Centre for Internet and Society

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

GCIP 15 Day 2: Discussions on Health Technology, Innovation and Access

Spadika Jayaraj — 2015-12-17T16:08:16Z

The Global Congress is a confluence of academics, policy advocates and activists working in the sphere of IP and Public Interest.

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

The stated aim is to enable participants to share research, experiences and insights in tackling unbalanced law reform and enforcement proposals. The session on Health Technology, Innovation and Access in the Access to Medicines Track was an embodiment of this stated purpose. The session began with a keynote by Justice Michael Kirby who has recently been appointed by the UN Secretary General on a High Level Panel to tackle policy incoherence between IP and Human Rights. The relationship between the two fields of law has been a recurring theme in the conference so far- it was extremely interesting to see the participants in this session orient their arguments and questions towards the approaches that this High Level Committee can adopt when attempting to resolve this policy incoherence.

Following Justice Kirby’s address, the session saw human rights academic Lisa Forman, senior advocate Anand Grover and Cambodian human rights activist Pisey Li bring their unique perspectives on the role of this committee. Forman was of the view that the Panel must take a strong and direct approach to reconciling Access to Medicines and IPR. She reminded us of the potential moral force of human rights rhetoric, which transcends beyond legal articulation. She suggested that the Panel must root their discussion firmly within the human rights framework of Right to Health, and must consider disengaging from TRIPS altogether. This tied in to her comments in one of the Plenary sessions yesterday, where she noted that repeatedly emphasizing on narrow exceptions and flexibilities in TRIPS only serves to strengthen the norms that surround TRIPS, and this is not a good outcome for human rights overall.

Anand Grover’s comments to the Panel were around Voluntary Licenses, and how the blind acceptance of VLs as any kind of solution to access to medicines is a step backwards. He also commented on how Compulsory Licenses have limited impact due to the strong pressure inserted by lobbies on developing country governments. He also expressed how there is more fragmentation within the people fighting for access to medicines today then there has been before- and this has been an impediment in fundamentally re-imagining the patent system itself. This reimagination, in his submission, is the need of the hour and must be the mandate of the UN Committee.

Pisey Li then made a powerful and emotional presentation demonstrating how activist groups are empowering groups like sex workers in Cambodia. Her plea to the UN Committee was to remember that people must be placed before profits and how changes in policy have a real impact on lives and livelihoods. She ended with a tribute to Andrew Hunter, a prominent figure in HIV activism who passed away in 2013.

The speeches were followed by a Q&A session with Justice Kirby. Questions were raised on a range of issues from the practicality of moving beyond a patent system, to the role of philanthropist foundations in the public health crisis. Surely, the Panel will benefit from the perspectives shared over this session.

For more details visit https://cis-india.org/a2k/blogs/gcip-15-day-2-discussions-on-health-technology-innovation-and-access

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

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

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

Leading Up To The GCIP: A Chat With Michael Geist

Job Michael Mathew — 2016-01-31T05:37:58Z

Continuing the lead-up to the GCIP, the following discussion is with Dr. Michael Geist.

Click to read the blog post originally published on Global IP Congress website on December 12, 2015.

Profile: Dr. Michael Geist is a law professor at the University of Ottawa, where he holds the Canada Research Chair in Internet and E-commerce Law. He will be giving a keynote address during the inaugural plenary session scheduled for December 15^th.

JMM: The UK recently made a major push towards open access after the recommendations of the Finch Report dealing with expanding access to research publications. The major thrust of the Finch Report is towards sustaining an open access model through Article Processing Charges (APC) as opposed to other alternatives such as Advertisement/Sponsorship based model or the subsidy-based model. This has raised concerns over predatory open access journals using APC which are said to undermine peer review and privilege wealthy universities and grant holding scholars. What do you think are the implications of following such a model for the open access movement at large?

MG: I have real concerns about the APC model, which 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 OA.

JMM: One of the barriers to open access in Canada was the lack of campus support towards open access. You have written that even as many of the world’s top universities adopt open access strategies, universities in Canada remain reluctant to follow open access mandates. What explains this reluctance to open access among universities and is it something found in other parts of the world as well?

MG: We are starting to see more movement towards OA in Canada. Part of this is driven by our federal granting councils, which have emphasized OA requirements within their guidelines. I think there is also a growing recognition of the scholarly benefits of OA. That said, there are still many scholars who pay little attention to the publishing contracts they sign and the restrictions that may be imposed on their work through their choice of journal. This is an ongoing education issue, particularly for senior scholars, who may still be unfamiliar with OA issues.

JMM: In early 2013, the University of Ottawa Press released “The Copyright Pentalogy: How the Supreme Court of Canada shook the foundations of Copyright Law” in open access. The book was one of the most accessed on the University of Ottawa Press website and in less than 6 months of release was top among 35 books on page views. Writing about the book, you noted that the book was also a top seller in the University webpage in spite of being available for free. Over the last few years, many more of such examples have surfaced. Is open access actually not at odds with commercial sales as commonly understood?

MG: I think open access works hand-in-hand with commercial sales. Indeed, in some instances, it may increase sales. I have long come from the position that there are three potential purchasers of my books. The first group – librarians, people focused on digital issues, etc. – will buy the book regardless of whether it is freely available online. There is a second group that might have purchased the book, but chooses not to do so because there is a free version available. This group represents a financial loss. There is a third group, however, who would not have purchased the book or even been aware of it, but find it through open access. This group may decide it likes what it has read and will buy the book. If group three is larger than group two, the publisher ends up ahead. In fact, the third group doesn’t even need to be larger, because the publisher may be able to use OA to cross-sell other publications. Note that the fourth group – those that would not buy the book but choose to download it – do not factor into this analysis because this group would never have been purchasers.

JMM: Recently you wrote about an Ottawa Court ruling asking a man to pay damages amounting to $13,470 for circumvention of a digital lock. The case involved a man who received from his friend an online publication that he had not subscribed to himself. Apart from Canada, United States of America has strict anti-circumvention rules under the Digital Millennium Copyright Act (DMCA) which makes it illegal to circumvent technological protection measures irrespective of whether or not the reasons for doing so are perfectly legal or non-infringing. Further the TPP under Article 18.68 provides for legal protection against circumvention of effective technological measures without reference to any exception for legal or non infringing use just as in the DMCA. In the light of active endorsement of such measures from certain quarters of the developed world do you think such measures could become a global norm that developing countries may soon be forced to adopt?

MG: There is a real danger of this occurring. The US has aggressively pressured others to implement restrictive anti-circumvention rules. These rules often go well beyond those required by the WIPO Internet treaties. This is a significant problem that cuts across all economies, both developed and developing.

JMM: Almost a year back, there were reports indicating that Canada was the leading opponent of the IP chapter in the Trans-Pacific Partnership. However a year later the negotiations have been completed and parties have agreed to the same text. According to you, what helped quell the Canadian dissent to contentious areas such as extension of the term of copyright protection, criminal liability for copyright infringement among others? Further do you think the victory of the Liberal Party in the just concluded elections will force a rethink on the TPP?

MG: Earlier leaks did indeed indicate that Canada opposed many provisions in the IP text, reflecting differences between Canadian and U.S. copyright law. On several issues, Canada caved (such as term extension). Given the secrecy associated with the negotiations, it is hard to know precisely why certain provisions ended up the way they did. However, the final text suggests that IP was not a top Canadian priority, other than preserving the notice-and-notice system.

As for the change in government, I think Canada will sign the TPP alongside other signatories, but conduct an extensive review of the treaty before deciding whether to implement it. Whether it moves forward likely depends more on what happens in the U.S., where there appears to be significant opposition from some presidential candidates and members of Congress

JMM: Article 18.66 of the TPP deals with Balance in Copyright and Related Rights system. The article allows countries to achieve a balance in copyright and related rights system by crafting exceptions or limitations ‘giving due consideration to legitimate purposes such as, but not limited to: criticism; comment; news reporting; teaching, scholarship, research, and other similar purposes; and facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’. Do you think this article is drafted broadly enough to allow meaningful fair use? Further, article 18.65, to which 18.66 is subject to, states that exceptions permitted under the TRIPS, Berne Convention, WIPO Copyright Treaty and WIPO Performance and Phonograms treaty shall apply to TPP as well. The Marrakesh Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired, or Otherwise Print Disabled is absent in Article 18.65 but is present in a footnote referencing to the exception of ‘facilitating access to published works for persons who are blind, visually impaired or otherwise print disabled’ in Article 18.66. What do you think explains this treatment of Marrakesh Treaty and what will its implications be?

MG: I do think that the TPP allows for fair use. However, it does not require fair use, which suggests that many other countries may not implement it.

There is definitely a double standard with respect to international copyright treaties in the TPP. Where the treaty is viewed as a rights-oriented treaty, it is a requirement. Where it is a user-oriented treaty such as Marrakesh, it is optional.

[1] Dr. Geist has written numerous academic articles and government reports on Internet and Technology and is a syndicated columnist on technology law issues with his regular columns appearing on the Hill Times, the Tyee and the Toronto Star.

He is the editor of several copyright law books including “The Copyright Pentalogy: How the Supreme Court of Canada Shook the Foundations of Canadian Copyright Law”, “From “Radical Extremism” to “Balanced Copyright”: Canadian Copyright and the Digital Agenda”, and “In the Public Interest: The Future of Canadian Copyright Law” along with being the editor of several monthly technology law publications and author of a popular blog on internet and intellectual property rights.

Dr. Geist serves an the director and on advisory boards of several Internet and IT law organizations including the Canadian Internet Registration Authority, the dot-ca administrative agency, the Canadian IT Law Association, Watchfire, and Verifia. He is Chair of a global Internet jurisdiction project for the American Bar Association and International Chamber of Commerce. He is regularly quoted in the national and international media on Internet law issues and has appeared before government committees on e-commerce policy

More information can be obtained at http://www.michaelgeist.ca/.

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

Leading Up To The GCIP: A Chat With Zakir Thomas

Job Michael Mathew — 2016-01-30T10:54:37Z

With only a few more days to go for the 4th Global Congress on Intellectual Property and the Public Interest 2015 (“Congress”), we will be putting out a number of blog posts as a precursor of things to come. In this first series, Job Michael Mathew approaches some of our keynote speakers for their thoughts on their work areas and contemporary developments in their fields.

Profile: Zakir Thomas is an expert in the field of intellectual property rights, open source innovation, neglected diseases and innovation ecosystem in science and technology in India. He will be giving a keynote address during the inaugural plenary session scheduled for December 15^th.

JMM: How far has the TRIPS regime ensured access to and availability of treatment for neglected diseases?

ZT: TRIPS is an instrument meant to further intellectual property (“IP”) driven innovation. One basic feature of IP driven innovation is that it is market related; thus if the market fails, there is no innovation. There is a whole gamut of areas where innovation is required but does not happen due to lack of a market. The TRIPS regime is meant to address innovation in areas where there is already a market. IP drives innovation in areas that has a market, which will ensure return on investment. In the case of neglected diseases there is no ‘market’ for the innovation drivers to ensure a return on their investment and hence access and availability has been poor in this area. I would say that the TRIPS regime has not dealt with the question of treatment for neglected diseases at all. The fact here is that the TRIPS regime was not meant to ensure access and availability to treatment for neglected diseases.

However it important to look at this question a little closer. There are a lot of areas where innovation has not happened despite the presence of TRIPS-compliant laws. There are countries with stronger IP laws than the US, yet companies have not shifted to those countries. There are many countries in the world today that have TRIPS-complaint IP laws, yet has this resulted in transfer of R&D from the US to local companies in these countries? Even after two decades of TRIPS and links drawn between stronger IP laws and innovation, innovation is confined to a handful of countries. Innovation ecosystem is a complex ecosystem and IP is only one of the factors that have an effect on the ecosystem and not the sole determinant as the current narrative makes it out to be. It is important to challenge the narrative that proclaims that IP drives innovation or that higher IP protection will attract investment and transfer of R&D.

JMM: Given the fact that big pharmaceutical companies are resource-rich to pay hefty sums to people who work with them, how can the open source movement attract the best talent to work for it?

ZT: From my experience in working in this field, I don’t think talent or the lack of it is the real issue. It is important to understand what exactly a pharmaceutical company does in research. In most cases the real innovation, i.e. finding the early stage molecule, which is the core of pharmaceutical innovation, happens in publicly funded academic or research institutions and only in limited cases does it happen within the pharmaceutical company. Once the early stage molecule is discovered then the pharmaceutical companies does some development over these molecules leading up to the clinical trial. There are experts in publicly funded institutions who are willing to work with the open source movement and are in fact working with it. There are Contract Research Organizations who are IP agnostic and deliver quality research to the industry. Talent, therefore, is not difficult to find and is readily available to tap into. Of course, pharmaceutical industry driven drug discovery is a cost-intensive model. Even in the open source model, the costs cannot be brought below a certain level. The open source model will also have to conduct clinical trials and somebody will have to bear these expenses. The difference lies in that fact that the fruits of the innovation will be available to all without the exclusivity of IP attached to it.

JMM: A major concern for the uninitiated will be issues of quality control in an open source drug discovery model. How does open source drug discovery address such concerns?

ZT: To be honest, such a doubt will come from someone not only uninitiated to the model of open source drug discovery but also the process of drug discovery itself. Drug discovery and development is a highly quality controlled work. There are inbuilt regulatory mechanisms which ensure that newly discovered molecules pass certain regulatory standards. We have an independent clinical trial regulatory body called the Drug Controller General, whose experts closely scrutinize all data submitted to it, and only after they are satisfied will they give the nod to go ahead with clinical trials. Further, just because the drug is developed in an open source model doesn’t mean that experts do not closely scrutinize it. Experts, peer reviewers and funders scrutinize the discovery at every single stage and only with the approval of the regulators will things move ahead. Essentially, independent of whether the drug is discovered through the open source or the pharmaceutical model, the kind of regulatory checks and quality controls it goes through will be the same.

JMM: The Department of Biotechnology and the Department of Science and Technology are announcing an open access policy as a major victory for the open access movement in the country. What according to you should be the next objective of the open access movement in India?

ZT: 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. Essentially a well stocked and organized open access library should be accessible to our researchers. India has a National Knowledge Network (NKN) which provides high bandwidth connectivity to academic institutions. This repository should be made accessible over NKN. It is not enough to declare that Departments go open access. It is important to ensure that the all open access resources are available to our researchers we well.

JMM: How far has the open access movement in India translated to output of quality scientific research studies?

ZT: 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. It does not mean that the quality of work you do in your lab improves. But access to knowledge has the potential to improve the quality of your research. Open access allows for the communication of research findings with taxpayers, which will lead to better returns for the taxpayers as the fruits of the tax money spend is available publicly for everyone to access. Whether this availability leads to better quality of scientific research studies is something unquantifiable as of now. So, open access resulting in output of quality scientific research studies is a correlation that I cannot make. Open Access has been recently adopted in India and there is no data available that allows me to make such a correlation.

The idea behind open access is that one makes public one’s work regardless of its quality or other considerations. Now, the question is whether doing so increases quality of output? There is a possibility that following an open access model will result in better review and feedback of works submitted but this is a very long process and there is no data in India to make such a claim.

[1] Job Michael Mathew is an intern at the Centre for Internet and Society. He is currently a student at Nalsar University of Law, Hyderabad.

[2] Zakir Thomas was the founding Project Director of Open Source Drug Discovery (OSDD) of the Council of Scientific and Industrial Research (CSIR) in India, where he led an open innovation drug discovery programme for tuberculosis (TB). He was also the head of the Director General’s Technical Cell, leading a team which provided technical and policy inputs to CSIR, including intellectual property issues.

He served as the Registrar of Copyrights of Government of India from 2000-2003 and as a Deputy Secretary in the Department of Higher Education of the Ministry of Human Resources Development. Professionally, he is an officer of the Indian Revenue Service with over 25 years of experience, currently posted as Commissioner of Income Tax at Delhi. He has worked at the Ministries of Finance, Science and Technology and Human Resources Development, in the fields of intellectual property, science and technology, e-governance and policy formulation.

Zakir holds an M.Sc. in Physics (Mahatma Gandhi University, Kerala), LL.B. (Delhi University), and a Masters in Intellectual Property, Commerce and Technology (Franklin Pierce Law Centre, University of New Hampshire in the U.S.)

Check out the blog post on Spicy IP

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

Leading Up To The GCIP: A Chat With Susan K. Sell

Job Michael Mathew — 2016-01-31T08:36:57Z

After Mr. Zakir Thomas and Dr. Michael Geist, our third discussion is with Prof. Susan K. Sell.

Click to read the blog post published on Global Congress page on December 12, 2015.

Profile: Susan Sell is a Professor of Political Science and International Affairs at George Washington University where her teaching focuses on theories of international politics, international political economy and relations between the North and South. She will be giving a keynote address during the inaugural plenary session scheduled for December 15th.

JMM: The Australian Government’s plain packaging legislation is being challenged by Philip Morris International under the Investment State Dispute Settlement provisions under the Australia-Unites States of America Bilateral Investment Treaty. The treaty under question is a purely investment treaty with no references to public interest or health pre-dating the TRIPS. What do you think will be the implications of adjudicating an intellectual property enforcement dispute at an investment tribunal? Further, such provisions are present in the recently concluded TPP as well even though an exception is carved out for tobacco. However TPP vide Article 18.6 affirms the party’s commitment to TRIPS and public health and explicitly states that parties have the right to determine what constitutes a national emergency and take measures to protect public health even if it conflicts with the obligations under the IP chapter. Do you think the presence of such an explicit undertaking will fundamentally alter the power dynamics within an investor State dispute settlement tribunal which is generally seen as a pro-corporate body?

SS: I think the implications are very troubling. One thing I have looked at a lot and continue to look at is the practice of forum shifting, where parties shift to different forums to try to get what they want and I look at Investor State Dispute Settlement (ISDS) as another forum that raises troubling implications. ISDS has become extremely popular over the last few years; in 1982 there was only one ISDS case, it rose to 50 in 2012 and now in 2015 we are up to 500 cases in 50 different countries. To me this is troubling because it represents a trend of deal making behind closed doors that circumvents democratic deliberation and public scrutiny.

IP is now being defined as an investment asset under the ISDS provisions. In 2014, Susy Frankel and R Dreyfuss wrote about this redefinition of intellectual property. In 2012 a multinational law firm Jones Day published a report arguing that ISDS was a new way forward for pharmaceutical firms to address the assault on their patents in the developing world. So this is a new strategy of intellectual property owners.

The ISDS provisions, by identifying intellectual property as an investment asset, are like getting a camel’s nose inside a tent. Once these issues get adjudicated under ISDS provisions it will open the floodgates for much more ISDS activity focused on IP. Now there is some interesting pushback against these provisions since ISDS is getting more scrutiny in Europe. Germany has gotten less excited about it, the EU is openly debating it and the Eli Lily case against Canada is gaining a lot of notoriety. A number of developing countries, especially in Latin America, who have been very hard hit by ISDS provisions in a number of sectors have requested that ISDS provisions, that they are party to, be formally annulled. Now that’s not going to happen but it is an important symbolic groundswell against ISDS provisions because they override sovereignty, they override decisions of the highest courts of the land, and they are not transparent and there is no appeals process.

To answer the second part of the question, I would love it if states could use the flexibilities in the TPP as a defense of their public health laws but I am a little skeptical about that happening. We have had the Doha Declaration for many years and it has not really stopped pharmaceutical companies from pushing for further protection and enforcement of intellectual property and intellectual property obligations. Therefore even though the language is in there, I doubt if it will change a lot of things in terms of power dynamics on the ground.

JMM: In one of your papers you make the claim that non-governmental organizations (NGOs) working towards lowering intellectual property standards in movements such as access to medicine are not all that different from big businesses that these organizations are fighting. The claim proceeds to argue that both parties are influenced by normative as well as instrumental objectives as opposed to belief that NGOs are only informed by normative objectives. Yet, how important do you think it is for the NGO movements such as Access to Medicine to maintain a distinction from the pharmaceutical companies they are fighting considering the fact that one of the major victories of the Access to Medicine movement was in relation to the HIV/AIDS crisis where the whole issue was framed as a moral life or death question?

SS: I think it is extremely important for the movement to maintain the distinction and the life or death framing of the issue was important too. I want to clarify that the comparison in the piece ‘Using ideas strategically’ between pharmaceutical companies and NGOs is only at the level of strategy. Both parties are very different in terms of resources, structural power, etc. Pharmaceutical companies have access to more resources and are more powerful structurally. Therefore the framing of issues becomes very important for the structurally weaker party.

There are big differences between NGOs in the access to medicine movement and pharmaceutical companies. However, that said, I think 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. People from Monsanto, many of whom advocate for patents for seeds feel this is important because they believe that this can increase food security. 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.

JMM: One of the major criticisms against the TPP has been the lack of transparency in negotiations with even Congressmen not being allowed to see the text till it was released earlier this month. You have spoken about how this is troubling from a legitimacy and accountability standpoint and insulates private players from scrutiny while pushing unpopular articles within the agreement. Yet, in the case of tobacco, an industry which is quite powerful in the US, the TPP has carved out an exception in relation to ISDS. Article 29.5 gives parties the right to elect to deny the benefits of ISDS in relation to tobacco control measures. The statement of United States Trade Representative Michael Froman explaining the exception reads “Developed following extensive consultations with Congress and with a wide range of American stakeholders – from health advocates to farmers, representing many views on whether and how to address tobacco-related health policy measures in a trade agreement”. Even as criticism abound on lack of transparency there seems to have been a surprising amount of transparency as far as this particular provision is concerned. What do you think explains this anomaly?

SS: First of all, I am not very sure that there has been a lot of transparency in the tobacco discussions. I would need to find out more about the process. That statement alone from Michael Froman is not much to go by considering the fact that Stan McCoy before Michael Froman and now Michael Froman himself have always maintained that they have been consulting a wide range of stakeholders during the entire process of TPP negotiations. However the consulted stakeholders have only been their cleared advisors, most of whom are IP owners, major corporations, Wall Street players and the like. Consumers and public interest NGO’s have been shut out of this process. Therefore I am not aware, despite what Froman has said, that there has been an open public deliberation about tobacco provisions.

In fact right now, in the United States, there is a lot of pushback against the carve-out for tobacco in ISDS. This is a sticking point for Obama getting the deal through Congress. Tobacco firms are very upset about the carve-out. Similarly pharmaceutical companies are very upset that they did not get the 12 year data exclusivity on biologics. Senators and Congressmen from states that have a big pharmaceutical presence are saying that the deal must be renegotiated and the higher standards be put in place. So there is an interesting process going on now, but I am not aware of any open and public negotiations.

JMM: An exception to the global movement towards stricter IP regimes as evidenced by deals such as ACTA, TPP among others has been India. The patent law has set the bar pretty high for granting of patents and the Government hasn’t shied away from using tools such as compulsory licenses. What explains the Indian isolation to pressures of the western world, particularly the United States, and what are the lessons the Indian model has to offer to other developing countries?

SS: India is a really interesting case and I am a little nervous about recent statements made by Narendra Modi referencing the need to be open to stronger IP protection. India has a long history of standing up to pressure, for example being the leader of the Non-Aligned Movement, so it has a history of carving out its own path. It has been a pioneer with the passing of the Indian Patent Act, 1970, which allowed it to develop a highly robust and successful generic industry. The adoption of Section 3(d) of the Patents Act, which prevents the evergreening of patents, has been emulated by the Philippines in its Patent Act and is totally TRIPS compliant.

Some of the lessons of the Indian model are to use flexibilities under TRIPS and tailor IPR regimes to suit one’s national needs. Of course India has a large economy and that gives it a more power than some of the smaller developing countries. I think it is important that countries support each other’s rights to use these flexibilities and I would like to see more South-South corporation in drafting laws and offer some pushback against the relentless pressure to go over and above what is required by TRIPS.

JMM: At the turn of the 21^st century there was a move to evolve minimum standards of protection for IP which culminated in the TRIPS agreement. There was a feeling that that the TRIPS agreement was an unbalanced agreement with respect to the interests of the developing world and it was hoped that the Doha Declaration on Public Health and TRIPS would make the agreement more balanced. Added to this, the US trade policy of 2007 marked a shift in the approach of the United States towards IP by lowering standards of protection for the first time. However, recently agreements such as ACTA and TPP tip the balance in favour of developed countries and its MNCs by dismantling many of the inherent flexibilities in the TRIPS agreement. What, according to you, explains this latest shift to a more restrictive IP regime evident from bilateral and plurilateral agreements?

SS: I would argue that if you look back historically, the May 2007 amendment to the Trade Policy to allow for more flexibility in the area of public health is an anomaly. It is this anomaly that needs to be explained rather than the pressure for higher standards. The pressure for higher standards has been ongoing ever since the TRIPS negotiations were concluded. For right-holders the provisions in the TRIPS were always a floor, a bare minimum of protection whereas other parties saw it as ceiling considering their level of development and capacity. So when we see agreements like ACTA and TPP, they are consistent with what US trade policy has been and increasingly Europe as well in its bilateral and regional agreements. Firms have never stopped pushing for stricter standards and they are never going to.

I think one of the most concerning things is firms engaging in what I would call Private Power 2.0. We saw how private power was very instrumental in crafting and achieving the TRIPS agreement. What we see now, however, is less transparency and more anti-competitive conduct flourishing behind closed doors as evidenced by deals such as TPP and ACTA. I just read a manuscript by Natasha Tusikov titled ‘Choke Points’ in which she talks about the fact that even though the Stop Online Piracy Act and Protect Intellectual Property Act were shelved as a result of online activism and mobilization of opposition, that helped to unravel ACTA abroad and seemed like a very big victory. People were celebrating it as a David and Goliath story as it was the first time rights holders did not get what they wanted in a big way. However in reality the provisions of SOPA and PIPA are in practice after having been adopted through private contracts between Internet Service Providers and content owners. These contracts are entered into behind closed doors and the public is not privy to this. So if you are watching a 12 episode show on Netflix and after 8 episodes it is no longer available then you begin to wonder what happened. What happened is these private agreements behind closed doors where companies like eBay and Google are increasingly policing the rights of the right-holders and increasingly enforcing wishes of right-owners online. These are some of the worrying trends that need to be addressed.

One other issue is that the firms are still making the argument that they have always tried to get higher standards of protection and that this is about competitiveness and creating jobs. However recently, Irish company Amgen acquired Pfizer which was based in New York. It will be interesting to see how compelling the larger competiveness and jobs argument will be given that Pfizer will now be based in Ireland and no longer paying the United States tax revenue. The Pfizer spokesperson was saying that the acquisition is good for the United States and that’s a real puzzler. So this is a really interesting move that has happened and it undercuts the rationale these firms have been using to get the support of the US Government behind their preferences.

[1] Prof. Sell has written extensively on the politics behind the international IP rights regime most notably in her book “Private Power, Public Law, The Globalization of Intellectual Property Rights”. She is also the author of “Intellectual Property Rights: A Critical History” and “Power and Ideas: North South Politics of Intellectual Property and Antitrust”. Apart from the books, she has a number of publications dealing with and describing the forces that shape IPR regimes, the implications of the present IPR regime in relation to access to medicine, importance of developing a humanitarian conception of IPR among others.

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

Intellectual Property Rights & TRIPS: An Overview

Job Michael Mathew — 2016-01-31T05:54:02Z

The Uruguay Round of multilateral trade negotiations of the General Agreement on Trade and Tariff began in 1986 with a Ministerial Deceleration in Punta del Este.

One of the 13 subjects for negotiation in Part I of the declaration dealing with trade in goods was the mandate on Trade Related Intellectual Property Rights (TRIPS). The essence of the mandate was to develop an effective and adequate standard of protection of intellectual property rights and a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods. The agreement laid the architecture for a uniform global treatment of IPR by providing for minimum standards of IP protection, national enforcement mechanisms and dispute settlement mechanisms.

GATT and IPR

Article IX: 6 was the only provision in the GATT that specifically dealt with the protection and promotion of IP. The Article dealt with distinctive regional or geographical names and did not lay down any standards of protection but rather called on States to corporate with each other on its protection. The first attempt at addressing questions of IPR within the GATT framework was made by the United States in 1978 towards the end of the Tokyo Round of multilateral trade negotiations. The focus at this point of time was to develop a plurilateral agreement on trade in counterfeit goods. No progress was made on this front due to lack of support from any country/bloc apart from the EC.The matter was raised again in the 1982 Ministerial meeting and the Ministerial Declaration included an instruction to the GATT council to look into the question of counterfeit goods and the appropriateness and modalities of joint action within the GATT framework to counter the same. The expert group constituted pursuant to the Ministerial Declaration called for enhanced international action to tackle the problem of trade in counterfeit goods but stopped short of agreeing that GATT was the right forum for this. The preparations for the Uruguay Round in 1986 arrested any further progress by the expert group, even as active efforts were made to include IP in the Round.

IPR in the Uruguay Round

The United States was the major force behind the inclusion of IP in the Uruguay Round. Ineffective protection of US IP abroad was thought to be undermining the competitiveness of the US industry by both the US Government and industry. The objective was to evolve substantial standards of protection of IP in other countries along with effective enforcement mechanisms. This objective had earlier found expression in the US Trade and Tariff Act of 1984 which states explicitly that adequate foreign IP protection is a major US objective in trade negotiations.

In the initial stages of the Uruguay Round it was only US and Japan that were at the forefront for the inclusion of IPR’s in the mandate of negotiations. As a consequence of this, the first two years of the TRIPS Negotiating Group was an effort towards clarifying its negotiating mandate. The United States wanted the mandate to extend to substantive standards of protection of IP and internal enforcement; other developed countries were measured in their response. In particular, EC had an ambivalent stand at the beginning due to the added complication of distribution of competences between member states as EC institutions now had exclusive competence in GATT related matters. However as negotiations proceeded industrialized countries including Australia, Canada, Switzerland, New Zealand and the Nordic countries joined the pro IP bandwagon recognizing their shared interests in the deal. Even as industrialized countries were on one page in relation to the need for substantial IP protection to be part of multilateral trade rules there were still differences among them on the scope of protection of certain IPRs and with respect to special measures for developing countries such as transition periods , ‘pipeline protection’ and compulsory licensing. The underlying consensus on the need for IP protection within the GATT framework among these countries ensured that differences as noted above did not end up derailing the agreement.

Developing countries on the other hand were apprehensive about the inclusion of IPR within the GATT framework. The reasons for such a stand include, the belief that the mandate of GATT should not extend beyond ‘goods’, that such an inclusion will intrude into the domestic policy space of these countries and adversely affect their sovereignty in pursuing socio-economic policies according to their own needs and finally that there was nothing to be gained from undertaking obligations when 99% of the global patents and other forms of IP are owned by industrialized countries. However in the midterm review meeting held at Montreal in 1988 it started to appear that some of these developing countries shifted their stand in favour of inclusion of IPR in the GATT framework. This change in stand was not due to any new found clarity on the need for stricter and stronger IP protection at a global level. The future of multilateral trading system and the market access it secured came to be linked with the success of the Uruguay Round and a successful completion of TRIPS agreement was increasingly seen as a prerequisite for such an outcome. This belief was buttressed by the fact that the WTO agreement created new trade rights and did not incorporate pre-existing rights of the GATT with the result that any Government not joining it would lose the rights they enjoyed prior to the agreement. There was growing acceptance that refusing to deal with IP within the GATT will lead to a situation where developing countries will have to address it through bilateral agreements where the balance of power is further skewed in favour of developed countries. Further the potential benefits the agreement could bring in, in the fields of agriculture and textile was becoming clearer. Most importantly developing countries believed that using their collective bargaining power they could build into the agreement adequate flexibilities which will achieve a better balance of the interests of the developed and developing world.

Inherent Flexibilities in TRIPS

Although the mandate of TRIPS was to evolve a uniform global IP system with minimum standards of protection and effective enforcement mechanisms it does include a number of flexibilities that facilitate development and protection of public interest. In 1990 even as negotiations were in full swing to iron out differences between developed and developing countries , a draft TRIPS agreement was tabled by industrialized countries the focus of which was minimum protection , enforcement mechanisms and dispute settlement measures. In response to this draft, developing countries proposed their own draft legal text which aimed to maintain some flexibility in the agreement to allow countries to implement economic and social development objectives. The idea that was being emphasized was that intellectual property is not an end in itself and its objective should be the overall benefit of society as opposed to mere private benefit. These concerns of the developing countries found expression in Article 7 and 8 of the TRIPS of the agreement.

Article 7 and 8 of the agreement explicitly provide the important objectives and principals that need to be considered in the interpretation of the Agreement. Article 7 sets out the objective of the agreement to be promotion of technological innovation, transfer and dissemination of technology, production and use of technological knowledge while giving due attention to social and economic welfare. Article 8 gives countries the freedom to amend their laws to protect public health, nutrition and to promote public interest. Further, the preamble of the agreement recognizes underlying public policy objectives of countries in the protection of intellectual property rights which include developmental and technological objectives. A combined reading of Article 7, 8 and the Preamble of the agreement ‘in good faith in accordance with the ordinary meaning given to the terms of the treaty’ reveals that the agreement shows due deference to the domestic policy considerations of member countries. Thus even though TRIPS had its genesis in the strategic interests of the developed world , by the time the agreement was agreed and entered into , the developing world by virtue of its collective bargaining power had managed to incorporate certain flexibilities to make the agreement a more balanced framework for the protection and promotion of intellectual property.

For more details visit https://cis-india.org/a2k/blogs/intellectual-property-rights-trips-an-overview

Abuse of Dominant Position in Indian Competition Law: A Brief Guide

Sarthak Sood — 2015-12-09T13:20:40Z

Every car owner would give a knowing nod when spoken to about the struggle of finding reasonably priced spare parts for their cars. While original parts can only be found at limited dealerships (which would invariably be miles away from home), once found, a small block of plastic would be worth a proverbial fortune.

In a path breaking judgment delivered by the Competition Commission of India (hereinafter ‘CCI’ or ‘the Commission’), fourteen car manufacturers were penalised, the amount adding up to INR 2544.65 crores, for anti-competitive practices which included grossly marking-up the prices of original car parts. They (the manufacturers) found to have abused their dominant position in the market of car parts.

In this post, the issue of ‘abuse of dominant’ position as per S.4 of the Competition Act (‘the Act’) shall be analysed. The three steps to determine a contravention of S.4 shall be discussed in terms of factors considered by the Commission to assess each, and lastly, penalising powers of the Commission will be looked into.

1. Relevant Market

The first thing to be determined in cases of alleged abuse of dominant position is the 'relevant market' in which the accused party has a dominant position. The purpose served by delineating a relevant market is to define the scope within which the position of an enterprise is to be tested for dominance and abuse thereof. The 'relevant market' is defined in terms of 'product' and 'geography', that is to say, the relevant market identifies the particular product/service or class of products produced or services rendered by an enterprise(s) in a given geographic area. Identification also includes identification of enterprises that compete to supply those products or services.

A. Product Market

Both the dimensions of the relevant market are governed by several factors. For example, product market has been defined to comprise all those products or services that are regarded as interchangeable or substitutable by the consumer, because of characteristics of the products or services, their prices and intended use.[1]The CCI held that relevant product market is to be looked at form both demand and supply perspectives based on the characteristics of the product, its price and intended use.[2] So, in the BCCI case, the relevant market was decided on the consideration of demand substitutability of various forms of entertainment. It was held that a cricket match could not be held to be substitutable by any other sport based on neither characteristics nor the intention of the viewer to watch a cricket match.[3] Substitutability of products was in question again in Schott glass case where transparent and amber tubes made of the same type of glass and for the same purpose (storing chemicals), were held to be unsubstitutable because light sensitive chemicals could not be stored in transparent tubes.

The relevance of defining a relevant product market is made clear by this hypothetical used by the CCI- "Simply because many wholesale traders of grains also do wholesale trading of vegetables does not imply that grains and vegetables are substitutable or that grains and vegetable mandis are interchangeable."[4]

B. Geographical Market

Relevant geographic markets could be local or national depending upon the facts in each case, but it cannot be global. [5] These are areas where demand and supply of goods of services can be said to be homogenous and distinguishable from markets in neighbouring areas.[6] Naturally, several factors then, like regulatory trade barriers, local specification requirements, national procurement policies, adequate distribution facilities, transport costs come under the purview of consideration. Therefore, if all such factors were uniform throughout the country vis-à-vis a product, the whole country would be the relevant geographical area.[7] If not, then areas displaying uniformity would be. The intention of the consumer may also be used in defining the relevant geographical boundary. In a case of purchase and allocation of apartments, the Commission upheld "geographic region of Gurgaon" to be the relevant market because it observed that it was the intention of the buyer to buy an apartment in Gurgaon because it had developed a unique brand image over the years, a characteristic which other regions did not share. [8]

2. Determination of dominant position

Having determined the relevant market, the second step lies in determining whether the enterprise holds a dominant position in that market. Under the provisions of the Act, dominance refers to the ability of an enterprise to operate independently of market forces, and its position of strength, which enables it to affect competitors or consumers or the relevant market in its favour.[9]

Various factors to be taken into account for determination of dominance are listed under S. 19(4) of the Act. Consequently, it might be said that market share, though a major factor, is not the sole yardstick in determination of dominance. This viewwas reaffirmed in Mr.RamakantKini v Dr L H Hiranandani Hospital, Powai, Mumbai.[10] The Commission was assessing the dominance of the Hiranandani hospital. The relevant market was for provision of maternity services by super specialty and high-end hospitals within a distance of 12 kilometers from the Hiranandani Hospital. The Commission, in the case, clarified that the market shares of an entity is 'only one of the factors that decides whether an enterprise is dominant or not, but that factor alone cannot be decisive proof of dominance'.

In other cases, the Commission has adopted the practice of looking at the facts in totality to determine dominance. The case in point being In Re M/s ESYS Information Technologies Pvt LtdvIntel Corporation (Intel Inc) &Ors.[11] Along with the market share commanded by Intel, the Commission recognized various other factors- like consumer preference owing to the brand name, the existence of strong entry barriers in the relevant market, the significant intellectual property rights of Intel and the scale and scope enjoyed by Intel.

In Pankaj Kumar, the Commission opined that dominant position would be one in which the enterprise would have the ability to operate independently of competitive forces in the relevant market. In Sheil, the OEMs were held to be dominant in light of the fact that they had entered agreements with overseas equipment suppliers (OES) which effectively made the OEMs the sole proprietors of equipment of their companies, thereby, shielding themselves from competition.

3. Abuse, assessment of

The mere fact of dominance is inconsequential in so far as attracting the Act is concerned. What has to be shown is the abuse of the said dominance. An enterprise or a group is said to be abusing its dominant position if its activities, on perusal, are found to be fit any of the activities listed under S. 4(2).

Such activities may be divided into two categories- Exclusionary activities and exploitative activities.

Exclusionary activities are those in which the dominant entity uses its dominance to restrict entry of competition into the relevant market. For example, in Re Shri ShamsherKataria v Seil Honda[12], where there existed agreements between the dominant entities and the Overseas Suppliers of original car parts which prevented the Overseas Suppliers from supplying parts to independent repairers, such agreements were held to be anti-competitive as they restricted entry of new firms.

Exploitative activities, meanwhile, are those where the dominant entity exploits its dominance by imposing discriminatory and/or unjust conditions on other firms or consumers. A case in point would be Pankaj Agarwal, where, in a case pertaining to allotment of apartments, the contracts drafted unilaterally by DLF enabled them to be arbitrary about allotment of super-area, secretative about information relevant to the purchaser, like, the number of apartments on a floor, and to cancel allotments and forfeit booking amounts. The Commission held the contracts to be exploitative against buyers, and thus, abusive.

A. The issue of per se violations

An issue at hand while discussing what amounts to abuse is whether commission of any act falling within S. 4(2) is per se violative of competition law. To elaborate, if an act by a dominant power, say, unjustly exploits the consumer, but is in pursuance of some policy or rule, would the dominant entity be held to be abusing its position? No such distinction or characterisation appears in the Act, but was introduced by the Commission in its decision in Dhanraj Pillay v Hockey India[13]. In that case, Hockey India, a dominant entity in the market for organisation of private professional hockey activities in India and for services of hockey players, decided against adding World Hockey Series in the list of sanctioned events, thus, disincentivising players from participating in the same. The Commission noted that sanctioning of events was a regulatory function of Hockey India, and could not be found, per se, of violation of competition laws. Creating a further distinction between means and ends, the Commission noted that it had to proven that the clause in contention was applied by Hockey India in a discriminatory/unjust manner.[14] So, what is left somewhat in the grey is whether the activity is in contravention of the Act if it results in abuse, or if it is done in a discriminatory manner.

4. Penalties and Sanctions

To an enterprise held to be abusing its dominant position, the Commission can do several things-

Direct the enterprise to discontinue such acts that amounted to abuse. (S.27(a)). Examples of use of this power by the Commission can be found in cases likeIn Re Shamsher Kataria[15] and Atos[16], where the dominant parties were ordered to cease and desist from indulging in activities that had been found to be in contravention of S.4.
Impose penalties of up to ten percent of the average of the turnover for the last three preceding financial years. (S.27(b)).

There has been some concern about this provision for though it provides the upper limit, it gives no guidelines for the calculation of penalties. The Commission, too, is yet to come up with guidelines of its own. So, as of now, the Commission has complete discretion in calculation of penalties to be imposed upon each of such person or enterprises which are parties to such abuse. However, the COMPAT has put some conditions on the Commission so far as awarding penalties is concerned. In a case, COMPAT admonished CCI for CCI's practice of awarding large penalties without providing any reasoning for the same. Furthermore, in the same judgment, COMPAT held that penalties are to be calculated on the basis of the 'relevant turnover'. [17] So, in a case of abuse against a multi-product company, the turnover used to calculate the penalty would be the turnover from the particular product(s) in contention, and not the overall turnover.

However, irregularity is rampant in this sphere of the functioning of the Commission and the Appellate Authority, for the COMPAT itself failed to follow its precedent of 'relevant turnover' in M/s DLF Limited v Competition Commission of India &Ors[18]. COMPAT did not restrict the calculation of the penalty on the basis of DLF Limited's turnover arising only from the residential segment, despite the relevant market in that case being the market for 'high-end residential accommodation'. COMPAT upheld the penalty levied by the CCI, which was calculated on the basis of DLF's turnover pertaining to its entire business (i.e., the development of residential, office and commercial properties). [19]

Lastly, the Commission can pass an order to cause the division of the dominant enterprise such that does not abuse its dominant position. (S.28)

Conclusion

The Competition Act, 2003 is the successor of the Monopolistic and Restrictive Trade Practices Act, 1969. It underwent great changes in 2007. Thus, the prevalent competition law jurisprudence in India has ages barely seven years, and may not be as thorough as the US jurisprudence, which has been evolving since 1901. In spite of that, it is a progressive bit of legislation which, unlike the MRTP Act which had little tolerance for any dominance, recognizes the changing market conditions and does not have problems with dominance per se, but it does not veer away from its objective of keeping the market competitive.

[1] Atos Worldline v Verifoneindia, Case No. 56 of 2012, ¶6.3

[2] Surinder Singh Barmi v BCCI, Case 61 of 2010; Kapoor GlassPvt Ltd v Schott Glass, Case 22 of 2010.

[3] BCCI, id. at ¶8.34.

[4] MCX Stock Exchange v NSE, Case 13 of 2009, ¶10.24.

[5] BijayPoddar v Coal India Ltd., Case 59 of 2013.

[6] Atos, supra note 1 at ¶6.3.

[7] BijayPoddar, supra note 5 at ¶40

[8] Pankaj Agarwal v. DLF, C. Nos. 13 & 21 of 2010 and 55 of 2012, ¶6.23.

[9] In Re Shri Shamsher Kataria v. Honda Siel Cars India Ltd. &Ors, Case No. 03 of 2011¶¶8.1.7, 8.1.8

[10] Case No. 39 of 2012.

[11] Case 48 of 2011.

[12] Supra note note 9 at ¶8.1.11.

[13] Case 73 of 2011.

[14] Id., ¶10.13.5(a)

[15] Supra note 9 at ¶11.

[16] Supra note 1 at ¶6.32.

[17] M/s Excel Crop Care Limited v Competition Commission of India, Appeal 79 of 2012, ¶62.

[18] M/s DLF Limited v Competition Commission of India &Ors, Appeal No. 20 of 2011, Appeal No. 22 of 2011, Appeal No. 19 of 2012, Appeal No. 23 of 2011, Appeal No. 12 of 2012, Appeal No. 20 of 2012, Appeal No. 29 of 2013, Appeal No. 8 of 2013, Appeal No. 9 of 2013, Appeal No. 11 of 2013

[19] Cyril Shroff & Nisha Oberoi, India: Abuse of Dominance, Global Competition Review. Available at http://globalcompetitionreview.com/reviews/69/sections/235/chapters/2749/india-abuse-dominance/ (last visited on 18/11/2015).

For more details visit https://cis-india.org/a2k/blogs/abuse-of-dominant-position-in-indian-competition-law-a-brief-guide

Sau Dhuni Teen Project: December Edit-a-thon

garule — 2015-12-08T10:30:09Z

As part of the "Sau Dhuni Teen Project" a multilingual Wikipedia Wikipedia edit-a-thon was organised at the Women's Studies Centre, University of Pune.

Concept note:
The digital domain is becoming increasingly significant as a knowledge repository today. Especially relevant in this context is the online encyclopedia Wikipedia, which contains information on almost every topic under the sun and is used extensively by researchers. The fact that information from the Wikipedia is even used as a starting point of academic writing necessitates thinking about how this information is organized, or in other words, how we conceptualize Wikipedia as a knowledge resource. In the multilingual Indian context, generation of content in the Indian languages is a logical next step. It is with the intention of strengthening this knowledge network in the social sciences, that Women's Studies Centre, Pune University conducts content generation workshops with university researchers. The broad mandate of the digital resource generation workshop is to introduce university students to tools of collaborative knowledge production on the internet and methods for generating new online content in Indian languages under Sau Dhuni Teen Project. Also introductory session on Wiktionary.

Project aim:

Facilitate researchers to think critically about concepts and their associations
Involve researchers as active editors on the Indian language Wikipedias
Utilize Wikipedia as a platform to generate Indian language annotations of academic texts in Women's Studies and the Social Sciences

The organisers are also planning to engage the students in annotating one key women's studies text each through follow-up workshops and credit them as contributors to the "Annotated Bibliography project"

Project outcome:

9 female participants joined for this edit-a-thon and edited various articles on Marathi Wikipedia. The Marathi Wikimedia community being quite particular about the citations from Marathi-language source was somehow challenging as the participants struggled at times to find much information about many things notable. A simple step by step tutorial was created, printed and shared among the participants. Some of the participants showed interest in participating in the Train-a-Wikipedian programme that CIS-A2K is planning. Sheena D'Lima engaged with the participants by sharing her learning from Manual of Style for writing Wikipedia article.

More information about the event on Meta.

For more details visit https://cis-india.org/openness/sau-dhuni-teen-project-december-edit-a-thon

TTT 2015

hasan — 2015-12-15T07:36:25Z

The Centre for Internet & Society's Access to Knowledge team (CIS-A2K) conducted a four day training workshop for Wikimedians all over India in order to facilitate conducting and organising outreach activities for promotion of Wikimedia activities within Indian language communities. Wikimedians from 21 language communities had participated in this training workshop including Wikipedians working for Nepali and Maithili Wikipedia.

CIS-A2K was successful in providing an idea exchange platform during the TTT workshop. Wikipedians from all over India got a chance to discuss their respective Wikimedia projects and identify best practices that could be customised for their own Wikimedia projects.

CIS-A2K conducted TTT 2015 with a clear objecive of training Indian Wikimedians in conducting effective outreach activites, As a reflective exercise on the efficacy of our TTT camp held in Bangalore during February, 2015 we are now conducting follow-up with the participants and I have contacted three Wikipedians (for the month of November 2015) and following are the updates:

Sailesh Patnaik (Odia Wikimedian):

Activities till now:

Attended Google I/O Bhubaneswar to deliver a talk about Wikipedia movement.
Has organized a workshop at KIST Bhubaneswar with 50+ participants.
Was invited by GDG Bhubaneswar group to deliver a talk about Wikipedia project during Google Dev Fest.
Presented a seminar at CET Bhubaneswar after the invitation from the organizing committee of the Perception (The Annual tech fest of CET , Bhubaneswar).

Upcoming Activities

Planning to organize a Wiki Takes Bhubaneswar photowalk and am also planning a GLAM project with a Cooperative society powered by Central Government and spread Open Source movement in Odisha.

V.T. Narayanan and Sayant Mahato (Samskritam Wikipedians):

Activities till now:

In May 2015, Samskrita Bharati organized a camp in Kalladka.
In July 2015 : Rashtriya Sanskrit Samsthan, Sringeri (Now Sringa Giri) organized a symposium for their staff and students.
In August 2015, Rashtriya Sanskrit Vidya Peeta, Tirupathi organized introductory classes on Wikipedia. Sayant Mahato attended the programme and expained in detail about Sanskrit Wikipedia.
Later in August 2015, at Aksharam, Bangalore, Samskrita Bharati conducted a " Medha Shibiram" exclusively oriented to youngsters and students who are based outside India like in USA. The Shibiram was well received both by the students and their parents. The participants were very interested to know about Sanskrit Wikipedia.
Samskrita Bharati is engaged in the work of editing the existing articles in Wikipedia.

For more details visit https://cis-india.org/a2k/blogs/ttt-2015

Touch Point Report: Department of Tourism Studies, Christ University and St. Aloysius College, Managalore

hasan — 2015-12-15T07:37:14Z

CIS-A2K conducts Wikipedia in Education programme at St. Aloysius colege, Mangalore. This partnership is unique as it provides to us a pool of editors for three Wikimedia projects, i.e: Kannada, Tulu and Konkani.

Touch point Report:

St. Aloysius

With editors from St. Aloysius college taking lead in organising 13^th anniversary of Kannada Wikipedia anniversary, Kannada Wikipedia is growing in Mangalore and can be expected to produce content and engagement regularly similar to Bangalore and Mysore volunteers.

Activites

Translation of system messages for Tulu Wikipedia
Creating Tulu WP tutorial videos
Guiding St Aloysius College Student interns
Planning of 13^th anniversary of Kannada Wikipedia anniversary

Reporting on the learning: PEG application created after extensive discussion with the student volunteers and Mr. Vishwanth Badikana who is primary coordinator of the event.

New developments: A possible partnership with Karnataka Tulu Academy is being explored, this could lead to content donation.

Failures: Non-availabilty of scanners hampered our chances of securing some important primary resources that would have been useful for content generation.

Primary Contact: Mr. Vishwanath Badikana,

Christ University

Introduction: A2K team is implementing its largest Wikipedia in Education programme at Christ University. This programme has been under operation since 2013 and has seen multiple revisions regarding: faculty engagement, evaluation process, student contributions and A2K team's responsibilties.

Activites: Edit-a-thon on Wikivoyage organised at Department of Tourism Studies, Christ University, Bangalore

Reporting on the learning: 1) As the edit-a-thon was happening on English Wikivoyage and A2K team had not intimated about the event to the larger community, there were instances of accounts being blocked and ip address being blocked as well.

A2K conducted Wikivoyage edit-a-thon and was surprised to see that many tourist places in India do not find mention on this Wikimedia project.

New developments: Interest shown by the faculty of Department of Tourism Studies, Christ University to host the student assignments on Wikimedia projects.

Failures: A2K was unable to help students to upload images onto commons.wikimedia.org during the session. A follow up session is being planned.

Primary Contact: Ms. Mugdha Kulkarni, mugdha.shailendra@christuniversity.in

For more details visit https://cis-india.org/a2k/blogs/department-of-tourism-studies-christ-university-st-aloysius-college

Analysis of Institutional Partnerships: University of Mysore and Guru G Learning Labs

hasan — 2015-12-15T07:39:15Z

University of Mysore considered to be one of the most prestigious institutions in the country has been famous for its innovative pedagogic techniques and opening up for students various avenues of knowledge acquisition.

The Kannada Encyclopedia project that was taken up by the Kuvempu Kannada Adhyana Samsthe, (KIKS), Manasagangothri, Mysore was one of its kind during its inception. It is safe to say that though Kannda has seen many other projects and attempts towards compiling encyclopedias, to this day the Vishwakoshas produced by University of Mysore are among the top picks regarding quality of the content, scope of the information and its reach with the general public. Many other encyclopedia projects such as “Bala Vignana Kosha” compiled by Shivaram Karanth, “Jnana Gangothri” by Niranjana, the “Kananda Sahitya Vishwakosha” from the Kannada University, Hampi have provided encyclopedic content to the Kannada readers.

The idea of the University of Mysore complied Vishwakoshas was simple. It seeked to provide basic and elemenatry information about key topics all around the universe (physical, spiritual, material, cultural, social, behavioural, political and many other domains of knowledge) to the general public. The intention was to make information accessible and easily understandable. It was not expected to educate or assist people in gaining profieciency regarding a certain topic but was expected to provide salient features, brief history and concise introduction.

Rationale for Institutional partnership:

The compilation of topics that were to be part of the Vishwakosha was done alphabetically and till date 13 Vishwakoshas have been produced along with one Kannada Vishaya Vishwakosha which exclusively deals with matters pertaining to Kannada land, language, literature, politics, culture, entertainment and other aspects of Kannada life. The Vishwakosha project was a method to democratise the process of production of knowledge. People from all walks of life were invited to contribute to the Vishwakosha along with the academicians and researchers. The submissions were then scrutinised by the review committee and was edited, information added as per the requirements. As this was not a text only Vishwakosha many attempts were made to source images as well. These were not used as ornamental or page filling purpose but was also informative in its own way with adequate meta data.

These encyclopedias have been extremely popular with the Kannada audience both for the content and for its competitive pricing. Prasaranga, the publication division of University of Mysore had also offered an discount for people who would purchase the entire set of Vishwakoshas at a special rate. The Vishwakosha project faced many problems and the last volume of the Vishwakosha was released in the year , while the first volume was released in . University of Mysore has also digitised the Vishwakoshas and made it avaialable for general public on a CD.

Plan of Action:

Access to Knowledge team sought to bring these treasure troves of Knowledge onto the digital platform and update the information available on these Vishwakoshas. It was a shot in the arm for the activities being conducted by CIS-A2K when University of Mysore agreed to re-release all of its encyclopedias under free licence for the benefit of larger Kannada community. University of Mysore also agreed to handover soft copies of the few encyclopedias (that were already digitised) to create and redirect content towards Kannada Wikipedia.

A2K team has conducted three skill building and Wikipedia orientation workshops with the students of University of Mysore in order to kick start the content generation activities. These workshops were received very positively by the students. However due to lack of an active community and serious infrastructural issues the students could not continue with the activities that had been planned. Due to the inactivity of these new volunteers we have witnessed a decrease in the activity of content generation effort as aimed earlier.

CIS-A2K facilitated extracting the legacy text from the soft-copies, converting them to Unicode, distributing the files among volunteers and Christ University interns and uploading them to Kannada Wikisource. These articles will serve as primary material for new content generation on Kannada Wikipedia. CIS-A2K celeberated Open Knowledge Day in collaboration with University of Mysore.

The non availability of infrastructual requirement, administrative difficulties such as scheduling of academic calendar offered the A2K team many invaluable lessons towards fostering an institutional partnership. A2K team adopted corrective measures and has been using the encyclopedias donated by University of Mysore as a primary reference for the subsequent edit-a-thons. A2K has also created a project page on Meta to attract Kannada Wikimedians towards content generation.

Outcome and Output:

A2K team utilised its institutional partnership with Christ University in the initial stages and digitised volumes of Kannada Encyclopedias. These were used both as references for the edit-a-thons conducted by CIS-A2K and as a primary reference material that was curated into an independent article on Kannada Wikipedia. Many Kannada Wikimedians have joined hands with A2K in acheiving this. This is an on-going activity.

Plans for Future:

As University of Mysore has rich archival collection particulalry in Indian Languages, A2K team intends to talk to individual departments to bring this content to Open Knowledge repositiries.

A2K team would like to involve various Departments to dedicate some staff on an hourly basis towards speedy completion of the project.

The existing MoU is understood as a one time activity of content donation (print and e copy of Vishwakosha) where as A2K would like to continue this activity as a long term engagement that will facilitate in building research skills and writing skills.

A2K team intends to request to University of Mysore should select/suggest some student volunteers for the digitisation project. With the inclusion of Kannada PA A2K team would collaborate with key Departments at the University of Mysore to conduct digitisation and translation sprints that will be facilitated by and other Wikimedians.

A2K team would like to collate all the new articles created with the help of the content donated by University of Mysore and circulate it as a newsletter on a monthly basis and sent to the Kannada community and University of Mysore.

For more details visit https://cis-india.org/a2k/blogs/analysis-of-institutional-partnerships-university-of-mysore-and-guru-g-learning-lab