Centre for Internet and Society

National IPR Policy Series : RTI Requests to DIPP seeking Details on the IPR Think Tank and the National IPR Policy

nehaa — 2015-04-12T12:48:00Z

In an earlier blog post titled " National IPR Policy Series : The Development of the National IPR Policy", we discussed the formation of an IPR Think Tank to draft the first National IPR Policy. Since many details about the constitution and working of this Think Tank were unavailable, we decided to send out RTI requests to find out more.

According to the press release by the Department of Industrial Policy and Promotion (DIPP) which can be found here, an IPR Think Tank was constituted in order to draft the National Intellectual Property Policy. The Think Tank, chaired by retired Justice Prabha Sridevan, submitted a confidential first draft of the National IPR policy to the DIPP on 19th December, 2014. This document was made publicly available by the DIPP and all stakeholders were requested to provide comments and suggestions to the first draft of the National IPR Policy.

Though the IPR Think Tank has expediently released their first draft of the National IPR policy, there is a lack of information available on the constitution of this IPR Think Tank. There is no data on how the members of this Think Tank were shortlisted and selected or how the Chairperson and Convener of the Think Tank were elected. Further, the suggestions and comments received by the IPR Think Tank before and after publishing the first draft of the policy have not been made publicly available.

In an attempt to obtain more data on the process of the constitution of the Think Tank and it’s working, CIS filed three RTI requests to the Department of Industrial Policy and Promotion date February 2, 2015. A copy of the RTI requests is included below:

RTI Request 1: Information on Constitution of IPR Think Tank

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Information Sought:

Please provide the following information:

Please indicate in detail the process followed by the Department of Industrial Policy and Promotion for the constitution for an IPR Think Tank to draft the National Intellectual Property Rights Policy under Public Notice No. 10/22/2013-IPR-III dated November 13, 2014.
If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, emails, opinions, advices, press releases, circulars, orders, etc. in which the constitution of the aforementioned IPR Think Tank was decided.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, emails, opinions, advices, press releases, circulars, orders etc. for all such meetings held.
If a directive or directives were received by Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, please provide a copy of such a directive received by the Department of Industrial Policy and Promotion from any Government authority, to constitute such a Think Tank.
Please indicate in detail the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion or any other body that was responsible for the same.

In case the information is held by or related to another public authority, the application or such part of it as may be appropriate may be transferred to that other public authority under intimation to the undersigned as per Section 6(3) of RTI Act.

Proof of payment of application fee:

An Indian Postal Order for the amount of Rs.10 dated 2/2/2015 favouring the Public Information Officer, Department of Industrial Policy and Promotion is enclosed as proof of payment of application fee.

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

RTI Request 2: Working of IPR Think Tank while drafting National IPR policy

To,
Ms. Chandni Raina
Central Public Information Officer
Department of Industrial Policy and Promotion (IPR I, II, III, IV, V and VI Sections)
Room No.260
Udyog Bhawan, New Delhi

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Information Sought:

Please provide the following information:

Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10/22/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated December 19, 2014.
If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, suggestions etc. related to the drafting of such National IPR Policy by the IPR Think Tank chaired by Justice Prabha Sridevan.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders suggestions etc. for all such meetings held.
Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the Department of Industrial Policy and Promotion issued Public Notice No. 10/22/2013-IPR-III dated November 13, 2014 asking for suggestions and comments on or before November 30, 2014.

Proof of payment of application fee:

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

RTI Request 3: Request for suggestions and feedback received by DIPP on the first draft of the National IPR Policy

To,
Ms. Chandni Raina
Central Public Information Officer
Department of Industrial Policy and Promotion (IPR I, II, III, IV, V and VI Sections)
Room No.260
Udyog Bhawan, New Delhi

Dear Sir/Ma’am,

Subject: Request for Information under Right to Information Act 2005.

Please provide the following information:

Please indicate all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.

Proof of payment of application fee:

I hereby declare that I am a citizen of India. I request you to ensure that the information is furnished before the expiry of the 30 day period after you have received the application.

Details of Applicant:

Ms. Nehaa Chaudhari
Centre for Internet and Society
G-15, Hauz Khas
New Delhi – 110016

Date: 2/2/2015

(Many thanks to CIS intern Protyush Choudhury for his assistance with this.)

For more details visit https://cis-india.org/a2k/blogs/rti-requests-dipp-details-on-constitution-and-working-of-ipr-think-tank

National IPR Policy Series : India's National IPR Policy - What Would WIPO Think?

nehaa — 2015-07-02T17:47:58Z

As part of the National IPR Policy Series, CIS is evaluating how India's National IPR Policy framework and process holds up to WIPO's suggestions. In this note, Varun Baliga and Nehaa Chaudhari examine in particular, the functioning of the IPR Think Tank and the first draft of the National Policy in light of the WIPO framework and the principles it encapsulates.

This note is a brief overview of the approach set out by the World Intellectual Property Organization ("WIPO") for the development of National IPR Strategies by various countries. This note also compares WIPO's approach to the approach adopted by the IPR Think Tank ("Think Tank") in the formulation of India's National IPR Policy This note is only an academic exercise and is not to be construed as a recommendation of the procedure set out by WIPO for the development of National IPR Policies/Strategies.

An Overview of WIPO's Approach

WIPO's suggested model of a National IPR Policy operates at three levels - The Process, Baseline Questionnaire and Benchmarking Indicators. [1] On process, WIPO suggests an 8-step procedure in developing a National IP Strategy that lays clear emphasis on both continuous consultation and methodological rigour in data collection. The initial 'Assessment Mission' is aimed at preparing the ground for the formulation of the policy, and includes meetings with stakeholders so as to involve interested entities from the very beginning. [2] Given that an IPR policy is necessarily a political exercise, WIPO recommends that the mission be used to secure the political capital and commitment that would be necessary to see the exercise through. Then, a 'project (national) team' is constituted for an IP audit and develop an understanding of the economic, social and political infrastructure as context for the formulation of the policy. It is also stated that, in most instances, the team will include an international consultant. This is further complemented by 'Desk Research' and 'Data Collection' using the 'Baseline Survey Questionnaire', an integrated data collection tool developed by WIPO. The desk research is an assessment of the existing IP policies coupled with the country's broader goals - developmental, economic and social, so as to conceptualize a policy that is in conformity with the goals.

The data collection through the Baseline Survey Questionnaire is meant to complement the IP audit to understand the "weaknesses, strengths and potential" of "the current IP situation in the country". This audit and data collection drive is then buttressed with 'National Consultations' to validate the data and conclusions reached thus far. WIPO is unambiguous that the aim of these consultations is to enable a wide range of parties to exercise meaningful ownership and agency over the process of conceptualizing a national IPR policy. With the inputs received from the process so far, WIPO recommends that the drafting of the strategy commence on the basis of the "suggestions, opinions and recommendations received during the national consultation process". The drafting should operate at the level of each sector and the country as a whole. This is followed by a 'second round of stakeholder consultations'. These serve a dual purpose: to validate the findings of the first draft and to verify whether the first round of inputs are reflected in the draft itself. Finally, an 'implementation framework' including "implementation structures, a resource mobilization strategy, and monitoring and evaluation mechanisms".

Assessing the First Draft of India's National IPR Policy:

Now, we look at the National IPR Policy in India in light of the WIPO framework outlined above. First we look at the Assessment Mission or process followed prior to the announcement of any IPR policy. Then, we look at what assessment was undertaken of the existing IP laws in the country. Finally, the stakeholders meetings conducted so far are analysed in comparison to the purpose of such consultations that WIPO envisages.

Assessment Mission: There are no reports of an initial meeting having been held to explain the scope and methodology of the process. However, the IPR Think Tank invited comments before the release of the draft national policy in order to seek suggestions on the tentative policy. It should be noted that these comments have not been published.
Assessment of existing IP framework: The overview of the existing IP system in the draft policy covers just the various IP legislations and the relevant government departments. It then proceeds to underscore elements in Indian law that enhance and incentivize stricter standards for IP protection. For example, it illustrated the future challenge in copyright law as being enforcement on digital platforms. It identifies a need for concerted action to increase patent filings by Indians as over "75% of patent filings are by foreign entities". Further, even when it mentions India's ratification of the 2013 Marrakesh Treaty ensuring access to copyrighted works for persons with visual impairment, it is in the context of further reinforcement of copyright.Therefore, it is clear that the perspective of the draft policy towards India's existing framework downplays provisions ensuring access and protecting the public interest and focusses on more expansive IP protection, narrower exceptions and an overall priority for IP rights over the public interest in accessing knowledge. The purpose of the IP audit and desk research, "to obtain a clear picture of the current IP situation…, its weaknesses, strengths and potential.", has not been done justice by this audit weighted in favour of rightsholders. Finally, the Baseline Survey Questionnaire -an integrated tool for extensive data collection - has no mention in the draft policy. There is no indication that it has been utilized for the purpose of data collection, if any.
On stakeholder meetings: The Draft National IP Policy was released on 24 December 2014. A DIPP Press Release called for comments and suggestions to the First Draft to be sent in by January 30^th, 2015.[3] The first set of stakeholder meetings were only held on February 5^th and 6^th, 2015.[4] This is at odds with what the WIPO recommends. The very first step in the WIPO framework is the 'Assessment Mission' which involves meetings with stakeholders that explains the scope and methodology of the process, presumably to elicit views. There is no publicly available information that suggests that this has taken place. Second, the national consultation precedes the drafting of the strategy with the explicit goal of validating the IP audit findings and eliciting views on the drafting of the strategy. This is not intended to be a merely formalistic exercise but meaningful involvement of stakeholders in the whole process of conceptualizing a national IPR policy. Now, the DIPP has solicited comments prior to the publication of the first draft. However, mere solicitation of comments without meaningful consultation is a mere shadow of the objective of the WIPO recommendation of national consultations - "..to actively participate in the validation of the IP audit findings and the formulation of the National IP Strategy..to enhance a wide a range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy." Therefore, the principled objective of the consultation process as outlined by WIPO - enabling stakeholders to exercise a sense of agency over the policy document and drafting process - was severely undermined. Furthermore, WIPO suggests that the drafting of the policy should be based on the findings and suggestions submitted by the stakeholders. Given that comments have been solicited before the policy was drafted, it is incumbent upon the Think Tank to make comments submitted public. [5]

The following table summarizes the comparison in the WIPO approach to that of the IPR Think Tank. Apart from the procedure outlined thus far, the table touches upon other points of comparison that are sure to inform the continued functioning of the Think Tank in the road towards a National IPR Policy.

WIPO Suggestion	India's National IP Policy Framework - Comparison
WIPO has also suggested a number of justifications that may be advanced for the development of a national IP strategy. [6] These justifications will help in grounding the policy in a clear, lucid set of objectives. These are: Need to consolidate sectoral policies National long-term development agenda Benchmarking and best practices International trade obligations Strengthening the national IP office	India's Draft National IP Policy provides for the following objectives:[7] Create awareness of the economic, social and cultural benefits of IP (IP Awareness and Promotion) Stimulate the creation and growth of IP (Creation of IP) Strong and effective laws that protect IP rights in a manner consistent with national priorities and intl obligations and that balance the interests of the rights owners and the public (Legal and Legislative Framework) Strengthen IP administration and management of IP rights (IP Administration and Management) Augment Commercialization of IP rights; valuation, licensing and technology transfer (Commercialization of IP) Strengthen enforcement and adjudicatory mechanisms to protect and combat against IP rights violations ( Enforcement and Adjudication) Human Capital Development in IP
The second prong of WIPO's suggestions is devoted entirely to the Baseline Survey Questionnaire. There are seven clusters identified: IP Administration and Management Generation of IP by universities, research organizations, business, industry, SMEs and individuals Commercialization of IP and technology transfer by universities, research organization, business, industry, SMEs and individuals Copyright and copyright industries Plan breeders; rights (plant variety protection) Enforcement of IP rights IP and public policy	While there are elements of these clusters in the draft policy, there is no mention of them in the context of the method of a Baseline Survey Questionnaire. This means that the data collection was not undertaken in compliance with WIPO's recommendations and means that there was either no data collected or the results are undermined.
Finally, the WIPO framework places great emphasis on the implementation of the policy.[8] It has elements of this in all three prongs. It requires the policy to have an effective framework for its implementation that includes resource mobilization and monitoring and evaluation mechanisms.[9]	The issue of implementation is covered by the draft policy at two levels: 1. Implementation of IP rights - This includes a) Placing the burden on individuals to protect their IP rights as IP is an "essentially private rights [sic]". [10] The state merely plays the role of the facilitator for protection. b) Enacting rules and setting up institutions. Examples include the Intellectual Property Rights (Imported Goods) Enforcement Rules 2007 framed to implement border control measures as well as the Copyright Enforcement Advisory Council. [11] Further, strengthening enforcement mechanisms includes the establishment of a centralized 'Multi-Agency Task Force' for coordination between the raft of agencies that India has. [12] c) Facilitate IP dispute resolution through the designation of a specialized patent bench in select High Courts. It also calls for the creation of regional benches of the IPAB in all five regions where IPOs are located as well as an increase in the powers of the IPAB. [13] 2. Implementation of the Policy itself -[14] a) It suggests that the integration of the policy with stated government programmes such as 'Make in India' and 'Digital India' would enable its implementation. b) The establishment of IP Promotion and Development Council (IPPDC) which will open IP Promotion and Development Units (IPPDU) for promoting IP awareness, protection and utlilization. c) IP support to MSMEs. d) Technology Acquisition and Development Fund under the Manufacturing Policy for licensing or procuring patented technologies. e) Manufacturing units will be encouraged to set up IP cells in their own units and make IP a part of their corporate strategy. f) Integrate with government initiatives.

Conclusion: Testing Times Ahead

The IPR Think Tank has not been consistent with WIPO's recommendations on drafting a National IPR Policy. In terms of data analysis, the Think Tank has not displayed an iota of the analytical rigour and data collection that WIPO believes is necessary to understand both the state of IP in the country and devise effective means of responding to lacunae. Further, while consultations have been held with civil society, these have been lacking in two respects. They have not followed the timelines prescribed by WIPO insofar as consultations have happened only after the release of the first draft. As a result, the Think Tank has failed in actualizing the raison d'etre behind national consultations - "enhance a wide range of IP stakeholders' ownership of the process of developing and eventually implementing a national IP strategy". Finally, this piece is not an endorsement of WIPO or its recommendations but a mere acknowledgement of the role WIPO has played in this exercise. In the final analysis, India has fallen short of adhering to the principles reflected in the WIPO framework.

[1] http://www.wipo.int/ipstrategies/en/methodology/

[2] The stakeholders that WIPO mentions are "..inter alia, the national IP office(s), relevant government departments, universities and research institutes, SMEs, inventors, creators, legal practitioners, non-governmental organizations (NGOs)".

[3] http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf

[4] http://spicyip.com/2015/01/examining-the-draft-national-ip-policy-stakeholder-meetings-to-be-held.html

[5] http://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

[6] Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 11.

[7] National IPR Policy (First Draft), p. 6-23.

[8] Methodology for the Development of National Intellectual Property Strategies, Tool 1: The Process, p. 9.

[9] Ibid .

[10] Ibid , p. 20.

[11] Ibid , p. 20.

[12] Ibid , p. 21.

[13] Ibid , p. 22.

[14] Ibid , p. 25-26.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-indias-national-ipr-policy-what-would-wipo-think

National IPR Policy Series : Follow-up RTI to DIPP on the IPR Think Tank

nehaa — 2015-06-25T00:43:34Z

This RTI was prepared by Varun Baliga and Nehaa Chaudhari as a follow-up, based on the responses of the DIPP to our earlier RTI requests (available at http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses)

To,

Ms. Palka Sahni,

Deputy Secretary,

Central Public Information Officer,

IPR-II, IPR-III, IPR-IV, IPR-VI,

Room No. 254,

Udyog Bhawan, Delhi.

Subject: Request for Information under Section 6 of the Right to Information Act, 2005 regarding Information on the Procedure to File a Right to Information Application with the IPR Think Tank

Dear Madam,

1. Full Name of the Applicant: Nehaa Chaudhari

2. Address of the Applicant: Centre for Internet and Society, G-15 Top Floor, Hauz Khas, New Delhi - 110016

Mailing Address : nehaa@cis-india.org

3. Information Required: Context

Please consider this an application for information under Section 6 of the Right to Information Act, 2005. Since the request for this information is inextricable from the context in which it is made, it is previewed with a succinct overview of the facts.

I, as an employee of the Centre for Internet and Society ["CIS"], first filed a Right to Information ["RTI"] application with the Department of Industrial Policy & Promotion ["DIPP"] requesting information on the procedure followed in the appointment of the IPR Think Tank ["Think Tank"]. We received a response from the DIPP detailing the procedure followed. Then, we filed a RTI application with the DIPP requesting information on its functioning, particularly procedure followed and comments received prior to and after the release of the first draft of the National IPR Policy ["Policy"]. [1] In your response dated 26^th February 2015, the DIPP stated that the Think Tank functioned "independently without any interference of this Department (DIPP)". Therefore, apart from information that an "interactive meeting with stakeholders" was conducted while drafting the Policy, the DIPP stated it was not in a position to give any further information. Finally, the DIPP in a separate response dated 26^th February 2015, stated that "suggestions and comments on the draft of on [sic] National IPR Policy have been received by the IPR Think Tank directly". CIS followed this up by filing a RTI application with the Think Tank itself but we have not received a response.

4. Information Required: Details

Therefore, I seek information on the following:

a) The Think Tank is a public authority constituted for the purpose of the RTI Act. Who is the Public Information Officer of the Think Tank for the purpose of filing RTI applications? What are the measures taken by the Think Tank to comply with its obligations under the RTI Act?

b) What is the procedure to be followed in filing an RTI Application with the Think Tank?

c) Given that there is no information on the above, would the appropriate authority to request for information on the functioning of the IPR Think Tank be the DIPP?

5. Proof of Payment of Application Fee:

An Indian Postal Order for the amount of Rs. 10 dated ___________ favouring the Public Information Officer, Department of Industrial Policy & Promotion is enclosed as proof of payment of application fee.

This is to certify that I, Nehaa Chaudhari, am a citizen of India.

Please provide me this information at the address provided earlier in this letter.

Thank you

Yours sincerely

Nehaa Chaudhari

[1] http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-follow-up-rti-to-dipp-on-ipr-think-tank

National IPR Policy Series : Comments on the Proposed Intellectual Property Rights Policy to the Department of Industrial Policy and Promotion

nehaa — 2015-04-12T11:39:16Z

On 13 November, 2014, the Department of Industrial Policy and Promotion had released a Call for Suggestions for India's proposed National IPR Policy. This is the Centre for Internet and Society's (CIS) submission for the same.

Submitted by CIS with inputs from Pranesh Prakash, Director, Nehaa Chaudhari, Programme Officer, Anubha Sinha, Programme Officer and Amulya P., Intern. Click to view the PDF.

I. Preliminary

I.1. This submission presents comments from the Centre for Internet and Society ("CIS")[1] on the proposed National Intellectual Property Rights Policy ("National IPR policy") to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India. ("DIPP").

I.2. CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.

II. Principles

II.1.1. The characterization of intellectual property rights may be two- fold- first, at their core, intellectual property rights, are temporary monopolies granted to inter alia, authors and inventors; and second, they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders. [2] It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those for research, education and access to medicines.

II.1.2. These comments will evaluate the recent developments in the intellectual property regime in India and point out instances for possible reform.

II.1.3. These comments have been divided into five sections, dealing with patents, openness, open access to scholarly works, copyright, and negotiating free trade agreements in that order.

III. Detailed Comments

III.1. Patents

III.1.1. Key Issues Regarding Patents

III.1.1.1. The key issues involving patents in India include compulsory licensing, uncertainty in software patenting, slow pace of examination of patent applications, inter alia.

III.1.1.2. CIS submits that the Indian intellectual property regime contains numerous safeguards to ensure that monopolies of intellectual property are not exercised to the detriment of the public and that the National IPR Policy should continue to reflect these ideals.

III.1.2. Software Patents and Dual Monopoly

III.1.2.1. Presently, software in India may be copyrighted and computer related inventions are patentable. CIS is of the opinion that this results in an ambiguity that could potentially result in a dual monopoly over the same subject matter. This ambiguity around the legality of software patents and the scope of patents on computer related inventions has existed since the Parliament introduced the term "per se" to section 3(k) through the Patent (Amendment) Act, 2002, persisting despite repeated attempts[3] to bring about clarity in the law (the most recent one being the Draft Guidelines on Computer Related Inventions, released in 2013 by the Indian patent office).

III.1.2.2. CIS believes that software is currently adequately protected under copyright, and does not merit patent protection. The software industry in its infancy grew by leaps and bounds in the absence of patents, and imposing twenty year monopolies is stunting the development of software, especially, in an industry where technology changes every two to five years.

III.1.2.3. Therefore, CIS is of the opinion that the National IPR Policy should recognise the danger of software patenting, and encourage the adoption of and development of alternatives to a strict intellectual property regime, for instance, Free/Open Source/Libre Software.

III.1.3. Compulsory Licensing of Patents

III.1.3.1. CIS believes that the current regime allowing for compulsory licensing of patents in India helps achieve a balance between the two concerns of rewarding inventions and making them available to the public during times of need, of the rights of the patent holder with his obligations to ensure availability of products at a reasonable price by allowing third parties who do not own the patent to license the use of the patent during the term of protection.[4] CIS believes that such a balance cannot be arrived at merely by market mechanisms. CIS further believes that achieving such a balance is important for a developing country like India as we have special concerns regarding access to healthcare and access to technologies that will protect our national interest.[5]

III.1.3.2. Therefore CIS submits that the National IPR policy should continue to make positive allowances for government involvement in this space, through the compulsory licensing of patents in certain situations.

III.1.4. Alternative Licensing Mechanisms

III.1.4.1. CIS believes that government participation in the patenting regime ensures that all interests are taken on board and the social costs of patents are kept in mind. CIS is of the opinion that the National IPR policy should be formed after careful consideration of alternative patent licensing mechanisms that could help achieve a balance between the interests of different stakeholders particularly because as a developing economy we have greater needs for access to medicines and technologies to ensure economic development.[6]

III.1.4.2. On patent pools: In the interests of ensuring development of technology and innovation while balancing the social costs of patents, CIS submits that the National IPR Policy should consider alternative licensing mechanisms such as patent pools which present an efficient legal arrangement to the different problems that arise when companies have complementary intellectual property rights and these rights are essential to new technologies being used and employed[7]. Such a licensing could be done with government participation to ensure standard royalty rates and standard agreements.

III.1.4.3. On tailoring patent strengths: Our patent system provides for a one size first all approach to patent terms. CIS believes that the National IPR Policy could suggest the adoption of a more studied approach to differential patent strengths that properly balances out the benefits of the innovation against social costs of patents both in the form of monopoly pricing and threats to subsequent pricing is required to ensure that our patent system is fair equitable and in our national interest.[8]

III.1.4.4. On royalty caps: CIS believes that the National IPR policy could encourage bringing back royalty caps for certain sectors as a means of regulating the market and ensuring that access to technologies is unharmed. CIS believes that this will serve the larger national interest and ensure technological development.[9]

III.2. Openness

III.2.1. Free and Open Source Software

III.2.1.1. Free and Open Source Software ("FOSS") has emerged as a key agent in information technology policy making in India. There has been an increased importance of free and open source software in education, governmental agencies, as recently demonstrated by the Indian Government's decision to shift to open source software, in sync with the Digital India initiative.[10]

III.2.1.2. CIS believes that the IPR policy should encourage free and open software in education, governmental agencies etc. CIS believes that this shift in open source software is necessary to keep our IPR policy in sync with developments in the digital world.

III.3. Open Access to Scholarly Works

III.3.1. Open Access Policies and Scientific and Scholarly Works

III.3.1.1. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society. It has been often argued that restricted access to government funded research is unethical, since scientific research conducted by government agencies is partly, if not entirely, funded by the taxpayers' money.

III.3.1.2. Government Initiatives Towards Open Access

III.3.1.2.1. CIS believes that the steps taken in this regard by the Department of Biotechnology and Department of Science to make scientific research publicly available by developing an open access policy are laudable, especially from the view of increasing access to research undertaken at these institutions.

III.3.1.2.2. There are several other government agencies which have implemented open access policies, namely, the Council of Scientific and Industrial Research, Indian Council of Agricultural Research and Institute of Mathematical Sciences. CIS believes that this is step in the right direction

III.3.1.2.3. Copyright is the key instrument to effect open access policies. CIS believes that the work should be appropriately copyrighted to allow for free and open access to any interested person.

III.4. Copyright

III.4.1. Exceptions for Fair Dealings

III.4.1.1. The 2012, Amendment Act extended fair dealing exceptions in several ways; to sound recordings, videos, to the making of three dimensional works from two dimensional works,[11] to storing of electronic copies at non-commercial public libraries, [12] to rights of commercial rental.[13] While the Act touched upon some of the burning issues with regard to limitations and exceptions to copyright, CIS believes that it did miss out on laying down clear rules for issues like exceptions for educational institutions, libraries and archives which is currently being negotiated at the standing committee of the WIPO as an international instrument,[14] parallel importation of books for non-commercial libraries, and extending the current exceptions for education to distance education and digital education. CIS is of the opinion that while this was a step in the right direction the IPR policy should continue the trend of extending exceptions for fair dealing and should encourage forming general guidelines for fair dealings as it would help achieve goals of education and scientific and cultural progress.

III.4.1.2. CIS believes that it would be beneficial if general guidelines for fair dealing were provided for. These guidelines must not take away from existing fair dealing exceptions under the law, but should act as a framework to understand what constitutes fair dealing. CIS submits that this coupled with support for the International Treaty for Limitations and Exceptions for Libraries and Archives[15] and for International Treaty for Limitations and Exceptions for Educational and Research Institutions [16]would help serve national interest as it would help reduce the freezing effect by reducing the costs of using copyrighted work legitimately and ensure social and cultural progress. CIS submits that the National IPR policy should encourage the international instruments aimed at providing for exceptions and limitations for fair dealings.

III.4.2. Exceptions for Government Produced Works

III.4.2.1. CIS believes that the current exceptions for use of government produced works are far too limited and taxpayers must be free to use the works that they have paid for.[17] CIS submits that the National IPR policy should encourage the broadening of exceptions with regard to government produced works.

III.4.3. Compulsory Licensing

III.4.3.1. The Act allowed for compulsory licensing of foreign works[18] and put in place statutory licenses for broadcasters[19] CIS believes that this was a positive step that will encourage cultural and scientific education in India. CIS submits that compulsory licenses for copyrighted works help achieve goals of education, of scientific and cultural progress. CIS submits that the National IPR policy should encourage compulsory licensing of copyrighted works in certain situations for the promotion of access to knowledge and information.

III.4.4. Protection of Authors/ Performers Rights

III.4.4.1. The Act allowed for protection of author's rights regarding storing of their work in electronic medium[20] and for protection of rights of performers both commercial [21] and moral.[22] CIS believes that while this is in itself a positive step, there is need to ensure that such moral rights are not abused by authors or rights holders to stop discourse or to stop fair use and adequate measures to ensure the same must be put in place to avoid excessive intellectual property rights. CIS submits that the National IPR policy should discuss limitations to moral rights of authors and performers to make room for fair dealings.

III.4.5. Users Rights Regarding Cover Versions Of Songs

III.4.5.1. The Act allows for users to make cover versions of a sound recording required provided they comply with rules regarding notices and royalties. CIS believes that this is potentially problematic as even recording companies have acknowledged that the non-commercial cover versions help in increasing the popularity of the original and therefore help in the growth of the film and music industry and this new law could possibly stop individuals from making such cover versions due to fear of violating the law and therefore harm the film and music industry. Therefore, CIS believes that the National IPR policy should consider measures to provide more rights to the users in order to ensure development of the music and film industry; CIS believes that this is an instance of excessive intellectual property and is harmful to all stakeholders involved.

III.4.6. Relinquishment of Copyright and Creative Commons

III.4.6.1. The amended Section 21 of the Act now only requires a simply public notice from the author to relinquish his copyright as opposed to an application to the registrar of copyrights. CIS believes that this is a positive step as now the requirement under the rules can easily be satisfied by using a Creative Commons Zero license.[23] CIS submits that the National IPR policy should undertake similar steps to encourage the usage of creative commons licenses and thereby facilitate access to knowledge.

III.4.7. Term of Protection of Copyrights

III.4.7.1. The Act provided for an extension of term of copyright for photographs to almost double its earlier duration, [24] CIS believes that this is possibly harmful as it could lead to copyrighted works not entering the public domain for unnecessarily long periods of time and thereby harm progress in science and culture. In this regard CIS further believes that since the term of protections provided under our copyright law for all works extends beyond our international obligations, The National IPR policy should try to ensure that scientific and cultural development are not hindered by excessive terms of protection that go beyond the minimum owed under our international obligations.

III.4.8. Protection Of Rights Management Information

III.4.8.1. The amendment Act provided for protection of rights management information (RMI) and provided for both criminal and civil remedies in instances of unauthorised alteration or removal of RMIs.[25] CIS believes that these provisions are unnecessary as India does not have obligations to do so under international treaties and there is no actual demand for these rights as it is yet unclear how these rights help authors or performers. CIS submits that these provisions increase the costs for users who want to legitimately break these digital locks to obtain accessible formats for the information and that so long as the rights holder does not have an obligation to ensure that their works are accessible, provisions such as these cripple creativity and stunt industry growth.[26] Therefore CIS submits that the National IPR policy should help achieve a balance of concerns of users who want to legitimately break these digital locks on the one hand and the need to prevent digital piracy on the other.

III.4.9. Intermediary Liability

III.4.9.1. CIS submits that due to the IT (Intermediary Guidelines) Rules, 2011, there is a freezing effect on free speech on the internet as these rules are procedurally flawed and go against the principles of natural justice.[27] CIS believes that such a restraint on free speech harms creativity and innovation, to this end CIS submits that the National IPR policy should ensure free speech is not unfairly hindered by rules regarding copyright infringement.

III.4.10. Criminalization of Copyright Infringement

III.4.10.1. Individual non-commercial infringement of copyright is a crime under Section 63A of the Copyright Act [28] and is punishable by imprisonment which can extend to three years or a fine that can extend up to rs. 2,00,000/- CIS believes that this is an instance of excessive intellectual property protection; CIS is of the opinion that the civil remedies available for copyright enforcement are enough for copyright protection and that the criminal remedies under the Copyright Act, 1957 function only to ensure that there are obstacles to free and legitimate use of copyrighted material. CIS believes that such provisions are harmful for innovation within India and impose unnecessary costs on users.[29] Therefore CIS believes the National IPR policy should reconsider the question of criminalisation of copyright infringement and should ensure that any penal consequences are proportional to the act committed.

III.4.11. Concluding Remarks on Copyrights

III.4.11.1. In conclusion while India has what some call the most balanced approach to intellectual property law in the world today, [30] one that balances both the interests of the author and the copyrights holder as well as the end user and the overall public interest, there is room for improvement as far as adapting to the internet age is concerned, especially considering the easy appeal of forming an intellectual property regime that is excessive and in the end harms all the concerned stakeholders.

III.5. Free Trade Agreements (FTAs)

III.5.1. Need for Transparency Regarding FTA Negotiations

III.5.1.1. India has lately been negotiating Free Trade Agreements with several developed nations, these are closed door negotiations and the texts of the meetings are not available to the public. CIS believes that these texts should be made available to the public to ensure transparency and to ensure all stakeholders know of any developments, CIS believes that public knowledge of the positions of various actors in any negotiation process will help ensure that such positions are taken keeping in mind the interests of all stakeholders and will ensure that any outcome from such negotiations will be in national interest.[31] CIS therefore submits that the National IPR policy should encourage transparency with regards to negotiations for free trade agreements.

III.5.2. FTAs with Developed Nations and TRIPS Plus Standards

III.5.2.1. Leaked drafts of the European Union- India FTA negotiations have revealed that provisions on intellectual property protection were extensive and affected the pharmaceuticals sector, these provisions, if agreed upon, could go well beyond India's obligations under the WTO and under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) Agreement. In fact, developed countries including the US [32] and EU[33] have tried time again and again to encourage developing countries to adopt standards of IP protection in bilateral or regional trade investment agreements that go beyond TRIPS [34]

India has repeatedly indicated to the WTO that it was not willing to commit to an agreement beyond TRIPS.[35] These commitments could include data exclusivity protection measures, ever-greening of patents etc. [36]

CIS believes that despite the growing pressure from developed nations regarding various FTAs,[37] India must hold its ground and ensure that concerns about India's national interest and the difference in the development levels of the European Union or other developed countries and developing countries like India are kept in mind while negotiating obligations under international agreements. Therefore CIS believes that the National IPR policy should ensure that TRIPS plus standards are not acceptable to India as they will undermine our national interest and hinder development at the national level.[38]

III.5.3. Shift from Multilateral Forums to Bilateral FTA negotiations

III.5.3.1. CIS believes that the trend of shift in negotiations from a multilateral forum such as the WIPO or the WTO to a bilateral or a regional forum [39] is harmful as certain flexibilities are built into the TRIPS and therefore multilateral negotiations based on TRIPS will help pursue India's interests better. And therefore when possible, India must prefer negotiations at multilateral forums as opposed to bilateral or regional treaties, CIS believes that the National IPR policy should reflect the same preferences. [40]

IV. Concluding observations

IV.1. On patents, CIS submits that the National IPR policy reconsider software patenting, that encourage open source software, continue and strengthen that compulsory licensing and consider and study alternative licensing mechanisms as means to achieve a balancing of the interests of different stakeholders.

IV.2. On openness, CIS submits that the IPR policy should encourage free and open software in education, governmental agencies etc.

IV.3. On open access to scholarly work, CIS commends the work done by government agencies so far and submits that the IPR policy should encourage open access to scholarly works.

IV.4. On copyright, CIS submits that the IPR policy work toward strengthening and extending fair dealings provisions, supporting international instruments that strengthen fair dealing, encourage compulsory licensing. CIS submits that the IPR policy should work towards ensuring that protections for copyright such as terms of protection, intermediary liability, protection of rights management information, criminalisation of copyright infringement etc., do not harm other legitimate interests of users or unnecessarily restrict free speech.

IV.5. On FTAs, CIS submits that the IPR policy encourage transparency with regard to FTA negotiations, ensure that TRIPS plus standards are not accepted as they would harm national interest and to encourage multilateral negotiations over bilateral free trade agreements.

IV.6. CIS welcomes the initiative of the DIPP to form a National IPR policy, CIS believes that it is essential that such an IPR policy avoid excessive intellectual property rights protection and is formed keeping in mind goals of development and national interest.

IV.7. CIS is thankful to the DIPP for the opportunity to provide comments on the National IPR policy and would be privileged to work with the government on this and other matters in these areas.

[1] www.cis-india.org (Last Accessed: 30/11/14).

[2] The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf (Last Accessed:29/11/14)

[3] Shashank Singh, Guidelines for Examination of Computer Related Inventions: Mapping the Stakeholders' Response, Available at: http://cis-india.org/a2k/blogs/guidelines-for-examination-of-computer-related-inventions (Last Accessed: 30/11/14).

[4] N.S. Gopalakrishnan, Compulsory License Under Indian Patent Law, MPI Studies on Intellectual Property and Competition Law, Vol.22, 2015, pp.11-42.

[5] Raadhika Gupta, Compulsory Licensing under TRIPS: How Far it Addresses Public Health Concerns in Developing Nations, Journal of Intellectual Property Rights, Vol.15, September 2010, pp.357-363. Available at: http://nopr.niscair.res.in/bitstream/123456789/10211/1/JIPR%2015(5)%20357-363.pdf (Last Accessed: 30/11/14).

[6] Id.

[7] Nehaa Chaudhari, Pervasive Technologies: Patent Pools, Available at: http://cis-india.org/a2k/blogs/patent-pools (Last Accessed: 30/11/14).

[8] One of the measures along which we could have differential patent strengths could be the time for the invention to reach the market, see, Benjamin N Roin, The case for Tailoring Patent Awards Based on the Time-to-Market of Inventions, UCLA Law Review, Vol.61, 2013, Available at: http://dash.harvard.edu/bitstream/handle/1/10612849/Case%20for%20Tailoring%20Patent%20Awards%203-15-13.pdf?sequence=1 (Last Accessed: 30/11/14).

[9] Sunil Abraham, Patented Games, Available at: http://cis-india.org/a2k/patented-games (Last Accessed: 30/11/14.

[10] See Nabi Hasan, Issues and Challenges in Open Source Software Environment with Special Reference to India, Available at: http://crl.du.ac.in/ical09/papers/index_files/ical-43_144_317_1_RV.pdf (Last Accessed: 30/11/14).

[11] Section 52(1), the Copyright (Amendment) Act, 2012.

[12] Section 52(1) (n), the Copyright (Amendment) Act, 2012.

[13] Zakir Thomas, Overview of Changes to the Indian Copyright Law, Journal of Intellectual Property Rights, Vo.17, July 2012, pp.324-334.

[14] See conclusions of the chair at the 23^rd session of the Standing Committee on Copyright and Related Rights at the WIPO, Available at: http://www.eifl.net/wipo-sccr23-conclusions (Last Accessed: 30/11/14).

[15] For draft proposal of the treaty see IFLA, Treaty proposal on Limitations and Exceptions for Libraries and Archives, Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_27/sccr_27_2_rev.pdf (Last Accessed: 30/11/14).

[16] See The Draft WIPO Treaty on Exceptions and Limitations for the Persons with Disabilities, Educational and Research Institutions, Libraries and Archives, proposal by the African Group (document SCCR/22/12).Available at: http://www.wipo.int/edocs/mdocs/copyright/en/sccr_22/sccr_22_12.pdf (Last Accessed: 30/11/14).

[17] See Section 52(q) of the Copyright Act, 1957.

[18] Section 31 and 31A, the Copyright (Amendment) Act, 2012.

[19] Section 31D, the Copyright (Amendment) Act, 2012.

[20] Section 14(1), the Copyright (Amendment) Act, 2012.

[21] Id.

[22] Section 38B, the Copyright (Amendment) Act, 2012.

[23] CIS, Comments on Draft Copyright Rules, 2012, available at: http://cis-india.org/a2k/feedback-to-draft-copyright-rules-2012 (Last Accessed: 29/11/14).

[24] See Pranesh Prakash, Analysis of the Copyright (Amendment) Bill, 2012, Available at: http://cis-india.org/a2k/blogs/analysis-copyright-amendment-bill-2012

[25] Section 65B, The Copyright (Amendment) Act, 2012.

[26] Pranesh Prakash, Technological Protection Measures in the Copyright (Amendment) Bill, 2010, Available at: http://cis-india.org/a2k/blogs/tpm-copyright-amendment (Last Accessed: 29/11/14).

[27] Rishabh Dara, Intermediary Liability in India: Chilling Effects on Free Expression on the Internet, 2011, Available at: http://cis-india.org/internet-governance/intermediary-liability-in-india.pdf (Last Accessed: 30/11/14).

[28] Section 63A, Copyright Act 1957.

[29] See Right to Share: Principles on Freedom of Expression and Copyright in the Digital Age, Article19, Available at: http://www.article19.org/resources.php/resource/3716/en/ (Last Accessed: 29/11/14).

[30] V Premanath, S Sivaram, Intellectual Property Systems in India: Progressing towards Greater Maturity and Diversity, Available at: http://iimahd.ernet.in/users/anilg/files/Articles/Emerging%20IPR%20Consciousness,%20vikalpa.pdf (Last Accessed: 29/11/14).

[31] Jan Wouters, Idesbald Goddeeries, Bregt Natens etc, Some Critical Issues in the EU -India Free Trade Agreement Negotiation, Working Paper No.102,KU Leuven Centre for Global Governance Studies, https://ghum.kuleuven.be/ggs/publications/working_papers/new_series/wp101-110/wp102-wouters-goddeeris-natens.pdf , February 2013, p.16.

Monika Ermert, Lack of Transparency in EU-India FTA Talks Spurs Requests for Halt, ip-watch, Available at: http://www.ip-watch.org/2010/09/03/lack-of-transparency-in-eu-india-fta-talks-spurs-requests-for-halt/ .

[32] The current policy of the US Trade Representative is seen to be reflected in the 2002 Trade Act available here: http://www.gpo.gov/fdsys/pkg/BILLS-107hr3009enr/pdf/BILLS-107hr3009enr.pdf See HR3009.

[33] The current trade strategy for the EU can be found here http://trade.ec.europa.eu/doclib/docs/2014/july/tradoc_152643.pdf .

[34] Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy, Available at: http://www.iprcommission.org/papers/pdfs/final_report/ciprfullfinal.pdf , p.174.

[35] C. Correa, 'Negotiation of a Free Trade Agreement European Union-India: Will India Accept Trips-Plus

Protection?', (2009) Oxfam Deutschland and Evangelischer Entwicklungsdienst Analysis,

http://www.oxfam.de/files/20090609_negotiationofafreetradeaggrementeuindia_218kb.pdf .

[36] S. Sharma, 'the EU-India FTA: Critical Considerations in a Time of Crisis', (2009) Centad Working Paper.

[37] Asit Ranjan Mishra, India to negotiate FTAs with emerging market nations, Livemint, Available at: http://www.livemint.com/Politics/RlJNxUXovjNVaRzQt9KXmO/India-to-negotiate-FTAs-with-emerging-market-nations.html .

[38] Sisule F Musungu and Graham Dutfield, Commission Multilateral Agreements and a TRIPS -Plus Word: the World Intellectual Property Organisation (WIPO), Available at: http://www.iprsonline.org/ictsd/docs/WIPO_Musungu_Dutfield.pdf.

[39] For Trends, See Beginda Pakpahan, Deadlock in the WTO: What is next? Available at: http://www.wto.org/english/forums_e/public_forum12_e/art_pf12_e/art19.htm .

[40] See Amit Sengupta, Do not trade away our lives, Vo.9, No.2, Indian Journal of Medical Ethics, 2012, Available at: http://www.issuesinmedicalethics.org/index.php/ijme/article/view/88/1047 .

For more details visit https://cis-india.org/a2k/blogs/comments-on-proposed-ip-rights-policy-to-dipp

National IPR Policy Series : CIS Comments to the First Draft of the National IP Policy

nehaa — 2015-02-09T00:59:10Z

The Department of Industrial Policy and Promotion, Government of India invited comments on the First Draft of India's National IPR Policy. The Centre for Internet & Society (CIS) made this submission. The comments were prepared by Nehaa Chaudhari, Pranesh Prakash and Anubha Sinha. We also thank our intern, Varnika Chawla for her assistance.

The press release from the Department of Industrial Policy and Promotion in which it invited comments is here. The First Draft of India's National IPR Policy is here. Click to view the PDF. Note: In some places there might be references to paragraph/page numbers (of the document) and for that readers should refer to the PDF since the formatting in HTML is slightly different.

Preliminary

This submission presents comments from the Centre for Internet and Society, India ("CIS")¹ on the proposed National Intellectual Property Rights Policy ("the Policy") to the Department of Industrial Policy and Promotion, Ministry of Commerce and Industry, Government of India.("DIPP").
This submission is made in response to the requests and suggestions from stakeholders sought by the DIPP in its Press Release. ²
CIS commends the DIPP for this initiative, and appreciates the opportunity to provide comments on the National IPR Policy. CIS' comments are as stated hereafter.

About CIS

CIS³ is a non-profit research organization that works on among others, issues of intellectual property law reform,⁴ openness,⁵ privacy, freedom of speech and expression and internet governance,⁶ accessibility for persons with disabilities,⁷ and engages in academic research on digital humanities⁸ and digital natives. ⁹
CIS is an accredited Observer¹⁰ at the World Intellectual Property Organization ("WIPO"), enabling us to attend formal meetings of member states and participate in debates and consultations on various issues. CIS has been attending meetings of the WIPO Standing Committee on Copyright and Related Rights since 2010. At these sessions, CIS has actively participated through various interventions, emphasizing the adoption of an approach balancing the rights holders' perspective with public interest. CIS has also attended sessions of some other committees at WIPO, made interventions wherever applicable, produced reports of these meetings, and profiled the work of other non-governmental organizations engaging in similar work on intellectual property law and policy reform. ¹¹
CIS undertakes research in other fields of intellectual property, in addition to WIPO-related work. Over the past five years since our inception, some of our key research has included analyses of intellectual property issues of the proposed Indo-EU Free Trade Agreement¹² and other free trade agreements,¹³ the US Special 301 Report,¹⁴ the (2010) amendment to the Copyright Act, 1957,¹⁵ the (draft) Science, Technology and Innovation Policy,¹⁶ parallel importation, ¹⁷ the (draft) Patent Manual and the subsequent Guidelines for Computer Related Inventions,¹⁸ royalty caps,¹⁹ copyright exceptions and limitations for education, ²⁰ and the preparation of the India Report for the Consumers International IP Watch List.²¹

Structure of this Submission

This submission is divided into 4 parts. The first part gives a preliminary overview of the suggestions submitted by CIS. The second part highlights the principles that should be followed in the formulation of a National IPR Policy, the third part provides detailed comments and recommendations for the National IPR Policy and the last part provides certain concluding remarks.

Principles

The characterization of intellectual property rights may be two-fold - first, at their core, intellectual property rights, are temporary monopolies granted to inter alia, authors and inventors; and second, they are a tool to ensure innovation, social, scientific and cultural progress and further access to knowledge. This dual nature and purpose of intellectual property protection is particularly critical in developing economies such as India. Excessive intellectual property protection could result in stunted innovation and negatively impact various stakeholders.²² It is therefore our submission that the development of the IPR Policy be informed by broader principles of fairness and equity, balancing intellectual property protections with limitations and exceptions/user rights such as those that promote freedom of expression, research, education and access to medicines, cultural rights, data mining, use of governmental works, etc.

Detailed Comments

This section will detail CIS' submissions on various aspects of the National IPR Policy. Submissions have been categorised thematically.

On the Vision

It is submitted that the Vision of the National IPR Policy ("Vision") in encouraging growth for the 'benefit of all' and in accepting the philosophy that knowledge owned 'is transformed into knowledge shared' ²³ is commendable.However, the vision is at odds with the methods proposed in the document. True advancement in science and technology, arts and culture, protection of traditional knowledge as well as bio-diverse resources and the true sharing of knowledge would be impaired by a system centred only around the development and maximization of intellectual property.
An attractive social culture would be one where citizens had access to a cornucopia of ideas and information, thereby fostering an environment of cultural diversity, which would enable individuals to shape themselves. Indeed, this is not just an ideal, but is a right recognized under Article 27(1) of the Universal Declaration of Human Rights, and Article 15 of the .²⁴ However, an IP maximization approach, which the draft stategy seems to embrace, hinders the growth of such a culture, creating a protectionist environment while preventing access to various resources which may be of use for further innovations.
The question of whether IP rights given to innovators are the most effective tools to promote innovation in society has been widely discussed in economics, politics and law, especially in the last four decades.²⁵ Traditional arguments in favour of temporary monopolies incentivising innovation have been effectively questioned as creating monopolies on innovation, contributing to increasing prices and a distorted allocation of resources, inefficiency and a net loss of welfare. ²⁶ It has also been effectively established that most innovation is incremental and cumulative, necessitating the access to pre-existing data and works.²⁷ It would be welcome if the huge amount of academic literature on these matter were taken into consideration by the expert group. While intellectual property rights are not per se antithetical to innovation, creativity, and cultural development, an IP-maximalist policy and law has been shown to harm those very objectives.
CIS therefore submits that the vision of the policy also reflect the commitment to the creation of a holistic and balanced framework of intellectual property rights in the nation with the recognition that an intellectual property-centric system would not necessarily be the best means of promoting creativity, innovation and access, the promotion of which are part of the stated desire of the policy.
Further, we believe that the principles of freedom of expression and of due process of law, both of which are constitutionally-recognized rights in India, should be recognized in the vision as principles that any intellectual property rights regime should respectively seek to promote and respect.

On the Mission

CIS appreciates the commitment to establish a balanced, dynamic and vibrant intellectual property system in India.²⁸ We recommend that the mission of the policy also include a commitment tofoster access to knowledge as well as the commitment to creating asystem of intellectual property rights which serve the public interest by strengthening limitations and exceptions to IP regimes, which are aimed to provide a public interest oriented counterbalance to the monopoly rights granted under IPR laws.
We believe that preventing unreasonable and disproportionate remedies to IPR law violations are an important part of ensuring that these laws serve the public interest rather than subvert them for purely private interests. This important principle ought to find reflection in the policy's mission statement.
It is suggested that in addition to public health, food security and the environment²⁹, other areas of socio-economic and cultural importance, including inter alia,foundational scientific research, education, disability rights, and access to knowledge, be added as additional areas that warrant special protection , in the mission statement.
It is submitted that these commitments are essential to the creation and working of a balanced intellectual property framework that the Policy seeks to achieve.

On Objective 1: IP Awareness and Promotion

The first objective of the Policy lays out a detailed action plan for creating awareness about intellectual property as well as for the promotion of intellectual property. The underlying rationale for this endeavour has been identified on various levels - that there are economic, social and cultural benefits of intellectual property;³⁰ that intellectual property protection accelerates development, promotes entrepreneurship as well as increases competitiveness; ³¹ and that the global regime is one of strongly protected intellectual property rights.³²
It is submitted that the identification of this underlying rationale is not backed by sufficient evidence. These justifications, in their pursuit of a favourable intellectual property regime do not present a balanced picture of all the facts.
Current existing empirical research does not show an unambiguous nexus between the granting of IP rights and an increase in innovation and productivity, as innovation and productivity cannot not identified with the number of patents awarded. ³³ This can be seen in the US economy, where despite an enormous increase in the number of patents, there has been no dramatic acceleration in technological progress. ³⁴ In fact, studies prove the contrary to be true. In the United States, patenting increased drastically over the last few decades, quadrupling from 59,715 patents being issued in 1983, to 244,341 in 2010. However, according to the Bureau of Labour Statistics, annual growth in the total factor productivity reduced from 1.2% in 1970-79 to below 1% in 2000-09, ³⁵ whereas the annual expenditure on research and development saw hardly any change, oscillating in a band of 2.5% of the GDP for over three decades.³⁶ In relatively new industries such as software and biotechnology, still in their nascent stages of development, patenting has been introduced without any positive contributions to innovation. In fact, in their empirical work described in Patent Failure (2008), ³⁷ Bessen and Meurer have argued that increased patenting has resulted in decreased social welfare.
Further, no unambiguous connections have been found between innovation and intellectual property rights in academic studies. In a meta-study conducted in 2006,³⁸ Boldrin and Levine observed that there was weak or no evidence which suggested that strengthening the patent regime led to an increase in innovation. Similarly, it was observed by Jaffe that "despite the significance of policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this possibility." ³⁹
In his study of 60 nations over the past 150 years, Josh Lerner concluded that "the impact of patent protection-enhancing on innovation was in fact negative, thereby running counter to assumptions made by economists that incentives affect behavior and that stronger property rights encourage economic growth.⁴⁰
Even in those studies, where support is found for a positive correlation between patents and innovation, it is made clear that this correlation is not applicable to developing and least-developed countries. This, for instance, is the conclusion of the United Nations Industrial Development Organization's meta-study titled "The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence". ⁴¹
It is crucial that all policy be based on evidence, and not ideology.
Thus, it is submitted that any program that seeks to create awareness about intellectual property must necessarily be one that presents a balanced view, clearly stating all facts and as many diverse opinions as possible; avoiding the current situation where public interest groups and academics are sidelined in favour of rights-holders groups.
CIS submits that the nation-wide program of promotion on the benefits of intellectual property ⁴² must be based on evidence. Crucially, the importance of the public domain, for which a great deal of evidence exists,⁴³ must highlighted in any such also equally promote the importance the role of limitations and exceptions and clearly identify the issues with the intellectual property system, including the fact that it has not been proven that there is a nexus between intellectual property and innovation. The nation wide program should convey the role of different stakeholders, including libraries and archives, organizations working with persons with disabilities and educational institutions and the negative effects of a rights centric intellectual property system on such important institutions.
It is important that public-funded research organizations should be engaged in neutral - non-industry funded -research, and not campaigns (as identified in the policy).⁴⁴ This will help identify the issues of the present intellectual property system as well as the potential for reform, tailored to the Indian context. We have to ensure that campaigns - as with policymaking and pedagogic material - are based on research rather than faith or ideology. It is further submitted that course materials to be created for educational institutions at all levels as well as for online and distance learning programs ⁴⁵ should include a discussion on the drawbacks of a maximalist intellectual property system, a discussion on limitations and exceptions, alternatives to intellectual property, as well as case studies from different parts of the world highlighting the use of intellectual property as well as alternatives in a socio-economic and culture specific environment. Particularly in the case of education institutions as well as online and distance learning mechanisms, which are often faced with great challenges as a result of rights-holders centric intellectual property laws, the irony in promoting a system that only acts to their detriment would be great.

On Objective 2: Creation of IP

The second objective of the Policy seeks to stimulate the creation and growth of intellectual property through measures that encourage IP generation.⁴⁶ This objective seeks to encourage IP generation and creation across various sectors, including the introduction of the system of 'utility models' in India. There are several problems with this objective, primarily that it assumes IP generation is necessarily a means to innovation, whereas it is submitted that the emphasis should be on innovation holistically, including by incentive mechanisms other than IP.

On the IP-Innovation/ Creativity Nexus

It is submitted that similar to the earlier objective relating to the promotion and the creation of awareness about intellectual property, the underlying rationale behind this objective too seems to be the perception that there is a positive correlation between greater amounts of intellectual property and greater innovation, and the belief that intellectual property protection necesarrily promotes innovation. However, there is relatively little research to back this assumption. Illustratively, the following example may be considered. In a study conducted by Heidi L. Williams,⁴⁷ the sequencing of the human genome was used to provide an empirical context to showcase the deterioration in development due to the presence of IP. It was concluded by Williams that the presence of IP rights in the sequencing of the human genome resulted in reductions in subsequent scientific research and product development by up to 20-30%. ⁴⁸ Williams further observed that "if more socially valuable technologies are more likely to be held with IP, then the welfare costs for the same could be substantial." The presence of intellectual property rights, it is argued, stifles subsequent product development by restricting access to the data or technology required for further development. ⁴⁹
Prof. Petra Moser of Stanford has conducted a large volume of research on economic evidence on the linkages between patents and innovation. Her research, which shows that in the 19th century the majority of inventions happened outside the patent system ⁵⁰ indicates that alternative explanations might explain inventions better, including "the importance of a culture of entrepreneurship,⁵¹ experimentation,⁵² the free exchange of knowledge, ⁵³ and science.⁵⁴ In a paper titled, "How do Patent Laws Influence Innovation", she concludes that "I find no evidence that patent laws increased levels of innovative activity but strong evidence that patent systems influenced the distribution of innovative activity across industries."
Prof. Bryan Mercurio, in a paper written for the World Economic Forum and the International Centre for Trade and Sustainable Development, concludes, "The empirical evidence suggests that increasing levels of patent protection have not resulted in increased innovation. Instead, it has limited competition, and increased the cost of business, to the detriment of the world economy. Innovation has also suffered, as increasing protection has inhibited the ability of many firms to innovate." He further recommends that we "conduct further research on the correlation or causal relationship between patents and innovation, including the indirect benefits for innovation that patent protection may provide". Petra Moser notes, "Patent laws that existed in the mid-nineteenth century had been adopted in a relatively ad-hoc manner, dependent more on legal traditions than economic considerations".⁵⁵
The empirical data collected by scholars, as provided above is goes to show that innovation is not necessarily benefitted by stronger patent regimes. Further, even the literature that asserts a positive correlation between the two acknowledge that this doesn't apply to developing countries. In addition, whilepatents may provide revenue to patent owners, it also makes further innovation more costly, thereby discouraging competitors from entering the arena due to high prices, and due to the large number of pre-existing patents. This effect, known as the
The Supreme Court of Canada, has for instance, has on multiple occasions recognized the importance of the public domain. In "2002, Justice Binne, writing for the majority in Théberge v. Galerie d'Art du Petit Champlain inc., stated: 'Excessive control by holders of copyrights and other forms of intellectual property may unduly limit the ability of the public domain to incorporate and embellish creative innovation in the long-term interests of society as a whole (para.32).' Two years later, in CCH Canadian Ltd. v. Law Society of Upper Canada, Chief Justice McLachlin spoke of the importance that there be 'room for the public domain to flourish as others are able to produce new works by building on the ideas and information contained in the works of others (para. 23).'"⁵⁶
Lastly, there is even evidence that in multiple sectors - including fashion, finance, font design, and software - lesser IP protection in the form of patents, trademarks, and copyright, actual encourages increased innovation.⁵⁷

On Utility Models

On the question of introduction of a new on utility models⁵⁸ CIS observes that DIPP has previously considered developing a framework for granting Utility Models for 'innovations' and invited suggestions on a discussion paper on the subject.⁵⁹ Reports ⁶⁰ suggest that Small, Medium and Micro Enterprises are in favour of the Utility Model Protection system in India because developing countries such as China and Korea have demonstrated a corresponding economic growth attributable to the introduction of the system. However, there is no evidentiary data to support this hypothesis. Studies suggest that there exist only correlations and not causal links between heightened innovative activity and implementation of utility model protection. ⁶¹ Empirical evidence on the role of intellectual property protection in promoting innovation and growth in general remains limited and inconclusive.⁶² Reports also suggest that in China, the abundance of Utility Model has led to lowering of quality of innovation. ⁶³ In Australia, an "innovation patent" - the Australian version of utility model protection - was awarded for a "circular transportation facilitation device", i.e., a wheel. ⁶⁴
It is this submitted that whether the ushering of a 2nd tier of protection model for lower and incremental innovations would have a positive impact on innovation in India is extremely debatable. There have been several criticisms of utility models, inter alia, explosion in litigation of poor quality patents and legal uncertainty - which impact small business the maximum in terms of costs ⁶⁵; the system may be more utilised by foreign companies rather than local firms, in which case there is a possibility that this will lead to an increase in a flow of royalties and licensing fees to overseas producers. Utility model rights can be, and have been, used by companies to cordon off entire areas of research. ⁶⁶
CIS submits that as the policy 'intends to harness the full benefits of creation and innovation in the larger interest of society and citizens' ⁶⁷ the introduction of a law on utility models would be antithetical to this objective.

On Improving IP Output of National Research Laboratories, Universities et al

The Policy seeks to improve the output of national research laboratories, universities and technical institutions, among others.⁶⁸ It is submitted that these institutions are public funded institutions, ⁶⁹ and in effect, this recommendation of the Policy seeks to therefore promote intellectual property creation in public funded institutions.
A significant chunk of research and development occurs at public funded academic and research institutions and, excessive use of IPR as a tool to creating private ownership rights over inventions may preclude use of such innovation by the public. This may also create a barrier to access the best technologies and research- which were funded by taxpayers' money to begin with. CIS supports the principle that IPRs resulting from of publicly funded research should automatically belong to the funder.⁷⁰
Further, it is submitted that there exists a danger of public funded research institutions re-orienting their objectives focus only on areas of commercial value. This may lead to neglect of certain research areas. A stringent policy will create an unfavourable conflict between revenue generation and sharing of public good. The policy must ensure that it is flexible and compensates the inventors whilst permitting public access to research.
CIS submits that there should be no encumbrances over public funded research and inventions. The Policy must also ensure that such proposed IP creation does not prevent or interfere with dissemination of public funded research. ⁷¹
CIS strongly supports the recent steps by government agencies (including the Department of Science and Technology and the Department of Biotechnology⁷² as well as other institutions including the Council of Scientific and Industrial Research⁷³, Indian Council of Agricultural Research⁷⁴ and Institute of Mathematical Sciences ⁷⁵) in making scholarly research openly accessible. The benefits of implementing an open access policy with regard to scientific and scholarly works are manifold. Providing open access to scholarly research will ensure percolation of cutting edge research into the society.
It is thus submitted that the Policy should adopt a more nuanced, cautious and balanced take on the creation of intellectual property, particularly taking into consideration India's economic status as an emerging economy and our international position. The Policy must recognise that there is no inherent societal merit in the mere creation of intellectual property and that innovation flourishes even in the absence of intellectual property protections.

On Objective 3: Legal and Legislative Framework

According to the Policy, the objective sought to be achieved is the creation of strong and effective laws on intellectual property, consistent with national priorities as well as our international obligations, balancing the interest of the rights holders with public interest. ⁷⁶
CIS fully supports the view that the legislative framework on intellectual property must balance the rights of all stakeholders and be in public interest. CIS is also appreciates the importance of national priorities in the framing of India's legislative framework. CIS also notes with appreciation that the discussion in the Policy reiterates that India's laws are in compliance with the TRIPS Agreement ⁷⁷ as well as the stance that India will continue to utilize the flexibilities available in international treaties as well as the TRIPS Agreement⁷⁸ while creating its legal framework.
CIS also supports the acknowledgement of the fact that India's laws need to be updated periodically, depending on various factors.⁷⁹ CIS fully supports the process proposed for amendments to the law, including,inter alia, the conduction of objective and analytical studies and inputs from various stakeholders. ⁸⁰ It is submitted however, that equal weightage must be given to the inputs from all stakeholders and measures must be taken to ensure that the interests and demands of rights-holders do not outweigh the interests and demands of other stakeholders, particularly those at the other end of the spectrum, who greatly rely on the existence and guarantee of flexibilities, limitations and exceptions to intellectual property.

On Utility Models and Intellectual Property in Public Funded Research

The Policy envisages significant changes to India's intellectual property system, including the creation of a law for the protection of utility models as well as introduction of intellectual property in public funded research.
CIS recommends that it would not be advisable to introduce intellectual property in public funded research as well as cautions against the introduction of a law on utility patents. A detailed submission on these issues has been made earlier in this document, in Section 3.4.3. at page 7 for intellectual property in public funded research as well as in Section 3.4.2. at page 6 on utility models.

On the Negotiation of International Treaties and Agreements

CIS commends the recommendation of the Policy that the negotiation of international treaties and agreements will be in consultation with various stakeholders. However, CIS cautions against entering into bilateral or plurilateral international agreements which increase India's IPR obligations beyond our current obligations under multilateral agreements. It was only in 2006 that
It is submitted that FTAs often levy standards which are beyond those found in the TRIPS Agreement, and have thus been criticized. ⁸¹ A central aspect of this criticism is that TRIPS-plus-FTAs reduce policy space for the implementation of TRIPS flexibilities. This also creates the impression that TRIPS only imposes a "minimum level" of protection, which must be available in all national laws of its Member States, without any apparent limitation to a further extension of such protection or intervention which one country may impose on another. The World Health Organization enunciated that "bilateral trade agreements should not seek to incorporate TRIPS-plus protection in ways that may reduce access to medicines in developing countries.⁸² Further, WHO members were urged in the Fifty-Seventh World Health Assembly "to take into account in bilateral trade agreements the flexibilities contained in the Agreement on Trade-related Aspects of Intellectual Property Rights and recognized by the Declaration on the TRIPS Agreement and Public Health adopted by the WTO Ministerial Conference."⁸³
Furthermore, TRIPS-plus initiatives consequent in the dilution into a bilateral forum, as opposed to the plurality provided in multilateral fora, provided by the TRIPS. The imposition of standards by FTAs may ultimately disturb the balance of rights and obligations which are enshrined in the TRIPS Agreement,⁸⁴ and also have the potential to constrain the flexibilities provided to Member States in the TRIPS, particularly in areas which are of extreme significance to developing countries, such as transfer of technology, socio-economic development, promotion of innovation, public health and access to knowledge. Furthermore, they also tend to negate decisions which were taken multilaterally such as the Doha Declaration on the TRIPS Agreement and Public Health.
It is therefore submitted that the Policy must caution against entering into any international agreement that seeks to enforce TRIPS-plus standards, contrary to India's stance (as noted by the Policy itself) that its laws were compliant with international obligations.

On Limitations and Exceptions

It is observed that the Policy recommends that laws be enacted to address national needs, ⁸⁵ but the only mentions limitations and exceptions as an area of study for future policy development.⁸⁶It is submitted that while it is indeed necessary for further research to be undertaken in the area of limitations and exceptions, it is also critical to enact new laws and amend existing ones to foster a rich environment for limitations and exceptions, in order to achieve a holistic and balanced intellectual property framework. It is further submitted that this would also be in consonance with the objective of the negotiation of international treaties and agreements in consultation with stakeholders.
While the granting of exclusive rights over intellectual property is considered to be an incentive for further investments into innovative activities and the production of knowledge, allowing the exercise of the full scope of this exclusion in all circumstances may not meet the end goal of the enhancement of public welfare, using the intellectual property system. Therefore, it is essential that an intellectual property system be flexible allowing for certain limitations and exceptions in order to strike a balance between right holders, the public and third parties. The need for such flexibility in the intellectual property system of a country has also been highlighted by the World Intellectual Property Organization.
It is therefore suggested that the Policy include an additional recommendation for the inclusion, adoption and periodic renewal of limitations and exceptions in India's intellectual property laws, either be enacting new legislations or by amending existing legislations wherever applicable. It is further suggested that this recommendation also inform India's negotiations at the international level, where any agreement that India might potentially sign, not invalidate or narrow in any form any limitations and exceptions and provide for their continued exercise in the broadest possible scope and manner.

On Standard Setting

CIS commends the Policy's focus on standards in technology and standard setting organisations. CIS strongly supports the adoption of open standards as a measure that helps stimulate active competition amongst implementors of various standards, and thereby encourages innovation. The Department of IT finalized its Policy on Open Standards for e-Governance in 2010,⁸⁷ and CIS strongly supports this policy, and would encourage it be adopted by all state governments as well.
CIS strongly recommends developing and supporting the evolution of open standards. The Policy must not encourage use of IPR to limit access to standards, because these are the foundational rules any technology must adhere to enter the market or ensure quality. ⁸⁸ CIS submits that access to these standards must not be limited by making them proprietary through IPR protection. Further, the Policy must support transparent standard setting processes and procedures in national and at international for a for all participants.
CIS further appreciates the endeavor to encourage the development of global standards influenced by technologies developed in India.
CIS submits that it is also important to ensure that India emerges as a global player in the technology sector, not just in the development of indigenous standards, but also in the equally important space of manufacturing using existing standards, particularly in light of the Government's recent "Make In India" and "Digital India" initiatives. It is further submitted however, that in most instances, these standards are protected by patents; where patents essential to a standard would be standard essential patents. CIS suggests that the Policy recommend measures that might be adopted to ensure access to standards essential patents, including, for instance, the establishment of a government aided patent pool. It is submitted that addressing the question of access to standards and not just their development would be a holistic approach that the Policy should adopt.

On Objective 5: Commercialization of IP

CIS appreciates that the Policy seeks to promote licensing and technology transfer for intellectual property, and notes that the Policy also seeks to promote reasonable and non-discriminatory patent pooling to maximise the ability of smaller companies to commercialise IP and bring innovative solutions based on standards to the market.
CIS believes that the government establishing patent pools for digital technologies will promote access to knowledge and stimulate manufacturing in the information technology and electronics sectors in India, in line with the government's "Make In India" and "Digital India" initiatives. CIS has earlier urged the government to enable access to low cost access devices by establishing a government-aided patent pool of essential technologies, without which there is a high likelihood of such devices getting caught up in the 'patent wars' that have happened elsewhere around the world over smartphones.⁸⁹ CIS submits that the creation of government-aided patent pools and facilitation of cross-licensing will also be helpful in resolving issues created by patent thickets and gridlocks by reducing transaction costs for licensees and solving an economic cooperation problem.

Concluding Remarks

Debabrata Saha, the Deputy Permanent Representative of India to the United Nations, while speaking on the introduction of the Development Agenda at the World Intellectual Property Organization, with admirable clarity noted, "Let me start on a positive note by asking: with all the damage that TRIPS has wrought on developing countries could it possibly have a silver lining? Maybe - if we want to be generous. TRIPS, one might argue, did bring intellectual property to the forefront of consciousness of people everywhere, and, over time made them aware of the dangers inherent in a protective regime that takes little account of either public policy, or the state of development of a member country." It is thus imperative that when we fashion our public policy, we take account of the dangers he mentioned. He went on to note, "Intellectual property rights have to be viewed not as a self contained and distinct domain, but rather as an effective policy instrument for wide ranging socio-economic and technological development. The primary objective of this instrument is to maximize public welfare." We wholeheartedly support this position of the Indian government, and would encourage the IPR Think Tank to seek to maximize public welfare and creativity and innovation rather than maximizing IPR alone. Importantly, as Mr. Saha, speaking on behalf of the Indian government noted, IP is not an end in itself, contrary to what the current draft of the National IPR Policy seems to promote.
Flexibility is considered to be an essential characteristic in defining and shaping the intellectual property system of countries around the world. Such flexibility allows scope for further innovations and creations, thereby subserving the common good. As per Article 39 of the Constitution of India, "the State shall in particular, direct its policy towards securing that the ownership and control of the material resources of the community are so distributed as best to subserve the common good." It is therefore submitted that the National IPR Policy of India should be contoured in such a manner that it encourages greater use of exceptions and limitations to the otherwise exclusionary use of intellectual property, encourages the expansion of the public domain, secures proportionality in enforcement of IP rights, promotes alternatives to IP - including open access to scholarly literature, open educational resources, free/open source software, open standards, open data, and aims to create a regime of intellectual property that aims to serve the public interest and not just the narrow interest of private right holders. Such an approach should not be merely rights-based, but look at interests of the general public, especially the poor, as well, in order to further the aim of the nation to create a more egalitarian society, and adopt the Directive Principles in the Constitution.

1 www.cis-india.org (last accessed 30 November, 2014).

2 http://www.dipp.nic.in/English/acts_rules/Press_Release/pressRelease_IPR_Policy_30December2014.pdf.

3 See http://cis-india.org/ (last accessed 18 January, 2015).

4 See http://cis-india.org/a2k (last accessed 18 January, 2015).

5 See http://cis-india.org/openness (last accessed 18 January, 2015).

6 See http://cis-india.org/internet-governance (last accessed 18 January, 2015).

7 See http://cis-india.org/accessibility (last accessed 18 January, 2015).

8 See http://cis-india.org/digital-natives (last accessed 18 January, 2015).

9 See http://cis-india.org/raw (last accessed 18 January, 2015).

10 See http://www.wipo.int/members/en/admission/observers.html (last accessed 18 January, 2015).

11 See http://cis-india.org/a2k/blog/ngo-profile-knowledge-ecology-international (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ngo-profile-third-world-network (last accessed 18 January, 2015).

12 See illustratively http://cis-india.org/a2k/blog/analysis-copyright-expansion-india-eu-fta (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/india-eu-fta-copyright-issues (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/a-guide-to-the-proposed-india-european-union-free-trade-agreement (last accessed 18 January, 2015).

13 See illustratively http://cis-india.org/news/inet-bangkok-june-8-2013-governance-in-the-age-of-internet-and-fta (last accessed 18 January, 2015).

14 See illustratively http://cis-india.org/a2k/blog/2010-special-301 (last accessed 18 January, 2015).

15 See illustratively http://cis-india.org/a2k/blog/analysis-copyright-amendment-bill-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/sc-report-on-amendments (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-parliament (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/tpm-copyright-amendment (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-privacy (last accessed 16 January, 2015); http://cis-india.org/a2k/blog/copyright-bill-analysis (last accessed 18 January, 2015).

16 See http://cis-india.org/a2k/blog/comments-on-science-technology-and-innovation-policy-draft (last accessed 18 January, 2015).

17 See http://cis-india.org/a2k/blog/exhaustion (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/parallel-importation-of-books (last accessed 18 January, 2015).

18 See http://cis-india.org/a2k/blog/cis-submission-draft-patent-manual-2010 (last accessed 18 January, 2015) and http://cis-india.org/a2k/blog/comments-on-draft-guidelines-for-computer-related-inventions (last accessed 18 January, 2015) respectively.

19 See http://cis-india.org/a2k/blog/lid-on-royalty-outflows (last accessed 18 January, 2015).

20 See http://cis-india.org/a2k/blog/exceptions-and-limitations (last accessed 18 January, 2015).

21 See illustratively http://cis-india.org/a2k/consumers-international-ip-watchlist-report-2012 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/ip-watch-list-2011 (last accessed 18 January, 2015); http://cis-india.org/a2k/blog/consumers-international-ip-watch-list-2009 (last accessed 18 January, 2015).

22 The Washington Declaration on Intellectual Property and Public Interest concluded after the Global Congress on Intellectual property and Public Interest in August 2011 attended by over 180 experts from 32 countries articulate this position perfectly. Available at: http://infojustice.org/wp-content/uploads/2011/09/Washington-Declaration.pdf (Last Accessed: 29 November, 2014).

23 IPR Think Tank, National IPR Policy (First Draft) at page 5.

24 Article 27(1) of the Universal Declaration of Human Rights states: "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits."

25 Julia Brüggemann, Paolo Crosetto et al, Intellectual Property Rights Hinder Sequential Innovation - Experimental Evidence, Center for European, Governance and Economic Development Research, Number 227, January 2015.

26 Joseph E. Stiglitz, Economic Foundations of Intellectual Property Rights, Duke Law Journal, 57(6): 1693-1724.

27 Graham M. Dutfield, Uma Suthersanen, The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity, Intellectual Property Quarterly, 2004 at 379.

28 IPR Think Tank, National IPR Policy (First Draft) at page 5.

29 IPR Think Tank, National IPR Policy (First Draft) at page 5.

30 IPR Think Tank, National IPR Policy (First Draft) at page 6.

31 Id .

32 Id .

33 Michele Boldrin and David K. Levine, The Case Against Patents, Journal of Economic Perspectives, Vol. 27, No.1 - Winter 2013, 3-22.

34 Id .

35 Id .

36 Id .

37 James Bessen and Michael J. Meurer, Patent Failure: How Judges, Bureaucrats and Lawyers Put Innovation at Risk, March 2008.

38 Michele Boldrin and David K. Levine Supra Note 32.

39 B.J. Jaffe, The US Patent System in Transition: Innovation and the Innovation Process, Research Policy, 29, 531-557, 2000.

40 Josh Lerner, The Empirical Impact of Intellectual Property Rights on Innovation: Puzzles and Clues, Intellectual Property Rights and Economic Growth in the Long-Run: A Discover Model (2009).

41 Rod Falvey & Neil Foster, The Role of Intellectual Property Rights in Technology Transfer and Economic Growth: Theory and Evidence (UNIDO Working Paper,

42 ¶ 1.2 IPR Think Tank, National IPR Policy (First Draft) at page 6.

43 See

44 ¶ 1.3 IPR Think Tank, National IPR Policy (First Draft) at page 7.

45 ¶ 1.5 IPR Think Tank, National IPR Policy (First Draft) at page 8.

46 IPR Think Tank, National IPR Policy (First Draft) at page 8.

47 Heidi L. Williams, Intellectual Property Rights and Innovation: Evidence from the Human Genome, National Bureau of Economic Research. Working Paper 16213, July 2010.

48 Id .

49 Id .

50 Petra Moser, Innovations and Patents in Oxford Handbook of Economic History (Cain et al., eds., forthcoming), http://ssrn.com/abstract=2503503.

51 See generally , David. S. Landes, The Unbound Prometheus: Technological Change and Industrial Development in Western Europe from 1750 to the Present (1969).

52 See generally , Joel Mokyr. The Lever of Riches: Technological Creativity and Economic Progress (1990).

53 See generally , Alessandro Nuvolari Collective Invention during the British Industrial Revolution: the Case of the Cornish Pumping Engine, 28 Cambridge J. Econ. 347 (2004). See also, Robert C. Allen, Collective Invention, 4 J. Econ. Behavior & Org. 1 (1983).

54 A. Arora & N. Rosenberg, Chemicals: A US Success Story in Chemicals and Long-Term Economic Growth 71 (Arora et al., eds., 1998); see also, David C. Mowery & Nathan Rosenberg, Paths of Innovation. Technological Change in 20th-century America (1998).

55 Petra Moser, How Do Patent Laws Influence Innovation? Evidence from Nineteenth-Century World Fairs, NBER Working Paper Series 9909, http://www.nber.org/papers/w9909.

56 Meera Nair, A Short-Lived Celebration, Fair Duty (Jan. 8, 2012), https://fairduty.wordpress.com/2012/01/08/a-short-lived-celebration/

57 See generally, Kal Raustiala & Christopher Sprigman, The Knockoff Economy (2012).

58 ¶ 2.10 IPR Think Tank, National IPR Policy (First Draft) at page 10.

59 See FICCI Suggestions on Discussion Paper on Utility Model available at http://www.ficci.com/Sedocument/20179/UM.pdf (last accessed January 28, 2015).

60 See FICCI Suggestions on Discussion Paper on Utility Model available at http://www.ficci.com/Sedocument/20179/UM.pdf (last accessed January 28, 2015).

61 See Utility Model: A Tool for Economic and Technological Development: A Case Study of Japan available at http://www.ipindia.nic.in/research_studies/finalreport_april2007.pdf (last accessed January 28, 2015).

62 U. Suthersanen, Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at http://www.unctad.org/en/docs/iteipc20066_en.pdf , (last accessed January 28, 2015).

63 See China's great leap forward in patents , available at http://www.ipwatchdog.com/2013/04/04/chinas-great-leap-forward-in-patents/id=38625/ (last accessed January 28, 2015).

64 Will Knight, Wheel Patented in Australia, New Scientist (July 3, 2001), http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html .

65 Keith E. Maskus, Beyond the Treaties: A Symposium on Compliance with International Intellectual Property Law, February 6, 2000.

66 U. Suthersanen, Utility Models and Innovation in Developing Countries, International Center for Trade and Sustainable Development (ICTSD), Issue Paper No. 13 (2006), available at http://www.unctad.org/en/docs/iteipc20066_en.pdf , (last accessed January 28, 2015).

67 IPR Think Tank, National IPR Policy (First Draft) at page 1.

68 ¶ 2.3 IPR Think Tank, National IPR Policy (First Draft) at page 10.

69 See http://mhrd.gov.in/technical-education-1 (last accessed 30 January, 2015).

70 See 'Expert Group Report on Role and Strategic Use of IPR (Intellectual Property Rights) in International Research Collaborations' by European Commission 'available at http://ec.europa.eu/research/era/pdf/ipr-eur-20230_en.pdf (last accessed January 28, 2015).

71 See 'Ministry of Science makes Open Access to Research Mandatory ', available at http://cis-india.org/news/down-to-earth-july-16-2014-aparajita-singh-ministry-of-science-makes-open-access-to-research-mandatory (last accessed January 28, 2015).

72 DBT and DST Open Access Policy - Policy on Open Access to DBT and DST Funded Research, Department of Biotechnology and Department of Science and Technology, Ministry of Science and Technology, Government of India.

73 Id.

74 Id.

75 Id.

76 IPR Think Tank, National IPR Policy (First Draft) at page 11.

77 Id .

78 IPR Think Tank, National IPR Policy (First Draft) at pages 10, 11.

79 IPR Think Tank, National IPR Policy (First Draft) at page 12.

80 Id .

81 The Doha Declaration on the TRIPS Agreement and Public Health and the Contradictory Trend in Bilateral and Regional Free Trade Agreements (2004), Available at http://www.quno.org/geneva/pdf/ec onomic/Occasional/TRIPS-Public-Health-FTAs.pdf.

82 World Health Organization, Report of the Commission on Intellectual Property Rights, Innovation and Public Health, Recommendation 4.26 (2006), available at http://www.who.int/intellectualproperty/ documents/thereport/CIPIHReport23032006.pdf [hereinafter WHO].

83 Fifty-Seventh World Health Assembly, May17-22,2004, (May 22, 2004), available at http:// apps.who.int/gb/ebwha/pdf_files/WHA57/A57_R14-en.pdf;

84 Preamble, Articles 7, 8, TRIPS Agreement, 1994.

85 ¶ 3.2 IPR Think Tank, National IPR Policy (First Draft) at page 12.

86 ¶ 3.6 IPR Think Tank, National IPR Policy (First Draft) at page 13.

87 See 'Open Standards Policy' , available at http://cis-india.org/news/open-standards-policy (last accessed January 28, 2015).

88 See 'The BIS, Standards and Copyright' , available at http://spicyip.com/2014/11/the-bis-standards-and-copyright.html (last accessed January 28, 2015).

89 See CIS' Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses , available at http://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices (last accessed January 29, 2015).

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-comments-to-the-first-draft-of-the-national-ip-policy

National IPR Policy Series - CIS Letter to IPR Think Tank

nehaa — 2015-05-28T13:08:12Z

We sent this letter to the IPR Think Tank following responses that we received from the DIPP, to our RTI requests.

CIS acknowledges Varun Baliga and Devrupa Rakshit for their research.

To,
Justice (Retd.) Prabha Sridevan,
Chairperson,
IPR Think Tank

Dear Ma'am,

Subject - Request for Information pertaining to the Constitution and Functioning of the IPR Think Tank

I seek your indulgence regarding some information about the IPR Think Tank of which you are the Chairperson. Unfortunately, this is information that I could not find in the public domain despite searching for it extensively. Such information includes, but is not limited to, an official website of the IPR Think Tank. My queries concern, broadly, the constitution of the think tank, the formulation of the National IPR Policy and a related pieces of information that has been listed ahead. With apologies, I felt compelled to address these queries to you as there does not seem to be a Public Information Officer in charge of the IPR Think Tank.
Further, I had also addressed some of these questions via a Right to Information Request to the Department of Industrial Policy and Promotion ("DIPP"). In its response, the DIPP has informed me that the Think Tank works independently of the DIPP and hence the DIPP was not in a position to furnish information to these queries.[1] Accordingly, I am addressing these queries to you, as the Chairperson of the Think Tank.
I wish to understand the process followed by the DIPP in constituting the IPR Think Tank whose mandate it is to draft the National Intellectual Property Rights Policy under Public Notice No. 10/22/2013-IPR-III dated November 13, 2014. I would greatly appreciate the details of this process followed.
In particular, were the current members of the IPR Think Tank required to send in applications seeking to be considered for the IPR Think Tank? As members of the think tank, which body is in charge of paying the members financial remuneration, if any? Upon or prior to appointment, have you, as the Chairperson, or the members received any instructions from any departments of the government? If so, I request information regarding the content of these instructions and the department that issued the same.
Further, I request a copy of the letters of the appointment of the members of the IPR Think Tank.
In the event that there was a meeting held to decide on the same, I request that all necessary documents including the minutes of the meeting, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, etc., in which the constitution of the aforesaid mentioned IPR Think Tank was discussed or decided, be included.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, etc., for all such meetings held.
If a directive or directives were received by the Department of Industrial Policy and Promotion from any other government body to constitute such a think tank, I request a copy of such a directive.
While considering the constitution of the IPR Think Tank, please can you share, in detail, the process of shortlisting the members of the IPR Think Tank by the Department of Industrial Policy and Promotion, or any other body that was responsible for the same.
Please do indicate the instructions that the IPR Think Tank received from the Department of Industrial Policy and Promotion upon its constitution under Public Notice No. 10/22/2013-IPR-III dated November 13, 2014, as well as the individual(s)/body(s) that send these instructions.
Please do indicate the financial details of the IPR Think Tank including the source that remunerates the members as well as the amount of remuneration.
Please indicate in detail the process followed by the IPR Think Tank constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014 while framing the first draft of the National IPR Policy dated December 19, 2014.
If there was a meeting held to decide on the same, please include all necessary documents including the minutes of the meeting, records, documents, memos, emails, opinion, advices, press releases, circulars, orders, suggestions, etc., related to the drafting of such National IPR Policy Think Tank chaired by Justice (Retd.) Prabha Sridevan.
If there were multiple meetings held for the same, please provide all necessary documents including the minutes of all such meetings, records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, suggestions, etc., for all such meetings held.
Please provide all the suggestions and comments received by the IPR Think Tank from stakeholders after the DIPP issued Public Notice No. 10/22/2013-IPR-III dated November 13, 2014 asking for suggestions and comments on or before November 30, 2014.
Please also provide all the suggestions and comments received by the IPR Think Tank by different stakeholders on or before January 30, 2015 on its first draft of the National Intellectual Property Policy submitted by the IPR Think Tank on December 19, 2014.
Finally, for further reference, please clarify whether the Public Information Officer for the IPR Think Tank would be the same person as Public Information Officer for the Department of Industrial Policy and Promotion since the IPR Think Tank was constituted by the Department of Industrial Policy and Promotion via Public Notice No. 10 (22)/2013-IPR-III dated November 13, 2014.
If the immediately preceding question is to be answered in the negative, then does the IPR Thank Tank have a Public Information Officer, or alternatively, to whom shall one address queries such as these with respect to the IPR Think Tank.

Please do circulate a copy of this letter to the other constituent members of the IPR Think Tank, viz. -

Ms. Pratibha M Singh, Sr.Advocate, Singh & Singh Law Firm, Member;
Ms. Punita Bhargava, Advocate, Inventure IP, Member;
Dr. Unnat Pandit, Cadila Pharmaceuticals Limited, Member;
Shri Rajeev Srinivasan, Director, Asian School of Business, Thiruvananthapuram, Member; and
Shri Narendra K. Sabarwal, Retired DDG, WIPO, Member and Convener.

Thank you.

Yours sincerely,

Nehaa Chaudhari,
The Centre for Internet and Society,
G-15, Top Floor, Hauz Khas,
New Delhi - 110016
+91-11-40503285

Date - 25/05/2015

[1] For details of my queries and the responses of the DIPP, please see - http://cis-india.org/a2k/blogs/national-ipr-policy-series-rti-requests-by-cis-to-dipp-dipp-responses (last accessed 25 May, 2015).

Note: Nehaa Chaudhari's name was misspelt in the letter but has been corrected in this blog post.

For more details visit https://cis-india.org/a2k/blogs/national-ipr-policy-series-cis-letter-to-ipr-think-tank

Mobile Phone Patents: Prior Art Survey

nehaa — 2013-10-24T10:33:36Z

In this blog post, Nehaa Chaudhari discusses a study on a portion of the patent landscape around mobile phone patents, commissioned by CIS earlier this year. This prior art search was undertaken by Rohan George of Samvad Partners, who worked as a Consultant with CIS.

This research was not directly funded by an external agency. The author and CIS bear no responsibility for the accuracy of the research.

The researcher wishes to disclose as under:

As you are no doubt aware, the mobile computing related innovation is probably one of the fastest growing fields over the past 15 years. As a result, a considerable number of applications are being granted across jurisdictions on a daily basis. Therefore, it is entirely possible that, once we have completed a search over a certain topic, new patents would have been granted that cover the same topic to some extent or the other.
It is common for some patent agents to invest significant effort into ensuring that the language of the specification (particularly that of the abstract and the title, the being the first point of search ) should reveal as little about the proposed invention as is statutorily possible. This is encouraged by the fact that there are no strict rules regulating the precise manner of presentation and clarity of abstract and title. Accordingly, certain patents may have been missed due to the choice of language used in the drafting of the specification.

For the above reasons, amongst others, this survey should not be considered to be a comprehensive exposition on the field of mobile computing and mobile telecommunication related patents, but should instead be considered as a survey of patents governing the field.

This study employs among others (and other associated keywords), the following criteria as keywords/search terms for the patent searches: SIM; Micro SD; Camera Phone; Imaging Device, Phone; Image Capture, Phone; Disc Drive, Phone; Flash Memory, Phone; USB, Phone; Liquid Crystal Display, Phone; LCD, Phone; Touch Screen; Wireless Fidelity; Wireless Local Area Network, Phone; Bluetooth, Phone; GPS, Phone; GPRS, Phone; Enhanced General Packet Radio Service; EDGE, Phone; First Generation Phone; 1G, Phone; Second Generation, Phone; 2G, Phone; Third Generation, Phone; 3G, Phone; 3GPP; USB Tethering; WAP, Phone; Wireless Application Protocol; Server Push; MMS, Phone; Qwerty, Phone; Vibration, Phone.

For the list of completed searches, please click here.

For the document containing the details of the prior art search, please click here.

For more details visit https://cis-india.org/a2k/blogs/mobile-phone-patents

MHRD IPR Chairs — Underutilization of Funds and Lack of Information Regarding Expenditures

nehaa — 2014-11-19T15:19:18Z

Funds granted to the IPR Chairs set up by the Ministry of Human Resources and Development are often left underutilized. Details regarding the expenditures that are incurred by the Chairs are also currently unavailable. CIS intern Amulya Purushothama examines this further.

The Ministry of Human Resources and Development, Government of India (MHRD) has so far set up around 20 IPR Chairs under the Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in various universities across the country.

However, as an Evaluation Committee for the Planning Commission observed last year, this scheme is failing to work for many reasons. Some of them the report says are that many of the IPR Chair positions are left vacant as the MHRD cannot find professors who are suitably qualified for the job, that there is no explicit mandate for activities to be undertaken by the chairs either under the IPERPOS scheme or the letters sanctioning the Chairs, that most of the Chairs only organize one or two day workshops and deliver a few lectures, that the research output produced by these Chairs etc. therefore has been very weak as they haven’t yet identified research questions, Therefore, the grant money under the scheme goes underutilized.

There exists an informational vacuum about the allocation of funds, expenditures of and the functioning of the MHRD IPR Chairs. The MHRD IPR Chair portal intended to provide information about the same is mostly incomplete. Out of the 20 universities where a chair has been set up, around four (CUSAT Cochin, IIM Ahmedabad, IIM Calcutta, and recently NUJS Kolkata) have been vacant for the last year (CUSAT Cochin has only recently reinstated their IPR Chair professor) and two only joined the posts in the last year (Delhi University and IIT Madras) . Only three of the professors have provided details about their research team on the portal (Delhi University, NALSAR Hyderabad and IIT Roorkee). Only IIT Roorkee and NALSAR Hyderabad have put up annual reports on the portal and even these reports do not cover expenditure made under the scheme.

The latest information regarding expenditure under the scheme can only be found in pieces and fragments. CUSAT published a self-study report that states that while Rs.50-60 lakhs are allotted every year, only Rs. 31, 49,950 has been received so far, NLSIU published an accounts report for the year 2012-2013 that states that Rs. 30, 00,000 had been received as of march 2013, but keeps quiet on the expenditure of the same.

The latest information on the issue is available in a 2013 report of an Evaluation Committee of the Planning Commission. The report says that the University of Madras last received funds of Rs.9 lakhs in 2001 and utilized most of it; that out of the Rs.100 lakhs released to NLSIU Bangalore so far, only around Rs.70 lakhs has been utilized as of 2013; that University of Delhi last received Rs.10 lakhs in 2001 and utilized only half of that. Further that CUSAT had so far received funds amounting to Rs.316.05 lakhs as of 2013 and has utilized only Rs.191.05 lakhs.

IIT Kanpur last received Rs.25 lakhs in 2006-07 and utilized Rs.17 lakhs from it; IIT Kharagpur also last received funds in 2009-10 of up to Rs.51.42 lakhs and utilized all of it. IIT madras is shown to have received Rs.25 lakhs in 2006-07 but it is unclear whether that has been utilized at all, IIT Delhi also received Rs.25 lakhs in the same year and utilized Rs.2 lakhs from it. IIT Bombay has received Rs.190 lakhs up till 2013 and has utilized only Rs.135 lakhs.

IIM Ahmedabad is yet to receive any funds. IIM Calcutta last received Rs.10 lakhs in 2007-08 but there is no information on whether that was utilized. IIM Bangalore had, as of 2013, received Rs.105.98 lakhs and utilized only Rs.78.98 lakhs of it.

JNU last received Rs.10 lakhs in 2007-08 but there is no word on whether it was utilized, same is the case with Delhi School of Economics.

NALSAR, Hyderabad had received Rs.111.40 lakhs as of 2013, but had utilized Rs.79.4 lakhs until then. NLU Jodhpur had received Rs.105.00 lakhs as of 2013 and utilized a mere Rs.69 lakhs from the bounty, NLIU Bhopal received Rs.100 lakhs as of 2013 and utilized only Rs.75 lakhs. NUJS had received Rs.90 lakhs as of 2012 and only utilized Rs.75 lakhs. IIT Roorkee had received Rs.30 lakhs as per 2012 and had utilized the entire amount; Tezpur University had received Rs.59 lakhs and utilized only Rs.29 lakhs as of 2013.

This wide variation in allocation of funds and in the utilization of funds, the report says, is due to lack of suitable proposals for seminars, workshops, conferences etc., “non-receipt of requests” for setting up of new Chairs, non-receipt of bills for grants that have already been released and a lack of continued attention to the scheme.

The details of how any of these funds were actually utilized are at present unavailable online. Statistics from the last financial year are unavailable anywhere on the internet as well; CIS has filed a Right to Information request for the same with the concerned authorities.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chairs-underutilization-of-funds-and-lack-of-information-regarding-expenditures

MHRD IPR Chair Series: Information Received from NUJS

nehaa — 2016-05-15T07:51:55Z

This post provides a factual description about the operation of Ministry of Human Resource Development IPR Chair’s Intellectual Property Education, Research and Public Outreach (IPERPO) scheme in the West Bengal National University of Juridical Sciences.

The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non-planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2013-2014.

To collect the information for the given study, an RTI application was filed to NUJS on 09/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 24/02/2015.

These are the documents received by CIS from NUJS:

For the RTI application filed by the CIS, click here
For the reply to the RTI application, click here

NUJS did not entertain the RTI and furnished no documents for perusal.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-nujs

MHRD IPR Chair Series: Information Received from NLU, Jodhpur

nehaa — 2016-05-26T02:03:42Z

Nisha S. Kumar assisted in compilation of the document.

To collect the information for the given study, an RTI application was filed to NLU, Jodhpur on 09/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 12/03/2015.

These are the documents received by CIS from NLU, Jodhpur:

For the reply to the RTI application click here
For the proposal to establish the IPR chair at NLU Jodhpur click here

Hereinafter, in order to receive any information about NLU, Jodhpur’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at NLU, Jodhpur.

Reply: NLU, Jodhpur has submitted the documents required under this track for the period of 2008-2015. To view the relevant documents, download the file (2008-09 –Part one,Part two and Part three; 2009-10 – Part one, Part two, Part three and Part four; 2010-11 – Complete; 2011-12 – Part one and Part two; 2012-13 – Part one and Part two; 2013-14 - Complete; 2014-15 - Complete).

Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: NLU, Jodhpur has submitted the documents required under this track for the period of 2008-2010 and the financial year of 2013-2014. To view all the documents submitted by the University in reply,click here.(nlu jodhpur F. No. 10.2008-IC’)
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at NLU, Jodhpur.
Reply: The University has provided utilisation certificatefor the period of 2008-11 and 2013-14. To view the supporting documents, click here. (nlu jodhpur Utilisation Certificate’)

Comparative Analysis between University Response and the guidelines of MHRD Scheme Document

The Scheme Document of MHRD (http://copyright.gov.in/Documents/scheme.pdf) is a comprehensive document which consists of guidelines regarding Intellectual Property Education, Research and Public Outreach. It talks about a list of objectives, purposes, conditions and eligibility criteria for a University to ensure in order to implement IPERPO in a truest sense. This document provides the procedural as well as qualifying conditions for an Institute to ensure or fulfil before applying for the MHRD grant. Some of these conditions include maintenance of utilization certificates, audit reports, expenditure statements and event information which would be open to access on demand by MDHR or Comptroller and Auditor General of India.

A. Objectives
In order to fulfil the objectives mentioned in the scheme document, NLU Jodhpur undertook following activities:

Introduction of UG and PG level courses on IPR
Conducting lecture series on the subject of IPR.
Conducting multiple workshops over the years to further the training of teachers as well as at a student level
Hosting numerous conclaves on the subject of IPR and their relation to business
Providing short term course on training of teachers in the field of IPR
Held various symposiums, seminars and conferences for the furtherance of IPR
Invited esteemed professors from the field for guest lectures
Established an IPR library in the IPR cell

B. Eligibility
NLU, Jodhpur is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis
A.Financial year 2008-09

The University received a grant of Rs. 14,00,000 out of which it utilized Rs. 11,90,115 for the implementation of the IPERPO scheme leaving an unspent balance of Rs. 2,09,885.

B. Financial year 2010-11

First installment

The University incurred an expenditure of Rs. 11,27,740 against a grant of Rs. 15,00,000 leaving an unutilized balance of Rs. 3,72,260.

Second Instalment

The University incurred an expenditure of Rs. 26,21,369 against a grant of Rs. 40,00,000 leaving an unspent balance of Rs. 13,78,631 as unutilized balance.

C. Financial year 2013-14

The University incurred an expenditure of Rs. 16,86,566 against a grant of Rs. 36,00,000 leaving an unspent balance of Rs. 19,13,434.

Expenditure Analysis

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-nlu-jodhpur

MHRD IPR Chair Series: Information Received from NLSIU

nehaa — 2016-05-27T16:15:49Z

Nisha S. Kumar assisted in compilation of this blog post.

The author has analysed all the data received through which, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2013-2014. To collect the information for the given study, an RTI application was filed to NLSIU on 17/11/2014 by the Centre for Internet and Society. The reply to RTI application was received on 18/12/2014.

These are the documents received by CIS from NLSIU:

For response to the RTI application click here
For documents related to the establishment of NLSIU's IPR cell and IPR chair click here

Hereinafter, in order to receive any information about NLSIU’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at NLSIU
Reply: NLSIU has submitted the documents required under this track. To view all the documents submitted by the University in reply,click here.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: Documents pertaining to the period of 2004-2013 and 2013-14 have been submitted by the University. To view the supporting documents click here and here.
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at NLSIU.
Reply: The University has provided utilisation certificate for the period of 2004-2014. To view the supporting documents, click here

Comparative Analysis between University Response and the guidelines of MHRD Scheme Document

A. Objectives
In order to fulfil the objectives mentioned in the scheme document, NLSIU undertook following activities:

Introduction of UG and PG level courses on IPR
Introduction of PhD fellowships in the field of IPR.
Conducting multiple workshops over the years to further the training of teachers as well as at a student level
Hosting numerous conclaves on the subject of IPR and their relation to business
Providing short term course on training of teachers in the field of IPR
Held various symposiums, seminars and conferences for the furtherance of IPR
Invited esteemed professors from the field for guest lectures
Established an IPR library in the IPR cell
Website on IPR launched

B. Eligibility
NLSIU is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis 2004-05

The University received a grant of Rs. 5,00,000 out of which it incurred an expense of Rs. 9,33,241.

B. Financial year 2008-09

The University incurred an expense of Rs. 14,90,890 against a grant of Rs. 20,00,000 leaving Rs. 5,09,110 as unspent balance.

C. Financial year 2009-10

The University incurred an expenditure of Rs. 23,53,552.17 against a grant of Rs. 15,00,000 and a carried forward balance of Rs. 5,09,110.

D. Financial year 2010-11

The University did not receive any grant, however, it incurred an expenditure of Rs. 32,88,478.

E. Financial year 2011-12

The University received a grant of Rs. 36,67,080 and incurred an expenditure of Rs. 32,11,663 leaving Rs. 4,55,417 as unspent balance.

F. Financial year 2012-13

The University incurred an expenditure of Rs. 37,87,391 against a grant of Rs. 30,00,000 and a carried forward balance of Rs. 4,55,417.

G. Financial year 2013-14

The University incurred an expendiute of Rs. 45,31,927 against a sanctioned grant of Rs. 45,00,000.

Expenditure Analysis for the Financial Year 2012-13

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-nlsiu

MHRD IPR Chair Series: Information Received from NALSAR

nehaa — 2016-05-15T07:43:20Z

The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non-planned expenditure, nature and frequency of programmesorganised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilisation of funds by the aforementioned university as provided by the MHRD during the period of 2013-2014.

To collect the information for the given study, an RTI application was filed to the NALSAR University of Law on 09/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 12/03/2015.

These are the documents received by CIS from NALSAR:

For the response to the RTI application click here
For complete supporting documents click here

Hereinafter, in order to receive any information about NALSAR’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at NALSAR
Reply: NALSAR has submitted the documents required under this track.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: Documents pertaining to the financial year 2013-14 have been submitted by the University.
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at NALSAR.
Reply: The University has provided utilisation certificatefor the financial year of 2013-14.
Details of the IPR Chair’s salary under the IPERPO Scheme indicating whether this amount is paid over and above the professional’s usual salary
Reply: The University has submitted all the documents pertaining to the aforementioned query.

Comparative Analysis between University Response and the guidelines of MHRD Scheme Document
The Scheme Document of MHRD (http://copyright.gov.in/Documents/scheme.pdf) is a comprehensive document which consists of guidelines regarding Intellectual Property Education, Research and Public Outreach. It talks about a list of objectives, purposes, conditions and eligibility criteria for a University to ensure in order to implement IPERPO in a truest sense. This document provides the procedural as well as qualifying conditions for an Institute to ensure or fulfil before applying for the MHRD grant. Some of these conditions include maintenance of utilization certificates, audit reports, expenditure statements and event information which would be open to access on demand by MDHR or Comptroller and Auditor General of India.

A. Objectives
In order to fulfil the objectives mentioned in the scheme document, NALSAR undertook following activities:
a. Faculty attendance at WIPO sessions.
b. Publication of IPR Journal
c. Expansion of the IPR section in the loibrary
B. Eligibility
NALSAR is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.
Financial Analysis
The University has provided the utilization certificates for the financial year of 2013-14.
A. Financial year 2013-14

The University received a grant of Rs. 40,00,000 from the Ministry of Human Resource and Development. Further, the unutilized balance of the financial year 2013-13, Rs. 10,02,540 carried over in addition to an interest of Rs. 91,129. The total funds at the University’s disposal amounted to Rs. 50,93,669. The University incurred an expense of Rs. 37,88,349 leaving Rs. 13,05,320 as unspent balance.

B. Expenditure Analysis

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-nalsar

MHRD IPR Chair Series: Information Received from JNU

nehaa — 2016-05-15T03:43:30Z

To collect the information for the given study, an RTI application was filed to the Jawaharlal Nehru University, Delhi on 18/12/2014 by the Centre for Internet and Society. The reply to RTI application was received on 24/02/2015. Subsequently, a second RTI application was filed by the Centre for Internet and Society on 09/02/2015. The University replied to the same on 26/03/2015.

These are the documents received by CIS from JNU:

For the response to the first RTI application click here
For the response to the second RTI application click here
For the report submitted by the University click here

Hereinafter, in order to receive any information about Jawaharlal University’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at JNU.
Reply: The University submitted that there has been a release of Rs. 10,00,000 as a sanctioned amount by the MHRD under the IPERPO scheme. However, the same has not been utilized in any manner to further the objectives of the scheme. The reason is that the University believes this amount to be inadequate and has requested additional funds from the MHRD.

Documents on the release of grants to the MHRD IPR Chairs under the IPERPO scheme at JNU for the year 2013-14.
Reply: The University clubbed the answer to this with the aforementioned query.
Documents relating to receipts of utilization certificates and audited expenditure 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 at JNU.
Reply: The University has not provided any such documents in relation to the grant received.

Documents regarding all matters related to finance and budget related to the MHRD IPR Chair under the IPERPO scheme 2013-14 established at JNU.
Reply: The University did not submit any documents in this regard and replied that this information may be sought from the concerned Centre/School.

A. Objectives
The University has submitted that there have been no activities undertaken to further the objectives of the IPERPO scheme.

B. Eligibility
Jawaharlal Nehru University, Delhi is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis
The University has not provided any documents on this subject.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-jnu

MHRD IPR Chair Series: Information Received from IIT, Madras

nehaa — 2016-05-24T17:12:48Z

Nisha S. Kumar assisted in compilation of the document.

The author has analysed all the data received under various heads such as income, grants from MHRD, planned and non-planned expenditure, nature and frequency of programmes organised and the allocation of funds for the same. Throughout the course of observation and presentation of the analysed data, the author seeks to trace the presence of unjustified underutilization of funds by the aforementioned university as provided by the MHRD during the period of 2006-2014.

To collect the information for the given study, an RTI application was filed to the Indian Institute of Technology, Madras on 17/12/2014 by the Centre for Internet and Society. The reply to this RTI application was received on 02/02/2014. Following the inadequacy of the response by the institute, the Centre for Internet and Society filed a second RTI application on 09/02/2015. The reply to this application was received on 12/03/2015. These are the documents received by CIS from IIT Madras:

Click for response to first RTI and supporting documents provided click here
For response to second RTI application click here

Hereinafter, in order to receive any information about IIT Madras’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at IIT Madras from 2006-2014
Reply: IIT Madras replied that there is no report with respect to the implementation of the scheme and the IPR chair at IIT Madras.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: The University received a grant of Rs. 25,00,000 from the Ministry of Human Resource and Development under the IPERPO scheme. This amount was sanctioned for the purpose of furthering the objectives of the scheme.
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at IIT Madras.
Reply: The University has submitted utilization certificates from 2006 to 2014.

Comparative Analysis between University Response and the guidelines of MHRD Scheme Document

A. Objectives
The University has not provided any documents detailing any activities undertaken to further th objectives of the IPERPO scheme.

B. Eligibility
IIT Madras is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis
The University has provided the utilization certificates for the period 2006-2014.

A. Financial year 2006-07

A sanctioned amount of Rs. 25,00,000 was received by the University with a carried forward balance of Rs. 1,09,119. There were no expenditures incurred by the University.

B. Financial year 2007-08

The University did not receive any grant from the Ministry of Human Resource and Development. However, last year’s unutilized balance of Rs.26,09,119 carried over with an additional Rs. 2,00,000 received as interest. There were no expenses incurred.

C. Financial year 2008-09

The University did not receive any additional grant from the Ministry, however, last year’s unutilized balance of Rs. 28,09,119 carried over with an additional Rs. 2,00,000 received as interest. There were no expenses incurred.

D. Financial year 2009-10

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 30,09,119 carried forward entirely with an additional Rs. 1,33,177 received as interest. There were no expenses incurred.

E. Financial year 2010-11

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 31,42,296 carried forward entirely with an additional Rs. 1,33,176 received as interest. There were no expenses incurred.

F. Financial year 2011-12

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 32,75,472 carried forward entirely with an additional Rs. 1,33,176 received as interest. There were no expenses incurred.

G. Financial year 2012-13

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 34,08,648 carried forward entirely with an additional Rs. 1,33,176 received as interest. There were no expenses incurred.

H. Financial year 2013-14

The University did not receive any grant from the ministry however, the last year’s balance of unutilized balance of Rs. 35,41,824 carried forward entirely with an additional Rs. 1,33,176 received as interest amounting to a total of Rs. 36,75,000. Expenses amounting to Rs. 5,25,783 were incurred by the University leading to an unspent balance of Rs. 31,49,217.

An expenditure breakdown has not been provided by the University.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-madras

MHRD IPR Chair Series: Information Received from IIT, Kharagpur

nehaa — 2016-05-15T06:19:57Z

To collect the information for the given study, an RTI application was filed to IIT, Kharagpur on 25/11/2014 by the Centre for Internet and Society. The reply to the same was received on 17/12/2014. Following this, a second application was filed on the 10/03/2015 by the Centre for Internet and Society. The reply to RTI application was received on 17/04/2015.

These are the documents received by CIS from IIT, Kharagpur:

For the reply to the first RTI application click here
For the reply to the second RTI application click here
For the documents detailing the proposal for the setting up of IPR chair in IIT, Kharagpur, click here
For the documents detailing the minutes of the meeting regarding the setting up of the IPR chair in IIT, Kharagpur, click here

Hereinafter, in order to receive any information about IIT, Kharagpur’s RTI reply, kindly refer to the above mentioned links. Following are the queries mentioned in the RTI application along with their replies.

Reports on the implementation of the IPERPO scheme of the Ministry of Human Resource Development and the implementation of the MHRD IPR Chair funded under the scheme at IIT, Kharagpur
Reply: IIT, Kharagpur has submitted the documents required under this track.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: Documents pertaining to the year 2006 and 2013 have been submitted by the University.
Documents relating to receipts of utilisation certificates and audited expenditure statements and matters related to all financial sanctions with regard to funds granted to the MHRD IPR Chair established under the IPERPO scheme at IIT, Kharagpur.
Reply: The University replied that it has not received any confirmation from the MHRD regarding the mentioned documents.

Comparative Analysis between University Response and the guidelines of MHRD Scheme Document
The Scheme document of MHRD is comprehensive document which consists of guidelines regarding Intellectual Property Education, Research and Public Outreach. It talks about a list of objectives, purposes, conditions and eligibility criteria for a University to ensure in order to implement IPERPO in a truest sense. This document provides the procedural as well as qualifying conditions for an Institute to ensure or fulfil before applying for the MHRD grant. Some of these conditions include maintenance of utilization certificates, audit reports, expenditure statements and event information which would be open to access on demand by MDHR or Comptroller and Auditor General of India.

A. Objectives
In order to fulfil the objectives mentioned in the scheme document, IIT, Kharagpur undertook following activities:
a. Conducting multiple workshops over the years to further the training of teachers as well as at a student level
b. Hosting numerous conclaves on the subject of IPR and their relation to business
c. Providing short term course on training of teachers in the field of IPR
d. Held various symposiums, seminars and conferences for the furtherance of IPR
e. Hosted various interactive platforms regarding IPR
f. Undertook research collaborations in IPR
B. Eligibility
IIT, Kharagpur is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis
The University has not provided documents regarding any financial analysis.

For more details visit https://cis-india.org/a2k/blogs/mhrd-ipr-chair-series-information-received-from-iit-kharagpur