Centre for Internet and Society

Facebook Shares 10 Key Facts about Free Basics. Here's What's Wrong with All 10 of Them.

sunil — 2015-12-25T14:59:10Z

Shweta Sengar of Catch News spoke to Sunil Abraham about the recent advertisement by Facebook titled "What Net Neutrality Activists won't Tell You or, the Top 10 Facts about Free Basics". Sunil argued against the validity of all the 'top 10 facts'.

Facebook has rebranded internet.org as Free Basics. After suffering from several harsh blows from the net neutrality activists in India, the social media behemoth is positioning a movement in order to capture user attention.

Apart from a mammoth two page advertisement on Free Basics on 23 December in a leading English daily, we spotted a numerous hoardings across the capital.

Unlike Facebook, Wikipedia has a rather upfront approach for raising funds. You must have noticed a pop-up as you open Wikipedia when they are in need of funds. What Facebook has done is branded Free Basics as 'free' as the basic needs of life.

The newspaper advertisement by Facebook was aimed at clearing all the doubts about Free Basics. The 10 facts highlighted a connected India and urging users to take the "first step towards digital equality."

In an interview with Catch, Sunil Abraham, Executive Director of Bangalore based research organisation, the Centre for Internet and Society, shared his thoughts on the controversial subject. Abraham countered each of Facebook's ten arguments. Take a look:

01 Free basics is open to any carriers. Any mobile operator can join us in connecting India.

Sunil Abraham: Free Basics was initially exclusive to only one telecom operator in most markets that it was available in.

The non-exclusivity was introduced only after activists in India complained. But now the arrangement is exclusive to Free Basics as a walled garden provider. But discrimination harms remain until other Internet services can also have what Facebook has from telecom operators ie. free access to their destinations.

02 We do not charge anyone anything for Free Basics. Period.

SA: As Bruce Schneier says "surveillance is the business model of the Internet". Free basics users are subject to an additional layer of surveillance ie. the data retention by the Facebook proxy server. Just as Facebook cannot say that they are ignoring Data Protection law because Facebook is a free product - they cannot say that Free Basics can violate network neutrality law because it is a free service. For ex. Flipkart should get Flipkart Basic on all Indian ISPs and Telcos.

03 We do not pay for the data consumed in Free Basics. Operators participate because the program has proven to bring more people online. Free Basics has brought new people onto mobile networks on average over 50% faster since launching the service.

SA: Facebook has been quoting statistics as evidence to influence the policy formulation process. But we need the absolute numbers and we also need them to be independently verifiable. At the very least we need the means to cross verify these numbers with numbers that telcos and ISPs routinely submit to TRAI.

Theoretical harms must be addressed through net neutrality regulation. For example, you don't have to build a single, centralised database of all Indian citizens to know that it can be compromised - from a security design perspective centralisation is always a bad idea. Gatekeeping powers given to any powerful entity will be compromised. While evidence is useful, regulation can already begin based on well established regulatory principles. After scientific evidence has been made available - the regulation can be tweaked.

04 Any developer or publisher can have their content on Free Basics. There are clear technical specs openly published here ... and we have never rejected an app or publisher who has me these tech specs.

SA: Again this was only done as a retrospective fix after network neutrality activists in India complained about exclusive arrangements. For example, the music streaming service Hungama is not a low-bandwidth destination but since it was included the technical specifications only mentions large images and video files. Many of the other sites are indistinguishable from their web equivalents clearly indicating that this was just an afterthought. At the moment Free Basics has become controversial so most developers and publishers are not approaching them so there is no way for us to verify Facebook's claim.

05 Nearly 800 developers in India have signed their support for Free Basics.

SA: I guess these are software developers working in the services industry who don't see themselves as potential competition to Facebook or any of the services within Free Basics. Also since Facebook as been completely disingenuous when it comes to soliciting support for their campaigns it is very hard to believe these claims. It has tried to change the meaning of the phrase "net neutrality" and has framed the debate in an inaccurate manner - therefore I could quite confidently say that these developers must have been fooled into supporting Free Basics.

06 It is not a walled garden: In India, 40% of people who come online through Free Basics are paying for data and accessing the full internet within the first 30 days. In the same time period, 8 times more people are paying versus staying on just

SA: Again, no absolute numbers and also no granularity in the data that makes it impossible for anyone to verify these numbers. Also there is no way to compare these numbers to access options that are respectful of network neutrality such as equal rating. If the numbers are roughly the same for equal rating and zero-rating then there is no strong case to be made for zero-rating.

07 Free Basics is growing and popular in 36 other countries, which have welcomed the program with open arms and seen the enormous benefits it has brought.

SA: Free Basics was one of the most controversial topics at the last Internet Governance Forum. A gratis service is definitely going to be popular but that does not mean forbearance is the only option for the regulator. In countries with strong civil society and/or a strong regulator, Free Basics has ran into trouble. Facebook has been able to launch Free Basics only in jurisdictions where regulators are still undecided about net neutrality. India and Brazil are the last battle grounds for net neutrality and that is why Facebook is spending advertising dollar and using it's infrastructure to win the global south.

08 In a recent representative poll, 86% of Indians supported Free Basics by Facebook, and the idea that everyone deserves access to free basic internet services.

SA: This is the poll which was framed in alarmist language where Indian were asked to choose between perpetuating or bridging the digital divide. This is a false choice that Facebook is perpetuating - with forward-looking positive Network Neutrality rules as advocated by Dr. Chris Marsden it should be possible to bridge digital divide without incurring any free speech, competition, innovation and diversity harms.

09 In the past several days, 3.2 million people have petitioned the TRAI in support of Free Basics.

SA: Obviously - since Free Basics is better than nothing. But the real choice should have been - are you a) against network neutrality ie. would you like to see Facebook play gatekeeper on the Internet OR b) for network neutrality ie. would you like to see Free Basics forced to comply with network neutrality rules and expand access without harms to consumers and innovators.

10 There are no ads in the version of Facebook on Free Basics. Facebook produces no revenue. We are doing this to connect India, and the benefits to do are clear.

SA: As someone who has watched the Internet economy since the first dot com boom - it is absolutely clear that consumer acquisition is as important as revenues. They are doing it to connect people to Facebook and as a result some people will also connect to the Internet. But India is the last market on the planet where the walled garden can be bigger than the Internet, and therefore Facebook is manipulating the discourse through it's dominance of the networked public sphere.

Bravo to TRAI and network neutrality activists for taking Facebook on.

Originally published by Catch News, on December 24, 2015.

For more details visit https://cis-india.org/internet-governance/news/facebook-shares-10-key-facts-about-free-basics-heres-whats-wrong-with-all-10-of-them

4th Global Congress on IP and the Public Interest: Statement of Conclusion for the IP and Development track

nehaa — 2015-12-25T02:22:52Z

The 4th Global Congress on Intellectual Property and the Public Interest was held from December 15 to 17, 2015 in New Delhi. This post provides a summary of the event.

This was also published on the Global Congress blog.

Wrap up note 1: Feedback on broad discussion in the IP and Dev track – set of collected key points:

This year, the discussions included attention to broad perspectives on clarifying the meaning and reality of open collaborative innovation, as well as significant focus on the sub-themes of economic development (innovation and software patents, clean technologies, climate change and green patenting, issues of branding and plain packaging); sustainable development (agriculture and geographic indicators [GI]); policy, law and regulation (role of governments, patenting, compulsory licensing [CL], global institutions [particularly WTO, WIPO and WHO] and national institutions [particularly patent offices]). Trade dominated the discussions across the IP and Dev track, including the TPP and other issues, reflecting the strong global trade agenda.

Missing areas in the track papers, workshops and panel discussions included the limited discussion on traditional knowledge (TK); the work of indigenous groups and how they are navigating the IP landscape; biodiversity; biotech and food security; innovation in the nanotechnology sphere; and inclusive development. Accessibility to innovations for low-income households, and accessibility to innovations at the country level needs greater attention. These topics can be brought out more strongly, more directly.

The value of building research networks to create explicit knowledge and coherence in research-based evidence for advocacy and policy-making was made visible in the workshop session presented by Open AIR, with the Open AIR network as the exemplar. The challenge is to translate the kinds of research and evidence presented at the GC into content and value for policy-making and trade negotiations.

Wrap up note 2: Value of the deliberations and future research:

This is a new track in the GC, introduced in 2015. It is an important track for this and future Global Congresses because it brings together the many strands of research, advocacy and other work that are related to topics in innovation, IP and development, but which are not specifically about openness, user rights or A2M. This is a very broad range of fields of study, from agriculture to nanotechnology. It was proposed that the track be renamed “Innovation and Development” to more explicitly describe its focus.

From this GC, it has become clearer what future topics may be considered for papers and other inputs into the IP and Dev track. Such topics include counter-narratives to mainstream IP perspectives; bringing IP for development in multiple sectors to the fore – in education; in automotive manufacturing; in technology evolution; in agricultural production and food security; in the broad policy, law and regulatory environment pertinent to these and other sectoral perspectives. For example, in the paper on green patenting, reference was made to Tesla and Toyota releasing patents, but the session did not get to discuss that. The papers presented at the 4th GC suggest many areas of focus for future research and future GCs – perhaps the best way to think about this exploration is through greater attention to innovation in a range of social and economic sectors; to consider the particular challenges of innovation, IP and development in LDCs; to study innovation ecosystems and where IP fits in these ecosystem. Cross-track sessions are also considered to be very important because of the knowledge sharing that takes place across sectors, for example the discussions on patent wars in the access to medicines (A2M) track provided food for thought with respect to emerging issues in the software sector.

Wrap up note 3: Ideas and implications of GC sessions for future directions for research, collaborations and next GC:

For the next GC, mobilization is required across various geographic regions and a significant discussion is required on preparation and design of the sub-themes, based on the notes above. The requirement for more evidence-based research was noted. It was recommended that the future name of the track should be Innovation and Development. The core group, comprised of track leaders and sessions chairs, should continue the leadership of the track from GC to GC, bringing additional interested persons on board, in particular with respect to the design of sub-themes well in advance of the 5th GC, to guide prospective submissions.

Ends.

For more details visit https://cis-india.org/a2k/blogs/4th-global-congress-on-ip-and-the-public-interest-statement-of-conclusion-for-the-ip-and-development-track

English and Telugu Wikipedia edit-a-thon in Hyderabad

Pavan Santosh — 2015-12-31T07:49:19Z

After a long time, a collaborative Telugu and English Wikipedia edit-a-thon is being organised in Hyderabad on December 20.

This Sunday, the Telugu and English language Wikipedia editors are organising a unique edit-a-thon at Golden Threshold, Abids. The event is aimed at translating many English Wikipedia articles related to Telugu language and culture to Telugu and vice versa. Theatre scholar and Telugu Wikimedian Pranay Raj Vangari and English Wikimedian Srikar Kasyap are organising this event with support from Centre for Internet and Society. Telugu speakers who contribute to English Wikipedia are going to contribute to Telugu Wikipedia. “The event is scheduled at 10 am and over a dozen articles are planned to be created during the sprint”, explains Vangari. Kashyap adds saying, “the Wikimedians are also planning to share best practices of the two communities which will benefit everyone”. The event is open to all and newbies will be oriented with the basics of Wikipedia editing and enriching the knowledge pool in Telugu and other languages on the Internet.

For more details visit https://cis-india.org/openness/english-and-telugu-wikipedia-edit-a-thon-in-hyderabad

CODE Session

praskrishna — 2016-01-13T13:39:43Z

CODE Project is an IDRC funded project, and CIS is a partner institution, along with PIJIP at American University Washington College of Law, USA, Karisma Foundation, Colombia, Derechos Digitale, Chile, American Assembly, Columbia University, USA and FGV, Rio.

At this session held in New Delhi on December 17, 2015, CIS presented some preliminary research and sought input on methodology as well as content. The project broadly studies law and policy environment that facilitates/hinders content creation online in Brazil, US, India, Colombia and Chile. A second part of the project, led by PIJIP is developing a copyright index, to chart copyright law developments in many countries around the world. Nehaa Chaudhari and Anubha Sinha participated in the open session.

For more details visit https://cis-india.org/a2k/news/code-session

GCIP15 Day 2: Fixing the problems in Trade Negotiations

Kartik Chawla — 2015-12-17T16:37:23Z

This post documents the interesting discussions that took place in the Trade Negotiations Panel at day 2 of the GCIP 2015.

The post was published by SpicyIP on December 17, 2015. The panel was conducted under the Chatham House rules, and hence no attribution has been made for the content herein.

One of the oft-repeated propositions in various panels in the GCIP, and even outside it, has been that the international trade negotiation process, particularly those leading up to agreements like the Trans-Pacific Partnership (‘TPP’), are broken. They are broken in many ways – they are overbroad, undemocratic, negotiated in secrecy, the list goes on. The theme discussed by this Panel was therefore how can the civil society fix this? (Check our Twitter feed for some of the most interesting bits of the conversation!). The behemoth of trade negotiations has, from the ACTA days, grown even bigger, and this conversation is part of figuring out how to deal with it.

Trade agreements, their name would imply, should deal with ‘trade’. But the first speaker noted that international trade negotiations nowadays involve far more than ‘trade’ alone. They spread into issues we would rarely have associated with ‘trade’ earlier, with new – and surprising – issues being included in every new trade agreement that comes to light. Moreover, trade agreements and their negotiations are becoming less inclusive, with their negotiation processes being shrouded in increasing levels of confidentiality.

The speaker attributes these failures of international trade negotiations to multiple causes, at both the domestic and geopolitical levels. The national level causes include the disconnection between trade agencies from other countries, a tendency to mission creep, revolving door policies and policy laundering. At the global level, causes include post-War architectures of global governance and international negotiations, the limitations of the options available to the US due to the actions of BRICS.

The speaker proposed multiple ideas to deal with these issues, including using governments’ own documents, statements, and promises, and holding them accountable when they breach these promises with trade agreements, or the creation of international standards to regulate such activities. The standards under the latter could require higher transparency and institute standards for participation in negotiation, or could be addressed in a white paper detailing the problems with trade negotiations. Other recommendations along this line included tabling alternative proposals for global rulemaking from organisations such as the IGF, human right impact assessments of trade agreements, and non-binding human rights based recommendations.

The most interesting idea, though, was that of ‘Idea Rating Sheets’, to be used to propose, comment on, and of course ‘rate’ ideas to facilitate collaboration among civil society participants.

Finally, the speaker argued that the civil society cannot deal with this issue alone, but needs the support of authoritative global institutions. The civil society has the tools it needs, but needs to apply them in effective ways.

Taking the point forward, the second speaker noted aptly the movement from the awe at the ‘democratising’ effect of the internet that captured the world’s imagination early in its life to today, where we create ‘artificial barriers’ in access to information on the internet. This, I would note, ironically results in position where the internet was more conducive to providing information to more people when it had far less information and was far less pervasive than than it is today.

The speaker called the TPP a sophisticated method of blocking and criminalising ‘access’ at all levels. If you’re on the list of the limited negotiators that pluri-lateral treaties have nowadays, it is negotiated with the mindset of ‘if you sign this agreement, you can gain all of ‘this’’, but if you don’t sign or if you aren’t on the list, you will suffer.

Secrecy of Negotiations

And these negotiations are, of course, secret. This ‘secrecy by default’ issue puts civil society in a weaker position, with big gaps in the information that they receive. On the issue of secrecy, the speaker raised some very interesting questions. Specifically, how limited is the civil society’s access that not only can we not access the proceedings, but even what the negotiators are basing their positions on? Moreover, how does a trade negotiator has more access than the Parliament itself? Where are the checks and balances on the Executive here? And while secrecy seems to be paramount, corporations do have access.

The next speaker, in very crucial contrast, spoke of why it is that negotiators engage in such secrecy. The speaker first pointed out that some documents as old as even the Uruguay rounds are still kept confidential, even though they are stored on obsolete media and are possibly being corrupted.

The speaker stated that international trade negotiations are different from other negotiations on one crucial count – these negotiations, more than the others, are about dollars and cents. If a State has everything to lose and nothing to gain, it will simply walk away. But, clearly, they stay because they have enough to gain. Moreover, reaching a consesus is really very, very difficult – and ‘consensus’ is a requirement for WTO agreements. Every country in a negotiation has some bottom line/red line that they won’t cross, and they, of course, don’t want to show them, just as in a game of poker. So, the speaker explains, secrecy becomes paramount.

Interestingly enough, it was pointed out that this secrecy is actually more important for smaller countries, as while you can kind of guess the bottom lines with the US or the EU, the red liens of smaller players are unpredictable.

Thus, and this was widened to cover all negotiations, while live, transparent coverage of such negotiations might be ideal from the perspective of the civil society, that is not going to happen. Most of the time, simply because the governments don’t want you to see what they’re doing, and negotiations become much more difficult if they’re open for everyone to comment on.

Whom Should Civil Society Target?

The speaker stated that the best way out for civil society would be to influence the key players, the few governments who actually make a difference, who can and will take as stand. In a democracy, that should be entirely possible.

This, however, was highly contested in the discussion following the panel. The example of WIPO was brought up in this context, with a speaker noting that even though it started off as a closed, hostile organisation, it is now one of the most open, transparent organisations we have.

It was also argued that for a good negotiator, transparency is key, even though they don’t share what their final decision or thoughts on the topic are. Countering the speakers argument, it was stated while it’s true that everybody sits to gain something, it’s not necessary that they sit down to gain what they are supposed to gain – which might be the cause for the lack of transparency.

The next speakers stated that in order to influence trade negotiations at all, you absolutely and persistently have to be there, have to be present. The modus operandi of the industry is that comes with lots of reports, numbers – their approach is not necessarily right, but it is appealing. Plus, as was discussed in the questions sessions, the ease-of-access of visual aids means that they are taken up quickly by multiple people engaged with the process, and slowly become ubiquitous. As compared to that, for the civil society, you raise your concerns once, twice, but then you don’t have anything new, and the people you are trying to convince lose interest. And that is what the civil society has to learn to compete with. Finally, the speaker noted – very validly, if I might add – that FTAs are the reality of international rulemaking, and we have to find a way to live with that.

Need to Obtain Relevant Information

The final speaker disagreed with the previous speaker to a certain extent, stating that the solution lies in remote monitoring of activities and crowdsourcing movements. The speaker noted that the civil society is usually called in at 4AM, after the deals are made and the fat cats are fed.

The second speaker stated that we need to figure start by asking the right questions – ‘who (is involved), when (is any event happening, to prepare in advance), what are their interests?’, and so on. The speaker recommended that we map relations beyond trade talks alone, involving journalists, coordinating regionally. The street-level politics that worked with ACTA are no longer enough – we need to overwhelm the systems of the government and negotiators and ask them about all the information that we can.

Moreover, the speaker stressed the importance and necessity of whistleblowers, noting that the few things we know and the scandals that have been caused have been caused by whistleblowers. When there is a leak, a journalism-friendly report should be released within 24 hours. Finally, the speaker stressed the idea of strategic and creative litigation to bring these issue up in the Courts.

In the final discussions, the participants noted the importance of multiple levels of awareness and engagement. One participant specifically noted that it is important to engage with parliamentarians and legislators – but we must first figure out who has the right levels of access – and journalists.

For more details visit https://cis-india.org/a2k/blogs/gcip15-day-2-fixing-the-problems-in-trade-negotiations

GCIP Day 1 Session 3: Challenges in Re-Articulating Public Interest

Spadika Jayaraj — 2015-12-17T16:13:03Z

At the third plenary session of GCIP15, the discussion revolved around challenges in re-articulating ‘public interest’ dimension in IP law and policy.

This post is part of SpicyIP’s coverage of the Fourth Global Congress on Intellectual Property and the Public Interest.

At the third plenary session of GCIP15, the discussion revolved around challenges in re-articulating ‘public interest’ dimension in IP law and policy. The session saw an eclectic mix of speakers addressing the public interest question from various perspectives- such as copyright, human rights, international law and trade law.

Making Technology Accessible in Indian Languages

The first speaker was Venkatesh Hariharan, Director of Alchemy Business Solutions LLP and a Board Member of Software Freedom Law Center, who discussed open source policy in the Indian context. He spoke about activists’ negotiation with the Government of India to adopt open source as far as possible, to deal with India’s unique demographic of a large population which converses in hundreds of different languages. He ended on the note that while some significant battles have been won in the open source and software patents fronts, there is still a long way to go in making computers and the internet accessible to the 900 million people in India who are not conversant in English.

IP and Public Interest as Yin and Yang

The next speaker was Chunyang Wang, from Peking University. She outlined the development of IP expansion in China, and how it closely followed liberalization and the policy move to attract foreign investment. She then drew upon the conception of Yin and Yang, and compared it to the balance between IP protection and openness.

A BRICs FTA?

Anand Grover, Senior Advocate, then addressed the audience on two developments that affect the public interest in patent law in India- Product Patents and the rise in Free Trade Agreements and Bilateral Investment Treaties. He stressed on how it is important to drive home the point to governments that product patents in pharmaceuticals will lead to exorbitant monopoly pricing, while process patents will lead to relative competition. With respect to Free Trade Agreements, he outlined how having private dispute settlement measures built into FTAs and BITs is a “sinister objective” as it leads to private, opaque, unaccountable arbitration fora deciding matters of public importance such as access to medicines. To counter this development, he proposed a BRICS FTA, which will allow developing countries like India to have more leverage in trade and investment.

TRIPS Flexibilities is the Beginning, not the End Goal

Lisa Forman, a human rights lawyer spoke about the simultaneous proliferation of Human Rights instruments and constitutionalisation of health rights domestically and internationally, and the expansion of TRIPS-plus standards imposed through FTAs, etc. She noted that the former phenomenon means that activists and academics have more tools at their disposal to counter the latter phenomenon. She ended by remarking that narrowly-defined TRIPS flexibilities and exceptions is not the best case scenario, but a losing one. The more we focus on these exceptions, she said, the more we normalize existing norms.

Merging the ‘Independent silos’ of IPR and Human Rights

Justice Ravindra Bhat of the Delhi High Court ended the session with a thorough analysis of access to medicines in International Law. He drew upon the UDHR and the ICESCR and how they are viewed as “independent silos of rights” when compared to IPR. He said that the challenge in the future is to integrate the two sets of rights and read them harmoniously. He also explained provisions from the Vienna Convention on Law of Treaties and cases before the ICJ to emphasise his point.

For more details visit https://cis-india.org/a2k/blogs/gcip-day-1-session-3-challenges-in-re-articulating-public-interest

GCIP2015: Notes from the Inaugural Session

Spadika Jayaraj — 2015-12-17T15:54:31Z

The 2015 Global Congress on IP and the Public Interest kicked off with its inaugural plenary session, on 14th December, 2015. With over 400 registered participants, ranging from established academics to activists to students gathered in the auditorium in National Law University, Delhi, Phet Sayo, a Senior Fellow at IDRC and a panelist at the session rightly observed that if a bomb were to go off at this venue, "there goes IP activism".

The story first appeared in Spicy IP on December 14, 2015. Click here to view this post on SpicyIP and leave a comment.

The inaugural session began with Dr. Ranbir Singh, the Vice-Chancellor of NLU-Delhi addressing the audience about NLU-D's meteoric rise in the field of legal education in India. This was followed by Phet Sayo's humorous and thought-provoking address on the importance of data in today's world- he remarked that in some cases, data and meta-data about material objects is attached more value than the objects themselves.

The session then saw Mr. Sean Flynn neatly summarising the history of public interest in the realm of IP, and how the Global Congress tied into this movement. He traced the predecessors of the Global Congress to the Bellagio Global Dialogues and the Doha Declaration meetings, both of which saw a similar confluence of minds devoted to discussing how IP can serve the public interest. He also mentioned how the Public Interest movement of the 90's and early 2000's led to a counter-movement in which ACTA and the larger enforcement agenda gained prominence. With this, he urged the attendees of the Global Congress to learn from each other and reorient their energies towards a positive agenda focusing on IP and Public Interest.

The next speaker was Professor Michael Geist from the University of Ottawa, who began by remarking that the new government in Canada appears to have ushered in a new era of openness and transparency, with the Ministerial Mandate Letters being released into the public domain. At the same time, he highlighted the proliferation of IP into other realms of law and policy with the TRIPS and the TPP being the most prominent examples of this proliferation. He pointed out the ramifications of this- that IP is now being framed and shaped in realms such as trade, privacy and internet governance. The challenge for the next twenty years, he urged, is for civil society to keep up and adapt to this change. Hong Xue, Director of the Institute for Internet Policy and Law at Beijing Normal University (BNU) expanded on this theme, highlighting the backsliding of Open Access norms with developments in international trade. With the growth of giant, cross-border ecommerce entities like Alibaba, multilateral trade treaties are attempting to normalise IP maximalism. Provisions such as Art. 60 of TRIPS, the de minimis exception, are being brushed under the carpet in this wave.

Zakir Thomas then debunked some popular IP narratives- the first being that stronger IP protection is necessary for investment in a country and the second being that copyright protection is necessary for content creation. With respect to the first, he highlighted the (underplayed) role of public funding in pharmaceutical R&D, and the various economic and other reasons unrelated to innovation that motivate the actions of Big Pharma. With respect to copyright, he spoke of social media and the open source movement. The takeaway from his address was that innovation happens in a complex environment with several stakeholders- the "one line approach" advocated by popular narratives should be regarded carefully for this reason.

The final address was by Nagla Rizk, founding director of the Access to Knowledge for Development Center in Cairo on the different normative conceptions of openness and how the tensions between different conceptions can reflect in growth paradigms. She especially pointed to how the economic growth rhetoric adopted by several national governments ignore the intricacies in open policies. She remarked that we need to examine how openness can aid the public interest by paying attention to the context and realities on the ground.

For more details visit https://cis-india.org/a2k/blogs/gcip2015-notes-from-the-inaugural-session

Press Release: Users’ rights and interests should be balanced with those of IP rights-holders: Global Congress

geetha — 2015-12-17T08:40:05Z

The Global Congress on Intellectual Property and Public Interest is being held at the National Law University, Delhi, on 15-17 December 2015. The global event is jointly organized by CIS, NLU Delhi, Open A.I.R., CREATe, Columbia University and American University. Below is the Press Release from Day 2 of the Global Congress.

Press Release

16 December 2015

Users’ rights and interests should be balanced with those of IP rights-holders

Today, on the 2^nd day of the Global Congress on Intellectual Property and Public Interest at NLU-Delhi, a range of issues were discussed across the parallel tracks. The Access to Medicines track opened with a keynote address by the honourable Justice Kirby, former judge of the High Court of Australia and current member of the UN Secretary General’s High Level Panel on Access to Medicines. The Openness track saw discussions on collaborative innovation, the future of openness and access to education, along with cross-sectoral perspectives on openness.

In the Intellectual Property and Development track, the discussions centred around the intersection of traditional knowledge, geographical indicators and indigenous rights, on agriculture and plant varieties with specific references to the Indian position, and an exploration of the global South’s research networks on IP, innovation and development. The track focused on a range of themes, including the development issues that arise from varying approaches to intellectual property, i.e., closed or open approaches, depending on the limitations placed on the sharing and use of knowledge produced with public funding.

The User Rights track is closely aligned with openness. Today, the track explored issues of copyright reform and digital democracy, along with concerns of increasing propertisation of data. A discussion around trade agreements and their impact and enforcement on copyright and the Internet allied with the above sessions.

Speakers shared their views on a variety of issues:

Access to Medicines

Justice Michael Kirby, former judge of the High Court of Australia and its longest serving judge, spoke on the changing challenges in the ‘access to medicine’ movement. There has been a sea change in the access to anti-retroviral drugs, he said, but also increasing challenges.

“The key question in access to medicines is this: How do you provide just returns for inventors, while at the same time respecting the universal right to essential healthcare? Developing states like India are increasingly at risk. In 2001, the UN Special Rapporteur on Access to Medicines expressed his concern about the fact that TRIPS flexibilities open to developing states are rarely used. This concern is deepening with the trend of United States, Japan Switzerland and other European countries convincing poorer states to give up their TRIPS exceptions and flexibilities.”

Anand Grover of Lawyers Collective was concerned that intellectual property is not delivering on its stated objectives, particularly in developed states.

“It is important,” he said, “to keep checking whether objectives are met through the patent system. Earlier, generic manufacturers were keen to employ a strategy that invited conflict from patent-holders and pharmaceutical companies. But increasingly, their strategies are backfiring; courts are leaning towards granting injunctions against generic manufacturers. This is a real concern.”

Shiba Phurailatpam of the Asia-Pacific Network of People living with HIV/AIDS spoke of the increasingly dismal scenario of access to affordable medicines in middle-income countries:

“Multinational companies are using World Bank classifications of GDP to deny affordable medicines to millions in the developing world. With the profits they are making in these countries, they then lobby their governments to push TRIPS-plus measures in our countries through FTAs and bilateral pressure. Meanwhile they are also entering into restrictive voluntary licenses with key Indian generic companies that exclude middle-income countries. 20 years of TRIPS has only strengthened pharmaceutical corporate power over the lives and health of patients. If we are serious about universal health care the monopolies on medicines have to end.”

Openness

“The digital environment cannot be developed without an important agenda on open policy and copyright reforms,” said Carolina Botero of the Karisma Foundation.

Lawrence Liang, legal researcher and expert on the practice and ethics of intellectual property and openness, said,

“Over the past decade and a half, the language of openness and ‘Access to Knowledge’ has emerged as an important counter to the dominant proprietary and protectionist approach of the global IP regime. By shifting the focus from proprietary systems to open ones, and from control to equitable access, the openness frame has created a political and ethical language with which people could redress the harmful effects of strong IP regimes. Open systems of knowledge production and dissemination such as Wikipedia and Open Access journals could play a key role in helping developing countries gain access to learning materials and knowledge which are locked into expensive databases. In that sense openness is an important political strategy to address questions of equity and distributive justice in the information era.”

Alek Tarkowski, Director of Centrum Cyfrowe Projekt in Poland, concurred,

“Open licensing models and modern copyright rules are complementary from the perspective of ensuring freedom of education."

Mishi Choudhary, Executive Director of SFLC.in, said that

“The government of India is right in embracing Free and Open Source Software, and in encouraging free sharing enabled by the suite of Creative Commons licences. It is crucial to understand that intellectual property is not an end in itself. The 21^st century needs innovation policy and collaborative innovation, not IP maximalism.”

Intellectual Property and Development

K.M. Gopakumar, legal advisor and senior researcher at Third World Network, said,

“The current IP regime prioritises the rights of intellectual property-holders without addressing development needs. A change in this status quo is the need of the hour. There is an urgent need for governments, specially in developing countries, to interrogate the international IP regime to achieve sustainable development goals, instead of simply following the propaganda of transnational corporations and their home governments.”

Lucienne Abrahams, Director of the LINK Centre for Digital Transformation in South Africa, argued that,

“Innovation to produce more effective medicines for dread diseases and pandemics, to produce clean technologies, and digital technologies, in the high technology hubs forming across the African continent, the Asian continent and other developing regions of the world, requires open innovation approaches to keep up with the demand of more than 4 billion people for new technologies to enhance quality of life and to address conditions of dire poverty. Patents and copyright provide too meager opportunities for development-oriented innovation.”

User Rights

Claudio Ruiz of Derechos Digitales spoke of the need for greater engagement between advocates and scholars towards openness:

“There needs to be a better connection between advocates and scholars towards openness, and therefore, develop a better Intellectual Property regime, especially for developing countries. The Users Rights track at the Global Congress is a great gathering to connect those worlds and therefore to fill the existent gaps in terms of research and advocacy.

“One of the most important challenges we are facing today is to fight existing narratives on intellectual property. Today, these are considered the only way to enhance and protect creation of content and culture. But new developments, especially those connected with technology and the Internet, are a huge opportunity to create new narratives around this topic and to create a safer space for users around the world who are seen today as pirates and copyright infringers. The last 40 years’ of international regulation on copyright has been mainly driven by private interest of copyright owners, the users and the general public being alien to these discussions. The development of the Internet today creates a great opportunity to connect users and the general public with the international regulation of copyright. Copyright regulation is not just about content owners, but about access to knowledge and information for everyone. That implies the need to address public interest as the main topic and not as a marginal one.”

“One of the most important issues for India and for the world today,” said Prabir Purkayastha of the Knowledge Commons Collective, “is the question of data rights. The world is grappling with these. The Internet economy today is based on converting personal information into private property. Data rights are critical from the perspective of privacy, and also whether data rights should constitute property rights.”

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Photographs of the speakers can be found at this link: https://drive.google.com/folderview?id=0B60BN7sFZRQFSzNFSERkTmtrcEE&usp=sharing.

For more information, please contact me at geetha@cis-india.org.

For more details visit https://cis-india.org/a2k/blogs/press-release-users2019-rights-and-interests-should-be-balanced-with-those-of-ip-rights-holders-global-congress

Press Release: Medicines should not bankrupt patients or public health systems: Access to medicines at the Global Congress

geetha — 2015-12-17T08:33:54Z

PRESS RELEASE
DECEMBER 15, 2015: DAY 1

Medicines should not bankrupt patients or public health systems: Access to medicines at the Global Congress

No wealth? No health, then!

Today, on the 2nd day of the Global Congress on Intellectual Property and Public Interest, access to medicines has been a crucial theme. All the more so, since the UN Secretary General’s High Level Panel on Access to Medicines had its first meeting on December 11, 2015. At a critical crossroads for access to medicines, we are delighted to welcome Justice Michael Kirby, former justice of the High Court of Australia and a member of the High Level Panel, as a keynote speaker at the Global Congress. Justice Kirby will be speaking on 16 December 2015, the 3rd day of the Congress.

On day 1, reflecting on the critical questions in the ‘access to medicines’ movement, Matt Kavanagh of HealthGAP and University of Pennsylvania, said,
“In high-, middle- and low-income countries, people are going without access to new medicines for many disease areas including HIV, hepatitis C and cancer. This is because a year’s worth of meds can cost many times more than a year’s salary. This is driven by an IP system that is out of sync with the needs of the people. We are now seeing a global reckoning of how to reign in maximalist rights for intellectual property holders in favour of models that balance innovation, health and access.”

Dr. Germán Velásquez, Special Advisor for Health and Development at South Centre, agreed that,
“There has been a total failure in the model involving pharmaceutical patents. This is both an important problem and there is an urgent need to find alternatives to the patent system. The issue,” he said, “is the lack of an international authority. The World Health Organization no longer has teeth. What we need is a binding international treaty to tackle this crisis. Developed countries argue against this by claiming it will be financially burdensome for them, but a successful treaty on medical R&D would lead to better and more affordable medicines for everyone.”

Judit Rius of Médecins Sans Frontiéres concurred,
“There is ample evidence that the current intellectual property system has failed not only to deliver innovation, but also access. Prices of medicines are rising globally. The threats are more dire than ever with the Trans-Pacific Partnership (TPP). It contains a very aggressive and dangerous IP-maximising agenda that will endanger access to medicines and increase drug prices for the whole of the ASEAN region, and potentially at the global level. Not only this, but India is under immense pressure to abandon the public health safeguards that have made it the ‘pharmacy of the developing world’. We should be looking for global solutions, and for that, India is critical and this Congress is pertinently timed.”

The TPP and its IP-maximising agenda weigh heavy on the minds of many experts. James Love, Director of Knowledge Ecology International (KEI), a human rights group that works on intellectual property rights and innovation, said,
“Trade agreements that expand and extend drug monopolies create policy-induced inequality in health. Governments need to resist measures that increase drug prices, but also fashion alternative frameworks for financing innovation, based upon the delinkage of R&D costs from drug prices."

The TPP is imposing US-centric standards on the rest of the world, said Burcu Kilic, Legal and Policy Director for Public Citizen’s Global Access to Medicines Program.
“Being here and discussing 20 years’ of TRIPS, it becomes clear that the intellectual property agenda has changed a lot. Today, we discuss not only TRIPS, but also the TPP, which is a ‘made-in-America’ agreement regulating IP. It seeks to introduce what it calls “21st century high standards”, but the evidence is clear that those higher standards on IP will result in lower standards of health and reduced access to medicines.”

Dr. Susan K. Sell, intellectual property expert and Professor of Political Science and International Affairs at George Washington University, spoke of dangerous trends in access to medicines.
“The rise of investor-state dispute mechanisms is the ‘camel’s nose inside the tent’ in access to medicine,” said Dr. Sell. “The Eli Lilly case in Canada is important to IP rights-holders. They are trying to use a non-transparent channel to get public health rules struck down.”

Anand Grover of Lawyers Collective said, “Inter-state dispute resolution systems under BITs are private, non-transparent entities which are taking decisions that impact health and welfare.” Also, “product patents lead to monopoly and exorbitant prices, and process patents lead to relative competition. This is a message that is being lost in a lot of governments, including ours.”

Dr. Amit Sengupta of the Delhi Science Forum offered his views on the impact on India. “At the moment, there are principal shifts in public policy in India, with impacts on the generic drugs industry. The ‘pharmacy of the global South’ is under threat,” said Dr. Sengupta, “and this affects not only India, but also those in need in other states as well. The Global Congress is very relevant, in that we perceive India under pressure to ensure patent protection, while other states move towards emulating India’s health safeguards.”

*

Please find photographs of some of the quoted speakers in this folder:
https://drive.google.com/folderview?id=0B60BN7sFZRQFVGtZWDQ3c25MbDg&usp=sharing.

For further information, please contact:
Matthew Kavanagh: mkav@sas.upenn.edu
Burcu Kilic: bkilic@citizen.org
Geetha Hariharan: geetha@cis-india.org

For more details visit https://cis-india.org/a2k/blogs/press-release-medicines-should-not-bankrupt-patients-or-public-health-systems-access-to-medicines-at-the-global-congress

Seminar on Open Access in Research Area: A Strategic Approach

sumandro — 2015-12-22T05:37:44Z

The Energy and Resources Institute (TERI), Delhi, is organising a seminar on open access in research on Tuesday, December 22, 2015. The seminar will focus on: 1) wider access to scientific publications and research data, 2) access to scientific information, and 3) challenges and opportunities of research data. The Centre for Internet and Society is supporting the event as a Knowledge Partner.

Background

Open Access has become central importance to advancing the interests of researchers, scholars, students, business, and the public as well as librarians. Increasingly, research institutions require researchers to publish articles that report research findings openly accessible in open domain.

Open Access pursues to yield scholarly publishing to spread knowledge and allow that knowledge to be built upon. Price barriers should not stop researchers from getting access to research data. Open Access, and the open availability and search ability of scholarly research that it entails, will have a significant positive impact on everything from education to the research practice in various fields.

To explore why Open Access is so important to a number of groups, TERI Library along with The Centre for Internet & Society (CIS) as Knowledge Partner is organizing a half day seminar on Open Access in Research Areas: a Strategic Approach on December 22, 2015 at TERI Seminar Hall, IHC, Lodhi Road, New Delhi.

The Seminar will focus on:

wider access to scientific publications and research data
access to scientific information, and
challenges and opportunities of research data.

Schedule

No registration is required to attend the seminar. Seats are limited, and will be provided on first-come-first-served basis.

13:45 - 14:00		Registration and Networking
14:00 - 14:10		Welcome Address - Mr. Prabir Sengupta, Distinguished Fellow and Director, Knowledge Management Division, TERI
14:10 - 14:20		Special Address - Sumandro Chattapadhyay, Research Director, The Centre for Internet and Society
14:20 - 14:35		Keynote Address - Dr. K.R. Murali Mohan, Advisor, Big Data Initiatives Division, Department of Science and Technology
14:35 - 14:50		Inaugural Address - Dr. Chandrima Shaha, Director, National Institute of Immunology, New Delhi
14:50 - 15:00		Setting the Theme and Vote of Thanks - Dr. P.K. Bhattacharya, Fellow and Area Convenor, Knowledge Management Division, TERI
15:00 - 15:30		Tea and Refreshments
15:30 - 17:15		Plenary Session Chair: Dr. Ramesh Sharma, Director, CEMCA Puneet Kishor, Researcher and Independent Consultant - "Science, Data, and Creative Commons" Dr. Beth Sandore Namachchivaya, Associate Dean of Libraries and Professor University of Illinois - "Developing Services, Infrastructure, and Best Practices to Conserve and Provide Access to Research Data: Challenges and Opportunities" Dr. Usha Mujoo Munshi, Librarian, Indian institute of Public Administration

For more details visit https://cis-india.org/openness/teri-seminar-on-open-access-in-research

Leading Up To The GCIP: A Chat With Jayashree Watal

Job Michael Mathew — 2016-01-31T09:00:56Z

The fifth discussion in our pre-GCIP discussion series is with Jayashree Watal.

The blog post was published on the Global Congress page on December 15, 2015.

Profile: Jayashree Watal has been Counsellor in the Intellectual Property Division of the World Trade Organization since February 2001. She worked in the Ministry of Commerce of the Government of India as Director, Trade Policy Division, New Delhi (1995–1998). She represented India at a crucial stage in the Uruguay Round TRIPS negotiations from 1989–1990.

JMM: One of the major reasons for developing countries agreeing to the TRIPS agreement was the incorporation of Articles 7 and 8 which allow countries certain flexibilities in enforcing obligations under the agreement. Two decades since the beginning of TRIPS many if not most developing countries have not been able to take full advantage of these flexibilities. What explains this gap between the text of the agreement and its practical application?

JW: There were several reasons for developing countries like India agreeing to the TRIPS Agreement. Firstly, TRIPS contains policy options, including through exceptions and limitations to IPRs, that allow WTO members to take measures to protect public interest, for example through compulsory licences and parallel imports. Secondly, not accepting TRIPS would have meant leaving the multilateral trading system and facing unilateral action – a price considered by many countries to be too high given that the final agreement was fairly balanced and that there were trade benefits to be obtained especially in textiles and agriculture. Thirdly, many of these countries were already TRIPS compliant with the exception of a limited number of provisions. At the same time, many were already responding to contemporary geopolitical changes by unilaterally liberalizing their trade and investment policies; maintaining certain minimum IPR standards without compromising vital public interest went in the same direction.

The perspective of some twenty years ago has hence changed and TRIPS has come into focus as a reasonably flexible framework rather than the highly restrictive constraint on domestic policymaking and pre-emption of policy options that some feared. Experience has shown that developing countries have been able to work within the TRIPS framework in diverse ways interpreting and applying TRIPS standards, and framing their IP laws and policies, in diverse ways that are tailored to their national interests and domestic circumstances. Articles 7 and 8 of the TRIPS Agreement are indeed important benchmarks for policymakers taking account of public policy when framing and implementing IP laws and policies, but the practical experience we can now survey from countries across the globe in applying specific TRIPS provisions offers concrete insights into the constructive way the general standards of the agreement are adapted and implemented to take account of changing policy needs, and other social, economic and technological changes. Empirical surveys such as the useful work done by the WIPO Secretariat in reporting to the WIPO Committee on Development and Intellectual Property on the use of patent-related flexibilities not only show the extent of flexibilities implemented, but potentially serve as a factual basis for constructive dialogue and mutual learning about contemporary trends in IP policymaking in the developing world within the TRIPS framework. See http://www.wipo.int/ip-development/en/agenda/flexibilities/search.jsp

JMM: The TRIPS Agreement was an example of consensus based multilateral norm setting on intellectual property. Two decades since TRIPS, multilateral norm setting on intellectual property is at a standstill and regional and bilateral avenues which certain commentators have called ‘power based’ as opposed to ‘rule based’ are setting norms on IP. How do you think a change in forum from multilateral to bilateral or plurilateral affects the negotiating power of developing country negotiators? Further can you shed some light on the additional challenges negotiators from developing countries faced during the TRIPS negotiations on account of the politically sensitive nature of intellectual property negotiations considering its impact on access to medicine etc?

JW: It is worth bearing in mind that the genesis of the TRIPS negotiations can be found, at least in part, in the desire of many countries – including developed countries – to find a more transparent, rules-based approach to dealing with inevitable bilateral disagreements over the trade dimension of IP: the preamble of TRIPS refers to the reduction of tensions through multilateral resolution of disputes. This background lies behind the consensus to conclude an agreement on TRIPS. Equally, though, the TRIPS negotiations illustrated how developing countries can benefit in trade negotiations from strong coalitions among themselves, coalitions that can also bridge across the traditional north-south divide. , A broader base of support and engagement in multilateral settings can offset the more narrowly defined targets of demandeurs in the negotiations. This can happen in a multilateral context or even in a plurilateral context. This more inclusive approach is less likely by definition in a bilateral trade negotiation. A recent WTO publication The Making of the TRIPS Agreement is available for free download chapter by chapter at https://www.wto.org/english/res_e/publications_e/trips_agree_e.htm . There are many chapters authored by developing country negotiators that discuss exactly these considerations.

JMM: In the context of a number of trade agreements involving intellectual property chapters negotiated in secret, what are the pros and cons of conducting open negotiations?

JW: In any negotiation process with significant issues at stake, there are competing considerations of transparency and inclusion, and managing the dynamics of negotiations. Reaching consensus in a multilateral or plurilateral negotiation, irrespective of forum or subject, is very difficult. It is even more so when each party's "bottom lines" or "red lines" are known to other parties, and the actual progress of negotiations is entirely open to immediate debate and analysis. Compromises and understandings that have to be made to progress any negotiation become more difficult if the entire process is open to all to observe. It is hard to prescribe the correct way of addressing this balance for each and every trade negotiation, and to determine the best mechanism for transparency and consultation that should apply in each case. As a general observation, however, it does behove negotiators and those instructing them, to ensure a good degree of transparency and a broad base of consultation, not least because this will build understanding and acceptance of the ultimate negotiated outcome.

JMM: What role can multilateral institutions such as WTO and WIPO play in the context of intellectual property negotiations moving to bilateral or plurilateral forums?

JW: The range and complexity of recent intellectual property norm-setting in bilateral and regional forums is unprecedented. Setting aside the question of the perceived virtues and shortcomings of this approach, there is unquestionably a common challenge in developing a comprehensive overview of the cumulative effect of several hundred new treaties dealing with IP norms, and the overall trends that can be discerned. Considering the role of the WTO, while WTO Members are clearly entitled to enter into regional trade agreements (RTAs, also known as free trade agreements or preferential trade agreements)subject to the conditions laid down in the multilateral trade agreements, the WTO system provides for transparency and review of their provisions. This work is actively undertaken in the Committee on RTAs; the WTO Trade Policy Review Mechanism has also produced valuable information on RTAs and similar agreements with IP standards. The TRIPS Council has from time to time had bilateral and plurilateral norm setting questions on its agenda. WTO is a member-driven organization and members continue to debate on how to respond to the overall trend towards bilateral and plurilateral norm setting, and its implications for the multilateral system. Among analysts, some maintain FTAs can serve as building blocks for further multilateral trade liberalization. Other analysts question the continuing effectiveness of a "single undertaking" approach to multilateral negotiations, and advocate pre- Uruguay Round type plurilateral agreements.

JMM: The years since the TRIPS have seen a changing landscape of innovation in the fields of biotechnology, computer technology etc. Do these changes necessitate a revision of the TRIPS agreement or can the flexibilities in the agreement take care of such changes?

JW: TRIPS is a minimum standards agreement and provides a balanced framework that can accommodate the evolving technological landscape. An example would be the revolutionary developments in biotechnology that have occurred in the past two decades: WTO Members, through policy processes, legislation, and court decisions, have dealt with the implications of these developments in flexible ways within the established TRIPS framework. The TRIPS negotiations took place at a time when the internet was largely unknown and in the meantime, digital technology has revolutionised not only copyright but the way in which much creative content is distributed and traded. The WIPO Internet Treaties of 1996 represented a multilateral step forward taking account of digital technologies in a manner consciously consistent with TRIPS. Since that time, there has been a great deal of norm-setting in this area in bilateral negotiations and more recently in plurilateral processes. It is for the international community to take collective stock of these developments, although there is currently no apparent momentum. The TRIPS Agreement does contain provision for reviews "in the light of any relevant new developments” which might “warrant modification or amendment” of the Agreement. However, there are no proposals tabled by WTO Members at present under this provision.

[1] Jayashree Watal has researched and published articles on issues related to the law and economics of intellectual property rights, including a book Intellectual Property Rights in the WTO and Developing Countries (Oxford University Press, India and Kluwer Law International, 2001). She was the editor of the book ‘The Making of the TRIPS Agreement’ which details the negotiating process of the agreement from the standpoint of the negotiators themselves.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-jayashree-watal

Press Release: India to Host 4th Global Congress on Intellectual Property and the Public Interest

geetha — 2015-12-14T09:21:01Z

The Centre for Internet and Society (CIS) is happy to announce that 4th edition of the Global Congress will be held at the National Law University, New Delhi (NLU-D) on 15-17 December 2015. The Congress is jointly organised by CIS, NLU-D, Open A.I.R., CREATe, Columbia University and American University.

In October this year, the 7-year-long negotiations leading up to the Trans-pacific Partnership (TPP) came to an end. The pluri-lateral TPP has not received the coverage it deserves; its provisions do more harm to users and developing countries than are easily spotted. For instance, the TPP has an anti-FOSS clause, which may prevent and prohibit governments like India from adopting open access and FOSS mandates in research.

This should cause public outrage. FOSS (Free and open source software), which allows users to freely use, study, adapt and modify the source code, plays a crucial role in access to knowledge and information. Many states, including India, mandate the use of FOSS in research and make open access mandatory. For instance, an IIM study says that India could save Rs. 8254 crores by implementing FOSS in schools and other institutions. But with the TPP, all this could change.

Access to knowledge is not the only sufferer. With our progressive patent regime, India is often called the pharmacy of the world. Indeed, we may go so far as to say that the poor depend on India for generic, affordable drugs. But the global story is far from India’s success. In many states, the pharmaceutical industry’s stronghanded lobbying has had drastic impacts on access to medicines. A disheartening exemplar is Martin Shkreli, the CEO of Turing Pharma and KaloBio Pharmaceuticals. To public outrage, Mr Shkreli announced an astronomic hike in the price of benznidazole, a drug commonly used in the treatment of Chagas diseas. Mr Shkreli plans to increase prices from US $50-$100 for a typical treatment, to US $60,000-100,000. What is worse: Mr Shkreli is neither the first nor the only man in the price-hike arena.

Intellectual property laws are meant to balance innovation and access, serving the interests of rights-owners and users alike. But today, global intellectual property regimes prioritise the interests of rights-owners, often neglecting the consequences on users and the general public. The result is expensive barriers to access to medicines, scientific and academic scholarship, and technologies for development.

The 4^th Global Congress on Intellectual Property and Public Interest, the first gathering in Asia of over 500 public interest-oriented intellectual property practitioners from across the world, seeks to balance users’ rights and interests with those of rights-owners. It brings together research, civil society, industry and regulatory and policy-making communities for active, intense engagement on key public-interest intellectual property issues

The Centre for Internet and Society (CIS) is happy to announce that 4^th edition of the Global Congress will be held at the National Law University, New Delhi (NLU-D) on 15-17 December 2015. The largest ever in Asia, the Congress is jointly organised by CIS, NLU-D, Open A.I.R., CREATe, Columbia University and American University.

The 4^th Congress is themed around “Three Decades of Openness; Two Decades of TRIPS” and will be organised in four parallel ‘tracks’ of (1) Openness, (2) Access to Medicines, (3) User Rights, (4) IP and Development. The Congress seeks to produce three outcomes — first, the mobilization of existing scholarly research directly into the hands of civil society advocates, business leaders and policy makers, leading to evidence-based policies and practices; second, the collaborative identification of urgent global and local research priorities towards generating joint research/advocacy agendas; and third, the solidification of an inter-disciplinary, cross-sector and global networked community of experts and practitioners focused on the public interest aspects of Access to Knowledge policy and practice.

Distinguished Speakers and Scholars

We are delighted to host a distinguished group of keynote speakers with a wide range of expertise. The Congress will open with plenary sessions featuring keynote speakers such as Prof. (Dr.) Ranbir Singh, Vice Chancellor of NLU-D, Mr. G.K. Raghavendar, Joint Secretary, Department of Industrial Policy and Promotion, Prof. (Dr.) Hong Xue, Director of the Institute for Internet Policy and Law at Beijing Normal University, Dr. Michael Geist, Canada Research Chair in Internet and E-Commerce Law at the University of Ottawa, and Dr. Nagla Rizk, Founding Director of the Access to Knowledge for Development Center (A2K4D) at the School of Business, The American University in Cairo.

Throughout the Congress, participants will break into rooms for theme-specific presentations, workshops and panel discussions. In a decentralised, democratic manner, experts in the field will curate thematic, problem-based discussions in parallel ‘tracks’ to explore content.

In an interview prior to the Congress, several experts shared their views on the burning issues in intellectual property. Sharing his views on access to medicines, Prof. Shamnad Basheer, founder of SpicyIP said, “The gap between generic interests and patient interests are widening. As a result of this, there is increasing pressure on civil society to fight the good fight and continue opposing frivolous pharma patents. Also, we need to look into the specifics and determine whether the innovation brought forth by an entity really furthers personal interests or the interests of the community or society at large. Good faith is a large part of this equation and it can help determine if what one is doing is in larger public interest or private interest.”

On the same issue, Prof. Susan Sell from George Washington University said, “There are big differences between NGOs in the access to medicine movement and pharmaceutical companies. There are many representatives of pharmaceutical firms that really believe in the morality of their position – that you need protection to innovate the next generation of drugs. They sincerely believe that the development of drought-resistant plants is something that is good for the world. So these people also make a moral claim whether or not you agree with it. The point is such claims are not purely cynical or instrumental on the part of such actors.”

Dr. Michael Geist, Law Professor at University of Ottawa commented on the movement advocating open access to scholarly and scientific literature. He raised his concerns on Article Processing Charges (APC), a model currently employed by publishers, saying, “The APC model may price open access out of the hands of many scholars. We need experimentation with different open models, recognizing the economic uncertainty of switching away from high-priced subscriptions. However, APC may entrench much of the current model and is among the least desirable (though increasingly common) publisher approaches to Open Access.”

Concurring with Dr. Geist’s statement, Mr. Zakir Thomas, an expert in the field of intellectual property rights and open source innovation, said, “Creating a national depository of open access journals which are properly cited and indexed, organized subject-wise and searchable online by all our academic institutions should be the next step. Open access is about access to knowledge. It will ensure that the work you do at your lab is now accessible by people at large.”

New at the Global Congress

The 4^th Congress comes with marked changes based on feedback from participants from the earlier editions. A Room of Scholars is planned, in which key research outputs such as advanced chapters or white papers may be presented. Another important addition will be structured Cross-Track Meetings, focusing on research cutting across tracks, so that the tracks may share learnings and research outputs, and enter into collaborative dialogue.

A ‘Youth Workshop on Intellectual Property, Public Health and Access to Medicines’ is a novel feature at this Congress. Organised at NLU-D by the Institute for Studies in Industrial Development (ISID), Peoples Health Movement (PHM) and Prayas, from 14-22 December 2015.

The detailed schedule for the Global Congress can be accessed here.

For more information regarding the Global Congress or participation, please contact our team:

Swaraj Paul Barooah, Organiser: swaraj.barooah@gmail.com
Shruthi Chandrasekaran, Organiser: shruthi.chandrasekaran@gmail.com
Geetha Hariharan, Press Officer: geetha@cis-india.org

***

About CIS

The Centre for Internet and Society (CIS, http://cis-india.org) is a non-for-profit organisation that undertakes interdisciplinary research from policy and academic perspectives on digital technologies and the Internet. Our focus areas of research include digital accessibility for persons with diverse abilities, access to knowledge, intellectual property rights, openness (including open data, free and open source software, open standards, open access, open educational resources, and open video), Internet governance, telecommunication reform, digital privacy and cyber-security. CIS’ academic wing seeks to understand the mediation and reconfiguration of social and cultural processes and structures by the Internet and digital media technologies.

For more details visit https://cis-india.org/a2k/blogs/press-release-india-to-host-4th-global-congress-on-intellectual-property-and-the-public-interest

Living in the Archival Moment

sneha-pp — 2016-06-30T05:08:22Z

An extended survey of digital initiatives in arts and humanities practices in India was undertaken during the last year. Provocatively called 'mapping digital humanities in India', this enquiry began with the term 'digital humanities' itself, as a 'found' name for which one needs to excavate some meaning, context, and location in India at the present moment. Instead of importing this term to describe practices taking place in this country - especially when the term itself is relatively unstable and undefined even in the Anglo-American context - what I chose to do was to take a few steps back, and outline a few questions/conflicts that the digital practitioners in arts and humanities disciplines are grappling with. The final report of this study will be published serially. This is the fifth among seven sections.

Sections

01. Digital Humanities in India?

02. A Question of Digital Humanities

03. Reading from a Distance – Data as Text

04. The Infrastructure Turn in the Humanities

05. Living in the Archival Moment

06. New Modes and Sites of Humanities Practice

07. Digital Humanities in India – Concluding Thoughts

In a rather delightful essay titled ‘Unpacking my Library’, Walter Benjamin (1968: 59-67) dwells upon the many nuances of the art of collecting (books in this particular case), on everything from the sometimes impulsive acquisition to the processes of careful selection and classification which go into creating a library. "Ownership is the most intimate relationship one can have with objects" (67) he says, and this becomes important given the many ways in which we can acquire books today, as well as the problems of copyright, authorship and authority over meaning and knowledge that become a bone of contention in the digital age. The collector defines the nature of the object here, because he lives in and through them. While describing the personal process that is collecting, Benjamin is also aware that it may not be a process that will last as it is - a foreboding of the age when the impulse to collect, hoard and categorise has only grown tremendously due to increased access to books owing to the internet, but also where the figure of the collector seems to have been slowly effaced, thus presenting a ‘chaos of memories’ (60) in unarranged collections spread over several hard disks instead of book shelves. The figure of the collector, and the idea of ‘ownership’ emerge as an important trope in understanding the notion of order, or rather disorder of the art of collecting in the digital space.

This figure of the collector and practice of collecting are important to our understanding of a central concept in DH - the archive - particularly as it occupies a predominant space in the imagination of the field in India, and processes of knowledge production and the history of disciplines in general. The influx of digital technologies into the archival space in the last decade has been an impetus for the large scale digitisation of material, but it has also thrown up several challenges for traditional archival practice, including the preservation of analogue material, the problems of categorising and interpreting large volumes of data, and the gradual disappearance or re-definition of the traditional figure of the collector – a concern echoed across several spaces extending from private online archival efforts to large collaborative knowledge repositories like the Wikipedia. With the questions that DH seems to have posed to traditional notions of authorship or subject expertise, the 'digital humanist', when we imagine such a person, can be seen as a reinvention of this figure of the collector - a curator of materials and traces, here of course, digital traces.

The concept of the archive has been important to knowledge production and particularly the development of academic disciplines; whether driven by concerns of the state or the impulses of the market, there have been different ways of defining and understanding the archive, not only as a documentary record of history, but as a metaphor for collective memory and remembrance which includes technology in its very imagination. One of the most elaborate formulations of the archive has been in the work of Jacques Derrida, where apart from proposing the death and preservation drives as primary to the archival impulse, he also highlights the process of archivisation, or the technical process of archive-building that shapes history and memory (1995). Michel Foucault in his concept of the archive looks at it as "a system of discursivity which establishes the possibility of what can be said," [1] thus pointing to the archive as a space not just of preservation but also production, with an impact on the process of knowledge creation. There is today a consensus, at least in its academic understanding that archives cannot be relegated to being self-contained linear spaces of objective historical record, but that archival practice itself has political implications in terms of how collective memory and history, or as indicated by Foucault, histories are preserved and retold through a process of careful selection. Disciplines themselves may therefore be seen as archives of knowledge, and one may stretch this analogy to say that they may also appear as self-contained spaces with restrictions on entry for different ways of remembering and reading. More importantly, the question of what constitutes the archive and what objects or materials may be archived reflects a larger debate about problems with the definition of disciplines and shifting disciplinary boundaries [2]. With the shift to the digital archive, new questions about access, sharing and collaboration have emerged, as illustrated by the number of new archival spaces that have emerged, and growth of expansive archives such at the Walt Whitman, Rossetti and Blake archives in the West (Drucker 2011). However, as is apparent, the conditions of access to such archives and their interpretation have not been problematised enough, if at all, particularly with respect to how they contribute to generating new kinds of knowledge or scholarship.

While DH debates in the West have focussed quite significantly on archives and the possibilities that digital collections have now opened up research and creative practice involving archival material, in the Indian context it is the 'incompleteness of the archive' that still seems to be a bone of contention. Some of the scholars and practitioners interviewed as part of this study see archive creation as one of the key questions of DH as it has emerged in India, and the possibilities and challenges that this brings to the fore, (particularly in terms of access to rare materials and extending these debates to regional languages) as something that the field will need to contend with at some point. The role of digital technologies in fostering this activity of archive-building is stressed in these debates. In an earlier monograph titled Archives and Access produced as part of CIS-RAW, Aparna Balachandran and Rochelle Pinto trace a material history of archival practice in India, specifically looking at conflicts and debates surrounding state and colonial archives, and the politics of access, preservation and digitisation (2011). The monograph also points towards in some way the move of the archive from being solely the prerogative of the state to the now within the reach of the individual, engendered by increased access to technology, and the ‘publicness’ that the visual nature of the internet fosters. However they also talk of the possibility of continuing forms of state or market control over the archive precisely through the internet and digital technologies, with the nature of individual access and use again being mediated through digitisation. Abhijeet Bhattacharya, Documentation Officer with the archives at the Centre for Studies in Social Sciences, Kolkata who was also part of the Archives and Access project, and has been part of some early conversations on DH in India, speaks about this change [3]. Even twenty years ago, it was difficult to define the archive, as it was considered the prerogative of the state, and this defined the nature of archival practice and management as well. From there it has slowly transformed into a practice that encompasses various methods of digitisation and has become increasingly personal. While digitisation may have resolved some issues of preserving content and the problems of physically accessing archives to a large extent, it may not always be the best option, as the archival or analogue material needs to be in good condition so as to make for good digitised copies, thus emphasising the need for more effective methods and better training in preservation practices. Also, as he point out, digitisation may be able to capture and preserve the content of an artifact, but not its form, which is equally important. He therefore rues the fact that even with technological advancements, there is still a lack of interest in archival practice, and often institutional mandates determine the archival agenda which may not be in the interest of generating more research and scholarship around material, as this is the only way to keep the archive alive.

The growth of private collections, which create new kinds of intellectual and nostalgic spaces, has been an important shift here, with their focus on archiving the personal and the everyday, he says, though in many instances such material may not be available for public use or consumption. While on the subject of private collections and personal narratives, Dr. C S Lakshmi, writer and academic who is director of the Mumbai-based Sound and Picture Archives for Research on Women (SPARROW) [4], has particular concerns about digitalisation making large amounts of information available for consumption online, particularly with respect to women. While digitisation is an effective tool for preservation and offers several possibilities for documentation, unmediated access is problematic and often a breach of privacy. There is so much information out there that the digital sphere makes available, sometimes this excessive communication also contributes to certain silences and obscures or makes invisible people and their stories. So very often its not a question of just making information available to people. What are you making available, how much are you making available and to whom, for what purpose - these are all important questions that contour the notion of access and need to be addressed according to Dr. Lakshmi. Curation therefore emerges as an important process. The publicness or hyper-visibility that the visual nature of the internet and digital technologies accords to the archive is seen tied to a narrative of loss here, and against the rhetoric of preservation which is still in many spaces deemed to be the primary function and imagination of the archive. What this sets up is also a conflict between the possibilities of open access and sharing of material, and concerns of privacy, and the need to find a space where both these seemingly contradictory ends meet.

The increased availability of space for data accumulation due to digital technologies contributes to a 'problem of excess', and that is where curation and building new kinds of tools come in as a critical and creative exercise. Dr. Amlan Dasgupta reiterates this opinion. He talks about the internet as fostering an 'age of altruism', where the proliferation of technological gadgets has brought about a culture of voluntarily sharing materials online. This of course challenges notions of authority and brings forth the problems of the unarranged library which Benjamin’s essay also points towards, but the archive can be used as a metaphor to understand how notions of authorship and authority are being challenged as is apparent in the DH discourse. The theory-practice divide is also something that ails this particular domain like many others; not only is there an inadequate understanding of how to access and use the archive on the part of students and researchers alike, but there is a lack of standardisation of the practice of archive management and the science itself, in terms of metadata, problems of ownership and copyright, and most importantly inadequate infrastructure, training and expertise on preservation of analogue materials. While it may not be within the ambit of DH to address all of these questions, the renewed interest in archival practice and the diversification of its modes is something is that would continue to be an integral aspect of its practice. In fact what digitisation has also led to is diversity in the modes of documentation itself, and the larger process of archiving, which has important implications for the kinds of questions one may ask within certain disciplinary formations, history being an important example. The nature of material in the archive is never quite the same, so is the manner of working with and interpreting them. Dr. Indira Chowdhury, who has been engaged with archival practice herself, and is now working on setting up oral history archives through the Centre for Public History, speaks of the changes that digital technologies have produced in studying oral history, specifically in terms of recording and interpretation of interviews. The mode of documentation, particularly the digital, adds a new layer to the manner in which the voice, sounds or even silence is recorded or interpreted. She refers to Alessandro Portelli’s work on oral history, which talks about the nuances of the sound, such as tone, volume and speed of speaking which are all bearers of meaning and can tell you so much about what the person is trying to say, but can never be fully translated into the written word.(2006, 32-42) Although there are still some basic but crucial obstacles such as with transcription, the digital space may allow for tools that help with more nuanced interpretation of recorded material, and large volumes of it; a possibility that CPH is looking into at the moment. There are several institutions in India who want to set up their archives, most of their materials include many hours of interviews, with many people at a time and transcription is a problem, because it takes time, and there is still no software to aid or completely automate this process effectively. One of the approaches of DH may be to address these knowledge gaps through critical tool-building, in terms of how one may work with different ways of reading and interpreting material using digital tools.

The digital archive is one space where many of these questions about the process of archive-creation and the separation between preservation and production that is often made in the existing discourse come into conflict, thus inflating the definition of the term much more. New technologies of publishing, the proliferation of electronic databases and growth of networks that in turn encourage production and the increasing amount of born-digital materials then present new questions for the concept of the archive and scholarship.

The role of technology has been significant in the development of the concept of the archive; in fact the archive, in its very nature would be a technological object, or a space where one can trace a history of the disciplines in relation to technology. The introduction of the digital has added yet another dimension to this question. Dr. Ravi Sundaram, Fellow at the Centre for the Study of Developing Societies and one of the co-initiators of the Sarai programme at the Centre for Developing Societies (CSDS) [5], speaks of how the advent of the digital has brought about several shifts in the imagination of the archive, which he sees as two distinct phases. Sarai was one of the early models of a concept driven, networked archive, based on a culture of 'mailing lists' that built conversations around topics which in themselves constituted the archive. The shifts came with Web 2.0 with which archiving the everyday became a possibility, given the access to inexpensive gadgets and the pervasiveness of social media. While the model of the networked, curated and public archive still has valence today, a significant next step would be to see how one can extend these questions to thinking differently about the archive, by developing new protocols for entering, sharing and circulation of material, and producing new knowledge or concepts around these ideas. This would be crucial in terms of generating research and scholarship around the archive itself as a concept, and realising the full potential of network-generated information. Another pertinent question is that of information and technology infrastructure, which is a political question as well. The investment on infrastructure for the archive is determined by different kinds of interests and will play an important role in how archival efforts will ultimately develop. As Dr. Sundaram reiterates, the point to note is that new archival efforts are not only general repositories, but critical interventions in themselves. They foster new kinds of visibilities. The Pad.ma archive [6], for example, works with existing footage and reinvents or adds new layers of meaning to it through annotations and citations. This also opens up possibilities for new kinds of questions to be asked about existing material. Private archival efforts, many initiated by individuals are also becoming more niche and specific, driven by a specific research agenda, public interest in conservation or as critical and creative interventions in a particular area. Some examples of this are the Sound and Picture Archives for Research on Women (SPARROW), Pad.ma and Indiancine.ma [7], the Indian Memory Project [8], and Osianama [9]. In some of these examples, the archive may be used as more of a metaphor rather than a description or classificatory term, because of the layers of meaning that they generate around an existing object or 'trace'.

They are also reflective of a different milieu that came about with the digital turn in India. Shaina Anand, artist and filmmaker who set up the artist’s studio and collective CAMP in Mumbai [10], and is also part of the team behind the Pad.ma and Indiancine.ma platforms, speaks of the various factors that contributed to the setting up these two online archival spaces. As artists for them the larger concern was the ever-changing electronic media or technological landscape, as seen in some of their earlier projects such as Russel TV, which involved creating content around media ecologies and intellectual property in a sort of pro-piracy, and access to knowledge framework. The focus for them was the ecology or the landscape, and within that the sharp point was where there were irregularities and inequalities and there was a need to redistribute things in a certain way. Pad.ma grew out of a larger idea of understanding this changing milieu around the early 2000s, where the digital had already become pervasive – filmmakers were editing on a laptop or desktop computer, they had access to the internet and DIY tools, resources were cheaper and more accessible as the internet was opening up a world of possibilities. Therefore, as the team realised, if there was to be an archive of the contemporary, it had to be digital or visual, or video specifically, and located online. This was also the time when the independent filmmaker had become a prominent figure and the challenges and advantages of sharing unused and raw footage became quite possible and apparent with a platform like Pad.ma. The archive was created as something contemporary, non-state and non-canonical, with a wide range of stakeholders and contributors ranging across NGOs, activists, independent filmmakers to individuals with an interest in film and video. There were however several difficulties as well, chiefly in getting people to share material, issues of privacy, and a resistance to the use of this platform as a pedagogic and academic resource, which over the years have come down with the people becoming more open to using material on the platform as primary texts, and the development of more tools for editing and annotations. Indiancine.ma that way is more of a traditional form of film studies, but with more possibilities now for working with the film text.

However, while entering the digital space may have enabled more sharing and dissemination of material, how much of these efforts also make their way into larger civil society and policy debates, scholarship and pedagogy is still a crucial question. Pad.ma and Indiancine.ma have been used by students, in media and film in particular but the efforts remain niche and restricted to certain disciplines only. Some part of this comes from a resistance to the film or a certain kind of text as academic, and therefore scholarly or relevant to a larger cross-section of research. This also stems from a predominant imagination of the archive as a static, linear repository. As Ashish Rajadhyaksha, film and cultural studies scholar, who was part of the team that created Pad.ma and Indiancine.ma, points out, the distinction between the archive as a repository space and an interpretive space is one that needs to be made clearly, and archives are clearly a form of the later. In fact the idea of the digital as a permanent medium is false, and it should not be the solution to problems of storage and preservation. Further, in a lot of expansive archives, whether digital or physical, it is seen that only up to five percent of the material is used, and more often than not it is the same five percent! This is because most people do know about the existence of certain kinds of material which is buried deep within the archive, and therefore do not access it. The emphasis of archival practice, and particularly in the time of the digital archive where space is not seen as a constraint, yet, should be to enliven the archive to ensure that material from the 'dead space of the archive' is made more searchable and accessible for use.

Curation then comes back again as an important aspect of the archive, even in the time of the digital. Indira Chowdhury sees this as one of the main shifts from the traditional archive, where the curator or the archivist performed the role of a custodian or gatekeeper who grants restricted access to the archive only to researchers or scholars. Now with the advent of the internet and shift to the digital, it’s more about collaboration, and adding to the archive, and this has encouraged a diversity of users, and uses of the archive. This comes with its own problems however, such as with metadata standards for instance, and particularly questions of format which become important from the perspective of technological obsolescence (as discussed in the earlier chapter). The digital archive has made practitioners think about what they are archiving, for whom and what purpose, and in what formats, but these questions also go back to the traditional archive, and in fact are dependent on how we think about and defined the archive itself, then and now how we imagine the virtual archive. These are as she says, questions that may be routed through technology, but not necessarily about technology. Also, even with the traditional archive, making material accessible and usable was a concern, and this is where the archivist or custodian played an important role. She speaks about using pre-digital archives, where there are handwritten descriptions of material, all meticulously preserved, indexed and cross-referenced, and you know what material to look for because the archivist knew what was in the archive and how to find it. She speaks of her own experience of setting up the archives at TIFR, which was not digital then, but has been digitised now, and even though she has not been associated with them for a while now she still gets the occasional email requesting help to find something in the archive, because she knows the material. A lot of the new digital archives therefore, despite their huge collection which are also searchable, need archivists and assistants who oversee the organisation of material, because those cross-references and connections have just not been made (often it is not humanly possible because of the sheer volume of data), which is really what the historians will look for, and that is the challenge here.

Padmini Ray Murray, another faculty member at the Centre for Public History, also sees this as a problem of not imagining the archive as a database, but as this legacy where content is being held together under this one overarching frame. She finds that there is a metanarrative that is created at the level of the database, because of the context in which the archive becomes a database – the historical / institutional questions, and what is being used to create the archive. A point of divergence however could be that it’s easier to lie with the archive, because with the database there is the empirical identifier, so the truth claim is better. This is something that Dr. Chowdhury agrees upon as well, as she finds that because archives have the potential of being multilayered, and are therefore complex, verification is difficult; it’s only another scholar who will check the materials referenced or used by one – and the interpretation would change, and this had implications for the way the archive generates scholarship. Another difference is pulling data from the archive in a way that it allows the making of computational hypotheses about other possibilities, which is the heart of DH – such as topic modelling and algorithmic shortcuts to crunch through data to posit some hypothetical claims. She feels that in India at the moment we are not doing in enough with the archive as database, which also restricts its many possibilities. Even in terms of access to the archive, which the digital archive is supposed to make easier, it comes with certain conditions, such as copyrights, privacy and even different kinds of Creative Commons licenses for open source content. It also depends on what Dr. Ray Murray describes as the ‘flavour of the archive’, something particularly relevant to a lot of new private archival spaces like the Indian Memory Project, or Indiancine.ma or Pad.ma, which focussed on 'building the archive', as opposed to working with an existing archive of material. As such these are somewhat ephemeral archives, always in the making, and where the digital intersects clearly with the archival space is in terms of finding an audience for it; the internet creates these niche spaces of interest, so you find that people want to access such spaces, and do it differently from the traditional archive, as the varied nature and functionalities of these two examples demonstrate.

What the long discussion seems to illustrate then is the gradual shift of the archive to become something of a metaphor, as the way the archive has been previously imagined, and its functions have changed with the advent of the internet. As Wolfgang Ernst asks:

Does the archive become metaphorical in multimedia space? This is a plea for archiving the term archive itself for the description of multimedia storage processes. Digital archaeology, though, is not a case for future generations but has to be performed in the present already. In the age of digitalizability, that is, when we have the option of storing all kinds of information, a paradoxical phenomenon appears: cyberspace has no memory. (Ernst 2013: 138)

What Ernst suggests is that the Internet forms a different kind of multimedia archive, or anarchive, or is a phantasm, which differs from the printed of state archives because “the archive is a given, well-defined lot; the Internet, on the contrary, is a collection not just of unforeseen texts but of sound and images as well, an anarchive of sensory data for which no genuine archival culture has been developed so far in the occident” (139). The internet, in documenting the discontinuities and ‘disorder’ of the history of multimedia forms thus gives rise to a new memory culture, and this is important to the process of understanding how new archival spaces are being created, and theorised.

Archive-building has an impact on how knowledge is produced, organised and disseminated is a crucial aspect of meaning-making practices. Related to this is another issue in terms of the amount of data that is available in the archives by the sheer amount of material that it can now hold, which demands new protocols of access and collaboration, and the role of curation in making such data relevant and comprehensible. The problem of excess mentioned by many of the scholars and practitioners would be relevant to the question of big data; accessing or interpreting such large volumes of information would require critical tools and new kinds of architecture. These shifts also relocate the figure of the collector from traditional practices to new ways of visualising collections and the art of collecting itself, which are now beyond the scope of the human subject. As illustrated by practices such as distant reading, it is now humanly difficult to read, and process such large volumes of data that the digital archive now makes available to us. What this then throws up as questions for archival practice, and DH of course, is the new modes by which knowledge is produced through access to such corpora – for instance the impact such changes have on history, its reading and writing, the growth of public history and the role of the internet archive in fostering its growth. On a much broader level, it also points towards the implications of this shift for pedagogy and scholarship in the humanities, in the digital age, questions which will be discussed in the next chapter.

Notes

[1] Michel Foucault quoted in Manoff (2004: 18).

[2] Ibid.

[3] A session on 'Digital Humanities and the State of the Archives in South Asia' was conducted by Prof. Abhijit Bhattacharya and his team as part of a workshop on research methodology in Women's Studies, held at Tezpur University between April 6-7, 2010.See http://www.tezu.ernet.in/notices/ResearchMethodology.pdf

[4] See: http://www.sparrowonline.org/.

[5] See: http://sarai.net/.

[6] See: http://pad.ma/.

[7] See: http://indiancine.ma/.

[8] See: http://www.indianmemoryproject.com/.

[9] See: http://osianama.com/.

[10] See: http://studio.camp/.

References

Balachandran, Aparna, and Rochelle Pinto.Archives and Access. Bangalore: The Centre for Internet and Society, 2011

Benjamin, Walter. "Unpacking my Library: A Talk about Book Collecting" In Illuminations, edited by Hannah Arendt.Translated by Harry Zohn, 59-67.New York: Schoken Books, 1968

Derrida, Jacques. Archive Fever: A Freudian Impression.Translated by Eric Prenowitz.Chicago:University of Chicago Press, 1996

Drucker, Johanna. "Humanistic Theory and Digital Scholarship" In Debates in the Digital Humanities, edited by M.K. Gold. Minneapolis: University of Minnesota Press, 2012.Accessed December 11, 2015.http://dhdebates.gc.cuny.edu/debates/text/34

Ernst, Wolfgang. "Discontinuities:Does the Archive become Metaphorical in Multimedia Space?" In Digital Memory and the Archive, edited by Jussi Parikka, 113 - 140.Minneapolis: University of Minnesota Press, 2013

Manoff, M. “Theories of the Archive from Across the Disciplines.” Portal: Libraries and the Academy, Vol.4, No.1 (2005): 9-25.Accessed December 10, 2015. http://dspace.mit.edu/handle/1721.1/35687

Portelli, Alessandro "What makes oral history different?”. In The Oral History Reader, edited by Robert Perks and Alistair Thomson, 32-42. London: Routledge, 2006.

For more details visit https://cis-india.org/raw/living-in-the-archival-moment

Leading Up To The GCIP: A Chat With Shamnad Basheer

Job Michael Mathew — 2016-01-31T08:57:01Z

The next discussion in our pre-GCIP discussion series is with Prof. Shamnad Basheer.

The blog post was published on the Global Congress page on December 13, 2015.

Profile: Shamnad Basheer is the founder of SpicyIP, India's premier blog on IP and innovation law and policy. Basheer was the first Ministry of Human Resource Development Chaired Professor of Intellectual Property Law at the National University of Juridical Sciences, Kolkata, and a Frank H. Marks Visiting Associate Professor of Intellectual Property Law at the George Washington University Law School in Washington DC.

JMM: The years after TRIPS have seen a number of battles in developing countries over IP rights. In response, some developing countries like India have incorporated measures such as Form 27 requirements for patents and Section 3(d) in the Patents Act to prevent over-broad exclusionary rights. What explains the presence of such creative interpretation of inherent flexibilities in some developing countries and their absence in others?

SB: Indeed! Some developing countries such as India have been a little more successful in using TRIPS flexibilities than others. I believe this is due to several factors:

Firstly, you need a very strong domestic constituency that prods the government to actively exploit TRIPS flexibilities. In the case of India, there were two very powerful constituencies at play -

a. We have a very strong generic industry, which has historically benefited from a not-so-stringent patent regime and was keen on ensuring the widest possible use of TRIPS flexibilities so that they could continue to remain competitive in a market that was soon to be flooded with pharmaceutical patents.

b. Also, a very powerful civil society played an important role in shaping the 2005 Amendments to the Patents Act, which contained a number of flexibilities to rein in the impact of pharmaceutical patents.

Thanks to the powerful advocacy of these two constituencies, we see measures such as section 3(d) of the Indian Patents Act, strong compulsory licensing and patent working provisions, parallel import provisions, strong Bolar provisions etc.

Further the spirited defense by our domestic generic majors in patent infringement actions by multinational pharmaceutical companies triggered a strong line of public interest jurisprudence from our Courts. All of this contributed to a relatively more progressive patent regime than present in a number of other developing countries.

Even if domestic industry interest has begun aligning itself more with the interests of Big Pharma, with whom they are partnering in large numbers, the fact that we have an active civil society that continues to challenge problematic patents is a great boon for patients and public health.

Secondly, though not a perfect democracy, India’s law and policy making processes are relatively more transparent than a number of other developing countries. This permits civil society and the wider public, including the academia, to engage with law makers and influence the course of patent policy in India.

Thirdly, the adversarial litigation system and the relative openness of our court processes and procedures, coupled with a vibrant media helped infuse more public interest norms and TRIPS flexibilities within Indian patent decisions.

JMM: How far have measures undertaken by the governments and the judiciaries of developing countries been able to balance public interest and rising exclusionary norms that are coming to characterize global IP regimes?

SB: On the issue of balancing a private patent monopoly interest with the larger public interest, I think a lot more needs to be done. I still can’t get over the fact that despite extensive engagement by the civil society and the public with IP issues, we still have so many Free Trade Agreements being signed! Not to mention the highly opaque TPP agreement which just got signed and will certainly take us back to the dark ages in terms of the gains in a more progressive vision of IP and its place in the changing knowledge economy which relies more on openness and sharing. As a result of these pressures from the Western nations and the corporations that lobby them to take these hard-hearted stances, many countries will be under pressure to desist from deploying their full range of TRIPS flexibilities and will never be able to infuse more public health and public interest concerns within their domestic regimes. So these regimes will remain unbalanced at least for the foreseeable future, I’m afraid.

However, this is not just a simple developed versus developing countries concern. Even within developed countries, there is a lot of rethink on the role of patents in innovation. An increasingly heated discussion on the downside of patents and their deleterious impact on innovation is taking place, thanks to the advent of trolls and various other funny creatures that have cropped up due to an excessive one-sided ratcheting up of IP rights and enforcement.

If these developed country lobbies that are critical of the patent regime get stronger, there might be hope for a more sweeping IP paradigm change the world over! And perhaps a lot more developing countries may be freer to begin experimenting with TRIPS flexibilities.

JMM: The generic drug industry of India is world renowned for making life saving medicines accessible to a large part of the world. This industry had actively opposed the revision to the patent law in 1970 and there was a belief that the interests of the generic drug industry coincided with the interests of Indian patients. In the years since 1970, these industries have experienced tremendous growth and even as there are 50-60 companies making identical generic medicines the market is dominated by 3-4 companies. How far would you say the interests of the generic drug industry overlap with the interests of the Indian patients now?

SB: Great question! The interests between the domestic generic industry and civil society in India clearly overlapped earlier, but unfortunately there is an increasing divergence today. The clearest example of this is Cipla, an Indian Robin Hood of sorts, which fearlessly took on global MNCs and slashed prices of HIV medications and promoted access to affordable medication.

Today they prefer to partner and meekly sign up to problematic licensing arrangements with Big Pharma such as the one they signed with Sovaldi, a notoriously priced Hep C drug by Gilead. Incidentally, this patent was initially challenged in India by Natco and Zydus, but these companies later signed up to partnerships with Gilead, after which they dropped their patent challenges! So much for relying on our generic majors to protect the public health turf and guard our interests! But perhaps that is not their job! For after all, these are “corporations” at the end and the quest for more profits and dividends to satisfy their shareholders is hard wired into their very DNA!

It is this “corporate” sense and sensibility that is driving this increasing partnership between Indian generic companies and foreign multinationals. Originator drug makers want to show a “generic” face to governments that are racing to squeeze public health budgets and cut costs by tendering more generic supplies. Similarly our generic majors want to be the next Teva, and come up with the next big molecule that will help them rake in some serious moolah! Therefore partnerships with big pharmaceutical companies are attractive propositions for generic manufactures to enhance their R&D skill sets. Leading to what I call the “Ardhnarishwar” model, a term of art from Hindu divinity, referring as it does to a godlike figure comprising half man and half woman. In our context, this term roughly translates to: half originator: half generic!

These cozy connects between originator and generic firms may perhaps help explain why there are no compulsory license applications in India, despite Natco’s stellar success with the first license application concerning Bayer’s excessively priced Nexavar. Worryingly, the number of patent oppositions from generic companies against originator patent applications are also coming down.

In all, the gap between generic interests and patient interests are widening. As a result of this there is increasing pressure on civil society to fight the good fight and continue opposing frivolous pharma patents!

JMM: You were part of a team that played a pivotal role in getting through, the amendment to the Indian Copyright Act in relation to the exception that made it legal to convert copyrighted content to forms accessible for the disabled. Has the amendment satisfactorily addressed issues of access that the disabled face in India? Do you think other measures are also required to supplement this?

SB: I think the Indian exception is one of the broadest in the world and needs to be applauded. One of the rare instances where politicians across party lines supported the Amendment after we had advocated for it for more than a year! All thanks to the wonderful Rahul Cherian (unfortunately snatched away from us thanks to a quirk of fate) and his ability to bring a number of disability activists, policy makers and academics together to achieve this phenomenal outcome.

Though the government did not endorse our proposal in its entirety, the final clause that found its way into the Copyright Amendment Act 2012 comes close to what we had suggested.

Unfortunately, despite this stellar statutory provision, I’m not sure how many people on the ground are actively deploying it, at least as third party organizations that work for the benefit of the differently-abled. We need to create more awareness around this provision and its potential for social transformation.

JMM: The informal economy represents a major share of output and employment in middle and low income countries. In these countries the informal economy is a major area of innovation though little is known about what incentives prompt individuals and communities to innovate. What do you think is the role of IP in informal sectors and how has the relative absence of IP in such fields affected knowledge diffusion?

SB: I think the honest answer to this question is that we don’t know because no one has ever really studied this sector! At least in terms of its innovation ecosystem and its dynamics- what drives creativity here, how is it diffused, and how are ideas translated to products? Are people driven by money or by love of their fellow humans or do they create for reputational benefits, as is the case with open source software? Or is there is some mystical magic to all of this, where people believe they are conduits for a higher energy/force such as traditional medicinal healers who don't charge any money for their medicines or healing?

I explored some of these aspects for a short piece I did for WIPO as part of a joint project with other academics and policy makers. We came across anecdotal evidence to suggest that the innovation ecosystem in the informal economy differs in important particulars from that of the formal economy. Of course, a lot more needs to be done to understand this sector. In the meantime, the assumption that blindly transposing IP regimes built largely for the formal sector will somehow unleash creativity within the informal sector is highly misguided! Rather than blithely assuming that the informal sector needs to learn from the formal sector, perhaps we could learn from them?

JMM: The Delhi University Photocopy case which involved a small photocopy shop in Delhi being taken to Delhi High Court for copyright infringement by big publishing houses such as Oxford University Press and Cambridge University Press for photocopying copyrighted content belonging to these presses. The copyrighted content in dispute involved course-packs recommended by the University with excerpts from several books. The Indian Copyright Act’s fair dealing provision incorporated specifically provides an exception for educational use in Section 52(1)(i) and in that sense is wider than fair dealing provisions in some other parts of the world. Yet the Delhi High Court issued a temporary injunction restraining the photocopying shop from selling the (allegedly) infringing course-packs until the case was decided. Leaving aside the outcome of the case, do you think countries like India require explicit guidelines from the Executive that categorically state that photocopying of academic material does not constitute copyright infringement like in Costa Rica to isolate such uses from judicial construction or do you have any other such suggestions that can work well in the Indian context?

SB: This case is currently pending before the Delhi High Court and we are awaiting the court’s decision. So clearly, at this stage, we need to wait for guidance from the courts. To a large majority of us, it is very clear that educational photocopying is exempt under the terms of section 52(1)(i). The publishers of course don’t seem to think so. Therefore I think it would be best for the court to issue the verdict and provide clarity. If the final ruling does not favour educational use in the way that we seek to now advocate, we may need to persuade our lawmakers to then amend the law and make this clearer. I am hoping things don’t come to that and that the judge rules in favour of a robust and strong educational exception, which is what Parliament intended when they crafted the exception.

At this stage however, I don't think Executive fiat will work, particularly since there is a statute in place and a judge is currently interpreting that very statutory provision. More importantly, relying on the Executive is a double edged sword, given the money and lobbying power of the publishing industry, more than amply demonstrated when the last government under Minister Kapil Sibal did a volte face and removed a provision at the last minute that would have fully exempted parallel imports from the scope of copyright infringement.

JMM: Can you shed some light on the term ‘public interest’ since different stakeholders such as governments, pharmaceutical companies, activists and academics are all working in ‘public interest’ and yet their paths towards achieving ‘public interest’ diverge more often than converge?

SB: This is a difficult question to answer! You are right: public interest means different things to different people. At one level, even a big pharmaceutical corporation that takes out a patent can invoke public interest stating that they are inventing the drug in public interest…and that, but for the introduction of the drug, there would be no question of access at all!

Therefore the term itself is a bit relative. But to the extent that it helps, one might need to examine it on the specifics of each case and determine whether the argument being advanced by a party is really furthering personal interest or the interests of the community or society at large. Good faith is a large part of this equation and it can help determine if what one is doing is in larger public interest or private interest.

[1] Shamnad Basheer has been a research fellow at the Institute of Intellectual Property, Tokyo, an International Bar Association scholar and an Inter‑Pacific Bar Association scholar. He is also the founder and managing trustee of Increasing Diversity by Increasing Access (IDIA), a non-profit body that aims to empower under privileged communities by facilitating access to legal knowledge and education to the common man.

For more details visit https://cis-india.org/a2k/blogs/leading-up-to-the-gcip-a-chat-with-shamnad-basheer

Strategy Meeting on Global Copyright Policy and Advocacy

praskrishna — 2016-01-31T10:00:18Z

Sunil Abraham and Pranesh Prakash participated in the meeting held on December 14, 2015 at National Law School in Delhi.

Earlier this year, the Open Society Foundations convened a two-day meeting on access to knowledge strategy. Copyright emerged as a major issue and many of the attendees focused on a next-generation copyright reform strategy. The discussion included identifying best user practices, capacity building, WIPO, and risk management. By the end of the two-days, there was strong support to continue the dialogue with a further one-day meeting at the Global Congress.

Agenda overview and guidelines

The agenda is being designed as a combination of planned sessions and participant-driven discussions, and specific topics will be placed into time slots based on input from the participants. Sessions will be dialog- and outcome-oriented rather than presentations or lecture format.

14 December 2015

The Meeting will take place at:

Room 102

National Law University, Delhi

Sector 14, Dwarka

New Delhi – 110078

9:00 Interactive Plenary

This session will provide a collaborative opportunity for participants to share some of their thoughts on the issues relevant to copyright reform strategies, priorities, and directions.

10:00 Identify opportunities for advocacy

Participants will break out into small groups to discuss opportunities for advocacy both internationally and domestically. Some possibilities include:

Limitations and exceptions/user rights
Remedies/damages/risk
Intermediaries
International – WIPO
International - trade agreements (TPP, TTIP, CETA, etc.)

10.45 Break

11.00 Deeper discussion of identified opportunities

In small groups, participants will have the opportunity to discuss the opportunities which have been identified. (5 x 30 min = 2.5 hours)

12.30 Lunch Break

13:30 Deeper discussion of identified opportunities, cont.
Small group discussion continues.

15:00 Report back
Each group will have an opportunity to report back.

15:30 Best of the best
In the full group, the participants can discuss the best opportunities, biggest risks, and the best models to follow.

16.30 Closing

This session will invite participants to weigh in on what has been most useful during the course of the day.

17.00 Adjourn

For more details visit https://cis-india.org/a2k/news/strategy-meeting-on-global-copyright-policy-and-advocacy