Centre for Internet and Society

Exhaustion: Imports, Exports and the Doctrine of First Sale in Indian Copyright Law

pranesh — 2014-05-29T06:18:31Z

This article by Pranesh Prakash was published in the Manupatra Intellectual Property Reports, February 2011, Volume 1, Part 2, pp. 149-160. In this short note, the author argues that Indian courts have fundamentally misunderstood the doctrine of first sale, and consequently have wrongly held that parallel importation is disallowed by Indian law. He further looks at the ingenuity displayed by a court in prohibiting export of low-priced editions from India, and comes to the conclusion that this is also wrong in law. He believes there is a way out of this quagmire that we find ourselves in due to judicial inventions: that of accepting a proposed amendment to the Copyright Act.

Can foreign works be copyrighted works?

Section 13(2) of the Indian Copyright Act states that insofar as published works go, copyright only subsists if the work is first published in India or if the work is by an Indian citizen. It does except the application of this section to all those works to which sections 40 and 41 of the Act apply. Section 40 allows for the provisions of the Act to be extended to foreign works and foreign authors by special order of the government. The government is required to do so, being a member of the Berne Convention, the Universal Copyright Convention as well as the TRIPS Agreement, and has fulfilled its requirement via International Copyright Order, the latest such order having been issued in 1999.

Thus, for purposes of our law, we protect not only Indian works, but foreign works as well. It expressly places foreign authors and works published in a foreign country in the same shoes as Indian authors and works published in India, respectively.

Import of copyrighted works

Thus having established that foreign books enjoy protection under Indian law, we now turn to the question of whether import of foreign works into India is permissible under Indian law. There is no provision of the Copyright Act by which the owner or licensee of copyright given the exclusive right to import a copyrighted work into India. Section 51(b)(iv) does, however, makes it illegal to import infringing copies of a work.[1];It is clear that illegally published copies are infringing copies, and thus cannot be imported. But are legally published copies that are legally purchased outside of India also ‘infringing copies’ and is their import also prohibited by the section 51?

This question is laid out as:

We now arrive at one of the most difficult topics in copyright law. It is our ambition to expound this subject as clearly as possible but inevitably this involves exposing some troublesome problems which lurk not far beneath the surface. The basic idea is simple. It has long been the policy of copyright law in the UK and other countries which follow our system that as a rule, mere selling or other secondary dealings with articles manufactured in the home market shall not be treated as copyright infringement unless their marking was piratical in the first place. Further, it is policy that traders should be free to buy and sell goods without getting involved in copyright proceedings, so long as they do so in good faith. Do not deal in pirate copies where you can tell they are probably such” is a law anyone can understand. Dealing in pirate copies where you know or have reason to believe that they are such is called secondary infringement in contrast to primary infringement (e.g. manufacturing) where liability is strict.

This idea works fine as long as one does not need to examine too closely, what one means by pirate copies; it is usually pretty obvious. However, when it comes to parallel imports it is not so obvious, and one has to know precisely what is meant. It is plain that the test cannot be whether the copy was made piratically in its country of origin because the copyright laws of foreign states are irrelevant so far as rights in the UK are concerned, and in some cases these laws may not even exist. Since foreign copyrights are separate and distinct rights, and since it is commonplace for these to be assigned so as to be exploited by different hands, it cannot matter whether a copy imported from Britannia was lawfully made in its country of origin; this principle has been recognized from an early date.

According to section 2(m) of the Act, a reproduction of a literary, dramatic, musical or artistic work, a copy of a film or sound recording is an "infringing copy" if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act. So section 2(m) does not clarify matters either, because it applies only to that importation that is “in contravention of the provisions of” the Copyright Act. So we look to section 14 which lays down the meaning of copyright and is read with section 51 when determining what does and does not constitute infringement. Nowhere, in section 14 of the Act is a right to import granted to the copyright owner. However, section 14 does clearly lays down that insofar as literary, dramatic or musical works go; it is the copyright owner’s exclusive right to issue copies of the work to the public not being copies already in circulation”. The explanation to this section goes to clarify that for the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation.”What this means and how this has been construed by various courts shall be seen in the following sections.

Judicial history on importation

The Penguin case [2]

The issue of parallel importation first reached the higher judiciary in 1984 when the Delhi High Court was called upon to pronounce judgment on whether import by a third party without the express authorisation of the copyright owner constitute infringement. The court, bizarrely, ruled that it constituted infringement because it constituted a violation of the owner’s right to publish:

While publication generally refers to issue to public, importation for the specified purpose may be a necessary step in the process of issuing to the public, and therefore of publishing. It appears to me that the exclusive right of the copyright owner to print, publish and sell these titles in India would extend to the exclusive right to import copies into India for the purpose of selling or by way of trade offering or exposing for sale the hooks in question. This is the true meaning of the word “publish” as used in section 14(1)(a)(4).

It is also an infringement of copyright knowingly to import into India for sale or hire infringing copies of a work without the consent of the owner of the copyright, though they may have been made by or with the consent of the owner of the copyright in the place where they were made.

It should be noted that prior to the 1994 amendment of the Copyright Act, the first two clauses of section 14 read: “(i) to reproduce the work in any material form; (ii) to publish the work”. Thus, this judgment extends the right to “publish the work” (or in the words of the judge, “print, publish and sell”) to include a right of importation out of thin air, simply by stating that it appears so. While the judge notes that “publication” under the Act (in 1984) was defined as meaning the issue of copies of the work, either in whole or in part, to the public in a manner sufficient to satisfy the reasonable requirements of the public having regard to the nature of the work”, he does not explain how importation is subsumed under that definition contrary to a plain reading of the law. Finally, the judge does note that, “It is true that India Distributors are not printing these books and are not guilty of what is called primary infringement”, but goes on to state however, that “when they issue copies of these titles for public distribution they are guilty of secondary infringement”. These categories are created, but neither explained nor explored in the judgment. One other legal nuance that was examined was the allowance granted to the Registrar of Copyright under section 53 to “order that copies made out of India of the work which if made in India would infringe copyright shall not be imported. The judge noted that the words infringing copy as contained in section 53 could not be different in meaning from the same words contained in section 51(b). The implication of this shall be demonstrated shortly.

Importantly, the judgment does not look into section 16 of the Act which states that there shall be no copyright except as provided by the Act, and how this should prevent a judge from expanding the rights provided in the law to include a new judicially created right to prevent imports.

Privity of contract

Nowhere in the judgment does the judge explain how an exclusive distribution contract between two parties can affect a third party in violation of the well-held principle of privity of contract. This is an important issue because in effect, the judgment makes a third party bound by the contract entered into by two private parties. The parties agree inter se (for example) to ensure that the India distributor does not sell the book outside of India and that the owner of rights will not give the right to sell in India to any other person. How could this contract between those two parties come in way of a third person buying from a foreign market and importing into India? If it was the case of an exclusive UK licensee selling in India, then both the exclusive Indian licensee as well as the owner of the copyright would have cause of action in India on the basis of both violation of contract as well as violation of copyright (for exceeding his territorial licence). However, a third party who buys from a stream of commerce cannot be bound by these contracts because he becomes the owner of the book and not a licensee. Thus, the judgment makes a contract between two private parties, which merely creates a right in personam, applicable to the entire world. By doing this it allows a contract to create a right in rem without any express provision of the law doing do. Indeed, this issue was examined by the United State Supreme Court in 1908 in the case of Bobbs-Merrill Co. v. Straus,[3] in which the doctrine of first sale was judicially evolved.

Doctrine of first sale/exhaustion

Importantly, nowhere in the judgment does the judge bother to go into the details of the interaction between the sale of a copy of a book (upon the occurrence of which no further conditions can be laid) and the Copyright Act. If I sell you a bicycle laying down a condition that you cannot re-sell it, such a condition cannot be upheld in a court of law because by sale I divest all saleable interest I have in the bicycle. This principle is what is embodied in sections 10 and 11 of the Transfer of Property Act. Section 10 states–“Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him. In the same vein, section 11 states–“Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.” Thus, by selling of a copy of a book (as opposed to a licensing the book), I divest myself of all saleable interests in that particular copy of the book (though not copyright). I cannot prevent you from re-selling that book. However, copyright law would require that you can only re-sell a copy of a book without the owner’s permission, and cannot sell it without the owner’s permission. This is known as the doctrine of first sale, which evolved as a via media between copyright law, which gave the owner of copyright rights in a book, and property law, which gave the buyer of a book rights in her particular copy of the book.

The best appreciation of this doctrine of first sale (also known as “exhaustion of rights”) has come in a judgment by Justice Ravindra Bhat, who states the meaning of the doctrine very clearly:

The doctrine of exhaustion of copyright enables free trade in material objects on which copies of protected works have been fixed and put into circulation with the right holder’s consent. The exhaustion principle in a sense arbitrates the conflict between the right to own a copy of a work and the author’s right to control the distribution of copies. Exhaustion is decisive with respect to the priority of ownership and the freedom to trade in material carriers on the condition that a copy has been legally brought into trading. Transfer of ownership of a carrier with a copy of a work fixed on it makes it impossible for the owner to derive further benefits from the exploitation of a copy that was traded with his consent. The exhaustion principle is thus termed legitimate by reason of the profits earned for the ownership transfer, which should be satisfactory to the author if the work is not being exploited in a different exploitation field.

Exhaustion of rights is linked to the distribution right. The right to distribute objects (making them available to the public) means that such objects (or the medium on which a work is fixed) are released by or with the consent of the owner as a result of the transfer of ownership. In this way, the owner is in control of the distribution of copies since he decides the time and the form in which copies are released to the public. Content wise the distribution rights are to be understood as an opportunity to provide the public with copies of a work and put them into circulation, as well as to control the way the copies are used. The exhaustion of rights principle thus limits the distribution right, by excluding control over the use of copies after they have been put into circulation for the first time.

1994 Amendment to the Act

Interestingly, the Penguin judgment was sought to be overturned by an amendment to section 14 in 1994. That amendment removed the right to “publish”, and instead made it a right to “to issue copies of the work to the public not being copies already in circulation”. It stands to reason that this not only ensures the centrality of the doctrine of first sale in India, but also allows for international exhaustion, thus allowing for parallel import. This is clear from the fact that we, in Indian law (as per section 40), makes it clear that “all or any provisions of this Act shall apply to work first published in any class territory outside India to which the order (under section 40) relates in like manner as if they were first published within India.

Thus, even books published internationally are, under the legal fiction under section 40, akin to books published in India. Since we are granting foreign works all the protection under the Act as though they had been published in India by Indian authors, it is but natural that they should be subject to all the same limitations as well (such as the doctrine of first sale).

As one commentator puts it, “with amendments, the decision of the Penguin case is no more the law. Like most other nations, we have also accepted the principle of international exhaustion. This seems to be after taking into view the public interest angle.”[4]

Unfortunately, legal commentators seemed to have paid greater attention to legislative changes than did the courts.

Eurokids case[5]

In 2005, the same issue of parallel importation in literary works arose before the Bombay High Court. Highly unfortunately, the decision by the Bombay High Court was even more ill-reasoned than that of the Delhi High Court in the Penguin case. Nowhere in the judgment is the issue of the first sale doctrine, on which the issue of parallel importation rests, even cursorily examined. Nowhere is the amendment to section 14 of the Copyright Act even noted. Indeed, the only time that section 14 is even mentioned is when the section is quoted to establish it as providing the meaning of “copyright” in Indian law. The implications of section 14 in terms of exhaustion of rights are simply not examined. Section 2(m) of the Act, which it is necessary to examine (as shown above) to understand what to make of the phrase “infringing copy” in section 51, is not even mentioned once. As per the logic of the judgment, any copy that is sold in India by a third party in contravention of an exclusive licence contract is automatically assumed to be infringing. Thus, once again, copyright law magically overrides the concept of privity of contract without so much as an explanation.

Most importantly, because the case relies on the Penguin decision without having noticed and accounting for the subsequent change in the text of the law because of the 1994 amendment, it should be held to be per incuriam, and should not act as a precedent.

Warner Bros. case [6]

In 2009, the Delhi High Court pronounced yet another verdict on parallel importation in the case of Warner Bros. v. Santosh V.G. However, this was a case on DVDs, and not on books. While the Court correctly understands the meaning of the first sale doctrine in terms of literary works (and thus becoming the first judgment to explicitly talk about this doctrine), it is open to debate whether it was correct in its ruling on the inapplicability of the doctrine when it came to cinematograph films. The reasoning of the court (in paragraphs 77 and 78) as to why parallel importation is not allowed under Indian law is faulty, and is worth quoting in extenso:

In this case, the copies that are being let out for rent/hire by the defendant are not made in India. Rather, they have been made in the US and imported into India. As noticed earlier, copyright in a work published abroad, in a Berne Convention country, like the United States, entitles its owner to assert copyright in India; such rights are “as if” the works were published in India (section 40 and provisions of the order). An infringing copy is one “made or imported in contravention of the provisions of this Act”. In this context, the proviso to section 51(b)(iv), in the court’s view, provides the key to Parliamentary intention. It carves only one exception, permitting “import of one copy of any work for the private and domestic use of the importer”. The plaintiffs’ argument is that there would have been no need to enact this exception, if there were no restriction on import of cinematograph films, genuinely made outside India. The effect of the proviso to section 51(b)(iv) is plainly, not to relax the importation of genuinely made cinematographic films but to allow for the importation of one copy of any work “for the private and domestic use of the importer.” This would mean that the proviso allows for the importation of an infringing work, for private and domestic use of the importer, and not commercial use.

Quite obviously, there are some glaring problems in the court’s reasoning. The proviso to section 51(b)(iv) does indeed carve out an exception, but that exception is for infringing copies of a work, and not for non-infringing or “genuine” copies. The plaintiffs’ argument, according to the judge, is: If all genuine copies of the cinematograph film could be legally imported, there would be no need to enact this exception. However, there could well be a need to enact this exception to cover a single non-genuine copy of a cinematograph film. It is precisely because of this that the exception is so very narrow, being for not only private use, as in section 52(1)(a), but of a single copy of a work and that too only for “private and domestic use”. This possibility of allowing import of a non-genuine copy is completely overlooked by the judge. The judgment continues:

The defendant’s argument that the plaintiffs lost the power to deal with the copy, once placed in the market place, in the United States, is also unsupportable as too broad a proposition. In the context of the Act, the argument is more hopeful, than convincing. Even in the United States, it has been held (United States v. Wise, 550 F.2d 1180, 1187 (9th Cir. 1977)) that though, after “first sale", a vendee “is not restricted by statute from further transfers of that copy”, yet a first sale does not, however, exhaust other rights, such as the copyright holder’s right to prohibit copying of the copy he sells. The Federal Appellate Court noted that “other copyright rights (reprinting, copying, etc.) remain unimpaired”. It is clear therefore that the copies in question are infringing copies. Therefore, their importation, and more importantly, use for any of the purposes under section 51, other than the one spelt out in it the proviso is in contravention of the Act. The question, however, is whether the action of the defendants amounts to infringement of the copyright of the plaintiffs. This must be answered independently of the question of whether parallel importation of copyrighted goods is permissible under Indian copyright law.

While the reading of the law is correct (i.e., the first sale doctrine does not exhaust all rights, but merely the right to prevent further transfers), the application of the law to the facts is incorrect. In this case, the fact situation before the court was not of “reprinting, copying, etc.” but of the physical transfer of copies of a work bought in the US into India. As is noted in United States v. Wise, “after first sale,” the buyer “is not restricted by statute from further transfers of that copy”. Indeed, this was case can be seen as exactly such a “further transfer” (of the rights over that copy from a shop in the US to the buyer in India). How the judge misreads the argument as being about something other than transfer of property rights in a copy (and more as something akin to reproduction), and concludes that “it is clear therefore that the copies in question are infringing copies,” is not clear.

However, the verdict of the court does not proceed on this ground alone, and involves discussion of the doctrine of first sale with regard to cinematograph films, the provisions of section 53, which apply only to cinematograph films, none of which are applicable in case of literary works.

Export of copyrighted works

Now, that we have dealt with the traditionally contentious part on imports, we may now examine the rare, but even more contentious issue of exports. Barring a few exceptions, notably the United States, the copyright law in no country regulates exports. Even in the United States, section 602 of their Copyright Act regulates only the export of infringing works, and not the export of legitimate works. In India, though, there are two judgments of the Delhi High Court that seemingly make illegal export from India of legal copies of a copyrighted work. As one of these decisions is an ex parte order without any reasoning—indeed calling the reasoning “bare minimum” would be doing that phrase a disservice—we shall focus only on the other judgement: the one pronounced by Justice Manmohan Singh in John Wiley & Sons v. Prabhat Chander Kumar Jain [7]. The facts of the judgment are rather simple. John Wiley & Sons Inc., based in New York, exclusively licensed the rights over certain books to Wiley India Pvt. Ltd. (all the other plaintiffs follow the same model, so we shall restrict ourselves to the case of the Wiley corporation). These books were sold at a reduced cost in the Indian market and were clearly labelled as being “Wiley Student Edition restricted for sale only in Bangladesh, Myanmar, India, Indonesia, Nepal, Pakistan, Philippines, Sri Lanka and Vietnam”. Another label on the same book read: “The book for sale only in the country to which first consigned by Wiley India Pvt. Ltd and may not be re-exported. For sale only in: Bangladesh, Myanmar, India, Indonesia, Nepal, Pakistan, Philippines, Sri Lanka and Vietnam.”[8]. Quite clearly, John Wiley & Sons, being the owner of the rights, had given exclusive license to Wiley India Pvt. Ltd. to publish and print an English Language reprint edition only in the territories entailed in the agreement and not beyond that. Further, they wished to impose this restriction on all buyers of the book by way of that notice and attached conditionality, and thus prevent exports to the United States.

At this stage, it would do us well to dwell into the facts of the 1908 US Supreme Court case of Bobbs-Merrill Co. v. Straus[9]. In this case, the plaintiff-appellant sold a copyrighted novel with a clear notice under the copyright notice stating that, “The price of this book at retail is $1 net. No dealer is licensed to sell it at a lower price, and a sale at a lower price will be treated as an infringement of the copyright”. Macy & Co., a famous retailer, purchased large lots of books both at wholesale prices and at retail prices, and re-sold the books to its customers at 89 cents a copy. This was quite clearly in violation of the condition imposed by the notice.

It may be seen that the facts in this case quite clearly mirror the fact situation in John Wiley & Sons v. Prabhat Chander Kumar Jain. It is only the nature of the conditionality that differentiates the two cases: in the one it was a restriction on price at which the book could be further sold, in the other it was a restriction on where the book could be further sold. How did the judge rule in Bobbs-Merrill Co. v. Strauss? The court ruled that it was on the record that Macy & Co. had knowledge of the notice. However, despite that, the notice was held not to be binding on Macy & Co. The court noted:

The precise question, therefore, in this case is, “Does the sole right to vend secure to the owner of the copyright the right, after a sale of the book to a purchaser, to restrict future sales of the book at retail, to the right to sell it at a certain price per copy, because of a notice in the book that a sale at a different price will be treated as an infringement, which notice has been brought home to one undertaking to sell for less than the named sum?” We do not think the statute can be given such a construction copyright statutes, while protecting the owner of the copyright in his right to multiply and sell his production, do not create the right to impose, by notice, such as is disclosed in this case, a limitation at which the book shall be sold at retail by future purchasers, with whom there is no privity of contract …To add to the right of exclusive sale, the authority to control all future retail sales, by a notice that such sales must be made at a fixed sum, would give a right not included in the terms of the statute, and, in our view, extend its operation, by construction, beyond its meaning, when interpreted with a view to ascertaining the legislative intent in its enactment.

This judgment proceeded on privity of contract, the factum of a sale having occurred, and created what is now known as the doctrine of first sale–an established principle that the exclusive right to sell, distribute or circulate a copy of the copyrighted work exhausts the moment the item is placed into a stream of commerce through a sale. This can, of course, be contradicted if explicitly stated so in a statute.[10] However, as we noted earlier, the Indian statute explicitly notes that the right to issue copies of a work to the public, guaranteed to the owner of the copyright over a literary, dramatic, or artistic work is restricted to copies not already in circulation. Thus, it might seem to one to be quite clear how the court would in the John Wiley & Sons case. One would then be wrong.

In fact, Justice Manmohan Singh, in a very detailed and circuitous judgment, rules that the activity done by the defendant is a violation not of some implied contract between Wiley India Pvt. Ltd. and him, but that it constituted a violation of the Indian Copyright Act, and notably section 51 of the Copyright Act. How does he reach this conclusion?

His reasoning rests on 3 dubious pillars:

that the rights of the licensee are distinct from that of the owner, and that the former may get exhausted without affecting the latter;
that the licensee cannot pass on better title to those that buy from him than he himself has;
that sale or even offer for sale or taking of orders for sale are all forms of putting into circulation or issuance of copies.

First, through a close reading of the various provisions of the Copyright Act he notes that the Act creates a clear difference between the rights of the owner and the rights of the licensee (para 47-50). He then finally comes to noting that,

“A logical corollary drawn from above analysis which needs reiteration at this stage is that for the purposes of section 51 which is in the preceding chapter, the term owner of the copyright does not include exclusive licensee. Thus, the rights of the owner although may include rights of the exclusive licensee but the court cannot read the term owner of the copyright as that of the exclusive licensee and their rights are different as per the allocation by the owner.” (para 62).

Thus, he establishes that some rights of the licensee may be extinguished (as per the doctrine of exhaustion) without extinguishing that same right of the owner. In other words, while the right of circulation of the licensee get exhausted, the right of circulation of the owner remains unaffected. Justice Singh doesn’t go into the implications of this, but there can be two ways of interpreting what this means. It could mean that by virtue of the circulation rights of the licensee getting exhausted, the circulation right of the owner gets exhausted in those nine countries for which the licensee had been granted rights of circulation. Else, it could mean that the exhaustion of the licensee’s circulation rights does not at all affect the owner’s circulation rights. This latter one is obviously an absurd idea, since that would, in all cases, leave the owner with a cause of action in case of all sales even when the owner is in India. Thus, one is left considering the former the only logical meaning.

However, that this cannot possibly be right is demonstrated by the fact that this can easily be applied to an all-in-India transaction as well. Thus, for instance, the owner of rights can decide never to directly sell any book, but only allow its licensees to sell. Thus, it can contractually bind a licensee to sell only in Andhra Pradesh and hold that because of that license contract any buyer who buys from the Andhra Pradesh licensee and decides to re-sell to a second-hand bookstore in Karnataka is actually violating the terms of the license (because the circulation right gets extinguished only insofar as the licensee is concerned, and that licence only allows sales in Andhra Pradesh).

That is obviously cannot be held to be the purpose of the law. Thus, the privity of the contract between the owner of the right and the licensee must be upheld and may not be held to bind a third party purchaser.

The second ground on which Justice Singh rules is on the general property law principle that a person cannot pass on a better title than she herself has. Thus, Justice Singh holds that when the licensee sells a book to a person, that person only receives as much of the title to that book that the licensee has. Thus, since the licensee only has title in the book insofar as those nine countries go, the person who buys that book cannot get better title.

The plain fault in this reasoning is the very founding basis of the doctrine of first sale: the differentiation between property rights in a copy of a book and the copyright in the book. No one has contended in this case that the transaction between the licensee and the book purchaser is not a sale. Once a sale happens, all property rights in that copy of the book are alienated to the book purchaser. It must be remembered that this transaction is not the case of the licensee sub-licensing the right to circulate the book. The licensee cannot sub-license to another party the right to sell the book in, say, Australia, because she does not have that right in the first place. However, in this case, the licensee is invoking the right to sell the book in India, and is not passing on that right. The right of a book buyer to re-sell comes from the statute— from the doctrine of first sale and not from a passing on of that right from the licensee.

The last pillar of the judge’s reasoning is that the sale—or even offer for sale, or taking of orders for sale—of a book online are all forms of putting into circulation or issuance of copies. Section 40 does not work two ways. It only deems a foreign work “Indian”, and does not deem a sale in a foreign land the same as sale in India. Thus, even if we are to accept the other two pillars of Justice Singh’s reasoning, it is unclear how an offer made online to sell a book is equated to actually placing a book in circulation in India. How can an India law prohibit circulation on the streets of Bogotá? This is only possible if a separate right of export is recognised. But Justice Singh is extremely clear that he is not creating such a distinct right.

A notice to the buyer that re-exports are prohibited cannot be held to constitute a valid contract because the Transfer of Property Act clearly makes such a prohibition invalid (sections 10 and 11) after all, it is a sale that takes place and not a license as does the Copyright Act (section 14).

Amendment to Section 2(m)

There has been much controversy lately with some publishers trying to stop the government from amending section 2(m) of the Indian Copyright Act, clarifying that a parallel import will not be seen as an “infringing copy”. Some lawyers for the publishing industry have made the claim that allowing for parallel importation would legally allow for the exports of low-priced edition and overturn the basis of the Wiley judgment. This is false.

The amendment itself merely adds the following proviso at the end of section 2(m) (which itself defines what an “infringing copy” means):

Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country shall not be deemed to be an infringing copy.

It seems that this is in fact a provision introduced solely to clarify that this (i.e., following international exhaustion) is the position that India holds, and not to change the statute itself. It is merely to clarify that the courts have misread the provisions of the law, or that they have indeed not read the provisions of the law (as in the Eurokids case).

This provision will have no effect whatsoever on the Wiley ruling. While the Wiley ruling deserves to fail on its own merits, the reasoning in that case does not depend on whether we follow international or national exhaustion. Indeed, in para 104, the judge states:

As per my opinion, as the express provision for international exhaustion is absent in our Indian law, it would be appropriate to confine the applicability of the same to regional exhaustion.

Be that as it may, in the present case, the circumstances do not even otherwise warrant this discussion as the rights if at all are exhausted are to the extent to which they are available with the licensees as the books are purchased from the exclusive licensees who have limited rights and not from the owner. In these circumstances, the question of exhaustion of rights of owner in the copyright does not arise at all.

Thus, the argument that following the principle of international exhaustion will upturn this judgment is faulty. Imports and exports are two distinct things. India’s following of the principle of “international exhaustion” means that the right to first sale is exhausted in India, when the work is legally published anywhere internationally (i.e., regardless of where that copyrighted work is legally published). The principle of international exhaustion does not not exhaust the right of first sale internationally—the word “international” is used to indicate where the publication has to take place for exhaustion to occur, and not where the exhaustion takes place. After all, Indian law on a matter cannot determine whether a book can or cannot be sold anywhere else in the world (which is precisely what it would do if it is to hold that rights are exhausted internationally by virtue of a book being printed in India).

Conclusion

I think the best way of concluding this are by quoting, in extenso, a passage from a book on the Indian intellectual property law by Prof. N.S. Gopalakrishnan & Dr. T.G. Agitha:

Under the Indian law there is no express provision recognising the right of importation. This would in fact enable parallel importation of works. “Parallel importation” means transportation of “legitimate” goods which are available at a cheaper rate in one country by independent buyers (e.g. book sellers), for sale in another country. This could act as an effective check on creating monopoly in the market. Hence, it is an important aspect to be borne in mind for a developing country like India. Since there is no international obligation against parallel importation, nothing prevented the court from taking the stand that unless there is an express provision conferring importation rights on the owner of copyright or prohibiting parallel importation, it need not be considered to be prohibited in India. It is pertinent to note that India supported the principle of international exhaustion and not the national exhaustion principle. [11]

However, it is submitted that the court (in Penguin v. India Book Distributors) failed to take note of these aspects while deciding this case.”[12]

One can only hope those words by these leading experts on IP law in India are paid heed to, and that the arguments otherwise will fail to convince both the government as well as future court decisions.

* Please do not cite this note in an academic paper. Feel free to cite elsewhere. This note is still very much a work in progress. However, given the urgency of this issue and the importance of ensuring debate on the legal ramifications of the proposed amendment to s.2(m), this note should prove useful.

Notes

[1]. Section 51(b)(iv) states: “Copyright in a work shall be deemed to be infringed (b) when any person (iv) imports into India, any infringing copies of the work.” A proviso to the section reads: “Provided that nothing in Sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.”

[2]. Ed.: MANU/DE/0402/1984: AIR 1985 Delhi 29, 26 (1984) DLT 316”

[3]. 210 U.S. 339 (1908).

[4]. Arathi Ashok, Economic Rights of Authors under Copyright Law, 15 J. Intell. Prop. Rights 46 (2010) at 50.

[5]. MANU/MH/0938/2005.

[6]. MANU/DE/0406/2009.

[7]. MANU/DE/1142/2010: MIPR 2010 (2) 0247.

[8]. While the exact countries were different in the case of each of the plaintiffs, there were all restricted to sale in India and a few of its neighbouring countries.

[9]. 210 U.S. 339 (1908).

[10]. All signatories of the TRIPS Agreement have to ensure a right of rental, over and above a right of first sale, for all video (or what are known as cinematograph films in the Indian law).

[11]. R.V. Vaidyanatha Ayyar, The Process and Politics of a Diplomatic Conference on Copyright (1998) 1 JWIP 3 at 17, cited in N.S. Gopalakrishnan and T.G. Agitha, Principles of Intellectual Property 256 (2009).

[12]. N.S. Gopalakrishnan and T.G. Agitha, Principles of Intellectual Property 256 (2009).

Also see SSRN

Download the file here.

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

Engaging on the Digital Commons

pranesh — 2011-08-20T12:56:26Z

We at the Centre for Internet and Society are very glad to be able to participate in the 13th Biennial Conference of the International Association for the Study of the Commons (IASC). Our interest in the conference arises mainly from our work in the areas of intellectual property rights reform and promotion of different forms of ‘opennesses’ that have cropped up as a response to perceived problems with our present-day regime of intellectual property rights, including open content, open standards, free and open source software, open government data, open access to scholarly research and data, open access to law, etc., our emerging work on telecom policy with respect to open/shared spectrum, and the very important questions around Internet governance. The article by Sunil Abraham and Pranesh Prakash was published in the journal Common Voices, Issue 4.

Our work on intellectual property reform are proactive measures at effecting policy change that go towards protecting and preserving an intellectual, intangible commons. We have opposed the Protection and Utilization of the Public-funded Intellectual Property Bill (an Indian version of the American Bayh-Dole Act) which sought to privatise the fruits of publicfunded research by mandating patents on them. We are working towards reform of copyright law which we believe is lopsided in its lack of concern for consumers and that its current march towards greater enclosure of the public domain is unsustainable. Believing that not all areas of industry and technology are equal, and that patent protection is ill-suited for the software industry, we have worked to ensure that the current prohibitions against patenting of software are effectively followed.

Defensively—that is working within the existing framework of intellectual property law—we seek to promote the various forms of copyright and patent licensing that have arisen as reactions to restrictive IP laws. Free/open source software and open content have arisen as a reaction to the restrictive nature of copyright law, such as the presumption under copyright law that a work is copyrighted by the mere fact of it coming into existence. (for instance, this was not so in the United States until 1989, till when a copyright notice was required to assert copyright). While earlier the presumption was that a work was to belong to the public domain, after the Berne Convention, that presumption was reversed. This led to the creation of the idea of special licences, by using which one could allow all others to share his/her work and reuse it. This innovation in using the law to promote, rather than restrict, what others could do with one’s works has enabled the creation and sharing of everything from Wikipedia, to Linux (which powers more than 85 percent of the world’s top 500 supercomputers) and Apache HTTP server (more than 60 percent of all websites). The advent of the Internet has allowed the creation of intangible digital commons.

We are also starting to engage with the question of telecom policy around spectrum allocation, and believe that promotion of a shared spectrum would help make telecom services, including broadband Internet, available to people at reasonable prices. We also believe that Internet governance should not be the prerogative of governments, and should not happen in a top-down fashion.

Comparisons between tangible commons and intangible commons have been made by people like Elinor and Vincent Ostrom, who in 1977 contributed to our understanding of subtractability and public goods. James Boyle has written about the expansion of copyright law as “the second enclosure movement”, following in the footsteps of the first enclosure movement against the take-over of common land which stretched from the fifteenth century till the nineteenth. Yochai Benkler, has written extensively on commons in information and communication systems as well as on spectrum commons. Just as Elinor Ostrom’s work shows how Garrett Hardin’s evocative ‘tragedy of the commons’ and the problems of free-riding are very often avoided in practice, Michael Heller’s equally evocative phrase ‘gridlock economy’ shows that ‘over-propertisation’ of knowledge can lead to a ‘tragedy of the anti-commons’.

Through this conference we wish to learn of the lessons that academic writings on tangible commons have to impart to intangible commons which are configured very differently (in terms of subtractability, for instance). Ostrom’s work shows how individuals can, in a variety of settings, work to find institutional solutions that promote social cooperation and human betterment. As part of her nine design principles of stable local common pool resource management, she lists clearly defined boundaries for effective exclusion of external unentitled parties. How does that work, when even the existing mechanisms of boundary-definition in intellectual property, such as patent claims, are often decried as being ambiguous thanks to the legalese they are written in? What of traditional knowledge for which defining the community holding ownership rights becomes very difficult? As Ostrom and Hess note, “the rules and flow patterns are different with digital information”, but how do these differences affect the lessons learned from CPR studies? How do Ostrom’s pronouncements against uniform top-down approaches to resource management affect the way that copyright and patents seek to establish a uniform system across multiple areas of art, science and industry (musical recordings and paintings, pharmaceuticals and software)? And how can Ostrom’s work on management of natural resources inform us about the management of resources such as spectrum or the Internet itself? These are all very interesting and important questions that need to be explored, and we are glad that this conference will help us understand these issues better.

Please read the article in Common Voices Issue 4 here

For more details visit https://cis-india.org/openness/blog-old/digital-commons

CIS Para-wise Comments on Intermediary Due Diligence Rules, 2011

pranesh — 2012-07-11T10:27:26Z

On February 7th 2011, the Department of Information Technology, MCIT published draft rules on its website (The Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011) in exercise of the powers conferred by Section 87(2)(zg), read with Section 79(2) of the Information Technology Act, 2000. Comments were invited from the public before February 25th 2011. Accordingly, Privacy India and Centre for Internet and Society, Bangalore have prepared the following para-wise comments for the Ministry’s consideration.

A. General Objections

A number of the provisions under these Rules have no nexus with their parent provision, namely s.79(2). Section 79(1) provides for exemption from liability for intermediaries. Section 79(2) thereupon states:

79. Intermediaries not to be liable in certain cases—

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

(b) the intermediary does not—

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

Therefore, by not observing any of the provisions of the Rules, the intermediary opens itself up for liability for actions of its users. However, many of the provisions of the Rules have no rational nexus with due diligence to be observed by the intermediary to absolve itself from liability.

B. Specific Objections

Rule 2(b), (c), and (k)

(b) “Blog” means a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Usually blog is a shared on-line journal where users can post diary entries about their personal experiences and hobbies;

(c) “Blogger” means a person who keeps and updates a blog;

(k) “User” means any person including blogger who uses any computer resource for the purpose of sharing information, views or otherwise and includes other persons jointly participating in using the computer resource of intermediary

Comments

It is unclear why it is necessary to specifically target bloggers as users, leaving out other users such as blog commenters, social network users, microbloggers, podcasters, etc. It makes the rules technologically non-neutral.

Recommendation

We recommend that these 3 sub-rules be deleted.

Rule 3(2)

3. Due Diligence observed by intermediary.— The intermediary shall observe following due diligence while discharging its duties.

(2) The intermediary shall notify users of computer resource not to use, display, upload, modify, publish, transmit, update, share or store any information that : —

(a) belongs to another person;

(b) is harmful, threatening, abusive, harassing, blasphemous, objectionable, defamatory, vulgar, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

(c) harm minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) discloses sensitive personal information of other person or to which the user does not have any right to;

(g) causes annoyance or inconvenience or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(h) impersonate another person;

(i) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(j) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.

Comments

Firstly, such ‘standard’ terms of use [1] might make sense for one intermediary, but not for all. For instance, an intermediary such as site with user-generated content (e.g., Wikipedia) would need different terms of use from an intermediary such as an e-mail provider (e.g., Hotmail), because the kind of liability they accrue are different. This is similar to how the liability that a newspaper publisher accrues is different from that accrued by the post office. However, forcing standard terms of use negates this difference. Thus, these are impractical.

Secondly, read with the legal obligation of the intermediary to remove such information (contained in rule 3(3)), they vest an extraordinary power of censorship in the hands of the intermediary, which could easily lead to the stifling of the constitutionally guaranteed freedom of speech online. Analogous restrictions do not exist in other fields, e.g., against the press in India or against courier companies, and there is no justification to impose them on content posted online. Taken together, these provisions make it impossible to publish critical views about anything without the risk of being summarily censored.

Thirdly, while it is possible to apply Indian law to intermediaries, it is impracticable to require all intermediaries (whether in India or not) to have in their terms of use India-specific clauses such as rule 3(2)(j). Instead, it is better to merely require them to ask their users to follow all relevant laws.

Individual instances of how these rules are overly broad are contained in an appendix to this submission.

Recommendation

We strongly recommend the deletion of this sub-rule, except clause (e).

Rule 3(3)

(3) The intermediary shall not itself host or publish or edit or store any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2).

Comments

This sub-rule is ultra vires s.79 of the IT Act, which does not require intermediaries not to “host or publish or edit or store any information”. If fact, s.79(2) merely states that by violating the provisions of s.79(2), the intermediary loses the protection of s.79(1). It does not however make it unlawful to violate s.79(2), as rule 3(3) does. This makes rule 3(3) ultra vires the Act.

Recommendation

This sub-rule should be deleted.

Rule 3(4)

(4) The intermediary upon obtaining actual knowledge by itself or been brought to actual knowledge by an authority mandated under the law for the time being in force in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act expeditiously to work with user or owner of such information to remove access to such information that is claimed to be infringing or to be the subject of infringing activity. Further the intermediary shall inform the police about such information and preserve the records for 90 days

Comments

This rule is also ultra vires s.69A of the IT Act as well as the Constitution of India. Section 69A states all the grounds on which an intermediary may be required to restrict access to information [2]. It does not allow for expansion of those grounds, because it has been carefully worded to maintains its constitutional validity vis-a-vis Articles 19(1)(a) and 19(2) of the Constitution of India. The rules framed under s.69A prescribe an elaborate procedure before such censorship may be ordered. The rules under s.69A will be rendered nugatory if any person could get content removed or blocked under s.79(2).

This rule requires an intermediary to immediately take steps to remove access to information merely upon receiving a written request from “any authority mandated under the law”. Thus, for example, any authority can easily immunize itself from criticism on the internet by simply sending a written notice to the intermediary concerned. This is directly contrary to, and completely subverts the legislative intent expressed in Section 69B which lays down an elaborate procedure to be followed before any information can be lawfully blocked.

If any person is aggrieved by information posted online, they may seek their remedies—including the relief of injunction—from courts of law, under generally applicable civil and criminal law. Inserting a rule such as this one would take away the powers of the judiciary in India to define the line dividing permissible and impermissible speech, and vest it instead in the whims of each intermediary. This can only have a chilling effect on debates in the public domain (of which the Internet is a part) which is the foundation of any democracy.

Recommendation

This rule should modified so that an intermediary is obliged to take steps towards removal of content only when (a) backed by an order from a court or (b) a direction issued following the procedure prescribed by the rules framed under Section 69A.

Rule 3(5) & (7) & (8) & (10)

(5) The Intermediary shall inform its users that in case of non-compliance with terms of use of the services and privacy policy provided by the Intermediary, the Intermediary has the right to immediately terminate the access rights of the users to the site of Intermediary;

(7) The intermediary shall not disclose sensitive personal information;

(8) Disclosure of information by intermediary to any third party shall require prior permission or consent from the provider of such information, who has provided such information under lawful contract or otherwise;

(10) The information collected by the intermediary shall be used for the purpose for which it has been collected.

Comments

These sub-rules have no nexus with intermediary liability or non-liability under s.79(2). For instance, it is unreasonable to say that an intermediary may be held liable for the actions of its users if it does not inform its users about its right to terminate access by the user to its services. Furthermore, not all intermediaries need be websites, as sub-rule 5 assumes. An intermediary can even be an “internet service provider” or a “cyber cafe” or a “telecom service provider”, as per rule 2(j) read with s.2(1)(w) of the IT Act.

The requirements under sub-rules (7), (8), and (10) are rightfully the domain of s.43A and the rules made thereunder, and not s.79(2) nor these rules.

Recommendation

These sub-rules should be deleted, and sub-rules (7), (8), and (10) may placed instead in the rules made under s.43A.

Rule 3(9)

(9) Intermediary shall provide information to government agencies who are lawfully authorised for investigative, protective, cyber security or intelligence activity. The information shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a written request stating clearly the purpose of seeking such information.

Comments

This provision is ultra vires ss.69 and 69B. Rules have already been issued under ss.69 and 69B which stipulate the mechanism and procedure to be followed by the government for interception, monitoring or decrypting information in the hands of intermediaries. Thus under the Interception Rules 2009 framed under Section 69, permission must first be obtained from a “competent authority” before an intermediary can be directed to provide access to its records and facilities. The current rule completely removes the safeguards contained in s.69 and its rules, and would make intermediaries answerable to virtually any request from any government agency. This is contrary to the legislative intent expressed in Section 69.

Recommendation

We recommend this sub-rule be deleted.

Rule 3(12)

(12) The intermediary shall report cyber security incidents and also share cyber security incidents related information with the Indian Computer Emergency Response Team.

Comments

The rules relating to how and when the Indian Computer Emergency Response Team may request for information from intermediaries is rightfully the subject matter of s.70B(5) [3] and the rules made thereunder by virtue of the rule making power granted by s.87(2)(yd). The subject matter of rule 3(12) is not liability of intermediaries for third-party actions, hence there is no nexus between the rule-making power, and the rule.

Recommendations

We recommend that this sub-rule be deleted.

Rule 3(14)

(14) The intermediary shall publish on its website the designated agent to receive notification of claimed infringements.

Comments

It is unclear what “infringements” are being referred to in this sub-rule. Neither s.79 nor these rules provide for “infringements”. The same reasoning applied for rule 3(4) would also apply here. It would be better to require the intermediary to publish on its website a method of providing judicial notice.

Recommendations

Delete, and replace with a requirement for the intermediary to publish on its website a method of providing judicial notice.

Footnotes

For instance, the Section B(1) of the World of Warcraft Code of Conduct “When engaging in Chat, you may not: (i) Transmit or post any content or language which, in the sole and absolute discretion of Blizzard, is deemed to be offensive, including without limitation content or language that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, sexually explicit, or racially, ethnically or otherwise objectionable.
It is only “in the interest of sovereignty and integrity of India. defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above” that intermediaries may be issued directions to block access to information.
70B(5) sates that the The manner of performing functions and duties of the agency referred to in sub-section (1) shall be such as may be prescribed.

For more details visit https://cis-india.org/internet-governance/blog/intermediary-due-diligence

CIS Comments on the Interoperability Framework for e-Governance (Phase I)

pranesh — 2013-05-22T10:48:52Z

In November 2010, the Central Government released the Draft 0.6 of the Technical Standards for the Interoperability Framework for e-Governance (Phase I), requesting comments by January 27, 2011. Here are the comments that CIS submitted.

General Review Comments

The present document is an excellent step in the right direction, following very ably the policy guidelines laid down in the National Policy on Open Standards for e-Governance.
The Expert Committee and other contributors have made excellent choices as to the 19 standards that have been laid down in the IFEG. It is praiseworthy that of these 18 are designated as mandatory, and only two are designated as interim standards. Furthermore, the system has been very transparent with the selection of standards, providing concise descriptions for each.
It is also important to note that while accessibility has been mentioned while talking of HTML, accessibility standards should preferably also be specifically mentioned in the presentation and archival domain.
However, many other governmental interoperability frameworks are going beyond merely listing technical standards. Some governments, such as Germany and the EU, go beyond technical interoperability, and also have documents dealing with organizational, informational, and legal interoperability. These are equally important components of an interoperability framework. Other governments also also lay down best practice guides, and other aids to implementation, sometimes even including application recommendations. Further, there are many which lay out standards for the the semantic layer, business services layer, etc.
We at the Centre for Internet and Society are currently advising the government of Iraq on development of their e-Governance Interoperability Framework, and would be glad to extend any support that the Department of IT may require of us, including comments on all further phases.

Specific Section-wise Review Comments

Section 5.2.7 - In the “additional remarks” row, it is stated that “If Adobe Systems Incorporated’s intent to make it royalty free is achieved then no further reviews will be necessary.”

This should be changed to indicate that (a) there might be entities other than Adobe that hold necessary patents over PDF v1.7, and (b) that a desirable feature—of there being multiple implementations of the standard—might not be fulfilled by PDF v1.7.

Adobe has in fact published a public patent licence that covers PDF v1.7 (ISO 32000-1:2008), and makes all of Adobe’s essential claims over PDF v1.7 available royalty-free.

For more details visit https://cis-india.org/openness/blog-old/comments-ifeg-phase-1

Thomas Abraham's Rebuttal on Parallel Importation

pranesh — 2011-08-04T04:47:12Z

We engaged in an e-mail conversation with Thomas Abraham, the managing director of Hachette India, on the issue of parallel importation of books into India. We thought it would be in the public interest to publish a substantive part of that conversation. In this post he points at great length how our arguments are faulty. While we still believe that he doesn't succeed, we hope this will clarify matters a bit.

Nature of disagreement

There is essentially fundamental disagreement on principle and definition-and I guess there will always be if you knock actual knowledge and see things as abstract philosophical (and legal) points. Why I think detailed knowledge is necessary is precisely illustrated at the logic (or lack thereof actually) employed by the Ministry. And then there is to me the fundamental problem of disregarding the author's wishes (for no greater good).

Second hand books and libraries

The comparison is not the same. Both (second-hand and libraries) have had a first sale where the copyright holder has got his/her basic right-the designated royalty. (I have explained earlier how export royalties and remainder royalties are much lower and results in losses to the author.) So here we come back to the basic philosophy-who has greater right on deciding on creative works? The creator or the government? A just answer would be the creator provided commercial dissemination fulfilled society's needs-which in India's case would be availability and right pricing keeping in mind socio-economic needs. Both are happening through local publishing and pricing of imports. But parallel imports would take away that right an author has of deriving a rightful income as per existing norms in all mature markets (including India so far). We are heading towards being a mature market and this has come about only because we are in the self-perpetuating framework of publishing, writing, and cultural development.

So the argument is that second hand books and libraries foster reading without depriving the author of rightful royalty or ruining the market.

Parallel importation does both. There is every reason to know that this will happen-that's exactly the substantiation we are offering. And the advocates of parallel importation have none to offer-pricing (where is it high, and by how much should it come down?), what is not freely available and at special prices? So for what reason do we want the existing law-also made by lawmakers-to change the stated remit of exhaustion from national to international.

No book publisher objects to libraries or even second hand books. But they are objecting to parallel importation. So leave it to them to decide. It is a tad patronizing to tell us what will help us, without having a shred of actual knowledge.

Helping libraries and disabled

This is completely false. No library needs to import from Amazon. And if it is a public library then they are wasting taxpayer money. Almost any book in the world they will still get at a special price through Indian publishers or distributors. There are societies for the disabled to whom publishers give rights at almost no cost. The UK has a law that a copy must be made available at near cost for disabled. By all means have such a law here. Why try and use parallel importation as an excuse for this?

Flexibility in the law

To your point: "Even if prices don't fall, it is good to have the flexibility for libraries to import four copies of a book that students need and isn't being made available in India. That flexibility is crucial, for availability, and just on principle, and not just for the sake of prices". By all means pass the law that gives the libraries the right to import 5 copies of any book they want. Publishers won't gripe at that. Libraries would still get it cheaper here than Amazon but that's the libraries' call.

Law should promote fairness and equity, not perpetuate a particular business model

No disagreement here. But the contention is that it will result in exactly the opposite. Sure, so let the lawmakers demonstrate they have done due diligence and outline evidence for their assumptions and how it will promote fairness and equity. What is unfair right now and what is not equitable? And how this law will address that. Why do other markets have it, and why should we not? On no count is there any detailing-just three false assumptions-availability, pricing and current editions.

Equally one can't have the law being made the proverbial ass because the lawmakers won't do their homework.

Export and remainder royalties are lower

I explained export vs domestic royalties in my first rebuttal. Not just remainders. Remainders are near zero royalties. Export surplus even pre-remainders are low royalty-against the author's wishes. And parallel importation will result in further loss of royalties from loss of sales of the hitherto legitimate edition.

Why anti-dumping laws will not be practical

Firstly there will be 40,000-plus titles to track, and the damage would have been done by the time you invoke the law. And assuming we want to invoke anti-dumping law, what parameters will be fixed? what discount are you going to fix? What quantity? I'll explain why this will never work. There are no real averages to draw lines and say this much and no more for either discount or price or quantity. To understand why we need to understand cost to price structures. Indian publishing (both publishing and imports) is low margin. Our books are priced to market; that means from cost our mark up is 2.5 times for imports and about 3-4 on average for local publishing-to enable the prices you see. Abroad it is 8-10 times from cost. To enable low pricing in India, we already have overseas terms that exceed 70% discounts, going into 'net pricing' for the ones that we pick to push big. Once the market is opened up, you will have two things-(a) targeted remainders as against the minor trickle now and (b) surplus clearance or even targeted sale to undercut the existing lawful edition. And I repeat the point that these remainders and 'targeted exports' can still end up undercutting the local edition. Not significantly enough to cause a change in pricing pattern (no benefit to consumer), but enough to undermine existing industry structures.

And yes, parallel importation (the current trickle) does see enforcement the logical way (by which I mean that the intensity of the problem merits the level of redressal). So far (believe me, each of us keeps tabs) we have 'unaware imports' and 'deliberate imports'. It is an irritant but is gradually reducing as the market matures. And the unaware ones are easily remedied by a simple letter asking for infringing stock to be withdrawn. In fact 8 out of 10 cases this simple letter works. For the deliberate ones, as I said earlier, it's just one or two where the impact is not worth the cost. Our margins do not allow us to hire expensive lawyers. But the moment it touches key brands or high revenue, legal action is taken.

Market expansion

Again the inherent assumption that this is some 'fat cat' lobbying protest. For once the lawmakers need to apply themselves-why is everybody from Penguin & Hachette (biggest) to Zubaan and Yatra (amongst smallest) all opposing it? Similarly from Crossword (large chain) to 'The Bookshop' in Jor Bagh (small independent), nobody wants this. Why? Surely that must speak for something? The only ones it will benefit are the remainder stalls you see (of which there must be about 25-30 all over the country). But over time every bookshop will be forced to keep this kind of stocking eroding current shelf space (they will have no choice). This is not market expansion.

Pricing drop

The other thing being ignored is that it's not just short term spoiler pricing. When one thinks in purely theoretical terms and says "open up, prices will drop", one is also not factoring in that the composition of what is stocked will changed. It's no longer status quo at reduced prices. That's the key to a mature market, that what the market needs is available-from bestsellers to literary works to philosophical works-balancing commercial and cultural needs and at prices the market can afford. So sure we can sit back and say we don't care if the history and philosophy shelves are eroded, if local publishing shrinks, let market forces prevail and let there be just foreign mass market novels and old editions (which will flow in by the thousand). But I'd like to hear the government say that.

Not just about copyrighted books but about all copyrighted materials

Yes, and we're not commenting about the others (other materials, i.e.) because we do not know enough. But we cannot have one size fits all if there are legitimate grounds to think about otherwise. Why is there a redressal of authors' needs in the music and film industry and a total disregard of books? Why were there panels created to discuss and thresh the whole thing through for films, and no detailed consultation at all for the books industry?

For more details visit https://cis-india.org/a2k/blogs/parallel-importation-rebuttal

Indian Law and "Parallel Exports"

pranesh — 2011-08-04T04:47:07Z

Recently, a lawyer for the publishing industry made the claim that allowing for parallel importation would legally allow for the exports of low-priced edition. Here we present a legal rebuttal of that claim.

Recently, on publisher/editor/writer Divya Dubey's blog, Saikrishna Rajagopal, a highly respected copyright lawyer and founding partner of Saikrishna & Associates, claimed that we had misconstrued the law with regard to export of books from India, and that allowing for parallel importation would harm that.

Mr Rajagopal writes:

The fundamental legal infirmity that I find in Mr. Prakash’s argument are twofold:
1. That current Indian Law allows export of low priced editions;
2. That the proposed proviso would not include within its scope 'exports'.

1. As regards the argument that current Indian Law allows export of low priced editions, the two John Wiley cases of the Delhi High Court of May 2010, make it abundantly clear that current Indian Copyright Law precludes export of low priced editions. Pertinently, an appeal was preferred in one of the Wiley cases and was dismissed. These judgments are therefore final now and therefore authoritatively, interpret Indian Copyright Law as it stands today.

I was wrong regarding the question of export of low-priced editions. There are are two Delhi High Court judgments which came out in May 2010 on export of books, holding that export of Low-Priced Editions meant for India to countries outside is unlawful (John Wiley & Sons Inc. & Ors v. Prabhat Chander Kumar Jain & Ors and John Wiley & Sons Inc. & Ors v. International Book Store & Anr). However, in the first judgment Justice Manmohan Singh clearly held that it would be unlawful to export without permission of the rights owner regardless of whether we followed the doctrine of national exhaustion (disallowed parallel importation) or the doctrine of international exhaustion (allowed parallel importation), and the "the question of exhaustion of rights of owner in copyright does not arise at all".[1] Thus Mr. Rajagopals's fears are, thankfully, unfounded.

Mr. Rajagopal continues:

2. As regards Pranesh’s argument that the proposed amendment does not cover ‘exports’, this argument is completely specious. In order to determine at what stage a copyright owner loses its right to control further sale and distribution of a copyrighted product, the statute itself needs to be looked into to determine what standard of exhaustion of rights has been contemplated. If the proposed proviso becomes law, it would be a clear indicator to a Court that Indian Copyright Law follows international exhaustion, namely, that once a product is legitimately sold anywhere in the world market, the copyright owner loses/exhausts the right to control further distribution and sale, including export and import. It is because the copyright owner exhausts rights globally that the proposed amendment is allowing for genuine copies of books sold in the international market, to be legally imported into India. This being the case, there is almost unanimity amongst IP Lawyers that export of low priced editions would also be considered legal, in view of the proposed amendment. This is not just our Indian view, but also the view of other international IP experts who have had an opportunity to look at the implications of this proviso.

The copyright owner, under a proper appreciation of the Indian law, never has the right to control "further sale and distribution" (as per s.14(a)(ii) of the Copyright Act), contrary to Mr. Rajagopal's assertion. Once a copy is in circulation (e.g., is sold), the copyright owner no longer has the exclusive right to put that copy into circulation, nor to control its further sale / distribution in any manner. This is the limitation on the owner's right that allows libraries exist. This is how second-hand book shops exist. If this limitation of the copyright owner's right did not exist, libraries and second-hand book shops would need to take permissions from the owner for each copy of each book that they lend or sell.

Imports and exports are two distinct things. India's following of the principle of "international exhaustion" means that the right to first sale is exhausted in India, when the work is legally published anywhere internationally (i.e., regardless of where that copyrighted work is legally published). The principle of international exhaustion doesn't not exhaust the right of first sale internationally—the word "international" is used to indicate where the publication has to take place for exhaustion to occur, and not where the exhaustion takes place. After all, Indian law on a matter cannot determine whether a book can or cannot be sold anywhere else in the world (which is precisely what it would do if it is to hold that rights are exhausted internationally by virtue of a book being printed in India).

Having done research on this point for the past week, I have not been able to come up with any legal articles or cases to directly oppose Mr. Rajagopal's claim that the legality of book exports from a country can depend on whether it follows national or international exhaustion. It is such a novel claim that no one has made it so far, and so no one has thought to oppose it. I know of no other IP lawyers in India or internationally who agree with Mr. Rajagopal's claim that allowing for parallel importation in India will have an impact on the exports of low-priced editions from India.

Most pertinently, when the Wiley judgments which related to export of low priced editions, were being pronounced in Court, the Hon’ble Judge casually remarked that the law laid down in cases may soon become redundant if the proposed legislation comes into force.

As noted above, the judge specifically stated in the written judgment itself that as per the court's reasoning, the question of whether the export of low-priced editions is legal is not related to the question of exhaustion of rights of the owner: ". . . as the express provision for international exhaustion is absent in our Indian law, it would be appropriate to confine the applicability of the same to regional exhaustion. Be that as it may, in the present case, the circumstances do not even otherwise warrant this discussion . . . the question of exhaustion of rights of owner in the copyright does not arise at all".

To get a little bit more technical, Justice Singh rules that there is a difference between first sale (exhaustion) vis-a-vis the owner and first sale vis-a-vis the licensee. He states that only rights of the licensee have been exhausted, and that the rights of the owner being exhausted do not even arise. But he is quite clear that this difference would apply regardless of whether we follow international exhaustion or national exhaustion.

Update (2011-02-15): For the tabularly inclined, here's a summary of what it means for a country to follow "national exhaustion" or "international exhaustion":

Where copyrighted work is first circulated	Where right of circulation is exhausted	What this is termed
	What "Exhaustion" Means
In any country	In all countries	[- Not possible. - Law in one country can't dictate law in another. - Exhaustion of right of circulation "in all countries" can only be declared so through an international treaty (e.g., the way TRIPS makes a book copyrighted in all countries if it is copyrighted in any country) - Art. 6 of TRIPS doesn't allow for this interpretation.]
In any country	Domestic territory	International exhaustion
Domestic territory	In all countries	[- Not possible. - Law in one country can't affect law in another. - Exhaustion of right of circulation "in all countries" can only be declared so through an international treaty (e.g., the way TRIPS makes a book copyrighted in all countries if it is copyrighted in any country) - Art. 6 of TRIPS doesn't allow for this interpretation.]
Domestic territory	Domestic territory	National exhaustion

Thus it is seen that the "national" or "international" exhaustion only determines the question of where the book has to be first circulated for exhaustion to happen. It can never change where the right of first circulation is exhausted (which in either case can only happen at a territorial level).

The implication of the right of circulation being exhausted world-wide is that no country can by law prevent parallel importation. The TRIPS Agreement, via Article 6, decided to give each country the right to choose to allow or disallow parallel importation. This was despite a great effort by developing countries to get international exhaustion codified as the worldwide norm.

To make this even more clear, I propose the following thought experiment.

X - national of New Zealand, which follows international exhaustion.
Country 1 - a country that follows national exhaustion / doesn't allow parallel imports
Country 2 - a country that follows national exhaustion / doesn't allow parallel imports
Country 3 - a country that follows international exhaustion / allows for parallel imports

Example 1: If X buys a book from Country 1 and sells that book in Country 2, he is in violation of Country 2's laws, regardless of the laws in New Zealand and Country 1.
Example 2: If X buys a book from Country 1 and sells that book in Country 3, he is not in violation of the law (either in New Zealand or in Country 3).
Example 3: If X buys a book in New Zealand and sells that book in Country 2, he is in violation of Country 2's laws, regardless of the laws in New Zealand.
Example 4: If X buys a book in New Zealand and sells that book in Country 3, he is not in violation of the law (either in New Zealand or in Country 3).

If one takes "international exhaustion" to mean that the right is exhausted in every country, then Example 3 would be wrong. But that would be absurd, since we know from experience that it is correct: Buying a book in New Zealand and selling it in the United Kingdom (which follows national/regional exhaustion) is unlawful. So obviously "international exhaustion" doesn't mean that.

Similarly, if one takes "national exhaustion" to mean that after sale a book cannot be exported, that would imply that Example 2 is faulty. But we know from experience that this is not so: Buying a book in the United Kingdom and selling it in New Zealand is lawful. So obviously "national exhaustion" doesn't mean that.

Thus, it is only the act of import that is ever affected by the question of national vs. international exhaustion, and never exports.

Notes

[1]: Justice Manmohan Singh writes: "As per my opinion, as the express provision for international exhaustion is absent in our Indian law, it would be appropriate to confine the applicability of the same to regional exhaustion. Be that as it may, in the present case, the circumstances do not even otherwise warrant this discussion as the rights if at all are exhausted are to the extent to which they are available with the licensees as the books are purchased from the exclusive licensees who have limited rights and not from the owner. In these circumstances, the question of exhaustion of rights of owner in the copyright does not arise at all." (Para 104).

For more details visit https://cis-india.org/a2k/blogs/indian-law-and-parallel-exports

Why Parallel Importation of Books Should Be Allowed

pranesh — 2019-02-01T17:41:26Z

There has been much controversy lately with some publishers trying to stop the government from amending s.2(m) of the Indian Copyright Act, clarifying that a parallel import will not be seen as an "infringing copy". This blog post argues that the government should, keeping in mind the larger picture, still go ahead and legalise parallel imports.

[Updated Wednesday, February 2, 2011, to respond to Thomas Abraham's extensive and thoughtful rebuttal of the earlier version this post.]

First off, here is the controversial clause, with the proposed amendment (the insertion of a "proviso", in legalese) being emphasised in bold font-face:

The amendment

2(m) "infringing copy" means,—

    (i) in relation to a literary, dramatic, musical or artistic work, a reproduction thereof otherwise than in the form of a cinematographic film;

    (ii) in relation to a cinematographic film, a copy of the film made on any medium by any means;

    (iii) in relation to a sound recording, any other recording embodying the same sound recording, made by any means;

    (iv) in relation to a programme or performance in which such a broadcast reproduction right or a performer's right subsists under the provisions of this Act, the sound recording or a cinematographic film of such programme or performance, if such reproduction, copy or sound recording is made or imported in contravention of the provisions of this Act;

Provided that a copy of a work published in any country outside India with the permission of the author of the work and imported from that country shall not be deemed to be an infringing copy.

Some claim that this amendment to s.2(m) ("provided that... copy") has the potential to destroy the publishing industry. The most lucid explanation of this was in a recent op-ed by Thomas Abraham in the Hindustan Times, very ominously titled The Death of Books. However it seems to us that the publishing industry—especially foreign publishers with distributorships in India—don't want to open themselves up to competition in the distribution market, and are opposing this most commendable move.

What is parallel importation?

Before getting into explanations of why allowing for parallel importation is good, and how the arguments otherwise fall short, we should examine what parallel importation is.

"Parallel import, insofar as copyright is concerned, involves an “original” copyright product (i.e. produced by or with the permission of the copyright owner in the manufacturing country) placed on the market of one country, which is subsequently imported into a second country without the permission of the copyright owner in the second country. For instance, the copyright owner of a book produced in India places the book on the market in India. A trader buys 100 copies of the book from India and imports them to China without the permission of the copyright owner of the book in China. This act of the trader bringing the books into China is called parallel import, the legality of which depends on the copyright law of the importing country (namely China in this example)." (Consumers International, Copyright and Access to Knowledge: Policy Recommendations on Flexibilities in Copyright Laws 23 (2006).)

Some fear-mongers try to equate parallel importation with 'anarchy' in markets, and some confusedly claim that this amendment would allow infringing copies of books would be permitted. That is simply not true. For parallel importation to be said to happen, the sale must itself be legal. If it is an an illegally sold copy (a pirated copy of a book, for instance) that is imported, then it will count as a black market import—not as a parallel import. Allowing for parallel imports will only dismantle monopoly rights over importation, and the amendment makes that amply clear.

Harms on existing books of not allowing parallel importation

Libraries/second-hand bookshops/consumers have no way of knowing if a book was originally imported legally or not, since there is no easy way of telling a parallel-ly imported copy apart from a exclusively imported copy. If one of them, even unknowingly buys/sells a foreign edition about which they am not sure and it turns out it was not legally imported (and there are literally thousands of such books, and I personally own at least a couple dozen foreign editions bought from various second-hand bookshops) then they are committing copyright infringement.

This precisely was argued by the library associations and others in amici briefs to the US Supreme Court in the Costco v. Omega case. For instance, the brief for the the American Library Association, the Association of College and Research Libaries, and the Association of Research Libraries in Support of Petitioner argues that:

By restricting the application of [the first sale doctrine] to copies manufactured in the United States, the Ninth Circuit’s decision threatens the ability of libraries to continue to lend materials in their collections. Over 200 million books in U.S. libraries have foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicate on their copyright page where they were printed, many do not. Libraries, therefore, have no way of knowing whether these books comply with the Ninth Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians will have to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. For future acquisitions, libraries would be able to adjust to the Ninth Circuit’s narrowing of [the first sale doctrine] only by bearing the significant cost of obtaining a “lending license” whenever they acquired a copy that was not clearly manufactured in the United States.

and, the brief for the Public Knowledge, American Association of Law Libraries, American Free Trade Association, the Electronic Frontier Foundation, Medical Library Association, and the Special Libraries Association in Support of Petitioner states:

The uncertainty created by the Ninth Circuit’s holding [against parallel importation] will harm used bookstores, libraries, yard sales, out-of-print book markets, movie and video game rental markets, and innumerable other secondary markets. Owners of copyright works or goods containing copyrighted elements manufactured abroad will be unable to dispose of these products without authorization at the risk of liability under copyright law’s extensive damages provisions. Furthermore, the chilling effects of the Ninth Circuit’s holding will extend beyond works manufactured abroad. Owners of copies of works will be unable to determine whether they are protected by [the first sale doctrine], as they will not always know where their goods were manufactured. Copyright holders will have little incentive to make clear the location of manufacturing of their copyrighted works,3 as greater uncertainty means a greater ability to sell the right to distribute the goods within the United States. Secondary market sellers who cannot afford to purchase this right will be unable to do business unless they are prepared to engage in lengthy and expensive litigation with an uncertain result. A wide variety of important secondary markets in copyrighted works and goods with copyrighted elements will suffer without the protection of the first sale doctrine.

Benefits of parallel importation

Dismantling distribution monopoly rights

The benefits that will accrue from allowing for parallel importations are huge. Currently a large percentage of educational books in India are imported, but with different companies having monopoly rights in importation of different books. If this was opened up to competition, the prices of books would drop, since one would not need to get an authorization to import books—the licence raj that currently exists would be dismantled—and Indian students will benefit. This is especially important for students and for libraries because even when low-priced editions are available, they are often of older editions.

Allowing people to import goods without permissions (with appropriate duties) is taken for granted in all other areas, so why not copyrighted works? After all, it is not the act of publication that gets affected, but the right of exclusive distribution. And if that goes away after first sale internationally, that's not a bad thing at all.

Generally, there are two main benefits of allowing for parallel importation: faster introduction of the latest international releases into the domestic country, and lowered prices by decreasing the costs imposed by a monopoly right over distribution.

All the foreign books that an online bookseller like Flipkart delivers in India are procured from international sources. Without parallel importation, Flipkart will have to ask for permission from the book publishers for each foreign book each time it makes a sale. This would cripple Flipkart's business model.

Helping book publishers

Book publishers will be benefited by parallel importation, just as they are benefited by the existence of libraries and second-hand book stores. Libraries and second-hand book stores help with market segmentation, providing access to people who can't afford expensive books at much lower rates, often free. However, the existence of second-hand book stores in almost every city in India—I have personally bought second-hand books everywhere from Jhansi (Leo Tolstoy's War and Peace) to Delhi's Darya Ganj market (Edmund Wilson's Letters on Literature and Politics)—does not prevent me from buying books first hand. Indeed, Wilson's Letters is out of print, and cannot be bought in a store like Crosswords or Gangaram's.

Why do I emphasise second-hand books and libraries? They are artefacts of something variously known as the "first sale doctrine" or the "doctrine of exhaustion" in copyright law: After the first sale of a book, subsequent sales, rentals, etc., cannot be controlled by the copyright owner. Parallel importation is simply a matter of applying this doctrine to the first sale of the book internationally rather than its first sale in India.

Thus we see that the existence of second-hand books, libraries, and parallel imports, are all dependent on the same rule of copyright law: the first sale doctrine. This doctrine is enshrined in s.14(b)(iv) of the Indian Copyright Act, and has been interpreted by the Delhi High Court to mean first sale in India. The present amendment changes that to mean first sale internationally.

The introduction of the modern "public library" in the mid-19th century led to a surge in literacy, readership, and book sales, and not a decline. Similarly, there is no reason to suppose that allowing parallel importations will lead to a decline in book sales.

Helping libraries and the print-disabled

Even currently, many people buy books directly from abroad and have them shipped to India. This is especially necessary for libraries whose patrons—scholars and students—very often need access to the latest books. Currently, libraries often buy books from abroad from Amazon, Flipkart, Alibris, etc. Such acts, within a strict reading of the law, are not legal, since they fall afoul of s.51(b)(iv), since the import is not for the "private and domestic use" of the libraries. This is also of especial concern for organizations working with print-disabled individuals, since the number of books legally available domestically in formats accessible by the print-disabled is very small, and often need to be imported.

Helping all consumers

An excellent report was prepared in 2006 by Consumers International, in which they studied the costs of textbooks in eleven countries, including India, by average purchasing power of each country's citizens, instead of absolute cost. Based on that study, and a detailed investigation of international treaties on copyright and the flexibilities allowed in them, Consumers International recommended that India should amend our law to make it clear that parallel importation of copyrighted works is legal (on page 51 of the report).

Rebutting objections

I will address a few specific objections raised by Mr. Abraham, Nandita Saikia, and others.

1. Authors' won't lose out on royalties

Authors do not lose out on royalties because of parallel importation, just as they do not lose out on royalties because of libraries, nor because of second-hand book stores. For parallel importation to take place, the books have to be purchased legally, and that first sale itself ensures that authors are paid royalties.

Of course, publishing contracts often have a clause that remaindered books will not garner royalties. But in that case, the problem is not parallel importation, but the overstocking and subsequent remaindering of books. The authors wouldn't be paid (or would be paid very little) for remaindered books even if the books weren't imported into India. Parallel importation does not in any way change that.

Indian authors

There is a worry that an Indian author would be hit if remaindered copies of his/her books started entering the Indian market. That would mean that foreign publishers had overstocked that Indian author's book, i.e., that the expectation from the book was much higher than the actual demand. If this happens infrequently, then the author hasn't much to worry about (since remainders aren't a big problem). If it happens frequently, then firstly the publisher should re-adjust to the market and realize that demand is low. Secondly, the author needs to worry more about quality of the book (and whether it caters to foreign audiences) than the possible effects that the availability of cheaper copies of that book would have.

2. Remaindered books are in publishers' control

India has amongst the cheapest book prices in the world. Then why would book publishers be wary of even cheaper books overrunning the Indian market? The reason, Mr. Abraham tells us, is remaindered books. He believes that remaindered books have the potential to destroy the Indian book market. Remaindering of books has been happening for decades. If remaindered books haven't already destroyed all book markets worldwide, then it is unlikely that they will do so suddenly just because parallel importation of books is permitted in India.

Remainders happen because of a miscalculation by the publisher: expecting more demand than was actually present. What happens with that excess stock is controlled by the publishers. They can choose to pulp them, burn them, or even push them into other channels of commerce that Mr. Abraham points out exist in the mature, frontline markets where remaindering happens:

And the reason why they have not destroyed book markets worldwide is because the mature markets exist with multiple strands (chains and high street stores, independents, direct sellers, online sellers, and supermarkets)—so a direct seller will sell the same book a high street store is selling at a much reduced price without it affecting the business of each strand. Each strand is discrete and price sensitivity does not matter the same way.

Since those multiple strands of commerce exist, each of which would enable the seller to get a better profit (being in a developed country) than in India, there is no reason to fear overrunning of the market with remainders.

3. Dumping of books should be tackled separately

An extension of the remaindered books concern is that of India becoming a land where all books will be dumped. This hasn't happened in case of countries like New Zealand, Mexico, Chile, Egypt, Cameroon, Pakistan, Argentina, Israel, Vietnam, South Korea, Japan, and a host of other countries, all of which allow for parallel importation of books. In a 1998 judgment, the United States Supreme Court, some parallel imports of copyrighted goods were legal. That ruling did not cause the downfall of the US book market, despite cheaper books being available outside the US. Australia has allowed for parallel importation of books in one form or another since 1991 (when the law was changed to allow for all parallel of all books that weren't introduced in the Australian market within 30 days of it being released elsewhere in the world). New Zealand did a study after removing the ban on parallel importation, and declared that cheaper books were available on a more timely basis than previously. None of these countries have been overrun by grey market books.

Customs laws are better suited

Even assuming that this fear is well-founded, copyright law is not the best way to deal with the problem. Dumping of books should be regulated by customs laws (anti-dumping and countervailing duties). Using copyright law to regulate apprehended book dumping practices (which might not even happen) is like using a trawler hoping to catch only shrimp: it is naive to think that there won't be unintended bycatch, and the consequences can be disastrous for the knowledge environment in case of books.

Customs laws are more flexible because they are imposed by the executive, and unlike copyright law, can be more easily changed as per requirements. So even if copyright law allows for parallel importation of copyrighted works, a special case can be made out by publishers in case of trade publishing, for instance, and that can be targetted specifically by imposing duties. However, the inverse cannot happen, since we are not aware of any mechanism whereby libraries, consumers and others can get to 'override' the provision in the Copyright Act.

Additionally, these duties can be made to operate only if the book is already being sold in India; these duties can be made to operate only on new books. A ban on parallel importation, on the other hand will apply equally to books that are out of print, to books that the original copyright owner has not even granted an exclusive Indian distributorship and are not even being sold in India. It goes right to the heart of freedom of speech, which the Supreme Court has held includes the right to receive information.

4. Non-printing of low-priced editions for India because of "unsecure" market won't happen

Parallel importation, which is what the amendment to s.2(m) allows for, affects only importation. It does not in any way affect publication in India or exports. Exporting low-priced Indian editions to countries which allow for parallel importation of books, is currently of doubtful legality. [Update: Earlier an incorrect claim was made in this post that such export was legal. The legal status is not that clear. While there is a Delhi High Court case that makes exports of low-priced editions illegal in the context of sale to the United States, it specifically states that the decision does not depend on whether India allows for parallel importation or not.] The amendment does not change that position, for reasons explained at greater length in a separate post. The incentives to print low-priced editions hence does not decrease. If anything it will increase because currently books that are not available as low-priced editions cannot be imported without exclusive licensing, and with a change in this position, the incentive to compete in the form of low-priced editions will increase.

Indeed, even before that 2009 Delhi High Court judgment prohibiting exports to the United States, many low-priced editions were being printed in India. And even before the 2005 Bombay High Court judgment prohibiting parallel imports, many low-priced editions were being printed in India. This won't change, regardless of the law, because India is an increasingly profitable and expanding market, and low-priced editions are a necessity in this market due to lower average income.

5. Rhetoric flourish and the law: Open and closed markets

Mr. Abraham asks how many authors one can name from open markets like Malaysia, Singapore, and Hong Kong, as a sign of the 'history of creativity' in each of these countries and territories. It might be just as well to ask how many authors he can name from closed markets like Bhutan, Kazakhstan, Cambodia, Papua New Guinea, Indonesia, Jordan, and Ukraine. One's ability to name authors from a country has less to do with the open/closed nature of its market and more to do with one's general knowledge.

Additionally, the 'mature' markets which he wishes India to emulate—United States, the United Kingdom, and Australia—are more ambiguous on parallel importation than he would have us believe. In the United States, the legality of a segment of parallel importation of copyrighted goods reached the United States Supreme Court in Quality King v. L'anza in 1998, in which the court held in favour of the importer.

The question reached the US Supreme Court again last year in Costco v. Omega, but the court split on it 4-4, and did not deliver a binding precedent on parallel importation. Thus, for all intents and purposes, under copyright law, the United States is an open market.

In the United Kingdom, as per European Union law, parallel importation is permitted from anywhere within the EU. And in Australia, parallel importation of parallel goods is largely allowed, with some conditions to encourage faster publishing in Australia of foreign books.

Most importantly, none of the markets held up as role models are developing countries. India is. This makes all the difference, as the Consumers International report underscores.

Standing Committee consultations

Lack of wide consultation

On one point we are in complete agreement with Mr. Abraham, which is his point regarding lack of adequate consultation. While there was a good amount of consultation during the drafting stage, when a wide-ranging public consultation was held in 2006, this was not repeated in 2010 by the Standing Committee. Further, the Standing Committee only gave fifteen days for responses to its call for comments.

Publishers were represented

While Mr. Abraham states that only the Authors Guild was represented before the Standing Committee, by going through the report prepared by it, we see that the Federation of Indian Publishers and the Association of Publishers in India were also called to testify before the Standing Committee.

Libraries, students, consumers were not represented

However, while the authors supported it, and the publishers opposed it, no one got to hear the voice of the readers, the students, the libraries, the book buyers. For instance, not a single consumer rights organization or library association was called before the Standing Committee. Internationally, organizations like Consumers International, the International Federation of Library Associations, and EIFL (an international library organization) are invited to meetings of the World Intellectual Property Organization and their views are taken with seriousness as they are a very important part of the copyright environment.

Department's and Standing Committee's reasoning

We reproduce below four paragraphs from the Standing Committee's report, which elucidate many of the reasons for going in for this particular amendment.

7.10
All the reservations/objections raised by the various stakeholders [including the Federation of Indian Publishers and the Association of Publishers in India, whose objections are quoted in an earlier paragraph of the report -ed.] were taken up by the Committee with the Department with the intent of having full understanding of the background necessitating the proposed amendment and its exact impact on the various stakeholders. As clarified by the Department, the main purpose of this amendment was to allow for imports of copyright materials (e.g. books) from other countries. It was in accordance with Article 6 of the TRIPS Agreement relating to exhaustion of rights whereunder developing countries could facilitate access to copyright works at affordable cost. Exhaustion of rights (popularly called as parallel import) was a legal mechanism used to regulate prices of IPR protected materials. This was viable only if the price of the same works in the Indian market was very high when compared to the price in other countries from where it was imported to India.

7.11
Committee's attention was drawn to the fact that majority of educational books used in India were imported from other countries particularly from US and EU. There was an increasing tendency by publishers to give territorial licence to publish the books at very high rates. The low price editions were invariably the old editions than the latest ones. This provision would compel the Indian publishers to price the works reasonably so that it would not be viable for a distributor to import same works to India from other countries. This would also save India foreign exchange on the payment of royalties (licence fee) by the Indian publishers to foreigners.

7.12
Committee was also given to understand by the representatives of the publishing industry that Scheme of the Copyright Law was entirely different from the Trade Marks Act, 1999 and the Patent Act, 1970. The application of the standards and principles of these two laws through the proposed amendment of section 2(m) would completely dismantle the business model currently employed, rendering several industries unviable. On a specific query in this regard the Department informed that the concept of international exhaustion provided in section 107 A of the Patent Act, 1971 and in section 30 (3) of the Trademarks Act, 1999 and in section 2 (m) of the copyright law were similar. This provision was in tune with the national policy on exhaustion of rights.

7.13
After analysing the viewpoints of all the stakeholders along with the clarifications given thereupon by the Department, the Committee is of the view that proposed inclusion of the proviso in the definition of the term 'infringing copy' seems to be a step in the right direction, specially in the prevailing situation at the ground level. The present practice of publishers publishing books under a territorial license, resulting in sale of books at very high rates cannot be considered a healthy practice. [Emphasis added.] The Committee also notes that availability of low priced books under the present regime is invariably confined to old editions. It has been clearly specified that only those works published outside India with the permission of the author and imported into India will not be considered an infringed copy. Nobody can deny the fact that the interests of students will be best protected if they have access to latest editions of the books. Thus, apprehensions about the flooding of the primary market with low priced editions, may be mis-founded as such a situation would be tackled by that country's law. [emphasis added.] The Committee would, however, like to put a note of caution to Government to ensure that the purpose for which the amendment is proposed, i.e., to protect the interest of the students is not lost sight of.

Conclusion

It is clear that allowing for parallel imports is not likely to hurt publishers, but will result in an expansion of the reading market. It is mainly foreign publishers' monopoly rights over distribution which will be harmed by this amendment, while Indian publishers, Indian authors, and Indian readers, especially students, will stand to gain. Furthermore, in the long run, even foreign publishers will stand to gain due to market expansion. Any legitimate worries that publishers may have are better dealt with under other laws (such as the Customs Act) and not the Copyright Act.

For more details visit https://cis-india.org/a2k/blogs/parallel-importation-of-books

The Online Video Environment in India - A Survey Report

pranesh — 2011-10-03T09:31:30Z

iCOMMONS, the OPEN VIDEO ALLIANCE, and the CENTRE FOR INTERNET AND SOCIETY have initiated a research project which seeks to survey the online video environment in India and the opportunities this new medium presents for creative expression and civic engagement. This report seeks to define key issues in the Indian context and begins to develop a short-term policy framework to address them.

The basic assumption of this paper is that the online video medium should support creative and technical innovation, competition, and public participation, and that open source technology can help develop these traits. These assumptions are not elaborated upon here. Instead, this report looks at questions of “openness” that are not strictly technological; that are specific to video in India; and that provide points of entry to a simple policy framework.

The paper is organized in the following parts:

The first chapter, THE NATIONAL CHARACTER OF INDIAN VIDEO, provides a brief historical timeline of events from the first screening of the Lumiere Brothers films in India in 1896, through the beginning of the twenty-first century. This chapter traces the traditional channels of dissemination of video content in India, and establishes the close and unique bond that the visual medium has formed with Indian society.
The second chapter, DIGITAL MEDIA AND NETWORK TRANSFORMATIONS, looks at recent media transformations like the rise of the Internet and peer-to-peer networking, the proliferation of telecommunications, and other developments which form the backbone of the emerging online video medium. Peer-to-peer and associative networking provides a new means of content circulation throughout the country.
The third chapter, MAPPING CONTENT ON THE INTERNET, traces the various types of visual content visible over these new networks, exploring case studies of videos circulating on the Internet which have raised new questions of censorship, freedom of speech, and the openness of the medium.
The fourth chapter, THE ‘OPEN VIDEO’ QUESTION, creates a judgment-based framework to assess the openness of the medium. This chapter lays out a series of questions around the broad spectrum of openness, viewed from various perspectives of access, participation, open source technology, and availability, with the intent of mapping the circumstances under which online video operates in India. Moreover, the chapter focuses on the structural limitations to video which can be addressed by policy, or even an absence of policy.

Whereas the report consciously makes an effort to explore not only transitory web videos but also films, the terms ‘video’ and ‘film’, in many parts are treated interchangeably. Although films and videos represent different traditional mediums of recording, the interest of this report in examining the ‘online video’ content in India, consists of both types of material—accessed perhaps with little distinction.

The scope of this paper is extremely broad and touches upon a wide variety of issues in India, where each area has a peculiar specificity of its situation—urban or rural, geographic, and so on. Links and references have been provided in the footnotes for background readings of these issues.

Click here to download the report. [PDF, 1.22 MB]

For more details visit https://cis-india.org/openness/online-video-environment-in-india

New Release of IPR Chapter of India-EU Free Trade Agreement

pranesh — 2011-09-22T12:34:05Z

A draft of the IPR chapter of the EU-India FTA, made publicly available now for the first time, provides insight into India's response in July 2010 to several EU proposals on intellectual property protection and enforcement.

A draft of the IPR chapter of the EU-India FTA, made publicly available for the first time (PDF, 296Kb), provides insight into India's response in July 2010 to several EU proposals on intellectual property protection and enforcement. The consolidated draft which was prepared to serve as the basis of talks that took place from July 12-14, 2010, in New Delhi, reveals parties' negotiating stances in response to preliminary positions put forth earlier (see IPR Chapter May draft).

In particular, this draft reflects India's rejection of many EU proposals that would require India to:

exceed its obligations under the WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), e.g by providing data exclusivity for pharmaceutical products;
impose radical enforcement provisions, such as liability of intermediary service providers, border measures for goods in transit, and raised norms for damages and injunctions; or
require legislative change, e.g., on data protection, and to accommodate the full EU demands on geographical indicators.

A chart compiled by CIS comparing proposed language by India and the EU in several provisions with TRIPS can be found here (PDF, 402 Kb).

Sources close to the negotiations have also confirmed that during the July talks India reiterated its refusal to go beyond TRIPS, and its refusal to discuss issues that require changes to Indian law. India appears to have also reiterated that it could not finalise FTA copyright provisions before passage of the Copyright Amendment Bill in the Indian Parliament.

It is hard to assess the current state of the negotiations on IP or to measure the outcomes of subsequently held talks without access to recent drafts, a public record of deliberations, or the schedule of full and intersessional rounds taking place. However, from press and other statements attributed to the European Commission and Indian officials after the December 2010 EU-India Summit in Brussels, it appears that:

both parties plan to conclude the FTA, the biggest ever for the EU, by Spring 2011;
the EU has not relaxed its pursuit of at least some "TRIPS plus" provisions such as data protection for pharmaceuticals
a mutually agreed solution to India's WTO case against the EU over the seizure of generic medicines may be round the corner. Its impact on the FTA is open to speculation.

Because the India-EU FTA is likely to set a new precedent for future trade agreements between developed and developing countries, and with enormous stakes for patients across the globe, India and the EU need to get it right and ensure no provision runs counter to the interests of millions of citizens.

For further information about the text, contact Malini Aisola <malini.aisola@gmail.com> or Pranesh Prakash <pranesh@cis-india.org>

For more details visit https://cis-india.org/a2k/blogs/july-2010-ipr-india-eu-fta

Call for Comments for Report on the Online Video Environment in India

pranesh — 2012-12-14T12:12:14Z

The Open Video Alliance, the Centre for Internet and Society and iCommons are pleased to announce a public call for comments on version 1 of "Online Video Environment in India: A Survey Report".

This report is an outcome of a research project that seeks to survey the online video environment in India and the opportunities this new medium presents for creative expression and civic engagement. This report by Siddharth Chadha, Ben Moskowitz, and Pranesh Prakash seeks to define key issues in the Indian context and begins to develop a short-term policy framework to address them.

The basic assumption of this paper is that the online video medium should support creative and technical innovation, competition, and public participation, and that open source technology can help develop these traits. These assumptions are not elaborated upon here. Instead, this report looks at questions of “openness” that are not strictly technological and legal; that are specific to video in India; and that provide points of entry to a simple policy framework.

Please do write in to Ben Moskowitz (ben at openvideoalliance.org) and Pranesh Prakash (pranesh at cis-india.org) with any suggestions, criticisms, or general comments that you have by January 20, 2011.

Download the paper.

For more details visit https://cis-india.org/openness/blog-old/comments-online-video-report

Problems Remain with Standing Committee's Report on Copyright Amendments

pranesh — 2011-09-06T07:50:12Z

The Rajya Sabha Standing Committee on Human Resource Development (under which ministry copyright falls) recently tabled their report on the Copyright (Amendment) Bill, 2010 before Parliament. There is much to be applauded in the report, including the progressive stand that the Committee has taken on the issue of providing access by persons with disabilities. This post, however, will concern itself with highlighting some of the problems with that report, along with some very important considerations that got missed out of the entire amendment debate.

Fair Dealings and Intermediary Liability

The amendments make a number of changes to s.52(1) of the Act, including to the fair dealing provisions under s.52(1)(a), and introduction of two new sub-sections (s.52(1)(b) and (c)) with s.52(1)(c) introducing a modicum of protection for intermediaries involved in "transient and incidental storage for the purpose of providing electronic links, access or integration" (but only if the copyright holder has not expressed any objections, and if the intermediary believes it to be non-infringing). The provision allows the intermediary to ask the person complaining against it to provide a court order within 14 days, since the intermediary is in no position to determine the judicial question of whether the copyright holder holds copyright and if the third party has violated that copyright. However this provision was opposed tooth and nail by the copyright holders' associations that dominated the representations, while intermediaries and consumers remained woefully under-represented before the Standing Committee.

Predictably, the Standing Committee dealt a blow against intermediaries and consumers by asking the government to review the "viability of the duration of 14 days... by way of balancing the views of the stakeholders as well as the legal requirement in the matter". They recommended a relatively minor change of changing the phrase "transient and incidental" to "transient or incidental". By doing this, they failed to address the concerns raised by Yahoo India, Google India, and also failed to acknowledge the submissions made by 22 civil society organizations (available here: http://cis-india.org/advocacy/ipr/upload/copyright-bill-submission).

Technological Protection Measures and Rights Management Information Provision

The amendments aim to bring about two new criminal provisions, and seek to make circumvention of technological protection measures (digital locks) and alteration of rights management information (which are embedded into digital files and signals) illegal.

The Standing Committee heard a number of organizations on technological protection measures, which we had argued are harmful as they a) cannot distinguish between fair dealing and infringement, and b) are harmful even if a legal right to circumvent for fair dealings is provided because the technological means to circumvent doesn't necessarily exist. (Imagine a law that says that breaking a lock using lock-breaking implements isn't a crime if it is done to enter into your own house. Such a law doesn't help you if you can't get your hands on the lock-breaking implements in the first place.) The Indian Broadcasting Federation, the Business Software Alliance, and the Motion Picture Association (which represents six studios, all American), the Indian Music Industry, and the Indian Performing Right Society Limited all felt that this provision did not go far enough. The Motion Picture Association, for instance, wants not just controls over that which copyright covers

Yahoo India and Google India on the other hand thought that provision went too far. Google made it clear that they thought having criminal repercussions for circumvention was clearly disproportionate. Thus, a clearer split is established between old media companies; the old media companies clutching on to straws that they feel will save them from adapting their business practices to the digital environment, and online companies that understand the digital environment better having a markedly different idea.

Currently section 65B (read with the definition of "Rights Management Information" in section 2(xa)) of the proposed amendments ensures that Rights Management Information cannot be used to spy on users. The Indian Reprographic Rights Organization however believes that this is wrong: it believes that copyright owners should have the ability to track users without their consent. Yahoo India, on the other hand, believes that this is a harmful provision, and state that "the imposition of criminal and monetary liability could adversely affect consumers", and cites the instance of difficulties that would be faced by "entities engaged in creating copies of any copyright material into a format specially designed for persons suffering from disability" because of the language of the provision that requires knowledge instead of intention. The committee responds to this by summing up with a tautology, stating:

The Committee is of the view that the parties responsible for distribution or broadcasting or communication to the public through authorized licence from the author or rights holder and who do not remove any rights management information deliberately for making unauthorized copies need not worry about this provision as long as their act is as per the framework of this provision.

Implications of Standing Committee's Report Unclear

Many of the comments made by the Standing Committee are unclear. On compulsory licensing, the committee states:

The Committee also takes note of the proposed amendments in section 31 A relating to compulsory licence in unpublished Indian works. The provision of compulsory licence for orphaned works available under this section is proposed to be extended to published works as well. Like in the case of section 31, extension of applicability to all foreign works (including film, DVDs, etc.) could be violative of Berne Convention and TRIPS Agreement and seem to fall short of the minimum obligations imposed by such instruments. The Committee is of the view that future implication of proposed amendment in Section 31A vis-à-vis India's commitment to international agreement needs to be free from any ambiguity so as to prevent any negative fallout.

However, the usage of the phrase "could be violative" leaves it unclear whether the Standing Committee believes the proposed amendments to be violative of the TRIPS Agreement or not. All that the Standing Committee says is that the provision needs to be unambiguous, and that TRIPS compliance must be ensured. That word of caution does not directly rebut the government's contention that the proposed amendment is TRIPS-compliant.

Similarly, the Committee's views on increase of copyright term for cinematograph films is unclear. While commenting on the clause that introduces the term increase (as part of the proposal to include the principal director as an author of the film along with the producer), the Committee states:

It, therefore, recommends that the proposal to include principal director as author of the film along with producer may be dropped altogether.

While this presumably means that the proposal to increase term is also being rejected, that is not made clear by the Committee's comments.

Increased Copyright Duration, Expansive Moral Rights and Other Negative Changes

In the submission of CIS and twenty-one other civil society organizations to the Standing Committee, we highlighted all of the below concerns. However, our submission was not tabled before the Standing Committee for reasons unknown to us.

WCT and WPPT compliance: India has not signed either of these two treaties, which impose TRIPS-plus copyright protection, but without any corresponding increase in fair dealing / fair use rights. Given that the Standing Committee has recommended against some aspects of WCT compliance (such as the move to change "hire" to "commercial rental") and that without such changes India cannot be a signatory to the WCT, it is unclear why other forms of WCT compliance (such as TPMs) should be implemented.
Increase in duration of copyright: The duration of copyright of photographs and video recordings is sought to be increased. The term of copyright for photographs is being increased from sixty years from creation to sixty years from death of the photographer. This will significantly reduce the public domain, which India has been arguing for internationally, especially through its push for the Development Agenda at the World Intellectual Property Organization.
Moral rights: Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without requisite safeguards.
Version recordings: The amendments make cover version much more difficult to produce, and while the Standing Committee has addressed the concerns of some in the music industry, it hasn't addressed the concerns of artists and consumers.

Criminal Provisions, Government Works, and Other Missed Opportunities

The following important changes should have been made by the government, but haven't. While on some issues the Standing Committee has gone beyond the proposed amendments, it hasn't touched upon any of the following, which we believe are very important changes that are required to be made.

Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement. This has now been extended to the proposal for circumvention of Technological Protection Measures and removal of Rights Management Information also.
Government works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act. A simple amendment of s.52(1)(q) would suffice. The amended subsection would except "the reproduction, communication to the public, or publication of any government work" as being non-infringing uses.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled.
Fair dealing and fair use: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions.

For more details visit https://cis-india.org/a2k/blogs/sc-report-on-amendments

CIS Submission on Draft Patent Manual 2010

pranesh — 2014-05-29T06:47:32Z

The patent office has released a revised version of the Draft Manual of Patent Practice and Procedure. Section 8.03.06.10 of the Manual deals with patenting of computer programmes. CIS is happy to note the many improvements in this draft of the Manual from the previous version. CIS made its submission along with a few suggestions that it thinks would make the document even better.

The section has been entirely reformulated and a few of the changes made to the previous version are welcome.

Positive changes in the Manual

The provisions relating to making software with “technological features” and “technical applications” which were present in the previous version have been completely eliminated. Thus, the “technical applications”of a computer programme will not make an otherwise unpatentable computer programme patentable subject matter. This also eliminates the need to arrive at a definition of “technical applications” or “technological features”.
The term “computer implemented inventions” which found no place in the Patent Act, 1970 but was introduced in the previous version of the manual without proper explanation or definition has been eliminated.
The Manual expressly states that mathematical methods (8.03.06.10.b) and business methods (8.03.06.10.c) are not patentable irrespective of the language in which they claims are couched or the form in which they are claimed.
Computer programme products which were considered to be patentable subject matter in the previous version of the manual are considered to be unpatentable subject matter in the new version. The Manual clearly explains computer programme products to be nothing but computer programme per se stored in a computer readable medium. (8.03.06.10.d)
The Manual recognises that no computer programme can be functional without hardware to execute the programme. This means that any computer programme cannot become patentable subject matter merely because it is associated with some hardware. (8.03.06.10.g)
A computer programme which runs on a general purpose known computer is expressly held to be unpatentable subject matter. This is undoubtedly a welcome inclusion since it helps eliminate claims relating to a mere computer programme which may have been considered patentable simply because such computer programme is run using a general purpose computer. This is one of the common ways in which Section 3(k) is circumvented to obtain patent for claims which are for a computer programme per se.

Contentious provisions of the Manual which require amendment/explanation are as follows:

Clause 8.03.06.10.a

Under this provision, mathematical methods, business methods, computer programmes per se and algorithms are not considered as patentable inventions. In relation to computer programs, the law provides a qualification that what is not patentable is only computer program per se.

While this restates the statute correctly, it does so without offering any explanation, which would be preferable. The Manual should explain the scope of the term “per se” and clear the ambiguity surrounding it. The Manual should clearly provide reasons for any computer programme to fall in either category.

We suggest using the following definition of computer programme per se, which has previously been submitted to the Patent Office1:

Computer programme per se in the relevant clause means (a) any computer programme in the abstract, (b) any computer programme expressed in source code form, including source code recorded on an information storage medium, or (c) any computer programme that can be executed or executes on a general purpose computer,2 including computer programme object code designed for execution on a general purpose computer that is recorded on an information storage medium.3

Clause 8.03.06.10.e

If a claim in a patent application is not directed at a computer programme per se it could be patentable, if all other patentability conditions are met. This provision thus necessitates distinguishing computer programmes per se from other types of inventions that use or implement computer programmes.

The clause, while seeking to distinguish computer programmes per se from inventions which use or implement computer programmes, does make clear what “implement computer programmes” means, nor does it clarify what “computer programme per se” is. A relevant suggestion for a definition for “computer programme per se” has been provided above, which would address this problem.

Clause 8.03.06.10.f

The computer programmes are often claimed in the form of algorithms as method claims or system claims with some ‘means’ indicating the function of flow charts or process steps. The algorithm related claims may be even wider than the computer programme claimed by itself, for a programme represents a particular set, the algorithm expresses the principles .

We find that this clause has no relevance to explaining patentability of computer programmes and thus suggest that the same be deleted from the Manual. The Manual should however make it clear that in algorithm-related claims, if the function claimed to be performed by the invention can be done only by means of a computer programme, such claims are not patentable.

Clause 8.03.06.10.g

Essentially, all computer programmes need a combination with some hardware for their functionality. In an application for patent for a new hardware system, the possibility of a computer programme forming part of the claims cannot be ruled out. It has to be carefully considered as to how integrated is the novel hardware with the computer programme. Further, it is also to be considered whether the machine is programme specific or the programme is machine specific. A computer programme which may work on any general purpose known computer does not meet the requirement of patentability.

With regard to cases of computer programmes being combined with hardware, the Manual seems to suggest that the patentability of the combination is dependent on “how integrated the novel hardware [is] with the computer programme.” This language is very vague and ambiguous. In case of an application for patent for a new hardware system, the Manual should make it clear that such claim is eligible only if the inventive conribution resides entirely in the hardware. The Manual should also require the patent applicant to demonstrate exactly how the inventive step resides in the hardware separable from the computer programme.
We propose a new part to the above test to make the clause clearer. The Manual should specify that “the computer programme portions of any claimed invention should be treated as if it were covered by prior art and patentability should thus be determined with respect to the other features of the invention”. This way, we can ensure that an invention which merely uses or implements a computer programme is not granted patent on the basis of the inventiveness of the computer programme per se.
It is indeed laudable that the Manual makes it clear that a computer programme which may work on any general purpose known computer does not meet the requirement of patentability. This should make it clear that a computer programme cannot be patentable simply because it is executed by a special purpose computer as long as a general purpose computer can also execute the same. We suggest the following definition of a general purpose computer, which has already been proposed to the Patent Office, be used:4

A general-purpose computer here means a device capable of running multiple unrelated programs, often simultaneously for different purposes. It will comprise at least of: (1) one or more central processing units, (2) one or more input devices that are not specific to any one program, (3) memory, (4) one or more non volatile mass storage devices, and (5) one or more output devices. However, a general-purpose computer does not include a device that itself represents an inventive contribution to the art.

Clause 8.03.06.10.h

Method claims, whether independent or dependent, reciting computer programs without process limitations in the form of hardware features are not allowable. For a method reciting computer programme to be patentable, it must clearly recite into it limiting hardware integers that enable the program to function .

The Clause dilutes the standard set in the previous clauses. It seems to suggest that any method claim is patentable as long as it is connected to hardware which enable the program to function and define its limitations/scope. This position is untenable since no method claim can be purely a computer programme and use of computer programmes for any specific task would necessarily require hardware to implement the same. Therefore the requirement of hardware limitation to make a computer programme patentable is essentially allowing for any computer programme to be patentable. Not only is such a limitation redundant but it also renders the “per se” requirement in Section 3(k) meaningless. Further, the meaning of the term “hardware integers” in the Clause is unclear. For the purpose of this comment, we assume that it refers to hardware features. The Manual should ensure that the method claim has significant per or post processing activity and is not merely combined with hardware to be patent-eligible. This ensures that any computer programme is not granted patent merely because it has certain trivial pre or post processing activities associated with it.

Clause 8.03.06.10.i

Claims directed at computer programs coupled to hardware, enabling the hardware to perform a certain function may be allowable, if such an invention meets all other conditions of patentability.

The Clause is restating the content of Clause 8.03.06.10.e and our comments on this Clause remain the same as our comments for Clause 8.03.06.10.e.

Requirement of Disclosure

We suggest that the Manual require that an application claiming patent for a computer programme (which does not constitute computer programme per se) necessarily disclose the entire source code. This ensures that the invention can perform exactly all those functions that are described in the patent application. Since different computer programmes can be written (with each having different source code) to perform the same function, it is of utmost importance that the applicant demonstrate the workability of the invention described in the application and such proof can be provided only by disclosing the source code.

Purpose of the Manual

There is no clarity on the purpose and authority of the Manual. We do not know if the Manual attempts to explain the provisions of the Patent Act, 1970 to an applicant or is meant to provide guidance to patent examiners or be binding upon them. If a patent official acts in a manner contradictory to the Manual, the consequences of such action is unclear. The Manual should clarify these questions.

This definition was formulated and submitted by Knowledge Commons, Delhi to the Indian Patent Office in response to the earlier version of the draft manual. The definition was formulated through the collective efforts of Prabir Purkayastha, Richard Fontana of Red Hat, Venkatesh Hariharan, Tahir Amin, Mishi Chowdhury of Software Freedom Law Centre and Jaijit Bhattacharya. See http://osindia.blogspot.com/2009/04/computer-programme-per-se-conundrum.html
We propose the following definition of a general purpose computer - A general-purpose computer here means a device capable of running multiple unrelated programs, often simultaneously for different purposes. It will comprise at least of: (1) one or more central processing units, (2) one or more input devices that are not specific to any one program, (3) memory, (4) one or more non volatile mass storage devices, and (5) one or more output devices. However, a general-purpose computer does not include a device that itself represents an inventive contribution to the art. See also Infra n. 3.
An information storage medium means any disc, tape, perforated media or other information storage device, which, if fed into or located in a computer or computer based equipment is capable of reproducing any information, other than an information storage medium that itself represents an inventive contribution to the art.
This definition was formulated and submitted by Knowledge Commons, Delhi to the Indian Patent Office in response to the earlier version of the draft manual. See http://osindia.blogspot.com/2009/04/computer-programme-per-se-conundrum.html

For more details visit https://cis-india.org/a2k/blogs/cis-submission-draft-patent-manual-2010

Civic Hacking Workshop

pranesh — 2011-08-23T03:14:03Z

CIS, with the UK Government's Foreign Office and the Cabinet Office Team for Digital Engagement, and Google India, is organizing a workshop on open data (or the lack thereof) and 'civic hacking'.

The UK Government's Foreign Office and the Cabinet Office Team for Digital Engagement, Google India and the Centre for Internet and Society, Bangalore are organizing a 'Civic Hacking Workshop' on Wednesday, July 28, 2010, bringing together civic-minded technologists who've been working with governmental data in India and Britain.

The workshop will discuss the problems of obtaining data, especially in India, the technological solutions that these various groups have encountered, the difficulties of technology as a mass-based civic solution, and the visions that these groups have for a more engaged civil society and the contributions they seek to make to the public.

The people attending are, from India (Bangalore):

Alok Singh (Akshara Foundation)
Shivangi Desai (Akshara Foundation)
Arun Ganesh (Geohackers / National Institute of Design)
A. Pandian (Mapunity)
Sridhar Raman (Mapunity)
S. Raghavan Kandala (Mapunity)
Thejesh GN (Janaagraha / Infosys)
Sushant Sinha (IndianKanoon.com / Yahoo)
Vijay Rasquinha (Mahiti)
P.G. Bhat (SmartVote.in)
Pranesh Prakash (CIS)
Raman Jit Singh Chima (Google)

And from Britain:

David McCandless (Information Is Beautiful)
Harry Metcalfe (TellThemWhatYouThink.org / Open Rights Group)
Tim Green (Democracy Club)
Edmund von der Burg (YourNextMP)
Rohan Silva (Special Adviser to the PM)

For more details visit https://cis-india.org/openness/blog-old/civic-hacking-workshop

pranesh — 2011-09-21T06:01:54Z

CIS analyses the Copyright (Amendment) Bill, 2010, from a public interest perspective to sift the good from the bad, and importantly to point out what crucial amendments should be considered but have not been so far.

The full submission that CIS and 21 other civil society organizations made to the Rajya Sabha Standing Committee on HRD (which is studying the Bill) is available here. Given below is the summary of our submissions:

Existing Copyright Act

The Indian Copyright Act, 1957 has been designed from the perspective of a developing country. It has always attempted a balance between various kinds of interests. It has always sought to ensure that rights of authors of creative works is carefully promoted alongside the public interest served by wide availability and usability of that material. For instance, our Copyright Act has provisions for:

compulsory and statutory licensing: recognizing its importance in making works available, especially making them available at an affordable rate.
cover versions: recognizing that more players lead to a more vibrant music industry.
widely-worded right of fair dealing for private use: recognizing that individual use and large-scale commercial misuse are different.

These provisions of our Act have been lauded, and India has been rated as the most balanced copyright system in a global survey conducted of over 34 countries by Consumers International.

The Indian Parliament has always sought to be responsive to changing technologies by paying heed to both the democratisation of access as well as the securing of the interests of copyright holders. This approach needs to be lauded, and importantly, needs to be maintained.

Proposed Amendments

Some positive amendments

Fair Dealings, Parallel Importation, Non-commercial Rental: All works (including sound recordings and cinematograph films) are now covered the fair dealings clause (except computer programmes), and a few other exceptions; parallel importation is now clearly allowed; and non-commercial rental has become a limitation in some cases.
Persons with disabilities: There is finally an attempt at addressing the concerns of persons with disabilities. But the provisions are completely useless the way they are currently worded.
Public Libraries: They can now make electronic copies of works they own, and some other beneficial changes relating to public libraries.
Education: Some exceptions related to education have been broadened (scope of works, & scope of use).
Statutory and compulsory licensing: Some new statutory licensing provisions (including for radio broadcasting) and some streamlining of existing compulsory licensing provisions.
Copyright societies: These are now responsible to authors and not owners of works.
Open licences: Free and Open Source Software and Open Content licensing is now simpler.
Partial exemption of online intermediaries: Transient and incidental storage of copyrighted works has been excepted, mostly for the benefit of online intermediaries.
Performer’s rights: The general, and confusing, exclusive right that performers had to communicate their performance to the public has been removed, and instead only the exclusive right to communicate sound/video recordings remains.
Enforcement: Provisions on border measures have been made better, and less prone to abuse and prevention of legitimate trade.

Some negative amendments

WCT and WPPT compliance: India has not signed either of these two treaties, which impose TRIPS-plus copyright protection, but without any corresponding increase in fair dealing / fair use rights.
Increase in duration of copyright: This will significantly reduce the public domain, which India has been arguing for internationally.
Technological Protection Measures: TPMs, which have been shown to be anti-consumer in all countries in which they have been introduced, are sought to be brought into Indian law.
Version recordings: The amendments make cover version much more difficult to produce.
Moral rights: Changes have been made to author’s moral rights (and performer’s moral rights have been introduced) but these have been made without requisite safeguards.

Missed opportunities

Government-funded works: Taxpayers are still not free to use works that were paid for by them. This goes against the direction that India has elected to march towards with the Right to Information Act.
Copyright terms: The duration of all copyrights are above the minimum required by our international obligations, thus decreasing the public domain which is crucial for all scientific and cultural progress.
Criminal provisions: Our law still criminalises individual, non-commercial copyright infringement.
Libraries and archives: The exceptions for ‘public libraries’ are still too narrow in what they perceive as ‘public libraries’.
Educational exceptions: The exceptions for education still do not fully embrace distance and digital education.
Communication to the public: No clear definition is given of what constitute a ‘public’, and no distinction is drawn between commercial and non-commercial ‘public’ communication.
Internet intermediaries: More protections are required to be granted to Internet intermediaries to ensure that non-market based peer-production projects such as Wikipedia, and other forms of social media and grassroots innovation are not stifled.
Fair dealing and fair use: We would benefit greatly if, apart from the specific exceptions provided for in the Act, more general guidelines were also provided as to what do not constitute infringement. This would not take away from the existing exceptions.

For more details visit https://cis-india.org/a2k/blogs/copyright-bill-analysis

The 2010 Special 301 Report Is More of the Same, Slightly Less Shrill

pranesh — 2011-10-03T05:37:27Z

Pranesh Prakash examines the numerous flaws in the Special 301 from the Indian perspective, to come to the conclusion that the Indian government should openly refuse to acknowledge such a flawed report. He notes that the Consumers International survey, to which CIS contributed the India report, serves as an effective counter to the Special 301 report.

Special 301 Report: Unbalanced Hypocrisy

The United States Trade Representative has put yet another edition of the Special 301 report which details the copyright law and policy wrongdoings of the US's trading partners. Jeremy Malcolm of Consumers International notes that the report this year claims to be "well-balanced assessment of intellectual property protection and enforcement ... taking into account diverse factors", but:

[I]n fact, the report largely continues to be very one-sided. As in previous editions, it lambasts developing countries for failing to meet unrealistically stringent standards of IP protection that exceed their obligations under international law.

More the report changes, the more it stays the same. Despite having wider consultations than just the International Intellectual Property Alliance (IIPA, consisting of US-based IP-maximalist lobbyists like the Motion Picture Association of America, Recording Industry Association of America, National Music Publishers Association, Association of American Publishers, and Business Software Alliance) and the Pharmaceutical Research and Manufacturers of America (PhRMA, consisting of US-based pharma multinationals), things haven't really changed much in terms of the shoddiness of the Special 301 report.

India and the 2010 Special 301 Report

The Special 301 report for 2010 contains the following assessment of India:

India will remain on the Priority Watch List in 2010. India continues to make gradual progress on efforts to improve its legislative, administrative, and enforcement infrastructure for IPR. India has made incremental improvements on enforcement, and its IP offices continued to pursue promising modernization efforts. Among other steps, the United States is encouraged by the Indian government’s consideration of possible trademark law amendments that would facilitate India’s accession to the Madrid Protocol. The United States encourages the continuation of efforts to reduce patent application backlogs and streamline patent opposition proceedings. Some industries report improved engagement and commitment from enforcement officials on key enforcement challenges such as optical disc and book piracy. However, concerns remain over India’s inadequate legal framework and ineffective enforcement. Piracy and counterfeiting, including the counterfeiting of medicines, remains widespread and India’s enforcement regime remains ineffective at addressing this problem. Amendments are needed to bring India’s copyright law in line with international standards, including by implementing the provisions of the WIPO Internet Treaties. Additionally, a law designed to address the unauthorized manufacture and distribution of optical discs remains in draft form and should be enacted in the near term. The United States continues to urge India to improve its IPR regime by providing stronger protection for patents. One concern in this regard is a provision in India’s Patent Law that prohibits patents on certain chemical forms absent a showing of increased efficacy. While the full import of this provision remains unclear, it appears to limit the patentability of potentially beneficial innovations, such as temperature-stable forms of a drug or new means of drug delivery. The United States also encourages India to provide protection against unfair commercial use, as well as unauthorized disclosure, of undisclosed test or other data generated to obtain marketing approval for pharmaceutical and agricultural chemical products. The United States encourages India to improve its criminal enforcement regime by providing for expeditious judicial disposition of IPR infringement cases as well as deterrent sentences, and to change the perception that IPR offenses are low priority crimes. The United States urges India to strengthen its IPR regime and will continue to work with India on these issues in the coming year.

This short dismissal of the Indian IPR regime, and subsequent classification of India as a "Priority Watch List" country reveals the great many problems with the Special 301.

On Copyrights

The report notes that there are "concerns over India's inadequate legal framework and ineffective enforcement". However, nowhere does it bother to point out precisely how India's legal framework is inadequate, and how this is negatively affecting authors and creators, consumers, or even the industry groups (MPAA, RIAA, BSA, etc.) that give input to the USTR via the IPAA. Nor does it acknowledge the well-publicised fact that the statistics put out by these bodies have time and again proven to be wrong:
Apart from this bald allegation which has not backing, there is a bald statement about India needing to bring its copyright law "in line with international standards" including "the WIPO Internet Treaties". The WIPO Internet Treaties given that more than half the countries of the world are not signatories to either of the WIPO Internet Treaties (namely the WIPO Copyright Treaty and the WIPO Performance and Phonograms Treaty), calling them 'international standards' is suspect. That apart, both those treaties are TRIPS-plus treaties (requiring protections greater than the already-high standards of the TRIPS Agreement). India has not signed either of them. It should not be obligated to do so. Indeed, Ruth Okediji, a noted copyright scholar, states:

Consistent with their predecessors, the WIPO Internet Treaties marginalize collaborative forms of creative engagement with which citizens in the global South have long identified and continue in the tradition of assuming that copyright’s most enduring cannons are culturally neutral. [...] The Treaties do not provide a meaningful basis for a harmonized approach to encourage new creative forms in much the same way the Berne Convention fell short of embracing diversity in patterns and modes of authorial expression.

Some of the of the 'problems' noted in the report are actually seen as being beneficial by many researchers and scholars such as Lawrence Liang, Achal Prabhala, Perihan Abou Zeid and others, who argue that lax enforcement has enabled access to knowledge and promotion of innovation. In a panel on 'Access to Knowledge' at the Internet Governance Forum, Lea Shaver, Jeremy Malcolm and others who have been involved in that Access to Knowledge movement noted that lack of strict enforcement played a positive role in many developing countries. However, they also noted, with a fair bit of trepidation, that this was sought to be changed at the international level through treaties such as the Anti-Counterfeiting Treaty Agreement (ACTA).
The scope of an optical disc law are quite different from copyright law. The report condemns "unauthorized manufacture and distribution of optical discs", however it does not make it clear that what it is talking about is not just unlicensed copying of films (which is already prohibited under the Copyright Act) but the manufacture and distribution of blank CDs and DVDs as well. The need for such a law is assumed, but never demonstrated. It is onerous for CD and DVD manufacturers (such as the Indian company Moserbaer), and is an overbearing means of attacking piracy.
The report calls for "improve[ment] [of India's] criminal enforcement regime" and for "deterrent" sentences and expeditious judicial disposition of IPR infringement cases. While we agree with the last suggestion, the first two are most unacceptable. Increased criminal enforcement of a what is essentially a private monopoly right is undesirable. Copyright infringment on non-commercial scales should not be criminal offences at all. What would deter people from infringing copyright laws are not "deterrent sentences" but more convenient and affordable access to the copyright work being infringed.

On Patents

Thankfully, this year the Special 301 report does not criticise the Indian Patent Act for providing for post-grant opposition to patent filings, as it has in previous years. However, it still criticises section 3(d) of the Patent Act which ensures that 'evergreening' of drug patents is not allowed by requiring for new forms of known substances to be patented only if "the enhancement of the known efficacy of [the known] substance" is shown. Thus, the US wishes India to change its domestic law to enable large pharma companies to patent new forms of known substances that aren't even better ("enhancement of the known efficacy"). For instance, "new means of drug delivery" will not, contrary to the assertions of the Special 301 report and the worries of PhRMA, be deemed unpatentable.

The United States has been going through much turmoil over its patent system. Reform of the patent system is currently underway in the US through administrative means, judicial means, as well as legislative means. One of the main reasons for this crumbling of the patent system has been the low bar for patentability (most notably the 'obviousness' test) in the United States and the subsequent over-patenting. An American judgment even noted that "anything under the sun that is made by man" is patentable subject matter. It is well-nigh impossible to take American concerns regarding our high patent standards seriously, given this context.

Miscellanea

The harms of counterfeit medicine, as we have noted earlier, are separate issues that are best dealt under health safety regulations and consumer laws, rather than trademark law.

Data exclusivity has been noted to be harmful to the progress of generics, and seeks to extend proprietary rights over government-mandated test data. It is [clear from the TRIPS Agreement][de-trips] that data exclusivity is not mandatory. There are clear rationale against it, and the Indian pharmaceutical industry [is dead-set against it][de-india]. Still, the United States Trade Representative persists in acting as a corporate shill, calling on countries such as India to implement such detrimental laws.

Conclusion

Michael Geist, professor at University of Ottowa astutely notes:

Looking beyond just Canada, the list [of countries condemned by the Special 301 report] is so large, that it is rendered meaningless. According to the report, approximately 4.3 billion people live in countries without effective intellectual property protection. Since the report does not include any African countries outside of North Africa, the U.S. is effectively saying that only a small percentage of the world meet its standard for IP protection. Canada is not outlier, it's in good company with the fastest growing economies in the world (the BRIC countries are there) and European countries like Norway, Italy, and Spain. In other words, the embarrassment is not Canadian law. Rather, the embarrassment falls on the U.S. for promoting this bullying exercise and on the Canadian copyright lobby groups who seemingly welcome the chance to criticize their own country.

His comments apply equally well for India as well.

IIPA's Recommendation for the Special 301 Report

Thankfully, this year IIPA's recommendations have not been directly copied into the Special 301 report. (They couldn't be incorporated, as seen below.) For instance, the IIPA report notes:

The industry is also concerned about moves by the government to consider mandating the use of open source software and software of only domestic origin. Though such policies have not yet been implemented, IIPA and BSA urge that this area be carefully monitored.

Breaking that into two bit:

Open Source

Firstly, it is curious to see industry object to legal non-pirated software. Secondly, many of BSA's members (if not most) use open source software, and a great many of them also produce open source software. HP and IBM have been huge supporters of open source software. Even Microsoft has an open source software division. [Intel][intel], SAP, Cisco, Dell, Sybase, Entrust, Intuit, Synopsys, Apple, Borland, Cadence, Autodesk, and Siemens are all members of BSA which support open source software / produce at least some open source software. And all BSA members rely on open source software (as part of their core products, their web-server, their content management system, etc.) to a lesser or greater extent. BSA's left hand doesn't seem to know what its right hand -- its members -- are doing. Indeed, the IIPA does not seem to realise that the United States' government itself uses [open source software], and has been urged to look at FOSS very seriously and is doing so, especially under CIO Vivek Kundra. And that may well be the reason why the USTR could not include this cautionary message in the Special 301 report.

Domestic Software

As this insightful article by Nate Anderson in Ars Technica notes:

Open source is bad enough, but a "buy Indian" law? That would be an outrage and surely something the US government would not itself engage in as recently as last year. Err, right?

Furthermore, the IIPA submission do not provide any reference for their claim that "domestic origin" software is being thought of being made a mandatory requirement in governmental software procurement.

WCT, WPPT, Camcording, and Statutory Damages

The IIPA submission also wish that India would:

Adopt a system of statutory damages in civil cases; allow compensation to be awarded in criminal cases;
Adopt an optical disc law;
Enact Copyright Law amendments consistent with the WCT and WPPT;
Adopt an anti-camcording criminal provision.

Quick counters:

Statutory damages (that is, an amount based on statute rather than actual loss) would result in ridiculousness such as the $1.92 million damages that the jury (based on the statutory damages) slapped on Jammie Thomas. The judge in that case called the damage award "monstrous and shocking" and said that veered into "the realm of gross injustice."
The reasons against an optical disc law are given above. Quick recap: it is a) unnecessary and b) harmful.
India has not signed the WCT and the WPPT. Indian law satisfies all our international obligations. Thus enacting amendments consistent with the WCT and the WPPT is not required.
Camcording of a film is in any case a violation of the Copyright Act, 1957, and one would be hard-pressed to find a single theatre that allows for / does not prohibit camcorders. Given this, the reason for an additional law is, quite frankly, puzzling. At any rate, IIPA in its submission does not go into such nuances.

Further conclusions

Shamnad Basheer, an IP professor at NUJS, offer the following as a response:

"Dear USA,

India encourages you to mind your own business. We respect your sovereignty to frame IP laws according to your national priorities and suggest that you show us the same courtesy. If your grouse is that we haven't complied with TRIPS, please feel free to take us to the WTO dispute panel. Our guess is that panel members familiar with the English language will ultimately inform you that section 3(d) is perfectly compatible with TRIPS. And that Article 39.3 does not mandate pharmaceutical data exclusivity, as you suggest! More importantly, at that point, we might even think of hauling you up before the very same body for rampant violations, including your refusal to grant TRIPS mandated copyright protection to our record companies, despite a WTO ruling (Irish music case) against you.

Yours sincerely,

India."

Basheer's suggestion seems to be in line with that Michael Geist who believes that other countries should join Canada and Israel in openly refusing to acknowledge the validity of the Special 301 Reports because they lack ['reliable and objective analysis'][geist-reliable]. And that thought serves as a good coda.

For more details visit https://cis-india.org/a2k/blogs/2010-special-301