

What is Big Data? Big Data is a term that describes the large volume of data – both structured and unstructured- too difficult to process using traditional databases and software. It is a collection of data sets whose size is beyond the ability of typical database software tools to capture, store, manage, and analyse. Eg: Petabytes (1024 terabytes), Exabytes (1024 petabytes), etc. Volume vis-à-vis Technology. Big data can be analyzed for insights that lead to better decisions & strategic business moves. 2(C) K&S Partners, 2015.

Types of Big Data (C) K&S Partners, STRUCTURED Information with a high degree of organization, straightforward search engine algorithms or other search operations. For eg. Transactional data, created data like customer surveys UN-STRUCTURED Information which has no identifiable internal structure i.e. it can’t be gathered based on clicks, purchases or a barcode. It’s mostly human generated and not machine generated. For eg. s, Word & PDF files, Digital Images, Video, Audio, Social Media Posts

Legal Issues with Big Data Potential use and benefits of analysing Big Data also raise privacy related concerns. Data protection laws and confidentiality issues have to be in compliance with while using the Big Data. “The development of automatic data processing, which enables vast quantities of data to be transmitted within seconds across national frontiers, and indeed across continents, has made it necessary to consider privacy protection in relation to personal data” - OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data (C) K&S Partners,

Potential Legal Issues Data Protection Data Ownership Copyright Infringement Database Licensing Corporate Transactions Government use of Open Data Security Breaches (C) K&S Partners,

Data Protection The controversial areas of user sentiment and social data analysis, cross referencing and mixing of data obtained from diverse sources require a safe and secure legal framework that can protect both data users and suppliers. Presently, India does not have specific privacy legislations or data protection legislations. Indian judiciary has interpreted Article 21 includes right to privacy as a fundamental right. Information Technology Act, 2000 has attempted to address the issue of data protection. (C) K&S Partners,

Data Protection under IT Act, 2000 Section 43A: "Compensation for failure to protect data“ which does not specify an upper limit for compensation. Section 72A: “Punishment for disclosure of information in breach of lawful contract” Section 69 empowers the Government to intercept, monitor or decrypt any information in any computer resource if necessary in the interest of sovereignty & integrity of India (C) K&S Partners,

Data Protection under IT Act, 2000 Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 – Rules defines security practices and procedures that a Body Corporate - possessing, dealing, or handling any sensitive personal data or information must implement. – Rules lay out 8 types of sensitive personal data including passwords, medical records, biometric information etc. – Rules give an option for individuals to withdraw consent to disclose personal data. – It is not clear, however, if the Body Corporate has an obligation to delete information if consent is withdrawn. (C) K&S Partners,

Copyright Infringement The new Big Data search and analysis tools that could result in an infringement of the copyright. In Shashank Shekar Mishra v. Ajay Gupta, 2011 various provisions of Indian Copyright Act, 1957 were referred : – Section 2(o) defines "literary works" to include computer programmes, tables and compilations including computer "literary data bases. – Section 14 of the Act means, the exclusive right, in case of computer programme, to reproduce the work in any material form including its storage in any medium. – Section 17 provides that the author of the work shall be the first owner of the copyright therein. (C) K&S Partners,

Shashank Shekar Mishra v. Ajay Gupta, 2011 Plaintiff was a web designer and stored his original web designing templates, designs and styles, software source code, computer programme etc. in his laptop, along with his personal data such as user IDs and passwords, credit card details. Plaintiff was an active user of website The defendant, who was known to him as a user of the website, stole his laptop and threatened to make public all the information stored. The plaintiff sought a suit for permanent injunction, rendition of accounts & delivery up of the infringing material and damages. (C) K&S Partners,

Shashank Shekar Mishra v. Ajay Gupta, 2011 Observation of the Court: – Plaintiff’s original web designing templates, software source code, and computer programs fall under “literary works” within the meaning of Section 2(o) of Copyright Act, – Section 14 gives an exclusive right to the Plaintiff, in case of Computer Program to reduce the work in any material form. – Section 17 provides that author of the work shall be the first owner of the copyright therein. – The privacy of the plaintiff granted under Article 21 has been invaded since defendant had access to plaintiff’s private information. (C) K&S Partners,

Shashank Shekar Mishra v. Ajay Gupta, 2011 Held : – A decree of permanent injunction restraining defendant from infringing Plaintiff’s copyright in the “literary works” – A decree of recovery of Laptop – A decree of damages amounting to Rs. 10 Lakh and pedente lite/future p.a. on Rs.10 Lakhs (C) K&S Partners,

Data Ownership: Whether and to what extent the companies using Big Data can claim ownership or proprietary rights. Evaluating and assessing ownership of data essential for determining the value of a company. In EU, the law of data ownership originates from the Data Protection Directive 95/46 and the Database Directive 96/9. It has been recently held in, Google Spain and Google Inc v Agencia Espanola de Proteccion de Datos of Mario Costeja Gonzalez that that the individual's right to data protection "will override the economic interest" (i.e. the property right) "of the operator of the search engine". (C) K&S Partners,

Database Licensing A database would systematically and methodically store the data. Collection of the Big Data for its use would require a sui generis database right. This would help prevent third parties to commercially exploit and transact with Big Data. (C) K&S Partners,

Corporate Transactions Big Data is turning into a key asset for data – driven business intelligence. The value of this data and its outcomes will be taken into consideration during liquidation or M&A transactions. Startups are using Big Data solutions to their advantage in gaining venture capital. More advanced companies using & analyzing Big Data are acquired by multi national players. (C) K&S Partners,

Other Legal Issues  Taxation of Big Data  Antitrust: access to third parties  Standardization of laws for Big Data (C) K&S Partners,

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. T HANK YOU 18(C) K&S Partners, 2015.