Pathways to Higher Education

Big Data and Positive Social Change in the Developing World: A White Paper for Practitioners and Researchers

nishant — 2014-10-01T03:52:35Z

I was a part of a working group writing a white paper on big data and social change, over the last six months. This white paper was produced by a group of activists, researchers and data experts who met at the Rockefeller Foundation’s Bellagio Centre to discuss the question of whether, and how, big data is becoming a resource for positive social change in low- and middle-income countries (LMICs).

Bellagio Big Data Workshop Participants. (2014). “Big data and positive social change in the developing world: A white paper for practitioners and researchers.” Oxford: Oxford Internet Institute. Available online: http://ssrn.com/abstract=2491555.

Summary

Our working definition of big data includes, but is not limited to, sources such as social media, mobile phone use, digitally mediated transactions, the online news media, and administrative records. It can be categorised as data that is provided explicitly (e.g. social media feedback); data that is observed (e.g. mobile phone call records); and data that is inferred and derived by algorithms (for example social network structure or inflation rates). We defined four main areas where big data has potential for those interested in promoting positive social change: advocating and facilitating; describing and predicting; facilitating information exchange and promoting accountability and transparency.

In terms of advocating and facilitating, we discussed ways in which volunteered data may help organisations to open up new public spaces for discussion and awareness-building; how both aggregating data and working across different databases can be tools for building awareness, and howthe digital data commons can also configure new communities and actions (sometimes serendipitously) through data science and aggregation. Finally, we also looked at the problem of overexposure and howactivists and organisations can protect themselves and hide their digital footprints. The challenges we identified in this area were how to interpret data correctly when supplementary information may be lacking; organisational capacity constraints around processing and storing data, and issues around data dissemination, i.e. the possible negative consequences of inadvertently identifying groups or individuals.

Next, we looked at the way big data can help describe and predict, functions which are particularly important in the academic, development and humanitarian areas of work where researchers can combine data into new dynamic, high-resolution datasets to detect new correlations and surface new questions. With data such as mobile phone data and Twitter analytics, understanding the data’s comprehensiveness, meaning and bias are the main challenges, accompanied by the problem of developing new and more comprehensive ethical systems to protect data subjects where data is observed rather than volunteered.

The next group of activities discussed was facilitating information exchange. We looked at mobile-based information services, where it is possible for a platform created around a particular aim (e.g. agricultural knowledge-building) to incorporate multiple feedback loops which feed into both research and action. The pitfalls include the technical challenge of developing a platform which is lean yet multifaceted in terms of its uses, and particularly making it reliably available to low-income users. This kind of platform, addressed by big data analytics, also offers new insights through data discovery and allows the provider to steer service provision according to users’ revealed needs and priorities.

Our last category for big data use was accountability and transparency, where organisations are using crowdsourcing methods to aggregate and analyse information in real time to establish new spaces for critical discussion, awareness and action. Flows of digital information can be managed to prioritise participation and feedback, provide a safe space to engage with policy decisions and expose abuse. The main challenges are how to keep sensitive information (and informants) safe while also exposing data and making authorities accountable; how to make the work sustainable without selling data, and how to establish feedback loops so that users remain involved in the work beyond an initial posting. In the crowdsourcing context, new challenges are also arising in terms of how to verify and moderate real-time flows of information, and how to make this process itself transparent.

Finally, we also discussed the relationship between big and open data. Open data can be seen as a system of governance and a knowledge commons, whereas big data does not by its nature involve the idea of the commons, so we leaned toward the term ‘opening data’, i.e. processes which could apply to commercially generated as much as public-sector datasets. It is also important to understand where to prioritise opening, and where this may exclude people who are not using the ‘right’ technologies: for example, analogue methods (e.g. nailing a local authority budget to a town hall door every month) may be more open than ‘open’ digital data that’s available online.

Our discussion surfaced many questions to do with representation and meaning: must datasets be interpreted by people with local knowledge? For researchers to get access to data that is fully representative, do we need a data commons? How are data proprietors engaging with the power dynamics and inequalities in the research field, and how can civil society engage with the private sector on its own terms if data access is skewed towards elites? We also looked at issues of privacy and risk: do we need a contextual risk perspective rather than a single set of standards? What is the role of local knowledge in protecting data subjects, and what kinds of institutions and practices are necessary? We concluded that there is a case to be made for building a data commons for private/public data, and for setting up new and more appropriate ethical guidelines to deal with big data, since aggregating, linking and merging data present new kinds of privacy risk. In particular, organisations advocating for opening datasets must admit the limitations of anonymisation, which is currently being ascribed more power to protect data subjects than it merits in the era of big data.

Our analysis makes a strong case that it is time for civil society groups in particular to become part of the conversation about the power of data. These groups are the connectors between individuals and governments, corporations and governance institutions, and have the potential to promote big data analysis that is locally driven and rooted. Civil society groups are also crucially important but currently underrepresented in debates about privacy and the rights of technology users, and civil society as a whole has a responsibility for building critical awareness of the ways big data is being used to sort, categorise and intervene in LMICs by corporations, governments and other actors. Big data is shaping up to be one of the key battlefields of our era, incorporating many of the issues civil society activists worldwide have been working on for decades. We hope that this paper can inform organisations and
individuals as to where their particular interests may gain traction in the debate, and what their contribution may look like.

Click to download the full white paper here. (PDF, 1.95 Mb)

For more details visit https://cis-india.org/internet-governance/blog/big-data-and-positive-social-change-in-developing-world

Expanding the World of Telugu Wikipedia – CIS-A2K and ALC join hands

T Vishnu Vardhan and Rahmanuddin Shaik — 2014-09-30T05:11:29Z

Students and faculty of Andhra Loyola College in Vijayawada aim to enhance Telugu Wikipedia through increased contributions to Wikipedia and make it available under free license.

The Access to Knowledge (A2K) programme of the Centre for Internet and Society (CIS) in its quest to catalyze the growth of open knowledge movement in Indic languages recently added another feather to its cap by signing a memorandum of understanding (MoU) with Andhra Loyola College (ALC) in Vijayawada on August 14, 2014 to work collaboratively to improve Telugu Wikipedia and Telugu Wikisource. College Principal Fr. G.A.P. Kishore, Vice-Principals Fr. P. Anil Kumar and Fr. Rex Angelo, correspondent Fr. Raju signed the agreement with CIS-A2K programme director T. Vishnu Vardhan.

The MoU signed with ALC is for a period of five years and encompasses four activities: Open knowledge creation in Telugu across various disciplines on Telugu Wikipedia: ALC faculty and students will be trained by CIS-A2K staff and interested Telugu Wikimedians to understand the principles that govern Wikipedia in order to generate quality entries. Faculty from Botany, Physics, Statistics, Ethics, Religion, Telugu Literature, and Music will work with CIS-A2K. Each of the faculty in the coming months will come up with a plan to generate open knowledge in Telugu in their respective disciplines. Content donation and digitization on Telugu Wikisource: ALC through its networks will help CIS-A2K to bring Telugu content under CC-BY-SA 4.0 license. The Telugu department of the college expressed keen interest to work with CIS-A2K in digitizing historical Telugu content and to make it available on Telugu Wikisource. Various competitions will be planned in the future. Creating a free software environment at Andhra Loyola College: 400 machines within various labs on the campus will be converted into FOSS systems with free and open source software including support for Telugu and other Indic languages. It should be noted that all the existing computers of ALC are run on proprietary software. As a pilot initiative CIS-A2K has already converted 30 systems in a lab and named it as Loyola FOSS Lab. CIS-A2K to revise the FIT (Fundamentals in Information Technology): A mandatory course for all undergraduate students which will introduce students to FOSS, Openness and Wikipedia. This is an outcome of the FOSS orientation done by T. Vishnu Vardhan and Rahimanuddin Shaik during the two workshops that were held at ALC.

CIS-A2K will put every effort to involve Telugu Wikimedians and FOSS community in taking this collaboration with ALC forward. CIS-A2K will also create a project page on Telugu Wikipedia to actively document and publicly share the detailed plans and progress. More updates will also be shared on this website.


Above: Representatives from ALC and CIS-A2K seen during the signing ceremony.

The signing of the MoU was done at a public event in the presence of students, faculty and management of ALC and various representatives from media. The media covered this event enthusiastically. The Hindu coverage can be found here and Eenadu article coverage is here.

For more details visit https://cis-india.org/openness/blog-old/expanding-the-world-of-telugu-wikipedia-cis-and-alc-join-hands

NIE Steps in to Grow Konkani Wikipedia

vishnu — 2014-10-10T11:26:26Z

The Centre for Internet & Society's Access to Knowledge team (CIS-A2K) signed a memorandum of agreement (MoU) with Nirmala Institute of Education, Goa to enhance digital literacy in Konkani in the education sector across Goa.

The Access to Knowledge (A2K) programme of CIS, in its sustained efforts to enhance the content and reach of Kokani Wikepedia (which is in incubation), has signed an MoU for a period of five years with Nirmala Insitute of Education (NIE), a Secondary Teacher Education College established in 1963 by the Society of the Daughters of the Heart of Mary in response to the then urgent need for trained teachers in post liberation Goa. The key objectives of this partnership are: a) to design, develop and execute a certificate course titled "Teaching in the Age of Wikipedia", which is aimed at middle and high school teacher-trainees and teachers; and b) to introduce Wikimedia projects into the pedagogic curriculum of NIE.

Both CIS and NIE share a mutual interest in conserving, developing and disseminating knowledge free of cost in Konkani, which incidentally is Goa’s official language. Konkani as a language faces several challenges — it has no official script. The population who speak it are dispersed across the world and have little motivation to further the cause of Konkani, and there are few educational venues that offer a formal course to study Konkani or offer Konkani based curriculum. NIE Principal Dr. Denzil Martins welcomed this MoU and said that "it will guide our teacher-trainees to upload relevant information in Konkani that can be freely accessed by the local population" and "provide the volunteer-trainees with skills that they will be able to use to contribute and enhance the free knowledge in Konkani". The MoU was signed by Dr. Denzil Martins from NIE and T. Vishnu Vardhan (Programme Director, Access to Knowledge, CIS) in the presence of staff and students of NIE and volunteers Harriet Vidyasagar and Gayathri Rao Konkar. Dr. Rita Paes, ex-Principal of NIE who worked to forge this MoU sent her best wishes.

CIS-A2K since 2013, has worked to develop partnerships with key educational institutions to promote and grow Konkani Wikipedia. It has previously worked with NIE to design and implement a program to enroll 100 B.Ed. students to increase the amount of information available in Goan villages and towns on Konkani Wikipedia. A2K has also been instrumental in convincing Goa University to re-release Konkani Vishwakosh (encyclopedia) under CC-BY-SA 3.0 , making it freely available to public, giving them the right to share, use and even build upon the work that has already been done.

The course ‘Teaching in the Age of Wikipedia’ will enable the teacher participant to have a) a comprehensive understanding of changes due to digital technology to the knowledge domain; b) an introduction to various openness movements that inform the discourse on Open Educational Resources; c) exposure and training to participate on open knowledge platforms like Wikipedia; and d) practical examples and best practices of using Wikipedia and sister projects within the classroom context. The parties will also co-design and jointly implement programmes to introduce Wikipedia in the NIE curriculum. The curriculum for this workshop is positioned within the context of indian languages (particularly Konkani) and school education to ensure that any learning is practical and can be applied within the teachers immediate pedagogic environment. Speaking about the relevance of this course Gayathri and Harriet (who have been associated with NIE as volunteers) mentioned that "the Goa government has handed out tablets to all school going children in Goa. In order to use them effectively in the classroom will require teachers to rethink their role and teaching methodologies and this course is an important step towards that". Agreeing with this Denzil Martins feels that this course "will provide the teacher-trainees with ideas and inputs for using Wikipedia in creative ways in the classroom".

This partnership could bring huge momentum and scale for the growth of Konkani as participants who graduate from this course will as teachers act as anchors and mentors to teach and assign Wikipedia editing assignments in their respective schools and classrooms.

As Gayathri feels "such courses once fine tuned should be made available to teachers from all over the country and should be part of the package for introducing the digital technology in the school system. Today it ends with setting up computer labls in schools or distribution of hardware to students - they may have a 'computer teacher' but the class and subject teachers never become part of these new initiatives. Only when this happens can we move away from 'teaching computers' to using computers as tools to learn and teach, which is the primary objective of digital technology in schools".

CIS will develop this open course and welcomes anyone to partner in this effort, which will be made available for anyone to use it within their context. The efforts to build free and open knowledge platforms like Konkani Wikipedia will continue and partnerships like NIE will play a crucial role in building a robust knowledge society in India.

For more details visit https://cis-india.org/openness/blog-old/nie-steps-in-to-grow-konkani-wikipedia

Privacy in Healthcare: Policy Guide

tanvi — 2014-08-31T15:18:12Z

The Health Policy Guide seeks to understand what are the legal regulations governing data flow in the health sector — particularly hospitals, and how are these regulations implemented. Towards this objective, the research reviews data practices in a variety of public and private hospitals and diagnostics labs. The research is based on legislation, case law, publicly available documents, and anonymous interviews.

Click to download the PDF (320 Kb)

Introduction

To this date, there exists no universally acceptable definition of the right to privacy. It is a continuously evolving concept whose nature and extent is largely context driven. There are numerous aspects to the right to privacy, each different from the other in terms of the circumstance in which it is invoked. Bodily privacy however, is to date, the most guarded facet of this vastly expansive right. The privacy over one’s own body including the organs, genetic material and biological functions that make up one’s health is an inherent right that does not; as in the case of other forms of privacy such as communication or transactional privacy, emanate from the State. It is a right that has its foundations in the Natural Law conceptions of The Right to Life, which although regulated by the State can at no point be taken away by it except under extreme circumstances of a superseding Right to Life of a larger number of people.

The deliberation leading to the construction of a universally applicable Right to Privacy has up until now however only been in terms of its interpretation as an extension of the Fundamental Right to Life and Liberty as guaranteed under Article 21 as well as the freedom of expression and movement under Articles 19(1)(a) and (b) of the Constitution of India. While this may be a valid interpretation, it narrows the ambit of the right as one that can only be exercised against the State. The Right to privacy however has much larger implications in spheres that are often removed from the State. There is thus an impending need to create an efficient and durable structure of Law and policy that regulates the protection of privacy in Institutions that may not always be agents of the State.

It is in this regard that the following analysis studies the existing conceptions of privacy in the Healthcare sector. It aims to study the existing mechanisms of privacy protection and their pragmatic application in everyday practices. Further, it determines definitive policy gaps in the existing framework and endeavors to provide effective recommendations to not only redress these shortcomings but also create a system that is efficient in its fulfillment of the larger objective of the actualization of the Right to Privacy at an individual, state and institutional level.

Purpose

The purpose of this research study is to formulate a comprehensive guide that maps the synthesis, structure and implementation of privacy regulations within the healthcare sector in India. It traces the domestic legislation pertaining to various aspects of the healthcare sector and the specific provisions of the law that facilitate the protection of the privacy of individuals who furnish their personal information as well as genetic material to institutions of healthcare, either for the purpose of seeking treatment or to contribute to research studies. It is however imperative that the nature and extent of the information collected be restricted through the establishment of requisite safeguards at an institutional level that percolate down to everyday practices of data collection, handling and storage within healthcare institutions. The study thus aims to collate the existing systems of privacy protection in the form of laws, regulations and guidelines and compare these with actual practices in government and private hospitals and diagnostic laboratories to determine whether these laws are in fact effective in meeting the required standards of privacy protection. Further, the study also broadly looks at International practices of privacy protection and offers recommendations to better the existing mechanisms of delimiting unnecessary intrusions on the privacy of patients.

Importance

The Indian Healthcare sector although at par with international standards in its methods of diagnosis, treatment and the use of contemporary technology, is still nascent in the nature and extent of its interaction with the Law. There are a number of aspects of healthcare that lie on the somewhat blurred line between the interest of the public and the sole right of the individual seeking treatment. One such aspect is the slowly evolving right to privacy. The numerous facets of this right have come to the fore largely through unique case laws that are reflective of a dynamic social structure, one that seeks to reconcile the socio economic rights that once governed society with individual interests that it has slowly come to realize. The right of an individual to disclose the nature of his disease, the liberty of a woman not to be compelled to undergo a blood test, the bodily autonomy to decide to bear children or not, the decisional privacy with regards to the termination of a pregnancy and the custodial rights of two individuals to their child are certain contentious aspects of healthcare that have constructed the porous interface between the right to privacy and the need for medical treatment. It is in this context that this study aims to delve into the existing basic structure of domestic legislation, case laws and regulations and their subsequent application in order to determine important gaps in the formulation of Law and Policy. The study thus aims to draw relevant conclusions to fill these gaps through recommendations sourced from international best practice in order to construct a broad framework upon which one can base future policy considerations and amendments to the existing law.

Methodology

This research study was undertaken in two major parts. The first part assesses domestic legislation and its efficacy in the current context. This is done through the determination of relevant provisions within the Act that are in consonance with the broader privacy principles as highlighted in the A.P Shah Committee report on Privacy Protection[1]. This part of the research paper is based on secondary sources, both in terms of books as well as online resources. The second part of the paper analyses the actual practices with regard to the assimilation, organization, use and storage of personal data as practiced in Government and Private hospitals and Diagnostic laboratories. Three Private hospitals, a prominent Government hospital and a Diagnostic laboratory were taken into consideration for this study. The information was provided by the concerned personnel at the medical records department of these institutions of healthcare through a survey conducted on the condition of anonymity. The information provided was analyzed and collated in accordance with the compliance of the practices of these institutions with the Principles of privacy envisioned in the Report of the Group of Experts on Privacy.

The Embodiment of Privacy Regulation within Domestic Legislation

This section of the study analyses the viability of an approach that takes into account the efficacy of domestic legislation in regulating practices pertaining to the privacy of individuals in the healthcare sector. This approach perceives the letter and spirit of the law as the foundational structure upon which internal practices, self regulation and the effective implementation of policy considerations that aim to create an atmosphere of effective privacy regulation take shape, within institutions that offer healthcare services. To this effect, domestic legislationthat provides for the protection of a patient’s privacy has been examined. The law has been further studied with respect to its tendency to percolate into the everyday practices, regulations and guidelines that private and government hospitals adhere to. The extent of its permeation into actual practice; in light of its efficacy in fulfilling the perambulatory objectives of ensuring safe and unobtrusive practices,within the construct of which a patient is allowed to recover and seek treatment, has also been examined.

The term ‘Privacy’ is used in a multitude of domestic legislations primarily in the context of the foundation of the fiduciary relationship between a doctor and a patient.This fiduciary relationship emanates from a reasonable expectation of mutual trust between the doctor and his patients and is established through the Indian Medical Council Act of 1952, specifically section 20(A) of the Act which lays down the code of ethics which a doctor must adhere to at all times. Privacy within the healthcare sector includes a number of aspects including but not limited to informational privacy (e.g., confidentiality, anonymity, secrecy and data security); physical privacy (e.g., modesty and bodily integrity); associational privacy (e.g. intimate sharing of death, illness and recovery); proprietary privacy (e.g., self-ownership and control over personal identifiers, genetic data, and body tissues); and decisional privacy (e.g., autonomy and choice in medical decision-making).

Privacy Violations stem from policy and information gaps: Violations in the healthcare sector that stem from policy formulation as well and implementation gaps[2] include the disclosure of personal health information to third parties without consent, inadequate notification to a patient of a data breach, unlimited or unnecessary collection of personal health data, collection of personal health data that is not accurate or relevant, the purpose of collecting data is not specified, refusal to provide medical records upon request by client, provision of personal health data to public health, research, and commercial uses without de-identification of data and improper security standards, storage and disposal. The disclosure of personal health information has the potential to be embarrassing, stigmatizing or discriminatory.[3] Furthermore, various goods such as employment, life, and medical insurance, could be placed at risk [4]if the flow of medical information were not restricted. ^{^[5]}

Disclosure of personal health information is permitted and does not amount to a violation of privacy in the following situations: 1) during referral, 2) when demanded by the court or by the police on a written requisition, 3) when demanded by insurance companies as provided by the Insurance Act when the patient has relinquished his rights on taking the insurance, and 4) when required for specific provisions of workmen's compensation cases, consumer protection cases, or for income tax authorities,^{^[6]} 5) disease registration, 6) communicable disease investigations, 7) vaccination studies, or 8) drug adverse event reporting. ^{^[7]}

The following domestic legislations have been studied and relevant provisions of the Act have been accentuated in order to analyse their compliance with the basic principles of privacy as laid out in the A.P Shah Committee report on Privacy.

Mental Health Act, 1987[8]
The Provisions under the Act pertaining to the protection of privacy of the patient have been examined. The principles embodied within the Act include aspects of the Law that determine the nature and extent of oversight exercised by the relevant authorities over the collection of information, the limitation on the collection of data and the restrictions on the disclosure of the data collected. The principle of oversight is embodied under the legislation within the provisions that allow for the inspection of records in psychiatric hospitals and nursing homes only by officers authorized by the State Government.^{^[9]} The limitation on the Collection of information is imposed by the Inspection of living conditionsby a psychiatrist and two social workers are on a monthly basis. This would include analyzing the living condition of every patient and the administrative processes of the psychiatric hospital and/or psychiatric nursing home. ^{^[10]}Additionally, Visitors must maintain a book regarding their observations and remarks.^{^[11]} Medical certificates may be issued by a doctor, containing information regarding the nature and degree of the mental disorder as reasons for the detention of a person in a psychiatric hospital or psychiatric nursing home. ^{^[12]}Lastly, the disclosure of personal records of any facility under this Act by inspecting officers is prohibited^{^[13]}

Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 ^{^[14]}
The Act was instituted in light of a prevalent public interest consideration of preventing female foeticide. However, it is imperative that the provision of the Act remain just shy of unnecessarily intrusive techniques and do not violate the basic human requirement of privacy in an inherently personal sphere. The procedure that a mother has to follow in order to avail of pre-natal diagnostic testing is mandatory consent of age, abortion history and family history. These conditions require a woman to reveal sensitive information concerning family history of mental retardation or physical deformities.[15] Aspecial concern for privacy and confidentiality should be exercised with regards to disclosure of genetic information. [16]

Medical Termination of Pregnancy Act, 1971 ^{^[17]}
Although, the right to an abortion is afforded to a woman within the construct of her inherent right to bodily privacy, decisional privacy (for e.g., autonomy and choice in medical decision-making) is not afforded to patients and their families with regards to determining the sex of the baby. The sections of the Act that have been examined lay down the provisions available within the Act to facilitate the protection of a woman’s right to privacy during the possible termination of a pregnancy. These include the principles pertaining to the choice and consent of the patient to undergo the procedure, a limit on the amount of information that can be collected from the patient, the prevention of disclosure of sensitive information and the security measures in place to prevent the unauthorized access to this information. The Medical Termination of Pregnancy Regulations, 2003 supplement the Act and provide relevant restrictions within every day practices of data collection use and storage in order to protect the privacy of patients. The Act mandates Written Consent of the patient in order to facilitate an abortion .Consent implies that the patient is aware of all her options, has been counselled about the procedure, the risks and post-abortion care.[18]. The Act prohibits the disclosure of matters relating to treatment for termination of pregnancy to anyone other than the Chief Medical Officer of the State. [19]The Register of women who have terminated their pregnancy, as maintained by the hospital, must be destroyed on the expiry of a period of five years from the date of the last entry.[20] The Act also emphasizes upon the security of information collected. The medical practitioner assigns a serial number for the woman terminating her pregnancy.[21]Additionally, the admission register is stored in safe custody of the head of the hospital. [22]

Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002 (Code of Ethics Regulations, 2002)
The Medical Council of India (MCI) Code of Ethics Regulations^{^[23]} sets the professional standards for medical practice. These provisions regulate the nature and extent of doctor patient confidentiality. It also establishes universally recognized norms pertaining to consent to a particular medical procedure and sets the institutionally acceptable limit for intrusive procedure or gathering excessively personal information when it is not mandatorily required for the said procedure. The provisions addressed under these regulations pertain to the Security of the information collected by medical practitioners and the nature of doctor patient confidentiality.

Physicians are obliged to protect the confidentiality of patients⁵during all stages of the procedure and with regard to all aspects of the information provided by the patient to the doctor, includinginformation relating to their personal and domestic lives. ^{^[24]}The only exception to this mandate of confidentiality is if the law requires the revelation of certain information, or if there is a serious and identifiable risk to a specific person and / or community ofa notifiable disease.

Ethical Guidelines for Biomedical Research on Human Subjects [25]
The provisions for the regulation of privacy pertaining to biomedical research include aspects of consent as well as a limitation on the information that may be collected and its subsequent use. The provisions of this act aim to regulate the protection of privacy during clinical trials and during other methods of research. The principal of informed consent is an integral part of this set of guidelines. ThePrivacy related information included in the participant/ patient information sheet includes: the choice to prevent the use of their biological sample, the extent to which confidentiality of records could be maintained and the consequences of breach of confidentiality, possible current and future uses of the biological material and of the data to be generated from the research and if the material is likely to be used for secondary purposes or would be shared with others, the risk of discovery of biologically sensitive information and publications, including photographs and pedigree charts.[26] The Guidelines require special concern for privacy and confidentiality when conducting genetic family studies. [27]The protection of privacy and maintenance of confidentiality, specifically surrounding the identity and records, is maintained whenusing the information or genetic material provided by participants for research purposes. ^{^[28]}The Guidelines require investigators to maintain confidentiality of epidemiological data due to the particular concern that some population based data may also have implications on issues like national security or public safety.[29]All documentation and communication of the Institutional Ethics Committee (IEC) must be dated, filed and preserved according to the written procedures.Data of individual participants can be disclosed in a court of law under the orders of the presiding judge, if there is a threat to a person’s life, communication to the drug registration authority regarding cases of severe adverse reaction and communication to the health authority if there is risk to public health.[30]

Insurance Regulatory and Development Authority (Third Party Administrators) Health Services Regulations, 2001
The provisions of the Act that have been addressed within the scope of the study regulate the practices of third party administrators within the healthcare sector so as to ensure their compliance with the basic principles of privacy.An exception to the maintenance and confidentiality of information confidentiality clause in the code of conduct, requires TPAs to provide relevant information to any Court of Law/Tribunal, the Government, or the Authority in the case of any investigation carried out or proposed to be carried out by the Authority against the insurance company, TPA or any other person or for any other reason.[31]In July 2010, the IRDA notified theInsurance Regulatory and Development Authority (Sharing of Database for Distribution of Insurance Products) Regulations [32]. These regulations restrict referral companies from providing details of their customers without their prior consent.[33]TPAs must maintain the confidentiality of the data collected by it in the course of its agreement and maintain proper records of all transactions carried out by it on behalf of an insurance company and are also required to refrain from trading information and the records of its business[34].TPA’s must keep records for a period of not less than three years.[35]

IDRA Guidelines on Outsourcing of Activities by Insurance Companies [36]
These guidelines require the insurer to take appropriate steps that require third party service providers protect confidential information of both the Insurer and its clients from intentional or inadvertent disclosure to unauthorized persons.[37]

Exceptions to the Protection of Privacy
The legal provisions with regard to privacy, confidentiality and secrecy are often superseded by Public Interest Considerations. The right to privacy, although recognized in the course of Indian jurisprudence and embodied within domestic legislation is often overruled prima facie when faced with situations or instances that involve a larger interest of a greater number of people. This policy is in keeping with India’s policy goals as a social welfare state to aid in the effectuation of its utilitarian ideals. This does not allow individual interest to at any point surpass the interest of the masses.

Epidemic Diseases Act, 1897 [38]
Implicit within this formulation of this Act is the assumption that in the case of infectious diseases, the right to privacy, of infected individuals must give way to the overriding interest of protecting public health.[39] This can be ascertained not only from the black letter of the Law but also from its spirit. Thus, in the absolute positivist as well as a more liberal interpretation, at the crux of the legislation lies the undeniable fundamental covenant of the preservation of public health, even at the cost of the privacy of a select few individuals [40].

Policy and Regulations

National Policy for Persons with Disabilities, 2006[41]
The following provisions of the Act provide for the incorporation of privacy considerations in prevalent practices with regard to persons with disabilities. The National Sample Survey Organization collects the following information on persons with disabilities: the socio- economic and cultural context, cause of disabilities, early childhood education methodologies and all matters connected with disabilities, at least once in five years.[42]This data is collected by non-medical investigators. [43]There is thus an inherent limit on the information collected. Additionally, this information is used only for the purpose for which it has been collected.

The Special Employment Exchange, as established under The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 Act, collects and furnishes information in registers, regarding provisions for employment. Access to such data is limited to any person who is authorized by the Special Employment Exchange as well as persons authorized by general or special order by the Government, to access, inspect, question and copy any relevant record, document or information in the possession of any establishment. [44] When conducting research on persons with disabilities consent is required from the individual or their family members or caregivers.[45]

HIV Interventions
In 1992, the Government of India instituted the National AIDS Control Organization (NACO) for the prevention and control of AIDS. NACO aims to control the spread of HIV in India through the implementation of Targeted Interventions (TIs) for most at risk populations (MARPs) primarily, sex workers, men having sex with men and people who inject drugs.[46]The Targeted Interventions (TIs) system of testing under this organization has however raised numerous concerns about relevant policy gaps in the maintenance of the confidentiality and privacy of persons living with HIV/ AIDS. The shortcomings in the existing policy framework include: The Lack of a limitation and subsequent confidentiality in the amount of Information collected. Project staff inTIsrecordthe name, address and other contact information of MARPs and share this data with Technical Support Unit and State AIDS Control Societies.[47] Proof of address and identity documents are required to get enrolled in government ART programs.[48]Peer-educators operate under a system known as line-listing, used to make referrals and conduct follow-ups. Peer-educators have to follow-up with those who have not gone at regular intervals for testing. [49] This practice can result in peer-educators noticing and concluding that the names missing are those who have tested positive. [50] Although voluntary in nature, the policy encourage the fulfillment of fulfilling of numerical targets, and in doing so supports unethical ways of testing.[51]

The right to privacy is an essential requirement for persons living with HIV/AIDS due to the potential stigmatizing and discriminatory impact of the revelation of this sensitive information, in any form.[52] The lack of privacy rights often fuels the spread of the disease and exacerbates its impact on high risk communities of individuals. Fears emanating from a privacy breach or a disclosure of data often deter people from getting tested and seeking medical care. The impact of such disclosure of sensitive information including the revelation of tests results to individuals other than the person being tested include low self esteem, fear of loss of support from family/peers, loss of earnings especially for female and transgender sex workers, fear of incrimination for illicit sex/drug use and the insensitivity of counselors. [53]HIV positive individualslive in constant fear of their positive status being leaked. They also shy away from treatment as they fear people might see them taking their medicines and thereby guess their status. Thus breaches in confidentiality and policy gaps in privacy regulation, especially with respect to diseases such as HIV also prevents people from seeking out treatment. [54]

Case Law

The following cases have been used to deliberate upon important points of contention within the ambit of the implementation and impact of Privacy Regulationsin the healthcare sector. This includes the nature and extent of privacy enjoyed by the patient and instances where in the privacy of the patient can be compromised in light of public interest considerations.

Mr. Surupsingh Hrya Naik vs. State of Maharashtra ,[55] (2007)

The decision in this case held that The RTI Act 2005 would supersede The Medical Council Code of Ethics. The health records of an individual in judicial custody should be made available under the Act and can only be denied in exceptional cases, for valid reasons.

Since the Code of Ethics Regulations are only delegated legislation, it was held in the case of Mr. SurupsinghHrya Naik v.State Of Maharashtra[56] that these would not prevail over the Right to Information Act, 2005 (RTI Act) unless the information sought falls under the exceptions contained in Section 8 of the RTI Act. This case dealt with the important point of contention of whether making the health records public under the RTI Act would constitute a violation of the right to privacy. These health records were required to determine why the convict in question was allowed to stay in a hospital as opposed to prison. In this context the Bombay High Court held thatThe Right to Information Act supersedes the regulation that mandate the confidentiality od a person, or in this case a convict’s medical records. It was held that the medical records of a a person sentenced or convicted or remanded to police or judicial custody, if during that period such person is admitted in hospital and nursing home, should be made available to the person asking the information provided such hospital nursing home is maintained by the State or Public Authority or any other Public Body. It is only in rare and in exceptional cases and for good and valid reasons recorded in writing can the information may be denied.

Radiological & Imaging Association v. Union of India ,^{^[57]} (2011)
On 14 January 2011 a circular was issued by the Collector and District Magistrate, Kolhapur requiring the Radiologists and Sonologists to submit an on-line form “F” under the PNDT Rules. This was challenged by the Radiological and Imaging Association, inter alia, on the ground that it violates the privacy of their patients. Deciding the above issue the Bombay High Court held that .The images stored in the silent observer are not transmitted on-line to any server and thus remain embedded in the ultra-sound machine. Further, the silent observer is to be opened only on request of the Collector/ the civil surgeonin the presence of the concerned radiologist/sonologist/doctor incharge of the Ultra-sound Clinic. In light of these considerations and the fact that the `F' form submitted on-line is submitted only to the Collector and District Magistrate is no violation of the doctor's duty of confidentiality or the patient's right to privacy. It was further observed that The contours of the right to privacy must be circumscribed by the compelling public interest flowing through each and every provision of the PC&PNDT Act, when read in the background of the following figures of declining sex ratio in the last five decades.

The use of a Silent Observer system on a sonograph has requisite safeguards and doesn’t violate privacy rights. The declining sex ratio of the country was considered a compelling public Interest that could supersede the right to privacy.

Smt. Selvi and Ors. v.State of Karnataka (2010)
The Supreme Court held that involuntary subjection of a person to narco analysis, polygraph test and brain-mapping violates the ‘right against self-incrimination' which finds its place in Article 20(3)[58] of the Constitution. [59] The court also found that narco analysis violated individuals’ right to privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent, and physically restraining a subject to the location of the tests and amounted to cruel, inhuman or degrading treatment.[60]

The Supreme Court found that Narco-analysis violated an individuals’ right to privacy by intruding into a “subject’s mental privacy,” denying an opportunity to choose whether to speak or remain silent.

Neera Mathur v. Life Insurance Corporation (LIC),[61] (1991)
In this casethe plaintiff contested a wrongful termination after she availed of maternity leave. LIC required women applicants to furnish personal details like their menstrual cycles, conceptions, pregnancies, etc. at the time of appointment. Such a requirement was held to go against the modesty and self respect of women. The Court held that termination was only because of disclosures in application, which was held to be intrusive, embarrassing and humiliating. LIC was directed to delete such questions.

The Court did not refer to the term privacy however it used the term personal details as well as modesty and self respect, but did not specifically link them to the right to life or any other fundamental right. These terms (modesty and self respect) are usually not connected to privacy but although they may be the harm which comes from an intrusion of one’s privacy.

The Supreme Court held that Questions related to an individual’s reproductive issues are personal details and should not be asked in the service application forms.

Ms. X vs. Mr. Z &Anr ,[62] (2001)
In this case, the Delhi High Court held that an aborted foetus was not a part of the body of a woman and allowed the DNA test of the aborted foetus at the instance of the husband. The application for a DNA test of the foetus was contested by the wife on the ground of “Right to Privacy”.7In this regard the court held that The Supreme Court had previously decided that a party may be directed to provide blood as a DNA sample but cannot be compelled to do so. The Court may only draw an adverse interference against such party who refuses to follow the direction of the Court in this respect.The position of the court in this case was that the claim that the preservation of a foetus in the laboratory of the All India Institute of Medical Science, violates the petitioner’s right to privacy, cannot be entertained as the foetus had been voluntarily discharges from her body previously, with her consent. The foetus, that she herself has dischargedis claimed to be subjected to DNA test. Thus, in light of the particular facts and the context of the case, it was held that petitioner does not have any right of privacy.

A woman’s right to privacy does not extend to a foetus, which is no longer a part of her body. The right to privacy may arise from a contract as well as a specific relationship, including a marital relationship. The principle in this case has been laid down in broad enough terms that it may be applied to other body parts which have been disassociated from the body of the individual.

It is important to note here that the fact that the Court is relying upon the principles laid down in the case of R. Rajagopal seems to suggest that the Court is treating organic tissue preserved in a public hospital in the same manner as it would treat a public document, insofar as the exception to the right to privacy is concerned.

B.K Parthasarthi vs. Government of Andhra Pradesh ,[63] (1999)
In this case, the Andhra Pradesh High Court was to decide the validity of a provision in the Andhra Pradesh Panchayat Raj Act, 1994 which stipulated that any person having more than two children should be disqualified from contesting elections. This clause was challenged on a number of grounds including the ground that it violated the right to privacy. The Court, in deciding upon the right to privacy and the right to reproductive autonomy, held thatThe impugned provision, i.eSection 19(3) of the said Act does not compel directly anyone to stop procreation, but only disqualifies any person who is otherwise eligible to seek election to various public offices coming within the ambit of the Andhra Pradesh Panchayat Raj Act, 1994 or declares such persons who have already been holding such offices to be disqualified from continuing in such offices if they procreate more than two children.Therefore, the submission made on behalf of the petitioners 'right to privacy' is infringed, is untenable and must be rejected.”

Mr. X v. Hospital Z, Supreme Court of India ,[64] (1998 and 2002)
The petitioner was engaged to be married and thereafter during tests for some other illness in the hospital it was found that the petitioner was HIV positive. This information was released by the doctor to the petitioner’s family and through them to the family of the girl to whom the petitioner was engaged, all without the consent of the petitioner. The Court held that:

“The Right to privacy is not treated as absolute and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.”

Right to privacy and is subject to such action as may be lawfully taken for the prevention of crime or disorder or protection of health or morals or protection of rights and freedoms of others.

This decision of this case could be interpreted to extend the principle, of disclosure to the person at risk, to other communicable and life threatening diseases as well. However, a positivist interpretation would render these principle applicable to only to HIV+ cases.

M. Vijaya v. Chairman and Managing Director, Singareni Collieries Co. Ltd. [65] (2001)
The petitioner alleged that she had contracted the HIV virus due to the negligence of the authorities of Maternity and Family Welfare Hospital, Godavarikhani, a hospital under the control of Singareni Collieries Company Ltd., (SCCL), in conducting relevant precautionary blood tests before transfusion of blood of her brother (donor) into her body when she was operated for hysterectomy (Chronic Cervicitis) at the hospital. The petition was initially filed as a Public Interest Litigation,which the court duly expanded in order to address the problem of the lack of adequate precautionary measures in hospitals, thereby also dealing with issues of medical confidentiality and privacy of HIV patients. The court thus deliberated upon the conflict between the right to privacy of an HIV infected person and the duty of the state to prevent further transmission and held:

In the interests of the general public, it is necessary for the State to identify HIV positive cases and any action taken in that regard cannot be termed as unconstitutional. As under Article 47 of the Constitution, the State was under an obligation to take all steps for the improvement of the public health. A law designed to achieve this object, if fair and reasonable, in our opinion, will not be in breach of Article 21 of the Constitution of India

The right of reproductive autonomy is a component of the right to privacy .A provision disqualifying a person from standing for elections due to the number of children had, does not violate the right to privacy as the object of the legislation is not to violate the autonomy of an individual but to mitigate the population growth in the country. Measures to control population growth shall be considered legal unless they impermissibly violate a fundamental right.

However, another aspect of the matter is whether compelling a person to take HIV test amounts to denying the right to privacy? The Court analyzed the existing domestic legislation to arrive at the conclusion that there is no general law that can compel a person to undergo an HIV-AIDS test. However, specific provisions under the Prison Laws[66]

provide that as soon as a prisoner is admitted to prison, he is required to be examined medically and the record of prisoner's health is to be maintained in a register. Further, Under the ITP Act, the sex workers can also be compelled to undergo HIV/ AIDS test.[67]

Additionally, under Sections 269 and 270 of the Indian Penal Code, 1860, a person can be punished for negligent act of spreading infectious diseases.

The right to privacy of a person suspected to be HIV+ would be subordinate to the power and duty of the state to identify HIV+ patients in order to protect public interest and improve public health. However any law designed to achieve this object must be fair and reasonable. In a conflict between the individual’s privacy right and the public’s right in dealing with the cases of HIV-AIDS, the Roman Law principle 'SalusPopuliestSuprema' (regard for the public wealth is the highest law) applies when there is a necessity.

After mapping legislation that permit the invasion of bodily privacy, the Court concluded that they are not comprehensive enough to enable the State to collect information regarding patients of HIV/AIDS and devise appropriate strategies and therefore the State should draft a new legislation in this regard. Further the Court gave certain directions to the state regarding how to handle the epidemic of HIV/AIDS and one of those directions was that the “Identity of patients who come for treatment of HIV+/AIDS should not be disclosed so that other patients will also come forward for taking treatment.”

Sharda v. Dharmpal ,[68] (2003)

The basic question in this case was whether a party to a divorce proceeding can be compelled to a medical examination. The wife in the divorce proceeding refused to submit herself to medical examination to determine whether she was of unsound mind on the ground that such an act would violate her right to personal liberty. Discussing the balance between protecting the right to privacy and other principles that may be involved in matrimonial cases such as the ‘best interest of the child’ in case child custody is also in issue, the Court held:

If the best interest of a child is in issue in the case then the patient’s right to privacy and confidentiality would get limited. The right to privacy of an individual would be subordinate to the power of a court to arrive at a conclusion in a matrimonial dispute and the right of a party to protect his/her rights in a Court of law would trump the right to privacy of the other.

"Privacy" is defined as "the state of being free from intrusion or disturbance in one's private life or affairs". However, the right to privacy in India, is only conferred through an extensive interpretation of Article 21 and cannot therefore in any circumstance be considered an absolute right. Mental health treatment involves disclosure of one's most private feelings However, like any other privilege the psychotherapist-patient privilege is not absolute and may only be recognized if the benefit to society outweighs the costs of keeping the information private. Thus if a child's best interest is jeopardized by maintaining confidentiality the privilege may be limited.” Thus, the power of a court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot beheld to violate the petitioner’s right to privacy.

Regulation of Privacy in Government and Private Hospitals and Diagnostic Laborataries

A. Field Study
The Hospitals that have been chosen for the analysis of the efficacy of these legislations include prominent Government Hospitals, Private Hospitals and Diagnostic Centers. These Institutes were chosen because of their widely accredited status as centers of medical research and cutting edge treatment. They have also had a long standing reputation due to their staff of experienced and skilled on call doctors and surgeons. The Private Hospitals chosen had patient welfare centers that addressed the concerns of patients including questions and doubts relating to but not limited to confidentiality and consent. The Government hospitals had a public relations office that addressed the concerns of discharged patients. They also provided counseling services to patients to aid them in addressing concerns relate to the treatment that they might want to be kept confidential. Diagnostic laboratories also have an HR department that addresses similar concerns. The laboratory also has a patient welfare manager who addresses the concerns and queries of the patient prior to and during the procedure.

The following section describes the practices promulgated by Government and Private Hospitals, as well as Diagnostic Laboratories in their endeavor to comply with the basic principles of privacy as laid down in the A.P Shah Committee report on Privacy.

(i) Notice

Through an analysis of the information provided by Government and Private hospitals and diagnostic laboratories, relevant conclusions were drawn with regard to the nature, process and method in which the patient information is recorded. Through interviews of various medical personnel including administrative staff in the patient welfare and medical records departments we observed an environment of openness and accountability within the structure of the patient registration system.

In Government Hospitals, the patient is notified of all types of information that is collected, in terms of both personal information as well as medical history. The Patient admission as well as the patient consent form is filled out by the patient or the attending relative accompanying the patient and assistance for the same is provided by the attending staff members, who explain the required details that need to be filled in a language that the patient is able to understand. The patient is notified of the purpose for which such information is collected and the procedure that he/ she might have to undergo depending on his injury or illness. The patient is not however, notified of the method in which he/she may correct or withdraw the information that is provided. There is no protocol provided for the correction or withdrawal of information, once provided. The patient is, at all times notified of the extent and nature of doctor patient confidentiality including the fact that his/her personal information would not be shared even with his/her immediate relatives , insurance companies, consulting doctors who are not directly involved with his/her treatment or any unauthorized third party without requisite consent from the patient. The patient is informed of the fact that in some cases the medical records of the patient will have to be shared with consulting doctors and that all the patient’s medical records would be provided to insurance companies, but this will only be done with the consent of the patient.

The same system of transparency and accountability transcends across private hospitals and diagnostic laboratories as well. In private hospitals, the patient is informed of all the information that is collected and the purpose for which such information may be collected. Diagnostic laboratories have specific patient consent forms for specific types of procedures which the patient will have to fill out depending on the required tests. These forms contain provisions with regard to the confidential nature of all the information provided. This information can only be accessed by the patient and the consulting doctor with the consent of the patient. Both private hospitals and diagnostic laboratories have a specific protocol and procedure in place to correct or withdraw information that has been provided. In order to do so the patient would have to contact the medical records department with requisite proof of the correct information. Private hospitals inform patients of the nature and extent of doctor patient confidentiality at every stage of the registration process. Some private hospitals contain patient safety brochures which inform patients about the nature and extent of consent and confidentiality, even with regard to consulting doctors and insurance agencies. If the patient does not want certain information revealed to insurance agencies the hospital will retain such records and refraining from providing them to third party insurance agencies. Thus, all information provided by the patient remains confidential at the behest of the patient.

(ii) Choice and Consent

Choice and consent are two integral aspects of the regulation of privacy within the healthcare sector. Government and Private hospitals as well as diagnostic laboratories have specific protocols in place to ensure that the consent of the patient is taken at every stage of the procedure. The consent of the patient can also be withdrawn just prior to the procedure even if this consent has already been given by the patient in writing, previously. The choice of the patient is also given ample importance at all stages of the procedure. The patient can refuse to provide any information that may not mandatorily required for the treatment provided basic information regarding his identity and contact information in case of emergency correspondence has been given.

(iii) Collection Limitation

The information collected from the patient in both government and private hospitals is used solely for the purpose that the patient has been informed of. In case this information is used for purposes other than for the purpose that the patient has been informed of, the patient is informed of this new purpose as well. Patient records in both Government and Private hospitals are stored in the Medical Records Department as hard copies and in some cases as scanned soft copies of the hard copy as well. These Medical Records are all stored within the facility. The duration for which the records are stored range from a minimum of two years to a maximum of ten years in most private hospitals. Some private hospitals store these records for life. Government hospitals store these records for a term of thirty years only as hard copies after which the records are discarded. Private hospitals make medical records accessible to any medical personnel who may ask for it provided the requisite proof of identity and reasons for accessing the same are provided, along with an attested letter of authorization of the doctor who is currently involved or had been involved in the treatment of the patient. Government hospitals however do not let any medical personnel access these records except for the doctor involved in the treatment of that particular patient. Both private and government hospitals are required to share the medical records of the patient with the insurance companies. Government Hospitals only share patient records with nationalized insurance agencies such as The Life Insurance Corporation of India (LIC) but not with private insurance agencies. The insurance claims forms that are required prior to providing medical records to the insurance companies mandatorily require the signature of the patient. The patient is thus informed that his records will be shared with the insurance agencies and his signature is a proof of his implied consent to the sharing of these records with the company with which he has filed a health insurance claim.

Diagnostic laboratories collect patient information solely for the purpose of the particular test that they have been asked to conduct by the treating or consulting doctor. Genetic samples (Blood, Semen, Urine etc) are collected at one time and the various tests required are conducted on these samples. In case of any additional testing that is required to be conducted on these samples, the patient is informed. Additional testing is conducted only in critical cases and in cases where the referral doctor requests for the same to be conducted on the collected samples. In critical cases, where immediate testing is required and the patient is unreachable, the testing is conducted without informing the patient. The patient is mandatorily informed after the test that such additional testing was conducted. The patient sample is stored for one week within the same facility. The Patient records are digitized. They can only be accessed by the patient, who is provided with a particular username and password using which he can access only his records. The information is stored for a minimum of two years. This information can be made available to a medical personnel only if such medical personnel has the required lab no, the patients name, and reason for which it needs to be accessed. He thus requires the permission of the authorities at the facility as well as the permission and consent of the patient to access such records. The Medical test records of a patient are kept completely confidential. Even insurance companies cannot access such records unless they are provided to the company by the patient himself. In critical cases however, the patient information and tests results are shared with the treating or referral doctor without the consent of the patient.

(iv) Purpose Limitation

In Government and Private Hospitals, the information is only used for the purpose for which it is collected. There is thus a direct and relevant connection between the information collected and the purpose for which it used. Additional information is collected to gauge the medical history of the patient that may be relevant to the disease that has to be treated. The information is never deleted after it has been used for the purpose for which it had been collected. The Medical Records of the patient are kept for extended periods in hard copy as well as soft copy versions. There is a provision for informing the patient in case the information is used for any purpose other than the purpose for which it was collected. Consent of the patient is taken at all stages of collecting and utilizing the information provided by him.

Diagnostic Laboratories have a database of all the information collected which is saved in the server. The information is mandatorily deleted after it has been used for the purpose for which it was collected after a period of two years. In case the information is used for any purpose other than the purpose for which it was collected, for example, in critical cases where additional tests have to be conducted the patient is\ always informed of the same.

(v) Access and Correction

In private hospitals, the patient is allowed to access his own records during his stay at the hospital. He is given a copy of his file upon his discharge from the hospital in the form of a discharge summary. However, if he needs to access the original records at a later stage, he can do so by filing a request for the same at the Medical Records Department of the hospital. A patient can make amendments or corrections to his records by providing requisite proof to substantiate the amended information. The patient however at no stage can confirm if the hospital is holding or processing personal information about him or her with the exception of the provisions provided for the amendment or correction to the information held.

The Medical records of a patient in a government hospital are completely sealed. A patient has no access to his own records. Only the concerned doctor who was treating the patient during his stay at the hospital can access the records of the patient. This doctor has to be necessarily associated with the hospital and had to have been directly involved in the patient’s treatment in order to access the records. The patient is allowed to amend information in his medical records but only generic information such as the spelling of his name, his address, telephone number etc. The patient is at no point allowed to access his own records and therefore cannot confirm if the hospital is holding or processing any information about him/her. The patient is only provided with a discharge summary that includes his personal information, the details of his disease and the treatment provided in simple language.

Diagnostic laboratories have an online database of patient records. The patient is given a username and a password and can access the information at any point. The patient may also amend or correct any information provided by contacting the Medical records department for the same. The patient can at any time view the status of his record and confirm if it is being held or processed by the hospital. A copy of such information can be obtained by the patient at any time.

(vi) Disclosure of Information

Private Hospitals are extremely cautious with regard to the disclosure of patient information. Medical records of patients cannot be accessed by anyone except the doctor treating that particular patient or consulting on the case. The patient is informed whenever his records are disclosed even to doctors. Usually, even immediate relatives of the patient cannot access the patient’s records without the consent of the patient except in cases where the condition of the patient is critical. The patient is always informed about the type and extent of information that may be disclosed whenever it is disclosed. No information of the patient is made available publicly at any stage. The patient can refuse to consent to sharing of information collected from him/her with non-authorized agencies. However, in no circumstance is the information collected from him/her shared with non authorized agencies. Some private hospitals also provide the patient with patient’s safety brochures highlighting the extent of doctor patient confidentiality, the patient’s rights including the right to withdraw consent at any stage and refuse access of records by unauthorized agencies.

In government hospitals, the medical records of the patient can only be disclosed to authorized agencies with the prior approval of patient. The patient is made aware of the type and extent of information that is collected from him/her and is mandatorily shared with authorized bodies such as insurance agencies or the treating doctor. No information of the patient is made publicly available. In cases where the information is shared with insurance agencies or any such authorized body the patient gives an undertaking via a letter of his consent to such disclosure. The insurance companies only use medical records for verification purposes and have to do so at the facility. They cannot take any original documents or make copies of the records without the consent of the patient as provided in the undertaking.

Diagnostic Laboratories provide information regarding the patient’s medical records only to the concerned or referred doctor. The patient is always informed of any instance where his information may be disclosed and the consent of the patient is always taken for the same. No information is made available publicly or shared with unauthorized agencies at any stage. Information regarding the patient’s medical records is not even shared with insurance companies.

Government and Private Hospitals provide medical records of patients to the police only when a summons for the same has been issued by a judge. Diagnostic laboratories however do not provide information regarding a patient’s records at any stage to any law enforcement agencies unless there is summons from a judge specifying exactly the nature and extent of information required.

Patients are not made aware of laws which may govern the disclosure of information in private and government hospitals as well as in diagnostic laboratories. The patient is merely informed that the information provided by him to the medical personnel will remain confidential.

(vii) Security

The security measures that are put in place to ensure the safety of the collected information is not adequately specified in the forms or during the collection of information from the patient in Government or Private Hospitals. Diagnostic laboratories however do provide the patient with information regarding the security measures put in place to ensure the confidentiality of the information.

(viii) Openness

The information made available to the patient at government and private hospital and diagnostic laboratories is easily intelligible. At every stage of the procedure the explicit consent of the patient is obtained. In government and private hospitals the signature of the patient is obtained on consent forms at every stage of the procedure and the nature and extent of the procedure is explained to the patient in a language that he understands and is comfortable speaking. The information provided is detailed and is provided in simplistic terms so that the patient does at all stages understand the nature of any procedure he is consenting to undergo.

(ix) Accountability

Private hospitals and Diagnostic laboratories have internal and external audit mechanisms in place to check the efficacy of privacy measures. They both have grievance redress mechanisms in the form of patient welfare cells and complaint cells. There is an assigned officer in place to take patient feedback and address and manage the privacy concerns of the patient.

Government hospitals do not have an internal or external audit mechanism in place to check the efficacy of privacy measures. There is however a grievance redressal mechanism in government hospitals in the form of a Public Relations Office that addresses the concerns, complaints, feedback and suggestions of the patients. There is an officer in charge of addressing and managing the privacy concerns of patients. This officer also offers counseling to the patients in case of privacy concerns regarding sensitive information.

International Best Practices and Recommendations

A. European Union
An official EU data protection regulation [69]was issued in January 2012. A key objective of this was to introduce a uniform policy directive across all member states. The regulation, once implemented was to be applicable in all member states and left no room for alteration or amendments.

The regulation calls for Privacy Impact Assessments[70]when there are specific risks to privacy which would include profiling, sensitive data related to health, genetic material or biometric information. This is an important step towards evaluating the nature and extent of privacy regulation required for various procedures and would be effective in the creation of a systematic structure for the implementation of these regulations. The regulation also established the need for explicit consent for sensitive personal data. The basis for this is an inherent imbalance in the positions of the data subject and the data controller, or in simpler terms the patient and the hospital or the life sciences company conducting the research. Thus, implied consent is not enough [71]and a need arises to proceed with the testing only when there is explicit informed consent.

Embedded within the regulation is the right to be forgotten [72]wherein patients can request for their data to be deleted after they have been discharged or the clinical trial has been concluded. In the Indian scenario, patient information is kept for extended periods of time. This can be subject to unauthorized access and misuse. The deletion of patient information once it has been used for the purpose for which it was collected is thus imperative towards the creation of an environment of privacy protection.

Article 81 of the regulation specifies that health data may be processed only for three major processes[73] :

a) In cases of Preventative or occupational medicine, medical diagnosis, the care, treatment or management of healthcare services, and in cases where the data is processed by the healthcare professionals, the data is subject to the obligation of professional secrecy;

b) Considerations of public interest bearing a direct nexus to public health, for example, the protection of legitimate cross border threats to health or ensuring a high standard of quality and safety for medicinal products or services;

c) Or other reasons of public interest such as social protection.

An added concern is the nature and extent of consent. The consent obtained during a clinical trial may not always be sufficient to cover additional research even in instances of data being coded adequately. Thus, it may not be possible to anticipate additional research while carrying out initial research. Article 83[74] of the regulation prohibits the use of data collected for an additional purpose, other that the purpose for which it was collected.

Lastly, the regulation covers data that may be transferred outside the EEA, unless there is an additional level of data protection. If a court located outside the EU makes a request for the disclosure of personal data, prior authorization must be obtained from the local data protection authority before such transfer is made. It is imperative that this be implemented within Indian legislation as currently there is no mechanism to regulate the cross border transfer of personal data.

B. The United States of America
The Health Maintenance Organizations Act, 1973 [75]was enacted with a view to keep up with the rapid development in the Information Technology sector. The digitization of personal information led to new forms of threats with regard to the privacy of a patient. In the face of this threat, the overarching goal of providing effective and yet unobtrusive healthcare still remains paramount.

To this effect, several important federal regulations have been implemented. These include the Privacy and Security Ruled under the Health Insurance Portability and Accountability Act (HIPAA) 1996[76] and the State Alliance for eHealth (2007) [77].The HIPAA privacy rules addressed the use and subsequent disclosure of a patient's personal information under various healthcare plans, medical providers, and clearinghouses. These insurance agencies were the primary agents involved in obtaining a patients information for purposes such as treatment, payment, managing healthcare operations, medical research and subcontracting. Under the HIPAA it is required of insurance agencies to ensure the implementation of various administrative safeguards such as policies, guidelines, regulations or rules to monitor and control inter as well as intra organizational access.

Apart from the HIPAA, approximately 60 laws related to privacy in the healthcare sector have been enacted in more than 34 states. These legislations have been instrumental in creating awareness about privacy requirements in the healthcare sector and improving the efficiency of data collection and transfer. Similar legislative initiative is required in the Indian context to aid in the creation of a regulated and secure atmosphere pertaining to the protection of privacy within the healthcare sector.

C. Australia
Australia has a comprehensive law that deals with sectoral regulations of the right to privacy.An amendment to the Privacy Act1988 [78]applies to all healthcare providers and was made applicable from 21st December 2001.The privacy Act includes the followingpractices:

a. A stringent requirement for informed consent prior to the collection of health related information

b. A provision regarding the information that needs to be provided to individuals before information is collected from them

c. The considerations that have to be taken into account before the transfer of information to third parties such as insurance agencies, including the specific instances wherein this information can be passed on

d. The details that must be included in the Privacy policy of the healthcare service providers' Privacy Policy

e. The securing and storing of information; and

f. Providing individuals with a right to access their health records.

These provisions are in keeping with the 13 National Privacy [79]Principles that represent the minimum standards of privacy regulation with respect to the handling of personal information in the healthcare sector.These guidelines are advisory in nature and have been issued by the Privacy Commissioner in exercise of his power under Section 27(1)(e) [80]of the Privacy Act.

The Act also embodiessimilar privacy principles which include a collection limitation, a definitive use and purpose for the information collected, a specific set of circumstance and an established protocol for the disclosure of information to third parties including the nature and extent of such disclosure, maintenance accuracy ofthe data collected, requisite security measures to ensure the data collected is at all times protected, a sense of transparency,accountability and openness in the administrative functioning of thehealthcare provider and accessibility of the patient to his ownrecords for the purpose of viewing, corroboration or correction.

Additionally, the Act includes the system of identifiers which includes a number assigned by the organization to an individual to identify the purpose of that person's data for the operation of the organization. Further, the Act provides for anonymity wherein individuals have the optionnot to identify themselves while entering into transactions with an organization. The Act also provides for restrictions on the transfer of personal data outside Australia and establishes conclusive and stringent barriers to the extent of collection of personal and sensitive data.These principles although vaguely similar to those highlighted in the A.P. Shah Committee report can be usedto streamline the regulations pertaining to privacy in the healthcare sector and make them more efficient.

Key Recommendations

It is Imperative that Privacy concerns relating to the transnational flow of Private data be addressed in the most efficient way possible. This would involve international cooperation and collaboration to address privacy concerns including clear provisions and the development of coherent minimum standards pertaining to international data transfer agreements. This exchange of ideas and multilateral deliberation would result in creating more efficient methods of applying the provisions of privacy legislation even within domestic jurisdictions.

There is a universal need for the development of a foundational structure for the physical collection, use and storage of human biological specimens (in contrast to the personalinformation that may be derived from those specimens) as these are extremely important aspects of biomedical research and clinical trials. The need for Privacy Impact Assessments would also arise in the context of clinical trials, research studies and the gathering of biomedical data.

Further, there also arises the need for patients to be allowed to request for the deletion of their personal information once it has served the purpose for which it was obtained. The keeping of records for extended periods of time by hospitals and laboratories is unnecessary and can often result in the unauthorized access to and subsequent misuse of such data.

There is a definitive need to ensure the incorporation of safeguards to regulate the protection of patient’s data once accessed by third parties, such as insurance companies. In the Indian Context as well as insurance agencies often have unrestricted access to a patient's medical records however there is a definitive lack of sufficient safeguards to ensure that this information is not released to or access by unauthorized persons either within these insurance agencies or outsourced consultants

The system of identifiers which allocate specific numbers to an individual’s data which can only be accessed using that specific number or series of numbers can be incorporated into the Indian system as well and can simplify the administrative process thus increasing its efficacy. This would afford individuals the privilege of anonymity while entering into transactions with specific healthcare institutions.

An important means of responding to public concerns over potential unauthorized use ofpersonal information gathered for research, could be through the issuing of Certificates of confidentiality as issued in the United States to protectsensitive information on research participants from forced disclosure. [81]

Additionally, it is imperative that frequent discussions, deliberations, conferences and roundtables take place involving multiple stakeholders form the healthcare sector, insurance companies, patient’s rights advocacy groups and the government. This would aid in evolving a comprehensive policy that would aid in the protection of privacy in the healthcare sector in an efficient and collusive manner.

Conclusions

The Right to Privacy has been embodied in a multitude of domestic legislations pertaining to the healthcare sector. The privacy principles envisioned in the A.P Shah Committee report have also been incorporated into the everyday practices of healthcare institutions to the greatest possible extent. There are however significant gaps in the policy formulation that essentially do not account for the data once it has been collected or its subsequent transfer. There is thus an imminent need for institutional collaboration in order to redress these gaps. Recommendations for the same have been made in the report. However, for an effective framework to be laid down there is still a need for the State to play an active role in enabling the engagement between different institutions both in the private and public domain across a multitude of sectors including insurance companies, online servers that are used to harbour a data base of patient records and civil action groups that demand patient privacy while at the same time seek to access records under the Right to Information Act. The collaborative efforts of these multiple stakeholders will ensure the creation of a strong foundational framework upon which the Right to Privacy can be efficiently constructed.

[1] . Report of the group of experts on Privacy chaired by Justice A.P Shah <http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf> [Accessed on 14^th May 2014]

[2] . Nissenbaum, H. (2004). Privacy as Contextual Integrity. Washington Law Review, 79(1), 101-139.

[3] . Ibid.

[4] . Thomas, J. (2009). Medical Records and Issues in Negligence, Indian Journal of Urology : IJU : Journal of the Urological Society of India, 25(3), 384-388. doi:10.4103/0970-1591.56208.

[5] . Ibid

[6] . Plaza, J., &Fischbach, R. (n.d.). Current Issues in Research Ethics : Privacy and Confidentiality. Retrieved December 5, 2011, from http://ccnmtl.columbia.edu/projects/cire/pac/foundation/index.html.

[7] . Ibid.

[8] . The Mental Health Act, 1987 <https://sadm.maharashtra.gov.in/sadm/GRs/Mental%20health%20act.pdf> [Accessed on 14^th May 2014]

[9] . The Mental Health Act, 1987, s. 13(1).

[10] .The Mental Health Act, 1987, s. 38.

[11] .The Mental Health Act, 1987, s. 40.

[12] .The Mental Health Act, 1987, s. 21(2).

[13] .The Mental Health Act, 1987, s. 13(1), Proviso.

[14] . Also see the: Pre-Conception and and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.

[15] . Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(3).

[16] . Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, s. 4(2). Pre-natal diagnostic techniques shall be conducted for the purposes of detection of: chromosomal abnormalities, genetic metabolic diseases, haemoglobinopathies, sex-linked genetic diseases, congenital anomalies any other abnormalities or diseases as may be specified by the Central Supervisory Board.

[17] .Medical Termination of Pregnancy Amendment Act, 2002, Notification on Medical Termination of Pregnancy (Amendment) Act, Medical Termination of Pregnancy Regulations, 2003 and Medical Termination of Pregnancy Rules, 2003.

[18] .Medical Termination of Pregnancy Act, 1971 (Amended in 2002), s. 2(4) and 4, and Medical Termination of Pregnancy Rules, 2003, Rule 8

[19] .Medical Termination of Pregnancy Regulations, 2003, Regulation 4(5).

[20] .Medical Termination of Pregnancy Regulations, 2003, Regulation 5.

[21] .Medical Termination of Pregnancy Regulations, 2003, Regulation 4(2).

[22] .Medical Termination of Pregnancy Regulations, 2003, Regulations 4(2) and 4(4).

[23] . Code of Ethics Regulations, 2002 available at

http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx .

[24] . Code of Ethics Regulations, 2002 Chapter 2, Section 2.2.

[25] .Ethical Guidelines for Biomedical Research on Human Subjects. (2006) Indian Council of Medical Research New Delhi.

[26] . Informed Consent Process, Ethical Guidelines for Biomedical ResearchonHuman Subjects (2006). Indian Council of Medical Research New Delhi.P. 21.

[27] . Statement of Specific Principles for Human Genetics Research, Ethical Guidelines for Biomedical ResearchonHuman Subjects (2000) . Indian Council of Medical Research New Delhi.P. 62.

[28] . General Ethical Issues. Ethical Guidelines for Biomedical ResearchonHuman Subjects (2006). Indian Council of Medical Research New Delhi.P. 29.

[29] . Statement of Specific Principles for Epidemiological Studies, Ethical Guidelines for Biomedical ResearchonHuman Subjects (2000) . Indian Council of Medical Research New Delhi P. 56.

[30] . Statement of General Principles, Principle IV and Essential Information on Confidentiality for Prospective Research Participants, Ethical Guidelines for Biomedical ResearchonHuman Subjects (2006). Indian Council of Medical Research New Delhi.P. 29.

[31] . The IRDA (Third Party Administrators - Health Services) Regulations 2001, (2001), Chapter 5. Section 2.

[32] . The IRDA (Sharing Of Database for Distribution of Insurance Products) Regulations 2010.

[33] . The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010.

[34] . The IRDA (Sharing Of Database For Distribution Of Insurance Products) Regulations 2010

[35] . List of TPAs Updated as on 19th December, 2011, Insurance Regulatory and Development Authority (2011), http://www.irda.gov.in/ADMINCMS/cms/NormalData_Layout.aspx?page=PageNo646 (last visited Dec 19, 2011).

[36] . The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011).

[37] . The IRDA, Guideline on Outsourcing of Activities by Insurance Companies, (2011), Section 9.11. P. 8.

[38] .The Epidemic Diseases Act, 1897.

[39] .The Epidemic Diseases Act, 1897. s. 2.1.

[40] .The Epidemic Diseases Act, 1897, s. 2.2(b).

[41] . The National Policy for Persons with Disabilities, 2006, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Rules, 1996.

[42] . Research, National Policy for Persons with Disabilities, 1993.

[43] . Survey of Disabled Persons in India. (December 2003) National Sample Survey Organization. Ministry of Statistics and Programme Implementation. Government of India.

[44] .Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act. 1995, Section 35.

[45]. Research. National Policy for Persons with Disabilities, 2003.

[46]. http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf

[47]. http://www.lawyerscollective.org/files/Anti%20rights%20practices%20in%20Targetted%20Interventions.pdf

[48]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.22.

[49]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.16.

[50]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.16.

[51]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.14.

[52]. http://www.hivaidsonline.in/index.php/HIV-Human-Rights/legal-issues-that-arise-in-the-hiv-context.html

[53]. Chakrapani et al, (2008) ‘HIV Testing Barriers and Facilitators among Populations at-risk in Chennai, India’, INP, p 12.

[54]. Aneka, Karnataka Sexual Minorities Forum. (2011)“Chasing Numbers, Betraying People: Relooking at HIV Services in Karnataka”, p.24.

[55] .http://www.indiankanoon.org/doc/570038/

[56] .http://www.indiankanoon.org/doc/570038/

[57] .http://www.indiankanoon.org/doc/680703/

[58] . No person accused of any offence shall be compelled to be a witness against himself’, (the 'right to silence').

[59] . http://indiankanoon.org/doc/338008/

[60] . http://www.hrdc.net/sahrdc/hrfeatures/HRF205.pdf

[61] . AIR 1992 SC 392.

[62] . 96 (2002) DLT 354.

[63] .AIR 2000 A.P 156.

[64] .http://indiankanoon.org/doc/382721/

[65] .http://indiankanoon.org/doc/859256/

[66] .See Sections 24, 37, 38 and 39 of The Prisons Act, 1894 (Central Act 9 of 1894) Rules 583 to 653 (Chapter XXXV) and Rules 1007 to 1014 (Chapter LVII) of Andhra Pradesh Prisons Rules, 1979

[67] .Section 10-A,17(4) ,19(2) Immoral Traffic (Prevention) Act 1956

[68] .http://www.indiankanoon.org/doc/1309207/

[69] . http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf

[70] . Article 33, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on the protection of individuals with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) < http://ec.europa.eu/justice/data-protection/document/review2012/com_2012_11_en.pdf> [Accessed on 14^th May, 2014]

[71] .Article 4 (Definition of “Data Subject’s Consent”), Article 7, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

[72] . Article 17, “Safeguarding Privacy in a Connected World – A European Data Protection Framework for the 21st

Century” COM(2012) 9 final. Based on, Article 12(b), EU Directive 95/46/EC – The Data Protection Directive at <http://www.dataprotection.ie/docs/EU-Directive-95-46-EC-Chapter-2/93.htm> [Accessed on 14^th May, 2014]

[73] . Article 81, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

[74] .Article 83, Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

[75] . Health Maintainence and Organization Act 1973, Notes and Brief Reports available at http://www.ssa.gov/policy/docs/ssb/v37n3/v37n3p35.pdf [Accessed on 14th May 2014].

[76] . Health Insurance Portability and Accountability Act, 1996 available at http://www.hhs.gov/ocr/privacy/hipaa/administrative/statute/hipaastatutepdf.pdf [Accessed on 14th May 2014]

[77] . Illinois Alliance for Health Innovation plan available at http://www2.illinois.gov/gov/healthcarereform/Documents/Alliance/Alliance%20011614.pdf [Accessed on 14^th May 2014]

[78] . The Privacy Act 1988 available at http://www.comlaw.gov.au/Series/C2004A03712 [Accessed on 14th May 2014]

[79] . Schedule 1, Privacy Act 1988 [Accessed on 14^th May 2014]

[80] .Section 27(e), Privacy Act 1988 [Accessed on 14^th May 2014]

[81] . Guidance on Certificates of Confidentiality, Office of Human Research Protections, U.S Department of Health and Human Services available at http://www.hhs.gov/ohrp/policy/certconf.pdf [Accessed on 14^th May, 2014].

For more details visit https://cis-india.org/internet-governance/blog/privacy-in-healthcare-policy-guide

Grounds for Compulsory Patent Licensing in United States, Canada, China, and India

maggie — 2014-07-29T08:45:25Z

The research paper seeks to answer questions about the grounds of compulsory licensing in international treaties with specific examples from America and Asia. The grounds for granting compulsory licenses, jurisdictional comparison of compulsory licensing, etc., are examined.

Holding ownership to a patented invention means one has certain exclusive rights: a) the right to decide who may use the invention during the time of protection; b) the right to give licenses to other parties to use the invention on mutually agreed terms; and, c) the right to sell and transfer ownership of the patent to someone else[1]. Once this patent expires, the invention would enter the public domain to be shared freely[2].

However, given certain conditions, a compulsory license can be granted, in which “authorization [is] given by national authority to a person without or against the consent of the titleholder, for the exploitation of a subject matter protected by a patent or other intellectual property rights” [3].

Compulsory licensing has been most contentiously applied for patented pharmaceutical companies who are often looking to recoup research and development costs. Proponents of this instrument are now also growing amongst advocates for climate change mitigation technologies [4]. The Pervasive Technologies: Access to Knowledge in the Marketplace project is broadly assessing access to knowledge through sub-100 dollar devices. The accessibility of these critical technologies, and subsequent access to knowledge, information, and culture through these devices may be implicated by this policy lever[5]

Thus, this paper seeks to answer the following questions:

What are the grounds for compulsory licensing set in international treaties?
How does Canada, United States (i.e. North America), India, and China (i.e. Asia) provide for compulsory licensing within its national laws?

This will be done through first providing an overview of the relevant international treaties to understand the compulsory licensing framework which signatory nations must follow. Then, utilizing Correa (1999)'s study as a foundation, an analysis of the text within the four aforementioned's codified laws will be assessed to understand all the possible grounds compulsory licensing can be provided. This paper will conclude by summarizing any significant distinctions across the four jurisdictions.

Compulsory Patent Licensing in International Law and Regional Trade Agreements
Paris Convention for the Protection of Industrial Property (1883) [6]
Article 5(2) of the Paris Convention provides each country with the right to "grant compulsory licenses to prevent abuses which might result form the exercise of exclusive rights conferred by the patent… " United States, Canada, China, and India are four of the 175 contracting parties to this convention [7]. This can only be done after 4 years of applying for the patent, or 3 years from the date in which the patent was granted. This means, a sufficient amount of time must have elapsed to allow the rights holder to exploit the invention.

North American Free Trade Agreement (1994)[8]
Article 1704 in NAFTA provides that "appropriate measures" can be taken to control abusive or anticompetitive practices. The United States and Canada have utilized this ground of anti-competition to grant numerous compulsory licenses.

Article 1709 notes that there must not be a discrimination of technology – patents may only be revoked when the grant has not remedied lack of exploitation, and that the use of the patent adheres to certain criteria.

In 1993, Canada repealed the compulsory licensing regulations from its Patent Law to comply with the international TRIPS and NAFTA treaties.

Trade Related Aspects of Intellectual Property Rights (1994) [9]
All members of the World Trade Organization is provided the right to use compulsory licenses via Article 31 Other Use Without Authorization of the Right Holder within the Trade Related Aspects of Intellectual Property Rights (TRIPs) agreement. This Article stipulates 12 procedural provisions: compulsory licensing should be granted on 'individual merits'[10], must have shown prior effort to obtain authorization under reasonable commercial terms [11], must be non-exclusive[12], adequate renumeration must be provided[13], and the license must be terminated as soon as the circumstances for which it was granted cease to exist[14].

Suggested, but not obligatory grounds for which compulsory licensing could be granted under the TRIPs agreement are a) emergency and extreme urgency, b) anticompetitive practices, c) public non-commercial use, and the d) use of dependent patents[15].

Doha Declaration on the TRIPS Agreement and Public Health (2001)
The Doha Declaration is a clarification of the earlier TRIPS agreement in response to some countries' public health concerns due to obstacles to accessing patented medicines.[16]

Paragraph 4 of the Doha Declaration expressly allows Members to take measures to protect public health, while paragraph 5b states that "each Member has the right to grant compulsory licenses and the freedom to determine the grounds upon which such licenses are granted". Freedom of each country to define the terms of their intellectual property rights is also further reiterated.

Grounds for granting compulsory licenses
Correa (1999) in his paper Intellectual Property Rights and the Use of Compulsory License: Options for Developing Countries outlines eight common grounds which provided the framework for this comparative analysis between the jurisdictions of the United States, Canada, India, and China. Through analyzing the codified law on compulsory licensing, a few other grounds were added to the list.

Refusal to deal
In principle, the patent owner has an exclusive right to determine whether or not to issue a license to a third party. However, if under reasonable terms, one still refuses to issue a license, national courts may interpret this as an abuse of patent rights, resulting in lack of availability of the product and commercial development. In the United States, this is often raised as an anticompetitive issue.

Non-working and inadequate supply
The "working obligation" was initially understood as the industrial use of an invention, which according to Article 31 of the TRIPs Agreement required working 'predominantly' for local markets. However, many countries have defined 'working' to include commercial use of the invention, in which importation of a product would suffice[17].

Public interest
The public interest needs to be balanced with individuals' rights, and it is the responsibility of the courts or administration in each respective country to determine this. Thus, what actually constitutes as "public interest" varies depending on time and jurisdiction. For example, countries with limited industrial development could consider a compulsory patent to develop its national industries as for public interest [18]. Accessibility of a product at the lowest price have been argued to be in public interest, but some courts have ruled this to be invalid[19]

Anticompetitive practices
A patent is essentially a temporary monopoly meant to provide an economic reward for the inventor's work, as well as additional incentive to continue producing[20]. However, excessive monopolization through unlawful or unfair practices, such as when a patent is overly broad, acquiring and accumulating patent portfolios, and subsequent patent trolling are some acts that be considered anticompetitive patent practices[21]. Compulsory licenses have also been granted through this ground under anti-monopoly, antitrust, and competition laws.

Governmental use
Each country's government decides what is to be considered as governmental use. Occasionally synonymous to government use has also been public, non-commercial use, or as suggested by the TRIPs agreement, for the purposes of national emergency or urgency. This is assuming the government is acting on behalf of public interest; given its lack of an international standardized definition, this ground can be utilized and interpreted in other ways.

Facilitate use of dependent patents
When a new invention (dependent invention) cannot be developed without infringing on the license of an existing patented invention, (principle invention) a compulsory licensing can be granted to facilitate innovation. This ensures the patents of principle inventions would not block technical progress. The TRIPs agreement expressly allows this, provided reasonable compensation is articulated. In some jurisdictions, cross-licensing, (which involves a licensing agreement between two parties to exploit each other's intellectual property[22]) can be negotiated to resolve this issue.

Compulsory licenses for medicines
Numerous countries have issued licenses for increased accessibility to food and medicine. Prior to the Doha Round, TRIPs prohibited this, as Article 27 states "national laws cannot discriminate in exercise of patent rights on the basis of field of technology". However, the Doha Declaration addressed this, allowing pharmaceuticals to have increased accessibility (via pricing, production, and importation) for the sake of public health.

Exclusive Grant Back or Coercive Package Licensing
A grant back can be agreed upon when there is an expectation of an improvement on the licensed technology through increased superiority or method [23]. This allows the licensee to commercialize an improved product without having to file for another patent[24]. Exclusive grant back provides the licensor the exclusive right to use or sublicense improvements, while licensee retains non-exclusive right to practice the improvements.[25] Grant-backs, particularly exclusive ones are sometimes deemed as anticompetitive.

A package license, otherwise known as patent pools is used when the licensing of more than one patent is necessary to commercialize an invention [26] Coercive package licensing can occur when the licensing of other patents within the package is forceful and unnecessary. The defining and interpretation of 'coercion' ultimately depends on each country's respective authorities.

Hindrance from Importation of Abroad[27]
This ground may fall under non-working, but is unique in that it notes a state's ability to grant compulsory license on behalf of a foreign-owned patent. Yang (2012) cites that this as one of the most controversial aspects of compulsory patent licensing, as countries may feel undermined when another state can grant compulsory licenses that are against their own interests[28].

Jurisdictional comparison of Compulsory Licensing
The following table was developed as an exercise to review compulsory licensing within the jurisdictions of the United States, Canada, India, and China. Utilizing Correa (1999)'s findings as a skeletal framework, the four aforementioned countries' codified patent laws were used to determine the grounds for compulsory licensing. The main compairson was done through analyzing the specific text within the laws of the four jurisdiction – one approach to treaty and law interpretation[29] However, for those countries that were lacking general provisions on compulsory licensing (i.e. United States, and eventually Canada in 1993[30]), there was a need to expand to a more comprehensive approach and look through other codified laws beyond patents and intellectual property, as well as through case law to see if the mentioned grounds have been used to provide for compulsory licenses[31].

Grounds		Countries	Law
Refusal to deal and/or abuses of patentees' exclusive rights		U.S	n/a in codified law…refusal to deal is an essential element of intellectual property rights…but can lead to anti-competition in which Antitrust laws can be used
		Canada	Patent Law - Abuse of Rights 65.2(d): "if by reason of refusal of patentee to grant* a license or licenses on reasonable terms…*
		India	Patent Act 1970 S.4(d) *"Refusal to deal"* includes any agreement which restricts, or is likely to restrict, by any method the persons or classes of persons to whom goods are sold or from whom goods are bought Patent Act, 1970 S. 84.7(a) " If by reason of refusal…ii) demand for the patented article has not been met to an adequate extent or on reasonable terms; or iii) a market for the patented article manufactured in India is not being supplied or developed; or iv) the establishment or development of commercial activities in India is not prejudiced Patent Act 1970 S.84 (6) " …Controller shall take into account, - i) nature of invention, the time which has elapsed since the sealing of the patent and the measures already taken by the patentee or any licensee to make full use of the invention; iv) ..whether applicant has made efforts to obtain a license from the patentee on reasonable terms conditions, and such efforts have not been successful within a reasonable period *period not ordinarily exceeding a period of six months* as the Controller may deem fit
		China	Patent Law of the People's Republic of China - Article 48 (1): " When it has been 3 years since the date the patent right is granted, and four years since the date the patent application is submitted, the patentee, without legitimate reasons, fails to have the patent exploited or fully exploited"
Non-working and inadequate supply		U.S.	n/a
		Canada	Patent Act 1935: s.65 a): "… is capable of being worked within Canada but is not being worked within Canada on a commercial scale, and no satisfactory reason can be given for that non-working…" REPEALED in 1993 due to NAFTA and TRIPS
		India	Patents Act, 1970 S. 84 (1): " At any time after expiration of 3 years from the date of the grant of a patent, any person interested may make an application… b)…not available to the public at a reasonably affordable price, or c) that the patented invention is not available to the public at a reasonably affordable price Patent Act 1970 S.84(2): "…reasonable requirements of the public.. not satisfied or that the patented invention is not worked in the territory of India, Patent Act, 1970 S. 84.7(a) "If by reason of refusal…ii) demand for the patented article has not been met to an adequate extent or on reasonable terms; or iii) a market for the patented article manufactured in India is not being supplied or developed; or iv) the establishment or development of commercial activities in India is not prejudiced Patent Act, 1970 S. 84.7(d): " If the patented invention is not being worked in the territory of India on a commercial scale to an adequate extent, or is not being so worked to the fullest extent that is reasonably practicable
		China	Measures for Compulsory licensing of Patent Implementation (2012) - Ch 2 Art. 5: "If without good reason not implemented or fully implemented, their licensing patent within 3 years from the date of grant of patent right..and 4 years from the date of filing patent"
Public interest:		U.S.	"...no general provision allowing authorities to override patents in the larger public interest” [32] Bayh-Dole Act of 1980 - allow government to exercise "march in" rights with regard to government funded research results that universities might otherwise patent But US has granted compulsory licenses when felt public interest was at stake (Atomic Energy Act and Clean Air Act 1970, Federal Non-Nuclear Energy Research and Development Act 1973)
Canada	Patent Law - Abuse of Rights 65.2(d): "if by reason of refusal of patentee to grant a license or licenses on reasonable terms… in public interest that license/licenses should be granted" Patent Act S. 39. (3) License under patent relating to food: " In the case of any patent…of food…shall grant to any person applying…Commissioner shall have regard to the desirability of making the food available to the public at the lowest possible price consistent with giving to the inventor due reward for the research leading to the invention" REPEALED in 1993 due to NAFTA and TRIPS
India	Patent Act 1970, S. 84 (2)…not available to the public at a reasonably affordable price Patent Act 1970 S. 84 (6) " …Controller shall take into account, ii) the ability of the applicant to work the invention to the public advantage Patent Act, 1970 - S. 92 Special provision for compulsory licenses on notifications by Central Government-(1): " If Central Government is satisfied… circumstances of national emergency or in circumstances of extreme urgency, or in case of public non commercial use...
China	Patent Law - Article 49: " Where a national emergency or any extraordinary state of affairs occurs, or public interests so require…" Measures for Compulsory Licensing of Patent Implementation - Article 6: If emergency or irregular event of the state…or for purposes of public interest
Anti-competitive practices		U.S.	Antitrust & Trade Law: Sherman Act 15 U.S. C.S. 2 - Monopolizing trade a felony; penalty: " Every person who shall monopolize, or attempt to monopolize…any part of trade or commerce among several States, or with foreign nations…deemed guilty of a felony, and conviction.."
		Canada	Competition Act (S. 32 RSC 1985): " …where use has been made of exclusive rights and privileges conferred by one or more patents for invention…(a) limit unduly the facilities for transporting, producing, manufacturing, supplying…may be a subject of trade or commerce, (b) restrain or injure, unduly, trade or commerce…(c) prevent, limit, or lessen, unduly, the manufacture or production…or unreasonably enhance the price thereof, or (d) prevent or lessen, unduly, competition in…
India	India Patent Law Chapter 90 (1.ix) Terms and Conditions of compulsory licenses… granted to remedy a practice determined after judicial or administrative process to be anticompetitive…
China	Measures for Compulsory Licensing of Patent Implementation, 2012 - Article 11: " …that actions of patent holder in exercising patent right…deemed to be monopolistic actions" Patent Law of the People's Republic of China - Article 48 (2): " …patentee's exercise of the patent right is in accordance with law, confirmed as monopoly and its negative impact on competition needs to be eliminated or reduced"
Governmental use		United States	28 United States Code 1498: " …when used or manufactured by or for the United States without license of the owner…remedy shall be..Claims for recovery of his reasonable and entire compensation for such use and manufacture…" ie. Government does not have to seek license or negotiate for use, and the only appeal for patent owner is compensation
		Canada	Under the 1993 and 1994 amendments to the Patent Act of 1985, section 19.1: "the Commissioner may, on application by the Government of Canada or the government of a province, authorize the use of a patented invention by that government ."
		India	Patent Act, 1970 - S. 100 Power of Central Government to use inventions for purposes of Government (1): "…at any time…the Central Government and any person authorized in writing… may use the invention for the purposes of Government in accordance with provisions of this chapter" Patent Act, 1970 S. 100 Power of Central Government to use inventions for purposes of Government (2): " Where an invention has, before priority date of relevant claim, been duly recorded in a document, or tested or tried, by or on behalf of the Government or Government undertaking… any use of the invention by the Central Government or any person authorized in writing by it for the purposes of Government may be made free of any royalty or other renumeration to the patentee " Patent Act, 1970 S. 100 Power of Central Government to use inventions for purposes of Government (6): " The right to make, use, exercise, and vend an invention for the purposes of Government under sub-section (1) shall include the right to sell on noncommercial basis, and person c laiming through..as if Central Government or authorized were the patentee of the invention
China	Patent Law of PRC Art. 14: "If an invention patent of a State-owned enterprise or institution is of great significance to national or public interests, upon approval by State Council.. Patent Law PRC Article 49: " Where a national emergency or any extraordinary state of affairs occurs…patent administration department under the State council may grant a compulsory license for exploitation of an inanition patent or utility model patent" Patent Law PRC Article 14: “ If an invention patent of a State-owned enterprise or institution is o f great significance to national or public interests, upon approval by the State Council, the relevant competent department under the State Council ...may decide to have the patent widely applied within an approved scope and allow the designated units to exploit the patent, and the said units shall pay royalties to the patentee in accordance with the regulations of the State.
Facilitate use of dependent patents		United States	N/A - U.S. Does has not formally codified a general provision for Compulsory licensing of Dependent Patents [33]
		Canada	N/A
		India	Patent Act 1970 - Section 88 Power of Controller in Granting Compulsory licenses (3): …if Controller satisfied that the applicant cannot efficiently or satisfactorily work the license granted to him under those patents without infringing the other patents held by the patentee, and if those patents involve important technical advancement of considerable economic significance …may direct grant of a license…
		China	Patent Law - Ch 6 Art 51: " If an invention/utility model…represents major technological advancement of remarkable economic significance, compared with an earlier invention or utility model for which the patent right has already been obtained, and exploitation of former relies on exploitation of latter…may grant it a compulsory license to exploit..."
Compulsory licenses for medicines		United States	N/A but has threatened Bayer for compulsory licensing of Ciproflaxin medicine who subsequently dropped their prices drastically [34]
		Canada	Bill C-9 Amendment to Food and Drugs Act, 2004: "…pharmaceutical products intended for export in accordance with that WTO General Council decision…to comply with…sold on domestic market" Patent Act (4) License under patent relating to medicine - " ..intended or capable of being used for the preparation of production of medicine…Commissioner shall grant.. REPEALED in 1993 due to NAFTA and TRIPS
India	Patent Act 1970 Section 92.A Compulsory license for export of patent pharmaceutical products in certain exceptional circumstances: " …shall be available for manufacture and export of patented pharmaceutical products [35] to any country having insufficient or no manufacturing capacity in the pharmaceutical sector for the concerned product to address public health problems…" Patent Act, 1970 Section 83.(d): "General principles applicable to working of patented inventions… do not impede protection of public health and nutrition…
China	Patent Law of PRC: Article 50: " For the benefit of public health…grant compulsory license for manufacture of the drug, for which a patent right has been obtained, and for its export to the countries or regions that conform to the provisions…" Measures for Compulsory Licensing of Patent Implementation, 2012 - Ch 2 Art 7: " For purposes of public health…able to implement petition for compulsory licensing…for manufacture of patented medicines..and export of, to following countries/regions: 1) The most underdeveloped countries/regions; 2) Developed/developing members of the WTO
Exclusive grant-back and Coercive package licensing		U.S.	Legal in the past – granted in Transparent Wrap Machine Corp v Stokes & Smith Co. but discouraged... interpreted by Rule of Reason doctrine which is an interpretation of Sherman Antitrust (Anti-competition) Act[36] Now Department Of Justice from 2007 has said must be non-exclusive under its Antitrust laws [37]
		Canada	N/A
		India	Patent Act, 1970 Section 84 (7.c): …Reasonable requirements of the public shall be deemed not to have been satisfied [38] - c) if the patentee imposes a condition upon the grant of license under the patent to provide exclusive grant back, prevention to challenges to validity of patent, or coercive package licensing
		China	N/A
Hindered by importation from abroad		U.S.	N/A
		Canada	N/A
		India	Patent Act, 1970 Section 84 (7.e): " if the working of the patented invention in the territory of India on a commercial scale is being prevented or hindered by the importation from abroad of the patented article by…i) patentee..ii) persons purchasing…iii) other persons not taking proceedings for infringement
China	N/A

Summary of Cross-Jurisdictional Comparison
As mentioned previously, this comparison necessitated an expansion into codified law outside of compulsory licensing and patent law into case law, since the United States had never written a general provision for compulsory licensing, and Canada had repealed theirs in 1993 upon the signing of the NAFTA and TRIPS agreement. For Canada, compulsory licenses (CLs) continued to be granted following the repeal through the Foods and Drugs Act, as well as the Competition Act. Despite United States' lack of general provisions, Knowledge Ecology International claims it is the world's leader in the use of CLs, yet hypocritical to developing countries' requests for affordable patented pharmaceuticals.[39]

In general, India and China both have very extensive compulsory licensing laws. China's State Intellectual Property Office even developed additional Measures to account for the execution of compulsory licensing. Despite comprehensive CL provisions, India has had only one compulsory license ever granted in the case of Natco Pharma Ltd v. Bayer Corporation, for the domestic production of cancer-drug Nexavar. [40] China has yet to grant any compulsory license, but the new Measures may signify an increasing willingness to do so, or even to be used as a bargaining tool. However, given its goal of developing domestic intellectual property (i.e. China's 5-year plan), it is unlikely that China will grant compulsory licenses in the masses.[41]

In regards to the specific grounds themselves, some grounds noted particular differences per country.

Under U.S. Intellectual Property Law, refusal to deal is actually is considered a right, thus does not provide for compulsory licensing; depending on the degree however, it could lead to anti-competition[42]. According to the Paris Convention, one can only request consideration for a CLs 3 years from the granting of a patent, or 4 years from application, allowing said time for provision of dealing. However, India seems to have a more stringent period of not exceeding a period of six months, while China noted specifically not 'without legitimate reasons'.

The non-working and inadequate supply was again not present in U.S. Law, yet Canada did include it in its former compulsory licensing provision prior to repeal. Canada had defined 'working' specifically referring to a commercial scale when compulsory licensing was in effect. India's 'working' means being available at a reasonably affordable price, and supplied or developed, through the establishment of commercial activities, worked to the fullest extent that is fully practicable, while China mentioned non-working 'if without good reason, it is not implemented or fully implemented'.

The United States does not have any provision providing explicitly for public interest. However, under the Bayh-Dole Act, government-funding for research during the economic crisis in the 1970s was granted as long as the inventors agreed to allow petition for 'march-in rights', in which the government or a third party “shall have the right...to require the contractor...to grant a nonexclusive, partially exclusive, or exclusive license” (35 U.S. Code S203(a)) if it meets one of four requirements - one being to “...alleviate health and safety needs which are not reasonably satisfied...” (35 U.S. Code Section 203). Canada's public interest clause had existed, but was repealed. India now states that CLs can be granted to make available to the public “at a reasonably affordable price, to public advantage, and for public non-commercial use”. In China, public interest is provided in conditions of 'national emergency or extraordinary state of affairs, for the purpose of public interest'.

The United States does however strongly uphold and value competition, and have granted CLs to remedy anticompetitive practices under its Antitrust laws, prohibiting any 'attempt to monopolize any part of trade or commerce'. China also uses the language of 'monopolistic actions' and allows compulsory licensing if its “negative impact on competition needs to be eliminated or reduced.” Canada's Competition Act allows for compulsory licensing if one 'limits unduly, the facilities for transporting, producing, manufacturing... restrain or injure unduly, trade or commercial etc..' .preventing fair competition. India also notes the remedying of anticompetitive acts in its patent laws.

Governmental use in the United States have been granted for use by the Department of Defense and as mentioned previously for the Bayh-Dole Act. However, unlike the other countries of focus, there is no way to appeal a CL for the purposes of government-use. The only way to remedy this as a patent owner is compensation. In Canada, the Commissioner may on application by the Government of Canada or province authorize a CL. Indian patent law also allows CLs for the purposes of the Government, with the explicit possibility of being made free of any royalty or renumeration. It also expressly notes within S103 that one can petition to the Government if this occurs. The Chinese Patent Law notes governmental use through the language of 'great significance to national or public interests', and 'national emergency or extraordinary state of affairs. The possibility of appeal is also expressly noted in Article 58.

Neither United States or Canada have formally codified any mention of compulsory licensing for the use of dependent patents, though it does exist in the TRIPs agreement they both comply to. In India patent law, CLs is granted through this ground “only if it involves important technical advancement of considerable economic significance, and... only if it cannot be accomplished without infringing other patents.” In China, the law states that if an “invention/utility model represents major technological advancement...compared with earlier invention or utility model...and the exploitation of former relies on exploitation of the latter...”, a compulsory license may be granted.

Compulsory licensing for medicine in the United States again have never been codified, but have been used to encourage Bayer to reduce their prices under the possibility of being issued compulsory liceninsg. Home to many of the pharmaceutical industries who own patents to medicines, the United States has been called hypocritical due to its common lack of providing affordable pharmaceuticals. Canada allows for CLs under the Food and Drugs Act which points to the World Trade Organization guidelines. Prior to the repeal of its compulsory licensing act, Canada also had specific provisions relating to medicines, and was actually the first country to authorize the compulsory licensing of an AIDS drug for Rwanda for export.[43] In India, the only compulsory license that has ever been granted was for cancer drug Nexavar. In its compulsory licensing provision, it states that CLs are “available for manufacture and export of patented pharmaceutical products...to any country having insufficient or no manufacturing” abilities. Similar to the TRIPs agreement, it also states that none of the principles should impede the protection of public health and nutrition. China's patent laws state that CLs can be used for the benefit of public health. The Measures for Implementation specifies more specifically which countries and regions are allowed, which includes WTO members, or the 'underdeveloped' nations.

Only in the Indian Patent Law does it explicitly allow for CL in the event of exclusive grant backs due to anti-competition and/or not being reasonable to the public. On the contrary, the United States actually had allowed exclusive grant back in the Transparent Wrap Machine Corp v Stokes & Smith Co. case[44]. However, the FTC now strongly recommends against it as it is considered anticompetitive when a grant-back is exclusive[45]. Canada and China does not seem to have this condition in their laws.

Similarly, only in the Indian patent law does coercive package licensing provide for compulsory licensing. This clause may have implications on standard-essential patent pools when attempting to determine which patents are indeed 'essential', and if they comply with fair, reasonable, and non discriminatory regulations[46].

Indian Patent Law also expressly allows for compulsory licensing on the ground that a product is hindered by importation from abroad. It must be proven the lack of accessibility is soley due to the process of it being imported, perhaps affected by natural disasters, socioeconomic reasons, political instability, sanctions, or more – ultimately affecting the cost and availability of this product. [47]

Conclusion and Further Reflections on Compulsory Licensing
Ultimately, there seems to be no correlation between the detail and scope of compulsory licensing (and other codified) law, and the number of compulsory licenses granted. However, it must be noted that the Eastern countries of focus in this review have had much less time developing its intellectual property landscape. In addition, the comprehensiveness of India and China's patent laws also reflect the incorporation of valuable lessons learned from poor implementation of other countries.

The prevalence of broadly defined patents, patent trolling, and the increasing need to navigate patent thickets all act as barriers to innovation and production to a commercial scale in which these technologies can actually be disseminated. The Pervasive Technologies project looks ultimately at bridging the digital divide through providing access to low-cost technology, and subsequently access to information, culture, and knowledge.

Compulsory licenses can be used to decrease the cost burden of production, and reduce barriers to innovation, ultimately providing greater accessibility to these tools for all of society. The Centre for Internet and Society has proposed and continues to advocate the establishment of patent pools for low-access devices through the use of compulsory licenses to achieve this goal[48].

[1] WIPO. What Is Intellectual Property. World Intellectual Property Organization, 2012. Print. 5

[2] WIPO, 6

[3] Correa, Carlos M. “Intellectual Property Rights and the.” Trade Related Agenda Development and Equity (1999): 3

[4] Contreras, Jorge L., and Charles R. McManis. “Compulsory Licensing of Intellectual Property: A Viable Policy Lever for Promoting Access to Critical Technologies?” TRIPS and Developing Countries – Towards a New World Order? (Gustavo Ghidini, Rudolph J.R. Peritz & Marco Ricolfi, eds., 2014 (Edward Elgar)) (2014): 112 Print.

[5] Abraham, Sunil. Letter for Establishment of Patent Pool for Low-Cost Access Devices through Compulsory Licenses. 27 June 2013. Accessed: http://cis-india.org/a2k/blog/letter-for-establishment-of-patent-pool-for-low-cost-access-devices

[6] The Paris Convention is an intellectual property treaty covering industrial property: patents, trademarks, industrial designs, utility models, service marks, trade names, and geographical indicators.

WIPO. “Summary of the Paris Convention for the Protection of Industrial Property (1883).” World Intellectual Property Organization. Website. http://www.wipo.int/treaties/en/ip/paris/summary_paris.html

[7] WIPO. “WIPO-Administered Treaties: Contracting Parties.” World Intellectual Property Organization. Website. http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=2

[8] The North American Free Trade Agreement (NAFTA) is the largest free trade agreement in the world, with members Canada, United States, and Mexico.
USTR. “North American Free Trade Agreement (NAFTA).” Office of the United States Representative. Website. http://www.ustr.gov/trade-agreements/free-trade-agreements/north-american-free-trade-agreement-nafta

[9] The Trade Related Aspects of Intellectual Property RIghts (TRIPS) agreement is a treaty which provides basic intellectual property provisions for international law, and stipulates that members shall be free to determine methods of implementing the provisions, in addition to enact more specific measures provided it coincides with the rest of the agreement.
World Trade Organization. “Agreement on Trade Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods.”WTO Legal Texts - A Summary of the Final Act of the Uruguay Round. Website. http://www.wto.org/english/docs_e/legal_e/ursum_e.htm#nAgreement

[10] TRIPS - Article 31.a)

[11] TRIPS - Article 31.b)

[12] TRIPS - Article 31.b)

[13] TRIPS – Article 31.h)

[14] TRIPS – Article 31.c)

[15] TRIPS – Article 31

[16] fWHO. “The Doha Declaration on the TRIPs Agreement and Public Health.” World Health Organization. http://www.who.int/medicines/areas/policy/doha_declaration/en/

[17] Correa, 11-12.

[18] Fauver, Cole M. “Compulsory Patent Licensing in the United States: An Idea Whose Time Has Come.” Northwestern Journal of International Law and Business 8.3 (1988): 666–685. Print. p671

[19] Correa, 13

[20] Ferrell, John. Patent Pro Se: The Entrepreneur’s Guide to Provisional Patent Applications. BayWater Publishing, 2010. Print.

[21] Milchenko, Oleg. “Contemporary Anti-Competetive Practices of Patents Usage.” Journal of International Commercial Law and Technology 8.3 (2013): 1-13. Print.

[22] Shapiro, Carl. “Navigating the Patent Thicket: Cross Licneses, Patent Pools, and Standard Setting.” Innovation Policy and the Economy 1 (2001): 119–150. Print.

[23] McGurk, Thomas B. “The Grant-Back Clause in Your Technology License.” Biodiesel Magazine 17 Jan. 2013.

[24] Origin IP Academy. “Exclusive Grant Back License.” Origiin IP Academy 15 Nov. 2009. Blog. Accessed: http://origiinipae.blogspot.in/2009/11/exclusive-grant-back-license.html

[25] Dykeman, David J. “When Licensing out Patents, Make Sure Improvements Are Granted Back.” Boston Business Journal 8 Mar. 2006. Blog retrieved from: http://www.bizjournals.com/boston/blog/mass-high-tech/2006/03/when-licensing-out-patents-make-sure.html?page=all

[26] Origiin IP Academy. “Coercive Package Licensing.” Origiin IP Academy 11 Nov. 2009. Accessed: http://origiinipae.blogspot.in/2009/11/coercive-package-licensing.html

[27] Reddy, Prashant. “‘Working’ a Patent under the Indian Patent Act, 970 - Does Importation of a Patented Invention Count?” Spicy IP - Decoding Indian Intellectual Property Law. 22 Apr. 2010. Retrieved: http://spicyip.com/2010/04/working-patent-under-indian-patent-act.html

[28] Yang, Deli. “Compulsory Licesning: For Better or for Worse, the Done Deal Lies in the Balance.” Journal of Intellectual Property Rights 17 (2012): 76–81; p80 Print. Global IP Debates

[29] Shaw, Malcom N. International Law 7th Edition. 5th ed. Cambridge University Press, 2003. Print.

[30] Canada had repealed its section on Compulsory Licensing in order to comply with the TRIPS and NAFTA agreements

[31] A more comprehensive approach could be to assess broadly ALL the compulsory licensing cases rather than just a select few ….particularly for United States and Canada...

[32] http://www.aals.org/documents/2006intprop/JeromeReichmanOutline.pdf

[33] Reichman, Jerome. “Compulsory Licensing of Patented Inventions: Comparing United States Law and Practice with Options under the TRIPS Agreement.” Vancouver, Canada: Duke University School of Law, 2006.

[34] Reichman, Jerome H. “Comment: Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options.” The Journal of Law, Medicine, and Ethics 37.2 (2009): 247–263. Print.

[35] Pharmaceutical products' means any patented product, or product manufactured through a patented process, of the pharmaceutical sector needed to address public health problems and shall be inclusive of ingredients necessary for their manufacture and diagnostic kits required for their use"

[36] Dratler, Jay. Licensing of Intellectual Property. New York: Law Journal Press, 2005: 7.89 Print.

[37] Miller, Mark E., and David S. Almeling. “DOJ, FTC Redefine Antitrust Rules on Patent Pools.” National Law Journal. 29 Oct. 2007.

[38] Therefore compulsory licensing can be granted given Controller agrees

[39] Raja, Kanaga. “US Leads the World in Use of Compulsory Licenses, Says KEI.” Third World Network. N.p., 18 Mar. 2014.

[40] Bakhru, Rachna. “India Grants First Compulsory Licence under Patents Act.” Intellectual Property Magazine June 2012: 46–47. Print.

[41] Miller Canfield. “China Allows Compulsory Licensing.” Law FIrm of Miller Canfield. Dec. 2012. Retreived: http://www.millercanfield.com/resources-321.html

[42] Genevaz, Simon. “Against Immunity for Unilateral Refusal to Deal in Intellectual Property: Why Antitrust Law Should Not Distingusih between IP and Other Property Rights.” Berkeley Technology Law Journal 19.2 (2014): 742–784. Print.

[43] World Trade Organization. “Canada Is First to Notify Compulsory License to Export Generic Drug.” WTO | 2007 News Items. N.p., 4 Oct. 2007.

[44] sSchmalbeck, Richard L. “The Validity of Grant-Back Clauses in Patent Licensing Agreements.” University of Chicago Law Review 42 (1975): 733–748.

[45] Miller & Ameling, 2007: 3

[46] Lerner, Josh, and Jean Tirole. “Standard-Essential Patents.” Working Paper 43.

[47] Reddy, 2010

[48] See Executive Director of CIS' letter to the government here: http://cis-india.org/a2k/blog/letter-for-establishment-of-patent-pool-for-low-cost-access-devices

For more details visit https://cis-india.org/a2k/blogs/grounds-for-compulsory-patent-licensing-in-us-canada-china-and-india

University of Mysore Re-releases Kannada Vishwakosha (Encyclopaedia) under Creative Commons Free License

pavanaja — 2014-07-24T07:03:45Z

The University of Mysore and the Centre for Internet and Society co-organized the Open Knowledge Day in Mysore on July 15, 2014. On this occasion Mysore University released six volumes of Kannada Vishwakosha under the Creative Commons (CC) license.

Kannada Vishwakosha brought out by the University of Mysore can easily be termed as the best encyclopaedia in Kannada. It has been modelled after the famous Britannica encyclopaedia. Mysore University Vishwakosha has 14 volumes having a total of 13802 pages. The very first volume was brought out in the year 1969 and the final volume was released in 2004. Many famous Kannada authors, scientists, academicians and stalwarts from other fields have worked on creating this encyclopaedia. The print volumes of the first version of the encyclopaedia are out of stock now. Recently UoM has started revising and reprinting the encyclopaedia. So far 4 volumes have been revised, enhanced and published.

UoM believes in Open Access to Knowledge. It has put up the research outputs from its departments online for free access to the public. UoM has done these as a subscriber to the idea of Budapest Open Access Initiative. The Open Access Institutional Repository, of UoM, covers scholarly publications covering journal articles, conference papers, books, book reviews, presentations, reports and patents ever since UoM was established in 1916. Extending the philosophy of open knowledge to the Kannada encyclopaedia published by UoM becomes a natural extension. UoM is in the verge of celebrating its centenary soon and has taken many initiatives in that direction.

CIS-A2K has been in negotiations with UoM towards releasing of its high quality Kannada Vishwakosha (Kannada Encyclopaedia) under Creative Commons license. CIS and UoM signed a MoU on February 22, 2014. Here is the relevant extract from the MoU: "They will work together to digitize all encyclopaedic publications for which the copyright is owned by UoM, and re-release them under the Creative Common license (CC-BY-SA 3.0). The digitized content will be made available for everyone through free content distribution platforms like Wikipedia and Wikisource. The digitization will be done employing the global standard Unicode so that the content has longevity, is universally portable and is easily searchable. Both parties have joined hands to undertake the above in order to enhance digital literacy in the Kannada language and facilitate collaborative production and free dissemination of knowledge in Kannada to the students, academics, researchers and the wider public. The parties also believe that by reintroducing the knowledge in digital and openly accessible formats could significantly enhance the production of knowledge in Kannada and give a new lease of life to Kannada language in the digital era. The parties will co-design and jointly implement relevant programmes to achieve this objective." As part of this MoU, UoM agreed to release the first six volumes of Kannada Vishwakosha under CC.

Volume numbers 1, 2, 4 and 6 of Kannada Vishwakosha of UoM have been revised and published recently. A project page has been created in Kannada Wikipedia for this project. Kannada Wikipedians joined hands in the project. The project involved extracting the text from the soft copies of the files, converting them into Unicode, extracting articles from these files and uploading them to Kannada Wikisource.

A team of interns from Christ University had a major role to play in this development. These were students from the Wikipedia in Education Program that was conducted in Christ University during the academic period of 2013-14. These students took active part in the current project and uploaded about 1200 articles so far (till July 21, 2014).

Media Coverage

The event attracted very good media coverage. Leading English and Kannada dailies like Andolana Kannada, City Today, Deccan Herald, Hosa Diganta, Kannada Jana Mana, Kannada Prabha, Rajya Dharma, Samyukta Karnataka, The Hindu, The New Indian Express, Udayavani, Vijaya Karnataka, and Vijaya Vani published about this. Scanned versions of the published articles can be downloaded here.

Other Links:

UoM Kannada Vishwakosha conversion project page in Kannada Wikipedia - http://bit.ly/mysoreunivwp
Articles from UoM Kannada Vishwakosha in Kannada Wikisource - http://bit.ly/mysoreuniv
Category UoM Kannada Vishwakosha in Kannada Wikisource - http://bit.ly/mysoreunivws
For pictures from the Open Knowledge Day event in Mysore - https://commons.wikimedia.org/wiki/Category:Mysore_University_Open_Knowledge_Day

For more details visit https://cis-india.org/openness/blog-old/university-of-mysore-releases-kannada-vishwakosha-under-cc-license

Patent Valuation and License Fee Determination in Context of Patent Pools

vikrant — 2014-07-09T09:46:16Z

The focus of this research paper is on an extremely limited though important aspect of patent pools — that of patent valuation and license fee determination. It is important to bear in mind that the concept of patent valuation and license fee determination as it exists independently is modified when it is applied in context of patent pools.

I. Introduction

A patent pool is essentially “An agreement between two or more patent owners to aggregate (pool) their patents and to license them to one another or third parties. Pools usually offer standard licensing terms to licensees and allocate a portion of the licensing fees (royalties) to patent owners according to a pre-set formula or procedure.[1]

A patent pool particularly faces intense scrutiny by way of competition/ antitrust law and each step of structuring of a patent pool has to be done keeping the prevalent norms of antitrust law in context. This article merely brushes with the antitrust aspect, as a discussion on that topic is beyond the scope of this particular article. However, suffice is to say that like other aspects of structuring of a patent pool, patent valuation and licensing fee determination is also subject to antitrust law concerns.

Part II of this research paper is a discussion as regards factors which determine patent value in context of a patent pool. Similarly, Part III is a discussion as regards factors that determine license fee in context of a patent pool. Thereafter, Part IV discusses the methods which are applied for patent valuation and license fee determination. A number of these methods are independent evaluation methods and hence their dynamics when applied in context of patent pools may need to be altered in light of the discussion in Parts II and III. Part V discusses certain aspects of actual patent pools in the technological field to better understand the principles which have been discussed in Parts II-IV. Finally, Part VI concludes this research paper.

II. Determination of Patent Value in a Patent Pool

One of the prominent pillars of a patent pool is an appropriate patent valuation process. Patent valuation is a difficult and subjective task.[2] Moreover, the result of a patent valuation independently outside of a pool might be quite different from when it is part of a pool transaction. A “pool regularizes the valuation of individual patents - making, as the United States Supreme Court put it, ‘a division of royalties according to the value attributed by the parties to their respective patent claims’”.[3] However, this value attribution process is not an arbitrary one but incredibly dynamic, and constantly evolving. This difficulty is furthered by the fact that the term “patent value” itself is subject to interpretation. Patent value essentially comprises of the economic benefit that the patent can bestow.[4]

A number of factors as discuss hereinafter determine the value of a patent. It is not necessary though that all the factors would come into play in context of every exercise of valuation of a patent in a pool. The factors determining patent value can be largely classified into a discussion as regards the types of patents in a patent pool in context of their relative importance and other complementary factors which further affect such importance.

A. Categories of Patents in a Patent Pool

Patents in a pool can be classified based on their necessity and quality. Thus, arises the concept of essential and non-essential patents and strong and weak patents.

Essential and Non-Essential Patents
As the terms indicate, essential patents are those which are imperative for the success of pool creation and thus naturally have considerably more value. Non-essential patents on the other hand are patents which though not imperative may bring efficiency advantages to the pool. However, what exactly comprises an essential patent is a subjective and constantly evolving definition determined by each patent pool according to its commercial needs and capabilities. For example, the number of patents in the MPEG-2 pool, all of which are declared to be essential to the MPEG-2 standard, increased from 27 in 1997 to more than 900 in 2010.[5]

Essential patents naturally have more economic value than non-essential patents.[6] “A pool that includes non-essential patents can increase prices for some consumers, while decreasing prices for other consumers.”[7] Also, inclusion of inessential patents can raise potential concerns about foreclosure of alternative technologies and higher royalties for some licenses than would have occurred if these patents were excluded from the pool.[8] These concerns though should be balanced against the costs of excluding potentially essential patents from the pool.[9] Such concerns were raised in context of the DVD 3C patent pool.[10] Thus, it has to be decided on a case by case scenario as to whether the patent pool will include only essential patents or both essential as well as non-essential patents.

“Whether a patent pool improves a market’s transactional efficiency depends on the competitive characteristics of the patents included within the pool’s offering.”[11] Properly demarcating all required patents for a technology is important during patent pool formation. Otherwise it may create a “hold out” problem where a patent owner will “hold out” for higher royalties, “knowing that the manufacturer has individually negotiated for and already acquired the rest of the necessary … patent licenses, and that the value of all those licenses depends on obtaining a license to its own patent.”[12] Essentiality of a patent can be determined based on certain characteristics of patents:

a. Blocking Patents
Blocking patents comprise of improvement patents on an existing technology. Thus, the improvement patent is deemed to be “subservient” to the earlier, “dominant’ patent”[13] and the subservient and dominant patents are said to block one another.[14] This is so because, the subservient patent cannot be exploited without infringing upon the dominant patent.[15] Likewise, the dominant patent cannot be developed in the improved embodiment without permission from the subservient patentee.[16] For example, the Wright brothers patents for aeroplane wings were improved upon by Glenn Curtiss and Alexander Graham Bell by using a set of wing flaps, or ailerons. The Curtiss patent, however, was found to infringe upon the Wright patent. As a result, Curtiss had no legal right to make, use, or sell his ailerons without a license from the Wright brothers, and the Wright brothers had no legal right to make, use, or sell Curtiss's commercially successful form of the stabilizing device. Their patents mutually infringed and blocked one another and they had to form a patent pool.[17] Similarly, public key encryption method was devised and patented at Stanford University, and licensed to Cylink. Soon thereafter, a team of scientists at the Massachusetts Institute of Technology developed and patented an algorithm, and licensed its use to RSA. The RSA algorithm was successfully commercialized and became an industry standard. Cylink and RSA constituted blocking rival patents and the issue was resolved by formation of a patent pool.[18]

b. Complementary Patents
Complementary patents cover technologies that are largely lacking or inefficient absent a license to a separate patented product.[19] They occur as a consequence of independent invention. Thus, value of complementary patents increases when combined with a separate patented invention; they act synergistically, each increasing the value of the other.[20] “Two products or technologies are complements if an increase in the price of one of them reduces the demand for the other.”[21] For example, production of a light bulb requires patent rights to both the vacuum bulb as well as the filament.[22] A patent pool that only contains complementary patents may have substantial market power if the pool does not face competition from alternative or substitutable technology.[23] This though, could lead to the occurrence of royally stacking i.e. double-marginalization, which can occur when firms sell or license complementary products or technologies and demand is sensitive to price.[24] It refers to the addition of successive mark-ups by suppliers in a vertical relationship.[25]

c. Competing Patents

Competing patents result when there exist totally novel products or processes that provide market substitutes for patented goods, or when inventors sufficiently modify existing patented goods so that the original patent is deemed “invented around” and not infringed.[26] “Two products or technologies are substitutes if an increase in the price of one of them increases the demand for the other.”[27] A patent pool may obtain market power by obtaining control over substitutable patents too.[28] An individual who acquires the rights to a competing patent eliminates or significantly lessens his need for competing patents within or outside of the pool.[29] Thus, the value of a pool consisting of competing patents increases with acquisition of substitute patents.[30]

Strong and Weak Patents
A patent pool can comprise of strong as well as weak patents. The value accorded to the patents would naturally be in accordance with its “strength.” “‘Low patent quality’ is shorthand for such problems as overlapping claims, inappropriately broad claims, slow patent prosecution, and patents on obvious inventions.”[31] Patents are “probabilistic rights”[32] Their scope and extent often remains probabilistic until their claim determination which may often be done only upon adjudication. Similarly in situations of a patent flood,[33] the overall quality of patents may become lower.[34] The additional protection of the pool affords a weak patent enforcement rights that it may not have secured standing alone.[35] Thus, even weak and invalid patents become important and can be used to exclude competitors, for example for litigation threats.[36]

Some patent pools contain explicit agreements to support weak patents, such as covenants not to challenge patents, joint defense agreements, and allocation of patent rights to parties who are best able to defend them.[37] Some patent pools achieve a similar effect not by explicit agreements, but by creating an institutional environment where patentees find that it is mutually advantageous to recognize each other’s patents.[38]

B. Other Factors Determining Patent Value in Context of Patent Pool

Besides the patents themselves, other complementary criteria impact on patent value. These comprise of the holistic environment in which the patents subsist, as discussed hereinafter.

Subject matter of Invention
“Value is highly dependent upon the subject matter of the invention.”[39] Certain subject matter fields or innovations do not have sufficient commercial importance or market demand to warrant investments.

Scope of Invention
A particular subject where there is extensive minefield of patents already in existence is less likely to have considerable patent value due to the limited patent scope as opposed to a field where patents are relatively lacking and there is possibility of a broader patent scope. Analogously, “value of a patent is derived from an ability to preclude others from practicing the unique innovation described by the words of the patent’s claims.”[40] “Generalizing, a patent employing broad claim language is typically more valuable than a patent of narrowly written claims in the same technology arena.”[41]

Size of Patent Pool
The size of a patent pool i.e. the number of its members and their patents is an important facet in determining the value of patents involved. Greater the number more are the governance issues as well as royalty determination issues, which in turn affect the valuation of the patents. This though does not imply that pools should be of a specific size, only that their size should meet efficiency demands.

Value of Patent Pool
The patents under the purview of a patent pool determine the pool’s value which in turn determines the value of the patents within as well as out of the pool. Value of a patent pool may be limited if certain holders of essential patents are not members.[42] This may occur due to various reasons such as if it was perceived that the patent may have more value as an independent entity, or due to strategic interests, or choice of joining different pools.[43] Correspondingly, if the patent pool does not contain all the patents it cannot curtail royalty stacking issues for the users. For example, Alcatel-Lucent pursued infringement claims for patents that it alleged covered the MPEG-2 standard and were not in the pool.[44]

While it is evident that collecting all necessary patents where the end product or standards is determined is extremely difficult, it becomes considerably more difficult where there is no predetermined or identifiable end-product.[45]

Patent Portfolio
Certain academic studies are of the opinion that “the real value of patents lies not in their individual significance, but instead in their aggregation into a patent portfolio: a strategic collection of distinct-but-related individual patents that, when combined, confer an array of important advantages upon the portfolio holder.”[46] This theory has been applied to explain the patent paradox where the patent intensity, i.e. patents obtained per research and development dollar has risen dramatically even as the expected value of individual patents has diminished.[47] Thus, greater the control of an entity over a portfolio of patents, more would be its negotiation power in context of valuation.

Signaling
It has been opined that the value of patents inheres not so much in the exclusivity they confer upon inventors, but rather in their ability to serve as credible signals.[48] Firms use patents to credibly convey information about the invention to the market who otherwise might not be willing to expend the costs necessary to obtain the information.[49]

Defensive Aspect
Patent value is also ascertained based on its use to serve as an insurance, whereby competing firms use them as “bargaining chips” to negotiate and secure certain niches in the marketplace.[50] This is so especially from the negotiation as well as the litigation viewpoint.

Valuation Dynamics
In context of certain subject matters, inability of the patents to be valued or possibility of dynamic changes in value creates problems in structuring the patent pool, or it might lead to issues of according over-value or under-value. For example, in the process of biological research, where hypotheses are often adjusted and experimentation continually refined, it is impossible to anticipate the particular value of a given research tool for an investigative procedure.[51] Similarly, in context of the Human Genome Sciences, the patent for the gene that encodes CCR5 protein, was likely not valued very highly, because of unsurity of its utility, which changed when independent research established its importance in the fight against HIV.[52]

C. Role of Independent Evaluator

Often, independent experts in the relevant technology are employed for patent valuation purposes. Their role includes the responsibility of providing a mechanism for determining the market value of each participating patent for the purpose of setting appropriate royalty rates within the patent pool.[53] Also, they would evaluate the current state of the art and determine which patents are essential and which aren’t.[54] An evaluator’s is a continuing responsibility throughout the existence of the duration of the patent pool to monitor developments in the field so as to ensure each patent’s essentiality and incorporate additional patents if necessary.[55] Concerns though have been expressed as regards the expert’s ability and impartiality.[56]

III. Determination of License Fee for a Patent Pool

Theorists, have suggested criteria to gauge viability of patent pools.[57] The various elements involved in structuring of a patent pool do not function in a vacuum. Each has an impact on the other and ultimately they determine in totum, the licensing fees.

A. Pool Dynamics

The factors catalyzing pool creation impact on the licensing fee that is set. A patent pool may primarily be structured due to government influence,[58] court influence,[59] commercial and business perspective,[60] to achieve or pursuant to standard setting,[61] and social objectives.[62] Accordingly, riders may be placed on creation of the pool and setting of licensing fees.

Analogously, members comprising the patent pool affect royalty determinations. Different perspectives can be observed in commercial entities as opposed to research entities or voluntary organizations. Similarly, the negotiation capabilities are different for established commercial conglomerates as opposed to entrepreneurs, or smaller entities.[63] Similarly, patent pools may distinguish between patent contributing licensees and mere licensees in fixing royalty rates.[64]

Furthermore, pool governance as well as nature of the pool would have an impact on royalty determination. Pools can essentially be of two types based on regulation of members or licensing- open and closed.[65] Correspondingly, the patent holders themselves may have different perspectives or expectations of their rights.

The negotiating entity too has an impact on royalty determination. “Agreements between the members of the patent pool and third parties can be established directly through patentees and licensees or indirectly through an entity specifically created to administer the pool.”[66] There are a considerable number of business models involved in context of a patent pool that define the parameters of the relationship between what are primarily classified as IP creators and IP consumers.[67] These dynamics have considerably altered with the strong and prolific emergence of IP intermediaries; they in turn affect the royalty rate negotiations.[68]

B. Negotiation Dynamics

License negotiations involve complicated factors, such as uncertain outcomes, asymmetric information about the values of technologies and the contributions of licensees to a technology's value, the credibility of disagreements, differential bargaining power and skill, and the individual circumstances of licensors and licensees.[69] Royalty determination depends on “the bargaining skills of patentees, their licensing objectives, the qualities of their patents, opportunity costs that patentees may have if they choose not to license their patents, the likelihood of injunctions, and the methods that courts apply to calculate infringement damages.” [70] Pool members act strategically to maximize their share of the pool’s revenues.[71] “The defining characteristic of patent ownership has been described as the right to extract royalties ‘as high as [one] can negotiate with the leverage’ of exclusivity.”[72] “The patent holder can ask for a high starting price; the potential infringer can counter by pointing to potential substitute technologies; and ultimately the process should yield a price that accurately reflects the marginal advantages of the patented technology.”[73] Again, negotiation strategies include deploying a number of tactics by corporates to whittle down an independent inventor’s patience and his price, thus reducing the licensing fee from the desired amount.[74] Correspondingly, there is no average length of time or amount of money needed for successfully creating a patent pool; it depends on the number of members involved in the negotiations and their commitment and willingness to negotiate an appropriate price.[75]

Timing of the license negotiation too has an impact on determination of the royalty scheme. Licensing can occur in two primary settings: ex ante licensing, i.e. prior to pool formation; and ex post, i.e. post pool formation. In ex ante licensing, the manufacturer has a choice to alter existing products to incorporate the patented features, and can thus perform a rational cost-benefit analysis prior to making any product alterations.[76] Analogously, a holdout who demands royalties prior to the final organization of the pool can only demand a royalty that reflects the additional value that his new patent adds to the collection.[77] If he demands more than this value, the pool will work around the holdout’s patent by adopting a different standard, adjusting the patent pool to cover slightly different technology, or dissolving itself.[78] In ex post licensing, on the other hand, a holdout is in a stronger negotiating position, and can demand not only the marginal value of his patent, but also the switching costs that would be incurred if the established standard or licensing regime were limited by a court injunction.[79] Complicating this situation are licenses that are granted ex ante but negotiated ex post.

Furthermore, patent pools are generally voluntary collaborations; however, it is also possible to compel parties to join the pool or risk losing revenue from a large segment of the industry.[80] Depending on the situation, the negotiation dynamics and hence the royalty scheme would be affected.

Rules governing damages for patent infringement also affect patentees’ decision to join a pool or to license independently, as the threat of injunctive relief can provide a patentee with bargaining power that can be disproportional to the number of patents he owns.[81]

C. Terms of License

The terms of the license considerably influence royalty determination. These include, nature of licensed products,[82] character of license- whether exclusive or non-exclusive,[83] granting clause, geographic scope of the license, field of use governed by the license, provision of sublicensing, grantback provisions, future usage governance, non-assertion clauses, reach-through provisions, termination clause, and licensee’s ability to challenge patents in the pool.

Included herein too would be the treatment of after-acquired patents, which in turn can be classified into two types: (1) improvement patents based on a patented technology licensed by another member of the patent pool; and (2) patents unrelated to patented technologies licensed to the members of the patent pool.[84]

License governance in context of graduated and progressive licensing would also influence royalty determination. This would include “provisions for pool members to license their patents without licensing all the patents in a pool”[85] And the freedom “to license their patents bilaterally, i.e., outside of the pool structure.”[86]

IV. Methods for Patent Valuation and License Fee Determination

There are three basic methods of valuation: the cost method,[87] the market method,[88] and the income method.[89] In context of patent valuation, these methods find varied expressions. “A truly accurate assessment of patent value requires intensive legal and technical evaluation of individual patents.”[90] The economics literature, however, has also proposed several proxies for patent value based on objective and readily available information.[91]

In context of patent pools the dynamics of patent valuation methods is altered and they need to be viewed through the prism of factors discussed in Part II. This doesn’t imply that approaches to objective patent valuation are not relevant.[92] “However, such valuation approaches focus only on characteristics of patents at the time of issue and neglect to consider what happens afterwards.”[93] “Technology developments or price fluctuations, among many factors, may alter the relationship between two patents … In turn, this may decrease the value of any static analysis conducted by experts.”[94]

Determination of the licensing fee of a patent pool is based on the joint affect of certain transactions. Again, as with patent valuation, so also with licensing fee determination, in context of patent pools, the factors discussed in Part III need to be given heed. The transactions influencing licensing fee determination essentially comprise of valuation of the patent, which in turn is used to set a royalty rate pertaining to allocation of various fees received by licensing of the pool patents. Thus, royalty payment is comprised of two components: a royalty rate and a royalty base, upon which the rate is applied.[95]

A. Determining an Appropriate Royalty Base

The scope of the royalty base can be determined in two principal ways- apportionment and entire market value rule.

The apportionment principle implies that when a patent reads on the entirety of an infringing product, the royalty base should be the total value of the sales (or use) of that product.[96] When the patent at issue covers only a component of the infringing product, the value of the sales or uses of that item must be apportioned between the patented invention and the remaining unpatented components.[97] Thus, the principle aims at allocating awards in proportion to contribution, and is not based on any value attributable to the infringer’s or third parties’ inventions.[98] Thus, essentially, a licensor garners a royalty fee in proportion to the number of infringed patents owned by him.

The entire market value rule, recognizes that the economic value added to a product by a patented component may be greater than the value of the component alone.[99] Thus, this rule focuses on whether the patented component drives demand for the entire product, and if it is so, then the patentee may treat all revenue from the infringing product as an appropriate royalty base.[100]

B. Setting Royalty Rates

Royalty rates are typically a percentage rate and thus reflects the proportion of the base value that the patented technology contributes.[101] Various approaches have emerged in determining royalty rates; these could be adapted in context of patent pools.

Rule of Thumb
This approach suggests that the licensor should receive 25 percent of the licensee’s gross profit from the licensed technology.[102]Thus, this rule’s purpose is not the valuation of a technology per se, but rather the apportionment of a technology’s value between the licensor and licensee.[103] The percentage split between the licensor and licensee should be adjusted upwards or downwards to take into account the parties’ respective investment and risk in the licensed technology.[104]

Numerical Proportionality
According to this approach, royalty entitlement of the holder of patents essential to a standard should be calculated in light of the proportional contribution of that patent owner’s essential patents compared to the total contribution of all other essential patents reading on the standard.[105] This method rests on the proposition that every patent is of equal value.[106]

Industry Standards / Market or Comparable Technology Method
Under this approach, the worth of a patent is determined by examining the royalty rates garnered in similar past transactions.[107]

Discounted Cash Flow
This approach proposes that patent price can be expressed as the present value of the future stream of economic benefits derived from ownership, which includes projected sales of products (or components) based on the patent over its expected life or any increased share of sales as compared to competitors, net of any capital requirements of production.[108] To implement it, one must determine (1) the future cash flows generated by the patent in question and (2) an appropriate discount rate.[109]

Ranking
This approach compares the intellectual property asset to be valued to comparable intellectual property assets on a subjective or objective scale.[110] There are five components to a ranking method: (i) scoring criteria; (ii) scoring system; (iii) scoring scale; (iv) weighting factors; and (v) decision table; these components are used to calculate a composite score for an asset, which is then compared to the average score for a comparable intellectual property asset to determine the relative value.[111]

Cost-based Rate Setting
This approach proposes that the patent holder’s cost of obtaining the invention and its patent forms the basis of the royalty rate; a profit margin is simply tacked onto the innovation cost.[112]

Surrogate Measures
Surrogate measures value patents by reference to the patents themselves.[113] They can be largely categorized into: (1) the number of patents issued to a company; (2) payment of patent maintenance fees i.e. patents which are regularly renewed are more valuable; (3) prior art citations i.e. more a patent is cited, more is its value; (4) characteristics of litigated patents i.e. patents which are the subject matter of litigation are more valuable.[114]

Disaggregation Methods
There are two basic types of disaggregation methods - value disaggregation and income disaggregation.[115] The former apportions some fraction of total value to intellectual property assets by setting the value of intangible assets equal to the value of a firm minus the firm’s monetary and tangible assets from to determine the value of the intangible assets.[116] The latter apportions some fraction of total earnings of a firm, based upon various factors, to intellectual property assets.[117]

Option Methods
This approach views an investment in intellectual property as an option to develop the intellectual property further, or to abandon the intellectual property, depending upon future technical and market information.[118]

Competitive Advantage Valuation (R)
The major premise of the CAV method is that intellectual property assets have no inherent value; the value of intellectual property assets resides entirely in the value of the tangible assets which incorporate them.[119] The minor premise of the CAV method is that the value of a given intellectual property asset can best be measured by the competitive advantage which that asset contributes to a product, process, or service.[120] In its most general form, CAV method consists of following six basic steps[121]:

The intellectual property asset to be valued (IPA) is associated with a product and the product’s net present value is calculated.
The product's net present value is apportioned among tangible assets, intangible advantages and intellectual property assets. (There are three groups of intellectual property assets: technical [utility patents, functional software copyrights and technical trade secrets]; reputational [trademarks, service marks and brand names]; and operational [business method patents and proprietary business processes].
The product is associated with competition parameters which can be used to compare the product to substitute products and competition parameter weights are calculated. (There are three groups of competition parameters: technical [price and performance], reputational [recognition and impression], and operational [cost and efficiency]. Weights are calculated for each parameter group and for individual parameters within each group).
The IPA is associated with an individual competition parameter and the IPA's competitive advantage relative to substitute intellectual property assets is calculated. (Substitute intellectual property assets are assets which are incorporated in substitute products and associated with the same competition parameter as the IPA).
The IPA is associated with complementary intellectual property assets and the IPA's competitive advantage relative to complementary intellectual property assets is calculated. (Complementary intellectual property assets are assets which are incorporated in the same product and associated with the same parameter group as the IPA).
The value of the IPA is calculated by apportioning a share of the product's intellectual property asset value to the IPA based upon the IPA's competitive advantage contribution relative to substitute and complementary intellectual property assets. If the IPA is associated with multiple products, the IPA's relative competitive advantage contribution to each product is calculated and these contributions are summed to calculate the total value of the IPA. If the IPA is associated with multiple parameters, the IPA's relative competitive advantage contribution for each parameter is calculated and these contributions are summed to calculate the total value of the IPA.

Georgia Pacific
The fifteen factors enumerated in the Georgia Pacific case, several of which repeat approaches discussed above, are used in royalty rate determination:[122]

The royalties received by the patentee for the licensing of the patent in suit, proving or tending to prove an established royalty.
The rates paid by the licensee for the use of other patents comparable to the patent in suit.
The nature and scope of the license, as exclusive or non-exclusive; or as restricted or non-restricted in terms of territory or with respect to whom the manufactured product may be sold.
The licensor’s established policy and marketing program to maintain its patent monopoly by not licensing others to use the invention or by granting licenses under special conditions designed to preserve that monopoly.
The commercial relationship between the licensor and licensee, such as, whether they are competitors in the same territory in the same line of business; or whether they are inventor and promoter.
The effect of selling the patented specialty in promoting sales of other products of the licensee; the existing value of the invention to the licensor as a generator of sales of its non-patented items; and the extent of such derivative or convoyed sales.
The duration of the patent and the term of the license.
The established profitability of the product made under the patent; its commercial success; and its current popularity.
The utility and advantages of the patent property over the old modes or devices, if any, that had been used for working out similar results.
The nature of the patented invention; the character of the commercial embodiment of it as owned and produced by the licensor; and the benefits to those who have used the invention.
The extent to which the infringer has made use of the invention; and any evidence probative of the value of that use.
The portion of the profit or of the selling price that may be customary in the particular business or in comparable businesses to allow for the use of the invention or analogous inventions.
The portion of the realizable profit that should be credited to the invention as distinguished from non-patented elements, the manufacturing process, business risks, or significant features or improvements added by the infringer.
The opinion testimony of qualified experts.

The amount that a licensor (such as the patentee) and a licensee (such as the infringer) would have agreed upon (at the time the infringement began) if both had been reasonably and voluntarily trying to reach an agreement; that is, the amount which a prudent licensee-which desired, as a business proposition, to obtain a license to manufacture and sell a particular article embodying the patented invention-would have been willing to pay as a royalty and yet be able to make a reasonable profit and which amount would have been acceptable by a prudent patentee who was willing to grant a license.

Academics have prescribed modification to the approach towards these factors analyzing that the relevant questions in calculating a reasonable royalty fall into four basic categories: (1) whether the patentee in fact produces a product in the market; (2) the contribution made by the patented technology compared to the next best alternative; (3) the number and importance of other inputs necessary to make that technology work; and (4) evidence of how the market has actually valued the patent, to the extent it differs from the outcome of (1), (2), and (3).[123]

V. Patent Pool Examples

The following discussion highlights certain aspects of patent pools from real world examples. These examples are restricted to the technological field. Study of these aspects is of value in understanding the concepts discussed hereinbefore.

A. Manufacturers Aircraft Association (MAA)

The MAA was formed in 1917 in U.S.

Apart from the “foundational” patents of Glenn Curtiss and the Wright Brothers, which had substantial royalty rates, most licensing was conducted on a royalty-free basis, with mutual forbearance from infringement suits as the real payment for the exchange.[124]

The MAA was open to anyone who wished to use the Wright-Curtiss designs for a $1000 initiation fee and a licensing fee of $200 per aircraft built; these funds were to be distributed primarily between the Wright and Curtiss interests until each received a sum of $2,000,000 or their key patents expired.[125] MAA retained $ 25 (12.5%) to cover its administrative expenses, $ 135 (67.5%) was paid to the Wright-Martin Aircraft Corporation and $ 40 (20%) was paid to the Curtiss-Burgess Airplane & Motor Corporation.[126]

Patents added to the pool after its formation were divided into two classes- normal patents were licensed into the pool for all to use, with no special royalty payout going to the inventor or firm; exceptional patents earned ongoing royalties, in an amount determined by a formal arbitration procedure.[127]

The MAA also included a grant-back provision that applied to after-acquired patents.[128]

MAA’s members could license their patents to non-members if the terms were no more favorable than to members and any MAA member could withdraw at any time, but its patents in the pool at the time of withdrawal would remain.[129]

B. Moving Picture Experts Group (MPEG)

MPEG technology allows for transmission and storage of digital video and audio signals. It was formed by the Trustees of Columbia University, Fujitsu Limited, General Instrument Corp., Lucent Technologies Inc., Matsushita Electric Industrial Co., Ltd., Mitsubishi Electric Corp., Philips Electronics N.C., Scientific Atlanta, Inc., and Sony Corp. in 1997. The patent pool for the MPEG-2 standard is administered by a common license administrator- MPEG-LA

MPEG-LA is required to grant licenses to any potential licensees, without discrimination and at a reasonable royalty rate.

MPEG LA offers a portfolio of MPEG-2 systems licenses with a fixed royalty for each licensed mobile MPEG-2 systems signal receiver and a different fixed royalty for all other MPEG-2 systems devices.[130] Additional patents, not included in the portfolio, are available for specific implementations.[131]

The pool offers a standardized five-year license to all prospective licensees.[132] The licensing royalties do not change if patents are added to the portfolio during the five-year licensing period, although the royalty rate may increase by up to 25% in a license renewal.[133] Each patent in the pool is valued equally.[134]

The license has a grant-back provision that requires the licensee to grant to the licensor and other portfolio licensees a nonexclusive license, under fair and reasonable terms and conditions, on any essential patent that the licensee has a right to license.[135]

There exists a partial termination right given to licensors, who may request that MPEG-LA terminate the license of that licensor’s IPR to a particular licensee, if that licensee has sued the licensor for infringement of an MPEG-2 essential or “related” patent or refused to license a related patent on fair and reasonable terms.[136]

C. DVD

Sony, Philips and Pioneer organized the DVD3C patent pool in 1998 for the licensing of patents that are “essential” to comply with the DVD-Video or DVD-ROM standard specifications.

Royalty payments are allocated under guidelines set by the Ground Rules for Royalty

Allocation rather than on subjective analysis by an expert.[137] The royalty rate in standard licenses is not related to fluctuations in the market price of a licensed product; also, the royalty rate is not computed on a per-patent basis and does not fluctuate as patents are added or removed, therefore, the same royalty rate is payable when using one essential patent as when using several.[138]

Hitachi, Matsushita, Mitsubishi, Time Warner, Toshiba, and Victor organized the DVD6C patent pool in 1999 again for the licensing of patents that are “essential” to comply with the DVD-Video or DVD-ROM standard specifications.

The DVD6C pool is also governed by the “Ground Rules for Royalty Allocation” guidelines.[139] The royalties are 4% of the net selling price of the product or U.S. $4.00 per product, whichever is higher. Royalties for DVD decoders are 4% of the net selling price of the product or U.S. $1.00 per product, whichever is higher.[140]

The DVD6C agreement contains a grant-back clause, which, requires licensees to grant each of the licensing companies of DVD6C (and their licensees) a non-exclusive license on fair, reasonable and non-discriminatory terms to use any of their patents that are deemed essential for the manufacture, use or sale of DVD Products; this grantback is restricted only to those DVD products actually licensed to the licensee.[141]

D. 3G Mobile Telephony

The 3G Patent Platform Partnership was formed in 1999. The purpose of the 3G Patent Platform Partnership is to allow for “fair, reasonable, and nondiscriminatory” access to rights essential for implementing the W-CDMA 3GPP standard.[142]

There are three form contracts associated with the Platform: the Framework Agreement, the Standard License, and the Interim License.[143] The Framework Agreement gives each member the choice either to license its essential patents according to the Standard License or to negotiate terms directly with a licensee.[144] The Standard License prescribes standardized royalties for licenses, to be determined by an independent commission.[145] If the patent owner foregoes the Standard License and fails to come to terms in bilateral negotiations, the Interim License comes into effect which has the same royalty terms as the Standard License.[146]

E. Bluetooth Special Interest Group (SIG)

The Bluetooth SIG was formed in 1997 to provide a technology for interconnection of mobile phones, computers, laptops, printers, PDAs, and other devices via a short-range radio frequency band; SIG oversees the development of Bluetooth standards and its licensing.[147]

SIG’s member companies are divided into three different classes- (1) promoter company, which are intensely engaged in the strategic and technical development of Bluetooth wireless technology; they include Agere, Ericsson, Intel, Lenovo, Microsoft, Motorola, Nokia, and

Toshiba; (2) associate members, who are licensed to use Bluetooth specifications and trademarks; (3) adopted members, which use published specifications and trademarks, but do not influence the specification process, nor do they have early access to unpublished specifications.[148]

SIG licenses to member companies on a royalty-free basis, but, associate members pay an annual fee based on their company’s annual revenue, with “small” associates (less than $100 million USD/year) paying $7,500 USD/year and “large” associates (more than $100 million USD/year) paying $35,000 USD/year; adopted members are not required to pay an annual fee.[149]

VI. Conclusion

As is evident, patent valuation and license fee determination are extremely subjective and case based. Moreover, their dynamics alter according to the situation, as in the context of patent pools. This dynamism is furthered by the fact that there are no strict or universal formulas or procedures which can be applied in such determinations. Furthermore, such determinations cannot be made in a vacuum but are subject to the cascading effect of a multitude of factors comprised of the holistic technological environment that may not be just restricted to the innovation in question.

[1] Krista L. Cox, The Medicines Patent Pool: Promoting Access and Innovation for Life-Saving Medicines Through Voluntary Licenses 4 Hastings Sci. & Tech. L.J. 293 (Summer, 2012) citing IGWG Briefing Paper on Patent Pools: Collective Management of Intellectual Property--The Use of Patent Pools to Expand Access to Essential Medical Technologies, Knowledge Ecology International, (June 3, 2007) quoting Robert P. Merges, Institutions for Intellectual Property Transactions: The Case of Patent Pools, in Expanding the Boundaries of Intellectual Property, Innovation Policy for the Knowledge Society 123 (Rochelle Cooper Dreyfuss et al. eds., 2001).

[2] Jer Rutton Kavasmaneck v Gharda Chemicals Ltd. and Ors. (Suit No.2932 of 2011; Decided On: 20.03.2012) Bombay H.C. (Intellectual Property Rights (IPRs) including the patent right is valuable right for all the commercial purposes. These intangible assets play important role in any financial assessment of the trade/commercial or the market. It changes from time to time, market to market, person to person based upon the situations. If valuation is always a complex and flexible issue and a matter of discussion and debate in business strategies. The patent valuation involves many described and undescribed elements).

[3]Robert P. Merges, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations 84 Calif. L. Rev. 1293 (October 1996) citing Standard Oil Co. v. United States, 283 U.S. 163, 171 (1931).

[4] Michael S. Kramer, Valuation and Assessment of Patents and Patent Portfolios Through Analytical Techniques 6 J. Marshall Rev. Intell. Prop. L. 463 (Spring, 2007).

[5] Richard J. Gilbert, Ties That Bind: Policies to Promote (Good) Patent Pools 77 Antitrust L.J. 1 (2010) MPEG LA Business Review Letter from Joel I. Klein, Ass’t Att’y Gen., U.S. Dep’t of Justice, to Garrard R. Beeney, Esq., Sullivan & Cromwell LLP (June 26, 1997), available at http://www.usdoj.gov/atr/public/busreview/215742.pdf; MPEG LA, MPEG-2 Patent Portfolio License Briefing (Aug. 4, 2010).

[6] See Kramer, supra n.4 at 463 (essential patents of technical standards are more valuable, on average, than the general population of patents).

[7] Gilbert, supra n.5.

[8] Id.

[9] Id.

[10] Id.citing DVD 3C Business Review Letter from Joel I. Klein, Ass't Att'y Gen., U.S. Dep't of Justice, to Garrard R. Beeney, Esq., Sullivan & Cromwell LLP (Dec. 16, 1998), available at http://www.usdoj.gov/atr/public/busreview/2121.pdf.

[11]R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009).

[12] Daniel Lin, Research versus Development: Patent Pooling, Innovation And Standardization In The Software Industry 1 J. Marshall Rev. Intell. Prop. L. 274 (2002).

[13] Steven C. Carlson, Patent Pools and the Antitrust Dilemma 16 Yale J. on Reg. 359 (Summer, 1999).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Michael A. Sanzo, Antitrust Law And Patent Misconduct In The Proprietary Drug Industry 39 Vill. L. Rev. 1209 (1994).

[21] Gilbert, supra n.5.

[22] Carlson, supra n.13.

[23] Philip B. Nelson, Patent Pools: An Economic Assessment Of Current Law And Policy 38 Rutgers L. J. 539 (Winter, 2007).

[24] Gilbert, supra n.5.

[25] Id.

[26] Carlson, supra n.13.

[27] Gilbert, supra n.5.

[28] Nelson, supra n.23.

[29] David S. Taylor, The Sinking Of The United States Electronics Industry Within Japanese Patent Pools 26 GW J. Int'l L. & Econ. 181 (1992).

[30] Id.

[31] Michael J. Meurer, Business Method Patents and Patent Floods 8 Wash. U. J.L. & Pol'y 309 (2002).

[32] Mark A. Lemley & Carl Shapiro, Frontiers of Intellectual Property: Patent Holdup and Royalty Stacking 85 Tex. L. Rev. 1991 (June, 2007).

[33] Meurer, supra n.31 (A patent flood occurs when many inventors apply for patents on similar inventions during an interval of a few years).

[34] Id.

[35] Robert P. Greenspoon and Catherine M. Cottle, Don't Assume A Can Opener: Confronting Patent Economic Theories With Licensing And Enforcement Reality 12 Colum. Sci. & Tech. L. Rev. 194 (2011).

[36] Meurer, supra n.31.

[37] Gilbert supra n.5 citing the cross-licensing arrangement between the Singer Manufacturing Company and Gegauf, contained provisions by which each of the parties agreed not to bring any infringement action against the other. United States v. Singer Mfg. Co., 374 U.S. 174, 178 (1963).

[38] Gilbert supra n.5.

[39] Kramer, supra n.4.

[40] Id.

[41] Id.

[42] Jorge L. Contreras, Standards, Patents, and the National Smart Grid 32 Pace L. Rev. 641 (Summer Issue, 2012).

[43] Gilbert, supra n.5 (To the extent that a patent pool successfully lowers total royalties relative to independent licensing, this leaves ‘headroom’ available for an independent licensor outside the pool to charge a high royalty for its patent).

[44] Id. citing Multimedia Patent Trust v. Microsoft Corp., et al., 525 F. Supp. 2d 1200 (S.D. Cal. 2007).

[45] Chase A. Marshall, A Comparative Analysis: Current Solutions To The Anticommons Threat 12 J. High Tech. L. 487 (2012); Damien Geradin and Anne Layne-Farrar, Patent Value Apportionment Rules for Complex, Multi-Patent Products 27 Santa Clara Computer & High Tech. L.J. 763 (2010 / 2011) (the typical semiconductor chip likely involves hundreds, perhaps more, patents. In turn, that chip may be intended for use in a laptop computer, the other components of which involve hundreds, or more, patents. Without knowing how many patents actually read on a product, and how many have holders who will actively seek licensing fees, it can be exceedingly difficult to assign the contributed value to those that are known).

[46] Gideon Parchomovsky and R. Polk Wagner, Patent Portfolios 154 U. Pa. L. Rev. 1 (November, 2005); Elizabeth M. Bailey, Gregory K. Leonard and Mario A. Lopez, Making Sense Of “Apportionment” In Patent Damages 12 Colum. Sci. & Tech. L. Rev. 255 (2011) (combining patented technologies typically creates value that is greater than the sum of the parts. For example, patent pools often bring together various technologies that are necessary to create the product in question. The stand-alone value of any one patent in the pool may be low or close to zero unless combined with the other patents in the pool).

[47] Parchomovsky and Wagner, supra n.46.

[48] Id.

[49] Id.

[50] Id.

[51] Scott Iyama, The USPTO's Proposal of a Biological Research Tool Patent Pool Doesn't Hold Water 57 Stan. L. Rev. 1223 (March, 2005).

[52] Bradley J. Levang, Evaluating the Use of Patent Pools For Biotechnology: A Refutation to the USPTO White Paper Concerning Biotechnology Patent Pools 19 Santa Clara Computer & High Tech. L.J. 229 (December, 2002).

[53] Courtney C. Scala, Making the Jump From Gene Pools to Patent Pools: How Patent Pools Can Facilitate the Development of Pharmacogenomics 41 Conn. L. Rev. 1631 (July, 2009).

[54] Id.

[55] Id.

[56] R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009) citing DVD-6 Business Review Letter from Joel I. Klein, Assistant Attorney General, to Carey R. Ramos, Esq., of Paul, Weiss, Rifkind, Wharton & Garrison (June 10, 1999), available at http://www.usdoj.gov/atr/public/busreview/2485.htm.

[57] Alexander Lee, Examining the Viability of Patent Pools for the Growing Nanotechnology Patent Thicket, 3 Nanotechnology L. & Bus. 317 (2006) suggests that to determine the viability of using a patent pool in a market, companies should ponder the following list of nine criteria: (1) product development driven by standards; (2) moderate fragmentation of patent landscape; (3) at least five pool members; (4) each member working on specific subcomponent of a product; (5) willingness of patent holders to negotiate; (6) commitment by members to create the pool; (7) an industry that is in the later stages of product development; (8) certainty of patent ownership; and (9) a patent pool clear of potential antitrust violations.

[58] See Gilbert, supra n.5 discussing the Manufacturers Aircraft Association, where the U.S. government used the threat of compulsory licensing to compel the pioneers of the aircraft industry to form a patent pool in 1917. The industry was enmeshed in litigation over the scope and validity of patents, and some patentees, particularly the Wright-Martin Company, were demanding royalties that the government and other aircraft manufacturers deemed excessive. Creation of the Manufacturers Aircraft Association patent pool resolved the litigation chaos. The government negotiated a portfolio license from the pool with a royalty of $ 200 per aircraft, which was a fraction of the royalty that Wright-Martin was demanding for a single patent ($ 1,000 per aircraft).

[59] See Carlson, supra n.13 discussing that pool agreements are frequently employed as a means of settling existing litigation, and citing examples including patent pools in the laser eye surgery, and the public key encryption industries;

also see Lemley & Shapiro, Frontiers of Intellectual Property, supra n.32 discussing that the average royalty rate granted in all reasonable-royalty cases is 13.13% of the price of the infringing product, which is much higher than that of patent licenses negotiated without litigation.

[60] See Greenspoon and Cottle, supra n.35 discussing the value of patents as a form of currency that can be used to further goals unrelated to market creation or entry. Such goals can be to improve a firm's competitive position when trying to acquire start-up funds, to improve negotiating terms when licensing other patents, and to reduce the chance of paying excessive royalties to external patent owners;

also see, Gilbert, supra n.5 discussing how different business strategies can cause firms to pool their patents with some firms, but not with others, citing the example of emergence of two pools to license DVD patents as a consequence of differing approaches to industry standards. One explanation offered for the existence of two separate pools is that the two groups could not reach an accord about their respective shares of joint royalty payments.

[61] See Gilbert, supra n.5 discussing how some pools license their patents royalty-free or at royalties that are deliberately held below profit-maximizing levels in an effort to promote adoption of new technologies covered by their patents, citing the example of the Bluetooth Special Interest Group and the Multimedia Home Platform. The article also discusses patent pools formed to license patents that are necessary to implement a defined standard, such as MPEG encoding, DVDs, or mobile telephony.

[62] See Gilbert, supra n.5 discussing pools that limit royalties to promote social objectives rather than to profit from new products citing examples of companies, universities, and research organizations such as Syngenta- an agricultural technology company, the Public Intellectual Property Resource for Agriculture, the SARS IP Working Group, and the UNITAID pool for AIDS medications.

[63] Yuichi Watanabe, Patent Licensing And The Emergence Of A New Patent Market 9 Hous. Bus. & Tax L.J. 445 (2009) (The current state of affairs shows that the patent licensing market strongly favors larger corporations over smaller ones, enabling the larger corporations to reap much of the market opportunities and benefits while limiting them to smaller patentees).

[64] Roger B. Andewelt, Practical Problems In Counseling And Litigating: Analysis Of Patent Pools Under The Antitrust Laws 53 Antitrust L.J. 611 (October 11, 1984/October 12, 1984) (Pools typically contain restrictions on those who join the pool by contributing patents and/or those who take licenses under the pooled patents).

[65]Chase A. Marshall, A Comparative Analysis: Current Solutions To The Anticommons Threat 12 J. High Tech. L. 487 (2012).

[66] Ann Weilbaecher, PSY.D., Diseases Endemic in Developing Countries: How to Incentivize Innovation 18 Ann. Health L. 281 (Summer, 2009).

[67] Greenspoon and Cottle, supra n.35 identify five general types of entities that license and enforce patents: (1) Individual inventors with a single patent; (2) Individual serial inventors; (3) Non-Practicing Entities; (4) Operating companies who practice inventions acquired from others; and (5) Operating companies who practice inventions developed in-house.

[68] See, Raymond Millien and Ron Laurie, A Survey Of Established & Emerging IP Business Models 9 Sedona Conf. J. 77 (2008) discussing various models, viz. Patent Licensing and Enforcement Companies, Institutional IP Aggregators/Acquisition Funds, IP/Technology Development Companies, Licensing Agents, Litigation Finance/Investment Firms, IP Brokers, IP-Based M&A Advisory Firms, IP Auction Houses, On-Line IP/Technology Exchanges, Clearinghouses, Bulletin Boards, and Innovation Portals, IP-Backed Lending, Royalty Stream Securitization Firms, Patent Rating Software and Valuation Services, University Technology Transfer Intermediaries, IP Transaction Exchanges & Trading Platforms/IP Transaction Best Practices Development Communities, Defensive Patent Pools, Funds and Alliances, Technology/IP Spinout Financing, and Patent-Based Public Stock Indexes.

[69] Richard J. Gilbert, Deal or No Deal? Licensing Negotiations In Standard-Setting Organizations 77 Antitrust L.J. 855 (2011).

[70] Gilbert, supra n.5

[71] Merges, Contracting into Liability Rules, supra n.3.

[72] Alan Devlin, Standard-Setting And The Failure Of Price Competition 65 N.Y.U. Ann. Surv. Am. L. 217 (2009) citing Brulotte v. Thys Co., 379 U.S. 29, 33 (1964).

[73]Doug Lichtman, Understanding The Rand Commitment 47 Hous. L. Rev. 1023 (2010).

[74] Peter N. Detkin, Leveling The Patent Playing Field 6 J. Marshall Rev. Intell. Prop. L. 636 (Summer, 2007).

[75] Lee, infra n.57.

[76] Kelce Wilson, The Four Phases of Patent Usage 40 Cap. U.L. Rev. 679 (Summer, 2012).

[77]Gavin D. George, What is Hiding in the Bushes? eBay's Effect on Holdout Behavior in Patent Thickets, 13 Mich. Telecomm. Tech. L. Rev. 557 (2007).

[78] Id.

[79] Id

[80]Daniel R. Cahoy and Leland Glenna, Private Ordering and Public Energy Innovation Policy 36 Fla. St. U.L. Rev. 415 (Spring, 2009).

[81] Gilbert, supra n.5; See for example, Merges, Contracting into Liability Rules, supra n.3 describing how in the airplane cross-licensing agreement, it provides that a board of arbitrators may decide in any case what reward should be paid to individual patent owners and this is based not upon the official determination of patentability by the Patent Office, but upon the unofficial determination of the importance of the invention by a board of arbitrators.

[82] See Andewelt, supra n.64 (The scope and variety of patents included vary considerably from pool to pool. Some pools are limited to patents covering a single commercial device. Others contain numerous and diverse patents relating to different devices in different markets).

[83] See, Scala, supra n.53 discussing how the non-exclusive character of a license is particularly important for those firms holding patents whose full utility is unascertainable at the time of the formation of the pool.

[84] Dustin R. Szakalski, Progress In The Aircraft Industry And The Role Of Patent Pools And Cross-Licensing Agreements 2011 UCLA J.L. & Tech. 1 (Spring 2011).

[85] Ed Levy, et. al, Patent Pools And Genomics: Navigating A Course To Open Science? 16 B.U. J. SCI. & TECH. L. 75 (Winter, 2010).

[86] Id.

[87] Ted Hagelin, Technology and Legal Practice Symposium Issue: Valuation of Intellectual Property Assets: An Overview 52 Syracuse L. Rev. 1133 (2002) (The cost method of valuation measures the value of an asset by the cost to replace the asset with an identical or equivalent asset. The assumption underlying the cost method of valuation is that the cost to purchase or develop a new asset is commensurate with the economic value that the asset can provide during its life).

[88] Id. (The market method values an asset based upon comparable transactions between unrelated parties).

[89] Id. (The income method values an asset based upon the present value of the net economic benefit (net future income stream) expected to be received over the life of the asset).

[90] Sannu K. Shrestha, Trolls Or Market-Makers? An Empirical Analysis Of Nonpracticing Entities 110 Colum. L. Rev. 114 (January, 2010).

[91]Id.

[92]Colleen V. Chien, From Arms Race to Marketplace: The Complex Patent Ecosystem and Its Implications for the Patent System 62 Hastings L.J. 297 (December, 2010).

[93] Id.

[94]R. Justin Koscher, A Patent Pool's White Knight: Individual Licensing Agreements And The Procompetitive Presumption 20 DePaul J. Art Tech. & Intell. Prop. L. 53 (Fall, 2009).

[95] Geradin and Layne-Farrar, supra n.45.

[96] Id.

[97] Id.

[98] Id.

[99] Id.

[100] Id.

[101] Id.

[102] Hagelin, supra n.87; also see, Geradin and Layne-Farrar, supra n.45.

[103] Id.

[104] Id.

[105] Geradin and Layne-Farrar, supra n.45.

[106] Id.

[107] Hagelin, supra n.87; also see, Geradin and Layne-Farrar, supra n.45.

[108] Geradin and Layne-Farrar, supra n.45.

[109] Malcolm T. "Ty" Meeks & Charles A. Eldering, PhD, Patent Valuation: Aren’t We Forgetting Something? Making the Case for Claims Analysis in Patent Valuation by Proposing a Patent Valuation Method and a Patent-Specific Discount Rate Using the CAPM 9 Nw. J. Tech. & Intell. Prop. 194 (Fall, 2010).

[110] Hagelin, supra n.87.

[111] Id.

[112] Geradin and Layne-Farrar, supra n.45.

[113] Hagelin, supra n.87.

[114] Id.; Meeks & Eldering, supra n.109.

[115] Hagelin, supra n.87.

[116] Id.

[117] Id.

[118] Id.

[119] Id.

[120] Id.

[121] Id.

[122] Georgia-Pacific Corp. v. U.S. Plywood Corp., 318 F. Supp. 1116 (S.D.N.Y. 1970).

[123] Daralyn J. Durie and Mark A. Lemley, A Structured Approach To Calculating Reasonable Royalties 14 Lewis & Clark L. Rev. 627 (Summer, 2010).

[124] Merges, Contracting into Liability Rules, supra n.3.

[125] Michael Mattioli, Communities Of Innovation 106 Nw. U.L. Rev. 103 (Winter, 2012).

[126] Szakalski, supra n.84.

[127] Merges, Contracting into Liability Rules, supra n.3.

[128] Mattioli, supra n.125.

[129] Szakalski, supra n.84.

[130] Gilbert, supra n.5.

[131] Carlson, supra n.13.

[132] Id.

[133] Id.

[134] Id.

[135] Lin, supra n.12.

[136] Dorothy Gill Raymond, Benefits and Risks Of Patent Pooling For Standard-Setting Organizations 16 Antitrust ABA 41 (Summer, 2002).

[137] David Serafino, Survey of Patent Pools Demonstrates Variety of Purposes and Management Structures, KEI Research Note 2007:6, Knowledge Ecology International, 4 June 2007.

[138] Id.

[139] Id.

[140] Id.

[141] Id.

[142] Id.

[143] Michael R. Franzinger, Latent Dangers in a Patent Pool: The European Commission's Approval of the 3G Wireless Technology Licensing Agreements 91 Calif. L. Rev. 1693 (December, 2003).

[144] Id.

[145] Id.

[146] Id.

[147] David Serafino, Survey of Patent Pools Demonstrates Variety of Purposes and Management Structures, KEI Research Note 2007:6, Knowledge Ecology International, 4 June 2007.

[148] Id.

[149] Id.

For more details visit https://cis-india.org/a2k/blogs/patent-valuation-and-license-fee-determination-in-context-of-patent-pools

Delhi High Court Orders Blocking of Websites after Sony Complains Infringement of 2014 FIFA World Cup Telecast Rights

sinha — 2014-07-08T07:02:16Z

Of late the Indian judiciary has been issuing John Doe orders to block websites, most recently in Multi Screen Media v. Sunit Singh and Others. The order mandated blocking of 472 websites, out of which approximately 267 websites were blocked as on July 7, 2014. This trend is an extremely dangerous one because it encourages flagrant censorship by intermediaries based on a judicial order which does not provide for specific blocking of a URL, instead provides for blocking of the entire website.

The High Court of Delhi on June 23, 2014 issued a John Doe injunction restraining more than 400 websites from broadcasting 2014 FIFA world cup matches. News reports indicate that the Single judge bench of Justice V. Kameswar Rao directed the Department of Telecom to issue appropriate directions to ISPs to block the websites that Multi Screen Media provided, as well as “any other website identified by the plaintiff” in the future. On July 4, Justice G. S. Sistani permitted reducing the list to 219 websites.

Background

Multi Screen Media (MSM) is the official broadcaster for the ongoing 2014 FIFA World Cup tournament. FIFA (the Governing body) had exclusively licensed rights to MSM which included live, delayed, highlights, on demand, and repeat broadcast of the FIFA matches. MSM complained that the defendants indulged in hosting, streaming, providing access to, etc, thereby infringing the exclusive rights and broadcast and reproduction rights of MSM.

The court in the instant order held that the defendants had prima facie infringed MSM’s broadcasting rights, which are guaranteed by section 37 of the Copyright Act, 1957. In an over-zealous attempt to pre-empt infringement the court called for a blanket ban on all websites identified by MSM. Further, the court directed the concerned authorities to ensure ISPs complied with this order and block the websites mentioned by MSM presently, and other websites which may be subsequently be notified by MSM.

Where the Court went Wrong

The court stated that MSM successfully established a prima facie case, and on its basis granted a sweeping injunction to MSM ordering blocking 471 second level domains. I’d like to point out numerous flaws with the order-

Dissatisfactory "Prima facie case"

In my opinion the court could have scrutinised the list of websites provided by MSM more carefully. There is nothing in the order to suggest that evidence was proffered by MSM in support of the list. The order reveals that the list was prepared by MarkScan, a “consulting boutique dedicated to (the client’s) IP requirements in the cyberspace and the Indian sub-continent.” The list throws up names such as docs.google.com, goo.gl & ad.ly (provide URL shortening service only), torrent indexing websites, IP addresses, online file streaming websites, etc., at a cursory glance. Evidently, perfectly legitimate websites have been targeted by an ill conducted search and shoddily prepared list which may lead to blocking of legitimate content on account of no verification by the court. 471 websites out of 472 mentioned in the first list are second level domains and 23 websites have been listed twice.

2. Generic order which abysmally fails to identify specific infringing URLS

Out of the 472 websites (list provided in the order by MarkScan)-

471 are file streaming websites, video sharing websites, file lockers, URL shorteners, file storage websites; only one is a specific URL [http://www.24livestreamtv.com/brazil-2014-fifa-world-cup-football-%20%C2%A0%C2%A0live-streaming-online-t ].

The order calls for blocking of complete websites. This is in complete contradiction to the 2012 Madras High Court’s order in R K Productions v BSNL which held that only a particular URL where the infringing content is kept should be blocked, rather than the entire website. The Madras High Court order had also made it mandatory for the complainants to provide exact URLs where they find illegal content, such that ISPs could block only that content and not the entire site. MSM did not adhere to this and I have serious doubts if the defendants brought the distinguishing Madras High Court judgment to the attention of the bench. The entire situation is akin to MarkScan scamming MSM by providing their clients a dodgy list, and MSM scamming the court and the public at large.

3. Lack of Transparency – Different blocking messages on different ISPs

The message displayed uniformly on blocked websites was:

"This website/URL has been blocked until further notice either pursuant to court orders or on the directions issued by the Department of Telecommunications."

I observed that a few websites showed the message “Error 404 – File or Directory not found” without the blocking message (above) on the network provider Reliance, and same Error 404 with the blocking message on the network provider Airtel highlighting the non-transparent manner of adherence to the order. Further, both the messages do not indicate the end period of the block.

Legality of John Doe orders in Website Blocking

It is pertinent to reiterate the ‘misuse’ of John Doe orders to block websites in India. The judiciary has erred in applying the John Doe order to protect copyrightable content on the internet. While the R K Productions v BSNL case appears reasonable in terms of permitting blocking of only URL specific content, the application of John Doe order to block websites remains unfounded in law. Ananth Padmanabhan in a three part study (Part I, II and III) had earlier analysed the improper use of John Doe injunctions to block websites in India. The John Doe order was conceived by US courts to pre-emptively remedy the irreparable damages suffered by copyright holders on account of unidentified/unnamed infringers. The interim injunction allowed collection of evidence from infringers, who were identified later as certain defendants and the final relief was accordingly granted. The courts routinely advocated judicious use of the order, and ensured that the identified defendants were provided and informed of their right to apply to the court within twenty four hours for a review of the order and a right to claim damages in an appropriate case. Therefore, the John Doe order applied against primary infringers per se.

On the other hand, whilst extending this remedy in India the courts have unfortunately placed onus on the conduit i.e. the ISP to block websites. This is tantamount to providing final relief at the interim stage, since all content definitely gets blocked; however, this hardly helps in identifying the actual infringer on the internet. The court is prematurely doling out blocking remedies to the complaining party, which, legally speaking should be meted out only during the final disposition of the case after careful examination of the evidence available. Thus, the intent of a John Doe order is miserably lost in such an application. Moreover, this lends an arbitrary amount of power in the hands of intermediaries since ISPs may or may not choose to approach the court for directions to specifically block URLs which provide access to infringing content only.

For more details visit https://cis-india.org/internet-governance/blog/delhi-high-court-orders-blocking-of-websites-after-sony-complains-infringement-of-2014-fifa-world-cup-telecast-rights

India's Ratification of the Marrakesh Treaty Celebrated; Accessible Books Consortium Launched

nehaa — 2014-07-01T11:09:08Z

On Day 1 of the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”), the WIPO organized an event to mark India’s ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled, 2013 (“Marrakesh Treaty”), and to launch the Accessible Books Consortium (“ABC”).

India Becomes the First Country to Ratify the Marrakesh Treaty

Francis Gurry, Director General, WIPO said that the Marrakesh Treaty received 79 signatures in the twelve month period that the treaty was open for signatures. He further said that India’s ratification of the Marrakesh Treaty one year from its conclusion was a “WIPO record of sorts” and a “great example from a major country” of the importance attached to the Marrakesh Treaty.

Dilip Sinha, Ambassador and Permanent Representative of India to the United Nations in Geneva handed over India’s Instrument of Accession to the Marrakesh Treaty to Francis Gurry. Ambassador Sinha in his speech stressed on the importance of the Marrakesh Treaty to India and said that it helped that India had its amendments to its Copyright Act, 1957 in place, incorporating the provisions of the Marrakesh Treaty.

Maryanne Diamond, the Immediate Past President of the World Blind Union (“WBU”) congratulated India on its ratification. Calling it a country who showed “huge leadership” in negotiations of the Marrakesh Treaty, Ms. Diamond said that this ratification was extremely significant, with India being home to a large number of blind and print disabled people and a part of the Global South. Ms. Diamond urged other nations to follow India’s example and make it a priority to ratify the Marrakesh Treaty.

Jens Bammel, Secretary General, International Publishers Association (“IPA”) also congratulated India on its ratification of the Marrakesh Treaty and called on other member states to ratify it.

Accessible Books Consortium Launched

At the launch of the ABC, Mr. Gurry said that the Marrakesh Treaty was only the means to an end, where the end was books in the hands of print disabled and visually impaired persons across the world. “To make it operational,” said Mr. Gurry, “we need to have operational activities.” He said that the ABC was an operational activity which would “breathe life” into and “make operational” the legal framework provided by the Marrakesh Treaty.

What Does it Do?

Mr. Gurry said that the ABC aimed at achieving three things- first, capacity building; second, international book exchange and third, international book exchange.

Capacity Building- Mr. Gurry said that the ABC seeks to provide training on accessible book production and distribution. He thanked the Republic of Korea which has committed to providing financial assistance for training in respect of production of books in accessible formats.
International Book Exchange- Mr. Gurry said that this activity was an IT supported facility, namely, the TIGAR Service which has its origins in India. This would allow participating institutions to perform international searches of databases to find out if accessible formats of books are available.
Inclusive Publishing- Mr. Gurry said that at the end of the day, “books should be born accessible” and technology was creating the “promise of the realization of this aspiration.” Mr. Gurry said that the ABC would promote accessible publishing and to this end, had drawn up a charter of accessible publishing- Accessible Publishing Best Practice Guidelines for Publishers. Elsevier is the first publisher to have signed this charter.

India, WBU and IPA delighted

Praising the ABC, Ambassador Sinha called it an indicator of what multi-stakeholder cooperation needs to do. He said that the ABC would assist organizations such as the DAISY Forum of India in achieving the goal of access to books in accessible formats. Congratulating the WIPO for its efforts on this front, Ambassador Sinha said that this would help nations like India realize their goal of achieving the purposes of the Marrakesh Treaty. Ms. Diamond, representing the WBU congratulated Elsevier on signing the charter. Jens Bammel, on behalf of the IPA expressed concern for making books available in accessible formats for non English speakers. The ABC, he said, was a project initiated to “genuinely complement” the Marrakesh Treaty, and would create a global catalogue of accessible works, whether provided by libraries or by publishers. Expressing his delight that the ABC was being supported equally by all stakeholders, Mr. Bammel reached out to member states to support this initiative politically.

For more details visit https://cis-india.org/accessibility/blog/indias-ratification-of-marrakesh-treaty-celebrated

Mapping Institutions of Intellectual Property: Part B — India's National Program on Intellectual Property Management

nehaa — 2014-06-26T15:27:18Z

As a second part in the series on Mapping Institutions of Intellectual Property this blog post deals with the documents introduced at the Stakeholders’ Consultation for India’s National Program on Intellectual Property.

Many thanks to CIS interns Jessamine Matthew, Tanvi Mani and Upasana Chauhan for their support on this.

On the 21st of February, 2014, the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India organized a Stakeholders Consultation at New Delhi (“the Consultation”) to discuss India’s National Program on Intellectual Property Management. (Click here: http://cis-india.org/a2k/blog/mapping-institutions-of-intellectual-property-part-a to read our post about this, the first in this series on mapping institutions of intellectual property). I attended this Consultation on behalf of CIS. Discussions were informed by three documents introduced at this meeting, the important parts of which have been summarized below:

Report of the Evaluation Committee on Continuation of the Scheme of Intellectual Property Education, Research and Public Outreach (IPERPO) (“the Scheme”) in the XII Five Year Plan Period 2012-2017 (PDF, 21378 Kb)

Introduction

The Evaluation Committee involved in the preparation of this report comprised of Prof. Sudhir K. Jain, Shri T.C. James and Shri J.R. Agarwal. The rationale behind such scrutiny was to yield recommendations with regard to whether the Scheme should be continued or not. And if the answer was found to be in affirmative, to analyze the scope for improvement, phasing of expenditure and setting of targets for each component of the Scheme.

Essentially the report seeks to analyze the overall impact of the Scheme in the discipline of IP rights with respect to education and awareness. It examines the trajectory of progress of the MHRD-IP Chairs and assesses ways to monitor them more efficiently. In addition to that it also analyzes the procedure adopted to release grants to the Chairs and to recognized universities and explores the possibility of widening the scope of the Scheme.

Genesis of the Scheme

The Scheme was formulated to encourage study of IP rights and research, and create awareness about copyright and IP matters. It also aimed to develop specialized courses, train enforcement personnel, organize seminars and workshops on IPR matters, develop inputs, awareness on WTO matters and evolve strategies of regional cooperation.

Under the Scheme, the purposes for which expenditure is to be incurred by the Ministry are clearly chalked out. The details of the same are given in the Report of the Committee. It also lays down the eligibility of Institutions/ Organizations that are to be selected under the Scheme.

MHRD-IPR Chairs

Around 20 MHRD-IPR Chairs have been set up across various universities, IITs and National Law Universities for growth and development of IPR education, research and training. The staff –pattern followed for MHRD-IPR chair is one Chair Professor, two Research associates, one Steno-cum- Documentation assistant and one group-D employee. Such appointments are supposed to be made in accordance with the rules and guidelines of the UGC. Apart from the recurring expenditure towards salaries of the above-mentioned staff, the Chairs have also been given a non-recurring provision for library, equipments and ancillary items. However, such grants are to be given upon fulfilment of certain conditions imposed under the Scheme.

The working of MHRD-IPR Chairs is overlooked by two committees-namely, the ‘Coordinating Committee’ and ‘Review Committee’. The Coordinating Committee is responsible for discussing proposed activities and resolving pending disputes while the Review Committee review their progress periodically.

Observations on Performance of IPR Chairs

Inability to find a suitable Professor level person to occupy the IPR Chair.
Absence of qualification- criteria for the IPR Chair in the Scheme.
Less focus on research component, development of human resource and teaching.
Few IPR-Chairs have appointed full staff which is complementary to their working.
Flow of fund to IPR-Chairs is interrupted dur to lack of proper documentation.
Uncertainty about the continuation of IPR Chairs which has a detrimental effect on their performance.
Active participation in seminars and workshops organized by universities, institutes and colleges on IPR awareness.

Plan Allocation and Expenditure

There exists variations with respect to allocation and actual expenditure of funds due to various reasons.

New Initiatives to be taken during XII Plan

New IPR-Chairs should be established to encourage research in the field of IPR and create a pool of trained human resources.
IPR Centres/ Cells should be set up and they should be linked to the IPR-Chairs.
Internal Monitoring and Information Systems should exist for effective implementation of the Scheme.
National Seminars/ Conference should be held annually.
World Intellectually Property Day should be celebrated annually with various themes as decided by WIPO.
Awareness about copyright and IPR should be spread through print and electronic media.
Copyright Office should be strengthened and modernized to bring it at par with offices in the USA, UK.

Specific Recommendations

The Committee recommended that the post of IPR-Chairs needs to be incentivized and given full functional autonomy. Moreover, the support provided by Government to the Chairs should be long-term.
The appointment of academic and administrative staff needs to be revised periodically.
Only publicly funded universities and institutes of higher learning should be beneficiaries to this Scheme.
The proposed activities and achievements of the IPR Chairs should be made public.
IPR Chairs should provide assistance to the Central Government by way of research and providing solutions to policy problems and issues.
Some flexibility should be allowed with respect to documentation for uninterrupted flow of accounts.
Provision for replacement/ purchase of equipments.
It should be made mandatory for IPR-Chairs to appoint full staff and conduct lon term training programmes in advanced areas of IPR at the national level.
The work of the IPR Chairs needs to be chalked out explicitly by the Scheme.
Having a scheme for converting the well-functioning Chairs into Specialized IPR Centres with the participation of MHRD.
Raising awareness on IPR issues and problems by holding workshops and seminars. Moreover, universities and colleges should ensure adequate participation in such seminars/ workshops.
School-curriculum should include Chapters on IPR.
Modernization of the Copyright Office should be considered to be a priority to ensure easy access and to make copyright registration easier.

Note on the establishment of an Inter-University Centre for Intellectual Property Rights

Background

The Inter-University Centre for Intellectual Property Rights (“the Centre”) will be established under UGC/ Ministry of HRD, Government of India. Broadly, the mission of this independent autonomous Policy Research Centre is to provide research and policy inputs in the arena of IPR. The targeted audience for these inputs will be the State and Central Governments. In addition to that, it also seeks to serve as a connecting bridge for dialogue between developing countries on IPR. To actualize the mission, it will work on inter-disciplinary research and disseminate information on various socio-legal and other aspects of IPR. It will also promote, integrate and develop models and mechanisms associated with IPR.

Functions

In order to make IPR resources more accessible, the Centre will establish a repository of such resources by entering into collaboration with other organizations and institutions. It will also provide assistance to stakeholders by ways of and not limited to organization of seminars, awareness programmes. As a means to encourage inter-disciplinary research which is quintessential for this Centre, it would offer visiting fellowships and forge links with national and international research institutions. As a nodal centre with respect to interfacing government on IP matters, it will also have the added responsibility of reviewing performance of MHRD-IP chairs.

Broad Deliverables and Outcomes of the Centre

The Deliverables of this Centre world would include Policy Research Inputs, Research Publications, Research Monographs, Treaty Analysis, Sensitization Programmes and National and International Conferences. On the other hand, the outcomes would include Research on thrust areas, Knowledge Management in IPRs, IPR Online Resources and discussions.

Linkages

The Centre seeks to link MHRD-IP Chairs, Industry Associations, Civil Society Advocacy Groups and Public Institutes with IPR research capacity.

Organizational Structure and Funding

The organizational structure of the Centre would include the Governing Council, Governing Board and the Research Advisory Council. Each Council/ Board will comprise of Chairman, Ex-Officio Members and Nominated Members. The individuals who are responsible for the nomination of members to these structures are the President, Chairman of the GB and Chairman of the Centre respectively. It has laid down the specification of such composition in its note on establishment.

For the purpose of funding, the Centre would depend on UGC for its building infrastructure, salary and non-salary components. In addition to that it will also aim to create its own corpus by means of consultancy and other grant-in-aids. Towards capital expenditure, the required allocation would be Rs. 65 crores. While the revenue expenditure is estimated at Rs. 25 crores annually. A detailed break-down of the expenditure also been laid down by the Centre in its note.

Discussion Paper for the Establishment of a National Institute for Intellectual Property Rights

Introduction

The National Institute for Intellectual Property Rights (“the Institute’) will be established as an autonomous policy research institute under the Department of Higher Education, Ministry of Human Resource Development, Government of India. It envisages a specialization in policy research and development cooperation in the field of IP rights. Further, it aims to provide multi-stakeholder collaborations in the fields of IPRs. It will provide policy inputs to the government of India for formulating legislations and international agreements. The Institute will serve as a common platform for dialogue among developing countries on IPR issues. Moreover, it will act as a ‘Hub and ‘spoke’ model to connect and coordinate with the MHRD IPR Chairs/ other institutions working in the field of IPRs.

Vision: To be an institute of excellence in policy research and advocacy of IPR.

Mission: To provide effective research and policy inputs in the field of IPR.

Objectives

The Institute would serve as a think-tank to provide policy inputs on IPR at a regional, national and international level. It would work on interdisciplinary research involving multi-stakeholders and focus on IPR trade related issues and their impact on socio-economic aspects at regional, national and international levels. Further, it would disseminate information regarding the social, legal, ethical and economic aspects of IPR. It would endeavour to promote, integrate and develop ‘Academia-Industry’ knowledge structures. Models and mechanisms associated with IPR. Further, it would coordinate the activities of ‘MHRD-IPR’ chairs on behalf of the Ministry of HRD. Lastly, it would engage in capacity building and provide inputs on IPR policy makers including the judiciary.

Functions

In order to realize the objectives elucidated, the Institute would perform the following functions. It would undertake inter-disciplinary research and provide necessary inputs to the State and Central governments to formulate the required policy in IPR. It would further establish a repository of IPR resources in collaboration with various academic institutions, organizations, chairs and stakeholders engaged in IPRs. It would also offer visiting fellowships to encourage multi-disciplinary research. It would organize and participate in seminars, conferences and awareness programs. It would also undertake consultancy and conduct training in IPR to assist various stakeholders. Additionally, it would forge links with national and international IP research institutions/ organizations and act as a nodal institute to interface various Ministries/Departments of the Government on IP related matters. In furtherance of its adjudicative functions it would also undertake a review on the performance of MHRD-IPR chairs on behalf of the Ministry of Human Resource Development. Lastly, it would offer a Ph.D program in IPR in association with reputed Universities/ Institutions in India and abroad.

The Institute will mainly focus on: (I) Research, (ii) Policy and Advocacy, (iii) International Collaboration and (iv) Developmental Agenda

The Broad Deliverables and outcomes of the Institute include:

Deliverables : (i) Policy Research Inputs (ii) Research Publications (iii) Research Monographs (iv) Treaty Analysis (v) Sensitization Programs (vi) National and International Conclaves/Conferences/Roundtables

Outcomes: (i) Research on thrust areas: Preparation of occasional briefs/ annual briefs and discussion papers/ books/journals. (ii) Knowledge and Management of IPRs: Documenting and mapping the competencies on various segments of IP (iii) IPR Online resources: Online documents relating to IPR policy inputs (iv) National/ International Conferences/ Public Debate and Distinguished Lectures: To provide a common platform for deliberation on contemporary IPR practices, issues and critical analysis.

Linkages and Network

The Institute will establish linkages and network with:

MHRD-IPR Chairs
Industry Associations (National and International)
Civil Society Advocacy Groups
Public Institutes with IPR research capacity

Organizational Structure

The organizational structure of the Institute would include the following sub committees:

Steering Committee: Ex-Officio Members: The Secretary, DHE,MHRD would be the president of the Committee. The members would include the Secretary of The DIPP,MOC, The Secretaries of the Ministry of Environment and Forests and The Department of Science and Technology, The Joint Secretaries of the (BP&CR),MHRD and the DIPP. MOC, GOI, The Director of (BP&CR),MHRD, The Vice Chancellor, Delhi University (Host Institution) and the Director of the NIIPR. The Members nominated by the President are the Two Members from the governing board, the two vice- chancellors of Universities having MHRD Chairs, the two directors of IITs/IIMs having MHRD IP Chairs and the two experts from the regulatory/ research councils.
Governing Board: The Chairman of the governing board shall be appointed by the president of the Steering Committee as per the procedure given in Rule 33.
Ex-Officio Members: These members include the Joint Secretary (BP&CR),MHRD, Joint Secretary (DIPP),GOI, The Director (BP&CR),MHRD and The Director, NIIPR who will be the member Secretary.The members nominated by the Chairman of the GB includes the Two Faculty Members of the Institute, The Two MHRD IPR Chair professors and Three National and International Experts in the field of IPR.
The Research Advisory Council: The Director of the Institute is the Chairman of the Research Advisory Council. The Ex-Officio Members include the Deans and Two Professors of the Institute. The members nominated by the Chairman include two IP experts and one representative each from The Ministry of Culture, Arts, Agriculture, Information technology, Environment and Forests, Science and Technology and External Affairs, Two representatives from Civil Society Advocacy Groups and the Administrative Officer of the Institute would be a Non Member Secretary.

Funding

The Institute will be established by UGC funding for its building, infrastructure salary and non-salary components. The institute will also strive to create its own corpus by way of consultancy and other grant-in aids from relevant National/ International Organizations to compliment the UGC funding. Required allocation is estimated at Rs 65 crore towards capital expenditure relating to acquisition of land, building (Academic Block, Conference Halls, Guest House, Administrative Block, Faculty Quarters, Equipment, IT infrastructure etc) The revenue expenditure is estimated at Rs. 25 crore annually, towards meeting the operating activities of the proposed Institute.

The report also contains particulars with respect to staff requirements. It also contains estimates with respect to Non-recurring Capital Expenditure and Recurring Expenditure per annum.

Lastly, attached along with the report is the Memorandum of Association for the National Institute for Intellectual Property Rights.

The memorandum contains the objectives, functions, members of the Steering Committee and the Rules of the Institute.

The Rules include the functions and powers of the Governing Board. The Board is to carry out the objectives of the Institute. It will be subject to the limitations of the Department of Higher Education, MHRD (the Department will also have the power to inspect the Institute at any time). The Governing Board will have the power to:

Manage the affairs of the Institute, consider annual and supplementary budgets,
Create and abolish emoluments structures of various posts,
Appoint staff to these posts,
Enter into agreements with the Central or State Governments or public or private organisations or individuals for grants, donations etc,
Appoint Committees or Sub-Committees,
Delegate any administrative or financial powers to the Director,
Prepare budget estimate and sanction expenditure,
Prepare for the recruitment of offices, faculty and establishment of the Insitute, terms and conditions of scholarships, fellowships, etc.

It also contains details regarding meetings and the powers and functions of the chairman.There are guidelines for the appointment of the Director and Staff Employees.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-b

Not a Goodbye; More a ‘Come Again’: Thoughts on being Research Director at a moment of transition

nishant — 2014-06-15T02:17:06Z

As I slowly make the news of my transition from being the Research Director at the Centre for Internet and Society, Bangalore, to taking up a professorship at the Leuphana University, Lueneburg, Germany, there is a question that I am often asked: “Are you going to start a new research centre?” And the answer, for the most part, is “No.”

Not because I don’t see the value of creating institutional spaces like these or that starting and running CIS has been anything short of a dream, but because I don’t how to. When I tell people I don’t know how CIS came into being, they suspect that I am being either facetious or dismissive. But I am not. If somebody asked me to write an Origin Story for CIS, I would be baffled – or probably sum it up by saying that it happened. There was the germ of an idea, a whole lot of people who responded to it, and like the great Tolkienian epic, it was a story that grew in its telling.

I was 27, when Sunil Abraham, the now Executive Director and I met together in New Delhi, to talk about what a research organisation that represents the public interest at the intersections of Internet & Society would look like. We spent three days in the Delhi heat, coming up with the most fantastic ideas about methods, structures and core areas of interest. It was one of those divine exercises where you build the template for your dream work and then, like a fairy-tale, we had incredible people who came and supported us to make that dream a reality. In six months of that first conversation – I had just turned 28 and was completing the last drafts of my Ph.D. dissertation – CIS got officially registered and with some of the most incredible people, who have been with us, both in their generous affective investment as well as in their intellectual and professional support, we kicked-off a research centre, that has become not only hard to ignore but also significantly important in bringing about scholarly and practice based research around the different facets of how the emergence and widespread reach of the Internet is changing the ways in which we become human, social and political in emerging information societies of the Global South.

In the 7 years since that first conversation started, I have learned so much from CIS and the networks that built around it, that it would be impossible to write an exhaustive account of it. However, as I now take up a new position at the CIS as a member of its board, and continue to collaborate with the on-the-ground teams intellectually, from my new position as a Professor, there are five things I want to dwell upon, more to remind myself of important lessons learned, but also as approaches that the new director and team might want to reference:

Research cannot be individually focused
One of the things that academic training does is that it promotes the idea of an individual researcher. We write, publish, seek grants and present our work, taking individual credit and building a body of work that is centred on us. True, we collaborate and we participate and we are opening up more distributed modes of learning and research, but at the end of the day, there is still an imagination of a research community that is built of individual scholars who work in a happy symbiosis and synthesis.

The biggest lesson I learned with the CIS was that research requires collectives – peers, supporters, and critics – that can help materialise a vision. Instead of trying to do ‘my’ research, it was the first time that I was enabling others’ research. I had a say in building the research vision, and establishing protocols of rigour and review, but to have a dream, and then to share it with others, so that it becomes a collective dream was an incredible experience. It was the beginning of a method that I hope informs all my work, where research methods are constantly going to accommodate for and be shaped by collective visions and approaches rather than just the individual as a lone warrior. More than anything else, it reassures us that we are not alone, either in our triumphs or our road-blocks, and it builds a community of thinkers that is more important than just the single authored outputs that we bring out.
Research requires infrastructure
Institutions are infrastructure. However, our jobs are so segregated, that we don’t always realise the incredible effort that goes into building such institutions and then making them work as efficient infrastructure to support research. It is very rare, in research publications that we thank our everyday office staff, the accounts team that processes the complicated bureaucracies of research funding, the programme managers who create networks and evaluation formats, or the numerous people who perform ‘non-research’ jobs so that we can do the research.

I had worked in project and programme manager positions before CIS. I had also worked as an independent researcher and consultant before that. But this was the first time I actually took the dual responsibility of not only initiating research but also providing the infrastructure for it. And I know that I am a wiser person for it. The intricate world of fund-raising, managing and developing networks, of implementing and monitoring research projects and contracts, and the need to constantly find sustainable options for the research programmes is something that requires an incredible amount of effort and resources. The researchers often are kept away from this world, or we often just ignore the intense quotidian activities that give us the privilege of doing our work, and my time with CIS taught me not only to appreciate this, but also to recognise these tasks as research.
All research must try and answer the ‘So What?’ question
Within academic circles, research has inherent value. We do have the freedom to develop new frameworks and ideas that might not have any immediate relevance and might in fact even fail without seeing the light of day. Academia is privileged because as long as we perform our pedagogic tasks, we have the space to experiment and often work on areas that might not benefit anybody outside the disciplines that we are located in.

At CIS, working at such close quarters with colleagues who are experts in policy and regulation, research became critical for me. It wasn’t research for research’s sake. It was research with a cause. At the same time, making the research relevant was not an exercise in dumbing it down so that it can be reduced to easy implementation. The effort required at making academic and intellectual research accessible, while still retaining its complexity has been a heady experience for me. Since CIS, I have tried to make sure that all research is able to answer the ‘So What?’ question, and every time, it has made the research more robust, more rigorous and having a greater audience and impact than it would otherwise have.
To be a research organisation is to be unafraid
One of the most fantastic things about being a young research organisations was that we were not afraid to voice our opinions and voice them loud. In the last 6 years, CIS has evolved into a strong voice that is not unanimous, but is still clear. We have had disagreements with established research and policy actors. We have critiqued decisions taken by policy and development institutions when we felt that they were flawed. We have provided a critical commentary to different instruments of law and regulation when necessary. We have challenged academic researchers in their methodology as well as in their disconnect from the ‘real world’. And we did it, because early on, the people who guided us, taught us, that research organisations have to be unafraid.

Unafraid, not just to ask tough questions of those outside, but also of asking tough questions internally. The team, as it has grown, has been a smorgasbord of disciplinary and stakeholder locations. We don’t necessarily speak the same language. We don’t also, agree on many critical points. But we never tried to be a consensus generation institute. Instead, we learned to coexist and even collaborate in our differences – it was something that external partners often had problems with. How can one set of people work towards critically opposing a phenomenon when others might actually write in favour of some of the aspects of that same phenomenon? How is it possible that some in the institute have great collaborations with a network that the others critique persistently in their work? These tensions, for me, have been generative and I hope that they continue, both in the institution but also in my future work.
Researchers are people too
This is one of the strangest things to realise, but it is a good lesson to remember. Academia and research work through abstractions. At some point, the researchers become names. They become only a body of work, a certain number of words. But dealing with researchers is to deal with human beings. We have to remember that researchers, while they are often driven and passionate and unable to extricate their lives from their work, do have lives and bodies and socialities that need to be managed. Institutions often get driven by matrices of measurement and politics of promotion and evaluation, at the neglect of the people who actually build it. The constant push at CIS was to recognise that we are all too human in our everyday lives. And to build work environments, relationships and spaces that nurture the people we work with is the primary responsibility of all research.

These points are probably too vague, but this blog post is already too long. I just wanted to take this opportunity to write some ‘Notes to the self’ about things that have been the most important to me in being the co-founder and Research Director at the Centre for Internet and Society. And now, it is time for me to move on. I want to place myself in an academic setting where I learn, I get some headspace to think and write, and do the one thing that I enjoy the most – teach. Starting 1st October 2014[*] I am stepping down as the Research Director and taking up a professorship in a new and exciting university, designing courses and research agendas at the intersections of internet studies, media studies, culture studies and aesthetic studies, bringing together some of my most passionate areas of interest. However, I continue to be interested and invested in CIS’ institutional growth. I shall be a part of the search committee as we invite a new Research Director in the Bangalore office, I shall be a part of the Board that governs the CIS, and I shall always think of CIS as my home, continuing mentoring and implementing existing collaborations but also building more, especially towards the pedagogic and knowledge production side of things.

When the final decisions about this transition were made last week, I had thought I would be emotional and heart broken. Instead, I only feel excited. I have a wonderful set of colleagues in Bangalore, and they, in turn, are at the centre of networks of support, love, empathy and trust. CIS will benefit from having a new Research Director who will bring new visions, new methods, new processes and infrastructure to the table, and I hope that as my own academic career grows, I shall find myself returning to CIS in different capacities and roles, both for what I could contribute to it, but also for what I continue to learn from the rich range and variety of activities that it anchors.

[*].For me, this is not a goodbye, but just a change in roles at the CIS. I will continue to use my CIS credentials and email address, and will be found on the existing contact details there for any queries or interactions with and on behalf of the CIS. So no need to change your address books, just yet.

For more details visit https://cis-india.org/raw/not-a-goodbye-more-a-come-again

Mapping Institutions of Intellectual Property (Part A): India's National Programme on Intellectual Property Management

nehaa — 2014-06-10T07:34:34Z

This blog post discusses India’s National Program on Intellectual Property Management, including the establishment of a National Institute of Intellectual Property Rights.

On the 21^st of February, 2014, the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India organized a Stakeholders Consultation at New Delhi (“the Consultation”). I attended this meeting on behalf of CIS. The discussion was centred around devising a strategy for India’s National Program on Intellectual Property Management under our 12^th Five Year Plan (2012 to 2017). On the agenda were two key issues:

Evaluating and rethinking the role of IPR Chairs established by the MHRD
Establishing a National Institute of Intellectual Property Rights

Pawan Agarwal, Advisor, Higher Education, Planning Commission, Government of India made a detailed presentation on both of these issues. The key parts of his presentation and the ensuing discussions have been reproduced below.

Presentation and Ensuing Discussions

The diagrams in this section correspond to those in Pawan. Agarwal’s presentation.

Ecosystem

In Figure 1, the proposed structure of the national intellectual property system has been outlined. Those government departments and ministries that would have a role to play have been identified, as well as the functions expected to be performed.

In the discussion that followed it was observed that traditional knowledge should also be included within this ecosystem. The Department of Industrial Policy and Promotion (“DIPP”) could coordinate and seek inputs from the Ministry of Culture and the Ministry of Health and Family Welfare.


Figure 1

Education: Programs and Courses

Figure 2 details the proposed structure of IPR education, including courses, financial aid and the nature of the program. Members attending the Consultation were of the opinion that having ten centres for doctoral education was an ambitious target. They were also of the opinion that there was need to integrate IPR education with more courses, for instance, MBA and MSc.


Figure 2

Education: Various Elements

Figure 3 deals with other elements of the IP education universe- curriculum development (envisaged as a joint effort), faculty development (of selected faculty) and funding. Various suggestions emerged on the role of the IP Chairs. This has been examined in greater detail subsequently in this blog post. A key suggestion was made regarding the establishment of more law schools in the IITs, along the lines of the Rajiv Gandhi School of Intellectual Property Law at the Indian Institute of Technology (“IIT”), Kharagpur.


Figure 3

Research and Policy Support

Figure 4 lays out the details of the research and policy support to be provided by the Government towards developing this IPR ecosystem. The Government seeks to achieve this through the existing institutions of the IP Chairs, by way of awarding fellowships and research grants. Once again, concerns and questions were raised regarding the role of MHRD IP Chairs, which will be discussed subsequently in this blog post.


Figure 4

Training & Capacity building

Training and capacity building has been visualised on two levels- basic awareness building about intellectual property rights in institutions of higher education and on the advanced level, dealing with specialised courses on trademark/patent drafting or technology licensing, among others.


Figure 5

Creation/ Protection and Management

For the creation, protection and management of intellectual property, a two pronged approach has been envisaged- the establishment of cells for the management of intellectual property in institutions of higher education and an increased focus on patents, including the creation of incentives for patenting for researchers. Figure 6 lays out the scheme.


Figure 6

National/ Regional Centres/ Chairs

This program on intellectual property outlines a proposal for the establishment of one national centre, five regional centres and twenty chairs, with a distinct role outlined for each. Details are available in Figure 7.


Figure 7

Governance

The National Program on intellectual Property Management lays out a three tiered governance structure, headed by the National Steering Committee on IPR, assisted by the Advisory and Project Approval Committees, with five Regional Committees constituting the final tier. This has been represented in Figure 8.


Figure 8

Funding Arrangements


Figure 9

The discussion that occurred after Pawan Agarwal’s presentation was centred around the issues of intellectual property education, revisiting the role of the MHRD IPR Chair Professor and on the establishment of a National Institute of Intellectual Property Rights.

Intellectual Property Education

On a broader level, the Consultation dealt with the subject of intellectual property education, which the proposed plan envisaged on a generic basic level as well as a more advanced technical level. Narendra Sabharwal, former Deputy Director General, World Intellectual Property Organization (“WIPO”) was had a three pronged opinion on intellectual property education- first, that intellectual property education had to be mainstreamed, and that this mainstreaming should be a part of the vision and strategy of any national plan on intellectual property; second, that intellectual property education should be used to synergise and encourage the creation of more IP assets and third that the proposed national institute should play an advisory role in the intellectual property education framework.

Evaluating and Rethinking the Role of IPR Chairs Established by the MHRD

Background

The MHRD has, under the Scheme for Intellectual Property Education, Research and Public Outreach (“the Scheme”), established twenty IPR Chairs in various universities and other institutions of higher learning across the country. According to the MHRD IPR Chairs website, six of these Chairs have been set up in Universities (University of Delhi, University of Madras, Tezpur University, CUSAT- Kochi, JNU- Delhi and the Delhi School of Economics); five in National Law Universities (NLSIU- Bangalore, NALSAR- Hyderabad, NLU- Jodhpur, NLIU- Bhopal and WBNUJS- Kolkata); six in the Indian Institutes of Technology (IIT- Delhi, IIT- Madras, IIT- Kanpur, IIT- Kharagpur, IIT- Bombay and IIT- Roorkee) and three in the Indian Institutes of Management (IIM- Bangalore, IIM- Kolkata and IIM- Ahmedabad).

With the purpose of creating awareness among the “general public intelligentsia etc. on IPR Copyright and WTO Studies”[1] , the Scheme has been implemented with the objectives of encouraging the study of intellectual property rights in universities and other institutions of higher learning and developing and encouraging study in specialized courses of IPR; creating awareness about IPRs; organizing activities such as seminars and workshops for IPR awareness; creating knowledge resources, developing policy inputs and negotiating strategies and course awareness- all on WTO matters and evolving strategies of Regional Cooperation and Regional Trading Agreements. Expenditure under the Scheme may be incurred by the MHRD (directly or indirectly) for a wide array of purposes including inter alia, the institution of “Chairs” for IPR Studies for higher education and “also on WTO Studies” (sic.).

At the Consultation

There was a general consensus on the need to restructure the existing ‘MHRD Chair’ institutions and questions were raised regarding their longevity and the sustainability. Veena Ish, Joint Secretary, Department of Higher Education, MHRD, Government of India, spoke of the need to strengthen the existing IPR Chairs and bring about changes in the funding scheme. She also sought inputs on what form and structure the institutions should adopt.

Faculty members of various educational institutions present at the meeting were of the opinion that there was an urgent need to set norms clarifying the role of Chairs. Out of the various suggestions put forth, some of them were as under:

Specify the number of hours (if any) that a Chair was expected to teach. This proved to be a contentious issue at the meeting, with various members of the faculty raising questions on how one was to balance teaching requirements with research and policy feedback obligations.
Envisage the role of the Chair as that of a mentor who would not teach except for the occasional guest lecture, but would guide younger faculty in teaching. The Chairs would then instead produce at least three research outputs in a year based on topic inputs from the National Institute/Centre for Intellectual Property Rights. These research outputs would then act as policy inputs to the government.
The Chair would liaison with industry, academia and policy makers to identify issues of policy concern and research interest.
The institution of the MHRD Chair should be delinked from the university set up. Chairs should be appointed directly by the MHRD through a transparent and accountable process, distinct from the present state of affairs where the Vice Chancellors of universities were allowed to exercise discretion in appointments.

Establishment of a National Institute of Intellectual Property Rights

Context
The present circumstances that might necessitate the establishment of a National Institute of Intellectual property Rights were highlighted at the Consultation by D.V. Prasad, Joint Secretary, Department of Industrial Policy and Promotion (“DIPP”), Ministry of Commerce and Industry, Government of India. He said that there was a need for a nodal agency for World Intellectual Property Organization (“WIPO”) matters. He also said that there was a need for a body to focus on government policy and provide policy inputs to the DIPP and other departments and ministries working on intellectual property law and policy issues. At the moment, he said, there were no formal mechanisms in place though which the DIPP sought policy input, and instead relied on basic inputs from paid external consultants.

At the Consultation

The discussion at the Consultation pertained to the form and functions of this proposed institution. D.V. Prasad emphasised that this institution ought not to become an academic exercise or a university and that the focus should remain policy inputs to the government. This view was echoed by Shilpi Jha of the Confederation of Indian Industries. V.C .Vivekanandan, MHRD Chair Professor, NALSAR University of Law, Hyderabad, was also in agreement with D.V. Prasad and Shilpi Jha, and said that the proposed institution ought to be a ‘stand alone model’. Narendra Sabharwal envisaged this institution as a think-tank that would research on legal and policy issues and international relations on emerging areas of technology. This would be distinct from university research undertaken by MHRD Chairs, although some of the university research ought to feed into the think-tank. N.S. Gopalakrishnan, former MHRD Chair Professor at CUSAT, Kochi was of the opinion that this proposed institution ought not to be within the aegis of the University Grants Commission. Further, he said that it was critical to develop capacity for policy research within the country, but until that time, it was critical to attract people from both within as well as outside India to undertake policy research. Sunita Tripathy, Assistant Professor, Jindal Global Law School was also of the opinion that there was a need to build capacity for policy research in India.

Concluding Observations

From the conversation at the Consultation it seems evident that there is a need to revisit the institution of the MHRD Chair Professor, but what remains moot is the form that it should take. The viability of the proposed national institute would also have to be studied in further detail, against similar models in other countries.

This is an exercise that we shall continue to undertake in subsequent blog posts as a part of this series of mapping institutions of intellectual property.

[1].See Scheme for Intellectual Property Education, Research and Public Outreach, available at http://copyright.gov.in/Documents/scheme.pdf (last accessed 03 June, 2014) at page 1.

For more details visit https://cis-india.org/a2k/blogs/mapping-institutions-of-intellectual-property-part-a

From Taboo to Beautiful - Menstrupedia

denisse — 2015-10-24T14:25:59Z

On this post, we take a look at 'menstrual activism' -a movement that despite its trajectory in feminism, remains unnoticed in most accounts of traditional and digital activism. We interview Tuhin Paul, the artist and storyteller behind Menstrupedia, an India-based social venture creating comics to shatter the myths and misunderstandings surrounding menstruation around the world.

CHANGE-MAKER: Tuhin Paul, Aditi Gupta and Rajat Mittal
ORGANIZATION: Menstrupedia
METHOD OF CHANGE: Storytelling and comics
STRATEGY OF CHANGE: To shatter the myths and misunderstandings surrounding
 menstruation, by delivering accessible, informative and entertaining 
 content about menstruation through different media.

Most of us think we know what menstruation is; except...we don’t. Many of my male friends still cringe at the mention of the phrase “I’m on my period”, or use it as a derogatory justification for my occasional cranky mood at the office: “It’s that time of the month, isn’t it?” Poor menstruation has been the culprit of femininity; always bashful, tiptoeing for five days straight, trying its best to remain incognito. The social venture Menstrupedia is committed to change this. Aditi, Tuhin and Rajat want to shift how we look at menstruation and remove the stigma that haunts the natural, self-regulation process women undergo to keep their bodies healthy and strong to sustain life in the future.

Now, if you are already wondering what menstruation has to do with internet and society, just wait for it. This post manages to bring art, punk, menstruation and technology together, all within the scope of the Making Change project! Before though, we shall start with some definitions. Let us first lay conceptual grounds about menstruation and Menstrupedia, to then locate and unpack their theory of change.

What is menstruation?

It can be defined as:

Menstruation is the periodic discharge of blood and mucosal tissue (the endometrium) from the uterus and vagina. It starts at menarche at or before sexual maturity (maturation), in females of certain mammalian species, and ceases at or near menopause (commonly considered the end of a female's reproductive life).

And it looks something like this:

But, I believe, most women will agree the following are much more accurate depictions of the spectrum of thoughts, emotions and sensations that menstruation spurs:

The Beauty of RED

My Periods: A Blessing or a Curse

By Naina Jha

My periods
Are a dreadful experience
Because of all the pain.
Myths and secrets make it a mystery
What worsens it most though, are members of my family
Especially my mother, who always make it a big deal
They never try to understand what I truly feel
I face all those cramps and cry the whole night long
None of which is seen or heard or felt by anyone.

Instead of telling me, what it is,
They ask me to behave maturely instead.
Can somebody tell me how I am supposed to
Naturally accept it?
My mother asks me to stay away from men
And a few days later, she asks me to marry one!
When I ask her to furnish
the reason behind her haste
She told me that now that I was menstruating,
I was grown up and ready to give birth to another.

I don’t know whether to feel blessed about it
Or consider it to be my curse.
For these periods are the only reason for me to be disposed.
Since my childhood, I felt rather blessed to be born as a girl
But after getting my periods now,
I’m convinced that it’s a curse...

Find it in Menstrupedia's blog.

Despite all this, it is still perceived as a social stigma in society. There is clearly a dissonance between the definition, experience and perceptions around menstruation, that calls for a reconfiguration of the information we are using to define it.

Stigma as a Crisis

However, re-defining 'menstruation' is no popular or easy task. The word belongs to a group of contested terminology around womanhood and is the protagonist of its own breed of feminist activism: menstrual activism. [1] Although I would consider many of the stigmas surrounding menstruation to be quite self-explanatory (we've all experienced and perpetuated them in one way or another -and if they are not, then you are the product of an obscenely progressive upbringing for which I congratulate your parents, teachers and all parties involved), I will still outline the main reasons why menstruation is a source of social stigma for women, and refer to scholarly authority on the subject to legitimize my rant.

Ingrid Johnston-Robledo and Joan Chrisler use Goffman's definition of stigma [2] on their paper: The Menstrual Mark: Menstruation as a Social Stigma to explain the misadventures of menstruation:

Stigma: 
stain or mark setting people apart from others. it conveys the information 
that those people have a defect of body or of character that spoils their 
appearance or identity

Among the various negative social constructs deeming menstruation a dirty and repulsive state, this one made a particular echo: “[menstruation is] a tribal identity of femaleness”. Menstruation is the equivalent of a rite of passage marking the lives of girls with a 'before' and an 'after' on how the world sees them and how they see themselves. From the dreaded stain on the skirt and the 5-day mission to keep its poignant color and smell on the down low, to having to justify mood and body swings to the overly inquisitive; menstruation is imagined as inconvenient, unpleasant and unwelcome. As Johnston-Robledo and Chrisler point out: the menstrual cycle, coupled with stigmas, pushes women to adopt the role of the “physically or mentally disordered” and reinforce it through their communication, secrecy, embarrassment and silence (Kissling, 1996).

Why does it matter?

Besides from strengthening attitudes that underpin gender discrimination and attempting against girls' self-identity and sense of worth, there are other tangible consequences for their development and education. I'm going to throw some facts and figures at you, to back this up with the case of India.

An article published by the WSSCC, the Geneva based Water supply and Sanitation Council, shows the Menstruation taboo, consequence of a “patriarchal, hierarchical society”, puts 300 million women at risk in India. They do not have access to menstrual hygiene products, which has an effect on their health, education (23% of girls in India leave school when they start menstruating and the remaining 77% miss 5 days of school a month) and their livelihoods.

In terms of awareness and information about the issue, WSSCC found that 90% didn't know what a menstrual period was until they got it. Aru Bhartiya's research on Menstruation, Religion and Society, shows the main sources of information about menstruation come from beliefs and norms grounded on culture and religion. Some of the related restrictions (that stem from Hinduism, among others) include isolation, exclusion from religious activities, and restraint from intercourse. She coupled this with a survey where she found: 63% of her sample turned to online sites over their mothers for information, 62% did not feel comfortable talking about the subject with males and 70% giggled upon reading the topic of the survey. All in all, a pretty gruesome scenario

Here's where Menstrupedia comes in

The research ground work attempted above was done in depth by Menstrupedia back in 2009 when the project started taking shape. They conducted research for one year while in NID and did not only find that awareness about menstruation was very low, but that parents and teachers did not know how to talk about the subject.


							Facts about menstruation awareness in India. Video courtesy of Menstru pedia Youtube channel.

Their proposed intervention: distribute an education visual guide and a comic to explain the topic. They tested out the prototype among 500 girls in 5 different states in Northern India and the results were astonishing.

A workshop conducted by MJB smriti sansthan to spread awareness about mensuration.
Find full album of Menstrupedia Comic being used around India on Menstrupedia's Facebook page.

"To my surprise, they [the nuns] all agreed that until they read the information given in the Menstrupedia comic, even they were of the opinion that Menstruation was a ‘dirty’ and 'abominable' thing and they wondered 'why women suffered from it in the first place'? But after reading the comic book, their view had changed…now they felt that this was a 'vital' part of womanhood and there's nothing to feel ashamed about it! The best part was while this exercise clarified their ideas, beliefs, concepts about menstruation, it also helped me to get over my innate hesitancy to approach such a sensitive issue in ‘public’ and boosted my confidence for taking this up as a 'mission' to reach out to the maximum possible girls across the country."

Ina Mondkar,
on her experience of educating young nuns about menstruation.

Testimonial after a workshop held in two Buddhist monasteries in Ladakh.

Their mandate today reads: ‘Menstrupedia is a guide to explain menstruation and all issues surrounding it in the most friendly manner.’ They currently host a website with information about puberty, menstruation, hygiene and myths, along with illustrations that turn explaining the process of growing up into a much friendlier endeavour than its stigma-ladden alternatives.

Snipbit of the first chapter. Read it for free here.

Through the comic and the interactions around it, Menstrupedia strives to create a) content that frame menstruation as a natural process that is inconvenient, yes; but that should have no negative effects on their self-esteem and development; and b) an environment where girls can talk about it openly and clarify their doubts.

Technology's role in the mix

"We want to reach out to as many girls as possible”. Tuhin, Menstrupedia

The role of digital technologies basically comes down to scalability. Opposite to The Kahani Project's views on scaling up, Menstrupedia makes emphasis on using technology to reach a larger audience. Currently they have a series of communication channels enabled by technology that include: a visual quick guide, a Q&A forum (for both men and women), a blog (a platform of self-expression on menstruation), a you tube channel (where they provide updates on their progress) and the upcoming comic.

Upon the question of the digital divide and whether this expands the divide between have and have nots, Tuhin was very set on the idea of producing the same content in both its digital and print form. “parents or schools should be able to buy the comic and give it to their daughters, so whenever they feel like it, they can refer to it”. The focus is on making this material as readily available as possible, in order to overcome the tension between new and old information: “workshops are conducted but the moment they go back home, their mothers impose certain restrictions. It becomes a dilemma. But if you provide [The girl] with a comic book, she has something she can take home and educate her mother with”

And here's why it works

More than the comic book itself, what is truly remarkable about Menstrupedia is Tuhin, Rajat and Aditi’s guts to pick up such a problematic theme in the Indian social imaginary and challenge the entrenched, stubborn beliefs surrounding the issue. The comic book, asides from being appealing to the eye and an accessible format of storytelling (a method we have unpacked in previous posts), fits right into the movement of menstrual activism and what it stands for.

“We thought of creating something: a tool that can help girls understand menstruation without having to rely on anybody else”. Tuhin, Menstrupedia

First, it is a self-reliant resource. Once the comic book leaves Menstrupedia's hands and lands on those of kids and adults, it takes its own journey. The format of the comic is accessible enough for someone to pick it up and learn about menstruation without the intervention or the support of a third party. This makes Menstrupedia's comic highly flexible and mobile. It can be shared from teacher to child, from mom to daughter, from peer to peer: “[it should teach] how to help your friends when they get their period” (Tuhin) However, it has the autonomy to also take roads less travelled: from mom to dad, from child to teacher, from boy to girl. The goal at the end of the day: a self-reliant, solidarity-based community where information circulating about menstruation highlights its capacity to give life and overshadows its traditional stigmatized identity.

This self-reliance is characteristic of previous manifestations of menstrual activism. Back in the 80s, the feminist movement, tightly linked to punk culture, embraced the do it yourself movement,[3] that enabled women to materialize personalized forms of resistance. They published zines promoting “dirty self-awareness, body and menstrual consciousness and unlearning shame” through “raw stories and personal narratives” (Bobel, 2006). According to Bobel using the self as an example is a core element in the “history of self-help” within the DIY movement. The role of the Menstrupedia blog is then crucial to sustain the exposure and production of “raw narratives”. Tuhin adds: “We don't write articles on the blog. It is a platform where people from different backgrounds write about their experiences with menstruation and bring in a different perspective”: For example,

Red is my colour by Umang Saigal

Red is my colour,
To make you understand, I endeavour,
Try to analyse and try to favour.
It is not just a thought, but an attempt,
To treat ill minds that are curable.

When I was born, I was put in a red cradle,
I grew up watching the red faces for a girl-children in anger,
Red became my favourite,
But I never knew,
That someday I would be cadged in my own red world.

Red lover I was,
All Love I lost,
When I got my first red spots,
What pain it caused only I know,
When I realized, Red determined my ‘class’

I grew up then, ignoring red,
At night when I found my bedsheet wet,
All day it ached,
All day it stained,
And in agony I would, turn insane.

At times I would think,
Does red symbolize beauty or pain?
But when I got tied, in the sacred knot,
I found transposition of my whole process of thought,
When from dirty to gold, Red crowned my bridal course.

As I grew old,
All my desires vanished and got cold,
My mind still in a dilemma,
What more than colour in itself could it unfold?
What was the secret behind its truth untold?

Is Red for beauty, or is it for beast?
It interests me now to know the least,
All I know is that Red is a Transition,
From anguish to pride
Red is a sensation.

Red is my colour, as it is meant to be,
No matter what the world thinks it to be,
No love lost, one Love found,
Red symbolizes life and also our wounds,
I speak it aloud with life profound,
That red is my colour, and this is what I’ve found.

Submission to the Menstrupedia blog

'Self-expression' is not a concept we usually find side by side with 'menstruation'; however, if we look at what has been done in the past, we find that Menstrupedia is actually contributing to a much larger tradition of resistance. For instance, Menstrala, by the American artist Vanessa Tiegs. Menstrala is the name of a collection of 88 paintings “affirming the hidden forbidden bright red cycle of renewal”.

Another interesting example is American feminist Gloria Steinem's[4] text If Men Could Menstruate.

“What would happen, for instance, if suddenly, magically, men could menstruate and women could not?
The answer is clear:
Menstruation would become an enviable, boast worthy, masculine event:
Men would brag about how long and how much.
Boys would mark the onset of menses, that longed- for proof of manhood,with religious and stag parties.”

Gloria Steinem
[excerpt]

Opportunities like these, enable Menstrupedia's community to actively participate in the reconfiguration of 'menstruation' as a concept and as an experience. By exposing new narratives and perspectives on the issue and by disseminating menstrual health information, the community is able to crowd source resistance and dismantle the stigma together.

Making Change through Menstrupedia

The case of Menstrupedia reminds us of Blank Noise because of its approach to change. Both locate their crises at the discursive level and seek to resolve them by creating new forms of meaning-making. They advocate for a reconsideration of 'givens', for a self-reflection on our role perpetuating these notions and for resistance against conceptual status quos: be it socially accepted culprits like 'eve-teasing', or more discrete rejects like 'menstruation'. Both seek to dismantle power structures that give one discourse preference over others, and both count with a strong gender dynamic dominating the context where these narratives unfold. They are producing a revolution in our system of meaning making, yet only producing resistance in the larger societal context they inhabit.

On the question of where is Menstrupedia's action located, Tuhin replied by pinning it at the individual level: “if a person is aware of menstruation and they know the facts, they are more likely to resist restrictions and spread awareness”. However, they still acknowledge the historicity behind menstrual awareness (as knowledge passed down from generation to generation) that precedes the project. While the introduction of Menstrupedia, to an extent, does shake up household dynamics in terms of content, it also provides tools and resources to sustain the traditional model of oral tradition and knowledge sharing within the community.

In terms of their role as change-makers ,Tuhin stated that the possibility to intervene was a result of their socio-economic status and the resources they had at hand as “educated members of the middle class with access to information and communication technologies”. Is this the role the middle class should play? I asked. To which he gave a two fold answer: First, in terms of responsibility of action: “it is a role that anyone can play depending on what kind of expertise they have. It comes to a point where [intents of change] cannot be sustained by activism if you want to achieve long term impact” And second, in terms of setting up a resilient infrastructure: “I believe we can create an infrastructure people can use and create models that can help low income groups overcome their challenges and become self-sustainable.” Both answers highlight the need for sustainability in social impact projects, hinting a retreat from wishful thinking upon the presence of technology and a more strategic allocation of skills and resources by middle class and for-profit interventions.

As far the relationship between art, punk, menstruation and technology goes; that was just a hook to get you through the unreasonable length of my blog post, but if anything, it represents an effort to portray the importance of contextuality and interdisciplinary we have been exploring throughout the series. Identifying the use of various mediums and language systems, such as different art forms and modes of self-expression, as well the acknowledgement of the theoretical and social contexts preceding and framing the project, as is feminist activism and the cultural and religious backdrop in India, contribute immensely to fill gaps in the stories of how we imagine change making today; especially at the nascence of new narratives, as we hope is the case for menstruation in a post-Menstrupedia era.

Sources:

Bhartiya, Aru: “Menstruation, Religion and Society” IJSSH: International Journal of Social Science and Humanity. Volume: Vol.3, No.6.

Bobel, Chris. "“Our Revolution Has Style”: Contemporary Menstrual Product Activists “Doing Feminism” in the Third Wave." Sex Roles 54, no. 5-6 (2006): 331-345.

Johnston-Robledo, Ingrid, and Joan C. Chrisler. "The menstrual mark: Menstruation as social stigma." Sex roles 68, no. 1-2 (2013): 9-18.

Footnotes

[1] Refer to Chris Bobel's work including New Blood: Third-Wave Feminism and the Politics of Menstruation. Access it here

[2] Johnston Robledo and Chrisler made reference to Erving Goffman's 1963 work: Stigma: Notes on the management of spoiled identity. "According to Goffman (1963), the word stigma refers to any stain or mark that sets some people apart from others; it conveys the information that those people have a defect of body or of character that spoils their appearance or identity Goffman (1963, p. 4) categorized stigmas into three types: "abominations of the body” (e.g., burns, scars, deformities), “ blemishes of individual character” (e.g., criminality, addictions), and “tribal” identities or social markers associated with marginalized groups (e.g., gender,race, sexual orientation, nationality)".

[3] For a short run through on DIY as part of the Punk Subculture, refer to Ian P. Moran's paper: Punk - The Do-it-Yourself culture."Punk as a subculture goes much further than rebellion and fashion as punks generally seek an alternative lifestyle divergent from the norms of society. The do-it-yourself, or D.I.Y. aspect of punk is one of the most important factors fueling the subculture." Access it here.

[4] Gloria Steimen is a journalist, and social and political activist who became nationally recognized as a leader of, and media spokeswoman for, the women's liberation movement in the late 1960s and 1970. Visit her official website here.

For more details visit https://cis-india.org/digital-natives/making-change/menstrupedia-taboo-beautiful

The Embodiment of the Right to Privacy within Domestic Legislation

tanvi — 2014-09-08T02:37:39Z

The Right to Privacy is a pivotal construct, essential to the actualization of justice, fairness and equity within any democratic society. It is an instrument used to secure the boundaries of an individual’s personal space, in his interaction with not only the rest of society but also the State.

It is within this realm of the social transaction that there exists an unending conflict between the Right to Privacy of an individual and the overbearing hand of the State as a facilitator of public interest. This right thus acts as a safety valve providing individuals with a sacred space within which their interactions in their personal capacity have no bearing on their conduct in the public sphere. The preservation of this space is incredibly important in order to ensure a willingness of individuals to engage and cooperate with the State in its fulfillment of public welfare measures that would otherwise be deemed as intrusive. It is in this regard that the Right to Privacy, one of the last sustaining rights that an individual holds against a larger State interest, ought to be protected by the law.

There are numerous dimensions to the idea of the Right to Privacy. These include but are not limited to the privacy of person, privacy of communication, personal privacy, transactional privacy, privacy of information and the privacy of personal data.

The Supreme Court of India has come to the rescue of individuals, time and again by construing "Right to Privacy" as an extension of the Fundamental Right to “Protection of Life and Personal liberty” under Article 21 of the Constitution. This has been reflected in the adjudicatory jurisprudence of the Constitutional courts in the country. However, there exists no Constitutional remedy to redress the breach of privacy by a nongovernmental actor, except under tortuous liability. The power and authority of public and private institutions to use an individual’s personal data for larger interests of national security or effectuation of socio-economic policies is still under extensive scrutiny. It is in this regard that we have compiled a number of sectoral legislations, regulating domains ranging from Finance and Telecom to Healthcare, Freedom of Expression, Consumer rights and Procedural codes. The highlighted provisions under each Act pertain to the mechanisms embodied within the legislation for the regulation of privacy within their respective sectors. Through this we aim to determine the threshold for permissible collection of confidential data and regulatory surveillance, provided a sufficient need for the same has been established. The determination of such a threshold is imperative to formulating a consistent and effective regime of privacy protection in India.

Click to download the below resources:

Legislations
Master Circulars
Finance and Privacy
Code of Civil Procedure and Code of Criminal Procedure
Freedom of Expression
Identity and Privacy
National Security and Privacy
Consumer Protection
Transparency and Privacy
Healthcare
Telecom

Case Laws
Code of Civil Procedure and Code of Criminal Procedure
Freedom of Expression
Identity and Privacy
National Security and Privacy
Consumer Protection
Transparency and Privacy
Healthcare
Telecom

For more details visit https://cis-india.org/internet-governance/blog/the-embodiment-of-right-to-privacy-within-domestic-legislation

Digital Humanities and the Problem of Definition

sneha — 2015-03-30T12:47:49Z

The Digital Humanities as a field that still eludes definition has been the subject of much discourse and writing. This blog post looks at this issue as one of trying to approach the field from a disciplinary lens, and the challenges that this may pose to the attempts at a definition.

Much has been said and written about the Digital Humanities as an emergent field or domain of enquiry; the plethora of departments being set up all across the world, well mostly the developed world is testimony to the claimed innovative and generative potential of the field. However, as outlined in the earlier blog-post, the problem of definition still persists. As Mathew Kirschenbaum points out, the growing literature around the ‘what is Digital Humanities’ question may well be a genre in itself.[1] While the predominant narrative seems to be in terms of defining what Digital Humanities, or to take it a step back, what the ‘digital’ allows you to do, with respect to enabling or facilitating certain kinds of research and pedagogy, a pertinent question still is that of what it allows you to ‘be’. Digital Humanities has been alternatively called a method, practice and field of enquiry, but scholars and practitioners in many instances have stopped short of fully embracing it as a discipline. This is an interesting development given the rapid pace of its institutionalisation - from being located in existing Humanities or Computational Sciences or Media Studies departments it has now claimed functional institutional spaces of its own, with not just interdisciplinary research and teaching but also other creative and innovative knowledge-making practices. The field is slowly gaining credence in India as well, with several institutions pursuing questions around core questions within the fold of Digital Humanities.

So is the disciplinary lens inadequate to understand this phenomenon, or is it too early for a field still considered in some ways rather incipient. The growth of the academic discipline itself is something of a fraught endeavour; as debates around the scientific revolution and Enlightenment thought have established. To put it in a very simple manner, the story of academic disciplines is that of training in reason.[2]

Andrew Cutrofello says “In academia, a discipline is defined by its methodological rigor and the clear boundaries of its field of inquiry. Methods or fields are criticized as being "fuzzy" when they are suspected of lacking a discipline. In a more straightforwardly Foucauldian sense, the disciplinary power of academic disciplines can be located in their methods for producing docile bodies of different sorts.”[3] The problem with defining Digital humanities may lie in it not conforming to precisely this notion of the academic discipline, and changing notions of the function of critique when mediated through the digital.

However a prevalent mode of understanding Digital Humanities has been in terms of the disciplinary concerns it raises for the humanities themselves; this works with the assumption that it is in fact a newer, improved version or extension of the humanities. The present mapping exercise too began with the disciplinary lens, but instead of enquiring about what the Digital Humanities is, it looked at what the ‘digital’ has brought to, changed or appropriated in terms of existing disciplinary concerns within the humanities. If one has to look at the digital itself as a state of being or existence, then one needs to understand this new techno-social paradigm much better. Prof. Amlan Dasgupta, at the School of Cultural Texts and Records at Jadavpur University in Kolkata sees this as a useful way of going about the problem of trying to arrive at a definition of the field — one is to understand the history of the term, from its inherited definition in the Anglo-American context, and the second is to distinguish it from what he calls the current state of ‘digitality’ — where all cultural objects are being now being conceived of as ‘digital’ objects. In the Indian context, the question of digitality also becomes important from the perspective of technological obsolescence - where there is resistance to discontinuing or phasing out the use of certain kinds of technology; either for lack of access to better ones or simply because one finds other uses for it. Prof. Dasgupta interestingly terms this a ‘culture of reuse’, one example of this being the typewriter which for all practical purposes has been displaced by the computer, but still finds favour with several people in their everyday lives. The question of livelihood is still connected to some of these technologies, so much so that they are very much a part of channels of cultural production and circulation, and even when they cease to become useful they have value as cultural artefacts. We therefore inhabit at the same time, different worlds, or as he calls it ‘a multi-layered technological sphere’. The variedness of this space, and the complexities or ‘degrees of use’ of certain technologies or technological objects is what further determines the nature of this space. This complicates the questions of access to technology or the ‘digital divide’ which have been and still are some of the primary approaches to understanding technology, particularly in the Global South. The need of the hour is to be able to distinguish between this current state of digitality that we are in, and what is meant by the Digital Humanities. It may after all be a set of methodologies rather than a subject or discipline in itself — the question is how it would help us understand the ‘digital’ itself much better and the new kinds of enquiries it may then facilitate about this space we now inhabit.

One of the important points of departure, from the traditional humanities and later humanities computing itself as mentioned in the earlier blog, has been the blurring of boundaries between content, method and object/s of enquiry. The ‘process’ has become important, as illustrated by the iterative nature of most Digital Humanities projects and the discourse itself which emphasises the ‘making’ and ‘doing’ aspects of research as much as the content itself. Tool-building as a critical activity rather than as mere facilitation is an important part of the knowledge-making process in the field. In conjunction with this, Dr. Moinak Biswas, at the Department of Film Studies at Jadavpur University, thinks that the biggest changes have been in terms of the collaborative nature of knowledge production, based on voluntarily sharing or creating new content through digital platforms and archives, and crucially the possibility of now imagining creative and analytical work as not separate practices, but within in a single space and time. He cites an example from film, where ‘image’ making and critical practice can both be combined on one platform, like the online archive Indiancine.ma or the Vectors journal for example to produce new layers of meaning around existing texts. The aspect of critique is important here, given that the consistent criticism about the field has been the ambiguity of its social undertaking; its critical or political standpoint or challenge to existing theoretical paradigms. Most of the interest around the term has been in very instrumental terms, as a facilitator or enabler of certain kinds of digital practice. Alan Liu further explains this in what he sees as the role of the Digital Humanities in cultural criticism when he says, “Beyond acting in an instrumental role, the digital humanities can most profoundly advocate for the humanities by helping to broaden the very idea of instrumentalism, technological, and otherwise. This could be its unique contribution to cultural criticism’’.[4] While the move away from computational analysis as a technique to facilitate humanities research is quite apparent, the disciplinary concerns here still seem to be latched onto those of the traditional humanities.

While reiterating some of these core questions within Digital Humanities; Dr. Souvik Mukherjee and Dr. Padmini Ray Murray, at the Department of English, Presidency University, Kolkata speak of the problem of locating the field in India, where work is presently only being done in a few small pockets. The lack of a precise definition, or location within an established disciplinary context are some reasons why a lot of work that could come within the ambit of Digital Humanities is not being acknowledged as such; conversely it also leads to the problem of projects on digitisation or studies of digital cultures/cyber cultures being easily conflated with Digital Humanities. Related to this also is the absence of self-identifying ‘digital humanists’ (a problem outlined in the earlier blog, which will be explored in detail further in this series). More importantly, the lack of an indigenous framework to theorise around questions of the digital is also an obstacle to understanding what the field entails and the many possibilities it may offer in the Indian context. This is a problem not just of the Digital Humanities, but in general for modes of knowledge production in the social sciences and humanities that have adopted Western theoretical constructs. One could also locate in some sense the present crisis in disciplines within this problem. Gopal Guru and Sundar Sarukkai explicate this very issue when they talk about the absence of ‘experience as an important category of the act of theorising’ because of the privileging of ideas in Western constructs of experience. This is also reflective of the bifurcation between theory and praxis in traditional social sciences or humanities epistemological frameworks which borrow heavily from the West. Digital Humanities while still to arrive at a core disciplinary concern, seems to point towards the problem of this very demarcation by addressing the aspect of practice as a very focal point of its discourse.

Even from diverse disciplinary perspectives, at present the understanding of Digital Humanities is that it facilitates new modes of humanistic enquiry, or enables one to ask questions that could not be asked earlier. As Prof. Dasgupta reiterates, it is no longer possible to imagine humanities scholarship outside of the ‘digital’ as such, as that is the world we inhabit. However, while some of the key conceptual questions for the humanities may remain the same, it is the mode of questioning that has undergone a change — we need to re-learn questioning or question-making within this new digital sphere, which is in some sense also a critical and disciplinary challenge. While this does not resolve the problem of definition, it does provide a useful route into thinking of what would be questions of Digital Humanities, particularly in the Indian context.

References:

Cutrofello, Andrew, “Practicing Philosophy as a Discipline of Resistance’’ Discipline and Critique: Kant, Poststructuralism and the Problem of Resistance State University of New York Press: 1994 pp 116 - 136.
Kirshchenbaum, Mark “What is Digital Humanities and What is it Doing in English Departments”, Debates in the Digital Humanities, ed. Mathew K. Gold, University of Minnesota Press: 2012 pp 4-11, http://dhdebates.gc.cuny.edu/debates/text/24
Liu, Alan in “Where is Cultural Criticism in the Digital Humanities”, Debates in the Digital Humanities, ed. Mathew K. Gold, University of Minnesota Press: 2012 pp 492 – 502 http://dhdebates.gc.cuny.edu/debates/text/24
Guru, Gopal and Sundar Sarukkai, The Cracked Mirror: An Indian Debate on Experience and Theory, Oxford University Press, 2012, pp 1-8.

[1]. See Mark Kirshchenbaum “What is Digital Humanities and What is it Doing in English Departments”, Debates in the Digital Humanities, ed. Mathew K. Gold, (University of Minnesota Press, 2012 ) http://dhdebates.gc.cuny.edu/debates/text/24

[2]. This is a rather simple abstraction of ideas about discipline and reason as they have stemmed from Enlightenment thought. For a more elaborate understanding see ‘Conflict of the Faculties' (1798) by Immanuel Kant and ‘Discipline and Punish' (1975) by Michel Foucault. For more on Kant’s essay see The Conflict of Konigsberg by Anirudh Sridhar.

[3]. See Andrew Cutrofello in ‘Discipline and Critique: Kant, Poststructuralism and the Problem of Resistance (State University of New York Press, 1994).

[4]. See Alan Liu in “Where is Cultural Criticism in the Digital Humanities”, Debates in the Digital Humanities, ed. Mathew K. Gold, (University of Minnesota Press, 2012).

Note: This blog post draws primarily from conversations with faculty at Jadavpur University and Presidency University, Kolkata, both of whom offer courses on Digital Humanities.

For more details visit https://cis-india.org/raw/digital-humanities/digital-humanities-problem-of-definition