Centre for Internet and Society

WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 3 of 3)

nehaa — 2014-04-01T09:48:59Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th session. This blog post (Part 3 of 3) summarizes Day 4 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

Day 5 – 26th SCCR

The agenda for the final day of the 26th SCCR was set as limitations and exceptions for educational and research institutions and for persons with other disabilities.

Trinidad and Tobago, speaking on behalf of the GRULAC group of nations, supported the idea of an international convention on this agenda. It was of the opinion that such an instrument would work for the benefit of the economic development and socioeconomic enablement of millions of people in the GRULAC region. Algeria, speaking on behalf of the African Group, emphasized the digitalization of education, research and living across the world and the impact that this has on the right of peoples of all nations to access knowledge. Responding directly to sustained opinion from the developed world of the absence of a need for an international convention, Algeria spoke about the need for balance and uniformity in regulations. This balance between the right to access knowledge and to protect intellectual property is often achieved through the concept of limitations and exceptions. This balance also requires uniformity because conflicting cross-border norms in our digitally borderless world would render the ameliorative effects of limitations and exceptions moot. Further, the Berne Convention has proved to be of minimal help since interpretations have emerged of its dissonance with the tools needed for distance education. Therefore, in order to cover the digital dimension of limitations and exceptions, an international treaty is critical. In the words of the Algerian delegate, “We know that the balance between Intellectual Property rights and public interest are generally translated by exceptions and limitations. Unfortunately in the area of education and scientific research, national legislation does not seek this balance in a uniform and comprehensive manner.”

The delegate also responded to concerns about the text proposed by the African Group. The proposal, he said, was a text-oriented tool to find an apt balance. Further, it was also imbibed with a certain degree of flexibility to allow for its adaption to the needs of development as understood by nations, various kinds of copyright protections and various treaties in literary and artistic property. Furthermore, the African Group wished for this text, if adopted, to move on the principle of consensus and expressed a willingness to incorporate any constructive concerns that delegates may have in order to stay true to the ideal of consensus-based diplomacy.

A number of developing and developed countries supported the need for greater discussion at the international paradigm on the topic of limitations and exceptions, and also the swift adoption of an international instrument in this respect. Kenya and the Islamic Republic of Iran put their weight behind the African Group, emphasizing similar values of digitalization of information and communication, right to access knowledge, public interest and need for an international instrument. Tunisia also supported the notion that an international instrument would lead to the harmonization of standards and benefit the international community. China came out in strong support of further negotiations. Russia noted that it was in support of a single document for limitations and exceptions that covers within its ambit the entire gamut of protections discussed at this forum. Further, it also supported the contention of the Japanese delegation that the international instrument should not include contentious issues such as instance liability.

It is also pertinent to note that Japan, on behalf of Group B, came out against the idea of a treaty based approach to the negotiations, much preferring “constructive work on principles and updating of studies by the Secretariat”. The European Union submitted that the extant international copyright framework was both adequate and ideal for the needs of both the digital and analog world of education, research and needs of persons with other disabilities. The EU proceeds to draw a distinction between the needs of educational and research institutions and persons with other disabilities vis-à-vis needs of persons with visual and print impairment. In drawing this distinction, it seeks to achieve principled coherence across its support for the Marrakech Treaty and its opposition to any treaty on limitations and exceptions. It expressed concern that the working document was not an accurate reflection of the views of those countries that were of the opinion that present negotiations should be confined to the sharing of national experiences. Given the diversity in domestic regulations, any international treaty should seek to achieve domestic regulatory harmony and then proceed, assuming that the need argument fails to hold water.

The Indian delegate submitted that the discussions were in furtherance of earlier deliberation on limitations and exceptions for libraries and archives. There was a dire need to understand libraries and education not in a parochial, institutional sense but in a broad and enabling manner to meet the needs of developing and least developed nations. Both the material and transmission should be covered in order for distance learning to be enabled in any meaningful manner. Further, it was also of the opinion that an expansion of ISP liability is needed, citing the IT Act in support of this.

At this point, the developing nations made their voice heard in opposition to the fundamental premise of the ongoing negotiations – that an international treaty is a worthwhile goal to work towards. Poland, on behalf of the CEBS Group, commecnced his statement by taking cognizance of the importance of educational and research institutions and activities in our society and economy. The delegate recognized the existence of the knowledge triangle of education, research and innovation. Proceedings from this premise, it was the view of the CEBS Group that the best way to hone this innovation is by establishing a robust and strong system of intellectual property. Further, it went on to draw the link between the critical activities of distance learning, collaborative research with the activities of publishing and other aspects of the creative sector. Copyright policies therefore have to also take into the account the economic and social effects of not enabling access to research. The CEBS Group argued for a balanced copyright approach. It went on to support the idea of each WIPO member incorporating enabling limitations and exceptions within their domestic copyright regimes through a mutual sharing of best practices and national experience using multilateral for a such as this one. It was of the belief that modern copyright systems should provide for efficacious licensing mechanisms that are flexible, supportive and enabling to education, research and teaching activities as well as the needs of persons with other disabilities. Supporting the values emphasized by the developing world does not necessarily require the adoption of a binding international instrument. It concluded that the need to develop a comprehensive understanding of limitations and exceptions should not come at the flexibility that is conventionally afforded to WIPO member states to determine their own educational, research and teaching policies and norms to enable the lived experience of persons with disabilities.

The United States started by submitting their own document – SCCR/23/4 – on objectives and principle for limitations and exceptions for libraries and archives. The US chose to further the CEBS submission by underscoring the potency of the extant copyright regime – Berne Convention 1886 and WIPO Copyright Treaty 1996. Both have a balance between copyright and education and have the promotion of education, research and teaching as their stated goals. Therefore, notwithstanding the contention that they are anachronistic given the digitalization of information and communication, it is possible to accommodate contemporary needs within existing regimes. The US stated that it was of the opinion that finding common ground on principles and an examination of the diverse national treatment of the issue of limitations and exceptions would render a more productive, positive solution than foisting a treaty or international legal instrument on the domestic regimes of WIPO members. It was of the opinion that this would “permit progress by promoting steps forward on shared goals and principles while enhancing international understanding and maintaining flexibility at the national level. We do not support work towards a treaty.” It also went on to voice concerns about the inclusion of controversial and broad areas of protection within the rubric of the treaty – topics such as public health and ISP liability were causing much consternation to the delegate of the United States. A plethora of reasons were advanced by the US that articulated its layered opposition to this entire process. There was a concern that given fundamental differences of opinion, inclusion of contentious protection would be pernicious to the negotiation itself. It was also of the opinion that a lot of the provisions had only incidental relevance to the central question of education and rights of persons with other disabilities would distract the nations from the purpose of the proposed international instrument. This proliferation of protections would in turn harm the considerable economic, social and political capital invested in the negotiation process.

Senegal affirmed the idea of an international agreement on limitations and exceptions. It believed that the contemporary is far removed from the world in which the Berne Convention and extant international copyright regime was conceptualized. Therefore, Senegal was in favour of a flexible international instrument that responded to digitalization and was proactive rather than reflexive. Sudan also threw its weight behind the African Group proposal and offered a scathing critique of the exclusivist tendencies of the contemporary copyright regime. It called for “efforts to break the current situation faced by certain countries in communication or in building the infrastructure and bridging the digital gap.

Columbia, on the other hand, spoke about the need to understand if there is a lacuna in the present international copyright regime and understand the implications of adding to existing corpus of limitations and exceptions.

At this juncture, the Chair opened the floor for contributions from civil society representatives. Knowledge Ecology International focussed its submissions on three foci – specific exceptions, three-step test and the corporate system. KEI acknowledged the raft of protections for limitations and exceptions within existing copyright structures but articulated the need for specific exceptions. Further, it reasoned out the incompatibility of the Berne three-step test with the needs of contemporary knowledge creation, research and access. Transplanting the Berne Convention to this context would render it moot and have far-reaching pernicious consequences on the international community’s reactions to dire questions of access particularly in the developing and developed world. KEI acknowledged the underlying premise of US/EU/Group B objections to an international instrument by pointing out the difference in national treatment of limitations and exceptions. As a response to this legitimate concern, it suggested that complimentary confidence building measures such as a multi-stakeholder platform work alongside the treaty negotiations so as to ensure that it is an inclusive process that alienates no stakeholder.

IFRRO came out in strong support of the position against an international treaty. It stated that in pursuit of limitations and exceptions, one must not lose sight of the legitimate rights that creators have over their work. Diluting that principle would do harm to the idea of copyright and by extension creative and innovative thought. In support of this contention, studies were cited that showed a causal link between IP protection and income of authors.

The Centre for Internet and Society underscored the value of universal access to education and knowledge. Information and communication technology in the contemporary carry the tantalizing prospect of the realization of this ideal without excessive expenditure. It is also critical for this access question to be all-inclusive, for “formal and informal institutions and for environments and in digital and non-digital formats”. The experience of developing and least developed nations is a feeling of exclusion from the silos of knowledge in the west and it falls upon the international community to disrupt these silos to ensure equitable access to knowledge and, as a consequence, power. Individuals in these countries not only have to spend more on each book but have to spend a higher proportion of household income on it vis-à-vis Western households. The present international copyright framework lacks the ability to facilitate the realization of this ideal for three reasons. First, the myopic and complex compulsory licensing provisions in the Berne Convention. Second, the incompatibility of the three step test to contemporary limitations and exceptions. And finally, the need for harmonization of national practices and facilitation of cross-border exchange of information and knowledge.

On being called on by the United States, Ecuador and Egypt, it was decided that the Secretariat would study the possibility of a study on the ambit of copyright and related rights as also limitations and exceptions for persons with disability and from the perspective of learning concerns. It was also decided that the Secretariat would update regional studies on limitations and exceptions for educational, research and teaching institutions.

The next session, SCCR 27, would focus on a discussion on exceptions and limitations with a focus on libraries and archives.

Draft Conclusions

The draft conclusions to this year’s SCCR was put up by the Chair for comments by all members. Belarus and CEBS fully supported the text and praised it for its balanced approach. The United States also supported it but requested an edit to Paragraph 6 Line 4 – a ‘to be defined’ in parenthesis after the words ‘on demand transmissions’. India expressed gratitude that everyone’s views were taken into account in the draft conclusions and asked for two edits. It stated that parts of the discussion on Article 9 were absent from the text. Further, the words beneficiaries in the draft conclusions was included when it had no definition in the document. Finally, it suggested that the word last line in paragraph 5 be changed to might or may. The Chair responded to India’s concerns on paragraph 5 by directing attention to the word ‘if’ in the text. Ecuador and Brazil both supported India’s opinion that the word should be may or might and not should. India submitted that this is not simply an editorial or cosmetic change but one that reflected a substantive issue. Ecuador also stated that countries might in the future want to include internet transmissions and the word should conditions the negotiations, lending it a restrictive air. Brazil also stated that it was crucial for the text to be both balanced and reflective of every stakeholder’s concerns. India stated that this was a demand from two or three groups. The lack of consensus on this point implies that the word should be may and not should. The EU, US, Japan, Switzerland and Poland (on behalf of the CEBS) supported the text in toto- a tacit snub to India’s suggestion. Italy stated that the word ‘if’ in the text provides the kind of flexibility that India is seeking and that altering the word should to may would rob the provision of meaning and be grammatically grotesque. Looking for alternatives, India also requested that the words ‘at least’ be deleted in order for some aspect of its concerns to be taken into account. Belarus characterized the text as entirely factual and accurate portrayal of the negotiations that took place-gave its support to the entire text. The Chair then offered an explanation of the terminology and showed how the wording allowed for both possibilities of inclusion and exclusion of transmission over the internet.

Indian then turned attention to the lack of a definition to the word beneficiaries. The Chair acknowledged India’s concerns and accepted the US suggestion to add the words ‘to be defined’ after both beneficiaries and on demand transmissions. Brazil also suggested traditional broadcasting/cablecasting or broadcasting/cablecasting organizations in the traditional sense as possible ways to word the text. The EU requested the Chair for some language suggestions on how best to resolve this. The proposals (and not issues, after a request from India) on Articles 5,6,7,9 and 12 were added to the annex. After the incorporation of all these concerns and compromises, the Chair approved this section.

Libraries and Archives

On the limitations and exceptions for libraries and archives, the United States made two suggestions. First, that the word may be removed from paragraph 18 as it detracta from the nature of the deliberation on that point. Second, the inclusion of the phrase “other proposals submitted” in paragraph 21. Brazil stated that it stood for the draft conclusions to be a clear picture of the positions adopted by WIPO members. In this light, it called for the inclusion of the names of member states that wished to discuss national laws in paragraph instead of the nebulous phrase ‘some member states’. He also requested a clarification on the last line of paragraph 16. Trinidad and Taboga indicated that it was adopting a flexible approach; it supported the suggestions by the US and Brazil but were also willing to work with the text.

The European Union wanted the word ‘also’ to be removed from paragraph 14. It also suggested that the final sentence of paragraph 16 be “these studies will serve as information and work resources for the committee”. Ecuador agreed with the US working document. It was of the opinion that the document should better reflect a spirit of compromise. On limitations and exceptions for museums, given the study reflected in the plenary for persons with other disabilities – there was a discrepancy between the discussions and the text. One was with the understanding that it was subject to the availability of resources while the other implied that it was mandatory in nature. The EU wanted licensing to be included in the text. The US thanked Ecuador for working out a compromise on the language and accepted it. Algeria expressed its desire to stick to the language proposed by the Chair on paragraph 13.

The Brazilian delegate called for flexibility on paragraph 14 in light of the proposal by the EU delegation on the point of discussion on national laws. The United States responded that it didn’t quite follow the position being adopted by the Brazilian delegate on paragraph 14 and much preferred a return to the text originally adopted by the Chair. Egypt pointed out the possible confusion that could emerge between paragraph 16 and 21, and in light of this expressed a willingness to engage in a full scale discussion on proposals from Canada and the EU. The EU responded directly to paragraph 14 in particular. It spoke out against the idea of listing the WIPO members that asked for a discussion on national laws as this would be against WIPO practice both in other parts of the same document as well as in other deliberations. EU stated that it saw no need to list out WIPO members and stood firmly against it. Brazil responded with a modicum of alarm at the opposition to the simple proposal to introduce the elements of precision in a document that is meant to be factual. It is far better for readers to understand the precise picture rather than having a general understanding of issues. Italy, Belarus and Greece threw their collective weight behind the EU opposition to this. All stated that this would be highly inappropriate and would amount to the singling out of the EU and other nations that took a stance, something that they didn’t see a need for. The US proposed a compromise where instead of naming the member states, ‘some member states’ would be used. Brazil said that this term was not just nebulous but could give the wrong impression to future delegates of the precise number of states that wished for discussion on national laws. Ecuador played the role of the voice of reason and stated that the progress of negotiations shouldn’t be hampered because of such a cosmetic set of differences. There was no need for the level of precision that was exemplified by the naming of WIPO members. Instead, it stated that it advocated for a general references to nations that asked for a discussion on national laws. This general reference was supported by Algeria and finally adopted by the Chair as a compromise between the opposing factions. On paragraph 16, the Chair called for the part on limitations and exceptions on museums to be deleted with the understanding that there would be an update by Professor Kenneth Cruz that would include all aspects of this issue. On paragraph 14, the Chair was in favour of the compromise suggested by the United States. It stated that in using the word ‘some’ no particular number or indication thereof was intended and that caveat was always there; instead what was only meant through the word ‘some’ was that the number of was more than one. Asked for Brazil to show some flexibility in this situation. Egypt raised the important issue of not conflating the fundamental disagreement on the nature of the proposed instrument and the desire to have discussions on national laws. It stated that in case both were being included, they be mentioned in separate paragraphs because a conflation would lead to misplaced conclusions being drawn.

Deliberations on paragraph 16 ensued and the Chair clarified that on paragraph 16, the first and third sentence were being retained while the second was done away with. Ecuador asked for thereto be no confusion between studies on limitations and exceptions and those on museums. Its objection does not extend to the latter. The Chair suggested that all references to museums be deleted. Algeria wanted the words on preparation not being delayed to be retained and applied to all studies being proposed. US agreed with the Chair’s proposal but added that perhaps a separate study on limitations and exceptions on museums be included. Algeria insisted that this principle be applicable to all studies and not just studies on museums. The Chair stated that a separate study on limitations and exceptions for museums be included with the understanding that this would not delay general discussions on limitations and exceptions. The last sentence was also retained. With this, deliberations on this topic were closed.

Limitations and Exceptions For Educational and Research Institutions and for Persons with Other Disabilities

The European Union delegate stated that it was in support of the inclusion of the point on licensing as an appropriate point in the text. Sharing Algeria’s concern, it also called for the deletion of the word ‘understood’ in paragraph 23. Algeria had earlier raised a problem with the use of the word ‘understood’, preferring the phrase ‘agreed on’. The EU also called for the text to be accurate reflection of the negotiations. Brazil responded to the concerns of the EU delegate by stating that he would not be in support of a suggestion that this document not be the basis for future work on this topic. Ecuador supported Brazil’s point on this being a text-based negotiations and that this should be the basis for future deliberations. Brazil also expressed a bewilderment at the EU insistence of the inclusion of the point on licensing. It asked for its relevance in an agreement on educational institutions; a clarification was sought from the EU. The EU responded that it was of the opinion that we’re dealing with related subjects that deserve equal treatment. In this context, since licensing was included in the previous agreement, it must also be reflected in these conclusions.

Egypt supported the Chair’s language in paragraph 23. Further, it went on to attempt a compromise by suggesting that this text be not the basis for future text-based work but a basis. This would lend the issue a degree of much-needed flexibility. The US, on the side, supported the EU on including licensing schemes. The EU responded favourably to the compromise suggested by Egypt and said that a text where the word the is replaced by a is one that is agreeable to the EU.

The Chair outlined the three issues as

The word ‘the’ in Item 27
The inclusion of the point on licensing and the tussle between the EU (arguing for inclusion, supported by the US) and Brazil (against the inclusion).
The point of this being the basis for future text-based negotiations and the compromise suggested by Egypt and accepted by the EU.

A compromise was worked out on licensing where the words “but other delegations do not see it that way” be included as a rider. Differences on points 1 and 3 were also ironed out as the Egyptian compromise was accepted. On this point, the third section was approved and deliberations came to an end.

Other Matters

It was announced that the reports of the Stakeholders’ Platform – SCCR/26/5 and SCCR/26/7 – be put up on the web page. Finally, suggestions were wielded and discussed for future meetings of the SCCR.

It was agreed that SCCR 27 would be dedicated to the protection of broadcasting organizations (two-and-half days), limitations and exceptions (two days) and conclusions and discussions on future work (half a day).

Additional Links

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-3

WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 2 of 3)

nehaa — 2014-03-20T04:52:53Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th session. This blog post (Part 2 of 3) summarizes Days 3 and 4 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

26th SCCR – Consolidated Notes

Day 3

The Chair commenced proceedings by noting the need to take stock of the work done over the course of the first two days of proceedings. He stated that we needed to see the points of agreement as well as sticking points that persisted in order to chart a path towards resolution. There was an urgent need for clarity.

The floor was opened to Delegations and Regional Groups. The document before the countries is the one on draft conclusions for the discussions surrounding the Broadcast Treaty.

Belarus starts by expressing its support for the document before it and is ready to engage with any proposals that nations might have on it. Poland wanted the wording changed to broadcasting an cablecasting organizations in the traditional sense, but expressed its support for the document otherwise. A few other delegations, such as the one from Trinidad and Tobago, also expressed unease at the terminology of ‘traditional broadcasting organizations” in the document and much preferred broadcasting and cablecasting organizations in the traditional sense. Notwithstanding these concerns, there was considerable support for the draft conclusions.

The EU wants its discussions on transmissions over the internet to also be included as a part of the draft conclusions.

Libraries and Archives

Trinidad and Tobago expressed its full support for the exceptions and limitations for libraries and archives. They were keen to “close this gap to strengthen the copyright system as well as the human and collective rights for the benefit of creators and users alike”. It stated that the progress made in this regard was entirely consistentwith the Millennium Development Goals and the Development Agenda of WIPO. The CEBS group also came out in support of this framework. Further, it added that it would benefit greatly from the sharing of national experiences in this matter. It was stated that the modern copyright system should have a licensing system that is supportive of libraries, archives and other every day research. CEBS was sceptical however of the need to enter into any sort of international treaty in this regard. The delegate from Bangladesh pointed out the acute need for this limitation and exception particularly from the perspective of a developing nation in dire need of free flow of information. In this context, the Indian delegate was invited to make comments. The EU put on record its opposition to any sort of binding international instrument in this regard, and they wished to see this desire reflected in the title of the document. Iran called for the commencement of text-based negotiation since it was fairly clear that there was a need for an international instrument in this matter. Colombia concluded by stating that access to knowledge should be the guiding principle for the exceptions and limitations. It was very important for the libraries to fulfil the public interest for there to be copyright protection to its activities. It stresses however the need to continue to provide incentive and legitimate copyright protection even within this framework.

Day 4

Discussions continued on the first topic of preservation as found in the SCCR/26/3 which focusses on exceptions and limitations enabling libraries and archives. For this session, the Chair outlined the issue up for comments as the right of reproduction and safeguarding copies.

Azerbaijan, speaking for the first time, stated that it took cognizance of the importance of exceptions and limitations and supported an international instrument on it. The purpose of limitations and exceptions should be to allow librarians and archives to preserve the documents. The documents protected should be used solely for research purposes and must be in accordance with fair practice. Australia clarified the role of preservation to be the continuing availability of physical and digital works already held in the collections of a library or archive for the benefit of present or past users. Critical to be very specific when talking about preservation in order to prevent the proliferation of rights. It stated that it was yet to be convinced of the need for an international instrument. Belarus noted that it supported the need for an international legislation. It supported the formulation of rules in this regard on the basis of the three step test, in order to maintain the balance of interests at play. It is imperative that strict rules of interpretation are employed while introducing this into domestic legislation in order to avoid ambiguous approaches that will lead to the abuse of the freedoms codified. The non-commercial and non-profit making nature of libraries and archives were emphasized. In explaining the merits of the three step test that would facilitate the entry of this international document into domestic law, Poland shared its national experiences in this regard with the group. Brazil suggested that the concern of proliferation of works voiced by many countries could be resolved by engaging in deliberations that result in clear definitions. It suggested that the intervention made by Canada be made into an annex as a subject that can discussed in the text in the future. Russia noted that the Berne Convention is the bedrock of international intellectual property and copyright law and coupled with reference to national legislation would help in reaching a common understanding on preservation. Morocco was in support of an international legislation since dealing with the problem nationally would be woeful piecemeal approach. Senegal pointed out definitional issues that were plaguing the discussion. If there was no common ground on the idea of a library and an archive, then the discussions on exceptions and limitations would not break any new ground. Therefore, the discussions appeared to be proceeding on two tracks – nature and scope of the exceptions and limitations for libraries and archives and the need for an international instrument that went beyond national legislation. The Chair opened comments on the latter track since that is foundational. The United States reiterated its opposition to any agreement that transcended national legislation. It also wished to introduce a bit of complexity in its discussions by pointing out that its domestic copyright law had no understanding of a library or archive. Therefore, it was going to be difficult to come to an understanding at the international level when national legislations themselves have not reached that point in their trajectory. Both El Salvador and Ecuador tacitly stated that they were in favour of an international legislation by continuing the discussion on merits. El Salvador opined that there was some degree of good faith involved and that was unavoidable in the pursuit of the desire to facilitate the sharing of knowledge. Greece stated that limitations and exceptions should only be applicable when an additional copy is not available in the market. Significantly, it stated that libraries and archives could enter into agreements with the rights holders by themselves. A flexible international framework was what Greece was aiming at, not an international legislation that went beyond national legislation. Both Greece and the EU suggested using the EU Copyright Directive as a starting point for defining libraries and archives. It asked for the flexibility it already had within the EU framework to be respected. Italy stated that it saw no international interest in a transnational agreement on exceptions and limitations. India emphasized the point that there was an international interest in preserving the culture of countries. The international dimension was in the context of cross-border cultural exchange. Congo came out in support of an international agreement as well. There was some degree of opposition from Greece that questioned India on why either manuscripts on cross-border cultural exchange had anything to do with preservation. In its opinion, those two goals could be achieved even without the formation of an international agreement on exceptions and limitations. India responded by clarifying that it did not use the example about ancient manuscripts in the context of copyright but the existence of an international interest in the matter of preservation. The issue of preservation of works within a library are for present and future use. This use, in today’s globalized world, is not just for the citizens of that country but for researchers the world over. In order to allow for thus cultural exchange, it was imperative that the copyright of the work not come in the way. Hence, there was the need for an international, and not merely national, legislation on the issue.

On France’s concern about Ecuador’s vague understanding of fair use, Ecuador clarified that this would be the same as in the Berne Convention and the three step test would apply. Finland, Jordan and Senegal then shared their countries’ national experience in this regard.

The Chair concluded the discussion on the first topic by articulating what he saw as a principle that is in the common agreement of all. In order to ensure that libraries and archives can develop their public service of the preservation of works in order to preserve knowledge and heritage, we need exceptions and limitations. Certain circumstances and guarantees are yet to be discussed and disagreements persist but none that threaten the need for a discussion.

Topic 2 – Right of Reproduction and Safeguarding of Copies

The Secretariat noted that there were proposals from the African Group, Brazil, Ecuador, India and the United States.

The EU opened the discussion with the suggestion that the title of this topic should only be focussed on the right to reproduction. This was in light of the nature of the proposals made by the various groups and nations. Ecuador situated the debate on the right to reproduction within the broader framework of limitations and exceptions for libraries and archives. It was imperative, it stated, that a right for libraries be carved out in order to facilitate the important social role they discharge. France added to the concern voiced by the EU in stating that it felt that safeguarding was already covered within the ambit of the previous topic. Brazil responded to this by drawing a clear cut distinction between the first and second topics. The right of reproduction was applicable to libraries while safeguarding was for archives. Both the role of the library and that of the archive merit discussion, it was emphasized, and both should equally be included in the second topic. Senegal supported the idea of an inclusive topic that mentions both the right of reproduction and safeguarding of copies. It stated that a distinct right of safeguarding was crucial at a time when vital cultural artefacts are vulnerable to destruction. The example of the museum in Timbuktu that was ravaged by militants leading to the irreparable loss of invaluable manuscripts was cited in support.

Italy voiced a two-pronged opposition to the very idea of articulating a right to reproduction. First, it stated that allowing for reproduction, even in University libraries, would open the floodgates to copyright violations. It was afraid that copyrighted material would be reproduced within the library which would then lead to that material appearing on for a not envisaged within the rubric of the treaty. Second, it was against the extension of the idea of research to private research. The transmission of the reproduced material to third parties would lead to a loss of revenue to the rights holder in question. To Italy, the latter was even more egregious since the former at least allowed for the possibility of, via the money paid for the reproduction, monetary compensation of the rights holder. The latter however had no room for this to be effected.

Belarus supported the EU position on the exclusion of safeguarding from the present discussions. Further, Belarus stressed that it wanted a caveat to the exception for scientific and educational research. It wanted the kind of material that would fall under the exception to be limited to “just articles or short works or excerpts from books” since “the student or researcher probably doesn’t need the whole book”.

Brazil assuaged the concerns of the right holders by pointing out that its proposal in paragraph 2 makes national legislation the focus. Fuether, it added that with respect to the international dimension to the rights, the GA had already stated that there would be an “international legal instrument”. Therefore, the multilateral nature of both the subject matter and scope of the negotiations is beyond the pale of doubt.

The representative from the International Council of Museums noted that all of the rights were equally applicable to museums as well. Very often, museums suffered from a lack of uniformity and harmonization of rules across multiple jurisdictions. This was the need it saw for an international treaty on the issue.

The Chair summed up the discussions. Despite the emergence of any sort of consensus, most countries had agreed for a need to have exceptions and limitations for libraries and archives. Further, a right to reproduction of works for libraries was recognized to facilitate the reproduction of certain works under certain conditions for the purposes of research. The scope of none of these terms have been agreed upon by states nor has there been much agreement on whether this extends to distribution of the material and to what extent. The EU and the USA mentioned that they did not think there was a need for an international agreement on this and the GA wording was not binding in any sense.

Topic 3 – Legal Deposit

The Secretariat noted that there were proposals from the African Group and India on this. This was not received very warmly by the delegates. Most thought it was out of the place in the current discussions. The US opposed the need for any discussion at the international level since the issues in question were codified in domestic law to varying degrees. Therefore, it could not be said that it was “ripe for harmonization”. Colombia found the concept of legal deposit “strange” in a document on exceptions and limitations.

Topic 4 – Library Lending

The Secretariat noted that there were proposals from the African Group, India, Brazil, Ecuador and Uruguay.

Ecuador explained in great detail that the reason behind this was to allow for libraries to lend copyrighted works to its users or to another library. Very often, research necessitates the movement of the physical copy of a particular work. In other instances, the presence of a particular copyrighted work in a specific library has great symbolic and cultural value, apart from its patent value for research activities. In furtherance of its earlier objections, Italy explained that lending could also lead to egregious copyright violations. Along these lines, it objected to the idea of digital lending since it went against the grain of lending because returning a digital copy was not possible or meaningful. The International Federation of Libraries, representative from civil society, pointed out that there were technological tools that would prevent the unintended and harmful proliferation of lent digital copies. Digital lending could take place by passing along a password encrypted digital copy that would expire after a set period of time.

Greece furthered the harm that this would have on copyrighted works by asking why anybody would want to get the original if lending is applied to the realm of films via digital transmission. Responding to the African Group proposal, it asked how this was in conformity with the three step test. The US responded by drawing a positive causal link between lending and commercial purchase of the product. Again, the Chair summed up by stating that agreement was that exceptions and limitations must extend to library lending but agreement on the scope and nature of this extension evaded consensus.

Additional Links

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-26-session-consolidated-notes-part-2

WIPO Standing Committee on Copyright and Related Rights (SCCR) 26th Session- Consolidated Notes (Part 1 of 3)

nehaa — 2014-03-20T04:49:55Z

From December 16 to 20, 2013, the Standing Committee on Copyright and Related Rights (SCCR) of the World Intellectual Property Organization (WIPO) met for the 26th Session. This blog post (Part 1 of 3) summarizes Days 1 and 2 of the proceedings of the 26th SCCR, based on my notes of the session and WIPO's transcripts.

Many thanks to Varun Baliga for putting this together, and to Alexandra Bhattacharya of the Third World Network for her notes and inputs.

26th SCCR – Consolidated Notes of the Proceedings

Day 1
There are three salient issues outlined as part of the agenda – i) work towards a treaty for the protection of broadcasting organizations, ii) exceptions and limitations for libraries and archives and for iii) educational and research institutions and for persons with other disabilities. [1] The number of days to be spent deliberating on each issue was also outlined – two days each on the first two issues and one day on the last issue i.e. exceptions and limitations for educational and research institutions.

The Chair of the SCCR was elected to be Mr. Martin Moscoso, head of copyright for Peru and Chair of the Drafting Group for the Marrakeech Treaty.

Opening Statements by Regional Coordinators
Trinidad and Tobago
The representative commenced his speech by pledging the commitment of the Latin American and Caribbean group of states to work on limitations and exceptions for libraries and archives, educational and research institutions and for persons with other disabilities. It emphasized the need for coherence between the activities of this group and the Millennium Development Goals of the UN and the Development Agenda of WIPO. Effecting the vision articulated by the agenda of this SCCR will help bring about this coherence. Finally, he added that the Group wished to discuss the broadcasting treaty on the basis of the mandate offered by the 2007 General Assembly. This mandate was to pursue a “signal-based approach” to the drafting process of any new treaty.

Poland
On behalf of the Central European and Baltic states, the representative reaffirmed the group’s support for establishing standards for the protection of broadcasting organizations in the form of a binding treaty. To this end, the Group put forth its proposal for a Diplomatic Conference in 2015 to the end of negotiating and implementing such a treaty. Finally, best practices were also emphasized and, pertinently, the Group indicated that it understood that the digitalized and globalized business and information economy of the contemporary necessitated a licensing of rights that was adequately reflective of its needs.

Japan
On behalf of Group B, Japan emphasized the importance the Group placed on text based discussions to the developing treaty mechanism for the protection of broadcasting organizations. It noted that any further understanding or future negotiations must rest on a common understanding of critical foundational issues such as definitions, scope of application of the instruments and the spectrum of rights or protections to be granted. Finally, an offer to share experience for the optimum functioning of limitations and exceptions was made. It was the opinion of Group B that the extant copyright framework enabled the limitations and exceptions to play out both in the digital and analogue world.

Bangladesh
On behalf of the Pacific Group, Bangladesh underscored the importance of situating all countries’ concerns and deliberations on the bedrock of the social and economic development needs of the Pacific Group nations. It identified the responsibility of countries to ensure that the limitations and exceptions were articulated in a manner that copyrighted works were made available to individuals in need. Thus, its vision was for an inclusive and comprehensive framework that catered to the needs of all stakeholders, particularly the most vulnerable and needy. To this end, it saw new international legal instruments as the means.

Russia
The Russian representative supported the 2015 Diplomatic Conference time frame and emphasized the value of transparency throughout the course of the proceedings.

Algeria
On behalf of the African Group, the signal-based approach was affirmed as the basis for any treaty. The needs of the developing countries were also given special importance. While the exchange if best practices and experience is helpful, the Group does not see it as a substitute for tangible, binding treaty provisions.

European Union
Representative called for the provisions of the Marrakeesh Treaty to be implemented. The existing treaty framework was understood to be sufficient for the full realization of the limitations and exceptions in the various realms envisaged by the outlined agenda. It was necessary, it opined, for copyright to continue to remain a key incentive for creative processes. In light of this, no further international legal instruments were necessary. Finally, the licensing of rights was also within the scope of this body.

Protection by Broadcasting Organizations
The working document for the treaty for the protection of broadcasting organizations[2] was declared to be the basis for any future text-based deliberation.

Proposal by Japan – SCCR/26/6[3]
The Representative outlined the purpose behind the proposal at the very outset as a step forward from the common understanding regarding the privacy of the broadcasting towards establishing the contours of the scope of application. The proposal was for the introduction of Article 6bis that included two things – first, that signal transmitted over computer networks be included within the aegis of the treaty with an exception carved out for on demand transmission signal and second, flexibility for states in deciding to afford protection for transmission signals over networks by the broadcasting organizations; in other words, the idea of national treatment in the realm of transmission signals.

While welcoming the Japanese proposal, the US Representative noted that the text was still open to changes. Given limited time for deliberations on this, he culled out three points of focus that would aid a streamlined approach to the text: beneficiaries of protection, objects of protection and the scope of the rights.

The EU had two questions directed at the Japanese proposal: whether the two alternatives proposed by Japan (simultaneous and unchanged transmission) have a different or same meaning and whether the nature of the protection is an entirely optional one or at least partially mandatory? Japan later clarified that if the former alternative had webcasting as subject to the protection of the treaty and the latter used the scope of application of this treaty.

Iran highlighted the issue of conflict of treaty protections with the legitimate interests of other stakeholders and urged that this conflict situation should never arise. Further, it added that the definition of broadcasting should not be an anachronistic one and should adapt to the needs of today’s broadcasting organizations and should, in no way, hinder free access to knowledge and information by society.

Venezuela adopted a diametrically opposite stance to most other countries on the issue. It was not of the opinion that broadcasting organizations are entities worthy of rights protection. It stated that the treaty seemed to be more for the benefit of multi-national organizations rather than member states and its citizens.

Day 2
The Chair outlined the agenda of the meeting as comments on Articles 6 and 7 which is to do with the scope of the treaty and beneficiaries respectively. Further, it was also put forth that the session would attempt to resolve and break common ground on the various discussions had in the regional groups in the previous day. Finally, deliberations would be focussed on Article 5 followed by Article 9.

The Japanese delegate outlined the conclusions of his groups’ deliberations. They want both beneficiaries and broadcasting to be included within the scope of the treaty. The country is of the view that all obligations should be made optional rather than obligatory. There is also general consensus, subject to final wording and definition of on demand, for an exceptions to be culled out for on demand transmission. Belarus expressed its wish for the scope of the treaty to be extended to both broadcasting and cablecasting organizations. It states in no uncertain terms that the signal should be protected. The proposal was to use the terminology broadcasting organizations and rights holding organization. Signals transmitted over satellite must also be protected in the model envisaged by this Group. Its application to the internet was also affirmed; pertinent, since this is a sticking point between the views of the nations and that of important third party stakeholders to this deliberative process. It did mention a clear caveat that these rights should, in no way, affect the rights of the author of the work or that of the users. Responding, in some sense directly to the words of the Venezuelan delegate’s comments the previous day, the Belarusian delegate stressed that his Group does support the idea of conferring rights on broadcasting organizations.

India reminded the nations present that the 2007 mandate, on the basis of which this meeting was being conducted, was for work towards a treaty for the protection of broadcasting and cablecasting organizations using a signal-based approach. A question was raised as to whether the current discussion transcended the limits of this mandate. Chair noted this observation and asked for the views of other states’ on the matter of mandate. The response of the delegate from Trinidad and Tobago on behalf of the group of Latin American and Caribbean states was non-committal in his answer as he briefed the chair about the difference of opinion on this matter within his group.

Moving on to the scope of the application of this treaty and the beneficiaries, it was the view of the CEBS Group, as articulated by the Polish delegate, that the protection afforded by the treaty should be effective, contemporary and technology neutral, else its purpose would be defeated by its obsoleteness. It reiterated that the transmission via the internet must also be included within the scope of the treaty, because that is a major route of circumvention that could be used to undermine the raison d’etre of the treaty. It was also of the opinion that the difference of opinion on webcasting could be overcome using the opt-in system envisaged by the Japanese proposal. CEBS was also of the firm view that, notwithstanding any foundational disagreements, those on demand transmissions that are based on multiple transmissions at the same time should be included within the scope of the protection. On behalf of the African Group, Senegal concerned about questions of mandate. It said that the strict, textual or broad, liberal interpretation of the words of 2007 mandate should be a sine qua non to any further deliberations. The Chair noted this concern and said that the floor was open to this issue as well. The EU stated that simulcasting should be the basic minimum and obligatory minimum, of any protection. It stated that it was open to discussing the extension of the protections to other transmission as its saw merit in such extension. Finally, it clarified that since current discussions were on transmissions and the scope of protection they were well within the 2007 mandate – protection of broadcasting and cablecasting organizations in the traditional sense.

The Chair then turned over the floor for comments by individual countries. Senegal commenced by posing a question to Belarus on the nature of reservations that it envisaged in light of its proposal to protect transmissions, no matter what its nature. Belarus responded that the protection definitely extends to transmissions over the internet but that does not preclude a discussion on deferred retransmissions. Reservations should ideally be outlined be provided for in the treaty itself. However, they can also be in the form of national legislation but it made it clear that such a stance would be a compromise for its Group and would be considered only if nations thought it necessary.

The floor was yielded to Canada. It noted that it is encouraged by the deliberations it had witnessed so far surrounding the various proposals received. It emphasized the value of the optional approach envisioned by Japan, as it embodied the critical component of successful negotiations – the embracing and incorporation of difference of opinion. Russia underscored its support for the unified approach of Belarus. Russia also wished to implement the kind of model that was in the Audiovisual Treaty and the Marrakeech Treaty. It wanted a reservation in the treaty itself that would establish a minimum standard of protection for cablecasting organizations as per national legislation. This would balance out the views of those in favour of an optional system against those who prefer an entirely mandatory one. Mexico welcomes the Japanese proposal and seemed to be generally in favour of it. Australia outlined three distinct issues. It was in favour of protection of transmission over the internet and saw simulcasting as a minimum obligatory protection. Its support for the Japanese proposal would depend on the definition of on demand services. Finally, Australia underlined that this entire discussion should be careful in how it understood the idea of traditional broadcasters and cablecasters. Keen to introduce an air of pragmatism to talk about the 2007 mandate, Kenya pointed out that the concept of transmission has undergone a change since 2007 and since the mandate was one that was conferred by the countries present at this discussion, there was no need to be very rigid about it. It wanted a technology neutral approach. Kenya was also keen on clarity on whether this international treaty was meant to build in existing international protections or was intended to be a stand-alone replacement for any protections that may exist for certain or all countries. It welcomes the flexibility that the Japanese proposal offered. The discussion veered in the direction of mandate yet again as India noted that any change to the mandate must be done by the GA alone. Else, the reinterpretation could be in such a manner as to allow for a treaty to emerge under the rubric of this mandate with countries reserving the freedom to enter into another treaty on the same matter in the future. It spelled out that it was crucial to remain within the confines of the GA mandate through the course of these proceedings.

The US delegate opined that the proceedings were completely in conformity with the mandate of the 2007 General Assembly. It reiterated its 2007 desire to have a clear common definition of a broadcasting and cablecasting organization. Notwithstanding that, simply because of a different mode of transmission, internet and webcasting do not fall outside the ambit of protection. As far as the signal based approach is concerned, the US interpreted that to mean the signal itself and nothing to do with the content – an issue the nations are grappling with at present.

Further, the delegate suggested a refocus on the prime problem facing broadcasters i.e. signal piracy. The suggestion is to give the broadcasters control of the retransmission. This would avoid protection for the content being broadcast and would not fall into the trap of post-fixation rights. An argument was also made for retransmission over any medium in a technologically neutral system. Such retransmission would be limited to simultaneous or near simultaneous (a term that needs definition) only to the extent necessary where the delay is meet technical requirements of delivery or to account for time differences. This would also include prebroadcast signal. There are clear advantages to this approach, as noted by the delegate

Short and simple.
Avoids a proliferation of superfluous rights.
Dos not overlap with the rights in content and does not create additional, unnecessarily layers of protection and authorization.
Affirms and codifies the kind of protection that broadcasters require to fortify against signal piracy.
Greater range of rights that could also be codified at the domestic level.
Could avoid the need for any defined term whatsoever.
The potential impact on consumer or private use also covered.

Japan adopted a self-confessed cautious approach to obligatory protection for transmission across computer networks due to the absence of a unified domestic viewpoint on the matter. South Africa was also of the opinion that the protection should not go beyond broadcasters and cablecasters. Colombia, however, was of the opinion that the protection should cover both traditional and non-traditional signals due to the advance in technology in the future that the treaty must anticipate. A broad and flexible approach was therefore preferred by this delegate. India expressed a desire to introduce an alternative.

Afternoon Session

Inclusion of transmission over the internet within the scope of the treaty
Whether or not simulcasting is within the mandate of this meeting
Inclusion of transmission of original programming by webcasting in the treaty
Deferred and unchanged transmission of broadcasting programmes within transmission over the internet

These four topics have witnessed some form of input or discussion thus far.

Comments on Article 9
Article 9 relates to protection of broadcasting organization and embodies two alternatives – A and B. Alternative A provides for a short list of exclusive rights, a limited right to authorize including retransmission of signal to the public by any means. Alternative B provides for a broader list of exclusive rights, including post-fixation rights and the exclusive right of fix and right of retransmission by any means and making available to the public.

In response to the US proposal articulated earlier, India put forth an alternative.

On the table for comments at this juncture are the US Proposal, the Indian alternative and the alternatives A and B to Article 9.

The EU stated that its position would fall closer to Alternative B than A. It was important for the EU to have broad rights of retransmission of broadcasts on all platforms. Retransmissions should be both simultaneous and based on fixations. They also wanted fixed broadcasts – the right of retransmission where the recipient pf the transmission chooses the place and the time of such transmission – to be included within the treaty. With respect to performance of broadcast signals ij places accessible to the public, the EU stressed that it should be limited to places accessible to the public on payment of an entrance fee as envisioned by the Rome Convention. Protection for prebroadcast signals was also sought, thereby covering a comprehensive list of protections.

The EU wanted to know whether the near to simultaneous transmission would be included within the US proposal. It thought the US proposal was based on a single right and was narrow vis-à-vis the EU one, but it expressed a willingness to engage. On the Indian proposal, the EU wished to enquire whether computer retransmissions would be protected against, given its ease.

Ecuador stated that it wished to add “and cablecasting” to India’s proposal Article 9(1)(i) after the mention of traditional broadcasters. India indicated that this addition was agreeable.

Japan mentioned that Alternative B was preferable to it since it had flexibility built into it thereby allowing for better harmonization and incorporation in the domestic law. Further, it stated that signal piracy had three major classifications – unauthorized access or useof prebroadcast signal, programming carrying signals and fixed broadcast. Finally, it clarified that simultaneous and near simultaneous transmission are protected under the Japanese proposal.

South Africa had two quick comments – that it was interested in the US proposal and preferred Alternative B. The EU also noted with interest the Indian proposal and expressed keen interested to engage with the same.

Both Senegal and Poland affirmed their preference for Alternative B in the deliberations on Article 9.

Iran steps in and articulates the stance that India has taken in a cogent manner. It noted the concern that if the content owner does not grant the right to broadcast over a computer or internet, then piracy could result in the absence of protection for the broadcasting organization. It is important to understand that a broadcasting organization is the owner of the signal. Therefore, if the broadcasting organization is not allowed to rebroadcast or retransmit over certain networks due to the contract then this would defeat the purpose of the treaty. Critically, this point is to do with the need for affirming the right of the broadcaster to prevent his own signal from getting used elsewhere without authorization.

India then went to make two critical clarifications on definitions. Broadcast means the transmission of a set of electronically generated signals by wireless and carrying a specific programme for conception of the general public and it should not include the transmission of signals over computer networks. Broadcasting organization means the legal entity taking the interior of packaging, assembling, scheduling of the programme and converting of the signals with the authorization of the owner of the copyright and related rights for broadcast for the reception of the public. Article 5 of the Indian proposal was distributed to all members and comments were invited. The meeting was adjourned to give time to the regional coordinators.

[1]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_1_prov.pdf

[2]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_24/sccr_24_10_corr.pdf

[3]. http://www.wipo.int/edocs/mdocs/copyright/en/sccr_26/sccr_26_6.pdf

Meeting Documents for the 26th SCCR are available at this link.

Videos/Webcast of the 26th SCCR can be seen here.
CIS Statement on Limitations and Exceptions for Education, Teaching and Research Institutions and Persons with Other Disabilities here.
CIS Statement on the proposed treaty for Limitations and Exceptions for Libraries and Archives here.

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-consolidated-26-session-consolidated-notes-part-1

WIPO Broadcast Treaty- SCCR 26 : Proposals Introduced

nehaa — 2013-12-30T15:48:59Z

India and the United States introduced proposals for discussion at the ongoing session of the SCCR.

At the ongoing session of the 26th SCCR, India and the United States have introduced proposals for discussion:

India introduced this proposal for Article 5 (Definitions)
India introduced this proposal for Article 6 (Scope of Application)
Japan introduced this proposal as Article 6 bis
India introduced this proposal for Article 7 (Beneficiaries of Protection)
India introduced this proposal for Article 9 (Protection for Broadcasting Organizations)
The United States introduced a Proposal for Discussion for Article 9 (Protection for Broadcasting Organizations). The delegation was keen to clarify that this was not a “US Proposal”; but merely a “Proposal for Discussion”

For more details visit https://cis-india.org/a2k/blogs/wipo-broadcast-treaty-sccr-proposals-introduced

Will Aadhaar Act Address India’s Dire Need For a Privacy Law?

nehaa — 2016-04-05T16:01:06Z

The article was published by Quint on March 31, 2016.

The passage of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (will hereby be referred to as “the Act”) has led to flak for the government from privacy advocates, academia and civil society, to name a few.

To my mind, the opposition deserves its fair share of criticism (lacking so far), for its absolute failure to engage with and act as a check on the government in the passage of the Act, and the events leading up to it.

The government’s introduction of the Act as a ‘money bill’ under Article 110 of the Constitution of India (“this/the Article”) is a mockery of the constitutional process. It renders redundant, the role of the Rajya Sabha as a check on the functioning of the Lower House.

Article 110 limits a ‘money bill’ only to six specific instances: covering tax, the government’s financial obligations and, receipts and payments to and from the Consolidated Fund of India, and, connected matters.

The Act lies well outside the confines of the Article; the government’s action may attract the attention of the courts.

Political One-Upmanship


Finance Minister Arun Jaitley (left) listens to Reserve Bank of India (RBI) Governor Raghuram Rajan. (Photo: Reuters)

In the past, the Supreme Court (“the Court”) has stepped into the domain of the Parliament or the Executive when there was a complete and utter disregard for India’s constitutional scheme. In recent constitutional history, this is perhaps most noticeable in the anti-defection cases, (beginning with Kihoto Hollohan in 1992); and, in the SR Bommai case in 1994, on the imposition of the President’s rule in states.

In hindsight, although India has benefited from the Court’s action in the Bommai and Hollohan cases, it is unlikely that the passage of the Aadhaar Act as a ‘money bill’, reprehensible as it is, meets the threshold required for the Court’s intervention in Parliamentary procedure.

Besides, the manner of its passage, the Act warrants

Censure for its process
Its (in)compatibility with fundamental rights
The failure to incorporate the suggestions of the Yashwant Sinha-led Standing Committee to UPA’s NIDAI Bill
The possibility of surveillance that it presents
The lack of measures to protect personal information
Its inadequate privacy safeguards
The questions around the realisation of its stated purpose.

Instead, a part of the Aadhaar debate has involved political one-upmanship between the Congress and the BJP, pitting the former’s NIDAI Bill against the latter’s Aadhaar Act.

While an academic comparison between the two is welcome, its use as a tool for political supremacy would be laughable, were it not deeply problematic, given the many serious concerns highlighted above.

Better Than UPA Bill?


The Act may have more privacy safeguards than the earlier UPA Bill. (Photo: iStockphoto)

And while the Act may have more privacy safeguards than the earlier UPA Bill, critics have argued that they not up to the international standard, and instead, that they are plagued by opacity.

Additionally, despite claims that the Act is a significant improvement over the UPA Bill, it fails to address concerns, including around the centralised storage of information, that were raised by civil society members and others.

Perhaps most problematically, however, the Act takes away an individual’s control of her own information. Subsidies, government benefits and services are linked to the mandatory possession of an Aadhar number (Section 7 of the Act), effectively negating the ‘freedom’ of voluntary enrollment (Section 3 of the Act). This directly contradicts the recommendations of the Justice AP Shah Committee, before whom the Unique Identification Authority of India had earlier stated that enrollment in Aadhaar was voluntary.

To make matters worse, the individual does not have the authority to correct, modify or alter her information; this lies, instead, with the UIDAI alone (Section 31 of the Act). And the sharing of such personal information does not require a court order in all cases.


Kanhaiya Kumar speaking in JNU on 3 March 2016. (Photo: PTI)

It may be authorised by Executive authorities under the vague, ill-understood concept of ‘national security’, (Section 33(2) of the Act) which the Act does not define. We would do well to learn the dangers of leaving ‘national security’ open to interpretation, in the aftermath of the recent events at JNU.

These recent events around Aadhaar have only underscored the dire urgency for comprehensive privacy legislation in India and, the need to overhaul our data protection laws to meet our constitutional commitments along with international standards.

Meanwhile, constitutional challenges to the Aadhaar scheme are currently pending in the Supreme Court. The Court’s verdict may well decide the future of the Aadhaar Act, with the stage already set for a constitutional challenge to the legislation. The BJP’s victory in this case may be short-lived.

For more details visit https://cis-india.org/internet-governance/blog/the-quint-march-31-2016-nehaa-chaudhari-will-aadhaar-act-address-indias-dire-need-for-a-privacy-law

Transcripts of Discussions at WIPO SCCR 27

nehaa — 2014-05-25T04:50:59Z

We are providing archival copies of the transcripts of the 27th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from April 28, 2014 to May 2, 2014.

Note: This is an unedited transcript of the discussions at SCCR 27. We are hosting the text for archival purposes:

Day 1: April 28, 2014:

Day 2: April 29, 2014:

Day 3: April 30, 2014

Day 4: May 1, 2014

Day 5: May 2, 2014

Click for WIPO Signing Ceremony for Marrakesh Treaty

For more details visit https://cis-india.org/a2k/blogs/wipo-sccr-27-discussions-transcripts

The US 301 Report – A Myopic View of IP Rights

nehaa — 2015-06-24T15:35:29Z

Varun Baliga and Nehaa Chaudhari discuss the 2015 US 301 Report, focussing on its narrow and convenient understanding of IP rights. A farrago of contradictions, it supports a rightsholder-centric view but not when the right, Geographical Indicator, is not to their liking. Similarly, the emphasis on the rights themselves gives short shrift to critical exceptions and limitations that also enhance and incentivize innovation, the ostensible purpose of IP.

The US Trade Representative ["USTR"] is the office in charge of the United States Special 301 Report ["301 Report"] - an annual report on the state of intellectual property rights in countries around the world. The Executive Summary of the 2015 Report states that it is conducted "pursuant to Section 182 of the Trade Act of 1974, as amended by the Omnibus Trade and Competitiveness Act of 1988 and the Uruguay Round Agreements Act (19 U.S.C. § 2242)". [1] The relevant excerpt of the provision states:

" The Trade Representative shall, by not later than the date by which countries are identified under subsection (a) of this section, transmit to the Committee on Ways and Means of the House of Representatives and the Committee on Finance of the Senate, a report on actions taken under this section during the 12 months preceding such report, and the reasons for such actions, including a description of progress made in achieving improved intellectual property protection and market access for persons relying on intellectual property rights ."

The 2015 301 Report, much like its predecessors, prioritizes the existence of institutional mechanisms for the protection of intellectual property rights over the purported end goals of those rights, as argued by Shamnad Basheer.[2] The purported link between intellectual property and innovation, a key element of the CIS comment on the National IPR Policy , is not studied by the Report but simply assumed as a truism. In the usual criticism of India's laws, the Report notes that "IPR protection and enforcement challenges continue, and there are serious questions regarding the future of the innovative climate in India", operating on the assumption that IPR is the sole driving force of innovation. Instead, the Report is guided by the 'business climate' in a country as facilitated by its IP laws. To borrow from the EFF's incisive critique of this annual exercise, the 301 Report pressurizes India to criminalize the act of camcording in a cinema hall despite domestic copyright law that prohibits it subject to statutory exceptions.[3] Further, the Report finds India's compliance with the Berne Convention to be insufficient since 'business climate' favours as comprehensive an intellectual property regime as possible directed at the expansion of rights and the narrowing of exceptions critical to education and openness of knowledge.

International law on intellectual property is interpreted instrumentally by the drafters of the report. What this means is that IP is being viewed solely through the prism of national interest. A particularly egregious implication is being witnessed in the shift of preferred fora to discuss IP from bodies like the WIPO to trade-oriented platforms, a theme that is discussed later on in this piece. Further, Italy's notice and takedown regime is praised in the 2015 Report notwithstanding its procedure of obtaining an order of removal not from the courts but the Communications Regulatory Authority, against the Manila Principles of Intermediary Liability, an important albeit non-binding piece of state practice.[4]

Furthermore, the emphasis on the interests of rightsholders themselves coupled with enforcement seldom happens in a comparative context, in the Report. This means that the Report privileges the interests of rightsholders to the exclusion of any interest that the exceptions to copyright, for fair use and education for instance, may hold. The 2015 Report, for instance, notes positive developments in IP law as exclusively including the strengthening of the regulatory framework weighted in favour of rights. It fails to note the ratification of the Accessible Books Consortium or the Report of the UN Special Rapporteur Farida Shaheed on copyright policy,[5] implicitly signalling that the US does not consider these developments favourable. This is problematic at two level.

First, competing interests of free speech, open access to knowledge, education, public health are either downplayed or outright ignored. For example, the Report entirely ignores the work of WIPO on exceptions and limitations, and the Marrakesh Treat among the multilateral and plurilateral initiatives of note. Switzerland, for instance, is censured for the 2010 Swiss Federal Court decision that erred on the side of privacy by prohibiting Logistep from tracking IP addresses of entities accused of file-sharing.[6] Even in the emphasis on rightsholders, the 301 Report reeks of hypocrisy and doublespeak. Gabriel J. Michael notes that the 301 Report criticized the European Union for having too much protection of IP through geographical indicators (GI). So, IP protection appears to be an unreserved good as long as it's the right kind of IP as determined by the United States.

" For example, by any reasonably objective standard, the European Union offers very high levels of IP protection. Yet as recently as 2006, Special 301 listed the European Union on its watch list, citing "concerns" about the EU's geographical indication (GI) regime. Given that GIs are a form of intellectual property, USTR essentially placed the EU on its watch list for offering too much IP-or, if you prefer, the wrong kind of IP. Interestingly, this is a tacit admission by the U.S. that at least some kinds of IP can act as trade barriers ."[7]

Second, the 301 Report operates on the assumption that intellectual property is a right in rem. It does not even attempt to engage with the notion of IP as a public right. This is a direct implication of the methodology of the Report that privileges the simple existence of IP frameworks and enforcement mechanisms over a more substantive examination of the causal nexus between IP and its purported raison d'etre. Therefore, the interpretive approach of the 301 Report towards intellectual property law construes it not as a means to ends but as an end in itself.

What Does This Mean?

Finally, there are two implications of this approach to IP rights. The first is on the Report's words on India this year. Credit is given to India for establishing the High Level Working Group on Intellectual Property ["IPR Working Group"]. The purpose of the Working Group is said to be to "enable India to achieve its important domestic policy goals of increasing investment and stimulating innovation through, not at the expense of, IPR protection and enforcement". The façade of public interest behind which the 301 Report attempted to operate is finally off, one might say. IP exists, it seems, to facilitate not broader goals of public interest but investment and innovation within the myopic interests of 'rightsholders'. Paradoxically, however, the Report does call for more consultation on the First Draft of India's National IPR Policy - a noteworthy development, although inconsistent with the tenor of the rest of the Report. Second, the 301 Report as a reflection of American foreign policy goals is now being understood through the lens of ongoing trade negotiations. This steady shift in the preferable forum for IP negotiations from inclusive and democratic platforms, such as WIPO, towards restrictive and secretive ones, such as the WTO, is driven by regressive notions of IP as reflected in the 301 Report. Signalling a move towards a state-centric approach heralded by the United States, critical non-state actors from civil society find it increasingly difficult to exercise agency in these negotiations. While WIPO provides space for non-state actors such as non-governmental organizations to represent their positions and aid states with research, trade negotiations shunt civil society. The cloak and daggers approach of the United States Government towards the Trans-Pacific Partnership Treaty,[8] brought to some light with recent votes in the US Congress, negotiations contrasted with the democratic and open nature of the negotiations surrounding the Marrakech treaty underscores the important difference in approach.[9]

As a result, the civil society finds itself unable to counterbalance the power hierarchies entrenched in international relations as it has done, for example, with the attempted imposition of TRIPS-plus standards through bilateral and multilateral agreements. A state-centric approach makes it easier for larger economies to coerce smaller and dependent countries to draft laws with little regard for limitations and flexibilities that are key for innovation and standard of life in large swathes of Global South - peoples who cannot afford the costs of IP protected-innovation. Further, issues of IP and trade are not pertinent solely to states but are increasingly driven by and relevant to a raft of non-state actors. Any policy that does not actively seek to include these stakeholders in the decision making process is destined to fail. Therefore, on both principled and consequentialist grounds, the Special 301 Report deserves very little attention from the international community.

[1] Full text of the provision available at https://www.law.cornell.edu/uscode/text/19/2242.

[2] http://indianexpress.com/article/opinion/columns/these-rancid-rankings/99/

[3] https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found

[4] https://www.eff.org/deeplinks/2015/04/special-301-balance-not-found ; https://www.manilaprinciples.org/

[5] http://www.un.org/ga/search/view_doc.asp?symbol=A/HRC/28/57 .

[6] http://arstechnica.com/tech-policy/2010/09/switzerland-gathering-ip-addresses-from-bittorrent-sites-illegal/

[7] https://topromotetheprogress.wordpress.com/2014/06/05/special-301-is-it-effective/ ;

https://www.techdirt.com/articles/20140612/17435227561/ustrs-special-301-list-naughty-countries-without-strong-enough-patent-copyright-laws-is-complete-joke.shtml

[8] http://www.politico.com/magazine/story/2015/05/tpp-elizabeth-warren-labor-118068.html#.VWvcMk-qqko ; http://www.ip-watch.org/2015/04/23/divide-and-conquer-the-new-us-strategy-to-disentangle-the-tpp-negotiations/

[9] http://www.ip-watch.org/2013/12/19/wipo-delegates-hear-concerns-of-ngos-on-exceptions-for-libraries/

For more details visit https://cis-india.org/a2k/blogs/us-301-report-a-myopic-view-of-ip-rights

The Indian Council of Agricultural Research Adopts an Open Access Policy

nehaa — 2013-09-30T15:03:04Z

In this blogpost, Nehaa Chaudhari discusses the newly adopted Open Access Policy of the Indian Council of Agricultural Research.

Earlier this month, the Indian Council of Agricultural Research (ICAR) adopted an Open Access Policy. Inter alia, this policy requires each ICAR institute to set up an Open Access Institutional Repository (OAIR), with the ICAR to set up a central harvester to harvest the meta data and full text of all the records from the Open Access (OA) repositories so set up. What is interesting from the IPR perspective is that the meta-data and other information of these repositories is copyrighted with the ICAR and has been licensed for research and academic purposes, for using, re-using and sharing. Commercial and other reuse would require the written permission of the ICAR. In a nod to the increasing importance of social media, ICAR’s Open Access Policy encourages its institutes to share their works on public repositories and social networking sites, besides adopting the mandate to have all publications, including its journals placed under Open Access. What might be harder to realize, however, is the publication of their research by scientists and other researchers across ICAR institutes or elsewhere, with publishers that allow self archiving Open Access Institutional Repositories. The ICAR Open Access Policy is available here.

In May, earlier this year, the ICAR had released a draft version of this policy, inviting comments. CIS’ comments had lauded the Policy as being comprehensive, detailed, and as being a positive step in the right direction, and had suggested some possible changes to the same.

It is observed that the adopted Open Access Policy (OAP) differs from the Draft Policy (DP) in certain respects, some of which are a cause for concern, whereas a few others expand the scope of the OAP. First, while the OAP requires that Institutional Repositories be established; the requirement contained in the DP to use Free and Open Source Software which was OAI-MHP compliant has been removed. Given that this is an endeavour to foster openness, requiring the use of Open Source Software was definitely a welcome step sought to be adopted by the ICAR, and its elimination renders the OAP lacking in the spirit of openness to its greatest realizable extent. Further, compliance with OAI-MHP would have ensured interoperability, as noted by us in our comments to the DP, and a failure to utilize this would reduce the accessibility and impact of archived materials. Second, the OAP requires that authors of scholarly articles deposit both, preprints and post-prints of their papers accepted for publication in the OAIR. This is a departure from the position in the DP, which required only preprints be deposited. Given that there is likely to be a difference in content and form of the article between the preprints and post-prints (which are after peer review), the inclusion of both preprints and post-prints in the OAIR is seen to be a beneficial move. Third, the period of embargo while signing copyright agreements with publishers had been envisaged to be six months in the DP, whereas the OAP extends the same to twelve months. It is felt that scientific writing is likely to be time sensitive, and twelve months might be an inordinate delay for its availability in the public domain, possibly reducing its applicability and relevance. Therefore, it is suggested that the earlier embargo period of six months might be the better alternative between the two. Fourth, the OAP incorporates an End Note, that was absent in the DP, which stipulates the time period of three years for compliance with the Open Access initiative, and recognizes the OAP as the first stage of a larger process. Both, the time period for compliance, and the recognition that the adoption of the OAP is but the first stage, are appreciated.

In sum, the OAP of the ICAR, while addressing some of the issues associated openness does leave room for desirability. Besides the suggestions that we had made earlier, other concerns include those reflected in this blog post, particularly regarding the departure from the DP in certain specific instances. Nonetheless, the adoption of the OAP by the ICAR is a welcome move- one that would hopefully be followed by other Government agencies such as the Department of Atomic Energy, the University Grants Commission, the Department of Biotechnology, etc.

For more details visit https://cis-india.org/openness/blog-old/icar-adopts-open-access-policy

The constitutionality of MHA surveillance order

nehaa — 2018-12-31T14:06:04Z

The rules require review committees to examine all surveillance orders issued under this section every couple of months.

The article by Nehaa Chaudhari was published in Asian Age on December 30, 2018.

The MHA notification authorising 10 agencies to intercept, monitor and decrypt “any information” generated, transmitted, received or stored in “any computer” has kicked up a row. One section calls it electronic surveillance at the behest of the Big Brother. This time the qualitative difference is data stored anywhere, not just data in motion, can be intercepted.

Privacy is a fundamental right in India. Nine Supreme Court judges agreed on this in late August, last year. It is “the constitutional core of human dignity” and flows primarily from the “guarantee of life and personal liberty” of our Constitution, they said, in the case of K.S.Puttaswamy vs Union of India. This meant two rules for the Indian state. Rule number 1.) Do not intrude upon a citizen’s right to life and personal liberty; and rule number 2.) Take all necessary steps to safeguard individual privacy.

However, because no fundamental right is absolute, the Indian state is allowed to deviate from rule number 1 in certain situations. It can restrict individual privacy provided that it first fulfills three conditions: The restriction must be backed by law; it must be for a legitimate state aim; and, it must be proportionate.

All laws (including existing ones) and government actions, with consequences for individual privacy, must meet the three conditions listed above to be valid.

Those that fail to do so are unconstitutional, and must be suitably amended, or will be struck down, as was the case with Section 377 of the Indian Penal Code, earlier this year. Section 69 of the Information Technology Act, under which the Ministry of Home Affairs has issued its recent surveillance order, warrants similar scrutiny.

Section 69 empowers the Centre and all state governments to authorise any of their officers to surveil citizens’ electronic communications and information. They may do so for any of the reasons laid down in the same section, including India’s sovereignty, integrity, defence, security and foreign relations, or public order, or to prevent the incitement of certain offences, or to investigate any offence. Government orders issued under this section must be reasoned, and in writing. These orders, and the resultant surveillance activity, must follow the procedure laid down in a set of rules framed under the Information Technology Act in 2009. The rules require review committees to examine all surveillance orders issued under this section every couple of months. The review committee at the Centre examines the Union government’s surveillance orders, while state governments’ orders are examined by committees at their respective states. But, review committees, whether at the Centre, or at any of the states, only have
three members each, tasked with reviewing hundreds of orders every day. Moreover, they consist only of government officials. Neither the Information Technology Act, nor the accompanying 2009 rules, require Parliamentary or judicial oversight of electronic surveillance by the executive.

In the past week, at least two petitions have been filed before the Supreme Court,which claim that the MHA’s surveillance order violates the fundamental right to privacy and is unconstitutional. This order for electronic surveillance is a clear deviation from rule number 1, and so the question before the court will be if it meets each of the conditions above to be valid.

Is the MHA order lawful? Yes, given as it was framed under the framework of the IT Act. There remains however, a larger question of the constitutionality of Section 69 itself. If the court finds Section 69 itself to be unconstitutional, any action taken pursuant to Section 69, including the recent MHA order, will also be unconstitutional.

Is the MHA order pursuant to a legitimate state aim? The order itself does not specify what in particular the government hopes to achieve. However, given as it was issued under Section 69, the government could well argue that it was only for the six purposes laid down in the statute.

Moreover, according to the Supreme Court in the right to privacy judgment, legitimate state aims are “matters of policy to be considered by the Union government.” The court even offered examples of possible legitimate state aims, which included the grounds listed under Section 69.

Is the MHA order proportionate? No; and neither is the IT Act’s framework dealing with electronic surveillance. The IT Act allows government surveillance of citizens, unchecked by either the legislature, or the judiciary. It creates a scenario where tiny government committees must review the government’s own decisions to curtail citizens’ fundamental rights. Moreover, it penalises individuals with up to seven years in jail, in addition to fines, for not complying with any interception, monitoring, or decryption request by an authorised government agency.

In light of the recent MHA order, this means that individuals must comply with surveillance requests by 10 government agencies including tax authorities, the police, and civil and military intelligence agencies, or be prepared to face jail time. This is unethical, undemocratic, and unconstitutional.

Unchecked government surveillance threatens not just an individual’s fundamental right to privacy, but also her fundamental freedoms of speech, movement, and assembly among others, also guaranteed fundamental rights under the Indian Constitution.

These rights and freedoms are the very essence of what it means to be a free citizen in a modern democracy. A democratic state must only exercise its police powers in the narrowest of circumstances, within bright lines, clearly defined.

In August, 2017, the Supreme Court laid down the framework to identify these narrow circumstances and bright lines in so far as the fundamental right to privacy was concerned. But, the promise of Puttaswamy is only as good as its implementation, and here lies its biggest challenge.

As Pranesh Prakash, Fellow at the Centre for Internet and Society, said on a television channel recently, perhaps it is about time that we stopped relying solely on the courts to step in to safeguard our fundamental rights, and started demanding that our elected law-markers did their jobs, or did them better. After all, a general election is but a few months away.

For more details visit https://cis-india.org/internet-governance/news/nehaa-chaudhari-asian-age-december-30-2018-constitutionality-of-mha-surveillance-order

The ASSOCHAM International Conference on the "Interface between Intellectual Property and Competition Law"

nehaa — 2013-07-22T05:54:01Z

An international conference on interface between intellectual property and competition law was organized by ASSOCHAM on July 12, 2013 in New Delhi. In this post, Nehaa Chaudhari shares select notes from the conference.

All views expressed are only of the participants and cannot be taken to be those of any organization or the like that they may represent.

D.S. RAWAT- SECRETARY GENERAL- ASSOCHAM- WELCOME ADDRESS

IPR and competition laws in conflict or have provisions (in existing law) that already take care of this possible conflict?
What happens if an IP right holder acquires a ‘dominant position’ by virtue of these rights?
- Abuse of dominant position provisions get attracted if rights are beyond the boundaries of IPRs.
Anti-competitive agreements (and beyond the objective of preventing infringement)- then what happens?

V. LAKSHMI KUMARAN- MANAGING PARTNER, LAKSHMI KUMARAN AND SRIDHARAN- THEME ADDRESS

Trans-border transactions are normally of two types:
(a) trade (in goods and services) - WTO mandate is free trade of goods and services between nations;
(b) investment.
“Free” trade should also be “fair” trade.
Competition law will not question the grant of the IP rights. It will question how you use them, especially when/if you use in a way that is detrimental to competition.
Patent law places many restrictions on what you can and cannot do- these ‘can’t do actions’- if you perform them, you will be scrutinized under competition law.
Cases in US/Europe- challenging patents were withdrawn by ‘compromise’ but agreements really spoke of ‘something more’ promised by the patent holder if the challenging suit was withdrawn- scrutinized by competition law.

NUNO PIRES DE CARVALHO- DIRECTOR, IP AND COMPETITION POLICY DIVISION, WIPO, GENEVA- SPECIAL ADDRESS (nuno.carvalho@wipo.int)

2007- Agenda for Development at WIPO- Committee on Development and IP (CDIP) to supervise implementation of the AD and coordinate with other Committees.
WIPO- as of now, member states do not want to embark on negotiating processes on IP and Competition but rather want to better understand it.
WIPO- 2011-2012- Project on IP and Competition Law.
WIPO Goal- to establish WIPO as a global forum on IP and Competition policy.
Rationale (WIPO)- same as the 3 DA (2007) recommendations.

CHAITANYA PRASAD- IAS, CONTROLLER GENERAL OF PATENTS, DESIGNS AND TRADEMARKS- KEYNOTE ADDRESS

Monopoly- genesis of both IP and Competition Law (IPRs= regulated monopoly= not bad- IPRs= carefully granted essential monopolies regulated by State).
Competition Law and IP have common goals- better technology etc., and also economic growth and better quality of life for consumers.
IPRs- (a) industrial IPRs- GIs, patents, TMs, IDs, etc and (b) non industrial IPRs- copyright and related rights.
Patent Law- grant of Compulsory licences in some situations- Doctrine of Exhaustion of IPRs- domestic or international?- international committee divided on this.
READ- Adams v. Burke- 1873 SCOTUS.
DB- Delhi HC- parallel imports- allowed under Trademark Law?
New York Times- 06/06/13- generic drug market v. patent holder- anti competitive markets- SCOTUS decision.

Standards- especially in communication networks- generally have higher royalties- disclose existence of IPRs and agree to license at reasonable rates- REQUIREMENT.
IP Law- in built mechanisms to address abuse and these are furthered by competition law.
IP + CL- hand in hand for welfare of market and growth of economy.

ASHOK CHAWLA- CHAIRPERSON, CCI- INAUGURAL ADDRESS

“Very rightly” WIPO is not seeking to harmonize regime across nations- this has to be a domestic process of laws/jurisprudence.
Similarities/intersection of IP and competition law:
- IP + competition law- both put a premium on innovation – IP does this directly and competition law because there is a need to do better than other firms.
- Lead to technical and economic innovation.
- Goals – greater good for consumer and society.
Merger Control- crystal gazing on post merger scenario is required. Competition law authorities required to take nuanced approach in fast growing and tech. sectors- ex ante analysis- need to be upfront to scrutinize kind of restrictions being imposed under the deal- need to balance protection of knowledge of the mind with protecting the interests of the stakeholders as well.- this is the CCI approach.

The aforesaid balancing act is also going to be a critical area over the next twenty years- especially for policy makers.
Wider dissemination of advocacy is required.
Question to Chawla- ‘pay for delay’ agreements/reverses payments- our generic companies (what happens to them?)- what happens to the consumers? Is there going to be a study on this by the CCI?- Chawla said that in the generic drugs sector we are already strong- he said that this is going to be an issue Indian manufacturers will have to grapple with eventually (internationally)- but we will take care when it comes here.- Carvalho intervened and pointed out that ‘pay for delay’ agreements and reverse payments were different things.
Question to Chawla- IPR section on the CCI website does not have any content anymore- Chawla said that they will rectify this and understand that the section would be very useful in terms of clarifying the CCI’s stance on this intersection between Competition Law and IPRs.

Technical Session 1- “Balancing IPRs against Fare Practice”- Moderator- Hitesh S. Barot- Senior Intellectual Property Counsel, GE India.
NUNO PIRES DE CARVALHO- DIRECTOR, IP AND COMPETITION POLICY DIVISION, WIPO, GENEVA- THE INTERFACE BETWEEN IP/COMPETITION IN WIPO DEVELOPMENT AGENDA (nuno.carvalho@wipo.int)

Balanced IP- the Foundation of economic democracy.
Trade name- reputation- basis for survival in the market. Trade secret- sets you apart from competitors- IP not all about reputation- IP protects and promotes intangible differences that businesses introduce in their products/services- that is, differentiation. This could be of origin, quality, invention, creation, location, reputation, price etc. this differentiation is behind every IP asset.
What is balanced IP?
- IP in the right dosage- (not too much- examples of too much- IP for unmodified genes/functional signs/or common terms as trademarks.)- (not too little- example of too little- lack of protection for sound/smell designs, tolerance for counterfeit goods and piracy, no protection for new and inventive traditional knowledge etc).
- IP that is not abused.
- IP that is not distorted by external circumstances- regulation distorts competition and therefore distorts IP. Since IP is about differentiation, before innovation it promotes social, cultural and economic freedom. IP is the foundation of any free market economy based on consumers’ and entrepreneurs’ freedom.

PARTHASARATHY R., SENIOR PARTNER, LAKSHMI KUMARAN AND SRIDHARAN- THE INTERFACE BETWEEN IP/COMPETITION IN THE PHARMACEUTICAL SECTOR (partha@lakshmisri.com)

Patents Act- Section 140- certain prohibitions.
Section 107A of the Patents Act appears to provide for international exhaustion.- Delhi HC (2012)- Kapil Wadhwa v. Samsung International extended international exhaustion to trademarks also.
Areas of concern- ‘pay for delay’ agreements- will Section 3(5) of the Competition Act apply?
US- a granted patent is presumed to be valid. India does not envisage such a framework.
Getting a patent and getting the right to practice a patent are very different in patent law.
Acquiring patents by fraud attracts section 4 of the Competition Act.
Unfair pricing- not an offence to have excessive pricing in the US.
Standards- when you develop patents here, you AGREE to compulsory license on a FRAND basis. Only issue then is what are FRAND terms- won’t get injunctions on this issue here in India, since you can prove damages are enough of a remedy- so it all comes down to negotiations.

MIHIR RALE- AVP- LEGAL AND REGULATORY, STAR INDIA PRIVATE LIMITED - THE INTERFACE BETWEEN IP AND COMPETITION LAW IN THE BROADCASTING SECTOR

Overregulation leads to lack of innovation- this is his conclusion.
Content costs rise constantly- recouping them is very hard since channel prices have remained static for about eleven years now- supposed to have been an interim measure by the SC but TRAI is allowing it to continue.
Question by Barot- who decides how to price is going to be something interesting to debate.
(Sort of answering the ,above> question)- Mandatory Sharing Act- share feed w/ Prasar Bharathi- feed here refers to sporting events of national importance- the purpose is to give access to those who have terrestrial network (not cable/DTH)- but provision in the Cable Act says operators HAVE to carry two DD channels- so.. now operators don’t want to carry other (sports) channels, since Team India is available on DD anyway.

HEMANT KUMAR- GROUP GENERAL COUNSEL, ESSAR GROUP- ANTI COMPETITION AND IPR- DIFFERENT MEANS TO THE SAME END?

Can of course recover costs of innovation- (under IP license agreements)- but only up to a reasonable limit.

SANJEEV GEMAWAT- SENIOR VICE PRESIDENT- LEGAL AND SECRETARIAL, DLF RENTCO GROUP- IPR AND COMPETITION LAW- INDUSTRY PERSPECTIVE

The challenge is not competition, but protecting IPRs, given the size of the economy.
How will authorities interpret limits= challenges?
Challenge- threshold limits under Section 5 of the Competition Act- considering size of the economy.
Barot’s comment- soft convergence is emerging as a solution.

Technical Session 2- “Innovation and Competition”- Moderator- Geeta Gouri- Member, Competition Commission of India
BALAZS GARGYA- FIRST SECRETARY, EUROPEAN UNION DELEGATION TO INDIA – INNOVATION AND IPR

Indo EU FTA
- Agreement will recognize India’s access to medicines policies.
- Both sides have shown flexibility.
- All our flexibilities will be untouched.
- Right to compulsory licenses maintained and recognised.
- Agreement not going beyond existing obligations.

J.L.N. MURTHY- GENERAL COUNSEL- ASIA PACIFIC, RED BULL- RECENT CHANGES ON MADRID PROTOCOL

Anand Sharma recently deposited the instrument of India’s accession to the Madrid Protocol.

This is w.e.f. 08/07/2013 in India.

Accession strengthens march towards excellence in IP recognition.

MUNESH MAHTANI- GLOBAL COMPETITION COUNSEL, GOOGLE, U.K.- COMPETITION LAW ENFORCEMENT IN THE HIGH-TECH SECTOR

Challenges for competition authorities:
- Defining markets and assessing market power- increasing market shares may not indicate market power (e.g.- Microsoft/skype)- need to look at actual competitive dynamics.
- Identify abusive conduct.
- Important to distinguish between harm to competitors and harm to consumers.
Existing antitrust laws can deal with high tech. sectors.

MANAS KUMAR CHAUDHURI- CO-CHAIRPERSON, ASSOCHAM NATIONAL COUNCIL FOR COMPETITION LAW AND PARTNER, KHAITAN AND CO., MONOPOLISTIC BEHAVIOURS IN HORIZONTAL AGREEMENTS AND VERTICAL AGREEMENTS

Monopolistic behaviours in horizontal agreements and vertical agreements.
GI agreements- falling foul of Competition Law?
Assignment agreements- terms anti competitive (if any)- then principle of severability of contract will apply.
Function of patents- to reward innovative work of inventor and NOT to protect public from defects. (ECJ decision 15/74).
The beginning of competition law assessment lies where IPR enters the market.

SAMIR GANDHI- PARTNER, AZB & PARTNERS, RELATIONSHIP BETWEEN IPR, MONOPOLIES AND DOMINANCE

IPR and Competition Law are two sides of a coin aimed at furthering innovation.

Under Section 4 of the Competition Act, 2002, you cannot take the defence of “doing so to protect my IPRs’ stance for your actions.

CCI has not yet had an IPR+ competition law ‘meaty’ case yet.

Refusal to license IPRs- competition law cannot say that you HAVE to license, but MAY be construed as anti-competitive if not backed up by sound objective claims.

At what stage are you required to license?

For more details visit https://cis-india.org/a2k/blogs/the-assocham-international-conference-on-the-interface-between-intellectual-property-and-competition-law

Statement on the Proposed Treaty for the Protection of Broadcasting Organizations at WIPO SCCR 28

nehaa — 2014-07-14T05:40:27Z

Nehaa Chaudhari, attending the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 30 June, 2014 to 04 July, 2014, made this statement on the Proposed Treaty for the Protection of Broadcasting Organizations on behalf of CIS on Day 3, 02 July, 2014.

Thank you, Mister Chair.

Mister Chair, there are two things that I would like to talk about, on behalf of CIS- first, on justifications for this Treaty; second on the scope and the rights sought to be granted under this Treaty, which I will speak of together, if I may.

On justifying the need for this Treaty, Mr. Chair, we would reiterate what we have said in past sessions of this Committee – there has been no conclusive demonstration on the need for this Treaty and on why existing mechanisms in international legal instruments, including, among others TRIPS and the Rome Convention are not sufficient to address the concerns of the broadcasters. We have heard that these are insufficient, but no justifications as to why- something that KEI also pointed out in their statement before us. Further, Mr. Chair, we’re concerned by the fact that the latest study on the unauthorised use of signals presented to this Committee is the one from 2010 at the 20^th Session of this Committee. We strongly support the proposal made by India, TWN, CCIA and TACD to update this study and include an impact assessment of ALL the stakeholders, something that the earlier study does not address; in order to more comprehensively assess not just the need, but also the impact of this proposed treaty, and address some of the questions and concerns raised by TACD and TWN in their statement earlier.

Without prejudice to this submission on the need for this treaty, Mr. Chair, we would also like to comment on the scope of, and the rights under this Treaty.

Mr. Chair, we would continue to submit that this proposed treaty should be based on a signals based approach and not a rights based approach. We have heard submissions by broadcasters at this and at previous sessions of this Committee, where the basis of seeking additional protection for broadcaster is to protect the underlying investment. Mr. Chair, investments made in infrastructure for broadcasting in the traditional sense are very different from those required for an IP based transmission, even if the same broadcaster is engaging in both. Therefore, Mr. Chair, given that the rationale for seeking this additional layer of rights over and above existing copyright is the protection of investment for broadcasting in the traditional sense is the , IP based transmissions should not be covered in any way under this Treaty.

Further, Mr. Chair, fixation and post fixation rights envisaged under Article 9 of Working Document SCCR 27/2/ Rev. and indicated in the Informal Document circulated today, are inconsistent with a signals based approach. We are strongly opposed to all of the rights indicated in the Third Row of this Informal Discussion Document. This Document, we believe, is moving the discussion towards a rights based approached and not a signals based approach, which we find deeply concerning. We also believe, Mr. Chair, that it is not logical to prescribe a term of protection (beyond the life of a signal), least of all 20 or 50 year term (as under Article 11 of this Working Document) for a signal that lasts milliseconds.

Thank you, Mr. Chair.

Video

Videos of the WIPO's proceedings from June 30, 2014 to July 04, 2014 are available online. To view CIS' Statement, select 'Standing Committee on Copyright and Related Rights: Twenty-Eighth Session- June 30 to July 4, 2014 (Geneva, Switzerland)' from the drop-down list of videos. CIS' Statement is in the video titled SCCR/28- Wed2 - English - Morning session. The length of the video is 44:51. The statement is available in this video from 24 minutes, 00 seconds- when the Chair recognizes CIS.

For more details visit https://cis-india.org/a2k/blogs/cis-statement-on-proposed-treaty-for-protection-of-broadcasting-organizations

Statement on the Limitations and Exceptions for Libraries and Archives at WIPO SCCR 28

nehaa — 2014-07-21T17:56:24Z

Nehaa Chaudhari, attending the 28th Session of the World Intellectual Property Organization (“WIPO”) Standing Committee on Copyright and Related Rights (“SCCR”) at Geneva from 30 June, 2014 to 04 July, 2014, made this statement on the Limitations and Exceptions for Libraries and Archives on behalf of CIS on Day 4, 03 July, 2014.

Thank you very much, Mr. Chair.

We thank the delegation of the United States for putting forward their Objectives and Principles for Exceptions and Limitations for Libraries and Archives, presented to this Committee in Document SCCR/ 26/8. I would like to comment on two of the topics that we have discussed today- one; the adoption of national exceptions and two; limitations and exceptions in a digital environment.

First, Mr. Chair, on the adoption of national exceptions: We appreciate the recognition of the ‘public service’ role of libraries and the importance of limitations and exceptions for them to perform their role of facilitating access to and the dissemination of knowledge and information, the goals of the copyright system. However, Mr. Chair, we do believe that the true and complete realization of these objectives would not be possible without an international legal instrument that lays out minimum international standards for countries to adopt and implement, that fosters a system for cross border exchange and creates an enabling environment to facilitate the implementation and adoption of limitations and exceptions at the national level.

Second, Mr. Chair, on limitations and exceptions in a digital environment; we appreciate the objective set out in the proposal made by the United States and welcome the statements by the delegations of Kenya, Chile and South Africa, that international regulation will grant a solution to the problems facing libraries and archives in the digital environment. Mr. Chair, the digital environment presents huge opportunities for countries such as India and perhaps others in the Global South for the preservation and dissemination of knowledge and in turn benefit education and research; with libraries and archives playing a crucial role. The digital environment, Mr. Chair, also presents a fair share of challenges. These include as IFLA, CLA, EIFL, IAB, the Karisma Foundation and others have also stated- multiplicity and complexity of licenses to be negotiated with various rights holders, the mandated use of particular platforms by publishers, difficulties in obtaining copyright clearances and limitations on remote access to name a few. Additional challenges are placed by technological measures of protection, (something that we also spoke about in our submission at the previous session of this Committee; where technological measures of protection often placed on master copies of files obtained by libraries and archives prevent basic preservation activities such as file format migration and limit the ways in which end users can utilize the work in question, rendering redundant, fair use or fair dealing provisions.

Therefore, Mr. Chair, we are of the opinion that an international legal instrument addressing the challenges faced by libraries and archives in the digital environment is necessary and the way forward for members of this Committee- and existing mechanisms in national laws of those nations that do have them are insufficient.

Video

Videos of the WIPO's proceedings from June 30, 2014 to July 04, 2014 are available online. To view CIS' Statement, select 'Standing Committee on Copyright and Related Rights: Twenty-Eighth Session- June 30 to July 4, 2014 (Geneva, Switzerland)' from the drop-down list of videos. CIS' Statement is in the video titled SCCR/28- Thurs3 - English - Afternoon session. The length of the video is 02:13:52. The statement is available in this video from 01:38:46

For more details visit https://cis-india.org/a2k/blogs/cis-statement-on-limitations-and-exceptions-for-libraries-and-archives

Statement by the Centre for Internet and Society on the Broadcast Treaty at SCCR 30

nehaa — 2015-07-02T01:20:38Z

The 30th Session of the World Intellectual Property Organization's ("WIPO") Standing Committee on Copyright and Related Rights ("SCCR") is underway in Geneva from 29 June, 2015 to 03 July, 2015. While CIS was unable to attend this meeting, we have the following statement to make on negotiations on the Proposed Treaty for Broadcasting Organizations.

This statement was prepared on behalf of CIS by Nehaa Chaudhari. Many thanks to Pranesh Prakash and Amulya Purushothama for their inputs.

Mister Chair,

Our intervention will speak to the presentations made by broadcasting organizations on Day 1 and Member and Group Statements on Days 1 and 2.

First, Mr. Chair, generally on technical panels- If this is the manner in which this Committee will be appraised of new developments, without prejudice to our reservations about this ad-hoc manner itself, we strongly suggest that other interest groups and stakeholders be provided a similar opportunity to present their side of the story, in front of this Committee, for one entire day. Industry representatives, including those from telecommunications, information technology, consumers electronics, and performers- and not just various public interest NGOs have been expressing reservations and concerns about this Treaty from at least as far back as 2006, if not earlier. We appreciate Group B’s ask in their introductory statement to “continue to hear the voices of the real world” – We only ask that you award all stakeholders an equivalent, if not equal opportunity to be heard in the manner that you have the broadcasters; without privileging the interests of the broadcasters above the others. There must be a recognition of the rights of other stakeholders including content owners- not just in the Treaty as noted by India yesterday, but also in the discussions leading up to it.

Second, Mr. Chair, on Technical Background Paper document SCCR 7/8 – which you had flagged off as relevant for this session in your summary of SCCR 29 – but, of course, I stand to be corrected if I have understood incorrectly. Mr. Chair, this document is more than a decade old – it seems to have seen no updates since 2002, and even in that form, it is wanting. The document excludes from its scope the rationale for the treaty as well as the scope for protection, which we find problematic, especially given as these have been among the most contentious topics in this Committee. Additionally in only dealing primarily with the Rome Convention with but a passing reference to other international instruments, if at all, it presents an incomplete overview of the legal framework already available to broadcasters. I also have other comments to this document, which I will send in writing. We’d strongly urge that an updated version of this document be presented to this Committee so that we can have a more accurate discussion, just like the one on market and technology trends has been updated as SCCR 30/5.

Third, Mr. Chair, on the presentations and statements themselves. A reason oft cited in this Committee, Mr. Chair, has been the need to protect the underlying investment and the purported loss of revenue. From their presentations on Day 1 Mr. Chair, it seems to us that the broadcasters are doing perfectly alright without a Broadcast Treaty. Mr. Knapp for IHS in fact said that “Despite digitization, TV homes, paid TV homes are growing globally”, stating also, that there was a very high average revenue per user in North America and a “double digit growth in the pay TV sector” in other regions, which meant a “fairly healthy industry despite all the digital disruption side”. We have also heard from TV Globo who told us of the progress made in advertising and pay TV and smartphone penetration in Brazil, and from Zee Telefilms from India who spoke of a booming broadcasting industry.

Mr. Chair, Nothing we have heard so far addresses three important questions – why is there a need for a separate right? Why are protections under the Rome Convention inadequate? While piracy might well be an issue, why can’t it be covered under existing copyright law – all of which comes down to why we’re discussing the creation of a para copyright regime for broadcasting organizations.

From the Caribbean Broadcasting Union, we heard about emerging technologies and the challenges due to piracy. There was also a mention of significant investment – but if that is to be the basis for this treaty, we would ask that detailed reports of these investments and losses also be placed before this Committee. Also, none of this addresses the lacunae in the Rome Convention or existing international copyright law.

Mr. Chair, we have repeatedly heard from Group B and the European Union on the ‘significant economic value of broadcasting’, but, this economic value has had international law recognition for a while now. While the CEBS group, Japan and Russia speak highly of technological advancements to justify the need for the Broadcast Treaty, there has still been no discussion on the inadequacy of existing international law to address these technological advancements. There needs to be something more that justifies this attempt to give broadcasters an additional layer of rights. It might be useful to conduct a comprehensive study on signal theft and piracy and the legal frameworks in every member state to deal with signal theft and piracy, and an updated study on the international legal framework as well. This Committee has precedent on such an exercise in Prof. Kenneth Crews’ study on limitations and exceptions for libraries and archives that has been tabled at this SCCR.

Mr. Chair, this para copyright we’re trying to create, especially without all stakeholders being heard equally, would in effect severely limit any competition that broadcasting organizations would face from the Internet and other emerging technologies; which is undesirable for any market, besides access to free knowledge and information, as well put by the delegation of Iran.

Thank you.

For more details visit https://cis-india.org/a2k/blogs/statement-by-the-centre-for-internet-and-society-india-on-the-broadcast-treaty-at-sccr-30

Standard Essential Patents on Low-Cost Mobile Phones in India: A Case to Strengthen Competition Regulation?

nehaa — 2016-04-24T04:42:52Z

The realization of the promise of the sub hundred dollar mobile device as a facilitator of access to knowledge is contingent inter alia on its availability in the market place. In turn, the market availability of the sub hundred dollar mobile device is influenced by the existence of an enabling environment for producers to produce, and consumers to consume. From a regulatory perspective, the enabling environment itself is a function of existing laws and policies, and the ‘developmental effects’ of certain laws and policies (Saraswati, 2012).

This article seeks to examine one such legal and policy lever and the role of a regulator in the development of an enabling environment for access to sub hundred dollar mobile devices. This paper is founded on four assumptions: first, that access to sub hundred dollar mobile devices is influenced by their price; second, that the question of access necessitates conversation between the intellectual property regime and several other actors, sites and tools; third, that one of the fundamental goals of regulatory reform is the creation of a ‘stable, open and future- proof environment’ (Guermazi and Satola, 2005) that encourages access to these devices; and fourth, that there exist public law implications of intellectual property that justify the involvement of State actors and regulators in matters that may arise out of private transactions.

This article will examine whether there is a role to be played by competition law in this narrative of innovation, intellectual property and access to sub hundred dollar mobile devices. In light of increasing litigation around standard essential patents, and the inability of FRAND and International Standard Setting Organizations to find a comprehensive solution, this paper will question the efficacy of competition law as an ex post solution to a problem that might be better addressed by ex ante regulation from a specialized body.

In an attempt to address these questions, this article will examine the role of the Competition Commission of India and the Indian Judiciary. Orders of the Competition Commission will be studied from its inception till March, 2015, in order to draw conclusions about the role that the Commission identifies for itself and the nature of disputes it adjudicates. This article will also examine the role of similarly placed institutions in the United States of America as well as some member states of the European Union.

It will be argued that while Competition Law might address some of the issues arising out of litigation around standard essential patents, and might be a tool to increase access to sub hundred dollar mobile devices, its efficacy as a long term solution in light of its nature as an ex post solution, is questionable. Consequently, it might be prudent to have a conversation leaning towards exante regulation of the market place by a specialized regulator.

The paper was published by Socio Legal Review (National Law School of India University). Download the PDF here.

For more details visit https://cis-india.org/a2k/blogs/the-socio-legal-review-nehaa-chaudhari-standard-essential-patent-on-low-cost-mobile-phones-in-india

Signing and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled

nehaa — 2014-05-06T08:32:58Z

The Centre for Internet and Society sent the following letter to the Secretary, Ministry of Human Resource Development on March 14, 2014.

14 March 2014
Shri Ashok Thakur
Secretary, Ministry of Human Resource Development
Government of India
New Delhi

Dear Sir,

Subject: Signing and Ratification of the Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled

I write to you on behalf of The Centre for Internet and Society, Bangalore, India (“CIS”). CIS is actively involved in work on accessibility[1] and access to knowledge[2]
The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or Otherwise Print Disabled (“Marrakesh Treaty”) was signed on June 28, 2013 at Marrakesh, Morocco. Reportedly, the Marrakesh Treaty was signed by over fifty countries on the final day of the Diplomatic Conference held to finalize this treaty, in late June, last year.
We are given to understand that reportedly[3] the Union Cabinet had in its meeting held at the end of last year cleared the Marrakesh Treaty for both, signature and ratification.
We write this letter to enquire about the status of India’s signing of the Marrakesh Treaty.
We strongly believe that the signing and ratification of the Marrakesh Treaty would be in India’s best interests, and in consonance with the amendments made to India’s copyright law in 2012, as reflected in India’s Closing Statement at Marrakesh on the Marrakesh Treaty.[4]
In light of this we request you to take the necessary steps for the signature and ratification of the Marrakesh Treaty as a consolidation of India’s long standing commitment to providing access to books and printed material to the blind, visually impaired and persons with other print disabilities.
We would be deeply obliged to provide you with any assistance necessary.

[1]. See http://cis-india.org/accessibility (last accessed 14 March, 2014).

[2]. See http://cis-india.org/a2k (last accessed 14 March, 2014).

[3]. Email correspondence from Dr. Sam Taraporevala, available here- https://groups.google.com/forum/#!topic/daisyforumofindia/tksq9kAdD0Q (last accessed 13 March, 2014). and here- http://lists.keionline.org/pipermail/marrakesh_lists.keionline.org/2013-November/000240.html (last accessed 13 March, 2014).; Email correspondence from Shamnad Basheer, available here- https://groups.google.com/forum/#!topic/spicyip/DupESMX2lkg (last accessed 13 March, 2014). See also http://spicyip.com/2013/12/marrakesh-blind-treaty-okayed-for-signature-and-ratification.html (last accessed 13 March, 2014).

[4]. See http://cis-india.org/a2k/blog/india-closing-statement-marrakesh-treaty-for-the-blind (last accessed 13 March, 2014).

For more details visit https://cis-india.org/a2k/blogs/signing-and-ratification-of-marrakesh-treaty-to-facilitate-access-to-published-works-for-persons-blind-visually-impaired-print-disabled