Centre for Internet and Society

MHRD IPR Chair Series: Information Received from NLSIU

nehaa — 2016-05-27T16:15:49Z

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 National Law School of India University.

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

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, 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

MHRD IPR Chair Series: Information Received from IIT, Kanpur

nehaa — 2016-06-04T03:35:09Z

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 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 Indian Institute of Technology, Kanpur on 16/02/2015 by the Centre for Internet and Society. The reply to the same was received on 27/02/2015.

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

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

IIT,Kanpur 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-iit-kanpur

MHRD IPR Chair Series: Information Received from IIM, Bangalore

nehaa — 2016-05-21T09:13:30Z

To collect the information for the given study, an RTI application was filed to the Indian Institute of Management, Bangalore by the Centre for Internet and Society. The reply to RTI application was received on 16/12/2014. There was a further correspondence through email between the University and CIS following which additional supporting documents were provided by the University.

These are the documents received by CIS from IIM, Bangalore:

For response to the RTI application click here
For response to the email click here
For the report provided by IIM, Bangalore click here

Hereinafter, in order to receive any information about IIM, Bangalore’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 IIM, Bangalore
Reply: IIM, Bangalore 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 financial years2005-06, 2007-08 and the period of 2012-2013 have been submitted by the University. To view the supporting documents click 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 IIM, Bangalore.
Reply: The University has provided utilisation certificate for the period of 2007-2014. To view the supporting documents, click here.
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 the extract pertaining to the aforementioned query. To view the supporting documents submitted by the University, 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, IIM, Bangalore undertook following activities:
a. Introduction of electives at PGP and PGSEM level.
b. Promoting IPR related publications and case writing.
c. Provided input to the MHRD on matters pertaining to IPR.
d. Conducting multiple workshops over the years to further the training of teachers as well as at a student level
e. Hosting numerous conclaves and conferences on the subject of IPR and their relation to business
f. Held various symposiums, seminars and conferences for the furtherance of IPR
B. Eligibility
Indian Institute of Management, Bangalore is recognized by the University Grants Commission. Therefore, it fulfils the eligibility criteria mentioned in the scheme document.

Financial Analysis

A.Financial year 2007-08

The University received a grant of Rs. 5,00,000 with an incurred expenditure amounting to Rs. 7,45,000.

B. Financial year 2008-09

The University received Rs. 10,00,000 as a sanctioned grant by the MHRD out of which an expense of Rs. 1,09,307 was incurred. After settling with last year’s due balance, the unspent balance amounts to Rs. 8,95,000.

C. Financial year 2009-10

The University did not receive any grant from the MHRD in this year, however it utilized completely the carried forward balance of last year.

D. Financial year 2010-11

The University did not receive any grant from the MHRD in this year, however it incurred an expenditure of Rs. 38,84,000 in the implementation of the IPERPO scheme.

E. Financial year 2011-12

The University received a grant of Rs. 61,53,000 and incurred an expenditure of Rs. 60,89,295 leaving an unspent balance of Rs. 63,705.

F. Financial year 2012-13

The University received a grant of Rs. 27,00,000 from the MHRD which, in addition to the previous year’s carried forward balance amounted to Rs. 277,63,705. Out of this, the University utilized a sum of Rs. 25,35,206 for the purpose for which it was sanctioned leaving Rs. 2,28,499 as unspent balance.

G. Financial year 2013-14

The University received a grant of Rs. 23,50,000 from the MHRD which, in addition to the previous year’s unutilized balance amounted to Rs. 25,78,499. The university incurred an expense of Rs. 27,19,349.

Expenditure Analysis

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

MHRD IPR Chair Series: Information Received from IIM, Ahmedabad

nehaa — 2016-05-17T02:31:38Z

To collect the information for the given study, an RTI application was filed to the Indian Institute of Management, Ahmedabad on 24/11/2014 by the Centre for Internet and Society. The reply to RTI application was received on 09/12/2014. Following this, a second RTI application was filed by the Centre of Internet and Society on 09/02/21015. The reply to the same was received on 23/02/2015.

These are the documents received by CIS from IIM, Ahmedabad:

For response to first RTI application, click here
For response to second RTI application, click here

Hereinafter, in order to receive any information about IIM Ahmedabad’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 IIM Ahmedabad.
Reply: IIM Ahmedabad responded that there has not been any institution of the post of IPR Chair at the University.
Documents detailing the release of grants to the MHRD IPR Chairs under the IPERPO Scheme
Reply: The University has provided no documents on the subject.
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 IIM Ahmedabad.
Reply: The University has provided no documents on the subject.
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 provided no documents on the subject.

A. Objectives

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

B. Eligibility

IIM, Ahmedabad 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-iim-ahmedabad

MHRD IPR Chair Series: Information Received from Delhi University

nehaa — 2016-05-15T12:18:40Z

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 Delhi University on 09/02/2015 by the Centre for Internet and Society. The reply to RTI application was received on 25/02/2015.

These are the documents received by CIS from Delhi University:

For the response to the RTI application click here

Hereinafter, in order to receive any information about Delhi School of Economics, Delhi 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 the Delhi School of Economics.
Reply: The University submitted that there are no reports on the implementation of the IPERPO scheme or the MHRD IPR Chair funded under the same. Additionally, the implementation of the scheme commended at Delhi University w.e.f 20th Feb., 2014. Dr. Rekha Chaturvedi joined as the IPR Chair (Technical) on the same date.
Documents on the release of grants to the MHRD IPR Chairs under the IPERPO scheme at the Delhi University, Delhi School of Economics for the year 2013-14.
Reply: The University submitted that there has been no release of grants by the Human Resource and Development Ministry under the IPERPO Scheme.
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 the Delhi University, Delhi School of Economics.
Reply: The University replied that as there has been no release of grants under the IPERPO scheme, the question of utilization certificates and audited expenditure or any other matter related to financial sanctions with regard to the funds does not arise.
Documents regarding all matters related to finance and budget related to the MHRD IPR Chair under the IPERPO scheme 2013-14 established at Delhi University, Delhi School of Economics.
Reply: The University did not submit any documents in this regard and asserted that the information sought is not specific.

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

B. Eligibility
Delhi School of Economics, Delhi University 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-delhi-university

Mapping Institutions of Intellectual Property: Part C — Comparing Intellectual Property Institutions

nehaa — 2014-07-22T04:24:23Z

Earlier this year, a proposal to establish a National Institute of Intellectual Property Rights (“NIIPR”) was presented at a Stakeholders Consultation held in New Delhi organized by the Planning Commission and the Ministry of Human Resource Development (“MHRD”), Government of India. As a third part in the series on Mapping Institutions of Intellectual Property, this article undertakes a comparison of the functions of this proposed Institute with similarly placed Institutions of Intellectual Property around the world.

View Parts A and B here and here

Preliminary

Intellectual Property Institutes/Institutes of Intellectual Property (“Institutes”) world over usually perform two kinds of functions- first, they may serve as the Intellectual Property Office (the nodal agency for matters relating to intellectual property) in their respective countries and second, they may provide policy inputs to their respective governments. From discussions at a Stakeholders Consultation in New Delhi earlier this year (which I have written about here and here), it emerged that the Indian government (specifically, the Department of Industrial Policy and Promotion, India’s nodal agency for IPR related matters except copyright, and the MHRD, India’s nodal agency for copyright related matters ) lacked an institutional framework for policy feedback to the government, which in turn would supplement international negotiations. In order to address this lacuna, the Planning Commission and the MHRD presented a proposal (“the Proposal”) to set up the NIIPR, which would, inter alia, perform the function of advising the Indian government on matters of intellectual property law and policy and inform international negotiations pursuant to the same. This article examines Institutes other jurisdictions on the basis of their functions, and attempts to ascertain what functions an ‘ideal’ Institute might perform.

Methodology and Preliminary Findings

A list of two hundred and fifty seven territories was prepared and attempts were made to trace Institutes in each of these territories. Out of these, those Institutes that had websites, and whose websites had content available in English (or for which an official or credible translation was available) were earmarked. Once the Institutes had been thus identified, their distinctive features and past achievements were studied on the basis of disclosures available on the websites of the Institutes.

It emerged that twenty three (23) countries had Institutes that performed functions similar to those envisaged for the proposed NIIPR. These countries include Albania, Australia, Belarus, Belgium, Belize, Bosnia and Herzegovina, Brazil, Chile, France, Gabon, Greece, Iceland, Japan, Kazakhstan, Kenya, Malaysia, New Zealand, Pakistan, Portugal, Romania, Switzerland, Taiwan and Vietnam. However, this number cannot be said to be exhaustive as for 10 Countries, the translated page could not be availed. Further, in a few countries including Belgium, Belize, Iceland, New Zealand, Trinidad and Tobago, Sri Lanka and United States, the Intellectual Property Office performed the additional function of providing policy inputs to the government, in addition to administering and granting Intellectual Property Rights.

A diagrammatic representation of these preliminary findings and the methodology is available in Figures 1 and 2 (below).


Figure 1


Figure 2

Observations on Functions


Figure 3

Institutes across the world are varied in their functioning, structure and organization. Some observations (that could aid the establishment of the NIIPR) on the functioning of some of these Institutes are as under:

The Institute for Intellectual Property Rights of Bosnia and Herzegovina performs a dual role of the Patent Office as well as that of a research institute. In addition to assisting the government when it enters into agreements, it also performs documentation tasks and implements regulations related to intellectual property. It is also entrusted with the task of maintaining a record of industrial property applied for and granted.
The National Institute of Industrial Property, France contributes to the development and implementation of public policies in the field of anti-counterfeiting.
The Centre for Industrial property of Gabon presents and defends the interests of the Gabonese government at the international level.
The Hellenic Industrial Property Organisation registers inventions in Greece by granting patents and utility model certificates. It also registers industrial designs and community designs and models. Moreover, it also acts as a receiving office for the European Patent and the PCT certificate among others.
The National Institute of Intellectual Property, Kazakhstan performs the functions of the National Patent Office, including examination of applications for patents, useful models, trademarks, appellation of origin of goods and industrial designs.
The Intellectual Property Organization, Pakistan seeks to serve as the nodal organisation for the integrated management of intellectual property and seeks to coordinate the enforcement of intellectual property as well.
The Swiss Federal Institute of Intellectual Property performs the task of examining national filing applications and grants and administers intellectual property rights. It has also developed a patent database (ESPACEMENT) which has ensured access to over eighty (80) million patent documents.
The Japanese Institute of Intellectual Property provides inputs on existing laws to the Government of Japan. These inputs have influenced the revision of Japanese laws relating to patents, trademarks, utility models and the prevention of unfair competition.

Takeaways for the NIIPR

This attempt at an overview of Intellectual Property Institutes around the world has revealed broad similarities in their functioning. These similarities are also seen with the proposed functions of the NIIPR, as outlined in the Proposal of the MHRD and the Planning Commission. It would therefore lead one to believe that the establishment of this institution is potentially headed in the right direction. However, even while the functions of these existing Institutions might guide the establishment of the NIIPR, it would do well to tailor itself to meet India’s specific requirements. With pre-existing ministries, departments and offices in place to deal with the enforcement of intellectual property rights, India needs a body that informs the government on issues of intellectual property law and policy reform, in preparation for international negotiations, which is a lacuna that the NIIPR ought to address. In addition to this core function, the NIIPR may be the institution that oversees the role and functioning of the MHRD Chairs, and also be developed as a research institution aiding the government in developing an intellectual property framework addressing the needs of all stakeholders. Further, the NIIPR may also consider undertaking activities such as the establishment of databases containing patent documents and other publications in Indic languages to ensure access to a larger group of people. The NIIPR could also play an influential role in shaping regional discussions on intellectual property at the international level and encourage and facilitate South-South dialogue.

With nine thousand nine hundred and eighty (9980) lakh Indian rupees being allocated for the National Programme on Intellectual Property Management under the current Five Year Plan (2012-2017), which includes the establishment of the NIIPR, one awaits further developments that might well change the face of India’s intellectual property framework in the long run, with a sense restrained excitement.

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

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

nehaa — 2014-06-26T15:27:18Z

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

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

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

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

Introduction

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

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

Genesis of the Scheme

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

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

MHRD-IPR Chairs

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

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

Observations on Performance of IPR Chairs

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

Plan Allocation and Expenditure

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

New Initiatives to be taken during XII Plan

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

Specific Recommendations

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

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

Background

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

Functions

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

Broad Deliverables and Outcomes of the Centre

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

Linkages

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

Organizational Structure and Funding

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

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

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

Introduction

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

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

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

Objectives

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

Functions

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

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

The Broad Deliverables and outcomes of the Institute include:

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

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

Linkages and Network

The Institute will establish linkages and network with:

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

Organizational Structure

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

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

Funding

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

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

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

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

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

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

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

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

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

nehaa — 2014-06-10T07:34:34Z

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

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

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

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

Presentation and Ensuing Discussions

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

Ecosystem

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

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


Figure 1

Education: Programs and Courses

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


Figure 2

Education: Various Elements

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


Figure 3

Research and Policy Support

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


Figure 4

Training & Capacity building

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


Figure 5

Creation/ Protection and Management

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


Figure 6

National/ Regional Centres/ Chairs

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


Figure 7

Governance

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


Figure 8

Funding Arrangements


Figure 9

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

Intellectual Property Education

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

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

Background

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

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

At the Consultation

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

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

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

Establishment of a National Institute of Intellectual Property Rights

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

At the Consultation

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

Concluding Observations

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

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

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

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

Letter to the Prime Minister on Indo-US Bilateral Relations on Intellectual Property

nehaa — 2014-11-03T14:58:26Z

This is a letter that many organizations sent to the Prime Minister. The Centre for Internet and Society was one of the signatories.

22 October 2014

To,

Shri. Narendra Modi
Hon’ble Prime Minister of India
South Block, Raisina Hill,
New Delhi-110011

Fax: 23019545

SUBJECT: US-India Bilateral Relations on Intellectual Property

Dear Prime Minister Modi ji,

We, the undersigned, wish to share with you some of our concerns on India’s position on intellectual property (IP), particularly in the context of bilateral relations between the United States of America and India. We gather from the US-India Joint Statement dated 30 September 2014 that the Indian Government

(a)greeing on the need to foster innovation in a manner that promotes economic growth and job creation…committed to establish an annual high-level Intellectual Property (IP) Working Group with appropriate decision-making and technical-level meetings as part of the Trade Policy Forum.

The necessity for setting up the joint Indo-US IP Working Group is not entirely clear. As the Department of Industrial Policy & Promotion (DIPP)‘s press release of 3 October 2014 mentions, there is already in operation an Indo-US Trade Policy Forum since 2010. Therefore, we request your Government to kindly make the specific purpose of this joint Working Group publicly known.

We wish to further submit that the grant of decision-making powers to the new joint Working Group could be at the risk of ingression of sovereign policy space. Bilateral arrangements should not have the power to supersede domestic democratic decision-making processes mandated by the Constitution of India. We appreciate that bilateral parleys at the political and diplomatic levels may be necessary in order to address threats of unilateral action by the US administration. But such bilateralism in the area of IP must be approached with an extremely high degree of caution.

We urge that the Government be particularly wary of higher IP standards (benefiting US corporations) that are typically demanded by the US administration and its trade negotiators in bilateral and plurilateral negotiations. The US demands clearly go beyond what the World Trade Organisation (WTO) asks for from its member countries. Several regional trade agreements or bilateral investment treaties either signed by or being negotiated by the US bear evidence to this trend. Any bilateral negotiation on IP between India and the US would definitely witness demands on India to provide for higher standards of IP protection that are not required of us by the WTO’s IP agreement - TRIPS.

It is important to note that the new bilateral arrangement between the United States Government and the Government of India is being undertaken against the backdrop of heightened US political interest in India’s IP regime, which has been spurred on by its business interests. Pharmaceutical and biotechnology MNCs backed by the US are the key actors on that front. India has earned phenomenal interest world over for its generic medicines -- a reputation that must be preserved. US should not decide our IP policies when it is a question of national interest and international solidarity. There have been intensified pressures on India; US putting India on its 2014 ‘Priority Watch List’ and the current Out-of-Cycle Review (OCR) of India’s IP regime being conducted by the US are recent examples of this. We fully support the position taken by Indian authorities to not go along with any such unilateral measures by the US Government. We insist that this stance of the Government of India be relentlessly maintained.

In case there is an intent to craft afresh our position on IP and its different dimensions, it should be pursued by a ‘National Working Group on IP’ working under the oversight of a Standing Committee of the Parliament of India. While formulating India’s positions on IP we trust that the Government of India will continue to withstand external pressures on this front. We urge the Government not to continue with the proposed annual forum on IP with the US, particularly as we do not have a matching domestic process.

The process begun under the DIPP to frame a national IP Policy, first needs to be completed independently along with public consultation. Many more stakeholders from amongst ‘ordinary’ peoples need to be included in the process; these include treatment activists, farmers groups, community organisations, etc. While there is no harm in having a policy statement, the policy should be consistent with the existing laws in our country and mindful of the future challenges, particularly for the generic medicines industry. While framing a national IP Policy afresh, it needs to be kept in mind that our current IP laws are already compliant with existing international laws and allied obligations. We strongly urge you not to amend India's IP statutes to reduce the flexibilities currently available to safeguard the public interest such as affordable medical products, right to food and the access to knowledge.

As you are aware, India’s IP rules and their enforcement also have trans-boundary implications. As an emerging global force, as well as a responsible member of the global community, through its IP strategy India is well positioned to also articulate the concerns of many Low and Middle Income countries. The legitimate space for discussions on global IP standards is the WTO’s TRIPS Council, and it is in this multilateral forum that issues of concern between different countries should be discussed. India ought to reach out to a much larger constituency, even beyond the 160 country governments represented in the WTO, through the promotion of IP-related policies that are humane and which foster people-centred and planet-sensitive ‘development’.

We the undersigned, working in different sectors, would also like to collectively reiterate that higher standards of IP protection will not necessarily translate into ‘economic growth and job creation’ in a country such as India. IP-related policy cannot be dealt with as a mere trade issue. Sectors that entail the provision of basic human needs, such as health, agriculture, biodiversity, education, etc., can be adversely impacted by higher standards of IP protection and the dilution of flexibilities (for example, those in our existing Patent Act). Public policy goals with respect to scientific endeavours, technology development and local innovations that offer more sustainable options for the future – such as climate-adaptive seeds and Indian Systems of Medicine, can also be severely challenged by inappropriate domestic IP strategies.

Given the multiple domestic concerns that our IP Policy must respond to, we press for your Government to kindly view it with a holistic perspective that it warrants, rather than the official approach being subsumed by the relatively narrow confines of trade and economic policy.

We earnestly entreat you to take a personal interest in this important matter.

Thank you.

Sincerely,

CONCERNED CITIZENS/GROUPS:

Shalini Bhutani, Legal Researcher & Policy Analyst
B L Das, Former Ambassador to GATT
Anand Grover, Director, Lawyers Collective
K M Gopakumar, Third World Network
Dinesh Abrol, National Working Group on Patent Laws
Prof. Jayati Ghosh, Jawaharlal Nehru University
Kalyani Menon-Sen, Feminist Activist & Coordinator, Campaign for Affordable Trastuzumab
S. Srinivasan, Low Cost Standard Therapeutics (LOCOST), Gujarat
Amit Sengupta, Jan Swasthya Abhiyan
Mira Shiva, Initiative for Health & Equity in Society and All India Drug Action Network
Biswajit Dhar, Professor CESP/SSS, Jawaharlal Nehru University
Sagari R Ramdas, Food Sovereignty Alliance - India
K. Pandu Dora, Adivasi Aikya Vedika
Kavitha Kuruganti, Alliance for Sustainable & Holistic Agriculture (ASHA)
Vikas Ahuja, President, The Delhi Network of Positive People
Loon Gangte, Regional Coordinator, ITPC-South Asia
Aruna Rodrigues, Sunray Harvesters
Suman Sahai, Gene Campaign
Wilfred Dcosta, Indian Social Action Forum (INSAF)
Surajit Mazumdar, Professor CESP/SSS, Jawaharlal Nehru University
Kanchi Kohli, Campaign for Conservation and Community Control over Biodiversity & Kalpavriksh
Kapil Shah, Jatan Trust, Gujarat & Organic Farming Association of India (OFAI)
S. Ashalatha on behalf of Rythu Swarajya Vedika, Telangana and Andhra Pradesh
Kavita Panjabi, Professor, Jadavpur University
Umendra Dutt, Kheti Virasat Mission, Punjab
Usha S., Thanal, Kerala
Aruna Burte, Feminist Researcher and cancer survivor
Nivedita Menon, Feminist Activist and Professor, Jawaharlal Nehru University
Gabriele Dietrich, National Alliance of People's Movements
Kannamma Raman, Associate Professor, Department of Civics and Politics, University of Mumbai
Jacob Nellithanam, Centre for indigenous Farming Systems, Chhattisgarh & Madhya Pradesh
Rajesh Krishnan, Coalition for a GM Free India
Rachna Arora from Public Awareness on GM Food (PAGMF)
Ashish Gupta, IFOAM Asia
Claude Alvares, Goa Foundation
M R Baiju, Democratic Alliance for Knowledge Freedom (DAKF), Kerala
Madhu Sarin, Forest rights researcher and policy analyst
P V Satheesh, Director, Deccan Development Society
C N Suresh Kumar, Co-Convenor, Millet Network of India (MINI)
C Jayasri, Coordinator, Southern Action on Genetic Engineering (SAGE)
A Giridhar Babu, Alliance for Food Sovereignty in South Asia (AFSSA)
Narsamma Masanagari, Media Coordinator, Community Media Trust
Bharat Mansata, Earthcare Books
T C James, former Director (IPRs), DIPP, Government of India
D. Narasimha Reddy, ICSSR National Fellow, CSD, Hyderabad
Mishi Choudhary, Executive Director, Software Freedom Law Centre (SFLC.IN)
K Ashok Rao, President, National Confederation of Officers Associations (NCOA)
B Ekbal, Kerala Sastra Sahithya Parishad
Gautam Mody, General Secretary New Trade Union Initiative
Sunil Abraham, Centre for Internet and Society (CIS)
Veena Johari, Lawyer and Legal Researcher
Subbiah Arunachalam, Science writer
Vandana Shiva, Director Navdanya Trust.
Manoj Pardeshi, General Secretary, National Coalition of People Living with HIV in India (NCPI+) and NMP+
Malini Aisola, Oxfam India
Manicandan, Forum Against FTAs
Afsar H. Jafri, Focus on the Global South
Forum against FTAs.

Cc:

Hon’ Minister of Agriculture
Hon’ Minister of Commerce and Industry
Hon’ Minister of External affairs
Hon’ Minister of Environment, Forests and Climate Change
Hon’ Minister of Human Resources Development
Hon’ Minister of Communications and Information Technology
Hon’ Minister of Science and Technology
Principal Secretary, PMO
Secretary, Department of Agriculture Research and Education
Secretary, ER& DPA , Ministry of External Affairs
Secretary, Department of Commerce
Secretary, Department of Communication and Information Technology
Secretary, Department of Environment, Forests and Climate Change
Secretary, Department of Higher Education
Secretary, Department of Industry Policy and Promotion
Secretary, Department of Science and Technology

For Further Communications:

Dinesh Abrol, Convener, National Working Group on Patent Laws (NWGPL), J 17, Second Floor, Lajpat Nagar 3, New Delhi 110 02.
Tel: 011-40521773, Email: dinesh.abrol@gmail.com

For more details visit https://cis-india.org/a2k/blogs/letter-to-prime-minister-on-indo-us-bilateral-relations-on-intellectual-property

Letter for Establishment of Patent Pool for Low-cost Access Devices through Compulsory Licenses

nehaa — 2013-06-27T08:06:50Z

On June 27, 2013, CIS sent a letter for establishment of a patent pool for low cost access devices through compulsory licenses.

M. Mangapati Pallam Raju
Minister for Human Resource Development
Shastri Bhavan
New Delhi 110 001

27 June 2013

Dear Dr. Pallam Raju,

Subject: Establishment of a Patent Pool for Low-Cost Access Devices through Compulsory Licences

We at the Centre for Internet and Society would like to commend you for the progressive stand you have adopted that while the government is committed to low-cost access devices, students should be able to decide “on which device, whether it is a mobile phone or iPad or Aakash or regular com-puter, they access the content”. It is imperative, though, that low-cost access devices (LCAD) be available to students, and thus the Mehta Committee report rightly acknowledges the importance of the Aakash project as central to the National Mission on Education through Information and Com-munications Technology (NMEICT). We propose a solution that would ensure both easy access to affordable devices for students to enable the NMEICT mission, as well as ensure that the MHRD focus more on educational content than devices.

We would urge you to enable access to LCADs by establishing a patent pool of essential technolo-gies (the ‘Aakash patent pool’) through the issue of compulsory licences. There are, at present in-ternationally, thousands of granted patents and tens of thousands of other intellectual property claims in respect of mobile and tablet technologies. The multiplicity of claims and cross-claims makes it impossible to manufacture, without exposure to adverse claims, generic and affordable tab-let devices. As you know, the assertion of multiple adverse and competing intellectual property claims is one of the main reasons that the Aakash tablet project is stalled. Already the multi-billion dollar patent wars in the US and Europe between Apple, Samsung, and other device manufacturers, are coming to India with Ericsson suing Micromax, India’s second-largest seller of phones and tab-lets, for Rs. 100 crore just a few weeks ago.

The establishment of a patent pool of essential technologies will redress this imminent failure and will enable the manufacturing of affordable tablet devices in compliance with the NMEICT. To es-tablish such a patent pool, the current patents applicable to mobile and tablet devices must be com-pulsorily licensed to a common pool and manufacturers who wish to sell their devices at an afford-able price would be allowed, at uniform terms and conditions, to utlise these patented technologies. This will simultaneously ensure that all patent-holders will benefit from royalty payments and that all manufacturers will gain access to the requisite patented technologies in a fair manner without adverse claims. The manufacturers who benefit from the pool could be required to give the Indian government credit by displaying the Aakash logo on their devices.

In order to establish such a patent pool, it is necessary to, firstly, identify the relevant technologies, and all patent-holders of such technologies, and secondly, compulsorily licence the patents in re-spect of the identified relevant technologies to the patent pool for fair and uniform consideration. Once the patent pool is established, rules may be issued to govern access to the pooled patents, regulate the manufacturing process and prevent misuse. The Patent Act, 1970 contains provisions to permit compulsory licensing of patents by the Controller of Patents on an application made in this behalf. Section 84(1)(b) read with section 84(4) of the Patents Act, 1970 enables the issue of a com-pulsory licence in respect of a patented invention if it “is not available to the public at a reasonably affordable price”.[1]

The establishment of a patent pool will directly promote public interest by advancing and deepening education in India and will also facilitate the realisation of the NMEICT.[2]

Establishing a patent pool for tablet technologies will also stimulate manufacturing in the informa-tion technology and electronics sectors in India. The National Manufacturing Policy, 2011 identifies information technology hardware and electronics and telecommunication equipment as industries of strategic significance that demand special encouragement. The Policy calls for “sector-specific pol-icy interventions” in special focus sectors where India enjoys the benefit of cost competitiveness. It is possible that, if implemented, the patent pool and the Aakash project will become global symbols of India's technological ability. While the farsightedness of the Indian Patent Act and policymakers has resulted in India becoming the “pharmacy of the world”, similar farsightedness may now result in India becoming the “electronics hub of the world”.

Forming such a patent pool for affordable access devices will prove to be a huge opportunity for education, and the credit for that would go to the Indian government and to the MHRD in particular. Further, some of the most important patent pools of the past have only come into existence after government intervention, such as the avionics patent pool proposed by the Secretary of the U.S. Navy during World War I and the radio patent pool, also created as a result of intervention by the U.S. Government. For these and other reasons, we urge you to consider establishing a patent pool for technologies relevant to the manufacture of affordable tablets and other similar devices. We will be happy to meet you, at your convenience, to talk about the legal and other issues involved in such a project.

Thank you.

Yours sincerely,

Sunil Abraham
Executive Director

Copies to:

Dr. Shashi Tharoor, Hon’ble Minister of State for Human Resource Development;
Shri Jitin Prasada, Hon’ble Minister of State for Human Resource Development;
Shri Ashok Thakur, Secretary;
Smt. Amita Sharma, Additional Secretary;
Shri Amit Khare, Joint Secretary.

[1].Compulsory licensing has long been favoured in India to enable public access to essential technologies. The Report on the Revision of the Patent Law, 1959 by a Committee headed by Justice N. Rajagopala Ayyangar advocated a strong compulsory licensing regime that formed the basis for the unamended Patents Act, 1970. The recent decision of the Supreme Court of India in the matter of Novartis v. Union of India (CA 2706-2716 of 2009) creates a judicially enforceable precedent in respect of enabling affordable access to patented technologies in the public interest.

[2]. In addition, the decision of the Controller of Patents, Mumbai, in NATCO Pharma and Bayer Corporation (CL Application 1 of 2011) that upheld the issue of a compulsory licence in respect of a particular pharmaceutical promotes the principle of affordable access to essential technologies. The issuance of a compulsory licence to establish a patent pool will not violate India's commitments under the Agreement on Trade-Related Intellectual Property Rights (TRIPS Agreement) of the World Trade Organisation.

For more details visit https://cis-india.org/a2k/blogs/letter-for-establishment-of-patent-pool-for-low-cost-access-devices

Karnataka Goondas Act - A note on Legislative Competence

nehaa — 2014-09-06T04:47:33Z

A couple of weeks ago, we had an insightful guest post by Nehaa Chaudhari on amendments to Karnataka's Goondas Act, a draconian legislation which seeks to allow preventive detention for some types of copyright violations. Today, we have a follow up post on that, that argues that the recent amendments are unconstitutional.

This was published in Spicy IP on August 28, 2014. This post is authored by Nehaa Chaudhari and Amulya Purushothama. Nehaa works on intellectual property/openness law and policy and the Centre for Internet and Society, while Amulya is a fifth year law student at Nalsar University of Law, Hyderabad.

The recent amendments to the Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-Offenders, Gamblers, Goondas, Immoral Traffic Offenders and Slum Gamblers Act, 1985 (“the Karnataka Goondas Act”/ “the Act”/ “the Goondas Act”) bring within the ambit of the Act offences under the Indian Copyright Act, 1957 and the Information Technology Act, 2000. Digital offenders and audio and video pirates, can now be punished and can be preventively detained under the new Act seemingly in order to protect public order. [See previous post examining this here]

Without prejudice to other concerns with this legislation including inter alia the use of preventive detention itself, provisions dealing with ‘expulsion from areas’ and the wide range of ‘offences’ that the Act seeks to cover, this article argues that those recent amendments that make audio and video piracy offences under the Act are unconstitutional, for want of legislative competence.

Union and State Lists

Article 246 of the Constitution empowers the Parliament and State Legislatures to legislate. Categories on which the Parliament may legislate have been laid out in List I (Union List) of the Seventh Schedule; on which the State Legislatures may formulate laws have been laid out in List II (State List) of the Seventh Schedule and on which either may legislate have been enumerated in List III (Concurrent List) of the Seventh Schedule. The power of the Parliament to formulate laws on matters in the Union List is exclusive and notwithstanding the powers of the Parliament itself and of the State Legislature with reference to the Concurrent List and of the State Legislature with reference to the State List. This exclusive power of the Parliament was also upheld in the now famous Hoechst Pharma Case.

Public Order is set out as a subject matter upon which the State Legislature can enact laws under Entry 1 of the State List. Entry 49 of the Union List enumerates Patents, Inventions and Designs; Copyright; Trademarks and Merchandise Works as matters upon which the Parliament can exclusively legislate.

Pith and Substance and Incidental Encroachment

The competence of any legislature to formulate laws is adjudged on the basis of what is known as the pith and substance doctrine. In this instance it means checking whether the substance or the essence of the Goondas Act has to deal with maintaining of public order. If this were to be the case, the incidental trenching upon matters beyond its competence as Kartar Singh put it (in this instance provisions dealing with audio and video piracy) is not all together forbidden.

However, this argument doesn’t stand. As required by the Hoechst Pharma Case, the infringement/encroachment has to be necessarily incidental to effective legislation by the state with respect to matters under List II. The newly introduced offences dealing with audio and video pirates are not necessarily incidental to pursuing the intention behind the Goondas Act as a whole (proceeding with the assumption that this intention is justified), which is to maintain public order and to provide for preventive detention of persons (bootleggers, drug offenders, gamblers, goondas, immoral traffic offenders) who are recognized by the Act as antisocial elements, particularly since there is no logical link between these particular offences and the maintenance of public order.

It would be worthwhile here to understand what exactly is meant by public order in the State List. The phrase was properly defined in the case of Indrajit Barua where the Delhi High Court held that for an illegal activity to qualify as threatening the public order, it must affect the community or the public at large. It was held that there was a difference between law and order and public order and that this difference was rooted in the degree and extent of … impact upon society. The Bombay High Court in the Nathwani case held that public order is the absence of public disorder involving breaches of local significance in contradistinction to national upheavals , such as revolution civil war… . The Supreme Court in Ramlila Maidan incident even held that if public order is disturbed it must lead to public disorder… whereas every breach of peace might not always lead to public disorder.

It is therefore, patently clear that offences under the Copyright Act, 1957 do not affect public order as understood in the legal sense simply because these offences while unlawful would not cause public disorder as has been envisioned by the court. Ergo, it follows that the true character of these amendments to the law, is not to preserve public order.

Even if it could somehow be proven that the offences added to the Act were a matter of public order, as held by the cases of Prof. Yashpal and Kerala State Electricity Board, when an entry is in general terms in List II (Entry 1- Public Order) and in more specific terms in List I (Entry 49 Patents, Copyright et al.), the entry in List I takes effect regardless of the entry in List II.

Furthermore, in this instance, the infringement on a matter under the Union List is not merely incidental, as the purpose sought by the Goondas Act, and the methods it adopts (preventive detention), stand in direct contradiction to the purpose of the Copyright Act, 1957. Copyright laws were enacted to incentivize innovation and to protect the intellectual property rights of individuals. In furtherance of this, offences under the Copyright Act, 1957 are punishable with imprisonment up to 3 years, the police have the power to seize infringing copies, the courts have the power to order the destruction of these copies. And there also exist fair-dealing provisions that need to be accounted for. A provision that allows preventive detention for copyright infringement is therefore not only disproportionate, but also incongruous in this context, leading to absurdities defeating the purpose of the legislation. Furthermore, this amendment amounts to an addition to the Copyright Act, 1957 in an indirect manner. Therefore in the guise of an incidental provision, the state legislature has altered the nature of the Act, and therefore engaged in a colourable exercise of power.

Therefore, subject to other reservations that one has with this legislation, due to a lack of legislative competence, at the very least, the amendments dealing with audio and video piracy should be repealed, applying the doctrine of severability expounded in Abdul Quader , R.M.D Chamarbaugwala and KihotoHollohan.

For more details visit https://cis-india.org/a2k/blogs/spicy-ip-nehaa-chaudhari-august-28-2014-karnataka-goondas-act-a-note-on-legislative-competence