Open Letter to PM Modi on Intellectual Property Rights issues on His Visit to the United States of America in September, 2015

Shri Narendra Damodardas Modi
Hon’ble Prime Minister of India
152, South Block, Raisina Hill
New Delhi-110011

22 September, 2015

Dear Sir,

We write on behalf of the Centre for Internet and Society, India [1], a Bangalore and New Delhi based not-for-profit organization engaging in research on among others, accessibility for persons with disabilities, intellectual property rights, openness and access to knowledge. Over the past fifteen months, we have welcomed and support certain initiatives of our government as being in line with some of our research interests, specifically, the "Make in India" and "Digital India" initiatives, and your vision of a digitally empowered India, as we have noted in an earlier open letter to you. [2]

This letter is in light of your visit to the United States of America (“USA”) this month, to articulate a two-fold request: first, that during the course of your visit you request the government of the USA to ratify the Marrakesh Treaty for visually impaired persons (“Marrakesh Treaty”); [3] and second, that the Indian government not enter into any negotiations around the Trans-Pacific Partnership trade agreement (“the TPP”).

On the Marrakesh Treaty

According to figures by the World Blind Union, approximately 90% of all published material is not accessible to blind or print disabled people. [4] The severity of the ‘book famine’ experienced by the world’s estimated 300 million blind or otherwise print or visually disabled people (of which an estimated 63 million are in India) was highlighted by India in its Closing Statement at the Diplomatic Conference convened to conclude the Marrakesh Treaty. [5] India has historically been a strong advocate of the spirit of the Marrakesh Treaty, becoming the first country to ratify it in June, 2014. [6] Amendments in 2012 to India’s copyright law predated the signature to the Marrakesh Treaty. These amendments created disability and works neutral exceptions to our copyright law, well beyond the mandate of the Marrakesh Treaty.

The true realization of the promise of the Marrakesh Treaty however will remain a distant dream until the treaty comes into effect (three months) after 20 Member States have ratified it or acceded to it. [7] According to information available from the World Intellectual Property Organization [8], this number is currently only 9, and the USA is not one of the countries to have done so. The USA is home [9] to some of the largest publishers of both academic and other/leisure material including Penguin Random House, Harper Collins, John Wiley & Sons, the RELX Group, McGraw-Hill Education, Scholastic and Cengage Learning to name a few. It accounts for a large volume of the world’s book and other print material export. The active participation of the USA through the ratification of the Marrakesh treaty is critical if the treaty is to be truly effective.

During your visit, we urge you request the government of the United States of America to ratify the Marrakesh Treaty at the earliest. This will bring us one important step closer to eradicating the book famine.

On the TPP

We are concerned after reports [10] of a recent study authored by C Fred Bergsten that encourages India to join the TPP. On this front, we are in complete agreement with the reported statement of the Hon’ble Ambassador Shri Arun K. Singh, where he disagrees with some of the findings and analysis of this recent report. [11]

The TPP has come into severe criticism [12] over the years [13] from a vast multitude [14] of sources [15] (including a group of 30 law professors in 2012) [16] across the various countries that are a party to the negotiations. Among others and most relevant to us as an organization is the criticism around the secrecy of negotiations [17] as well as the content of the chapter on intellectual property in the TPP. It is our belief that eventually, India stands to lose as a result of the TPP [18] with its possible adverse impact on our economy. [19]

The rigid intellectual property protections (including criminal penalties for unintentional copying) [20] sought to be enforced through the TPP would benefit only US pharmaceutical and entertainment industries. [21] These provisions (among others) mandate the inclusion of TRIPS plus provisions in national laws, envisage possible extensions in term of protection on patents, restrict copyright exceptions and limitations, extend copyright protection terms and impose a higher liability on intermediaries; [22]all of which would be disastrous for an emerging economy such as India’s, which is a heavy user of intellectual property and not a heavy producer of the same.

Historically, India has been a supporter of a transparent, multilateral decision making process, a commitment to which was also reiterated recently by the Hon’ble Minister of State for Commerce and Industry, Smt. Nirmala Sitharaman. [23]India has also raised many of its concerns (on the secrecy of the negotiations as well as substantive provisions themselves) around the TPP and its close cousin, the Anti-Counterfeiting Trade Agreement (“ACTA”) in 2011 [24] and 2012 [25] at the World Trade Organization (“WTO”) TRIPS Council and on the ACTA in 2010, also at the WTO Trips Council. [26]

In light of the above, we strongly urge the Indian government to not engage in negotiations on the TPP. At a minimum, we would request that any engagement in TPP negotiations be preceded by national consultations on the same, soliciting input from various stakeholders with diverging interests, including academia, civil society, industry associations, large Indian corporations, small and medium enterprises and multi- national corporations, rights holders associations and other interest groups.

We thank you for the opportunity to present these views to you. We do hope that you will consider these suggestions favourably, in the interests of India’s economic and social development. We welcome any opportunity to assist you with any queries you may have with regard to these submissions.

Thank you.

Yours truly

(For the Centre for Internet and Society, India)

Pranesh Prakash,  Policy Director
Nehaa Chaudhari, Programme Officer

Copies to:

1. Smt. Smriti Zubin Irani, Minister for Human Resource Development, Government of India.
2. Prof. (Dr.) Ram Shankar Katheria, Minister of State for Human Resource Development (Higher Education), Government of India.
3. Smt. Nirmala Sitharaman, Minister of State for Commerce and Industry, Government of India.
4. Shri Vinay Sheel Oberoi, Secretary (Department of Higher Education), Ministry of Human Resources Development, Government of India, Government of India.
5. Shri Amitabh Kant, Secretary (Department of Industrial Policy and Promotion), Ministry of Commerce and Industry, Government of India.

 

(Edit - 25 September, 2015) - The following people have reached out to us in support of this letter and have expressed a desire to have their signatures placed on record as support. We wish to acknowledge the same. 

1. Prof. Dinesh Abrol - Convenor, National Working Group on Patent Laws and WTO
   
2. Dr. B. Ekbal - President, Democratic Alliance for Knowledge Freedom, Kerala
3. T.C. James - President, NIPO
4. Dr. Suman Sahai - Chairperson, Gene Campaign
5. Dr. Biswajit Dhar - Professor, Centre for Economic Studies and Planning, School of Social Sciences, Jawaharlal Nehru University

[1]See generally http://cis-india.org/ (last accessed 22 September, 2015).

[2]Rohini Lakshane, Open Letter to Prime Minister Modi, available at http://cis-india.org/a2k/blogs/open-letter-to-prime-minister-modi (last accessed 22 September, 2015); Centre for Internet and Society/Rohini Lakshane, Digital India & Make in India : Form a patent pool of critical mobile technologies – CIS India, available at http://www.medianama.com/2015/03/223-digital-india-make-in-india-form-a-patent-pool-of-critical-mobile-technologies-cis-india/ (last accessed 22 September, 2015).

[3]The Marrakesh Treaty to Facilitate Access to Published Works by Visually Impaired Persons and Persons with Print Disabilities adopted on June 27, 2013. Treaty text and other official documentation available at http://www.wipo.int/treaties/en/ip/marrakesh/ (last accessed 22 September, 2015).

[4]World Blind Union, Marrakesh Treaty – Right to Read Campaign, available at http://www.worldblindunion.org/English/our-work/our-priorities/Pages/right-2-read-campaign.aspx (last accessed 22 September, 2015).

[5]Pranesh Prakash, India’s Closing Statement at Marrakesh on the Treaty for the Blind, available at http://cis-india.org/a2k/blogs/india-closing-statement-marrakesh-treaty-for-the-blind (last accessed 22 September, 2015).

[6]Nehaa Chaudhari, India’s Ratification of the Marrakesh Treaty Celebrated; Accessible Books Consortium Launched, available at http://cis-india.org/accessibility/blog/indias-ratification-of-marrakesh-treaty-celebrated (last accessed 22 September, 2015).

[7]Article 18 of the Marrakesh Treaty.

[8]World Intellectual Property Organization, WIPO Administered Treaties: Contracting Parties > Marrakesh VIP Treaty (Treaty not yet in force), available at http://www.wipo.int/treaties/en/ShowResults.jsp?lang=en&treaty_id=843 (last accessed 22 September, 2015).

[9]Publishers Weekly, The World’s 57 Largest Book Publishers, 2015, available at http://www.publishersweekly.com/pw/by-topic/international/international-book-news/article/67224-the-world-s-57-largest-book-publishers-2015.html (last accessed 22 September, 2015).

[10]S Rajagopalan, US Report Pushes India to Join the Trans-Pacific Partnership, available at http://www.dailypioneer.com/world/us-report-pushes-india-to-join-trans-pacific-partnership.html (last accessed 22 September, 2015); Indo-Asian News Service on NDTV, India Can Boost Exports by $500 Billion with Trade Liberalization: Study, available at http://www.ndtv.com/india-news/india-can-boost-exports-by-500-billion-with-trade-liberalization-study-1218887 (last accessed 22 September, 2015); Raghavendra M., India can boost exports by $500 billion with trade liberalization: study, available at http://www.americanbazaaronline.com/2015/09/18/india-can-boost-exports-by-500-billion-with-trade-liberalization-study/ (last accessed 22 September, 2015); Press Trust of India in the Business Standard, India can boost exports by USD 500 bn by joining the TPP: report, available at http://www.business-standard.com/article/pti-stories/india-can-boost-exports-by-usd-500-bn-by-joining-tpp-report-115091701149_1.html (last accessed 22 September, 2015); Seema Sirohi, India must expand its trade before it gets left behind in the race, available at http://blogs.economictimes.indiatimes.com/letterfromwashington/india-must-expand-its-trade-before-it-gets-left-behind-in-the-race/ (last accessed 22 September, 2015).

[11]S Rajagopalan, US Report Pushes India to Join the Trans-Pacific Partnership, available at http://www.dailypioneer.com/world/us-report-pushes-india-to-join-trans-pacific-partnership.html (last accessed 22 September, 2015)

[12]Natasha Lennard, Noam Chomsky: Trans-Pacific Partnership is a “neoliberal assault”, available at http://www.salon.com/2014/01/13/chomsky_tpp_is_a_neoliberal_assault/ (last accessed 22 September, 2015); Zach Carter and Ryan Grim, Noam Chomsky: Obama Trade Deal a ‘Neoliberal Assault’ to ‘Further Corporate Domination’, available at http://www.huffingtonpost.com/2014/01/13/noam-chomsky-obama-trans-pacific-partnership_n_4577495.html?ir=India&adsSiteOverride=in (last accessed 22 September, 2015); Sean Flynn;, Margot E Kaminski, Brook K Baker and Jimmy H Koo., "Public Interest Analysis of the US TPP Proposal for an IP Chapter" (2011). PIJIP Research Paper Series. Paper 21. http://digitalcommons.wcl.american.edu/research/21 (last accessed 22 September, 2015).

[13]BBC News, TPP: What is it and why does it matter?, available at http://www.bbc.com/news/business-21782080 (last accessed 22 September, 2015);

[14]For a compilation on writing on the TPP see James Love, Trans-Pacific Partnership (TPP also known as the TPPA), available at http://keionline.org/tpp (last accessed 22 September, 2015); see also American University Program on Information Justice and Intellectual Property, Trans-Pacific Partnership, available at http://infojustice.org/tpp (last accessed 22 September, 2015).

[15]Zach Carter, Alan Grayson on Trans-Pacific Partnership: Obama Secrecy Hides ‘Assault on Democratic Government’, available at http://www.huffingtonpost.com/2013/06/18/alan-grayson-trans-pacific-partnership_n_3456167.html?ir=India&adsSiteOverride=in (last accessed 22 September, 2015); James Love, KEI analysis of Wikileaks leak of TPP IPR text, from August 30, 2013, available at http://keionline.org/node/1825 (last accessed 22 September, 2015); Ian Verrender, The TPP has the potential for real harm, available at http://www.abc.net.au/news/2015-03-16/verrender-the-tpp-has-the-potential-for-real-harm/6321538 (last accessed 22 September, 2015).

[16]Sean Flynn, Law Professors Call for Trans-Pacific Partnership (TPP) Transparency, available at http://infojustice.org/archives/21137 (last accessed 22 September, 2015).

[17]Sachie Mizohata, "The Trans-Pacific Partnership and Its Critics: An introduction and a petition," The Asia-Pacific Journal, Vol. 11, Issue 36, No. 3, available at http://japanfocus.org/-Sachie-MIZOHATA/3996/article.html (last accessed 22 September, 2015).

[18]Vijay Rajamohan, Trans-Pacific Partnership – Should India Join this Mega Trade Deal?, available at http://swarajyamag.com/world/trans-pacific-partnership-should-india-join-this-mega-trade-deal/ (last accessed 22 September, 2015).

[19]Sylvia Mishra, How will the Trans-Pacific Partnership affect India?, available at http://www.observerindia.com/cms/sites/orfonline/modules/analysis/AnalysisDetail.html?cmaid=85684&mmacmaid=85685 (last accessed 22 September, 2015).

[20]Gabrielle Chan, Trans-Pacific Partnership: a guide to the most contentious issues, available at http://www.theguardian.com/world/2013/dec/10/trans-pacific-partnership-a-guide-to-the-most-contentious-issues (last accessed 22 September, 2015).

[21]James Love, New leak of TPP consolidated text on intellectual property provides details of pandering to drug companies and publishers, available at http://www.keionline.org/node/2108 (last accessed 22 September, 2015); Vijay Rajamohan, Trans-Pacific Partnership – Should India Join this Mega Trade Deal?, available at http://swarajyamag.com/world/trans-pacific-partnership-should-india-join-this-mega-trade-deal/ (last accessed 22 September, 2015) referencing Paul Krugman.

[22]William New, Leaked TPP Draft Reveals Extreme Rights Holder Position Of US, Japan, Outraged Observers Say, available at http://www.ip-watch.org/2014/10/17/leaked-tpp-draft-reveals-extreme-rights-holder-position-of-us-japan-outraged-observers-say/ (last accessed 22 September, 2015).

[23]Lalit K Jha, India not being left out of global trade pacts: Minister, available at http://www.thestatesman.com/news/business/india-not-being-left-out-of-global-trade-pacts-minister/91679.html (last accessed 22 September, 2015).

[24]Thirukumaran Balasubramaniam, WTO TRIPS Council: India raises concerns on ACTA and TPPA on discussion of “Trends in the Enforcement of IPRs”, available at https://donttradeourlivesaway.wordpress.com/2011/10/29/wto-trips-council-india-raises-concerns-on-acta-and-tppa-on-discussion-of-trends-in-the-enforcement-of-iprs/ (last accessed 22 September, 2015).

[25]Thirukumaran Balasubramaniam, 28 Feb 2012: Intervention delivered by India at WTO TRIPS Council on IP Enforcement Trends noting concerns with ACTA and TPPA, available at http://keionline.org/node/1376 (last accessed 22 September, 2015).

[26]Kanaga Raja, ACTA comes in for criticism at the TRIPS council, available at http://www.twn.my/title2/wto.info/2010/twninfo100606.htm (last accessed 22 September, 2015).