Centre for Internet and Society

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

Security, Governments and Data: Technology and Policy

nehaa — 2015-04-04T05:49:42Z

For more details visit https://cis-india.org/internet-governance/blog/security-governments-data-technology-policy.pdf

RTI Responses - MHRD IP Chairs: Details of Funding & Expenditure

nehaa — 2015-02-02T13:28:30Z

In an earlier blog post titled "MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures", we discussed the lack of information regarding the expenditure by various MHRD Chairs in the country. We sent out RTI requests to find out more. This blog post discusses the responses that we have received so far. (Many thanks to CIS intern Varnika Chawla for her assistance)

See the earlier post on MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures

A wide variation in the allocation of funds among different Universities was observed. Further, it was noted that no information was available on any platform, regarding the actual utilization of these funds, and therefore, CIS had filed a Right to Information request for the same with the concerned authorities.

A four-pronged Right to Information query (dated 17.11.2014) was filed by CIS with various Universities, seeking the following:

A report on the implementation of the IPERPO Scheme and the MHRD IPR Chair funded under the Scheme at different Universities across India, for the year 2013-14;
Documents on the release of grants to the MHRD IPR Chairs under the IPERPO Scheme at different Universities, for the year 2013-14;
Documents relating to the receipt of utilization certificates and audited expenditures statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO Scheme for the year 2013-14;
Documents regarding all matters related to finance and budget related to the MHRD IPR Chair under the IPERPO Scheme for 2013-14 established across different Universities.

Accordingly, CIS received the following information from Universities:

Name of University	Implementation of IPERPO Scheme	Release of Grants	Utilization Certificates & Exp. Stmts.	Finance & Budget Matters
WBNUJS, Kolkata	Information not yet available	-	-	-
DU, Delhi School of Economics, Tezpur University	Information not yet available	-	-	-
Jawaharlal Nehru University	Information not yet available	-	-	-
IIM, Ahmedabad	No MHRD IPR Chair	-	-	-
IIM, Bangalore	Established a Chair	Rs. 23,50,000	Rs. 23,50,000	Submitted
IIT Delhi	No MHRD IPR Chair	No money has been received	-	-
NLU, Jodhpur	Established a Chair	Rs. 36,00,000	Rs. 18,86,566	Submitted
University of Madras	No MHRD IPR Chair	No money has been received	-	-
Nalsar University of Law, Hyderabad	Established a Chair	Rs. 40,00,000	Rs. 37, 88,349	Submitted
NLSIU, Bangalore	Established a Chair	Rs. 45,00,000	Rs. 45,31,927	-
CUSAT, Kerala	Information not yet available	-	-	-
IIT, Bombay	No IPR Chair for 2013-14	Rs. 35,00,000	Rs. 15,66,179	Submitted

The RTI Requests were returned by NUJS Kolkata as well as IIT, Kanpur, in a response dated 28.11.2014.

IIM Ahmedabad in its response (dated 9.12.2014), informed of the fact that no MHRD IPR Chair has been established under the IPERPO Scheme at the institution.

Details of the activities undertaken by the MHRD IPR Chair, as well as their finance and budget allocation were received from IIM, Bangalore (dated 16.12.2014). It was disclosed that the focus of the IPR Chair is on research on the economic and management dimensions of IPR with special reference to the corporate, SME and agricultural sectors. Since 2011-12, the Chair has focused on creative content management and protection with reference to cinema, electronic media and classical performing arts. Several activities were undertaken by the Chair, including finalization of a Research Monograph; inclusion of IPR Economics into the Core Course in Microeconomics for the Post Graduate Programme in Software Enterprise Management; a National Workshop on “Macro Policy Environment, IPR’s and Competition Policy” was organized; and 2 Research Assistants were appointed under the Chair. Against a request for Rs. 26,10,000, a grant of Rs. 23,50,000 was received, utilized for the payment of the Chair’s salary (Rs. 19,20,000), RA honorarium (Rs. 5,40,000) and Round Table Expenses.

IIT, Delhi, in its response (dated 16.12.2014) informed that no MHRD IPR Chair has been established under the IPERPO Scheme at the University. Further, no grant money has been received by the University under the Scheme.

NLU, Jodhpur submitted a detailed reply (dated 16.12.2014). A number of IPR research and learning initiatives have been undertaken under the MHRD IPR Chair established under the IPERPO Scheme, including IPR Awareness Programmes, formulation and conduction of various undergraduate and postgraduate IPR Courses, research and suggestions on IPR Law Reforms and IPR Policies etc. NLU Jodhpur conducted a training session for researchers and teachers of IPR, a workshop for students on IP Litigation, a conference on “The Impact of IPR on Access to Medicine”, Training, Sensitization and Outreach Programmes as well as lectures and paper presentations. Funding received from the grant was utilized towards payment of the coordinator’s salary (Rs. 5,78,800) RA honorarium (Rs. 6,00,000), Ph.D. fellows’ honorarium (Rs. 3,38,000), travel grants (Rs. 2,00,000) and miscellaneous expenditure. A total of Rs. 17,00,000 was spent on sensitization and outreach programmes, workshops, conferences as well as the IP Depository.

The University of Madras in its response (dated 29.12.2014) submitted that no MHRD IPR Chair has been established under the IPERPO Scheme and no grants were sanctioned to the University.

The requisite documents detailing expenditure incurred (Rs. 37,88,349) as well as the financial budget were made available by NALSAR University of Law (dated 22.12.2014). Expenditure was incurred towards the payment of the Chair Professor’s salary (Rs. 17,50,093), payments to the staff (Rs.7,11,544), the IPR Journal (Rs. 40,000), Travel (Rs.6,45,864), books (Rs. 2,67,740) and other miscellaneous expenditure. A link to an online report, was also made available. However, this is a dead link.

The website established for MHRD IPR Chairs itself is not functioning.

No information has been made available by Jawaharlal Nehru University, Delhi University, Delhi School of Economics and Tezpur University as well as CUSAT, Kerala as of now. Further, IIT, Kharagpur in its reply (dated 17.12.2014), sought exemption from providing the required information under Section 8(1)(d) of the RTI Act, 2005.

IIT Bombay, in its reply (dated 15.01.2015) submitted that having established a MHRD IPR Chair under the IPERPO Scheme, activities such as research, training, academic courses (Introductory Foundation Course at U.G., P.G. Level, Elective Course at P.G. Level), conducting workshops, conferences and outreach programmes and maintaining an IP Depository have been undertaken. Details about budgetary allocation were also made available. From a grant of Rs. 35,00,000, a total amount of Rs. 15,66,179 has been utilized. However, there was no IPR Chair for the year 2013-14. Out of a cumulative grant of Rs. 1,95,00,000 received till March 31, 2014, the institution has spent a total of Rs. 1,62,60,265 on IPR Activities, workshops, honorariums, salaries, conferences etc. from 2007.

Lastly, as per the information received from NLSIU, Bangalore (dated 14.01.2015), an MHRD IPR Chair has been established at the University. Several activities have been organized at NLSIU, including a Workshop on IPR in S.J.R. College of Law, the release of an IP Newsletter publication “March of the IP Law”, a conference on the Advantages of Madrid Protocol, a conference on Patents, Innovation and Trade Secrets for MSMEs in IT/ITES Sectors in Karnataka, research activities such as the Fact-Screening-and-Transforming-Processor Project, the release of a website http://iprlawindia.org which is currently under construction, conducting awareness and outreach programmes etc. The MHRD IPR Chair at NLSIU was awarded a grant of Rs.45,00,000 which was largely spent on the payment of the Chair’s salary (Rs. 24,17,378), RA honorarium (Rs. 5,88,415), workshops and conferences (Rs.1,27,805), creation of a depository of IP books (Rs. 1,00,105), publication of newsletters (Rs.1,00,000) and staff payments.

It is therefore observed that firstly, there was a variation in replies to the RTI queries filed under the same format, with some Universities providing information, some blatantly refusing to do so (IIT Kharagpur), and some delaying the process for what appear to be minor procedural irregularities.

Four Universities have still not sent the requisite information, whereas no MHRD IPR Chair has been established in four of them. Only four replied with some information.

Moreover, for the year 2013-14, MHRD allocated a grant of Rs. 1,79,50,000 among 5 Universities, disproportionately (ranging from Rs.23 lakhs-Rs. 45 lakhs per University). Out of this grant, the Universities have incurred a total expenditure of Rs. 1,41,23,021, largely for the payment of salaries of the IPR Chair (Rs. 66,66,271), honorariums for Research Assistants (24,50,183), and conducting workshops, conferences and travel for the same.

The various responses received to the RTI queries filed reveal a great variation in not just the allocation of funds by the Ministry, but also on the utilization of these funds (if at all), as well as in the range of activities conducted by the Chairs.

We're still tracking this. Watch this space for more, including copies of our RTIs and the responses as well as details from other Universities who are yet to get back to us.

For more details visit https://cis-india.org/a2k/blogs/rti-responses-mhrd-ip-chairs-details-of-funding-and-expenditure

Report of the 30th Session of the WIPO SCCR by the Centre for Internet & Society

nehaa — 2016-04-04T14:39:05Z

This report was edited by Nehaa Chaudhari, Programme Officer; compiled with assistance from Nisha S.K., Administrator, and, Aarushi Bansal, Amulya P., and Saahil Dama, interns.

I. Broadcast Treaty Negotiations

Day 1: June 29, 2015

Opening Statements from Regional Coordinators

Japan, speaking for Group B, said that the Group continued to attach importance to the negotiation of the Broadcast Treaty. It emphasized the importance of the information session by technical experts to strengthen the understanding of technical issues. A better understanding of the legal aspects and language of the Treaty text would prove advantageous during Treaty negotiation.

It acknowledged that the presentation by Professor Kenneth Crews indicated that the Member States required an informative reference to adopt the limitations and exceptions. It recommended that the reference be made more user-friendly and accessible. Additionally, it proposed for an exchange of national experiences and a background check on the collection of outcomes.

Germany spoke next, on behalf of the Central European and Baltic States (CEBS). It supported a "forward-looking approach that would take into account the technical progress achieved in broadcasting systems so far". It argued for the inclusion of new media platforms used by broadcasting organizations into the Treaty.

It appreciated Kenneth Crews' study on limitations and exceptions for libraries and archives.
Germany believed that progress on these issues would be facilitated if the committee agreed on common objectives. It wanted to exchange best practices on both - limitations and exceptions for libraries and archives, and limitations and exceptions for educational and research institutions and for persons with disabilities.

Nigeria, on behalf of the African group, wanted equal time to be given to both the issues on the agenda - the Broadcast Treaty and limitations and exceptions. The African Group supported a balanced Treaty on protection of broadcasting organizations as per the mandate of the 2007 General Assembly. It welcomed Kenneth Crews' study on copyright trends. It also suggested a discussion on copyright exceptions for museums.

Argentina, speaking on behalf of GRULAC (Group of Latin American and Caribbean Countries), asked for equal time be given to all the issues on the agenda. This view was also supported by Mexico.

On behalf of the Asia Pacific group, Pakistan supported a balanced Treaty which followed the signal-based approach, for protecting broadcasting organizations as per the mandate of the 2007 General Assembly.

Belarus, representing the Central Eastern and Caucasian Countries, wanted a Diplomatic Conference for the conclusion of the Treaty soon.

The European Union (EU) stated that in building consensus on the Broadcast Treaty, the broad aim should be to make a meaningful Treaty that would be relevant to technological realities and needs of broadcasting organizations in the 21^st century.

Information Session on Broadcasting

Preceded by opening statements by regional groups and countries, the main event on Day 1 was an information session on broadcasting. The panel consisted of George Twumasi, Deputy Chairman and CEO of ABN Holdings Ltd.; Daniel Knapp, Director, Advertising Research; Shida Bolai, CEO of Caribbean Communications Network Ltd.; Anelise Rebello de Sa, Legal Manager of International Business and Contracts Compliance, TV Globo; Avnindra Mohan, President, Zee Network; and Tejveer Bhatia, Singh and Singh Associates, New Delhi.

Daniel Knapp started the information session by providing an outlook on broadcasting from a technical and revenue perspective. He highlighted that traditional broadcasting was different in different countries. In Greece, for example, there was little or no cable other than at the national level, while in the Middle East and Africa, a large proportion of access came from free satellite prescribers.

Knapp stated that despite digitization paid TV homes were growing at a 6% annual rate which was expected to slow down to 3.4% by 2018. While the growth was being led by India and China, pay TV homes in the US were declining as people were moving to over-the-top services. He added that users of connected devices such as smart-phones, broadband players and smart TVs were predicted to surge to more than 8 billion by 2017. This would result in the decline of TV-usage as audiences would move to online open source resources such as Facebook, YouTube, AOL and premium services such as Amazon and Netflix.

Kanpp voiced concerns about development in technology leading to piracy. He warned that traditional threats such as smart cards on set-top boxes and new methods of piracy such as online file-sharing needed to be checked.

John Simpson of the British Broadcasting Corporation ("BBC") outlined how broadcasting had changed through the years due to advancement of technology. He stated that the world was moving from analog TVs to digital services. Digital technologies had enabled broadcasters to offer more channels and programs, providing users with more choice and control. The definitional boundaries between broadcasting and digital video libraries were becoming increasingly blurred.

He argued that broadcasting was an important tool for social cohesion, economic development and ensuring public access to information. He believed that new content delivery mechanisms, such as computer networks or smart-phones, could bridge the knowledge-gap in developing countries. In Africa, for instance, the recent transition from analog television to digital television has the potential to improve both the quantity and the quality of content on television.

However, Simpson noted that the Treaty-text had no mention of the quality and accuracy of the information being broadcasted. It failed to discuss the need for televisions and videos to produce programs which did not just represent the beliefs of the government, but had a genuine observational truth to them. Simpson stressed upon maintaining quality and developing new ways in which things are broadcasted to people.

Shida Bolai of Caribbean Communications Network Limited spoke about challenges broadcasters faced during transition to digital technologies and migration of viewers and advertisers from traditional to new platforms. She noted that while most of the Caribbean was still grappling with standards and infrastructure to go digital, Bahamas and Surinam had already made the change. Legal protection offered to broadcasters in the Caribbean was inadequate and piracy in the form of CDs or fraudulent satellite use and internet were issues yet to be tackled.

Piracy was the result of the costly distribution of content on the internet leading to the broadcasters obtaining expensive licenses. Hence cable-operators pirated signals and free broadcasters had to look for new content. This showed that broadcasters were given inadequate protection. Bolai also indicated that it was difficult to invest in high-cost sports programmes due to financial losses arising out of piracy. She highlighted the need for the indigenous community to find primary channels of production and distribution.

George Twumasi from ABN Holdings LTD said that the central challenge for broadcasting in Africa was the creation of commercially viable content by Africans for Africans. If such content increased, the broadcast industry would grow to become a $75 billion industry over the next 15 years. With respect to piracy, he stated that Africans did not like foreign content and that it was not a pressing concern for them. He argued that the best way to stop piracy was through invasive technologies.

Twumasi wanted to create a lobby group to facilitate the growth of broadcasting. Given Africa's history, he emphasized on its need to define its role as a broadcaster and to entertain the world through its powerful mythology and culture.

Yaw Owusu from University of Ghana stated that copyright could be protected to the extent of monetizing what existed in the marketplace. He explained that the business strategy would operate by broadcasters driving the digital content and revenue system. Intellectual property and ownership would be protected through encryption software. Since English content had also been pirated in Africa, expert enhancement of existing content was required.

Anelise Rebello de Sa from International Business and Contracts Compliance, TV Globo said that the most important challenge to Latin American broadcasters were not other broadcasters, but Google, Facebook, Twitter and piracy. Audiences for the Brazilian advertising market had grown from 10 million in 2000 to 33 billion in 2014. Traditional TV had 72% of the advertisement market. Piracy was a problem since Brazilian signals would be picked up and used by broadcasters in other countries.

She also said that online piracy and set-top boxes were major causes for concerns. She explained the functioning of piracy using the example of Globo in Japan. Pirated content on Globo could not be removed since it did not originate in Japan. Hence the protection was inadequate.

Fingerprint technology would be useful against piracy since it automatically removes instead of comparing videos with one another. She concluded by stating that television also needed an updated legal framework and dependant businesses and investments to continue.

Avnindra Mohan from Zee Telefilms stated that by end of 2016, all of India would be on digital TV. The TV industry was set to increase its revenue from 7.8 billion USD to 12.1 billion USD in the future. However, piracy through DTH box cloning, IPTV, cable TV, inter-country smuggling and over the internet was a major concern. With regards to web-initiated transmissions, he argued that as long as the signal was hacked by someone, broadcasters should have the right to prevent that piracy or illegal transmission from happening.

Day 2: June 30, 2015

Day 2 began with the Chair calling for statements from Member States and regional groups on general principles and key objectives of the proposed Broadcast Treaty.

Regional Group Statements on General Principles

Japan, on behalf of Group B, reiterated that after the session it hoped to move forward with the discussion in line with the 2007 General Assembly mandate and to convene the diplomatic conference at the earliest opportunity.

Speaking on behalf of the Asia Pacific Group, Pakistan stated that it supported the development of an international treaty based on the mandate of the 22 ^nd SCCR which was reiterated in 2012. It sought an agreement based on traditional broadcasting and cable casting; a balanced text that prioritized the interests of all the stakeholders. Pakistan said that the original mandate without new layers of protection would achieve this balance.

Nigeria, representing the African Group, stated that it wanted a pragmatic and effective outcome in conformity with the 2007 mandate, and looked forward to moving towards a Diplomatic Conference soon. Noting the efforts made at the 29^th SCCR, it welcomed the discussion on broadcasting protection. Nigeria concluded by reaffirming its commitment for constructive development in order to protect broadcasting rights within the directives of the 2007 General Assembly mandate.

Romania supported a Treaty that would provide adequate protection in line with modern technological developments. It sought a broad consensus on the signal-based approach. It also stated that it hoped to recommend the convening of a Diplomatic Conference to the General Assembly.

The EU considered the Broadcast Treaty to be a high priority. It wanted a treaty that would be meaningful in view of the technological realities and the needs of broadcasting organizations in the 21^st century. It argued that both - traditional broadcasting and broadcasting over the internet- - required international protection against piracy.

Iran supported the statements made by Pakistan and the Asia Pacific group. It wanted the Treaty to follow the signal-based approach decided in the 2007 General Assembly. Iran only wanted protection for traditional broadcasters. It argued that expanding protection to transmissions over the internet raised concerns of rising transaction costs and reducing access to broadcast in developing countries. It sought an assessment of the impact of the Treaty on the public domain, access to knowledge, freedom of expression, users, performers and authors.

South Korea believed that after the introduction of the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organization ("Rome Convention"), the protection of broadcasting organizations had not been updated to reflect advances in technology. Therefore, it wanted the Treaty to respond to changes in technology.

National Statements on General Principles

Japan wanted the SCCR to end with a recommendation for convening a Diplomatic Conference to adopt the Treaty. It hoped to discuss objectives of protection and rights to be granted. It wanted to move to textual work in the near future and have more elaborate discussions to expand the scope of common understanding.

The US wanted to continue discussions to obtain a general consensus on a meaningful and targeted text. In its opinion, a right that protected broadcasters against signal piracy on any platform without an extra layer of protection could attract such a consensus.

Russia wanted to adopt a new document on the protection of broadcasting organizations. It wished to confine the Treaty to traditional broadcasting, but also lay a basis for content for future protection. It suggested that new forms of broadcasting should be identified and new directions for future protection should be introduced. Russia conveyed its support to all collective decisions to be taken while discussing the text of the future Treaty, as well as a speedy adoption of a common approach.

Belarus, on behalf of the Central Asia and Eastern Europe group, hoped that the new Treaty would reflect specificities of different regions and possibilities of adaptation to changes in broadcasting.

Indonesia supported the statements delivered by Pakistan. It wanted the Treaty to be based on the 2007 General Assembly mandate and use a signal-based approach with broadcasting and cablecasting defined traditionally. It opposed the introduction of any new layers of protection and wanted to strike a balance between rights and responsibilities of broadcasting organizations.

India supported a Treaty with the 2007 General Assembly mandate and also sought the prevention of unauthorized live transmission over computer networks. It opposed expanding the mandate to include elements of webcasting, simulcasting and retransmission over computer networks or other platforms, as these were not a part of broadcasting as defined in a traditional sense. India wanted the Treaty to provide exceptions to private use, use by experts in connection with reporting of current events, use solely for the purpose of education and research and the fixation of a broadcast by means of its own facilities.

Objectives of Treaty, Scope of Protection and Object of Protections

The EU argued that there was a need to ensure that the Treaty was up to date and in line with technological advancements. It wanted protection to extend to broadcasters who used new technologies and urged for the inclusion of a broad retransmission right that would involve simultaneous retransmission and deferred retransmissions. It believed that the objective of the Treaty was to stop piracy whether it was in the form of simultaneous transmissions or organized by websites. It also expressed eagerness to go to text-based work as opposed to working on clarifications.

Speaking next, the US supported a Treaty that would respond to advancements in digital technology and address piracy concerns by eliminating loopholes that pirates could exploit. It said that piracy was a significant concern but not necessarily the suitable object for the Treaty in question. It was not a major part of broadcasters' protection, which could be resolved by enforcing only signal protection.

Romania, speaking next on behalf of the CBES group, stated that it believed in a Treaty that would protect broadcasters against piracy regardless of the platform. It wanted to protect cablecasting and simulcasting in addition to traditional broadcasting. It re-iterated the stand taken by US in saying that a broad retransmission right would be the way forward.

Japan believed that there was a need for separating traditional broadcasting from internet originated initial transmission. Since newer broadcasting organizations dealt with internet broadcasting, it wanted Member States to discuss methods of dealing with such a transmission.

Argentina supported a Treaty that would include broadcasters and cablecasters but would exclude internet originated transmissions except in the context of near simultaneous transmissions.

The EU noted that India, Iran, CEBS, South Africa, Argentina and Kenya seemed to agree that live signals transmitted over any platforms would be the object of protection of the Broadcast Treaty. It stated that it would support a Treaty that protected cablecasting in addition to traditional broadcasting.

Italy endorsed the stance of the EU. It explained that the broadcasting rights to fixation, reproduction of fixations and retransmissions of such fixations and protection of signals sent over the internet could find a background in Article 14 of the TRIPS. It further argued that even the idea of exclusive rights to broadcasters could find precedence in Article 14 of TRIPS and in the Rome Convention.

China argued that the Treaty should account for technological developments. While it fully supported a Treaty that only covered traditional broadcasting including cablecasting, it wanted to include simulcasting, on demand casting and near simulcasting within the Treaty.

India, in response to the EU and Italy, sought to emphasize the difference between a right to authorize and a right to prohibit broadcasting. It stated that the Broadcast Treaty should not provide for a positive right to authorize. It argued that internet companies often broadcast events based on a contract with the content creators, and such a right should not conflict with rights that may be given to broadcasters by virtue of the Treaty. India emphasized the need to stick to the signal-based approach as it balanced the interests of broadcasters and content creators. It pointed out that in cases where broadcasters doubled up as content creators, copyright law would be enough to prevent piracy.

Brazil, along with the US and South Africa, wanted to take into account the concerns of content owners in other platforms.

The US stated that the common ground would be the protection of live signals. If the signal is transmitted by any means, it should be protected. Since many broadcasters used the internet to transmit signals, it would be important to ensure that the signals thus transmitted were protected from piracy as well. It wanted a technologically neutral definition of broadcasting and argued that this would still be limited to a signal-based approach because there were no rights over the content per se.

India clarified its stance and stated that while it did believe that unauthorized retransmissions over the internet should be prohibited by the Treaty, providing broadcasters with a sole right to transmission over the internet would be beyond the signal-based approach. Internet transmissions could rarely be said to be signal theft in the traditional sense.

Iran, responding to the EU, stated that it supported a Treaty that covered traditional broadcasting, cablecasting and even live retransmissions on the internet. It expressed concerns with the Treaty granting exclusive rights to broadcasters, and stated that it would support a Treaty against signal theft as long as the signals belonged to traditional broadcasters.

Chile argued that only broadcasts open to the public should be protected by the Treaty and broadcasts requiring decryption without a cable should be excluded.

The EU restated that it supported a Treaty with technologically neutral terminology. It expressed concerns with the Treaty benefitting all kinds of broadcasters since technological developments had enabled everyone to become a broadcaster. Italy supported this caveat and stated that a workable definition of a "broadcast organization" would be an organization that transmits a broadcast signal. A "broadcast signal" would be a signal that includes only broadcasts or cablecasts; and broadcasting does not include the transmission over computer networks. It believed that such a definition would differentiate between broadcasts, cablecasts and webcasts.

Japan stated that broadcasting organizations would have to be defined as broadcasters in the traditional sense since the idea of a broadcasting organizations had not changed despite technological advancement. It wanted to start with the definition of broadcasting as it was laid out in the WIPO Performances and Phonograms Treaty ("WPPT") and the Beijing Treaty on Audio-Visual Performances, 2012 ("Beijing Treaty").

Nigeria stated that broadcasting should be clearly defined before broadcasting organizations since the two were inevitably linked.

Russia believed that the discussion was becoming overly complicated. It argued that a simple method of understanding broadcasting would suffice to define broadcasting and broadcasting organizations. The means used by broadcasters were of little concern to Russia.

The US stated that along with being forward-looking, the definitions also needed to be consistent with treaties passed by the WIPO in the past, including the WPPT and Beijing Treaty. Broadcasting organizations should be defined as entities that would assemble and schedule programmes carried by the signal keeping in mind the distinction between a signal and a program.

As per the EU, the definitions in Document SCCR 27/2 needed to be discussed as they covered important elements of broadcasting such as broadcasting by wireless means including satellite for public reception. The EU also stated that while the definition of broadcasting organizations should not include transmissions over computer networks, transmissions over computer networks could be included as a part of the object of protection.

At the end of the evening, Ann Lear, of the WIPO, intervened to stress that definitions must be adopted keeping keep in mind that many broadcasters today viewed the internet as the main platform for distribution of their broadcast in the near future and were using streaming and downloading over the internet.

Day 3: July 1, 2015

Day 3 of the negotiations began with the Chair noting the general consensus emerging in the matter of protecting live signals over any platform, and, allowing broadcasters to prohibit unauthorized access regardless of the platform from which the signal was transmitted. The Chair opened the floor for debate on whether there was a need for defining 'broadcasting organizations' or whether defining 'broadcasting' as an activity would suffice, and on whether the definitions must reflect those existing in other international treaties.

Defining 'broadcasting organizations'

The EU spoke first, stating that the definition laid out in Alternative B to Article 5 in Document SCCR 27/2 was similar to what it wanted. It believed that defining broadcasting and cablecasting was crucial to defining the beneficiaries of the Treaty. But this did not mean that it was unimportant to outline who the beneficiaries of the Treaty were.

Australia argued that the Rome Convention operated well without having defined broadcasting organizations and the same would hold true for the Broadcast Treaty as well. It further argued that the definition of broadcasting should be based on the definitions that already existed in the Beijing Treaty and the WPPT.

Serbia stated that the definition of a broadcasting organization had to conform by the definition of broadcasting. Additionally, it felt the need to define the responsibility of broadcasting organizations for collecting information and editorial functions.

Russia argued that defining broadcasting organizations would be a misstep since different countries would have different definitions of broadcasters in their national legislations. Russia relied on the fact that the Rome Convention was operating well without having defined broadcasting organizations.

Brazil stated that while it wanted clarity on who would be the beneficiaries of the Treaty it was still debating whether broadcasting organizations had to be defined in the Treaty. It supported a technologically neutral definition of broadcasting as it would encompass different countries with different regulatory regimes.

Kenya stressed that it needed clarity on what broadcasting entailed as their national laws dealt with broadcasting in a particular manner. It required a clear definition to move things forward.

South Africa, agreeing with Kenya, spoke of its domestic legislation which defined broadcasting in several ways, and included both wired and wireless technology. It suggested accommodating different definitions of countries like Brazil and China which regulated broadcasting differently. It added that following a text-based definition would be difficult as discussions involving fundamental questions of broadcasting were constantly being raised.

Canada felt the need to examine national treatment with respect to defining or not defining broadcasting organizations. It said that a basic definition of the activity with a chance to accommodate differences in national legislations would be the best way to move forward.

The US proposed that text-based work would be more constructive in gaining clarity on these questions.

The EU commented that the definition of 'signal' could be based on the Beijing Treaty that makes a reference to public reception of sounds or images or images and sounds or representation thereof. Alternative A for Article 5 in Document SCCR 27/2 most closely reflected the definitions that already exist in other existing treaties as well. It stated that it would be sufficient to define broadcasting, cablecasting, broadcasting organizations and signal.

Romania endorsed the statement made by the EU. It stressed on the importance of defining the beneficiaries of the Treaty.

The EU intervened again to state that it was necessary to define broadcasting organizations, but that it could start with defining broadcasting based on existing treaties.

Romania intervened on behalf of the CEBS group to state that it was important to move to a text-based discussion to continue making progress. It emphasized on the need for updating the international legal framework to accord adequate protection to broadcasting organizations.

Russia supported the same proposal and stated that it was important to consolidate a text to eventually recommend convening a Diplomatic Conference.

Serbia aligned itself with the Romanian position. It further stated that it was important to identify the beneficiaries and non-beneficiaries under the Treaty.

Iran intervened to urge the commencement of text-based negotiations on the draft Treaty as there was no consensus on important concepts such as objectives, scope or objects of protection of the Treaty. It supported the proposal made by Romania on behalf of CEBS. Iran also stated that deciding on convening the Diplomatic Conference in the next biennium before resolving divergent views and arriving at a consensus would be premature.

The US argued that text-based work would be the way forward. Though consensus was beginning to appear, a number of countries had not committed to anything. Hence the draft should leave options so that there is still room for negotiations. It further said that if an acceptable text was found over the next two meetings, then a Diplomatic Conference in the next biennium could have a successful outcome.

The EU stated that while there was progress on understanding different positions, a consensus was yet to emerge. Further discussions were needed on important issues such as the term of protection and technological protection measures. It aligned itself with the proposal of the CEBS group and hoped that the work would lead to a Diplomatic Conference in the next biennium.

India, South Africa, Japan, Nigeria, Senegal and Kenya also supported the CEBS proposal to move to text-based work.

Chair's Conclusions

At the end of the session on broadcasting, the Chair noted that there had been an exchange of views on the objectives of the Treaty, the scope of protection and the object of protection. While no consensus had been reached, there was greater clarity on different positions. The Chair stated that text-based work seemed to be the way forward and agreed to prepare the draft document. Further, with the exception of one delegation, there was a consensus on the protection being granted to broadcasting organizations to prohibit unauthorized use of broadcast signals in the course of a transmission over any technological platform. The Chair lastly said that the proposed timeframe for this would be to work towards the biennium when the proposed Diplomatic Conference could take place.

II. Report on Negotiations on International Instrument for Exceptions and Limitations for Libraries and Archives

Day 1: June 29, 2015

Opening Statements by Regional Coordinators

Japan spoke on behalf of Group B and stated that the presentation by Prof. Kenneth Crews (hereafter, Crews) had provided for a way forward by showing that Member States needed an informative session on this topic. This informative session should be in an accessible and user friendly environment where exchange of national experiences could take place. It believed that the SCCR should give further consideration to the objectives and principles proposed by the US in this regard.

Nigeria, on behalf of the Africa Group, wanted to establish legal instruments on this issue and on limitations on educational and research institutions for persons with disabilities. It wanted equal time to be given to all the instruments being discussed.

Representing the GRULAC, Argentina stated that the issue of limitations and exceptions for libraries and archives was of particular importance to it. Argentina hoped that it would be dealt with in a balanced way. It attached importance to the work that had been done until then and to the report prepared by Crews. It supported an open and frank discussion on the issue and was interested in the proposal made by Brazil, Ecuador, Uruguay, the African Group and India. Mexico endorsed this statement as well.

On behalf of the Asia Pacific Group, Pakistan expressed disappointment since all the issues had not received equal commitment from all Member States, particularly the issue of exceptions and limitations for libraries and archives. It stated that while there were different priorities due to different economic realities in the various Member States, inclusiveness as an ideal meant that these priorities would be accommodated.

Pakistan believed that the issue of limitations and exceptions for libraries and archives was of critical importance for individual and collective development of societies. Libraries and archives play an important role in the right to education, which remains a challenge in many developing countries due to lack of access to relevant educational and research material. While sharing national experiences and best practices was informative and useful, it was important to understand that the lack of development with regard to exceptions and limitations resulted in no decision at the 2014 General Assembly. Therefore it wanted to move to text-based work on the same.

The EU stated that the discussion could not be furthered without clarity on direction and objectives. It sought a surer understanding of what the outcome of the discussion could be to avoid wasting time and resources. It noted that the 2014 General Assembly had not provided the SCCR with a new mandate on libraries and archives. Even on exceptions and limitations for educational and research institutions and persons with disabilities, the acceptable way forward would be to encourage best practices in the broad and flexible boundaries of the current international copyright framework and not within the realm of further legally binding instruments.

Day 3: July 1, 2015

Regional Statements on General Principles

Work on exceptions and limitations for libraries and archives resumed in the afternoon session of the third day of the meeting.

Brazil, on behalf of GRULAC, believed that Crews' report documented the important role played by libraries and archives and emphasized the need for library lending services. It supported an open and frank discussion without prejudging its outcome. It was interested in the proposal made by itself, Ecuador, Uruguay, the African Group and India on the same. It also underscored the importance of ratification with respect to any Treaty relating to limitations and exceptions.

On behalf of the Asia Pacific Group, Pakistan stated that limitations and exceptions were essential requisites for all norm setting exercises. People in all countries would benefit from exceptions and limitations for libraries and archives since it would allow for materials to be accessible by all of humankind instead of being restricted to individual countries. Pakistan believed that any agreement on this would require harmonization of domestic laws and policies. It considered sharing national experiences of Member States to be beneficial in this regard. In a report to the 28^th session of the Human Rights Council, the Special Rapporteur for Cultural Rights also supported the harmonization of exceptions and limitations in copyright for libraries in education.

Representing the African Group, Nigeria underscored the fundamental role of libraries and archives in facilitating access to knowledge for human and societal development. The principle of exceptions and limitations meeting specific objectives is an essential part of international instruments. As evidence, Nigeria pointed out legal precedents that contained specific limitations protecting educational institutions and facilitating access to learning. It sought a text-based discussion on the text prepared by the African Group, Brazil, Ecuador, India and Uruguay and the Chair's informal document streamlining various proposals.

Romania stated on behalf of the CEBS group that it welcomed the updated version of the study on copyright exceptions prepared by Crews. Romania recognized the important role that exceptions and limitations would play in facilitating library services and serving the social objectives of copyright law. It stated that the three-step test provided for by existing treaties offered a framework that was wide enough for states to establish their own exceptions and limitations but conceded that it may need more guidance on best practices. It considered an approach based on exchange of best practices to be superior to a normative approach.

Japan, on behalf of Group B, relied on Crews' study to show that many countries had already introduced exceptions and limitations for libraries and archives in their domestic legal systems. It wanted further work at the SCCR to be based on the recommendations of the Chair at the previous SCCR and the presentation by Kenneth Crews. It sought for a substantive discussion at an objective and principle level as proposed by the US.

China intervened and pointed out that there already existed a Chinese legislation regarding exceptions and limitations for libraries and museums and orphan works.

The EU stated that the study conducted by Kenneth Crews was illustrative of the fact that exceptions and limitations in domestic legal systems and other instruments were adequate. It considered this to be the basis for understanding effective ways to implement exceptions and limitations in different legal systems. It believed that an approach based on exchange of best practices and mutual learning would stimulate substantive discussions. It further stated that in the absence of a mandate by the 2014 General Assembly, there was a need for further clarity on the expected outcome of these discussions.

Brazil spoke next in its national capacity and aligned itself with the statements produced by GRULAC, the Asian Group and the African Group. It considered the discussion on exceptions and limitations to copyright law to be a subject of utmost importance. It pointed out that for libraries, the activities that could be linked to copyright exceptions were preservation of copies, making orphan works, public library lending and so on.

Mexico aligned itself with GRULAC. It reiterated that its government attached importance to exceptions and limitations for libraries and archives that were aimed at facilitating copying, preservation, archiving and the dissemination of works, and, encouraging the spread of knowledge for the common good.

India intervened and pointed out that access to knowledge was lacking in many jurisdictions despite increasing trends of digitization of information. In this context, libraries and archives act as balancing forces for increased access and it was important to strengthen this balance between ownership and access. Citing Crews' study, India argued that the diverse approaches in national laws, including that of absence of limitations and exceptions in many jurisdictions, necessitated work on an international instrument for limitations and exceptions. It stated that the work of the African Group, Brazil, Ecuador and Uruguay to get more countries aligned to a document on the eleven issues for an equitable balance relating to limitations and exceptions needed to be built upon for consensus among members. The best way forward would be to draft a legal instrument, as exchange of practices did not bring the necessary urgency to the subject.

Iran aligned itself with statements made by the Asia Pacific Group and the African Group. It stated that the rights to science, library and culture were basic human rights. It believed that limitations and exceptions played a key role in creating a balance of interests in the international copyright system and empowered creativity by increasing educational opportunities and promoting access to cultural works and inclusion. It further argued that since the existing international copyright system did not address technological developments, it needed rectification. It cited the UNHRC Special Rapporteur's recommendation to the WIPO to set a core list of minimum required exceptions and limitations. Iran strongly supported work towards a legally binding international instrument for limitations and exceptions for libraries and archives, and research and educational institutions. It sought to start text-based negotiations in this regard and suggested that the proposal by the African Group, India, Brazil and Ecuador would be a good base for preparing a consolidated text.

Indonesia agreed with the statement made by the Asia Pacific Group and sought to move on to text based negotiations. It highlighted the importance of developing a legal framework to enable libraries and archives to reproduce content without the authorization of copyright holders for the purpose of education, research and inter-library loans.

The Russian Federation pointed out that it had already partially solved the problem in its domestic legislation. It sought to strike a balance between the interests of the author and that of the society.

Ecuador endorsed the statement made by GRULAC. It had a Bill in its domestic legislature to address this issue. It wanted to proceed to text-based negotiations.

South Africa aligned itself with GRULAC, the African Group and the Asia Pacific Group and emphasized the critical role of libraries archives and educational institutions in the dissemination and preservation of their cultural heritage. It also called for progress on text based work and to send a clear message to the General Assembly and the international community that the issue was important.

The US believed in the development of non-binding principles and objectives relating to national copyright exceptions and limitations for libraries, archives, and educational institutions. It noted that statements of such principles and objectives introduced by them in earlier sessions of the SCCR had been received positively. The US further stated that it supported work through symposia or seminars to examine different approaches to national implementation of these principles. It also went on to state that libraries and archives, being central to knowledge systems, provided valuable insights to people. She referred to a document formulated by the United States which discussed the importance of enabling libraries to function properly, along with the goals the US attempted to achieve. The approach would be for the Member States to tailor the exceptions to suit their needs within the constraints of international obligations to make libraries and archives available to the world.

Pakistan agreed with the statements made by the Asia Pacific Group, the African Group and GRULAC. It was concerned with the lack of uniformity and occasional absence of exceptions and limitations for libraries, archives and educational and research institutions in some countries, which restricted a large number of people from accessing information. Pakistan argued that reformation and harmonization of the current system was essential, and that mere incorporation into domestic laws was insufficient. There was a need to engage in text-based negotiations and work towards an appropriate international legal instrument.

Cameroon also aligned itself with the position of the African Group, GRULAC and the Asia Pacific Group. It emphasized the crucial role played by libraries and the importance of providing adequate exceptions and limitations for them. Cameroon said that it was also reviewing its own national legislation on the issue.

Armenia pointed out that it was drafting a new domestic law on the issue of limitations and exceptions for libraries and archives. It also emphasized the importance of minimum international standards for countries to adopt. Armenia wanted countries to implement these limitations in their national legislations and supported a legally binding instrument for limitations and exceptions.

Sudan supported the proposal put forward by the African Group, the Asian Group, Brazil Ecuador, Uruguay and India. Citing Crews' study, it stated that with advent of the digital age, all the memory and knowledge in the world could be easily converted into accessible formats and made available on databases for researchers and educational institutions. Therefore it was necessary for the SCCR to enable students and researchers to have access to this knowledge. The EU Directives passed in 2001 and 2012, and the work undertaken by the US and UNESCO were positive steps in this regard. It wanted to work towards an appropriate international instrument such as the Marrakesh Treaty.

Aligning with the African Group, Nigeria argued that since information sharing transcended national boundaries in the digital age, national solutions would be ineffective. There was a need to balance the interests of the creators and the larger public interest. It welcomed the report by Crews and the document prepared by the Chair to stimulate discussion along with the text-based proposal of the African Group, Brazil, Ecuador, India and Uruguay.

Japan supported Group B's statements and said that libraries and archives played a pivotal role in collecting and preserving materials and providing them to the public. It cited Crews' study to argue that international differences in conditions for application of limitations and exceptions would cause problems with the increasing digitizing of materials. Principles evolved from these discussions should serve as guidelines for establishing the legal framework for libraries and archives in each Member State. Japan considered the objectives and principles document released by the US to be a good basis for discussion.

Malawi wanted discussions to be guided by Crews' report.

Uruguay supported the statements made by GRULAC, the African Group and the Asia Pacific Group. It wanted to sponsor Document SCCR 29/4 submitted by Brazil, Ecuador, India and the African Group. It believed that libraries and archives were important for culture, leisure activities and welfare of the needy sections of society. Since archivists and librarians had approached the SCCR in every session to ask for an international solution, Uruguay urged the SCCR to continue with the discussion without prejudging the result.

Malaysia considered Crews' study to be useful for deliberation. It supported limitations and exceptions that contributed to the attainment of education for all. It wanted to appoint a facilitator or a friend of the Chair to further discussion and create concrete solutions.

Algeria valued the study submitted by Crews and recognized that copyright exceptions and limitations for libraries and archives would enable the spread of cultural and scientific awareness. Algeria aligned itself with the statement made by the African group.

Congo believed that libraries and archival services had inherent rights to share knowledge and education. This would enrich cultural diversity and break the digital divide between the Global North and South. It argued that Crews' study demonstrated that domestic solutions would not solve this problem and an international instrument was necessary.

Zambia supported the statement made by the African Group. It remarked that libraries and archives played an essential role in disseminating information and provided a pool of historical knowledge which served as a base for our future. It believed that any solution should balance the interests of rights holders and that of the public.

Nepal aligned itself with the Asia Pacific Group. It stated that libraries and archives played an important role in education as they were often the only sources of materials for students and academics in countries like Nepal. An international legal instrument on exceptions and limitations would balance different interests. Nepal supported appointing a facilitator or a friend of the Chair to develop a working text on limitations and exceptions.

Australia supported the proposal given by the United States as a sound basis for developing principles and objectives of the suggested clusters. It wanted simple and immediate solutions within the existing legal framework to close the gap between ideals and the reality.

The US, agreeing with Australia, showed interest in developing principles and objectives in terms of how different countries arrived at the principles and objectives. It also agreed to filling gaps between these and find consensus on the approach.

Day 4: July 2, 2015

Approach Forward

The Chair asked the Secretariat to provide an overview of the situation on this topic. The Secretariat stated that there were two studies on the issue - the first compiled by Kenneth Crews which had updated previous studies conducted in 2008 and 2014 and another study on limitations and exceptions for museums, SCCR/30/2.

There was also a working document adopted in 2014, SCCR/26/2, that compiled the reference to eleven topics and identified them as priority topics on this issue. Two proposals had also been adopted - one which refers to objectives and principles presented by USA (SCCR/26/8) and another by the African Group, Brazil, Ecuador, India and Uruguay (SCCR/29/4). The SCCR pointed out that a chart/non-paper had been submitted by the Chair in December 2014 and that delegations were to consider this non-paper in this session.

The Chair clarified that the purpose of preparing the chart/non-paper was not to push the discussion in a particular way or to side with an issue. It was to help guide discussion in an organized fashion while remaining respectful of all views. The Chair opened the floor for comments on the same.

Speaking first, Australia was willing to work on the Chair's proposal. It believed that this should be done in a three-step process. Firstly, principles and objects as proposed by the US had to be clarified; secondly, reasons had to be identified for why those principles and objectives were not already in effect; and finally, solutions for implementing the principles and objectives had to be discussed. It believed that simple and immediate solutions should be preferred to complex solutions which would take longer to come into effect.

Brazil stated that it was ready to contribute to discussions on the non-paper drafted by the Chair as a framework for the discussion. It argued that following the framework proposed by the Chair would not exclude discussion on principles and objectives. It suggested that the discussion on principles and objectives be subsumed within the framework proposed by the Chair.

Japan questioned whether the list of issues compiled or the way discussions were structured would have had an impact on the direction taken by the SCCR.

The Chair answered that the list was not fixed and that the flexible structure of the framework allowed for discussion on other related issues also. The Chair also asked if there was consensus on moving forward on the structure outlined by him or if there were suggestions on improvements.

The US agreed with the Australian delegate on the importance of developing principles and objectives. The Chair pointed out that this discussion could be included as part of the approach within the chart/non-paper prepared by him.

The EU questioned the difference between the chart and Document SCCR 26/3. It also asked how the discussion on each issue was envisaged and whether it would be limited to a principled discussion.

The Chair responded to the first question by stating that while Document SCCR 26/3 was the source, it would be better to use the chart as a tool than to refer to a document even though it had been approved by the SCCR. To the second question, the Chair stated that while he could not predict the way in which the discussion would unfold, he foresaw a discussion which would first test whether the topic had consensus with regard to its inclusion in the topic and then try to set a principle that would be agreed upon. If solutions existed, an exchange of views based on the Australian approach of contrasting the principle with the findings in the Crews' study would take place, followed by methods of resolving the issue through exchange of best practices or an international instrument.

Day 4: July 2, 2015

Day 4 commenced from the previous day's discussion on the approach forward on libraries and archives.

Brazil spoke on behalf of GRULAC and supported the approach recommended by the Chair in the non-paper submitted to the SCCR. It believed that this allowed for flexibilities. It invited comments for improvements.

This was repeated by Pakistan on behalf of the Asia Pacific Group and Nigeria on behalf of the African Group, Iran, Malaysia, Senegal, Mexico, Tanzania, Guatemala and Zimbabwe.

On behalf of the Asia Pacific group, Pakistan appreciated the proposal on the non-paper by the Chair.

Japan, speaking for Group B, required further clarifications on the approach proposed by the non-paper and reiterated its support to a discussion based on principles and objectives as proposed by the US. The Chair expressed his willingness to offer clarifications on questions from any of the delegations.

Nigeria supported the proposal on behalf of the Africa Group.

Iran supported Pakistan and the interventions made by Brazil and Nigeria. It saw these discussions as beneficial for developing a legally binding instrument. Since discussion on substantive issues was being delayed because of procedural matters, Iran asked Member States who believed that their positions would be hindered by the non-paper to express their concerns and suggest changes in the non-paper.

Uruguay speaking on behalf of their group stated that it supported the Chair's proposal and regretted that the discussion on substantive issues was being delayed due to procedural issues which, it believed, were settled in the 27^th SCCR.

The EU welcomed the proposal but raised concerns about clarity on the expected outcome of the approach suggested by the Chair.

South Africa supported the non-paper as a basis to proceed on the discussion.

Brazil, speaking for GRULAC, believed that it had a mandate on an international legal instrument in whatever form and asked whether all Member States agreed with the approach suggested by the Chair.

The EU stated that it did not find a mandate as described by Brazil in the general assembly 2014 records. It believed that the issue of the mandate would be controversial and would lead to unproductive and repetitive discussions. It asked the Chair to clarify the situation with respect to the mandate.

The Chair stated that before changing the topic to the mandate, he wanted to get more views on the proposal.

Venezuela supported the structure laid out by the Chair. Venezuela expressed dissatisfaction at the fact that even though it was supportive towards the Broadcast Treaty negotiations, which was not a priority for them, the same courtesy was not extended to them when it came to issues that were important to developing countries such as limitations and exceptions for libraries and archives. It was unhappy at substantive discussions on the latter being delayed due to procedural quarrels. It argued that if this was an indication of the way forward, it would first want to discuss exceptions and limitations at the next SCCR so that developing countries did not have to waste their time. Venezuela pointed out that even developed countries needed solutions on the issue of limitations and exceptions. It agreed with Brazil's interpretation with regard to the mandate.

Nigeria supported the statements made by the African Group, the Asia Pacific Group and GRULAC. It stated that procedural issues should not cloud discussions over substantive issues and that the approach put forward by the Chair allowed for sufficient flexibility.

Switzerland supported the Chair's proposal.

Australia believed that discussing procedures and concerns from Member States was important to ensure clarity on the way forward.

Canada supported the statements made by Switzerland and Australia.

The US supported the Chair's proposal. While it wanted a discussion on principles and objectives, it believed that the approach suggested by the Chair would help Member States. The US did not presuppose an outcome.

The Chair welcomed this statement and assured that the principles and objectives document submitted by the US would also be used as a tool to provide clarity on issues.

Ecuador supported the chart prepared by the Chair and agreed to using that chart as a starting point to guide discussions which would include principles and objectives as proposed by the US

Tanzania, on behalf of the African Group, supported the tool prepared as a means to reach a common understanding from the point of view of the different statuses of the countries.

Japan, in its national capacity, supported the statements made by Switzerland, Canada, Australia and the US.

Guatemala also showed great interest in the working of this tool for the purpose of the discussion.

Singapore realigned itself with the Asia Pacific Group's position and supported the Chair's proposal which it felt would be helpful in guiding the substantive discussions.

Zimbabwe appreciated the proposal made by Nigeria and showed its support for a constructive engagement without prejudice.

The Chair suggested that statements by NGOs should be taken only at the stage of discussing substantive issues. The Chair also welcomed questions seeking clarifications on the intention behind the preparation of the chart. The Chair agreed to write an introduction to the chart stating that the intention was not to prejudge any outcome. He encouraged Member States to discuss the substantive issue of preservation if all concerns were adequately addressed by an introductory text.

China expressed support for the Chair's proposal.

The EU sought clarifications on whether the Chair would write an introductory text and whether he would want discussions to proceed simultaneously. After receiving affirmations on both questions, the EU asked for bilateral discussions with the Chair.

After the coffee break the Chair announced that he had written an introductory text to the chart which would be circulated and sought to start discussion on the substantive issue of preservation and invited comments on the same from experts.

Preservation

Non-Governmental Organizations

Speaking first, the International Federation of Libraries and Archives (IFLA) stated that preservation was one of the most critical, frequently exercised and widely approved activities of libraries and archives and that preservation standards varied according to the medium - whether paper, film or digital. It pointed out that preservation was required only to preserve and not to create additional copies. Libraries and archives needed to collaborate across borders to preserve cultural heritage which may exist in libraries of different countries. Hence it was important to take international action.

The International Federation of Reproduction Rights Organisations (IFRRO) stated that preservation included reproduction, digitization and other forms of electronic reproduction, for the sole purpose of preserving and archiving information. It noted that many Member States did not include exceptions for this in their domestic laws. IFRRO wanted such exceptions to conform to the Berne three-step test and not be used for commercial purposes. It argued that while works that were commercially available did not need preservation, works that were no longer commercially available required an exception so as to be preserved appropriately. It believed that libraries had an important role to play in preserving and providing access to knowledge and cultural heritage and appropriate licensing agreements needed to ensure that they can perform this role adequately.

The International Council on Archives (ICA) said that without archives, countries such as South Africa would lose their past and cultural roots. The Council argued that while preservation could be thought of as a purely national issue with the only possible solution being to encourage countries to introduce preservation standards in domestic legislations, this would ignore important international dimensions involved in the question. Materials such as diplomatic reports and reports of ambassadors sent to other countries were essential to the history of a country. Such cases required stable, harmonious legislations. Also, since preservation of modern materials involved the use of technology that was not available in all countries, preservation standards would ensure that electronic materials could be frequently migrated and copied could be stored anywhere in the world.

The Federation of International Journalists (FIJ) strongly supported its work being archived as long as parallel publication was avoided. FIJ stated that exceptions should be accompanied by fair remuneration to authors and performers since the world would be deprived of cultural works if authors in poorer countries could not make a living. Authors were in an equally vulnerable state to libraries in less wealthy countries due to contracts with publishing houses. Given the imbalance in power, the WIPO needed to address this with an international instrument.

The International Authors Forum (IAF) agreed with the technical comments made by IFFRO and FIJ and supported preservation and digitization. It pointed out that while authors around the world were vulnerable due to having low incomes, it still wanted their works to be preserved.

According to (SDM), while the publishing industry depended on copyright protection to innovate, some limitations and exceptions needed to be carefully crafted. It wanted these limitations and exceptions to comply with the Berne three-step test, taking into account the increased risk of misappropriation and misuse in the digital environment. It wanted to ensure that uses under this exception were limited to preservation and replacement and did not allow the creation of additional copies.

Civil Society Coalition (CSC) called for harmonized, broad and compulsory exceptions to the right of reproduction to allow libraries to fulfill their traditional functions and to provide access to knowledge and culture on non-commercial terms. It pointed out that the world wide web of the 1990s was not preserved and would be lost without immediate preservation thereby creating a memory hole for the 21^st century.

Knowledge Ecology International (KEI) supported preservation and wanted copyright and trade negotiators to sort out context-specific access related issues. It believed that preservation should be a minimum standard and that domestic laws must be harmonized in this regard. It also pointed out that preservation included exceptions to Technological Protection Measures, exceptions to related rights, etc. Citing Wikileaks as an example, KEI stated since knowledge about one country could reside in another, there was a need for an international treaty that harmonized minimum standards on preservation.

Union internationale des éditeurs (UIE) stated that though International Publishers Association (IPA) considered topics related to libraries and archives as unrelated to the agenda, their preservation was important nonetheless. It articulated the publishers' wish to have their publications as part of the nation's heritage. It envisioned for the libraries authorized to preserve these to be technically, financially and legally enabled to do so. UIE emphasized on the need for differentiating between copyrighted, unpublished and commercially available works and achieving a consensus between stakeholders. It mentioned the following reasons for collaboration between right holders and libraries - firstly, publish may publish works in different formats, or hold information in different databases; secondly, updated data can be preserved only with collaboration; and thirdly, agreement on the mode of providing digital files to preserve libraries was also essential.

The IPA wanted a substantive debate on preservation. It wanted distinctions drawn between unpublished works, commercially available works and works in the public domain as there were different interests and different levels of consensus amongst stakeholders for these categories. The IPA also pointed out that digital preservation of digital work required co-ordination between libraries and right-holders in understanding which copies had to be preserved, the format it had to be preserved in, and how the digital files should be provided to libraries.

The (SCR) stated that there was a need for a preservation exception in copyright law since fires and other natural disasters had often led to knowledge and cultural materials being lost. SCR considered digitization to be a reliable answer. It believed that preservation could not be done simply through licensing when exceptions for archivists were unavailable. It believed that an international treaty would also prove useful where collaborative cross-border digital preservation initiatives were taking shape.

The Transatlantic Consumer Dialogue (TACD) considered preservation of a common past as a public good. It stated that current international copyrights law made it nearly impossible for librarians and archivists to engage in cross-border operations because uncertainty and possible litigation costs prevented them from engaging in preservation. It went on to state that even consumers in developed countries wanted these exceptions and limitations so that libraries could engage in cross-border preservation initiatives.

The Society of American Archivists (SAA) cited Crews' study to state that national measures and exchange of national best practices were both inadequate and instead an international instrument on limitations and exceptions for libraries and archives was necessary. It said that archivists could not preserve knowledge and serve global users without consistent and predictable laws. It also stated that 45% of WIPO's Member States provided for no exceptions on preservation and those who did were so varied in their approaches that librarians and archivists needed an international instrument to do their job. Further, according to SAA, three steps were involved in preservation - copying, updating the copies, and making the copies available when the original copy becomes damaged, obsolete, or is lost. As preservationists, it said, it needed the right to reproduce copies, migrate them either digitally or otherwise, and make them available.

The International Society for Development of Intellectual Property (the Society) pointed out that protection of IP strengthened creativity and innovation and contributed to building of a strong knowledge economy provided that it was balanced with public interest. To be successful, it said, any solution sought by the SCCR should balance different interests. It was of the opinion that this could be done either through limitations and exceptions or exchange of best practices. The Society pointed out that practical solutions were easily achievable and more likely to produce results than long term international measures.

The Canadian Library Association (CLA) explained that preservation included reproduction in digital and physical forms for the purpose of preserving and archiving a copyrighted work. It did not believe this could be adequately done with simple licensing contracts. It also pointed out that format shifting was important to ensure works remained preserved where the original mediums became obsolete or too fragile. It ended with emphasizing the importance of cross-border initiatives toward preservation.

The German Library Association stated that digital long-term preservation necessitated technical instruments. It opined that storing archives on CDs was not enough as the CDs might become unusable after a decade. It argued that multiple copies in newer formats were required to adequately preserve works. It further stated that publishers often refused to license works for this purpose and this necessitated an international instrument that harmonized laws across countries.

The European Bureau of Library Information and Documentation Associations (EBLIDA) considered libraries' role in preserving a nation's history to be a public good. It pointed out that licenses expired according to terms of subscription. It also said that libraries could not obtain back-up files for preservation and could only access them from the producer's website which provided no guarantee of preservation. Further, it stated that even in the EU, several Member States had not put in place clear comprehensive policies to ensure preservation; and, that an international solution which provided for a minimum standard for preservation regardless of the format of publication was necessary.

Member States

Brazil spoke first and underlined the importance of preservation. It proposed using technology-neutral and format-neutral terms in an exception for preservations.

Nigeria, on behalf of the African Group, pointed out that there was an overwhelming consensus amongst NGOs on the need to have an international instrument for preservation. It felt that contracts and licensing agreements could not do the job. Crews' study was credible evidence to show the need for an international instrument.

The US pointed out that the objective of their document on principles and objectives was to enable libraries and archives to do their job. Limitations and exceptions would enable libraries and archives to preserve copyrighted works in a variety of media and formats, including migration of content from obsolete formats. Though the US appreciated Crews' study, it wished to understand why different Member States had decided differently on this issue, what works required preservation, and how preservation was affected by TPMs.

Algeria stated that exceptions in its domestic laws allowed libraries to preserve one copy of a copyrighted work. It believed that an international instrument was required to harmonize these exceptions throughout the world.

UK said that its copyright law was amended in June 2014, to enable libraries and archives to make copies of copyrighted work in any format to preserve cultural heritage. It considered the current international framework and the three-step test adequate to provide for this exception.

Chile stated that its domestic law authorized libraries and archives to reproduce works that were no longer commercially available. A maximum of twelve copies could be made for non-profit uses.

Mexico also mentioned that exceptions and limitations for libraries and archives were present in its national laws. The exceptions allowed creation of copies for preservation, especially when the original had been taken out of the catalogue, had disappeared or was in a fragile state.

Ecuador said that some of the issues it wanted to consider and discuss were the subject, the number of reproductions, the format of reproductions and the circumstances in which these reproductions could be made.

India stated its Public Internet Access Programme and Information for All depended on preservation. It considered preservation important for economic development and believed it to be the foundation for intergenerational equity. Therefore, the exceptions should be wide and public interest should be the overriding factor.

Belgium stated that as in their domestic legislation, a limit on the number of copies allowed should be put in place if the purpose is preservation. Also, all exceptions should conform to the Berne three-step test. Belgium's national law did not consider works that were exhausted or out of commerce.

The Chair stated that he had prepared the introductory paragraph to the chart which mentioned that it was merely a tool to guide discussion and not a negotiating paper or a basis for the drafting exercise. The introduction encouraged evidence-based discussion without prejudging outcomes. He opened the floor for clarifications and discussions on the same.

EU thanked the Chair and stated that it wanted an agreement on what the expected outcome was before engaging in discussion. It expressed reluctance on engaging in any normative work. It stressed that there was no consensus on an international instrument. It preferred an exchange of best practices. The EU said that while a discussion on objectives and principles as proposed by the US was important, a more important exercise would be to exchange best practices and understand the rationale behind these best practices. It called for a reworking of the study by Kenneth Crews which made data more easily accessible and regrouped discussions of national studies by topic. It suggested that the WIPO Lex search database and search engine could provide for national studies even on library exceptions.

The Secretariat stated that work on the last issue was in progress and suggested that it be discussed in detail in the next session. The Secretariat also stated that it intended to organize regional seminars to provide technical assistance in this area for those who did not have exceptions yet or wanted to upgrade their laws.

Pakistan argued that the discussion was meant to include the possibility of all outcomes and not confined to any conditionality in light of the statement by EU. The Chair confirmed the same.

Nigeria, on behalf of the African Group, stated that while it was not prejudging an outcome from the discussions, it hoped that the exchange of best practices would seen as means to enhance the discussion and not as en end in itself.

Representing the Asia Pacific Group, Pakistan stated that it also did not want to prejudge outcomes but wanted to ensure that all the factual experiences were used and analyzed in a result-oriented manner. South Africa and Nigeria aligned themselves with Pakistan's position.

EU clarified that its acceptance of the chart as a tool did not mean that any outcome was acceptable or possible.

Iran aligned itself with Pakistan and South Africa.

The session on libraries and archives ended with no agreement on an international instrument.

Day 1: July 3, 2015

Agenda item 8 - Limitations and Exceptions for teaching, research, educational institutions and persons with other disabilities

Nigeria spoke first and said that the Committee should advance work on exceptions and limitations for educational and research institutions and persons with other disabilities. It reiterated that it wanted to discuss all three issues in the future sessions of SCCR.

The Central European and Baltic states group expressed interest in sharing experiences and practices regarding copyright limitations and exceptions for educational and research institutions and for persons with other disabilities.

On behalf of the GRULAC countries, Brazil welcomed the discussion on limitations and exceptions for educational and research institutions and for persons with other disabilities. It stated that there was no study on persons with other disabilities
and their relationship with limitations and exceptions and their right to culture.

The EU welcomed discussions on how copyright could support educational and research institutions and people with other disabilities in the analogue world. It stated that these exceptions could be adopted since the existing international copyright framework had adequate legal space and flexibility. It suggested that the Committee work on adopting exceptions and limitations such that national and international frameworks concur.

China, discussing its legal provisions regarding topics on the agenda, welcomed equal education and fair regulations.

Georgia, speaking on the importance of balancing the interests of copyright holders and the society, suggested that a strong and sustainable copyright system could be established through limitation and exceptions.

The US spoke about the need for exceptions and limitations for educational purposes to be consistent with international obligations. It considered collaborations with copyright industries to be essential to its education system. Firstly, it emphasized encouraging members to adopt exceptions and limitations which allowed using copyrighted works for educational purposes while ensuring a balance between rights of authors and public interest. Secondly, it encouraged the promotion of access to educational content through innovative licensing models. Thirdly, it wanted to adopt limitations and exceptions through technological learning. Finally, it included general ideals like monetary grants for non-profit education, ensuring access of copyrighted works. Owing to technological advancements and changes in the educational environment, the US welcomed the plans of WIPO to update the study on other disabilities for discussions in the Committee.

Mexico believed that education and scientific research could be encouraged by facilitating access to protected works. It also discussed executive strategies to allow the promotion of enterprises and the development of education to encourage technological innovation.

Trinidad and Tobago supported Brazil's views. It opined that the issues of limitations and exceptions for libraries and archives, and educational and research institutes are in tandem with each other.

Supporting this view, Russia stated that these issues did not have to be divided, and a single common approach could be used to resolve this conflict. It opined that it was a way of respecting the interests of authors and copyright holders, and also providing access for promoting development of science, culture and providing opportunities to citizens.

Algeria stated that the Berne Convention had established the stages for the exceptions and limitations for research and education. It argued that the exceptions and limitations should not only fulfill the needs of developing countries but other stakeholders as well. Algeria supported exceptions for research and teaching institutes.

South Africa supported a study on the challenges faced by education and research institutions and people with other disabilities, especially in the digital environment.

Sudan supported the statements of the African Group, Asia Pacific Group and GRULAC. It spoke on the need to make balanced efforts on all the issues on the Agenda to reach a consensus. In its opinion, the Marrakesh Treaty indicated that the study on exceptions and limitations and people with disabilities was required. It supported updating the study using previous studies of the International Bureau. In conclusion, it stated that libraries and archives should benefit from limitations and exceptions and should be accessible to all.

Pakistan supported the statements issued by the Asia Pacific Group, the African Group and GRULAC. It wanted time to be allocated for all three issues in future SCCR sessions. It also supported the study proposal of the African Group.

Ecuador also supported the statement of GRULAC and wished to dedicate more time to these issues in the session. It believed that all these elements, on better understanding, could help the proceedings of the committee.

Nigeria supported the intervention made by the Africa Group and the statements of Pakistan and Brazil. It considered exceptions and limitations for educational and teaching institutions, and persons with other disabilities to be important for advancement of knowledge. It highlighted the need for adjusting the international copyright system to facilitate access and usage of digital content by all.

Guatemala aligned itself with Brazil's statement. It attached importance to limitations and exceptions since it considered access to be a human right. It wanted a legal instrument covering limitations and exceptions in the digital area which considering the three-step test.

The Secretariat recalled that at SCCR 26, it had been asked to identify whether resources could be found to update the existing studies on exceptions and limitations for educational and research institutions. There were five regional studies conducted about five years ago on this topic. It reported to the Committee that it would identify the resources and start work the same year. It also sought funds in the work plan to work on it in the next bi-annum, assuming it was approved by the Member States. The Secretariat clarified that it had also been asked to look if there were resources to conduct a scoping study on the intersection of persons with other disabilities and the copyright system to understand the areas which needed to be addressed. There was an event on hearing impairment and captioning and how that intersected with this topic. There had also been a discussion on conducting additional studies and whether there would be resources for the same.

Sudan, speaking on persons with disabilities, pointed out that the same organizations which had previously tackled the subject should conduct the study since these organizations had more experience on limitations and exceptions. Sudan suggested holding seminars for direct interaction with them.

Nigeria, on behalf of the African Group, sought clarifications on whether this pertained strictly to the topics that the Secretariat had outlined - marking and scoping for persons with impaired hearing. It also wanted to know whether the captioning was for exceptions and limitations for educational and research institutions.

South Africa supported the intervention made by Nigeria.

Brazil sought further information from the Secretariat on whether it would be more efficient to have a compilation and a consolidation of the studies in one global study on the situation of exceptions and limitations under agenda item 8 than having a series of regional studies.

Japan, with regard to artists' resale rights, said that the related provision existed in the Berne Convention. However, the flexibility provided by the Berne Convention meant that the protection of resale right was left to the declaration of national laws. Japan wanted the Committee to stick with the agenda and did not support the proposal of including artists' resale rights as a new agenda item of the committee.

The US fully supported enriching the agenda, and encouraged all delegates to engage in discussions to develop it.

Chair's Summary

The Chair's draft summary was given to the regional coordinators for their inputs.. Members were free to present and reflect upon the document. But since it was the Chair's summary, he refused to enter into approval procedure for this. He suggested a set of recommendations for the Committee to discuss. The Chair advised the committee to discuss their recommendations and not the summary.

Iran raised an issue on the legal status of the summary. It pointed out that the summary had not been discussed, negotiated and approved by the Committee which went against WIPO practice.

The EU reserved the right to make comments on points of substance. These related to paragraphs that mentioned what the Committee decided, or those that mentioned individual positions taken by groups of states. It agreed with everything that was said by Japan on behalf of Group B. It also favoured the general point raised by Iran in relation to the paper carrying a disclaimer on the fact that it did not commit to the Committee in any way.

Romania, on behalf of the CEBS, expressed support for the remarks made by the Group B coordinator.

Nigeria commented on the Chair's summary as a tool for providing balance on all the concerns raised by the different regional groups. It added that even the African Group's concerns had not been reflected in the summary. However, it reiterated its confidence in the summary for the purpose of moving forward.

The Chair stated that there were fifty pages which did not appear in summary shape but did on the record shape. However a record containing different views and specific positions had been made. The Chair's view was reflected here and because it was not approved or subjected to approval by the Committee, it did not take decision on that. The Chair sought to avoid starting an exercise on common drafting of each paragraph. It invited Members to consider the approach adopted by Nigeria and some delegates from the CEBS countries without taking that as a decision of the Committee. The Chair urged members to move to the next stage of recommendations. It invited oppositions from those against this view.

The Chair distributed a separate paper to all the delegates, and a discussion was commenced to arrive at a common view for the three items on the agenda. The Chair highlighted that regarding the third topic, which was related to exceptions and limitations for educational and research institutions and persons with other disabilities, there was a mandate to deliver the Committee's recommendation to the 2015 General Assembly.

Nigeria, on behalf of the African Group, asked the Chair to have a disclaimer in the summary and set the desired precedent. It was concerned that it could lead to the Committee being extended.

Pakistan said that the Asia-Pacific Group supported text-based negotiation on agreed topics and discussions on those requiring clarification. Pakistan considered it premature to talk about the exact timing of a Diplomatic Conference which could be decided in due course after evaluating progress.

Nigeria recommended that the 2015 WIPO General Assembly direct the Committee to expedite its work towards an international legal instrument in whatever form on the topic of limitations and exceptions for libraries and archives. For agenda item 8, it recommended repetition of the same language.

Brazil, on behalf of the GRULAC group, supported the statement made by Nigeria. It supported working towards an international legal instrument in whatever form as an objective for the future work on proposed recommendation on limitations and exceptions for libraries and archives.

Pakistan, on behalf of a majority of the Asia-Pacific Group, showed support to the proposal made by Nigeria.

Iran supported the statement made by Pakistan on behalf of Asia. It pointed out that the text-based negotiations on the Treaty had not been conducted. There was also no common understanding on key issues and Articles. Iran recommended that the Committee continue its work on text-based negotiations, finding solutions for key issues and achieving consensus on key provisions in the draft Treaty. Depending on the progress of the text-based negotiations, the Committee could decide on the date for convening a Diplomatic Conference. It supported the statement made by Nigeria and Brazil, and seconded by Pakistan regarding items 7 and 8.

India supported the views expressed by Nigeria, Brazil, Pakistan and Iran on both agenda items dealing with limitations and exceptions. It suggested that the mandate of the General Assembly should reflect in the language, which was presently not the case. It sought to know the basis on which it had been decided that the Diplomatic Conference would be held in 2017 since there was no consensus of opinions yet. It suggested that the reference be left open, depending upon the two future SCCR meetings.

The Chair clarified that a recommendation without consensus could not be accepted. On observing that no Delegate requested the floor, he welcomed concluding remarks and called for closing the session.

The EU expressed disappointment on the failure to formulate a roadmap on the Treaty in 2017 and reaching a conclusion on the exception items.

Nigeria, in line with the comment made by South Africa, recommended that more effort could be made towards finalizing a language that achieves consensus.

The Chair, showing interest in the suggestion of Nigeria, expressed the desire to see whether the other delegates were keen on receiving suggestions and welcomed different views regarding this.

South Africa requested the floor and supported the statement made by Nigeria. It felt that the Committee had something on the paper and if the regional coordinators met, a consensus could be achieved.

The Chair proceeded to listening to closing remarks. The meeting closed with closing remarks by delegates.

For more details visit https://cis-india.org/a2k/blogs/report-of-the-30th-session-of-the-wipo-sccr-by-the-centre-for-internet-society

Preventive Detention for Copyright Violation: Karnataka Amends the 'Goondas' Act

nehaa — 2014-08-13T12:46:51Z

Last week, the Government of Karnataka amended the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Gamblers Act, 1985 (“the Karnataka Goondas Act”). The Karnataka Goondas Act would now also apply to offences under the Indian Copyright Act, 1957 and the Information Technology Act, 2000. This article presents an overview on the various provisions of this law and discusses the potential impact of the amendment.

The blog post by Nehaa Chaudhari was first published on SpicyIP on August 13, 2014.

Goondas and Goondas Acts

Now used in ‘Indian English’ to mean a ‘hired thug or bully’, goonda/gunda seems to have Hindi/Urdu origins. Incidentally, thug itself has Hindi origins, with its meaning encompassing a range of criminals from robbers to murderers to gangs of criminals, or anti-social elements.

In 1923, the Goondas Act (India’s first) was enacted in Bengal. As per the Act, a goonda residing within, habitually frequenting or visiting Culcutta either by herself/himself or as part of a gang, committing/has committed/assisting in the commission of/is about to commit a non-bailable offence against person or property, or the offence of criminal intimidation or causing breach of peace was liable for action under this legislation. Similar laws were soon enacted across the country, including the Central Provinces and Berar Goondas Act, 1946 of Madhya Pradesh, (later struck down as unconstitutional in State of Madhya Pradesh v. Baldeo Prasad), the Uttar Pradesh Control of Goondas Act, 1970 (see: an illustrative decision); the Rajasthan Control of Goondas Act, 1975 (see: an illustrative decision); The Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum-Grabbers and Video Pirates Act, 1982 (legislation prior to the 2004 amendment available here), and the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum-Grabbers Act, 1985, which was amended a few weeks ago.

While these legislations are broadly similar in their object – that of curtailing the criminal activities of ‘goondas’ with provisions for removal as well as preventive detention, there is a variation in scope of the legislation. Karnataka and Tamil Nadu having extended the application of their respective Goondas Acts to a larger number of activities, including video piracy – which is the focus of this post.

The Karnataka Goondas Act: What Remains and What has Changed

Scope and Definition
Enacted in 1985 to curb activities of “anti-social” elements, which have frequently disturbed the “even tempo of life” especially in “urban areas”, the Karnataka Goondas Act extended to ‘bootleggers, drug offenders, gamblers, goondas, immoral traffic offenders and slum grabbers’. Amongst others, the 2014 amendment, which comes into effect “at once”, extends the scope of this legislation to “video or audio pirates” and “digital offenders”.

As per the new amendment, Section 2(iv) of the Act first refers to a “digital offender” as ‘when he is engaged, or is making preparations for engaging, in any of his activities as a digital offender, which affect adversely or are likely to affect adversely the maintenance of public order. An Explanation to Section 2 under Clause (f) specifies that a “digital offender” is any person who knowingly or deliberately violates for commercial purposes any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or for any other person or commits any of the offences specified under section 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Information Technology Act, 2000.

These mentioned sections (67-75 of the IT Act), refer to a variety of measures which penalize refusal to decrypt information, publication of obscene information, access or attempts to access a ‘protected’ computer or network, misrepresentation, and breach of confidentiality and privacy, as well as prescription of penalties for some offences. (See more here)

The requirement that the action be committed for a “commercial purpose” has been eliminated in those instances where the offence is a violation of any of the listed sections of the Information Technology Act, 2000.

A “video or audio pirate” as defined under amended Section 2(xiii) is when he is engaged or is making preparations for engaging in any of his activities as a video or audio pirate habitually for commercial gain, which affect adversely, or are likely to affect adversely the maintenance of public order. The Explanation to Section 2 under amended Clause (o) states that a “video or audio pirate” means a person who commits or attempts to commit or abets the commission of offences of infringement of copyright habitually for commercial gain, in relation to a cinematograph film or a record embodying any part of the soundtrack associated with the film, punishable under the Copyright Act, 1957.

The Explanation to amended Section 2 lays down the conditions in which public order shall be deemed to have been affected adversely or shall be deemed likely to be affected adversely, viz. that if any of the activities of any of the persons referred to in this clause directly or indirectly, is causing or is calculated to cause any harm, danger or alarm, or a feeling of insecurity, among the general public or any section thereof or grave or widespread danger to life or public health.

Preventive Detention Orders
The amendment now means the State Government accordingly has the power to detain audio and video pirates and digital offenders, to prevent them from acting in a manner “prejudicial” to public order. In the first instance, such an order may not be for more than three months, it may be extended to a period of twelve months (Section 13), three months at a time, passed for the commission or the suspicion of commission of various offences, including copyright infringement, which under the Copyright Act, 1957 can only be determined by a court of law and is subject to subsequent appeals.

The 2014 amendment also modifies Section 17, by virtue of which no order of detention can be made under the National Security Act, 1980 against any of the persons named under the Karnataka Goondas Act, including audio or video pirates or digital offenders.

Section 8 requires grounds of detention to be disclosed to the detainees within five days of their detention, but not when it might not be in the public interest to do so.

Anomalies
This recent amendment to the Karnataka Goondas Act has resulted in anomalies. There are probably more; but two come to mind straight away.

First- preventive detention under the Karnataka Goondas Act means that the person arrested need not be produced before a magistrate immediately- there is a significantly long review process and detention may continue for a period of one year. This is for offences under the Information Technology Act, 2000, under which persons arrested have to be produced before a magistrate. This is also for offences under the Copyright Act, 1957, under which a person may be arrested only when found guilty of an offence by the court, whereas the Karnataka Goondas Act allows arrest on mere suspicion. Further, persons detained under this legislation cannot secure bail.

Second- the amendments to the Karnataka Goondas Act negate the exceptions laid out under the Copyright Act, 1957. While a reading of the Karnataka Goondas Act suggests that copyright infringement for commercial purposes falls under the purview of the legislation (and therefore non -commercial uses are excluded), however, under its provisions, persons may be detained (preventively) on mere suspicion as well. Therefore, even if a person were to be performing an activity permitted under the Copyright Act, 1957 (for instance, converting a coyrighted work into a machine readable format for the benefit of persons with disabilities), this person could be preventively detained on the suspicion of engaging in this activity for commercial purposes.

Constitutional Validity

Legislative Competence
The legislative competence of the Karnataka Government in amending the Karnataka Goondas Act to apply to audio and video pirates as well as to digital offenders is moot. Prima facie, these amendments seem to be unconstitutional.

Article 246 read with List I (Union List) of the Seventh Schedule of the Constitution of India specifies those subjects on which the Centre has the authority to make laws. Offences related to and committed by “video or audio pirates” or “digital offenders” as explained under the Karnataka Goondas Act are subjects on which the Centre has the authority to make laws, by virtue of the provisions relating to posts and telegraphs; telephones, wireless, broadcasting and other like forms of communication (Entry 31 of List I) and patents, inventions and designs; copyright; trade-marks and merchandise marks and merchandise marks (Entry 49 of List I).

Article 246 read with List II (State List) of the Seventh Schedule of the Constitution of India specifies those subjects on which the States have the authority to make laws. Seemingly, the Government of Karnataka may have chosen to make laws relating to “video or audio pirates” and “digital offenders” Entry I of List II, i.e., public order. It is my submission, however, that these offences would not fall under an understanding of “public order” and this amendment would still remain unconstitutional.

Freedom of Speech
Gautam Bhatia’s article in the Outlook (with a slightly modified version on his blog) make out the case against the recent amendments to the Karnataka Goondas Act violating Article 19(1)(a) of the Constitution of India. Bhatia argues that preventive detention under this legislation would be “prior restraint”, where government action prevents expression before it can take place, which is unconstitutional in most cases. He also argues that in order for free speech to be restricted on the grounds of “public order” under Article 19(2) of the Constitution of India, the State is required to meet a high threshold, which the Karnataka Goondas Act does not meet.

Closing Comments

The idea of introducing provisions to deal with online piracy and other ‘digital offences’ under the Goondas Act is not a new one. Mridula Chari writes that Tamil Nadu introduced such amendments to its Goondas Act in 2004 and Maharashtra in 2009, with Andhra Pradesh toying with the idea in 2010. She also writes that the Bengali and Punjabi music industries are making demands of their respective governments to introduce their own versions of the Goondas Acts and insert similar provisions. The Economic Times report on these recent amendments to the Karnataka Goondas Act also seems to suggest that these changes have been introduced for the protection of business interests. In contrast, in a detailed report, the Bangalore Mirror provides various illustrations of seemingly innocuous actions which may attract a draconian legislation, ranging from forwarding a song to a friend on WhatsApp to posting comments on social media sites.

The prospect of the protection of business interests with draconian legislations which are prima facie unconstitutional, aside from being ridiculous is deeply concerning. Widening the scope of these legislations to areas on which they have no constitutional authority to legislate, and introducing provisions with grave ramifications on fundamental rights, states in their continued and extended use of the Goondas Act are engaging in callous ill thought out actions with a deep disregard for their implications.

Nehaa is a Nalsar Law graduate. She works on intellectual property/openness law and policy at the Centre for Internet and Society, New Delhi. [Note: Due to the examination of definitions in the Act, this post is considerably longer than our standard post. Though the whole post is recommended, readers in a hurry could skip directly to headings titled "Anomalies", "Constitutional Validity" and "Closing comments" for the juicy bits.]

For more details visit https://cis-india.org/a2k/blogs/spicy-ip-nehaa-chaudhari-august-13-2014-preventive-detention-for-copyright-violation

Pervasive Technologies: Working Document Series – Updated Research Methodology – Applying the Actor Network Theory to Competition Law and Standard Essential Patent Litigation in India

nehaa — 2015-10-04T04:20:13Z

This document lays out the updated research methodology for the paper on competition law issues around standard essential patent litigation in India.

Read the earlier posts:

In New Delhi, as in Fascist Milan or Nazi Berlin, the individual is lost; the scale is not human but super human; not national, but super-national: it is, in a word, Imperial.[1]

Twenty plus years later, written after he was awe-struck by the grandeur of the Rashtrapati Bhawan in New Delhi, Dalrymple’s delightful choice of words on the similarities between Lutyen’s Delhi and Speer’s Nuremberg[2] rather aptly describe today’s globalized narrative of intellectual property (“IP”) rights determination and ownership. The process of determination of standards applied in mobile devices, claims of IP ownership in these standards and the subsequent enforcement (globally) of these IP claims are all instances of this narrative.

The increasingly global nature of both – innovation and intellectual property has been well documented by researchers over the years and needs no further exploration in this article. This article will seek to examine how this narrative influences (either overtly or covertly) the application of competition law to the regulation of standard essential patents (SEPs) in India. More specifically, this article seeks to study the role of various human and non-human actors involved were competition law to be considered as a potential solution to the matter of SEP litigation in India.

This article examines four research questions. First, how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement? Second, what are the important competition law issues in SEP litigation in the United States of America (“USA”) and the European Union (“EU”), and how have regulators (the Federal Trade Commission (“FTC”) and the European Commission (“EC”) respectively) and courts in these jurisdictions addressed these issues? Third, what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions? Fourth, could solutions and methodology from the FTC and the EC be applied to SEP competition law matters in India?

In this effort, this article will employ Bruno Latour’s Actor-Network Theory[3] (“ANT”) as the primary research methodology, supplemented where needed by others including comparative research and case studies. A detailed approach into discussing the (above) research questions has been discussed below.

Question one - how does the globalized narrative of intellectual property influence the determination of standards around mobile devices, their IP protection, licensing and enforcement?

This question primarily seeks to explain the determination SEPs on standards through International Standard Setting Organizations (“SSOs”) and the subsequent obligation on members of the SSOs to licence these SEPs on a Fair, Reasonable and Non Discriminatory (“FRAND”) basis.

Applying the ANT, this question will identify both human and non-human actors and that play a role internationally, in the determination of SEPs and their licensing. Illustratively, these actors include the SSOs, multinational corporations that are members of the SSOs, the FRAND licences and the contracts/terms of reference between the SSOs and their member corporations. In order to address this question, the author will refer to academic writing and other literature explaining the role of various actors and the international nature of the standard setting process. Networks that these actors share with each other and the possible influences to the determination of international standards will be studied. This question will explore the international IP environment, and the power of various actors that have an influence on IP norm setting, and attempt to locate the power of these various actors in their network setting.

Question two - what are the important competition law issues in SEP litigation in the USA and the EU, and how have regulators (the FTC and the EC respectively) and courts in these jurisdictions addressed these issues?

This question will study the competition law issues arising from the international determination of standards and the cross-border assertion and enforcement of intellectual property rights discussed in the previous question. This question will also study how (first, whether) courts and regulators have attempted to address some of the competition law issues.

Also applying the ANT, this question will identify various actors involved in competition law litigation around SEPs before the FTC, EC and the courts in the USA and the EU. Illustratively, these include the parties to the litigation, the regulator (whether the FTC or the EC), the court and the legal principles employed. Further applying the ANT, this question will also study how the various actors relate to one another, as a result of their connections within this network, i.e., the litigation, and other connections in other networks (for instance, the position of the parties in certain markets).

Under this research question, select a case study method will be employed to select cases from each jurisdiction. The most important cases pertaining to competition law questions will be studied. These are yet to be identified.

Question three - what are the critical issues in SEP litigation and competition law in India and how do they compare with similar questions in other jurisdictions?

This research question will seek to map the global context around SEP litigation (discussed above) to specific cases in India. In doing so, the author will study the two SEP disputes in India with competition law implications – the Ericsson and Micromax dispute and the Ericsson and Intex dispute; based on information available in the public domain. While there are other pending disputes around SEPs in India, they do not involve the Competition Commission of India (India’s market regulator), and hence are outside the scope of this article. Through a study of these cases, questions of competition law will be identified. Such questions may be either those as a result of the direct application of the Competition Act, 2000 or certain actions taken by the courts with competition law implications (for instance, granting ex-parte interim injunctions).

Having identified competition law issues in SEP litigation in India, the author will then employ the comparative research methodology to trace similar issues in international SEP litigation, discussed under the previous research question. What the author is most interested in locating is the position of the actors in domestic as well as international SEP litigation. Specifically, it is submitted that characters in the domestic litigation also trace back to the context of global IP norm setting; some of them more directly than others. For instance, multinational corporations are directly involved in IP norm setting and are a party to domestic disputes. Further, domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actors. This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation.

Question four- what are the challenges for competition regulation of SEPs in India; do principles and methodology from the FTC/ EU and courts present solutions to these challenges?

In this question, the author deliberates the challenge of competition regulation for SEPs in India and whether the approach of international regulators and courts could serve as a roadmap to address these issues.

In answering this question, the author will trace India’s specific location in global competition. The tensions between differently situated actors and the networks that they form will be examined. Some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative ‘youth’ of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. This phase will also attempt to make a case for IP regulation within India’s existing culture of engaging with the public interest in intellectual property regulation.

Having examined global IP norm setting in SEPs, international and domestic issues around SEP litigation and the network of actors involved in these proceedings, in concluding this article, the author seeks to illustrate how actors and networks in the SEP-competition set-up derive power from each other; and how the location of an actor within a network is likely to influence law and regulation. Tracing this location will then in turn be useful in determining what solutions would best address the matter of competition regulation for SEPs in India.

[1]William Dalrymple, The City of Djinns – A Year in Delhi (rep. 2014, Penguin, India) at 83.

[2]Id at 82.

[3]Bruno Latour, Networks, Societies, Spheres: Reflections of an Actor – Network Theorist, International Journal of Communication 5 (2011), 796- 810, http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (accessed 31 August, 2015).

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-2013-updated-research-methodology-2013-applying-the-actor-network-theory-to-competition-law-and-standard-essential-patent-litigation-in-india

Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory

nehaa — 2015-09-05T04:56:03Z

This document is divided into two parts - the first part lays out a series of research questions, potentially seeking to apply actor-network theory as a research methodology. The second part seeks to map literature around the Actor-Network Theory ("ANT") as a research methodology.

Part 1: Research Questions

The aim of this exercise is to delineate the contours of the paper, and provide some insight into the demarcation of the various sections.

The overall context to this paper will be determined by a globalized form of intellectual property ownership, and the various instances in which this narrative finds a place (either overtly or covertly) in the regulation of standard essential patents in India. In our paper, the globalized form of IP ownership is probably most clearly indicated in the standard setting process, where participants are International Standard Setting Organizations determining, in a manner of speaking - the rules of the game - that is - licensing on Fair Reasonable and Non Discriminatory Basis. The other important player to our understanding of global ownership would be multilateral organizations such as Ericsson, involved in many of the disputes before the Delhi High Court and the Competition Commission of India ("CCI"). Perhaps international actors/actants would also be international legal principles as well as international regulators such as the FTC or the ECC themselves. This phase of the paper will also trace India's specific location in global competition. In doing so, not only will the market positions of some of the players be examined, but also some comparisons will be made to illustrate how the relationship of international jurisdictions (mainly the USA and the EU) with international multinational corporations that are a party to litigation differs from that of India. This phase of the chapter will most likely apply the doctrinal method of research, study academic texts as sources as well as study some decisions by international regulators and courts to understand the tools and sites available for regulation as well as the nature of the regulatory process itself.

The second phase of this chapter will seek to map the overall context to specific cases - that is, pending legal processes in India. This includes both, ongoing litigation on patent infringement at the Delhi High Court as well as ongoing disputes before the CCI as well. The characters in this litigation also trace back to the broader context; some of them more directly than others. The multinational corporations are directly involved in both contexts, whereas the domestic regulators may seek to draw inferences or apply commonly understood international legal principles, thus invoking more international actants.

This phase of the chapter will study three key litigations in India - Ericsson and Micromax, Ericsson and Intex, and a third that is yet to be defined. Legal traditions and institutions in India will be used to understand what legal possibilities are available for using competition regulation to regulate SEPs. This includes specifically the levers in competition law such as abuse of dominance as well as the nature of the competition regulator and the role that it identifies for itself. One might also consider the relative 'youth' of the competition regulator as a factor in laying down legal principles, the constraints it imposes on itself as well as a tension between the market regulator and the courts. Perhaps this might also be an actant, in the context of the actor network theory. This phase of the chapter will most likely apply the doctrinal method of research, study academic texts as sources as well as study legal instruments and judicial decisions as sources.

The third phase of this chapter will now ask the question of standard essential patent (SEP) regulation, located within this broader matrix of intellectual property ownership and fluidity of actants. The specific question to be asked will be what is the competition regulation challenge for SEPs in India? This phase will attempt to distill the uniqueness of India in the narrative of global IP ownership around SEP litigation. It will be observed that the nature of the players in international litigation as well as in India is rather different. This phase will also attempt to make a case for IP regulation within India's existing culture of engaging with the public interest in intellectual property regulation.

It is in this phase that one must also examine the usefulness of the actor-network theory as a research methodology to study SEP regulation in India. It must be noted that while SEP regulation so used is used to refer to competition regulation specifically, and not to other levers, such as mechanisms within intellectual property law itself. The focus of this exercise will be competition regulation, with an engagement with other areas of the law and the judicial process only in as much as it informs our understanding of competition regulation of SEPs or impedes it. If one were to apply the actor network theory to this phase of the exercise, one would view courts, parties involved in the litigation, the CCI, international legal principles, international market regulators, international SSOs, competition law as well as issues raised in the litigation as 'actants', both human and non human, who are to be treated on par with each other, with a study of the networks that these actants create, or are a part of.

Part 2: Literature Review on the Actor-Network Theory

The aim of this exercise is to first, understand the ANT as a research methodology; second, to study its components and third, to ascertain its suitability as a research method for exploring the challenge of regulating SEP litigation through completion law mechanisms in India.

What is the Actor-Network Theory?

David Banks, in a 2011 blog post, contextualized in trying to trace a relationship between our offline and online behavior presents an overview of the ANT.[1] Banks describes ANT as an ongoing project that seeks to radically transform how social scientists talk about society's relationship to technology and other non human actors ; and identifies Bruno Latour, John Law and Michael Callon as the major authors in this space. (It is observed that there might have been additions or deletions to this core list of thinkers - not to self for further reading).

In his paper[2] reflecting on the ANT, Bruno Latour refers to himself as a 'fellow traveler' of the various network 'revolutions', and says that in the network, he has found a powerful way of rephrasing basic issues of social theory, epistemology and philosophy. Latour says that in its simplest and deepest sense, the notion of the network is of use whenever action has to be redistributed.[3] In a different paper, Latour argues that the purpose of the ANT is not to provide explanations for the behaviour and reasons of actors, but only to map procedures which enable actors to relate to each other and each others' world building capacity. My discomfort with this reading is trying to locate what these procedures would be in an SEP regulation environment.

Identifying the components of the ANT

Latour presents an actant - or an actor - as something that acts, or to which some sort of activity is assigned by others. [4] There is no special motivation of humans or human actors. "An actant," says Latour, "can literally be anything provided it is granted to be the source of the action."[5] The conception of an actant, Latour further articulates, should be not as fixed entities, but as fluid, circulating objects, whose stability and continuity depends on other actions. [6]

So what is on its agenda? The attribution of human, unhuman, nonhuman, inhuman, characteristics; the distribution of properties among these entities; the connections established between them; the circulation entailed by these attributions, distributions and connections; the transformation of those attributions, distributions and connections, of the many elements that circulates and of the few ways through which they are sent.[7]

Banks[8] identifies actants to be of two types - human and non human, further explaining that 'actors' is typically used to refer to humans. These actants have equal amounts of agency within the actor-network. Banks proceeds to demonstrate this applicability of equal agency with an illustration of getting wi-fi connectivity in Albany. In his narrative [9] (and as he notes later himself), Banks uses the same language (read as according agency to the inanimate) to describe both, the human and non human actants. Says Banks, that the actants are merely nodes that facilitate a larger functioning. It is submitted that the 'larger functioning' being referred to is probably something that would be determined on a case to case basis - depending on what was being studied.

In a 1999 paper On Recalling ANT[10], Latour articulates a problem with the usage of the word 'network' as a result of its usage having changed over time - from using it to refer to a series of transformations incapable of being captured by prevalent social theory at the time, to an unmediated access to every piece of information (to my understanding within the context of the World Wide Web). Latour explains that his new understanding is exactly the opposite of what they meant and that it ought not to be used to mean the transformations they were initially articulating.

Another of Latour's papers is helpful in arriving at an understanding of the 'network', where he argues that it would be fallacious to consider it in a technical sense, as one would a sewage, a train or a telephone network.[11] Unlike a technical network, Latour argues, an actor-network may have no compulsory paths, no nodes and might be quite local in nature. Latour further argues that thinking in terms of a network helps us overcome the tyranny of distance, citing a range of examples including standing one metre away from somebody in a telephone booth and yet being more closely connected to his mother, thousands of miles away, among others[12]. In each of his illustrations, however, Latour articulates closeness or distance in terms of geography or presence in a physical sense, which might not be entirely applicable to the research question we're seeking to study. What might be more useful perhaps, is the articulation of the network where he argues that instead of tracing an individual to the collective or the agency, one could only at the number of connections an element has and gauge the importance of the element in light of these connections . The greater the number of connections, the more important an element and vice versa. [13]

ANT Criticism and Applicability of the ANT to our research question?

Before delving into specifics of the ANT that lend themselves to a critique, I submit a broader reservation with the application of the ANT to studying legal and regulatory processes. From my reading and understanding of the ANT so far, a cornerstone appears to be the exclusion normative ideologies, with a focus on studying processes and networks as is, without formulating a value-judgment on their larger place in the society being studied. In so far as defending this claim, Latour and other supporters of this theory have relied on scientific examples (for instance, the reference to the Colombia Shuttle - NASA and its complex organizational structure)[14] or illustrations from the social sciences or social phenomena. I'm still attempting to locate a paper that utilizes the ANT to study law or regulation. Prima facie, the challenge being posed is to study inherently normative structures and processes with clear power structures.

Banks[15] describes the efficacy of the ANT in describing the processes by which inventions and technological systems come into being, or fail to do so. Perhaps in studying the legal regulation of SEP litigation in India, the efficacy of the ANT would like in describing the processes by which legal regulation and legal systems in India (specifically to regulate SEPs) come into being, or fail to do so. By extension, for our research question, non human actants as identified by Banks[16] would probably be legal institutions and the parties to the litigation themselves. What is unclear at the moment is whether policy and legal instruments or levers themselves would be actors.

Banks, in his article also articulates criticisms[17] to the ANT propounded by Sandra Harding, David Bloor and Sal Restivo, on the grounds of being blind towards other social factors such as race or patriarchy. If one were to extend this to the research question at hand, an argument could be made that the ANT seeks to equate dissimilarly situated institutions. Corollaries to race and patriarchy might be found in the market power of parties (an Ericsson v. a Micromax), or even within regulatory set up itself, where, based on the facts so far, an argument could be made out that different regulators are situated differently, where the Delhi High Court could pass an order restraining another regulator - the Competition Commission of India, from passing its own order.

A reference to the 'agency' critique of the ANT is made by Latour himself, in his 1999 paper. Latour goes on to acknowledges the critiques of the ANT, but says that most have (mistakenly) centered either around the actor or around the network; and that the idea was to never occupy a position in the agency/structure debate.[18] Later in the paper, Latour further clarifies that actants are not to be perceived as playing the role of agency, and network is not to be seen as playing the role of the structure. Instead, says he, they represent two sides of the same phenomenon. Latour further explains that the ANT merely tried to learn from the actors (what was sought to be learnt was difficult to grasp), without attempting to be an explanation of societal pressures (and the reasons for such pressures) on actors. The difficulty in reading this paper for me was that it was rather dense in many respects, with various concepts - including, for instance, the idea of the 'social', which he refers to constantly, not being clearly articulated. Further, what is uncertain to me is how this question of agency will play out if applied to a legal or regulatory context. If, for instance, a legal principle was to be a non human actant, how would this have an agency independent of the human actor (the judge) that would be the one applying the legal principle in the first place? Can we truly exclude the question of agency from the ANT if the very exclusion of agency means a recognition of the existence of agency in the first place? How does one exclude the question of agency in seemingly unequally situated actors with an inherent power dynamic? Is the ANT, then even a useful research methodology? In his 1999 paper, Latour argues that the aim of the ANT is to study actors without the imposition of an a priori definition of their world building capacities.[19] The question now arises for me, is how to divest regulators of their 'world building capacities'.

Explaining the rationale[20] for the ANT (in social science research), Latour articulates a dissatisfaction that social scientists have with both, micro (local sites) and macro levels (more abstract ideas like culture, patriarchy etc.) of research. This dissatisfaction, he argues, results in a back and forth between these sites ad infinitum. The ANT, argues Latour, is a way of tracing these dissatisfactions, not for the purposes of finding a solution, but to follow them elsewhere and explore the very conditions that make these two disappointments possible. Latour further clarifies that one must not understand 'network' in ANT to mean a larger society that would help make sense of local interactions or as an anonymous field of forces. Instead, he says, it refers to summing up various interactions through various devices, inscriptions, forms and formulae into a very local, very practical, very tiny locus. My key takeaway from this articulation was that ANT could be used to study various interactions between various key stakeholders, with a very specific research question. Given that the locus could also be tiny, perhaps if the research question was narrowed further, the key stakeholders, or the 'network' and the 'actants' would reduce as well.

Latour has also argued that the ANT makes no assumptions about how an actor should behave and assumes infinite pliability and absolute freedom of actors. [21] In itself AT is not a theory of action no more than cartography is a theory on the shape of coasts lines and deep sea ridges; it just qualify what the observer should suppose in order for the coast lines to be recorded in their fine fractal patterns. Any shape is possible provided it is obsessively coded as longitude and latitude. Similarly any association is possible provided it is obsessively coded as heterogeneous associations through translations.

there is no difficulty in seeing that AT is not about traced networks by about a network-tracing activity. As I said above there is not a net and an actor laying down the net, but there is an actor whose definition of the world outlines, traces, delineate, limn, describe, shadow forth, inscroll, file, list, record, mark, or tag a trajectory that is called a network. No net exists independently of the very act of tracing it, and no tracing is done by an actor exterior to the net. A network is not a thing but the recorded movement of a thing. The questions AT addresses have now changed. It is not longer whether a net is representation or a thing, a part of society or a part of discourse or a part of nature, but what moves and how this movement is recorded. [22]

A useful articulation of the application of ANT emerges out of Jonathan Murdoch's 1997 paper.[23]He submits that the human gaze is being increasingly considered as an unreliable source of knowledge, being in a constant state of flux. Citing the example of the environment/biosphere to demonstrate the futility of the separations we make between nature and society, Murdoch argues that any solution to the environmental crisis will involve a profound re-thinking of how we link these two domains.[24]Extending this argument to our research question, one might ponder for instance that any solution to the SEP litigation and regulation conundrum will involve a profound re-thinking of how we link the courts and the CCI. What is unclear is what method we will use to arrive at this re-thinking, or what the re-thought out version would look like.

Murdoch does, however, articulate concerns with the 'non dualistic' framework (which the ANT positions itself as) and argues, relying on others before him, that such an adoption could have far reaching consequences; that the very basis of the development of social science is such a binary division. Murdoch argues that the nature-society divide has enabled social scientists to break the hegemony of the natural scientists. Murdoch further submits his reading of Latour, where he states that the power of laboratories arises as a result of their ability to tie together actors that are beyond the lab into networks that are then used to disseminate scientific facts.[25] Murdoch's paper largely focuses on blurring the distance between 'natural' and 'social' actors, and identifies the difficulties in attempting to compare the two. Murdoch questions if natural actors whose identity emerge from nature itself are malleable as social actors, who are by definition, a product of society. What is unclear, however, is how malleable are two dissimilarly situated social actors; and whether 'social actors' is broad enough to encompass all institutions born out of or with a human/societal interaction component. Specifically, for our paper, would courts and the CCI both qualify as social actors? Would legal principles? Would the decision making process by the courts itself? Latour's very example for proposing the ANT was that of pasteurization in France. Murdoch also questions whether it's possible to in fact treat various actants as each other. In order to address another critique of ANT, that where we exclude notions of power, Mudoch says Law's articulation - of focusing on 'victims' instead of 'heroes' might prove to be useful. This has not been discussed in detail, leaving the reader to make their own inferences.

In other words, can ANT, with its seamless webs, forever crisscrossing the human-nonhuman divide, provide a secure platform for critique, for the expression of a profound dissatisfaction with the activities of powerful social actors and the attribution of responsibility to those actors? Can it, in other words, ever do anything more than describe, in a prosaic fashion, the dangerous imbroglios that enmesh us?
Does this emphasis on description necessarily represent "an insuperable obstacle to effective and convincing social criticism

[1] David Banks, A Brief Summary of Actor Network Theory, available at http://thesocietypages.org/cyborgology/2011/12/02/a-brief-summary-of-actor-network-theory/ (last accessed 29 August, 2015).

[2] Bruno Latour - Networks, Societies, Spheres : Reflections of an Actor - Network Theorist, International Journal of Communication 5 (2011), 796- 810, available at http://ijoc.org/index.php/ijoc/article/viewArticle/1094 (last accessed 31 August, 2015).

[3] Id at 797.

[4] Bruno Latour - complications paper - at internal page 7.

[5] Id.

[6] Id at internal page 8.

[7] Id at internal page 7.

[8] Id.

[9] Id.

[10] Bruno Latour, On Recalling ANT, available at http://www.bruno-latour.fr/sites/default/files/P-77-RECALLING-ANT-GBpdf.pdf (last accessed 28 August, 2015).

[11] Bruno Latour, On actor-network theory. A few clarifications plus more than a few complications, available at http://www.bruno-latour.fr/sites/default/files/P-67%20ACTOR-NETWORK.pdf (last accessed 30 August, 2015) at internal page 2.

[12] Id at internal page 4

[13] Id at internal page 6.i

[14] Latour, the networks, societies, spheres paper

[15] Id.

[16] Id.

[17] Id.

[18] Latour, recalling the ANT paper.

[19] Recalling ANT paper, page 20

[20] Bruno Latour, On Recalling ANT, available at http://www.bruno-latour.fr/sites/default/files/P-77-RECALLING-ANT-GBpdf.pdf (last accessed 28 August, 2015).

[21] Latour, the complications paper, page 9.

[22] Id at 14.

[23] Jonathan Murdoch, Inhuman/nonhuman/: actor-network theory and the prospects for a nondualistic and symmetrical perspective on nature and society, Environment and Planning D: Society and Space, 1997, Volume 15, 731-576

[24] Murdoch at page 732.

[25] Murdoch at page 737.

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-working-document-series-research-questions-and-a-literature-review-on-actor-network-theory

Pervasive Technologies: Patent Pools

nehaa — 2013-07-03T06:57:59Z

In this research paper, Nehaa Chaudhari gives an analysis of patent pools. She discusses the working of a patent pool, study patent pool in other areas of technology, and patenting in telecom and related technology.

Click to download the full research paper here (PDF, 475 Kb)

Introduction

The network landscape over the past few years has been characterized by several battles of supremacy between two or more rival technologies. [1] These battles have included, inter alia, the constant efforts at besting rivals in the arena of patenting innovations in technology, often as a result characterised by the imposition of high royalties on rivals, for the use of one’s patents. However, having realised that such efforts at besting the other could prove detrimental for all parties concerned in the long run, and stall technological advancements which would in turn translate into lower business revenue, mechanisms were devised to ensure a relatively equitable utilization of patents in the market place. One such mechanism that has been developed is that of patent pools.

Patent pools have been developed around most areas of high end technology and research and development. Over the course of this paper, the author has confined herself to a study on patent pools in the area of telecommunications, and the issues to be addressed therein. Specifically, the author will be dealing with patent pools around 3G, 4G, LTE, TD-SCDMA and TD-LTE technologies. Within this framework, the author seeks to examine what are patent pools, whether and what kind of patent pools exist, their associated costs, their licensing arrangements and the structure of the payment of royalty, and the feasibility of these patent pools.

Understanding Patent Pools

Patent pools are agreements among patent owners through which patent owners combine their patents, waiving their exclusive rights to the patent to enable others, or themselves, to obtain rights to license the pooled patents.[2] Therefore, such pools may be focussed either on cross licensing, that is companies mutually making their patents available to each other, or on out licensing, that is, a group of companies making a collection of patents available to companies that do not or might not have patents of their own to contribute to the pool.[3] Typically, modern patent pools combine patents of various companies and are around inventions that are required to implement an established industry standard, are licensed as a whole (on an all or nothing basis) and not as individual licenses for patents owned by various companies within that pool, and are available to any non member for licensing.[4] Such licensing is done under a standard agreement and royalty rates, on a non discriminatory basis. The exception to this rule is that if certain members have contributed patents to the pool, they may receive more favourable terms, in recognition of their cross licensing relationship to the pool.[5] When viewed from a law and economics perspective, patent pools are seen to be an efficient institutional solution to various problems that arise when companies have complementary intellectual property rights, and these rights are essential to new technologies being used and employed. [6] However, this perspective also warns about the antitrust risks that may arise when competitors or potential competitors are involved in the coordination of their intellectual property. For instance, such pools may be used to allocate markets or otherwise chill competition. [7]

The Working of a Patent Pool

Generally, a patent pool may be administered in one of two ways- it may either have an administrative entity, or may also just be a system of cross licensing between two firms.[8] In case of the former, the licensing agency may be one of the patent holders, [9] or may be an independent licensing company (e.g. MPEG).[10]

The ownership of patents within the pool is retained by the owners, who then license them to the operator/administrator on a non exclusive basis, with sub licensing rights. This means that the owners are free to continue to license their patents on an individual basis, and the administrator also has the right to further license the patents to any party who is interested in licensing from the patent pool.[11] The responsibility of managing licensing and licenses is vested in the operator/administrator of the patent pool. Licensees are required to report sales and pay royalties to the pool administrator, who in turn would enforce the conditions of the license.[12] The distribution of royalties between the members of the pool is on the basis of a formula which may, or may not be transparent to non member licensees, with the pool operator retaining a management fee.[13] Typically, pool licenses are also structured in a manner so as to render difficult early termination by the licensee. The nature of the contract, once signed by a licensee, is typically binding in nature. Therefore, this would mean that the administrator of the patent pool could sue the licensee for non performance of the contract.[14] However, unless a pool operator is a member of the pool itself, it cannot sue for the infringement of patents. [15] Therefore, in the event that a patented technology were to be utilised without having taken a license, one or more of the individual patent owners would be required to take legal action. The involvement of the pool operator would be limited to being a part of any settlement discussions, if they were to occur, since one of the options for the alleged infringer could be to obtain a license for the patent pool.[16]

Drawing Parallels with Other Patent Pools

In this section of the paper, the author seeks to study patent pools in other areas of technology in order to better understand the structure and pricing of patent pools.

The ‘3C DVD’ Patent Pool
Established in 1998, the 3C DVD Patent Pool was the brainchild of Philips, Sony and Pioneer, and L.G. was subsequently inducted as a member. Philips acts as a licensing administrator for patents held by all the companies, which are over two hundred in number. These patents include those for the manufacture of the DVD players, and for the manufacture of the DVD disks themselves. [17] The player license per unit royalty was set as 3.5% of the net selling price of each player sold. This was subject to a minimum fee of $7 per unit, which after January 1, 2000 became $5 per unit. The disc license royalty was set as $0.05 per disc sold.[18]

The ‘DVD- 6C’ Patent Pool
Established in June 1999, the members of this pool at the time of its inception were Hitachi, Matsushita, Mitsubishi, Time Warner, Toshiba, and JVC. This pool was also for the DVD-ROM and the DVD- Video formats, with Toshiba acting as the administrator. [19] The royalties were set at $.075 per DVD Disc and 4% of the net sales price of DVD players and DVD decoders, with a minimum royalty of $4.00 per player or decoder, which saw a substantial reduction in 2003.[20] Subsequently, there were various changes that were made to this group, including the inclusion of newer standards, the joining and subsequent departure of IBM and other organizations as a member etc. Hitachi and Panasonic also act as regional agents in certain regions of the world.

The MPEG LA pool
The MPEG-2 is a standard for describing the coding of data inter alia, on DVD discs. For MPEG-2, a patent pool has been established, where the administrator is an independent, external organization known as the MPEG Licensing Authority, that set itself the aim to develop a patent pool for this standard. [21] The MPEG LA invited parties that thought they owned patents essential to this standard to join the program, which took off in 1997. At present, the pool has over a hundred patents and thousands of licensees.[22]

Patenting in Telecom and Related Technology

In this section of the paper, the author examines the working of patenting and patent pools in the telecommunications sector and in areas of related technology.

Early Developments and the Emergence of GSM
Patent pools are slowly developing into a key component of the telecommunications and the technological industry. The technology industry has been said to be an ecosystem, wherein there is a complex correlation between those who develop the technology and those who implement it in the creation and development of products.[23] In the telecommunications industry for instance, each handset manufacturer has declared only a small percentage of the various types of intellectual property assets that are necessary to implement a 3G compatible cellular phone. Therefore, the working in such a context is that various companies develop different technologies, and the same is shared by various manufacturers that seek to make use of this technology.[24]

The revival of patenting in the sector of telecommunications, post a period of decline in the decades of the 19540s to the 1980s, is attributed to the advent of the GSM standard for mobile communications in Europe.[25] In 1988, the main European operators invited equipment suppliers and developed a procedure wherein manufacturers would have to give up their intellectual property rights and to provide free world wide licenses for essential patents.[26] After opposition from the manufacturers, the approach was modified to one wherein the operators required the suppliers to sign a declaration agreeing to serve all of the GSM community on fair, reasonable and non discriminatory conditions.[27] In the early 1990s, Motorola by refusing to grant non discriminatory licenses for its substantial portfolio of essential patents and only agreeing to enter into cross license agreements further intensified the debate over IPRs in telecommunications. The company only lifted these restrictions after various countries across the world expressed a preference for this standard. The experience in this standard has demonstrated that it would not be accurate to expect that all parties holding essential patents would be willing to license them to all interested parties.[28] Companies were only willing to relax their licensing conditions once revenue generating opportunities increased.

The 3G3P and the UMTS
In July 2000 the 3G Patent Platform Partnership (3G3P) and its 18 partners notified various agreements to the end of establishing a worldwide patent platform. The purpose behind this was disclosed to be that of providing a voluntary and cost effective mechanism to evaluate, verify and license patents that were essential for third generation (3G) mobile communication systems.[29] It was also claimed that the said agreements would have pro competitive effects and that the purpose behind this Platform was the facilitation of access to technology and consequent entry into the markets.[30] On the intellectual property front, the purpose was to reduce cost uncertainties and the delays that were accompaniments of licensing numerous essential patents for complex technologies.

While it has often been considered to be a patent pool, this arrangement has been said to be only similar to a patent pool.[31] The 3G3P itself has argued that since it was a mere facilitator of transactions between patent holders and licensees, and that membership was open to both licensors and licensees as opposed to only licensors as in the case of patent pools, it would be fallacious to classify the Platform as a patent pool. Further, it has also been argued that licensing by members is not restricted to the Platform and that there was no bundling or real pooling of the patents per se and those licensees have the opportunity to pick and choose between patents with the licensing being carried out on a bilateral basis. Additionally, unlike in a patent pool, there is no single license between the patent holders as a collective and the licensee, and the parties have a choice between the Standard License of the Platform, and a negotiable individual license.[32] A Standard License provides for Standard Royalty Rate, a Maximum Cumulative Royalty Rate and a Cumulative Royalty Rate.[33] Bilateral transactions on the other hand, are negotiated between the parties where the consideration is to be determined on fair and equitable terms.[34] This Platform also provides for a price cap, which, instead of being absolute and set at a pre-determined royalty rate, is a default five percent maximum (not minimum) cumulative royalty rate for potential licensees per product category.[35] The royalty rate for each individual patent will differ for each of the licensees and this depends on the patent portfolio under each product category that the licensee has chosen.[36]

The concerns and challenges of the GSM experience were well perceived during the determination of the course of action for UMTS. European actors were especially wary of Qualcomm and expected the firm to demand high license fees, with some even fearing them to be in excess of 10%.[37] Subsequently, various attempts at developing licensing schemes failed, until 2004 and the establishment of the W-CDMA Patent Licensing Programme for UMTS FDD patents.[38] At the outset, seven licensors offered their patents as a bundle to prospective licensors, a number which decreased over time.[39]

The Development of LTE Patent Pools
The next stage in the process of innovation in the realm of telecommunications was the development of the Long Term Evolution (LTE) Standard, which while being essential to 4G technology has also seen application in the realm of 3G. Consequently, patent pools or similar structures have been developed in these areas. LTE patents are being viewed as among the most valuable intellectual property resource in the mobile telecommunications industry, with most operators around the world building LTE networks.[40]

As per in a study conducted in 2011, 23% of the patents about this technology were owned by L.G. Electronics, with Qualcomm coming in second with 21%. Motorola Mobility, InterDigital, Nokia and Samsung each owned 9%, China’s ZTE owned about 6%[41] and Nortel owned 4%, which were later sold to a consortium of Apple, EMC, Ericsson, Microsoft, Research in Motion (RIM) and Sony, after Nortel filed for bankruptcy in 2009.[42] Ericsson also independently owns 2% of the patent pool and RIM owns 1%.[43] However, another analysis[44] of IP databases conducted by ZTE in 2011 revealed differing results. As per this analysis, InterDigital was the leader, with its Patent Holdings arm controlling 13% and the Technology arm controlling 11% of LTE essential patents. Qualcomm controlled 13%, Nokia and Samsung 9% each, Ericsson controlled 8%, as did Huawei, ZTE controlled 7%, L.G. controlled 6% and NTT DoCoMo brought up the rear with 5%. The remaining 11% was held by various other firms.[45] It is to be realized that these studies have often come under criticism from different companies, with each of them eager to portray themselves as the market leader.[46] Setting aside criticism driven by corporate egos, the principle of it, that is, the difficulty in assessing and valuing patents cannot be disputed. Valuing patents is far from merely counting the number of patents owned by a company. The complications are especially evident when it comes to determining which of these patents are essential and which of them aren’t. Additionally, the worth of these patents varies depending on the existence or the absence of certain conditions, including transfer restrictions, cross licensing arrangements, ownership and market conditions.[47]

The aforesaid discussion reveals the complexity and the fragmentation of the LTE environment, which further underscored the need to have patent pools in this field. Although the need for a patent pool was realized in 2009-2010, given that the WCDMA patent pool had been met with very limited success,[48] industry watchers were reluctant to be optimistic. This was in part fuelled by the understanding of the attitude of dominant players, wherein they continued to believe that they could derive more monetary, cross licensing and litigation defence value if they did not pool their patents.[49]

The development of LTE patent pools can be traced back to 2009, and the response of Via Licensing¸ Sisvel and MPEG LA to a Request for Information on forming such a patent pool by the Next Generation Mobile Network Alliance (NGMN).[50] Sisvel’s proposal, which it subsequently made at a public conference in 2010 sought to demonstrate that patent pools could prevent excessive costs from royalty stacking.[51] Among various other examples, Roberto Dini, the founder of Sisvel suggested that if patents were to be licensed individually, for instance, 85 patents for MPEG video at 50 cents apiece would cost $42.50. As opposed to this, the patent pool charged $2.50.[52] In 2011, the NGMN reiterated its recommendation to all stakeholders in the mobile industry that were interested in developing patent pools to hasten their development process to avoid further delays in LTE licensing.[53] The NGMN also went on to state that it would be ideal if all the parties were to agree on a single patent pool that promoted reasonable royalties, offered certainty on the availability of the licenses for patents and created a framework for evaluation of their essentiality, where the value of the patents essential to the pool would be established by the industry.[54] These recommendations were not without their fair share of criticism, both, from industry watchers[55] and from vendors.[56] Notwithstanding these reservations, both, Sisvel[57] and Via Licensing have gone on to issue calls for patents for the purposes of creating patent pools in the LTE marketplace.

The Sisvel LTE Patent Pool materialized in late 2012, wherein licenses were offered under a portfolio of patents essential to LTE.[58] The pool includes patents owned by Cassidian, the China Academy of Telecommunication Technology, the Electronics and Telecommunications Research Institute, France Telecom, TDF, and KPN, in addition to some patents that had been originally filed by Nokia but were acquired by Sisvel in 2011.[59] The pool is also open to other organizations that have patents essential to LTE. At present, the current portfolio of these patents is available under standard terms and conditions. The running royalty rate is 0.99 Euros per device.[60]

Having promised a launch within a few months in June, 2012[61] Via Licensing has also developed its own LTE Patent Pool, with the initial companies in this pool being AT&T, Clearwire Corporation, DTVG Licensing, HP, KDDI Corporation, MTT DoCoMo, SK Telecom, Telecom Italia, Telefónica and ZTE.[62] Like Sisvel’s Patent Pool, this pool is also open to other organizations that believe they possess essential LTE patents, and they are encouraged to submit the same for evaluation.[63] The patent pool floated by Via leans heavily towards service providers, but some of the big players in the industry including Nokia, Ericsson, Huawei Technologies and Samsung Electronics are conspicuous by their absence.[64] This absence is felt even in Sisvel’s patent pool, with the reasoning being proposed[65] that these key patent holders may prefer private licensing and subsequent litigation over pooled resources in patent pools.[66] Understandably, the launch of the LTE Patent Pools has been met with approval by the NGMN[67] but given the nascent stages in which both of these pools find themselves, it would be premature to comment (without first observing for a few months) the likelihood of their success or failure and how they would play out against each other.

The TD-SCDMA and the TD-LTE
Reportedly, China has spent several billion dollars on the import of analog and GSM technology,[68] and the country’s mobile communications industry continues to be dominated by foreign players.[69] Therefore, in continuation of a purportedly growing trend[70] in the area of telecommunications as well, domestically developed systems are being preferred and developed over standardized technologies that enjoy strong patent protection outside China.[71] Besides the avoidance of paying royalties to foreigners, the idea is also to use China’s strong market presence and have more participants in China’s home grown technology.[72]

Time Divisional- Synchronous Code Division Multiple Access (TD-SCDMA), developed by the China Academy of Telecommunications Technology (CATT), in collaboration with Datang and Siemens[73] is a Chinese indigenously developed 3G technology standard developed by China to reduce its dependence on western standards.[74] Interestingly however, it has been reported that the Chinese hold core patent technology only about 7% whereas most of the rest of it is taken by other foreign organizations.[75] In 2000, an industry consortium, the TD-SCDMA forum was established. The participants were China Mobile, China Telecom, China Unicom, Huawei, Motorola, Nortel, and Siemens, with the objective of developing and supporting this technology. Government support was received in 2002, following which the TD-SCDMA Industry Alliance was founded by well known market players including Datang, SOUTEC, Holley, Huawei, LENOVO, ZTE, CEC and China Putian. There has also been the creation of various joint ventures with international giants such as Alcatel, Ericsson, Nokia, (erstwhile) Nortel, Philips, Samsung and Siemens have also been created.[76]

Information about the existence of patent pools in this technology has been hard to come by. One of the few to write about patent pools in his 2008 paper,[77] Dazheng Wang proposes patent pools as a solution to the problem of commercialization of TD-SCDMA. He suggests that the framework of this patent pool should be on the industry principles of fair, reasonable and non discriminatory licensing terms for essential patents, with the end result being one of increased innovation and competition and an overall increase in market presence. Interestingly, a few articles[78] on blog posts on the internet speak about the existence of patent pools and their apparent misuse[79] as well.

It is submitted that these inconsistencies regarding the division of patents between various patent holders, where the percentage of patents held by each company have been pegged differently,[80] and about the existence of a patent pool or not raise pressing concerns about the payment of royalties and how licensing works in such a situation. On a very basic level, in order to be able to pay royalties and enter into licensing agreements, the existence of an identified, non disputed patent holder would be the sine qua non, which seems to be missing in the case of patents for TD-SCDMA. This problem is only further compounded by the lack of clarity on the very existence of patent pools. Had there been specified patent pools, the issues of determination of essential patents and the setting of royalties and licensing fees would have been standardized, a situation that cannot be invoked, without dispute, in the present Chinese context.

It is further submitted that despite China being the world’s largest market for mobile communications, and its progress from a mere importer to a developer of some parts of technology,[81] the Chinese experiment with TD-SCDMA seems to have met with limited success, in comparison to what was envisaged. For instance, while an agency had forecast that the number of TD-SCDMA subscribers in 2010 would be 34 million, by April, 2010 there were only 8 million or (even lower) subscribers.[82] One of the reasons for preferring other standards, for instance, the W-CDMA is the number of handsets compatible with the same and the consequent variety that is available to the consumer. To illustrate, one could look at the figures from June, 2010. At this point of time China Unicom had 94 models for W-CDMA from twenty four manufacturers including nine foreign ones, whereas China Mobile had only twenty eight models that were compatible with TD-SCDMA.[83] Interestingly, if one were to measure popularity in terms of sheer numbers, TD-SCDMA would emerge the winner over W-CDMA by a couple of million subscribers, but if the growth rate were to be considered, W-CDMA would come out on top. While TD-SCDMA grew only by 24%, W-CDMA has grown at 32% monthly since the start of its service is October, 2009.[84]

China’s experiments with creating its home grown telecommunication standards have not stopped with the development of the TD-SCDMA, with the country being on track in the development of the TD-LTE. Reports suggest that although the systems are in ‘trial’ mode officially, the 4G spectrum situation remains uncertain.[85] It is submitted that although this is in the nascent stages as compared to the TD-SCDMA, the concerns expressed earlier about TD-SCDMA and the suggestions made therein for the technology to realise its full potential would be equally applicable in this scenario as well.

Therefore, in light of this discussion it would not be fallacious to conclude that while the TD-SCDMA, and now more recently the TD-LTE standard might still be in its nascent stages, on a fundamental level it seems to have not fulfilled the objectives with which it was developed, especially given that a sizeable portion of its patents continue to be owned by foreign corporations. In addition to the challenges of attracting subscribers, it would also need to streamline its system of patents, royalties and licensing, if it wants to have a truly global or even national presence. To this end perhaps patent pools structured along the lines of those being developed or in place for other mobile communication technologies might provide a viable solution meriting consideration.

Concluding Observations

One of the fundamental concerns that plague most downstream organizations in the mobile communications sector is the prevalence of high licensing fees that need to be paid on essential patents, the cost of which often trickles down to the customers. A study on the licensing arrangements prevalent at the moment[86] reveals that as of the moment, the result of royalty rate caps is that they save money for downstream manufacturers, but this is at the expense of upstream licensors. The most significant savers are the ones downstream with no IP to trade, and vertically integrated companies while losing some revenue, are able to save significantly more in reduced expenses.[87]

Therefore, it comes as no surprise that efforts at limiting aggregate licensing fees have been at the forefront over the past couple of years. It is in this scenario that patent pools have developed, with operators such as Via Licensing and Sisvel even promoting themselves as being able to put together patent pools that would greatly limit licensing fees.[88] However, some owners of intellectual property continue to find bilateral licensing and cross licensing to be more profitable as opposed to patent pools.

One of the key concerns when it comes to fore when dealing with how patent pools are structured is about the distribution of income received from royalties within the members of the pool, which ties in with the bigger question of classifying patents as essential and non essential. More often than not, patent pools also have to grapple with the problem of members having conflicting interests. For instance, manufacturers have the incentive to cap aggregate royalties of certain essential patents that they would use in manufacturing, in order to reduce their licensing costs. However, these manufacturers could have also brought their own essential patents to the pool, perhaps of a new way of doing things, and would certainly be averse of having caps imposed on these royalties.

One of the key other considerations that patent pools need to take into account include the royalty rates affixed. In an interview some time ago, the founder of Sisvel, went on to state that while affixing these royalty rates, there could be no discrimination against licensees, since that would be a sure fire way of ensuring the collapse of the patent pool.[89] Additionally, patent pools also need to account for the difference in regulatory mechanism and their execution that exists across jurisdictions. For instance, customs officials in France pay a lot more attention to counterfeit goods than they would to patent infringing products, whereas those in Germany would have a keen eye on the latter.[90]

Various other concerns have also been identified with regard to patent pools over time. One of these is that they could potentially eliminate competition that comes from outside of patent pools.[91]

Additionally, patent pools are not all inclusive, since participation is entirely voluntary. Therefore, patent pools would not even be reasonably expected to cover all essential patents required to make a standardised product. This problem is rendered even more complex as a result of the presence of multiple patent pools around the same technology, as in the case of DVDs and more recently, LTE technology.

In sum, while portfolio cross licenses and patent pools can be helpful in resolving issues created by patent thickets by reducing transaction costs for licensees, while preserving to a definitive extent financial incentives for inventors to commercialize their existing inventions and undertake new research, the significant shortcomings of these pools also need to be taken into account before they can be heralded as the solution to problems presented by complex patent landscapes. While voluntary patent pools might have proved to be beneficial in some respects, the imposition of patent pools would be a fallacious approach to undertake.

[1]. Hui Yan, The 3G Standard Setting Strategy and Indigenous Innovation Policy in China: Is TD-SCDMA a Flagship?, DRUID Working Paper No 07-01, available at http://www2.druid.dk/conferences/viewpaper.php?id=1454&cf=9 (last accessed 07 12 2012)

[2]. Josh Lerner and Jean Tirole, Efficient Patent Pools, 4 Am. Econ. Rev. 691, 691 (2004)

[3]. Patent Pools- Some Not So Frequently Answered Questions, available at http://blog.patentology.com.au/2012/11/patent-pools-some-not-so-frequently.html (last accessed 10 December, 2012)

[4]. Id.

[5]. Id.

[6]. Philip B. Nelson, Patent Pools: An Economic Assessment of Current Law and Policy, Rutgers Law Journal, Volume 38:539, 559 (2007)

[7].

[8]. Roger B. Andewelt, Analysis of Patent Pools Under the Antitrust Laws, 53 ANTITRUST L.J. 611, 611 (1984).

[9]. Philips has been known to have been the licensing agency for patent pools where it was a member

[10]. Supra note 3

[11]. Supra note 3

[12]. Supra note 3

[13]. Supra note 3

[14]. Supra note 3

[15]. Supra note 3

[16]. Supra note 3

[17]. Rudi Bekkers et. al., Patent Pools and Non Assertion Agreements: Coordination Mechanisms for Multi Party IPR Holders in Standardization, available at http://www-i4.informatik.rwth-aachen.de/Interest/EASST_Bekkers_Iversen_Blind.pdf 22 (last accessed 09 December, 2012)

[18]. Id.

[19]. Id.

[20]. Id.

[21]. Supra note 17 at 23.

[22]. Supra note 17 at 23.

[23]. Keith Mallinson, Fixing IP Prices with Royalty Rate Caps and Patent Pools, available at http://ipfinance.blogspot.in/2011/07/fixing-ip-prices-with-royalty-rate-caps.html (last accessed 10 December, 2012)

[24]. Id. See Appendix 1 for a graphical representation of declared intellectual property assets in 2009.

[25]. Supra note 17 at 25

[26]. Supra note 17 at 27

[27]. Supra note 17 at 27

[28]. Supra note 17 at 28

[29]. Dessy Choumelova, Competition Law Analysis of Patent Licensing Agreements- the Particular Case of 3G3P, available at http://ec.europa.eu/competition/publications/cpn/2003_1_41.pdf- 41 (last accessed 10 December, 2012)

[30]. Id.

[31]. Id.

[32]. Id.

[33]. Id at 42.

[34]. Id at 42.

[35]. Id at 42-43.

[36]. Id at 43.

[37]. Supra note 17 at 29.

[38]. Supra note 17 at 39.

[39]. Supra note 17 at 39.

[40]. Elizabeth Woyke, Identifying the Tech Leaders in LTE Wireless Patents, available at http://www.forbes.com/sites/elizabethwoyke/2011/09/21/identifying-the-tech-leaders-in-lte-wireless-patents/ (last accessed 08 December, 2012)

[41]. Id.

[42]. Id.

[43]. Id.

[44]. Caroline Gabriel, ZTE Claims 7% of LTE Essential Patents, available at http://www.rethink-wireless.com/2011/01/11/zte-claims-7-lte-essential-patents.htm (last accessed 09 December, 2012)

[45]. Id.

[46]. Id.

[47]. Supra note 40.

[48]. Keith Mallinson, Mallinson: Uncertain Futures in LTE Patent Pool Licensing, available at http://www.fiercewireless.com/europe/story/mallinson-uncertain-outlook-patent-pool-licensing/2010-08-25 (last accessed 10 December, 2012)

[49]. Id.

[50]. Id.

[51]. Id.

[52]. Id.

[53]. NGMN Board Recommendation on LTE Patent Pool, available at http://4g-portal.com/ngmn-board-recommendation-on-lte-patent-pool (last accessed 10 December, 2012)

[54]. Id.

[55]. Caroline Gabriel, NGMN’s Calls for an LTE Patent Pool Will be Futile in the Current IPR Climate, available at http://www.4gtrends.com/articles/53511/ngmns-calls-for-an-lte-patent-pool-will-be-futile-/ (last accessed 11 December, 2012)

[56]. Michelle Donegan, Vendors Balk at LTE Patent Pool Proposal, available at http://www.lightreading.com/document.asp?doc_id=212362 (last accessed 11 December, 2012).

[57]. SISVEL: Patent Pool for 3G Long Term Evolution (LTE), available at http://www.thefreelibrary.com/SISVEL%3A+Patent+Pool+for+3G+Long+Term+Evolution+(LTE).-a0199544458 (last accessed 08 December, 2012)

[58]. LTE Patent Pool from Sisvel, available at http://4g-portal.com/lte-patent-pool-from-sisvel (last accessed 09 December, 2012)

[59]. Id.

[60]. Id.

[61]. Mike Dano, Via Promises LTE Patent Pool Launch Within Months, available at http://www.fiercewireless.com/story/licensing-promises-lte-patent-pool-launch-within-months/2012-06-15 (last accessed 07 December, 2012)

[62]. LTE Patent Pool Available Through Via’s Licensing Program, available at http://4g-portal.com/lte-patent-pool-available-through-vias-licensing-program (last accessed 10 December, 2012).

[63]. Id.

[64]. Stephen Lawson, Lte Patent Pool Brings Together Technologies From At&T, Zte, Hp And Others, available at http://www.computerworld.com/s/article/9232043/LTE_patent_pool_brings_together_technologies_from_AT_amp_T_ZTE_HP_and_others (last accessed 09 December, 2012)

[65]. Peter White, Sisvel LTE Patent Pool Emerges After All- Majors Still Hold Back from Committing, available at http://www.rethink-wireless.com/2012/11/05/sisvel-lte-patent-pool-emerges-all-majors-hold-committing.htm (last accessed 09 December, 2012)

[66]. Shankar Pandiath, Sisvel Launches Patent Pool for 3G Long Term Evolution (LTE), available at http://next-generation-communications.tmcnet.com/topics/nextgen-voice/articles/314957-sisvel-launches-patent-pool-3g-long-term-evolution.htm (last accessed 09 December, 2012).

[67].NGMN Board Welcomes Launch of LTE Patent Pool, available at http://4g-portal.com/ngmn-board-welcomes-launch-of-lte-patent-pool (last accessed 09 December, 2012).

[68]. ELSPETH THOMSON AND JON SIGURDSON (EDS.), CHINA’S SCIENCE AND TECHNOLOGY SECTOR AND THE FORCES OF GLOBALIZATION 17 (2008, World Scientific Publishing Company, Singapore).

[69]. Cong Cao, Challenges for Technological Development in China’s Industry, available at http://chinaperspectives.revues.org/924 (last accessed 11 December, 2012)

[70]. Peter Zura, China Launches TD-SCDMA Telecom Standard¸ available at http://271patent.blogspot.in/2006/01/china-launches-td-scdma-telecom.html (last accessed 10 December, 2012)

[71]. Id.

[72]. Id.

[73]. TD-SCDMA (time division synchronous code division multiple access), available at http://searchmobilecomputing.techtarget.com/definition/TD-SCDMA (last accessed 07 December, 2012).

[74]. SHAHD AKHTAR AND PATRICIA ARINTO (EDS.), DIGITAL REVIEW OF ASIA PACIFIC : 2009-2010 8 (2010, Sage Publications, New Delhi).

[75]. Supra note 1 at 2. See Appendix 2 for the breakup of patent holding. However, see details on Infra note 78 for a contradictory view, wherein China claims to own 30% of all TD-SCDMA patents.

[76]. Pierre Vialle, On the relevance of Indigenous Standard Setting Policy: the Case of TD-SCDMA in China, 2^nd International Conference on Economics, Trade and Development, (2012) 36 IPEDR 184-185 (IACSIT Press, Singapore).

[77]. Dazheng Wang, Patent Pool: A Solution to the Problem of TD-SCDMA’s Commercialization, http://ieeexplore.ieee.org/xpl/login.jsp?tp=&arnumber=5076744&url=http%3A%2F%2Fieeexplore.ieee.org%2Fiel5%2F5076660%2F5076661%2F05076744.pdf%3Farnumber%3D5076744 (last accessed 11 December, 2012).

[78]. China Owns 30% of TD-SCDMA Related Patents, available at http://www.cn-c114.net/582/a310685.html (last accessed 11 December, 2012).

[79]. The Legal Regulation on Patent Pool Misuse, available at http://www.socpaper.com/the-legal-regulation-on-patent-pool-misuse.html (last accessed 11 December, 2012).

[80]. Supra notes 75 and 78.

[81]. Tomoo Marukawa, Chinese Innovations in Mobile Telecommunications: Third Generation vs. “Guerrilla Handsets”, Paper presented at the IGCC Conference: Chinese Approaches to National Innovation, La Jolla, California, June 28-29, 2010 at 1.

[82]. Id at 8.

[83]. Id at 9.

[84]. Id at 9.

[85]. China to Speed Up TD-LTE Process, available at http://www.tdscdma-forum.org/en/news/see.asp?id=11998&uptime=2012-11-29 (last accessed 08 December, 2012)

[86]. Supra note 23.

[87]. Id.

[88]. Supra note 23.

[89]. Sisvel’s Patent Strategy, available at http://www.managingip.com/Article/2400452/Sisvels-patent-strategy.html (last accessed 12 December, 2012).

[90]. Id.

[91]. Supra note 23.

For more details visit https://cis-india.org/a2k/blogs/patent-pools

PERVASIVE TECHNOLOGIES PROJECT WORKING DOCUMENT SERIES: DOCUMENT 1 - RESEARCH METHODOLOGY FOR A PAPER ON COMPETITION LAW + IPR + ACCESS TO < $100 MOBILE DEVICES

nehaa — 2015-10-04T02:51:06Z

This blog post is the research methodology for my research paper under the Pervasive Technologies Project. This is a work in progress and is likely to be modified from time to time.

See a subsequent version titled Pervasive Technologies: Working Document Series - Research Questions and a Literature Review on the Actor-Network Theory

Preliminary

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 research paper under the Pervasive Technologies: Access to Knowledge in the Market Place Project ("PT Project") examines 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.

Research Questions

This research paper will examine whether there is a role to be played by one regulator, that is, the Competition Commission of India (“CCI”), in this narrative of innovation, intellectual property and access to sub hundred dollar mobile devices. Specifically, the following research questions will be addressed:

First, what is the relationship between intellectual property and competition law? Second, what are the competition law/antitrust concerns that arise around the licensing of intellectual property (standard essential patents)? Third, can existing mechanisms in competition law address concerns around the licensing of standard essential patents on sub hundred dollar devices, and is competition law a viable solution to address this issue? If so, which ones? Fourth, given the frequency of these litigations, is there a role to be played by an ex-post regulator, such as the CCI, or is there a need for ex-ante regulation?

Research Objects

In an attempt to address these research questions, this paper will examine the role of the Competition Commission of India and the Indian Judiciary. This paper 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.

This research paper will also examine select tools and sites sought to be used to create an enabling environment to facilitate access to these sub hundred dollar mobile devices: first, principles, legal frameworks and provisions of competition law/antitrust law; second, all relevant judicial decisions.

Research Method

First , this research paper will begin with establishing the case for the intervention of the regulator and/or the judiciary in the sub hundred dollar mobile device market by undertaking a review of primary and secondary literature [1]("literature"). Second, also through a literature review, the research will be contextualized to India in terms of the market, the actors involved and the legal framework. Third, a cross jurisdictional comparative legal search will be undertaken to understand the potential areas of intervention for the judiciary and the Competition Commission of India based on existing legal disputes in other jurisdictions; and the possible challenges that might ensue. Fourth, in a scenario building exercise, an attempt will be made to outline the role that the judiciary and the regulator might play in India, in order to ensure access to sub hundred dollar mobile devices is not impeded by litigation around standard essential patents.

Generally, in the writing of this paper, inputs will be sought from experts including MHRD Chair Professors, legal practitioners in India, academics in India and abroad and members of relevant departments of the Indian Government.

Research Communication

This research will be communicated through a series of blog posts- one every month from December, 2014 to December, 2015. A preliminary draft of a research paper will be produced by December, 2015, tentatively to be presented at the 4th Global Congress on Intellectual Property and the Public Interest, New Delhi. The final output will be a research paper.

References

Bouthenia Guermazi and David Satola, Creating the "Right" Enabling Environment for ICT, in Robert Schware (ed.), E-development: From Excitement to Effectiveness (2005, World Bank Publications).
Jyoti Saraswati, Dot. Compradors- Power and Policy in the Development of the Indian Software Industry (2012, Pluto Press)

[1] Unless otherwise specified, for the purposes of this document, primary and secondary literature includes academic articles and books, newspaper articles and opinion pieces, blog posts, case law and other legal provisions.

For more details visit https://cis-india.org/a2k/blogs/methodology-sub-hundred-dollar-mobile-devices-and-competition-law

Pervasive Technologies Project Presentations at the 4th Global Congress, 2015

nehaa — 2016-01-21T16:33:41Z

These are the presentations made by the members of the PT Project team at the 4th Global Congress on Intellectual Property and the Public Interest, 2015 at National Law University, New Delhi.

Nehaa Chaudhari: The Curious Case of the CCI: Competition Law and SEP Regulation in India
Amba Uttara Kak and Maggie Huang: Rethinking Music Copyright Management in the Age of Digital Distribution: Business Models, Licensing Practices and Copyright Institutions in India
Rohini Lakshané: Patent Landscaping in the sub-$100 Mobile Device Market in India
Anubha Sinha: IP in Mobile Applications Development in India

For more details visit https://cis-india.org/a2k/blogs/pervasive-technologies-project-presentations-at-the-4th-global-congress-2015

Opening Comments by India on Limitations and Exceptions for Libraries and Archives at WIPO SCCR 28

nehaa — 2014-07-21T17:55:28Z

This was the statement made by the Indian delegation at the 28th session of the World Intellectual Property Organization Standing Committee on Copyright and Related Rights on July 2, 2014.

Hon'ble Chair

In the quest for Knowledge society-for the developing countries- the issue of haves and have -not’s is now sliced with an additional divide of knows and Know -not’s. Libraries and Archives are the engines of creativity and promote intergeneration equity. They indeed are the modern day temples, mosques and churches- The notion of strong copyright boundaries has found its resonance to encircle spaces hitherto providing the socio economic infrastructure for developing nations. It is in this context that we need to look for appropriate international instrument to consolidate the access by way of limitations and exceptions to libraries, archives, educational institutions and other disabled people.

The overemphasis of stricter and stronger copyright as the engine of creativity is now questioned by latest studies. Ekhard Höffner a German historian has in his comprehensive research argues the fact that in the 19th century Germany outpaced UK, as the copyright laws were not strong as it was in UK. This fact goes contrary to the established view that Copyright is directly correlated to the expansion of creative works and publication. In fact Germany could do the catch up with the other powers in Europe.

I am mentioning this to emphasize for the developing world to do the catch up it is necessary to have limitations and exceptions for Libraries/archives/educational institutions. At this junction it is necessary to recognize the importance of such consensus without presuming whether what sort of International Instrument it should be.

India supports the effort of harmonizing the exceptions and limitations from an international dimension for intergenerational equity and as a tool to develope socio-economic- human resource infrastructure.

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