The Ministry of Electronics and Information Technology (“MEITY“) has published the draft National Data Governance Framework Policy (“NDGFP“)1on May 26, 2022 which aims to transform and modernize government data collection and management processes. The purpose of the NDGFP outlined in the draft is to enable an artificial intelligence and data led research and start-up ecosystem in India by creating a large repository of datasets. The erstwhile draft on government data governance titled ‘India Data Accessibility and Use Policy’ was published earlier this year in February. Please see our article here to read more about what this policy entailed.
The earlier draft received substantial criticism regarding its provisions on pricing and licensing which allowed the government to monetize datasets. It was stated in the draft that, detailed datasets which have undergone ‘value addition/transformation’ and qualify for monetization, may be priced appropriately. However, the draft did not elaborate upon the value additions contemplated or the qualifying criteria which would allow these datasets to be commercialized. It was also noted that facilitating the monetization of datasets by government departments/agencies would be contrary to the ethos of the policy, i.e., creation of an open and accessible database. These pricing and licensing provisions are not included in the NDGFP. Further, while the erstwhile draft provided that certain datasets classified under the negative list of datasets would be non-shareable or would have only restricted access with trusted users, the NDGFP does not make any such stipulations.
We have summarized the key highlights of the NDGFP and our observations on the same in comparison to the erstwhile draft in the following paragraphs:
- Creation of the India Data Management Office (“IDMO”) – The NDGFP proposes that the IDMO be set up under the Digital India Corporation and MEITY for framing, managing, reviewing and revising the policy. The IDMO would be responsible for developing rules, standards and guidelines under the policy. The IDMO would also formulate all standards/rules relating to data/datasets/metadata. We note that the duties, functions and rights of the IDMO under the NDGFP are similar to those granted to the India Data Office (“IDO“) proposed to be set up under the erstwhile draft.
- India Datasets Platform – The IDMO would be tasked with the responsibility to design and manage the India datasets platform which will process dataset requests and provide access of the non-personal data and anonymized data to researchers and start-ups. The datasets will only be accessible through this platform or other IDMO designated platforms. The IDMO would also have the right to approve or decline the requests or limit the access provided to these persons/entities. While the erstwhile draft described a platform for the datasets as well, the system of raising requests on the platform and the IDO managing these requests was not set out.
- Dataset Requests – The NDGFP states that the datasets would be accessible and available to Indian/India based requesting entities on priority or exclusively. The IDMO would notify the rules in this regard. Since the word ‘priority’ is used in relation to Indian/India based entities it is possible that entities/persons based outside India would also have access to the datasets. The erstwhile draft did not mention any such priority/exclusivity in access provided to Indian/India based entities.
- Participation of Private Entities –The NDGFP encourages private entities to create and share non-personal data and anonymized data to contribute to the India datasets program. The voluntary participation of private entities in the datasets program was not included in the erstwhile draft. Since private entities collect and store a colossal amount of personal data, if such data upon being anonymized is supplied to the platform, it could maximize the benefits of the repository created and spur greater innovation. However, it remains to be seen if the program would attract the voluntary participation of private entities without any incentives/benefits being offered to such entities for the same.
- Usage Rights of Data Principal – The NDGFP specifies that the IDMO may ensure that the ‘data usage rights along with permissioned purposes’ be with the data principal. This statement is ambiguous and the NDGFP does not explain which data usage rights of the data principal or purposes the statement is making reference to. In the absence of any existing legislation on non-personal data in India, there is ambiguity regarding the rights of a data principal over his/her personal data which is to be or has been anonymized. However, it is relevant to note that non-personal data would be regulated under the proposed Data Protection Act, 2021 if the same becomes law.
Although the NDGFP and the erstwhile draft are effectively similar in structure, the NDGFP seems to be a development over the previous draft since it excludes the widely contested data licensing and pricing provisions. The NDGFP demonstrates the Indian government’s recognition of the immense value that can be unlocked through harnessing non-personal data. The draft is now open for feedback and inputs from stakeholders till June 11, 2022.