1. BACKGROUND:
Information is an important asset. Particularly over the last decade, the usage of information in the form of digital data has become the sine qua non for various businesses, industries, organizations and even governments, to arrive at certain critical decisions that aid in its functioning and growth. Therefore, the proper collection, analysis and usability of timely and relevant data has significant impact in the technological era.
The Department of Science & Technology ("DST"), Government of India, on February 15, 2021 introduced the new Guidelines for Acquiring and Producing Geospatial Data and Geospatial Data Services including Maps ("Guidelines"), thereby liberalizing the pre-existing regulations around geospatial data in India and paving the way for a more unrestrained environment for its usage. This article seeks to explain geospatial data and the Guidelines from the perspective of its features, benefits and challenges.
2. INTRODUCTION - GEOSPATIAL DATA AND ITS APPLICATIONS:
Geospatial data is the data which includes location information about the natural or man-made, physical or imaginary features whether above the ground or below, boundaries, points of interest, natural phenomena, mobility data, weather patterns, statistical information, etc. There has been immense progress over the years in technology for capture of geospatial data through ground-based survey techniques, photogrammetry using manned/unmanned aerial vehicles, terrestrial vehicle mounted Mobile Mapping System, LIDAR, RADAR Interferometry, satellite-based remote sensing, mobile phone sensors and other techniques. Further, as per the Guidelines, geospatial data is defined as positional data with or without attribute data tagged, whether in the form of images, videos, vector, voxel and/or raster datasets or any other type of geospatial dataset in digitized or non-digitized form or web-services.1
As acknowledged by the Guidelines, geospatial data plays a key role in a wide spectrum of critical data management applications, which will benefit diverse sectors of the economy and help significantly in boosting the innovations in the country. Therefore, the industry has several stakeholders which include government agencies that provide data, software developers, private consulting firms, etc. and people at large. In order to create products, services and goods, it is critical to have data and information of the consumers and target market. Geospatial data enables the same by having various applications such as, inter alia, retail forecasting, financial services, logistics and transportation which includes platforms like Google Maps. For example, geospatial data can provide retailers data on income, housing/rent prices, surrounding business performance, population and age.
3. LIBERALISATION OF INDIAN POLICY AROUND GEOSPATIAL DATA BY THE NEW GUIDELINES
(i) Position prior to the Guidelines
Prior to the Guidelines, geospatial data and maps were regulated by various policies, notifications and official memoranda issued by the Survey of India ("SOI"), Ministry of Finance ("MoF"), Ministry of Defence ("MoD"), among others. The Government of India had published the National Map Policy in 2005, and subsequently, SOI published certain guidelines for its implementation, which largely pertained to dissemination and licensing of maps prepared by SOI and did not address the generation or dissemination of maps by private entities. MoD had issued instructions in relation to preparation and publication of maps, with the most recent instructions having been published through an office memorandum dated December 5, 2017. Under this, MoD had demarcated certain areas as restricted, the maps of which could only be prepared and used for sovereign purposes. The preparation and publication of maps of other areas were subject to security clearance from MoD and approval of SOI subject to their scale, attributes depicted, among other things.2
Further, in 2016, the Government of India prepared the draft Geospatial Information Regulation Bill3 ("Bill"), which made it mandatory to take permission in form of a license from a government authority before acquiring, disseminating and publishing or distributing any geospatial information of India.4 Failure to obtain such license would result in imposition of exorbitant penalties. The Bill had a broad interpretation and not only impacted platforms like Google Maps, Ola, Uber, Zomato, etc. who have mapping tools and location-based services but also users of GPS-enabled smartphones and laptops. Consequently, the Bill faced criticism particularly due to the reasons that (i) it would be highly impractical for each smartphone user to obtain a license; (ii) it would impose an immense financial burden on start-ups and MSMEs to obtain such license as opposed to larger companies; (iii) it virtually illegalized businesses that had location services like navigation as a feature of their business.
However, with the advent of publicly available geospatial services, a lot of geospatial data that used to be in restricted zone are freely and commonly available now and some of the policies/guidelines that used to regulate such information have been rendered obsolete and redundant.
(ii) Introduction of the Guidelines
Therefore, the DST, in order to liberalise the collection, use and dissemination of Geospatial Data and Maps, on February 15, 2021, announced Guidelines for acquiring and producing Geospatial Data and Geospatial Data Services including Maps. The Guidelines have essentially removed all requirements of licenses, permissions and clearances except for certain limited categories.
4. KEY FEATURES THE GUIDELINES
The Guidelines aim to give a much-needed impetus to the geospatial data laws by prescribing that the SOI and other government agencies producing or owning maps and geospatial data, shall take immediate measures to simplify procedures, revise/abolish various forms/licenses and use modern techniques such as cloud, open APIs and others to make its data accessible online in a useful format.
(i) Applicability
The Guidelines are applicable to geospatial data, maps, products, solutions and services offered by government agencies, autonomous bodies, academic and research institutions, private organizations, non - governmental organizations and individuals.
(ii) Liberalization and Self-Certification
The Guidelines provide that there shall be no requirement for any prior approval, license, clearance, or any other restriction on the collection, generation, preparation, storage, dissemination, publication, updating and/or digitization of geospatial data and maps within the territory of India, barring certain limited categories discussed below.
Individuals, companies, organizations, and Government agencies, will now be free to process the acquired geospatial data, build applications and develop solutions in relation to such data and use such data products, applications, solutions, etc. by way of selling, distributing, sharing, swapping, disseminating, publishing, deprecating and destructing. Self-certification will be used to convey adherence to these guidelines.5
(iii) Thresholds of geospatial data
The Guidelines provide for the following thresholds for geospatial data and they must be regularly reviewed and amended as necessary by DST:
- On-site spatial accuracy: one meter for horizontal or planimetry and three meters for vertical or elevation.
- Gravity anomaly: 1 milli-gal.
- Vertical accuracy of bathymetric data in territorial waters: 10 meters for up to 500 meters from the shore-line and 100 meters beyond that.
(iv) Negative List of sensitive attributes
The Guidelines provide for a negative list of sensitive attributes ("Negative List") to be notified by the DST to require regulation before anyone can acquire and/or use such sensitive data. The Negative List will include attributes that shall not be marked on any map implying that no person or legal entity shall identify or associate any location on a map with a prohibited attribute. For the attributes in the Negative List, different threshold values as well as regulations as warranted can be laid down.
It is pertinent to note that such Negative List would not adversely affect the ease of business as it would be limited to only very sensitive attributes and the government aims to impose only strictly necessary restrictions as opposed to the exorbitant restrictions which were proposed through the Bill.
(v) Unrestricted environment for Indian Entities
The Guidelines define an Indian Entity as any Indian citizen, Government entities, Societies registered under applicable statutes, statutory bodies, Autonomous Institutions of the Government, or any Indian company or Indian LLP owned by resident Indian citizens or any Indian company or Indian LLP controlled by resident Indian citizens (as defined in the Explanation to Rule 23 of the Foreign Exchange Management (Non-Debt Instrument) Rules, 2019). Consequently, the entities which do not fall under the purview of this definition, for instance - foreign entities, would be subject to certain restrictions.
Further, the Guidelines do not impose restrictions on export of maps/geospatial data of spatial accuracy/value up to the threshold value except for attributes in the Negative Lists. Department of Revenue, Government of India is given the responsibility to make necessary amendments in the general statutory rules in this regard.
Indian Entities are allowed, inter alia, (i) Ground truthing/verification, access to Indian ground stations and augmentation services for real time positioning (Continuously Operating Reference Stations (CORS), etc.) and their data shall be made available without any restrictions and with the ease of access to Indian Entities only; and (ii) Terrestrial Mobile Mapping survey, Street View survey and surveying in Indian territorial waters, irrespective of accuracy.
It is to be noted that maps/geospatial data of spatial accuracy or value finer than the threshold value can only be created and/or owned by Indian Entities and must be stored and processed in India. Foreign companies and foreign owned or controlled Indian companies that wish to utilize the same are required to license it from Indian Entities. As a result, certain foreign owned or foreign controlled companies, which utilize data with a finer granular value than that provided in the threshold, will be required to obtain license for the same from Indian firms. Access to such maps/geospatial data shall only be made available through APIs that do not allow maps/geospatial data to pass through licensee company or its servers. Re-use or resale of such map data by licensees shall be prohibited.
(vi) Public funds
Geospatial data produced using public funds, except the classified geospatial data collected by security/law enforcement agencies will be made easily accessible for scientific, economic and developmental purposes to all Indian Entities and without any restrictions on their use. Such access shall be given free of any charges to Government agencies. However, it must be noted that the Guidelines provide for charges to be levied on others on a "fair and transparent" pricing. The amounts are not yet specified. For attributes in the negative lists, appropriate regulations will be laid down separately. Emphasis was also laid on the government encouraging crowd sourcing efforts to build maps by allocating public funds towards these efforts as appropriate.
5. CONCLUSION - BENEFITS AND CHALLENGES
At the outset, the Guidelines provide a major boost to usage of geospatial data as opposed to the archaic laws that preceded it. The ease of restrictions on obtaining security clearances and licenses will increase the commercial applications of such data and more businesses can freely create, collate, manage or produce geospatial data thereby invigorating the entire industry. The biggest stimulus will be experienced by start-ups and MSME's and pivot them into unfettered innovation. It is in tune with the aim of "Atmanirbhar Bharat" as India's reliance on foreign resources for mapping technologies and services will substantially reduce.
The usage of public funds will be made for the dissemination of geospatial data. Although the Guidelines provide for a pricing model that will be fair and transparent, there are no specifications of how such a pricing is going to be determined. Essentially, an individual who wants access to such information will have to once again pay for the information that he was already taxed for. Therefore, it is important for the information to be openly available to the public or announcement of a clear pricing model should take place.
These Guidelines are not yet codified in the form of a uniform statute. There is a necessity of more clarity and detail. The unclear parts include, inter alia, (i) a mention but no definition of "classified geospatial data"; (ii) provision to the effect that the Negative List will be specific to "very sensitive data" but what would be construed as very sensitive is neither defined nor provided as a schedule; (iii) licensing requirement for foreign owned and controlled companies from Indian companies to obtain data finer than the threshold data is provided for, but it leaves a grey area on whether existing foreign companies using such data would be subject to this restriction or not, and (iii) no definition of the "fair and transparent" pricing. Therefore, an elaborate enactment is the need of the hour lest this should remain a great progressive move with no tangible creation of enforceable rights.
Footnotes
1. https://dst.gov.in/sites/default/files/Final%20Approved%20Guidelines%20on%20Geospatial%20Data.pdf
2. https://www.natlawreview.com/article/maps-and-geospatial-data-india-regime-liberalized
3. https://www.prsindia.org/uploads/media/draft/Draft%20Geospatial%20Bill,%202016.pdf
4. Ibid
5. https://dst.gov.in/sites/default/files/Final%20Approved%20Guidelines%20on%20Geospatial%20Data.pdf
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