Centre for Internet and Society

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

Analysis of the Copyright (Amendment) Bill, 2010

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

Technological Protection Measures in the Copyright (Amendment) Bill, 2010

pranesh — 2012-05-17T16:51:38Z

In this post Pranesh Prakash conducts a legal exegesis of section 65A of the Copyright (Amendment) Bill, 2010, which deals with the stuff that enables 'Digital Rights/Restrictions Management', i.e., Technological Protection Measures. He notes that while the provision avoids some mistakes of the American law, it still poses grave problems to consumers, and that there are many uncertainties in it still.

Technological Protection Measures are sought to be introduced in India via the Copyright (Amendment) Bill, 2010. This should be quite alarming for consumers for reasons that will be explained in a separate blog post on TPMs that will follow shortly.

In this post, I will restrict myself to a legal exegesis of section 65A of the Bill, which talks of "protection of technological measures". (Section 65B, which talks of Right Management Information will, similarly, be tackled in a later blog post.)

First off, this provision is quite unnecessary. There has been no public demand in India for TPMs to be introduced, and the pressure has come mostly from the United States in the form of the annual "Special 301" report prepared by the United States Trade Representative with input coming (often copied verbatim) from the International Intellectual Property Alliance. India is not a signatory to the WIPO Copyright Treaty (WCT) which requires technological protection measures be safeguarded by law. That provision, interestingly, was pushed for by the United States in 1996 when even it did not give legal sanctity to TPMs via its copyright law (which was amended in 2000 by citing the need to comply with the WCT).

TPMs have been roundly criticised, have been shown to be harmful for consumers, creators, and publishers, and there is also evidence that TPMs do not really decrease copyright infringement (but instead, quite perversely through unintended consequences, end up increasing it). Why then would India wish to introduce it?

Leaving that question aside for now, what does the proposed law itself say?

65A. Protection of Technological Measures

    (1) Any person who circumvents an effective technological measure applied for the purpose of protecting any of the rights conferred by this Act, with the intention of infringing such rights, shall be punishable with imprisonment which may extend to two years and shall also be liable to fine.

    (2) Nothing in sub-section (1) shall prevent any person from:

        (a) doing anything referred to therein for a purpose not expressly prohibited by this Act:

          Provided that any person facilitating circumvention by another person of a technological measure for such a purpose shall maintain a complete record of such other person including his name, address and all relevant particulars necessary to identify him and the purpose for which he has been facilitated; or

        (b) doing anything necessary to conduct encryption research using a lawfully obtained encrypted copy; or

        (c) conducting any lawful investigation; or

        (d) doing anything necessary for the purpose of testing the security of a computer system or a computer network with the authorisation of its owner; or

        (e) operator; or [sic]

        (f) doing anything necessary to circumvent technological measures intended for identification or surveillance of a user; or

        (g) taking measures necessary in the interest of national security.

Implications: The Good Part

This provision clearly takes care of two of the major problems with the way TPMs have been implemented by the Digital Millennium Copyright Act (DMCA) in the United States:

In s.65A(1) it aligns the protection offered by TPMs to that offered by copyright law itself (since it has to be "applied for the purpose of protecting any of the rights conferred by this Act"). Thus, presumably, TPMs could not be used to restrict access, only to restrict copying, communication to the public, and that gamut of rights.
In s.65A(1) and 65A(2) it aligns the exceptions granted by copyright law with the exceptions to the TPM provision. Section 65A(1) states that the act of circumvention has to be done "with the intention of infringing ... rights", and s.52(1) clearly states that those exceptions cannot be regarded as infringement of copyright. And s.65A(2)(a) states that circumventing for "a purpose not expressly prohibited by this Act" will be allowed.

A third important difference from the DMCA is that

It does not criminalise the manufacture and distribution of circumvention tools (including code, devices, etc.). (More on this below.)

Implications: The Bad Part

This provision, despite the seeming fair-handed manner in which it has been drafted, still fails to maintain the balance that copyright seeks to promote:

TPM-placers (presumably, just copyright holders, because of point 1. above) have been given the ability to restrict the activities of consumers, but they have not been given any corresponding duties. Thus, copyright holders do not have to do anything to ensure that the Film & Telivision Institute of India professor who wishes to use a video clip from a Blu-Ray disc can actually do so. Or that the blind student who wishes to circumvent TPMs because she has no other way of making it work with her screen reader is actually enabled to take advantage of the leeway the law seeks to provide her through s.52(1)(a) (s.52(1)(zb) is another matter!). Thus, while there are many such exceptions that the law allows for, the technological locks themselves prevent the use of those exceptions. Another way of putting that would be to say:
The Bill presumes that every one has access to all circumvention technology. This is simply not true. In fact, Spanish law (in Article 161 of their law) expressly requires that copyright holders facilitate access to works protected by TPM to beneficiaries of limitations of copyright. Thus, copyright holders who employ TPMs should be required to:
- tell their customers how they can be contacted if the customer wishes to circumvent the TPM for a legitimate purpose
- upon being contacted, aid their customer in making use of their rights / the exceptions and limitations in copyright law
How seriously can you take a Bill that has been introduced in Parliament that includes a provision that states: "Nothing in sub-section (1) shall prevent any person from operator; or" (as s.65A(2)(e), read in its entirety, does)?

Uncertainties

As mentioned above, the provisions are not all that clear regarding manufacture and distribution of circumvention tools. Thus, the proviso to s.65A(2)(a) deserves a closer reading. What is clear is that there are no penalties mentioned for manufacture or dissemination of TPMs, and that only those who circumvent are penalised in 65A(1), and not those who produce the circumvention devices. However:

On "shall maintain" and penalties

In the proviso to s.65B(2)(a), there is an imperative ("shall maintain") requiring "any person facilitating circumvention" to keep records. It is unclear what the implications of not maintaining such records are.

The obvious one is that the exemption contained in s.65(1)(a) will not apply if one were facilitated without the facilitator keeping records. Thus, under this interpretation, there is no independent legal (albeit penalty-less) obligation on facilitators. This interpretation runs into the problem that if this was the intention, then the drafters would have written "Provided that any person facilitating circumvention ... for such a purpose maintain/maintained a complete record ...". Instead, shall maintain is used, and an independent legal obligation seems, thus, to be implied. But can a proviso create an independent legal obligation? And is there any way a penalty could possibly be attached to violation of this proviso despite it not coming within 65A(1)?

On "facilitating" and remoteness

The next question is who all can be said to "facilitate", and how remote can the connection be? Is the coder who broke the circumvention a facilitator? The distributor/trafficker? The website which provided you the software? Or is it (as is more likely) a more direct "the friend who sat at your computer and installed the circumvention software" / "the technician who unlocked your DVD player for you while installing it in your house"?

While such a record-keeping requirement is observable by people those who very directly help you (the last two examples above), it would be more difficult to do so the further up you get on the chain of remoteness. Importantly, such record-keeping is absolutely not possible in decentralized distribution models (such as those employed by most free/open source software), and could seriously harm fair and legitimate circumvention.

More uncertainties

It is slightly unclear which exception the bypassing of Sony's dangerous "Rootkit" copy protection technology would fall under if I wish to get rid of it simply because it makes my computer vulnerable to malicious attacks (and not to exercise one of the exceptions under s.52(1)). Will such circumvention come under s.65A(2)(a)? Because it does not quite fall under any of the others, including s.65(2)(b) or (f).

On "purpose" as a criterion in 65A(2)(a)

A last point, which is somewhat of an aside is that 65A(2)(a) states:

Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose not expressly prohibited by this Act.

There's something curious about the wording, since the Copyright Act generally does not prohibit any acts based on purposes (i.e., the prohibitions by ss.14 r/w s.51 are not based on why someone reproduces, etc., but on the act of reproduction). In fact, it allows acts based on purposes (via s.52(1)). The correct way of reading 65A(2)(a) might then be:

Nothing in sub-section (1) shall prevent any person from doing anything referred to therein for a purpose expressly allowed by this Act.

But that might make it slightly redundant as s.65A(1) covers that by having the requirement of the circumvention being done "with the intention of infringing such right" (since the s.52(1) exceptions are clearly stated as not being infringements of the rights granted under the Act).

Conclusion

It would be interesting to note how leading copyright lawyers understand this provision, and we will be tracking such opinions. But it is clear that TPMs, as a private, non-human enforcement of copyright law, are harmful and that we should not introduce them in India. And we should be especially wary of doing so without introducing additional safeguards, such as duties on copyright holder to aid access to TPM'ed works for legitimate purposes, and remove burdensome record-keeping provisions.

For more details visit https://cis-india.org/a2k/blogs/tpm-copyright-amendment

Indian Copyright Act, 1957 (as amended by Copyright (Amendment) Bill, 2010)

pranesh — 2010-04-27T13:33:48Z

For more details visit https://cis-india.org/a2k/publications/copyright-act-amendediframes

Research Project on Open Video in India

pranesh — 2011-08-23T02:51:36Z

Open Video Alliance and the Centre for Internet and Society are calling for researchers for a project on open video in India, its potentials, limitations, and recommendations on policy interventions.

Project Timeline

From mid-April to mid-July.

Summary of Outputs

A 15-20 page paper surveying the online video environment in India and the opportunities it presents for creative expression, political participation, social justice, and other such concerns. The paper should deal with the structural limitations of the medium (e.g.: limited bandwidth, IP lobbies discourage re-appropriation of cultural materials, online video is inaccessible to the deaf, and so on) and how they can be addressed. Recommendations should be bold but in touch with the real policy and business frameworks of present-day India.
Several 1-2 page briefs on specific policy matters like: where is jurisdiction being exercised? what are the policy inflections? and, what interventions are needed to solve the structural limitations of the medium?

Survey Paper

The survey paper should describe the online video scenario in India, and three or more policy tensions. The paper should focus on areas of intellectual property rights, network issues, standards, device freedom and interoperability, accessibility, etc. The Open Video Alliance website[ova] for a complete list of relevant issues.

Overall, it should paint both a qualitative as well as a quantitative picture of online video in India, and in which structural improvements are needed (if any) to empower individuals.This paper should not be viewed as a recommendation to policymakers but instead as a general interest document which will inform and appeal to many audiences. While we expect the paper to span several distinct issues, there should be a prevailing narrative to weave them together.

Basic Assumptions

We want online video to be a participatory and collaborative social medium powered by open source. We also value the ability of individuals to express themselves using these tools, and the ability of new entrants to challenge incumbents and innovate on top of existing technologies. No time is needed to be spent establishing these values—instead, through this paper we try to identify structural improvements to the online video medium. How do we get from the status quo to the ideal open video environment? What investments must be made? What protections must be put into place for users, producers, etc.? Further, we should be able to make some broad recommendations to governments, foundations, and big institutions.

Because the network and IP enforcement environment in India are still malleable, we want to stress that there are many possible shapes that the online video medium could take. Our goal is to shine some light on how a medium that privileges the values outlined above could take shape.

Suggested Methodology

First, you would need to carry out a basic survey of the literature. Second, you should talk to various organizations using video, discover what they consider the structural limitations of online video, and what might be considered open video practices: some are legal, some are technical. You would use this data to direct original research and weave your findings into an engaging narrative.

Next Steps

You send 2 writing samples, a CV, and letter of recommendation;
We'll discuss the unifying themes and identify a more detailed timeline;
We produce a contract;
We Pick a regular time to meet every other week, to track progress.

For more details visit https://cis-india.org/openness/blog-old/open-video-research

Arguments Against Software Patents in India

pranesh — 2012-03-13T10:43:12Z

CIS believes that software patents are harmful for the software industry and for consumers. In this post, Pranesh Prakash looks at the philosophical, legal and practical reasons for holding such a position in India. This is a slightly modified version of a presentation made by Pranesh Prakash at the iTechLaw conference in Bangalore on February 5, 2010, as part of a panel discussing software patents in India, the United States, and the European Union.

This blog post is based on a presentation made at the iTechLaw conference held on February 5, 2010. The audience consisted of lawyers from various corporations and corporate law firms. As is their wont, most lawyers when dealing with software patents get straight to an analysis of law governing the patenting of computer programmes in India and elsewhere, and seeing whether any loopholes exist and can be exploited to patent software. It was refreshing to see at least some lawyers actually going into questions of the need for patents to cover computer programs. In my presentation, I made a multi-pronged case against software patents: (1) philosophical justification against software patents based on the nature of software; (2) legal case against software patents; (3) practical reasons against software patents.

Preamble

Through these arguments, it is sought to be shown that patentability of software is not some arcane, technical question of law, but is a real issue that affect the continued production of new software and the everyday life of the coder/hacker/software programmer/engineer as well as consumers of software (which is, I may remind you, everywhere from your pacemaker to your phone). A preamble to the arguments would note that the main question to ask is: why should we allow for patenting of software? Answering this question will lead us to ask: who benefits from patenting of software. The conclusion that I come to is that patenting of software helps three categories of people: (1) those large software corporations that already have a large number of software patents; (2) those corporations that do not create software, but only trade in patents / sue on the basis of patents ("patent trolls"); (3) patent lawyers. How they don't help small and medium enterprises nor society at large (since they deter, rather than further invention) will be borne out by the rest of these arguments, especially the section on practical reasons against software patents.

What are Patents?

Patents are a twenty-year monopoly granted by the State on any invention. An invention has to have at least four characteristics: (0) patentable subject matter; (1) novelty (it has to be new); (2) inventive step / non-obviousness (even if new, it should not be obvious); (3) application to industry. A monopoly over that invention, thus means that if person X has invented something, then I may not use the core parts of that invention ("the essential claims") in my own invention. This prohibition applies even if I have come upon my invention without having known about X's invention. (Thus, independent creation is not a defence to patent infringement. This distinguishes it, for instance, from copyright law in which two people who created the same work independently of each other can both assert copyright.) Patents cover non-abstract ideas/functionality while copyright covers specific expressions of ideas. To clarify: imagine I make a drawing of a particular machine and describe the procedure of making it. Under patent law, no one else can make that particular machine, while under copyright law, no one can copy that drawing.

Philosophical Justification Against Software Patents

Even without going into the case against patents per se (lack of independent creation as a defence; lack of 'harm' as a criterion leading to internalization of all positive externalities; lack of effective disclosure and publication; etc.), which has been done much more ably by others like Bessen & Meurer (especially in their book Patent Failure) and Boldrin & Levine (in their book Against Intellectual Monopoly, the full text of which is available online).

But there is one essentially philosophical argument against software as subject matter of a patent. Software/computer programs ("instructions for a computer"), as any software engineer would tell you, are merely algorithms ("an effective method for solving a problem using a finite sequence of instructions") that are meant to be understood by a computer or a human who knows how to read that code.

Algorithms are not patentable subject matter, as they are mere expressions of abstract ideas, and not inventions in themselves. Computer programs, similarly, are abstract ideas. They only stop being abstract ideas when embodied in a machine or a process in which it is the machine/process that is the essential claim and not the software. That machine or process being patented would not grant protection to the software itself, but to the whole machine or process. Thus the abstract part of that machine/process (i.e., the computer program) could be used in any other machine/process, as it it is not the subject matter of the patent. Importantly, just because software is required to operate some machine would then not mean that the machine itself is not patentable, just that the software cannot be patented in guise of patenting a machine.

Legal Case Against Software Patents

In India, section 3(k) of the Patent Act reads:

(3) The following are not inventions within the meaning of this Act: (k) a mathematical or business method or computer programme (sic) per se or algorithms.

As one can see, computer programs are place in the same category as "mathematical methods", "algorithms", and "business methods", hence giving legal validity to the idea propounded in the previous section that computer programs are a kind of algorithms (just as algorithms are a kind of mathematical method).

Be that as it may, the best legal minds in India have had to work hard at understanding what exactly "computer programme per se" means. They have cited U.S. case law, U.K. case law, E.U. precedents, and sought to arrive at an understanding of how per se should be understood. While understanding what per se means might be a difficult job, it is much easier to see what it does not mean. For that, we can look at the 2004 Patent Ordinance that Parliament rejected in 2005. In that ordinance, sections 3(k) and (ka) read as follows:

(3) The following are not inventions within the meaning of this Act: (k) a computer programme per se other than its technical application to industry or a combination with hardware; (ka) a mathematical method or a business method or algorithms.

Thus, it is clear that the interpretation that "computer programme per se" excludes "a computer programme that has technical application to industry" and "a computer programme in combination with hardware" is wrong. By rejecting the 2004 Ordinance wording, Parliament has clearly shown that "technical application to industry" and "combination with hardware" do not make a computer programme patentable subject matter.

Indeed, what exactly is "technical application to industry"? "Technical" has various definitions, and a perusal through those definitions would show that barely any computer program can be said not to relate to a technique, not involve "specialized knowledge of applied arts and sciences" (it is code, after all; not everyone can write good algorithms), or not relate to "a practical subject that is organized according to scientific principles" or is "technological". Similarly, all software is, by definition, meant to be used in combination with hardware. Thus, it being used in combination with hardware must not, as argued above, give rise to patentability of otherwise unpatentable subject matter category.

In 2008, the Patent Office published a new 'Draft Manual Of Patent Practice And Procedure' in which it sought to allow patenting of certain method claims for software inventions (while earlier the Patent Office objected to method claims, allowing only device claims with hardware components). This Draft Manual was withdrawn from circulation, with Shri N.N. Prasad (then Joint Secretary of DIPP, the department administering the Patent Office) noting that the parts of the Manual on sections 3(d) and 3(k) had generated a lot of controversy, and were ultra vires the scope of the Manual (which could not override the Patent Act). He promised that those parts would be dropped and the Manual would be re-written. A revised draft of the Manual has not yet been released. Thus the interpretation provided in the Draft Manual (which was based heavily on the interpretation of the U.K. courts) cannot not be relied upon as a basis for arguments in favour of the patentability of software in India.

In October 2008, CIS helped organize a National Public Meeting on Software Patents in which Indian academics, industry, scientists, and FOSS enthusiasts all came to the conclusion that software patents are harmful for both the industry as well as consumers.

Practical Reasons Against Software Patents

This is going to be an attempt at distilling and simplifying some of the main practical arguments against patenting of software.

There are traditionally four incentives that the patent system caters to: (1) incentive to invent; (2) incentive to disclose; (3) incentive to commercialize; and (4) incentive to invent substitutes. Apart from the last, patenting of software does not really aid any of them.

Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation

Given that computer programs are algorithms, having monopolies over such abstract ideas is detrimental to innovation. Just the metaphors say a lot about software patents: landmines (they cannot be seen/predicted); submarines (they surface out of the blue); gridlocks (because there are so many software patents around the same area of computing, they prevent further innovation in that area, since no program can be written without violating one patent or the other).

Imagine the madness that would have ensued had patents been granted when computer programming was in its infancy. Imagine different methods of sorting (quick sort, bubble sort) that are part of Computer Science 101 had been patented. While those particular instances aren't, similar algorithms, such as data compression algorithms (including the infamous LZW compression method), have been granted patents. Most importantly, even if one codes certain functionality into software independently of the patent holder, that is still violative of the patent. Computer programs being granted patents makes it extremely difficult to create other computer programs that are based on the same abstract ideas. Thus incentives # (1) and (3) are not fulfilled, and indeed, they are harmed. There is no incentive to invent, as one would always be violating one patent or the other. Given that, there is no incentive to commercialize what one has invented, because of fear of patent infringement suits.

An apt illustration of this is the current difficulty of choosing a royalty-free video format for HTML 5, as it shows, in practical terms, how difficult it is to create a video format without violating one patent or the other. While the PNG image format was created to side-step the patent over the LZW compression method used in the GIF image format, bringing Ogg Theora or Dirac (both patent-free video format) to surpass the levels of H.264/MPEG-4 AVC or VC-1 will be very difficult without infringing dozens if not hundreds of software patents. Chris DiBona of Google, while talking about improving Ogg Theora as part of its inclusion in HTML 5 specifications said, "Here’s the challenge: Can Theora move forward without infringing on the other video compression patents?" Just the number of companies and organization that hold patents over H.264 is astounding, and includes: Columbia University, Electronics and Telecommunications Research Institute of Korea (ETRI), France Télécom, Fujitsu, LG Electronics, Matsushita, Mitsubishi, Microsoft, Motorola, Nokia, Philips, Robert Bosch GmbH, Samsung, Sharp, Sony, Toshiba, and Victor Company of Japan (JVC). As is the amount of royalties to be paid ("[t]he maximum royalty for these rights payable by an Enterprise (company and greater than 50% owned subsidiaries) is $3.5 million per year in 2005-2006, $4.25 million per year in 2007-08 and $5 million per year in 2009-10"; with royalty per unit of a decoder-encoder costing upto USD 0.20.)

Indeed, even the most diligent companies cannot guard themselves against software patents. FFII estimates that a very simple online shopping website would violate twenty different patents at the very least. Microsoft recently lost a case against i4i when i4i surfaced with a patent covering custom XML as implemented in MS Office 2003 and MS Office 2007. As a result Microsoft had to ship patches to its millions of customers, to disable the functionality and bypass that patent. The manufacturers of BlackBerry, the Canadian company Research in Motion, had to shell out USD 617 million as settlement to NTP over wireless push e-mail, as it was otherwise faced with the possibility of the court shutting down the BlackBerry service in the U.S. This happened despite there being a well-known method of doing so pre-dating the NTP patents. NTP has also filed cases against AT&T, Sprint Nextel, T-Mobile, Verizon Wireless, and Palm Inc. Microsoft was also hit by Visto Corporation over those same NTP patents, which had been licensed to Visto (a startup).
- Don't These Cases Show How Software Patents Help Small Companies?
  
  The astute reader might be tempted to ask: are not all of these examples of small companies getting their dues from larger companies? Doesn't all of this show that software patents actually help small and medium enterprises (SMEs)? The answer to that is: no. To see why, we need to note the common thread binding i4i, NTP, and Visto. None of them were, at the time of their lawsuits, actually creating new software, and NTP was an out-and-out "non-practising entity"/"patent holding company" AKA, patent troll. i4i was in the process of closing shop, and Visto had just started up. None of these were actually practising the patent. None of these were producing any other software. Thus, none of these companies had anything to lose by going after big companies. In other words, the likes of Microsoft, RIM, Verizon, AT&T, etc., could not file counter-suits of patent infringement, which is normally what happens when SMEs try to assert patent rights against larger corporations. For every patent that the large corporation violates of the smaller corporation, the smaler corporation would be violating at least ten of the larger corporation's. Software patents are more helpful for software companies as a tool for cross-licensing rather than as a way of earning royalties. Even this does not work as a strategy against patent trolls.
Thus, the assertion that was made at the beginning is borne out: software patents help only patent trolls, large corporations that already have large software patent portfolios, and the lawyers who draft these patents and later argue them out in court.
Term of Patents

Twenty years of monopoly rights is outright ludicrous in an industry where the rate of turnover of technology is much faster -- anywhere between two years and five months.
Software Industry Progressed Greatly Without Patents

In India, software patents have never been asserted in courts (even though many have been illegally granted), yet the software industry in India is growing in leaps and bounds. Similarly, most of the big (American) giants of the software industry today grew to their stature by using copyright to "protect" their software, and not patents.
Copyright Exists for Software

As noted above, the code/expression of any software is internationally protected by copyright law. There is no reason to protect the ideas/functionality of that software as well.
Insufficient Disclosure

When ordinary computer programmers cannot understand what a particular software patent covers (which is the overwhelming case), then the patent is of no use. One of the main incentives of the patent system is to encourage gifted inventors to share their genius with the world. It is not about gifted inventors paying equally gifted lawyers to obfuscate their inventions into gobbledygook so that other gifted inventors can at best hazard a guess as to precisely what is and is not covered by that patent. Thus, this incentive (#2) is not fulfilled by the current system of patents either -- not unless there is a major overhaul of the system. This ties in with the impossibility of ensuring that one is not violating a software patent. If a reasonably smart software developer (who are often working as individuals, and as part of SMEs) cannot quickly ascertain whether one is violating patents, then there is a huge disincentive against developing software in that area at all.
Software Patents Work Against Free/Libre/Open Source Software

Software patents hinder the development of software and FOSS licences, as the licensee is not allowed to restrict the rights of the sub-licensees over and above the restrictions that the licensee has to observe. Thus, all patent clearances obtained by the licensee must be passed on to the sub-licensees. Thus, patented software, though most countries around the world do not recognize them, are generally not included in the default builds of many FOSS operating systems. This inhabits the general adoption of FOSS, since many of the software patents, even though not enforceable in India, are paid heed to by the software that Indians download, and the MP3 and DivX formats are not enabled by default in standard installations of a Linux OS such as Ubuntu.

Conclusion

Currently, the U.S. patent system is being reviewed at the administrative level, the legislative level, as well as the judicial level. At the judicial level, the question of business method patents (and, by extension, software patents) is before the Supreme Court of the United States of America in the form of Bilski v. Kappos. Judge Mayer of the Court of Appeals for the Federal Circuit (CAFC, which heard In re Bilksi) noted that "the patent system has run amok". The Free Software Foundation submitted a most extensive amicus curiae brief to the U.S. Supreme Court, filled with brilliant analysis of software patents and arguments against the patentability of software that is well worth a read.

For more details visit https://cis-india.org/a2k/blogs/arguments-against-software-patents

Report on the Fourth Internet Governance Forum for Commonwealth IGF

pranesh — 2012-02-29T05:42:27Z

This report by Pranesh Prakash reflects on the question of how useful the IGF is in the light of meetings on the themes of intellectual property, freedom of speech and privacy.

The first Internet Governance Forum was held in Athens in 2006, as a follow on to the 2005 Tunis World Summit on the Information Society, and to fulfil the principles drawn up at there. Its explicit objective is to “promote and assess, on an ongoing basis the embodiment of WSIS principles in Internet governance processes”. Those principles still form the basis of the talks that happen at the IGF, and are frequently referred to by the various groups that attend the IGF as the basis for their positions and claims. Sometimes, some of the values promoted by the principles are claimed by opposing groups (child safety vs. freedom of expression). Thus, in a way the negotiation of those principles were what really set the tone for the IGF, which in and of itself is a process by which those principles could be furthered. The one question that formed part of people’s conversations through the fourth Internet Governance Forum (IGF) at Sharm el Sheik, as it had in third IGF at Hyderabad, and no doubt ever since the first edition, was “How
useful is the IGF?” This report shall reflect on that question, particularly based on the workshops and meetings that happened around the themes of intellectual property, freedom of speech, and privacy.

There are not many meetings of the nature of the IGF. It is not a governmental meeting, though it is sponsored by the United Nations. It is not a meeting of civil society groups, nor of academics nor industry. It is a bit like the Internet: large and unwieldy, allowing for participation of all while privileging those with certain advantages (rich, English-speaking), and a place where a variety of interests (government, civil society, academia and industry) clash, and where no one really has the final word. While the transformational potential of the Internet and the World Wide Web have been felt by a great many, the potential of the Internet Governance Forum is still to be felt. This report, in part, seeks to present an apology of the IGF process, though it is the belief of this reporter that it could do with a few modifications.

DAY 0 (Saturday, November 14, 2009)

This reporter arrived with his colleagues at Sharm el Sheik late in the afternoon on Saturday, November 14, 2009, with the IGF set to begin the next day. Though we had been advised to register that evening itself, the fatigue of travel (in the case of my colleagues) and the requirement of purchasing new clothes to replace those in the suitcase that had been lost (in my case) kept us from doing so.

DAY 0 (Sunday, November 15, 2009)

The IGF began on Sunday, November 15, 2009, with a large delay. The registration desks seemed to have a bit of difficulty handling the number of people who were pouring in for registration that morning. By the time this reporter was done with registration, the first set of workshops were already under way, and nearing completion, leaving not much time before the commencement of Workshop 361 (Open Standards: A Rights-Based Framework), which was being organized by this reporter.

That workshop had as speakers Sir Tim Berners-Lee (World Wide Web Consortium), Renu Budhiraja (Department of IT, Government of India), Steve Mutkoski (Microsoft), Rishab Ghosh (UNU-MERIT), and Sunil Abraham (Centre for Internet and Society), with Aslam Raffee (Sun Microsystems, formerly with the Government of South Africa) chairing the session thus representing government, industry, civil society, and academia. The theme of the workshop (rights-based framework for open standards) was explored in greatest depth by Tim Berners-Lee, Sunil Abraham, and Rishab Ghosh, while Renu Budhiraja and Steve Mutkoski decided to explore the fault-lines, and the practicalities of ensuring open standards (as well as the interoperability, e-governance, and other promises of open standards). Rishab Ghosh pointed out that while a government could not make it a requirement that your car be a Ford to be granted access to the parking lot of the municipality, it often made such arbitrary requirements when it came to software and electronic access to the government.

Open standards, most of the panellists agreed, had to be royalty-free, and built openly with free participation by anyone who wished to. This model, Sir Tim pointed out, was what made the World Wide Web the success that it is today. This would ensure that different software manufacturers could ensure interoperability which would encourage competition amongst them; that all governments -- even the less developed ones -- would have equal access to digital infrastructure; that citizen-government and intragovernment interaction would be made much more equitable and efficient; and that present-day electronic information would be future-proofed and safeguard against software obsolescence.

Renu Budhiraja in a very useful and practically-grounded presentation pointed out some of the difficulties that governments faced when deciding upon definitions of “open standards”, as well as the limited conditions under which governments may justify using proprietary standards. She spoke of the importance of governments not following the path laid out by market forces, but rather working to lead the market in the direction of openness. Governments, she reminded the audience, are amongst the foremost consumers of software and standards, and have to safeguard the interests of their citizens while making such decisions. Steve Mutkoski challenged the audience to not only think about the importance of open standards, but also think of the role it plays in ensuring efficient e-governance. Standards, he contended, are but one part of e-governance, and that often the reason that e-governance models fail are not because of standards but because of other organizational practices and policies. Pointing to academic studies, he showed that open standards by themselves were not sufficient to ensure

Sunil Abraham pointed out examples of citizens’ rights being affected by lack of open standards, and pointed out the concerns made public by ‘right to information’ activists in India on the need they perceived for open standards. He also pointed out an example from South Africa where citizens wishing to make full use of the Election Commission’s website were required to use a particular browser, since it was made with non-standard proprietary elements that only company’s browser could understand. Since that browser was not a cross-platform browser like Firefox, users also had to use a particular operating system to interact with the government. The session ended with a healthy interaction with the audience.

The importance of having this discussion at the IGF was underscored by Rishab Ghosh who noted that issues of defining and choosing technical standards are often left to technical experts, while they have ramifications much further than that field. That, he opined, is the reason that discussing open standards at a forum like the IGF is important. A more complete report of this workshop may be found at <http://cis-india.org/advocacy/openness/blog/dcos-workshop-09>.

Post the workshop was the opening ceremony which had Mr. Sha Zukang, U.N. Under-Secretary General for Economic and Social Affairs, Tarek Kamel, the Egyptian Minister for Communications and Information Technology, Dr. Ahmed Nazif, the Prime Minister of Egypt, Tim Berners-Lee, and Jerry Yang. The theme of this year’s IGF was the rather unwieldy “access, diversity, openness, security, and critical Internet resources”. The spread of the Internet, as noted by Sha Zukang, is also quite revealing: In 2005, more than 50% of the people in developed regions were using the Internet, compared to 9% in developing regions, and only 1% in least developed countries. By the year 2009, the number of people connecting in developing countries had expanded by an impressive 475 million to 17.5%, and by 4 million in LDCs to 1.5%, while Internet penetration in developed regions increased to 64%. All in all (Jerry Yang pointed out), around 1.6 billion people, or about 25 per cent of the world, is online. Mr. Kamel noted that “the IGF has
proved only over four years that it is not just another isolated parallel process but it has rather managed to bring on board all the relevant stakeholders and key players”.

Of importance in many of the speeches were the accountability structures of the Internet due to the Affirmation of Commitment that the U.S. Department of Commerce signed with ICANN, and the growing internationalisation of the World Wide Web due to ICANN’s decision to allow for domain names in multiple languages. Tim Berners-Lee again pointed out the need to keep the Web universal, and in particular highlighted the role that royalty-free open standards play in building the foundations of the World Wide Web. Other than small remarks, privacy and freedom of expression did not really figure greatly in the opening ceremony. Jerry Yang, through his talk of the Global Net Initiative, was the one who most forcefully pointed out the need for both online. The Prime Minister of Egypt, in passing, pointed out the need to safeguard intellectual property rights online, but that note was (in a sense) countered by Sir Tim’s warning about the limiting effect of strong intellectual property would have on the very foundations of the World Wide Web and the Internet.

DAY 2 (Monday, November 16, 2009)

On the second day was begun by attending the Commonwealth IGF Open Forum. This open forum was most enlightening as in it one truly got to see Southern perspectives on display. Speakers (both on the dais as well as from the audience) were truly representative of the diversity of the Commonwealth, which presently includes 54 states and around 2.1 billion people (including 1.1 billion from India). Issues of concern included things such as the lack of voice of whole regions like East and West Africa in the international IG policy-making arena. Some of the participants noted that issues such as music piracy, which is a favourite topic of conversation in the West, is of no relevance to most in Africa where the pressing copyright- related issues those of education, translation rights, etc. One participant noted that “Intellectual property issues need developing countries to speak in one voice at international fora; the Commonwealth IGF might allow that.”

A number of people also brought up the issue of youth, and pointing towards children as both the present and the future of the Internet. This attitude also showed up in the session that was held later that day at Workshop 277 (IGF: Activating and Listening to the Voice of Tweens) in which not only were youth and IG issues discussed, but the discussion was also by youth. The formation of the new Dynamic Coalition on Youth and Internet Governance with Rafik Dammak as the coordinator also underlines the importance of this issue which came up at the CIGF open forum.

Other concerns were that of sharing ICT best practices and examples, and the need to urgently bridge the rural-urban divide that information and communication technologies often highlight, and sometimes end up precipitating. This divide is, in many ways, similar to the divide between developing and developed nations, and this point was also highlighted by many of the participants. One strength that the CIGF has as a platform, which the IGF possibly lacks, is the commonality of the legal systems of most of the Commonwealth countries, and hence the possibility that arises of joint policy-making. It was heartening to see that British Parliamentarians, apart from bureaucrats from many countries, were in attendance. This strong focus on developing countries and Southern perspective is, this reporter believes, one of the strengths of the CIGF, which needs to be pushed into the global IGF.

The next workshop attended was Workshop 92: A Legal Survey of Internet Censorship and Filtering, which was organized by UNESCO. A large number of very interesting people presented here, and panellists included IFLA/Bibliotheca Alexandrina (whose Sohair Washtawi was surprisingly critical of the Egyptian government), UNESCO (Mogens Schmidt), Freedom House (Robert Guerra), and Frank La Rue, U.N. Special Rapporteur for Freedom of Opinion and Expression. What came of this workshop was the need to engage with to study the online state of freedom of expression as fully as “offline” state of press freedoms are studied, as an interesting fact that came out of this workshop was that there are currently more online journalists behind bars around the world than traditional journalists. A critique of the Freedom House’s online freedom report, which was not sufficiently voiced at the workshop itself, is that it represents a very Western, state-centric idea of freedom of speech and expression, and often looks at the more direct forms of censorship (state censorship) rather than private censorship (via advertising revenue, copyright law, and “manufactured consent”) and self-censorship. This reporter also intervened from the audience to point out that copyright is often a way of curbing freedom of speech (as was the case with the newspaper scholarly reprints of Nazi-era newspapers in Germany recently, or with the Church of Scientology wishing
to silence its critics). The panellists, including Mogens Schmidt and Frank La Rue agreed, and responded by noting that this dimension of copyright requires greater reflection by those groups involved in promoting and safeguarding freedom of speech and expression both online and offline.

The time before the meeting of the Dynamic Coalition on Open Standards was spent listening to Bruce Schneier, Marc Rotenberg, Frank La Rue, Namita Malhotra, and others at the Openness, Security and Privacy Session. Bruce Schneier, one of the most astute and insightful thinkers on issues of security and privacy, focussed on a topic that anyone who reads his blog/newsletters would be familiar with: that openness, security and privacy are not really, contrary to popular perception, values that are inimical to each other. Mr. Schneier instead sees them as values that complement each other, and argued that one cannot ensure security by invading privacy of citizens and users. He noted that “privacy, security, liberty, these aren’t salient. And usually whenever you have these sort of non-salient features, the way you get them in society is through legislation.” On the same note, he held the view that privacy should not be a saleable commodity, but an inalienable fundamental right of all human beings (a position that Frank La Rue agreed with).

Apart from the traditional focus area of states, there was also a lot of focus on corporations and their accountability to their users. On the issue of corporations versus states, Frank La Rue made it clear that he believed the model that some corporations were advocating of first introducing technologies into particular markets, expanding, and then using that to push for human rights, was not a viable model. Human rights, he reiterated, were not alienable, and stated: “You [internet companies] strengthen democracy and democratic principles and then you bring up the technology. Otherwise, it will never work, and it is a self defeating point.”

The meeting of the Dynamic Coalition on Open Standards was next. This meeting served as a ground to build a formal declaration from Sharm el Sheik for DCOS. The meeting was held in the room Luxor, the seating in which was rectangular, promoting a vibrant discussion rather than making some people “presenters” and the rest “audience”. Many of the members of the Dynamic Coalition on Accessibility and Disability were in attendance, seeing common purpose with the work carried out by DCOS. There was spirited discussion on how best to move from a formulation of open standards as “principles” to more citizen- centric “rights”. This shift, pointed out as an important one because they allow for claims to be made in a way that principles and concessions do not. One of the participants helped re-draft the entire statement, based on suggestions that came from him and the rest of the participants. This was, in a sense, the IGF’s multi-stakeholderism (to coin a phrase) at its best.

Because of the late ending to the DCOS meeting, this reporter arrived late for the Commonwealth IGF follow-up meeting. It seemed that the meeting took its time in finding its raison d’être. It was, for a long while, unclear what direction the meeting was headed in because the suggestions from the audience members were of different types: programmatic actionable items, general thematic focus area suggestions, as well as general wishlists. However, in the end, this came together and became productive thanks to the focus that the chairperson and the rapporteur brought to the discussion. Furthermore, it was a great opportunity to connect with the various young people who had been brought together from various backgrounds to attend the IGF by the CIGF travel bursary. It will be interesting to see the shape that CIGF’s future work takes.

Day 3 (Tuesday, November 17, 2009)

The first session attended on the third day was the meeting on “Balancing the Need of Security with the Concerns for Civil Liberties”. The speakers included Alejandro Pisanty (Workshop Chair), Wolfgang Benedek, Steve Purser, Simon Davies, and Bruce Schneier. Once again, the one point that everyone agreed on is that those pitting security against privacy are creating a false dichotomy, and that for security to exist, privacy must be safeguarded. Steve Purser pointed out that common sense takes a long while to develop and that we, as a human collective, have not yet developed “electronic common sense”. Simon Davies’ main point was that accountability must necessarily be appended to all breaches of privacy in the name of security. Indeed, he lamented that oftentimes the situation is such that people have to justify their invocation of privacy, though the state’s invocation of security to trample privacy does not require any such justification. Security, he pointed out, is not something that is justified by the government, judged by the people, and to which the government is held accountable for its breaches of civil liberties.

Bruce Schneier, as usual, was quite brunt about things. He noted that only identity-based security have anything to do with privacy, and that there are a great many ways of ensuring security (metal detectors in a building, locks in a hotel room) that do not affect privacy. At the meeting, this reporter made a comment noting that a lot of debate is happening at a theoretical level, and that while a lot of good ideas are coming out of that discussion, those ideas have to be translated into good systems of governance in countries like India. Some organizations internationally are trying to make human readable privacy signs such as the human readable copyright licences used by Creative Commons. Concerning citizens’ privacy, a lot of systems (such as key escrow) that have been discredited by knowledgeable people (such as Bruce Schneier) are still being considered or adopted by many countries such as India (where this blew up because of a perceived security threat due to RIM BlackBerry’s encryption). National ID schemes are also being considered in many countries, without their privacy implications being explored. In the name of combatting terrorism, unregistered open wireless networks are being made illegal in India. While there have been informed debates on these issues at places like the IGF, these debates need to find actual recognition in the governance systems. That translation is very important.

The next session this reporter attended was the meeting of the Dynamic Coalition on Freedom of Expression of the Media on the Internet. Amongst the other items of discussion during the session, the site Global Voices Online was showcased, and many of the speakers gave their opinions on whether freedom of speech online required a new formulation of the rights, or just new applications of existing rights. The consensus seemed to be that tying up with the Internet Rights and Principles DC would be useful, but that the project need not be one of reformulation of existing rights, since the existing formulations (as found in a variety of international treaties, including the UDHR) were sufficient. One of the participants stressed though that it was important to extend freedom of press guarantees to online journalists (in matters such as defamation, or copyright violation, where news organizations might be granted protection over and above that which an ordinary citizen would receive). Citizen-led initiatives for circumventing censorship were also discussed.

Two very important points were raised during the Openness main session on Day 2 when someone noted that the freedom of expression was not only an individual right but it also a collective right: the right of peoples to express not only ideas but to express their cultures, their traditions, their language and to reproduce those cultures and languages and traditions without any limitation or censorship. This aspect of the freedom of expression finds much resonance in many Southern countries where collective and cultural rights are regarded as being as important as individual and civil-political rights. Secondly, Frank La Rue pointed out that freedom of speech and expression went beyond just giving out information and opinion: it extended to the right to receive information and opinion. Excessively harsh copyright regimes harm this delicate balance, and impinge on the free speech.

One of the issues that was not explored sufficiently was that of the changes wrought by the Internet on the issues raised by the participants. For instance, while there was much talk about defamation laws in many countries and their grave faults (criminal penalties, defamation of ideas and not just persons), there was no talk of issues such as forum-shopping that arises due to online defamation being viewable around the world with equal ease. Thankfully, the coordinators of the Dynamic Coalition urged people to register on the DC’s Ning site (http://dcexpression.ning.com) and keep the conversation alive there and on the DC’s mailing list.

The session held on Research on Access to Knowledge and Development, organized by the A2K Global Academy was most informative. It brought together many recent surveys of copyright law systems from around the world and their provisions for access to knowledge, including the Africa Copyright and Access to Knowledge project with which this reporter is very familiar. The three main focus areas of discussion were Access to Education (A2E), Open Source Software (OSS) and Access to Medicines (A2M). The best presentation of the day was that made by Carlos Affonso of FGV (Brazil) who made an impassioned case for access to knowledge in the developing world, showcasing many practical examples from Brazil. He noted that many of the examples he was showing were plainly illegal under Brazilian laws, which had very limiting limitations and exceptions. He showcased the usage of Creative Commons licensing, Technobrega music, usage of common ICT infrastructure (such as cybercafes), which are often only semi-legal, and the general acceptance of commons-based peer production. The conclusion of the Egyptian study was that more work is needed to expand access to educational materials, including expansion of the limitations and
exceptions to copyright law for educational purposes. The overall consensus of all the various studies was that open source software was playing a very useful and crucial role in promotion of access to knowledge, but pointed out that the main barrier that open source software was facing was that of anti-competitive practices and not something related to copyright law.

Day 4 (Wednesday, November 18, 2009)

On the last day, this reporter was a presenter in a workshop on the “Global State of Copyright and Access to Knowledge”. This session had the following panellists: Tobias Schonwetter, Faculty of Law, University of Cape Town; Bassem Awad, Chief Judge at the Egyptian Ministry of Justice and IP Expert; Perihan Abou Zeid, Faculty of Legal Studies and International Relations, Pharos University; Pranesh Prakash, Programme Manager, Centre for Internet and Society; Jeremy Malcolm, Project Coordinator, Consumers International; and Lea Shaver, Associate Research Scholar and Lecturer in Law at Yale Law School.

This workshop was the result of the merger of workshops proposed by the African Copyright and Access to Knowledge project, and by Consumers International (to showcase their IP Watch List). Lea Shaver noted that the purpose of copyright law is to encourage creativity and the diffusion of creative works, and not as an industrial subsidy. If copyright law gets in the way of creativity and access to knowledge, then it is in fact going against its purpose. She asserted that copyright law should be assessed by touchstones of access, affordability and participation. “Copyright shapes affordability and access because as the scope of rights expands, the more control is centralised and the less competition. It also shapes participation, because under current law the amateur who wants to build upon existing works is at a disadvantage, and risks running afoul of others’ rights.” Rent-seeking behaviour is what is driving the expansion that we see globally in the coverage of copyright law, and not the costs of production and distribution (which are ever becoming cheaper).

Dr. Abou Zeid noted that technology grants copyright holders (and even non-holders) great control over knowledge, and that strong safeguards are required against this control in the form of limitations to technological protection methods (TPMs). Further, copyright law must take advantage of the benefits offered by technology, such as distance education, granting access to the disabled, and must extend present day E&L to cover these as well. Tobias Schonwetter presented the findings of the ACA2K project, and noted that most countries granted greater protection to rights holders than international law required. Amongst the survey countries, none dealt with distance and e-learning, and only one (Uganda) dealt with the needs of the disabled. He hoped that the extended dissemination phase would assist other projects to build on ACA2K’s work. Thus, “legal systems worldwide are not meeting consumers’ needs for access to knowledge. A better legal system, the research suggests, would support non-commercial sharing and reuse of material, which in turn would drive down costs and increase sales of licensed material, and could also increase consumers’ respect for the law overall.”

The present reporter started by asking why this abstract phrase “access to knowledge” is so important. A2K actually effects almost all areas of concern to citizens and consumers: education, industry, food security, health, amongst many more areas. Mark Getty notes that “IP is the oil of the 21st century”. By creating barriers through IP, there is less scope for expansion and utilization of knowledge, and this most affect “IP poor” nations of the South. In India, there is a new copyright amendment that will introduce DRMs, even though India is not bound by international law to do so. There is also a very worrisome movement to pass state-level criminal statutes that class video pirates in the same category as “slum lords, drug peddlers and goonda”, which includes measures for preventative detention without warrant.

One tool to help change the mindsets of the public is the Consumers International IP Watch List, which can help policy makers and academics and advocates compare the best and worst practices of various countries. At an earlier session, Carlos Affonso of FGV had used the Watch List to demonstrate the weakness of Brazil’s copyright law on the educational front. Copyright is often characterised as a striking of balance between the interests of creators and consumers, but this rhetoric might be misplaced. In fact creators often benefit from freer sharing by users. Knowledge is an input into creation of works, not just an output from it. Given this, it is important to counter IP expansionism by using laws promoting freedom of speech, competition law, consumer law, privacy law, while framing them within the context of development (as appropriate in various countries), to eventually produce a change in mindsets of people.

Stock-Taking

As Jeremy Malcolm of Consumers International notes in his response to the formal stock-taking process, “the IGF is yet to develop from a simple discussion forum into a body that helps to develop public policy in tangible ways.” This reporter, writing for the Dynamic Coalition on Open Standards, also voted for the continuation of the IGF, “in order to ensure that the WSIS Declaration of Principles, specifically in the important area of open standards, be realised through a multi-stakeholder process.” The IGF is, in a sense, the least bureaucratic of the UN’s endeavours. But certain rules, evolved in inter-governmental settings, might require careful reconsiderations to suit the multi-stakeholder approach that the IGF embodies. The IGF also needs to reach out from being a conference for a few to becoming a place/process for the many.

General Reflections

While this year there were more remote participation hubs (13) than last (11), and the Remote Participation Working Group seems to have done much work and some serious reflection on that work, individual experiences sometimes did not match up with what was perceived as the collective experience (via RPWG’s feedback survey). As a workshop organizer, this reporter was not provided any information about the remote participation tools, nor was there any screening of remote participants’ comments. With the shift from a single (open-source) product DimDim, to two products, WebEx (sponsored by Cisco) and Elluminate, much confusion was created even amongst those in the know since there were two separate tools being used. It is this reporter’s perception that live captioning from the main sessions has been a great success, and will have to be used much more extensively, especially if places where the bandwidth to download streaming video does not exist. Further, they help create very useful quasi-official records of the various workshops and open fora that are held at the IGF. That apart, the suggestions offered by the
RPWG (live video feedback from the remote hubs, dedicated remote participation chair in each workshop,
etc.) should be worked upon this year to enable those who cannot travel to Vilnius to participate more effectively.

All the sessions that happened around intellectual property rights were highly critical of the present state of IP laws around the world, and were calling for a reversal of the IP expansionism we see from various perspectives (access to knowledge, competition law, etc.) However, it was often felt by this reporter that these workshops were cases of the choir being preached to. Of course, many new people were being introduced to these ideas, but generally there was appreciation but not as much opposition as one is used to hearing outside the IGF. An exception (in the IP arena) was the workshop on open standards, in which there was much heat as well as illumination. Perhaps, a greater effort could be made to engage with people who are critical of the Access to Knowledge movement, those who are critical of privacy being regarded as a fundamental right, and those who believe that cultural relativism (for instance) must find a central place while talking about the right to free speech. After all, when one leaves the IGF, these voices
are heard. Those voices must be engaged with at the IGF itself, and a way forward (in terms of concrete policy recommendations, whether at the local level or the international level) must be found. Of course, the problem with the above suggestion is that many of these values are embedded in the WSIS principles, and are taken as a granted. But, still, if such debate is not had at the IGF, it might become something much worse than a ‘talking shop’: a forum where not much meaningful talk happens.

Appendix I: Tweets and Dents During the IGF

This is list of some posts made by the reporter on the microblogging sites Twitter
(http://twitter.com/pranesh_prakash) and Identi.ca (http://identi.ca/pranesh) during the IGF.
# @leashaver: Recording of yesterday’s session by the Access to Knowledge ♺ Global Academy:
http://trunc.it/3dldl #a2kga #IGF09 #yaleisp 8:55 PM Nov 18th, 2009
# “Great possibilities of #foss, but a disabling, anti-competitive environment has stunted growth of
open source software in #Egypt.” #igf09 6:47 PM Nov 17th, 2009
# Excellent set of resources on Access to Knowledge, from @YaleISP: http://tr.im/F8At #igf09 6:37 PM
Nov 17th, 2009
# “Tecno brega in Brazil can only be bought from street vendors: good relationship between artists
and street vendors.” #igf09 6:30 PM Nov 17th, 2009
# “There is not even a private copying exception in Brazil”, but is still part of “axis of IP evil” for
rightsholders #igf09 6:26 PM Nov 17th, 2009
# Tobias: “Even though s/w patents are not allowed by SA law, some large MNC s/w comps found
ways of bypassing that & getting patents” #igf09 6:19 PM Nov 17th, 2009
# Case studies from SA: CommonSense project, Freedom to Innovate SA, OOXML v. ODF struggle #igf09
6:18 PM Nov 17th, 2009
# 2 new studies on #a2k from Brazil (http://tr.im/F8tI)and SA (http://tr.im/F8uJ). Also see ACA2K’s
outputs: http://tr.im/F8uQ #igf09 6:13 PM Nov 17th, 2009
# ♺ @sunil_abraham: RT @mathieuweill: #igf09 Dardailler : Internet standards are open standards
and that makes a difference! 3:57 PM Nov 17th, 2009
# Oops. Wrong URL. It should be: http://threatened.globalvoicesonline.org/ #igf09 3:46 PM Nov 17th,
2009
# Mogens Schmidt of UNESCO praises Global Voices Online. Says defamation & libel laws should not
be *criminal* offences. #igf09 3:40 PM Nov 17th, 2009
# http://threatened.globalvoices.org/ helps report on FoE issues with bloggers through crowdsourcing.
#igf09 3:24 PM Nov 17th, 2009
# “Along with the right to give out information and opinion is the right to receive information and
opinion”: Frank La Reu #a2k #igf09 3:13 PM Nov 17th, 2009
# Schneier: “Before we die, we will have a US President who’ll send a lolcat to the Russian PM” #igf09
2:06 PM Nov 17th, 2009
# Privacy vs. security is a false dichotomy. But any privacy that is taken away in name of security
must be turned into accountability. #igf09 1:50 PM Nov 17th, 2009
# All wireless networks now have to be registered in India, and we talk of privacy? @schneier #igf09
1:47 PM Nov 17th, 2009
# RT @rmack Free Expression Online dynamic coalition meeting at 11:30am Egypt time in Siwa Room.
http://dcexpression.ning.com #igf09 1:36 PM Nov 17th, 2009
# @OWD: E Daniel, (http://bit.ly/3oFYqu), takes on the myth of the Digital Native, ♺ reveals the shallowness
of their native knowledge. #igf09 12:05 AM Nov 17th, 2009
# Commonwealth IGF’s follow-up meeting took time to find out its raison d’etre, but ended on a productive
note. #igf09 11:34 PM Nov 16th, 2009
# #schneierfact : Bruce Schneier actually exists! I can see him! 6:53 PM Nov 16th, 2009
# @timdavies: You might then be interested at a report by @cis_india on a different take at DNs:
http://tr.im/F3tk 3:29 PM Nov 16th, 2009 from Gwibber in reply to timdavies
# Estonia & Georgia DDoS are famous, but individual NGOs are also being targetted by DoSes. #igf09
3:08 PM Nov 16th, 2009
# Now more online journalists are behind bars than offline ones. #freespeech #igf09 3:07 PM Nov 16th,
2009
# ♺ @aslam: if you get an email from nigeria people will block it because they think that it is spam -
reputation #fail #igf09 2:14 PM Nov 16th, 2009
# Many are saying: listen to children; document and share best ICT practices and examples; bridge
rural-urban divide as also devel’d-devel’g. 1:57 PM Nov 16th, 2009
# Several British Parliamentarians in the room at the Commonwealth IGF event #igf09 1:56 PM Nov
16th, 2009
# CIGF should look at gaps at IGF and speak to them. Our common legal systems allow for focus on legislations
(ie, on data protection) #igf09 1:36 PM Nov 16th, 2009
# “We need to get to a point where access to the Internet is seen as a human right” #igf09 1:27 PM
Nov 16th, 2009
# “Intellectual property issues need developing countries to speak in one voice at intl fora. Commonwealth
IGF might allow that.” #igf09 1:24 PM Nov 16th, 2009
# “Music aspects of the Internet debates, which gets so much focus, doesn’t have as much relevance
in W. Africa as education & health.” #igf09 1:21 PM Nov 16th, 2009
# Commonwealth covers more than 2 billion people. Some whole regions, like E. & W. Africa “have no
voice in Geneva & global IGF” #igf09 1:18 PM Nov 16th, 2009

For more details visit https://cis-india.org/internet-governance/blog/report-on-fourth-IGF

CIS Statement on the WIPO Broadcast Treaty at SCCR 19

pranesh — 2012-02-01T09:07:41Z

This statement on the WIPO Broadcast Treaty was delivered on December 17, 2010 at the 19th session of the Standing Committee on Copyright and Related Rights by Nirmita Narasimhan on behalf of CIS.

CIS Statement on the WIPO Broadcast Treaty at SCCR 19

The Centre for Internet and Society believes that the protection that may be afforded to broadcasters under existing international treaties, including Article 14 of the TRIPS Convention, are sufficient to safeguard the interests of broadcasters, and that the Broadcast Treaty, which has been under discussion for more than a decade without any progress, is, as the WIPO Chair observed, an expenditure of "time, energy and resources to no avail" (SCCR/15/2/rev).

We believe that at any rate webcasting/netcasting should be kept out of the ambit of the broadcast treaty, even if only restricted to "retransmission" of broadcasts as in the current draft, since by its very nature webcasting is very different from broadcasting. Webcasting is currently quite vibrant, with a recent report by Arbor Networks estimating that around ten per cent of all Web traffic is streaming video, making webcasting the fastest growing application on the Internet. Given this situation, a strong case has to be made to show that an international treaty is required to protect and promote webcasting, which has not been done.

Specifically, we believe that Paragraph 16 of the WIPO Development Agenda, which relates to preservation of a vibrant public domain, will be endangered by a right being given to webcasters which is separate from the underlying content of the transmission.

Statements by other organizations on WIPO Broadcast Treaty at SCCR 19

For more details visit https://cis-india.org/a2k/blogs/sccr19-broadcast-treaty

Oppose Software Patents

pranesh — 2010-01-15T12:20:02Z

Oppose Software Patents

For more details visit https://cis-india.org/openness/publications/software-patents/campaign

Oppose Software Patents

pranesh — 2010-01-15T12:20:55Z

Oppose software patents

Oppose software patents.

For more details visit https://cis-india.org/openness/publications/software-patents/campaign/overview

Opening India's Spectrum

pranesh — 2012-01-19T11:07:40Z

India's Government monopolised the radio spectrum until the mid-1990s and even now, non-governmental use of wireless is more limited than in other democracies. Restrictive policies constrain the growth of mobile telephony, broadcasting, wireless broadband and many other services important to India's social and economic development. Can anything be done to change this? Robert Horvitz, director of Open Spectrum Foundation suggests changes.

Robert Horvitz, director of the Open Spectrum Foundation (http://www.openspectrum.info

), and author of the Local Radio Handbook, is visiting India to study this question and suggest strategies for citizen action to reform radio regulation. On Thursday, 14 January, at 18:00 he will discuss some of his preliminary findings at the Centre for Internet and Society.

VIDEOS

For more details visit https://cis-india.org/events/opening-spectrum

Free and Open Source Software

pranesh — 2010-01-11T10:57:14Z

Free and open source software (FOSS) is a good thing from both the perspective of programmer and user freedoms as well as from the perspective of better and more efficient software production. Also, FOSS forms the backbone of the Internet (BIND/NSD for DNS servers, Apache for web servers, sendmail/postfix/qmail for mail servers, Asterisk for VoIP servers, etc.), and the Internet as we know it would not exist without FOSS.

For more details visit https://cis-india.org/openness/publications/foss/FLOSS

Centre for Internet and Society

Problems Remain with Standing Committee's Report on Copyright Amendments

Fair Dealings and Intermediary Liability

Technological Protection Measures and Rights Management Information Provision

Implications of Standing Committee's Report Unclear

Increased Copyright Duration, Expansive Moral Rights and Other Negative Changes

Criminal Provisions, Government Works, and Other Missed Opportunities

CIS Submission on Draft Patent Manual 2010

Positive changes in the Manual

Civic Hacking Workshop

Analysis of the Copyright (Amendment) Bill, 2010

Existing Copyright Act

Proposed Amendments

Some positive amendments

Some negative amendments

Missed opportunities

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

Special 301 Report: Unbalanced Hypocrisy

India and the 2010 Special 301 Report

On Copyrights

On Patents

Miscellanea

Conclusion

IIPA's Recommendation for the Special 301 Report

Open Source

Domestic Software

WCT, WPPT, Camcording, and Statutory Damages

Further conclusions

Technological Protection Measures in the Copyright (Amendment) Bill, 2010

Implications: The Good Part

Implications: The Bad Part

Uncertainties

On "shall maintain" and penalties

On "facilitating" and remoteness

More uncertainties

On "purpose" as a criterion in 65A(2)(a)

Conclusion

Indian Copyright Act, 1957 (as amended by Copyright (Amendment) Bill, 2010)

Research Project on Open Video in India

Project Timeline

Summary of Outputs

Survey Paper

Basic Assumptions

Suggested Methodology

Next Steps

Arguments Against Software Patents in India

Preamble

What are Patents?

Philosophical Justification Against Software Patents

Legal Case Against Software Patents

Practical Reasons Against Software Patents

Patent Landmines / Submarine Patents / Patent Gridlocks / No Exception for Independent Creation

Don't These Cases Show How Software Patents Help Small Companies?

Term of Patents

Software Industry Progressed Greatly Without Patents

Copyright Exists for Software

Insufficient Disclosure

Software Patents Work Against Free/Libre/Open Source Software

Conclusion

Report on the Fourth Internet Governance Forum for Commonwealth IGF

DAY 0 (Saturday, November 14, 2009)

DAY 0 (Sunday, November 15, 2009)

DAY 2 (Monday, November 16, 2009)

Day 3 (Tuesday, November 17, 2009)

Day 4 (Wednesday, November 18, 2009)

Stock-Taking

General Reflections

Appendix I: Tweets and Dents During the IGF

CIS Statement on the WIPO Broadcast Treaty at SCCR 19

CIS Statement on the WIPO Broadcast Treaty at SCCR 19

Statements by other organizations on WIPO Broadcast Treaty at SCCR 19

Oppose Software Patents

Oppose Software Patents

Opening India's Spectrum

Free and Open Source Software