Centre for Internet and Society

We’ve All Got Some Baggage

lawrence — 2014-05-29T07:22:29Z

America’s newest trade agreement is not going to kill only iPods. The article appeared in the Tehelka Magazine Vol 7, Issue 45, Dated November 13, 2010

EARLIER LAST week, a group of renowned academics in the United States wrote a letter to President Obama criticising his administration for the secrecy with which a new trade agreement, the Anti-Counterfeiting Trade Agreement (ACTA), was being negotiated. They argued that the agreement that has immense public interest implications, including freedom of speech and expression, privacy, access to medicines and access to technology, has been conducted only with the interests of large corporations in mind. The first official release of the draft text of this treaty took place only in April 2010, and since then there has not been a single public meeting to invite comments on the text. So what is the deal on ACTA, also known in some circles as the ‘iPod killer’ agreement, and why should we in India be concerned about it? To get a sense of the importance of ACTA, it would be useful to understand briefly the history of negotiations on multilateral agreements on intellectual property.

The establishment of the World Trade Organisation (WTO) and the successful conclusion of the negotiations of the TRIPS agreement set a minimum standard for intellectual property laws across the world. In the absence of an international standard, countries have far more flexibility in creating national laws that may be more suited to the development or technological needs of their society, and this is especially for developing countries hoping to create indigenous technological capabilities.

The best example of this perhaps is the rise of the generic pharmaceutical industry in India. Till the Patent Amendment in 2005, India did not recognise the grant of a product patent for drugs, and only allowed a process patent. This enabled pharmaceutical companies in India to import expensive drugs, reverse engineer them and create cheaper alternatives. And it is through this that India became a country that not only produced affordable medicines, but also exported them to many other countries, particularly in Africa.

After India became a member of the WTO and a signatory to the TRIPS agreement, it was obliged to change its patent laws to recognise product patents on drugs. It is clear then that the establishment of a multilateral venue for the creation of common norms can often act against the interests of developing countries that have much less of a bargaining power. This was particularly true in the early days of the WTO.

However, as countries like India, China and Brazil grew in strength and others also started getting a better sense of how developing countries could play the multilateral game, the very mode that was supposed to guarantee the protection of the interests of the global north became the basis through which other countries started articulating their own concerns. In 2004 for instance, the World Intellectual Property Organisation (WIPO) adopted a proposal for the establishment of a Development Agenda. This declaration proposed by Brazil and Argentina and supported by many countries of the southern hemisphere sought to bring development concerns into the agenda of the WIPO, thereby limiting the absolute rights of owners of intellectual property and argued for a more equitable global IP regime.

Two weeks after WIPO’s September 2007 adoption of the Development Agenda, the US, European and Japanese officials announced that they would seek to negotiate a new agreement in order to “set a new, higher benchmark for enforcement that countries can join on a voluntary basis”. Thus began the negotiations around the Anti-Counterfeiting and Trade Agreement.

ACTA is a new and separate international agreement dedicated to the enforcement of intellectual property. While some alleged that it was an effort to address existing limitations in the TRIPS agreement, it actually creates a wide range of policing powers. The two biggest concerns about ACTA include the creation of a new global IP enforcement regime by granting powers to customs officials to act as watchdogs for IP infringement. This essentially means that customs officials have the right to inspect any electronic device, including computers, hard drives and music devices, for copyright infringing materials. A scary proposition for anyone who travels. While apparently there are discussions over whether personal use items will be exempt, the fact that the agreement is being negotiated in such secrecy means that we don’t really know what the implications actually are. The second area of concern is the fact that ACTA dramatically intervenes in the creation of Internet policy — notably in regard to the liability of ISPS, search engines and other third parties to charges of ‘contributory’ infringement.

A pirated DVD is very different from a spurious drug, which is very different from a fake Gucci bag, and yet ACTA treats them all alike

THE PRIMARY supporters of ACTA include the US, the European Union, Japan, Germany, Switzerland, Australia, South Korea, Canada, New Zealand, Jordan, Morocco, Singapore and the UAE. Notably absent are many of the industrialised middleincome countries that have been the principal targets of the US and European enforcement concern in the past decade: Brazil, India, Russia, South Africa and China.

ACTA introduces a confusing language that deliberately attempts to bring things together that are not related. A pirated DVD is very different from a spurious drug, which is very different from a fake Gucci bag, and yet ACTA brings them all under the ambit of counterfeit goods. The negotiations of ACTA highlight the fact that the US and some countries in Europe have realised that multilateral venues like the WTO and WIPO are no longer the happy hunting grounds of hegemonic aspirations, and that it makes more sense now to have an agreement that is initiated by powerful countries who then use a bilateral mode of coercion to have countries sign on and then make it a multilateral agreement.

The classic mode of coercion, followed for instance by the US, has been the annual United States Trade Representative (USTR) reports that rank countries on the basis of their IP enforcement. Based on their assessment, they place countries on different watch lists, and these are backed by trade sanctions against a country. India and China have consistently made it to the priority watch list for the past 10 years, and using a carrotand- stick approach, the USTR makes recommendations for changes in national laws. It seems the failure to create norms at multilateral forums necessitated the creation of forums like ACTA, which when combined with the USTR, are used to exert pressure that can convert countries resistant to a dominant IP system into accepting higher norms on a voluntary basis.

Read the original here.

For more details visit https://cis-india.org/a2k/blogs/some-baggage

Exceptions and Limitations in Indian Copyright Law for Education: An Assessment

lawrence — 2011-10-20T14:08:01Z

This paper examines the nature of exceptions and limitations in copyright law for the purposes of the use of copyrighted materials for education. It looks at the existing national and international regime, and argues for why there is a need for greater exceptions and limitations to address the needs of developing countries. The paper contextualizes the debate by looking at the high costs of learning materials and the impediment caused to e-learning and distance education by strong copyright regimes.

Dowload the pdf

Read the original article in the Law and Development Review

For more details visit https://cis-india.org/a2k/blogs/exceptions-and-limitations

Aaron Swartz: The First Martyr of the Free Information Movement

lawrence — 2013-01-24T12:26:02Z

Well known American computer programmer, writer, political organizer and Internet activist died on January 11, 2013. Lawrence Liang from the Alternative Law Forum discusses with Newsclick the tragic loss. The interview was conducted by Prabir Purkayastha.

This interview was originally published by NewsClick on January 19, 2013.

Discussing on the immediate background in which this tragic event happened, Lawrence says that all of us are collectively mourning the death of an extremely talented individual. He adds that Aaron was facing a very difficult trial ahead. A couple of years ago he had plugged his computer on to the MIT network and had downloaded approximately four million articles from JSTOR (primary database for social science and other science journals) and he had intended to make freely available. This act of his in many ways marks Aaaron's short life but one which is marked by a certain commitment and activism around the idea of free knowledge.

Lawrence further says that his anger at databases like JSTOR was the fact that they were charging extraordinary amounts of money to provide access (which meant that they were not available to most people in the world) without paying any royalty to the authors contributing to the article or to the people who do the peer review of the articles. Here is a scenario which is rent control of the worst kind essentially of knowledge which is completely privatised and enclosed (public knowledge which is enclosed in this particular way).

Most researchers and academics who work and contribute towards making of journals do not get compensated for it but are paid for by public money because they happen to be employed by universities or research centres. And then all this material goes behind pay walls. And that is the context in which we need to understand Aaron's life. Click below to watch the full interview:

Video

For more details visit https://cis-india.org/openness/blog-old/aaron-swartz-the-first-martyr-of-free-information-movement

A Lightness of Spirit

lawrence — 2013-02-11T06:28:43Z

Disability activist Rahul Cherian leaves a legacy of thinking about human rights as rights for the maximum enjoyment of life.

The op-ed by Lawrence Liang was published in the Hindu on February 9, 2013

The word spirit travels to us via Latin where spiritus literally means breath but is more accurately a description of the vigour and vitality of a being. It is therefore appropriate that while breath marks the line between life and death, an infectious spirit vitalises everyone with their being regardless of the presence or absence of their breath. Rahul Cherian — intrepid spirit and tireless activist for disability rights — passed away on February 7 after a sudden illness.

While many of us feel cheated by the death of someone so young, let us not be mistaken: it was always Rahul who cheated death all along, and Robin Hood-like, generously distributed his infectious enthusiasm, laughing his way out of the bank of life. Diagnosed at a very early age with a spinal tumour, hospitals and surgeries were no strangers to him; they were mere playmates from whom he learnt the value of not taking illness too seriously.

Impact on Verma report

After a surgery in his 30s in which he lost partial mobility of his legs, Rahul became involved with the rights of disabled people and started “Inclusive Planet,” an organisation that works on all aspects of disability rights — from accessibility policies of the government, to reform in copyright law to enable persons with visual disabilities the right to read. He was instrumental in the drafting of the Treaty for the Visually Impaired, currently being debated at the World Intellectual Property Organization (WIPO), as well as the amendment to the Indian Copyright Act to enable exceptions for persons with disabilities.

Most recently, “Inclusive Planet” made a set of submissions to the Justice J.S. Verma Committee on the reform of sexual assault laws from the perspective of disabled victims, many of which were incorporated into the final report.

In articulating an innovative jurisprudence of disability rights, it was clear that his sense of play and a belief that emancipation comes from a sense of joy, not of sorrow, always informed whatever he did. Thus even as he fought in all fora for equal citizenship of disabled people, he also included a dating service for them and a section on disability and humour on “inclusiveplanet.com”. A telling sign of his joie de vivre was an “Inclusive Planet” T-shirt that had an alien with crutches pointing at you saying, “You are not alone.”

I remember being in a meeting with him and various representatives of organisations fighting for the rights of the visually impaired to discuss with the government the Copyright Amendment Bill. As the negotiations seemed to head towards a frustrating bureaucratic wall, he turned to me in exasperation and said, “Things better start improving or I will be forced to hit someone with my crutches and that will be terrible for the image of the disability movement.”

In an interview in Geneva, Rahul enthusiastically demonstrated his new foldable scooter with which he said he could “go on his own and buy his wife Anjana a present.” He added: “I used to call myself a disability activist but now I consider myself a freedom fighter because I am actually fighting for freedom to access the city. Coming from the land of Mahatma Gandhi, I am proud to say I am a freedom fighter and let’s see what kind of freedom we can win for disabled people.”

Rahul leaves behind an important legacy in terms of his work, but a far more important one on how we understand the very idea of a free spirit. His singularity, while irreplaceable, provides us with a vocabulary of thinking of human rights struggles as really a right to the maximum enjoyment of life and doing it with a sense of lightness.

Enumerating lightness as one of the desirable attitudes to cultivate, Italian writer Italo Calvino urged us to recall Perseus’s refusal of Medusa’s stone-heavy stare. To slay Medusa without himself being turned to stone, Perseus supports himself on the lightest of things — the winds and the clouds — and “fixes his gaze upon what can be revealed only by indirect vision — an image caught in a mirror.” Calvino reminds us that Perseus’s strength lay in his refusal to look directly, but not in a refusal of the reality in which he is fated to live. Sleep well Rahul — you have taught us well that laughter and lightness are our greatest weapons against adversity.

(Lawrence Liang is a lawyer at the Bangalore-based Alternative Law Forum.)

For more details visit https://cis-india.org/accessibility/blog/the-hindu-op-ed-lawrence-liang-feb-9-a-lightness-of-spirit