Centre for Internet and Society

Transcripts of Discussions at WIPO SCCR 24

pranesh — 2012-07-31T12:35:43Z

We are providing archival copies of the transcripts of the 24th session of the WIPO Standing Committee on Copyright and Related Rights, which is being held in Geneva from July 16 to 25, 2012.

This is an unedited rough transcript of the discussions at SCCR 24, which is live-streamed and made available by WIPO at http://www.streamtext.net/player?event=WIPO. We are hosting the live-streamed text for archival purposes:

WIPO SCCR 24 Pre-lunch Text (July 19, 2012)
WIPO SCCR 24 Post-lunch Text (July 19, 2012)
WIPO SCCR 24 Pre-lunch Text (July 20, 2012)
WIPO SCCR 24 Post-lunch Text (July 20, 2012)
WIPO SCCR 24 Pre-lunch Text (July 23, 2012)
(There was no post-lunch plenary session on July 23, 2012)
WIPO SCCR 24 Pre-lunch Text (July 24, 2012)
WIPO SCCR 24 Post-lunch Text (July 24, 2012)
WIPO SCCR 24 Pre-lunch Text (July 25, 2012)
WIPO SCCR 24 Post-lunch Text (July 25, 2012)

For more details visit https://cis-india.org/a2k/wipo-sccr24-discussions-transcripts

Time Out Bengaluru - Software Patenting

pranesh — 2013-01-16T06:39:27Z

An article by Akhila Seetharaman published as a precursor to the national public meeting on software patents held on 4th in Bangalore.

Original article on Time Out Bengaluru website

In August this year, the US Patents and Trademarks Office granted Microsoft ownership of “page up” and “page down”. So in theory, no other company can scroll without permission and acknowledgement to Microsoft in monetary terms.

A number of seemingly ubiquitous software ideas have been patented: the use of tabs to shift from one hyperlink to another on a web page, the “Add to Shopping Cart” function that appears on every online store, automated online loan requests, and even reducing image size to make a webpage load faster.

“Most companies register defensive patents to protect themselves, not offensive ones,” said Sunil Abraham of Centre for Internet and Society. “Not many actively pursue patent infringement, but it is still very scary for a small-time entrepreneur.”

At a time when the Indian Patent Office is in the process of putting together a new Manual of Patent Practice and Procedure, the Centre for Internet and Society is holding a one-day consultation on the issue of software patenting in the city. Participants include the Delhi Science Forum, RedHat, IT for Change, Open Space, as well as the Alternative Law Forum.

From mobile phone technology to pacemakers in healthcare, everybody is dependent on software. “Each software patent is a 17-year monopoly on an idea,” said Anivar Aravind of the Free Software User Group Bangalore.

“If formulaic Hindi films were protected by patent laws, we would be able to make only one film,” joked Abraham. The system of software patenting wipes out smaller businesses and innovation, he said. “Software, like poetry and literary works, is already protected by copyright. After all, Bill Gates made his fortunes from copyright and not patents. But many software companies are trying to get additional protection.”

Copyright and patents are both part of intellectual property rights, but copyright restricts the expression of an idea while patents restrict the idea itself, according to Abraham. Under a patenting regime, even before a kid writes one line of code he has to read many patents.”

Kiran Patil of Turtle Linux Lab agreed. “If every little thing is patented, there’s nothing a developer can do.” He cited Richard Stallman, founder of the Free Software Movement and the GNU (a recursive acronym for GNU’s Not Unix) Project, who likened patents to explosive devices: “Software patents are the software project’s equivalent of land mines: each design-decision carries a risk of stepping on a patent, which can destroy your project.”

Worst of all, the world sees those with patents as the innovators, said Patil, which, according to him, is a big misconception.

While corporate giants like Microsoft and IBM fix exchange deals through cross-licensing, smaller companies get left out of the loop entirely. Despite not having many patents of their own, several Indian software companies support software patenting because they have huge contracts with the large software companies in the United States and Europe who do.

The Indian Patent Act of 1970 did not allow for software patents until 2002 when an amendment, which ironically excluded “computer programmes per se” from the scope of patenting, was introduced.

The amendment implied that while computer programmes themselves were not eligible for patents, programmes used in combination with hardware were. The Act was further amended through an ordinance in 2005 to narrow the scope of software excluded, but the ordinance was rejected by the Indian

Parliament and the Act effectively reverted to what it was after the 2002 amendment. “The law has left it somewhat ambiguous,” said Abraham. “Nobody is sure what can or cannot be patented. Many people are using the clause “computer programmes per se” to get pure software patents.”

This occurs either due to incompetence among patent officers or by accident, he said. “While many of the patent officers have expertise in the area of industrial inventions or medical inventions, very few know enough about software patents at the moment.”

-- Akhila Seetharaman

For more details visit https://cis-india.org/news/time-out-software-patenting

Three reasons why 66A verdict is momentous

pranesh — 2015-03-29T16:22:51Z

Earlier this week, the fundamental right to freedom of expression posted a momentous victory. The nation's top court struck down the much-reviled Section 66A of the IT Act — which criminalized communications that are "grossly offensive", cause "annoyance", etc — as "unconstitutionally vague", "arbitrarily, excessively, and disproportionately" encumbering freedom of speech, and likely to have a "chilling effect" on legitimate speech.

The article was published in the Times of India on March 29, 2015.

It also struck down Sec 118(d) of the Kerala Police Act on similar grounds. This is a landmark judgment, as it's possibly the first time since 1973's Bennett Coleman case that statutory law was struck down by the Supreme Court for violating our right to free expression.

The SC also significantly 'read down' the draconian 'Intermediary Guidelines Rules' which specify when intermediaries — website hosts and search engines — may be held liable for what is said online by their users. The SC held that intermediaries should not be forced to decide whether the online speech of their users is lawful or not. While the judgment leaves unresolved many questions — phrases like "grossly offensive", which the SC ruled were vague in 66A, occur in the Rules as well — the court's insistence on requiring either a court or a government order to be able to compel an intermediary to remove speech reduces the 'invisible censorship' that results from privatized speech regulation.

The SC upheld the constitutional validity of Sec 69A and the Website Blocking Rules, noting they had several safeguards: providing a hearing to the website owner, providing written reasons for the blocking, etc. However, these safeguards are not practised by courts. Na Vijayashankar, a legal academic in Bengaluru, found a blogpost of his — ironically, on the topic of website blocking — had been blocked by a Delhi court without even informing him. He only got to find out when I published the government response to my RTI on blocked websites. Last December, Github, Vimeo and some other websites were blocked without being given a chance to contest it. As long as lower courts don't follow "principles of natural justice" and due process, we'll continue to see such absurd website blocking, especially in cases of copyright complaints, without any way of opposing or correcting them.

There are three main outcomes of this judgment. First is the legal victory: SC's analysis while striking down 66A is a masterclass of legal clarity and a significant contribution to free speech jurisprudence. This benefits not only future cases in India, but all jurisdictions whose laws are similar to ours, such as Bangladesh, Malaysia and the UK.

Second is the moral victory for free speech. Sec 66A was not merely a badly written law, it became a totem of governmental excess and hubris. Even when political parties realized they had passed 66A without a debate, they did not apologize to the public and revise it; instead, they defended it. Only a few MPs, such as P Rajeev and Baijayant Panda, challenged it. Even the NDA, which condemned the law in the UPA era, supported it in court. By striking down this totem, the SC has restored the primacy of the Constitution. For instance, while this ruling doesn't directly affect the censor board's arbitrary rules, it does morally undermine them.

Third, this verdict shows that given proper judicial reading, the Indian constitutional system of allowing for a specific list of purposes for which reasonable restrictions are permissible, might in fact be as good or even better in some cases, than the American First Amendment. The US law baldly states that Congress shall make no law abridging freedom of speech or of the press. However, the US Supreme Court has never held the opinion that freedom of speech is absolute. The limits of Congress's powers are entirely judicially constructed, and till the 1930s, the US court never struck down a law for violating freedom of speech, and has upheld laws banning obscenity, public indecency, offensive speech in public, etc. However, in India, the Constitution itself places hard limits on Parliament's powers, and also, since the first amendment to our Constitution, allows the judiciary to determine if the restrictions placed by Parliament are "reasonable". In the judgment Justice Nariman quotes Mark Antony from Julius Caesar. He could also have quoted Cassius: "The fault, dear Brutus, is not in our stars, but in ourselves." Judges like Justice Nariman show the constitutional limits to free speech can be read both narrowly and judiciously: we can no longer complain about the Constitution as the primary reason we have so many restrictions on freedom of expression.

For more details visit https://cis-india.org/internet-governance/blog/times-of-india-march-29-2015-pranesh-prakash-three-reasons-why-66a-is-momentous

Thomas Abraham's Rebuttal on Parallel Importation

pranesh — 2011-08-04T04:47:12Z

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

Nature of disagreement

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

Second hand books and libraries

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

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

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

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

Helping libraries and disabled

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

Flexibility in the law

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

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

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

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

Export and remainder royalties are lower

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

Why anti-dumping laws will not be practical

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

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

Market expansion

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

Pricing drop

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

Not just about copyrighted books but about all copyrighted materials

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

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

The Worldwide Web of Concerns

pranesh — 2012-12-10T05:10:47Z

The threat of a ‘UN takeover’ of the Internet through the WCIT is non-existent. However, that does not mean that activists have been crying themselves hoarse in vain.

Pranesh Prakash's column was published in the Asian Age on December 10, 2012.

The International Telecommunication Union’s World Conference on International Telecommunications (WCIT-12) is currently under way in Dubai, after a gap of 25 years. At this conference, the International Telecommunication Regulations — a binding treaty containing high-level principles — are to be revised.

Much has changed since the 1988 Melbourne conference. Since 1988, mobile telephony has grown by leaps and bounds, the Internet has expanded and the World Wide Web has come into existence. Telecommunications is now, by and large, driven by the private sector and not by state monopolies.

While there are welcome proposals (consumer protection relating to billing of international roaming), there have also been contentious issues that Internet activists have raised: a) process-related problems with the ITU; b) scope of the ITRs, and of ITU’s authority; c) content-related proposals and “evil governments” clamping down on free speech; d) IP traffic routing and distribution of revenues.

Process-related problems: The ITU is a closed-door body with only governments having a voice, and only they and exorbitant fees-paying sector members have access to documents and proposals. Further, governments generally haven’t held public consultations before forming their positions. This lack of transparency and public participation is anathema to any form of global governance and is clearly one of the strongest points of Internet activists who’ve raised alarm bells over WCIT.

Scope of ITRs: Most telecom regulators around the world distinguish between information services and telecom services, with regulators often not having authority over the former. A few countries even believe that the wide definition of telecommunications in the ITU constitution and the existing ITRs already covers certain aspects of the Internet, and contend that the revisions are in line with the ITU constitution. This view should be roundly rejected, while noting that there are some legitimate concerns about the shift of traditional telephony to IP-based networks and the ability of existing telecom regulations (such as those for mandatory emergency services) to cope with this shift.

ITU’s relationship with Internet governance has been complicated. In 1997, it was happy to take a hands-off approach, cooperating with Internet Society and others, only to seek a larger role in Internet governance soon after. In part this has been because the United States cocked a snook at the ITU and the world community in 1998 through the way it established Internet Corporation for Assigned Names and Numbers (ICANN) as a body to look after the Internet’s domain name system. While the fact that the US has oversight over ICANN needs to change (with de-nationalisation being the best option), Russia wants to supersede ICANN and that too through current revisions of the ITRs. Russia’s proposal is a dreadful idea, and must not just be discarded lightly but thrown away with great force. The ITU should remain but one among multiple equal stakeholders concerned with Internet governance.

One important, but relatively unnoticed, proposed change to ITU’s authority is that of making the standards that ITU’s technical wing churns out mandatory. This is a terrible idea (especially in view of the ITU’s track record at such standards) that only a stuffy bureaucrat without any real-world insight into standards adoption could have dreamt up.

Content-related proposals: Internet activists, especially US-based ones, have been most vocal about the spectre of undemocratic governments trying to control online speech through the ITRs. Their concerns are overblown, especially given that worse provisions already exist in the ITU’s constitution. A more real threat is that of increasing national regulation of the Internet and its subsequent balkanisation, and this is increasingly becoming reality even without revisions to the ITRs. Having said that, we must ensure that issues like harmonisation of cyber-security and spam laws, which India has been pushing, should not come under ITU’s authority. A further worry is the increasing militarisation of cyberspace, and an appropriate space must be found by nation-states to address this pressing issue, without bringing it under the same umbrella as online protests by groups like Anonymous.

Division of revenue: Another set of proposals is being pushed by a group of European telecom companies hoping to revive their hard-hit industry. They want the ITU to regulate how payments are made for the flow of Internet traffic, and to prevent so-called “net neutrality” laws that aim to protect consumers and prevent monopolistic market abuse. They are concerned that the Googles and Facebooks of the world are free-riding on their investments. That all these companies pay to use networks just as all home users do, is conveniently forgotten. Thankfully, most countries don’t seem to be considering these proposals seriously.

Can general criteria be framed for judging these proposals? In submissions to the Indian government, the Centre for Internet and Society suggested that any proposed revision of the ITRs be considered favourably only if it passes all the following tests: if international regulation is required, rather than just national-level regulation (i.e., the principle of subsidiarity); if it is a technical issue limited to telecommunications networks and services, and their interoperability; if it is an issue that has to be decided exclusively at the level of nation-states; if the precautionary principle is satisfied; and if there is no better place than the ITRs to address that issue. If all of the above are satisfied, then it must be seen if it furthers substantive principles, such as equity and development, competition and prevention of monopolies, etc. If it does, then we should ask what kind of regulation is needed: whether it should be mandatory, whether it is the correct sort of intervention required to achieve the policy objectives.

The threat of a “UN takeover” of the Internet through the WCIT is non-existent. Since the ITU’s secretary-general is insisting on consensus (as is tradition) rather than voting, the possibility of bad proposals (of which there are many) going through is slim. However, that doesn’t mean that activists have been crying themselves hoarse in vain. That people around the world are a bit more aware about the linkage between the technical features of the Internet and its potential as a vehicle for free speech, commerce and development, is worth having to hear some shriller voices out there.

The writer is policy director at the Centre for Internet and Society, Bengaluru

For more details visit https://cis-india.org/internet-governance/blog/asian-age-column-december-10-2012-pranesh-prakash-the-worldwide-web-of-concerns

The Worldwide Web of Concerns

pranesh — 2012-12-27T04:31:39Z

The International Telecommunication Union’s World Conference on International Telecommunications (WCIT-12) is currently under way in Dubai, after a gap of 25 years. At this conference, the Inter-national Telecommunication Regulations — a binding treaty containing high-level principles — are to be revised.

Pranesh Prakash's column was published in the Deccan Chronicle on December 10, 2012.

Much has changed since the 1988 Melbourne conference. Since 1988, mobile telephony has grown by leaps and bounds, the Internet has expanded and the World Wide Web has come into existence.

Telecommunications is now, by and large, driven by the private sector and not by state monopolies.

Process-related problems: The ITU is a closed-door body with only governments having a voice, and only they and exorbitant fees-paying sector members have access to documents and proposals. Further, governments generally haven’t held public consultations before forming their positions. This lack of transparency and public participation is anathema to any form of global governance and is clearly one of the strongest points of Internet activists who’ve raised alarm bells over WCIT.

w Scope of ITRs: Most telecom regulators around the world distinguish between information services and telecom services, with regulators often not having authority over the former. A few countries even believe that the wide definition of telecommunications in the ITU constitution and the existing ITRs already covers certain aspects of the Internet, and contend that the revisions are in line with the ITU constitution. This view should be roundly rejected, while noting that there are some legitimate concerns about the shift of traditional telephony to IP-based networks and the ability of existing telecom regulations (such as those for mandatory emergency services) to cope with this shift.

Content-related proposals: Internet activists, especially US-based ones, have been most vocal about the spectre of undemocratic governments trying to control online speech through the ITRs. Their concerns are overblown, especially given that worse provisions already exist in the ITU’s constitution. A more real threat is that of increasing national regulation of the Internet and its subsequent balkanisation, and this is increasingly becoming reality even without revisions to the ITRs.

Having said that, we must ensure that issues like harmonisation of cyber-security and spam laws, which India has been pushing, should not come under ITU’s authority. A further worry is the increasing militarisation of cyberspace, and an appropriate space must be found by nation-states to address this pressing issue, without bringing it under the same umbrella as online protests by groups like Anonymous.

Division of revenue: Another set of proposals is being pushed by a group of European telecom companies hoping to revive their hard-hit industry. They want the ITU to regulate how payments are made for the flow of Internet traffic, and to prevent socalled “net neutrality” laws that aim to protect consumers and prevent monopolistic market abuse. They are concerned that the Googles and Facebooks of the world are free-riding on their investments. That all these companies pay to use networks just as all home users do, is conveniently forgotten. Thankfully, most countries don’t seem to be considering these proposals seriously.

Can general criteria be framed for judging these proposals? In submissions to the Indian government, the Centre for Internet and Society suggested that any proposed revision of the ITRs be considered favourably only if it passes all the following tests: if international regulation is required, rather than just national-level regulation (i.e., the principle of subsidiarity); if it is a technical issue limited to telecommunications networks and services, and their interoperability; if it is an issue that has to be decided exclusively at the level of nation-states; if the precautionary principle is satisfied; and if there is no better place than the ITRs to address that issue. If all of the above are satisfied, then it must be seen if it furthers substantive principles, such as equity and development, competition and prevention of monopolies, etc. If it does, then we should ask what kind of regulation is needed: whether it should be mandatory, whether it is the correct sort of intervention required to achieve the policy objectives.

The writer is policy director at the Centre for Internet and Society, Bengaluru

For more details visit https://cis-india.org/internet-governance/blog/deccan-chronicle-pranesh-prakash-december-10-2012-the-worldwide-web-of-concerns

The Web of Our Strife

pranesh — 2012-06-04T05:45:34Z

At the 66th session of the UN General Assembly, India proposed the formation of a Committee on Internet-Related Policies (CIRP) to address what it sees as a policy vacuum in internet governance.

Pranesh Prakash's article was published in the Times of India on June 2, 2012.

This CIRP will, in the view of India's government, address the US domination of internet policymaking, and make it more democratic and 'multistakeholder'. As an example of this domination, our government cites the oversight role that the US government exercises over ICANN, the non-profit corporation that controls the net's domain name system, as well as the control it exerts over DNS root servers (with all changes needing to go through the US Department of Commerce).

But many civil society organisations, technology companies, and even a few Indian politicians (notably Rajeev Chandrashekar and P Rajeeve), oppose the CIRP as being a proposal for the UN takeover of internet governance. The role of nation-states in governing the internet has been minimal so far. Many attribute the success of the internet to this lack of interference from governments. They ask why we need to fix something that is not broken? In effect, why regulate something that clearly works without such regulation?

It is clear that this status quo will not suffice for many governments. Various countries - like the US, with its Stop Online Piracy and Cyber Intelligence Sharing and Protection acts, and India, with our Information Technology Act and recent Intermediary Guidelines Rules - look to actively regulate the net. ICANN, supposedly a purely technical organisation, has got embroiled in policy issues too. This was seen in the. xxx top-level domain name debacle, where governments tried to intervene, but ultimately failed. Many such purely domestic regulations, like SOPA, have international implications. Even India's Intermediary Guidelines Rules, for instance, require compliance from internet companies across the world. The US government has seized domain names of Spanish file-sharing websites that are hosted in Spain, even though they have been held to be legal there.

So while international forums exist for internetrelated policy discussions, including the Internet Governance Forum (IGF), they are limited by a lack of actual power to even so much as recommend policy positions. Hence there are forums for discussions, but none for resolving problems. The proposed CIRP seeks to be such a body, "with a view to ensuring coordination and coherence in crosscutting internet-related global issues".

Besides, apart from domestic legislation starting to encroach upon the international nature of the internet, there's another issue: that of countries like Russia and China pushing for a less 'multistakeholder' approach to internet governance. So the status quo is unsatisfactory, the alternatives are worrisome, and attempts at 'enhanced cooperation' within existing frameworks (for instance, through India's proposal for IGF reforms) have failed to find enough backers. Given this, a CIRP-like mechanism might well be the preferred option. Importantly, a singular body within the UN system for internet policy could help ensure that other UN agencies which are even less 'multistakeholder' don't overstep their mandates and start making regulations all by themselves.

However, the current CIRP proposal lacks many safeguards that would allay the fears expressed by those who oppose it as 'government control of the internet'. First, while the Indian government has, in its proposal, laid out the CIRP's mandate, it has not laid out the limits of its powers in carrying out that mandate. Second, the CIRP is currently a government body that is merely 'advised' by various stakeholders, with nothing to indicate that this advice will be heeded. This is unsatisfactory, given the internet policy transgressions that are committed by various national governments, as seen, say, in Iran or China. Arguments that the UN system is nation-state-centric do not suffice, since processes that aren't nation-state-centric, such as the Internet Governance Forum, are also being spearheaded by the UN.

If such criticism is addressed, then the CIRP should indeed be welcomed. But we should also be realistic. Governments are effectively being asked to cede certain aspects of sovereignty by being told that the internet is a phenomenon that traditional approaches to policymaking just cannot address. They will not do so easily.

Further, the reality of international realpolitik must be acknowledged - about governments actually following the CIRP. The US, for instance, regularly ignores rulings by the ICJ and the WTO with impunity.

More importantly, and as some cyberlibertarians like Milton Mueller and Adam Thierer remind us, 'multistakeholderism' is only a process (involving multiple stakeholders), and does not provide substantive principles for internet governance (when may websites be blocked, for instance;or who should control the domain name system). Such sobering realpolitik, Mueller believes, is reason enough to be sceptical of the CIRP proposal as it currently stands. He may well be right.

But given the current trend of states individually wielding excessive powers over various aspects of how their citizens access and use the internet, a CIRP-like body may well be what is needed to safeguard democratic principles and innovation on the internet.

For more details visit https://cis-india.org/internet-governance/the-web-of-our-strife

The Socratic debate: Whose internet is it anyway?

pranesh — 2014-12-09T13:35:45Z

In the US, President Obama recently spoke out on the seemingly arcane topic of net neutrality. What is more astounding is that the popular satire news show host John Oliver spent a 13-minute segment talking about it in June, telling Internet trolls to “focus your indiscriminate rage in a useful direction” by visiting the US Federal Communications Commission’s (FCC) website and submitting comments on its weak draft proposal on net neutrality.

The article was published in the Economic Times on November 18, 2014.

Due to the work of activists, popular media coverage, pro-net neutrality technology companies, and John Oliver, eventually the FCC received 1.1 million responses. Text analysis by the Sunlight Foundation using natural language processing found that only 1% of the responses were clearly opposed to net neutrality. So millions of people in the US are both aware and care about this issue. But the general response in India would be: what is net neutrality and why should I be concerned?

Net neutrality is commonly described as the principle of ensuring that there is no discrimination between the different ‘packets’ that an Internet service provider (ISP) carries. That means that the traffic from NDTV should be treated equally by Reliance Infocomm as the traffic from Network 18’s CNNIBN; that even if Facebook wants to pay Airtel to deliver Whatsapp’s packets faster than Viber’s, Airtel may not do so; that peer-to-peer traffic is not throttled; that Facebook will not be able to pay Airtel to keep its subscribers bound within its walled gardens; and also that Airtel can’t claim to be providing Internet access while restricting that to only Facebook or Whatsapp.

The counter to this by telecom companies the world over, which has little evidence backing it, is primarily two-fold: first, one of equity — that it is ‘unfair’ for the likes of YouTube to get a ‘free ride’ on Airtel networks, hogging up bandwidth but not paying them; and second, that of economic incentives — networks are bleeding money due to services like WhatsApp and Skype replacing SMS and voice, and not being able to charge them will lead to a decrease in profitability and network expansion. The first claim is based on a myth of the ‘free ride’, while the reality is that subscribers who download more also pay the ISP more, while contentemitting companies also have to pay their network providers as per the traffic they generate, and those network providers, in turn, have to enter into ‘transit’ or ‘peering’ agreements with the ISPs that eventually provide access to consumers. The second claim has little evidence to back it up. Efficient competition is the best driver of both profit as well as network expansion. VSNL complained about services like Net2Phone in the 1990s and even filtered all voice-over-IP (VoIP) traffic — and illegally blocked a number of VoIP websites — to preserve its monopoly over international telephony. Instead, removing VSNL’s monopoly only benefited our nation. As for network expansion, it is inability of networks to profit from sparsely populated rural areas that poses a major roadblock. Fixing those problems require smart pricing by telecom companies and intelligent regulation, including exploring policy options like shared spectrum, but they do not necessarily require the abandoning of net neutrality.

However, the fact that the reasons telecom companies often provide against net neutrality are bogus doesn’t mean that it’s easy to ensure net neutrality. The Trai has been exploring this issue by holding a seminar on OTT services. However, the main focus of the discussions were not whether and how India should ensure net neutrality: it was on whether the government should regulate services like WhatsApp and bring them under the licence Raj. Yes, the debate going around in the regulatory circles is whether India should implement rules to ensure net non-neutrality so as favour telecom companies! Net neutrality is a difficult issue in regulatory terms since there is no common understanding among academics and activists of what all should fall under its ambit: only the ‘last mile’ or interconnection as well?

The policy dialogue in India is far removed from this and from considering the nuanced positions of anti-net neutrality scholars, such as Christopher Yoo, who raise concerns about the harms to innovation and the free market that would be caused by mandating net neutrality. The situation in India is much more dire, since blatant violations of net neutrality — howsoever defined — are already happening with Airtel launching its ‘One Touch Internet’, a limited walled garden approach that lies about offering access to the ‘Internet’ while only offering access to a few services based on secretive agreements with other companies. Mark Zuckerberg, the founder of Facebook, recently toured India talking about his grand vision of providing connectivity to the bottom half of the pyramid yet did not talk about how that connectivity would not be to the Internet, but will be limited to only a few services — including Facebook.

Even if we had good laws in favour of net neutrality, without effective monitoring and forceful action by the government, they will amount to little. s. Undoubtedly the contours of the conversation that needs to happen in India over net neutrality will be different from that happening in more developed countries with higher levels of Internet penetration.

However it is a cause of grave concern that while net neutrality is being brutally battered by telecom companies in the absence of any regulation, they are also seeking to legitimize their battery through regulation. It is time the direction of the conversation changed. Perhaps we should invite John Oliver over.

For more details visit https://cis-india.org/internet-governance/blog/economic-times-november-18-2014-pranesh-prakash-the-socratic-debate-whos-internet-is-it-anyway

The Right to Information, The Right to Knowledge (Talk by Sam Pitroda & Carl Malamud)

pranesh — 2018-02-14T12:19:16Z

On October 15, 2017, Sam Pitroda and Carl Malamud will speak on open data and knowledge in India.

HasGeek and NUMA Bangalore are co-organizing a talk by two eminent internet pioneers — Sam Pitroda and Carl Malamud — on open data and knowledge in India. Pranesh Prakash of CIS will introduce the speakers and their work.

The Right to Information, The Right to Knowledge

Sam Pitroda and Carl Malamud will talk about their efforts in India, the U.S., and many other countries to help promote universal access to knowledge. They'll discuss the constitutional underpinnings of this right in India and some of the information they've been making available, including 3 lakh books from the Digital Library of India, 19,000 official standards from the Bureau of Indian Standards, and a raft of other resources such as the entire Collected Works of Mahatma Gandhi.

They will discuss how key laws such as the Right to Information make this possible but will focus more on how the world of open source and the Internet can turn that promise into a reality. Universal access to knowledge is the great unmet promise of our times, and they will talk about what we can all do to make this dream possible.

About the speakers

Dr. Sam Pitroda was a senior advisor to Prime Ministers Rajiv Gandhi and Manmohan Singh and is widely credited for having led India’s telecommunications and technology revolutions in the 1980s. Dr. Pitroda holds 20 honorary PhDs, close to 100 worldwide patents, and helped create the first digital PBXs in the 1960s.

Carl Malamud started the first radio station on the Internet and is considered one of the pioneers of the U.S. open government movement. Carl runs Public.Resource.Org, an NGO which has placed hundreds of millions of pages of government information online, including all 19,000 Indian Standards.

For more details visit https://cis-india.org/events/the-right-to-information-the-right-to-knowledge

The Online Video Environment in India: A Survey Report

pranesh — 2010-12-21T07:27:34Z

Report on online for the Open Video Alliance, Centre for Internet and Society, and iCommons by Siddharth Chadha, Ben Moskowitz and Pranesh Prakash.

For more details visit https://cis-india.org/a2k/publications/online-video-environment-india

The Online Video Environment in India: A Survey Report

pranesh — 2010-12-21T07:31:30Z

Report on online for the Open Video Alliance, Centre for Internet and Society, and iCommons by Siddharth Chadha, Ben Moskowitz and Pranesh Prakash.

For more details visit https://cis-india.org/openness/publications/content-access/online-video-india-survey-v1

The Online Video Environment in India - A Survey Report

pranesh — 2011-10-03T09:31:30Z

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

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

The paper is organized in the following parts:

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

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

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

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

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

The National Public Meeting on Software Patents

pranesh — 2011-08-23T03:02:56Z

On Saturday, October 4, 2008, the Centre for Internet and Society, with the support of eighteen other organization, held a meeting on the National Public Meeting on Software Patents in the United Theological College campus. The aim of the event was to explore various issues surrounding software patents, especially from the perspective of the draft Patent Manual.

After introductions by Sunil Abraham of CIS, the discussions were kicked off by Sudhir Krishnaswamy (an Assistant Professor at National Law School), who spoke about typology of laws; principle-based arguments for excluding software from patenting; policy-based arguments for the same; and lastly, strategies for combating the patent manual. About the rationale behind excepting software ("computer programmes per se") from patentability, he theorised that given the location of "computer programmes per se" in section 3(k) of the Act, surrounded as it is by "mathematical or business method" and "algorithms", the exception seems to be a principle-based one and not a policy-based one. He also talked about what he saw as the practical realities of the Patent Office, and questioned the role the Draft Manual would actually play in the decisions of Patent Examiners.

He listed out economic arguments as:

Inapplicability of the incentive arguments. The software industry does not need patents since copyright covers software, and even if incentives are required, that is incentive enough;
Return on investment. Short shelf-life, and hence 17-year patent terms are irrelevant when the shelf-life is so small;
New intermediaries are created, who are neither producers nor consumers of software. These intermediaries who help in price-discovery. They discover value in patents which were previously thought neglected by the process known as patent trolling.

Apart from these, he also briefly talked of the legal arguments around software patents, and argued that the question is not only about copyright vs. patent, but also about property vs. contract. He asked questions such as: "What role does copyright play in the software industry, or is contract more important?", and pointed out that while this might have been addressed around a decade ago, those questions need to be revisited given the current scenario. Further, he proposed that the strategies should not revolve solely around the Patent Act and Draft Manual, but around pre- and post-grant oppositions as well.

Prabir Purkayastha of the Delhi Science Forum and Knowledge Commons spoke next, giving a quick run-through of the history, both legal and philosophical, surrounding software patents in India and in the U.S. and Europe (pointing out that most of the wordings of Draft Manual on this point are borrowed from a similar document in the U.K.). He asked the question of why people are opposing software patents. Is it because it is damaging to 'public interest', because it bad for Indian domestic software industry, or because it is an abstract idea which is sought to be patented in the guise of something else? He concluded that ultimately it is not the manual that groups are opposing, but the notion of software patents themselves. Thus, he focussed on how the phrase "per se" used in the Act ought to be interpreted by the Patent Office so as to give credence to the Indian Parliament's rejection (in 2005) of the 2004 patent ordinance (in which section 3(k) read: "a computer programme per se other than its technical application to industry or a combination with hardware"). Lastly, he talked about the various strategies to be employed in the fight against software patents, including pre- and post-grant oppositions.

Dr. Nagarjuna G. of the Free Software Foundation of India focussed on what he termed "the absurdity of software patents". He emphasised how software requires an interpreter or hardware, and hence talk of "software per se" often becomes meaningless. Further, he underlined how embedding software in hardware was not innovation in itself, and stressed ont he changing notions of software and hardware as we evolve technologically. His equation of software with abstract ideas gives us a glimpse into the foundation of his objection to software patents.

First up in the second session (which was more focussed on the manual, and the law in India) was Prashant Iyengar of the Bangalore-based Alternative Law Forum. He first listed out the different kinds of objections to software patents, including the point that there are only limited ways of thinking about programming, as Donald Knuth's The Art of Computer Programming shows. Then he went on to go through the history of software patents in India, from the first software patent, granted in 1996, through the 2002 Amendment, the 2004 Ordinance, the 2005 Amendment, and the 2005 and 2008 Draft Manuals. He looked at the vocabulary surrounding software patents, including the words "per se" and "as such", and the cases and legislations from which the language used in the Draft Manual might have been borrowed. He also started a fruitful debate on the different ways to attack the implicit inclusion of that which is not "computer programmes per se" within the scope of patentable subject matter.

After Prashant was Venkatesh Hariharan of Red Hat. He spoke on the practical benefits and harms of software patents, and spoke at length about the difference between legal protection of software in the form of patents and via copyright. He pointed to data showing that lawyers are the ones who benefit most from software patents, and that software developers were the ones who suffered most. Pointing to such practical issues such as how does one go about coding a simple e-commerce transaction when more than 4000 patents have already been granted in that area, he brought down the level of discussion from abstract notions of laws and legalities to practical experiences of software programmers.

Next, Pranesh Prakash of the Centre for Internet and Society made a presentation on a small sample of software patents that have been applied for in India, and pointed out the infirmities in both the patents that have been applied for, as well as the problems in uncovering these patents because of various errors on the Indian Patent Office website. Going through a few of the patent applications, he showed how a great number applications have very badly worded abstracts, filled with weasel words, whose sole purpose is obfuscating the fact that what is being applied for is a software patent. This, he pointed out, made it difficult to both determine the scope of the applications (subject matter) as well as the innovations contained in the invention (novelty and non-obviousness), and thus difficult to examine from the perspective of pre-grant oppositions.

After these presentations, the meeting continued with the Open House session which had many people making presentations, including Abhas Abhinav of DeepRoot Linux, Arun M. of FSF India, and Joseph C. Matthew, who is the IT Adviser to the Chief Minister, Kerala. With the wrapping up of this session, the proceedings for the day came to a close.

Coverage in the press

Audio Recordings and Slides

The Principles of Patent Law and Introduction to Software Patents

Sudhir Krishnaswamy (National Law School) | mp3 | ogg
Prabir Purkayastha(Delhi Sience Forum) (Knowledge Commons) |mp3 | ogg
Nagarjuna G.(Free Software Foundation of India) | mp3 | ogg

Software Patents in India: The Indian Patent Act and the Draft Patent Manual

Prashant Iyengar(Alternative Law Forum) | mp3 | ogg
Venkatesh Hariharan(Red Hat) | mp3 | ogg

Software Patent Applications in India

Pranesh Prakash (Centre for Internet and Society) | mp3 | ogg | ppt

Open House

Abhas Abhinav (DeepRoot Linux) | mp3 | ogg

Arun M.(Free Software Foundation of India)| mp3 | ogg
Joseph Mathew (IT Adviser to the Chief Minister, Kerala)| mp3 | ogg

For more details visit https://cis-india.org/openness/blog-old/the-national-public-meeting-on-software-patents

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

The 'Global Multistakholder Community' is Neither Global Nor Multistakeholder

pranesh — 2016-11-03T10:42:53Z

CIS research shows how Western, male, and industry-driven the IANA transition process actually is.

In March 2014, the US government announced that they were going to end the contract they have with ICANN to run something called the Internet Assigned Numbers Authority (IANA), and hand over control to the “global multistakeholder community”. They insisted that the plan for transition had to come through a multistakeholder process and have stakeholders “across the global Internet community”.

Analysis of the process since then shows how flawed the “global multistakeholder community” that converges at ICANN has not actually represented the disparate interests and concerns of different stakeholders. CIS research has found that the discussions around IANA transition have not been driven by the “global multistakeholder community”, but mostly by males from industry in North America and Western Europe.

CIS analysed the five main mailing lists where the IANA transition plan was formulated: ICANN’s ICG Stewardship and CCWG Accountability lists; IETF’s IANAPLAN list; and the NRO’s IANAXFER list and CRISP lists. What we found was quite disheartening.

A total of 239 individuals participated cumulatively, across all five lists.
Only 98 substantively contributed to the final shape of the ICG proposal, if one takes a count of 20 mails (admittedly, an arbitrary cut-off) as a substantive contribution, with 12 of these 98 being ICANN staff some of whom were largely performing an administrative function.

We decided to look at the diversity within these substantive contributors using gender, stakeholder grouping, and region. We relied on public records, including GNSO SOI statements, and extensive searches on the Web. Given that, there may be inadvertent errors, but the findings are so stark that even a few errors wouldn’t affect them much.

2 in 5 (39 of 98, or 40%) were from a single country: the United States of America.
4 in 5 (77 of 98) were from countries which are part of the WEOG UN grouping (which includes Western Europe, US, Canada, Israel, Australia, and New Zealand), which only has developed countries.
None were from the EEC (Eastern European and Russia) group, and only 5 of 98 from all of GRULAC (Latin American and Caribbean Group).
4 in 5 (77 of 98) were male and 21 were female.
4 in 5 (76 of 98) were from industry or the technical community, and only 4 (or 1 in 25) were identifiable as primarily speaking on behalf of governments.

This shows also that the process has utterly failed in achieving the recommendation of Paragraph 6 of the 3 in 5 registrars are from the United States of America (624 out of 1010, as of March 2014, according to ICANN's accredited registrars list), with only 0.6% being from the 54 countries in Africa (7 out of 1010).

45% of all the registries are from the United States of America! (307 out of 672 registries listed in ICANN’s registry directory in August 2015.)

66% (34 of 51) of the Business Constituency at ICANN are from a single country: the United States of America. (N.B.: This page doesn’t seem to be up-to-date.)

This shows that businesses from the United States of America continues to dominate ICANN to a very significant degree, and this is also reflected in the nature of the dialogue within ICANN, including the fact that the proposal that came out of the ICANN ‘global multistakeholder community’ on IANA transition proposes a clause that requires the ‘IANA Functions Operator’ to be a US-based entity. For more on that issue, see this post on the jurisdiction issue at ICANN (or rather, on the lack of a jurisdiction issue at ICANN).

For more details visit https://cis-india.org/internet-governance/blog/global-multistakeholder-community-neither-global-nor-multistakeholder